R v Feng Lin [2001] NSWCCA 7

R v Feng Lin [2001] NSWCCA 7

The offence was objectively serious and called for a strong deterrent element, but the applicant's subjective circumstances were exceptional. The sentencing judge did not make sufficient allowance for those matters, including the serious disruption to the applicant's career, prior excellent character, imprisonment in a foreign country, assistance to authorities with fear of reprisals, early guilty plea and contrition, and exemplary prison conduct. Balancing those matters against the objective seriousness, the sentence imposed was outside the sentencing discretion and had to be set aside.

Jurisdiction
Australia
Judgment Date
09 February 2001
Procedural Posture
Severity Appeal Against Sentence for an Offence Under S 233(1)(a) of the Migration Act 1958 / Application for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal upheld; original sentence set aside; applicant resentenced to 3 years imprisonment with release after 1 year and 8 months on recognizance.
Legal Topics
['people Smuggling' 'taking Part in the Coming to Australia of Non Citizens' 'general Deterrence' 'subjective Circumstances in Sentencing' 'assistance to Authorities' 'guilty Plea']
['criminal Law' 'sentencing' 'migration Law'] ['people Smuggling' 'taking Part in the Coming to Australia of Non Citizens' 'general Deterrence' 'subjective Circumstances in Sentencing' 'assistance to Authorities' 'guilty Plea']

Case Brief

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Procedural Posture

Severity Appeal Against Sentence for an Offence Under S 233(1)(a) of the Migration Act 1958 / Application for Leave to Appeal Against Sentence in the New South Wales Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred by commencing the sentencing assessment at 7 years imprisonment for an offence under s 233(1)(a) of the Migration Act 1958.' 'Whether the sentence of 4 years imprisonment with a non-parole period of 2 years and 4 months was outside the sentencing discretion when objective seriousness and exceptional subjective circumstances were balanced.' "Whether sufficient allowance was made for the applicant's assistance to authorities, guilty plea, prior good character, career consequences, imprisonment in a foreign country, and prison conduct."]

Ratio Decidendi

The offence was objectively serious and called for a strong deterrent element, but the applicant's subjective circumstances were exceptional. The sentencing judge did not make sufficient allowance for those matters, including the serious disruption to the applicant's career, prior excellent character, imprisonment in a foreign country, assistance to authorities with fear of reprisals, early guilty plea and contrition, and exemplary prison conduct. Balancing those matters against the objective seriousness, the sentence imposed was outside the sentencing discretion and had to be set aside.

Court Disposition

Leave to appeal granted; appeal upheld; original sentence set aside; applicant resentenced to 3 years imprisonment with release after 1 year and 8 months on recognizance.

Orders

  • ['Leave to appeal be granted and the appeal upheld.' 'The sentence imposed by his Honour be set aside and in lieu thereof the applicant be sentenced to three years imprisonment to date from 21 August 1999 and to expire on 20 August 2002.' 'The appellant is to be released at the expiration of one year and eight...