New South Wales District Court CITATION: R v Han; R v Hu; R v Huang [2009] NSWDC 49 HEARING DATE(S): 15-27 October 2008 JUDGMENT DATE: 23 March 2009 JURISDICTION: Criminal JUDGMENT OF: Knox SC DCJ Count 1 – Han - 3 years imprisonment with a non-parole period of 2 years. Count 2 – Hu - 18 months imprisonment with a non-parole period of 12 months. DECISION: Count 2 – Huang - Suspended sentence of 18 months. Count 3 – Han - 12 months imprisonment concurrent with count 1. Count 4 – Hu - convicted but no penalty imposed. Count 5 – Huang - convicted but no penalty imposed. CATCHWORDS: CRIMINAL LAW - sentence - demand money with menaces - threats - Big Circle gang - events occurring in context of employment relationship - allegation of debt recovery LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 R v Antoun; R v Antoun [2004] NSWCCA 268 The Queen v De Simoni (1981) 147 CLR 383 Dinsdale v R (2000) 202 CLR 321 R v Edwards (1996) 90 A Crim R 510 Imnetu v R [2006] NSWCCA 203 Marcus v R [2007] NSWCCA 229 CASES CITED: R v Nguyen [2000] NSWCCA 44 T v R (1990) 47 A Crim R 29 R v Truong [1999] NSWCCA 272 Veen v R (No. 2) (1998) 164 CLR 465 Weininger v the Queen (2003) 212 CLR 629 Wright v R [2006] NSWCCA 122 R v X [2004] NSWCCA 93 R v Zamagias [2002] NSWCCA 17 Regina PARTIES: Zhi Qiang Han Pei Nan Hu Lifeng Huang FILE NUMBER(S): 2008/8134 ; 2008/4396 ; 2008/4321 Crown: Ms C Dobraczyzk COUNSEL: Defence (Han): Mr A Parsons/Mr N Parsons Defence (Hu): Mr N Vertigan Defence (Huang): Mr Robinson/Mr J Annan JUDGMENT 1 A jury found the offenders guilty after a trial in the District Court at Parramatta between 15 and 27 October 2008. 2 The counts on which the offenders were convicted are as follows: Count 1 3 Mr Han – On or about 13 August 2006 at Campsie in the State of New South Wales, in the company of other persons, with menaces did demand from AL an amount of money, namely $17,700 with intent to steal that money from Mr AL. 4 This count was brought pursuant to section 99(2) of the Crimes Act 1900. The maximum penalty for the offence is 14 years imprisonment. Count 2 5 Mr Hu and Mr Huang (jointly) – Between 28 April 2007 and 3 May 2007 at Carlingford in the State of New South Wales, Pei Nan Hu and Lifeng Huang being in the company of each other, with menaces did demand from AL an amount of money, namely $10,000, with intent to steal that money from AL. 6 This count was brought pursuant to section 99(2) of the Crimes Act. The maximum penalty for the offence is 14 years imprisonment. Count 3 7 Mr Han – Whereas between 28 April 2007 and 3 May 2007 at Carlingford in the State of New South Wales, Pei Nan Hu and Lifeng Huang being in the company of each other, with menaces did demand from AL an amount of money, namely $10,000, with intent to steal that money from AL, and that Zhi Qiang Han, before the said serious indictable offence was committed, between 28 April 2007 and 3 May 2007 at Sydney in the State of New South Wales, did incite move, procure, aid counsel, hire and command the said Pei Nan Hu and Lifeng Huang to commit the said serious indictable offence in the manner aforesaid. 8 This count was brought pursuant to sections 99(2) and of the Crimes Act. The maximum penalty for the offence is 14 years imprisonment. Count 4 9 Mr Hu – On 3 May 2007, at Carlingford in the State of New South Wales, did deal with the proceeds of crime, namely $100 of Australian currency, knowing that it was the proceeds of crime. 10 This count was brought pursuant to section 193B(2) of the Crimes Act. The maximum penalty for the offence is 15 years imprisonment. Count 5 11 Mr Huang – On 3 May 2007, at Carlingford in the State of New South Wales, did deal with proceeds of crime, namely $30 of Australian currency, knowing that it was the proceeds of crime. 12 This count was brought pursuant to section 193B(2) of the Crimes Act. The maximum penalty for the offence is 15 years imprisonment. Facts 13 The jury's verdict appears to be consistent with the following: 14 In about May-June 2006 the victim, Mr AL, was employed as head chef in Mr Han's restaurant at Campsie. AL was a Cantonese-speaking ex-resident of Hong Kong. He was an Australian citizen. 15 Mr Han had invested about $40,000 in stock for the restaurant. After some months, Han and the manager of his restaurant, Hong Chen, found that the restaurant was not making money. Chen's suspicions were that AL was stealing. The assistant manager, Mr Zhou, said that he had seen AL taking a large Styrofoam box to AL's car. 16 He engaged Mr Zhou and one of the restaurant's waiters, Charlie Wong, to investigate the disappearance of food. Wong then borrowed AL's vehicle. He said that he had seen two boxes of seafood and other raw food in the boot of the car. 17 Chen brought those suspicions to Mr Han's attention with the suggestion that a CCTV/ surveillance camera be installed. Mr Han authorised that. 18 On Sunday 13 August 2006, AL approached Chen for his fortnightly pay. Chen told him to come to an upstairs room above the restaurant where Chen showed AL a video of AL allegedly taking food from the restaurant. AL did not know there was a video/CCTV camera in the restaurant. 19 That video was played in front of the jury. It showed AL taking a box from the rear entrance of the restaurant. It was unclear what was in the box. Whatever was there, it did not seem to constitute a substantial amount or volume of seafood or other food stuff. This becomes relevant when one considers the demand that was made for $17,700. 20 Chen accused AL of stealing. AL denied he had stolen and said that if that was Chen's view, then he, AL, might as well quit. 21 Chen then was joined by Han and the two of them made allegations about the amounts of money outstanding. Han and Chen asked AL how much he was prepared to pay. As I understand the evidence there was no attempt to justify the amount demanded. AL said that amount was never fully explained to him. Mr AL's Fear 22 AL said that he was fearful of both Chen and Han because "I knew about their background – I knew they had some kind of criminal background" so he put forward the sum of $2,000 to settle the matter. He was concerned for his own personal safety. He remembered words having been said like "my hand would be chopped off". 23 AL said that at the time Chen asked about compensation "I was very scared and I replied to him saying 'I don't have that much money to pay'."AL offered to pay $2,000. AL's proposal that he pay a smaller amount of the order of $2,000 was rejected by Chen. Chen got angry and said to him "I won't take one cent of that – don't even think about leaving this restaurant". Han also said that he was well-off and he wouldn't take any part of the $2,000. Other allegations 24 Mr Chen also alleged in the presence of Han and two other Chinese men that he, AL, had collaborated with a vegetable deliveryman to defraud the restaurant of money, in particular, by the provision of goods, which were under par in weight. 25 These threats were made when AL was sitting on a chair, Chen was sitting next to him, and Han was to the right of Chen. Standing up there were two other Chinese men in the room. 26 The figure of $17,700 was originally mentioned. AL was owed wages at that time of $2,700 (AL's net salary for two weeks) and he was told that he still needed to pay $15,000. He said that he didn't have that amount of money to pay. 27 Mr Chen did not give evidence. In the sentencing proceedings, Mr Han said that he could not find Mr Chen. IOU document 28 Chen came back into the room with a piece of paper and some writing on it asking AL to copy what was in the paper in his own handwriting. The document contained an admission by AL that he owed $17,700 with the deduction of his two weeks salary resulting in the debt owed of $15,000. That item was in Chinese Script and was an exhibit in the trial. 29 Chen asked AL to write out and sign the IOU. AL wrote it out but didn't sign it. Ms CL 30 AL had a friend, Ms CL, who also owned a restaurant. CL gave evidence at the trial. AL and CL had been in a relationship on a previous occasion when AL owned a takeaway shop. CL occasionally visited AL at Han's restaurant. 31 Han then said that AL needed a sponsor or guarantor of his, AL's, debt. Chen asked AL to ring his girlfriend and ask her to become a sponsor/guarantor for what was said to be AL's debt. 32 AL said that Han had said "well you can find any other person as long as they are willing to become your sponsor (guarantor)". Chen insisted that CL would be the guarantor. 33 As a result of these comments AL rang CL. When he had difficulties in contacting her, Mr Chen said words to the effect of "if my girlfriend could not arrive before 2am he could not guarantee that anything might happen and that he would also send someone to burn down her restaurant and also my family members will be hurt" (T16L9-13). There is no evidence that Mr Han was present at that time. However, the Crown ran the case as a joint criminal enterprise. Mr Han was clearly on the restaurant premises in the immediate vicinity. On any view, there is an overwhelming inference that Han knew that threats were made and the general nature of them. 34 About a half an hour later CL arrived at the restaurant and was showed up into the upper story of the restaurant. CL asked Mr Chen to show her the videotape and then asked Mr Chen how much he thought that AL had stolen from the restaurant. 35 When CL said that AL was not stealing anything by the boxes and that was confirmed by AL saying that he didn't steal anything, Mr Chen told AL to shut up. Chen said that they needed to teach AL a lesson. CL proposed to pay $5,000 to settle the matter. Chen rejected this proposal saying they must pay at least $15,000. Chen then left AL and CL in the room on their own where they had a discussion about how they could pay an amount to get out of the situation and the premises. 36 When Mr Chen and Mr Han returned, the demand was again made that a $5,000 payment would be unacceptable but what was wanted was the sum of $15,000 by the following Tuesday, in other words, in 48 hours time. CL said that she then asked "what if I can't do it" (in other words pay the $15,000) to which the response was "you know who I am, and you also know that I got a lot of brothers around". 37 CL then signed the IOU document and Mr Chen said they could leave. AL and CL said that they were both very scared that evening as a result of what had happened. Over the next couple of days they tried to make alternative finance arrangements to meet the demand, which had been made including drawing down on a home loan and borrowing from friends. They were unsuccessful. 38 She, CL, was also terrified because of her family members being located in Sydney. She was also told that, if she didn't sign the IOU document as a guarantor, she would not be able to leave the premises. CL also confirmed that she and AL spoke about the matter over the next few days. They came to the conclusion that they were unable to raise the money and that they should then report the matter to the police. 39 I accept CL's evidence – and her fear – as being genuine. Mr AL: visit to police 40 Mr Chen had imposed a deadline of two days. AL and CL then went to the police to report the matter, which they did on 15 August 2006. Events at King Crab restaurant: Carlingford 41 AL was sacked from Han's restaurant at Campsie on the evening/morning of 13/14 August 2006. After some months he obtained another job working at the King Crab Restaurant in Carlingford. He was there on 29 April 2007, a Sunday evening, at about 10pm when his (new) boss told him there were two males waiting for him outside. Those were admitted to be Mr Hu and Mr Huang. AL did not know them and had never seen them before. Hu introduced himself as 'Tom'. There was an issue in the trial as to whether any other terms or words were used including the words 'Fat Tom from Big Circle'. It appears those words were said the following night. 42 Mr Hu said that he, AL, owed his former boss (obviously Han) some money and that he, Hu, was there to collect the debt. Mr Hu also mentioned the IOU which had been written out by AL at the Keung Kee Seafood Restaurant. Mr Hu said that he wanted to collect the debt of $10,000. AL's reaction to Hu and Huang 43 AL said that it had been some months since he had reported the matter to the police and suddenly Mr Hu and Mr Huang had appeared. He said he was very scared so he immediately rang the police again. 44 By arrangement, Hu and Huang came around to AL's place of employment on the following evening, 30 April 2007. Following his discussions with the police, AL had obtained $1,000 first in marked police notes. He said to Hu and Huang that he could pay that amount and sought a docket (receipt) from Hu and Huang. AL was wearing a listening device. 45 Again, by arrangement on 1 May 2007, AL rang Han. He was initially unable to make contact with him. He then rang Mr Hu and told him that he had had a windfall at the Casino and was able to pay off the $9,000 remaining to him. 46 Mr Han subsequently returned AL's call. AL asked whether he, Han, had sent Hu over to see him to collect the debt. He further asked whether Han had received the $1,000 handed over to 'Tom'. 47 Han said he had received the $1,000 and asked AL whether he had reported the matter to police. Han said that AL needed to pay the remaining part of the money and said words to the effect of "if you are looking for trouble, I can surely give you a lot of trouble through my boys". Counsel for Hu submits, correctly, that statement is not admissible against Mr Hu. 48 On 3 May 2007 by arrangement, Hu and Huang came to the back dock area of the restaurant. Again, AL was wearing listening devices. He handed over the money ($9,000) to Hu and wrote out a receipt or docket. Claim of right 49 The offender, Han, based part of his defence on the fact that there was a claim of right, in other words, that he had a genuine belief in the fact that AL owed him money as a result of his stealing or embezzlement of food stuffs and other stock belonging to Han's restaurant. He told Dr Jacmon that he thought the thieving had occurred over some time and represented about six weeks' net income. 50 It was a part of the defence claim that what was involved was a legitimate commercial debt recovery process, that the IOU document evidenced that debt which had been acknowledged by AL; further, that that claim of right extended to the actions taken by Hu and Huang in that inferentially, they were operating according to the legitimate claims made by Mr Han. Moreover, that Mr Han specifically instructed his then barrister and solicitor to go to the police to take action to recover the debt owed by AL. 51 Counsel for Han submits that the IOU document and the itemised list of items allegedly stolen by AL that was handed to police are consistent with lawful debt recovery. 52 The jury were specifically instructed on that claim of right. It must be taken that the jury rejected that claim of right. Further, that the jury must have found that Han had the intention to steal at that time. 53 AL was cross-examined as to whether he had put a box of seafood into his car. He strongly denied the allegation. In relation to the plastic bag of noodles that were taken outside the restaurant by AL, AL said that those noodles were for his personal consumption as part of the normal arrangement that operated in Chinese restaurants entitling staff to free meals. 54 AL also denied the allegation made by the waiter, Charlie Wong, that he, Wong, had seen food items in AL's car. Another staff member said he also saw food items in AL's car. There was no attempt by Han, nor others at his instruction, to justify the amount claimed i.e. $17,700. Additional/alternative matters 55 The Crown submits, and I accept, that the jury's verdict must be interpreted as meaning: · That the jury rejected the claim of right defence; · That the jury accepted that Mr Hu was either a member of the Big Circle gang or at least that he said these or similar words to intimidate the victim; · That either of the phrases "there may be trouble" or "there would be trouble" could have been accepted by the jury as constituting menaces in these particular circumstances. In my view, having heard the evidence, there was no ambiguity in the threatening intention involved. 56 I accept that Han thought he was suffering losses and that he had gone to some trouble to install a CCTV camera. AL was shown on the CCTV camera leaving the restaurant with a box. Mr Han thereafter made a number of arrangements to pursue his own actions and to recover a very substantial amount of money from an employee earning relatively minimal income. Use of words: 'Big Circle Gang' 57 AL said that Hu mentioned the words 'Big Circle', in particular, saying that he was from Big Circle. That was on the second evening when the words "Fat Tom from Big Circle" were used. AL understood that that was a kind of criminal gang whose members engaged in criminal activities. AL said that the impact on him of those words was that he became "very scared because then I knew that he belonged to that kind of people". Background and continuing threats 58 AL also gave evidence that during the course of the conversation when AL was required to watch the video in the room above the restaurant, Chen had said words to the effect of "you have been working for us for three months, you've stolen many things and in the past if these things had happened, my henchmen would've broken your hands already". At that stage AL did not know where Han was, in particular, whether Han was present in the room or not, although he probably had re-entered the room by that time. He was certainly in the vicinity. 59 AL also said that as soon as he heard the word "trouble" from Mr Hu he was afraid "because he mentioned the fact that he was from the Big Circle Gang, that he was a member of a criminal organisation." That reminded him of what Mr Chen had threatened him with eight months previously. Mr Han's case 60 Mr Han's evidence was that he had showed or arranged for Chen to show the video of what was said to be AL stealing items from the restaurant and that he, Han, had said to AL that if the amounts weren't paid, Han would ensure that the video was shown to all future employers. Against that background, counsel for Mr Han submits that the case should be viewed in the context of a dispute between employer/employee. Involvement of Mr Huang 61 At all times Mr Hu was accompanied by Mr Huang. 62 It was clear from the evidence that at no stage did Huang ever say anything during the meetings with AL. He was not introduced to him. He made no threatening actions or comments towards AL in any way. He was simply present at all times when Mr Hu made the comments he did. 63 Moreover, it was also clear that Mr Huang as a matter of strongest inference was a Mandarin speaker whereas many of the conversations took place in Cantonese. Jury's verdict 64 The jury clearly rejected the suggestion that the negotiations over the IOU and the amount contained in it was part of a process of attempting to settle a debt. AL had said that he thought that he was obliged to write out the IOU document before he was allowed to leave. 65 The jury also clearly rejected the suggestion that AL only made a complaint to the police on or after 15 August 2006 as a method of "getting in first" to dispute that he owed the money to Han. Connection – Mr Han, Mr Hu, and Mr Huang 66 Mr Han gave evidence that he had known Hu for over 20 years from their days together in China, that he became aware that Mr Hu had no job and was in financial difficulties. Han said to Hu "if you go to collect a debt for me I can pay you some money". The language of the telephone intercepts between Han and Hu does suggest a more serious operation involving, at the very least, pressure. 67 Mr Han had never known, or met, Mr Huang other than two or three times. Evidence: Detective Inspector Cook 68 Detective Inspector Cook gave evidence that he had been the Officer in Charge of the investigation at Strike Force Willowvale set up to investigate the activities of the Big Circle Gang. In that capacity he was responsible for reviewing all the intelligence taken during the course of the investigation as well as the overview of statements taken and the direction of the investigation. He had also been in charge of an investigation and had Strike Force Brome established to investigate the upper members of the Big Circle Gang. 69 As a result of his training, studying and experience, he gave evidence that the Big Circle Gang was a criminal organisation, the members of which engaged in criminal activities. Evidence on sentencing proceedings 70 Han gave evidence on the sentencing proceedings but Hu and Huang did not. Pre-sentence reports 71 Pre-sentence reports were ordered. The Probation and Parole Service sent letters to each offender at the address provided but for a variety of reasons none of the offenders initially responded. 