Regina v Jin [2003] NSWCCA 238

New South Wales Court of Criminal Appeal

CITATION : Regina v Jin [2003] NSWCCA 238 HEARING DATE(S) : Wednesday 20 August 2003 JUDGMENT DATE : 20 August 2003

JUDGMENT OF : Foster AJA at 14; Grove J at 2; Dowd J at 15 DECISION : Appeal dismissed.

CATCHWORDS : CRIMINAL LAW AND PROCEDURE - SENTENCE - PARITY - NO ERROR IN APPROACH OR ASSESSMENT OF TRIAL JUDGE CASES CITED : Lowe v The Queen 1984 154 CLR 606 Postiglione v The Queen 1997 189 CLR 295 PARTIES : Regina v Simon Jin FILE NUMBER(S) : CCA 60152/03 COUNSEL : D. Woodburne (Crown) H. Dhanji (Applicant) SOLICITORS : S.E. O'Connor (Crown) D.J. Humphreys (Applicant)

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/0266 FILE NUMBER(S) : LOWER COURT Sides DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60152/03

FOSTER AJA GROVE J DOWD J

Wednesday 20 August 2003 REGINA v SIMON JIN Judgment

1 FOSTER AJA: I will ask Mr Justice Grove to give the first judgment. 2 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Sides DCJ at Campbelltown District Court. The applicant had pleaded guilty before a magistrate to two charges of robbery in company and had been committed for sentence. The maximum prescribed penalty for such offence is imprisonment for twenty years. The sentencing judge was also asked to take into account on sentence three offences on a Form 1 being offences of larceny, entering enclosed lands, and self administering a prohibited drug respectively. 3 The learned sentencing judge imposed a sentence of imprisonment for three years and fixed a non-parole period of eighteen months, ordering the release of the applicant to parole upon the expiry of the non-parole period. It might be presumed that this term was intended to be imposed in respect of each charge with the sentences to be served concurrently. The Form 1 offences were taken into account but his Honour expressly indicated that the sentence imposed was not extended by reason of those offences having regard to his conclusion that none of them would have merited a custodial sentence. 4 A co-offender Konrad Bordakiawicz appeared for sentence with the applicant on the counts of robbery in company. He was sentenced to three years imprisonment with a non-parole period of two years accompanied by a direction that the sentence be served by way of periodic detention. Again, it might be taken sentence was imposed in respect of each charge and that the sentences be served concurrently. The sole ground of appeal asserts that the applicant has a justifiable sense of grievance by virtue of the disparity of the sentence imposed upon him and that imposed upon his co-offender. 5 On Saturday 15 June 2002 the offenders entered Glen Street Park at Eastwood where they encountered three fourteen year old boys. Bordakiawicz said to one of them "What's in your pocket?" And he then "patted down" the trousers of the boy and removed his wallet and mobile phone. He took $5 from the wallet and the sim card from the phone, returning the wallet to this victim. The applicant then said to another of the boys "Empty out your pockets, come on, I am asking you nicely". The applicant then started pushing this boy with both hands, as a result of which he removed a mobile phone from his pocket and gave this to the applicant. The offenders then left the park. 6 At about 6.15 pm that evening police observed the applicant speaking to a person called Holmes outside Eastwood Railway Station. There was an extant condition of bail requiring the applicant not to associate with the man Holmes. The applicant was told to empty his pockets and he produced the telephone stolen earlier in the afternoon. At interview later in a police station the applicant admitted participating in the robberies. The applicant gave to police information concerning the co-offender whom he knew as "Chad" and this information enabled Bordakiawicz to be identified and arrested in due course. 7 In his remarks on sentence the learned judge made express reference to his consciousness of the issue of parity between the co-offenders. He said: "There is no basis, in my view, to distinguish between the criminality of the two offenders, nor is there a basis to distinguish between them on the question of leniency to be given for their pleas of guilty. However, their subjective circumstances are different." 8 He noted that whilst both offenders were young, the applicant was about twelve months older. Bordakiawicz had no prior convictions. The applicant had been convicted at Ryde Local Court on 30 November 2001 of driving with a low range of the prescribed concentration of alcohol; custody of a knife in a school; larceny to the value of less than $2,000 and taking and driving a conveyance without consent of the owner. He was ordered to pay fines, serve 150 hours community service and placed upon recognizance for two years under the supervision of the Probation Service. On 10 January 2002 at Fairfield Local Court he was fined on each of three charges respectively for possessing a prohibited drug, larceny to a value of less than $2,000 and goods in custody reasonably suspected of having been stolen or otherwise unlawfully obtained. On 16 April 2002 at Burwood Local Court he was fined for driving whilst disqualified. It follows that at the time of these offences the applicant was subject to current recognizance and also, as I have mentioned, to bail conditions. 9 Finally, as a matter of discrimination between the offenders, his Honour expressly found that the prospects of rehabilitation of Bordakiawicz were excellent and much better than those of the applicant. He expressly found that the applicant's prospects of rehabilitation could not be "viewed as good". His reasons for this conclusion were stated to include: