Chanthaboury v The Queen

[2007] NSWCCA 290

Reported Decision: 176 A Crim R 438

New South Wales

Court of Criminal Appeal

CITATION:	CHANTHABOURY v R [2007] NSWCCA 290
HEARING DATE(S):	18 September 2007
JUDGMENT DATE:	16 October 2007
JUDGMENT OF:	McClellan CJ at CL at 1; Barr J at 55; Bergin J at 63
DECISION:	1. Appeal against conviction dismissed; 2. Grant leave to appeal against sentence, uphold that appeal in relation to the "attempt charge" and quash the sentence imposed on that charge. By reason of the necessity to alter the relevant dates of the sentence on the "completed charge" quash the sentence imposed on that charge; 3. On the "attempt charge" the appellant is sentenced to a fixed term of six months commencing on 31 October 2005 and expiring on 29 April 2006. On the "completed charge" the appellant is sentenced to a non-parole period of 18 months commencing on 30 April 2006 and expiring on 30 October 2007 with a balance of term of 18 months expiring on 29 April 2009.; 4. The appeal against sentence is otherwise dismissed
CATCHWORDS:	CRIMINAL LAW – Appeal against conviction and sentence – accessory after the fact to attempted armed robbery – indictments – defect in Court Attendance Notice – absence of “attempted” on the CAN – appellant charged with the completed offence – whether “attempted” needed to be included on the CAN – whether error in failing to take into account the correct maximum penalty for the offence – whether sentence failed to reflect the different penalties in the appellant’s offence and the co-offender’s offence
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 Road Transport Driver Licensing Act 1998 (NSW) Road Transport (Safety and Traffic Management Act) 1999 (NSW)
CASES CITED:	Kahatapitiye v The Queen (2004) 146 A Crim R 542 Reg v Molyneux (1980) 72 Cr App R 111 R v Ayres [1984] 1 AC 447 R v Janceski (2005) 64 NSWLR 10 Pearce v R (1998) 194 CLR 610 Swansson v R [2007] NSWCCA 67
PARTIES:	Vong Phet Chanthaboury (Appl) The Crown
FILE NUMBER(S):	CCA 2006/5099
COUNSEL:	S Corish (Appl) N Adams (Crown)
SOLICITORS:	Legal Aid Commission of NSW (Appl) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/21/3124
LOWER COURT JUDICIAL OFFICER:	Goldring DCJ
LOWER COURT DATE OF DECISION:	15 September 2006

2006/5099

McCLELLAN CJ at CL
BARR J
BERGIN J

TUESDAY 16 OCTOBER 2007

CHANTHABOURY, Vong Phet v R

Judgment

1 McCLELLAN CJ at CL: The appellant pleaded guilty in the Local Court to two counts. The court attendance notices (CAN) for each count were expressed as follows:

1. CAN – H25600550 – sequence 001
“Crimes Act 1900, Section 349(2) – SI
Accessory after the fact to robbery with arms or in company
between 4:30pm and 4:35pm on 31/10/2005 at Fairfield.
That Vong Phet CHANTHABOURY on the 31st day of October 2005, at Fairfield, in the State of New South Wales, did and it is further charged that Vong Phet CHANTHABOURY knowing that said Ivo LAI to have committed the said serious indictable offence in the manner aforesaid, afterwards, to wit, on the 31st October 2005 in the said State, did receive, harbour, maintain and assist the said Ivo LAI.” (“supermarket charge”), (“the completed offence”)

2. CAN – H25600550 – sequence 002
“Crimes Act 1900, Section 349(2) – SI
Accessory after the fact to robbery with arms or in company
between 4:24pm and 4:28pm on 31/10/2005 at Fairfield.
That Vong Phet CHANTHABOURY on the 31st day of October 2005, at Fairfield, in the State of New South Wales, did and it is further charged that Vong Phet CHANTHABOURY knowing that said Ivo LAI to have committed the said serious indictable offence in the manner aforesaid, afterwards, to wit, on the 31st October 2005 in the said State, did receive, harbour, maintain and assist the said Ivo LAI.” (“newsagency charge”), (“the attempt offence”)

2 A certificate pursuant to s 166 of the Criminal Procedure Act 1986 certified that two summary offences for driving matters were also to be sent to the District Court for sentence. The appellant was separately sentenced for the offence of driving having never been licensed (breach of Road Transport Driver Licensing Act 1998 (NSW) s 25(2)). An offence of driving in a manner dangerous (breach of Road Transport (Safety and Traffic Management) Act 1999 (NSW) s 42(2)) was included on a Form 1.

3 The CAN for the second sequence, the newsagency charge, contained an error. That offence should have been recorded as “accessory after the fact to attempted robbery with arms or in company.”

4 The appellant was committed for sentence at Campbelltown District Court. At the sentencing hearing a statement of agreed facts was handed up and, although not marked as an exhibit, there is no doubt that the sentencing proceeded by reference to that document. The facts in relation to the second count made plain that the appellant was to be sentenced in relation to being an accessory after an attempted robbery and not a completed crime.

5 The appellant was sentenced to a total non parole period of 2½ years and a balance of term of 18 months structured as follows:

Supermarket Charge

Regard being had to the matter on the Form 1 a non-parole period of 18 months to commence on 31 October 2006 and expire on 30 April 2008 with a balance of term of 18 months to expire on 30 October 2009.

Newsagency Charge

Non-parole period of 15 months to commence on 31 October 2005 and expire on 30 January 2007 with a balance of term of 12 months to expire on 30 January 2008.

The appellant was fined $1 and disqualified from holding a licence for three years in relation to the licence matter.

6 The appellant now appeals against his conviction pursuant to s 5(1)(a) of the Criminal Appeal Act 1912 (NSW) in relation to his conviction on the second count and applies for leave to appeal against his sentence on both counts pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW).

The facts

7 The sentencing judge found that the facts giving rise to the charges were as follows:

“On 27 October 2005, a Mrs Tang parked her Mitsubishi Mirage at Fairfield. She put her bag and car keys in a locker at the Leisure Centre in Vine Street. Mr Lai removed the bag and car keys from the locker and used the keys to take and drive the vehicle.
On 31 October, Lai met Chanthaboury at a shopping centre and Chanthaboury drove the offender, Lai, in the stolen motor vehicle, the Mirage, to the Fairfield Newsagency in Fairfield West. It is agreed that Lai had asked Chanthaboury to drive the vehicle, as he was unable to drive. Lai entered the newsagency, after placing a dark stocking over his face. He produced a black kitchen knife and he pointed at the victim, a Mr Best, and said, ‘give me the money.’ Mr Best was standing behind the counter. He had a metal pole. He swung that at the offender, Lai, who then ran out of the newsagency and got into the vehicle. Mr Best wrote down the registration number, and it was subsequently reported.
A few minutes later the vehicle came to the Rawson Supermarket at Fairfield West, and it is agreed that Mr Chanthaboury was driving the car. Again, Lai, wearing a dark stocking over his face, went into the supermarket, raised a black handled kitchen knife towards the victim, Mr Omar, and said, ‘give me the money.’ Mr Omar was afraid and said, ‘take the money.’ Lai removed the cash register drawer and approximately $600. He then ran from the store and entered the motor vehicle, which was driven by Chanthaboury. A short time later, police saw the vehicle, activated their lights and sirens, and followed the car. Chanthaboury drove it through a red traffic light at the intersection of Smithfield Road and King Road, Fairfield West, and then drove the vehicle along the wrong side of Smithfield Road.
The police pursuit continued and police, at one stage, police saw Lai throwing items out of the car. The vehicle was driven into a driveway in Fairfield West. Chanthaboury got out of the driver’s side of the vehicle and ran from the scene. He was arrested shortly afterwards in a yard nearby.
Lai then moved from the passenger’s seat to the driver’s seat, put the car into reverse and reversed it towards the direction of a police officer, Constable Kalash. Constable Kalash then raised his firearm and said to Lai, ‘Police, stop’, but he had to take evasive action to avoid being hit.
Police continued pursuing the offender, Lai, into Craig Street, where the vehicle collided with the front fence of number two, and then crossed the road and collided with a colourbond fence between numbers three and five. Lai was then arrested.
In the vehicle, police found the cash drawer, some money, and a black handled knife. Lai was interviewed by police and admitted some, but not all, the details of the offences. He said that he had a $200 a day heroin habit, and was currently unemployed.
Chanthaboury was also interviewed by the police. He denied that he knew the vehicle was stolen. He said that he had met Lai earlier that day, and Lai had asked him to drive the vehicle for cash. He told the police that he had no knowledge of any armed robbery at the newsagency, because he did not go there, but he did admit driving to the supermarket. He denied that he knew that Lai was committing the armed robbery there, but by his plea, of course, he admits involvement. It is clear that Mr Chanthaboury never held a driver’s licence.
Mr Lai is clearly the principal offender. He was the person who entered two premises with a knife and demanded money, and they are two separate offences.
Mr Chanthaboury is charged with being an accessory after the fact. That is a serious offence but it is not suggested that he was more than an accessory after either of these offences, nor was he involved in the planning, and that will be reflected in the sentences that are imposed.”


The conviction appeal

Ground 1: the learned sentencing judge erred in convicting and sentencing the appellant in relation to an offence of accessory after the fact to attempted armed robbery

8 The appellant challenged his conviction on the second count (the “newsagency charge”). This offence was the first to be committed but was second in the sequence of charges. There was no challenge to his conviction for being an accessory after the fact to the armed robbery of the supermarket, although, if the appeal against conviction in relation to the attempted armed robbery of the newsagency is successful, the appellant sought orders that both convictions be quashed and remitted to the District Court so that he can be effectively convicted and resentenced.

9 The essential submission of the appellant was that the absence of the word “attempted” on the CAN resulted in the appellant being convicted and sentenced in relation to the wrong offence. It was submitted that an essential element of the charge was not included in the CAN. Whereas the Crown had intended to charge the appellant with being an accessory after the fact to an attempted armed robbery, which was the offence to which he understood he had pleaded guilty, the CAN did not provide for this offence.

10 The appellant did not submit that the CAN was a nullity. It was accepted that it charges an offence known to the law but it was submitted that it is not the offence to which the appellant pleaded guilty. The appellant does not submit that the error in the CAN has led to a present injustice but nevertheless submits that it cannot found a valid conviction.

11 It is apparent, as was accepted by the appellant, that the defect in the CAN was identified both in the Local Court and at each stage of the sentencing process in the District Court. I have already referred to the manner in which the sentencing judge was informed of the correct position.

12 The CAN upon which Mr Lai pleaded guilty, as the principal offender, provided:

“Crimes Act 1900 97(1) 344A

Attempted robbery armed with an offensive weapon – SI on 31/10/2005 at Fairfield

That Ivo Miguel Fernandes LAI on 31st day of October 2005, at Fairfield, in the State of New South Wales, did attempt to rob John Best whilst being armed with an offensive weapon, to wit, 20cm silver blade kitchen knife.”

13 Mr Lai’s CAN was before the sentencing judge when the appellant was sentenced. Both the appellant and Mr Lai had the same legal representative.

14 The full details of the attempt offence in the relevant CAN of the appellant were stated as follows:

“Crimes Act, s 349(2) - SI

Accessory after the fact to robbery with arms or in company
Between 4.24 pm and 4.28 pm on 31.10.2005 at Fairfield
That Vong Phet Chanthaboury on 31st day of October 2005, at Fairfield in the State of New South Wales, did (sic) and it is further charged that Von Phet Chanthaboury knowing the said Ivo Lai to have committed the said serious indictable offence in the manner aforesaid, afterwards, to wit, on 31st day of October, 2005, in the said State, did receive, harbour, maintain and assist, the said Ivo Lai.”

15 When the matter came before the sentencing judge, the Crown Prosecutor said:

“Both offenders pleaded guilty to a sequence of attempted armed robberies where first of all there was an attempted armed robbery on a newsagency, which was unsuccessful and subsequently about ten minutes later there was a robbery armed with an offensive weapon at a supermarket … For Mr Chanthaboury he was the accessory to the attempted armed robbery and was also the accessary after the fact to the armed robbery on the supermarket. And also Mr Chanthaboury has a form one matter for drive vehicle speed in manner dangerous and also a section 166 matter for never licensed person …. “(sic)

16 The transcript of proceedings before the sentencing judge records that before turning to consider matters relevant to sentence his Honour said: “Mr Chanthaboury is convicted of being an accessory after the fact to an attempted armed robbery.”

17 Section 47 of the Criminal Procedure Act 1986 (“the Act”) provides that committal proceedings are to be commenced by a CAN. Section 50(1) of the Act provides that the CAN must be in writing and in the form prescribed by the rules. Section 50(3)(a) requires the CAN to describe the relevant offence.

18 Section 15(2) of the Criminal Procedure Act provides that an indictment includes a CAN. Section 16(1)(b) of the Act provides that an indictment is not “bad, insufficient, void, erroneous or defective”:

“for want of an averment of any matter unnecessary to be proved or necessarily implied.”

19 The Crown submitted that the word “attempted” did not have to be included in the CAN. Section 162 of the Criminal Procedure Act provides that an alternative verdict of “attempt” is available on any trial for an indictable offence even though no reference to “attempt” is included in the indictment. Accordingly, the Crown submitted that the present CAN was a sufficient foundation for a conviction in relation to the attempt matter.

20 In my opinion this submission cannot be accepted. If the charge in the indictment provided that the charged offence was a completed offence then by reason of s 162, a conviction for the offence of attempting the completed offence would be available. However, in the present case the appellant was charged with the completed offence of being an accessory after the fact to an offence committed by Mr Lai. There was no suggestion that the appellant was to be charged with or convicted of the offence of attempting to commit any offence. The correct description of the principal offence was required if the offence was to be correctly charged.

21 Notwithstanding these difficulties I consider the matter can be appropriately disposed of by the application of the “proviso” provided by s 6(1) of the Criminal Appeal Act. There was a valid indictment which charged the appellant as an accessory to the completed offence although it was intended that he be charged as an accessory to an attempted offence.

22 There can be no doubt that both the appellant and the prosecution intended that the appellant would plead guilty to the “attempt offence.” If as should have occurred once the defect had been identified and the CAN had been amended, the power to make that amendment would have been undoubted. Sections 20 and 21 of the Criminal Procedure Act 1986 provides for it. The sentencing judge had before him the CANs relating to both of Mr Lai’s offences which were clearly identified as, in one case, the attempted armed robbery offence contrary to s 97(1) and s 344A of the Crimes Act and, in the other case, the completed offence contrary to s 97(1). Conviction of the appellant as an accessory after the fact in either of the offences was dependent on the commission by Mr Lai of the primary offences.

23 The application of the proviso where there is a deficiency in the indictment has been considered on many occasions. It was recently considered by this Court in Swansson v R [2007] NSWCCA 67. It is usual, as was the case in Swansson to consider the issue following conviction after a trial. Counsel have not been able to identify authority directly in point where an accused person has pleaded guilty and later seeks to challenge the conviction because of deficiencies in the indictment.

