R v Wong

[2003] NSWCCA 247

CITATION:	Regina v Wong [2003] NSWCCA 247
HEARING DATE(S):	03/09/03
JUDGMENT DATE:	12 September 2003
JUDGMENT OF:	Meagher JA at 1; Sully J at 6; Kirby J at 9
DECISION:	By Majority: Leave to appeal granted. Appeal dismissed.
CATCHWORDS:	Criminal Practice & Procedure - parity - comparison with ring leader who was child - comparison with adult
LEGISLATION CITED:	Crimes Act 1900 Children (Criminal Proceedings) Act 1987
CASES CITED:	R v WKR (1993) 32 NSWLR 447 R v Olbrich (1999) 199 CLR 270 R v Boney [2001] NSWCCA 432 R v Diamond (NSW, CCA, 18.2.93) Lowe v The Queen 154 CLR 606 Postiglione v The Queen (1997) 189 CLR 295
PARTIES :	Regina Man Kam Wong
FILE NUMBER(S):	CCA 60266/03
COUNSEL:	P Miller (Crown) R Sutherland SC (App)
SOLICITORS:	C K Smith (Crown) K Lo (App)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/21/0230
LOWER COURT JUDICIAL OFFICER :	Bellear DCJ

60266/03

MEAGHER JA
SULLY J
KIRBY J

Friday 12 September 2003

REGINA v MAN KAM WONG

Judgment

1 MEAGHER JA: The facts are appropriately set out in the judgment of Kirby J, which I have read. However, with regret, I am unable to agree with it.

2 The crucial fact in the case is that the appellant, in company with other little thugs, was engaged in the group-terrorising of innocent shopkeepers in the Parramatta area. The way they did it, by demanding protection money and enforcing such demands by violence, is reminiscent of the behaviour of the Nazi thugs in Berlin in the thirties, or of Mafia groups in modern Sicily. If civilised democracy is to survive in this country, such behaviour must be suppressed. The first step to do so is to impose very heavy prison sentences on those who glory in it.

3 In the present case, a magistrate, recreant to her duty, imposed a ridiculously light sentence on one of these thugs. Then Bellear DCJ imposed on another of them a sentence which was only slightly less ridiculous. Then his Honour Bellear DCJ sentenced the present applicant to sentences which totalled two years 6 months, with a non-parole period of one year six months. Now, if you please, he appeals to this Court on the ground that the sentence is too severe, whereas there should have been a Crown appeal on the ground that the sentence was too lenient.

4 In these circumstances it has seemed desirable to Kirby J to accede to the application, disregarding any justified sense of grievance the shopkeeper victims might have felt. His Honour should have dismissed the appeal.

5 I would grant leave to appeal and dismiss the appeal.

6 SULLY J: I have had the advantage of reading in draft the differing judgments of Meagher JA and of Kirby J.

7 Like Meagher JA, I would dismiss this appeal. My reasons are as follows.

[1] In my opinion Eric Ng should have been dealt with according to law and not pursuant to the special regime established for minors by the Children (Criminal Proceedings) Act 1987 (NSW). In that connection I adhere to what I said, with the general concurrence of Hunt CJ at CL and of Campbell J, in WKR (1993) 32 NSWLR 447.

[2] Dealing with Eric Ng pursuant to the privileged regime of the Act resulted in the imposition upon him of a penalty which was, as I respectfully think, manifestly inadequate to punish properly his high-level participation in an organised extortion racket that preyed insolently upon decent, law abiding, small shopkeepers.

[3] That the manifest inadequacy of Eric Ng’s punishment should furnish any kind of benchmark for the proper punishment according to law of the present applicant is, in my opinion, a proposition that should be plainly and firmly rejected. To do otherwise would not vindicate the rule of law, but would tend, rather, to subvert it.

[4] It follows that any justified sense of grievance now asserted by the applicant, and based upon principles of parity in sentencing, ought to be judged by reference to the sentence passed upon Hendy Tandiono. I agree with Meagher JA that Tandiono’s sentence was itself markedly lenient; but it has not been the subject of any Crown appeal.

[5] I agree with Kirby J that the applicant’s head sentence, and the primary Judge’s finding of special circumstances, should not be disturbed.

[6] That being so, the intervention now proposed by Kirby J is, in real and practical terms, de minimis . I take so strongly adverse a view of the particular extortion racket in which the applicant joined, that I do not believe that such a comparatively minor adjustment as his Honour proposes can be justified by the correct application of correct principles.

