Regina v Lin [1999] NSWCCA 178

New South Wales Court of Criminal Appeal CITATION : Regina v Lin [1999] NSWCCA 178 FILE NUMBER(S) : CCA 60373/98 HEARING DATE(S) : 2 July 1999 JUDGMENT DATE : 2 July 1999

PARTIES : Regina v Dong Qing Lin JUDGMENT OF : Newman J at 32; Bell J at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Wall DCJ

COUNSEL : Appellant: P. Byrne SC Respondent: D.N. Howard SOLICITORS : Appellant: Peter Ash & Associates Respondent: C.K. Smith CATCHWORDS : CRIMINAL LAW AND PROCEDURE; sentencing; appeal against severity; sentence 'manifestly excessive'; CRIMINAL LAW; supply of not less than commercial quantity of prohibited drug (Drug Misuse and Trafficking Act 1985 (NSW) s 25(2)); assessment of degree of involvement ACTS CITED : Drug Misuse and Trafficking Act 1985 CASES CITED: Regina v R2 (1990) 19 NSWLR 513 DECISION : See para 31

IN THE COURT OF CRIMINAL APPEAL

60373/98

NEWMAN J BELL J

Friday, 2 July 1999 REGINA v Dong Qing LIN

JUDGMENT

1 BELL J: Dong Qing Lin seeks leave to appeal against the severity of sentences imposed upon him by his Honour Acting Judge Wall QC in the Sydney District Court on 26 June 1998. 2 The applicant pleaded guilty to one count of knowingly take part in the supply of not less than the commercial quantity of a prohibited drug, namely heroin, and one count of supplying not less than the commercial quantity of a prohibited drug, namely heroin. 3 Both counts were preferred under s 25(2) of the Drug Misuse and Trafficking Act 1985. The maximum sentence for such offences is twenty years imprisonment and/or a $3500 penalty unit. 4 His Honour reflected the principles of totality by imposing concurrent sentences in identical terms, which were expressed to commence from the date of the applicant's arrest, he having been taken into custody on that day and remaining in custody continuously until he appeared for sentence. 5 In each instance a minimum term of six years imprisonment to date from 27 November 1997 and to expire on 26 November 2003 was imposed. An additional term of two years to commence on 27 November 2003 was specified in each case. 6 Both offences took place on 27 November 1997. On that date the applicant was observed by surveillance police to meet with persons associated with the supply of heroin in the vicinity of Dawes Point, Sydney. A series of observations were made by police of the movement of the applicant and others. Relevantly, the applicant was found by the sentencing judge to have conveyed a quantity of heroin, being 447 grams, to a location in Dawes Point. From there it was handed by another person to an undercover police officer. This matter was the subject of the first count in the indictment. 7 Following his arrest, police executed a search warrant on the applicant's home unit. Among items found in the course of that search were electronic scales, an hydraulic press frame and a mould, being of the same dimensions as the 447 gram block of heroin which had been supplied earlier in the day to the undercover police officer. In addition, 365.1 grams of heroin were located in the applicant's unit during the course of the search. 8 The heroin the subject of count 1 was determined by laboratory analysis to have an approximate purity of 72 per cent, yielding 327.1 grams of pure heroin. It was valued at $554,199 on the basis of a purchase price of $300 per gram. 9 The heroin located in the applicant's unit had an approximate purity of 66.3 per cent, yielding 231 grams of pure heroin. The estimated value of this heroin was $462,000, again based on the assumption of a purchase price of $300 per gram. 10 The second count related to that quantity of heroin found in the applicant's unit and was preferred on the basis of a deemed supply. 11 The commercial quantity applicable to heroin under the Drug Misuse and Trafficking Act is 250 grams. Section 4 of that Act is in these terms: "In this Act, a reference to a prohibited drug includes a reference to any preparation, admixture, extract or other substance containing any proportion of the prohibited drug." 12 The applicant contends that the sentences imposed on him are manifestly excessive. In written submissions prepared by Mr Byrne SC, who appears on the applicant's behalf, two bases of challenge were developed. It was noted, particularly with respect to the second count, that although the total weight of the substance was some 365 grams, the quantity of pure heroin was 231 grams. 13 It was contended that the circumstance that the purity of pure heroin was less than that specified as the commercial quantity for the drug was significant when it came to an assessment of the applicant's criminality. In his written submissions Mr Byrne put the argument this way: "What is raised here is the importance of recognising the pure quantity of the prohibited drug involved in a State offence as the true basis on which the objective criminality of such an offence should be assessed."