R v Pan

[2005] NSWCCA 114

CITATION:	Regina v Wei Pan [2005] NSWCCA 114
HEARING DATE(S):	29 March 2005
JUDGMENT DATE:	6 April 2005
JUDGMENT OF:	Giles JA at 1; Hoeben J at 2; Johnson J at 3
DECISION:	1. Leave to appeal granted but appeal is dismissed; 2. the Applicant's bail is revoked and, in accordance with Ss 18(2) and 28A(3) Criminal Appeal Act 1912, the Court notes that the Applicant's non-parole period will re-commence on 6 April 2005 and expire on 5 July 2005 and the balance of the term of imprisonment will expire on 4 April 2006.

CATCHWORDS:	SENTENCING - malicious wounding in company - parity - whether justifiable sense of grievance given sentence imposed on co-offender - applicant released on bail pending hearing of application for leave to appeal against sentence - whether Court may have regard to evidence of applicant's conduct on bail to make order under s.28A(2) Criminal Appeal Act 1912 where appeal otherwise dismissed.
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912
CASES CITED:	R v Thomson and Houlton (2000) 49 NSWLR 383 R v Tran [2004] NSWCCA 366 Lowe v The Queen (1984) 154 CLR 606 R v Doggett (Court of Criminal Appeal, 24 March 1996, unreported) R v Ilbay [2000] NSWCCA 251 R v Boney [2001] NSWCCA 432 R v Diamond (Court of Criminal Appeal, 18 February 1993, unreported, BC9302054)
PARTIES:	Regina (Respondent) Wei Pan (Applicant)
FILE NUMBER(S):	CCA 2004/3171
COUNSEL:	Mr C Smith (for the Applicant) Mr G Rowling (for the Respondent)
SOLICITORS:	Mr S E O'Connor (for the Applicant) Mr S Kavanagh (for the Respondent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	03/21/3353
LOWER COURT JUDICIAL OFFICER:	Sides DCJ

2004/3171

GILES JA
HOEBEN J
JOHNSON J

6 April 2005

REGINA v WEI PAN

Judgment

1 Giles JA: I agree with Johnson J.

2 Hoeben J: I agree with Johnson J.

3 Johnson J: The Applicant, Wei Pan, seeks leave to appeal against a sentence imposed by his Honour Judge Sides QC at the Campbelltown District Court on 22 June 2004 upon one count of malicious wounding in company under s.35(2) Crimes Act 1900. The maximum penalty for this offence is imprisonment for 10 years.

4 His Honour sentenced the Applicant to imprisonment for 21 months with a non-parole period of 12 months, both to commence on 8 March 2004.

5 The sole ground of appeal is based upon the parity principle, it being submitted that the Applicant has a justifiable sense of grievance given the sentence imposed on a co-offender, Thi Ngoc Tran.

The Offence

6 In late 2002 and early 2003, the Applicant had been employed as a gyprocker by the victim of the offence, Gui Jun Zhou. According to the victim, the Applicant was laid off because of his conduct in the workplace. It appears to have been common ground, however, that the victim owed the Applicant a sum of money by way of outstanding wages.

7 On the afternoon of 14 April 2003, the Applicant and his co-offender, Tran (the Applicant’s defacto partner) together with Tran’s nine year old daughter, were in Bloomfield Street, Cabramatta, when they saw the victim seated near a bus stop. The Applicant approached the victim and demanded the money that was owed to him. The victim apparently refused and became angry with the Applicant and pushed him when the Applicant refused to leave him alone. After that push, the victim and the Applicant engaged in fisticuffs. At some point of time during this incident, the co-offender, Tran, became involved and struck the victim with a pencil causing some injury to his head. This gave rise to a charge of assault occasioning actual bodily harm to which Tran pleaded guilty. The Crown did not proceed with a charge against the Applicant for this offence. It can be put to one side except as providing some factual background for what followed.

