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Court of Criminal Appeal 29 November 2023

Lin v R

[2023] NSWCCA 304

Fraud & dishonesty
CRIME SENTENCE APPEAL FINDING OPEN FINDING OF ATTEMPTS TO MINIMISE ROLE FINDING OPEN PARITY

Citation: Lin v R [2023] NSWCCA 304
Court: NSW Court of Criminal Appeal
Date: 29 November 2023
Judge(s): Ward P at [1]; Rothman J at [2]; Davies J at [69]

Background

The appellant pleaded guilty in the District Court to possessing imported tobacco products with intent to defraud the revenue, an offence under s 233BABAD(2) of the Customs Act 1901 (Cth) read with s 11.2A(1) of the Criminal Code Act 1995 (Cth). Together with a co-offender, he had stored large quantities of smuggled tobacco across multiple storage units in Sydney between August and December 2020. Both men were intercepted by police as they drove away from one of those units, with the car carrying over 64 kg of loose-leaf tobacco concealed inside tea packaging and 280 packets of cigarettes.

When police asked about the contents of the packages, the co-offender told them the items were tea. The appellant said nothing. Phone searches later revealed spreadsheets tracking consignments and messages concerning the sale of smuggled tobacco. The total revenue lost across the operation exceeded $300,000.

The sentencing judge, Wass SC DCJ, imposed a two-year term of imprisonment with a direction that the appellant be released after one year on a Recognisance Release Order. The co-offender received a more lenient sentence, which he served by way of an Intensive Correction Order, partly because he was significantly younger and sentenced according to principles applicable to young offenders.

  • Whether the sentencing judge erred in finding that the appellant lied to police and in treating that finding as relevant to remorse
  • Whether the sentencing judge erred in treating defence counsel's submissions on sentence as evidence that the appellant was minimising his role, thereby affecting findings on rehabilitation and remorse
  • Whether the disparity between the appellant's sentence and the co-offender's more lenient sentence gave rise to a legitimate sense of grievance

Decision

Ground 1: Silence and remorse. The Court rejected the submission that the sentencing judge had wrongly found the appellant lied to police. The judge had not made a positive finding that the appellant lied by staying silent. Rather, she used the overall lack of candour, including the silence in the face of the co-offender's misleading answer, to inform her assessment of remorse. The Court found this was an inference properly open on the agreed facts, and no error was established.

Ground 2: Counsel's submissions as evidence of minimisation. The sentencing judge found the appellant had sought to minimise his role in the offending. The appellant's counsel had submitted at sentence that there was no evidence the appellant did anything beyond accepting and delivering packages. The Court held this submission reflected what the appellant himself had told others in material that was also before the court. The sentencing judge was therefore entitled to treat it as part of a pattern of minimisation, and the finding was open on the evidence.

Ground 3: Parity with the co-offender. The co-offender received an Intensive Correction Order rather than full-time imprisonment, a significantly more lenient outcome. The Court acknowledged the difference but found it did not give rise to a legitimate sense of grievance. The co-offender was substantially younger and was sentenced according to principles applicable to young offenders. The sentencing judge also appeared to have taken parity into account in an indirect way by reducing the appellant's head sentence to two years, which kept open the possibility of an Intensive Correction Order, before ultimately declining to impose one.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge may draw on an offender's lack of candour with police, including silence when a co-offender gave a misleading answer, as a basis for findings about remorse, without making a formal finding that the offender lied.
  • Where defence submissions on sentence mirror an offender's own account and that account appears to minimise the offender's role, a sentencing judge is entitled to treat those submissions as consistent with, and reflective of, that minimisation.
  • Disparity between sentences imposed on co-offenders does not automatically generate a legitimate sense of grievance. Where there are significant differences in personal circumstances, such as age and the application of young offender principles, those differences can justify materially different outcomes.
  • In dismissing the parity ground, the Court of Criminal Appeal noted that the sentencing judge had engaged with parity in an indirect but not erroneous manner by structuring the sentence to remain within the range that preserved the theoretical availability of an Intensive Correction Order.
  • The applicable maximum penalty for the offence under s 233BABAD(2) of the Customs Act 1901 (Cth) is 10 years' imprisonment and/or a fine of five times the evaded duty or 1,000 penalty units.

Legislation and Cases Referenced

Legislation
- Customs Act 1901 (Cth), s 233BABAD(2)
- Criminal Code Act 1995 (Cth), s 11.2A(1)

Cases
- BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379
- Brzozowski v The King [2023] NSWCCA 129
- L Vogel & Son Pty Ltd v Anderson (1968) 120 CLR 157; [1968] HCA 90
- Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
- Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55
- Patel v R [2022] NSWCCA 93; (2022) 366 FLR 314
- R v Lyon (1906) 3 CLR 770; [1906] HCA 17
- Raptis, Lilimbakis & Sinclair v R (1988) 36 A Crim R 362