Qing An v R - [2007] NSWCCA 53

No judgment structure available for this case.

Appeal Outcome: Special leave refused by the High Court - 5 October 2007

New South Wales

Court of Criminal Appeal

CITATION: Qing An v Regina [2007] NSWCCA 53
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 4 August 2006

JUDGMENT DATE:
7 March 2007

JUDGMENT OF: Beazley JA at 1; Hulme J at 122; Hislop J at 201

DECISION: See paragraph 121.

CATCHWORDS: CRIMINAL LAW – irregularity – consideration of prejudicial evidence by jury during deliberation – failure to discharge jury – whether trial judge gave appropriate directions - SENTENCING – application of s 44 Crimes (Sentencing Procedure) Act 1999 (NSW) – term of sentence followed by non-parole period – whether trial judge failed to correctly impose sentence - SENTENCING – grouping of offences – sentencing for individual offences – whether trial judge erred in not differentiating between offences within grouping – accelerating criminality - whether trial judge erred in having regard to date of offence not seriousness in imposing sentence - SENTENCING – parity in sentencing co-offenders – concept of fairness and legitimate sense of grievance - SENTENCING – comparable sentence - promotion of consistency in sentencing – whether sentence manifestly excessive compared to sentence for similar offences under Crimes Act 1900 (NSW) s 97(1) - SENTENCING – totality - accumulation of sentence – accumulation of sentence as a special circumstance

LEGISLATION CITED: Crimes Act 1900 (NSW) ss 97(1), (2)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 33, 44
Criminal Appeal Act 1912 (NSW) ss 6, 6(3), 10(1)(a)

CASES CITED: Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 581
Festa v R (2001) 208 CLR 593; [2001] HCA 72
Johnson v The Queen (2004) 78 ALHR 616; [2004] HCA 15
Lowe v The Queen (1984) 154 CLR 606
Markarian v The Queen (2005) 79 ALJR 1048; [2005] HCA 25
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
Postiglione v The Queen (1996) 189 CLR 295
R v Baker [2000] NSWCCA 85
R v Bavadra (2000) 115 A Crim R 152; [2000] NSWCA 292
R v Budd [2002] NSWCCA 302
R v El-Andouri [2004] NSWCCA 178
R v Gorman [2002] NSWCCA 516
R v Henry & Ors (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v Hung Lo (2005) 159 A Crim R 71; [2005] NSWCCA 436
R v Itamua [2000] NSWCCA 502
R v K (2003) 59 NSWLR 431; [2003] NSWCCA 406
R v Karaman (2002) 128 A Crim R 72; [2002] NSWCCA 48
R v King [1999] NSWCCA 251
R v Lansdell (NSWCCA, 22 May 1995, unreported)
R v Marsland (NSWCCA, 17 July 1991, unreported)
R v Olivier (NSWCCA, 15 September 1993, unreported)
R v Rudkowsky (NSWCCA, 15 December 1992, unreported)
R v Simpson (1992) 61 A Crim R 58
R v Street [2005] NSWCCA 139
R v Swadling [2004] NSWCCA 421
R v Timmis [2003] NSWCCA 518
R v Uasi [1999] NSWCCA 306
R v Yin [2005] NSWCCA 138
Wilde v R (1988) 164 CLR 365

PARTIES: Qing An (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2006/747

COUNSEL: M Ramage QC; I McLachlan (Appellant)
P Barrett (Respondent)

SOLICITORS: Kings Lawyers (Appellant)
Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/1173

LOWER COURT JUDICIAL OFFICER: Dodd DCJ

LOWER COURT DATE OF DECISION: 14 December 2004

CCAP 2006/747

BEAZLEY JA
HULME J
HISLOP J
7 March 2007

QING AN v REGINA

HEADNOTE

Facts

The appellant was found guilty by a jury of eight counts of robbery whilst armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900 (NSW). An offence under s 97(1) carries a maximum penalty of imprisonment of 20 years. His Honour, Judge Dodd, sentenced the appellant to a total effective sentence of 12 years 3 months with a non-parole period of 10 years. The offences had been committed in the company of another offender, who pleaded guilty and was sentenced to 11 years with a non-parole period of 8 years 3 months for these and other offences.

The appellant appeals against his conviction on the basis that an irregularity occurred during the course of the jury’s deliberation when the jury found a syringe in the pocket of the appellant’s jacket which was an exhibit in the case and that his Honour erred in failing to discharge the jury. The appellant also sought leave to appeal against his sentence. In particular, the appellant contended that his Honour erred in failing to correctly apply the Crimes (Sentencing Procedure) Act 1999 (NSW), failing to impose individual sentences in respect of each offence and that the sentences imposed were manifestly excessive having regard to the principles of totality, parity and the “general tariff” for sentences for the offences of which the appellant was convicted.

Held: On conviction

Per Beazley JA (Hislop J agreeing):

(i) When an irregularity has occurred in the course of the jury’s deliberation a court must ask itself whether it can be satisfied that the irregularity has not affected the verdicts, and that the jury would have returned the same verdict if the irregularity had not occurred. This question is to be answered in light of the directions which the trial judge gave when the irregularity came to the judge’s attention.

R v Marsland

R v K

R v Rudkowsky

R v Olivier

R v Lansdell

(ii) The directions given by his Honour were adequate and there was no error in not discharging the jury.

Hulme J dissenting:

(iii) The system recognises that there are bounds beyond which a jury cannot be expected, or asked to, to go. For this reason, the criminal appeal courts have developed the notion that no direction to the jury could have cured the damage. Implicit in this is the recognition that there are occasions when the legal system accepts that a jury will not, or cannot, be expected to, comply with the directions of the trial judge. The circumstances here fell within that exceptional category. As a result, no directions were capable of overcoming the prejudice which arose from the presence of the syringe.

R v Lansdell

R v K

(iv) Even if error is found, s 6 of the Criminal Appeal Act 1912 (NSW) provides that the Court may dismiss an appeal if it considers that no substantial miscarriage of justice has actually occurred. The evidence against the appellant on the charges of which he was convicted was so compelling that conviction was inevitable. Therefore, it is appropriate to apply the proviso of s 6 of the Criminal Appeal Act.

Wilde v R

Festa v R

Held: On sentence
Per Beazley JA (Hulme and Hislop JJ agreeing):

(v) When sentencing the appellant, s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) required his Honour first to set the term of the sentence and then set the non-parole period in imposing sentence in respect of each offence. His Honour correctly applied s 44 when imposing sentence.

(vi) The foundation for the concept of parity of sentencing co-offenders lies in considerations of fairness and whether a legitimate sense of grievance is engendered by comparison of the offender’s sentence and that of any co-offender. Having regard to the equal involvement of the appellant and his co-offender in the commission of the offences and to their individual overall circumstances, the appellant could not have a legitimate sense of grievance in relation to his sentence.

Postiglione v The Queen

Lowe v The Queen

Per Beazley JA: (Hislop J agreeing):

(vii) A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence.

Pearce v The Queen

Johnson v The Queen

(viii) In this case, the trial judge sentenced separately for each offence. However, his Honour imposed an escalating scale of sentence, which although not wrong in principle, resulted in a manifestly excessive sentence.

R v Gorman

R v Swadling

R v Bavadra

(ix) While an understanding of sentences imposed by courts for the same offence by different offenders is necessary to promote consistency, the court is ultimately to consider the sentence to be imposed on the individual offender.

R v El-Andouri

R v Merritt

R v Henry & Ors

(x) As there was no significant difference in the seriousness of each offence, the individual sentences imposed of 7 years, 8 years and 9 years respectively for counts 2 and 5, 6-8 and 9 and 10 were not to be accounted for by the fact of accelerating criminality, and revealed error in the sentencing process.

Pearce v The Queen

(xi) The overall effective sentence imposed was also manifestly excessive.

(xii) The extent of the partial accumulation of sentences imposed by his Honour contributed to the overall effective sentence imposed being manifestly excessive.

(xiii) The trial judge was not obliged to find special circumstances because of the accumulation of sentences.

R v King

R v Simpson

R v Street

R v Hung Lo

R v Baker

Per Hulme J dissenting:

(xiv) In R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111, the court provided a guideline as to the appropriate sentence for offences having a number of identified characteristics. Having regard to the differences between the appellant’s circumstances and those identified by the court, it is impossible to say that the sentences for counts 2 and 5 are manifestly excessive. The circumstances of the appellant were substantially worse and require a higher sentence for each offence.

(xv) In sentencing the appellant the trial judge fell into error in finding that there was no evidence that the appellant committed the offences for the purpose of obtaining funds to fund a drug addiction.

(xvi) The sentences of 8 and 9 years imposed on counts, 6-8 and 9 and 10 respectively were outside the legitimate exercise of his Honour’s discretion. The offences the subject of these counts were too far from a “worst case” of offences under s 97(1) of the Crimes Act 1900 (NSW) to justify such a penalty.

CCAP 2006/747

BEAZLEY JA
HULME J
HISLOP J
7 March 2007

QING AN v REGINA

Judgment

1 BEAZLEY JA: On 25 October 2004, Qing An (the appellant) was found guilty by a jury of eight counts of robbery whilst armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900 (NSW) (the Crimes Act). An offence under s 97(1) carries a maximum penalty of imprisonment for 20 years.

2 The offences occurred between 16 August 2002 and 1 September 2002. Each involved the robbery of cash and personal effects, such as watches, mobile phones and jewellery from massage parlours in various locations in Sydney. The offensive weapon used in three of the offences (being Counts 1, 2 and 5) was a knife. The offensive weapon in the remaining five offences (being Counts 6-10) was an imitation pistol.

3 The appellant had been charged with a total of ten offences. He pleaded not guilty to each offence and was tried by a jury before his Honour Judge Dodd in the Sydney District Court. During the course of the trial, his Honour directed verdicts of not guilty in respect of Counts 3 and 4. The guilty verdicts were returned on the remainder, as I have indicated. His Honour Judge Dodd sentenced the appellant to a total effective sentence of 12 years 3 months with a non-parole period of 10 years (although in his Remarks on Sentence his Honour stated he had sentenced the appellant to a total aggregate sentence of 13 years 3 months).

4 The appellant appeals against his conviction on the basis that an irregularity occurred during the course of the jury's deliberation and that the trial judge erred in failing to discharge the jury.

5 The appellant also seeks leave to appeal against sentence.

6 The appeal and application for leave to appeal against sentence were filed out of time. The appellant seeks an extension of time in relation to each.

7 All but one of the offences were committed in the company of John Shaopeng Yin (Yin). Yin pleaded guilty to the offences, which were charged differently to those laid against the appellant, and was sentenced by her Honour Judge Tupman in the Parramatta District Court on 10 December 2003, to a term of imprisonment of 11 years with a non-parole period of 8 years 3 months. It will be necessary to return to Yin’s sentence as the appellant claims that there was a lack of parity as between his sentence and that imposed on Yin so as to give rise to a legitimate sense of grievance.

Application for extension of time

8 On 20 March 2006, the appellant filed a notice of application for an extension of time in which to file a notice of appeal and to file an application for leave to appeal against sentence. The application was accompanied by a letter from his solicitors. Subsequently, the contents of that letter have been amplified in an affidavit of Camilla Taylor, solicitor. Ms Taylor, in effect, provides a chronology of the steps taken in relation to the bringing of an appeal following the appellant’s conviction. In brief, those steps involved the filing of a notice of intention to appeal, lodged on 20 December 2004 and a request shortly thereafter to the District Court of New South Wales requesting a transcript. Only a portion of the transcript was provided, requiring a follow-up letter. On 22 March 2005, senior counsel was briefed to advise on the prospects of success.

9 In July 2005, senior counsel advised that there was a jury irregularity. In his advice, senior counsel drew attention to the fact that certain material was not included in his brief, including trial exhibits and the outcome of a series of interlocutory applications. Senior counsel advised that the latter material might reveal further grounds for appeal. Ms Taylor said that a decision was taken that the appeal would be filed, notwithstanding the absence of material, and that the grounds of appeal would be revisited at a later time, should that become necessary.

10 At some time between July and October 2005, and I infer, closer to October, senior counsel advised that he was not able to complete the matter due to his work load. Thereafter, following a grant of legal aid in October 2005, alternate senior counsel was briefed. In February 2006, that senior counsel informed the appellant’s solicitors that he was unable to complete the work due to his busy work load. The matter was then returned to the original senior counsel briefed in the matter. In February 2006, senior counsel prepared grounds of appeal in relation to the jury irregularity alone, as the material previously sought from the District Court remained outstanding. However, the notice of appeal was then filed, notwithstanding the absence of this material, which was received some time later.

11 The appellant had 28 days in which to appeal against conviction and to make an application for leave to appeal against sentence: the Criminal Appeal Act 1912 (NSW) (the Criminal Appeal Act), s10(1)(a). The solicitors filed a notice of intention to appeal on 20 December 2004. This was 28 days outside the 28 day time period specified in s 10(1)(a). Thereafter, appropriate steps were taken to obtain the relevant material necessary for the purposes of preparing the Notice of Appeal. However, there was no evidence before the Court of any steps taken to follow up senior counsel briefed to draft the Notice of Appeal. Likewise, once the brief was returned by the first senior counsel and a second senior counsel briefed, there was no evidence of steps taken to seek to ensure that the Notice of Appeal was drafted promptly. Nor is there any evidence in this case of communication with the appellant advising the appellant of the present status of the matter, or from the appellant requesting advice as to what the present status was. Overall, save for the filing of the notice of intention to appeal and the application for transcript, the approach taken to filing the appeal documents might properly be described as dilatory.

12 Having said that, the cause for the delay was very much the failure of both senior counsel to attend to the brief promptly. Had it not been for the fact that the notice of intention to appeal was filed within a time that was likely to attract the exercise of the Court’s discretion to extend the time, and that the request for the transcript was made within a reasonable time, I would have been inclined to refuse the extension of time. However, given that those steps were taken in a time that does not attract censure, and taken in conjunction with the fact that the appeal raised an arguable question, I would extend the time in which to file the appeal and the application for leave to appeal against sentence until 20 March 2006.

Appeal against conviction

13 The trial commenced on 5 October 2004. The jury commenced deliberating on Friday 22 October 2004, and returned the following Monday, 25 October 2004, to continue their deliberations.

14 The jury had with it in the jury room a grey-coloured suit jacket (Exh U), which was identified by witnesses at the trial as being like the jacket worn by the appellant during some of the robberies. The jacket had been seized from the appellant's home when it was searched at the time of the appellant's arrest on 25 October 2002.

15 The appellant had given evidence in his defence. During the course of his evidence he was asked about the jacket. He said that he and his brother had purchased the jacket from a store called, as he could remember it, "Boys to Men" at Fairfield, "seven, eight months or one year before I was arrested". He said that both he and his brother wore the jacket because they were both the same height. In his cross-examination, the appellant agreed that in August 2002, when the offences were being committed, his brother was in Melbourne.

16 Prior to 11am on the morning of 25 October 2004, the trial judge informed the Crown Prosecutor and the solicitor for the accused that he had been advised by the Court Officer that the jury had informed him that "when they'd upended the jacket … a syringe fell out".

17 The appellant's solicitor thereupon made an application for the discharge of the jury. He said that it was “highly prejudicial” to have such an item before the jury; that there was no evidence of anything relating to a syringe, nor was there any evidence of an illness that related to the use of a syringe that might have explained its presence. He submitted that it would have become embedded in the mind of the jury that the appellant may be involved in drugs and that the jury might then deduce that the appellant had a motive for the robbery.

18 The application was opposed by the Crown Prosecutor. He acknowledged that the syringe did not form any part of the evidence tendered by the Crown and that it was only the jacket that had been tendered in the Crown case. He also noted that there had been no evidence that the appellant was in any way using drugs and that the only evidence in the trial in relation to drugs was that the appellant had heard "on the grapevine" that his co-accused Yin was possibly a drug user. He submitted that the matter could properly be dealt with by an appropriate direction. The Crown Prosecutor outlined the direction which he submitted would suffice, including that the jury were not to speculate as to why the syringe was in the jacket. He suggested that the trial judge could give a number of reasons why it was not proper to speculate, including the fact that the syringe could have belonged to somebody else or it could have been used, for example, for proper medical purposes.

19 The appellant's solicitor resisted the proposition that the irregularity could be dealt with by a direction to the jury. He pointed out that there were not many medical conditions in which people legitimately self-medicate using a syringe except perhaps, diabetes; that drug users and drug addicts are rated lowly in public perception; and, relevantly, that given the evidence relating to Yin's drug use, the finding of the syringe in the pocket of the appellant's jacket linked Yin and the appellant in a way that no evidence during the trial had done so far.

20 The trial judge decided that the prejudice that was potentially caused by the finding of the syringe in the jacket could be cured by an appropriate direction to the jury and thus gave the following direction:

"Members of the jury thank you. I've brought you back into court because I need to address a matter which has arisen this morning. You have quite rightly brought to the attention of the Court through the court officer that you found a syringe, which I gather fell out of the jacket which is exhibit U. I've had the syringe identified for the purpose of the court record and it's marked as MFI 14. I have certain things to say to you about that find by you. And therefore I'd ask you to listen very carefully to what I now have to say to you about that.

Simply put you must ignore that find. I know that might be difficult to do. It's very easy for me to say, but in your deliberations about this case you must ignore it. But I can't leave it just at that. I should in fairness to you give you an explanation as to why I say that. The first reason why I say that is that it is not evidence in this case. It was not part of the tender, by the Crown, of that jacket. It was never intended to be part of the tender by the Crown of that jacket and certainly not consented to as part of the tender by Mr Little on behalf of the accused. I should just say Mr Little is not able to be present in court right now, but his instructing solicitor, Mr Watterson, is here on his behalf representing the accused at the moment. So for that reason, as a matter of law, I direct you to ignore that finding of the syringe.

Secondly, it never was any part of the Crown case against the accused that anything connected with a syringe, and this syringe in particular, should be in evidence. I have to be realistic, it may have occurred to some of you that this syringe has been used or could be used in relation to drug use. It has never been part of the Crown case that the accused was a drug user or was connected with drug use or that any of the crimes alleged against him had any relationship to drug use. That has never been part of the Crown case and therefore in particular you must put that out of your minds. You must not speculate about that or any other possible reason for the syringe being in the jacket or with the jacket, I don't know exactly where it was. But you must put that or any other speculation out of your minds.

It is possible of course for syringes to be used legitimately for self-medication in respect of some medical conditions. You've heard that the accused was in fact ill during the period that these armed robberies took place. That of course is one possible explanation, if indeed it was his. There is absolutely no evidence, however, that it was his or that he ever knew that it was there. It's possible that someone else may have put the syringe in that jacket, either before the police seized it or afterwards for that matter. I don't make any allegation about anyone else, but it is possible that someone may have put the syringe with the jacket or in the jacket by mistake after it was seized by the police. They go to police stations, and are kept in police stations where there are many exhibits in many prosecutions kept. And it's just possible, as I say I make no allegation against anybody, but it's just possible that the syringe was placed with the jacket after it was seized.

21 In this appeal, senior counsel for the appellant and the Crown agree as to the principles to be applied when an irregularity has occurred in the course of the jury's deliberation. The relevant principle was stated in R v Marsland (NSWCCA, 17 July 1991, unreported). In that case, a forensic report received into evidence made an allegation of sexual misconduct by the appellant against another person in respect of which the accused had been tried and acquitted. The jury asked a question as to the identity of the other person and as to the reason why that person had not given evidence. The trial judge declined to discharge the jury, but directed them that the second person had nothing to do with the matter and the reference had been an error. Gleeson CJ, which whom Lee CJ at CL and Hunt J agreed, said (at 14):

"The tender of the document with the name [of the other person] on it was an irregularity and the question we must ask ourselves is whether we can be satisfied that the irregularity has not affected the verdicts, and that the jury would have returned the same verdicts if the irregularity had not occurred."

22 His Honour considered that the irregularity would not have affected the verdicts, given that the trial judge had given a clear direction and there was no reason to doubt that the jury would have taken the direction at face value. His Honour considered it important that there was nothing else of any kind before the jury that would have given them any indication of who the other person might have been.

23 The test stated in Marsland was adopted by this Court in R v K (2003) 59 NSWLR 431; [2003] NSWCCA 406. In R vK, Wood CJ at CL (with whom Grove and Dunford JJ agreed), at [71] considered that it was relevant in the result in Marsland that the irregularity had come to light and was dealt with before verdict and had been the subject of a clear, express direction to the jury, that was considered sufficient to overcome the prejudice. R v K, on the other hand, involved an irregularity that came to light after the jury had given its verdict.

24 That had also been the situation in R v Rudkowsky (NSWCCA, 15 December 1992, unreported). In that case, handbags had been tendered in evidence but it was later discovered that one of the bags contained several sheets of writing bearing what appeared to be the handwriting of the victim. The Crown conceded that the sheets of writing would not have been included in the tender had their presence been known. The material was clearly prejudicial. Gleeson CJ (with whom Cripps JA and McInerney J agreed), in holding that the appeal should be allowed due to the extremely prejudicial potential of the material, said at 6:

“The appellant was entitled to be tried and to have his guilt determined according to law. In determining whether there has been a miscarriage of justice in a case such as the present it is important to bear in mind that in this context the word ‘justice’ means justice according to the law. It is not for this Court to decide for itself after perusing the evidence whether we agree with the jury's verdict. Nor is it for this Court to decide whether, even if the irregularity had not occurred, it is likely or even probable that the jury would have reached the same conclusion. We are not here to decide whether the jury’s conclusion was correct. We are not here to decide whether or not the appellant received a fair trial and whether or not his conviction was one entered in accordance with the legal rules that govern the trial of a person in a case such as the present.

R v Marsland

25 As I have indicated, there was no dispute as to the correct principles to be applied. The Crown submitted that the application of the principles gave rise to a number of considerations, namely: the nature of the irregularity; the relevance of the irregularity to the issues before the jury; whether the material was prejudicial; and the extent of the prejudice. Given those considerations, the question was what was called for in the proper exercise of the discretion; namely, a discharge of the jury, or appropriate directions to the jury. That last matter in turn raised the question whether the directions given were adequate.

26 The Crown accepted that the syringe should not have been before the jury. It bore no relevance to the issues in the case and there was no evidence to suggest that the appellant was a drug user, or otherwise had any involvement with drugs. The Crown also accepted that the presence of a syringe or its possession by the appellant, was not capable of lending any support for the prosecution case. In particular, it was not part of the prosecution case that the appellant was motivated to commit the robberies by drug addiction or any other association with drugs.

27 The appellant submitted, however, that the evidence was unfairly prejudicial.

28 Although there was no evidence that the appellant was associated with drugs and the Crown did not advance any motive for the robberies, there was evidence that the appellant had dealt with or had in his possession some of the items taken in the robberies. In particular, there was evidence about pawning a Longines watch on two occasions, about ‘John’ having an urgent need for money, of himself needing money and of suggestions of John’s drug addiction. John, of course, is the co-offender Yin. It is likely that it was these “threads” of evidence, to which if the finding of the syringe was added, gave rise to the appellant’s solicitor’s concern that the syringe more directly linked the appellant with Yin who, to the jury’s knowledge, had pleaded guilty. It is necessary to refer to that evidence in more detail, so as to be able to better gauge whether a direction, and in particular, the direction given by the trial judge, could adequately deal with any prejudice.

29 During the course of the ERISP between the appellant and Detective Senior Constable Davey on 25 October 2002, the appellant was asked questions about the Longines watch. He was informed by Detective Senior Constable Davey that the watch was stolen from Mr Dong and was pawned at the Fairfield Loan Office nine days after the robbery. He was asked whether he knew anything about the watch, but gave no audible reply. He said, however, that he had pawned things at the Fairfield Loan Office, but gave no audible reply as to whether he had pawned the watch. He did say that he had bought quite a few things from the person whom he called John. He said he thought he had bought a men’s Longines watch from John, but he had “hocked” it. He said he had also bought a ladies Longines watch, but he had that at home. The appellant conceded, eventually, that he remembered pawning the men’s Longines watch. He said he bought it for "a hundred bucks or fifty dollars". He said that he didn't have the money to pay for the watch on him and that "[John] needed money so I bought him, I hocked it and gave him the money". He said that he thought the watch was worth "a few hundred dollars, five, six hundred".

30 In the course of the robbery the subject of Count 1, Mr Dong, the receptionist at the premises gave evidence that a Longines watch was stolen from him. In his evidence, the appellant said that he had purchased the watch from a person by the name of John. The appellant said he knew John from work, when he had been looking for work at the appellant's brother's company. He said he did not know this person by any name other than John and that he had worked with him over a two and a half to three month period. In cross-examination, the appellant identified Yin from a photograph as being the person he knew as John.

31 The appellant said that he had worked with his brother "four, five days a week" from June until July and after that worked two or three days a week until somewhere in mid-August. He said that after having stopped working sometime around 14 or 15 August for his brother, he assisted a neighbour for a couple of days. He said, however, he was not really working, just giving him a bit of instruction as to cutting the gyprock board as he was "a bit sick at the time".

32 The appellant was cross-examined about his purchase of the Longines watch and the subsequent "hocking" of it to the Fairfield Loan Office. He gave a version consistent with his answer in the ERISP. He added, however, that John had needed money urgently when he came around and that John had driven him to the Fairfield Loan Office and that he, the appellant, had gone in alone and, having hocked the watch, gave the money to John. He was asked why he didn't suggest to John that he go to the loan shop himself. The appellant responded, "I don't know. He asked me for help so I thought I was just doing a favour for him, that's all". He said he was not aware of any reason why John couldn't have gone up and hocked the watch himself. He also said that John often borrowed money from him, "twenty dollars here, fifty dollars there". He said that at the time he bought the watch from John, he had heard something about John using drugs, but he wasn't "100 per cent sure". He agreed, however, that at the time he bought the watch, a situation had developed on the building site where John worked, of things going missing. He said that notwithstanding that, he was not concerned about taking a watch from "a person like that" and hocking it for him. The appellant said that he didn't think about it at the time, because he took his word for it that the watch was his and that the ladies watch was his girlfriend's. He had not, however, seen him wearing a watch.

33 The evidence established that the appellant had redeemed the watch, but pawned it on a second occasion. He was asked in re-examination what he wanted to do with the watch after he had pawned it on each occasion. He said that he was going to keep it at the time because John had told him that it was his watch. However, the appellant paid the interest to redeem the watch from the pawnbroker and his reason for pawning it the second time was because he "needed the money on that day". He said that he left it there on the second occasion although he had intended to go back and get it later on.

34 The appellant also gave evidence about being sick and therefore not working during the period of mid-August to early September. His evidence was that he was at home during this time. There was evidence about the use of the appellant’s mobile telephone number during this period which revealed that there were no calls made from his mobile phone during an approximate two-hour period between 2.25pm and 4.16pm on 25 August 2002. It was suggested to him that the reason for the suspension of calls during that period was because he was engaging in the robbery of premises at Sans Souci, being the robbery the subject of Count 6. The appellant said that he was at home sick and could not even get out of bed at that time. He said he was being treated by a doctor, called Dr Tan, and "some kidney specialist". He also said that John, or a friend of his, could have had his phone on that occasion.

35 There was also substantial evidence about the use of the appellant's mobile phone number to make calls, both to the premises at which robberies occurred shortly before the robberies, except for the robbery at Five Dock (Count 1), as well as to Yin. The appellant denied that he was responsible for the frequent telephone calls to Yin, saying that he rarely rang him.

36 I have already referred to the principles that apply when an irregularity has occurred in the course of a jury’s deliberation. An examination of the authorities in which an appeal has been brought to quash a guilty verdict in circumstances where there has been an irregularity in the jury's deliberations, indicate that there are a variety of appropriate responses, depending upon the nature of the irregularity, its relevance to the issues in the trial and the circumstances in which the irregularity arose.

37 Thus, in R v Olivier (NSWCCA, 15 September 1993, unreported), the Court was concerned with a case where the trial judge had refused to discharge the jury following the discovery that the jurors were in possession of non-evidentiary material. In that case, the appellants were co-accused in respect of charges of assault with intent to rob and malicious wounding. The non-evidentiary material comprised maps that had markings on them indicating various landmarks that had been referred to throughout the case. The maps appeared to have come from the pages of a street directory. There were six photocopies of the same pages of the street directory, causing the observation to be made that that number of copies would suggest one set for every two jurors. The markings were in different hands.

38 When this matter was brought to the attention of the trial judge, his Honour raised it with the Crown and defence counsel. Defence counsel requested the judge to question the jury as to how they came to be in possession of the material and what use had been made of it. The trial judge refused that application. Defence counsel then specifically indicated that he did not propose to make an application for a discharge, nor did the Crown make any application for a discharge.

39 The trial judge then brought the jury back and gave them further directions. In those directions, the trial judge observed that had the jury requested to be provided with material showing the various places that had been referred to in evidence, he would have suggested to counsel that such material might have been helpful and ought to be provided. He indicated, however, that as that had not been done, he would retain the maps to which they had had access and he directed them that they must entirely disregard those items and confine their deliberations to the evidence which had been placed before them.

40 On appeal, the accused were represented by different counsel. It was submitted that the direction to the jury to disregard the maps was insufficient and that the trial judge had erred in not questioning the jury as to the use that had been made of the maps and, in particular, as to whether any of the jurors had used the maps for the purposes of having a view of the relevant locality. It was submitted that his Honour's refusal to make enquiry of the jury provided a basis for “serious disquiet” as to the jury's verdict. Finlay J, with whom Handley and Sheller JJA agreed, stated at [43] that the test to be applied where there was an irregularity was whether:

"… this Court can be satisfied that the irregularity has not affected the verdict and the jury would have returned the same verdict if the irregularity had not occurred."

41 Finlay J referred to the statement of Gleeson CJ in Rudkowsky referred to above. His Honour considered, however, that the case was not like Rudkowsky, where the jury had before it inadmissible and highly prejudicial written material which was of such a nature that the irregularity was held to have denied the appellant a fair trial. In Olivier, by contrast, his Honour categorised the material before the jury as being "benign" and observed that it had been dealt with promptly by appropriate directions. In that circumstance, his Honour held that no error had been disclosed in the trial judge's exercise of discretion in declining to interrogate the jury.

42 The question in Olivier did not relate to the discharge of a jury. R v Lansdell (NSWCCA, 22 May 1995, unreported) however, provides a closer factual comparison to the circumstances in this case. There, the appellant had been charged with offences of using an offensive weapon to prevent lawful apprehension and attempting to induce a person to be called as a witness to give false evidence. The facts relating to the first charge were that, during the course of a high-speed police chase, the appellant produced a shotgun from the window of the car of which he was the driver. There was conflicting evidence as to where the gun was located immediately after the chase. The appellant's wife gave evidence that the gun was usually contained in a striped bag and there was evidence that such a bag was located by the police on the front seat of the appellant's vehicle. There was also evidence that during the course of the police chase, there had been a collision and glass had shattered into the front of the appellant's car.

43 It was the appellant's case, given in an unsworn statement, that the gun was in the boot of the vehicle, so that he could not have produced it during the course of the police chase as the Crown case alleged. He made no mention of the striped bag in his unsworn statement.

44 On the eighth day of a twelve day trial, the trial judge and counsel became aware, as a result of a question from the jury:

“If the [striped] bag is evidence, is contents of the bag evidence?”

Lansdell

45 Gleeson CJ, with whom Finlay J agreed, observed that “the evaluation of the potential seriousness of the irregularity, absent the direction given by the trial judge, is not entirely easy". The glass had been found in the bag prior to the completion of the evidence. By the end of the trial, there were at least four different versions of the location of the gun and the bag and, by the end of the trial, the question whether the bag was in the front seat of the car was not of particular significance. What was important, on the defence case, was that the gun had been concealed in the boot. It was not the defence case that the gun was in the striped bag.

46 It had not been suggested during the trial that the glass in the bag had come from a broken window in the car or could be used to support an inference as to the location of the bag at any material time. There was no evidence as to how or when the fragments of glass got into the bag, nor was there any attempt to connect them with any of the glass in the car.

47 Gleeson CJ considered that there was a danger that, without any direction from the trial judge, the jury, or individual members of the jury, might engage in a speculative process of reasoning leading to a conclusion that not only was the bag on the front seat of the car, but the gun was also on the front seat and not in the boot. The significance of the danger of there being such a speculative line of reasoning was arguably even more pronounced because, at the time that the glass was found in the bag, the appellant had not given his unsworn statement which formed the basis, on the appellant’s case, for the irrelevance of the location of the bag and the focus upon the location of the gun.

48 Gleeson CJ observed that the trial judge’s direction was framed specifically in response to the question asked by the jury. His Honour considered that that was appropriate because it would have been dangerous to embark upon an explanation of the evidentiary significance, or lack thereof of the glass, given that at that stage the evidence was incomplete and it was not known what the defence case would be. His Honour agreed with the observation of Simpson J as to the test to be applied when an irregularity occurs. He said:

“… an irregularity having occurred, the question for this Court is whether we are satisfied that it did not affect the verdicts, and that the jury would have returned the same verdicts if the irregularity had not occurred.”

“That question is to be answered in the light of the direction which the trial judge gave when the irregularity came to his attention.”

49 His Honour observed that criminal trials and appeals are conducted upon “certain assumptions”, one of which was that juries both understand and follow directions given by trial judges. He observed that it frequently happens that inadmissible material is placed before the jury and, sometimes, such material has potential to cause considerable prejudice to an accused. Ordinarily, in that circumstance, the problem is addressed by the giving of an appropriate direction. His Honour recognised, consistently with the test that he said applied, that there were occasions when a trial judge or an appellate court might conclude that no direction could adequately protect an accused person, and that the only proper course was to discharge a jury. The Chief Justice was of the view that this case did not fall into that category and found that the direction given by the trial judge was adequate in all the circumstances. As I have said, Finlay J agreed. However, Simpson J held that the direction was not adequate.

50 In my opinion, the direction given by his Honour was appropriate and sufficient. His Honour, in clear language, directed the jury that the syringe was not evidence in the case and its presence was to be ignored. He cautioned them that it had never been part of the Crown case that the appellant was in any way connected with drugs and that any such thought must be put out of their minds. They were directed not to speculate as to how the syringe came to be in the jacket. His Honour indicated that there were other possible explanations for the use of a syringe, including legitimate self-medication, but that there was no evidence that it had been used by the appellant for that reason, or that he even knew that the syringe was in his jacket. His Honour indicated that there could have been a variety of reasons why the syringe came to be in the jacket, including having been placed there by mistake after it was seized by the police. His Honour reiterated the importance of not speculating and that this syringe had nothing to do with the case.

51 Although there was evidence that the co-accused was possibly a drug user, it was not part of the Crown case that the appellant was a drug user or had a motive related to drugs for the commission of the crimes. In those circumstances, I consider that the direction given by his Honour was adequate. The authorities are clear that it is a matter for the discretion of the trial judge as to what course to take when an irregularity has occurred. The authorities are also clear that appropriate directions may, in certain circumstances, be sufficient. Given the directions to the jury in this case, I am of the opinion that his Honour did not err in dealing with the matter in that way. I am satisfied that the presence of the syringe did not affect the verdicts, and that the jury would have returned the same verdicts if the irregularity had not occurred. The jury gave due consideration to their task. This is apparent, amongst other things, from the fact that the jury brought the syringe to the court’s attention.

52 There was significant identification evidence before the jury. That included photographic evidence identifying the appellant, as well as descriptions of what the appellant was wearing, which included the jacket. That jacket was of a very particular style, described in the evidence as a “Mao” jacket which was grey in colour. It was readily identified by the witnesses. There was also a significant body of coincidence evidence, including numerous telephone calls from the mobile phone that was found on the appellant at the time of his arrest, to the premises that were robbed in the days immediately preceding the robbery. That occurred in respect of all premises other than for the robbery at Five Dock (Count 1 on the indictment). There was also evidence of many telephone calls from the appellant’s mobile to Yin. The appellant himself gave evidence of an association with Yin including some knowledge of a suggested drug habit. There was also evidence of pawning expensive goods cheaply, allegedly because Yin wanted a small amount of money.

53 In short, the direct identification evidence, taken in conjunction with the coincidence evidence made this a strong Crown case. There was no evidence or suggestion that the appellant was a drug user or had a motive for the crime. Juries are given directions on the basis that those directions will be followed. To the extent the syringe may have had the potential for prejudice, I am satisfied that such potential was overcome by the trial judge’s directions.

54 For the reasons that I have indicated, I would dismiss the appeal.

Application for leave to appeal against sentence

55 The appellant was sentenced to a total effective sentence of 12 years 3 months with a non-parole period of ten years. The individual sentences imposed by his Honour are conveniently set out in the following table:

Count	Sentence	Non-Parole Period
1	6 years	4.5 years
2 & 5	7 years	5.25 years
6-8	8 years	6 years
9 & 10	9 years	6.75 years

56 The appellant contends that his Honour erred in the sentencing process on the following grounds: first, in failing to apply the provisions of s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Crimes (Sentencing Procedure) Act) correctly; secondly, in failing to impose individual sentences in respect of each offence; and thirdly, in that the sentences were manifestly excessive having regard to principles of totality, parity and the “general tariff” for sentences of this type. The appellant further contends that his Honour erred in failing to find special circumstances.

Incorrect application of s 44 of the Crimes (Sentencing Procedure) Act

57 Section 44, as it applied in respect of these offences provided:

“(1) When sentencing an offender to imprisonment for an offence, a court is required:

(b) secondly, to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).”

58 The alleged error was said to flow from his Honour’s comment in his Remarks on Sentence that he had come to the view “that the minimum term to be served is ten years, with the head sentence effectively being 13 years and 3 months”.

59 It was suggested that this comment indicated that his Honour had in mind the provisions of s 44 as they were as at the date of sentence, which provided that when sentencing an offender, the Court is first required to set a non-parole period, and then to set the balance of the term. The terms of s 44 which applied at the date of these offences and which thus applied to the sentences to be imposed provided that the Court was first to set the term of the sentence and then to set the non-parole period.

60 In my opinion, this ground has not been made out. Section 44 relates to the sentence that is imposed for each offence. When imposing the sentence in respect of each offence, his Honour correctly applied s 44. His Honour’s comment about which complaint is made related to the total effective sentence and minimum term he had considered should be imposed. That has nothing to do with the proper application of s 44. I should add that although senior counsel did not abandon this ground, it was not otherwise argued on the hearing of this appeal.

Failure to impose individual sentences in respect of each offence

61 In imposing the sentences in respect of the eight Counts, his Honour first dealt with Count 1, imposing a sentence of six years and a non-parole period of four and a half years. His Honour then “grouped” the remaining Counts in the following way. First, in respect of Counts 2 and 5, his Honour said:

each

62 He then dealt with Counts 6, 7 and 8:

“In respect of Counts 6, 7 and 8, you are sentenced to a term of imprisonment for eight years to date from 25 October 2004 and to expire on 24 October 2012. I set a non-parole period of six years to date from the commencement of the sentence and to expire on 24 October 2010. I do not find special circumstances. You are eligible to be considered for release to parole at the expiration of the non-parole period.”

63 His Honour then dealt with Counts 9 and 10:

“In respect of Counts 9 and 10, you are sentenced to a term of imprisonment for nine years to date from 25 January 2006 and to expire on 24 January 2015. I set a non-parole period of six years and nine months to date from the commencement of the sentence and to expire on 24 October 2012. I do not find special circumstances. You are eligible to be considered for release to parole at the expiration of the non-parole period.”

64 The appellant submitted that his Honour (other than in respect of Count 1) did not differentiate between the offences in each grouping. It was submitted that in those circumstances, his Honour failed to impose an individual sentence in respect of each offence as required by s 44. The appellant submitted that by failing to set out the sentences one after the other and impose sentences separately in respect of each offence, it was not possible to properly examine the sentence that had been imposed in respect of each individual offence. It was submitted that this undermined the recent trend towards transparency in sentencing: see Markarian v The Queen (2005) 79 ALJR 1048; [2005] HCA 25 at [39].

65 The Crown submitted that his Honour’s approach is an accepted practice in sentencing for multiple offences and is adopted to avoid the sentencing process becoming too cumbersome and also to be able to better deal with the principle of totality.

66 There may be circumstances in which such an approach is appropriate. However, I do not consider that it is appropriate in a case such as the present where the number of offences is not so numerous that to deal with them individually would be cumbersome. Indeed, in a case such as the present, involving eight offences, six of which were committed on separate occasions, there is a danger in failing to deal with each offence separately in that the criminality involved in the individual offences may be overlooked or become lost in the attempt to assess the totality of the seriousness of the offences.

67 As was pointed out in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 “totality” is considered after the individual sentences are imposed. In Pearce, McHugh, Hayne and Callinan JJ said (at [45]):

“A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.”

“To an offender, the only relevant question may be ‘how long’, and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error.”

68 Pearce, however, does not prescribe a mandatory approach. In Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15 Gummow, Callinan and Heydon JJ said at [26]:

Pearce

Mill v The Queen

Mill

Pearce

only

69 Nonetheless, I consider that this was a case to which the approach in Pearce was particularly apt and that the danger adverted to in the joint judgment was real.

70 The Crown submitted, however, that it was apparent from the Remarks on Sentence that there was no error as alleged. The Crown pointed out that in the Remarks on Sentence, his Honour sentenced the appellant “in respect of each” of Counts 2 and 5 (emphasis added). However, his Honour did not repeat that terminology in respect of Counts 6, 7 or 8, or in respect of Counts 9 and 10. The Crown submitted that the omission of the word “each” in respect of the second and third grouping of offences was a simple omission and that the word “each” should be implied before the other counts and that there was no failure to sentence in respect of each offence. The Crown submitted that a correct reading of his Honour’s remarks was that his Honour intended to make the sentences in each group concurrent with each other and for there to be partial accumulation as between each group of offences.

71 There is sense in the submission that the absence of the word “each” in respect of the second and third groups was a mere omission as it would be curious for the trial judge to decide to group sentences and then treat groupings in a different way when there was no apparent reason to do so.

72 There was one aspect of his Honour’s sentencing remarks, however, that might indicate that his Honour may have failed to sentence individually within each group, namely, the manner in which his Honour grouped the sentences.

73 The first grouping was in respect of Counts 2 and 5. Those two Counts could logically be referred to together, as they involved the same incident (and his Honour said he sentenced in respect of each of them). However, the grouping of Count 6 with Counts 7 and 8 is not so logical. Counts 7 and 8 could logically be referred to together, as those charges related to the robbery at premises at Matraville, the separate charges relating to the robbery from two different persons present at the premises at the time. However, Count 6 was a charge relating to a robbery at Sans Souci a day before the robbery at Matraville. Likewise, Counts 9 and 10 were not connected. The robberies subject of these offences were on different occasions and at different locations.

74 On the other hand, his Honour acknowledged the requirement to sentence individually in accordance with Pearce and an appellate Court should not lightly ignore a clear statement by a trial judge as to the process he followed. On balance, I have concluded that his Honour sentenced the appellant in respect of each offence.

75 This part of his Honour’s sentencing remarks does, however, raise a different matter for consideration. After referring to the need to sentence in respect of each offence, his Honour stated:

Gorman

Swadling

76 Gorman was a very different case from the present. It was concerned, principally, with the correct application of Pearce, where a number of offences (in that case sexual offences), were committed on the same victim during a single but extended period of time. In Swadling, Smart AJ, with whom Hodgson JA agreed, reviewed the principles that were to be applied when sentencing for multiple offences. His Honour pointed out that in that case, the trial judge (who, incidentally, was Dodd DCJ, who appears to have been conscious of the matters raised by the Court in Swadling), had not undertaken an analysis of the individual offences, but had appeared to adopt a global approach contrary to Pearce and Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70. In re-sentencing, Smart AJ, when considering the numerous counts as they occurred later in the sequence of offending, referred to the criminality of the offender as “mounting” and applied successive increases of six months imprisonment above that imposed on the previous sentence.

77 In R v Bavadra (2000) 115 A Crim R 152; [2000] NSWCCA 292 Wood CJ at CL (Beazley JA and Greg James J agreeing) considered at [37] that

“[h]aving regard to the individual seriousness of the offences charged in these counts, the accelerating outbreak of unlawfulness on the part of the respondent, and the inconsistencies in sentence identified [the trial judge had undervalued] the degree of criminality displayed …”

“the accelerating, and ultimately the total criminality”.

78 Dodd DCJ appears to have considered that he was required to allocate increased penalties in respect of those offences occurring later in time. I do not consider there is any such principle, although there may be circumstances where such an approach is warranted, provided that in doing so the principles stated in Pearce are not overlooked.

79 Here his Honour imposed an escalating scale in respect of the sentences on a basis that appears only to have had regard to the dates upon which the sentences were committed rather than to the seriousness of the individual offences. This resulted in a significant disparity between the first sentence imposed of six years and the last of nine years when there were very little differences in the offences. That disparity has resulted in sentences which, in circumstances where the offences were of similar objective seriousness, cannot be reconciled merely by reference to accelerating criminality and indicates error. The error could be characterised as a failure to correctly apply Pearce or alternatively that the escalating sentences imposed resulted in the overall effective sentence being manifestly excessive.

80 Before determining what, if anything, should flow from the error, I will deal with the other issues still to be determined. I should also comment at this stage that the appellant did not complain about error arising from the escalating scale of sentences imposed. I will deal with this later.

Were the sentences manifestly excessive?

81 The appellant submitted that the effective term of imprisonment and the non-parole period in this case were manifestly excessive in that the sentencing judge had failed to take proper account of the principle of totality, had failed to give proper effect to the principle of parity in relation to the sentences imposed on the co-offender, Yin, and that the total effective head sentence and the non-parole period were manifestly excessive, when regard was had to sentences usually imposed in respect of multiple armed robberies. Each of these arguments needs to be dealt with separately. In dealing with the question of manifestly excessive sentences, it needs to be kept in mind that the maximum penalty is 20 years and the appellant was convicted on 8 counts. It is convenient to first deal with the question of parity.

Parity

82 The appellant’s co-offender, Yin, was sentenced by her Honour Judge Tupman on 10 December 2003 in respect of seven substantive offences, with five matters being taken into account on a Form 1 pursuant to s 33 of the Crimes (Sentencing Procedure) Act. Her Honour observed that the totality of the charges with which she was dealing was six armed robbery charges, five aggravated armed robbery charges and one charge of aggravated assault with intent to rob.

83 The seven substantive charges involved three charges of armed robbery contrary to s 97(1) of the Crimes Act and four charges of aggravated armed robbery contrary to s 97(2) of the Crimes Act. The first three offences dealt with by Judge Tupman corresponded to the offences in Counts 1, 2 and 5 on the appellant’s indictment. The fifth and sixth charges against Yin were Counts 10 and 9 respectively charged against the appellant. However, the fifth and sixth charges against Yin were laid under s 97(2) which carries a maximum penalty of 25 years imprisonment. The appellant was charged under s 97(1) in respect of those offences. As I have already said, an offence under s 97(1) carries a maximum penalty of 20 years imprisonment.

84 Further, one of the offences with which the appellant was charged namely Count 7, was taken into account on a Form 1 in Yin’s case. Yin also had two matters on a Form 1 corresponding to Counts 3 and 4 on the appellant’s indictment in respect of which there were verdicts by direction. The remaining matters on the other Form 1 in the appellant’s case were charges that related to the robbery from individuals at the massage parlours, where the robbery of the massage parlour itself constituted the principal charge.

85 It is not apparent from the Remarks on Sentence by Judge Tupman, nor from the transcript of the appellant’s trial nor the Remarks on Sentence of Judge Dodd, why the appellant and Yin were not charged in the same way for the same offences.

86 In respect of the charges that were common to the appellant and Yin, there was no difference in the objective criminality of their individual offending. The trial judge considered that their respective roles were equal. He later said that the appellant’s “overall criminality is somewhat less that that of Yin”. Presumably his Honour was referring in his Remarks on Sentence to the additional offences in respect of which Yin was being sentenced.

87 The subjective circumstances of the appellant and Yin were somewhat similar. Both were in their twenties: the appellant was born on 17 June 1974 and was thus 28 at the time of the offences. Yin was aged 26 at the time of sentence. Both were born in China. The appellant came to Australia in 1985 when he was 10 or 11. It is not apparent from Judge Tupman’s Remarks on Sentence when Yin came to Australia, although it appears that it was when he was a child. Both have a history of drug abuse. In Yin’s case, Judge Tupman found that the commission of the crimes was motivated by his addiction to heroin. However, Judge Dodd rejected that was a motive in the case of the appellant. Whilst it could be surmised that that was a motive, having regard to the appellant’s drug addiction, no evidentiary basis was established to interfere with that finding. In this regard, it should be borne in mind that the appellant, on sentence, continued to maintain his innocence.

88 Both had criminal histories. The appellant had been sentenced to a term of imprisonment in 1993 on five counts of robbery whilst being armed, in respect of which he was sentenced to 4 years imprisonment with a minimum term of 18 months. His Honour Judge Dodd stated that in that circumstance, the appellant had committed the present offences knowing that he was exposed to a significant penalty. Given the convictions for armed robbery, his Honour was not prepared to extend leniency to the appellant in respect of the present charges. Yin also had a criminal history dating back to 1996, and which involved serving sentences of imprisonment. Her Honour Judge Tupman did not consider Yin had good prospects of rehabilitation, mainly due to his drug dependency. Her Honour found that he was remorseful and contrite.

89 Judge Tupman allowed Yin a 25 per cent discount for the pleas of guilty. Were it not for the discount, the effective total sentence that would have been imposed on Yin was 14 years. That was reduced to 11 years for the pleas. The effective total non-parole period was 8 years 3 months. Her Honour found special circumstance, as she had partially accumulated the sentences.

90 Judge Dodd, in considering the question of parity, noted that Yin had pleaded guilty to offences of a more serious nature in some instances, although they were the same offences committed in company with the appellant. His Honour also observed that Yin had been given a discount for the utilitarian value of his pleas of guilty. He observed that, undoubtedly, Yin’s pleas of guilty were also taken as some indication of remorse or contrition which was absent in the appellant’s case, the appellant, as I have said, continuing to maintain his innocence even upon sentence. His Honour considered that the prospects of rehabilitation were not good. He found that the there was no evidence that the appellant had committed the offences to fund his drug addiction. Indeed, his Honour considered the evidence was “all the other way”.

91 The question of parity in this case is somewhat complicated by the different manner in which the appellant and Yin were charged. Yin was charged, in respect of a number of matters, with the more serious offence of robbery with a dangerous weapon: s 97(2). The offence under s 97(1) is, relevantly, robbery with an offensive weapon. Section 97(2) carries a higher maximum penalty of 25 years imprisonment as compared to 20 years under s 97(1). There is the added difficulty that the number of charges is different. Yin was charged with seven offences in respect of which he pleaded guilty, while the appellant was convicted of eight counts. Yin then had a further five matters taken into account on a Form 1. In sentencing Yin in respect of the principal offences to which the Form 1 matters attached, the Court was required to impose a heavier penalty than would otherwise have been the case had he been sentenced only in respect of the principal offence: see Attorney-General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 581; R v Timmis [2003] NSWCCA 518. There were also, in the case of Yin, two separate offences under s 97(2) in respect of which the appellant was not involved. However, there was one offence (Count 6 (Sans Souci)) in respect of which Yin was not charged.

92 The following table compares the offences and respective sentences imposed for Qing and his co-offender, Yin. It should be observed that in Yin’s case Tupman DCJ only set a non-parole period in respect of the last count. Where an offence was charged under s 97(2) that has been stated. The reference to the ‘notional sentence’ in the table is a reference to the sentence that would have been imposed but for the plea of guilty.

QING

YIN

Count

Offence

Sentence

Count

Offence

Sentence

Notional Sentence

1
16/08

Five Dock
Victim: Dong
Watch; mobile phone; cash $50
Knife

6 yrs
25/10/02 – 24/10/08

NPP 4 yrs 6 mths

25/10/02 – 24/04/07

1
16/08

Five Dock
Victim: Dong
Watch; mobile phone; cash $50
Knife

4 yrs 6 mths
8/10/02 – 7/04/07

6 yrs

2
23/08

Narwee
Victim: Knathanong
Watch; cash $120
Knife; threats

7 yrs
25/10/02 – 24/10/09

NPP 5 yrs 3 mths

25/10/02 – 24/01/08

2
23/08

Narwee
Victim: Knathanong
Watch; cash $120
Knife; threats

6 yrs
8/04/03 – 7/04/09

8 yrs

3, 4
Narwee
Victims: Ying, Ding
Cash $140, $100; mobile phones
Knife; threats

Verdict by direction
Narwee
Victim: Karakazois, Ying, Ding
Cash $50, $140, $100; mobile phones
Knife; threats

Form 1
(taken into account on Count 2)

5
23/08

Narwee
Victim: Kwong
Mobile phone; cash $100
Knife; threats

7 yrs
25/10/02 – 24/10/09

NPP 5 yrs 3 mths

25/10/02 – 24/01/08

3
23/08

Narwee
Victim: Kwong
Mobile phone; cash $100
Knife; threats

6 yrs
8/04/03 – 7/04/09

8 yrs

6
25/08

Sans Souci
Victim: He
Cash $850
Pistol/replica; threats

8 yrs
25/10/04 – 24/10/12

NPP 6yrs

25/10/04 – 24/10/10

[No co-offence]

7
26/08

Matraville
Victim: Feng
Gold neck chain; cash $15
Pistol/replica; threats

8 yrs
25/10/04 – 24/10/12

NPP 6yrs

25/10/04 – 24/10/10

Matraville
Victim: Feng
Gold neck chain; cash $15
Knife; threats

Form 1
(taken into account on Count 4)

8
26/08

Matraville
Victim: Yuan
Mobile phones; cash $1200
Pistol/replica; threats

8 yrs
25/10/04 – 24/10/12

NPP 6yrs

25/10/04 – 24/10/10

4
26/08

Matraville
Victim: Yuan
Mobile phones; cash $1200
Knife; threats
s 97(2)

6 yrs
8/10/03 – 7/10/09

8 yrs

9
29/08

Rydalmere
Victim: Lu
Gold neck chain, ring; mobile phone; cash $1600
Pistol

9 yrs
25/01/06 – 24/01/15

NPP 6 yrs 9 mths

25/01/06 – 24/10/12

6
29/08

Rydalmere
Victim: Lu
Gold neck chain, ring; mobile phone; cash $1600
Pistol?
s 97(2)

7 yrs
8/01/04 – 7/01/11

9 yrs 4 mths

[No co-offence] Rydalmere
Victim: Huang
Pistol

Form 1 (taken into account on Count 6)

10
1/09

Ultimo
Victim: Chow
Gold neck chain; cash $130
Pistol (replica?); threats

9 yrs
25/01/06 – 24/01/15

NPP 6 yrs 9 mths

25/01/06 – 24/10/12

5
1/09

Ultimo
Victim: Chow
Gold neck chain; cash $130
Knife
s 97(2)

6 yrs 6 mths
8/10/03 – 7/04/10

7 yrs 4 mths

[No co-offence]
7
8/10

Yagoona
Victim: Le
Wallet
Replica pistol; threats
s 97(2)

7 yrs
8/10/06 – 7/10/13

NPP 4 yrs 3 mths

8/10/06 – 7/01/11

9 yrs 4 mths
NPP 5 yrs 8 mths

93 If comparison is made with the “notional sentence” imposed on Yin it is apparent that the sentences imposed for the common offences were approximately the same. The comparison cannot be precise, for the reasons I have already mentioned, including the use of the Form 1 procedure. Thus, in relation to Counts 7 and 8 (the Marrickville offences), the appellant was sentenced to total sentences of 16 years whereas Yin was sentenced to a “notional” term of eight years in respect of his involvement in those offences, the equivalent matter to Count 7 being dealt with on a Form 1. The effective sentence was the same, however, as his Honour Judge Dodd ordered that Counts 7 and 8 be served concurrently. The one exception where the sentence is not comparable relates to Count 10. This disparity may arise because of his Honour’s “escalation” of the sentences in the manner to which I have already referred, although Tupman DCJ also appears to have escalated the sentences although not to the same extent and the higher sentences imposed in respect of some of the later offences may be explicable because of the necessity to have regard to the Form I offences.

94 The two judges approached accumulation a little differently, but that is a process that principally (although not solely) relates to totality. Were it not for the plea of guilty, Yin would have received a longer effective sentence than the appellant, namely a sentence of 14 years. That indicates that Yin’s sentence was more severe than the sentence imposed on the appellant, although it must be remembered that Yin was charged with an offence that did not involve the appellant, and had offences taken into account on a Form 1, not involving the appellant.

95 The foundation for the concept that there should be parity in sentencing of co-offenders lies in considerations of fairness and whether a legitimate sense of grievance is engendered by a comparison. “Parity” is not simply a technical concept and while comparison of individual sentences is appropriate, so is comparison of the total effective sentence imposed for co-offending. Once that is done, it is apparent that the appellant could not have a legitimate sense of grievance. Accordingly, I would reject the submission that there was not parity as between the sentences imposed on the two co-offenders.

Comparable sentences

96 The appellant next contends that if regard is had to comparable sentences imposed for offences under s 97(1), it will be apparent that the sentences imposed on him were manifestly excessive. It was submitted that this was particularly so, given the sentencing judge’s finding that the offences were in the “mid-range of seriousness for such offences”.

97 In R v El-Andouri [2004] NSWCCA 178, the Court (Tobias JA, Kirby and Bell JJ) referred to a number of cases involving sentencing for multiple armed robberies. Those cases disclose a range of sentences from 18 years, with a non-parole period of 13 years 6 months: see R v Merritt [2000] NSWCCA 365, which involved one Count of robbery armed with a sawn-off rifle in circumstances where the victim was wounded, to a number of cases where a head sentence of 12 years was imposed, with non-parole periods of between 6 and 9 years. The analysis undertaken by the Court was not exhaustive, the Court only giving consideration to the total effective sentence imposed. It is also relevant that a number of the cases were Crown appeals.

98 While an understanding of sentences imposed by other courts for the same offence committed by different offenders is necessary to promote consistency in sentencing, care has to be taken not to rely upon a limited sample. Whilst the analysis undertaken in El-Andouri is of some assistance, at the end of the day the Court is required to consider whether the sentences imposed here were manifestly excessive. If so, error is established, requiring the appellant to be re-sentenced. Alternatively, if some other error has been demonstrated, the Court may only re-sentence if some other sentence is warranted in law: Criminal Appeal Act: s 6(3).

99 At this point, something should be said about the individual sentences imposed by his Honour. In R v Henry & Ors (1999) 46 NSWLR 346; [1999] NSWCCA 111, in a guideline judgment in respect of offences under s 97(1) (being the offence involved here), this Court held at [162] that a sentence of 4 to 5 years was appropriate in circumstance where the following factors were involved: a young offender with no or little criminal history; a weapon like a knife, capable of killing or inflicting serious injury; a limited degree of planning; limited, if any, actual violence but a real threat thereof; a victim in a vulnerable position such as a shopkeeper or taxi driver; a small amount taken; and a plea of guilty, the significance of which is limited by a strong Crown case.

100 The Court pointed out that the individual circumstances of the commission of the offence and of the offender may mean that a lesser or a greater sentence would be appropriate.

101 This case is more serious than the “common “ circumstances referred to in the guideline judgment in that there was no plea of guilty and the appellant had a prior criminal history with one period of imprisonment of 4 years with a minimum term of 18 months.

175 In R v Yin this Court dismissed an appeal by Yin against the sentences imposed on him by Judge Tupman on 7 charges. These were:-

(i) for the same offence as that the subject of count 1 against the Appellant, imprisonment for a fixed term of 4 years and 6 months;

(ii) for the same offence as that the subject of count 2 against the Appellant, imprisonment for a fixed term of 6 years;

(iii) for the same offence as that the subject of count 5 against the Appellant, imprisonment for a fixed term of 6 years;

(iv) for the same offence as that the subject of count 8 against the Appellant, albeit laid under s97(2) of the Crimes Act, imprisonment for a fixed term of 6 years;

(v) for the same offence as that the subject of count 10 against the Appellant, albeit laid under s97(2) of the Crimes Act, imprisonment for a fixed term of 6½ years; and

(vi) for the same offence as that the subject of count 9 against the Appellant, albeit laid under s97(2) of the Crimes Act, imprisonment for a fixed term of 7 years;

(vii) for another offence under s97(2) of robbery of a shop proprietor and in circumstances of little premeditation, imprisonment for 7 years including a non-parole period of 4 years and 3 months.

176 These periods were arrived at after her Honour had made allowance for Yin’s pleas of guilty, allowances which, as her Honour indicated elsewhere in her remarks were of, or of the order of, 25%. When such discounts are added back, her sentences represent undiscounted figures as high as 8 and 9 1/3 years.

177 Judge Tupman’s observations and the length of some of the sentences make it clear that some of the sentences do reflect an increase from those which would otherwise have been imposed because her Honour was asked to take into account one or more offences on Form 1s. However that is not so in the case of the sentences referred to in the paragraphs I have numbered (v) and (vii) and the dismissal of Yin’s appeal thus argues against my initial reaction that the sentences imposed on the Appellant under counts 7, 8, 9 and 10 are manifestly excessive.

178 To what extent, if at all, the fact that many of the charges against Yin were preferred pursuant to s97(2) where the maximum penalty is 25 years, was regarded as of significance is not apparent from Judge Tupman’s remarks or the judgments in this Court. However what is of significance is the fact that the only arguments advanced in support of Yin’s appeal – see at [10] - were that the allowance for Yin’s pleas was inadequate, secondly that a finding of special circumstances should have led to a lower effective non-parole period, and thirdly that the aggregate sentence was manifestly excessive. Furthermore, the argument on the third, which is the only one of any possible relevance here, seems to have been concentrated fairly narrowly. At [16], Hidden J, in whose remarks Sully and Dunford JJ concurred, said:-

Pearce v The Queen

179 Later Hidden J characterised the seven year sentence on the seventh charge as “severe”.

180 It is, as I have said, not clear what weight the Court gave to the difference between s97(1) and s97(2) in the penalty prescribed. Nor is it apparent how much weight was given to the Form 1 offences. There were 5 of them and Judge Tupman’s remarks made it clear that the sentences in respect of the offences I have numbered (ii), (iii), (iv) and (vi) were appreciably increased on account of these offences. So far as the report reveals, no authorities providing any guidance as to the appropriate range of sentences for multiple offences were cited to the Court. In these circumstances, I do not regard the decision in R v Yin as obliging me to reach a conclusion different from that I have expressed concerning the length of the sentences on counts 6 to 10. Even if the result is one of disparity, I do not regard the decision in R v Yin as obliging me to impose on the Appellant sentences higher than I would otherwise regard as appropriate.

181 Reference should be made also to a number of decisions referred to in R v El-Andouri [2004] NSWCCA 178 to which counsel for the Appellant directed the Court. These included:-

R v Uasi

Bavadra

R v Itamua

Karaman

R v Budd

182 It was submitted that these cases point to the conclusion that the sentences imposed in this case were too high. Bavadra, Itamua and Karaman were Crown Appeals but even making allowance for this and a number of other particular features in some of the cases, as a group the decisions certainly do support the Appellant’s contention. The difficulty I have is in accepting either that the cases are representative of all cases in this area or should be followed. So far as the first of these matters is concerned this Court has, on innumerable occasions, eschewed arguments as to severity based on one or a few selected cases. Both general experience in the Court and references in Bavadra indicate those selected are not representative. So far as the second of the matters is concerned it seems to me that a number of the sentences imposed were extremely lenient and though the cases mentioned have caused me to pause, I prefer to base my decision on the terms of s97(1) and, with some guidance from the decision in R v Henry, what I perceive to be the needs of general and personal deterrence, retribution, rehabilitation and the protection of the community in this case.

183 Before I turn to the issue of what sentences in lieu of those I regard as erroneous should be imposed, I must refer to another error made in the sentencing of the Appellant, viz. that there was no evidence that the Appellant committed the offences for the purpose of obtaining funds to fund a drug addiction. What his Honour said in this connection was:-

184 A Pre-sentence Report indicated that the Appellant had commenced heroin use in 1996 and used it thereafter during a number of periods, the latest commencing in June 2002. The Pre-Sentence report recorded that the Appellant “attempted to detoxify in August 2002”. A psychologist’s report also referred to the Appellant having been addicted and there having been intense use in the months before receiving a Naltrexone implant. Notes of Dr Tan who inserted the implant record that on 1 October 2002 the Appellant was in “day 2 or day 3 of detox”. The Appellant gave evidence on sentence and provided confirmation of some of these matters. Subject to the matters referred to in the next paragraph, he was not challenged.

185 Included in the Appellant’s evidence was the statement that in August/September he was “doing detox at home” and, in answer to a question from Judge Dodds, that he had told the psychologist that in August and September he was housebound undergoing a home detoxification with his Naltrexone implant.

186 The latter statement of course conflicts with the jury’s verdict and with some of the evidence to which I have referred.

187 To the evidence so far mentioned may be added the fact that the Appellant associated with John Yin who the evidence suggested was using drugs and some matters of which the Court may take judicial notice, viz. that heroin is notoriously difficult to give up once a person is addicted; that the habit is almost impossible to fund except by crime; and also that pawn brokers interest rates are high and the pawning of goods is evidence of some urgent need of funds. In totality, there was thus a wealth of evidence that at the time of committing the offences the Appellant was in fact addicted, and that the offences were committed as a result. (I put to one side the information his Honour had that a syringe had fallen out of the Appellant’s coat, information which may not have been formally tendered before his Honour.)

188 The significance of his Honour’s finding is apparent in the following passage from his remarks on sentence:-

It has been contended on your behalf by submissions from your counsel that I should find that you have good prospects of rehabilitation. This is based upon the fact of your previous drug abuse and what I accept are your efforts to overcome your drug addiction both before and since your arrest and during your time in custody since your arrest and what I accept to be some considerable achievement in that regard. The difficulty in using that as a basis for concluding that you have good prospects of rehabilitation is that there is no evidence that you committed these offences in any way as a result of your drug addiction. There is simply no evidence before me to indicate for instance, that you committed these offences for the purpose of obtaining funds to fund your drug addiction, nor is there evidence of any other connection.

Indeed, the evidence, if anything, as all the other way. As I say it makes it difficult to conclude that your efforts and success in dealing with your drug addiction indicate any efforts or success in rehabilitation in respect of the commission of these offences or the prospect of committing such offences in the future. I am therefore not persuaded on the balance of probabilities that your prospects of rehabilitation are good. It seems to me in view, in particular, of your relative youth but also on account of you previous drug addiction and your efforts in overcoming that, that it would be open to me to find special circumstances. However, in view of the structure of the sentences that I am about to impose I have come to the view that it is neither necessary nor desirable to alter to any extent the ratio of non-parole period to a head sentence by increasing the parole period as opposed to the non-parole period.

189 Of course, if one accepts the Appellant’s evidence that he commenced detoxification as early as August 2002 and in August and September was housebound, a finding that the offences were not the result of a heroin addiction is justified but this is not the way his Honour reasoned. It must be recognised that this Court has not seen the Appellant in the witness box and that there are obvious difficulties in this Court making a finding of fact in the face of the Appellant’s evidence. Nevertheless the other evidence to which I have referred seems to me so compelling that this Court should conclude that the Appellant was addicted at the time of the offences and that this was at least a major inspiration for them.

190 Judge Dodd’s failure to be persuaded that the Appellant’s prospects of rehabilitation were good notwithstanding his Honour’s findings that the Appellant had made some considerable achievement in his efforts to overcome his addiction, was a consequence of his view that there was no evidence that the offences were the result of drug addiction. In light of my conclusion that this view was wrong, the achievement of which his Honour spoke and the fact that the Appellant voluntarily undertook efforts in this regard prior to and quite independently of being charged with his offences – efforts for which he is to be commended - leads me to the view that this Court should approach the challenge to the sentences imposed without regard to Judge Dodd’s findings as to the Appellant’s prospects of rehabilitation.

191 That does not of course mean that this Court should adopt an opposite view. The Appellant’s prospects in this regard are a matter of mitigation and the evidence is by no means as favourable to him as occurs in some cases. There is of course the evidence of some detoxification and of obtaining the Naltrexone implant prior to being arrested, and although this seems to have been inspired at least in part by his de facto or family, the fact of taking these steps does provide some hope that the Appellant has seen the error of his ways. He has deposed to being drug-free in prison and that that has been confirmed by urinalysis. His plea of not guilty provides no evidence of remorse or acceptance of responsibility for his offending. The Pre-sentence Report gives the Appellant no comfort in this regard beyond saying that the Appellant has the support of his partner of 4 years and of his family. However, it is obvious that they were not enough to prevent the offending that led to these proceedings.

192 A psychological report in evidence included statements that the Appellant suffered longstanding symptoms of depression, anxiety and low self-esteem and while giving credit for the Appellant’s progress in overcoming his addiction said that it was of concern that he had not received any psychotherapy directed to the underlying cause of his problem. It assessed him as bright enough to respond to such treatment. An affidavit tendered during the hearing of the appeal stated that the Appellant had undertaken as many courses as were available to him but none of those he had undertaken fulfilled the advice of the psychologist.

193 In the result, although one can say that there are reasonable prospects of the Appellant being rehabilitated by the time he emerges from custody, it does not seem to me that the evidence is sufficient to enable one to say that his prospects in this regard are as high as “good”.

194 Being required by the conclusions at which I have arrived to determine myself the length of the sentences imposed on counts 7, 8, 9 and 10, and although I regard the sentences of 6 years and 7 years imposed by Judge Dodd on counts 1, 2 and 5 as within the appropriate sentencing range, subject to the remarks that follow, I would fix for each offence a non-parole period of 5 years and a full term of 6 years and 8 months. Each of the Appellant’s offences requires a sentence significantly longer than the guideline sentence indicated in R v Henry even though principles of totality will limit the effective operation of each sentence. (I may add that I am not unconscious that most of what I may refer to as the parole periods will be concurrent with other non-parole periods and, except in the case of the last 1 or 2 offence, it might have therefore been cleaner to impose fixed terms. However, having decided that there should be no interference with the sentences imposed by Judge Dodd on counts 1, 2 and 5, I am disposed to follow his Honour in imposing non-parole periods and longer total sentences.)

195 I turn then to the topics of totality, accumulation and concurrency. Clearly it is not appropriate to simply accumulate all of the non-parole periods. The issue is what effective total non-parole period and sentence properly reflect the Appellant’s criminality and other circumstances. The matter is one where there is no single correct answer and one upon which minds can readily and reasonably differ. The conclusion at which I have arrived is that an appropriate result is a non-parole period of 7½ years and a full term of 10 years. Incarceration for either of these periods involves a major imposition on a lifespan of the order of 75 years and in the case of someone like the Appellant, born in June 1974, is calculated to have an effect on his life – work, home, family etc - lasting long beyond the imprisonment itself. The periods also reflect a significant increase above the guideline suggested in R v Henry and also the penalty appropriate for one offence, making it clear to anyone in the position that the Appellant was in that the commission of one offence does not enable the commission of others with impunity.

196 In arriving at the periods referred to in the immediately preceding paragraph, I have given appreciable weight to the fact that the Appellant, of his own volition, even if partly inspired by his girl-friend, took significant steps to cure himself of his addiction. I should also record that I have taken into account the other matters referred to in s21A of the Crimes (Sentencing Procedure) Act although, given the factors argued in the appeal, I do not regard it as necessary to spell these out.

197 One matter which has caused me concern is that the sentence I propose is, particularly when account is taken of the fact that Yin pleaded guilty, appreciably less than that imposed on the latter. However, as Beazley JA has pointed out, although Yin faced only seven substantive charges (compared with the Appellant’s eight), he also had five Form 1 matters taken into account and was not regarded as having good prospects of rehabilitation. The remarks on sentence of Judge Tupman who sentenced Yin make it clear that the sentences for the offences where Form 1 offences were taken into account were higher than they would otherwise have been.

198 I do not find it necessary to analyse the differences further. It is sufficient to say that the sentences imposed on Yin, even if the result of this appeal is to create disparity, do not persuade me that those imposed and to be imposed on the Appellant should be higher than I have indicated.

199 I should mention also that in arriving at the conclusions I have, I have given consideration to whether there should be any finding of special circumstances. I see no basis for such a finding except the accumulation of sentences and would structure the last sentence so that the ratio of 3:1 contemplated by s44 of the Crimes (Sentencing Procedure) Act is achieved for the overall sentence. Given the total result of the sentences, that will achieve a sufficiently long non-parole period.

200 Accordingly, the orders I would propose are:-

1. Dismiss the appeal against conviction.

2. Grant leave to appeal against sentence.

3. Dismiss the appeal against the sentence imposed in respect of count 1, viz. that the Appellant be imprisoned for 6 years including a non-parole period of 4½ years, both such periods to commence on 25 October 2002.

4. Dismiss the appeal against the sentences imposed in respect of counts 2 and 5, viz. that for each offence the Appellant be imprisoned for 7 years including a non-parole period of 5 years and 3 months, both such periods to commence on 25 October 2002.

6. In respect of count 6, sentence the Appellant to imprisonment for a non-parole period of 5 years commencing on 25 October 2003 with a balance of term of 1 year and 8 months.

7. In respect of count 7, sentence the Appellant to imprisonment for a non-parole period of 5 years commencing on 25 April 2004 with a balance of term of 1 year and 8 months.

8. In respect of count 8, sentence the Appellant to imprisonment for a non-parole period of 5 years commencing on 25 October 2004 with a balance of term of 1 year and 8 months.

9. In respect of count 9, sentence the Appellant to imprisonment for a non-parole period of 5 years commencing on 25 April 2005 with a balance of term of 1 year and 8 months.

10. In respect of count 10, sentence the Appellant to imprisonment for a non-parole period of 4 years commencing on 25 April 2006 with a balance of term of 2 years and 6 months.

11. Record as the date upon which it appears to the Court that the Appellant will be first eligible for parole, 25 April 2010.

201 HISLOP J: I agree with the orders proposed by Beazley JA and generally with her Honour's reasons.

**********

03/04/2007 - Judgment date - Paragraph(s) Cover sheet

Citations

Qing An v R [2007] NSWCCA 53

Most Recent Citation

Cases Citing This Decision

121

HCF v The Queen [2023] HCA 35

Cases Cited

33

Statutory Material Cited

3

R v Henry [1999] NSWCCA 111

Hall v The Queen; Barker v The Queen [2017] ACTCA 16

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QING			YIN
Count	Offence	Sentence	Count	Offence	Sentence	Notional Sentence
1 16/08	Five Dock Victim: Dong Watch; mobile phone; cash $50 Knife	6 yrs 25/10/02 – 24/10/08 NPP 4 yrs 6 mths 25/10/02 – 24/04/07	1 16/08	Five Dock Victim: Dong Watch; mobile phone; cash $50 Knife	4 yrs 6 mths 8/10/02 – 7/04/07	6 yrs
2 23/08	Narwee Victim: Knathanong Watch; cash $120 Knife; threats	7 yrs 25/10/02 – 24/10/09 NPP 5 yrs 3 mths 25/10/02 – 24/01/08	2 23/08	Narwee Victim: Knathanong Watch; cash $120 Knife; threats	6 yrs 8/04/03 – 7/04/09	8 yrs
3, 4	Narwee Victims: Ying, Ding Cash $140, $100; mobile phones Knife; threats	Verdict by direction	Narwee Victim: Karakazois, Ying, Ding Cash $50, $140, $100; mobile phones Knife; threats	Form 1 (taken into account on Count 2)
5 23/08	Narwee Victim: Kwong Mobile phone; cash $100 Knife; threats	7 yrs 25/10/02 – 24/10/09 NPP 5 yrs 3 mths 25/10/02 – 24/01/08	3 23/08	Narwee Victim: Kwong Mobile phone; cash $100 Knife; threats	6 yrs 8/04/03 – 7/04/09	8 yrs
6 25/08	Sans Souci Victim: He Cash $850 Pistol/replica; threats	8 yrs 25/10/04 – 24/10/12 NPP 6yrs 25/10/04 – 24/10/10	[No co-offence]
7 26/08	Matraville Victim: Feng Gold neck chain; cash $15 Pistol/replica; threats	8 yrs 25/10/04 – 24/10/12 NPP 6yrs 25/10/04 – 24/10/10	Matraville Victim: Feng Gold neck chain; cash $15 Knife; threats	Form 1 (taken into account on Count 4)
8 26/08	Matraville Victim: Yuan Mobile phones; cash $1200 Pistol/replica; threats	8 yrs 25/10/04 – 24/10/12 NPP 6yrs 25/10/04 – 24/10/10	4 26/08	Matraville Victim: Yuan Mobile phones; cash $1200 Knife; threats s 97(2)	6 yrs 8/10/03 – 7/10/09	8 yrs
9 29/08	Rydalmere Victim: Lu Gold neck chain, ring; mobile phone; cash $1600 Pistol	9 yrs 25/01/06 – 24/01/15 NPP 6 yrs 9 mths 25/01/06 – 24/10/12	6 29/08	Rydalmere Victim: Lu Gold neck chain, ring; mobile phone; cash $1600 Pistol? s 97(2)	7 yrs 8/01/04 – 7/01/11	9 yrs 4 mths
[No co-offence]	Rydalmere Victim: Huang Pistol	Form 1 (taken into account on Count 6)
10 1/09	Ultimo Victim: Chow Gold neck chain; cash $130 Pistol (replica?); threats	9 yrs 25/01/06 – 24/01/15 NPP 6 yrs 9 mths 25/01/06 – 24/10/12	5 1/09	Ultimo Victim: Chow Gold neck chain; cash $130 Knife s 97(2)	6 yrs 6 mths 8/10/03 – 7/04/10	7 yrs 4 mths
[No co-offence]	7 8/10	Yagoona Victim: Le Wallet Replica pistol; threats s 97(2)	7 yrs 8/10/06 – 7/10/13 NPP 4 yrs 3 mths 8/10/06 – 7/01/11	9 yrs 4 mths NPP 5 yrs 8 mths

CITATION:	Qing An v Regina [2007] NSWCCA 53 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	4 August 2006
JUDGMENT DATE:	7 March 2007
JUDGMENT OF:	Beazley JA at 1; Hulme J at 122; Hislop J at 201
DECISION:	See paragraph 121.
CATCHWORDS:	CRIMINAL LAW – irregularity – consideration of prejudicial evidence by jury during deliberation – failure to discharge jury – whether trial judge gave appropriate directions - SENTENCING – application of s 44 Crimes (Sentencing Procedure) Act 1999 (NSW) – term of sentence followed by non-parole period – whether trial judge failed to correctly impose sentence - SENTENCING – grouping of offences – sentencing for individual offences – whether trial judge erred in not differentiating between offences within grouping – accelerating criminality - whether trial judge erred in having regard to date of offence not seriousness in imposing sentence - SENTENCING – parity in sentencing co-offenders – concept of fairness and legitimate sense of grievance - SENTENCING – comparable sentence - promotion of consistency in sentencing – whether sentence manifestly excessive compared to sentence for similar offences under Crimes Act 1900 (NSW) s 97(1) - SENTENCING – totality - accumulation of sentence – accumulation of sentence as a special circumstance
LEGISLATION CITED:	Crimes Act 1900 (NSW) ss 97(1), (2) Crimes (Sentencing Procedure) Act 1999 (NSW) ss 33, 44 Criminal Appeal Act 1912 (NSW) ss 6, 6(3), 10(1)(a)
CASES CITED:	Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 581 Festa v R (2001) 208 CLR 593; [2001] HCA 72 Johnson v The Queen (2004) 78 ALHR 616; [2004] HCA 15 Lowe v The Queen (1984) 154 CLR 606 Markarian v The Queen (2005) 79 ALJR 1048; [2005] HCA 25 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 Postiglione v The Queen (1996) 189 CLR 295 R v Baker [2000] NSWCCA 85 R v Bavadra (2000) 115 A Crim R 152; [2000] NSWCA 292 R v Budd [2002] NSWCCA 302 R v El-Andouri [2004] NSWCCA 178 R v Gorman [2002] NSWCCA 516 R v Henry & Ors (1999) 46 NSWLR 346; [1999] NSWCCA 111 R v Hung Lo (2005) 159 A Crim R 71; [2005] NSWCCA 436 R v Itamua [2000] NSWCCA 502 R v K (2003) 59 NSWLR 431; [2003] NSWCCA 406 R v Karaman (2002) 128 A Crim R 72; [2002] NSWCCA 48 R v King [1999] NSWCCA 251 R v Lansdell (NSWCCA, 22 May 1995, unreported) R v Marsland (NSWCCA, 17 July 1991, unreported) R v Olivier (NSWCCA, 15 September 1993, unreported) R v Rudkowsky (NSWCCA, 15 December 1992, unreported) R v Simpson (1992) 61 A Crim R 58 R v Street [2005] NSWCCA 139 R v Swadling [2004] NSWCCA 421 R v Timmis [2003] NSWCCA 518 R v Uasi [1999] NSWCCA 306 R v Yin [2005] NSWCCA 138 Wilde v R (1988) 164 CLR 365
PARTIES:	Qing An (Appellant) Regina (Respondent)
FILE NUMBER(S):	CCA 2006/747
COUNSEL:	M Ramage QC; I McLachlan (Appellant) P Barrett (Respondent)
SOLICITORS:	Kings Lawyers (Appellant) Director of Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/11/1173
LOWER COURT JUDICIAL OFFICER:	Dodd DCJ
LOWER COURT DATE OF DECISION:	14 December 2004