R v Wen - [2019] NSWDC 267

District Court

New South Wales

Medium Neutral Citation: R v Wen [2019] NSWDC 267
Hearing dates: 1 November 2018; 1 February 2019; 22 March 2019; 17 May 2019
Decision date: 18 June 2019
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision:
Aggregate term of imprisonment of 7 years 6 months with a non parole period of 5 years 6 months.

Catchwords: CRIME -SENTENCE - robbery whilst armed with a dangerous weapon - possess unauthorised firearm - Form 1 matters: fire firearm manner likely injure person - stalk/intimate intend fear physical harm - and possess or use a prohibited weapon without permit
Legislation Cited: Crimes Act 1900 (NSW), s.97(2); Firearms Act 1996 (NSW), s.7(1)
Category: Sentence
Parties:
Regina (Crown)
Gorden Wen (Offender)
Representation:
Ms Namat (ODPP)
Mr Jiang, later Mr Bowe (Offender)

File Number(s): 2018/23138
Publication restriction: Nil

Judgment

Gorden Wen, you appear for sentence today in relation to two principal offences.
First, robbery whilst armed with a dangerous weapon - that weapon being a firearm.
This involves a contravention of s 97 (2) of the Crimes Act. The maximum penalty for that offence is 25 years imprisonment. There is no standard non-parole period.
Secondly, possessing an unauthorised prohibited firearm.
This involves a contravention of s 7 (1) of the Firearms Act. The maximum penalty for that offence is 14 years imprisonment. There is a standard non-parole period of 4 years imprisonment.
In relation to the first principal offence, you have asked me to take into account two matters on a Form 1 which I have certified. Those two matters are: firing a firearm in a manner likely to injure persons; and stalk / intimidate with intent to cause fear of physical harm.
In relation to the second principal offence, you have asked me to take into account one matter on another Form 1 which I have also certified, that matter being possessing a prohibited weapon without a permit.
The facts in relation to the two principal offences and the matters on the relevant Form 1 are, to a large degree, contained in a document entitled "Agreed Revised Statement of Agreed Facts" - which I shall from now on refer to as the agreed facts. That document has, to varying degrees, been supplemented, contradicted, or otherwise been made problematic by the contents of a psychologist's report obtained on your behalf and your oral evidence during the course of the sentence hearing.
I find the relevant facts to be as follows.
You and Mr Paul Khum have known each other since about mid-2017.
In October 2017 Mr Khum lent $560.00 to his friend whom I only know as "Andrew". Andrew was also a friend of yours.
At a time not revealed in the material before me, Andrew repaid $200.00 to Mr Khum. You, however, told Mr Khum not to seek the balance of the monies owed. In fact, you threatened to "bash" Mr Khum if he sought to recover the balance of the debt. Accordingly, Mr Khum did not seek to recover that further money from Andrew.
In the early hours of a morning in early January 2018, Mr Khum was at his home and a friend, Mr Warman, was with him.
Mr Khum heard a knock at the front door. When he went to that door and opened it, he saw Andrew, you, and your girlfriend - who the agreed facts say was unknown to Mr Khum.
Mr Khum allowed Andrew into his house. However, he told you and your girlfriend that you were not welcome because of your recent conduct towards him - which I assume to have been a reference to your threat to bash Mr Khum if he pursued the debt which Andrew owed to him.
You and your girlfriend waited in a car for about 20 minutes before leaving the area.
On 12 January 2018, Mr Khum was again at his home with his friend Mr Warman.
At about 1:30am Mr Khum heard a knock at the front door. He went to the front door and saw a person there that he did not recognise. Mr Khum then told Mr Warman that there was unknown person at the front door and Mr Warman went to the door.
The man at the front door was Kimsean Mann, who was known to you and was a friend of Mr Warman. Mr Warman let Mr Mann into Mr Khum's house and the two of them went into the kitchen area where Mr Khum had apparently gone to.
About a minute later, Mr Khum heard the front door of his home open without anyone previously knocking. It was you who opened and closed that front door and you also walked into the kitchen.
I pause to observe that your entry into the house appears to have constituted a break and enter offence - but that is not a charge that the Crown has brought against you.
Mr Mann then asked you "Who do you have beef with? Is it Kang or him?" [indicating Mr Khum].
You pointed to Mr Khum.
Mr Mann then produced a shortened rifle from his pants. He used it to smash a glass on the counter in the kitchen and then he aimed that rifle at Mr Khum.
At the same time, you produced a serrated edge knife and pointed it at Mr Khum. I again pause to observe that the Crown has not brought a charge against you for the possession of that weapon on that occasion.
