Phan v The State of Western Australia
[2016] WASCA 201
•30 NOVEMBER 2016
PHAN -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 201
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 201 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:208/2015 | 16 SEPTEMBER 2016 | |
| Coram: | BUSS P MAZZA JA MITCHELL JA | 30/11/16 | |
| 54 | Judgment Part: | 1 of 1 | |
| Result: | Appeals dismissed | ||
| B | |||
| PDF Version |
| Parties: | VAN HUNG PHAN THE STATE OF WESTERN AUSTRALIA WADE ROBERT HOPES RONALD EARNEST PARR RONALD KEITH CROSS |
Catchwords: | Criminal law Appeals against sentence Organised crime Single offence of extortion committed by eight cooffenders Oral demands for payment of up to $10,000 per week in 'protection' money Four of eight cooffenders appealing against sentences of 7 years 6 months, 5, 9 and 5 years' imprisonment Whether sentences manifestly excessive Whether sentences breached parity principle Whether sentencing judge took account of irrelevant considerations Whether sentencing judge erred in allowing 'insufficient' discount of 15% for plea of guilty Whether sentencing judge 'failed to determine' appellants' 'actual criminality' |
Legislation: | Criminal Code (WA), s 397(2) |
Case References: | Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1 Atholwood v The Queen [1999] WASCA 256; (1999) 109 A Crim R 465 Barnden v The State of Western Australia [2014] WASCA 161 Barry v The State of Western Australia [2012] WASCA 175 Beins v The State of Western Australia [No 2] [2014] WASCA 54 Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 LJH v The State of Western Australia [2016] WASCA 155 Manisco v The State of Western Australia [No 2] [2013] WASCA 190 Marshall v The State of Western Australia [2015] WASCA 156 Perry v The State of Western Australia [2016] WASCA 139 R v Drinkwater [2006] QCA 82 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508 The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165 Thomas v The State of Western Australia [2014] WASCA 202 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PHAN -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 201 CORAM : BUSS P
- MAZZA JA
MITCHELL JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STONE DCJ
File No : IND 1544 of 2014
Catchwords:
Criminal law - Appeals against sentence - Organised crime - Single offence of extortion committed by eight cooffenders - Oral demands for payment of up to $10,000 per week in 'protection' money - Four of eight cooffenders appealing against sentences of 7 years 6 months, 5, 9 and 5 years' imprisonment - Whether sentences manifestly excessive - Whether sentences breached parity principle - Whether sentencing judge took account of irrelevant considerations - Whether sentencing judge erred in allowing 'insufficient' discount of 15% for plea of guilty - Whether sentencing judge 'failed to determine' appellants' 'actual criminality'
Legislation:
Criminal Code (WA), s 397(2)
Result:
Appeals dismissed
Category: B
Representation:
CACR 208 of 2015
Counsel:
Appellant : Mr H Sklarz
Respondent : Mr J A Scholz
Solicitors:
Appellant : Sklarz Lawyers
Respondent : Director of Public Prosecutions (WA)
CACR 212 of 2015
Counsel:
Appellant : Mr S B Watters
Respondent : Mr J A Scholz
Solicitors:
Appellant : Alana Padmanabham, Barrister & Solicitor
Respondent : Director of Public Prosecutions (WA)
CACR 216 of 2015
Counsel:
Appellant : Mr D Grace QC
Respondent : Mr J A Scholz
Solicitors:
Appellant : Seamus Rafferty
Respondent : Director of Public Prosecutions (WA)
CACR 217 of 2015
Counsel:
Appellant : Mr S Vandongen SC
Respondent : Mr J A Scholz
Solicitors:
Appellant : Seamus Rafferty
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1
Atholwood v The Queen [1999] WASCA 256; (1999) 109 A Crim R 465
Barnden v The State of Western Australia [2014] WASCA 161
Barry v The State of Western Australia [2012] WASCA 175
Beins v The State of Western Australia [No 2] [2014] WASCA 54
Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339
LJH v The State of Western Australia [2016] WASCA 155
Manisco v The State of Western Australia [No 2] [2013] WASCA 190
Marshall v The State of Western Australia [2015] WASCA 156
Perry v The State of Western Australia [2016] WASCA 139
R v Drinkwater [2006] QCA 82
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508
The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165
Thomas v The State of Western Australia [2014] WASCA 202
Overview of the joint plan 8
Persons involved 8
Nature of the joint plan 9
Establishment of the business 10
Initial contact by Phan and others on 3 - 4 April 2013 10
Attendance at the business on 5 July 2013 11
Kilinc and Tran demand money on 1 March 2014 12
'Firebombing' of the business on 9 March 2014 12
Meeting with undercover officer on 26 March 2014 13
Payment of protection money on 27 March 2014 15
Kilinc and Phan attend the business on 12 April 2014 16
Telephone discussions with Phan on 13 - 15 April 2014 17
Meeting with Kilinc, Phan and Hopes on 16 April 2014 17
Payment of protection money on 29 April 2014 19
Attendances at the business on 1 and 2 May 2014 20
Arrests in May - August 2014 20
Aggravating factors identified by the sentencing judge 21
Appeal by Phan 23
Involvement in offending 23
Personal circumstances 24
Sentence 25
Appeal grounds 26
Submissions as to ground 1 (insufficient discount for plea of guilty) 26
Phan's submissions 26
State's submissions 27
Section 9AA of the Sentencing Act 27
Disposition of ground 1 (insufficient discount for plea of guilty) 29
Submissions as to ground 2 (manifest excess) 30
Manifest excess: general principles 31
Disposition of ground 2 32
Maximum penalty 32
Customary standards of sentencing 32
Seriousness of offending 34
Personal circumstances 35
Conclusion as to manifest excess 35
Appeal by Hopes 36
Involvement in offending 36
Personal circumstances 36
Sentence 37
Appeal grounds 37
Ground 3 (failed to determine criminality) 38
Submissions as to ground 2 (parity) 41
Hopes' submissions 41
State's submissions 41
Disposition of ground 2 (parity) 42
Submissions as to ground 1 (manifest excess) 43
Hopes' submissions 43
State's submissions 43
Disposition of ground 1 (manifest excess) 44
Application for leave to adduce further evidence 44
Appeal by Parr 44
Involvement in offending 44
Personal circumstances 46
Sentence 47
Appeal ground 47
Submissions as to manifest excess ground 47
Parr's submissions 47
State's submissions 48
Disposition of manifest excess ground 48
Appeal by Cross 49
Involvement in offending 49
Personal circumstances 50
Sentence 50
Appeal grounds 50
Submissions as to ground 1 (irrelevant considerations) 51
Cross' submissions 51
State's submissions 52
Disposition of ground 1 53
Ground 2 (manifest excess) 53
Orders 54
Appeal by Phan (CACR 208 of 2015) 54
- REASONS OF THE COURT:
Summary
1 Between 2 April 2013 and 15 May 2014, there was a joint plan to extort money from the operators of a business located in Northbridge. The plan was carried out by members of the Comancheros motorcycle gang, led by Ronald Parr, and a group of associates referred to as an 'Asian gang', led by Van Hung Phan.
2 Wade Hopes and Ronald Cross played significant roles in the extortion in 2014, making threats and demands at meetings with a person, 'Danny', who they thought was the ultimate owner of the business. At those meetings it was determined that the business would pay $5,000 per week in protection money to the offenders. Danny made two payments of $10,000 to participants in the extortion enterprise pursuant to that arrangement. Unknown to the offenders, Danny was an undercover police operative who was recording the conversations with Hopes and Cross.
3 All of the appellants were arrested and charged with extortion.
4 Parr pleaded not guilty to the offence of extortion and was convicted after trial. He was sentenced to 9 years' immediate imprisonment. The other appellants pleaded guilty to the offence of extortion on the fourth day listed for trial. Phan was sentenced to 7 years 6 months' immediate imprisonment. Hopes and Cross each received a sentence of 5 years' immediate imprisonment.
5 The appellants now appeal against their sentences. For the reasons summarised below, and explained in the principal part of these reasons, the grounds of appeal all fail.
6 Each appellant contends that the sentence he received was manifestly excessive. In all the circumstances of the case, the sentences were not unreasonable or plainly unjust, and it cannot be inferred that the sentencing judge made any error of principle in the exercise of his sentencing discretion.
7 Phan also contends that he received an insufficient discount (of 15%) for his plea of guilty under s 9AA of the Sentencing Act 1995 (WA) in circumstances where he claims to have pleaded guilty at the first reasonable opportunity. Given the late stage of the proceedings at which Phan pleaded guilty, and the limited benefit to the State and victims which resulted from that plea, the 15% reduction in the head sentence was generous.
8 Hopes contends that his sentence offends the parity principle, on the basis that he and Cross received the same sentence but his level of criminality was less than Cross'. The roles played by Hopes and Cross were similar, and the absence of any disparity between the sentences they received does not give rise to any justifiable sense of grievance which would offend the parity principle.
9 Hopes also contends that the sentencing judge failed to determine his actual criminality in relation to the extortion. There is no merit in that ground.
10 Cross in effect alleges that the sentencing judge erred in finding that he was involved in events which occurred in 2013 when that finding was not open on the evidence. The ground must be dismissed on the basis that the sentencing judge did not make the alleged findings. Further, even if that ground had been made out, in all the circumstances no different sentence should have been imposed.
11 It follows that the appeals must be dismissed.
Overview of the joint plan
12 The following is an overview of the offending conduct, taken from the statement of facts read to the court by the prosecutor after the conclusion of Parr's trial (which the sentencing judge incorporated into his sentencing remarks) and the prosecution brief, including the covert recording and telephone intercept transcripts (which the prosecutor formally tendered at sentence).
Persons involved
13 The business was operated by a company formed by L and her business partners C and G. The company leased its premises in September 2012.
14 'Danny' was a police covert operative who posed as the ultimate owner of the business in dealings with the appellants.
15 Parr was the commander of the Northside chapter of the Comancheros and a State commander of that organisation in Western Australia. Parr owned premises in Northbridge which were used as a clubhouse for the Northside chapter of the Comancheros and a gymnasium.
16 Leslie Grantham was a member of the Northside chapter of the Comancheros and the State sergeant at arms of the Comancheros.
17 Hopes was the secretary of the Northside chapter of the Comancheros.
18 Travis Ugle was the sergeant at arms of the Northside chapter of the Comancheros.
19 Cross was a nominee of the Northside chapter of the Comancheros.
20 Michael Xanthoudakis was a member of the Northside chapter of the Comancheros.
21 Selcuk Kilinc was an associate of various members of the Northside chapter of the Comancheros and a close associate of Phan.
22 Phan was also an associate of various members of the Northside chapter of the Comancheros. Hua Hang was an associate of Phan, and Benta Tran was an associate of Phan and Kilinc.
23 Before 3 April 2013, L did not know any of the offenders except Hang, whom she had met some years earlier when he was a patron of another restaurant at which she worked.
