New South Wales Court of Criminal Appeal CITATION : Regina v Bieu Vinh HUA [2002] NSWCCA 384 FILE NUMBER(S) : CCA 60095/02 HEARING DATE(S) : 12 September 2002 JUDGMENT DATE : 12 September 2002 PARTIES : Bieu Vinh HUA - Appellant Crown - Respondent JUDGMENT OF : Wood CJ at CL at 24; Smart AJ at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 01/21/0348 LOWER COURT JUDICIAL Nield DCJ OFFICER : COUNSEL : H. Dhanji - Appellant D. Woodburne - Crown SOLICITORS : D.J. Humphreys - Appellant S.E. O'Connor - Crown CATCHWORDS : Sentencing - steal from the person - taking into account factors which would constitute robbery - accumulation of sentences. Crimes Act 1900 LEGISLATION CITED : Criminal Appeal Act 1912 Criminal Procedure Act 1986 R v de Simoni (1981) 147 CLR 383 R v Delk (1999) 46 NSWLR 340 CASES CITED: R v Stewart [1929] SASR 500 Ibbs v The Queen (1987) 163 CLR 447 Pearce v The Queen (1998) 194 CLR 610 DECISION : See paragraphs 23 and 24 IN THE COURT OF CRIMINAL APPEAL 60095/02 WOOD CJ at CL SMART AJ Thursday 12 September 2002 REGINA v Bieu Vinh HUA Judgment 1. SMART AJ: Bieu Vinh Hua seeks leave to appeal against a sentence of imprisonment for 3 years with a non-parole period of 18 months for the offence of steal from the person. He was also sentenced to a fixed term of 11 months imprisonment for the offence of demand money with menaces to be served concurrently. Steal From The Person 2. On 27 July 2001 at 10am the victim, a 19-year-old male, was walking along Deane Street, Burwood when the applicant approach the victim and, after some introductory conversation, said, "Follow me or you'll be in trouble". When the victim did not immediately follow the applicant he said, "Do you want to be friend to me or enemy?" 3. The victim apprehensively followed the applicant for a short distance and at his insistence reluctantly gave the applicant his identification and address. The applicant took the victim's wallet and removed a $50 note and the victim's bank key card. The applicant also took the victim's mobile phone. He demanded the victim's PIN number which the victim reluctantly gave him. The applicant left. The victim reported the matter to the police giving a useful description of the applicant. The police officer described the victim as being in shock. Two days later the applicant again accosted the victim. However, he ran off to Burwood Police Station and then accompanied two police officers in a patrol vehicle. The applicant was located and arrested. Demand Property With Menaces 4. About 2.15 p.m. on 28 July 2001 as the victim crossed Victor Street, Chatswood, the applicant placed his hand on the victim's chest, blocked his path and stated that he wanted to speak to the victim and wanted him to be his friend. If the victim couldn't be the applicant's friend then he would be stabbed. 5. The victim ignored the applicant and continued to walk to the Food Court of the Mandarin Centre. The applicant grabbed the victim by the shoulder and forced him to sit down at a table in the Food Court. The applicant said that he wanted to speak to the victim and if he didn't he would be stabbed. The victim pleaded with the applicant to let him go to which the applicant replied that he had already hurt someone that day and that he would stab him. The applicant told the victim that if he did not produce his driver's licence, supply his name and address and give the applicant his wallet, he would be stabbed. When the victim attempted to stand up to move away, the applicant attempted to push the victim back down into his seat. The victim escaped and ran to the Mandarin Centre Police Shopfront Office. The applicant pursued the victim and attempted to drag him out of the Police Office. The applicant was detained and subsequently placed under arrest and charged. The police said that the complainant appeared very frightened. 6. The applicant was born on 20 October 1981. From late 1999 to June 2001 he committed a considerable number of offences and was frequently before the courts. The offences included drug offences, dishonesty offences, assault occasioning actual bodily harm. He was placed on probation and fined. On 10 March 2000 for the offences of goods in custody (two counts), possess prohibited drug and shoplifting, he was sentenced on each count to imprisonment for one month and 18 days. On 16 August 2000 for the offences of goods in custody, shoplifting and larceny he was sentenced to imprisonment for 12 months with a non-parole period of three months. On 1 June 2001 for supplying a prohibited drug he was sentenced to imprisonment for four months commencing on 20 February 2001. At the time of the commission of the offence the applicant was on parole. 