R v Tan [2001] NSWCCA 490

New South Wales Court of Criminal Appeal

CITATION : R v Tan [2001] NSWCCA 490 FILE NUMBER(S) : CCA 60477/00 HEARING DATE(S) : 26 November 2001 JUDGMENT DATE : 26 November 2001

PARTIES : Regina (respondent) Dawin Tan (applicant) JUDGMENT OF : Hidden J at 1; Newman AJ at 14

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0417 LOWER COURT JUDICIAL Latham DCJ OFFICER :

COUNSEL : JW Fliece (Direct Access) WG Dawe QC - Crown SOLICITORS : Solicitor for Public Prosecutions - Respondent CATCHWORDS : Criminal law: Sentence - aggravated robbery and demand money with menaces - whether sentences excessive LEGISLATION CITED : Crimes Act 1900 CASES CITED: R v Thomson; R v Houlton (2000) 49 NSWLR 383 Wong v The Queen; Leung v The Queen [2001] HCA 64 DECISION : Appeal dismissed

- 5 -IN THE COURT OF CRIMINAL APPEAL

60477/01 HIDDEN J NEWMAN AJ

26 November, 2001 REGINA v Dawin TAN

JUDGMENT

1 HIDDEN J: The applicant, Dawin Tan, pleaded guilty in the District Court to two offences, one of aggravated robbery under s95(1) of the Crimes Act, 1900 and one of demand money by force with intent to steal, an offence under s99 of the Crimes Act. The first of those offences carries a maximum penalty of twenty years imprisonment and the second a maximum penalty of ten years. Latham DCJ sentenced him on the aggravated robbery charge to imprisonment for eight years to commence from the date he was taken into custody, with a non-parole period of five years. On the demand money charge her Honour sentenced him to imprisonment for a fixed term of four years, which was wholly concurrent with the non-parole period on the first charge. 2 The facts are adequately explained in her Honour's remarks on sentence as follows: In short form the victim, a Hong Kong National female aged 36 who resided with her two sons and husband in a unit in Hurstville, was returning to her home at about 9.30am on 16 March 2000 having dropped her sons to a nearby school. She parked her vehicle in the garage assigned to her unit in the basement of the building and alighted from her vehicle whereupon she saw a white van stationary across her garage door. The prisoner and two unknown co-offenders left the vehicle, approached the victim and produced a knife whereupon the victim was told "don't make any noise". Both the prisoner and the co-offender wore stockings over their heads and it was the co-offender who on the facts before me, was armed with the knife. The victim was forced into the rear of the van by the prisoner and his co-offender and once inside, the victim was bound with masking tape around her eyes, ankles and wrists. The vehicle was then driven around the Hurstville area. Whilst being driven, the victim's handbag was searched by the prisoner and the co-offender in the back of the van. The van was then driven back to the victim's premises where the driver of the vehicle went to the victim's unit and opened the door with the keys which had been removed from the victim's handbag. Inside the unit the sum of $720 Australian and $100 Hong Kong was removed. The van containing the victim was once again driven from the premises. During the journey the prisoner and his co-offenders continually threatened the victim demanding money from her. Two key cards were removed from her wallet and she was questioned as to the contents of those accounts. She suppled her personal identification numbers in respect of two of those accounts and between 10 and 11 o'clock approximately that morning, 14 attempts were made by both the prisoner and his co-offenders on those two bank accounts. Four of those attempts were successful which resulted in a withdrawal of $1,960 from those two accounts. Whilst all of this was occurring the victim was still being detained within the van. There was then an unsuccessful attempt to persuade the victim to extort money from an acquaintance of the victim. Failing that, she was questioned about monies that she may have had in any overseas accounts. The facts I have thus far related form the basis of the aggravated robbery charge. The following facts form the basis of the demand money with menaces charge. The victim informed the prisoner and his co-offender that she had the sum of $10,000 in a Hong Kong account which she was unable to withdraw with less than 24 hours notice. One of the prisoner's co-offenders then informed the victim that she would be released in order to facilitate the withdrawal of that $10,000 from the account, on the basis that she would deliver the amount to them the following day. In the course of these demands one of the offenders said to the victim "If you report to the police I will kill your son. I have taken your husband's photograph from your home so don't report it to the police". There was a further period of time during which the van was driven throughout the Hurstville area before the masking tape was removed from the victim's wrists and ankles but not her eyes. She was then released from the van with her handbag and wallet and some short time later reported the matter to the police. The following day, 17 March 2000, 19 further attempts were made to withdraw money from the bank accounts belonging to the victim. Only two of those attempts were successful which resulted in a withdrawal of $70 in cash. However at 11 o'clock on 17 March 2000 the victim did receive a telephone call from someone speaking in Cantonese who repeated the demand for the $10,000. A further phone call followed in relation to the demand seven minutes later and a further phone call that afternoon was made by the same caller at 3.58pm and 5.25pm. All of these calls were monitored and recorded pursuant to a listening device warrant. The arrangement ultimately was that the victim was to deposit $10,000 into a garbage bin under an umbrella at the Kentucky Fried Chicken outlet in Forest Road Hurstville. The victim complied with the demand insofar as she did place a plastic bag into a garbage bin which was the subject of surveillance at the time. Shortly before 6pm the prisoner was observed to enter the KFC restaurant where he remained without purchasing any item. He exited the store a short time later and attempted to retrieve the plastic bag from the bin whereupon he was arrested. When taken to Hurstville Police Station and interviewed in relation to the matter he made full admissions to the police which corresponded to the account given to the police by the victim. 3 Her Honour rightly described this behaviour as "grave criminality", calling for "condign punishment". In arriving at the effective sentence of eight years with a non-parole period of five years her Honour expressed herself to have regard to the totality of the applicant's criminality reflected in both offences. 4 The applicant pleaded guilty at the earliest opportunity and was committed to the District Court for sentence. As her Honour noted he cooperated with police making full admissions in a recorded interview. He is now twenty seven years old and has no prior convictions in this country. By way of explanation of the offences, there was evidence that he had a gambling problem which had led him to squandering some $20,000 of his wife's money. Her Honour referred to that material in passing sentence but expressed the view that it afforded no adequate explanation for criminality of this order. 5 Mr Fliece, Counsel for the applicant in this Court, has challenged the sentence in respect of the robbery charge asserting that it is manifestly excessive. He has also argued that her Honour failed to specify a discrete reduction of sentence for the applicant's pleas of guilty, submitting that she should have done so. 6 On the question of the sentence for the robbery charge, Mr Fliece took us to statistics published by the Judicial Commission of New South Wales for the period December 1994 to March 2000. Those figures show in respect of all offenders over that period that the present sentence of eight years is the highest recorded, as is her Honour's non-parole period of five years. That may in fact slightly misrepresent the position. Both figures are higher than any recorded figures in those statistics. 7 Figures of that kind are useful to sentencing courts and to courts of criminal appeal but, as has often been said, their value is somewhat limited. In the nature of things they tell us nothing about the circumstances of the cases, the results of which are recorded. This offence of robbery was a very serious example of that crime and one which, on any view of it, would call for a sentence very high in the range fairly available to a sentencing judge. In addition, it must be borne in mind, as I have said, that her Honour appears to have arrived at the total sentence and the non-parole period on the robbery charge with an eye to the criminality inherent in the second charge of demanding money with menaces or by force. That charge itself was a very serious example of that category of criminality. 8 Mr Fliece pressed his submission that the sentence on the robbery charge is excessive not only by reference to the Judicial Commission figures but also with regard to the favourable subjective case which the applicant was able to make out. He referred to the applicant's age, to his lack of prior convictions and to his gambling problem. He referred also to the applicant's early plea of guilty and to his co-operation with police. Her Honour, herself, referred to all those matters in her remarks on sentence without, as I have said, specifying any discrete discount in relation to any of them. In particular, her Honour referred to the early pleas, to their utilitarian value and to the fact that, in the circumstances of this case, they demonstrated contrition on the applicant's part. 9 Taking all those matters into account, I remain unpersuaded that the effective sentence imposed by her Honour is manifestly excessive. Certainly, the sentence is high but it was justly so. Both offences were of unusual seriousness, particularly the robbery offence to which the greater of the two sentences attached. 10 In the light of the High Court decision and, in particular, the joint judgment in that case, it does not appear to me that it could be said her Honour fell into error by not specifying a discount for the plea of guilty. Whether it remained open to her Honour to do so is a matter that does not need to be determined for the purposes of this case. 11 As I have said, Mr Fliece also argued that her Honour should have quantified the reduction in sentence to which the applicant was entitled by virtue of his pleas of guilty. In written submissions, Mr Fliece referred to the decision of this Court in R v Thomson and Houlton (2000) 49 NSWLR 383. Those submissions no doubt were prepared before the very recent decision of the High Court in Wong and Leung v The Queen [2001] HCA 64. 12 I can say no more than that the effective sentence appears to me appropriate to reflect the criminality in this case and to give all due weight to the favourable subjective circumstances. 13 The matter is a very serious one and it was proper that this Court should examine these sentences. For that reason I would grant leave to appeal but I would dismiss the appeal. 14 NEWMAN AJ: I agree. 15 HIDDEN J: The orders of the Court will be as I proposed. **********