I also pause to observe that, although it is not contained in the agreed facts, you informed the psychologist who prepared the report to which I have earlier referred that it was in fact you who obtained that firearm and provided it to Mr Mann. You confirmed that history to the psychologist in your evidence.
I further pause to observe that, during the course of your oral evidence in the sentencing hearing, you gave a most improbable explanation for Mr Mann's involvement in these events. The idea that someone you hardly knew would involve himself in such serious criminal conduct in the circumstances you described, I do not accept. It is but one example of your lack of frankness with the Court during the course of your evidence.
I return to the narrative.
After the knife and the rifle had been produced by you and Mr Mann, you and he then started to harass Mr Khum. You said to him: "You disrespected me at your house last week, talking about me to Andrew. Having a laugh at me when I was outside". Mr Mann pointed the rifle at Mr Khum and said, "Do you know who I am? I'm Hells Angels. I'm untouchable".
Mr Khum noticed that you were "pumped up, aggressive and sweating heavily" and, from that, formed the opinion that you were under the influence of ice.
You were standing in close proximity to Mr Khum and, while still holding the knife, you told him you wanted to stab him.
This is part of the matter of intimidation, intending to cause fear of physical harm, which is one of the two matters on the Form 1 to be taken into account with the first principal offence.
After a short time, you put that knife on the kitchen bench.
You and Mr Mann then proceeded to repeatedly punch Mr Khum to his head.
Whilst Mr Khum was being assaulted, you and Mr Mann alternated in holding the rifle.
Between the two of you, Mr Khum was punched approximately 10 times to his head area. He felt pain to his nose and jaw, and he was bleeding as a result of the blows delivered to him. You have not been charged with any specific criminal offence in connection with those assaults. Rather, the Crown has said that that material was placed before me, with your agreement, as "background".
On one occasion whilst you were holding that rifle, there was a sudden discharge resulting in a bullet being shot through the kitchen floor. You said, "Oh shit." I am prepared to accept from the content of that spontaneous comment that the discharge was unintended.
It is the discharge of that firearm in those circumstances which is the other matter on the Form 1 to be taken into account with the first principal offence.
After you discharged that firearm, you cocked the bolt of the rifle and a shell fell onto the kitchen floor which you subsequently placed in your pocket.
I again pause to observe that during the course of your evidence you said that prior to this morning you had never held a gun before in your life. The fact that you were able to cock the bolt of the rifle after discharge suggests otherwise. It is a further example of how, in my opinion, you were not frank with the Court when giving evidence.
I return to the narrative.
Mr Mann took the rifle from you after that discharge. He pointed it at Mr Khum whilst you went into a room used as an office in the middle of the house. You ransacked that room and took items of interest to you belonging to Mr Khum and placed them in a backpack belonging to Mr Khum.
After taking those items, you then returned to the kitchen area and demanded that Mr Khum provide you with the "paperwork" for his motor vehicle and that he sign over those papers. Mr Khum said he did not know where the registration papers were and the matter went no further. You have not been charged with any specific offence in connection with that demand. I assume it is more "background".
You then went to Mr Khum's bedroom and returned holding a baton you had found there. You gave the baton to Mr Mann and he gave the rifle to you. Mr Mann then used that baton to strike Mr Khum's body. Mr Khum sustained bruising and redness to his right leg, left arm, and pain to his lower back as a result of him being struck by that baton. You did not take any steps to prevent or discourage Mr Mann from using the baton. Rather, after arming Mr Mann with that weapon, you returned to Mr Khum's bedroom and continued going through his belongings. Again, you have not been charged with any specific criminal offence in connection with these assaults. The material has been placed before me, again, as more "background".
After a while you returned to the kitchen. Mr Mann gave the rifle to you and he began to search various rooms in the premises.
The following items were ultimately stolen from Mr Khum:

An Omega Speedmaster Watch purchased for $3,500.00;

A Cartier engagement ring purchased for $2,200.00;

A Samsung computer monitor;

A Logitech gaming keyboard;

A pair of Ray Ban sunglasses;

A black laptop bag;

A Burberry wallet;

Various medication;

A fishing tackle box containing phone chargers and accessories;

Mr Khum's torch collection, including Olight and Maglight brand products;

Swarovski and Tiffany and Co necklaces and pendants;

Tiffany and Co women's earrings;

A Pulsar woman's watch;

A number of Leatherman multi-tool and knife products;

A HP Laptop; and finally,

A Sony HD DVD Handycam.

These are the facts for the first principal offence.
After these items had been stolen, you and Mr Mann had a discussion about a 1L bottle of acetone that was on the kitchen bench. It is not entirely clear to me whether that bottle of acetone was already in the premises when you and Mr Mann went there. For the purposes of these sentence proceedings, I shall assume that it was.
After your discussion (the contents of which is not expressly before me), Mr Mann took that bottle of acetone and poured the majority of it onto Mr Khum's shirt and legs. He then produced an unlit lighter and said "I will light this guy". Mr Mann then turned to Mr Warman and said, "I'm going to torture this cunt."
You did not take any action to discourage Mr Mann from carrying out his threat - either verbal or otherwise - which, fortunately, he did not carry out.
Rather, you took the remainder of the bottle and splashed it around the victim's bathroom.
You have not been charged with any specific criminal offence in connection with what you and / or Mr Mann did with that acetone. The material has been placed before me, again, as more "background".
After you had splashed the acetone in the bathroom, Mr Mann placed the rifle on the kitchen bench. Mr Khum looked at it and Mr Mann said, "Go on. If you want to try and get the gun, see what happens". Mr Mann then held the rifle against Mr Khum's kneecap and threated to shoot him in the knee, following which Mr Mann extracted an undertaking from Mr Khum that he would not go to the police.
At some point during what must have been a deeply terrifying experience for Mr Khum you smoked a quantity of ice. When during that period, and in what quantity, you smoked that ice is not revealed in the material before me. Whilst referring to your consumption of drugs on this night, there is some evidence that, in the days before your offending, you took a quantity of Xanax. There is, however, no evidence that your capacity to make rational judgments was adversely affected by whatever quantity of this Xanax you had taken.
Towards the end of this two hour ordeal for Mr Khum, you told him that he better not tell anybody about what had been done to him. Mr Mann went further and said that if he told the police, he (Mr Mann) would kill Mr Khum's family.
It is this threat by you which constitutes a further aspect of the stalk or intimidate matter on the Form 1 to be taken into account with the first principal offence.
Ultimately, on 14 January 2018, Mr Khum reported to police what had occurred to him.
On 22 January 2018 the police went to your premises at Fairfield West where you were arrested.
Following your arrest, those premises were searched.
During the search, the police found the sawn-off rifle which had been used in the robbery. I pause to observe that you had not returned it to the friend from whom you say you had borrowed it before going to Mr Khum's home 10 days previously.
It is the finding of that rifle in those circumstances which constitutes the second principal offence.
The police also found various items belonging to Mr Khum.
They also searched your motor vehicle and found a butterfly knife.
It is the possession of that prohibited weapon which constitutes the matter on the Form 1 to be taken into account with the second principal offence.
The "facts" which I have just stated are, unless otherwise indicated, drawn from the agreed facts.
There are, however, four matters to which I wish to refer before proceeding to make an assessment of the objective seriousness of the principal offences.
First, it will be noted that the explanation for the offending conduct advanced through the agreed facts was said to be your dissatisfaction with the way you were treated by Mr Khum when he would not let you and your girlfriend into his house in the early hours of the morning of an unspecified date in early January 2018.
However, in the report provided by the psychologist, another, and different, reason was advanced - namely, that you alleged that Mr Khum had been making sexual advances to your girlfriend through text messages.
It is difficult to reconcile that assertion with the agreed facts in which it is expressly stated that your girlfriend was "unknown" to Mr Khum. The inconsistency was not explained satisfactorily - or at all - in your evidence.
Secondly, in the case note report prepared by the Corrective Services Officer who subsequently prepared the sentencing assessment report, it is recorded that you "… only went to the house with the intention of talking to [Mr Khum] and then it went "haywire"."
Again, it is difficult to reconcile that version of events with you obtaining a firearm, a partner in crime, and the serrated knife. I have noted, however, that in the case note report it is separately recorded that you went to Mr Khum's house to "teach him a lesson". And, of course, in your oral evidence you ultimately admitted that you went to the premises with another person, and both of you being armed, with the specific intention of frightening Mr Khum.