7. As the applicant did not give evidence the background material has been taken from the report of the psychologist. The applicant was born in Vietnam. His mother committed suicide in 1989 when he was eight years old. His father arrived in Australia in 1990. He lived with his aunt until his arrival in Australia in 1994 when he was 13 years old. He went to live with his father but reported a difficult relationship with his father and left home at age 16 years following an argument. He stated that his father was violent. The applicant has spent a great deal of time on the streets. The applicant completed the School Certificate at Dulwich Hill High School. He struggled at school due to limited English skills. He has worked as a kitchen hand with his aunt at Dulwich Hill. He has had no other training or employment. 8. He was stabbed in the abdominal region in Cabramatta in 2001 and taken to Liverpool Hospital for urgent treatment. The violence was linked to drug dealing. At the age of 16 the applicant was introduced to cannabis. He used cannabis on a daily basis and was smoking up to two to three grams daily. He became addicted to the drug. At age 16 he was introduced to cocaine and injected this substance on a regular basis. At the same age he was introduced to heroin and smoked approximately two to three grams daily. At age 17 the applicant used heroin intravenously and sold heroin to support his addiction. He said that he became addicted to heroin. His criminal activities were directed to supporting his drug addiction. 9. The applicant told the psychologist that he had not consumed any illicit substances in custody and that in relation to the subject offences he was under the influence of Rohypnol, heroin and cocaine. The psychologist has written that Rohypnol is an extremely addictive substance. At Parklea Gaol the applicant was undertaking a Drug and Alcohol Program. He told the psychologist that he had made a commitment to stay away from criminal/drug elements. The psychologist concluded: "[the applicant] is highly motivated and is responsive to psychological interventions. He is willing and motivated to re-direct his energies into healthy lifestyle choices" 10 The psychologist stated that the applicant "feels regretful for his offending behaviour...he has made a decision to focus on rehabilitation". 11. The picture which emerges is of a young man with little support who has experienced considerable difficulties in his life and who has resorted to drugs and crime. While there is some prospect of rehabilitation any assessment must be guarded. 12. Counsel for the applicant has concentrated on these remarks of the judge: "10. The Offences Themselves: The offender used a similar modus operandi in relation to each offence. He approached young men; he used veiled threats to his victims; he put his victims in fear... They are not the worst type of the particular offences, but I suspect that his victims, both students, one aged 19 and the other aged 18, would not feel comforted that the offences are not the worst type of offence." 13. The applicant contends that the judge took into account facts which would have rendered the applicant liable for the more serious offence of robbery contrary to the principle in R v de Simoni (1981) 147 CLR 383 at 389: "... a judge, in imposing sentence, is entitled to consider all the conduct of the accused which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted conviction for a more serious offence..." 14. The applicant submitted that the judge breached this principle by sentencing the applicant on the basis that he had committed a robbery which, it was submitted, was a more serious offence. Robbery requires the additional element of placing the victim in fear. 15. In R v Delk (1999) 46 NSWLR 340 at 343 I pointed out that the crime of stealing from the person usually involves a personal confrontation and the potential for personal conflict and force or fear, particularly if the victim endeavours to stop the theft. Reference was there made to R v Stewart [1929] SASR 500 where, after reviewing in the Statutes of 8 Eliz C4, 48 Geo III C129, 7 & 8 Geo IV C29, 7 Guil IV and 1 Vict 1 (1837) and some South Australian enactments Napier J at 504-505 said: "The plain effect of these Statutes, commencing with 48 Geo III C129 is to deal with all larcenies from the person... and thus to close the gap between robbery and larceny from the person; later (in 1827) to deal with robbery and other larcenies from the person as one offence - that is, for the purpose of punishment; and finally, to leave simply robbery and larceny as one offence, while prescribing heavier punishment for aggravated forms of robbery..." 