Lin v Regina

[2006] NSWCCA 258

CITATION:	Lin v Regina [2006] NSWCCA 258
HEARING DATE(S):	21 August 2006
JUDGMENT DATE:	25 August 2006
JUDGMENT OF:	Grove J at 1; Kirby J at 7; Hislop J at 8
DECISION:	1. Grant leave to appeal; 2. Allow the appeal; 3. Quash the sentence and in lieu thereof sentence the applicant to imprisonment for a non parole period of 3 years and 3 months to commence on 29 May 2003 and expire on 28 August 2006 and a balance of term of 2 years and 1 month to commence on 29 August 2006 and expire on 28 September 2008. The earliest date on which the applicant will be eligible for release to parole is 28 August 2006.
CATCHWORDS:	Criminal law - Sentence - Non parole period - Parity - Relevance of bare percentage calculation of non parole period.
LEGISLATION CITED:	Crimes Act 1900 - ss 86(2) and (3), 99(2)
CASES CITED:	Fidow v R [2004] NSWCCA 172 Lowe v The Queen (1984) 154 CLR 606 Postiglione v The Queen (1996 – 1997) 189 CLR 295 R v Kelly (2005) 155 A Crim R 499 Sutton v R [2004] NSWCCA 225
PARTIES:	Applicant - Yi Guo Lin Respondent - Regina
FILE NUMBER(S):	CCA 2006/1152
COUNSEL:	Applicant - Ms A. Francis Respondent - Mr W.G. Dawe QC
SOLICITORS:	Applicant - Legal Aid Commission of New South Wales Respondent - Director of Public Prosecutions (New South Wales)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/11/1084
LOWER COURT JUDICIAL OFFICER:	Goldring DCJ
LOWER COURT DATE OF DECISION:	18 March 2005

- 1 -

2006/1152

GROVE J
KIRBY J
HISLOP J

25 August 2006

Yi Guo LIN v REGINA

Judgment

GROVE J:

1 I have had the advantage of reading the judgment of Hislop J in draft. I agree with his Honour and with the orders which he proposes and I wish only to make some brief observations about some matters canvassed at the hearing of the appeal.

2 In this case it was open to conclude that there was no real distinction between the position of the applicant and the co-offender Li but that derives from the particular facts and not from any principle that the liability shared by the participants in a joint criminal enterprise translates in every case to an equality in culpability and equivalence in sentence assessment.

3 Although not strictly comprehended within the ground as expressed, it was contended that the proportion of non-parole period to total term (calculated as 70.31%) did not give effect in any real sense to the sentencing judge’s finding of special circumstances. Analogy was sought to be derived from Sutton v R [2004] NSWCCA 225 where a reduction (on similar calculation) from 75% which would equate to the statutory ratio to “about” 70% was held not to give proper effect to such a finding.

4 In response, the Crown Prosecutor referred to Fidow v R [2004] NSWCCA 172 where, in respect of a total sentence of eleven years, the non-parole period was 72.7% was held to be within the range of discretion.

5 As is arithmetically obvious, the practical effect in terms of actual potential period of custody, will vary in accordance with length of total sentence when proportions in percentage terms are applied. Hence, a small percentage of a long term may reflect a result whereby there is an appreciably longer period of potential release to parole with a markedly contrasting result if applied to a shorter total term.

6 Neither case establishes that there will be a miscarriage of discretion determinable from bare percentage calculation and every situation should be gauged in the context of particular facts and circumstances.

7 KIRBY J: I agree with Hislop J.

HISLOP J:

8 On 22 July 2004 the applicant pleaded guilty to a charge that on 29 April 2003 in circumstances of aggravation, namely in company with other persons, he detained Zhong Qing Lin without his consent, with intent to obtain a financial advantage contrary to the Crimes Act 1900 s 86(2). The maximum penalty for such an offence is imprisonment for 20 years.

9 On 18 March 2005 the applicant was sentenced by Goldring DCJ for that offence to a non-parole period of 3 years and 9 months imprisonment commencing on 29 May 2003 and expiring on 28 February 2007 and a balance of term of 1 year and 7 months imprisonment. In sentencing the applicant his Honour took into account on a form 1 an offence of demanding money with menaces in company contrary to the Crimes Act 1900 s 99(2). The maximum penalty for this offence is imprisonment for 14 years.

10 The facts of the offence as stated by the sentencing Judge were:

The victim, Mr Jong Chin Lin [sic Zhong Qing Lin], was a student at a language school in Sydney. A friend invited Mr Lin to meet her at the Cashbox Karaoke Club in Chinatown, and when he went there he was introduced to two of the other offenders, whom he recognised, because they had both been students of the language school. Some time later, a month or so later, he received a phone call from one of the other offenders, who indicated that he wanted to meet him and later that day another girl, known as Vivien Coco, approached him in the class room at the language school and told him some one wanted to see him downstairs.
He went downstairs where he met the prisoner, whom he had not met before. The prisoner told the victim to follow him to the toilets. The prisoner tried to drag the victim to a fire escape. While they were in the toilets another student entered the toilets and the prisoner kicked him on the bottom in response. While they were in the toilet, the prisoner told the victim that he knew the part of China where he came from, and that he came from the neighbouring province. He told the victim that a friend had informed him that the victim had been involved in a car accident and as a result the victim owed the friend $20,000. The victim said that was not correct because he had never driven a car.

