Regina v Jin

[2003] NSWCCA 238

CITATION:	Regina v Jin [2003] NSWCCA 238
HEARING DATE(S):	Wednesday 20 August 2003
JUDGMENT DATE:	20 August 2003
JUDGMENT OF:	Foster AJA at 14; Grove J at 2; Dowd J at 15
DECISION:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - SENTENCE - PARITY - NO ERROR IN APPROACH OR ASSESSMENT OF TRIAL JUDGE
CASES CITED:	Lowe v The Queen 1984 154 CLR 606 Postiglione v The Queen 1997 189 CLR 295
PARTIES :	Regina v Simon Jin
FILE NUMBER(S):	CCA 60152/03
COUNSEL:	D. Woodburne (Crown) H. Dhanji (Applicant)
SOLICITORS:	S.E. O'Connor (Crown) D.J. Humphreys (Applicant)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/21/0266
LOWER COURT JUDICIAL OFFICER :	Sides DCJ

60152/03

FOSTER AJA
GROVE J
DOWD J

Wednesday 20 August 2003

REGINA v SIMON JIN

Judgment

1 FOSTER AJA: I will ask Mr Justice Grove to give the first judgment.

2 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Sides DCJ at Campbelltown District Court. The applicant had pleaded guilty before a magistrate to two charges of robbery in company and had been committed for sentence. The maximum prescribed penalty for such offence is imprisonment for twenty years. The sentencing judge was also asked to take into account on sentence three offences on a Form 1 being offences of larceny, entering enclosed lands, and self administering a prohibited drug respectively.

3 The learned sentencing judge imposed a sentence of imprisonment for three years and fixed a non-parole period of eighteen months, ordering the release of the applicant to parole upon the expiry of the non-parole period. It might be presumed that this term was intended to be imposed in respect of each charge with the sentences to be served concurrently. The Form 1 offences were taken into account but his Honour expressly indicated that the sentence imposed was not extended by reason of those offences having regard to his conclusion that none of them would have merited a custodial sentence.

4 A co-offender Konrad Bordakiawicz appeared for sentence with the applicant on the counts of robbery in company. He was sentenced to three years imprisonment with a non-parole period of two years accompanied by a direction that the sentence be served by way of periodic detention. Again, it might be taken sentence was imposed in respect of each charge and that the sentences be served concurrently. The sole ground of appeal asserts that the applicant has a justifiable sense of grievance by virtue of the disparity of the sentence imposed upon him and that imposed upon his co-offender.

5 On Saturday 15 June 2002 the offenders entered Glen Street Park at Eastwood where they encountered three fourteen year old boys. Bordakiawicz said to one of them “What’s in your pocket?” And he then “patted down” the trousers of the boy and removed his wallet and mobile phone. He took $5 from the wallet and the sim card from the phone, returning the wallet to this victim. The applicant then said to another of the boys “Empty out your pockets, come on, I am asking you nicely”. The applicant then started pushing this boy with both hands, as a result of which he removed a mobile phone from his pocket and gave this to the applicant. The offenders then left the park.

6 At about 6.15 pm that evening police observed the applicant speaking to a person called Holmes outside Eastwood Railway Station. There was an extant condition of bail requiring the applicant not to associate with the man Holmes. The applicant was told to empty his pockets and he produced the telephone stolen earlier in the afternoon. At interview later in a police station the applicant admitted participating in the robberies. The applicant gave to police information concerning the co-offender whom he knew as “Chad” and this information enabled Bordakiawicz to be identified and arrested in due course.

7 In his remarks on sentence the learned judge made express reference to his consciousness of the issue of parity between the co-offenders. He said:

“There is no basis, in my view, to distinguish between the criminality of the two offenders, nor is there a basis to distinguish between them on the question of leniency to be given for their pleas of guilty. However, their subjective circumstances are different.”

8 He noted that whilst both offenders were young, the applicant was about twelve months older. Bordakiawicz had no prior convictions. The applicant had been convicted at Ryde Local Court on 30 November 2001 of driving with a low range of the prescribed concentration of alcohol; custody of a knife in a school; larceny to the value of less than $2,000 and taking and driving a conveyance without consent of the owner. He was ordered to pay fines, serve 150 hours community service and placed upon recognizance for two years under the supervision of the Probation Service. On 10 January 2002 at Fairfield Local Court he was fined on each of three charges respectively for possessing a prohibited drug, larceny to a value of less than $2,000 and goods in custody reasonably suspected of having been stolen or otherwise unlawfully obtained. On 16 April 2002 at Burwood Local Court he was fined for driving whilst disqualified. It follows that at the time of these offences the applicant was subject to current recognizance and also, as I have mentioned, to bail conditions.

9 Finally, as a matter of discrimination between the offenders, his Honour expressly found that the prospects of rehabilitation of Bordakiawicz were excellent and much better than those of the applicant. He expressly found that the applicant’s prospects of rehabilitation could not be “viewed as good”. His reasons for this conclusion were stated to include:

(a) the content of a psychologist’s report;
(b) the prior convictions;
(c) the failure to complete the community service order;
(d) his poor response to supervision whilst on the bond;

and

(e) the fact that he breached bail in the commission of the current offences.

10 His Honour’s findings were amply supported by the evidence. A Probation and Parole Service report was unfavourable. It noted that as regards the community service order the applicant was dismissed from a community service agency for general misconduct and attending the work site apparently under the influence of marijuana and alcohol. The report also noted that he failed to appear for work assigned and that an application for revocation had been made, following which there was a failure to appear before court and the order for community service revoked and a warrant issued. His Honour’s assessment of poor rehabilitation prospects was further confirmed by the inclusion in the report of the following:

“Given Mr Jin’s reoffending, his evasive and minimal response to supervision on his current bond and his failure to appear as requested during the assessment process, he is considered unsuitable for further supervision with this Service.”

11 Submissions on behalf of the applicant asserted that there were significant matters in his favour which were not present in the case of the co-offender. The applicant intended to return the mobile telephone which he had taken and this was expressly found in his favour by the sentencing judge. Nor did his Honour overlook the assistance rendered to authority in enabling the identification of the co-offender. The applicant has also spent four days in custody in respect of these charges before being released to bail, which was not the situation in the case of Bordakiawicz.

12 The principles to be applied when a ground such as the present is advanced have been stated authoritatively in Lowe v The Queen 1984 154 CLR 606 and Postiglione v The Queen 1997 189 CLR 295 and do not require restatement. As has been noted, whilst both offenders received identical head sentences, the non parole period specified for Bordakiawicz was in fact longer than that specified for the applicant, although the former was to serve the non-parole period by way of periodic detention. None of his Honour’s findings have been shown to be erroneous. Nor has his Honour, as can be deduced from his remarks on sentence, overlooked any matter of significance in assessing the applicant’s sentence and in determining the appropriateness of contrast between the sentence to be imposed upon him and upon his co-offender. The reasons given for discrimination between them were valid and amply supported by the evidence of the circumstances. The ground is not made out. It has not been suggested that the sentence, viewed in isolation, was outside the bounds of the sound exercise of sentencing discretion.

13 I propose that application for leave to appeal against sentence be granted, but the appeal dismissed.

14 FOSTER AJA: I agree.

15 DOWD J: I also agree.

16 FOSTER AJA: The order of the Court is that leave to appeal against the sentence is granted but the appeal is dismissed.

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Last Modified: 09/29/2003