New South Wales Court of Criminal Appeal CITATION : REGINA v. WU [2002] NSWCCA 214 FILE NUMBER(S) : CCA No. 60057 of 2002 HEARING DATE(S) : Monday 3 June 2002 JUDGMENT DATE : 3 June 2002 PARTIES : REGINA v. WU, Eddie JUDGMENT OF : Greg James J at 1; Carruthers AJ at 18 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/1063 LOWER COURT JUDICIAL Sorby, DCJ. OFFICER : COUNSEL : Crown: P.E. Barrett App: J. Galluzzo SOLICITORS : Crown: S.E. O'Connor App: Chahoud Kalouche & Associates CATCHWORDS : Criminal law - appeal - sentence - armed robberies - vulnerable victims - juvenile offender - application of R. v. Henry guildeline - sentencing statistics for similar multiple offences - sentence not outside discretionary range. LEGISLATION CITED : Crimes Act 1900 Criminal Appeal Act 1912 CASES CITED: Henry (1999) 46 NSWLR 346 House (1936) 55 CLR 499 DECISION : Application for leave to appeal granted; appeal against sentence dismissed. IN THE COURT OF CRIMINAL APPEAL No. 60057 of 2002 GREG JAMES, J. CARRUTHERS, AJ. MONDAY 3 JUNE 2002 REGINA v. EDDIE WU Judgment 1 GREG JAMES, J: This is an application for leave to appeal against a sentence imposed upon the applicant in the District Court of New South Wales following the entry of pleas of guilty to four offences charged in the one indictment. The applicant also sought that the court take into account a further offence. 2 The applicant pleaded guilty to three offences of robbery armed with an offensive weapon, that is to say, a tomahawk. Those offences were committed on 22 July 2001, 18 July 2001 and 16 July 2001. For each of them the maximum penalty prescribed in law is 20 years imprisonment. The applicant also pleaded guilty to an offence also charged in the indictment of being armed with intent to commit an indictable offence, namely, assault. That is an offence under s.114(1)(a) of the Crimes Act 1900, the maximum penalty for which, dealt with on indictment, is seven years imprisonment. The offence he sought be taken into account was an offence of fail to pay a taxi fare. That offence was taken into account on the sentence imposed by the learned trial judge on count one in the indictment. For that offence the applicant was sentenced to imprisonment for three years to commence on 29 July 2001 expiring on 28 July 2004. 3 On count two the applicant was sentenced to imprisonment for four years and six months commencing on 29 July 2004 and expiring on 28 January 2009. A non-parole period of two years commencing on 29 July 2004 and expiring on 28 July 2006 was imposed. 4 On count three the applicant was sentenced to a fixed term of imprisonment for three years commencing on 29 July 2001. 5 On count four the applicant was sentenced to a fixed term of imprisonment for one year commencing on 29 July 2001 and expiring on 28 July 2002. The applicant had been arrested on 29 July 2001 and has remained in custody since that date. He had a short record but a serious one for prior offences as a juvenile involving the commission of an aggravated indecent assault and two breaches of probation. Those matters had been dealt with by the Children's Court initially placing him on probation and later on a control order and requiring the supervision of the Department of Juvenile Justice and appropriate counselling with a view to his rehabilitation. 6 The control order contained a term providing for an additional term of 12 months concluding on 12 April 2000. It can be seen, therefore, that he had a period of time in which he was not subject to supervision prior to the commission of these offences. The learned trial Judge referred to an aggravating feature of the offences, that they were committed in company. 7 The facts of the offences were summarised briefly in the Crown brief and set out in his Honour's remarks on sentence. "Offence 1:- At about 11.00 pm on Monday 16 July 2001, a telephone call was made by somebody in the company of the prisoner to the Pizza Hut Delivery Service. When the order was placed for four pizzas and two bottles of drink, a request was made that they be delivered to 6/3 Short Street, Carlton. At about 11.30 pm, a person from the Pizza Hut arrived at that address and parked his vehicle. As he unloaded the pizzas from his vehicle, the prisoner was carrying a 30 centimetre tomahawk which he placed at the base of the victim's neck. The prisoner said, 'No trouble, no-one gets hurt, where's your keys?'. The other person then took the pizzas from the pizza driver, and the prisoner then forced the pizza deliverer to walk down the street away from his vehicle. The prisoner was holding the tomahawk to the throat of the victim throughout this event. The other young person had removed the mobile phone from the car of the pizza deliverer. The prisoner walked the pizza driver to a nearby park, and he then returned to Short Street. Offence 2:- At 10.24 pm on Wednesday 18 June 2001, a phone call was made by somebody in the company of the prisoner to another pizza establishment requesting pizza and bread and coke. At about 11.10 pm on the same evening, the pizza driver from that establishment arrived at 3 Short Street, Carlton. He parked his vehicle and began to hand the pizzas and drinks out to another person in the company of the prisoner. The prisoner then moved behind the pizza driver and placed a tomahawk at the base of the pizza driver's neck. The prisoner then demanded that the pizza deliverer hand over his wallet and cash. That person then handed the prisoner the monies he had taken from deliveries throughout the night, being a total of $373.70. The prisoner then walked the pizza deliverer a short distance down the street before the pizza deliverer broke free and ran away. A mobile phone was then taken from the pizza deliverer's vehicle. Offence 3:- At about 7.20 pm on Sunday 22 July 2001, an order for pizzas was placed with a different store at Hurstville. At about 10.05 pm, a pizza deliverer from that establishment attended Short Street, Carlton to deliver the pizzas. He parked his vehicle outside unit block number three. The prisoner and another person approached this driver who handed them the pizzas, believing they had ordered them. The prisoner then produced a 30 centimetre tomahawk and placed it at the bottom of the pizza driver's neck. The prisoner then demanded the victim's money bag which contained the night's takings of about $200 in cash. The prisoner then removed the pizza driver's Panasonic mobile phone. The prisoner then made the pizza driver walk a short distance down the street, with the axe still at his neck. He then allowed the pizza driver to run from the area. Offence 4:- At about 12.05 am on Friday 26 July 2001, the prisoner and two male persons approached a taxi cab which was parked in Railway Street, Lidcombe. They asked the driver to take them to Hurstville. When he got to Hurstville, the prisoner told the driver to stop. The rear passengers in the cab who were with the prisoner got out. The driver of the cab asked the prisoner for the fare that was owed, and the prisoner said, 'I'll get my wallet'. The prisoner then reached under his trench coat with his right hand and removed a small wooden-handled axe from a coat. The cab driver, for his own safety, attempted to try and take the axe from the prisoner. While doing so, he tried to drive his cab away and, as he did so, he left the two other males standing at the kerb. As he drove away, the prisoner jumped out of the moving cab and ran away without paying for the fare." 8 His Honour noted that the offences were objectively very serious. In each case the offender menaced others with a tomahawk. In each case the person so menaced was a person who by reason of their occupation was vulnerable to such attacks. His Honour concluded that personal and general deterrence needed to be marked in this case by an appropriate sentence. Notwithstanding that he concluded that the applicant then aged 19 years and three months had prospects of rehabilitation which were of some importance. His Honour looked at the evidence which suggested that the offences were out of the applicant's character and occurred whilst the applicant was in Sydney and away from his mother's care and supervision. He had a good work history and a good attitude to his work but his Honour had regard to the report of the Probation and Parole Service in which the applicant attributed his actions to being associated with undesirables in Sydney while leading a gang life existence. His Honour made substantial reference to a conclusion contained in the Probation and Parole Service Report:- "Mr Wu presented as defensive and self protective, somewhat immature yet manipulative. He displayed a well developed mechanism for minimising his role in the offences. He displayed no compunction for the offences in which he was involved. The writer of this report further formed the impression that further association with the criminal element in custody could work to his detriment, but it must be noted that this man's anti social behaviour and seemingly psychopathic behaviour could place the community at risk of exposure to further criminal activity by this man if he is released to life in the community." 9 His Honour noted this will be the first experience by the applicant of adult prison life other than that which he spent in custody on remand. He afforded to the applicant the benefit associated with having entered a plea of guilty at the first reasonable opportunity, and noted that he not having heard from the applicant as to any remorse, there was in addition nothing to record any remorse on his part in the Probation and Parole Service Report. 