Ha v Regina

[2009] NSWCCA 31

New South Wales
Court of Criminal Appeal

CITATION:	HA v REGINA [2009] NSWCCA 31
HEARING DATE(S):	13 February 2009
JUDGMENT DATE:	13 February 2009
JUDGMENT OF:	Grove J at 1; Blanch J at 2; Latham J at 3
EX TEMPORE JUDGMENT DATE:	13 February 2009
DECISION:	1. Leave to appeal granted 2. Appeal dismissed
CATCHWORDS:	CRIMINAL LAW - Sentence appeal - Break, Enter with Intent to Steal - Parity with co-offender sentenced in Local Court - Co-offender's sentence reduced on appeal to District Court - Manifest inadequacy - appeal dismissed
LEGISLATION CITED:	Crimes Act 1900
CATEGORY:	Principal judgment
CASES CITED:	R v Doan [2000] NSWCCA 317 R v Wei Pan [2005] NSWCCA 114 Melikian v R [2008] NSWCCA 156
PARTIES:	Van Hoa Ha (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2007/00015971
COUNSEL:	C Davenport (Applicant) V Lydiard (Respondent)
SOLICITORS:	Andrew Harris & Associates (Applicant) S Kavanagh (Solicitor for Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT JUDICIAL OFFICER:	Nield DCJ
LOWER COURT DATE OF DECISION:	10 July 2008

2007/00015971

GROVE J
BLANCH J
LATHAM J

13 FEBRUARY 2009

VAN HOA HA v REGINA

Judgment

1 GROVE J : I agree with Latham J.

2 BLANCH J : I agree with Latham J.

3 LATHAM J : The applicant seeks leave to appeal against a sentence imposed upon him by his Honour Judge Nield (the Judge) on 10 July 2008 following a plea of guilty to an offence of Breaking and Entering with Intent to Steal (s 113(1) Crimes Act 1900). That offence carries a maximum penalty of 10 years imprisonment. The applicant was sentenced to a non-parole period of 15 months with a balance of term of 5 months.

4 The sole ground of the appeal is that the applicant has a justifiable sense of grievance arising out of the sentence imposed upon a co-offender for the same offence. The co-offender, Tien Cong Nguyen, pleaded guilty in the Local Court and received a sentence of 6 months imprisonment. Mr Nguyen’s severity appeal to the District Court resulted in the suspension of that sentence.

5 The offence was committed at 1:30am on 20 May 2007. The applicant and his co-offender, using a crowbar, broke into a garage underneath a unit complex in Marrickville. The residents called police who apprehended the applicant. Approximately 12 bags were found outside the garage in the common area. The applicant maintained to police that the garage door was already open when he arrived and he denied knowledge of a pair of white gloves, which were found at the scene, bearing traces of the applicant’s DNA. The applicant claimed to have been visiting a friend in the unit complex that night. The applicant was charged with Aggravated (in company) Break, Enter with Intent to Steal.

6 The applicant maintained a plea of not guilty to that charge, and to the alternative charge of Breaking and Entering with Intent to Steal, until the first day of a trial set down for 18 February 2008. On that day he pleaded guilty to the lesser charge. The Judge afforded the applicant a 15% discount for the utilitarian value of the plea, which was in my view generous.

7 The co-offender, by way of contrast, made admissions to police upon his arrest and pleaded guilty to the offence at the first available opportunity in the Local Court. The co-offender’s prints were found on the crowbar. Mr Nguyen’s criminal history was more extensive than the applicant’s and contained 5 previous offences of a like nature, albeit some 10 years ago. The applicant is 5 years older than Mr Nguyen, although that is of no relevance given that both offenders are middle-aged. Their respective criminal histories commenced at the same time and each consist largely of minor property and drug offences. There is nothing to suggest that their subjective circumstances were materially different.

8 However, the applicant’s criminal history was problematic, to say the least. The applicant had been convicted of 7 counts of Break, Enter and Steal since 1993, the last occasion being in the year 2000. A sentence of 4 years imprisonment for Supply Prohibited Drug was completed in October 2006. Thus, the applicant committed the instant offence within 7 months of concluding his parole.

9 These matters were canvassed by the Judge in his remarks on sentence. Specifically, his Honour doubted that parity was relevant to the sentencing exercise, because the applicant was being dealt with on indictment, and the sentence imposed upon the co-offender but varied in the District Court was, in his view, manifestly inadequate. The applicant agrees that the sentence was lenient. I am of the view that, whilst the sentence imposed by the magistrate was within an appropriate range, the subsequent suspension of that term of imprisonment rendered the ultimate penalty manifestly inadequate.

10 The applicant does not contend that the Judge fell into error or that his sentence is manifestly excessive. This matter raises the same issues as the decision of this Court in R v Doan [2000] NSWCCA 317, wherein Grove J (with whom Spigelman CJ and Kirby J agreed) said :-

This poses a following question of whether the principle of parity operates so that the sentences, acknowledged to be within appropriate range, received by the appellant should be reduced to or towards the inadequate sentences received by the co-offender.
18 In Lowe Brennan J rejected the notion that where one right and one wrong sentence were perceived, a court should address the situation by producing two wrong sentences: @ 617 and see R v Stroud 1977 65 Cr App R 150. However Mason J said that the correct principle was “that a court of appeal is entitled to intervene when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence, which is not excessive or inappropriate considered apart from the discrepancy, to the point where it might be regarded as inadequate” : @ 613-4. Dawson J (with whose reasons Wilson J agreed) said:
“But justice should be even-handed and it has come to be recognized both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done ……………. This has led to the variation of sentences by courts of appeal in order to reduce the disparity between sentences separately imposed upon co-offenders even where the sentence varied was not in itself excessive. The cases suggest that there has been a greater reluctance in England than here to vary the longer sentence in such a situation. There is always the dilemma that in order to eliminate the disparity the Court may have to reduce a sentence which it regards as proper in itself because of an inadequate sentence imposed upon a co-offender. To do so, it has been observed, is to compound the error. The view has been expressed in England that a court should not interfere unless the disparity is gross or glaring and the circumstances are ‘most exceptional’ ………. The decisions in this country to not appear to be quite as restrictive as this but on any view the interference of a court of appeal is not warranted unless the disparity is such that the sentence under appeal cannot be allowed to stand without it appearing that justice has not been done. The difference between the sentences must be manifestly excessive and call for the intervention of an appellate court in the interests of justice……….” @623-4.
19 Synthesis of these views confirms that a decision to make any reduction is discretionary. Recognizing this Hunt CJ at CL (James J agreeing, Smart J dissenting) said:
“The issue is whether the particular sense of grievance (or injustice) is a legitimate one. There is in my view, a stage at which the inadequacy of the sentence imposed upon the co-offender is so grave that the sense of grievance engendered can no longer be regarded as a legitimate one”: R v Diamond unreported CCA 18 February 1993.
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The judgments in Lowe dealt with the discretion to intervene possessed by an appellate court but a similar discretion must be possessed by a sentencing judge when faced with manifestly inadequate sentence imposed upon a co-offender whose culpability and circumstances were equivalent.

11 I would add to these observations, those of Johnson J (Giles JA and Hoeben J agreeing) in R v Wei Pan [2005] NSWCCA 114 at [35] :-

Where there is a degree of disparity so as to invite a reduction in the sentence imposed, it is not necessary for the Court of Criminal Appeal to intervene if the result of doing so is to produce a sentence disproportionate to the objective and subjective criminality involved: R v Boney [2001] NSWCCA 432 at paragraph 15. A stage can be reached at which the inadequacy of the sentence imposed upon the co-offender is so great that the sense of grievance engendered can no longer be regarded as a legitimate one: R v Diamond (Court of Criminal Appeal, 18 February 1993, unreported, BC9302054); R v Boney , above, at paragraph 16.

See also Melikian v R [2008] NSWCCA 156 at [35].

12 The Judge’s exercise of discretion has not been demonstrated to have miscarried. I see no basis for the intervention of this Court. The fact remains that the applicant chose to deny responsibility for the offence until he entered his plea of guilty. He did not give evidence on sentence and his account of his personal life and drug treatment was described by the Probation and Parole report as “discrepant”. His criminal history did not justify the extension of any leniency. Any lesser sentence than the one imposed would produce a result that is disproportionate to the applicant’s criminality.

13 I propose granting leave to appeal, but dismissing the appeal.

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