Citation: Song Lin v Regina [2007] NSWCCA 368
Court: NSW Court of Criminal Appeal
Date: 21 December 2007
Judge(s): Basten JA, Barr J, Adams J
Background
The appellant was an Australian citizen who pleaded guilty in the District Court to knowingly taking part in the manufacture of a commercial quantity of methylamphetamine. The offence arose from a clandestine laboratory set up at a unit in Carlingford, which was effectively controlled by an absent overseas figure. The appellant had been involved from late 2004 until his arrest on 2 January 2005, during which time he purchased and sourced laboratory equipment and assisted in various logistical tasks.
Two co-offenders were also charged and sentenced for their roles in the same enterprise. Kar Wah Lau, characterised as the "cook," was charged with manufacturing a large commercial quantity (8.8 kilograms) of methylamphetamine and received twelve years' imprisonment with a nine-year non-parole period. Kam Wing Lo, who carried out labouring tasks at the direction of others, pleaded guilty to aiding and abetting Lau and was sentenced to six years' imprisonment with a four-year non-parole period.
The appellant was sentenced to eight years' imprisonment with a six-year non-parole period. He sought leave to appeal on two grounds: that the sentence was manifestly excessive, and that it was disproportionate compared to the sentence received by Lo.
Legal Issues
- Whether the sentence of eight years (non-parole period of six years) imposed on the appellant was manifestly excessive for his role in the manufacturing enterprise.
- Whether an unjustified disparity existed between the appellant's sentence and the lesser sentence imposed on his co-offender Lo, giving rise to a justifiable sense of grievance.
- What weight to give to the form of charge preferred against each co-offender when assessing comparative criminality.
- Whether the appellant was entitled to a finding under section 44 of the Crimes (Sentencing Procedure) Act that his sentence would be served harder due to the absence of family support.
Decision
The Court found that both grounds of appeal could be considered together, as they were closely connected. Barr J noted that the different charge formulations used against each co-offender were of limited use in assessing criminality. What mattered was what each offender actually did and with what intent, alongside the applicable sentencing ranges.
A complicating factor emerged from the sentencing history. When Lo was sentenced in June 2006, the sentencing judge had described the appellant as the "organiser" of the enterprise. By the time the appellant came to be sentenced in November 2006, the judge was no longer satisfied the appellant's role was that significant, finding instead that he had acted at the direction of others. Despite that revised characterisation, the appellant still received a higher sentence than Lo, who faced a potential maximum of life imprisonment compared to the appellant's maximum of twenty years.
Barr J concluded that both Lo and the appellant occupied broadly similar roles: neither held executive authority, and each carried out tasks as directed. While the appellant had been involved over a longer period, that difference did not justify the gap between their sentences. The Court accepted that the disparity likely arose because the sentencing judge had been misled, when sentencing Lo, about the appellant's true role in the enterprise.
The Court also accepted that, as with Lo, the appellant's circumstances warranted adjustment of the parole and non-parole components under section 44. The appellant was in custody for the first time and his family were in China, meaning he would be denied visits and would serve his sentence in a harder manner as a result. Basten JA and Adams J agreed with Barr J's reasons without further elaboration.
Orders Made
- Leave to appeal granted and appeal allowed.
- Sentence imposed in the District Court quashed.
- Appellant re-sentenced to imprisonment with a non-parole period of four years commencing 2 January 2005 and a head sentence of six years, taking into account possession of 0.26 grams of cocaine as a further matter.
- Appellant declared eligible for release to parole on 1 January 2009.
Key Takeaways
- The Court of Criminal Appeal confirmed that the precise charge formulation preferred against a co-offender is of limited utility when comparing sentences; the reliable measure of criminality is what each offender actually did and intended.
- A justifiable sense of grievance can arise where co-offenders played broadly comparable roles but received materially different sentences, particularly where the disparity cannot be explained by differences in culpability or applicable maximum penalties.
- Where a sentencing judge's earlier characterisation of an absent co-offender's role later proves inaccurate or overstated, the resulting disparity in sentences may itself constitute appellable error.
- Under section 44 of the Crimes (Sentencing Procedure) Act, circumstances rendering a sentence harder to serve (such as foreign nationality and the absence of family support in Australia) may justify a longer parole period relative to the non-parole component.
- A higher maximum penalty faced by a co-offender is a relevant consideration when assessing apparent sentencing disparity; here, Lo faced potential life imprisonment while the appellant's maximum was twenty years, making it difficult to justify the appellant's greater sentence.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Cases:
No cases were cited in the portions of the judgment provided.