8 Following this incident, the Applicant and Tran separated from the victim. The victim remained on the western side of Bloomfield Street near the railway station. Tran moved away from the Applicant and Tran’s daughter for a time. During this period, she purchased a 20 cm long knife and rejoined the Applicant and her daughter.

9 The Applicant and Tran approached the victim who produced a multi-tool from his pocket. The victim opened a blade on the multi-tool and gesticulated towards the Applicant and Tran. They approached him and Tran began to strike towards the victim with the knife. The Applicant was swinging a bag towards the victim. The victim kept moving backwards and was successful in keeping out of reach of his attackers, particularly the female offender who had the knife.

10 At one stage during the incident, the Applicant took the knife off Tran, but she recovered it from him. The victim stopped moving backwards and the Applicant and Tran stepped away from him. The victim put the multi-tool away. There were some two metres separating the victim from the Applicant and Tran at this time. Tran moved closer to the victim with the knife in her hand and the victim took hold of the knife grasping it on the blade. The sentencing judge concluded that the victim took this course to stop himself being stabbed with the knife. The Applicant joined in the struggle over the knife and all three ended on the ground. Tran was on the bottom with the victim half over her. She was striking the victim on his back. The Applicant was on top of the victim and it appeared that all three were struggling over the knife. It seems that the victim still had the knife held by its blade. He sustained injuries to his hand as a consequence of taking hold of the blade of the knife and the events that ensued in the struggle.

11 The police arrived on the scene. Tran was arrested. During the struggle, Tran had bitten the victim on one of his arms as well as striking him on the back. After the police arrived and whilst in the process of arresting Tran, the Applicant walked away and sat down on a seat with Tran’s daughter. The Applicant threw the knife under a police vehicle before walking off. He was arrested shortly thereafter.

12 The victim was taken to the Liverpool Hospital and treated for a deep laceration to his left hand. The sentencing judge concluded that there was no evidence of permanent injury or disfigurement as a consequence of the injury sustained by the victim to his hand.

13 The incident was recorded on a closed-circuit security video. The sentencing judge had an opportunity to view the video which supported the recital of facts set out above.

14 The Applicant, in an interview with police, denied having the knife at any stage. After he was shown the closed-circuit security video, he declined to answer further questions.

Findings of Sentencing Judge Concerning Role of Applicant in Offence

15 The sentencing judge made the following findings concerning the Applicant’s role in the offence (remarks on sentence, page 6):

“On all the evidence before the Court, I am satisfied that it was the co-offender that purchased the knife. There is no evidence that this offender was in any way involved in the decision that led to the purchase of the knife. He is to be sentenced on the basis that, after the knife became involved in the altercation, he continued to participate in the altercation knowing that the knife was being used by the co-offender and, at the time the injury was sustained, he was involved in struggling with the victim over the knife, during which the injury to the hand was sustained or made worse.
In terms of their roles, that is the role of the offender and the co-offender, I see nothing to distinguish them save for the fact that this offender was not involved in pre-meditation or pre-planning. Save for that difference there is no basis, in my view, for distinguishing between their criminality: R v Goundar [2001] NSWCCA 198.”

The Applicant’s Background

16 The Applicant was born in China on 5 August 1971. He was 31 years of age at the time of the offence. He did not give evidence in the sentencing proceedings. He was the second eldest of eight children and migrated to Australia at the age of 14 with his parents and some of his siblings.

17 The Applicant left home at the age of 18. He received his early education in China. He left high school in Australia just before he was due to undertake the School Certificate. Since leaving school, he worked as a plasterer.

18 The Applicant has a history of substance abuse involving both alcohol and drugs. He has used heroin and benzodiazepine since the age of about 24. He had been on methadone for two years prior to sentence in June 2004. The sentencing judge observed that the Applicant had continued to abuse heroin whilst on methadone. Apart from being on a methadone programme, there was no evidence, before his Honour, that he had made any attempts to address his drug and alcohol problems.