Nature of the joint plan
24 The extortion of the business was a collective effort undertaken explicitly in the name of the Comancheros and carried out by members of the Comancheros and the group led by Phan.
25 Members of the Comancheros and Phan's group held out to L and Danny that they were extorting other businesses in the Northbridge area. They represented that extortion to be part of a business model.
26 Over the period of the extortion, between 2 April 2013 and 15 May 2014, demands were made for the payment of protection money on numerous occasions. The extortion began with a demand for the payment of $10,000 - $15,000 per week. Eventually, there was an agreement between Danny and participants in the extortion that the business would pay $5,000 per week. The threats made to the business varied in the words used from time to time, but the overall threat to the business was a threat to adversely affect the financial viability of the business, including by using violence against its staff and customers.
Establishment of the business
27 In September 2012, the victims' company was formed and leased its Northbridge premises. Between November 2012 and September 2013, the building was renovated and made suitable to operate the business. The business opened to the public on 6 September 2013.
Initial contact by Phan and others on 3 - 4 April 2013
28 On 3 April 2013, Phan, after several unsuccessful attempts, contacted L by telephone and told her that he needed to meet with her and C to talk about something important. Phan said he wanted to meet with them the next day. He told L that he did not wish to discuss it over the phone and wanted to talk in person.
29 At about 12.30 pm on 4 April 2013, L arrived at a Northbridge restaurant where Phan had said, in a text, that they would meet. Grantham was seated at an outside table with another man. On entering the restaurant, L was greeted by Phan, who introduced himself as 'Baby'. Parr, Kilinc and Hang were also present. Phan introduced Parr as 'Ron', the president of the Comancheros, and introduced Kilinc as 'Sel'.
30 Parr told L that he wanted to talk to her because she was starting a business in Northbridge and he was able to help her business to go well. Parr told L that the plan would make her business busier, nobody would make trouble for her and there would be no fighting in her place. Parr said he would also be able to help her get licences faster.
31 L just looked at Parr and Phan because she was in shock. L asked Parr what she had to do. Parr told L that this service came at a cost. L asked how much he was talking about and Parr told her between $10,000 - $15,000 per week. L asked why he was coming to her to pay this money. Parr told her that it was not just her paying the money and that:
We control Northbridge. Everyone in Northbridge will have to pay.
32 L asked Parr if anyone else was paying and Parr told her that another specified establishment was paying them. Phan also told L that everyone in the area was going to pay. Phan and Parr told L that others were paying much more. L told Parr that it would be very difficult to commit to $10,000 - $15,000 per week.
33 Phan said that she seemed like a nice lady and they would give her a discount and would only require $8,000 per week. L told Phan and Parr that she needed to speak to her boss as this was a decision she could not make on her own. Parr told L to think about it seriously.
34 Between 11 April 2013 and 5 July 2013, Phan telephoned L repeatedly. He attempted to meet with her to further discuss the payment of protection money. L always found an excuse not to meet with Phan. L did not pay any protection money to Phan or Parr or anyone else in this period.
Attendance at the business on 5 July 2013
35 At about 9.00 pm on 5 July 2013, Parr, Phan, Kilinc, Grantham and Hang were among 25 - 30 men who attended the business. Many of the men were Comancheros dressed in their 'colours' (that is, their vest with the Comancheros insignia on it). L was summoned to speak to the men.
36 As L walked down the stairs towards the group, Grantham stuck his tongue out and pretended to lick her shoulder as she walked past. Some of the men in the group were walking in and out of the rooms on the first floor of the business. Others were just milling around.
37 L walked to a room where some of the men were seated. Phan was among the group. As L walked towards the room, Phan grabbed L's hand and led her over to where Parr was seated on a sofa in the room. Phan closed the door as they entered the room. Parr moved across on the sofa to make room for L to be seated next to him.
38 L ended up seated between Parr and Phan. Also in the room were about 10 - 15 men, including Hang and Kilinc. A couple of the men stood at the closed door guarding it. There was no music or singing or dancing.
39 Parr told L that this was very serious and that they must talk. Parr told L that, because she was opening up her business there, another specified establishment was losing business and 'couldn't afford to pay us'. Parr told L that she 'must pay us and pay us now'.
40 L told Parr that her business had not yet opened and, if the other establishment could not afford to pay them, then it was not because of her business. She told Parr that she could not afford to pay them that money. She explained to Parr that she worked night and day to get her business up and going. Parr told her this was not his problem.
41 The men subsequently left the business when a guest, John Kizon, asked them what they were doing there.
42 Between 7 July and 9 July 2013, Phan continued to communicate with L, attempting to arrange for L to meet him about the payment of protection money. L felt that she had run out of excuses. On 9 July 2013, L sent Phan a text message in which she told Phan that she was unable to pay the money being asked of her. She told him that, if they tried to obtain the money from her, she would have to go into bankruptcy.
Kilinc and Tran demand money on 1 March 2014
43 L did not hear from Phan or any of the men again until 1 March 2014. Between 3.15 am and 4.15 am on 1 March 2014, Kilinc in the company of Tran demanded payment of $10,000 per week in protection money from L. Kilinc told L that he was there on behalf of Phan. Kilinc told L that he knew that she was earning a lot of money and that she could afford to pay $10,000 per week.
44 Kilinc told L that it had been seven months and they never give anyone seven months. He said that the money would protect her business and any other business she wanted to open in Northbridge. L told Kilinc that she was struggling financially and could not afford to pay. L said that she would need to locate her boss because she was not able to make this decision on her own. Kilinc told L that she had to contact Phan by 5.50 pm on the next Thursday.
45 At the time these demands were being made, L was in a room with a closed door on her own with Kilinc and Tran. Tran stood at the door whilst Kilinc made the demands. Prior to Kilinc speaking with L, he ordered several other men out of the room and ordered the removal of microphones and mobile phones from the room.
46 L did not call Phan on Thursday as demanded.
'Firebombing' of the business on 9 March 2014
47 At about 2.50 am on 9 March 2014, Kilinc threw an incendiary device onto the only internal staircase leading into and out of the business. The device was a bottle filled with diesel (which was not likely to ignite) and a white cloth stuck in its neck. The incendiary device made a loud noise and it smelt of diesel. At the time, the business was still open and 20 - 30 customers were present. Both L and C were present in the business when this occurred.
48 Kilinc used Phan's white mountain bike to ride to and from the business.
49 The 'firebombing' was a direct consequence of L's failure to make the payment demanded of her and an execution of the implied and express threats of injury or detriment if the demand was not complied with.
50 At about 9.00 am on 9 March 2014, L and others reported the 'firebombing' to the police.
Meeting with undercover officer on 26 March 2014
51 On 14 March 2014, L called Phan and informed him that she had located her boss and he would be in Perth the following week. Phan told L, 'no worries, we'll talk then'. Phan told L to call him when her boss was in Perth to arrange a meeting.
52 Arrangements were eventually made for a meeting at a Northbridge restaurant on 26 March 2014. At about 11.35 pm on 22 March 2014, while these arrangements were being made, Kilinc attended the business. He spoke with L and again demanded the payment of protection money.
53 Parr, Cross, Phan and Kilinc met on 25 March 2014 to discuss the planned meeting.
54 At about 1.15 pm on 26 March 2014, L and Danny met with Kilinc and Cross at a Northbridge restaurant. This conversation was covertly recorded. Initially Danny and L spoke with Kilinc and Cross in the restaurant.
55 During the course of that discussion, Kilinc told Danny and L that:
At the end of the day, we got to come to an agreement, you know.
56 Kilinc initially asked for $8,000 a week. At one point, Cross told Danny and L:
I run the crew who is in charge of looking after everybody in town.
57 Cross told Danny and L that they were willing to negotiate because 'Baby' had given Kilinc the okay to negotiate on the price. Cross told Danny and L that they:
will not get any trouble because we run the city.
58 At one point in the discussion, Cross told Danny and L:
I'm going to put it to you simple as that, we are not here to fuck around, make any more trouble for anybody. I haven't started making trouble for anybody yet, believe me. But everybody in town knows you guys are making a good buck. We either protect youse like we do everybody else in the city, this is our place in the city, everybody knows that, or everybody else can come start knocking on your door for a feed. It will happen, believe me.
59 Cross told Danny that 'Baby' was a good friend of his and was getting offended because it had been over eight months and things had not been sorted out.
60 Later Cross told Danny and L:
You can come to the party and everyone will be happy or you just get shut down. It's just - it's just how it works, you know what I mean.
61 Cross said that 'Baby' was going to get the respect he deserved or:
it's going to get shut down ... I'm in charge of it. I'm in charge of the squadron of boys that deal with it all, that's how it is.
62 Cross suggested that they pay $7,000 and then $5,000 a week thereafter. Cross told Danny and L that he's 'doing it nice' and that
I've also got people to answer to who want to come and shut the place down, if youse don't come to an agreement there's nothing I can do about that.
63 Danny then asked Cross what he means by shutting the business down. Kilinc said:
No one will come to your business, once the trouble starts coming.
64 Cross told Danny and L that:
We are the person here that runs the city and if it's not going to be - if it's not going to be respected, after we've been respected for this long, it's not a problem for us to shut you down, man, really isn't.
65 Later, Kilinc asked Danny for $20,000 a month. Danny told Kilinc and Cross that he will have to look at the books and get back to them the next day. Kilinc and Cross were happy with that proposal.
66 Cross and Kilinc then left the restaurant. After some time, Cross returned to outside the restaurant and motioned for Danny to go outside and meet him. Cross directed Danny to leave his mobile phone on the outside table. Danny motioned to L to come outside the restaurant and mind his phone. Both Cross and Danny put their phones on the table and Danny walked off with Cross. As Danny walked off with Cross, he saw Kilinc also returning to the restaurant. Danny and Cross walked to an alcove at the rear of the restaurant.
67 Cross conducted a pat down and thorough search of Danny. Cross said that he wanted to make sure Danny was not wearing a 'wire'.
68 Outside the restaurant, after being patted down for a 'wire', Cross proposed that Danny pay $5,000 a week with $10,000 up front 'today or tomorrow', with further payments to be made at the end of each month.
69 Cross told Danny that his role was a mediator. Cross and Danny agreed to meet at 1.00 pm on the following day. Cross told Danny that he would bring Danny an email address so that Danny could contact him.
70 Immediately after the meeting with Danny and L finished, Kilinc met up with Phan. They discussed the meeting at the restaurant. Just after 3.00 pm, Parr and another man met with Phan and Kilinc at a Chinese takeaway restaurant near Phan's house and discussed the meeting which had taken place at the restaurant.
Payment of protection money on 27 March 2014
71 At 1.00 pm on 27 March 2014, following discussions with Parr and Phan at Parr's gym, Kilinc met Danny outside the Northbridge restaurant. Danny expressed reluctance to deal with Kilinc, contrary to the arrangements the previous day, unless Cross said it was okay to do so.
72 At one point during this conversation, Kilinc told Danny:
Look, I've got to either get the thing off you, or youse got to get the confirmation or the boys will want to come grab ya to give the confirmation.
73 Eventually Danny and Kilinc went to the gym where Cross came out and told Danny that it was fine to deal with Kilinc. Cross walked off, leaving Danny and Kilinc in the street.
74 Danny handed over $10,000 in cash by way of protection money to Kilinc. Kilinc put the money into a black 'man bag'. It was arranged for Danny to return in four weeks' time to pay a further $20,000. When Danny expressed concerns about Comancheros attending the business, Kilinc told Danny:
We sat down and we spoke to 'em about it yesterday and no-one is to wear their colours there and no one is to go there in a big group and run amok.
75 Kilinc also told Danny that:
There'll be no hassles, there will be no problems. As long as the payments are done, there'll be no hassles, (indistinct) promise.
76 Danny told Kilinc that he did not want someone running back into the business and throwing 'that shit' again. Kilinc told Danny:
That's nothing, that was just a warning.
77 Kilinc told Danny that he would provide Danny with his email address and would text Danny from a safe phone and not the phone he had on him.
78 At the end of the meeting, Kilinc went back to the gym and then met with Phan at a restaurant in Northbridge.
Kilinc and Phan attend the business on 12 April 2014
79 Just after midnight on 12 April 2014, Kilinc and Phan attended a social function at the business. Phan approached some of the customers who were smoking at the back door staircase.
80 Phan told the customers to 'fuck off', back to their rooms. An argument developed, but L was able to calm everyone down. L told Phan that because the customers are not allowed to smoke in the rooms, they come outside to smoke. Phan told L that they should not be hanging around out the back staircase as it does not look good for business. Phan said that they should all be in their rooms eating and drinking.
81 Approximately 45 minutes later, a customer came out to smoke at the back staircase area. Phan and another one of his friends were talking to the customer. Phan head-butted the customer and an altercation ensued. C was present when this incident occurred.
82 L and C spoke with Phan and asked him not to create trouble with the paying customers. Phan said that they should be staying in their rooms and eating and drinking. Phan said that, if the customers were not eating and drinking, then they were not spending money which was not good for business. Phan told L and C that they should know that.
83 Later in the morning, at about 2.55 am, Kilinc was at the back door staircase and was telling customers they should go back to their rooms. No one responded to him initially. Kilinc again told the customers to go back to their rooms. One of the customers told Kilinc to keep quiet. Kilinc then rushed up the staircase, grabbed the customer and dragged him down the stairs. A fight broke out. Kilinc started furiously punching the customer and, after a while, a couple of Kilinc's friends joined in the fight as well. As a result, L was also dragged down the stairs.
84 L went back upstairs and tried to call the police. By the time she got to the phone in the internal bar area, Kilinc was back inside. He hit the table in front of L, shouting at her to put the phone down. L then went into the kitchen area and called the police. Police arrived a short time later and took Kilinc away. C asked the police to stay until Phan had paid the bill. Once the bill was paid, Phan left the business.
Telephone discussions with Phan on 13 - 15 April 2014
85 At about 2.40 am on 13 April 2014, L was assaulted by a group of customers who refused to pay their bill. This group of men were not related to the appellants and their conduct. As a result of the assault, L received four stitches to the right side of her face. She reported the matter to police.
86 On the afternoon of 13 April 2014, Danny called Phan and said that he had got Phan's number from L. Danny referred to the incidents over the last two nights, and said that he was coming back over on Wednesday and wants to 'sit down with you guys and have a chat'. They agreed to meet at a Northbridge restaurant at 1.00 pm on 16 April 2014.
87 Later that day, L sent two photographs of her facial injuries to Phan. Phan immediately called L wanting to know who assaulted her. Phan told L that her 'mate' called him and she was not to give his number out to anyone. Phan told L that the other night was a misunderstanding and that they would sort it out.
88 Phan spoke with Parr about the problems at the business on 13 April 2014. He contacted L again and met with C on 14 and 15 April 2014.
Meeting with Kilinc, Phan and Hopes on 16 April 2014
89 On 16 April 2014, Parr met with Phan to discuss the meeting that was to take place later that day with Danny. At 12.55 pm that day, Danny met with Kilinc, who introduced him to Phan and Hopes, at the Northbridge restaurant. They all entered the restaurant where they spoke for some time. Hopes, Phan and Danny then left and walked to the rear of the restaurant where they continued with the discussion. They left Kilinc seated outside the restaurant, later returning to Kilinc where the conversation continued for a short time.
90 During that conversation, Danny told the three men that there was an agreement that he would pay $10,000 first and then, if nothing happened for a month, he would pay $5,000 per week for that month. Phan acknowledged all of this. Danny complained that Kilinc told him that there would be no issues, and he got a call from L telling him that there was an issue 'the first night you guys turned up'.
91 Kilinc asked Danny:
If we're there for protecting as well and at the same time, why is it that [L and C] are the first people to call the cops on us? Now they made that mistake. There's a mistake there, isn't it?
92 Phan, Kilinc and Hopes told Danny that the back staircase should not be open to the public, and customers should not be smoking on the back steps.
93 Danny told the three men that he never had any incidents over things like that and incidents like that are not good for business. Danny reminded them that he was paying $5,000 a week for protection under the Comancheros. Hopes acknowledged that was the position. Hopes told Danny that he is senior and he can call the shots. Hopes told Danny:
If anyone comes to your club and fucks with you, they're fucked. 'Cos like your interest is my interest which is the club's interest.
94 Hopes said that there were a lot of 'crews' that want to come in on the area. Phan said that 'this is our area'. Hopes apologised for the way these matters had been handled and told Danny that it won't happen again. Hopes told Danny that he should have a number to contact if there is an issue.
95 Hopes, Kilinc and Phan confirmed again that they were 'all one'.
96 Hopes told Danny that there needed to be a protocol in place if there was an issue. Kilinc proposed that he give Danny his direct contact number. Hopes told Danny:
[if] you're not paying, end of the day you're probably not going to open.
97 At one point during the discussion, after Phan said 'this is our area', Danny explained his understanding of things was that:
you guys run this area, Hang's got a different group, Sel has his little group (indistinct) work together. It's just like a company of franchises.
- Hopes agreed and said 'that's all it is'.
98 Danny told Hopes and Phan that they should start fresh and he didn't think he should pay for the last two weeks. Hopes and Phan told Danny that was not how it worked. Danny explained that he agreed with 'the other guy' that he was to pay for one month and if something happens, obviously the service was not provided and he doesn't pay. Danny explained that 'the other guy' had said:
Hundred percent, you just trust me, nothing will happen because everyone around here will know you are protected by the Comancheros.
99 It was agreed that Danny would return in one month and pay $5,000 a week for four weeks to Kilinc. Hopes and Phan told Danny to call Kilinc if there was an issue and Hopes said that Kilinc would be told not to be hot-headed.
Payment of protection money on 29 April 2014
100 At about 8.30 am on 29 April 2014, Parr met with Phan and discussed the meeting that was arranged to take place later that day between Danny and Kilinc. Phan organised for Kilinc to attend the meeting.
101 At about 1.00 pm, Danny met with Kilinc outside a Northbridge restaurant.
102 During the course of the meeting, Danny told Kilinc that he had heard that another establishment was paying $4,000 per week and Danny wanted to discuss what he was paying. Kilinc told Danny that 'no-one pays four' and that Danny was the 'lowest person that's paying at the moment'.
103 Kilinc and Danny then discussed the 'firebombing' and agreed that it was lucky it failed. Kilinc told Danny that L should have let Danny know from the start about the payment of protection money.
104 At the end of the meeting, Danny paid $10,000 cash to Kilinc by way of protection money. After Kilinc received the cash, he walked back to Phan's house where he met with Phan.
Attendances at the business on 1 and 2 May 2014
105 At about 8.00 pm on 1 May 2014, Phan, Benta Tran, David Phung, David Tran and three other associates attended the business and spoke with C. Phan told C that he had just got back from Singapore and thought that he would drop in to check on the place. The men were present in the business for about three minutes.
106 At about 8.40 pm on 2 May 2014, Parr, Grantham, Hopes, Ugle, Xanthoudakis and a large group of men from the Comancheros gathered across the road from the business. Parr directed Hopes to go over and check on the business.
107 Hopes, Ugle and Xanthoudakis then left the group and went into the business. Hopes told C that his boss had sent him there and wanted to know if everything was all right. Xanthoudakis and Ugle stood close by Hopes when he spoke to C. This exchange lasted about 50 seconds before all three men left the business to join with the other men across the road.
108 At the time of the conversation both Ugle and Xanthoudakis were standing in close proximity. Neither of the men uttered any words or was aware of the specific purpose of the visit.
109 Approximately five minutes later, Hopes and Ugle re-entered the business and spoke with C. Hopes asked C if she and L owned the studio. C told him that it was owned by a different boss. Hopes then asked who owned the studio. C said his name was Y. Hopes asked C how many outlets Y owned. C told Hopes that he owned three outlets, including this studio. Hopes thanked her, and he and Ugle then left the business. This exchange lasted about 30 seconds before both men left the business.
Arrests in May - August 2014
110 At about 8.00 pm on 14 May 2014, Danny returned a call made by Kilinc earlier that day. Kilinc asked Danny if it were possible for Danny to meet with 'his brother' - a reference to Phan - for lunch before Sunday because his brother was flying out late on Sunday or early Monday morning. Danny said the best he could do was Monday or Tuesday but would see what he could move around to get to a meeting before Sunday.
111 On 15 May 2014, police arrested Cross, Kilinc, Hopes, Phan and Parr and charged them with extortion. Grantham, Ugle and Xanthoudakis were arrested and charged on 23 May 2014. Hang and Tran were arrested and charged on 13 August 2014.
Aggravating factors identified by the sentencing judge
112 Before dealing with individual offenders, the sentencing judge identified a number of aggravating factors concerning the extortion offence:
1. The extortion was committed in company. There were at least 10 men who participated in the offending conduct at different stages and to varying extents in making the threats orally or by their conduct or presence to the two female victims and male victim, being the shareholders of the victim company trading as the business.
2. The extortion of the business was a collective effort undertaken explicitly in the name of the Comancheros and carried out by members of the Comancheros and individuals associated with the Comancheros, namely Parr, Grantham, Cross, Hopes, Phan and Kilinc.
3. Parr, Grantham, Cross and Hopes participated in the extortion specifically in their respective roles as members of the Comancheros. Phan and Kilinc participated in the extortion expressly associating themselves with the Comancheros and holding themselves out to be in partnership with the Comancheros in the extortion of businesses in the Northbridge area and in this extortion specifically.
4. Demands and threats were initially made in 2013 and early 2014 at a time when only one or other of the two female victims were present.
5. The victims were aware that the extortion was being made by members of an outlaw motorcycle gang, which made the threats and demands more intimidating and menacing.
