R v Chen

[2004] NSWCCA 369

CITATION:	Regina v CHEN [2004] NSWCCA 369
HEARING DATE(S):	7 October 2004
JUDGMENT DATE:	25 October 2004
JUDGMENT OF:	McClellan AJA at 1; Studdert J at 39; James J at 40
DECISION:	Appeal granted but appeal dismissed
CATCHWORDS:	APPEAL - aggravated break enter and steal - offence committed in company - whether sentencing judge erred in failing to take into account or have proper regard to time spent by the applicant in custody - whether sentencing judge failed to properly apply the totality principle - whether sentencing judge erred by failing to backdate the sentence - whether sentence manifestly excessive in the circumstances
LEGISLATION CITED:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW)
CASES CITED:	Mill v The Queen (1988) 166 CLR 59 R v Chi Luong (unreported, NSWCCA, 9 March 1994) R v Deeble (unreported, NSWCCA, 19 September 1991) R v Frascella [2001] NSWCCA 137) R v John David (unreported, NSWCCA, 20 April 1995) R v Jones (unreported, NSWCCA, 3 August 1992) R v Niass (unreported, NSWCCA, 16 November 1988) R v Simpson (2001) 53 NSWLR 704 at 75-79 R v Todd [1982] 2 NSWLR 517
PARTIES :	Pei Lin Chen (Appl) The Crown (Resp)
FILE NUMBER(S):	CCA 2004/1850; (60299/04)
COUNSEL:	T S Corish (Appl) J Girdhan (Crown/Resp)
SOLICITORS:	Legal Aid Commission (Appl) Solicitor for Public Prosecutions (Crown/Resp)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/11/0351
LOWER COURT JUDICIAL OFFICER :	Puckeridge DCJ

2004/1850 CCAP

McCLELLAN AJA
STUDDERT J
JAMES J

MONDAY, 25 OCTOBER 2004

REGINA v Pei Lin CHEN

Judgment

1 McCLELLAN AJA: This is an application by Pei Lin Chen for leave to appeal against a sentence imposed on him in the District Court on 17 December 2003 by Puckeridge DCJ for an offence of aggravated break enter and steal committed on 21 November 2001 contrary to s 112(2) of the Crimes Act 1900 (NSW). The circumstances of aggravation were that the offence was committed in company. The maximum penalty provided in the statute for such an offence is twenty years imprisonment.

2 Puckeridge DCJ imposed a sentence of four years imprisonment with a non-parole period of two years and six months. An identical sentence was imposed upon the applicant's co-offender, Danny Wu. The applicant's sentence was backdated to commence on 6 November 2002, making the applicant eligible for release on parole on 5 May 2005 under the supervision of the New South Wales Probation and Parole Service. The applicant is an illegal immigrant and upon release will be returned to China.

3 The sentencing judge found special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The non-parole period is 62.5% of the overall term.

4 The essence of the submissions for the applicant are as follows:

1. The sentencing judge erred in failing to take into account or have proper regard to time the applicant had spent in custody and detention prior to 6 November 2002.

2. The sentencing judge failed to properly apply the totality principle when considering the appropriate sentence, having regard to the fact that the applicant had been in custody or detention from 4 December 2001 until 6 November 2002.

3. The sentencing judge erred in failing to backdate the sentence, that is, order that the sentence commence on 4 December 2001 when the applicant had first been detained.

4. It is submitted that the sentence is manifestly excessive in the circumstances.

5 The events giving rise to the charge took place on 21 November 2001. On that day the applicant, in company with the co-offender, entered the dwelling of Da Wen Wang at 17 Orange Street, Hurstville and stole four gold rings, $AUS1,400 in cash, one prepaid telephone card, a watch and a Medicare card in the name of Da Wen Wang. The applicant was not charged in relation to the offence until 6 November 2002.

6 The applicant was arrested on 4 December 2001 and, according to the affidavit of Snr Constable Cooper, he was charged with 53 offences "including goods in custody, aggravated break and enter and commit serious indictable offence, in company - (conspiracy to commit unspecified offence) and break and enter with intent (steal) - (conspiracy to commit offence unspecified)".

