Director of Public Prosecutions v Lai
[2021] VCC 1524
•15 September 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-01035
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TEH HUAT LAI |
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JUDGE: | HIS HONOUR JUDGE LYON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 September 2021 |
DATE OF SENTENCE: | 15 September 2021 |
CASE MAY BE CITED AS: | DPP v Lai |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1524 |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords:
Legislation Cited: Crimes Act 1958 ss 75A, 321M
Cases Cited: R v Storey [1998] 1 VR 359
Sentence: 27 months imprisonment with 15 months to serve;
6AAA – 42 months imprisonment with 30 months to serve
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr L. McPhie | Office of Public Prosecutions |
For the Accused | Mr A. Waters | Victoria Legal Aid |
HIS HONOUR:
1Teh Huat Lai, you have pleaded guilty to attempted armed robbery which carries a maximum penalty of 20 years imprisonment.
2You have no prior criminal history.
Circumstances of Offending
3The Crown tendered the Summary of Prosecution Opening as Exhibit A. A summary of your offending is as follows:
4Throughout November 2020, you attended the Box Hill area each day to conduct reconnaissance on a number of banks.
5On 10 December 2020 at 3.59 pm, you entered the ANZ bank at 10 Main Street Box Hill. Your actions were captured on CCTV footage.
6You were wearing a disguise. You were carrying a yellow plastic bag and a small black bag.
7You joined a queue of customers to be serviced by a teller. When your turn came, the teller, Ms Georgina Wong was counting a large sum of money. You approached her and put the plastic bag containing a rectangular object on the counter. You reached your mobile phone towards Ms Wong through the opening of the plastic security screen on the counter. Your mobile phone screen had a message on it that Ms Wong read. Ms Wong recalls that the message on the mobile phone screen had four lines of words. The first line read (in English) “I have bomb” (sic) or “I have a bomb”. The last line read “give me all the money”.
8Ms Wong recalls seeing the word “gun” in the body of the text. This aspect which the Crown submits aggravates your offending, is disputed. I shall return to this issue later in these sentencing remarks.
9Ms Wong noticed the plastic bag you had placed on the counter and stated you then placed a small black bag on the counter as well. Ms Wong was concerned that it contained a gun.
10Despite her great fear, Ms Wong had the presence of mind to activate the alarm. In turn, a metal screen barrier was activated, and the police and security were automatically notified.
11You ran from the bank, abandoning the two bags.
12Your actions caused the Police Bomb Squad to attend and examine the bags. No explosives were found.
13You were arrested on 19 January 2021. You made comprehensive admissions in a field interview and in the record of interview. You told the police:
·You felt pressured by people who were forcing you to give them money;
·You had been conducting a daily reconnaissance of banks in the Box Hill area for approximately three weeks before 10 December;
·You admitted showing a message to the teller stating “I have a bomb/give me the money”;
·You were carrying two bags, which I have described, and left them when you fled the bank. You told police you put rocks in the yellow plastic bag and boxes to make it look like a bomb;
·You denied the text message contained the word “gun” or the statement “I have a gun”.
14You were remanded in custody on the date of arrest and you have now spent 239 days on remand by way of presentence detention. I will declare that period reckoned as already served.
Objective Gravity and Moral Culpability
15I turn now to consider the objective gravity of, and your moral culpability for your offending.
16The offence of attempted armed robbery is a serious offence, as may be marked by the maximum penalty of 20 years' imprisonment.
17The seriousness of your offending is also marked by the extensive reconnaissance, the level of planning and preparation that you undertook. You sought to disguise yourself and to prepare a bag that looked like it contained an explosive device.
18You targeted a financial institution which, by nature, deals in large sums of cash. Although this was not a classic “soft target” like a convenience store, your target, preparation, use of disguise and execution indicates that you were prepared to increase the stakes in order to gain an expected higher return.
