R v Huang

[2002] NSWCCA 499

CITATION:	R v Huang [2002] NSWCCA 499
FILE NUMBER(S):	CCA 60266/02
HEARING DATE(S):	11/12/2002
JUDGMENT DATE:	11 December 2002
PARTIES :	Regina v Jun Yu Huang
JUDGMENT OF:	Howie J at 1; Buddin J at 19

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	02/11/0116
LOWER COURT JUDICIAL OFFICER :	Kinchington DCJ

COUNSEL :	LMB Lamprati - Crown EL Fullerton SC - Applicant
SOLICITORS:	SE O'Connor - Crown Raymond Lee & Co. - Applicant
CATCHWORDS:	No matter of principle.
LEGISLATION CITED:	Crimes Act 1900 - s 188 Justices Act 1902 - s 51A
CASES CITED:	R v Thomson and Houlton (2000) 49 NSWLR 383
DECISION:	Application for leave to appeal is granted but the appeal is dismissed.

60266/02

HOWIE J
BUDDIN J

WEDNESDAY 11 DECEMBER 2002

R v Jun Yu HUANG

Judgment

1 HOWIE J: This is an application for leave to appeal against a sentence imposed upon the applicant by his Honour Judge Kinchington for an offence of receiving stolen property contrary to s 188 of the Crimes Act 1900. The maximum penalty prescribed by that section is imprisonment for 10 years. The applicant was sentenced to imprisonment for 5 years with a non-parole period of 3 years.

2 The facts were not in dispute and can be briefly stated. On 8 August 2001 commercial premises were broken into and 58 laptop computers stolen by persons unknown. For some reason, the applicant came to the attention of investigating police and on 22 August an undercover police officer made telephone contact with him. Initially the applicant could not talk with him because he was playing golf but he said that he would ring the officer later. When the officer had not heard from the applicant, he rang him again and this time the applicant indicated that he had nineteen computers for sale at a price of $2,800 each. The officer said that he wanted fifteen and was told that the cost would be $42,000. The applicant told the officer that he would sell him the nineteen for $50,000. The officer asked if he could purchase the fifteen for $40,000, but the applicant declined the offer. The applicant told the officer to ring him the next morning if he had the money.

3 The next day, 23 August, the officer made contact with the applicant and arranged to meet him in central Sydney. After they had located one another, the applicant took the officer to a shop in George Street and showed him the computers. During conversations between them, the applicant told the officer that he had purchased the computers for $2,600 each and was making $200 profit on each sale. Having agreed to the sale of fifteen computers, the applicant was arrested in the course of delivering them to the officer. The applicant was charged with receiving 25 laptop computers.

4 The applicant participated in an electronically recorded interview with police during which he claimed that he was selling the computers on behalf of a person he knew as Jackie or Tan. He did not know where this person lived but he had sold stolen computers for him about 18 months previously when the applicant had a computer shop. He said that on the present occasion Jackie telephoned him and asked him if he knew anyone who wanted to buy some computers. The applicant told the police that he might receive $100 or $200 for each computer he sold. When asked from where Jackie had obtained the computers, the applicant said that he might have imported them. He was equivocal as to whether he thought that they were stolen. The interview came to a conclusion after the applicant had spoken by phone with his solicitor.

5 The applicant is aged 24 years. He is a Chinese national who came to this country with his parents when he was aged 11 years. He has a criminal record for offences of dishonesty commencing in the Children’s Court in 1995. He was before the court and was fined for dishonesty offences in 1996 and 1997. In March 2000 he was before the Local Court for a large number of offences of receiving and goods in custody. He was placed on two supervised recognisances and ordered to perform a total of 500 hours community service. On 30 July 2001 the applicant was again before the Local Court for a number of offences of goods in custody and frauds involving credit cards. He was sentenced to 6 months home detention. The applicant was subject to the recognisances and serving home detention when he committed the offence for which he was before Judge Kinchington.

6 The applicant did not give evidence on sentence but a report of a psychologist was tendered on his behalf. The applicant had told the psychologist that he had been addicted to gambling since the age of 13 years because he felt neglected by his parents. He described his gambling habit as being similar to a drug habit. He said that his criminal behaviour was linked to efforts to pay off his gambling debts. The psychologist, having referred to the facts of the matters for which the applicant was sentenced to home detention, opined that they were so extraordinary that it was likely that his activity on that occasion was a cry for help to stop his criminal behaviour. He reported that that applicant abhorred his criminal conduct. The psychologist stated that the applicant was aware of his need to address his gambling addiction and had committed himself to treatment on his release.

7 The applicant has been in custody since his arrest. He was, as I have indicated, serving a sentence by way of home detention at the time of the offence. I pause to note the extraordinary situation that a person can be at the same time both serving a sentence of imprisonment and yet be at liberty to play golf let alone arrange and carry out the sale of stolen property. The order for home detention was revoked on 28 August 2001 and from that date until 24 January 2002, the applicant was serving the balance of that sentence in prison. However, notwithstanding the fact that he was serving a sentence for an unrelated offence, the sentencing judge backdated the sentence he imposed to the date of the applicant’s arrest. This was, in my view, an unmerited windfall for the applicant.

8 There is a single ground of appeal filed which is as follows:

His Honour did not give adequate weight to the plea of guilty and in all the circumstances the sentence imposed was excessive.

9 The applicant was of course caught in the act of selling the computers to the police officer. Although he did not admit to the fact that he knew the computers were stolen during the interview with police, he did plead guilty before the magistrate and was committed for sentence pursuant to the provisions of s 51A of the Justices Act. He adhered to that plea in the District Court.

10 Judge Kinchington gave both written reasons and shorter oral reasons when sentencing the applicant. In the written reasons, his Honour indicated that he had given the applicant a discount of 20 per cent “for the factors I have previously identified”. It is not clear to what his Honour was referring. He did indicate that the applicant had pleaded guilty at the first available opportunity and that from the history he had given to the psychologist it seemed to his Honour that he had “some remorse and contrition for his present and past criminal behaviour which he attributes to his gambling”. His Honour also referred to the early plea of guilty and the “discount on sentence that plea entitles him to in this case”. In the oral remarks his Honour said, “I have applied a discount of 20 percent because of the subjective material to which I have referred in my reasons for judgment including your early plea.”

11 It is submitted by Ms Fullerton SC for the applicant in her written submissions that the sentence was excessive and that his Honour erred in the following respects:

(a) commencing the calculation of the term of imprisonment at greater than 50% of the maximum provided for under the Act;

(b) failing to give any weight at all to the admissions the applicant made to police upon arrest about the nature of his prior dealings with the person from whom he had obtained the computers for sale (see Q’s 39, 51, and 92-107 of the Record of Interview);

(c) by failing to give adequate weight to the applicant’s plea of guilty, the plea being replete with remorse, acceptance of responsibility for the offending conduct and a willingness to facilitate the course of justice (see Cameron v The Queen [2002] HCA 6 (11-14));

(d) by failing to give adequate weight to the compelling subjective circumstances establishing the applicant’s pathological addiction to gambling, his apparent failure to comprehend the peril of his unabated involvement in criminality until his incarceration on remand, and his commitment to addressing it upon release (see the report of Dr Hampshire 3 April 2002);


In my view there is no substance in any of these complaints and the sentence is not manifestly excessive.

12 His Honour described the objective criminality displayed by the applicant in the commission of the offence as “towards the higher end of the scale of criminality in respect of this type of offence”. In my view his Honour was entitled to come to that assessment taking into account, not only the nature of the goods involved, their worth, and the commercial nature of the criminal enterprise in which the applicant was involved, but also the applicant’s criminal history. Clearly the fact that the applicant was at the time of the offence both subject to good behaviour bonds for offences of dishonesty and serving a sentence was a matter of significant aggravation.

13 The applicant’s criminal record, although not lengthy in period of time, was such that his Honour was entitled to take the view that he should identify the applicant as a person upon whom the full weight of the law was to rest so far as both personal and general deterrence was concerned. In light of the objective seriousness of the offence and the applicant’s re-offending, the sentencing judge was entitled to pitch the sentence at the higher end of the appropriate range. While I might be persuaded to accept that a sentence in the order of six years would be unusual for a single offence of receiving, I am totally unpersuaded that it was not within his Honour’s discretion to start at such a level as against a maximum penalty of 10 years in the factual circumstances of this particular case.

14 In my opinion the applicant could obtain little assistance by way of mitigation of his sentence from what he told the police in his interview. He was, of course, caught red-handed in the act of selling the computers to the undercover officer. In the interview with police he could not realistically deny his involvement in the sale of the computers. The applicant, however, was hardly forthcoming about identifying the person from whom he supposedly received them. The fact that he admitted that he had purchased stolen computers from this person before may have assisted the Crown to prove the applicant’s knowledge that the computers were stolen, but the whole circumstances of the Crown’s case against the applicant would have made conviction inevitable regardless of what the applicant had told the police. The strength of the Crown case was not found in any admissions or assistance offered by the applicant in the interview, which was terminated at the request of his solicitor.

15 Although the applicant pleaded guilty at the first available opportunity it was not incumbent upon the sentencing judge to give him the benefit of a discount of 25 per cent. There is nothing in R v Thomson and Houlton (2000) 49 NSWLR 383 that mandates any particular discount be given by a sentencing judge. It is a guideline judgment. In my view it was open to his Honour to determine that 20 percent was appropriate to meet the circumstances of the particular case. On the hearing of the appeal counsel for the applicant has, if I might say so, very sensibly addressed the particular issue of the appropriate discount that had been given by His Honour to the applicant both in the light of the plea of guilty, the statements made by the applicant indicating his guilt at the time he was interviewed by the police and some contrition which was found in the psychiatrist’s report. The suggestion that the plea was “replete with, remorse, acceptance of responsibility for the offending conduct and a willingness to facilitate the course of justice” is not justified. Although as I have indicated, there was some evidence in the psychiatric report that the applicant was remorseful for his criminal behaviour, that material has to be regarded in the light of his continued offending. The applicant did not give evidence and little weight should be placed on statements he made to the psychiatrist regarding the circumstances of the offences or his future intentions, see Qutami (2001) 127 A Crim R 369. The applicant’s acceptance of responsibility was limited in the way I have indicated. It seems to me that some of his statements to police were in fact inconsistent with what he said to the undercover police officer.

16 The applicant could receive little assistance or consideration from the fact that he claimed that his offences were a result of his addiction to gambling even if his statements to the psychiatrist are accepted. It is clear that the applicant had received every consideration from the courts by way of supervised bonds, community service and finally home detention, yet he continued to offend. If there were any cry for help in the earlier offences he committed, which I do not accept, that cry was well and truly answered by the sentence of home detention. The only basis upon which the applicant’s gambling addiction and his statements of a present intention to address the problem could have any significant weight was in the finding of special circumstances and the assessment of the appropriate non-parole period. In my opinion a non-parole period that permitted the release of the applicant before serving a period of three years would not be appropriate to reflect the objective seriousness of the criminality for which he was to be punished.

17 I have already indicated that the applicant received the undeserved benefit of a backdate of the sentence to the date of his arrest notwithstanding that he was serving the balance of the sentence of home detention for a period of five months before he was sentenced. I myself do not understand why his Honour made that order which seems to me to offend all sentencing principles. In my view no lesser sentence than that which the applicant is required to serve could be justified on the material before the court. Even if there were any error, and I do not believe there was, this Court would not intervene, given the sentence that was imposed on the applicant

18 I propose that the application for leave be granted but that the appeal be dismissed.

19 BUDDIN J: I agree.

20 HOWIE J: The orders of the Court will be as I have proposed.

**********