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Court of Criminal Appeal 2 July 1999

Regina v Lin

[1999] NSWCCA 178

Drugs
CRIMINAL LAW AND PROCEDURE SENTENCING APPEAL AGAINST SEVERITY SENTENCE 'MANIFESTLY EXCESSIVE' CRIMINAL LAW ASSESSMENT OF DEGREE OF INVOLVEMENT

Citation: Regina v Lin [1999] NSWCCA 178
Court: Court of Criminal Appeal, New South Wales
Date: 2 July 1999
Judge(s): Bell J; Newman J

Background

The appellant pleaded guilty in the Sydney District Court to two counts of knowingly taking part in, and supplying, not less than a commercial quantity of heroin, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The offences occurred on 27 November 1997 when surveillance police observed the appellant convey 447 grams of heroin to a location in Dawes Point, Sydney, from where it was passed to an undercover officer. A search of the appellant's home unit revealed a further 365.1 grams of heroin, along with electronic scales, a hydraulic press frame, and a mould matching the dimensions of the earlier heroin block.

Acting Judge Wall QC imposed concurrent sentences of eight years, comprising a minimum term of six years and an additional term of two years, commencing from the date of arrest. The total combined value of the heroin across both counts was estimated at over one million dollars.

The appellant sought leave to appeal on the ground that the sentences were manifestly excessive.

  • Whether the sentences of eight years were manifestly excessive for commercial supply of heroin under s 25(2) of the Drug Misuse and Trafficking Act 1985.
  • Whether the purity of the heroin (being less than the commercial quantity threshold in pure form) should reduce the assessment of objective criminality.
  • Whether the sentencing judge erred by treating the appellant as a principal, rather than assessing him correctly as having a role higher than a mere courier but below that of a principal.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Bell J (with Newman J agreeing) found that none of the grounds of challenge had been made out.

The argument based on purity was not pressed in oral submissions, and Bell J noted this was unsurprising. The provisions of s 4 of the Drug Misuse and Trafficking Act, combined with the Court's earlier observations in Regina v R2 (1990) 19 NSWLR 513, made clear that the commercial quantity threshold applies to the mixture or substance as a whole, not the pure drug content. Bell J found no merit in this ground.

On the question of role, Bell J accepted that the sentencing judge had not treated the appellant as a principal. The judge had applied the beyond reasonable doubt standard, and found that the appellant occupied a role meaningfully above that of a mere courier. That finding was supported by the agreed statement of facts, including the appellant's earlier collection of a significant co-offender from Sydney Airport, his ongoing association with that person, and the discovery of commercial drug-packaging equipment at his home.

Bell J concluded that to succeed on a manifest excess argument, the appellant would need to demonstrate that a sentence of eight years fell outside the permissible range for commercial heroin supply in broadly comparable circumstances. Having regard to the quantity of heroin involved and the statistical material before the sentencing judge, the Court was not persuaded that the sentence exceeded the upper limit of the appropriate range.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence of eight years for commercial supply of heroin was within the permissible range where the offender's role extended beyond mere courier to include warehousing and organisational functions.
  • Under s 4 of the Drug Misuse and Trafficking Act 1985, the commercial quantity threshold is assessed by reference to the total weight of the substance or mixture, not the quantity of pure drug it contains. This position had been confirmed in Regina v R2 (1990) 19 NSWLR 513.
  • A manifest excess ground requires the appellant to establish that the sentence falls outside the upper limit of the range of sentences appropriate for comparable cases, not merely that it sits at the higher end of that range.
  • Factual findings about an offender's role are informed by the totality of agreed facts, including conduct before the day of the offence, associations with significant co-offenders, and equipment found at the offender's premises.
  • Where statistical sentencing data is limited in sample size and varies across objective circumstances, a sentencing court is entitled to treat it as providing only limited guidance and to impose a sentence at the upper end of the indicated range where the facts warrant it.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 4, 25(2)

Cases:
- Regina v R2 (1990) 19 NSWLR 513