Regina v Thien Tu [2004] NSWCCA 403

New South Wales Court of Criminal Appeal

CITATION : Regina v Thien Tu [2004] NSWCCA 403 HEARING DATE(S) : 17/11/04 JUDGMENT DATE : 17 November 2004

JUDGMENT OF : Bell J at 1; Buddin J at 36 DECISION : Leave to appeal granted; Appeal dismissed.

LEGISLATION CITED : Crimes Act 1900 R v Fidow [2004] NSWCCA 172 CASES CITED : R v Henry (1999) 46 NSWLR 346 Regina v KM [2004] NSWCCA 65 R v Rowe (unreported) NSWCCA, 3 October 1996 PARTIES : Regina Thien Tu (Applicant) FILE NUMBER(S) : CCA 2004/2034 CCAP COUNSEL : S Corish (Applicant) P Miller (Crown) SOLICITORS : S E O'Connor (Applicant) S Kavanagh (Respondent)

LOWER COURT District Court JURISDICTION : LOWER COURT 03/21/3069 FILE NUMBER(S) : LOWER COURT Maguire DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 2034/04

BELL J BUDDIN J

17 November 2004 REGINA v THIEN TU Judgment 1 BELL J: This is an application for leave to appeal against the severity of sentences imposed by his Honour Judge Maguire (the Judge) in the District Court at Campbelltown on 23 December 2003. 2 The applicant was convicted, following a trial, of one count of armed assault with intent to rob, contrary to s 97(1) of the Crimes Act (the Act) and two counts of aggravated kidnapping, contrary to s 86(2A) of the Act. Each offence carried a maximum penalty of twenty years' imprisonment. 3 The offences were related in that each arose in the course of an incident involving the attempted robbery of the Pizza Hut at Greenfield Park on 17 August 2002. The facts upon which the applicant was sentenced are set out in the judge's reasons for sentence: "On 16 December 1999 the offender started employment with the Pizza Hut at Green filed Park as a kitchen hand. The premises were about two kilometres from his home at St Johns Park. He worked in the kitchen for a time with Morgan Stephens, a teenage girl who had been employed there before the offender started. Later they worked together doing deliveries in his car. After some months, the offender was promoted to shift supervisor. He left the job on 14 November 2001 after clashes with a new manager. It is common ground that the staff door or driver's door at the shop was controlled by a security system which enabled it to be opened from the outside when any person seeking access punched in the code 314. This was only so after another lock had been opened at the start of the day by means of a conventional key. It was common ground that the code referred to had been in place since sometime before the offender resigned and was still in place on 17 August 2002. By that date the manager was on leave and Ms Stephens had been promoted to the offence of assistant manager holding one of two such positions. On that Saturday she arrived at the shop about 8am. She used her key to unlock the first lock and the buttons to unlock the other lock. She then entered the shop. She was followed in a few moments later by Mohamed Kalsina, a kitchen hand. At each entry the door closed automatically behind the staff member concerned. Each was engaged on their separate duties when a few minutes later the offender entered the premises through the same door. Kalsina was at the rear of the shop making dough and Stephens was towards the front using a computer, when the presence of the offender outside the door altered the effect of the morning sunlight falling into the shop. She was not expecting any staff member for some hours. She moved her position to see who might be at the door, but was not able to see who it was because he was standing between her and the morning sun. She saw his hand at the keypad and saw him enter through the doorway. His face was not yet covered by the balaclava that he wore for the rest of the proceedings. He pulled the balaclava down to cover his face but not before she recognised him. She addressed him by name, challenging his presence in the shop. He then put one arm around her and placed a Stanley knife at her throat using the other hand. He then forced her to open the door to admit his accomplice. The second man was also wearing a balaclava. He has never been identified. Later, Stephens recognised the offender's voice. There followed a long series of events occupying perhaps more than an hour during which the two employees were blindfolded, gagged and tied hand and foot. The accomplice was armed with a sawn off double barrel fire arm. The previous night's takings were in the safe and this fact would have been known to the offender as part of the usual management practice of the business. To open the safe would have required Stephens punching a code into the safe, waiting twenty minutes and then punching in the same code again. Her fastenings were loosed to enable her to co-operate in this exercise. For some reason that does not emerge, this attempt failed and further attempts were made at the direction of the offender. Another code was sought by telephone from the other assistant manager, who was at his home. This was done at the direction of the offender. A further attempt as made using this code, but still the safe would not open. At one stage the offender produced a second firearm and held it at Stephens' head. Eventually, the two intruders left the shop, leaving the two employees tied up and face down on the floor. They were able to remove their bonds and seek help at the adjoining shop from where police were called. Ms Stephens nominated the offender to police. She described his bright orange shoes. She was aware of the place of his residence, knowledge she had acquired while doing deliveries with him in the district in the past. She directed Constable Daniel to the rear and to the front of the offender's home and later she recognised the offender's car being driven by him nearby. The constable observed the registration plate and saw an Asian man driving. When police searched the offender's house later in the day they found bedside his bed a pair of shoes that the jury were entitled to infer matched those that Stephens had described. Police also found an invitation to a wedding that was to celebrated locally alter that day. The offender was arrested at the wedding reception. He was interviewed by police. The recording of that interview was admitted into evidence. Significantly he raised an alibi suggesting that he was, for a time, at home alone and thereafter at an amusement parlour at Liverpool. The alibi raised was not supported by any evidence at the trial. The manager of the parlour, who knew the offender as a regular customer, gave cogent evidence denying the offender's presence at the parlour that day. Clearly, the jury reject the defence raised." 4 The applicant was aged 23 years at the date of sentence. He gave evidence at the sentence hearing, maintaining that he was not guilty of the offences. 5 The applicant said that he had been in custody since 17 August 2002. He had observed a stabbing in the MRRC complex. He said that he had come to adjust to the conditions of gaol and undertaken courses as a remand prisoner. It was his intention, on release, to obtain employment and to take care of his mother. 6 The applicant was born in Vietnam. His mother gave evidence at the sentence hearing. She and the applicant left Vietnam when he was an infant. They spent time in a camp in Malaysia before coming to Australia as refugees. The applicant was aged around five years at the time the settled here. 7 The applicant was enrolled in a primary school in Cabramatta. He was dux of the school. He went on to attend high school. During his high school years he obtained part-time employment both to earn pocket money and to help his mother with expenses. She described the applicant as a caring son. 8 A number of references were tendered from members of the Vietnamese community who spoke well of the applicant as a hardworking and conscientious young man. A pre-sentence report was in evidence, together with a report prepared by a psychologist, Susan Freeman. The judge extracted a lengthy passage from the pre-sentence report in his reasons for sentence: "Mr Tu is a twenty-three year old single man who is currently held on remand at the Metropolitan Reman and Reception Centre. Prior to this he was residing with his mother at the family home in the St Johns Park area. Born in Vietnam, Mr Tu is the only sibling from his parent's union. He came to Australia when he was four years of age. He reported that he had the benefit of a supportive upbringing and shares a close relationship with his mother. The offender stated that his parents separated when he was fourteen years of age and has not seen his father for several years. Mr Tu stated that his mother is aware of the current offence and his incarceration and she is devastated, however remains supportive. Discussion with the offender's mother revealed that she misses her son as he was her sole support network. She stated that she had not noticed any difference in her son's behaviour, prior to him coming into custody. She described the offender as a good boy. Prior to coming into custody, Mr Tu has been employed for the previous twelve months as a sales representative at Flemington Markets. He stated that he was receiving a weekly wage totalling $500 plus commission. Mr Tu attended a high school in the St Johns Park area where he completed Year 12 studies and obtained his Higher School Certificate. He claims that he developed lasting relationships with fellow peers and teachers and he continues to assist the school on a monthly basis for sporting activities. Since cessation of school studies Mr Tu has maintained a full time employment with various companies. He has been employed as a sign writer, telemarketer, food distribution, sales representative, fork lift driver and supervisor of a hotel." 9 The Judge referred to the psychologist's report noting that the applicant had a serious gambling problem in earlier years. 10 The sentences are challenged on three grounds: