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." This ground was not pressed in oral submissions before us today. 14 Having regard to the provisions of s 4 of the Drug Misuse and Trafficking Act and in the light of the observations of this Court in Regina v R2 (1990) 19 NSWLR 513 it is not surprising that this challenge was not pressed. I do not consider there is merit to it and I turn to the principal basis upon which the application is made. 15 In the course of his reasons for sentence his Honour Judge Wall said of the prisoner: "He was not only a courier but he had a significant intermediary role of an organisational nature and as a warehouse man." 16 It is submitted that his Honour's references to the applicant's organisational role are suggestive of him having dealt with the applicant as though he were a principal. I do not consider that a reading of the remarks on sentence does suggest that his Honour approached the matter in this way. 17 His Honour noted the following in the course of his reasons: "Later a concession was made on behalf of the Director that if the role was not that of a principal, it was contended that it was, nevertheless, a higher role than a mere courier." 18 His Honour went on to observe that in making an assessment as to the role played by the applicant he should apply the standard of proof beyond reasonable doubt. He concluded that upon that basis he could be satisfied that the applicant had a more significant role than being a mere courier when he brought the heroin to the scene. 19 In that regard his Honour took into account the circumstance that the applicant had driven to Sydney Airport on 11 November 1997 where he had met two of the persons associated with this enterprise. He had, thereafter, conveyed them to addresses in the Sydney area. 20 One of the persons he met was referred to by the code name Z and was a significant player in the enterprise. The applicant was seen in the company of Z, among others, on the morning of the offences. 21 As to the applicant being a warehouse man, his Honour had regard to the finding of the heroin at his unit, together with the equipment associated with the packaging of compressed heroin for distribution. 22 I consider that the factual findings which his Honour made were open, having regard to the contents of the agreed statement of facts which was before him. 23 Generally it was submitted that a sentence of eight years was manifestly excessive, having regard to the role of the applicant and the quantity of the drugs involved. In the course of his reasons for sentence, his Honour made reference to statistics maintained by the Judicial Commission which had been handed up to him. Those statistics related to persons sentenced for the offence of 'supply commercial quantity of heroin' in the period of 1990 to 1997, being offenders who presented with no previous convictions and who had pleaded guilty to the charge. 24 His Honour observed that those statistics provided him with little assistance, since there were only seven cases in the sample. His Honour also noted that other sentencing variables needed to be taken into account. In particular he observed that the objective circumstances varied, depending on the quantity of heroin and considerations such as whether any assistance had been provided to the authorities. 25 Such statistical material as was before his Honour showed a range in terms of the minimum term imposed from nineteen to twenty-four months at the low end of the scale to six years at the upper end of the scale. 26 The principal matters relied on before his Honour on the applicant's behalf were his lack of criminal record and his timely pleas of guilty. 27 The applicant did not submit to any interview with police nor did he give evidence before his Honour and there was comparatively little in the way of a positive subjective case made on his behalf, apart from his good character and the contrition and other considerations evidenced by the plea. 28 I do not consider that the challenge that the sentences imposed in the present case were manifestly excessive has been made good. To succeed on such a challenge it would be necessary to show that a sentence of eight years falls outside the permissible range of sentences for the commercial supply of heroin in circumstances broadly comparable to the present case. 29 As I have noted, his Honour approached his task having regard to the principal of totality. The quantity of heroin involved by reference to the two offences was substantial, having regard to cases involving the commercial as distinct from the large commercial quantity of heroin. 30 It is clear that his Honour considered that a sentence at the high end of the range, as revealed by the limited statistical information available to him, was appropriate. Nothing in the material placed before us or by reference to authority suggests that the sentence falls outside the upper limit of the range. 31 In the light of the issues raised on the hearing of the application, I would propose that leave to appeal be granted but that the appeal be dismissed. 32 NEWMAN J: I agree and the orders of the Court will be as proposed by Bell J. *********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.