REGINA v Duong Hoang LUU [2003] NSWCCA 39

New South Wales Court of Criminal Appeal

CITATION : REGINA v Duong Hoang LUU [2003] NSWCCA 39 HEARING DATE(S) : 26/2/03 JUDGMENT DATE : 26 February 2003

JUDGMENT OF : O'Keefe J at 1; Bell J at 2 DECISION : Leave to appeal granted; Appeal dismissed

LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 R v Barton [2001] NSWCCA 63; 121 A Crim R 185 CASES CITED : R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Richards [1981] 2 NSWLR 464 PARTIES : REGINA Duong Hoang LUU (Applicant) FILE NUMBER(S) : CCA 60501/02 COUNSEL : PJP Power SC (Crown) AC Amer (Applicant) SOLICITORS : SE O'Connor Raymond Lee & Company (Applicant)

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/0065 FILE NUMBER(S) : LOWER COURT Job DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60501/02

O'KEEFE J BELL J

26 February 2003 REGINA v Duong Hoang LUU Judgment 1 O'KEEFE J: I will ask Justice Bell if she will deliver the first judgment in this matter. 2 BELL J: This is an application for leave to appeal against the severity of a sentence imposed upon the applicant by Acting Judge Job ("the Judge") following the applicant's conviction at trial on an indictment that charged him with an offence of robbery while armed with an offensive weapon. This offence is provided for by s 97(1) of the Crimes Act 1900 ("the Act"). It carries a maximum penalty of imprisonment for twenty years. 3 The applicant was sentenced to a term of eight years imprisonment to date from 16 May 2002. That sentence will expire on 15 May 2010. The Judge considered that there were special circumstances within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act") that justified a departure from the statutory proportion as between the sentence and the non-parole period. In this respect he took into account that the applicant was aged twenty-one years at the date of the offence and that he had not previously been sentenced to a term of imprisonment. A non-parole period of five years was specified. The first date upon which the applicant will be eligible for consideration for release to parole is 15 May 2007. 4 The facts found by the Judge for purposes of sentence are set out in his remarks on sentence as follows: "The victim Yu Peng Song was a young Chinese student then aged nineteen years of age. He was in the Railway Parade, Burwood at about 2pm on 10 July 2001. Four young Asian men, one of whom was the offender, surrounded the victim. Two of the men were carrying items which the offender believed were large knives wrapped in newspaper. One of the men did say to the victim that he had just come out of gaol. It was the offender who spoke most of all to the victim. He asked the victim to show him his wallet. The victim's wallet was taken from his pocket. When the wallet was opened a Commonwealth Bank keycard was found. The victim then gave the PIN number to the men, after that had been demanded of him. Two of the four men then stayed with the victim whilst the offender and one other went to an ATM machine at the Burwood Hotel. Two withdrawals were made, first of all in an amount of $100 and a minute or so later a further $700 was obtained. There was a further attempt to obtain money which was refused because the $800 limit had been reached. The offender and the other man returned to where the victim was. The victim was told that if he reported the robbery to the police they would find him and the four men then left. The victim went to the Bank and cancelled the card and later on went to the police. At about 3.30pm on that day the offender and another person were spoken to in Marrickville by police. At this time the police located the stolen ATM card on the offender. He told the police that he had been given the card by a friend with the same name as Song. He did say that that had been given to him earlier that day, indeed it was before the actual robbery had taken place. The offender, when later spoken to by police, gave another version as to how he came by the card and again at the trial when the offender gave evidence he gave yet another version as to how he obtained the card. The offender did agree to participate in an identification parade and, on 18 September 2001 he was identified by the victim. This is to my mind an extremely serious offence. It involved a young man lawfully going about his business in the public streets of Burwood in broad daylight when he was surrounded by four men, two of them armed with offensive weapons. Demand is then made of him and threats were made. I do accept however that there was no physical injury occasioned to the victim but it must have been an extremely frightening experience for him. At one stage the victim said that his skin was actually touched by one of the weapons brandished by one of the men. I am satisfied that the offender was not one of the men carrying a weapon but it appears to be that it was he who did most of the talking to the offender." 