R v Lo

[2022] NSWDC 37

District Court

New South Wales

Medium Neutral Citation:

R v Lo [2022] NSWDC 37

Hearing dates:

25 January 2022

Date of orders:

25 January 2022

Decision date:

25 January 2022

Jurisdiction:

Criminal

Before:

M L Williams SC DCJ

Decision:

A term of imprisonment of 16 months to be served by way of an intensive corrections order: [25]-[27].

Catchwords:

CRIME — Violent offences — Demanding property with menaces

SENTENCING — Aggravating factors — Financial gain — Planned or organised criminal activity

SENTENCING — Mitigating factors — Good character — Plea of guilty — Remorse — Unlikely to re-offend

SENTENCING — Penalties — Intensive correction orders

SENTENCING — Relevant factors on sentence — Co-offenders — Joint criminal enterprise —Objective seriousness — Purposes of sentencing — Sentencing statistics

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Category:

Sentence

Parties:

Regina (Office of the Director of Public Prosecutions)

Chunlung Lo (Offender)

Representation:

Mr P Cramer (Solicitor, Office of the Director of Public Prosecutions)

Mr J Overall (counsel for the Offender)

File Number(s):

2020/330515

Judgment

1. Chunlung Lo, now aged 38, appears for sentence having pleaded guilty to one count of demand money with menace in company contrary to s 99(2) of the Crimes Act 1900. The offence carries a maximum penalty of 14 years imprisonment with no standard non-parole period.

2. He pleaded guilty in circumstances justifying a 10% discount on any term of imprisonment.

3. It is conceded that the s 5 threshold has been crossed so the issue to be determined is whether any term of imprisonment should be served by way of an intensive corrections order.

4. He has no prior criminal record. Following his arrest on 18 November 2020 served almost four months in custody.

5. The objective seriousness of the offending is to be assessed by taking into account the nature of the menaces, the duration of the offence, the role of the offender and the amount of planning involved.

6. In short, the facts show that on 18 and 19 November 2020 there was a joint criminal enterprise between four men, Mr Lo being the first one of them to be sentenced. The object of the enterprise was to demand money from the victim, a man who goes by the name of Desmend.

7. A co-offender, Mr Zhang, was to be listed for sentence today at the same time as this matter but I am informed by the registry that there has been an adjournment of that co-offender’s case.

8. In short, the co-offender Wei lured the victim out of his hotel room and into a nearby car which was driven by Lo. Zhang demanded money from the victim in circumstances where the combined presence of the three men gave rise to an implicit threat of violence if he failed to comply.

9. The car was driven to Burwood where they met another co-offender and entered an apartment that had been rented by Zhang and demands for money continued.

10. Ultimately the victim was detained for about 24 hours. The victim’s phone was used to contact his friends and relatives in an attempt to extract money on his behalf and conversations with a friend of the victim’s demonstrate the desperate steps he was taking to get $10,000 to assist in their demands. Although there was a purported transfer of money to an account owned by Lo, no money was received in the account.

11. The detention of the victim appeared to have its genesis in a dispute between Hong, a friend of the victim, and the victim over a gambling debt.

12. Police attended the Burwood premises at about 5:45pm the next day and placed Zhang under arrest. The victim was there at the time and shortly afterwards Ming and Lo were driving through Croydon Park when they were arrested.

13. The CCTV footage of the premises at Burwood showed that Lo had periodically left the unit for periods between 8:26pm on 18 November and 5:15pm on 19 November.

14. Lo engaged in a lengthy interview with police and made fulsome admissions. He said that a friend had asked him to come to collect money and he was enlisted because he was a strong man with tattoos and it might scare other people.

15. At one stage in the unit Lo saw Zhang hit the victim and Lo said to him “don’t do that”.

16. From 2am until 5am Lo went downstairs and sat in his car. He then came back to the unit for about an hour and then he went back to his car to sleep for about six hours. At lunchtime, he went to McDonald's to get food for everyone, including the victim. He was then arrested, as I have indicated, later in the afternoon.

17. He said that when the $4,000 which had been demanded did not appear in his bank account he waited until 6am and “no money came in and I was cheated(?) so I went back to the car to sleep”.

18. His subjective case, which is not challenged by the Crown, is set out in a favourable report from the chaplain at Parklea Correctional Centre pointing out that he has completed positive lifestyle programs and regularly attended the chapel while in custody. Also in a reference from his current employer in a flooring business, who is aware of the charges. He indicates that the offender has expressed regret to him and says he is a diligent and hardworking person who is an exemplary member of the team.

19. As the Crown acknowledges he has had four months in custody. In considering questions of community safety as dictated by s 66 of the Crimes (Sentencing Procedure) Act 1999, there is no evidence that he is a danger to the community. The Crown acknowledges he is in stable employment, he has expressed remorse, and he has not committed any offenses while being on bail following his release.

20. In terms of aggravating factors, not only does a level of planning bear on the assessment of objective seriousness, but it also can be an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 199, but as Mr Overall points out there is no evidence that the offender was involved in the planning of the offence, although there was clearly some planning and organisation. It was committed for financial gain, as the offender admits that he was promised payment by Zhang to do the job.

21. There was no violence or injury occasioned to the victim other than what the Crown accurately describes as a common assault, but the offender protested at that display of violence.

22. In terms of mitigating factors, he has the benefit of his plea, his expressions of remorse, his prior good character and his good prospects of rehabilitation.

23. A Sentencing Assessment Report assesses him as being at a low risk of reoffending and suitable for community service work.

24. An analysis of the statistics and the limited details of the cases behind the statistics supports Mr Overall’s proposition that overwhelmingly people who have been sentenced to both ICOs and full-time custody have had significant prior records.

25. In my view, the appropriate term of imprisonment after the 10% discount is 16 months. Bearing in mind the purposes of sentencing considered under s 3A of the Crimes (Sentencing Procedure) Act 1999, and absent any evidence of danger to the community pursuant to s 66, it is appropriate that the sentence be served by way of intensive corrections order commencing today.

26. The standard conditions will apply. The additional conditions are to undertake 200 hours of community service work. He is to report by telephone to the Parramatta office of Community Corrections by Tuesday 1 February.

27. I note that sequence 2, demand property with menace with intent to steal as a backup charge, is withdrawn and dismissed.

Note – These extempore remarks were revised without access to the court file.

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Decision last updated: 28 February 2022