Song Lin v Regina [2007] NSWCCA 368

New South Wales Court of Criminal Appeal

CITATION: Song Lin v Regina [2007] NSWCCA 368

HEARING DATE(S): 11 December 2007

JUDGMENT DATE: 21 December 2007

JUDGMENT OF: Basten JA at 1; Barr J at 2; Adams J at 20

DECISION: 1. Grant leave to appeal and allow the appeal. 2.Quash the sentence appealed from and, taking into account the possession of cocaine noted in para 6 of the agreed statement of facts, sentence the appellant to imprisonment. Fix a non-parole period of 4 years, commencing on 2 January 2005, and a head sentence of six years. Declare that he is eligible to be released to parole on 1 January 2009.

PARTIES: Song Lin Regina

FILE NUMBER(S): CCA 2006/5223

COUNSEL: J Overall T Thorpe

SOLICITORS: R Zhou S Kavanagh

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/1205

LOWER COURT JUDICIAL OFFICER: Berman DCJ

IN THE COURT OF CRIMINAL APPEAL 2006/5223

BASTEN JA BARR J ADAMS J

21 DECEMBER 2007 SONG LIN v REGINA Judgment 1 BASTEN JA: I agree with the orders proposed by Barr J and with his Honour's reasons. 2 BARR J: Song Lin has applied for leave to appeal against a sentence imposed in the District Court. He pleaded guilty to the offence of knowingly taking part in the manufacture of the commercial quantity of methylamphetamine and asked the Court in sentencing him to take into account his possession of 0.26 grams of a prohibited drug, namely cocaine. He was sentenced to imprisonment for eight years with a non-parole period of six years. The maximum penalty is imprisonment for twenty years. The commercial quantity is 0.25 kilograms. 3 Kar Wah Lau and Kam Wing Lo were involved in the same manufacturing enterprise. Each pleaded guilty and was sentenced. Lau was charged with the manufacture of the large commercial quantity of methylamphetamine. The large commercial quantity begins at 1 kilogram, and the amount with which he was concerned was agreed to be 8.8 kilograms. He was sentenced to imprisonment for twelve years with a non-parole period of nine years. The maximum sentence for that offence is imprisonment for life. 4 Lo pleaded guilty to aiding and abetting Lau in the manufacture of the large commercial quantity of methylamphetamine. He was sentenced to imprisonment for six years with a non-parole period of four years. 5 There are two grounds of appeal. The first is the that the sentence is manifestly excessive. The second complains of a lack of parity between the sentence appealed from and that imposed on Lo. These grounds may be dealt with together. 6 The different ways in which the charges were framed against each offender, Lau with manufacturing, Lo with aiding and abetting manufacture and the applicant with being knowingly concerned in manufacture – was presumably intended to distinguish between their respective roles, though the precise charge finally preferred against each may have been a product of negotiation between the Crown and the individual accused. The forms of the individual charges is of limited use in assessing criminality. The only reliable indicator is what each offender did and with what intent. That and the range of sentences applicable – up to life imprisonment for Lau and Lo and up to twenty years' imprisonment for the applicant – were bound to be the principal determinants in sentencing.