R v Yong

[2019] NSWDC 769

District Court

New South Wales

Medium Neutral Citation:	R v Yong [2019] NSWDC 769
Hearing dates:	22 November 2019
Date of orders:	22 November 2019
Decision date:	22 November 2019
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Aggregate term of imprisonment of 3 years 4 months with a non-parole period of 2 years
Catchwords:	CRIME — Violent offences — Common assault CRIME — Violent offences — Robbery in company SENTENCING — Non-parole period — Ratio of the non-parole period and balance of term
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986
Cases Cited:	Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518
Category:	Sentence
Parties:	Regina (Crown) Raymond Leong Saint Yong (Offender)
Representation:	Ben Allison (Crown) Daniel Petrushnko (counsel) (Offender)   Director of Public Prosecutions (NSW) (Crown)
File Number(s):	2018/00070680

EX TEMPORE REVISED JUDGEMENT

INTRODUCTION

1. Raymond Leong Yong was presented for trial in the District Court of New South Wales due to commence on 26 August 2019. Negotiations were underway between the parties and ultimately a plea of guilty was entered on 28 August 2019, two days after the trial was due to commence.

THE OFFENCES

2. The pleas of guilty were to offences of common assault contrary to s 61 Crimes Act 1900 for which the maximum penalty is imprisonment for two years and robbery in company contrary to s 97(1) Crimes Act 1900 for which the maximum penalty is imprisonment for 20 years.

3. There is no standard non‑parole period for the offences for the purposes of Part 4, Division 1A Crimes (Sentencing Procedure) Act 1999.

4. There is a third count on the indictment specifying an offence of larceny of a Rolex watch, the property of the victim in the other two charges; that has been included in a Form 1 signed on behalf of the Crown and by the offender, together with an offence of possessing 4.3 grams of methylamphetamine.

5. The offender asks that those offences be taken into account when I determine sentence for the robbery in company offence. I intend to do so and I will certify the document accordingly.

THE FORM ONE OFFENCES

6. I have had regard to the guideline judgement dealing with Form 1 offence considerations and the guidance provided by Spigelman CJ: Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518.

7. The additional offences will require an increase in the sentence for the offence of robbery, increasing it to a level beyond that which would have been applied had he been sentenced upon that offence alone. The increase will not be significant however in light of the connection between the additional offences and the misconduct upon which the robbery charge was brought.

8. The offender has gained considerable advantage in taking this course in respect of those two additional charges. The larceny carries a maximum penalty of five years imprisonment. Possessing the prohibit drug has a maximum penalty of two years imprisonment. But at the same time he has provided a measure of utility which must be brought to his account; moreover this process is employed to facilitate the process of rehabilitation that one hopes the offender has embarked upon.

9. It is a procedure that has been available for an excess of four decades and has proved valuable in the administration of criminal justice in this State. The significance of the additional offences is the extent to which specific deterrence must be given appropriate weight and the opportunities the community has to see that he faces consequences for the full range of his offending that will attract appropriate denunciation by another court when called upon to consider all of the misconduct upon which the offender has engaged.

PRE-SENTENCE CUSTODY

10. He has just spent some time in custody for this matter. He was arrested on 5 March 2018 and was held until he was granted bail on 27 March 2018, a period of 23 days. That must be brought to account in his favour. Since this misconduct he engaged upon other offending which resulted in custody on 29 June 2018 for one day and then thereafter for a period of six months from 22 September 2018 until 21 March 2019. The misconduct attracting those periods of custody is completely unrelated to the matters before me, however the principle of totality cannot be ignored in this sentencing exercise and accordingly there must be some concurrence as well as accumulation between that period of incarceration and what is going to happen today. I will commence the aggregate sentence which I will impose on 30 August 2019.

11. It has also been brought to my attention that he is in immigration custody and has been held by the immigration authorities for some months. I am asked to bring that to account; the period is a little more than eight months. The Crown concedes that I have discretion in that regard but the question is whether or not it should be exercised in favour of the offender to further backdate the sentence that he will suffer at the end of this judgement.

12. I am not persuaded that I should allow him time for the period he has been held by immigration. The relationship between the decisions of those that have led him to be held by the Commonwealth authorities was informed only in part by the particular conduct upon which I am to impose sentence today. I shall deal more expansively with that when I come to the subjective case that I must consider in the determination of sentence.

THE UTILITY OF THE PLEAS OF GUILTY

13. The pleas of guilty to the offences upon which sentence is to be imposed were late. It is submitted that I should allow a discount of 10% for the limited utility of the pleas provided; I am prepared to do so. Indeed the percentage is a little greater because upon the application of that percentage to the starting point in the two sentences the result was in each case a period that included a number of days which I have abandoned for the indicative sentences that I will announce.

CO-OFFENDERS

14. There are co‑offenders who have been dealt with. They were in the Local Court. A man named Kiat was charged with demand property and a stealing from the person and suffered indicated sentences of 15 months in each case which were aggregated to a sentence of 15 months. The magistrate had a jurisdictional limit of two years in each case.

15. The maximum penalty exposed to the offender, as I recall, is imprisonment for 14 years in each of those offences.

16. The other offender, a man named Lau, suffered a sentence of 18 months’ imprisonment in the aggregate for offences of assault occasioning actual bodily harm, demanding property, and stealing from the person. In each of those, the magistrate indicated sentences of 15 months as appropriate. Once again, the sentences that the magistrate had available were, in each case, imprisonment for two years.

17. The maximum penalty specified for those offences are significantly less than the 20 years maximum penalty to which this offender is exposed by the charge of robbery in company. Thus parity is not, in strict terms, an issue that will exercise this Court, although, as Mr Petrushnko has said, it is a matter that I cannot overlook when determining the sentence to be imposed upon this offender. I do not agree though with the submission made that he should not suffer a sentence any greater than the sentence imposed in each case in the aggregate upon the co‑offenders.

THE FACTS

18. The facts are that the victim, a man named Cheung, arrived in Australia in October 2016 on a student visa. He met the offender through a mutual friend named Haw. A mobile phone belonging to the victim was stolen from his home in February 2018. There was a measure of distrust that evolved between the victim, Haw, and Haw’s associates, who included the offender.

19. On 3 March 2017, the offender drove the victim to the offender’s home in Hurstville with three other males, including Kiat and Lau. Haw also accompanied them. The victim was uncomfortable, and so before leaving the motor vehicle he secreted his Rolex watch behind the passenger seat of the car, concerned that if he took it inside it would be stolen from him. His concern arose from the knowledge that the others were drug users, and in his mind they could not be trusted.

20. All walked into the rear yard of the premises. Lau asked the victim about his phone that had been stolen. The victim told Lau that Kiat had implied that he knew who was responsible. At that point, Lau attacked the victim, punching him numerous times to the face, leaving him bleeding.

21. The victim went to the granny flat at the rear of the premises to clean himself up. Kiat, Lau, and this offender followed. After he cleaned himself in the bathroom, the victim walked into the living room and saw that Lau and the offender were smoking ice, which I take to be a reference to methylamphetamine. The offence charged in count 1 then occurred.

22. After a short time, the offender stood and kicked the victim in both of his legs. After more time, one of the others said, “Put your phones on the table.” The victim complied and put out an Apple iPhone 7 Plus and an Apple iPhone 10. Kiat told the victim to unlock the phones; the victim complied.

23. The offender picked up the iPhone 7 Plus. Kiat picked up the iPhone 10; he removed the SIM card and re-set all of the settings on the phone, and returned the SIM card to the victim.

24. The victim asked if he could leave; the offender replied, “No use calling the police, I can say you came to my house and I bashed you up.” The offender told the victim he had to give him some money before he could leave; the offender and Lau demanded $10,000 from the victim. The victim said, “I don’t have $10,000, I only have $2,000. I can give you $2,000 tomorrow morning.” The offender and the co-offender Lau said the victim must provide the money now.

25. The victim opened his wallet and counted out $430. The victim placed the $430 on the table. One of the others counted the money and said that was not enough. The victim said, “Take my iPhone 10 as security.” The offender replied, “You must give us the new iPhone 10 by 2pm tomorrow in exchange for this phone, as well as $1,570.” The victim agreed.

26. The offender said, “I will give you paper and pen, you can write this down for me.” The victim wrote down in Chinese characters the following dictated by the offender, “On 28 February I borrowed $2,000 from Ah-Chen [Yong as the Malaysian name] and as a result I got bashed up. I must repay the money by 4 March and 11 March.” The victim signed beneath the text.

27. Kiat told him, “Hold up the paper, and your identification and I will take a photo of you holding it.” The victim took out his Australian and Malaysian identification from his wallet. Kiat took a photograph of the victim holding the signed paper in one hand and his identification in the other. The victim did not owe any money. Kiat, Lau, and the offender, were not trustworthy. He did not owe money to Kiat, Lau, or the offender, and wrote the note because of the demands made upon him.