Thirdly, through a number of sources, you have asserted that you have no memory of the events of that night. However, reference to the documents placed before me and to your oral evidence will reveal that you have, in fact, quite a significant memory of various aspects of that night - even if that memory from time to time is of different events.
Fourthly, I note your inconsistent evidence as to the conduct of your former solicitor in obtaining your instructions to the first version of an agreed statement of facts and to the tender of the sentencing assessment report.
In these circumstances, I view with considerable scepticism any matter advanced by you in mitigation of your offending conduct where that material is not supported by reliable independent corroborative evidence.
However, I am not satisfied beyond reasonable doubt that the primary purpose of your going to Mr Khum's premises with Mr Mann was to effect that robbery - as opposed to it being opportunistically carried out when you were there for some other purpose or purposes.
It is necessary for the Court to make an assessment of the objective seriousness of the principal offences for offences of their kind.
In my opinion the first principal offence is a mid-range offence and the second principal offence is slightly below a mid-range offence.
The first principal offence is additionally aggravated by the fact that it was committed in company.
Insofar as the two matters on the Form 1 in connection with the first principal offence are concerned, each matter, although arguably incidental to that principal offence, is nevertheless an independent act of significant criminality and will result in a meaningful, but not substantial, increase in the sentence.
Insofar as the matter on the Form 1 is concerned with the second principal offence, it is a relatively minor matter and, therefore, will not result in a meaningful increase in the relevant sentence.
There is no victim impact statement from Mr Khum. I, therefore, do not know the extent of his physical injuries or how this undoubtedly terrifying experience has psychologically affected him.
Mr Wen, you are now 29 years of age.
You were born in China.
By the time you were born, your father and an older brother had left China and moved to Hong Kong.
When you were five years old your mother remarried. You told the psychologist who prepared the report on your behalf that your stepfather physically abused you.
Your mother, stepfather and you came to Australia when you were 6 years old.
You also told the psychologist that your stepfather's abuse of you did not stop when you came to this country and that the physical abuse reached a point that, when you were about 13, you often would not be at home. Rather, you spent time with friends or on the streets.
It was in those circumstances that you began mixing with people who were older than you and who were associated with criminal activities.
You went to primary school until Year 6 and then to high school. You did not complete the School Certificate because you were expelled in Year 9 for fighting and truanting.
You also told the psychologist that you experienced extensive bullying whilst you were at primary school.
After you were expelled from high school, you ultimately completed your Year 10 at TAFE in 2005.
Through those older people to whom I have earlier referred, you began using drugs when you were 15 years old, starting with ecstasy and cannabis. When you were 16 you started using heroin and later you experimented with ice. However, your preferred drug was, and remains, heroin.
On the basis of the history you gave the psychologist, you have had a dysfunctional upbringing and, with it, the reduced moral culpability for your offending in the manner the High Court has directed sentencing Judges to take into account.
However, the only basis for a finding of a dysfunctional upbringing is your own "evidence". It is true that you were not cross-examined on that matter. But that being said, how could the Crown have cross-examined you on it? However, your credit and reliability as a witness were clearly raised as issues in the sentencing hearing. In this context, there was a witness who could have been called to support your assertions about your childhood - your mother who has been present in Court on each occasion this matter has been brought before me. But she was not called to give evidence. Given my observations about the unreliability of your evidence (some of which I have already made; others are to follow), I have had to give very serious consideration to this particular untested and unsupported assertion by you. With some considerable reluctance, I shall accept it - only because no submission against accepting it was made by the Crown; and I did not expressly raise it with your solicitor during the course of his submissions - and that was because the extent of your unreliability was not then as clear to me as it is now.