5 The judge was asked to take into account a further offence set out on a Form 1 in accordance with the provisions of s 32 of the Act. This was an offence of having goods in his custody reasonable suspected of being stolen. It is an offence provided for by s 527C(1)(d) of the Act. The facts concerning this matter are outlined in the Form 1 document as follows: "At around midday on 22 February 2002 the prisoner entered the Cash and Carry pawnbrokers at Marrickville, where he attempted to pawn a Nokia 8310 mobile phone. The prisoner stated to the pawnbroker that he was the owner of the mobile phone and was interested in selling it. A price of $150 was agreed upon, and the pawnbroker handed over the money to the prisoner who signed in the pawnbroker's book having produced his New South Wales driver's licence. A check of police records revealed that the mobile phone in question had in fact been stolen from a handbag at Westfield Hurstville on 18 February 2002 (four days prior to the prisoner pawning the item)." 6 In the light of the challenge made by the applicant it is necessary to note one aspect of the proceedings at trial. On 13 May 2002 the applicant was arraigned and entered a plea that he was not guilty to the single count charged in the indictment. On 15 May 2002 the Judge gave leave to amend the indictment to include an alternative count of robbery in company. The applicant pleaded not guilty to that alternative count. The following day the jury returned a verdict convicting the applicant of the offence charged in count 1, namely, robbery while armed with an offensive weapon. 7 Two grounds of appeal were identified in support of the applicant's challenge to the sentence: Ground 1 The sentence the appellant received was excessive and too severe in all the circumstances. Ground 2 The sentencing judge wrongly assessed salient features of the evidence, made errors of fact, gave insufficient attention to matters which could affect the overall sentence and gave insufficient attention to the ratio between the head and the non-parole sentence. 8 In his written submissions Mr Amer, who appeared for the applicant at trial and on the hearing of this appeal, identified six matters as falling within ground 2. Four of these matters involve a contention that the Judge gave insufficient attention to features of the applicant's case. They do not involve any assertion that the Judge erred in law. To this extent they do not add to the principal ground that the sentence is manifestly excessive. Before turning to a consideration of ground 1, it is convenient to deal with two matters that were developed in support of ground 2. The first was set out in the written submissions in this way: "The victim specifically states in his evidence in chief, page 15 line 25 of the transcript that he could not see what was inside the newspaper; page 16 line 15 that he could not see a blade at all and that he did not receive any injury or cuts at all; page 76 line 20 that he could not be sure that it was a knife at all. The appellant never held anything that resembled an offensive weapon, nor did he use anything that resembled an offensive weapon, nor did he injure the victim at all. The sentencing judge wrongly assessed a salient feature of the evidence, made an error of fact and did not give appropriate weight to these facts. The fact that the Crown added a robbery in company charge to the indictment after the victim gave evidence and the jury asked a question about the victim's testimony when questioned by the Crown as to what was wrapped in the newspaper during their deliberations, indicate that the Crown and the jury had doubts about any offensive weapon being used." 9 The Judge did not approach the proceedings upon the basis that the applicant was in possession of the offensive weapon. He stated his satisfaction that the applicant was not one of the offenders carrying the weapon. The Judge did not proceed upon the basis that the applicant or his co-offenders inflicted any physical injury upon the victim. It was the Crown case that the robbery was carried out by the applicant acting in concert with unknown co-offenders, two of whom were armed with offensive weapons. The submission that (i) the amendment of the indictment to include an alternative count of robbery in company and (ii) the fact that the jury asked a question concerning the offensive weapon, are indicative that both the Crown and the jury entertained doubts that any offensive weapon was used is misconceived and wholly lacking in merit. There is no appeal against conviction. The Judge made findings of fact consistent with the jury's verdict. I am not persuaded that his Honour made any error in this respect. 10 The second matter of which Mr Amer complained in his written submissions, and which he contended during the course of oral argument to fall within the terms of ground 2, is put this way: "The appellant was denied the opportunity to have a pre-sentence report made our (sic) in his favour. While a psychological report and three references were tendered on his behalf, a pre-sentence report may have alluded to matters which may have affected the sentence." 11 The applicant asserts that the sentencing miscarried by reason of the judge's wrong refusal of an adjournment to allow the presentation of a pre-sentence report. His Honour dealt with this matter in the course of his remarks on sentence (at p 4): "I did stand the matter over for sentence from 16 May until today and asked that a pre-sentence report be obtained. The report could not be prepared. There is a note saying that 'Because of the heavy demands of the Service we are not able to comply with that request.' Mr Amer, on behalf of the offender, did ask the matter be adjourned until later so a report could be obtained. Mr Amer told me that there was a psychology report available which he could tender. He has done that and also tendered some reports. I am of the opinion that, although I did ask for a pre-sentence report, that now I have the psychology report which sets out the background and history of the young offender, a pre-sentence report would not be of further assistance." 12 In the light of the way the matter was argued it is appropriate to refer to the transcript of the sentence hearing. Mr Amer make an application that the proceedings be stood over to enable the preparation of a pre-sentence report. He went on to say, (27/06/02, 3.18): "I don't think it's going to make too much difference because obviously he's going to get a custodial sentence but there may be matters in a pre-sentence report the Probation and Parole Service may be fully aware of that I'm not, if I can put it that way, so out of abundant caution I do make an application for a report." 13 Thereafter a number of references and a report prepared by Anna Robilliard, a psychologist, dated 25 June 2002 were tendered in the applicant's case. Ms Robilliard's report contained details of the applicant's background, education, employment history, together with the history given by him of the offence and his attitude towards his role in the commission of it. Ms Robilliard went on to comment on the applicant's physical and mental health and history of alcohol and drug use. She also reported on the results of tests that she administered designed to assess the applicant's level of intellectual functioning and personality structure. Ms Robilliard offered her clinical opinion with respect to a number of matters including the applicant's prospects of rehabilitation. It is apparent from a reading of the transcript that, after the Judge read Ms Robilliard's report the following exchange occurred: "AMER: Thank you your Honour. Your Honour, after you've read the report and the references does your Honour feel that you would need the assistance of a pre-sentence report? HIS HONOUR: Well, I don't know how much further they could take it, would they, from the psychologist's report. AMER: Yes." 14 Mr Amer is not recorded as renewing any application for an adjournment after this exchange. Mr Amer was not able to recall making a further application. 15 I do not consider that there is any merit to the contention that the exercise of the sentencing discretion was vitiated by the Judge's refusal to stand the proceedings over to obtain a pre-sentence report. The application for an adjournment does not appear to have been pressed. The sentence hearing proceeded upon an acceptance that a pre-sentence report in the circumstances of this case was not going to materially add to the evidence led on the applicant's behalf. The Judge considered that no sentence other than a sentence of full time custody was appropriate in this case. It was not submitted that he should have come to another conclusion. There was no need to obtain a pre-sentence report to address the various alternative sentencing options. It is common for pre-sentence reports to set out information obtained by the author as to the offender's background and attitude to the offence. Material of this nature was to be found in Ms Robilliard's report. That material was not the subject of challenge. 16 I turn now to a consideration of the applicant's principal ground, namely that the sentence is manifestly excessive. In written submissions the Crown acknowledges that the sentence imposed upon this applicant was "at the top of the scale." When regard is had to the applicant's age and to the fact that he had not previously been sentenced to a term of imprisonment, the Crown's concession in this respect is well made. The question is whether, in all the circumstances, the sentence falls outside the range of sound discretion. 