28. Arising from those events, the offender was charged with the assault upon the victim Cheung, and with robbery in company of $430 and an Apple iPhone. The offence was in the company of Kiat and Lau.

29. I agree with the submissions made that the objective gravity of the assault is at the low end of the range of objective seriousness. The offence of robbery in company is below mid-range, at a point I would suggest along the scale from the low end, perhaps half way toward the mid-range. Minds will differ in such an assessment. It is always a matter of judgement in the particular case, but that, in my assessment of the matter, is where I should place objective seriousness in respect of each of these offences.

30. Turning to the Form 1 matters, after the photograph was taken, the offender walked out of the granny flat. The victim, concerned that the offender was going to look for his watch in the car, asked if he could leave. Kiat and Lau replied that he could. He walked toward the car and attempted to locate his watch but found that it was not there. It had been taken at that stage by the offender.

31. The victim asked Haw and the offender if they took his watch, and both denied it. The victim left and went to Bankstown Police Station where the matter was reported.

32. A crime scene warrant was issued for the premises, and on 4 March 2018, the police attended there. Lau was arrested and cautioned; the offender was arrested and cautioned in his bedroom. They were taken to Auburn Police Station where they were put into custody.

33. In the offender’s bedroom they found the victim’s iPhone and the watch. These were in due course returned to the victim. 3.86 grams of methylamphetamine was found next to the offender’s bed.

34. He was given the opportunity to participate in an interview and he agreed to do so. He told the police that he picked up the victim from his brother’s place. They picked up Kiat from Auburn before driving to Hurstville Grove and said before they got there they stopped at Hurstville where they picked up the co-offender Lau. Lau pushed the victim once and smashed him in the face once causing the victim’s nose to bleed. The offender told the police that he did take $430 from the victim along with his iPhone 10. The money was divided and he kept the phone. The victim, he said, wrote out the note voluntarily.

35. The offender admitted that he kicked the victim to the leg. He denied stealing the watch but said he owned a fake Rolex watch and denied any knowledge of the drugs.

36. There are before me by way of s 166 Criminal Procedure Act 1986 offences of supply prohibited drug, sequence 5, and possess prohibited drug, sequence 6. I was told that sequence 5 was to be withdrawn. The possess prohibited drug is on the Form 1 and shall be dealt with accordingly. I have since learned that the supply prohibited drug charge was in fact noted to be withdrawn by the magistrate who committed the offender for trial.

THE OFFENDER

37. The offender has a record of antecedents. I note he was born in 1990 and is therefore 29 years of age. His first entry in courts in New South Wales was in November 2018 where he was given a Community Corrections Order for two offences of possess prohibited drug. In July 2018 for driving when his visiting privileges were withdrawn he was fined. In August 2018 for driving when his licence was suspended he was fined and disqualified. In November 2018 for larceny he was convicted without penalty pursuant to s 10A Crimes (Sentencing Procedure) Act 1999. On the same occasion for driving when his privileges were withdrawn he was convicted without penalty. In October 2018 for driving when there was a drug in his blood he was fined and disqualified. Again, in October 2018 for driving when a drug was present in his blood he was fined and disqualified. In November 2018 for driving whilst disqualified on five occasions he was imprisoned for nine months with a non-parole period of six months and was disqualified, the sentences to be served concurrently.

38. It is in respect of those sentences that he was in custody from 22 September 2018 for six months. In custody before he was released to the immigration authorities on 21 March 2019 he was dealt with for four custodial offences. In October 2018 he had a drug implement. In February 2019 he was smoking tobacco. He failed to comply with the correctional centre routine at the same time and then in the same month he was in possession of prohibited goods. He suffered punishment for each of those.

39. I have the agreed statement of facts in respect of the other offenders. They are comparable to the description of the event given in the facts before me. Kiat has no antecedents apart from the offences dealt with by the magistrate in this instance. Lau has a record of antecedents but again limited to the offences that were dealt with by the magistrate arising from these events. There is a custodial record for Lau and Kiat indicating that they have spent some time in custody for these offences which inform the commencement date of the sentences that were imposed by the magistrate.

40. The offender has provided two documents speaking to his qualities, one from his mother who is present in Court. She writes of the distress she feels at her child being in the circumstances where he finds himself today. She writes of the impact upon his family and there is no doubt that someone in her position would be very distressed seeing her son about to go to gaol for such serious criminal misconduct. There is also a document provided by his current partner, again writing in positive terms. Both have attributed to him expressions of remorse and regret for his misconduct.