24 In R v Ayres [1984] 1 AC 447, the House of Lords considered the circumstance where the accused was charged upon indictment with the common law offence of conspiracy to defraud when the relevant section of the Criminal Law Act 1977 required the accused, having regard to the circumstances, to be charged with the relevant statutory offence. The charge of conspiracy to defraud was found to be improper and a material irregularity in the course of the trial. The question of the application of the proviso arose for consideration. As to that question Lord Bridge said:

“In a number of cases where an irregularity in the form of the indictment has been discussed in relation to the application of the proviso a distinction, treated as of crucial importance, has been drawn between an indictment which is ‘a nullity’ and one which is merely ‘defective.’ For my part, I doubt if this classification provides much assistance in answering the question which the proviso poses. If the statement and particulars of the offence in an indictment disclose no criminal offence whatever or charge some offence which has been abolished, in which case the indictment could fairly be described as a nullity, it is obvious that a conviction under that indictment cannot stand. But if the statement and particulars of offence can be seen fairly to relate to and to be intended to charge a known and subsisting criminal offence but plead it in terms which are inaccurate, incomplete or otherwise imperfect, then the question whether a conviction on that indictment can properly be affirmed under the proviso must depend on whether, in all the circumstances, it can be said with confidence that the particular error in the pleading cannot in any way have prejudiced or embarrassed the defendant.”

25 Lord Bridge referred, inter alia, to the decision in Reg v Molyneux (1980) 72 Cr App R 111 where the appellant had been convicted of conspiracy to defraud when the true offence proved against him had been conspiracy to rob. The Court of Appeal held that although there was a misnomer in the statement of offence, having regard to the particulars and the summing up there had been no actual miscarriage of justice, and the proviso should be applied.

26 Ayres has been applied in Australia. In Kahatapitiye v The Queen (2004) 146 A Crim R 542 the indictment charged a number of offences of sexual penetration of the complainant, but omitted the words “without her consent.” It was apparent that proper directions had been given to the jury and lack of consent was not an issue at the trial. The Court of Criminal Appeal in Western Australia held that the proviso should be applied because it could be said “with confidence that the error in the indictment did not in any way prejudice or embarrass the defendant.”

27 In R v Janceski (2005) 64 NSWLR 10 Spigelman CJ identified the functions performed by the initiating process in a criminal trial. The Chief Justice said:

“Most of the functions performed by the process which initiates criminal proceedings, particularly an indictment for serious offences, have been fully satisfied by the precise terms of the charge appearing, as it does, in the same form in the various indictments. These include:
(i) Informing the court of the precise identity of the offence with which it is required to deal ( John L Pty Ltd (at 519)).
(ii) Providing the accused with the substance of the charge which he or she is called upon to meet, including identification of the essential factual ingredients ( John L (at 519)).
(iii) Enabling the court to ensure that only relevant evidence is admitted and to properly instruct the jury on the relevant law ( S v The Queen (1989) 168 CLR 266 at 284, 285).
(iv) Determining the availability of a plea of autrefois acquit and autrefois convict ( S v The Queen (at 284); Walsh v Tattersall (1996) 188 CLR 77 at 90, 110-111).”

28 It may be readily appreciated that each of functions (i), (ii) and (iii) were otherwise achieved or were irrelevant in the present case. However, there remains a question of whether, without the CAN being amended, the appellant is denied a plea of autrefois convict.

29 This Court has not been provided with the court documents of the District Court beyond the defective CAN. However, the only conviction which could be entered in the court’s records would be that recorded by the sentencing judge. If a plea of autrefois convict or a plea in bar later becomes necessary the appellant would have the transcript available to prove the charge upon which he has previously been convicted. If it was necessary he could by mandamus require the court to issue a correct record of the proceedings including his conviction.

30 The High Court comprehensively considered the pleas of autrefois convict and acquit and a plea in bar in Pearce v R (1998) 194 CLR 610. Although once strictly confined the more recent recognition that a plea in bar may arise when a person is prosecuted for substantially the same offence with a complementary capacity in the court to restrain an abuse of process contemplates a broader inquiry when the defence is raised. It may involve an examination of the evidence which supported the first charge and that which is proffered to support the second charge.

31 Although a correctly drawn CAN with the orders of the court endorsed on it, thereby perfecting those orders, could be tendered to prove the conviction or acquittal of the offence charged, an accused would not be confined to that means of proving the outcome of previous proceedings. If, as in the present case the transcript provides conclusive proof of the charge upon which the person was convicted, it would be available to support the plea of autrefois or a plea in bar. The determination of the issue contemplated by s 156 of the Criminal Procedure Act 1986 could be made by reference to the certified copy of the transcript.

32 Accordingly, notwithstanding the omission from the CAN, I am satisfied that in all the circumstances no substantial miscarriage of justice has occurred and the appeal against conviction should be dismissed.

Application for leave to appeal against sentence

Ground 1 – the learned sentencing judge erred in failing to take into account the correct maximum penalty for the offence of accessory after the fact to attempted armed robbery

Ground 2 – the sentence imposed by the learned sentencing judge on the applicant in relation to the offence of accessory after the fact to armed robbery failed to adequately reflect the differences in the penalties for that offence and that of the offence for which the co-offender was sentenced

Ground 3 – the overall sentence imposed and the effective non parole period is manifestly excessive

33 In addition to the challenge to the CAN the appellant contended that the sentencing judge erred by applying the wrong maximum penalty in relation to the offence of accessory after the fact to attempted armed robbery being the “newsagency charge.”

34 At the sentencing hearing the Crown provided a summary document which identified the maximum penalty for both of the appellant’s indictable matters as 14 years imprisonment, being the maximum sentence provided by s 349(2) of the Crimes Act 1900. No issue was taken with this assertion at the hearing. It is now contended on behalf of the appellant that he should have been sentenced on the basis that the maximum penalty for the “newsagency charge” was only 5 years. The resolution of this argument depends upon the proper construction of the relevant provisions of the Crimes Act.

35 Section 97(1) of the Crimes Act 1900 provides that the maximum penalty for armed robbery is imprisonment for 20 years. Section 344A of the Act provides that a person who attempts to commit any offence for which a penalty is provided under the Act shall be liable to that penalty (344A(1)) Subsection 2 provides that if the offence for which a person is convicted of attempting to commit is a serious indictable offence that person shall be deemed to have been convicted of a serious indictable offence.

36 Section 349 of the Act provides:

“(1) Every accessory after the fact to murder shall be liable to imprisonment for 25 years.
(2) Every accessory after the fact to the crime of robbery with arms or in company with one or more person or persons, or the crime of kidnapping referred to in section 86, shall be liable to imprisonment for 14 years.”

37 Section 350 provides that:

“An accessory after the fact to any other serious indictable offence (which I understand to mean any other offence than one referred to in s 349) is liable to imprisonment for 5 years, except where otherwise specifically enacted.”

38 The Crown submitted that because the principal offender was liable to the same penalty for the attempted offence as for the completed offence the offender who is an accessory after the fact to the attempted offence should also be liable to the same penalty. Although there is an attractive logic to the proposition the words of the statute cannot support it. Section 349 is quite specific. It provides an identified maximum penalty in respect of three offences, accessory after the fact to murder, accessory after the fact to the crime of robbery with arms or in company with one or more person or persons or the crime of kidnapping. The maximum term of imprisonment for the offence of accessory after the fact to any other indictable offence is imprisonment for 5 years, except where otherwise specifically enacted (s 350).

39 In the present case, the “attempt offence” is a different offence to the “completed offence.” Section 349 relates only to the “completed offence” providing a maximum term of imprisonment of 14 years and makes no reference to the penalty when the offender is an accessory to an attempted offence. It is s 350 which provides the maximum penalty for being an accessory after the fact to an attempted offence.

40 Because the correct position was not appreciated when the appellant was sentenced the sentencing process has miscarried with respect to the “attempt offence.” This may also have consequences for the sentence imposed in respect of the “completed offence” and the part which it played in the total sentence.

41 Mr Lai was sentenced at the same time as the appellant. Mr Lai was diagnosed as a chronic schizophrenic who committed the offences in order to obtain money to buy drugs. Although he had previously managed to cease using drugs when taking anti-psychotic medication he returned to his drug habit when he stopped taking his medication. He was using at least ½ gram of heroin a day. The sentencing judge had regard to the guideline judgment in Henry and determined that the offences were similar to those considered by the court in that case.

42 The appellant was 29 years at the time of sentencing and 28 at the time of the offence. He was born in Laos and came to Australia as a young child with his mother’s parents who raised him as their own child. His upbringing was difficult. He was able to finish schooling in Sydney and studied hospitality at TAFE but was unable to complete the course. By the age of 16 the appellant was drinking and at about that age started using marijuana. By the age of 18 he was using heroin and became a significant poly substance abuser. He was for a time placed within the MERIT program in the Local Court which enabled him to remain drug free. However, he relapsed and was removed from the program.

43 The sentencing judge found that the offences were “very serious.” However, his Honour found that the appellant was not involved in the planning of the offences and his role was confined to being the driver. Recognising that he participated as an accessory after the principal offences his Honour determined that he was not to be regarded as having committed offences of the same degree of seriousness.

44 Both offenders asked the sentencing judge to take into account the offence of driving a vehicle at a speed or in a manner dangerous which his Honour found to be serious matters. The appellant drove the car through a red light and on the wrong side of the road and put the lives and health of other people at risk.

45 The maximum penalty for each of Mr Lai’s offences was 20 years imprisonment.

46 His Honour sentenced Mr Lai on the first count (attempted armed robbery) to an overall sentence of 2 years and 3 months with a non-parole period of 18 months. On the second count (armed robbery) he received an overall term of 3 years and 9 months with a non-parole period of 2 years. On the charge of take and drive conveyance he was sentenced to a fixed term of 18 months imprisonment. His overall sentence was 4 years and 9 months with a total non-parole period of 3 years.

47 The sentencing judge recognised that Mr Lai suffered from chronic schizophrenia and accordingly general deterrence should have less significance in his sentencing. His Honour said:

“… for that reason, Mr Lai cannot be used as an example to the community because he was not as aware of the consequences of what he was doing (sic) able to control his activities as would a person who does not suffer from that mental illness. General deterrence is not so serious a factor, but still it is a factor.”

48 The sentencing judge imposed a sentence on the appellant of 15 months non-parole with a balance of term of 12 months with respect to the “attempt offence.” With respect to the “completed offence” his Honour imposed a non-parole period of 18 months with a balance of term of 18 months. His Honour had regard to the Form 1 when sentencing for the completed offence. The total sentence was a non-parole period of 2½ years and a balance of term of 18 months.

49 The essential complaint of the appellant in relation to his sentence for the “completed offence” was that when compared with the sentence imposed on Mr Lai, who was the principal offender, the sentence on this count was excessive. For the “completed offence” Mr Lai received an overall sentence of 3 years and 9 months with a non-parole period of 2 years.

50 When the relevant maximum penalties and Mr Lai’s psychiatric condition are considered I am satisfied that the sentence the appellant received for this offence was not disproportionate to that received by Mr Lai. The sentencing judge was also required to consider the matter on the Form 1 which was itself a serious matter. In all the circumstances the sentence which the appellant received for this offence was appropriate.

51 I have a different view of the sentence imposed on the appellant for the “attempt offence.” As I have identified the maximum term of imprisonment for this offence as an accessory after the fact was only five years and not fourteen years as was assumed when he was sentenced. A total term of imprisonment of 2 years and 3 months with a non-parole period of 15 months was excessive. It was also excessive when compared with the sentence imposed on Mr Lai for the attempt offence being a total term of three years with a non-parole period of 18 months.

52 In my opinion the sentence which should have been imposed on the appellant for the attempt offence was a non-parole period of six months. Because of the structure of the sentences I propose it is unnecessary to provide a period on parole. The offence was rightly described by the judge as “very serious.” It is true that the appellant was not involved in the planning of the offence and was not a threat to the persons upon whom the robbery was attempted, his role being confined to being the driver of the car but he nevertheless played a significant role. The success of the escapade depended on him reliably carrying out the tasks to which he was assigned.

53 The appellant’s personal history has a number of troubling elements. It is obvious that the taking of drugs has been a significant problem for him and that unless he addresses his drug issues he is likely to continue offending. In these circumstances the finding of special circumstances made by the sentencing judge was appropriate. The appellant is entitled to a 25% discount for his early plea. The resentencing of the appellant for the “attempt offence” creates the necessity to adjust the total sentence.

54 In my judgment this Court should make the following orders;

1. Appeal against conviction dismissed.

2. Grant leave to appeal against sentence, uphold that appeal in relation to the “attempt charge” and quash the sentence imposed on that charge. By reason of the necessity to alter the relevant dates of the sentence on the “completed charge” quash the sentence imposed on that charge.

3. On the “attempt charge” the appellant is sentenced to a fixed term of six months commencing on 31 October 2005 and expiring on 29 April 2006. On the “completed charge” the appellant is sentenced to a non-parole period of 18 months commencing on 30 April 2006 and expiring on 30 October 2007 with a balance of term of 18 months expiring on 29 April 2009.

4. The appeal against sentence is otherwise dismissed.

55 BARR J: I agree, for the reasons given by McClellan CJ at CL, that the appeal against conviction should be dismissed, that the sentences should be quashed and that there should be substituted the sentences proposed by his Honour. I wish to add some remarks about the form of the Court Attendance Notice.

56 A Court Attendance Notice is an Indictment – s15 Criminal Procedure Act – and as such becomes the official, archived record of a conviction or acquittal and of any sentence imposed. The interests of justice, particularly as they contemplate the rights of an accused person or offender, require a precise statement of the charge, the verdict and any resulting sentence. The failure to make a precise record may impinge upon an accused’s rights later to raise a plea in bar.

57 The charges in both Court Attendance Notices were inadequately framed. Taking the first offence, the one concerning the supermarket, the charge says this -

Crimes Act 1900, Section 349(2) – SI
Accessory after the fact to robbery with arms or in company
between 4:24pm and 4:28pm on 31/10/2005 at Fairfield.

That Vong Phet CHANTHABOURY on the 31st day of October 2005, at FAIRFIELD, in the State of New South Wales, did and it is further charged that Vong Phet CHANTHABOURY knowing the said Ivo LAI to have committed the said serious indictable offence in the manner aforesaid, afterwards, to wit, on the 31st day of October, 2005 in the said State, did receive, harbour, maintain and assist the said Ivo LAI.

58 The words state that the appellant knew that Ivo Lai had committed “the said serious indictable offence” but do not say what Lai’s offence was. The apparently uncomprehending use of precedent has led, in the first line, to the substitution of the accessory’s name for the principal’s, and in the second, between the words “did” and “and”, to the omission of any statement of what the principal is said to have done. The later reference to “the said serious indictable offence” derives no meaning from the words of the pleading itself and can only be understood by reference to the preceding statement of the name of the offence.

59 The proper way of framing a charge of accessory after the fact is first to aver that the principal offender committed the principal offence, saying concisely what the offence was, and that, in knowledge of the fact, the accused afterwards received, etcetera, the principal offender.

60 Some such form of words ought to have been employed to plead the criminality of the principal offender and of the appellant as accessory. The same may be said about the framing of the newsagency charge. If proper attention had been paid to the drafting of the Court Attendance Notices, the proper encapsulation of Lai’s offence as one of an attempt would probably not have been overlooked.

61 Fortunately, in spite of the almost unintelligible nature of the form of words employed, it turns out that nobody was misled (other than in the identification of the maximum applicable sentence), and the irregularity has been able to be dealt with under the proviso to s6 Criminal Appeal Act. There may not always be such fortunate results, however, and Crown Prosecutors who present Indictments, particularly Court Attendance Notices which may have been framed by persons who are not legally qualified, and sentencing judges should be astute to ensure that such documents precisely state the relevant charges.

62 That is what should have happened in the present case. The sentencing Court had the power to amend and should have exercised it.

63 BERGIN J: I agree with McClellan CJ at CL.

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