8 I would grant leave to appeal. I would dismiss the appeal itself.

9 KIRBY J: Man Kam (Ambrose) Wong (the applicant) seeks leave to appeal against a sentence imposed by Bellear DCJ on 20 December 2002. Mr Wong pleaded guilty to five offences and asked his Honour to take into account two further matters on a Form 1. The offences were as follows:

Count 1 : Malicious damage to a shop front window on 25 July 2001 (s195 Crimes Act 1900) (the Act): maximum penalty 5 years imprisonment.

Counts 2 and 3 : Demanding property with intent to steal on 4 August 2001 (s99(1) of the Act): maximum penalty 10 years imprisonment.

Counts 4 and 5 : Demanding property with intent to steal on 18 August 2001 (s99(1) of the Act).

10 The two offences on the Form 1 were further instances of demanding money with menaces on 18 August 2001.

11 His Honour Bellear DCJ made the sentence on count 1 partly cumulative with the sentences imposed upon the remaining counts. The effective sentence was 2 years 6 months imprisonment with a non parole period of 1 year 6 months. The sentence took account of a short period in custody after arrest. It commenced on 29 November 2002 (the date of submissions on sentence), when bail was revoked.

12 There were a number of co-offenders. Most entered early pleas of guilty, as did the applicant. Some were dealt with in the Children's Court. One, Hendy Tandiono, was sentenced by Bellear DCJ some months earlier. Others have yet to be dealt with.

13 The applicant's complaint is based upon parity. Having regard to the sentences imposed on others, he has, it is said, a justifiable sense of grievance. I will describe in general terms the joint enterprise, and then deal with the role of Mr Wong, so that his criminality might be compared with that of others.

The enterprise

14 Mr Ambrose Wong (the applicant) and his co-offenders were members of a gang, known as The Big Circle Gang. Gang members regarded each other as members of "a brotherhood". Most were youthful. Some were as young as 15 years. A number, including the applicant, were 18 years old. Many had been recruited from schools. Others joined through video parlours and internet cafes. The gang was highly organised. It had a structure which insulated the person in charge, known as the "Grandfather". At street level, the gang was led by Eric Ng (aged 16 years 9 months) and Nick Zaleiko (aged 18). Both were characterised as "District Leaders" (Parramatta being the district), or "Red Lanterns". Mr Ng also described himself as a "first class street enforcer".

15 Between 11 July 2001 and 18 August 2001 (when the police made a number of arrests), the gang preyed on Asian shopkeepers and restaurateurs in the Parramatta area, demanding and receiving money for protection. The amount demanded varied, although usually it was $280 per week from each establishment. That sum was moderated to accommodate protests by certain businesses.

16 On 11 July 2001, in a particular restaurant in Parramatta, Eric Ng asked to speak to the person in charge. He demanded money. When he made the demand, another gang member stood alongside him. Outside the restaurant others stood and waited. The restaurant owner said that he would need to consult his partner in Hong Kong. Eric Ng said he would return. And he did. When he returned, he was accompanied by twenty or thirty Asian males and females. They sat at different tables. The restaurant owner promised to pay, and asked them to leave. The same pattern was repeated with other establishments.

17 On any view, as his Honour recognised, these were most serious crimes. They relied upon the coercive force of numbers, and the unspoken threat of violence and reprisal. The victims were vulnerable. Because they feared violence, they met the demands made upon them. The gang relied upon the same fear to ensure that their victims then remained silent.

18 Happily, the victims went to the police. The police thereafter conducted surveillance. Listening devices were installed in a number of establishments. The police provided money (which was marked) which the victims gave the gang to answer their demands. After gang members had collected the money on Saturday 18 August 2001, the police arrested those involved, including the applicant.

The actions of Mr Wong

19 In R v Olbrich (1999) 199 CLR 270, the Court emphasised that the sentencing Court must focus upon the actions, acknowledged or proven, of the person being sentenced (per Gleeson CJ, Gaudron, Hayne and Callinan JJ at 277-78). His place in the hierarchy of co-offenders, if it is known or can be established, may furnish a useful index (in the context of the charges) for differentiating between one offender and another.

20 The matter proceeded by way of agreed facts. The facts, however, were supplemented by material from the Crown brief, which included witness statements, surveillance video tapes, and much more.

21 Having met resistance, or at least prevarication, from the restaurant owner, the gang took action. What they did was, as it happened, captured on a surveillance video, taken by the restaurant's security cameras. Eric Ng directed the applicant and another male to splash paint over the front window of the restaurant, which they then did. It was said by the owner of the restaurant that the window was also smashed, although that does not appear from the video. However that may be, the window required replacement. These were the facts supporting the charge of malicious damage against the applicant (Count 1).

22 The damage to the restaurant had the desired effect. The following Saturday, 4 August 2001, the gang returned to the restaurant. Eric Ng repeated his demands for money. Another gang member, Hendy Tandiono stood alongside him, as revealed by the video tape taken from within the restaurant. Two other gang members sat at tables nearby. The applicant and others waited outside the restaurant, forming part of the show of force designed to intimidate the restaurant owner (Count 2). The same pattern was repeated the same day at a different establishment (Count 3).

23 Payment was again due on Saturday, 18 August 2001. Some fifteen shops and restaurants were visited by the gang. Each visit was led by Eric Ng. It was Eric Ng who received the money, each time accompanied by an assortment of gang members. One usually stood alongside Eric Ng as he made his demands. Others stood outside.

24 In approximately ten minutes, according to the police surveillance, the applicant went with Eric Ng to four establishments (Counts 4 and 5 and matters numbers 1 and 2 on the Form 1). On three occasions he stood outside with others whilst Ng made his demands. On one occasion he accompanied Eric Ng into a supermarket. He did so, apparently, to assist, if required, since he spoke better Cantonese than Ng.

25 Following his arrest, Mr Wong was interviewed by the police. He acknowledged at once that he had known that money was being demanded and that it was an extortion racket. He was frank on all issues apart from his complicity in the damage to the restaurant on 26 July 2001 (Count 1).

Sentences of co-offenders

26 Complaint is made by the applicant about his sentence when compared to the sentences imposed upon Eric Ng and Hendy Tandiono, both more senior in rank, and far more involved.

27 Eric Ng, as mentioned, was 16 years and 9 months when these offences were committed. He was the ring leader. He was arrested on 18 August 2001 and remained in custody until he was sentenced. He pleaded guilty to 35 counts of demanding property with intent to steal (s99(1) of the Act) and one count of malicious damage (s195 of the Act). He was sentenced in the Children's Court on 26 February 2002 by Ms B A Schurr LCM. Under the Children (Criminal Proceedings) Act 1987, where a child or young offender is charged with an indictable offence or offences (not being a "serious indictable offence" as defined), the Court has a discretion to deal with the offender either "according to law" or under Division 4 Part 3 of the Act. Under that Division, various orders can be made by way of punishment. However, if a custodial sentence is imposed (termed a "control order" under s33(1)(g)), the maximum term is 2 years.

28 Here the Court exercised its discretion in favour of Mr Ng to deal with him under Division 4, Part 3, that is the regime appropriate to the Children's Court. When sentenced, Mr Ng was entitled to a discount, first, by reason of his early plea, and secondly, by reason of the assistance he had provided against other members of the gang. He had no criminal convictions. It was recognised that he would require protection and need to serve his sentence in an institution remote from his family. In these circumstances the learned Magistrate imposed the following sentence:

· First, a fixed term of 3 months (dating from 18 August 2001) for the malicious damage.

· Second, a sentence of 11 months (also dating from 18 August 2001) in respect of the 35 counts under s99(1) of the Act, with a non parole period of 7 months, each term to be concurrent. There was, in addition, a recommendation that Mr Ng be considered for conditional release prior to the expiration of that term to assist his reassimilation into the community.

29 Hendy Tandiono was also sentenced by Bellear DCJ. He was the same age as the applicant (born 13 May 1983, two days after the applicant). He was a student from Indonesia, enrolled in a course in Australia. Like the applicant, he had no criminal convictions. And, like the applicant, he received a discount of 25 percent for his early plea.

30 Mr Tandiono was charged with 18 offences of having demanded property with intent to steal, contrary to s99(1) of the Act, the offences having occurred on 4 August 2001 (2 counts) and 11 August 2001 (16 counts). He was not present on 18 August 2001, although he had been in Parramatta earlier that afternoon, and had made contact with gang members.