41. The offender has not given evidence and therefore I am left to make an assessment upon the written materials provided to the Court.

42. There is a psychologist’s report written on 19 November 2019 by Mr Bradley Jones. The most significant event in the offender’s life was a motor vehicle event in which he was the driver in Malaysia which he survived but which took the life of his then partner and members of her family. He is said to be suffering from continuing grief and survivor guilt with intrusive memories associated with that occasion. The difficulty with regard to that though is that the intrusive thoughts arising from that event as described in the psychologist’s report were not of such moment as to discourage him from driving when his privileges to do so were withdrawn in this State, driving when his licence was suspended, driving with an illicit drug in is blood or driving whilst he was disqualified from doing so, conduct upon which he engaged on multiple occasions.

43. There is a description of the event in which he participated leading to his charge in the report at paras 5 and 6. I pointed out that the representations attributed to him there contrasted with the facts upon which sentence was to be imposed. Counsel informed that he detected the same difficulty and was anticipating that there would be an addendum provided by the psychologist but it was apparently not forthcoming. In any event, ultimately the version attributed to the offender in those paragraphs in the report is not part of the case presented on his behalf and I am invited to place those representations to one side and I do so.

44. His formative years were within a family where upon the representations attributed to him, he was given the love and support and nurturing that one might expect in a caring family environment. He has a good relationship with his mother and has always had such a relationship. He was also close to his father during the early years but as time progressed due to his father’s work commitments, their relationship became a little more distant and he spent more time with his grandfather. His parents continued to maintain a relatively good relationship with no significant arguments.

45. He was born in Malaysia and grew up there and did not come to this country until he was 25. He located in Sydney when he did so. He has had three long term relationships I am told. The first with the young lady who lost her life in a motor vehicle event in Malaysia, then another which last for a year only and now his current relationship to which it appears he is committed and in which it is apparent that the young lady is committed to him.

46. He enjoyed school. In Australia, he completed two years of English in Melbourne. He has worked as a plantation manager for three and a half years in Malaysia and gained work as a chicken deboner here in Griffith and in Sydney but has not worked since and cannot do so whilst he is held in the Immigration Detention Centre. He has work arranged for him upon his release.

47. He has consumed alcohol socially, it was not a problem. He admitted to having used ice or methylamphetamine between the age of 22 and 28. He stopped smoking because he feared he might become addicted. He has a history of gambling which involves what appears to be a significant amount of money but that has not led to any inappropriate debt or financial difficulty. He is relatively well functioning. He had some emotional upset as a result of his poor relationship with his father as I said and he is attributed with survivor guilt, whether they are his words or the psychologist’s description attributed to what he had to say is not entirely clear.

37. His mother is said to have encouraged him to seek treatment and counselling associated with the motor vehicle event but he has avoided doing so. He is attributed with suicidal ideation after the death of his then partner but that has not evolved into any plans. There is a sentence in para 23 of the report which seems to have been mistyped, dealing with his current state of general distress, but the content of the report does not really assist I might say, on that point.

38. I should add that in the motor vehicle collision or event, he suffered significant injury, including a fracture to his cervical vertebrae, requiring hospitalisation for about three months. He has limited recall of the collision but he knows that the vehicle he was driving struck a heavy vehicle which caused his vehicle to be catapulted into a grassland ditch. He has a Google photo album recording his life with his deceased partner, including some of his family which he views he said, two to three times a month.

39. There was a mental state examination which revealed nothing significant. He was assessed psychometrically. He has a normal level of depression, a moderate level of anxiety and a mild level of stress, consistent one might say with his present predicament I would expect. There is no indication of a gambling disorder and there is no psychological or psychiatric condition that might have impacted upon his functioning at the time of the offending, though he continues to experience some resultant feelings of guilt and grief, following upon the death of his former partner. He is assessed as a low risk of reoffending.

40. There is suggested management to address what was found upon this assessment.

CONSIDERATION

52. The question arises as to whether there are special circumstances in this case, requiring that he be on parole for a longer period than contemplated by s 44 Crimes (Sentencing Procedure) Act 1999. The evidence upon that is not strong; however, I note that he is before this Court with the assistance of an interpreter, though he has had two years studying English. I do not have any indication of his capacity with the English language. I would accept though that with English being not his native tongue there would be some difficulty for him in the custodial setting which will impact upon the punishment that he must suffer. I also note that he has only a limited custodial experience in the criminal justice system in this state, apart from the Immigration Detention, all which I accept provide some evidence of special circumstances which would require that he be on parole for a longer period of time than otherwise would be contemplated, to facilitate his rehabilitation and hopefully, lead him into circumstances where he will not engage upon any other misconduct in the future.

53. Turning now to this question of his immigration custody, counsel urged upon me the view that I should allow him not the entire eight months that he has been in custody with Immigration but at least a good or a portion of it in accordance with the discretion that I am said to have as a consequence of the decisions of the Supreme Court of New South Wales.

54. There has been tendered the determination of the Administrative Fields Tribunal made on 4 April 2019, refusing his application for a type of visa that he was then pursuing. The visa he sought, and which was denied him by the Minister’s delegate, a decision confirmed by the Tribunal, was a bridging visa, styled Bridging visa E, and referred to in the findings of the Tribunal as a BVE. The Tribunal was not satisfied that conditions that should be imposed for that visa would be followed by the offender. The conditions were that he must not engage in work in Australia, he must not engage in studies or training in Australia, that he must notify the Department of any change of address, and that he must not engage in criminal conduct.

55. The Tribunal came to the view that his antecedent misconduct and the conduct the subject of these proceedings were such that it could not be confident that he would satisfy the fourth of those conditions. He did represent to the hearing that he would not be working but would live with his mother and father who would provide for him and that he would not be undertaking any studies.

56. The condition that he not engage in criminal misconduct however was clearly breached, not only by the conduct upon which he engaged on this occasion, but also the further offences that were committed after the events leading to this prosecution which occurred on 3 March 2018.

57. The charges on his antecedent report were preferred on 26 May 2018 when he was charged with the two offences of possess prohibited drug; on 26 March 2018 when he was charged with driving when privileges had been withdrawn; on 16 June 2018 when driving whilst suspended; on 26 June 2018 for the offence of larceny; on 4 July 2018 for driving when privileges withdrawn; on 28 August 2018 for driving with an illicit drug in his blood; on 2 September 2018 when driving an illicit drug in his blood; on 21 September 2018 when he drove on five occasions whilst disqualified whilst he was disqualified.

58. Moreover, at the time of the determination in April 2018, he was at large with bail in respect of these matters and which were, at least at that stage of the proceedings, intended to proceed as a trial rather than as a sentence matter.

59. It is also significant to note the chronology that is described in the Tribunal’s findings at para 16 drawn upon information provided by the offender. On 11 March 2015 he arrived in Australia on an electronic travel authority; on 5 June 2015 he applied for a student visa; on 17 July 2015 he was granted a student visa; on 22 May 2017 he departed Australia; on 2 June 2017 he returned to Australia on the student visa; on 14 December 2017 he departed Australia; on 1 January 2018 he arrived in Australia on an electronic travel authority. On 29 March 2018, he applied for a protection visa; on 9 April 2018, he was granted a Bridging visa A associated with the protection visa application; on 26 October 2018 his protection visa application was refused by a delegate. He then lodged an application for a review, which is currently pending before the AAT according to this judgement. On 18 March, he applied for the Bridging visa E; on 21 March, the delegate refused that; and then on 25 March 2019 he applied for the review. I note once again the offending occurred on 3 March 2018.

60. I have taken into account that chronology, I have taken into account the point when this offence occurred, and I take into account what the Tribunal decided with regard to his antecedent criminal record, which included offences that extended after the date for this offending. For those reasons, I do not propose to allow him any time for the period he has been held by Immigration.

THE SENTENCES

61. That brings me now to the imposition of the sentence. The offender is convicted of the charge of common assault; he is convicted of the charge of robbery in company. I have taken into account the circumstances in which these offences occurred, including that there was a measure of restriction preventing the victim from leaving the location where the offences occurred. As described in the facts, he asked permission to leave after he had submitted to the demand made of him to be filmed or photographed, and thereafter to retrieve money which was being sought from him in addition to the money that was stolen in the course of the robbery. I have allowed the discount, as I have indicated.

62. For the offence of common assault which was also committed in company, I have identified as appropriate a sentence of imprisonment of 7 months. For the offence of robbery in company, I have identified as appropriate a sentence of imprisonment for 3 years and 2 months. I shall impose an aggregate term commencing on 30 August 2019. The aggregate sentence I impose is one of 3 years and 4 months commencing 30 August 2019 and to expire on 29 December 2022. I specify a non-parole period of 2 years upon a finding of special circumstances that shall expire on 29 August 2021.

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Decision last updated: 20 December 2019