10 His Honour had regard to the principles in the guideline judgment of the Court of Criminal Appeal in Regina v. Henry & Ors (1999) 46 NSWLR 346 and the total criminality of the offences having regard to those offences as having been committed as part of a continuing course of criminal conduct over an 11 day period. He concluded that it was appropriate that the sentences should not be cumulative sentences as that would result in a prison term unduly harsh but it was necessary that the sentences recognised the spate of violent criminal behaviour putting a number of innocent people in terror. 11 His Honour concluded that it was necessary to impose in each case a sentence which each offence individually justified and then applying the principle of totality to exercise his discretion and make the sentences partly cumulative and partly concurrent. His Honour reflected in the non-parole period the seriousness with which the community views armed robberies but did find special circumstances such as to permit a variation in the statutory ratio in order to afford the applicant the benefit of an extended parole period. 12 It has been submitted on behalf of the applicant that his Honour fell into error in a number of ways, firstly, giving such weight to the observations of the Probation and Parole Service Officer as his Honour did and in particular as referred to in the quotation from the report to which I have made reference; secondly, that his Honour failed to give sufficient regard to contrition and remorse as evidenced by the plea of guilty and thirdly, failing to give sufficient regard to the prospects of rehabilitation. 13 In addition to those specific criticisms it is submitted that the sentences imposed upon the applicant were manifestly excessive although it is conceded they are within the range of the sentencing guidelines. It is also submitted they are at the very high end of the range taking into account the subjective features of the applicant and objective features of the offences. In this regard Mr. Galluzo of counsel who appeared on behalf of the applicant, and who has said in his written and oral submissions all that can be said, has submitted that having regard to the sentencing statistics with which he has provided us from the Judicial Commission in such circumstances as those of the applicant, the sentence exceeds such other sentences as are there notified. Those statistics indicate that for multiple crimes of armed robbery in respect of which persons had come forward for sentence after the judgment in Henry (supra), with prior but unrelated offences and of the age group, 21 to 30 years on a plea of guilty, the head sentence and non parole period in this case exceed what had been passed on other offenders. 14 During argument I expressed to Mr. Galluzo the view that if in the range of persons coming forward for sentence in such circumstances no one had managed to achieve a sentence in excess of the seven years head sentence and 48 months non-parole period noted in the statistics notwithstanding the number of armed robberies that might have been committed, there would appear to be some difficulty either about the sentencing parameters being appropriate or the adequacy of the statistics. There have been a number of judgments in this court concerning the inappropriateness of placing complete reliance on these statistics for the purpose of defining the appropriate range of sentence, particularly in the context where, as here, those statistics seem entirely out of line with the maximum sentence provided by the legislature for the individual crimes. 15 In my view, whilst this is a severe sentence it does not reach that degree of severity to which Mr. Galluzo referred when he submitted that the sentence was in excess of the appropriate and available range in the exercise of discretion by a trial judge. True it is a heavy sentence indeed and particularly for one so young, but when I have regard to the objective circumstances of each of the crimes, notwithstanding the applicant's prospects of rehabilitation and notwithstanding his subjective circumstances, I am unable to see that the trial judge fell into error by passing a sentence so excessive as to show an error in law in the exercise of his discretion such that the court would be warranted in intervening. 16 The Criminal Appeal Act 1912 provides in s.6(3) that the court is only empowered to intervene in the event that some other sentence is warranted in law and should have been passed. That subsection has long been understood as requiring the finding of some such error in the exercise of the sentencing discretion as the High Court referred to in the oft quoted passage from House v. The King (1936) 55 CLR 499. 17 I do not see that this sentence can be regarded as such as to support any such finding of error here; nor do I see that any of the individual criticisms made the sentencing process are made out. In my view, the application for leave to appeal should be granted in that the matter has been fully argued but the appeal against sentence dismissed. 18 CARRUTHERS, AJ: I agree. 19 GREG JAMES, J: The orders of the court will be as I have 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.