72 Mr Han through his legal representatives followed the matter up and a report dated 12 February 2009 was tendered. That report notes that Mr Han claimed that he spoke about his complaint to the police who told him '…the complaint was trivial and to talk with the former chef himself'. He also did not accept his guilt for the offence. He was assessed as being suitable for a Community Service Order but ineligible for a periodic detention order. In his oral evidence in the course of sentencing proceedings he said he now understood that he could not take the law into his own hands. 73 The following personal details were provided in relation to each offender: Han 74 Mr Han is 47 years old. He resides with his 15-year-old son and 21-year-old daughter, both of whom he provides with financial assistance. The son and daughter have a good relationship. His 21-year-old daughter, who lives at home, does not work. His son is in Year 10 in high school. They attended court during these sentencing proceedings. His former wife normally lives in the same premises although currently she is in hospital in Shanghai recovering from a broken leg received in an accident. She will return to Australia in around six months time. 75 Han is the owner and manager of the Keung Kee Seafood Restaurant in Campsie, which is his sole source of income. He currently works seven days per week between 5pm and 3am, and employs 12 staff at any given time. His evidence was that managing the restaurant has been a successful business for him. 76 His absence from the restaurant will cause a drop-off in the business possibly to the point of closure in six months time. When Mr Han was in goal in 2002, his son was looked after by his sister with whom he had, and has, a close relationship. Huang 77 Mr Huang is aged 19. Huang contacted the Probation and Parole Service on 3 November 2008 at which time he updated his address. A letter was sent to this address on 22 January 2009, which garnered no response from the offender. A home visit was conducted on 4 February 2009 and it was found the address did not exist. A pre-sentence report was not prepared. 78 In the light of the foreshadowed penalty of a suspended sentence for Huang, no pre-sentence was requested. Psychological report: Hu 79 Mr Hu is aged 40. Despite being directed to attend the Probation and Parole Service by this court, two letters on 14 January and 22 January 2009, and a home visit on 5 February 2009, Mr Hu had no contact with the service as a result of a problem with the Legal Aid Commission regarding the notification of his address and therefore a pre-sentence report could not be prepared. 80 However in relation to Mr Hu, a report by psychologist Michelle Player dated 5 December 2008 was tendered, which it was agreed covered relevant matters to a pre-sentence report. It provides that Mr Hu was raised in Shanghai, China, and enjoyed a close relationship with his mother, but his father, who held very high expectations of him, was physically abusive towards him leading to a situation where Mr Hu left home at 17 to attend university. He emigrated to Australia in 1990. He has not returned to China since arriving in Australia 18 years ago. 81 Mr Hu graduated from university in China after studying drama but since arriving in Australia he has worked primarily in restaurants as well as having various jobs such as a cleaner, store hand, and packer. He has often been unemployed. He is assessed as having above average intelligence. 82 Mr Hu has lives with his partner of three years. He has no children. He has no substance or alcohol abuse issues, but had problematic gambling behaviour between 1997 and 2003 during which time he lost most of his savings. 83 Mr Hu has diabetes for which he is prescribed medication. He was in a coma in December 2008. He is otherwise in reasonable health. That seems to be in conflict with the medical reports tendered referring to his diabetic coma last year. The report notes that 'Mr Hu did not endorse anti-social attitudes despite his prior offence or an entrenched pattern of criminal offending'. It is difficult to reconcile that with his prior offence and the relative recency of that offence and sentence prior to these matters. 84 Ms Player's report is particularly relevant as to the sentencing options that should be considered and the impact on Hu of any incarceration. References 85 A number of references were tendered on behalf of each offender. 86 Mr Hu's fiancée provided a reference contradicting the evidence as to Mr Hu's good health and stating that they intend to marry in the near future. His former employer stated that Mr Hu had been employed as a chef. 87 Mr Huang's family and friends indicated that there was little acceptance of Mr Huang's guilt or his association with Mr Hu. Further, that he comes from a secure, respectable family background and that Mr Huang as a son and brother, is 'a good kind boy' who is 'disciplined and '… very good and kind and one who does favours to others'. Precisely where the offender's ongoing employment as a security guard/receptionist in the Fallen Angels brothel fits into this picture is unclear. During the trial he attended court wearing a large head bandage said to have resulted from an altercation at the brothel to which police were called. That necessitated an adjournment during the trial. 88 I have some reservations about his prospects of rehabilitation if he remains in that field of employment. He intends to move back to study, hopefully, in more traditional academic pursuits. Section 21A Crimes (Sentencing Procedure) Act factors Aggravating factors 89 The fact that liability arises from a joint criminal enterprise does not mean that the court cannot take into account the commission of the offence in company or a degree of planning as aggravating factors: Imnetu v R [2006] NSWCCA 203 at [55]. Planning/ premeditation 90 The actions of Han were part of a planned or organised criminal activity – for example, the preparation of videotape and the playing of it to show the victim and the involvement of other staff. The demand was made with four other men in the room. Han was involved in recruiting at least Hu (and with knowledge of Huang) in order to continue making the demand. 