R v Thien Tu - [2004] NSWCCA 403

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Thien Tu [2004] NSWCCA 403

FILE NUMBER(S):
2004/2034 CCAP

HEARING DATE(S): 17/11/04

JUDGMENT DATE: 17/11/2004

PARTIES:
Regina
Thien Tu (Applicant)

JUDGMENT OF: Bell J Buddin J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/3069

LOWER COURT JUDICIAL OFFICER: Maguire DCJ

COUNSEL:
S Corish (Applicant)
P Miller (Crown)

SOLICITORS:
S E O'Connor (Applicant)
S Kavanagh (Respondent)

CATCHWORDS:

LEGISLATION CITED:
Crimes Act 1900

DECISION:
Leave to appeal granted
Appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2034/04
BELL J
BUDDIN J
17 November 2004

REGINA v THIEN TU

Judgment

BELL J: This is an application for leave to appeal against the severity of sentences imposed by his Honour Judge Maguire (the Judge) in the District Court at Campbelltown on 23 December 2003.
The applicant was convicted, following a trial, of one count of armed assault with intent to rob, contrary to s 97(1) of the Crimes Act (the Act) and two counts of aggravated kidnapping, contrary to s 86(2A) of the Act. Each offence carried a maximum penalty of twenty years’ imprisonment.
The offences were related in that each arose in the course of an incident involving the attempted robbery of the Pizza Hut at Greenfield Park on 17 August 2002. The facts upon which the applicant was sentenced are set out in the judge’s reasons for sentence:
“On 16 December 1999 the offender started employment with the Pizza Hut at Green filed Park as a kitchen hand. The premises were about two kilometres from his home at St Johns Park. He worked in the kitchen for a time with Morgan Stephens, a teenage girl who had been employed there before the offender started. Later they worked together doing deliveries in his car.
After some months, the offender was promoted to shift supervisor. He left the job on 14 November 2001 after clashes with a new manager.
It is common ground that the staff door or driver’s door at the shop was controlled by a security system which enabled it to be opened from the outside when any person seeking access punched in the code 314. This was only so after another lock had been opened at the start of the day by means of a conventional key. It was common ground that the code referred to had been in place since sometime before the offender resigned and was still in place on 17 August 2002.
By that date the manager was on leave and Ms Stephens had been promoted to the offence of assistant manager holding one of two such positions. On that Saturday she arrived at the shop about 8am. She used her key to unlock the first lock and the buttons to unlock the other lock. She then entered the shop. She was followed in a few moments later by Mohamed Kalsina, a kitchen hand. At each entry the door closed automatically behind the staff member concerned. Each was engaged on their separate duties when a few minutes later the offender entered the premises through the same door. Kalsina was at the rear of the shop making dough and Stephens was towards the front using a computer, when the presence of the offender outside the door altered the effect of the morning sunlight falling into the shop. She was not expecting any staff member for some hours. She moved her position to see who might be at the door, but was not able to see who it was because he was standing between her and the morning sun. She saw his hand at the keypad and saw him enter through the doorway. His face was not yet covered by the balaclava that he wore for the rest of the proceedings. He pulled the balaclava down to cover his face but not before she recognised him.
She addressed him by name, challenging his presence in the shop. He then put one arm around her and placed a Stanley knife at her throat using the other hand. He then forced her to open the door to admit his accomplice. The second man was also wearing a balaclava. He has never been identified. Later, Stephens recognised the offender’s voice. There followed a long series of events occupying perhaps more than an hour during which the two employees were blindfolded, gagged and tied hand and foot. The accomplice was armed with a sawn off double barrel fire arm.
The previous night’s takings were in the safe and this fact would have been known to the offender as part of the usual management practice of the business. To open the safe would have required Stephens punching a code into the safe, waiting twenty minutes and then punching in the same code again. Her fastenings were loosed to enable her to co-operate in this exercise. For some reason that does not emerge, this attempt failed and further attempts were made at the direction of the offender. Another code was sought by telephone from the other assistant manager, who was at his home. This was done at the direction of the offender. A further attempt as made using this code, but still the safe would not open. At one stage the offender produced a second firearm and held it at Stephens’ head. Eventually, the two intruders left the shop, leaving the two employees tied up and face down on the floor. They were able to remove their bonds and seek help at the adjoining shop from where police were called.
Ms Stephens nominated the offender to police. She described his bright orange shoes. She was aware of the place of his residence, knowledge she had acquired while doing deliveries with him in the district in the past. She directed Constable Daniel to the rear and to the front of the offender’s home and later she recognised the offender’s car being driven by him nearby. The constable observed the registration plate and saw an Asian man driving. When police searched the offender’s house later in the day they found bedside his bed a pair of shoes that the jury were entitled to infer matched those that Stephens had described. Police also found an invitation to a wedding that was to celebrated locally alter that day. The offender was arrested at the wedding reception.
He was interviewed by police. The recording of that interview was admitted into evidence. Significantly he raised an alibi suggesting that he was, for a time, at home alone and thereafter at an amusement parlour at Liverpool. The alibi raised was not supported by any evidence at the trial. The manager of the parlour, who knew the offender as a regular customer, gave cogent evidence denying the offender’s presence at the parlour that day. Clearly, the jury reject the defence raised.”
The applicant was aged 23 years at the date of sentence. He gave evidence at the sentence hearing, maintaining that he was not guilty of the offences.
The applicant said that he had been in custody since 17 August 2002. He had observed a stabbing in the MRRC complex. He said that he had come to adjust to the conditions of gaol and undertaken courses as a remand prisoner. It was his intention, on release, to obtain employment and to take care of his mother.
The applicant was born in Vietnam. His mother gave evidence at the sentence hearing. She and the applicant left Vietnam when he was an infant. They spent time in a camp in Malaysia before coming to Australia as refugees. The applicant was aged around five years at the time the settled here.
The applicant was enrolled in a primary school in Cabramatta. He was dux of the school. He went on to attend high school. During his high school years he obtained part-time employment both to earn pocket money and to help his mother with expenses. She described the applicant as a caring son.
A number of references were tendered from members of the Vietnamese community who spoke well of the applicant as a hardworking and conscientious young man. A pre-sentence report was in evidence, together with a report prepared by a psychologist, Susan Freeman. The judge extracted a lengthy passage from the pre-sentence report in his reasons for sentence:
“Mr Tu is a twenty-three year old single man who is currently held on remand at the Metropolitan Reman and Reception Centre. Prior to this he was residing with his mother at the family home in the St Johns Park area. Born in Vietnam, Mr Tu is the only sibling from his parent’s union. He came to Australia when he was four years of age. He reported that he had the benefit of a supportive upbringing and shares a close relationship with his mother. The offender stated that his parents separated when he was fourteen years of age and has not seen his father for several years. Mr Tu stated that his mother is aware of the current offence and his incarceration and she is devastated, however remains supportive. Discussion with the offender’s mother revealed that she misses her son as he was her sole support network. She stated that she had not noticed any difference in her son’s behaviour, prior to him coming into custody. She described the offender as a good boy. Prior to coming into custody, Mr Tu has been employed for the previous twelve months as a sales representative at Flemington Markets. He stated that he was receiving a weekly wage totalling $500 plus commission. Mr Tu attended a high school in the St Johns Park area where he completed Year 12 studies and obtained his Higher School Certificate. He claims that he developed lasting relationships with fellow peers and teachers and he continues to assist the school on a monthly basis for sporting activities. Since cessation of school studies Mr Tu has maintained a full time employment with various companies. He has been employed as a sign writer, telemarketer, food distribution, sales representative, fork lift driver and supervisor of a hotel.”
The Judge referred to the psychologist’s report noting that the applicant had a serious gambling problem in earlier years.
The sentences are challenged on three grounds:
1.            The learned sentencing judge erred in failing to give adequate weight to the significant subjective circumstances of the applicant.
2.            The learned sentencing judge erred in failing to give adequate weight to the fact that the applicant had a relatively minor criminal record and had not been in prison before.
3.            The head sentence and non-parole period are manifestly excessive.
No specific error was identified in the written submissions filed in support of the application. Grounds 1 and 2 are different ways of expressing the primary contention, which is that: taking into account the objective circumstances of the offences and the matters subjective to this applicant, the sentences exceed the bounds of the exercise of sound discretion.
It is convenient to deal with grounds 1 and 2 together. Mr Corish, who appeared on the applicant’s behalf, identified the following subjective features as matters to which insufficient weight had been given by the Judge: the lack of a lengthy record of criminal convictions; the applicant’s relative youth; his prospects of rehabilitation; that he had not previously been sentenced to a term of imprisonment; his work and education history; and the trying circumstances of his childhood as a young refugee and his later difficult relationship with his father.
The applicant’s criminal record discloses that he was dealt with by the Liverpool Local Court on 6 October 1999 on charges of (i) larceny as a servant; and (ii) obtain money by deception. He was fined the sum of $800 in relation to (i) and the sum of $1,000 in relation to (ii).
The psychologist reported that the applicant as an infant travelled with his mother by boat to Malaysia, where they spent two years in a refugee camp. The psychologist reported that the applicant has some memories of the camp.
After being granted asylum in Australia, the applicant and his mother lived at the Villawood Detention Centre for a short period. Thereafter, the applicant’s mother was reunited with his father and the family moved to Cabramatta. The applicant’s father worked at odd jobs and his mother did outwork. Within five years by dint of hard work the family had acquired a house in St Johns Park. The applicant reported that his father had been verbally and physically abusive to him and to his mother. As he grew bigger, the physical abuse lessened, but the verbal abuse continued. He had described his father’s expectations as being, “too unreasonable”.
The pre-sentence report noted that the applicant’s parents had separated when he was aged fourteen years, and that he had not seen his father after that for a lengthy period. The author of the pre-sentence report described the applicant as having the benefit of a supportive upbringing and observed that he shared a close relationship with his mother.
In Mr Corish’s submission, these features, in combination, required that the sentence be ameliorated to a greater degree. In addition, it was submitted that the applicant’s relative youth and the fact that this would be the first time that he would serve a sentence of imprisonment, were special circumstances that would warrant a reduction in the non-parole period.
It was not submitted that the judge had failed to take into account any of the subjective features upon which reliance was placed, but rather, that his Honour must be taken to have given insufficient weight to one or more of them.
It is to be noted that the judge referred, in terms, to the fact that the applicant had not previously served a sentence of imprisonment, and that his rehabilitation was a desirable object. His Honour concluded, after reviewing the subjective factors, that he saw no circumstance justifying a departure from the usual ratio between the head sentence and the non-parole period.
In written submissions the Crown has directed our attention to the judgment of Spigelman CJ in R v Fidow [2004] NSWCCA 172 at [22].
“This research makes it necessary for this Court to state the obvious. Simply because there is present in a case a circumstance which is capable of constituting a “special circumstance” does not mean that a sentencing judge is obliged to vary the statutory proportion. To repeat what was said in Simpson at [68], it is necessary that the circumstances be sufficiently special to justify a variation.”
I am unpersuaded that the judge’s discretion can be seen to have miscarried by reason of the fact that he did not make a finding that the circumstances in this case were sufficiently special to justify a departure from the statutory proportion between the sentence and the non-parole period in each case.
In a number of respects, the s 97(1) offence called for a sentence above the range indicated in the guideline in the judgment in R v Henry (1999) 46 NSWLR 346. These included that the applicant subjected the victim, Ms Stephens, to a terrifying ordeal, holding a Stanley knife to her throat, blindfolding and tying her up, and later holding a firearm to her head. The period during which she and the other victim of the aggravated kidnapping offence were detained was relatively lengthy.
This was an offence that showed a greater degree of planning than the Henry guideline contemplated. The applicant took advantage of knowledge that he had acquired as an employee of the Greenfield Pizza Hut in order to gain entry to the premises by using the security code.
The Henry guideline assumes a late plea of guilty. The applicant was not entitled to any discount in this respect.
In written submissions, Mr Corish contended that the aggravated kidnapping offences were to be viewed as at the lower end of the range for such offences in that no injury of a physical nature had been inflicted upon either of the victims. He referred to the decision of this Court in R v Rowe (unreported) NSWCCA, 3 October 1996 in support of this submission.
The applicant was convicted of two counts of the aggravated offence under s 86(2). The circumstance of aggravation relied upon was that the offence was one committed in company. Such an offence attracts the maximum penalty of twenty years’ imprisonment. The remarks in Rowe were of application to the former s 90A of Act. I do not consider them apt to sentencing for an offence committed in company under s 86(2).
Mr Corish, in written submissions, contended that while it was appropriate for his Honour to impose concurrent sentences having regard to the circumstances that the offences were so clearly related, the overall criminality did not warrant sentences of this order.
These were offences of very considerable objective seriousness. The

s 97(1) offence not only involved an element of breach of trust but as the Judge observed the applicant displayed considerable callousness towards his victim, a young woman with whom he had worked.

The Crown relies upon the observations of this Court in Regina v KM [2004] NSWCCA 65. In the judgment of Miles AJ, with which Santow J and James J agreed, his Honour observed [55]:
“Nevertheless, whilst it is sometimes difficult, if not artificial, to assess the criminality of an offence in isolation when it is only one of what are, in law, separate offences but inextricably part of the same conduct, the exercise must be undertaken. It may be that in undertaking that exercise, and being anxious to avoid double punishment, a judge may just overlook the need for the sentences as a whole to reflect the seriousness of the offender’s conduct as a whole. In particular, whilst the totality principle is familiar enough and applied commonly enough in favour of an offender in order to avoid an excessive or crushing punishment, it is not to be disregarded for the converse purpose of assessing whether the overall effect of the sentences is sufficient having regard to the usual principles of deterrence, rehabilitation and denunciation.”
A point not taken by the applicant in the written submissions filed on his behalf or in the grounds of appeal, but raised by the Crown Prosecutor is that at the commencement of the remarks on sentence the judge wrongly stated the maximum penalty for the s 97(1) offence to be one of 25 years’ imprisonment. The Crown submitted that it was possible that the remarks on sentence had been incorrectly transcribed. In this regard, attention was drawn to a number of passages in the transcript of the proceedings on sentence that make clear that the Judge was aware that the maximum penalty for the offences was one of twenty years imprisonment. In particular, I note an exchange between the applicant’s legal representative and the Judge:
“Three years is a very slender slice of twenty, isn’t it?” (T 15.17)
At the conclusion of the submissions on sentence his Honour reserved his decision and pronounced sentence one week later. At the commencement of his reasons for sentence he said this:
“The maximum penalties attracted by the crimes are in respect of the first count, imprisonment for twenty-five years, and in respect of the second and third counts, imprisonment for twenty years.”
In light of the distinction that his Honour drew between the penalty for the offence charged in count 1 and the penalty for the offences charged in counts 2 and 3, I do not consider that the matter can be dismissed as an error in transcription.
Having reserved the matter for consideration, it would appear that his Honour overlooked that the offence charged in count 1 attracted a maximum sentence of twenty years’ imprisonment. In this respect his Honour’s reasons were attended by error.
I have, nonetheless, concluded that this Court should not intervene since, taking into account the matters to which I have referred, I am of the view that no lesser sentence is warranted in law in respect of the offence.
The orders that I propose are that leave be granted to bring the appeal but that the appeal be dismissed.
BUDDIN J: I agree.
BELL J: The orders of the Court will accordingly be as I have proposed.

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LAST UPDATED: 01/12/2004