New South Wales Court of Criminal Appeal CITATION: Shu Qiang LI v R [2005] NSWCCA 442 HEARING DATE(S): 13/12/2005 JUDGMENT DATE: 13 December 2005 JUDGMENT OF: Grove J at 1, 54; James J at 2; Simpson J at 55 DECISION: Leave to appeal granted. Appeal allowed. Applicant re-sentenced (see par 51) CATCHWORDS: CRIMNAL LAW – sentence - offence of aggravated detaining for advantage – whether the sentencing judge erred in failing to differentiate between the applicant and a co-offender who was charged under a different section of the Crimes Act, which carried a different maximum sentence – whether the sentencing judge erred in imposing a sentence above the middle range when the sentencing judge found the offence to be in the middle range of seriousness – whether in all the circumstances the sentence is manifestly excessive – parity LEGISLATION CITED: Crimes Act R v Lardner, unreported, NSWCCA, 10 September 1998 CASES CITED: R v Newell [2004] NSWCCA 183 PARTIES: Shu Qiang LI v R FILE NUMBER(S): CCA 2005/701 B Murphy - Applicant COUNSEL: Ms N Noman - Crown Ren Zhou - Applicant SOLICITORS: S Kavanagh - Crown LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/11/1084 LOWER COURT JUDICIAL OFFICER: Judge Goldring IN THE COURT OF CRIMINAL APPEAL 2005/701 GROVE J JAMES J SIMPSON J TUESDAY 13 DECEMBER 2005 SHU QIANG LI v R JUDGMENT 1 GROVE J: The court is in a position to give judgment on this appeal. I will ask Mr Justice James to give the first judgment. 2 JAMES J: Shu Qiang Li applies for leave to appeal against a sentence imposed on him in the District Court on 22 July 2004 by his Honour Judge Goldring for an offence of aggravated detaining for advantage, to which he had pleaded guilty. Aggravated detaining for advantage is an offence under s 86(2) of the Crimes Act, for which the maximum penalty is imprisonment for twenty years. 3 Under s 86(2) it is a circumstance of aggravation if the offence is committed in the company of another person or persons or if, at the time of or immediately before or after the commission of the offence, actual bodily harm is occasioned to the victim. Under s 86(3) a person is guilty of the offence of specially aggravated detaining for advantage, if both of the circumstances of aggravation stated in sub-s (2) are present. 4 There is no doubt that the offence of detaining for advantage committed by the applicant was committed in the company of other persons and, therefore, although not explicitly stated in the sentencing judge's remarks on sentence, I conclude that the applicant pleaded guilty to the aggravated offence, and not the specially aggravated offence, on the basis that the offence to which he was pleading guilty was committed in the company of other persons but did not include the occasioning of actual bodily harm to the victim. 5 The applicant asked the sentencing judge to take into account, and the sentencing judge took into account, in sentencing the applicant an offence of aggravated demanding of money with menaces, an offence under s 99(2) of the Crimes Act, for which the maximum penalty is imprisonment for fourteen years. 6 For the offence of aggravated detaining for advantage and taking into account the offence of aggravated demanding of money with menaces, his Honour imposed a sentence of a non-parole period of three years nine months, with a total sentence of five years four months, commencing from 13 May 2003, the date on which the applicant had been taken into custody and from which he had remained in custody. 7 At the same time that Judge Goldring sentenced the applicant he also sentenced a co-offender named Wu. Wu had stood trial and had been found guilty of the offence of specially aggravated detaining for advantage, that is an offence under s 86(3) of the Crimes Act, and an offence of aggravated demanding of money with menaces. 8 For the offence of specially aggravated detaining for advantage, Judge Goldring imposed a sentence consisting of a non-parole period of four and a half years and a balance of term of three and a half years, making a total sentence of eight years, commencing on 9 December 2003, the date on which Wu had been taken into custody. For the offence of aggravated demanding of money with menaces his Honour imposed on Wu a fixed term of imprisonment of three years commencing on 9 December 2003. 9 On other occasions Goldring DCJ sentenced two other co-offenders. On 22 April 2004 his Honour sentenced an offender named Quinn for the offence of specially aggravated detaining for advantage, that is an offence under s 86(3) of the Crimes Act, and taking into account an offence of aggravated demanding of money with menaces, to a non-parole period of three years and a balance of term of one and a half years, making a total term of four and a half years commencing on 10 February 2004. 