17 The applicant was born on 23 January 1980. He was aged twenty-one years at the date of the offence. His criminal record consisted of two convictions for the offence of demand money with menaces. Both were recorded at the Downing Centre Local Court on 21 December 2001. He was sentenced in respect of these offences to perform 100 hours of community service work in each case. Both of these offences were committed some three months prior to the subject offence. The Judge noted that one of those offences involved obtaining a credit card from a victim at a time when the applicant was in company with three other young men. The circumstances of that offence bear a number of similarities to the present offences, albeit it was of a less serious nature. The Judge took into account the circumstance that the present offence was committed while the applicant was on bail in relation to these two offences. This circumstance is a matter of aggravation that may call for a severely deterrent sentence: R v Richards [1981] 2 NSWLR 464 per Street CJ at 465. 18 The Judge was required to take into account the further offence set out in the Form 1 document. It was necessary for his Honour to give due recognition to the gravity of that offence in the sentence imposed for the offence of which the applicant was convicted; R v Morgan (1993) 70 A Crim R 368; In R v Barton (2001) NSW CCA 63; 121 A Crim R 185 Spigelman CJ [64] explained how a sentencing court is to take into account a Form 1 matter: "The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences when there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express position in sub-s 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another." 19 The Judge noted that the Form 1 offence was committed on 22 February 2002 after the applicant had been arrested on two prior occasions. He described the Form 1 offence itself as being of a relatively minor nature. He took it into account as evidencing a continued attitude of disobedience to the law such as to make it appropriate to give weight to considerations of personal deterrence in the sentence to be imposed for the subject offence. This was consistent with the observations in Barton to which I have referred. Generally the Judge approached the case upon the basis that a significant element of deterrence was required having regard to the serious nature of the offence. 20 The Judge took into account the following matters in assessing the subjective features of the applicant's case. The applicant was born in Vietnam. He was aged eleven when he and his family came to Australia. He commenced school in Year 5 at a time when he spoke no English. This had caused him some difficulty. He completed his Higher School Certificate. He worked from 1996 on a part time basis selling computer hardware and software at markets. He also worked at a restaurant in Chinatown most Friday and Saturday nights. He had enrolled in a course at the St George TAFE but left after a time because he had commenced to associate with "guys in the city" and wanted to spend time with them rather than attending College. 21 The applicant commenced using heroin. By August 2000 he found himself with a heroin habit costing him up to $50 per day. He had borrowed money from his family in order to purchase heroin. The family found out about his addiction around December 2000 and thereafter refused the applicant's requests for money. 22 Ms Robilliard reported that the applicant when asked about how he felt about the offences replied that he did not think about them. When asked to reflect on how he thought the victim may have felt he responded "Frightened", adding that he had not thought about that at the time. Ms Robilliard reported that the applicant did express guilt and remorse over the impact of his behaviour on his family. She was of the opinion that the applicant is of average intelligence. Ms Robilliard considered that the applicant had unrealistic plans at the present time in respect of his drug problem. The applicant had told Ms Robilliard he thought he would go to Taiwan (where he knew no one) in order to make a fresh start. The Judge noted that Ms Robilliard thought the applicant's behaviour was of relatively recent origin and that his prognosis was positive provided he accepted the seriousness of his drug addiction and took appropriate action. His Honour took into account the contents of the three personal references each of which spoke highly of the applicant. His Honour noted the evidence of the applicant's mother that she was extremely upset and distressed over her son's behaviour and that she will continue to provide support to him on an ongoing basis. 23 The Judge referred to the guideline judgment in R v Henry (1999) NSW CCA 111; 46 NSW LR 346 correctly stating the principles enunciated therein. It is appropriate to set out a portion of the judgment of Spigelman CJ in Henry in that case at [162] – [165]: "[162] It appears from the cases that come to this Court, including the present proceedings, that there is a category of case which is sufficiently common for purposes of determining a guideline: