Diep, Danny v The Queen

[2013] NSWCCA 39

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	DIEP, Danny v R [2013] NSWCCA 39
Hearing dates:	26 September 2012
Decision date:	25 February 2013
Before:	McClellan JA at [1] Hidden J at [2] Adamson J at [25]
Decision:	Leave to appeal granted, appeal allowed. Sentence in District Court quashed. Applicant re-sentenced to a NPP of 2 years, commencing 3 May 2011 and expiring 2 May 2013, and a balance of term of 2 years, commencing 3 May 2013 and expiring on 2 May 2015.
Catchwords:	CRIMINAL LAW - application for leave to appeal against sentence - aggravated robbery - plea of guilty - co-offender sentenced subsequently by different judge - parity
Legislation Cited:	Crimes Act 1900
Category:	Principal judgment
Parties:	Danny Tunduc Diep (applicant) Regina (Crown)
Representation:	Counsel: S Russell (applicant) P Ingram SC (Crown) Solicitors: Peter Murphy Solicitor (applicant) S Kavanagh - Solicitor for Public Prosecutions (Crown)
File Number(s):	2011/144440
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2011-12-15 00:00:00 Before: Bennett DCJ File Number(s): 2011/144440

Judgment

1. McClellan JA: I agree with Hidden J.

1. Hidden J: After a plea of guilty in the Local Court, the applicant, Danny Tunduc Diep, was committed for sentence in the District Court for the offence of robbery with the intentional infliction of actual bodily harm, an offence under s 95(1) of the Crimes Act 1900 which carries a maximum sentence of 20 years imprisonment. Bennett DCJ sentenced him to imprisonment for 4 years and 9 months, comprising a non-parole period of 2 ½ years and a balance of term of 2 years and 3 months, commencing on the date of his arrest, 3 May 2011. He seeks leave to appeal against that sentence.

Facts

1. The applicant had a gambling addiction. Late in the evening of Monday 1 May 2011, he and a co-offender, Albert Bao-An Phan, went to the Canterbury/Hurlstone Park RSL Club, where they played the gaming machines until the small hours of the morning of 2 May. From there they went to the Wests/Ashfield Club at Ashfield. They played one of the poker machines at that club. They observed the victim playing another machine, saw that he had several thousand dollars in credit, and discussed robbing him.

1. About an hour and a half later they followed the victim to the cashier area and saw him collect cash in an amount in excess of $2,000. They left the club and waited in the car park area. They saw the victim get in to a car and drive off, and they followed him in Phan's car.

1. The victim drove to a unit complex in Elizabeth Street Ashfield, where he lived. The applicant and Phan followed him into the unit block, and to his unit on the third floor. As the victim was about to unlock his front door, he was seized around his throat and punched repeatedly to the face and head. He fell to the ground, screaming for help. The applicant and Phan searched him, took the money he had, and returned to Phan's car. They drove to a McDonald's outlet in Stanmore, where they bought some food and washed blood from their hands. They then travelled to Star City Casino, and used the victim's money to gamble there.

1. The victim's partner found him where he had fallen, and called police and ambulance. He was taken to Royal Prince Alfred Hospital, where he was found to have a fracture of the left nasal bone (causing deviation of the nose to the right), a fracture to the right medial orbit wall and soft tissue hematoma through the right frontal system. He was discharged from hospital later that day, but returned on 9 May 2011 for surgery during which a closed reduction of his nasal bones was performed. He was discharged later that same day.

1. The applicant and Phan were arrested on 3 May 2011. Phan made an admission of having robbed a man in company with the applicant but, having been taken to Fairfield Police Station, he declined to participate in an electronically recorded interview. The applicant agreed to be interviewed, and made significant admissions. In particular, he admitted that at the Ashfield club they had been "watching people's credits" and that, when they saw the victim's credit, they discussed robbing him because they had both been losing. He admitted that they had followed the victim to his home, where they had assaulted him. He described his memory of the assault as "a bit fuzzy", but said that both of them had participated in it, using their hands. He added that both of them searched the victim for his money while he was lying on the floor.

1. In assessing the gravity of the offence, Judge Bennett judge found as aggravating features that there had been "a degree of planning and organisation", and that the victim was vulnerable because of the time of day and the location where the attack occurred, together with the fact that he was alone. He noted that the victim was given no opportunity to surrender his money but was immediately set upon.

Plea/Assistance

1. As I have said, the applicant had pleaded guilty in the Local Court. On the evidence in the sentence proceedings, his Honour found him to be genuinely remorseful. He noted that he had readily admitted his role in the offence and had "not sought to avoid responsibility for having taken part in the planning, the execution, and the attack upon this vulnerable victim".

1. At the time the applicant was sentenced, Phan was yet to be dealt with. Apart from disclosing the conduct of Phan and himself in the recorded interview, the applicant had agreed to give evidence against Phan. For his assistance to the authorities in this respect and his early plea of guilty, his Honour allowed a combined discount of sentence of 40%, of which 15% was referable to the assistance. It was from a starting point of 8 years imprisonment that his Honour arrived at the discounted figure of 4 years and 9 months. As is apparent, in specifying a non-parole period of 2 years and 6 months his Honour found special circumstances.

Subjective case

1. The applicant was 20 years old at the time of the offence, and is now 21. He has no prior convictions. His family background is unremarkable, his Honour noting that his parents provided him with "a caring and loving environment." He has three brothers, and no one in his family had been involved in criminal activity. He completed his secondary education and had commenced a university course. He had been consistently employed in a variety of positions. Testimonials in evidence described him as a willing worker, active in his community, and as a courteous, reliable and diligent young man.