7 From the period 5 December 2001 to 5 September 2002 the applicant remained in custody appearing for sentence in the Central Local Court on 5 September 2002. On that day he was sentenced to 5 days imprisonment dating from 4 December 2001 in respect of the goods in custody charge. Apparently the other matters were not pursued. On 6 September 2002 the applicant was transferred to the Villawood Detention Centre. He was charged with the present offence on 6 November 2002 and remained in Villawood Detention Centre. On 28 January 2003 the applicant was transferred to protective custody at Silverwater. He was committed for trial on the present matter of aggravated break enter and steal on 24 April 2003 and entered a plea of guilty on 2 September 2003.

8 The facts accepted by Puckeridge DCJ indicate that on 21 November 2001 the owners of the property at 17 Orange Street, Hurstville arrived home at about 12:00 pm. Apparently they had left home at about 10.30 am to go shopping, and prior to doing so had secured the windows and doors of the premises. On their return they saw that the rear window of their niece's bedroom was open. On entering the premises, they observed that one of the bedroom doors was open. After further investigation they found that the bedroom, the door of which had been opened, was in a state of disarray.

9 They left the bedroom and walked towards the front of the house and were confronted by three males, two of whom were the applicant and the co-offender. All three males were armed with knives. The two family members attempted to leave the house through the rear door but were prevented from doing so by the three males. The statement of Min Chen, the wife of Da Wen Wang, states that she recognised two of the knives being from the kitchen of the house. She further states that she did not see the third very well because she did not have her glasses on. She proceeds to state that she knew that the three males were Chinese because she recognised their accent and also spoke Cantonese. She said all three males spoke simultaneously to the victims and said:

"Don't make a noise or we'll kill you."

10 Apparently Da Wen Wang did try to speak to the applicant and his companions. However, he was also told not to say anything and threatened that if he did they would kill him. Min Chen says that the word "kill" was spoken loudly.

11 Puckeridge DCJ found that the threatening attitude of the applicant and his companions was a serious aggravating feature of the offence. He came to the view that the courage of the victims in the circumstances of the threat was quite exceptional.

12 As I have indicated, the applicant entered a plea of guilty on 2 September 2003. This was not the first available opportunity upon which a plea could have been entered. However, Puckeridge DCJ accepted that the plea should result in a discount and considered the appropriate discount to be twenty percent.

13 The applicant and his co-offender were illegal immigrants from China. The applicant has a family in China and it was indicated to Puckeridge DCJ that he was in the habit of sending money back home to assist his family.

14 Puckeridge DCJ considered that the appropriate sentence was five years imprisonment but, after deducting twenty percent for the plea of guilty, this was reduced to a term of imprisonment of four years. With respect to the non-parole period, his Honour indicated:

"I have struggled to find if there are any special circumstances so that the non-parole period be reduced. I have taken into account the fact that the offenders were charged on 6 November 2002 in respect to an offence which took place on 21 November 2001. I have also taken into account the fact that, upon completion of the non-parole period, both offenders will be returned to China. I propose to impose a non-parole period of thirty months, or two and half years, in the circumstances which I have just indicated."

15 The applicant speaks little English. He is thirty-seven years of age and the fifth of eight children. He was born and raised in China before coming to Australia five years ago. He is educated to the Chinese equivalent of Higher School Certificate standard and has some experience operating small businesses.

16 Apparently the applicant's decision to leave China was due to his economic circumstances. Since coming to Australia he has worked as a bricklayer in a business operated by another illegal immigrant. There is also a suggestion that he has a chronic gambling problem, which he says led to his criminal activity.

17 Central to the applicant's argument is that when imposing sentence, Puckeridge DCJ should have taken into account the time which the applicant spent in custody prior to 6 November 2002. Counsel for the applicant accepts that an offender is not entitled to simply claim "a credit" for time spent in custody in relation to unrelated matters. However, it is submitted that since the custody in detention was continuous from 2001 onwards, it is a matter that, having regard to principles of totality, should be taken into account when imposing sentence. It is submitted that it was unduly harsh to exercise the sentencing discretion without regard to the actual circumstances of the applicant, that is, he had been incarcerated for almost a year prior to the commencement of the sentence. It is submitted that the applicant was in confinement and that confinement was not broken by any period on bail or otherwise at liberty and, accordingly, the hardship which he had to endure should be taken into account. It is submitted that the applicant's position is analogous to that of the offender in Mill v The Queen (1988) 166 CLR 59.

18 It is further submitted that the circumstances of the applicant have been materially influenced by the fact that he was not charged with the relevant offence until 6 November 2002, almost a year after going into custody in relation to the goods in custody offence. It is submitted that the delay in charging the applicant could not be attributed to his own conduct for he was, of course, incarcerated. The delay has not brought him any advantages but in fact a disadvantage. It is submitted that if he had been charged at an earlier date, the time which he had spent in custody before being sentenced would have been properly considered and his sentence backdated.

19 Finally, it is submitted that the sentence is manifestly excessive.

20 Before this Court can intervene in relation to a matter of sentence, the requirements of s 6(3) of the Criminal Appeal Act 1912 (NSW) must be satisfied. The Court must be persuaded not only that error has been shown in the reasoning process of the primary sentencing court but that some other sentence is warranted in law: see R v Simpson (2001) 53 NSWLR 704 at 75-79.

21 A sentencing judge is obliged by the relevant provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) to take into account any time for which an offender has been held in custody in relation to the offence to which the sentence relates (see s 24 and s 47(3)). These sections do not oblige the judge to backdate the sentence (see R v Frascella [2001] NSWCCA 137).

22 In the present case, the applicant was given the benefit of backdating his sentence to the date on which he was charged, being 6 November 2002. By declining otherwise to backdate the sentence Puckeridge DCJ applied principles which have been consistently embraced by this Court. In R v Niass (unreported, NSWCCA, 16 November 1988), Lee CJ at CL, with whom the other members of the Court including the Chief Justice agreed, considered the circumstances of an applicant who had been sentenced in relation to a charge of supplying Indian hemp, having been previously arrested on other charges, but tried and acquitted of those charges. He had been held in custody on the other charges until the acquittal. The other charges had no relationship to the charge upon which he was convicted. It was submitted that the sentencing judge should have fixed a sentence in relation to the charge upon which the applicant was convicted which took into account the time in which he had been held in custody on the other unrelated matters.

23 The submission made to the court on that occasion was founded upon a proposition that because the appellant could have a "legitimate grievance" by being held in custody and subsequently acquitted, it is therefore a relevant matter to take into account in fixing a sentence in respect of another matter quite unrelated to the offences which were the subject of the acquittal. Lee CJ at CL records the fact that counsel was not able to put any authority before the court to support the submission and said:

"There have, of course, been cases were credit has been given in sentencing for periods of incarceration arising directly from the commission of the offence which brings the offender forward for sentence and that practice should be followed. The courts recognise that in dealing with a particular offence it is always appropriate to take into account periods during which an appellant has been held in custody in respect of that offence. But, to my knowledge, it goes no further than that."

24 His Honour went on to confirm the importance when sentencing of identifying matters relevant to the offence the subject of the sentence, which should be kept distinct from other circumstances of an offender that may have led to his or her incarceration.

25 The decision in Niass and other similar decisions were considered by this Court in R v John David (unreported, NSWCCA, 20 April 1995), where James J delivered the judgment of the Court. Commenting on Niass, his Honour said:

"In my opinion the then Chief Judge at Common Law should be taken as having laid down a general principle in Regina v Niass that, although when a person is being sentenced for an offence a period which he has already spent in custody in relation to that offence should be taken into account, a period which the person has spent in custody in respect of an unrelated offence should not be taken into account.
…
In any event in subsequent decisions of this Court, where the Bench has consisted of three judges, the Court has treated what Lee CJ at CL said in Niass as laying down a settled general rule to be applied irrespective of the circumstances of the particular case. These cases, as Judge Ducker noted, include Regina v Webster and Jones at page 16 and Regina v Cheung Chi Wong at page 6. In neither of these cases did the Court of Criminal Appeal enter upon any inquiry as to whether in the circumstances of the particular case it would be unjust to apply the principle that a period of custody in respect of an unrelated offence should not be taken into account or whether the applicant would be justified in feeling that he had been unjustly dealt with, if the period of custody in respect of an unrelated offence was not taken into account."

26 In R v Chi Luong (unreported, NSWCCA, 9 March 1994), this Court rejected the contention that in sentencing the appellant for a charge of supplying heroin, the sentencing judge should have given the appellant credit for time spent in prison without bail on another charge on which he was subsequently acquitted.

27 In R v Jones (unreported, NSWCCA, 3 August 1992), a similar submission was put to this Court when it was argued that when sentenced on a charge of conspiracy to bribe a member of the police force, an offender should have been given credit for time that he had spent in prison following a conviction in relation to another matter of an alleged corruption which was ultimately set aside by the Court of Criminal Appeal. The Chief Justice records that "such a course would be contrary to authority and principle" and refers to the decision in Niass.

28 The applicant relies on the remarks of Badgery-Parker J in R v Deeble (unreported, NSWCCA, 19 September 1991), However, in that case the applicant had not been given credit by the sentencing judge for a period of time spent in custody in relation to the very matters for which the applicant was being sentenced. In accordance with ordinary principle, the applicant was entitled to that credit.

29 Particular reliance was placed by the applicant on the decision of the High Court in Mill. In that case, the offender committed three armed robberies, two in Victoria and one in Queensland, within a period of six weeks in December 1979 and January 1980. In September 1980 he was sentenced in respect of the Victorian offences to ten years imprisonment with a non-parole period of eight years. Upon his release on parole in Victoria, he was arrested and returned to Queensland where he was convicted of the Queensland offence and sentenced to imprisonment for eight years, with a recommendation that he be considered for parole after three years in recognition of the fact that he had already served eight years for the Victorian crimes.

30 The High Court held that in deciding the appropriate sentence for the Queensland offence, the sentencing judge should have considered what effective head sentence would have been likely to have been imposed if the accused had committed all three offences in one jurisdiction and had been sentenced at the same time.

31 The High Court accepted that in those circumstances the approach adopted by this Court in R v Todd [1982] 2 NSWLR 517 was applicable. In Todd, Street CJ said [at NSWLR 519]:

"… it would be wrong, in my opinion, to disregard the practical situation that the appellant had already served a substantial period of imprisonment in Queensland for offences so closely related in time and character to the Sydney offences … where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance he has been left in the state of uncertain suspense as to what will happen to him when in due course he comes up for sentence ton the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach … ."

32 In the joint judgment of the court in Mill, the reasoning expounded in Todd was said [at CLR 66] to be correct and to reflect:

"… a just and principled approach to the problem of sentencing when an offender comes to be sentenced many years after the commission of an offence because during the intervening period he has been serving a sentence imposed in another State in respect of an offence of the same nature and committed at about the same time. … The long deferment of the trial or punishment of an offender, with the consequent uncertainty as to what will happen to him, raise considerations of fairness to an offender which must be taken into consideration when the second court is determining an appropriate head sentence."

33 In the present case, the applicant initially spent time in custody on remand in relation to an offence of goods in custody and other matters followed by a period in custody because of his immigration status. Neither period relates to the offence for which he was sentenced by Puckeridge DCJ.

34 The circumstances of the present applicant are quite different from those of the applicants in Mill and Todd. Although the applicant spent time in custody, this was either for unrelated offences or because of his status as an illegal immigrant. Although there was a lapse of time it was relatively short and, in my opinion, principles of totality have no relevance. The imposition of an appropriate sentence in relation to the present offence did not require consideration of the previous periods of detention. Although the applicant was required to endure a period of detention in relation to charges for one of which he was ultimately sentenced for a short period, it does not appear that he was required by reason of his incarceration to endure periods of uncertainty or deprived of an opportunity to have the present charge disposed of at an earlier time.

35 Accordingly, I am satisfied that it would be contrary to principle to have backdated the applicant's sentence for any period spent in custody which was not related to the offence for which he was being sentenced.

36 With respect to matters of delay and the applicant's immigration status, the learned sentencing judge had regard to these matters when considering the question of special circumstances. The non-parole period was reduced by six months. I am satisfied that this was an appropriate response to these matters.

37 The offence committed by the applicant and his co-offenders was objectively serious. The criminality was significantly increased by the carrying of knives and the threat to kill the members of the family who interrupted the applicant's activities. Having regard to the very serious nature of the offence, the sentence imposed by Puckeridge DCJ was, in my opinion, appropriate.

38 I propose that leave to appeal be granted but the appeal be dismissed.

39 STUDDERT J: I agree with McClellan AJA.

40 JAMES J: I agree with McClellan AJA.

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Last Modified: 12/15/2004