31 Mr Tandiono was given bail. He returned to Indonesia. As required by his bail, he again returned to Australia in order to be sentenced by Bellear DCJ on 27 June 2002. The sentencing Judge was provided with a copy of the remarks on sentence by Ms Schurr in respect of Ng. His honour made the following comments in relation to that material: (p36-37)

"Whilst acknowledging that this offender is a young adult offender, I am satisfied that there can be no parity principle applied to this sentence with the juvenile co-offender Ng, who has already been sentenced. I accept the solicitor advocate Mr Ash's contention that the learned magistrate did not quantify the discounts given to the offender. However, the learned magistrate noted that these offences are 'possibly the most serious set of offences that have come from the Children's Court'. It appears that she may well have started with the maximum penalty of two years. Magistrate Schurr then noted that the offender's assistance was 'significant and useful' and that he was entitled to a 'significant discount in addition to the discount for a plea of guilty'.
I accept that the 'substantial' discount was somewhere in the vicinity of 40 to 50 percent, with a further discount for the plea of guilty reducing the total sentence to eleven months."

32 In determining the appropriate sentence for Mr Tendiono, his Honour made the following finding: (p29)

"This offender, I am satisfied, was not one of the street leaders but was included as a 'trusted' gang member, a few rungs down from the street leader."

33 As with Mr Wong, his Honour was satisfied that Mr Tandiono had not yet been paid. His Honour concluded that the objective gravity of the crime demanded a sentence which would operate as a strong deterrent to others. The effect of the sentence he imposed was a term of imprisonment of 4 years with a non parole period of 2 years, his Honour having found special circumstances.

Comparison with the young offender

34 Material relating to the sentences imposed upon Eric Ng and other co-offenders (including Tandiono) was provided to Bellear DCJ so that he could address the issue of parity. His Honour reserved his decision. His remarks on sentence are lengthy and painstaking. He was keenly aware of the need for parity, which he endeavoured to provide. His Honour referred to the appropriate authorities.

35 The principles relating to parity, where the comparison is with a young offender, have been gathered by Wood CJ at CL in R v Boney [2001] NSWCCA 432. A number of propositions can be stated:

· First, in fashioning a sentence for an adult involved in the same crime, it is relevant to have regard to a sentence imposed by the Children's Court upon a co-offender.

· Second, the worth of that comparison, however, will be limited given the different sentencing objectives and other considerations in the Children's Court.

· Third, in determining whether there is a justifiable sense of grievance, it must be recognised that a stage can be reached where the inadequacy of the sentence imposed upon a co-offender is such that any sense of grievance engendered by it cannot be regarded as legitimate (R v Diamond (NSW, CCA, 18.2.93, per Hunt CJ at CL).

· Fourth, at an appellant level, where there is a justifiable sense of grievance in the adult offender, that does not oblige the court to intervene. It has a discretion to intervene. It should not intervene where to do so would produce a sentence which does not reflect the objective gravity of the crime.

36 Here, the applicant points to a number of matters. Eric Ng, as stated, was the ring leader. Notwithstanding his youth, he gave instruction and direction to the gang, as depicted on the video in respect of the paint throwing. It was Eric Ng who made the demands upon the victims. He it was who collected the money and badgered the victims beforehand until they succumbed to his demands. He was involved in every aspect of the enterprise from its inception until 18 August 2001, when he and other gang members were arrested. Eric Ng was charged with 36 counts, compared to 5 counts against Ambrose Wong (with two matters on a Form 1). Yet he was sentenced to a control order for 11 months with a non parole period of 7 months, with a recommendation that he be released into the community earlier if possible.

37 The applicant, in contrast, was a relatively late recruit into the gang. His involvement was limited in the way described. He was said by the Probation and Parole Service to be immature. Dr Jolly, psychiatrist, made the same observation. He thought he had the maturity of a 15 or 16, or perhaps 17 year old. Eric Ng, in contrast, was very mature. Their chronological ages, however, led to sentences which were markedly different. Ambrose Wong was 18 years 2 months when he foolishly joined this enterprise. Had he been six months younger, the outcome may have been very different.

38 I accept that to a reasonable observer, such difference in treatment may seem unfair. The unfairness derives from the decision to deal with Eric Ng under the regime provided for in the Children's Court, rather than "according to law" (cf R v WKR (1993) 32 NSWLR 447 at 451 (Hunt CJ at CL and Sully J at 459-460)). Can that unfairness be characterised as a justifiable sense of grievance, as that term has been explained in Lowe v The Queen 154 CLR 606 and Postiglione v The Queen (1997) 189 CLR 295? I will leave that issue to one side for the moment whilst I examine the second limb of the applicant's argument, which concerned the other adult offender, Hendy Tandiono.