You have a very limited work history which would appear to have been restricted to working as a factory hand. But mostly, in recent years, you have been living on Centrelink payments. You do not seem to have any constructive or positive relationships apart from the one that you have with your mother which is no longer impeded by your stepfather who died in 2008.
Unsurprisingly, with this background, you have a lengthy criminal history which disentitles you to the leniency which, in appropriate circumstances, can be extended to a first offender.
You have served previous periods of imprisonment, most notably in 2012 when you were sentenced to a period of imprisonment of 4 years and 8 months for the offence of robbery in company.
In this context, you told the psychologist who prepared the report for this Court that you successfully abstained from drugs in the period that you were imprisoned and that you only relapsed into using heroin when your parole supervision was completed. That history is not consistent with the punishment details provided to the Court by the NSW Department of Corrective Services.
You also told the author of that report that you successfully completed the EQUIPS Addiction Program, the EQUIPS Foundation Program, and the EQUIPS Anger Management Program whilst you were in custody. There is no independent evidence to support that assertion. Specifically, they are not mentioned in the sentencing assessment report. If you did successfully complete those programs, they clearly were of limited utility.
I have noted that the psychologist has expressed the opinion that you require "intensive psychological treatment to learn more effective life skills and emotional resiliency, lacking in childhood and adolescence, which in turn makes [you] vulnerable to relapsing into using drugs (heroin), as a form of self-medication."
Whether that "intensive psychological treatment" is captured by the supervision plan contemplated by Community Corrections in the sentencing assessment report is difficult to say. However, given your lack of frankness with the Court, I am not satisfied that your prospects of rehabilitation would be enhanced by a longer period on parole. And, in any event, the parole period I shall set will be adequate in that respect.
I have not been persuaded on the balance of probabilities that you are remorseful for your offending conduct. In this regard, I note the ambivalent statements in the sentencing assessment report and my overall lack of satisfaction with the reliability of your evidence.
Your prospects for rehabilitation are, therefore, guarded.
No sentence other than one of full-time imprisonment is appropriate and the contrary has not been submitted on your behalf.
The sentence needs to be one which not only discourages you, but others, from such offending. So specific and general deterrence, as well as a need to protect the community, are fully engaged.
You pleaded guilty at an early opportunity. That plea had utilitarian value in the face of a strong Crown case. I am not persuaded that it contained any element of remorse. Ordinarily, an early plea gives rise to a discount of 25 percent. However, the manner in which an offender conducts himself during the sentencing hearing can result in a reduction of that discount. Because of the allegations you made against your former solicitors, and the impact that those allegations had on the conduct of the sentence hearing (which allegations were not established), I have given consideration to reducing the discount. However, as this was not raised by me during submissions, I shall not now reduce the discount for the utilitarian value of your early plea.
I would add, in this regard, that it will not be necessary for your former solicitor to show cause why he should not be referred to the Office of the Legal Services Commissioner and the Court file outcome sheet, noting that fact, should be sent to him by the registry.
You have been in custody since you were arrested on 22 January 2018, and the sentence will be backdated to commence from that date.
I intend imposing an aggregate sentence. It is therefore necessary for me to state the indicative sentences underpinning that ultimate aggregate sentence.
In relation to the first principal offence of robbery while armed with a dangerous weapon and taking into account the two matters on the Form 1, except for your plea of guilty and the consequential discount of 25 percent, the indicative sentence would have been 8 years 6 months imprisonment. However, because of the discount, the indicative sentence is 6 years 4 months imprisonment.
In relation to the second principal offence of possessing an unauthorised prohibited firearm and taking into account the matter on the Form 1, except for your plea of guilty and the consequential discount of 25 percent, the indicative sentence would have been 2 years imprisonment. Because of the discount, the indicative sentence is 18 months imprisonment.
Gorden Wen, of the two principal offences you are convicted.
I sentence you to an aggregate term of imprisonment of 7 years 6 months.
I decline to make a finding of special circumstances to vary the ratio of the non-parole period to the head sentence.
I fix a non-parole period of 5 years 6 months to date from 22 January 2018 and which will expire on 21 July 2023.
I fix a balance of 2 years to date from 22 July 2023 and which will expire on 21 July 2025.

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Decision last updated: 18 June 2019

Medium Neutral Citation:	R v Wen [2019] NSWDC 267
Hearing dates:	1 November 2018; 1 February 2019; 22 March 2019; 17 May 2019
Decision date:	18 June 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 7 years 6 months with a non parole period of 5 years 6 months.
Catchwords:	CRIME -SENTENCE - robbery whilst armed with a dangerous weapon - possess unauthorised firearm - Form 1 matters: fire firearm manner likely injure person - stalk/intimate intend fear physical harm - and possess or use a prohibited weapon without permit
Legislation Cited:	Crimes Act 1900 (NSW), s.97(2); Firearms Act 1996 (NSW), s.7(1)
Category:	Sentence
Parties:	Regina (Crown) Gorden Wen (Offender)
Representation:	Ms Namat (ODPP) Mr Jiang, later Mr Bowe (Offender)
File Number(s):	2018/23138
Publication restriction:	Nil