19The text you produced, which you admit contained the words “I have a bomb”, accompanied by the plastic bag you had prepared to look like a concealed bomb and which you placed on the counter before you made the demand, was calculated to instil fear; if not pure terror in the teller that you confronted.
20Although I was not provided with a Victim Impact Statement, Ms Wong’s description of her encounter with you provides evidence for me to conclude that your actions were very frightening indeed. Moreover, I conclude that for the fact that the Victoria Police Bomb Squad attended and examined the bag, your message was taken very seriously.
21Financial institutions, often working with large sums of cash as this bank was, and the people who work in them and use their services, are entitled to feel that those transactions can be conducted in complete safety. You intended to cause a fear in the bank worker that your threat was real – that her safety was at risk unless she complied with your demand for money. These actions must be condemned. The punishment I impose in this case must be sufficient to deter others who may look at this as an easy way to make money.
22Before I go further, I will state my conclusions on the disputed issue.
23Ms Wong states that she read the word “gun” in the body of your text. She was able to give the word no other context. In other words, she could not state whether the text said (for example) “I have a gun”.
24It is important to my consideration that Ms Wong was able to read and recite the first line of text which stated “I have a bomb” and the last line of text which stated, “give me the money”. When seen in this way, although I accept Ms Wong felt great fear and apprehension on reading the first line, she was not so distracted that she did not read the balance of the message. Moreover, she was able to recite the last line.
25I have read Ms Wong’s statement in the depositions and I have read the transcript and listened to the audio (as provided by the defence) of the committal cross-examination on this topic. Although Ms Wong always maintained that she saw the word “gun”, she stated that the presence of a gun was foremost in her mind and she always feared the production of a gun if a robbery was to occur at the bank.
26I further consider it is significant that the teller could give no context to, that is, no words before or after “gun” despite her ability to read instructions further down the text was not affected.
27I note that you made very full admissions to the police when you were arrested. You provided information to the police which they did not have: that is, that you had scoped the bank for three weeks in the period leading up to you entering on 10 December 2020. You made full admissions to showing the teller a message containing a statement about a bomb and demanding money. You made admissions as to your use of the disguise and the preparation of the yellow plastic bag to look as if it contained a bomb. You denied to the police at the outset that you used the word “gun”.
28The Crown must satisfy me beyond reasonable doubt of any aggravating feature upon which it seeks to rely: R v Storey [1998] 1 VR 359, 371.
29In all the circumstances, I am not satisfied to that high standard that your text message also contained a threat that you had or would use a gun. Rather, I intend to proceed to sentence on the basis alleged on the indictment, namely that you attempted to rob the teller and at the time had with you an imitation explosive. You told the teller that you had a bomb, having already put a yellow plastic bag on the counter to further convey that threat.
30It must be apparent from all I have said that even without the threat of possessing a gun, your offending is extremely serious. I consider your moral culpability to be high. Although I understand that you state that you were under pressure from other people who were illegally demanding money from you, such threats or pressure do not reduce your culpability.
31Your offending must be met by principles of deterrence, denunciation and just punishment.
Personal History
32You are aged 29, having been born in Malaysia on 8 February 1992. Your parents are still alive, and you have a younger sister.
33You told your counsel that your parents were never loving towards you. Your parents gave up your care and you were raised by your grandparents until your grandmother died when you were aged 13. At that time, you and your grandfather moved back to your parent's house but they still showed no affection for you. You moved out of home at 17 and worked as a waiter.
34Sometime later, you started an IT business with a business partner. It appears your partner incurred a number of debts. You fled Malaysia in 2016 after the breakup with your partner, which resulted in threats being made against your personal safety and property.
35You have lived in Australia since you were about 23 or 24 years old.
36You have a pending application for a refugee protection visa lodged in the AAT. You remain on a bridging visa pending the outcome of your application.
37You have had no contact with your family since arriving in Australia. Although your grandfather is still alive, he is debilitated by a stroke, and you are unable to communicate with him.
38As I have said, you have no prior criminal history.