Comparison with Mr Tandiono

39 Mr Wong's counsel drew attention to two matters where, according to his argument, a contrast between Ambrose Wong's position and that of Hendy Tandiono distinctly favoured Mr Wong. First, they were differently placed in the hierarchy. Secondly, there was, according to the applicant, a marked difference in the intensity of Mr Wong's involvement in gang activities compared to that of Mr Tandiono (no doubt reflecting their rank within the hierarchy).

40 After his arrest, Eric Ng provided the police with statements in which he described the hierarchy and the role performed at each level. Mr Tandiono was described as a "Blue Lantern", which was one level down from Eric Ng. The applicant, in contrast, was described (as his Honour accepted) as a "watchdog", or a level 4 to 5 fighter (whatever that may mean). Eric Ng further said that if Ambrose Wong were to successfully complete the Parramatta extortion, he would be promoted to one level below a Blue Lantern.

41 His Honour recognised (remarks p2) the importance of "where the offender is placed in the ladder of criminality", considered in the context of the particular offences charged. His Honour said this: (p10 -11)

"This offender I accept was not one of the street leaders but was included as a 'trusted' gang member, a few rungs down from street leader Ng and just below that of the offender Tandiono. This is based on the fact that he did not attend as many shops or restaurants as did Tandiono, although I do accept that his role was significant in the menacing of the victims who refused to hand over the money demanded."

42 It is said on behalf of the applicant that this overstates the position. At the time the offences were committed, Ambrose Wong was, on the applicant's submission, well below Hendy Tandiono. Even once promoted, he would still be one level below Mr Tandiono. And this difference, on the applicant's case, can be seen by a comparison of what each did. On 11 August 2001 (a day on which Mr Wong did not participate), Hendy Tandiono was effectively the lieutenant of Eric Ng. He went from one shop to the next with Ng and others as demands were made and money collected. Sometimes he stood alongside Ng (as revealed by surveillance) as demands were made. On other occasions he was outside, as part of the show of force designed to intimidate the victim. On that day he committed 16 offences under s99(1) of the Act. Ambrose Wong, on the other hand, was charged with two offences on 4 August and four (including the Form 1) on 18 August 2001.

43 In these circumstances, according to the applicant, it is timely to look again at the balance struck by his Honour between these two offenders. The difference in sentence was as follows:

Tandiono: 4 years with a 2 year non parole period
Wong: 2 1/2 years with a 1 1/2 year non parole period

44 The applicant's case can be summarised in this way. Apart from the issue of parity, no complaint could be made against Mr Wong's sentence. It was within the range of sound sentencing discretion. Indeed, no particular complaint could be made as to the balance struck between the respective terms of imprisonment imposed upon the two offenders (4 years for Tandiono against 2 years 6 months for Wong). What is unfair, according to the applicant, and gives rise to a justifiable sense of grievance, is that, although Mr Tandiono was much more heavily involved (18 offences compared to 7), and much more significant in the gang structure, he only received six months more in actual time in custody than Ambrose Wong.

45 I am persuaded that Mr Wong does, in respect of the non parole period fixed by his Honour, have a legitimate sense of grievance. I am reinforced in that view, difficult though the comparison is, by the sentence imposed upon Eric Ng. I believe the Court should intervene.

46 In resentencing the applicant, I would not disturb the head sentence imposed. Having regard to the seriousness of the offences, a sentence of 2 years 6 months was entirely appropriate. I would also adopt, for the reasons given by his Honour, the finding of special circumstances. I would, however, adjust the non parole period so that it was reduced from 18 months to 12 months.

Order

47 I therefore propose the following orders:

1. Leave to appeal is granted.

2. The appeal is allowed.

3. The sentence is set aside and, in lieu thereof, the applicant is sentenced as follows:

On Count 1 , the applicant is sentenced to a fixed term of imprisonment of 9 months to commence on 29 November 2002 and expire on 28 August 2003.

On Count 2 , including the Form 1, the applicant is sentenced to a term of imprisonment of 2 years 6 months concurrent with the sentence on Count 1, to commence on 29 November 2002 and expire on 28 May 2005. The non parole period is 12 months to expire on 28 November 2003.

On Counts 3, 4 and 5 , a fixed term of 9 months imprisonment concurrent with the sentences on Counts 1 and 2 to commence on 29 November 2002 and expire on 28 August 2003.

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Last Modified: 09/15/2003