New South Wales Court of Criminal Appeal CITATION : R v Dang [2003] NSWCCA 338 HEARING DATE(S) : 11 November 2003 JUDGMENT DATE : 20 November 2003 JUDGMENT OF : Barr J at 1; Miles AJ at 13 DECISION : Leave is granted to appeal against the sentence. The appeal is dismissed. CATCHWORDS : Criminal law - sentencing - armed robbery CASES CITED : R v Henry [1999] NSWCCA 111 R v Thompson; R v Houlton [2000] NSWCCA 309 PARTIES : Regina Alan Andrew Dang FILE NUMBER(S) : CCA 60257/03 COUNSEL : Applicant: M Thangaraj Crown: E A Wilkins SOLICITORS : Applicant: D J Humphries Crown: S E O'Connor LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0763 FILE NUMBER(S) : LOWER COURT Taylor DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 060257/03 BARR J MILES AJ Thursday, 20 November 2003 Alan Andrew DANG v R Judgment 1 BARR J: The appellant, Alan Andrew Dang, seeks leave to appeal against a sentence imposed in the District Court. He pleaded guilty in the Local Court to one count of robbery while armed with an offensive weapon. He was committed to the District Court for sentence and was there sentenced to imprisonment for four years and six months. A non-parole period of two years and six months was fixed. 2 At 4:15am on 22 January 2002 the applicant entered a convenience store in Haymarket, Sydney armed with a knife. At knifepoint he stole a quantity of cigarettes, phone-cards, a mobile telephone and the contents of the cash drawer totalling $350-odd. The person in charge of the store managed to telephone the police before the applicant left. As he ran away the person in charge and another employee followed him and hailed certain officers of the Royal Australian Naval Police, who were passing by. Security cameras operated by the Sydney City Council recorded the applicant running away from the scene, pursued by those officers. As he ran he dropped the bags containing the stolen property. Eventually he was cornered by his pursuers, still armed with the knife. Members of the New South Wales Police Service arrived. The applicant held them off with the knife. One of the officers drew a pistol and it was only then that the applicant dropped the knife. The officers tried to search him but he resisted them and kicked one of them. 3 After his arrest he co-operated with the police. He made full admissions in a recorded interview. He said that he had planned the robbery as he was walking around the district. He pleaded guilty in the Local Court. 4 The sentencing judge found that the applicant was born on 9 July 1982, so he was 20 years of age when sentenced. He had no previous convictions. He had started using heroin in high school and had become addicted to its use. He was under the influence of the drug at the time of this offence. Since his arrest he had tried, though unsuccessfully, to rid himself of his addiction. His Honour found him genuinely remorseful and concluded that his prospects of rehabilitation were good. Having mentioned all these favourable matters his Honour noted the early plea of guilty and said that he would discount the sentence by twenty-five percent. However, his Honour did not expressly limit that proportion to the utilitarian value of the plea. 5 There are two grounds of appeal, namely- 1. His Honour erred in his application of the guideline judgments of Henry (1999) 46 NSWLR 346 and Thompson and Houlton (2000) 49 NSWLR 383 by failing to discount adequately for the plea of guilty. 2. The sentence was manifestly excessive. 6 In R v Henry [1999] NSWCCA 111 it was held that where certain features of the offence of armed robbery are present an appropriate range for sentence is between four and five years' imprisonment. Aggravating and mitigating features would justify a sentence over or under that range. In R v Thomson; R v Houlton [2000] NSWCCA 309 this Court said that the utilitarian value of a plea of guilty should generally be assessed in the range between ten and twenty-five percent discount on sentence. The primary consideration which determines where in the range the discount falls is the timing of the plea. 7 The present appeal contained features of the kinds mentioned in R v Henry & Ors, namely the applicant was a young offender with no or little criminal history, he was armed with a knife, there was a limited degree of planning, there was limited actual violence but a real threat thereof, the victim was in the vulnerable position of a shopkeeper, a small amount of money was taken and there was a plea of guilty, the significance of which was limited by the strong Crown case. 8 It was submitted that in addition the following factors, which were present, were significant- 1) The applicant was under the influence of drugs at the time of the offence, so his capacity to exercise judgment was affected. 2) His addiction to heroin would require treatment and support. The prospect of rehabilitation was good. 3) The applicant had served some period of custody in protection and there was a possibility that he would have to spend more. 9 It was submitted that his Honour must have begun with a head sentence of six years in order to arrive after a discount of twenty-five percent at a head sentence of four years six months. A head sentence of six years was outside the range mentioned in R v Henry & Ors. So, it was submitted, his Honour fell into error, especially in view of the factors mentioned in the previous paragraph. The early plea of guilty and the finding of genuine remorse should have produced a sentence low in the R v Henry range. 10 In my opinion the submissions mistake the effect and intention of the judgment in R v Henry & Ors. The reliance on the judgment is inappropriate. As Spigelman CJ said at para 29- A guideline judgment on the subject of sentencing should not lay down a requirement or anything in the nature of a rule. The failure to sentence in accordance with a guideline is not itself a ground of appeal. Guidelines are not rules of universal application. They may be departed from when the justice of a particular case requires such departure. I made this clear in R v Jurisic when I said: "Such guidelines are intended to be indicative only. They are not intended to be applied in every case as if they were rules binding on sentencing judges. Decisions of appellate courts on sentencing are not to be treated as binding precedents." In this respect I refer to my adoption of R v Jurisic (at 220) of the analysis by Dunn LJ in R v De Havilland (1993) 5 Cr App R (S) 109 at 114, to the effect that decisions on sentencing are not authorities binding on lower courts in the way decisions on substantive law are binding. I went on to say (at 220-221): "…such guidelines are not binding in any formal sense. They represent a relevant indicator, much as trial judges have always regarded statutory maximum penalties as an indicator." Nevertheless, where a guideline is not to be applied by a trial judge, this Court would expect that the reasons for that decision be articulated, so that the public interest in the perception of consistency in sentencing decisions can be served and this Court can be properly informed in the exercise of its appellate jurisdiction. 11 His Honour gave careful and detailed reasons for imposing the sentence. In my opinion the sentence was entirely within the proper range of his Honour's discretion. It has not been made to appear that it was manifestly excessive. I would reject the submission that the fact that the applicant was under the influence of a drug at the time of the offence mitigates his criminality. His Honour considered that he did not. I think that his Honour was correct. 12 I would grant leave to appeal but would dismiss the appeal. 13 MILES AJ: I agree. 14 BARR J: Leave is granted to appeal against the sentence. The appeal is dismissed. ********** Last Modified: 12/05/2003 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.