Sentencing submissions
39Mr Waters, who appeared on your behalf, submitted that a sentence of imprisonment of less than 12 months combined with a Community Corrections Order was the appropriate disposition. In support of this contention, Mr Waters submitted that the following considerations are relevant:
(a) First, your early plea of guilty emphasises the comprehensive admissions you made to the police from the outset;
(b) You are otherwise a person of good character, and you have no prior convictions;
(c) The reference letters from Tang Ling and Steve Lim provide evidence of your previous good character. You have the prospect of working with
Mr Lim and have accommodation available to you with other co-workers upon your release.(d) Your prospects of rehabilitation are very good. You have support, you have no drug or alcohol abuse issues and it appears no mental health issues;
Mr Waters submitted I should take into account that although your offending involved a level of planning, reconnaissance and preparation, it was your extensive admissions to the police which provided them with information about all of your efforts. Moreover, Mr Waters submitted that your actual offending was not particularly sophisticated.(e) Mr Waters submitted that there is a significant risk of your Visa being cancelled and of you being deported at the conclusion of your sentence. A sentence of 12 months' imprisonment or more will result in the automatic cancellation of your Visa. You have an appeal currently before the AAT as an earlier application for a refugee protection Visa was denied. If your current bridging Visa is automatically cancelled, you may appeal that decision also.
(f) Mr Waters submitted the effect the COVID-19 pandemic has made your time on remand more onerous. I accept that as a consequence of the lockdowns, your ability to move around the prison has been limited. Also, the opportunity to work and undertake vocational and other courses has been limited, if not halted altogether. In order to limit the opportunity for the virus to spread through the prison (although there are no reported cases yet), isolation and lockdowns are often used as a means of achieving social distancing. I recognise that all of these factors make time in prison more difficult. You are entitled to some considerable mitigation for pleading guilty in these difficult circumstances.
(g) Finally, Mr Waters submitted that you have received no visitors and it appears you have had no contact with your family in Malaysia. The significant language and cultural barriers make your time in prison even more isolated and difficult.
40Mr McPhie for the Crown submitted that your moral culpability for your offending is high.
41The Crown agreed that I must mitigate your sentence for your early plea of guilty, and the Crown accepted there is some remorse for your offending. The Crown considered your prior good character is relevant to my sentencing task and that you have good prospects for your rehabilitation. Mr McPhie further recognised there is some risk of deportation which may make the burden of your imprisonment more onerous. Mr McPhie also recognised the burden placed upon you and other prisoners by virtue of the sustained lockdowns caused by the pandemic.
42Nevertheless, Mr McPhie submitted that a term of imprisonment is warranted, with a head sentence and a non-parole period, or alternatively by way of a combination sentence. It was submitted that the time you have already served is, however, insufficient.
43I accept all of the matters submitted in mitigation of your sentence. I agree that you have exhibited remorse and insight into your offending. I do not, however, consider that a combination sentence of imprisonment with a Community Corrections Order is appropriate in this case. In my view, the objective seriousness and your moral culpability for your offending requires the imposition of a head sentence with a non-parole period.
44I have provided a larger than usual parole period, in the case that you are granted parole. This reflects my recognition of your previous good character and your likely very good prospect for rehabilitation. It is important that, if you are granted parole, you re-entered the community with supervision and support.
Orders
45Accordingly, on the charge of attempted armed robbery, you are convicted and sentenced to 27 months' imprisonment. I order that you serve a non-parole period of 15 months before you are eligible for release on parole.
46I declare the period of 239 days presentence detention (excluding today) reckoned as already served.
47The 6AAA declaration is that but for the plea of guilty, I would have imposed an overall sentence of 42 months with 30 months to serve.
48HIS HONOUR: Mr McPhie, anything else to raise?
49MR McPHIE: No, Your Honour, nothing further.
50HIS HONOUR: Thank you. Thank you, Ms Wang, for your services today and on previous occasions.
51COUNSEL: If Your Honour pleases, thank you, Your Honour.
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