Lau v The Queen - [2009] NSWCCA 237

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Lau v R [2009] NSWCCA 237

FILE NUMBER(S):
2008/2952

HEARING DATE(S):
15 June 2009

JUDGMENT DATE:
16 September 2009

PARTIES:
Scott (Hung Thanh) Lau (Applicant)
Regina (Respondent)

JUDGMENT OF:
Young JA Johnson J Latham J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/2952

LOWER COURT JUDICIAL OFFICER:
Ellis DCJ

LOWER COURT DATE OF DECISION:
11 June 2008

COUNSEL:
H Dhanji (Applicant)
V Lydiard (Respondent)

SOLICITORS:
Legal Aid Commission (Applicant)
Solicitor for Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW - appeal against sentence - robbery in company - guilty plea- whether parity of sentence with co-offender who pleaded not guilty but was convicted.

LEGISLATION CITED:
Crimes Act 1900, s 97
Crimes (Sentencing Procedure) Act 1999, s 9

CASES CITED:
Charlesworth v R [2009] NSWCCA 27
DGM v R [2006] NSWCCA 296
Jones v The Queen (1993) 67 ALJR 376
Lowe v The Queen [1984] HCA 46; 154 CLR 606
R v Pan [2005] NSWCCA 114

TEXTS CITED:

DECISION:
(1) Leave to appeal against sentence granted.
(2) Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2008/2952
YOUNG JA
JOHNSON J
LATHAM J
Wednesday 16 September 2009

