Regina v Angeles [2001] NSWCCA 515

New South Wales Court of Criminal Appeal

CITATION : Regina v Angeles [2001] NSWCCA 515 FILE NUMBER(S) : CCA 60715/01 HEARING DATE(S) : 7 December 2001 JUDGMENT DATE : 13 December 2001

PARTIES : The Crown Jose Angeles (Appl) JUDGMENT OF : Mason P at 1; Sully J at 2; McClellan J at 3

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/11/0522 LOWER COURT JUDICIAL Herron DCJ OFFICER :

COUNSEL : R D Ellis (Crown) I H McClintock (Appl) SOLICITORS : Director of Public Prosecutions Belen Oag (Appl) CATCHWORDS : SENTENCING - appeal against sentence - whether lack of parity in sentence creating a "justifiable sense of grievance" LEGISLATION CITED : Crimes Act 1900, s 90A Lowe v The Queen (1984) 154 CLR 606 CASES CITED: R v Pritchard & McDonald (unreported, NSWCCA, 22 April 1993) R v Stack (unreported, NSWCCA, 17 April 1997) R v Diamond (unreported, 18 February 1993) DECISION : See para 44

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

60715/01 MASON P SULLY J McCLELLAN J

THURSDAY, 13 DECEMBER 2001 REGINA v Jose ANGELES

Judgment 1 MASON P: I agree with McClellan J. 2 SULLY J: I agree with McClellan J. 3 McCLELLAN J: The applicant, Jose Angeles, pleaded guilty before his Honour Judge Herron to a charge of detaining a person for advantage, contrary to s 90A of the Crimes Act 1900. As the victim was not injured, the maximum penalty was fourteen years full time imprisonment. His Honour imposed a term of imprisonment of three years full time custody and provided a non parole period of fifteen months. 4 The offence was committed when a plan was conceived by Zhihang Li, Ping Fai Chin and Remi Chui to kidnap and ransom a wealthy Chinese student, Victor Liu. 5 The victim was abducted on 20 May 2000 from his home at Lurline Bay and held for ransom. He was rescued by police on 26 May 2000. 6 The facts before the sentencing judge were that Zhihang Li had worked as a cleaner at the home of the victim, Victor Liu. He told Chui and Chin, of the victim's wealth and situation. An agreement was made between those three to kidnap the victim for the purpose of obtaining a ransom of AUS$8 million. 7 Chui's part of the arrangement was to recruit the "staff" necessary to carry out the abduction. Chui contacted Jose Tomas and then Chui and Tomas contacted the applicant and asked him to "drive Chin and Li to do some daily routines". He was to be rewarded but an exact figure was not settled. He was also to be paid his travel expenses, such as petrol. The applicant initially declined the offer but later agreed to be involved. 8 Some weeks before the kidnapping, the applicant met up with Jeff Mendoza, Patrick Elhalabi, Chin, Li and Chui at Thommo's Bar at Hurstville. The applicant was aware that the kidnapping was being discussed between Chin, Li and Chui but could not hear the details of what was being discussed as they spoke in a foreign language. 9 There were at least two occasions when the applicant was involved in looking for the victim to abduct him prior to 20 May 2000. On one occasion Chui contacted the applicant and asked him to go to the University of NSW to conduct surveillance of the victim's car. He picked up Mendoza, Elhalabi and August and drove them to the University of NSW. The offenders were to contact Chui when they found the victim's car. They drove around the University looking in the car parks for the car but were unable to locate it. 10 On the day of the kidnapping, the applicant picked up Mendoza, August and Steve Vivero. The applicant drove to Chin's home where the tools necessary for the kidnapping were stored – tape, rope, a pistol, handcuffs. It is not alleged that the applicant was aware that the tools were stored there. The number plates on Elhalabi's car were taken off and replaced. The offenders then drove to Maroubra Beach car park. The applicant drove his car containing Chin, Li and himself. Elhalabi drove his mother's car containing Vivero, August and Mendoza. 11 There was then a meeting between the participants of the abduction – Vivero, Elhalabi, Mendoza and August. Each participant's duties were settled – August would tape the victim, Vivero would threaten the victim with a gun which was unloaded and Mendoza would act as lookout and be in contact with Elhalabi, who would drive the car which would carry the victim. 12 Elhalabi dropped Mendoza, August and Vivero twenty metres away from the victim's house and Mendoza established contact with Elhalabi on their mobile phones. 13 Shortly after 3 pm on 20 May 2000, Vivero knocked on the victim's door. The victim opened the door and was confronted by the offenders, Vivero and August. The applicant was in his car nearby with Li, Chin and Chui. It is not alleged that he took an active part in the actual abduction. 14 Vivero placed the gun against the victim's temple, to force him onto the floor. August then tied the victim up with tape around his arms and over his eyes so that he could not see. Mendoza was present when the victim opened the door and was present after he was taped up. August and Vivero picked up the victim and carried him into the garage. Mendoza joined them in the garage and pushed the button to open the automatic garage door. Whilst they waited for the door to open, Mendoza and the other participants stood behind the cars in the garage. As soon as the door was open, Elhalabi was there to meet them. He reversed the car into the garage and the victim was bundled into the boot of Elhalabi's car. At that point, one of the offender's told the victim: "If you shout, I'll kill ya". As they drove along, one of the persons in the car communicated by mobile phone with the offenders in the other car. 15 Mendoza, August and Vivero all travelled with Elhalabi in his car back to a house in Penshurst where Chin was residing with his girlfriend. Mendoza and the other passengers in Elhalabi's car waited at that address for about five to ten minutes until Li, Chin and Chui arrived with the applicant. When they arrived, the victim was taken out of the boot of Elhalabi's car and taken inside the house. The number plates on Elhalabi's car were swapped over. 16 Mendoza left the scene with the applicant and August. On the way home, not much was said, but August said that he regretted what he had done. The applicant and Mendoza agreed. 17 Before the ransom demands commenced, the victim's mother had contacted police. Police did a canvass of the area and discovered that, whilst the accomplices had the victim under surveillance prior to the abduction, they had come under the notice of some of the victim's neighbours who took down the relevant motor vehicle registration numbers. The victim's neighbour had noted the applicant's car registration number many weeks before the day of the abduction. The neighbour kept a note of the registration and gave it to the police. 18 Using this information, police were able to conduct surveillance on the offenders, including the applicant. This finally led the police to the house where the victim was being held captive. During surveillance, the applicant was seen going to and from the house at Penshurst where the victim was being held captive. 19 A week after the kidnapping, the applicant met up with Thomas, Mendoza, Elhalabi and Chui at the Parramatta River. They discussed the fact that it was necessary to move the victim because they believed that the police may know of their whereabouts. 20 Between 20 and 26 May 2000, Chin, in concert with Li and Chui, made seven telephone calls to the victim's mother and one of his relatives, making demands for the ransom for the return of her son. In the first call on 21 May 2000, Chin told the relative: "Tell his mother I want to see AUS$8 million within three days. Then she can see her son." 21 On 24 May 2000, the victim called his mother, and at the request of the accomplices (not including the applicant), encouraged his mother not to contact the police and to arrange the ransom, telling his mother "I want go home very much. Have you arranged enough money? … You don't report it to police. All you have to do is give them the money." The accomplices confirmed this telling his mother: "If you report to the police, you doom yourself … if you report to the police you will never see your son again." In subsequent telephone conversations, Chin, Li and Chui reduced the ransom demand to AUS$3 million and then to AUS$1.5 million. 22 At the same time, police were continuing surveillance and secretly taping the ransom demands by lawful telephone warrant. 23 On the afternoon of 26 May 2000, the house at Penshurst was surrounded by police. At that time only Li and Chin were in the house with the victim. 24 When the police announced their presence, Chin pressed a gun against the victim's neck and asked if his mother had called the police. He later moved the victim and pressed a gun all over his body and told the police "I want to live here, I don't want to go to gaol." 25 At one point after the arrival of the police, Li said "Kill him" and Chin intervened with: "Not OK now." 26 The police finally negotiated the release of the victim at approximately 6.15 pm on 26 May 2000. During the period of captivity, the victim was provided with food, water, clothing and blankets. Apart from bruising to his groin and being very stressed by the incident, the victim was not harmed physically. 27 It is not alleged that the applicant knew of the amount of money being demanded for the return of the victim. Chin, Li and Chui kept the fact of the ransom demand of millions of dollars a secret from the applicant and his peers. 28 When arrested the applicant denied that he was involved in the criminal enterprise and endeavoured to set up an alibi. However, he pleaded guilty after his legal representatives had been provided with statements by Vivero and Mendoza which implicated him in the offence. 29 By the time the applicant had been sentenced, Chin, Vivero, Aguust, Elhalabi and Mendoza had already been sentenced. At an early time August had admitted his involvement in the kidnapping and initially pleaded guilty. However, he later changed his plea and defended the matter alleging that he had acted under duress. 30 When sentencing August, Kinchington DCJ was influenced by the fact that he had already spent nine months in custody when remanded awaiting his trial. He said: I now turn to a consideration of the sentence that I must subject you to. I think that I can distinguish your case from Chin's case. As I said earlier he was one of the principals involved in this criminal enterprise. You on the other hand I would describe as a foot soldier. While the part that you played in that criminal enterprise was important to its success, it was dictated to by others. In other words you followed the leader. It is clear from the material that has been placed before me being that you declined to have anything to do with the pistol but you volunteered to be the person who would secure Victor Liu before he was taken and placed in the boot of the car and ultimately taken to the Penshurst premises. Without your help and cooperation and the help and cooperation of the others involved in that home invasion (because that is what it was) this criminal enterprise could not have been successfully completed. The fact that it did not result in any harm being done to your victim, the fact that it did not result in any money being obtained from your victim's family is to the credit of the police involved in the investigation of this matter. The crime of abduction or kidnapping is becoming far too prevalent in our society, both from a specific and a general deterrent point of view persons who are involved in this type of criminal activity must have it brought home to them that if they do and if they are caught they will be severely dealt with by this Court. As his Honour, Judge Shadbolt, did with the man Chin, what I propose in your case is to take into account the fact that you have already served some time in custody, according to my calculations it is just under nine months. It seems to me that you have had a taste of prison and that you should have learnt by now that prison is no place for a young man to be. I hope that you have