19 The Applicant has a lengthy criminal history. He has a number of convictions for violent offences. In 1990, he was convicted of assault. In 1991, he was convicted of assault occasioning actual bodily harm. In 1995, he was again convicted of assault occasioning actual bodily harm. In 1997, he was convicted, on two separate occasions, of resisting police in the execution of their duty. In 2003, he was again convicted of resisting police in the execution of their duty.

20 In addition, the Applicant was sentenced to imprisonment for supplying a prohibited drug in 1996 with a similar offence in 1997. He has other offences of possession of prohibited drugs, driving whilst disqualified and driving whilst licence cancelled.

21 On 5 November 2003, the Applicant appeared before the Campbelltown District Court on appeal against sentence arising from convictions at the Liverpool Local Court for driving whilst disqualified, driving whilst licence cancelled, resisting police in the execution of their duty, supplying a prohibited drug and malicious damage to property. He was sentenced to a total term of imprisonment for 15 months with a seven month non-parole period to commence on 31 January 2004 and expire on 30 August 2004. The last-mentioned sentence of imprisonment is significant to the present case because Sides DCJ, applying the principle of totality, ordered that the sentence for the present offence be partially accumulated upon the sentence imposed at the Campbelltown District Court on 5 November 2003.

Sentencing of the Co-Offender

22 On 12 March 2004, Tran was sentenced by Maguire DCJ to imprisonment for two years with a non-parole period of 12 months upon the count of malicious wounding in company. A concurrent sentence of six months imprisonment was imposed upon the charge of assault occasioning actual bodily harm (for which the Applicant was not prosecuted).

23 Tran sought leave to appeal against this sentence, but that application had not been heard by the Court of Criminal Appeal at the time when the Applicant stood for sentence on 22 June 2004. Sides DCJ observed with respect to the co-offender, Tran, (remarks on sentence, page 11):

“The co-offender was much younger than this offender. She was 24. She had no prior convictions. She was a refugee with a disrupted childhood. His Honour found that the offence was committed with intent to injure and was indifferent to human suffering. He found that there was no contrition. In my view, he did not reduce the sentence for the utility of the plea of guilty.”

The last sentence of Sides DCJ in this passage is a reference to the failure by Maguire DCJ to give Tran a discount for the utilitarian value of her plea of guilty in accordance with the principles in R v Thomson and Houlton (2000) 49 NSWLR 383. Having detected this error in the sentencing of Tran, Sides DCJ made due allowance for it in the Applicant’s favour in applying the parity principle in sentencing the Applicant.

24 On 19 October 2004, the Court of Criminal Appeal granted Tran leave to appeal against her sentence, allowed the appeal and quashed the sentence imposed by Maguire DCJ: R v Tran [2004] NSWCCA 366. Having found error on the part of the sentencing judge in failing to give Tran a discount for the utilitarian value of her plea in accordance with R v Thomson, the Court sentenced her for the subject offence to imprisonment involving a non-parole period of nine months commencing on 20 January 2004 and expiring on 19 October 2004 with a balance of term of six months expiring on 19 April 2005. It is the variation of Tran’s sentence by these orders which gives rise to the Applicant’s parity argument in this case.

The Sentencing Judge’s Approach to Parity in this Case

25 In approaching the parity issue in this case, Sides DCJ said (remarks on sentence, page 12):

“In my view, as I have already indicated the criminality of the co-offender was greater because of the premeditation. She went across and bought the knife. His Honour found that she did so with the intention of getting the victim for having previously hit her. This offender had no part of that aspect of the case. However, he did join in her enterprise once she had started using the knife. He was involved in swinging the bag and at one stage personally took hold of the knife. After the short stand off when the co-offender approached the victim again with the knife and he took hold of the blade, this offender became involved in the struggle over the knife. It was during this process of the victim taking hold of the blade and the subsequent struggle that the injuries were sustained to the hand.
The co-offender was entitled to the benefit of the absence of prior convictions. I need to reflect the principle of parity. The differences between them, the absence of premeditation on the part of this offender, justifying a lesser sentence, but he is not entitled to the leniency extended to the co-offender based upon her prior good character. At the end of the day, I am of the view that these matters effectively cancel one another out.
I have considered the purposes of sentencing and I have considered all the matters set out in section 21A. In all the circumstances, I have come to the view that this offender’s prospects of rehabilitation are not good. That is probably a further basis for distinguishing him from the co-offender.”

26 His Honour concluded (remarks on sentence, page 13):

“Having considered all sentencing options, I am of the view that nothing other than a custodial sentence of a full-time nature is appropriate. In my view, bearing in mind the issue of parity, that sentence should be one of two years. That was clearly the starting point that Judge Maguire came to. That should be reduced by three months to reflect the plea of guilty and accordingly the appropriate sentence is one of 21 months.
I must consider the question of totality. I have made reference to the sentences that he is currently serving and the offences that gave rise to that sentence and the sentences upon which it was accumulated. The Court has no information concerning those offences beyond the nature of the charges and sentences that were imposed.
In my view, the principle of totality should be reflected by a partial accumulation of sentences. I have come to the view that the appropriate date to commence the sentence in this case is 8 March when the plea of guilty was entered. This is to reflect the question of totality and the one month eight day pre-sentence custody to which I have made reference already. By my calculation in general terms, this gives rise to a total sentence of around two years and two months. I find special circumstances being the accumulation of the sentences.”

27 His Honour then fixed a non-parole period of 12 months to commence on 8 March 2004 and a balance of term of nine months. His Honour observed that, in selecting 8 March 2004 as the commencement date, he had taken into account a period of one month and eight days during which the Applicant had been in custody in April and May 2003 that had not been reflected previously in the sentences imposed upon him for other offences.

28 It should be observed that the imprisonment by way of effective non-parole period of the Applicant, which was solely referable to the present offence, comprised the following elements:

(a) the period of one month and eight days in April-May 2003 which his Honour took into account;

(b) the period from 31 August 2004 to 7 March 2005, being the portion of the Applicant’s non-parole period solely referable to this charge.

29 Accordingly, the period of actual imprisonment of the Applicant for this offence by way of effective non-parole period measured some seven-and-half months.

30 On 8 December 2004, the Applicant was granted bail by the Supreme Court pending his application for leave to appeal to this Court. He has remained on bail and appeared before the Court at the hearing of the application on 29 March 2005.

The Applicant’s Parity Argument

31 Counsel for the Applicant contends that there is a justifiable sense of grievance given the sentence imposed by the Court of Criminal Appeal on Tran for the same offence. It is submitted that Sides DCJ used the period of two years imprisonment as a starting point, that being the period applied by Maguire DCJ in sentencing Tran. It is said that this Court should take the sentence imposed upon Tran by the Court of Criminal Appeal and, in effect, translate the figures so as to give rise to a sentence for the Applicant comprising a non-parole period of nine months commencing on 8 March 2004 and expiring on 7 December 2004 with a balance of term of about seven months. In this regard, it was noted that the Applicant had been released to bail on 9 December 2004 and that, if these calculations were adopted, his non-parole period would have expired.

32 The Applicant acknowledges that there was at least one point of distinction between the Applicant and Tran, namely the finding by Sides DCJ that the Applicant’s prospects of rehabilitation were not good. Nevertheless, it is contended that there should be parity of sentencing as between the two offenders.

33 The Crown submits that there are significant differences between the offenders and that imposition of the sentence contended for by the Applicant would be disproportionate in the circumstances of the case.

The Parity Principle

34 The elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community – the issue is whether the particular sense of grievance or injustice is a legitimate one: Lowe v The Queen (1984) 154 CLR 606 at 611 per Mason J. The test for determining the existence of a sense of grievance is objective not subjective. What has to be demonstrated by the person complaining on the grounds of parity is not that he feels aggrieved, but that a reasonable mind looking overall at what has happened would see that the offender’s grievance is justified: R v Doggett (Court of Criminal Appeal, 24 March 1996, unreported) per Sully J; R v Ilbay [2000] NSWCCA 251 at paragraph 6.