16. In R v Delk at 344 I said: "It is important to pay particular attention to the history of the offence of steal from the person in New South Wales: Act 46 Vic No 17 was stated to be an Act to consolidate and amend in certain respects the criminal law. Section 90 and s 91 provided: '90. Whosoever robs or assaults with intent to rob any person or steals any chattel money or valuable security from the person of another shall unless where a greater punishment is provided by this Act be liable to penal servitude for 10 years. 91. Whosoever commits any such felony as is mentioned in the last preceding section and immediately before or at the time of or immediately after the commission thereof strikes or uses any other corporal violence to any person shall be liable to penal servitude for 14 years. And if the person so offending thereby wounds any person he shall be liable to penal servitude for life.' It will be seen that the offences of robbery, assault with intent to rob and steal from the person, are dealt with together and the same maximum penalty is prescribed for each. These offences are seen as part of an overall scheme dealing with the graver thefts where there is violence or putting in fear or the potential for violence exist. The statutory scheme manifest in the 1883 Act was continued in the Crimes Act 1900 and is reflected in the current s 94 and s 95 of that Act." 17. Put simply, too much should not be made of the distinction between steal from the person and robbery. 18. The appellant submitted that the less serious nature of the offence of stealing from the person was reflected in the fact that such an offence may be dealt with in the Local Court, whereas an offence of robbery against s 94 of the Crimes Act 1900 may only be dealt with on indictment. Pursuant to ss 27 and 28 and Tables 1 and 2 of the Criminal Procedure Act 1986 the maximum penalty for the offence of stealing from the person when dealt with summarily is, where the value of the property does not exceed $5000 as was the case here, imprisonment for 12 months. 19. I would not adopt the applicant's approach. I do not accept that every offence of steal from the person is less serious than that of robbery. Everything depends upon the particular facts of the case. In Ibbs v The Queen (1987) 163 CLR 447 at 452 the High Court in a joint judgment said: "When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case." 20. When dealing with the offence of steal from the person the judge has relied on the applicant putting the victim in fear. That is an element of robbery. I see nothing wrong with his self-evident comment that the student victims would not feel comforted by knowing that the offences were not of the worst type. It would not be wrong for the judge to take into account that the offence had the potential for violence or the potential for putting the victim in fear. 21. I bear in mind Pearce (1998) 194 CLR 610 and the need to fix the correct sentence for each offence. As to penalty I confine myself to the elements of steal from the person as the judge should have done. This was not a case where the sentence for the offence of steal from the person and the sentence for the offence of demanding money with menaces should have been made concurrent. The offences related to different occasions, different victims and different conduct. Accumulation was both warranted and required. The sentences should be restructured but the overall effect should not be reduced except minimally to give effect to Pearce and the restructure. I rely on the powers in s 7(1A) of the Criminal Appeal Act 1912. 22. Concentrating on the facts in each case and confining myself to the elements of each offence, it is clear that each offence was a serious one and merited stern punishment even after taking into account the subjective features. The offence of steal from the person in this instance was not one appropriate to be dealt with in the Local Court. In company with the judge I would find special circumstances in the applicant's age and his prospects of rehabilitation. I add the cumulation of sentences. I take into account the contents of the applicant's affidavit and the adverse experiences he has had in gaol. 23. I propose the following orders: 1. Leave to appeal against sentences granted. 2. Dismiss the appeal against the sentence of imprisonment of a fixed term of 11 months commencing on 29 July 2001 and expiring on 28 June 2002 for the offence of demand money with menaces. 3. (a) Appeal against the sentence of imprisonment for three years for the offence of steal from the person allowed, sentence quashed. (b) In lieu thereof the applicant is sentenced to imprisonment for two years to commence on 29 June 2002 with a non-parole period of seven months starting that day and ending on 28 January 2003, on which day the applicant is to be released on supervised parole. 24. WOOD CJ at CL: I agree. The orders of the Court will be as Justice Smart has proposed. ********** 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.