6. The extortion involved menacing threats to close down the victims' business by intimidation. Twenty to thirty members of the Comancheros wearing their colours, together with others, entered the business on 5 July 2013 when demands were made of L for protection money.
7. The offenders relied on their intimidation and threatening behaviour to prevent the victims from reporting the matter to the police.
8. The offenders demonstrated a callous disregard for the impact of the extortion on the victims. Parr in particular told L that it was not his problem that she couldn't afford to pay.
9. The demands continued despite L conveying to the offenders that she could not afford to pay the money and becoming visibly emotional on 5 July 2013 in response to the demands for money.
10. The extortion continued against the background of a Molotov cocktail being thrown into the business on the morning of 9 March 2014 when a deadline for payment of protection money was not met, and in the context of threats of violence. The sentencing judge noted that only Kilinc was being punished for the 'firebombing' because it was not alleged that the others had anything to do with that activity.
11. The 'firebombing' event was extremely threatening and frightening to the victims and was a clear manifestation of the threats of injury or detriment which had been made. The type of liquid contained in the bottle was irrelevant to the threatening and frightening nature of the act of throwing the bottle into the business at a time when it was open and had patrons in it and people working in it.
12. The victims felt intimidated and scared.
13. The victims and their company were vulnerable targets. It was a relatively small business in Northbridge, Perth's entertainment district.
14. The offending was deliberate and calculated. The victims of the extortion were entirely unknown to any of the offenders, apart from Hang who L recognised, and they were targeted specifically to be victims of the extortion. The offending was not borne out of any prior relationship or contact with the victims. The victims had done nothing wrong and did not owe any money or anything else to the offenders. The money was not demanded in relation to the recovery of a debt owed or as any type of punitive measure.
15. The amount initially demanded of the victims and their company was substantial, $10,000 per week. This amount was reduced to $8,000 per week, and subsequently $5,000 per week. Two payments of $10,000 were handed over by the covert operative.
16. The extortion was premeditated, planned and structured. A number of different men were engaged at different stages to participate in various roles in the extortion. The demands for protection money were persistent and continued over an extended period of time, from 3 April 2013 to 15 May 2014. It involved multiple meetings and interactions with the victims and with the covert operative.
17. The extortion was for commercial gain for an outlaw motorcycle gang.
18. The extortion was organised crime.
Appeal by Phan
Involvement in offending
113 The sentencing judge made the following specific findings about Phan's involvement in the extortion.
114 Phan was the leader of his own group that included Tran, Hang and Kilinc, and was the main facilitator and negotiator between the Comancheros, his group and the victims. He was present at most meetings at the business and elsewhere to demand payment of protection money or matters associated with it. He was the communicator and threatened to shut down the business.
115 The following were the key dates of Phan's involvement:
4 April 2013: Phan set up and was present at the initial meeting of 4 April 2013, introducing L to Parr as the president of the bikie gang. He was present when the demands were being made for payment of $10,000. Phan was the person who reduced the sum demanded to $8,000 in the presence of Parr, which showed just how powerful he was and his role in the arrangements between Phan's group and the Comancheros. The sentencing judge observed that it was as though Phan's gang and the Comancheros 'were on an equal footing when it came to bleeding people for money'. Phan told L that his group controlled the whole of Northbridge.
4 April 2013 - 5 July 2013: Phan made contact with L by telephone on multiple occasions, inquiring as to whether she had spoken to her boss yet, and inviting her to meet again with Phan and the others.
5 July 2013: Phan was part of the group that went to the business. He led L into the room where she was seated between him and Parr, and further extortion demands were made by Parr in Phan's presence.
5 July 2013 - 9 July 2013: Phan communicated with L to see if she had made a decision about the offer made at the meeting.
20 March 2014: Phan spoke with L to arrange a meeting with her boss, and told her she was to contact him when her boss came to town.
25 March 2014: Phan met with Kilinc, Parr and Cross outside the Northbridge restaurant, and sent a text to L directing when and where their meeting would take place.
12 April 2014: Phan attended the business with Kilinc, and 'the two of you acted as if you owned the place'. When Phan found out that L had been assaulted, he went looking for that person for the purpose of exacting punishment because he was protecting the place.
14 April 2014: Phan went with another person to the business and spoke to C about the assault on L, Kilinc's altercation two nights earlier, and the fact that he had spoken to Danny. Phan offered to put two men at the business, and told C not to embarrass him in the future by asking him to pay her bills.
16 April 2014: Phan, with Kilinc and Hopes, participated in the meeting at the Northbridge restaurant with Danny, presenting as a united front.
23 April 2014: Phan again went to the business and, with L and C, updated them about his inquiries about the person who had assaulted L.
29 April 2014: Phan was 'in the background of the events that were taking place on 29 April 2014', being the day that $10,000 was handed over.
1 May 2014: Phan went to the business in company with others and told C he was there to check up on the place.
116 The sentencing judge indicated that the aggravating factors to which he had referred applied to Phan and his offending.
Personal circumstances
117 The sentencing judge noted that Phan was 34 years of age. He was born in Vietnam and received asylum in Australia when he arrived as part of a family of seven. Phan stopped using drugs some 11 years ago, and gained employment as a project manager in the mining sector. He then relapsed into drugs around about 2013, and again interacted with 'the wrong type of people and drugs'.
118 The sentencing judge noted references provided on Phan's behalf and that, while Phan had the potential to be a valuable member of society, he was not at the time of sentencing. He also noted that a reference indicated that Phan had expressed deep regret for his offending, particularly its impact on his family and career, but that there was no reference to the victim.
119 The sentencing judge noted Phan's prior criminal record for drug, weapons, traffic and violence related offences, including doing grievous bodily harm, assault occasioning bodily harm and assault. The sentencing judge concluded that Phan had a propensity for violence that previous court sanctions had not been able to stop him from committing, although he noted a gap in Phan's offending between 2004 and 2013 - 2014.
120 The sentencing judge said that Phan's outlaw motorcycle gang associations, and his association with his own predominantly Asian gang, were clearly linked to the offending.
121 The sentencing judge referred to Phan's letter to the court in which he took responsibility for the pain and suffering he had caused, and said that 'to that extent you've demonstrated some remorse'. The sentencing judge also noted that Phan's late plea of guilty after negotiations at the commencement of the trial benefited the State, facilitated the course of justice and benefited the victims of and witnesses to the offence. The sentencing judge also observed that the case against Phan was strong, as he was covertly recorded making extortion demands and setting up meetings with L. The sentencing judge said that conviction was inevitable on the extortion charge if Phan had taken it to trial.
Sentence
122 The sentencing judge imposed a term of 7 years 6 months' imprisonment on Phan. He was made eligible for parole and the sentence was backdated to 15 May 2014 to take account of time spent on remand. The sentencing judge reduced the head sentence by 15% as a result of Phan's plea of guilty, pursuant to s 9AA of the Sentencing Act.
Appeal grounds
123 Phan appeals against his sentence on the following two grounds:
1. The learned Sentencing Judge erred in allowing insufficient discount (of 15 percent) as to the plea of guilty made at the earliest opportunity pursuant to s 9AA of the Sentencing Act 1995 (WA).
2. The learned Sentencing Judge erred in imposing a sentence of 7 years, 6 months' imprisonment, which in the circumstances was manifestly excessive.
124 Leave to appeal has been granted on ground 2. The application for leave to appeal on ground 1 was referred to the hearing of the appeal.
Submissions as to ground 1 (insufficient discount for plea of guilty)
Phan's submissions
125 Phan submits that his plea of guilty was 'in fact entered at the earliest reasonable opportunity that prevailed pursuant to the State's discussions with' Phan and all his co-accused on the first day of the trial.
126 Phan notes that, until the first day of trial, he was charged with three offences. In addition to the extortion charge, he was charged with an offence against s 304(2) of the Criminal Code (WA) relating to the 'firebombing' of the business and unlicensed possession of a firearm. On the first day of the trial, Phan successfully applied to have the firearms charge (which was subsequently discontinued) severed from the indictment.
127 Phan says that, on the second day of the trial, his trial counsel approached the State to discuss the possibility of a plea arrangement, whereby he would plead guilty to the extortion count in satisfaction of the indictment. Phan says that the trial prosecutor indicated that the State would accept the proposal 'on the basis that it was accepted by all of the remaining co-accused'. On 19 October 2015, the co-accused, other than Parr, entered pleas of guilty to the extortion count and those pleas were accepted in satisfaction of the indictment.
128 Phan's written submissions contend that, his plea of guilty being in the circumstances made at the first available opportunity, he was 'entitled to the full 25% discount as afforded by' s 9AA of the Sentencing Act. However, counsel for Phan accepted in oral submissions that when a plea is entered on the fourth day of a trial, the benefit to the State will be less than if it had been entered at an earlier stage in the proceedings. He accepted that, in those circumstances, it may be open to a court to reduce the head sentence by less than 25% to take account of the reduced benefit to the State, even if the plea is to be characterised as having been made at the first reasonable opportunity (appeal ts 30).
129 Ultimately, counsel accepted that his point was that having regard to all relevant considerations, the discount of 15% was outside the range open to the judge on a fair and reasonable exercise of his discretion (appeal ts 31).
State's submissions
130 The State submits that there is no explanation for Phan's failure to offer to plead guilty to the extortion charge at an earlier stage. It says that Phan did not seek to negotiate or otherwise engage with the State as to the disposition of the charges on the indictment prior to trial.
131 The State says that, at trial, the prosecutor indicated that if Kilinc were to plead to both the extortion charge and the 'firebombing' charge, the State would accept pleas from all other accused to the extortion charge in full satisfaction of the indictment. The State says that its submission at sentence that the pleas were entered at a 'very late stage' was not challenged before the sentencing judge, and Phan's claim that he was entitled to a 25% discount is raised for the first time on appeal.
132 The State says that a plea of guilty entered on the fourth day of the trial in the context of a strong prosecution case has less utilitarian benefit than a plea 'genuinely entered at the first reasonable opportunity'. The State submits that, in these circumstances, the allowed discount of 15% was 'arguably generous'.
Section 9AA of the Sentencing Act
133 Section 9AA(2) of the Sentencing Act provides that a court may reduce the 'head sentence' for an offence to which an offender pleads guilty:
in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.
134 For this purpose the 'head sentence' is the sentence which the court would have imposed if the offender had been found guilty after a plea of not guilty and there were no mitigating factors. By s 9AA(3) of the Sentencing Act:
The earlier in the proceedings the plea is made, the greater the reduction in the sentence may be.
