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Court of Criminal Appeal 14 February 2018

Lin v R

[2018] NSWCCA 13

Drugs
CRIMINAL LAW SENTENCING AGGRAVATING FACTORS PLANNED AND ORGANISED CRIMINAL ACTIVITY OFFENCE COMMITTED FOR FINANCIAL GAIN WHETHER JUDGE ERRED

Citation: Lin v R [2018] NSWCCA 13
Court: Court of Criminal Appeal, New South Wales
Date: 14 February 2018
Judges: Basten JA at [1]; Bellew J at [9]; Hamill J at [12]

Background

Four co-offenders participated in the supply of 15 kilograms of ephedrine to an undercover police officer at a car park in Auburn on 20 May 2014. All four pleaded guilty to knowingly taking part in the supply of a large commercial quantity of a prohibited drug under the Drug Misuse and Trafficking Act 1985. The same District Court judge sentenced all four, though across two separate hearings.

The applicant, Lin Zhiqiang, drove the car containing 10 kilograms of ephedrine to the location. His co-offender Chen Rong retrieved the drugs from the boot and delivered them. The sentencing judge accepted that Lin and Chen were less culpable than the other two co-offenders, Huang Enhua (who negotiated directly with the undercover officer) and He Haihui (who arranged delivery of the drugs). The judge sentenced Lin to 8 years, Chen to 7 years, He to 9 years, and Huang to 10 years, with carefully calibrated non-parole periods designed to reflect each offender's relative culpability.

Lin sought leave to appeal against his sentence. Separately, Huang had also appealed. The Court of Criminal Appeal heard Huang's appeal first, reducing his sentence from 10 years to 7 years 6 months. That reduction had not yet been handed down when Lin's appeal was argued, but it was delivered before judgment in Lin's matter. This created a significant parity problem that became the central issue in Lin's appeal.

  • Whether the sentencing judge erred by failing to make an explicit assessment of the objective seriousness of the offence
  • Whether the sentencing judge erred in finding the offence was aggravated by being part of a planned or organised criminal activity (s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999)
  • Whether the sentencing judge erred in finding the offence was aggravated by being committed for financial gain (s 21A(2)(o) of the Crimes (Sentencing Procedure) Act 1999)
  • Whether the sentencing judge failed to explain how the aggravating factors affected the sentencing outcome
  • Whether Lin's sentence was disproportionate to those imposed on his more culpable co-offenders, particularly following the reduction of Huang's sentence on appeal

Decision

The Court rejected the first four grounds of appeal. On the objective seriousness ground, the court found that the sentencing judge had in fact made a relevant assessment, even if not expressed in those precise terms. On the aggravating factors, Hamill J found that the financial gain aggravator had been made out, but that the judge had erred in relation to the "planned or organised criminal activity" factor, as that element was inherent in the offence of commercial drug supply at this scale and therefore constituted impermissible double-counting. Despite error being established, the court's reasoning on re-sentencing was ultimately shaped by the parity ground.

On parity, the court noted that, before Huang's sentence was reduced, it would have dismissed this ground. Lin's original sentence of 8 years had been carefully set in proportion to Huang's 10 years, with the differential designed to reflect their respective levels of culpability. When the Court of Criminal Appeal reduced Huang's sentence by 25 percent without reference to that proportionate structure, the existing sentences for the less culpable offenders could no longer be justified by reference to those imposed on the more culpable ones.

Basten JA held that the court was bound to intervene. The proper approach was to reduce Lin's sentence proportionately to match the 25 percent reduction applied to Huang's sentence. Hamill J, who initially arrived independently at a sentence of 6 years 6 months, ultimately agreed that mathematical consistency with the Huang reduction was the correct approach in the particular circumstances of this case. Both He and Chen, who had not appealed, would serve sentences that could no longer be supported by reference to the co-offenders' proportionate structure, but that consequence flowed from their own forensic decisions not to appeal.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed
  • Sentence imposed by the District Court on 17 June 2016 set aside
  • Applicant re-sentenced to imprisonment comprising:
  • Non-parole period of 4 years 1 month, commencing 20 May 2014 and expiring 19 June 2018
  • Balance of term of 1 year 11 months, commencing 20 June 2018 and expiring 19 May 2020
  • Earliest eligible parole date: 19 June 2018

Key Takeaways

  • A co-offender's successful sentence appeal can give rise to a viable parity ground for another co-offender, even where the other co-offender's original sentence was not itself infected by error, provided that the other co-offender has raised a parity ground in their own appeal.

  • Where a sentencing judge has deliberately structured co-offenders' sentences to reflect relative culpability, a substantial appellate reduction of a more culpable co-offender's sentence will destabilise that proportionate structure and may require re-sentencing of the less culpable co-offenders who have appealed.

  • Using a statutory aggravating factor (such as "planned or organised criminal activity" under s 21A(2)(n)) in the context of a large-scale commercial drug supply offence risks impermissible double-counting, because that element may be inherent in the nature of the offence itself.

  • The Court of Criminal Appeal confirmed that the parity principle exists to protect equal justice between co-offenders. An unjustifiable disparity arises where a co-offender who was found more culpable ends up serving a sentence that no longer adequately exceeds that of a less culpable offender.

  • Co-offenders who do not appeal accept the forensic consequences of that decision. Where a reduction flows through to one appellant but not to non-appealing co-offenders, the resulting inconsistency is described as an unfortunate but unavoidable consequence of individual litigation choices.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(n), 21A(2)(o), 54A(2)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25A

Cases
- Huang v R [2017] NSWCCA 312
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- R v Yildiz [2006] NSWCCA 97; (2006) 160 A Crim R 218
- Elyard v The Queen [2006] NSWCCA 43
- Fahs v R [2007] NSWCCA 26
- Prculovski v R [2010] NSWCCA 274
- Kassoua v R [2017] NSWCCA 307
- AB v R [2013] NSWCCA 160
- Wat v R [2017] NSWCCA 62