LAU v REGINA

Judgment

YOUNG JA: This is an appeal against sentence.
The applicant offender pleaded guilty before Judge Ellis in the Parramatta District Court to one count of robbery in company pursuant to s 97 of the Crimes Act 1900.
The offence was committed in company with the applicant’s co-offender An Binh Vo. Mr Vo pleaded not guilty to the same offence but was convicted by the jury.
The facts of the offence were very simple. The applicant and Mr Vo robbed the victim in close vicinity to the Campsie Police Station at approximately 1.30pm on 27 November 2007. The co-offender physically grabbed hold of the struggling victim and the applicant forcibly removed his wallet. The co-offender also forcibly removed a gold chain which was around the victim’s neck.
Judge Ellis considered that the appropriate starting point was a sentence of around six years. He discounted that by 25% because the plea of guilty was entered at the earliest opportunity. Having made adjustments and taking into account the applicant’s previous criminal history, the learned judge sentenced him to a non-parole period of two and a half years imprisonment to date from 27 November 2007 and to expire on 26 May 2010 with an additional term of two years to date from 27 May 2010 and expire on 26 May 2012. The applicant was arrested on 27 November 2007 and has been in continuous custody since that date.
As I have said, the co-offender did not plead guilty. He was sentenced to a non-parole period of two and a half years with a further parole period of two years and three months, that is, a total term of four years and nine months. Her Honour said:
“The sentence that I have imposed is somewhat more than I would perhaps have imposed but for the parity issue.”
Because the co-offender had breached his parole, he had to serve the balance of a previous sentence which did not expire until 27 May 2008. Mr Lau says that having regard to this, the real effect of the sentence imposed on Mr Vo was to extend his time in custody by four years and four months.
The ground on which Mr Lau seeks leave to appeal is that he has a justifiable sense of grievance by virtue of the disparity between the sentence imposed upon him and that imposed upon Mr Vo.
The core of the applicant’s case is that in effect he has not been given any credit for pleading guilty. Judge Ellis took six years with a 25% discount as the basic sentence, whereas Judge Quirk took as the basic sentence four years and nine months with no discount.
Apart from possible problems with parity, there can be no fault in the sentence which Judge Ellis imposed. The sentence was well within the range for this sort of offence. The maximum penalty for the offence is imprisonment for 20 years; however, the present offence was not the most serious case. Indeed, it has elements of stupidity, robbing a man almost outside a police station. Judge Ellis said in his remarks on sentence:
“The Court recognises that this particular offence was not particularly professional, there was no attempt at disguise, no escape plan, it was committed approximately 100 metres from the Campsie Police Station … .“
No weapon was used.
I recognise that the fact that this sentence, other than for perhaps questions of parity, was one that disclosed no error, is no reason why this Court should not consider it appropriate to adjust the sentence if to fail to do so would be to engender a justifiable sense of grievance in the applicant and give an appearance of injustice to the community: see Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 611-612.
It also should be noted that Gibbs CJ in Lowe’s case at 609 pointed out that one cannot really just compare the actual sentences received by each offender as other things are not always equal and matters such as age, background, previous criminal history, the general character of the offender and the part which he or she played in the commission of the offence, have to be taken into account.
Of course it must be remembered that in the present case Mr Lau was sentenced first, but this is of no real significance: see Jones v The Queen (1993) 67 ALJR 376.
Mr Dhanji for the applicant, put that the material shows clearly that in fact no discount has been given at all to the applicant for pleading guilty.
Mr Dhanji emphasised in his submissions the public interest in ensuring that people are encouraged to plead guilty at an early stage. So much may be taken for granted. The real question about the submission is whether it can truly be said that the disparity in sentence was because the fact of the plea of guilty by Mr Lau, as opposed to a plea of not guilty by Mr Vo, was not taken into the mix.
The Crown says that when one looks at what her Honour Judge Quirk did, it can be seen that she was influenced, in the sentence she passed on Mr Vo, by the fact that Mr Vo, unlike Mr Lau, had no prior offence of violence, was younger than Mr Lau and that Mr Lau’s criminal history was more significant. The Crown says that Judge Quirk appears to have justified the lower starting point of four years and nine months for the co-offender on the basis that the applicant had a much more significant criminal history.
The Crown cites Charlesworth v R [2009] NSWCCA 27 as an instance where, with respect to co-offenders, different starting points were justified.
The authorities show that the test for determining the existence of a sense of grievance is objective not subjective and as Johnson J said in R v Pan [2005] NSWCCA 114 at [34]:
“What has to be demonstrated by the person complaining on the grounds of parity is not that he feels aggrieved, but that a reasonable mind looking overall at what has happened would see that the offender’s grievance is justified.”
For what it is worth, it should be noted that the applicant’s total term of imprisonment is four years and six months and the co-offender’s is four years and nine months. Even accepting Mr Dhanji’s way of looking at things, the difference would be between four years and six months on the one hand, and four years and four months on the other.
It is very difficult properly to compare the various sentences. There are some factors in favour of Mr Lau, such as his plea of guilty, and other factors against him, such as his more serious previous criminal record. It seems to me that a reasonable mind looking overall at the case would not see that any grievance felt by the offender was justified.
The application for leave to appeal is brought out of time but the Crown does not take any point about this. The applicant needs leave to appeal. Although it may be that in the past this Court has been too free in granting leave to appeal, and probably that culture should be reconsidered, in the present case the Crown has submitted that the application for leave to appeal should be granted and that the appeal should be dismissed. That is the order I would make.
JOHNSON AND LATHAM JJ: We are grateful to Young JA for his summary of the facts and the background to the application. We agree that leave to appeal should be granted and that the appeal should be dismissed. These are our reasons for joining in the proposed orders.
The applicant’s submission that the only relevant distinguishing factor between the applicant and his co-offender is the applicant’s plea of guilty misrepresents the true position. The co-offender’s criminal history consisted of a number of convictions for theft and drug supply, whereas the applicant’s criminal history, commencing in 1995, consisted primarily of drug and property offences but also included a conviction for assault in 2001, for which the applicant received a gaol term of eight months. More particularly, the applicant’s criminal history was considerably more extensive than his co-offender’s. The applicant had 42 convictions recorded against him, as opposed to the 13 convictions recorded against the co-offender.
One feature of the co-offender’s custodial history is particularly relevant to the parity argument advanced by the applicant. The co-offender was convicted and sentenced to 12 months’ imprisonment in relation to an offence of supply prohibited drug on 12 April 2007. A non-parole period of six months expired on 11 October 2007. Thus, the co-offender was at large for a period of about six weeks before he was returned to custody upon his arrest for this offence. But for that short period of liberty, the imposition of a non-parole period of two years and six months to date from 27 December 2007 for the robbery in company, in fact results in an effective aggregate non-parole period of three years and two months and an aggregate balance of term of two years and six months for both offences. No doubt, her Honour Judge Quirk was aware of the obligation to impose a sentence on the co-offender that had regard to the totality of his sentence in this respect.
When due consideration is given to these factors, that is, the applicant’s far more extensive criminal history and the absence of any requirement to factor into the sentencing exercise a period of custody referable to another offence, the applicant’s complaint loses much of its force. Even acknowledging the existence of some disparity, that is not sufficient to engage the intervention of this Court. In DGM v R [2006] NSWCCA 296, Latham J said (McColl JA agreeing) :-
“46 In determining whether or not the parity principle has been offended in a particular case, it is important in my view to keep firmly in mind that it is only a marked disparity between the sentences imposed on the relevant co-offenders that generally gives rise to a justifiable sense of grievance, on the part of a reasonable person, looking at all the circumstances of the case: Postiglione v The Queen (1997) 189 CLR 295 at 301 per Dawson and Gaudron JJ. As was observed by Kirby J. at 337: -
So long as the sentencing judge has taken into account the relevant considerations of law and fact, the appellate court will not ordinarily intervene merely because some arguable discrepancy appears between the sentencing of otherwise apparently connected or like offenders. (italics not in original)
47 This Court has exercised appellate restraint on many occasions where a sentence is challenged on the basis of disparity. The Court's refusal to intervene has been expressed as a reluctance to "reduce a sentence which it regards as proper in itself because of an inadequate sentence imposed upon a co-offender" (per Dawson J in Lowe v The Queen (1984) 154 CLR 606 at 623; see R v Diamond NSWCCA 18 February 1993; R v Reardon (1996) 89 A Crim R 180; R v Steele NSWCCA 17 April 1997) or, on the basis that a reduction in the sentence imposed will produce a result disproportionate to the objective and subjective criminality involved; R v Boney [2001] NSWCCA 432. In Boney, Wood CJ at CL applied these two discrete sentencing principles to the Court's consideration of a parity argument..”
Substantially for the same reasons, we would not intervene in the circumstances of this case. Not only is there no marked disparity, but any reduction in the applicant’s sentence would fail to adequately reflect the objective and subjective criminality of the offence. The applicant’s criminal history, which is a product of his long-standing heroin addiction, demonstrates a continuing attitude of disobedience to the law and a marked reluctance to complete treatment programmes that have been conditions of numerous extensions of leniency to him in the past. This offence was committed within eight months of the imposition of a s 9 bond to be of good behaviour for 18 months.
Some of the favourable findings made by Judge Ellis were, in our view, generous. The comment that the applicant’s role “was less than that of the co-offender in that he was not the one who used violence” overlooks the fact that it was necessary for the co-offender to restrain the victim so that the applicant could search the victim’s pockets and retrieve his wallet. Similarly, the observation that there was no weapon used does nothing to mitigate the offence. The presence of a weapon would have justified the more serious charge of armed robbery and a correspondingly heavier sentence.
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LAST UPDATED:
16 September 2009