135 It is established that s 9AA(2) confers a discretion on a sentencing court with respect to the amount of discount to be provided as a consequence of a plea of guilty.1 In exercising that discretion, the sentencing court is confined to considering the criteria exhaustively stated in s 9AA(2) of the Sentencing Act. Factors personal to the offender which a guilty plea may evidence (such as genuine remorse, contrition, acceptance of responsibility and willingness to facilitate the course of justice) remain generally relevant mitigating factors. However, subjective factors of that kind are not relevant in determining any discount to be given under s 9AA of the Sentencing Act.2
136 Section 9AA(4) imposes a constraint on the discretion conferred by s 9AA(2) of the Sentencing Act. Under s 9AA(4), a sentencing court must not reduce a fixed term under s 9AA(2) by more than 25%. Further, the sentencing court must not reduce the fixed term by 25% unless the offender pleaded guilty, or indicated that he or she would plead guilty, at the first reasonable opportunity.
137 Assessing whether an offender pleaded guilty at the first reasonable opportunity requires an objective assessment of the relevant facts and circumstances of the particular case.3
138 In Atholwood v The Queen,4 Ipp J spoke of the forensic prejudice which an offender may suffer if he or she were to plead guilty to some of a number of counts while others, subsequently withdrawn by negotiation, remained pending. Ipp J considered that a sentencing court should have regard to that forensic prejudice in assessing whether an offender had pleaded guilty at the first reasonable opportunity. These comments were endorsed by the High Court in Cameron v The Queen.5 However, in Rossi, this court observed that the principle had been narrowly applied in subsequent decisions of this court and that relevant forensic prejudice has been difficult to establish.6 In Rossi, this courtdid not regard itself as bound by the approval in Cameron of Ipp J's comments in Atholwood. This was because the endorsement was based on the High Court's view that objective utilitarian considerations were not directly relevant, which was a position that s 9AA had reversed.7
139 It is established that a sentencing court is not obliged to allow the maximum discount of 25% under s 9AA in every case where a plea of guilty is entered at the first reasonable opportunity. The nature, character and extent of 'the benefits to the State, and to any victim of or witness to the offence, resulting from the plea' may differ as between particular cases where the offender has entered a plea at the first reasonable opportunity. The sentencing judge retains a discretion in deciding upon the discount to be given in each case. The strength of the prosecution case can be taken into account in determining the benefits to the State resulting from a plea of guilty.8
Disposition of ground 1 (insufficient discount for plea of guilty)
140 The sentencing judge did not err in failing to find that Phan pleaded guilty at the first reasonable opportunity. At the sentencing hearing, Phan's counsel did not contend that he had pleaded guilty at the first reasonable opportunity. The plea was entered on the fourth day of the trial. Phan does not rely on any approach to the State proposing a plea of guilty prior to the commencement of the trial.
141 There is no evident reason why Phan could not have approached the State at an earlier time with an offer to plead to the extortion charge in satisfaction of the indictment. Nor was there any evident forensic prejudice to Phan in offering to plead guilty to the extortion count while the firearms count remained on the indictment.
142 For the purposes of this ground we will assume forensic prejudice, of the kind to which Ipp J referred in Atholwood,to be one of the relevant facts and circumstances which may be considered in deciding whether a plea of guilty is entered at the first reasonable opportunity. We will also assume that there may have been some forensic disadvantage in pleading guilty to the extortion charge while Phan was also charged with the offence relating to the 'firebombing'. Even on those assumptions we do not consider that, having regard to all relevant circumstances, the plea of guilty could be said to have been entered at the first reasonable opportunity. There was at least the opportunity to approach the State with a proposal to plead guilty to the extortion charge in satisfaction of the indictment well before the trial commenced.
143 Given that the plea was entered on the fourth day listed for trial, albeit before any witnesses had given evidence, a reduction of the head sentence by 15% was generous. The plea was entered at a late stage in the proceedings, after the State had incurred the expense associated with getting the case ready for trial. The witnesses had been summonsed and, in the case of the civilian witnesses, would have experienced the apprehension and anxiety involved in anticipation of giving evidence in a trial of this nature. The sentencing judge found that, even if Phan had gone to trial, 'conviction was inevitable'.
144 In all the circumstances of this case, there is no reasonable basis for contending that it was not open to the sentencing judge to reduce Phan's head sentence merely by 15%. The reduction was not unreasonable or plainly unjust. To the contrary, the reduction applied was generous. There is no merit in this ground, and leave to appeal on this ground should be refused.
Submissions as to ground 2 (manifest excess)
145 Phan accepts that his offending conduct was far more serious in nature than authorities relied on as an indicator for sentences imposed for the offence of extortion in Western Australia,9 and that there are no Western Australian authorities dealing with cases analogous to the present. He refers to a Queensland case dealing with an extortion offence under the Criminal Code of that State as falling within a 'similar factual scenario'.10 He submits that his culpability is 'in some respects less serious' than that case.
146 The State refers to the sentencing judge's findings about the circumstances of aggravation and Phan's role in the offending. The State says that a single decision of a court in another State does not establish customary sentencing standards, and disputes Phan's submission that his culpability was less than that of the offender in Drinkwater. The State submits that the length of Phan's sentence of imprisonment reflects the circumstances of the offending and his role in it, and Phan has failed to establish that the length of the term reveals implied error.
Manifest excess: general principles
147 The general principles governing appeals on the ground of manifest excess are well established:
1. A ground of appeal which alleges that a sentence is manifestly excessive asserts an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
2. The discretion conferred on sentencing judges is of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. The appellant must demonstrate the sentence imposed to be unreasonable or plainly unjust.
3. The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
4. A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.5. When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
Disposition of ground 2
Maximum penalty
148 The maximum penalty for the offence of extortion, provided by s 397(2) of the Criminal Code, is imprisonment for 14 years.
Customary standards of sentencing
149 The parties' submissions do not identify any decisions of this court which are comparable to the present case. We note the following decisions as reflecting the approach adopted in relation to sentences for extortion, albeit in significantly less serious cases than the present.
150 In Perry v The State of Western Australia,11 the court refused leave to appeal against a sentence of 3 years 2 months' immediate imprisonment. That case involved an attempted debt recovery in which $72,000 was demanded but no payments were made. The demands for repayments were accompanied by a relatively minor assault and threats of violence to the victim and his family. The offender was a 32-year-old man with a limited prior record, who received a 15% discount for his plea of guilty.
151 In Manisco, the offender attended the victim's business premises with another person and demanded repayment of an $8,000 debt or he would 'repossess cars and end up fucking shooting the place up'. There was no evidence that Manisco (who genuinely believed that the debt was owed and the creditor was distressed by its non-payment) was to financially benefit from the recovery of the debt. The mature offender had a significant criminal record and a history of drug use. He pleaded guilty to the count in satisfaction of an indictment containing two counts of extortion about a week before trial. An appeal against a sentence of 2 years' immediate imprisonment, including on grounds of manifest excess, was dismissed.
152 In Barry, the offender had texted two victims asking them to attend the tattoo shop where he worked. When they arrived, a co-offender, who was the sergeant at arms of the Rock Machine Motorcycle Club, and three other men demanded that the victims assault one of their friends or pay $2,000 for claiming an association with the club. These threats were not made in Barry's presence. Subsequently, Barry sent text messages asking whether the victims had sorted the problem out and asking:
Where's that money? My mate's not happy.
153 The co-offender in Barry was sentenced to 3 years' imprisonment, a sentence which took account of the fact that he was 'likely to do hard time in prison' where he would be a protected prisoner. Barry's sentence was reduced from 2 years' to 14 months' imprisonment on parity grounds. This was on the basis that Barry acted at the co-offender's behest partly because he was intimidated by the co-offender, did not make any threats to the victims and tried to reassure them that the matter could be sorted out without harm coming to them. Barry was reluctant to perform the tasks assigned by the co-offender and was indifferent as to whether he received any financial reward. The majority of the court regarded Barry's culpability as very much less than the co-offender's and the disparity of one year between their sentences as insufficient.
154 In Amoore, three offenders went to the victim's business premises on three occasions and demanded repayment of a $45,000 debt which they genuinely (if unjustifiably) believed was owed to them. The offenders threatened violence and received $5,000, $3,000 and $1,000. On the third visit, the offenders said they would return on Monday and Friday of the next week and that the victim would be met with violence if he did not pay a further $6,000 and $10,000 on these occasions. The offenders received wholly concurrent 18-month sentences of immediate imprisonment for three counts of armed robbery and two counts of extortion. The State relevantly appealed on the ground that the sentences were manifestly inadequate, at a time when special principles governed prosecution appeals against sentence. The mature offenders had generally good antecedents and pleaded guilty to the offences. Although regarded as lenient, the individual sentences imposed for the extortion offences were not found to be manifestly inadequate.
155 These Western Australian cases involved offending which was much less serious than the appellants'. As was noted in Perry,12 offences of extortion occur in a variety of different circumstances which are mostly unique, and there is no tariff for the offence. Here, as in Perry, the differences between the case at bar and previous decisions are such that the comparators are of very limited utility. The cited authorities do no more than suggest that a significantly higher sentence than that imposed in the cited authorities would be expected in the much more serious circumstances of the present case.
156 However, a principle which emerges from those cases, which is significant in the present case, is the importance of deterrence as a sentencing consideration. As Mazza JA, with whom Buss JA agreed, observed in Barry,extortion offences:13
are difficult to detect, often because victims are too intimidated to come forward because of the threats that are made. [Extortion] is an offence where deterrence (both personal and general) is an important sentencing consideration and will frequently result in the imposition of an immediate term of imprisonment [65].
157 We have found limited assistance in the Queensland decisions, such as Drinkwater,where sentences in the range of 5 - 7 years have been imposed for serious extortion offences under the different sentencing legislation of that State.
Seriousness of offending
158 The criminality of Phan's offending in the present case was very high. He participated in an extortion in which he and a large number of co-offenders acted as an organised crime gang. The period during which the extortion occurred was significant, even recognising that there was a hiatus in activity between July 2013 and March 2014. Phan relied on the existence of a large number of men and the reputation of an outlaw motorcycle gang to intimidate a small business that had sought to open in an area which was claimed by the gang. There was no legitimate claim for payment of any money standing behind the demands which Phan made.
159 Although Phan was not responsible for the 'firebombing' incident, he continued to make demands and threats, and arrange for others to make demands and threats, even after he was aware of that incident occurring. The 'firebombing' provided the context in which his threats were made and would have been so perceived by L and C. The encounters must have been terrifying for L and C, and would have been terrifying for Danny had he not been an undercover police operative. The vulnerability of the small business and its operators to the threats of a large group of men operating as a criminal gang was significant.
160 The amount of money which Phan demanded was also an aggravating factor. He did not merely demand one-off payments, but ongoing payments which, at the rate of $5,000 per week that was eventually accepted by the extortionists, would have resulted in payments of approximately $250,000 per annum. Danny's involvement and the detection of the offence meant that only $20,000 was actually paid. However, the larger amount of money which was demanded and which would have been received if the extortion was successful remained an aggravating factor.
161 It is also relevant to note that the extortion was presented to the victims as part of a broader criminal plan involving the extortion of protection money from Northbridge businesses.
162 The employment of a large group of men acting in an organised manner to extort significant sums of protection money from a vulnerable business over an extended period of time makes the present case a very serious example of the offence of extortion.
Personal circumstances
163 The sentencing judge's findings as to Phan's personal circumstances are set out above. The only significant mitigating factors were the plea of guilty and some limited expression of remorse.
Conclusion as to manifest excess
164 As noted above, this was a very serious example of the offence of extortion. Considerations of personal and general deterrence were particularly significant sentencing considerations in the present case. The potential financial rewards of the criminal plan were very high. Detection in the present case depended on the exceptional degree of courage shown by L and C in approaching police, assisting in the undercover operation and participating as witnesses in the case. Given the level of organisation of the extortion, the potential return from the plan and the difficulty of detection in circumstances where the apprehended consequences of reporting the crime are likely to dissuade many victims from doing so, a significant penalty was required to act as a deterrent to Phan and groups like the Comancheros.
165 Having regard to all relevant sentencing considerations, and all the circumstances of the offence and offender, we are far from persuaded that the sentence of 7 years 6 months' imprisonment was unreasonable or plainly unjust. To the contrary, in our view it was an entirely appropriate sentencing disposition. We would dismiss appeal ground 2 and Phan's appeal.
Appeal by Hopes
Involvement in offending
166 The sentencing judge made the following specific findings about Hopes' involvement in the extortion.
167 Hopes was a patched member of the Comancheros and the secretary of the Northside chapter at the time of the offences.
168 On 16 April 2014, Hopes, in the company of Phan and Kilinc, met with Danny at the Northbridge restaurant where he told Danny to pay $10,000 in protection money. During the meeting Hopes told Danny that he is senior and can call the shots. Hopes, together with others, suggested that there ought to be two men at the business to protect the place. Hopes told Danny that L should not be calling the police if there is trouble, they should be calling 'the boys and the boys will come down and sort it out'. Hopes apologised for Kilinc's hot-headed behaviour and the way in which the matter had been handled. He suggested a protocol be put in place if there was an issue. Hopes also negotiated payments, which the sentencing judge found indicated his seniority. Hopes also told Danny that he would be getting him an encrypted phone to facilitate communication between the two.
169 On 2 May 2014, Hopes attended the business in company with Ugle and Xanthoudakis. He told C that he was a Comanchero and that he was there to check up on the place.
170 The sentencing judge found that Hopes played an important role in the extortion.
171 The sentencing judge indicated that the aggravating factors to which he referred applied to Hopes. The sentencing judge found that Hopes joined the Comancheros in August 2013, after the initial demands had been made. He noted that Hopes became involved after the 'firebombing' on 9 March 2014. Against that background, the sentencing judge found that Hopes would have been aware that the demands for money were occurring in the context of threats of violence.
Personal circumstances
172 The sentencing judge noted that Hopes was 27 years of age and was in a supportive de facto relationship.
173 The sentencing judge referred to a large number of references provided on Hopes' behalf and noted that people spoke well of him.
174 Hopes was a qualified steel fabrication engineer and the sentencing judge found that he had a good employment history.
175 The sentencing judge noted Hopes' prior criminal record for firearms, drugs and weapons related offences. He also noted that Hopes was serving a sentence for conspiracy to defeat the course of justice. The sentencing judge concluded that Hopes' prior record demonstrated he was not of good character.
176 The sentencing judge found that Hopes' affiliation with the Comancheros was linked to his current offending.
177 The sentencing judge was satisfied that Hopes demonstrated remorse through his lawyer. He also acknowledged that Hopes' late plea of guilty facilitated the course of justice.
Sentence
178 The sentencing judge imposed a sentence of 5 years' immediate imprisonment on Hopes. Hopes was made eligible for parole and the sentence was backdated to 30 March 2015 to take account of the sentence he was serving, and for totality reasons (so that the sentence was partly concurrent and partly cumulative with the sentence already being served). The sentencing judge reduced the head sentence by 15% as a result of Hopes' plea of guilty, by reference to s 9AA of the Sentencing Act.
Appeal grounds
179 Hopes appeals against his sentence on the following three grounds:
1. The minimum term of 5 years immediate imprisonment was, in all the circumstances, manifestly excessive;
Particulars:
1.1 The criminality involved;
1.2 The appellant's antecedents;
1.3 Sentences imposed in, broadly, comparable cases.
3. The learned sentencing Judge erred when he failed to determine the appellant's actual criminality in relation to the extortion;
Particulars:
3.1 His Honour failed to determine where Mr Hopes sat within the hierarchy of offenders and/or the extortion;
3.2 In relation to the Appellant's role in the offending, His Honour merely categorised the appellant as an 'extortionist'.
181 It is convenient to deal with these grounds in reverse order.
Ground 3 (failed to determine criminality)
182 There is no merit to ground of appeal 3. Contrary to suggestions in Hopes' written submissions, the sentencing judge did not 'merely categorise' Hopes as an extortionist, and was not required to expressly state where Hopes was positioned in a hierarchy consisting of all the other offenders.
183 Hopes' argument proceeded from comments which the sentencing judge made during the course of sentencing submissions rather than in the course of his sentencing remarks. The following passage of the transcript was relied on for this purpose:
STONE DCJ: He was a negotiator, wasn't he?
WATTERS, MR: Well, when you say negotiator, with respect he's there to seek to persuade Danny as to why money needs to be handed over and money - - -
STONE DCJ: Well, if you don't pay, you don't open.
WATTERS, MR: Yes.
STONE DCJ: It's not rocket science.
WATTERS, MR: No. But in my respectful submission, to frame him as a negotiator is a little unfair because a negotiator - - -
STONE DCJ: I don't think so, Mr Watters.
WATTERS, MR: Well, in my respectful submission, a negotiator will be someone who's there - - -
STONE DCJ: All right. He's an extortionist.
WATTERS, MR: Well - - -
STONE DCJ: He's not a negotiator.
WATTERS, MR: - - - plainly by his plea, he's an extortionist.
STONE DCJ: Yes, all right.
WATTERS, MR: But if he was someone who was entrusted at the upper echelons of the hierarchy - - -
STONE DCJ: So the elements - all right.
WATTERS, MR: - - - he would be actively negotiating payments and amounts and things like that. But he's there really as an enforcer, if I could put it that way.
STONE DCJ: Well, he tells Danny, doesn't he:
If you decide not to pay any more money, you're probably not going to open.
WATTERS, MR: I don't see that as negotiating anything. I'd see it there as someone who's there to ensure that the extortion proceeds (ts 2052).
184 Hopes submits that the sentencing judge erred by failing to make a finding as to Hopes' place in the hierarchy of the organisation and merely characterising him as an extortionist, and failing to determine the degree to which Hopes' actions were pivotal to the success of the offence. Hopes submits that his participation was clearly not pivotal or integral to the success of the extortion which began before he became involved. Hopes submits that, having failed to determine these matters, the sentencing judge was not in a position to accurately determine Hopes' criminality or to properly determine the sentence he should receive.
185 In oral submissions in the appeal, Mr Watters contended that the sentencing judge should have found that Hopes 'was someone there to facilitate what was taking place' (appeal ts 35). In written submissions in the appeal, Hopes was described as a 'facilitator' and Cross as a 'mediator'. In oral submissions before the sentencing judge, Mr Watters submitted the term 'negotiator' was inapt, and described Hopes as an 'enforcer' who was 'there to ensure that the extortion proceeds'.
186 Hopes' criminality is not to be determined by the selection of any particular euphemism to describe a person who was, at the end of the day, a thug demanding money under thinly veiled threats to use violence to cause economic harm to a business. Rather his criminality is to be determined by making findings as to precisely what Hopes did, having regard to all relevant circumstances including those personal to him.
187 In R v Olbrich,14 the majority noted that when sentencing multiple drug importation offenders, a distinction between 'couriers' and 'principals' may prove a useful shorthand description of different kinds of participation in a single enterprise. They also noted that, in some but not all cases, different levels of culpability might be identified by adopting those terms. However, the majority cautioned:
it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a 'courier' or a 'principal' must not obscure the assessment of what the offender did [19].
- The majority also noted that, while sentencing courts may categorise the role of an offender when dealing with different drug offenders:
the utility of such an exercise is necessarily limited by the extent to which the material facts are known. What may be a convenient shorthand method of describing the facts of particular cases should not be elevated to an essential task to be undertaken in every case, regardless of whether that is possible or appropriate [14].
189 There is no proper basis for Mr Watters' submission that the sentencing judge merely categorised Hopes as an extortionist. In his sentencing remarks, to which attention is appropriately directed, the sentencing judge made specific findings about what Hopes did. He referred to Hopes' participation in the meeting on 16 April 2014 and his attendance at the business with others on 2 May 2014. The sentencing judge found that Hopes only became involved after the 'firebombing' on 9 March 2014.
190 Ground 3 has no reasonable prospects of success. Leave to appeal on ground 3 must be refused.
Submissions as to ground 2 (parity)
Hopes' submissions
191 Hopes submits that his role in the offending was:
to ensure that the extortion proceeded, a facilitator of sorts, as opposed to the role played by Mr Cross, who purported to have the authority and seniority to mediate for the Comancheros and did so on occasions, as on 26 March 2014.
192 Hopes submits that there is a significant difference between a 'mediator' of the extortion and a 'facilitator' being directed by another person (Parr).
193 Hopes also submits that there was direct evidence of Cross referring to the previous 'firebombing' of the business, while there is no direct evidence of Hopes referring to the firebombing in his discussions with the victims. Hopes submits that there was added gravity and a higher level of intimidation in threats made by Cross, so as to significantly increase his culpability compared to Hopes.
194 Hopes argues that the parity principle is infringed because both he and Cross were sentenced to 5 years' immediate imprisonment, when Hopes' sentence should have been markedly less than Cross' sentence.
State's submissions
195 The State accepts that Cross negotiated the amount of the payment with Danny while Hopes came into the picture after the amount had been agreed. The State notes that by the time Hopes became involved there was no need to negotiate the amount. The State submits that, overall, the roles played by the two offenders were similar. Both Cross and Hopes became involved after the firebombing on 9 March 2014, and both were aware that the extortion was being committed against a background of threats of violence.
196 The State says that both men participated in separate meetings with Danny, and held themselves out as senior members of the Comancheros. Their roles at each meeting were similar, being the primary points of contact between Danny and the Comancheros. Hopes held himself out as more senior than Cross, and indicated that when Danny wanted to deal with the Comancheros he should approach Hopes. The State says that Hopes was in a position to apologise for Kilinc's behaviour and the way things had been handled prior to his involvement, as well as giving assurances.
197 The State points out that Hopes entered the business on 2 May 2014, and was the spokesperson for the Comancheros 'requesting' information about Danny's business, flanked by Xanthoudakis and Ugle.
Disposition of ground 2 (parity)
198 The principles to be applied in determining whether this court should interfere with a sentence on parity grounds were summarised by Mazza JA in Barry:
The parity principle is based upon the norm of equality before the law which requires, so far as the law permits, that like cases be treated alike and that there be different outcomes where there are relevant differences.
Whether the parity principle has been infringed does not depend upon a finding that the sentence in question is manifestly excessive. It depends upon whether, objectively speaking, the disparity (or lack of it) gives rise to a justifiable sense of grievance.
What is required is a comparison of the sentence imposed on each offender and an evaluation of their involvement in the commission of the offence and their antecedents [55] - [57]. (citations omitted)
199 An appellate court may interfere, on the ground of a marked and unjustifiable disparity or on the ground of an absence of a marked and unjustifiable disparity, with a sentencing judge's exercise of the sentencing discretion even though the sentence in question, viewed in isolation, would not necessarily be regarded as manifestly excessive or otherwise open to challenge. See Barnden v The State of Western Australia [2014] WASCA 161 [56].
200 We generally accept the State's submissions in relation to this ground. Hopes and Cross played similar roles in the extortion. Each attended meetings with a person or persons who they understood operated the business at which the amount and timing of payment of protection money was discussed. Neither was involved throughout the extortion. We accept that Cross was involved in agreeing to take $5,000 per week, whereas the amount to be paid had been agreed by the time Hopes became involved. However, Hopes did negotiate in relation to the payments required for the two week period in which incidents had occurred. The threats made by Cross were more overt than those made by Hopes. On the other hand, Cross' direct involvement was confined to attending a single meeting, whereas Hopes also approached C with other members of the Comancheros on 2 May 2014.
201 In our view, taken as a whole, the extent of criminality involved in the conduct of Cross and Hopes was broadly similar. The antecedents of the two offenders were also largely similar, although Hopes had the more serious record having recently committed the offence of attempting to pervert the course of justice. To any extent that Cross' criminality might be assessed as greater than that of Hopes, the difference is marginal and does not give rise to any objectively justifiable sense of grievance.
202 In our view, ground 2 has no reasonable prospects of success. We would refuse leave to appeal on ground 2.
Submissions as to ground 1 (manifest excess)
Hopes' submissions
203 Hopes refers to the previous decisions discussed in dealing with Phan's manifest excess ground of appeal. He does not challenge the sentencing judge's finding that the offence was an extremely serious example of extortion. However, Hopes submits that he played a limited role in that offence. Hopes submits that he merely attended meetings on two occasions at the direction of Parr. Hopes contends that, given his antecedents, his role in the offending, his late plea of guilty and remorse, the 5-year sentence of imprisonment he received was manifestly excessive.
State's submissions
204 The State's submissions generally reflect those in Phan's appeal. The State also submits that the claim that Hopes played only a 'limited role' in the extortion understates his culpability in the criminal plan. While the State accepts that Hopes only became involved in the extortion at a later date, it submits that he was a central figure in the extortion from that point onwards. The State submits that the present case is the most serious case of extortion to have been considered on appeal in Western Australia. It submits that Hopes is one of the more culpable of all the offenders who were parties to this offence.
Disposition of ground 1 (manifest excess)
205 The above discussion of the relevant principles and the customary standards of sentencing in dealing with Phan's manifest excess ground applies equally to this ground of appeal.
206 Hopes was less culpable than Phan, who played a role throughout the extortion and was one of its two principal organisers. Hopes' involvement, described above, consisted of taking the lead role in the meeting on 16 April 2014 and the 'request' for information on 2 May 2014. Although not involved in the earlier stages of the extortion, at the meeting on 16 April 2014 he held himself out as a senior member of the Comancheros, negotiated payments and made veiled threats. He agreed to participate in an organised extortion plan with a general knowledge of the events which occurred in 2013. He was a senior member of the Comancheros organisation.
207 Having regard to all relevant sentencing principles and all the circumstances (including the antecedents and mitigating factors to which the sentencing judge referred) we are far from satisfied that the sentence imposed on Hopes was unreasonable or plainly unjust. In our view, this ground of appeal must be dismissed.
Application for leave to adduce further evidence
208 By application dated 13 September 2016, Hopes sought leave to adduce further evidence in the appeal. The evidence was advanced as relevant to this court's resentencing of Hopes if one or more of his grounds of appeal were established. As none of those grounds have been made out, it is unnecessary to consider that material. The application for leave to adduce further evidence should be dismissed.
Appeal by Parr
Involvement in offending
209 Unlike the other appellants, Parr pleaded not guilty and was convicted of the extortion offence after trial. The sentencing judge made the following findings from the evidence led at trial.
210 Parr was the commander of the north chapter of the Comancheros. Parr was also the State commander of the Comancheros at the time of the offences. This is the most senior position in Western Australia within the Comancheros. The Comancheros clubhouse was located adjacent to Parr's gym in a property owned by Parr or a company he controlled.
211 Parr was the mastermind behind the extortion and the leader of those involved behind the scenes throughout the events of 2014, directing the involvement of others in the extortion.
212 On 4April 2013, Parr, together with Phan, Kilinc and Hang, met with L at the restaurant in Northbridge. Parr was introduced as the president of the Comancheros.
213 Parr said he wanted to talk to L because she was starting a business in Northbridge, and he could help her business to go well (more busy, more people, and nobody would make trouble for her; there would be no fighting in her place; and Parr could help her to get her licence quicker). Parr told L that this would come at a cost, of about $10,000 to $15,000 per week. Phan told L that she wasn't the only person paying, and that:
Everybody will pay because now we control Northbridge.
214 Parr was present and agreed with the 'discount' that was proposed by Phan, and was present when Phan told L that everybody in the area was going to pay and that other people were paying much more. Parr told L to 'seriously think about it'.
215 At about 9.00 pm on 5 July 2013, Parr was in the business with 20 - 30 men dressed in black and, apart from the members of the predominantly Asian group led by Phan, the men were wearing their colours.
216 L was led into the room where Parr was seated with other gang members. She was seated between Parr and Phan. Parr said to her:
Sit down. It's a serious matter. We need to talk. Now [another establishment is named] - because of you opening your business here, [the other establishment] is losing income and cannot afford to pay. They cannot afford to pay us now, so you must pay.
217 L explained her business was not open yet, it was not her fault that the other establishment couldn't afford to pay and that she had no money. Parr said that was not his problem.
218 At about 1.34 pm on 25 March 2014, Parr, Cross, Phan and Kilinc met outside a restaurant and spoke for about five minutes. That conversation between the four men was about the extortion generally and specifically about making final arrangements for the meeting with L and her boss the following day.
219 Parr directed Cross to attend the meeting at the Northbridge restaurant on 26 March 2014. Parr was at his gym when Cross left to go to the meeting and when he returned to the gym partway through it. When Cross returned to the gym, Parr told him to pat the covert operative down to see whether he was wearing a wire. Parr also sent a text message to Cross, which Cross showed Danny during the second part of the meeting.
220 On 27 March 2014, Danny met with Kilinc and handed over $10,000 by way of protection money. Parr was at the gym with Kilinc in the hours before the meeting. Parr spoke with Kilinc on the morning of the meeting and the $10,000 cash was taken by Kilinc back to the gym.
221 Parr met with Phan at about 6.30 pm on 13 April 2014, to discuss the fallout of the trouble that was then occurring at the business.
222 On 16 April 2014, Phan, Kilinc and Hopes met with Danny at the Northbridge restaurant. Parr had met with Phan at the gym that morning and they discussed the meeting. Hopes attended this meeting at Parr's direction.
223 On the morning of 29 April 2014, before Kilinc met with Danny, Parr and Phan met at the gym and discussed the second payment of $10,000 in cash.
224 On 2 May 2014, Hopes, Ugle and Xanthoudakis went over to the business and Mr Hopes told C that he was from the Comancheros and he was there to check on the place. In doing so, Hopes was acting at Parr's direction.
225 It was no coincidence that Parr had meetings and telephone communication with the other offenders on or around the dates of each of the key meetings with the owners of the business. There are multiple references throughout all four of the recorded conversations that were before the jury to Parr being involved in the extortion, and to being the 'big, big boss'. Parr's continued involvement in the extortion during 2014 was behind the scenes, but he was orchestrating and directing how those below him should carry out the extortion.
Personal circumstances
226 The sentencing judge noted that Parr was 49 years of age, he was recently married and his wife was pregnant. He had two children from a previous relationship.
227 Parr was born in Burma, came to Australia at the age of 9 and has been fairly successful. He owns properties, a business and a fitness gym.
228 The sentencing judge referred to Parr's prior criminal record for public disorder, traffic, violence, firearms, dishonesty and drug related offences. While he noted that Parr's last serious conviction was in 2006, the sentencing judge concluded that Parr's prior record demonstrated he was not entitled to leniency for prior good character.
229 The sentencing judge said that Parr's cooperation with the prosecution during the trial and the admissions he made, which had the effect of significantly reducing the length of the trial, were mitigating factors.
230 The sentencing judge found that Parr did not show any evidence of remorse. He said that Parr had told a pack of lies during the trial and attempted to minimise his role and shift the blame to his co-offenders.
Sentence
231 The sentencing judge imposed a term of 9 years' imprisonment on Parr. He was made eligible for parole and the sentence was backdated to 3 October 2015 to take account of time spent in custody.
Appeal ground
232 Parr appeals against his sentence on the following ground:
The sentence of 9 years imprisonment that was imposed on the appellant was manifestly excessive having regard to the maximum sentence prescribed by law for the offence, the standards of sentencing customarily observed with respect to offences of that nature, the place which the criminal conduct occupies on the scale of seriousness of offences of that kind and the personal circumstances of the appellant.
233 Leave to appeal has been granted on this ground.
Submissions as to manifest excess ground
Parr's submissions
234 Parr's submissions refer to the seriousness of the offence (which it is accepted 'sits at a high level') and the mitigating factors and personal circumstances which the sentencing judge identified. Parr refers to the cases discussed above, which he accepts establish that, as a matter of fact, a non-custodial sentence would be exceptional for the offence of extortion. Parr says that he accepts that a sentence of immediate imprisonment is not plainly unreasonable or unjust in all the circumstances, but contends that the length of the sentence is manifestly excessive. Parr submits that the sentence imposed on him appears to be the longest sentence imposed on an offender in a case that has been considered on appeal for a single count of extortion committed in Western Australia or Queensland.
235 Parr submits that it is clear that the circumstances of his offending are more serious than the circumstances of the offending in all of the cases that have been decided on appeal in Western Australia. However, Parr submits that the sentence of 9 years' imprisonment imposed on him was manifestly excessive. He submits that the sentence is 'too long' because it is 'so out of kilter' with the sentences imposed in any of the other cited cases.
State's submissions
236 The State submits that in all the circumstances, including Parr's role at the apex of a well-organised and sophisticated criminal plan and the lack of mitigation (beyond cooperation in the trial process), he ought to have received a significant term of imprisonment. The State contends that Parr has failed to establish that the length of the term of imprisonment reflects implied error.