35 Where there is a degree of disparity so as to invite a reduction in the sentence imposed, it is not necessary for the Court of Criminal Appeal to intervene if the result of doing so is to produce a sentence disproportionate to the objective and subjective criminality involved: R v Boney [2001] NSWCCA 432 at paragraph 15. A stage can be reached at which the inadequacy of the sentence imposed upon the co-offender is so great that the sense of grievance engendered can no longer be regarded as a legitimate one: R v Diamond (Court of Criminal Appeal, 18 February 1993, unreported, BC9302054); R v Boney, above, at paragraph 16.

Application of Principles to this Case

36 In my view, a reasonable foundation does not exist for the Applicant having a justifiable sense of grievance having regard to the sentence imposed upon the co-offender, Tran. There are at least two significant differences between the two offenders:

(a) Sides DCJ found that the Applicant’s prospects of rehabilitation were not good;

(b) Sides DCJ applied the principle of totality in partially accumulating the sentence for the subject offence on other sentences which the Applicant was then serving. In reality, the non-parole period component referable solely to this offence totalled seven-and-a-half months. Viewed in this way, it cannot be said that the Applicant could reasonably have a justifiable sense of grievance given the imposition upon the co-offender, Tran, of a non-parole period of nine months.

37 In my view, the Applicant has not succeeded in demonstrating a basis for this Court to intervene in accordance with the parity principle.

The Applicant’s Bail Since December 2004

38 As has been mentioned, the Applicant was granted bail on 8 December 2004 pending his application for leave to appeal to this Court. He was released to bail on 9 December 2004. Section 18(2) Criminal Appeal Act 1912 provides as follows:

“(2) The time during which an appellant is at liberty on bail (pending the determination of his or her appeal) does not count as part of any term of imprisonment under the appellant’s sentence.”

39 Section 28A Criminal Appeal Act 1912 provides as follows:

“28A Operation of sections 18 and 25A

(1) This section applies if, under section 18 or 25A, any period does not count as part of any term of imprisonment under an appellant’s sentence.


(2) The court may make any order that it thinks fit to give effect to section 18 or 25A (including an order specifying the date of the commencement or re-commencement of the sentence).

(3) If the court does not make such an order, the sentence commences or re-commences on the appropriate date required for the operation of section 18 or 25A.

(4) This section extends to apply in respect of the following appeals:

(a) an appeal made, but not determined, before the commencement of this section,

(b) an appeal in respect of which notice of intention to appeal or to apply for leave to appeal or application for leave (or for special leave) to appeal was made before the commencement of this section.”

40 Counsel for the Applicant submitted that, even if the Court dismissed his appeal, it was open to the Court to have regard to evidence of his good behaviour whilst on bail to take a course other than ordering his return to prison to complete his sentence. For this purpose, it was sought to rely upon an affidavit of the Applicant affirmed on 17 March 2005.

41 It was submitted that the Court may take such an approach given the words in s.28A(2) that “the court may make any order that it thinks fit” to give effect to s.18 of the Act. In my view, it would require a most exceptional case for the Court to give consideration to variation of a sentence in a manner favourable to an Applicant in circumstances where the appeal was dismissed. Fresh evidence is not permitted on a sentence appeal unless the Court has determined to re-sentence the applicant. It would be curious indeed if an applicant who was released on bail was able to adduce a form of fresh evidence with respect to his conduct at liberty in circumstances where his appeal had otherwise failed and he was not being re-sentenced. I do not accept that such an approach ought be taken in this case.

Conclusion

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

43 The Applicant’s bail was continued until further order. The Applicant’s bail is revoked and, in accordance with Ss 18(2) and 28A(3) Criminal Appeal Act 1912, the Court notes that the Applicant’s non-parole period will re-commence on 6 April 2005 and expire on 5 July 2005 and the balance of the term of imprisonment will expire on 4 April 2006.

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