91 The period of time involved was over two separate periods of August 2006 and April/May 2007. Therefore there was effectively ongoing criminal activity over a period of eight months. Threats of violence 92 These threats are an essential part of the menace and therefore should not be taken into account as an aggravating factor – The Queen v De Simoni (1981) 147 CLR 383 93 Counsel for Han submits that it was open to the jury to find that the offender did threaten the accused but that the threat was not a threat of violence. I find that the language of Han, and in his presence, Chen, included inherent threats that raised fear that was entirely reasonable and foreseeable. Prior convictions 94 Han has convictions for obtaining money by deception, a number of offences for supplying a prohibited drug and possessing a prohibited drug. For the offence of supplying prohibited drugs in 2000, he received a term of imprisonment of 4 years with a non-parole period of 2 years and 6 months. That includes a sentence for obtain money by deception. 95 Counsel for Han submits that the most serious offence was committed eight years previously, he has already been punished by serving 2 ½ years in prison, and the present conviction bears no reference to drug-related activity. 96 Hu has convictions for using false instrument and goods in custody as well as for malicious injury (section 35 of Crimes Act). 97 Huang has no prior convictions. 98 Counsel for Han also submits that the present offences are not reflective of a continuing attitude of disobedience to the law, and that the offender has done well since his period of imprisonment, establishing a restaurant and caring for two children, therefore, the eight year period between major offences is punctuated only by a single conviction for possessing a prohibited drug and that this is not reflective of a continuing attitude of disobedience to the law. I do not accept this. 99 The Crown Prosecutor submits that Han and Hu have criminal histories that show a clear "attitude of disobedience to the law" (Veen v R (No. 2) (1998) 164 CLR 465. 100 Counsel for Han further submits that taking into account in sentencing for an offence all aspects, both positive and negative, of an offender's known character and antecedents is not to punish the offender again for those earlier matters; it is to take proper account of matters which are relevant to fixing the sentence under consideration (Weininger v The Queen (2003) 212 CLR 629). 101 Furthermore, counsel for Han also submits that although the offender received a period in fulltime custody of 2 years and 6 months (NPP) in 2000 for drug offences, there is no suggestion of drugs being associated with the present offences. He has already been "seriously" punished. 102 In my view, both Han and Hu have prior convictions in the relatively recent past, which in both cases resulted in sentences of imprisonment. Those indicate an ongoing contempt for the law, disentitling both of them from any leniency. That is particularly the case for Mr Hu when he was given a sentence for a similar offence. Mitigating factors 103 Counsel for Han submits that the victim provoked the offender because the victim was detected stealing from him, and that the offences are at the lower end of the scale because the facts are punctuated with acts consistent with lawful debt collection. The offender gave evidence that stealing by an employee, in his view, warranted full investigation. Remorse 104 Mr Han expresses remorse through his counsel and in his evidence. That is at odds with the contents of the pre-sentence report dated 12 February 2009 and his evidence in the face of the sentencing proceedings that Mr Han 'cannot understand how he was found guilty of the offence, portraying himself as the victim'. 105 Further, the report states that he understands that it was wrong to commence debt collection processes in this manner and that he should have reported the theft to police. He also expresses remorse for CL having to attend the restaurant in the early hours of the morning and concedes that she would have been scared. 106 In my view what remorse has been expressed has been in the course of the sentencing proceedings. Neither Mr Hu nor Mr Huang gave evidence. Sentencing options 107 The pre-sentence and psychologist's reports indicate that the following sentencing options are available: Han 108 Han has been deemed suitable for a Community Service Order but ineligible for a Periodic Detention Order. Hu 109 Hu has no contact with the Probation and Parole Service and was therefore not assessed for sentencing options. Huang 110 I indicated my preliminary view to counsel that a suspended sentence might be an appropriate sentence for Mr Huang. After being pressed to take instructions on this point, the Crown concedes that, provided an appropriate primary or head sentence is established, a suspended sentence would not be outside the appellable range of discretion. Suspended sentence 111 In relation to the offender, Huang, I have had regards to the principles enunciated by the High Court in the decision of Dinsdale v R (2000) 202 CLR 321 as well as the decision of the Court of Criminal Appeal in this State in R v Zamagias [2002] NSWCCA 17. 112 In Zamagias [2002] NSWCCA 17 at [23], Howie J set out the approach to be taken in considering this issue: "It is clear when sentencing an offender to a term of imprisonment a court is required to undertake a number of steps before finally determining the appropriate sentence. Each step requires the court to consider the objective gravity of the offence balanced against the subjective circumstances of the offender but it is the first of those considerations that will principally determine which of the available sentencing alternatives the court should adopt. This is because at the end of the day the sentence must be commensurate with the seriousness of the crime" 113 and at [32]: "a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be a sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognized that the face that the execution of the sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment. It is perhaps trite to observe that although the purpose of punishment is the protection of the community that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate." 114 Here it does seem to me that the sentence for this offence normally should be one of full time custodial imprisonment to mark the seriousness and type of the offence, the maximum penalty involved and the circumstances involved on a broader level and the joint criminal enterprise in which he was involved. Those matters are more fully set out below and include the nature of the closed community involved, the position of AL as a relatively isolated and vulnerable person within that community. The nature of the threats made and the fact that the offenders went back repeatedly at AL's new work place. In my view the sentence which would normally be imposed would be one of 18 months imprisonment. 115 However, the particular circumstances as they involved Mr Huang make it in my view, appropriate that the sentence of imprisonment imposed should be suspended. That is essentially that the role that Huang played was that of a 'foot-soldier' accompanying Hu and not actually participating in any criminal or menacing activities other than by his presence. His relatively minor involvement in what actually occurred, indeed, the evidence is he did not say anything to AL at any time. The fact that he was not a party to any threats or presentation of violence (other than by his presence) as well as his subjective factors such as his age, the absence of any prior convictions and the strong prospects for rehabilitation, given his relationship and employment, also warrant the sentence being suspended. Authorities Principles of sentencing arising on related matters: matters to be taken into account 116 I have considered the following authorities in the context of these matters: 117 R v Antoun; R v Antoun [2004] NSWCCA 268 involved two males threatening a nightclub owner for protection money over several months. They argued a claim of right. Several men thrashed the complainant's nightclub as a threat and $8,000 was extorted. Joseph Antoun was sentenced to 6 years imprisonment with a non-parole period of 4 years and 6 months. Antoine Antoun, whose role primarily as a message deliverer, was sentenced to 3 years and 6 months with a non-parole period of 2 years and 6 months. The Court of Criminal Appeal confirmed the sentence although ultimately the High Court quashed the conviction and ordered a retrial. 118 R v Truong [1999] NSWCCA 272 involved six males demanding protection money from a brothel. The offender who made the demand was sentenced to 4 years and 8 months imprisonment with a non-parole period of 3 years and 6 months after a plea of guilty. The Court considered at [33] that this was a "particularly serious offence … where a strong deterrent element was necessary." 119 Further in Truong [1999] NSWCCA 272 at 15, Carruthers AJ stated that: "It is significant that the Chief Judge [in the District Court, who referred to standover tactics in the Asian community] found it necessary to refer to the prevalence with which matters similar to the present matter come before the courts. It is, of course, a matter of grave public concern that standover tactics with threats of violence be used in order to seek to obtain protection money from institutions and, accordingly, such offences should be the subject of deterrent sentences." 120 Both Antoun and Truong related to extortion rackets with stand-over tactics in the context of organised gangs. This is not such a case although the use of the words 'Big Circle' was part of the menace. There is no evidence that any one here was part of Big Circle or, for that matter, any triad or illegal group. 121 In regards to parity between co-offenders, Carruthers AJ stated in Truong at [27-30] that: "By way of general comment, may I say that Lowe's case (1984) 154 CLR 606 contemplates that a prisoner, when sentenced in relation to a joint criminal enterprise with one or more co-offenders, may have a sense of grievance if the sentences which are imposed on a co-offender or co-offenders are relatively less severe than that imposed upon him or her if the circumstances (both subjective and objective) are such that it is possible for the relevant court to determine that there was a lack of parity between the sentences. It is not generally possible to reach such a conclusion if there are distinct differences between both the objective and the subjective features associated with each offender." 122 The following matters also seem to be relevant in the context of robbery offences. 123 Wright v R [2006] NSWCCA 122 involved the victim and offender working together. The victim saw the offender stealing and reported it, resulting in the offender losing his job. The offender used threats of retribution, violence, and death to make the victim withdraw monies from an ATM. The total extortion amounted to $8,995. The offender was sentenced to 4 years imprisonment with a non-parole period of 3 years after a plea of guilty. 124 R v Nguyen [2000] NSWCCA 44 involved the co-accused of Truong. Two men entered a brothel with concealed pistols. The offender and Truong entered and Truong spoke to the undercover police officer however it was Truong who made the demand. The offender was sentenced after a trial to imprisonment for 4 years and 8 months with a non-parole period of 3 years and 6 months. 125 Marcus v R [2007] NSWCCA 229 involved the offender making threats towards the victim on the pretence that the victim owed him $40,000 and unless the victim helped him procure a $30,000 vehicle then "something bad [was] going to happen [to] his house." The vehicle belonged to the offender's friend. The offender was known to the victim as a member of a local group involved in extortion. The demand was made and the vehicle's registration was signed over to the offender. The trial Judge described the offence at [15] as "objectively very serious, notwithstanding that it did not involve violence against the victims." He was sentenced to imprisonment for 3 years and 6 months with a non-parole period of 2 years. 126 The authorities indicate that the matters that need to be considered in sentencing for these offences include: · The difficulties in detection and encouraging victims of such crimes to come forward. Here the offences took place within a relatively isolated and close-knit community, specifically that of the employee group with the Asian community. · The amount involved · The time period over which the offences were committed General deterrence 127 For Han it was submitted that the appropriate sentences would be a community service order of 500 hours for Mr Han and a suspended sentence for Mr Hu. In my view, neither sentence would meet the requirements of general and specific deterrence. JIRS statistics 128 The JIRS statistics for these offences indicate for these offences that : Section 99(2) – demand property with intent to steal in company: 32 total cases, 59% prison. Term of sentence: 12 months (5%); 18 months (16%); 24 months (26%); 30 months (21%); 36 months (26%); 42 months (5%). Non-parole period: 6 months (7%); 12months (53%); 18 months (33%); 24 months (7%). 129 Section 193B(2) – knowingly deal with proceeds of crime 3 total cases, 100% prison Term of sentence: 12 months, 48 months, 6 years. Non-parole period: 12 months, 18 months, 42 months. Finding as to criminality involved 130 Counsel for Hu submits that Hu's intended use of these words as a menace, there is simply no evidence that Mr Hu knew anything as to what had happened in August, 2006, at the Spice Girls restaurant, particularly in relation to any threats by the manager, Chen, or the actions of Han. While he may not have known exactly what happened, Han did have, at that time, an intent to steal. Hu was a good and long term friend of Han's, and, given the jury's verdict, he, Hu, must have known he was participating in the making of an illegal demand. Parity 131 Han and Hu were involved in different and separate acts of criminality. 132 Counsel for Hu submits that if Mr Huang is likely to receive a suspended sentence, that principles of parity would warrant the same approach to Mr Hu. I disagree. There is a considerable age difference, difference in prior convictions, and their different roles. I find that Mr Hu was the principal in the matter of the two offenders given his actions and conversations. Local Court 133 Counsel for Hu also submits that this matter could have been dealt with in the Local Court as far as Mr Hu was concerned. Further that the Local Court penalties and sentencing opinions should be considered. Consideration 134 Against the background of the matters set out above, in my view, the facts of the offence and the circumstances of the offenders make the following matters relevant on sentence: 135 In terms of general principles, crimes of extortion and demand with menaces, particularly where they occur in isolated and relatively closed migrant communities, involve vulnerable people. Moreover, difficulties in detection let alone getting those affected to give evidence cause substantial difficulties to law enforcement officers. Depending on the amounts and criminality involved, such matters generally warrant custodial penalties from the point of view of general deterrence. This is particularly the case where, as here, the offences as far as Mr Han's involvement was concerned, continued over a period of time and involved ongoing contact with and pursuit of AL at his new place of employment. 136 Count 1 involved a demand for $17,700 when the amount demanded bore no relationship for the purported justification of goods said to have been stolen by AL in the course of his employment. Even if the offender Han considered that food had been stolen from him by AL as a cook, there was no correlation on the evidence between what was taken in the styrofoam box shown in the video and $17,700. Even at current prices, there would have to be a lot of seafood taken to justify a demand for $17,700. 137 What occurred thereafter was an ongoing demand for an amount which AL as a cook could not afford, requiring him to involve his partner/girlfriend CL. She was effectively forced to become 'a guarantor' of what was said to be the debt. The threats grew proportionately larger. Having observed her giving evidence, there was no doubt in my mind of her fear. 138 It is unclear precisely who used the words which had that impact on AL, either Han or Chen. However, even if the words were used by Chen, those were uttered in the presence of, or in the immediate vicinity of, Mr Han and for his clear purposes. The Crown case was that as a joint criminal enterprise, Mr Han was either in the room or in the immediate vicinity. The arrangements made to confront AL were made with Han's knowledge and at his direction. 139 The words used must be viewed in the context of having been made in the restaurant area to which the victim, AL, had been taken and where he was, in the company of others when CL was asked to arrive. The background of the other language used to AL about the offender's other activities must also be taken into account as a clear, if implied, threat of violence. Any ordinary person of normal stability and courage – let alone a person such as AL in his circumstances, relatively isolated in a foreign country – would be, and be known to be, fearful in such a situation. 140 I find that Han, who instigated and planned the demand money with menaces by Mr Hu and Mr Huang, is therefore more morally culpable than his co-offenders. Moreover, the attempt to recover the amount was extended through from August 2006 to April/May 2007 when AL was discovered working in a different restaurant some distance away. It was submitted that the evidence establishes AL's new work address was obtained by one of Mr Han's employees. Mr Han made the arrangements after that with Mr Hu. To continue a demand in those circumstances bespeaks a determination and persistence that is a continuation of the planning and premeditation that took place in the original offence. 141 The impact on AL to know at this later date that he was under this continuing surveillance and that he would be subject to continuing demands must have been considerable. He was a person who, by virtue of his language limitations and employment experience, was likely to be confined to working within the world of Chinese restaurants. AL is likely to have felt that he had no opportunity to escape the pressure that was being placed on him as soon as his re-location to obtain alternative employment was discovered. Hu and Huang visited him, then re-visited him, at those premises. The telephone intercepts make it clear that was done at Mr Han's urging and with his full knowledge. 142 I do not accept that there can be any cultural misunderstanding of the nature of commercial debt recovery as seems to have been implied, or a sense of misplaced entitlement arising out of an employment relationship. Han did contact the police but only after AL had contacted the police. 143 The message must be sent through this sentence that such attempts at debt recovery are not justified nor to be tolerated in Australia. 144 I do not find that Mr Han was a member of any criminal organisation. Nor do I accept that there was any provocation of Mr Han by AL in any legal sense. However I find that Mr Hu and Mr Chen made references to Big Circle, which was an inference from Mr Hu saying he was 'from' Big Circle, which would be calculated to induce fear into AL. There was a clear inference as to what that meant. AL said several times that he was scared, in my view, on the evidence, with good reason. Role 145 The evidence establishes that Mr Han was the instigator and principal player in establishing the circumstances in which the initial demand was made. He persisted with that activity and, having discovered AL's new place of employment, then turned to Mr Hu who in turn recruited Mr Huang to recover the amount demanded. The period of time over which the offences occurred requires a separate sentence. 146 The telephone conversations referred to above between AL and Han make Mr Han's continuing involvement clear as well as his clear commercial motivation and awareness of the illegality of the matter by his queries as to whether AL had contacted the police. 147 In relation to the second series of offences, the jury's verdict means that the jury accepted that Hu and Huang intended to demand the money with menaces. Hu's role was to "do the talking" and Huang's role, which he must have accepted with knowledge of what Hu was to do, was to accompany Hu. To return, as both did, to the restaurant to confront AL demonstrated that both were intending to pursue the matter to its conclusion. Han 148 Mr Han accepts that he was certainly the instigator of having AL brought to the room, shown the tape, and being presented with an IOU. He accepts that he threatened the offender but only with disclosing the theft to others if the debt was not paid. Consistently with the jury's verdict, I do not accept that. I find that Mr Han did have intent to steal both at the times of both counts 1 and 3. The difference amounts referred to, and the language used, as well as the totality of the circumstances do not indicate that it was a legitimate debt recovery exercise. 149 Mr Han also accepts that he was the instigator in instructing Mr Hu to recover money from AL at Carlingford but does not accept that he ever instructed Mr Hu to use the term "Big Circle." While that may be the case, he involved Mr Hu in his actions to recover or obtain money from AL having had many years association with Mr Hu. It is a matter of overwhelming inference from the evidence generally and the telephone intercepts that Han knew of Mr Hu's prior activities and likely method of operation. He was not shown any weapons nor was there any evidence that weapons were present. 150 The criminality involved however, did not involve actual violence. There was some apparent justification for the view on Mr Han's part that he had been the subject of ongoing stealing by a staff member although not AL. 151 For these reasons, I regard the criminality involved as far as Han was concerned as being of low to mid-range. It was not a situation where Han had simply decided on an unconnected individual – for example, as part of a wider protection/extortion racket – which in my view would warrant a different finding as to criminality and an increased penalty. 152 Similarly with Hu, I regard the criminality involved as being low to mid range. Again I would have had a different view had there been actual violence or weapons involved or if there had been evidence of some wider protection/extortion racket involved. 153 What made the criminality above low range was the time period and planning and premeditation involved. 154 In terms of subjective factors, I regard Han's prior convictions as being not directly on all fours with the criminality involved in this case – although given the relative recency of that offence and sentence, it does not entitle him to any leniency. He is supporting his children and particularly his 15-year-old son for whom he is effectively solely responsible. However given his other family and considerations, I do not regard those factors as establishing the exceptional circumstances which require, or entitle, a reduction in the sentence for those reasons alone in accordance with the decision in R v Edwards (1996) 90 A Crim R 510; T v R (1990) 47 A Crim R 29; and R v X [2004] NSWCCA 93 at [24], nor the impact on his business. 155 Hu's prior convictions and sentence were, however, for the same kind of offence. 156 Counts 4 and 5 involved minor amounts essentially brought to establish the evidentiary connection between the offenders and the amounts received by them. The real criminality in relation to both those matters is really reflected in the main counts and are appropriately recognised by recording a conviction in relation to each offender. Concurrence/totality 157 The offences involved the one victim and the one continuing course of conduct as far as Mr Han was concerned. However, his actions extended over a period of some eight months and involved the repetition of his overall demands of AL, on the second occasion with different individuals, namely, Hu and Huang. 158 In my view, there needs to be a separate sentence to mark the criminality of that offence but it can be served concurrently. There is some leniency to Mr Han in this approach but in my view that is appropriate. Special circumstances 159 Put on behalf of each of the offenders were the following factors which would warrant a finding of special circumstances such as to reduce the ratio to which the non-parole period bears to the head sentence: Han 160 His age and family background as well as the likelihood that he will be able to obtain or generate employment on his release together with the language difficulties and consequential difficulties he is likely to experience while he is in gaol 161 Taking all those matters into account in my view there should be a finding of special circumstances such that the statutory ratio the non-parole period bears to the total sentence be reduced to 2/3. Hu 162 His age and family background together with the language difficulties and consequential difficulties too he is likely to experience while he is in gaol. 163 Taking those matters into account in my view there should be a finding of special circumstances such that the statutory ratio the non-parole period bears to the total sentence be reduced to 2/3. Huang 164 His age and family background together with the language difficulties and consequential difficulties too he is likely to experience while he is in gaol, as well as the absence of any prior convictions. 165 Should the matter become relevant in the future in relation to Mr Huang, in my view, taking all those matters into account in my view there should be a finding of special circumstances such that the statutory ratio the non-parole period bears to the total sentence be reduced to 50%. Sentence 166 The offenders were convicted of each of the offences following the jury's verdict. Count 1 – Han 167 The offender Han is sentenced to a term of imprisonment of 3 years imprisonment commencing on 1 February 2009 and expiring on 31 January 2012, with a non-parole period of 2 years commencing on 1 February 2009 and expiring on 31 January 2011. Count 2 Hu 168 The offender Hu is sentenced to a term of imprisonment of 18 months imprisonment commencing 24 January 2009 and expiring on 23 July 2010, with a non-parole period of 12 months commencing on 24 January 2009 and expiring on 23 January 2010. Huang 169 The offender Huang is sentenced to a term of imprisonment of 18 months commencing on 23 March 2009 and expiring on 22 September 2010 such imprisonment to be suspended pursuant to section 12 of the Crimes (Sentencing Procedure) Act on condition that he is of good behaviour throughout that period and complies with the terms of his bond in particular in notifying the Probation and Parole Service of his residential address and employment details. Count 3 – Han 170 The offender is sentenced to a fixed term of 12 months imprisonment commencing on 1 February 2009 and expiring 31 January 2010 to be served concurrently with the sentence on count 1. Count 4 – Hu 171 Conviction recorded. Count 5 – Huang 172 Conviction recorded. Parole 173 The conditions of parole for each offender are the same namely that: · That he be of good behaviour; and · That he notify Probation and Parole of his address (both residential and employment), his associates and any travel arrangements. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.