Disposition of manifest excess ground
237 Again, the above discussion of the relevant principles and the customary standards of sentencing and the seriousness of the offending in dealing with Phan's manifest excess ground applies to Parr's appeal. Parr was involved throughout the extortion and was, on the unchallenged findings of the sentencing judge, the mastermind behind the extortion plan. While he was involved in the background during 2014, he was directing his subordinates as to how the extortion was to proceed. He was directly involved in threatening L and C in 2013.
238 Unlike the other offenders, Parr did not plead guilty and so did not have the benefit of the mitigation which would flow from such a plea. His sentence of 9 years' imprisonment is comparable to Phan's, once account is taken of Parr's chief role in the extortion and the 15% reduction which Phan received under s 9AA of the Sentencing Act. Overall, Parr's antecedents were not significantly better than the other appellants, although he had not offended since 2006 and had established a gymnasium business.
239 Having regard to all relevant sentencing principles and all the circumstances (including the antecedents and mitigating factors to which the sentencing judge referred) the sentence imposed on Parr was not unreasonable or plainly unjust. We would dismiss Parr's appeal.
Appeal by Cross
Involvement in offending
240 The sentencing judge made the following findings about Cross' involvement in the extortion.
241 Cross was a nominee of the Comancheros at the time of the offences. At the sentencing hearing, Cross was no longer a member of the Comancheros.
242 The sentencing judge indicated that the aggravating factors to which he referred applied to Cross. He found that Cross became involved in the extortion after the 'firebombing' on 9 March 2014, and would have been aware that extortion was occurring in the context of threats of violence.
243 The sentencing judge found that, on 25 March 2014, Cross was involved in the street discussion with Parr, Phan and Kilinc before a text was sent instructing L to attend a meeting on the following day. Cross was also involved in negotiating extortion payments with L and Danny on 26 March 2014. Cross said his role was that of an enforcer or mediator, who would step in when business owners stopped paying protection money.
244 Cross made repeated threats of injury or detriment to the business. He also threatened to shut down the business if the protection money was not paid. It was made clear that this threat was being made on behalf of the Comancheros.
245 On 26 March 2014, Cross agreed that Danny would pay $10,000 either that day or the next, and that future payments would be $5,000 per week.
246 Cross told Danny to deal with him in the future. The sentencing judge was satisfied that this demonstrated Cross was in a position of sufficient authority to negotiate the terms of the protection money, which placed him in an important role in the extortion.
247 Cross also patted down Danny to satisfy himself that Danny was not wearing a wire.
248 On 27 March 2014, Cross told Danny to deal with Kilinc before Danny handed over $10,000 in protection money.
249 The sentencing judge found that Cross played an important role in the extortion.
Personal circumstances
250 The sentencing judge noted that Cross was 28 years of age, was married and had a 4-year-old child. He found that Cross seemed to have had a normal upbringing.
251 The sentencing judge noted references that had been provided from people associated with Cross, including his family and people who have employed him.
252 The sentencing judge said that Cross had a good employment history as a ceiling fixer.
253 The sentencing judge noted that Cross participated in a cognitive skills program while awaiting sentence and found that this demonstrated remorse. Cross was also found to have displayed remorse in the letter he wrote to the sentencing judge.
254 The sentencing judge referred to Cross' prior criminal record for drug and traffic related offences. He concluded that his prior record demonstrated that Cross was not entitled to leniency for prior good character.
255 The sentencing judge found that Cross' affiliation with the Comancheros was linked to his current offending.
Sentence
256 The sentencing judge sentenced Cross to 5 years' imprisonment. He was made eligible for parole and the sentence was backdated to 15 May 2014 to take account of time spent in custody. The sentencing judge reduced the head sentence by 15% as a result of Cross' plea of guilty, by reference to s 9AA of the Sentencing Act.
Appeal grounds
257 Cross appeals against his sentence on the following two grounds:
1. The learned sentencing Judge erred in the exercise of his sentencing discretion by taking into account irrelevant considerations, or by acting on a wrong principle, in imposing a sentence of 5 years imprisonment on the appellant.
Particulars
The learned sentencing Judge erroneously took into account, as aggravating factors, the following matters when imposing sentence on the appellant:
(a) The demands and threats were initially made in 2013 or early 2014 at a time when the only person present was one or other of the two female victims. (T2120)
(b) 20 to 30 members of the Comanchero wearing their colours, together with others, entered the business on 5 July 2013 when demands were made of the complainant for protection money. (T2120)
(c) The demands continued despite the complainant conveying to 'you' that she could not afford to pay the money and she became visibly emotional on 5 July 2013 in response to the demands for money. (T2121)
(d) The demands for protection money were persistent and continued over an extended period of time, from 3 April 2013 to 15 May 2014. It involved multiple meetings and interactions with the victims and with the covert operative. (T2122)
258 Leave to appeal has been granted on both grounds.
Submissions as to ground 1 (irrelevant considerations)
Cross' submissions
259 Cross refers to the definition of 'aggravating factors' in s 7 of the Sentencing Act, being factors which, in the court's opinion, increase the culpability of the offender. He submits that a factor cannot increase the culpability of an offender unless there is some basis for attributing to the offender responsibility for that factor. Cross submits that if a sentencing judge takes account of an aggravating factor in the absence of any express or implied finding that the offender is responsible for that factor, then the judge will have taken into account an irrelevant consideration or, at least, acted on a wrong principle.
260 Cross submits that the aggravating factors numbered 4, 6, 9 and 16 by the sentencing judge (and set out at [112] above) were not capable of increasing his culpability in the absence of an allegation or finding that he was involved in, or even knew about, the events referred to. In that manner, the sentencing judge is alleged to have made an express error in the exercise of his sentencing discretion.
261 In oral submissions in this appeal, counsel for Cross said that the reference to knowledge of the events in his written submissions was to knowledge of the events at the time they were occurring. He accepted that Cross knew that some of the events, including the 'firebombing', had occurred by the time of the meeting on 26 March 2014.
262 Counsel's submission was that, by stating that all of the aggravating factors applied to Cross, the sentencing judge found that Cross was involved in all of the events, including those that happened in 2013 (and not merely that he knew about them after the event). Counsel contended that the sentencing judge erred in so finding, when there was no proper basis for doing so.
State's submissions
263 The State points to the sentencing judge's finding that, although Cross only became involved after the firebombing, he 'would have been aware the extortion was occurring in the context of threats of violence'.
264 The State also says that the evidence of the appellant's recorded conversations with Danny indicated that he was aware of the events in 2013. The State says that Cross referred to Phan being disrespected, and things not having been sorted out, over the past 8 months. The State also points out that the incident when 20 - 30 Comancheros turned up at the business was referred to in Cross' discussion with Danny. The State says that this evidences his awareness of what had transpired beforehand.
265 The State also says that Cross accepts that he had knowledge of the firebombing, which (according to the State) was the most serious overt act of extortion. The State submits that even if Cross was personally ignorant of the degree to which L and C felt threatened by earlier overt acts committed prior to the firebombing, that is a relatively minor point in context. The State says that, by its very nature, the extortion would objectively create fear in the victims. The State says that, even if this ground is made out, the nature of the error would be relatively minor such that it could not be said that a different sentence should have been imposed.
Disposition of ground 1
266 As explained in oral argument, Cross' submission depends on reading the sentencing judge's remarks as finding that he was involved in events which occurred in 2013. When the sentencing judge's remarks are considered as a whole, they do not bear that meaning. The sentencing judge specifically found that Cross became involved only after the 'firebombing' on 9 March 2014. He made findings about Cross' involvement on 25 - 27 March 2014. The sentencing judge sentenced Cross on that basis, and not on the basis of any greater involvement.
267 In our view, when the sentencing judge referred to events of 2013 as aggravating factors applying to Cross, he was referring to Cross' knowledge of those events having occurred at the time he became involved in the extortion in March 2014. In relation to the 'firebombing', the sentencing judge observed that Cross would have been aware that the firebombing was occurring in the context of threats of violence. Cross' knowledge, at least in a general sense, of the events which preceded his involvement increased his culpability in at least two ways. First, it showed that he was willing to participate in a criminal plan which had these features. Secondly, the events of 2013 affected the impact which Cross' actions in demanding money with threats would be likely to have on the intended victims of the offence, which he must have appreciated at the time of making those demands and threats.
268 For these reasons we would dismiss ground 1.
269 Even if we had found that the sentencing judge incorrectly found that Cross was involved in the events which occurred in 2013, we are satisfied that no different sentence should have been imposed.15
Ground 2 (manifest excess)
270 The discussion of the manifest excess grounds advanced in the appeals by Phan, Hopes and Parr is relevant to this ground. Cross, like Hopes, was less culpable than Phan. The culpability of Cross was similar to that of Hopes. We have already described the involvement of Cross in the extortion.
271 Having regard to all relevant sentencing principles and all the circumstances (including the antecedents and mitigating factors to which the sentencing judge referred) we are far from satisfied that the sentence imposed on Cross was unreasonable or plainly unjust. In our view, this ground of appeal must be dismissed.
Orders
272 For the reasons explained above, the following orders should be made in each appeal.
Appeal by Phan (CACR 208 of 2015)
1. Leave to appeal on proposed ground 1 is refused.
2. The appeal is dismissed.
Appeal by Hopes (CACR 212 of 2015)
1. Leave to appeal on proposed grounds 2 and 3 is refused.
2. The application in the appeal dated 13 September 2016 is dismissed.
3. The appeal is dismissed.
Appeal by Parr (CACR 216 of 2015)
1. The appeal is dismissed.
Appeal by Cross (CACR 217 of 2015)
1. The appeal is dismissed.
1Marshall v The State of Western Australia [2015] WASCA 156 [46].
2Marshall [46],[111] - [112]; Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508 [57]; Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1 [51] - [52]; Beins v The State of Western Australia [No 2] [2014] WASCA 54 [54].
3Marshall [41], [115]; Rossi [52] - [53], [67] - [69].
4Atholwood v The Queen [1999] WASCA 256; (1999) 109 A Crim R 465 [10].
5Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 [20] - [22].
6Rossi [39].
7Rossi [37].
8Marshall [46], [114]; Thomas v The State of Western Australia [2014] WASCA 202 [17] - [18];
Abraham [57], [62]; Beins [57] - [58], summarised in LJH v The State of Western Australia [2016] WASCA 155 [43] - [46], [113].
9Manisco v The State of Western Australia [No 2] [2013] WASCA 190; Barry v The State of Western Australia [2012] WASCA 175 and The State of Western Australia v Amoore [2008] WASCA 65; (2008) 182 A Crim R 165.
10R v Drinkwater [2006] QCA 82.
11Perry v The State of Western Australia [2016] WASCA 139.
12Perry [25].
13 To similar effect see Barry [27] and Amoore [85].
14R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 [19].
15 Section 31(4)(a) of the Criminal Appeals Act 2004 (WA).
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