R v SUN [2000] NSWCCA 87

New South Wales Court of Criminal Appeal

CITATION : R v SUN [2000] NSWCCA 87 FILE NUMBER(S) : CCA 60224/99; 60266/99 HEARING DATE(S) : 17/03/2000 JUDGMENT DATE : 17 March 2000

PARTIES : REGINA v Sio Meng SUN JUDGMENT OF : Simpson J at 17; Barr J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0029 LOWER COURT JUDICIAL Howie DCJ OFFICER :

COUNSEL : Crown: PG Berman Applicant: A Radojev SOLICITORS : Crown: SE O'Connor Applicant: Jack Rigg

CASES CITED: R v Postiglione (1997) 98 A Crim R 134 DECISION : Leave to appeal granted; Appeal dismissed

IN THE COURT OF CRIMINAL APPEAL 60224/99 60266/99

SIMPSON J BARR J

Friday, 17 March 2000 REGINA v Sio Meng SUN JUDGMENT

1 SIMPSON J: Barr J will deliver the first judgment. 2 BARR J: This is an application for leave to appeal against sentences imposed upon the applicant Sio Meng Sun by Howie QC DCJ. On 4 January 1998 the applicant pleaded guilty before his Honour to one charge of assault occasioning actual bodily harm and to a charge commonly referred to as kidnapping. The maximum penalty for the first offence is five years imprisonment. For the second it is twenty years imprisonment, provided that if the Court is satisfied that the victim was released without having sustained any substantial injury the maximum is reduced to fourteen years. The victim suffered substantial injuries, so the higher maximum penalty applied. 3 On 6 May 1997 the victim was a twenty-one year old Chinese national, temporarily resident in Australia on a student visa. At about 10.30 pm on that day he was lured by a colleague of the applicant, Tak Fat Wong, to a karaoke bar in Sydney on the pretext that two of his friends wanted to meet him there. He went to the bar and waited. A waiter told him that Wong wished to speak to him and took him to a private room, where Wong, the applicant and two other young men were waiting. The applicant knew the victim because they had attended school together. 4 In order to unsettle him, Wong asked him whether he had said something uncomplimentary about him and the four began to interrogate him about the alleged slight. The applicant changed the nature of the proceedings by beginning to kick the victim in the stomach. He continued to do so even though the victim requested him to stop. The assaults continued. The third and fourth young men began punching him and one of them struck him several times with a wooden chair, until it broke. Wong hit him with a broken doorknob and made his head bleed. The victim realised that they wanted his money and offered them first $1,000 and then $5,000. They searched him and found in his wallet $420 in cash, a keycard and a visa card. They asked him his PIN for each of the cards and he told them that he did not know the number for the visa card. One of the other two men assaulted him with a piece of exhaust pipe and told him that he would be killed if he did not reveal the number. The assaults continued until one of them said that he might really not have the number, so they should stop beating him. His Honour remarked that that person was possibly the applicant. 5 The victim telephoned a number of people to try to borrow money to placate the attackers. He was assaulted by Wong as he did so. He was unsuccessful. 6 One of them tied him to a chair with a garden hose. He was left alone in the room for a substantial time. 7 At about 5.30 the next morning Wong and the applicant returned to the room and Wong told him to write down the details of his family in Hong Kong. He obeyed. He was then told that he would have to go to a bank to withdraw a large sum of money from his account. He was left alone again. When the banks opened the four returned, took him to a bank, ordered him to withdraw the money and sent him inside. They had given him a jumper to wear to cover up his bruises. Instead of asking for money the victim asked for help. The police attended and caught the four kidnappers waiting nearby in a car. 8 Wong and the applicant pleaded guilty and were dealt with by his Honour. The remaining two attackers stood trial and were acquitted. The transcript of evidence taken at their trial has not been put before the Court, but the Court has been told that they claimed they were in fear of Wong and the applicant. They also adduced evidence of alibi. 9 Howie DCJ sentenced Wong before this applicant, but by then Wong had been sentenced to a head sentence of twelve years, with a non parole period of seven years, for an importation offence. His Honour was obliged to take that sentence into account when imposing further sentence on Wong, first to ensure that the total effective sentence was not a crushing one and, secondly, to ensure that Wong was given the opportunity of a long enough time on parole after serving the substantial number of years in gaol which the combined sentences would require. His Honour observed that these circumstances required him to impose upon Wong a lesser sentence than he would otherwise have felt free to impose. 10 His Honour imposed an effective sentence of five years on Wong, accumulated on the seven year non-parole period of the existing sentence. The minimum term was two years and the additional term three years. The result was that Wong had to spend nine years in custody before being eligible for release on parole for a further three. As his Honour observed, being cumulative, the fresh sentences had to be reduced markedly to give effect to the relevant principles. R v Postiglione (1997) 98 A Crim R 134. 11 The first submission on behalf of the applicant was that his Honour erred in concluding that the culpability of Wong and the applicant were to all intents and purposes identical. It was submitted that whilst there was evidence that the applicant was a willing participant, there was no evidence to suggest that he organised or planned the kidnapping or the assault. 12 As his Honour observed, it was not possible to say just when the applicant joined the criminal enterprise, but it was obvious that he was well aware of what was to happen when the victim entered the room with the waiter. His Honour did not accept it as any coincidence that the victim knew three of his attackers, including the applicant. His Honour concluded that Wong was probably the prime mover, but that each of the four men played a significant role in the attack on and imprisonment of the victim and in the use of physical violence against him. The applicant was the first to offer violence. Although he did not use a weapon, he used his feet in a vicious and dangerous attack. That violence was unprovoked, was not trivial and continued despite the protestations of the victim. The others used only makeshift weapons. The applicant played his part in the continued detention and guarding of the prisoner. 13 It seems to me that a finding that the applicant's and Wong's culpability were about equal was open to his Honour. 14 The next submission was that the credit his Honour gave the applicant for his plea of guilty was overshadowed by his Honour's erroneous view that the Crown case was a strong one. It seems impossible to regard the Crown case as other than strong. The acquittal of the remaining two attackers may possibly be explained by their assertion that they feared the applicant and Wong, but however that may be, the finding that the Crown case was a strong one was well open to his Honour. There could have been no doubt the victim personally knew this applicant and that this was some kind of premeditated attack. 15 The next submission was that in all the circumstances his Honour failed to apply relevant principles of parity, or at least give the applicant a sentence not dissimilar to that imposed upon Wong. Contrary to that submission, it seems to me that his Honour dealt leniently with the applicant. As his Honour observed, he would have sentenced the applicant to imprisonment for five and a half years, comprising a minimum term of three years nine months and an additional term of one year nine months, but for the sentences already imposed on Wong. His Honour reduced the sentence to some degree in recognition that the applicant might feel worse off than Wong, even though he could not have any justifiable sense of grievance, simply because on the face of things he would have to serve longer in custody for these offences than Wong. 16 I see no error in his Honour's approach. I would grant leave to appeal but would dismiss the appeal. 17 SIMPSON J: I agree, and the order of the Court will therefore be as proposed by Barr J. **********