The prisoner then made a phone call and then three other males came into the toilets. They told the victim to accompany them to the Pitt Street Mall where they met two other offenders, Li and Wu, whom he knew previously. Li and Wu then suggested that they go to the Cashbox Karaoke Club to talk and Li offered to protect the victim at that place. The prisoner then grabbed the victim and walked him to a taxi. The taxi went to Chinatown and all went to a private room in the Cashbox Karaoke club.

When they were there the prisoner told the victim to place his phone and wallet on the table. He then went through the wallet, took $70 and personal cards and he demanded the pin number for the keycard. The victim provided a number which he thought was correct. The prisoner Lin told another co-offender to take the card to an ATM and that person left. The prisoner then returned the victim’s phone and told him to make calls to raise $20,000. The prisoner also told the victim that he needed to pay $5,400 in cash that day and then he could then write out an IOU for the balance.

The victim made a number of phone calls, 27 phone calls in fact, to raise money, and during that period the prisoner slapped him and told him to make the calls more rapidly.

The other offender returned and indicated that he could not use the credit card because the PIN number was incorrect, and the prisoner then punched the face of the victim. The offender, Li, said, “don’t punch him” and at that stage the prisoner indicated that he knew about property owned by the victim and indicated that the victim could use it to obtain a loan.
Other offenders found a walkman and a Swiss army knife in the victim’s bag and the prisoner then directed someone to see if those items could be pawned. The prisoner then told another person to check the ATM with another number that the victim provided, and the victim was told it was his last chance to provide the correct number. Some time later that other person returned and said the PIN number was still incorrect and the prisoner then punched the victim in the face and kicked him in the ribs.
One of the other offenders, not this prisoner, produced a knife and threatened to chop the victim’s fingers off if he did not provide the correct PIN number. The victim then asked Li to assist with money and Li said he would write an IOU to the offenders. The victim could write an IOU to him and the victim then wrote out an IOU promising to pay him $15,000 within a month. The prisoner then said that more security, such as a computer or a TV, was needed. The victim said he had a lap top computer at home and it was agreed that this would be given to the offender Li.
The friend who had agreed to lend money arrived and the victim went downstairs to get the $200.
Another offender, who apparently has not been apprehended, Gia Chin, told the victim that they would be in trouble with their boss if they did not get the money back.
The victim’s phone was taken but his SIM card was returned. Wu then threatened the victim and the prisoner told the victim not to repeat this matter to the police. The victim, with Li and some other offenders went by taxi to the victim’s house and obtained the computer.
The next day the victim reported the matter to the police and provided a statement.
Subsequently the victim received a phone call from the offender Lin [sic Li] pursuing repayment of the money and indeed Lin [sic Li] made a number of phone calls requesting money. These were intercepted by police who had obtained a warrant. The victim was fitted with a lawful listening device and a video camera, and was placed under surveillance by the police. He waited in the area of the language school on 13 May 2003. There the presence of the offenders Li, Quinn and a third offender were observed. There were a number of phone calls between Li and the victim. Money was paid to Quinn and the computer and the IOU notes were returned. Quinn was arrested in possession of the backpack containing the money that the victim had given him. Li was stopped after he had attempted to escape.
This prisoner was identified by the victim a couple of weeks later in the street in Sydney and he was then arrested. He took part in a record of interview and denied any knowledge of the incident. His fingerprints, however, were located on a document and the victim’s bag which had been at the Cashbox, and also on the screen of his lap top computer which had not been at the Cashbox. Also his phone number was recorded in the directory of the prisoner’s phone when he was arrested.

11 The applicant has sought leave to appeal against sentence on the ground that:

The sentence imposed on the co-offenders lacks proportionality to the sentence imposed upon the applicant and gives rise to a justifiable sense of grievance in the applicant.

12 A number of the co-offenders were sentenced by Goldring DCJ. The sentences imposed upon the co-offenders by his Honour were as follows:

a) Qiang Wu - aged 19 at the time of the offences – no prior convictions - charged under Crimes Act ss 86(3) and 99(2) - not guilty pleas - convicted of each offence – special circumstances found– non-parole period 4½ years – balance of term 3½ years - also sentenced for break enter and steal which offence was committed after subject offence (Goldring DCJ 22 July 2004).
b) Shu Qiang Li - young man – no prior convictions – plea of guilty to offence under Crimes Act s 86(2) with s 99(2) offence taken into account on a Form 1 – special circumstances found - non-parole period 3 years and 9 months – balance of term 1 year and 7 months (Goldring DCJ 22 July 2004).
c) Rhineheart Quinn – aged 24 at time of sentence – minor criminal record for offence committed after subject offence – plea of guilty to offence under Crimes Act s 86(3) with s 99(2) offence taken into account on a Form 1 - lesser role than other offenders – special circumstances - non-parole period 3 years – balance of term 1.5 years (Goldring DCJ 22 April 2005).

