R v Lam
[2002] VSCA 119
•1 August 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 253 of 2001
| THE QUEEN |
| v. |
| HOANG ANH LAM |
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JUDGES: | PHILLIPS, C.J. and CHERNOV and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 1 August 2002 | |
DATE OF JUDGMENT: | 1 August 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 119 | |
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Criminal law - Sentence - Two counts of armed robbery - No question of parity with sentence on co-offender - Sentence of three years and three months' imprisonment considered to be lenient.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R.A. Elston | K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr G.F. Smith | Simon Northeast |
PHILLIPS, C.J.:
The appellant, who is now aged 24, pleaded guilty in the County Court at Melbourne on 4 October last to two counts of armed robbery, being counts 1 and 6 on the presentment then before the court and in which a man called Tuan Van Tran was named as an accused person. These offences, which each carried a maximum penalty of 25 years' imprisonment, were committed on 9 August and 23 October 2000 at Collingwood.
After hearing a plea for leniency during which the appellant admitted various prior convictions, the learned judge on 5 October sentenced the appellant to be imprisoned for two-and-a-half years on each count. His Honour directed that nine months of the sentence on count 6 be served cumulatively with that on count 1, making for a total effective sentence of three years and three months. A non-parole period of two years was fixed.
Tran, sentenced by the same judge, received sentences of two-and-a-half years' imprisonment on counts 1 and 6, additional sentences of imprisonment on counts 2 and 8 and, with a cumulation direction, a total effective sentence of four years resulted and a non-parole period of two years and six months was fixed.
The appellant later lodged notice of application for leave to appeal against sentence pleading various grounds, and, on 15 February last, Callaway, J.A. granted him leave to appeal on the understanding those grounds would be amended. This in fact occurred and the grounds now before this Court are as follows:
"1.The learned sentencing judge erred by failing to apply the principle of parity in that he imposed sentences on the applicant and his co-offender which failed to take into account the disparities between them and thereby left the applicant with a justifiable sense of grievance.
2.The learned sentencing judge erred by giving insufficient weight to the applicant's co-operation with the police by reason of -
(a)his finding that the applicant had denied count 6 when formally interviewed by the police; and -
(b)having been misinformed by the prosecutor that the applicant had implicated his co-offender only in his record of interview and not in a formal statement."
It is now necessary to set out in summary form the facts of these matters, and in this exercise I have recourse to the summary of evidence supplied to the Court.
Count 1: In the early morning hours of 9 August 2000 the appellant and two other males, one of them Tran, hailed a taxi-cab near the Ginifer railway station. The driver, one Raman Devgan, was asked to drive the group to Collingwood and he complied. On the way the men in the back were smoking cigarettes. While the vehicle was stationary at an intersection in Collingwood a back-seat passenger grabbed the driver around the neck. The driver then felt a cold, sharp object against his neck which he assumed was a knife. The front-seat passenger also held something against the driver's head, pushing that object into his right eye so that he could not see or move. A demand was made of the taxi driver for money. He took $40 from his pocket and handed it over. The men then took about $500 from the driver's wallet. A demand was also made of the driver for his mobile telephone, and that also was taken. The group then left the taxi and ran off. The victim stated that throughout the robbery he was very scared, being frightened that he would be stabbed. He was particularly concerned about the object held to his eye. When police officers later examined the taxi, a cigarette butt was located in the nearside foot-well. Biological material was subsequently extracted from that item. DNA analysis indicated that both the appellant and Tran had contributed to that material. The appellant was interviewed in respect of this offence on 24 October 2000. He denied any knowledge of the incident. He did, however, consent to the taking from him of an intimate sample.
Count 6: In the very late hours of the evening of 23 October 2000 the appellant and Tran hailed a taxi-cab in Collingwood driven by one Amir Yousif. They asked to be driven to the city via a stop in the area. They commenced their journey with the appellant sitting in the front seat beside the driver. They had only travelled a short distance when the appellant told the driver to pull over. He made some telephone calls and then told the driver they no longer needed to go to the city. The driver told the men the fare would be $5.50. The appellant paid the driver and received his change. He then produced a kitchen knife approximately 15 centimetres in length. He held it in front of the driver's face and grabbed the taxi driver's shirt pocket. Tran also produced a knife with a blade approximately 5 centimetres in length. He put this in front of the driver's face. The appellant then demanded of the driver, "Just give me all your money." The driver handed over his night's earnings, approximately $300. Both offenders then demanded repeatedly that the driver hand over his mobile telephone and wallet, but he stated he did not have either. Tran then struck the driver in the head (count 8 on the presentment). The two offenders then alighted from the vehicle and ran off. The complainant stated that in the course of the robbery he was frightened and scared that he would be stabbed with one of the knives. He received a small cut to a finger and a bruise to his face. After the robbers had escaped, the driver set off a personal alarm. Police were contacted and they alerted security officers working at nearby Housing Commission flats. The security officers later reported that two young males matching the description of the offenders had been seen in a Hoddle Street bus shelter. Shortly afterwards the appellant and Tran were arrested at that bus shelter. The appellant was found to be in possession of a large kitchen knife matching that described by the taxi driver and $140 in notes. Tran was found to be in possession of a smaller knife, again matching that described by the taxi driver. Both offenders were interviewed that morning. The appellant's account varied from that of the taxi driver as to some details, but otherwise he made full admissions to his involvement in the offence. He stated he had been the front-seat passenger. The appellant also made a confessional statement which offered some additional details to those asserted in the interview. Tran denied any involvement in the offence and maintained this when confronted with the appellant's statement that he had been involved. He stated he had only joined the appellant to accompany him to the bus shelter. He claimed he had carried the knife for self-defence.
I now turn to the arguments of counsel on this appeal.
Mr Smith for the appellant began his submissions by stating that the appellant's sentence, considered in isolation, was not susceptible to any justified complaint of excessiveness. As to ground 2, he indicated he did not press paragraph (a) thereof but he proposed to call in aid paragraph (b) in relation to his arguments on ground 1. Counsel said he did not offer criticism of the sentencing judge's conclusion as to the respective roles in the offences of the appellant and Tran. He then referred to R. v. Ritter[1], a case of two offenders trafficking in heroin. In that case, Charles, J.A. referred to the circumstance that the appellant therein had provided considerable assistance to the police and the co-offender had not done so, yet both received the same sentence. Mr Smith pointed to a passage at pages 38 and 39 of the transcript in this matter where it appeared the judge had been misled as to the appellant's degree of co-operation with the police by the Crown Prosecutor. Counsel said, in answer to me, that he submitted that the head sentence of the appellant on count 6 and the non-parole period fixed for him should both have been less than those fixed for Tran. This should have been so, Mr Smith argued, because of what he called the points of disparity which he had set out in his written outline supplied to the Court. These were: the appellant's earlier plea of guilty to count 6; his co-operation with the police on 24 October where he admitted his own offence and named Tran; his rehabilitation in prison; and his youth - for he was three years younger than Tran.
[1][2000] VSCA 135.
Mr Elston for the Crown relied on his written outline of submissions and sought to distinguish Ritter's Case by reason of the much greater assistance provided to the authorities by the appellant in that case than that provided by the present appellant. As to count 1, counsel said, the appellant did plead guilty but did not identify his two co-offenders. Accordingly, counsel argued, the somewhat limited assistance by the appellant had to be balanced against other matters, including his prior convictions and the seriousness of his crimes, committed as they were on vulnerable taxi driver victims. Indeed, said Mr Elston, the appellant's prior convictions alone would provide a clear basis for disparity of sentence, although he contended that no such disparity could indeed be determined. He argued that in reality the sentences imposed on both the appellant and Tran can only be described as extremely merciful.
I now turn to my conclusions.
In my opinion, this appeal, based essentially on allegations of disparity of sentence, is brought in the face of insuperable difficulties. When he reluctantly granted leave to appeal, Callaway, J.A. described the appellant's sentence as very lenient. I respectfully agree. Indeed I would go further and say that it stretches the application of mercy to its furthest reasonable limit. Next, the offences committed by the appellant are very serious ones and were properly found to be so by the sentencing judge. They each carry a maximum penalty of 25 years' imprisonment.
Having considered the submissions of counsel for the appellant, I cannot, for my part, discern even an arguable disparity between the two sentences. Count 8 on the presentment, which involved Tran, was intimately connected with the commission of count 6. While the appellant's attempts at rehabilitation were acknowledged by the sentencing judge, he also properly found that Tran had been involved in similar efforts. The appellant's prior convictions were much more numerous than those of Tran and involved repeated breaches of merciful sentences accorded to him by the courts. The so-called points of disparity in my opinion are insubstantial and balanced by other considerations. If it had not been for the evidence of the witness Ms Hooker, the appellant may well have properly received a more severe sentence than that of Tran.
As pleaded and argued, I consider this appeal to be without merit and I would propose that it be dismissed.
CHERNOV, J.A.:
I agree.
VINCENT, J.A.:
I agree.
PHILLIPS, C.J.:
The order of the Court is:
The appeal against sentence stands dismissed.
(Discussion follows:)
PHILLIPS, C.J.: Mr Smith, if I were to speak to your client directly, would he follow what I say?
MR SMITH:I believe he would, Your Honour.
PHILLIPS, C.J.: Mr Lam, the judge who sentenced you in the County Court, Judge Robertson, was impressed with the efforts that you have made in prison to rehabilitate yourself. Do you follow?
APPELLANT: Yes.
PHILLIPS, C.J.: So are we, and, as I have said, if it had not been for the evidence of Ms Hooker, you would have faced a much more severe sentence. Your case has now been considered by two courts. Justice Callaway, when he gave you leave to appeal, thought that the sentence imposed on you was very lenient. I think so, and so do the other two judges. So you have got four Judges of Appeal being of that opinion. Do you understand?
APPELLANT: Yes.
PHILLIPS, C.J.: If you have got some notion in your mind that you were badly dealt with, you can put that on one side. All right?
APPELLANT: Yes.
PHILLIPS, C.J.: And the Court hopes that you will continue in prison the efforts that you have made to rehabilitate yourself. We appreciate what you have done. Do you understand?
APPELLANT: Yes.
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