Qian v The Queen
[2012] NSWCCA 283
•20 December 2012
Court of Criminal Appeal
New South Wales
Case Title: Qian v R Medium Neutral Citation: [2012] NSWCCA 283 Hearing Date(s): 6 September 2012 Decision Date: 20 December 2012 Before: Simpson J at [1]; McCallum J at [45]; Bellew J at [46] Decision: Leave to appeal granted.
Appeal dismissed.Catchwords: CRIMINAL LAW - appeal against sentences - pleas of guilty - robbery whilst armed with offensive weapon, inflicting grievous bodily harm - robbery whilst armed with offensive weapon, causing wounding - aggravated detain person for advantage (in company) - robbery whilst armed with offensive weapon - Form 1 offences - dishonestly obtaining money - carried in a conveyance taken without the consent of the owner - approach to standard non-parole period after Muldrock v The Queen [2011] HCA 39; 244 CLR 120 - whether undue emphasis on standard non-parole period - no error in approach to use of standard non-parole period - appeal dismissed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Cases Cited: Bolt v R [2012] NSWCCA 50
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Way [2004] NSWCCA 131; 60 NSWLR 168Category: Principal judgment Parties: Jiang Qian (Applicant)
Regina (Respondent)Representation - Counsel: Counsel:
N J Parsons (Applicant)
R Herps (Respondent)- Solicitors: Solicitors:
David H Cohen (Applicant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)File Number(s): 2009/56365; 2009/76003; 2009/127694 Decision Under Appeal - Court / Tribunal: District Court - Before: Sides DCJ - Date of Decision: 16 March 2010 - Court File Number(s): 2009/56365; 2009/76003; 2009/127694
JUDGMENT
SIMPSON J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court on 16 March 2010, following his pleas of guilty to six charges, and his acknowledgement, pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"), of his guilt of a further three offences listed on a Form 1.
The charges to which the applicant pleaded guilty, the maximum penalties provided by statute, and the sentences imposed, are set out in the table below.
SentenceSentence
Expiry date
Sentence Expiry date Count Maximum penalty Standard non-parole period (Sentencing Procedure Act, Pt 4 Div 1A (where applicable)) Head sentence Non-parole period Commencement date Non-parole period Head sentence 1 robbery whilst armed with offensive weapon, inflicting grievous bodily harm 08.10.2006 25 years (Crimes Act 1900, s 98) 7 years 6 years 6 months 4 years 31.03.2011 30.03.2015 30.09.2017 2 robbery whilst armed with offensive weapon, causing wounding 25.11.2006 25 years (Crimes Act, s 98) 7 years (taking into account Form 1 offences) 8 years 4 years 31.03.2013 30.03.2017 30.03.2021 3, 4 aggravated detain person for advantage (in company) 25.11.2006 20 years (Crimes Act, s 86(2)(a)) N/A 4 years 6 months 3 years 31.09.2010 30.09.2013 30.03.2015 5 robbery whilst armed with offensive weapon 25.11.2006 20 years (Crimes Act, s 97(1)) N/A 4 years 6 months 3 years 31.09.2010 30.09.2013 30.03.2015 6 robbery whilst armed with offensive weapon 18.12.2006 20 years (Crimes Act, s 97(1)) N/A 4 years 2 years 3 months 31.03.2009 30.06.2011 30.03.2013
The Form 1 offences were two of dishonestly obtaining money and one of allowing himself to be carried in a conveyance taken without the consent of the owner, committed on 25 November 2006, in conjunction with the offences the subject of Counts 2-5.
The aggregate sentence imposed upon the applicant was imprisonment for 12 years with a non-parole period of 8 years to commence 31 March 2009, the date on which the applicant was arrested.
The facts
As can be seen from the table above, the offences were committed on three dates spanning a little over two months in 2006.
The facts were put before the sentencing judge by way of three agreed Statements of Fact.
Count 1
The first offence was committed at about 7.40pm on 8 October of that year, at Parramatta. At that time the victim, Wenhong Zhan, a Chinese student, was returning home on his bicycle. The applicant was nearby, as was a co-offender (a man called Tran). Mr Zhan alighted from his bicycle to unlatch the gate to his home. The applicant set upon him, grabbed him by the shoulder, and punched him in the head. Mr Zhan struggled and screamed. The applicant produced a knife and stabbed Mr Zhan in the stomach, causing severe pain. He left the knife embedded in Mr Zhan's stomach. Mr Zhan was in fear for his life. The applicant attempted to remove the knife, but Mr Zhan prevented this, fearing a continuation of the stabbing. The applicant attempted to stifle Mr Zhan's screams by putting his hand over Mr Zhan's mouth.
The applicant then attempted to remove a backpack Mr Zhan was carrying. A struggle ensued with the applicant attempting to remove the backpack with one hand, the knife with the other. Mr Zhan continued to fear that his life would be in greater danger if the applicant regained possession of the knife. Both men fell to the ground. The knife remained embedded in Mr Zhan's stomach. As Mr Zhan struggled to get to his feet, the applicant kicked him in the chest.
The applicant took possession of Mr Zhan's backpack and ran off with Tran. Mr Zhan was admitted to Westmead Hospital. He was suffering from a stab wound to his central abdomen, a deep laceration to a finger requiring sutures, and lesser lacerations to both hands.
Counts 2-5 ("the Eastwood offences")
All these offences were committed as part of a single enterprise on 25 November 2006 (a Saturday) at premises at Eastwood that operated as a massage parlour and brothel.
At about 2pm on that day, the applicant and a co-offender (Ka Ho Choi) travelled to the vicinity of the massage parlour, which they proceeded to observe at different times. Choi was in possession of a bag that contained knives, a hammer, and glue. They intended to use the glue to disguise their fingerprints.
At about 8.50pm on the same day, the applicant and Choi attended at the premises. Choi knocked on the door, while the applicant concealed himself from view through a peephole in the door by squatting on the ground. When the proprietor, Quin Gu (a female) opened the door, the two men entered. Choi was armed with a knife and handed a second knife to the applicant. Choi covered the eyes of Ms Gu and escorted her into a bedroom. The applicant brandished his knife in the direction of a customer (male) and ordered him into the same bedroom. The two were ordered to lie on the ground. The applicant bound their hands and feet with packing tape and covered their eyes and mouths with the tape. He ordered them to say nothing and not move. At this time he was in possession of the hammer. While Choi searched the premises, the applicant demanded to know where the money was located. Ms Gu told him (through the packing tape that was binding her mouth) that it was in the kitchen. One of the men struck her to the side of her face.
The applicant took Ms Gu to the kitchen, where she identified the drawer containing the money. He returned Ms Gu to the bedroom. As he did so, he realised that she was able to see through the tape binding her eyes, and applied more tape to them to obliterate all vision. He rebound her feet so that she was unable to move.
Choi checked through the wallet of the customer, and removed three ATM cards. He demanded to know the PIN of the card that had been identified as being in credit. The applicant took the card and went to a nearby hotel where, after several unsuccessful attempts, he was able to withdraw a total of $600. He returned to the massage parlour. Ms Gu and the customer were still under the control and supervision of Choi. One of the men struck the customer to the head with the hammer, causing pain and wounding, and a momentary loss of consciousness. At some stage one of the men disconnected the telephone.
The two men then left the premises, taking several sets of car keys, Ms Gu's handbag containing money, telephones, keys and other items. They took some jewellery from the customer. They used the keys to unlock a car that belonged to Ms Gu. They left the scene, Choi driving the stolen car. They took about $1000 that was in a folder near the passenger seat. They abandoned the car in the Carlingford area.
When Ms Gu and the customer were able to do so, they contacted police. The customer was admitted to Ryde Hospital, treated for lacerations, and discharged early the following morning.
The robbery of the customer, with the wounding, constitutes the offence the subject of Count 2; the binding, gagging and detention of the customer and Ms Gu constitute the offences the subject of Counts 3 and 4; the robbery of Ms Gu while armed with the knife constitutes the offence the subject of Count 5.
Count 6 ("the Waverton offence")
The offence the subject of Count 6 was committed in the morning of 18 December 2006, in a convenience store at Waverton.
The applicant and Choi placed themselves on a bench a few metres from the entrance to the store. They were able to observe that the store owner and his wife left, leaving only a female employee (Ms Kei Lan Mau). The applicant and Choi entered the store. One took a bottle of water from a refrigerator, and asked Ms Mau a question. She walked towards him to help him. The other man closed the door of the shop, and using gaffa tape affixed an A4 sized sign reading "Be back in 15 mins". One of the men produced a large sheath knife and told Ms Mau not to shout. He turned her around and pushed her to the rear of the store. The two men then tied Ms Mau's hands behind her back, again using the gaffa tape. They forced her to sit down and tied her legs. They demanded to know where the cigarettes were kept. Initially, she said that she did not know, but then told them they were in a box. One of the men ordered her to close her eyes and blindfolded her, again using the gaffa tape.
One of the men demanded to know where the key (presumably to the cigarette storage) was. She said she did not have it and that it was in the possession of the store owner. One of the men placed his hands around her throat, obstructing her airway. The applicant reached into her back pocket and removed keys. Gaffa tape was placed over her mouth. One of the men said "I won't hurt a lady".
The men then jumped over a counter and stole cigarettes valued at $14,300, telephone cards valued at $1300, and about $7000 in cash.
The applicant was arrested more than two years later, on 31 March 2009, in respect of the Eastwood offences. When interviewed, he made full admissions of those offences and said that he had committed them with a friend at the instigation of an Asian male he identified only as "Charlie". He said that Charlie told him that the owner of the massage parlour owed him money and that the applicant should do whatever was necessary to recover the money. He said that he and Choi deliberated for some time over planning the robbery of the premises. In the interview he admitted that the victims were bound, but denied that packing tape was used. He told police that on the day after the robbery he and Choi had gone to see Charlie, and that the proceeds of the robbery were divided between them. He said that Charlie expressed concern that the stolen vehicle had been abandoned at Carlingford, and asked them to bring it to Chatswood. This they did, leaving it in a unit complex in that suburb.
The applicant's personal circumstances
The applicant gave evidence in the sentencing proceedings. A psychiatric report contained some additional information.
The applicant was born in China in March 1987 and was 19 years of age at the time of the offences. He has no prior criminal record. He came to Australia with his mother at the age of 8 or 9. He had never had any contact with his father, and first met him in 2005. The applicant had little English, but attended local primary and high schools. His mother was an acupuncturist, but borrowed money to invest in an import business. The business failed, leaving them in severe financial difficulties. As a result, the applicant left school in 2005 (at the age 18) to obtain work. He had a variety of forms of employment, including fruit picking in Queensland. In about 2006, his mother left Australia and lived in China for a time, without telling the applicant where she was.
For a long time the applicant heavily consumed alcohol but ceased that prior to his arrest and incarceration. At the age of 15 he began using illicit drugs, starting with marijuana and progressing to methamphetamine, ecstasy and ketamine. He reached the point where his drug use consumed all of his earnings. He ceased drug use at the date of the last offence, at the instigation of a girlfriend.
In 2006 he came in contact with the man called "Charlie". Charlie was good to the applicant, helping him with money and friendship. The applicant began working for Charlie in his coffee shop, although for no pay. It was Charlie who instigated the Eastwood robbery. As the applicant told police, Charlie had told him that the proprietors of the massage parlour owed him money, and asked the applicant and Choi to assist him to have it repaid.
The applicant said in evidence that he committed the Parramatta robbery (on Mr Zhan) with another co-offender (Tran) at the instigation of Tran. He said that he agreed to participate because he needed money for living and for drugs. He denied that he had stabbed Mr Zhan (although in the agreed facts it was explicitly stated that he did).
The psychiatric report added very little to the information before the court.
The Remarks on Sentence
Judge Sides set out the circumstances of each of the offences in a way that has not attracted critical comment.
He made reference to the applicant's drug addiction, and accepted that his addiction would have impaired his judgment in connection with his relationship with Charlie.
His Honour accepted that the pleas of guilty had been entered at the earliest opportunity, and reduced the sentences that otherwise would have been imposed by 25 percent. He also accepted that the applicant's expressions of remorse and insight were genuine, and that that, combined with the guilty pleas, indicated his acceptance of responsibility for his offences, and acknowledgment of the harm and injury they caused his victims. He said that the court therefore extended leniency.
Having regard to the sole ground of appeal, to which I will come, it is useful to extract two passages from the Remarks on Sentence. With respect to the first offence (Mr Zhan), his Honour said:
"Bearing in mind it is an aggravated form of the offence the court considered the Henry guideline when considering offence 1. Having considered it in accordance with R v Way the court concluded that it falls just below the middle of the range of objective seriousness for offences under this provision. Because of that, his guilty plea and the finding of special circumstances the court did not impose the standard non-parole period but used it as a guidepost."
In relation to Count 2, the robbery with wounding of the customer of the massage parlour, his Honour said:
"Bearing in mind it is an aggravated form of the offence, the court considered the Henry guideline when considering offence 2. Having considered that offence in accordance with Way the court concluded that it falls towards the upper end of the middle range of objective seriousness for offences under this provision. However, because of his guilty plea and the finding of special circumstances the court did not impose the standard non-parole period for Offence 2 but used it as a guidepost."
