Citation: Lin v R; Ng v R [2016] NSWCCA 200
Court: NSW Court of Criminal Appeal
Date: 12 September 2016
Judge(s): Bathurst CJ, Davies J, RS Hulme AJ (judgment delivered by RS Hulme AJ)
Background
Two appellants, both Hong Kong residents, travelled to Australia to facilitate the importation of 21.9146 kg of methamphetamine concealed in two shipping containers, which arrived on or about 9 December 2011. The drug was predominantly high purity (79.4%) and had an estimated street value, once cut, of approximately $28 million. The quantity was almost 30 times the minimum "commercial quantity" threshold under the relevant regulations.
Each appellant was convicted of importing a commercial quantity of a border controlled drug under s 307.1(1) of the Criminal Code 1995 (Cth), which carries a maximum penalty of life imprisonment. Sweeney DCJ sentenced each to 12 years' imprisonment with a non-parole period of 8 years.
On appeal, the appellants challenged the adequacy of the discount given for their assistance to authorities, the characterisation of their roles, and whether the overall sentences were manifestly excessive.
Legal Issues
- Whether the sentencing judge erred in assessing the discount for cooperation with law enforcement under s 16A(2)(h) of the Crimes Act 1914 (Cth), where the assistance was provided indirectly through a third party
- Whether the sentencing judge erred in characterising each appellant as performing an essential role with a high level of responsibility
- Whether sentences of 12 years with non-parole periods of 8 years were manifestly excessive for this offending
Decision
Ground 1: Discount for assistance. The appellants had arranged, through a law clerk acting for their solicitors, for a tip-off about an incoming drug shipment to be passed to the NSW Crime Commission. That tip-off originated from the father of one appellant, who appeared to be the principal organiser behind the original importation. The Court of Criminal Appeal confirmed that the sentencing judge was correct in treating this indirect encouragement of cooperation as falling within s 16A(2)(h), following the approach in R v Jalalaty. However, the appellants' limited personal involvement in the assistance justified a reduced discount, and no error in the sentencing judge's quantification was established.
The Court also noted a concern not raised below: there was a real possibility that the offence about which the tip-off was provided had itself been arranged to generate the appearance of assistance. If that were established, the assistance would merit no discount at all. Because the Crown did not seek to reduce the allowance on appeal, the Court did not pursue this further, but the observation is notable.
Ground 2: Level of responsibility. The sentencing judge found that each appellant performed an essential role with a high level of responsibility, actively working to access the shipping containers and retrieve the drugs, rather than performing merely menial functions such as couriering or warehousing. The Court of Criminal Appeal found this characterisation was well justified on the agreed facts and rejected the argument that their subordination to the organising principal reduced their culpability to that of simple couriers.
Ground 3: Manifest excess. Given the enormous quantity of drugs involved, their high purity, the deliberate and premeditated nature of the offending, and the serious harm methamphetamine poses to the community, the Court found the sentences were within the legitimate range of the sentencing discretion. Comparative cases pressed by the appellants were not treated as definitive of the appropriate range, and cases relied upon by the Crown supported the outcome reached by the sentencing judge. This ground also failed.
Orders Made
- Leave to appeal granted.
- Appeals dismissed.
Key Takeaways
- Indirect assistance to authorities, such as encouraging or facilitating a third party to provide information to law enforcement, can still qualify as cooperation under s 16A(2)(h) of the Crimes Act 1914 (Cth), but the limited nature of that indirect role is a legitimate factor in reducing the size of the discount.
- The Court of Criminal Appeal flagged, without deciding, that if an offence about which "assistance" is provided was itself orchestrated to manufacture the appearance of cooperation, no sentencing discount would be warranted. This consideration was not resolved here because the Crown did not press the point.
- A finding of "essential role with a high level of responsibility" does not require the offender to be the principal organiser. Active participation in achieving the objectives of the importation, beyond merely menial tasks, can support that characterisation even where the offender acted under another's direction.
- In dismissing the manifest excess ground, the Court reiterated that prior sentences in comparable cases establish a range of reference, not a rigid tariff, and that the quantity involved (nearly 30 times the commercial threshold), the high purity, and the deliberate nature of the offending all supported the sentences imposed.
- Under s 307.1(1) of the Criminal Code 1995 (Cth), the maximum penalty for importing a commercial quantity of border controlled drugs is life imprisonment; 750 grams of methamphetamine constitutes the minimum commercial quantity under the Criminal Code Regulations 2002 (Cth).
Legislation and Cases Referenced
Legislation
- Criminal Code 1995 (Cth), s 307.1(1)
- Criminal Code Regulations 2002 (Cth), Schedule 4
- Crimes Act 1914 (Cth), s 16A(2)(h)
Cases
- R v Gallagher (1991) 23 NSWLR 220
- R v Jalalaty [2010] NSWSC 1561
- R v Nguyen; R v Pham [2010] NSWCCA 238
- Chan v R [2010] NSWCCA 153
- R v Ehrlich [2012] NSWCCA 3
- R v Studeniken [2004] NSWCCA 164
- Sukkar v R [2007] NSWCCA 298
- R v Cas [2005] NSWCCA 192
- NP v R [2008] NSWCCA 20
- Mauceri v R [2007] NSWCCA 262
- Schaal (unreported, NSWSC, 8 September 1989)