R v Feng Lin [2001] NSWCCA 7

Reported Decision : (2001) 119 A Crim R 194

New South Wales Court of Criminal Appeal

CITATION : R v Feng Lin [2001] NSWCCA 7 revised - 24/08/2001 FILE NUMBER(S) : CCA 60071/00 HEARING DATE(S) : 8 December 2000 JUDGMENT DATE : 9 February 2001

PARTIES : Regina v Feng Lin JUDGMENT OF : Mason P at 1; Hidden J at 8; Carruthers AJ at 9

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/065 LOWER COURT JUDICIAL Viney DCJ OFFICER :

COUNSEL : G P Craddock (Appellant) A F Backman (Respondent) SOLICITORS : Legal Aid Commission of NSW (Appellant) Commonwealth Director of Public Prosecution (Respondent) CATCHWORDS : SENTENCING - Severity appeal - taking part in the coming to Australia of non-citizens - people-smuggling - stowaways secreted in ship by deck officer - strong deterrent element - exceptional subjective circumstances. Crimes Act 1914 LEGISLATION CITED : Migration Act 1958 Migration Legislation Ammendment Act 1999 DECISION : See paragraph 74 and 75.

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IN THE COURT OF CRIMINAL APPEAL

CCA 60071/00 MASON P HIDDEN J CARRUTHERS AJ

Friday, 9 February 2001 REGINA v FENG LIN

JUDGMENT

1 MASON P: I have had the benefit of reading the judgment of Carruthers AJ. 2 In my view the remarks on sentence of Judge Viney QC do not reveal appealable error. Nor was the sentence imposed manifestly excessive. 3 The objective seriousness of the offence is evident from its nature and the reasons underlying the 1999 amendments which increased the maximum penalty to ten years imprisonment or 1000 penalty units or both. Smuggling non-citizens into Australia presents obvious social problems to the fabric of Australian society; it undermines the attempted equities of an organised immigration and refugee system; it exposes the participants to exploitation and risk to health and life; and it imposes significant costs upon the Australian public. The need for deterrent penalties is manifest given the difficulties of detection and the exposure of Australia through its vast coastline. The extent of the problem has increased markedly in recent years, according to the Minister's second reading speech set out in the judgment of Carruthers AJ. 4 I do not regard the two Northern Territory cases discussed by Carruthers AJ as setting general benchmarks. In any event, the circumstances of the present case are distinguishable given the applicant's responsible position as a deck officer, the covert nature of the particular offence and the size of the promised reward involved. 5 I do not consider that Viney DCJ erred in taking 7 years as an appropriate starting point for the sentencing exercise, having regard to the objective features of the offence. (This was the principal submission of the applicant.) The starting point was high, but not appealably high, when one has regard to the applicant's significant involvement in the attempted smuggling of three non-citizens, the steps actually taken, the amount of the promised reward ($US3000 per person) and the applicant's awareness of the illegality of his actions. 6 The learned sentencing judge addressed and took account of a range of subjective factors including the applicant's lack of prior convictions, his good character, his gullibility in having been led into the offence due to his lack of experience, his expressed and genuine contrition culminating in the guilty plea and significant assistance to the authorities, the impact of serving a sentence in a foreign environment away from family and friends, the impact of the sentence upon his future prospects as a deck officer and his excellent character in prison. Each of the subjective matters referred to by Carruthers AJ were adverted to and taken into account by the sentencing judge. Unless the sentence imposed was manifestly excessive (which in my view it was not), the evaluation of the precise impact of those factors was a matter for Viney DCJ. 7 I would grant leave to appeal, but dismiss the appeal. 8 HIDDEN J: I agree with Carruthers AJ. 9 CARRUTHERS AJ: Feng Lin, who is a citizen of the People's Republic of China, seeks leave to appeal against a sentence imposed upon him by his Honour Judge Viney QC at the Sydney District Court on 1 February 2000 in relation to a conviction on one count under s 233(1)(a) of the Migration Act 1958, as amended, of taking part in the coming to Australia of non-citizens under circumstances from which it might reasonably be inferred that the non-citizens intended to enter Australia in contravention of the Migration Act 1958. 10 The applicant had earlier pleaded guilty to that charge and was remanded for sentence until 1 February 2000. The maximum penalty for the subject offence is ten years imprisonment or one thousand penalty units, or both. His Honour sentenced the applicant to imprisonment for a period of four years, to date from 21 August 1999 (when the applicant was taken into custody) and fixed a non-parole period of two years and four months, to expire on 20 December 2001. 11 The applicant, who is a single man, was born on 20 October 1974 on a small island, being the only child of his parents. His mother is illiterate and his father, who is now rather old, made a living as a fisherman until, as the result of advancing age and physical disability, he lost his working capacity. Thus the applicant came from a disadvantaged background. However, he demonstrated high intelligence and a determination to succeed as a student. He had an excellent High School record. After High School, he enrolled in the Zhoushan Navigation College in order to prepare himself for a career as a ship's deck officer. 12 Upon graduation from College he obtained a cadetship with the Orient Overseas Container Line (hereinafter "OOCL") in 1994. The OOCL is a large Chinese shipping company, whose activities include providing a service of container vessels between Chinese and Australian ports. This appointment may be looked upon as a significant achievement by the applicant. 13 To the applicant's credit, performance appraisal reports by the company, which were in evidence before his Honour, demonstrate that the applicant discharged his duties over the years in an efficient and responsible manner on various vessels of the Company. 14 On 18 March 1999 the applicant was appointed Third Officer on the M.V. OOCL Exporter (the "Exporter"). 15 The Exporter is a large container vessel which at the relevant time was engaged in a direct service between the port of Shekuo and the port of Sydney. 16 The circumstances under which the applicant committed the subject offence can be gleaned from a taped record of interview between Federal Agents and the applicant, conducted on board the vessel at Port Botany on 21 August 1999. 17 On about 5 July 1999 the applicant was in a hairdresser's salon in Shekuo when he was approached by a man who knew that his vessel was due to sail for Australia. 18 The man approached the applicant and asked: - "I have a few friends, whether it's possible for you to take them to Australia."(sic) 19 The applicant declined the overture and there the matter rested at that stage. After the Exporter returned from Australia to Shekuo the applicant contacted this man, who had previously provided him with a mobile telephone number. The man again enquired whether the applicant was prepared to bring persons to Australia on the vessel. The man arranged to meet the applicant at a hotel. At the hotel the man said: - "My three friends who are already here. I already brought them here now."(sic)