learnt your lesson. Ordinarily I would have thought seriously of subjecting you to an overall term of imprisonment of some three and a half to four and a half years as it seems your criminal activity on this occasion would warrant such a sentence and to fix an appropriate non-parole period in relation to that sentence. However, bearing in mind that you have already been in custody for approximately nine months, it seems to me that I can deal with you as has been suggested by your counsel and sentence you to a term of imprisonment of three years and direct that that term be served by way of periodic detention. In effect that would mean and will equate to a head sentence of some three to four years and with a non-parole period of approximately fifteen to eighteen months. I say that because you have already served nine months full time custody and you will now be required to serve three years by way of periodic detention." 31 His Honour imposed a sentence of three years to be served by way of periodic detention. 32 When sentencing Elhalabi, Backhouse DCJ noted that August's position was different from that of Elhabali because of the fact that he had already served a period of nine months full time custody before his sentencing had been completed. She said on the matter of parity: "I do not regard the sentencing by his Honour Judge Kinchington of the prisoner August as allowing for any basis for the court to come to the view that it was of assistance in the sentencing of this prisoner." 33 When the applicant was sentenced Herron DCJ considered the sentence imposed on August and that imposed on Elhalabi. His Honour found that the sentence imposed on August was not a relevant comparison for the sentence to be imposed on the applicant and said: "The man, August, was sentenced by Judge Kinchington on 9 March 2001 to three years periodic detention but he had served nine months in gaol and his Honour Judge Kinchington thought that that was sufficient reason for him to take the course which he did, namely, in addition to that nine months, he made an order that he serve three years periodic detention which is quite an onerous sentence, although we all know that that boy probably will not serve the whole three years, having to go every weekend to periodic detention. I am told however that August came into the picture, as so far as this crime is concerned, but on the day in question, that is, 20 May 2000. So he was not involved beforehand in the manner in which the defendant certainly was and in the way in which Elhalabi was." 34 His Honour found that the sentence imposed on Elhalabi provided a relevant comparison when sentencing the applicant. He also referred to Mendoza but does not indicate the relevance, if any, of the sentence imposed on him. 35 He said: "Elhalabi was sentenced to three years imprisonment with 15 months non-parole by her Honour Judge Backhouse on 21 June 2001. Mendoza was sentenced on 3 August. The sentence which her Honour calculated with regard to Elhalabi was subject to significant discounts for his helping the authorities in the matter. So, by equating the defendant's position with Elhalabi's, I think it could be said that I have been reasonably generous to the defendant because, quite frankly, he is not entitled to all the discounts which Elhalabi received. But I think, doing the best I can and in an attempt to attain parity in the matter, that I should impose the sentence which I have already announced." 36 I have discussed the principles relevant to sentencing in the present circumstances in the application of Elhalabi. The critical element is that an appeal court may intervene "when there is a manifest discrepancy such as to engender a justifiable sense of grievance, by reducing a sentence … " Lowe v The Queen (1984) 154 CLR 606 at 613. 37 The submission by the present applicant is that the sentence imposed on him was so significantly more onerous than that imposed on August that this Court is entitled to intervene and should itself impose a lesser sentence on the applicant. 38 I do not accept this submission. I am not persuaded that the sentence imposed on the applicant was so different from that imposed on August that it could be said to be lacking in parity so that this Court should intervene. In my opinion the criminality of the applicant and August was relatively comparable. Although August participated in physically restraining the victim, the applicant had a continuing involvement over weeks and drove the main instigators of the crime. 39 For his part in the offence, August served nine months in full time custody and must serve a further three years by way of periodic detention. I doubt whether that penalty, even allowing for the manner in which periodic detention is administered, is significantly different from the minimum period of fifteen months full time detention which the applicant must serve. Certainly any difference would not justify the intervention of this Court. 40 It is further submitted that the sentence imposed on the applicant was so disparate to that imposed on Mendoza that this Court should intervene. 41 I have commented on the sentence received by Mendoza in the application of Elhalabi. Because it is to be served by way of periodic detention, it is undoubtedly lenient. 42 However, I do not believe the applicant has, in the relevant sense, a "justifiable sense of grievance." The fact that a disparity exists does not of itself, require the intervention of this Court. R v Pritchard & McDonald (unreported, NSWCCA, 22 April 1993) R v Stack (unreported, NSWCCA, 17 April 1997). 43 I accept that the approach adopted by a majority of this Court in R v Diamond, (unreported, 18 February 1993) does not justify the different sentences in this case for the sentence imposed on Mendoza was not "gravely inadequate". However the circumstances of Mendoza's cooperation are so markedly different from the circumstances of the applicant that in my opinion it cannot be said that justice has not been done in sentencing the applicant. 44 I propose that leave to appeal be granted but the appeal dismissed.