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Court of Criminal Appeal 9 February 2001

R v Feng Lin [2001] NSWCCA 7 revised - 24

[2001] NSWCCA 7

Also reported as (2001) 119 A Crim R 194
Public order & justice offences
SENTENCING SEVERITY APPEAL CITIZENS PEOPLE SMUGGLING STRONG DETERRENT ELEMENT

Citation: R v Feng Lin [2001] NSWCCA 7 revised - 24/08/2001; (2001) 119 A Crim R 194
Court: New South Wales Court of Criminal Appeal
Date: 9 February 2001
Judge(s): Mason P; Hidden J; Carruthers AJ

Background

The appellant was a Chinese national and third officer aboard a large container vessel operating between Chinese and Australian ports. In mid-1999, he was approached on two occasions by an acquaintance who asked him to conceal three non-citizens in the ship's cargo hold for passage to Sydney. He agreed, secreted the three men in cargo hold No. 8 with water and bread, and was promised USD $3,000 per person upon the vessel's return to China.

The stowaways were discovered by the chief officer during a routine hold inspection four days into the voyage. The appellant co-operated fully with Australian Federal Police investigators, providing a taped interview and assisting authorities with information. He pleaded guilty at the earliest opportunity to one count under s 233(1)(a) of the Migration Act 1958 of taking part in the coming to Australia of non-citizens in circumstances from which it could reasonably be inferred those persons intended to enter Australia in contravention of that Act.

In the District Court, Judge Viney QC sentenced the appellant to four years imprisonment, with a non-parole period of two years and four months. The appellant sought leave to appeal to the Court of Criminal Appeal on the ground that the sentence was manifestly excessive.

  • Whether the sentencing judge erred in adopting seven years as the appropriate starting point before applying a discount for subjective factors.
  • Whether the resulting sentence of four years imprisonment was manifestly excessive, having regard to the objective seriousness of the offence and the appellant's exceptional subjective circumstances.
  • What weight should be given to comparable sentencing decisions from the Northern Territory in fixing an appropriate range.

Decision

The Court divided on the outcome. Mason P (in the minority on the result) found no appealable error in the sentencing judge's remarks and concluded the sentence was not manifestly excessive. He accepted the seven-year starting point as high but not appealably so, given the appellant's responsible position as a deck officer, the covert nature of the offending, and the size of the promised reward. Mason P would have dismissed the appeal.

Carruthers AJ, with whom Hidden J agreed, reached a different conclusion. While acknowledging the strong need for deterrence, given the difficulties of detection and the serious social consequences of people-smuggling, Carruthers AJ identified a range of exceptional subjective factors that collectively warranted a reduced sentence. Those factors included the appellant's lack of prior convictions, his disadvantaged background and good character, his relative youth and inexperience, the genuine contrition demonstrated through an early guilty plea, the significant practical assistance he provided to investigators, and his exemplary conduct in custody.

Carruthers AJ further noted the utilitarian value of the guilty plea, which had spared the Crown the considerable difficulty of obtaining evidence from overseas seafaring witnesses. The two Northern Territory cases raised by the appellant were not treated as binding benchmarks, but the majority concluded that when the full weight of the exceptional subjective circumstances was balanced against the objective seriousness and the need for deterrence, the sentence of four years fell outside the available sentencing discretion.

Orders Made

  • Leave to appeal granted and the appeal upheld.
  • The sentence imposed in the District Court set aside.
  • In lieu thereof, the appellant sentenced to three years imprisonment, dating from 21 August 1999 and expiring on 20 August 2002.
  • The appellant to be released after one year and eight months from 21 August 1999, upon entering into a recognizance of $500 to be of good behaviour for one year and four months.

Key Takeaways

  • People-smuggling offences under the Migration Act 1958 carry a strong inherent need for deterrence, particularly where the offender holds a position of responsibility, acts covertly, and is motivated by significant financial reward.
  • A seven-year starting point was not itself treated as appealable error on these facts, even though the ultimate sentence was reduced; the objective features of the offence supported a high starting figure.
  • Exceptional subjective circumstances, including genuine early cooperation with authorities, an early guilty plea with significant utilitarian value, good character, disadvantaged background, exemplary prison conduct, and the hardship of serving a sentence in a foreign country, can collectively bring a sentence outside the available discretion even where deterrence demands are strong.
  • Comparable decisions from other jurisdictions were not accepted as fixed benchmarks; sentencing courts must assess the particular circumstances of each case.
  • Under the sentencing regime applicable at the time, the absence of remission or sentence reduction in New South Wales was a factor required to be taken into account when fixing the non-parole period.

Legislation and Cases Referenced

Legislation:
- Migration Act 1958 (Cth), s 233(1)(a)
- Migration Legislation Amendment Act 1999 (Cth)
- Crimes Act 1914 (Cth), s 16F

Cases:
- Two unreported Northern Territory decisions (discussed but not named in the available text; not treated as general benchmarks by the Court)