The reference to "the Henry guideline" is a reference to the decision of this Court in R v Henry [1999] NSWCCA 111; 46 NSWLR 346; the reference to R v Way is a reference to the decision of this Court in R v Way [2004] NSWCCA 131; 60 NSWLR 168. The references to "special circumstances" are references to circumstances justifying departure from the ratio between the head sentences and the non-parole period specified in s 44(2) of the Sentencing Procedure Act. His Honour did not state what those circumstances were, but the finding is reflected in the proportions in each of the sentences imposed, as well as in the aggregate sentence.
His Honour was, properly, very conscious that the offences, particularly the Eastwood offences, involved a considerable degree of planning, and took place over a substantial period. Equally, the Waverton offence (Count 6) bore the hallmarks of significant planning and preparation (the two offenders waited outside the convenience store until a female employee was left alone, they were armed with a knife, and equipped with a prepared sign to explain the closed door of the store).
In his favour, his Honour took into account that the applicant had been at large for more than two years after the offences, with no further offences, and had taken steps towards rehabilitation. He also took into account that the offences had been committed while the applicant's judgment was impaired by reason of drug addiction, and while under the malign influence of "Charlie".
His Honour then proceeded to impose the sentences set out above. The reductions in the non-parole periods allowed by reason of the finding of special circumstances were, in fact, of considerable dimensions.
The application for leave to appeal
The sole ground of appeal is framed as follows:
"His Honour erred in the application of Division 1A of Part IV of the Crimes (Sentencing Procedure) Act 1999 for offences 1 and 2 by attaching to the standard non-parole periods a significance that the statutory scheme does not justify."
In written submissions counsel for the applicant relied heavily upon the decision of this Court in Bolt v R [2012] NSWCCA 50. There, McCallum J (with whom Beazley JA and Harrison J agreed) considered the provisions of Pt 4 Div 1A of the Sentencing Procedure Act in the light of the decision of the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120.
In short, in Muldrock the High Court held that it would be erroneous, when sentencing in respect of an offence to which Pt 4 Div 1A applies, to take, as a "starting point", the specified standard non-parole period and to increase or decrease the sentence by reference to other circumstances relevant to the proceedings. As in sentencing for offences to which Div 1A does not apply, the correct approach is to identify all relevant factors, including the prescribed standard non-parole period, and make a value judgment as to the appropriate sentence that results. This represented a significant departure from the approach that had previously been taken by this Court to offences subject to a standard non-parole period. Since 2004, this Court had followed the interpretation given to Pt 4 Div 1A in Way. In Muldrock this interpretation was expressly said to have been wrong.
The applicant was sentenced on 16 March 2010. Judgment in Muldrock was delivered on 5 October 2011. It could, therefore, hardly be surprising if the sentencing judge in this case followed what were then the dictates of Way.
The question for present determination, however, is whether, in doing so, he did, as is alleged in the ground of appeal, give undue emphasis to the standard non-parole period specified in the legislation.
In the written submissions, counsel sought to compare the sentences imposed with the standard non-parole periods prescribed. The difficulty is that in doing so, the comparison was made between the head sentences imposed and the standard non-parole periods. That is an incorrect approach. It does not compare like with like. The correct comparators are the standard non-parole periods, and the non-parole periods actually imposed.
When examination is made of the non-parole periods actually imposed, it can be seen that they depart significantly from the standard non-parole period of 7 years in respect of each of these offences. In no way could it reasonably be said that his Honour took the standard non-parole period as a starting point, or that he gave it undue emphasis. Indeed, in each of the passages upon which reliance was placed, he specifically said that he relied upon the specified standard non-parole period only as a guidepost. In respect of the first offence, that was because he had concluded that that offence fell just below the mid-range of objective seriousness, the plea of guilty and the finding of special circumstances. In the case of the second offence, it was because of the guilty plea and the finding of special circumstances.
It is not incorrect for a sentencing judge to rely upon the standard non-parole period in this way. In my opinion, it is quite plain that his Honour did not misuse the standard non-parole period. He approached the sentencing decision precisely as required, in accordance with, although in advance of, Muldrock.
I am satisfied that error of the kind pleaded has not affected the sentencing decision. I would grant leave to appeal, but dismiss the appeal.
McCALLUM J: I agree with Simpson J.
BELLEW J: I agree with Simpson J.
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