1. However, from about the age of 18 he had developed what his Honour described as a "major and recurrent" gambling problem. He gambled in various forms, developing a pattern where he would exhaust his available funds, withdraw from gambling for a short time to recoup his losses, and then return to it. He was said to have had periods of depression during times when he suffered gambling losses. In the light of the whole of the subjective material his Honour observed:

"He is an articulate and intelligent young man. It is a tragedy of mammoth proportion that he has placed himself in his present predicament."

1. His Honour was not persuaded that the applicant's gambling addiction mitigated his offence, but he saw in it some explanation for his conduct and found that it provided "a scope for assessment of his prospects of rehabilitation." His Honour accepted those prospects to be "strong", finding that there was "little prospect of him committing further offences in the light of the experience he had gained from this."

Co-offender

1. Phan subsequently pleaded guilty to the same offence and was sentenced by Sides DCJ. His case on sentence was that he did not participate in the assault on the victim, which was perpetrated by the applicant only. Judge Sides sentenced him on that basis, while noting that he did nothing to assist the victim and took advantage of the situation by joining with the applicant in the removal of the victim's money, driving the two of them from the scene and sharing the proceeds.

1. Phan is only a few months younger than the applicant. He did not have a clear criminal history, having been convicted in June 2010 of two counts of larceny as a servant, for which he was ordered to perform community service. Otherwise, his subjective case was similar to the applicant's. He had a satisfactory upbringing, had completed his Higher School Certificate and had embarked upon a university course. However, he also had developed a gambling problem. His Honour found him to be remorseful, and concluded that his prospects of rehabilitation were "very good". He allowed a 25% reduction of sentence for the utilitarian value of his plea of guilty.

1. Judge Sides had Judge Bennett's remarks on sentence. His Honour noted the similarities in the cases of the two offenders, but also the differences between them. He observed that the applicant had no prior criminal history and had received an additional discount of sentence of 15% for his assistance to the authorities. He also noted that the applicant was sentenced on the basis that he was not the sole perpetrator of the violence upon the victim. This, of course, was not his approach to the sentence of Phan, so that he saw the applicant's criminality as "somewhat greater" than Phan's "because he was the actual perpetrator of the corporal violence ... ."

1. Phan was sentenced to imprisonment for 4 years and 3 months, with a non-parole period of 2 years and 3 months. While his Honour did not specify his starting point for sentence, it must have been 5 years and 8 months.

The application

1. Counsel for the applicant, Mr Russell, relied on a number of grounds of the application. For the most part these amounted to particulars of a general submission that the sentence is manifestly excessive. It was put that the sentence failed to give adequate weight to the applicant's age, his gambling addiction, his remorse, his plea of guilty and assistance to the authorities, and his prospects of rehabilitation. It was also put that the offence was "principally opportunistic", and that Judge Bennett was in error in characterising it as involving a degree of planning and organisation.

1. It is clear from his remarks that his Honour had regard to all those subjective features. As to the objective gravity of the offence, to describe it as "opportunistic" does not alter the fact that it was by no means spontaneous. It may have lacked professionalism, but it was clearly open to his Honour to conclude that it involved a degree of planning.

1. All that said, given the applicant's youth and favourable subjective case, while having regard to the undoubted seriousness of the offence, the starting point of 8 years imprisonment is high. However, I find it unnecessary to determine whether the sentence is manifestly excessive because I am persuaded that the remaining ground of the application, challenging the relativity of the applicant's sentence with that passed upon Phan, is made out. The intervention of this court on that basis, in my view, is an appropriate and sufficient way to ensure justice to the applicant.

1. The two offenders were sentenced on different factual bases. This is yet another case emphasising the importance of co-offenders being dealt with by the same judge. That said, while allowing for the fact that Phan was sentenced on the basis that he did not participate in the violence inflicted upon the victim, the difference in the starting point of sentence for the two men is marked: 8 years in the case of the applicant, and 6 years and 8 months in the case of Phan. Even if Phan did not inflict any violence upon the victim, he was, of course, criminally responsible for it as a participant in the joint criminal enterprise. Accepting that some difference in the starting points was justified on that basis, the extent of the difference cannot be sustained.

1. In the event, the sentence of 4 years and 3 months passed upon Phan was 6 months less than the applicant's, and Phan's non-parole period of 2 years and 3 months was less than the applicant's by 3 months. Unlike the applicant, Phan did not have the benefit of a clear criminal history and, unlike the applicant, he had not provided assistance to the authorities, a course which earned the applicant an additional 15% reduction of sentence. In all the circumstances, I am satisfied that the proportionality between the two sentences is such as to engender in the applicant a justifiable sense of grievance which this court should set right.

1. That said, the gravity of the offence is such that only a relatively modest reduction of sentence would be appropriate. I would set a starting point of sentence at 6 ½ years imprisonment. Maintaining Judge Bennett's discount for the applicant's plea of guilty and assistance to the authorities, that term would be reduced to a little under 3 years and 11 months. I would round that off at 4 years. Also maintaining his Honour's finding of special circumstances, I would set a non-parole period of 2 years.

1. Accordingly, I would grant leave to appeal and allow the appeal. I would quash the sentence passed in the District Court and, in lieu, would sentence the applicant to a non-parole period of 2 years, commencing on 3 May 2011 and expiring on 2 May 2013, and a balance of term of 2 years, commencing on 3 May 2013 and expiring on 2 May 2015.

1. Adamson J: I agree with Hidden J.

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Decision last updated: 26 February 2013