R v Lam & Parker

[2006] SASC 278

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v LAM & PARKER

[2006] SASC 278

Judgment of The Court of Criminal Appeal

(The Honourable Justice Duggan, The Honourable Justice Sulan and The Honourable Justice David)

8 September 2006

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - OFFENCES AGAINST THE PERSON

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - MISCELLANEOUS OFFENCES - KIDNAPPING

Appeal by DPP on ground of manifest inadequacy of sentences - respondents charged with aggravated serious criminal trespass in a place of residence, false imprisonment, aggravated robbery and kidnapping - Parker pleaded guilty to all offences while Lam pleaded not guilty but convicted by jury of all offences - sentencing judge's starting point for both respondents was 14 years imprisonment - where all offences part of same episode of offending committed pursuant to joint enterprise - where respondents invaded victim's home armed with gun and tazer - victim's husband tied up after Lam inflicted two electric shocks using tazer - victim bound, blindfolded and kidnapped for ransom with threats upon her life - ransom attempt abandoned and victim located by police early following morning - where sentencing judge considered 10 years imprisonment appropriate in relation to kidnapping of victim and four years imprisonment appropriate for false imprisonment of victim's husband - whether ten years imprisonment inadequate starting point for kidnapping - found, sentences were within the appropriate range of sentences - inappropriate to lay down guidelines and principles for sentencing in present case - Held: application for leave to appeal refused.

Griffiths v R (1977) 137 CLR 293; R v O'Rouke [1997] 1 VR 246, discussed.

R v LAM & PARKER
[2006] SASC 278

Court of Criminal Appeal:  Duggan, Sulan and David JJ

1. DUGGAN J.         This is a prosecution appeal against sentences imposed on the respondents.

2. The respondents were charged with aggravated serious criminal trespass in a place of residence, false imprisonment, aggravated robbery and kidnapping.  The offences were all part of the same episode of offending.

3. The respondent Parker pleaded guilty to the offences.  The respondent Lam pleaded not guilty, but was convicted by a jury of all offences.

4. The learned sentencing judge considered that, in the case of each respondent, an appropriate starting point for the head sentence for the combined offences was imprisonment for 14 years.  After making allowance for time spent in custody in relation to these matters, the trial judge sentenced Lam to imprisonment for twelve years and five months.  This was ordered to be served cumulatively upon the unexpired portion of a previous sentence amounting to one year and three months.  A non-parole period of nine years and six months was ordered.  In the case of Parker, allowance was made for the time spent in custody, and the sentence was also reduced by reason of the pleas of guilty.  In the end result, Parker was sentenced to imprisonment for ten years and five months with a non-parole period of six years and nine months.

5. The Director of Public Prosecutions has applied for leave to appeal against sentence on the ground of manifest inadequacy.

6. The offences were committed as part of a joint enterprise.  The victim, Ms Do, and her husband, Mr Tran, live at Prospect.  On the morning of Friday 16 April 2004, the respondents entered the victim’s home armed with a gun and a tazer or stun gun.  Mr Tran was made to lie on the floor and Lam inflicted two electric shocks on him with the tazer.

7. The respondents searched the home for money and took $450.  Mr Tran was tied up and Ms Do was bound and blindfolded.  She was taken from the house by the respondents and driven to a house at Pooraka.

8. At the Pooraka house, Ms Do was directed to telephone her father and advise him that $100,000 had to be paid for her release.  Ms Do was told that if the police intervened, or the ransom was not paid, she would be killed.

9. Late in the afternoon of the same day, the respondents abandoned the attempt to obtain a ransom.  They left the house and Ms Do was found there by the police at about 4.00 am on the following morning.

10. It is clear that the offences were particularly serious and caused considerable distress to the victim and her husband.  The respondents were not entitled to leniency by reason of good character.

11. The principal contention of the learned Solicitor-General was that the starting point of imprisonment for fourteen years for these offences was manifestly inadequate.  It was pointed out that the sentencing judge considered a penalty of ten years was appropriate in relation to the kidnapping of Ms Do and that imprisonment for four years was appropriate for the false imprisonment of Mr Tran.  It was submitted that imprisonment for ten years was an inadequate starting point for the kidnapping.

12. Although the sentencing judge cannot be criticised for identifying the nominal sentences of ten years and four years, it is appropriate to have regard to the fact that all the offences were “so closely related and interdependent that it can reasonably be said of them that they arise out of the one transaction”: R v O’Rourke [1997] 1 VR 246 at 253. There was also an overlap because the violence and threats of violence were relevant to all offences. Nevertheless, there was not a complete overlapping and the sentencing judge recognised that the circumstances relating to each offence which formed part of the total conduct increased the seriousness of the offending.

13. The attention of the court was drawn to a number of kidnapping cases dealt with in this State and elsewhere.  It is appropriate to bear in mind that offences of this nature are fortunately rare and there is considerable variety in the circumstances of the offending in the cases referred to in the authorities.   Nevertheless, the Solicitor-General correctly pointed out that the sentences imposed for offences of this nature interstate were much lower than the range of sentences for similar offences in this State.  However, if the sentences imposed in other cases in this State are compared with the sentences in the present case, it cannot be said that these sentences are outside the penalty range evident from previous cases.

14. It is not suggested that the sentencing remarks in this case disclose any specific error.  Rather it is said that the resulting sentences, of themselves, demonstrate manifest inadequacy.

15. I cannot agree with this submission.  In my view, the sentencing judge did not underestimate the seriousness of the offences, and the sentences which were passed were within the range of sentences appropriate for this type of offending.

16. Furthermore, this is not a case in which it is appropriate to “lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons”: Griffiths v R (1977) 137 CLR 293 at 310. The seriousness of offences of this nature is self-evident and does not require elaboration. The case does not give rise to a consideration of any principle of sentencing which would justify the intervention of this court.

17. I would refuse leave to appeal.

18. SULAN J. I agree with the reasons of Duggan J.  I would refuse leave to appeal.

19. DAVID J.               I agree with the reasons given by Duggan J.  I would refuse leave to appeal.