13 The applicant had no prior convictions and was aged 22 at the time of sentence. His Honour found special circumstances.

14 The relevant principles are as follows:

(a) … the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options - Postiglione v The Queen (1996 – 1997) 189 CLR 295 at 301 per Dawson and Gaudron JJ.
(b) The test for determining the legitimacy of a sense of grievance is objective not subjective - R v Kelly (2005) 155 A Crim R 499 at 502 per Johnson J.
(c) It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and 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 - Lowe v The Queen (1984) 154 CLR 606 at 609 per Gibbs CJ.

15 His Honour held:

I see no real distinction between Mr Lin’s position and that of Mr Li and I propose to impose the same sentence on him.

This conclusion led his Honour to impose the same sentence upon the applicant as he had imposed on Li.

16 Li appealed to the Court of Criminal Appeal against sentence. His appeal was heard on 13 December 2005 and judgment was given on that day. It was not submitted that there was a lack of proper parity or proportionality between the head sentences imposed on the applicant and Qiang Wu. However, it was submitted that there was a lack of proper parity or proportionality between the non-parole periods set for the two sentences. James J, with whom Grove and Simpson JJ agreed, allowed the appeal to the limited extent of varying the non-parole period. The non-parole period was set at three years and three months with a balance of term of two years and one month.

17 The reasons for that decision were:

[51] … his Honour divided the total sentence of eight years imposed on Wu into a non-parole period of four and a half years and a balance of term of three and a half years, that is a ratio of non-parole period to total sentence of about fifty-six per cent. In the case of the applicant, his Honour divided the total sentence of five years four months into a non-parole period of three years nine months and a balance of term of one year seven months, that is a ratio of non-parole period to total sentence of about seventy per cent.

[52] It seems to me that the applicant has a valid ground of complaint, that the sentencing judge, having found in his favour that there were special circumstances, gave very little effect to that finding in the sentence he actually passed on the applicant. Furthermore, the circumstances which his Honour found to be special circumstances being the same in the case of both offenders, his Honour gave no explanation in his remarks on sentence of why he had adopted such different ratios of non-parole period to total sentence in sentencing the two offenders.

18 It was submitted on behalf of the applicant that, as the sentencing Judge had held there was no real distinction between the position of the applicant and Li, to allow the applicant’s non-parole period to stand once Li’s non-parole period had been reduced by the Court of Criminal Appeal would create “a justifiable sense of grievance” in the applicant. Accordingly it was appropriate that the Court intervene to vary the applicant’s non-parole period to correspond with that ultimately imposed upon Li.

19 In support of his Honour’s finding that there was no real distinction between the position of the applicant and Li, the applicant relied upon the fact that he and Li were each charged under the Crimes Act s 86(2), each had an offence under s 99(2) taken into account on a Form 1, each offence arose out of the same joint illegal enterprise, the sentencing Judge found special circumstances in respect of each based upon youth, that they had come to Australia from China as students, that they had no previous convictions, they had good prospects of rehabilitation and had limited English which would make imprisonment more than usually onerous.

20 The Crown accepted there were common elements between the applicant and Li. However, it submitted, the roles which the applicant and Li played in the commission of the offence were different. The applicant alone had attacked the victim, grabbing and slapping him, punching him in the face and kicking him in the ribs. This violent behaviour distinguished the role of the applicant from that of Li. It involved a higher level of culpability. The non parole period imposed upon the applicant was appropriate. As a result of the different roles played in the commission of the offence there was a real distinction between the position of the applicant and Li and his Honour erred in not so finding. In these circumstances parity principles did not require that the non parole period imposed upon the applicant be reduced to correspond with that imposed upon Li. The application for leave to appeal should be dismissed.

21 This was a joint criminal enterprise in the true sense. Each of the offenders knowingly took part in it. The applicant took the role of the enforcer, the one who used force and made threats as a means of obtaining property and cash from the victim. Li took the role of the facilitator. He set up the initial meeting between the applicant and the victim. He endeavoured to obtain property and cash from the victim by pretending to befriend him and assist him against the threats being made by the applicant. Each was responsible for the acts of those involved in carrying out the enterprise. The direct involvement of the applicant was limited in time to a matter of a few hours whereas Li’s direct involvement with the victim continued for more than a week as he pursued payment on the IOU.

22 In my opinion it was open to the sentencing Judge to conclude that there was no real distinction between the position of the applicant and Li. Accordingly I would apply parity principles to reduce the applicant’s non parole period to 3 years and 3 months to correspond with that ultimately imposed upon Li.

23 I propose the following orders:

1. Grant leave to appeal.

2. Allow the appeal.

3. Quash the sentence and in lieu thereof sentence the applicant to imprisonment for a non parole period of 3 years and 3 months to commence on 29 May 2003 and expire on 28 August 2006 and a balance of term of 2 years and 1 month to commence on 29 August 2006 and expire on 28 September 2008. The earliest date on which the applicant will be eligible for release to parole is 28 August 2006.

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