10 On 18 March 2005 his Honour sentenced an offender named Lin for an offence of aggravated detaining for advantage, that is an offence under s 86(2) of the Crimes Act, and taking into account an offence of aggravated demanding of money with menaces, that is the same offences as in the case of the applicant, to the same sentence as he had earlier imposed on the applicant, that is a non-parole period of three years nine months and a balance of term of one year and seven months. The sentence imposed on Lin commenced on 29 May 2003 , the date Lin had been taken into custody. 11 In sentencing the applicant and Wu Judge Goldring delivered a single joint set of remarks. In these remarks his Honour summarised the facts of the offences committed by the applicant and Wu and the following statement is derived from his Honour's summary. 12 The victim of the offences, like Wu and the applicant, was a young man from China who had come to Australia as a student. Early in 2003 the victim met Wu and Lin at a karaoke club in Chinatown. 13 On 29 April 2003 the victim was at a language school in the Imperial Arcade building in central Sydney. The victim received a telephone call from the mobile telephone of the applicant. After the call finished the victim was told by a young woman that someone wanted to see him. The victim met the offender Lin. 14 The victim was told by Lin to follow him to a toilet in the building and the victim did so. In the toilet Lin told the victim that as a result of an overseas car accident, the victim owed a friend of Lin $20,000. The victim denied that he owed any money. 15 A number of other young men, including Quinn, entered the toilet. The victim was told to accompany the group into Pitt Street Mall. In the Pitt Street Mall the applicant and Wu joined the group. A suggestion was made that all the members of the group, including the victim, go to the karaoke club in Chinatown. The applicant told the victim that he would be able to protect the victim. All the group went in taxis to Chinatown. 16 In the karaoke club Lin demanded that the victim place his mobile phone and wallet on the table in the room they were in. Lin searched the wallet and took $70 in cash and a keycard from the wallet. Lin demanded a PIN number for the keycard and the victim gave Lin a number. Lin told Quinn to take the card to an automatic teller machine and access the victim's account. 17 Lin then gave the victim's mobile telephone back to him and demanded the victim make telephone calls to raise the money which was being demanded of him. The victim made a number of telephone calls. While he was making the calls Lin slapped the victim and told him to make the calls more rapidly. One person he called promised to provide $200. 18 Quinn returned and said that the PIN number which the victim had provided was incorrect. Lin then punched the victim in the face. His Honour recorded, "It is said that the applicant said 'Don't punch him'". 19 The victim provided another PIN number. Lin directed an unidentified member of the group to attempt to access the automatic teller machine with that number. This member of the group ultimately returned and said the number which had been provided was incorrect. Lin then punched the victim in the face and kicked him in the ribs. An unidentified male pulled out a knife and threatened to chop off the victim's fingers, if he did not provide the correct PIN number. 20 The victim asked the applicant to assist him in obtaining the money. The applicant said that he (the applicant) could write out an IOU to the other offenders and the victim could write out an IOU in favour of the applicant, promising to pay him $15,000 by 6 May 2003. Lin said that security from the victim was required and the victim said he would give a laptop computer he had at his home to the applicant. 21 The friend of the victim who had agreed to provide $200 arrived and paid over the $200. The friend observed that the victim's eyes and face were red and that he appeared upset and scared. Wu threatened the victim and told him he needed to pay the money to the applicant. Lin told the victim not to report the matter to the police. The applicant and two other members of the group then went with the victim to his home and obtained the victim's computer. The victim was apparently allowed to remain at his home. After the offenders had left the victim's home, the victim told his host family what had happened and police were notified. 22 Over the next few days there were a number of legally intercepted telephone calls between the applicant and the victim, in which the applicant made demands for money. It was agreed in the course of those telephone calls that on 13 May 2003 the victim would pay the applicant $15,000 and the applicant would return the computer and the IOU note the victim had written. 23 On 13 May 2003 police conducting surveillance of the victim observed that the applicant was nearby. A number of telephone calls were made by the applicant to the victim. Ultimately, while the applicant was still nearby, Quinn obtained money from the victim and returned the computer and the IOU note to the victim. Quinn was arrested. The applicant, after attempting to escape, was also arrested. Lin was arrested some days afterwards. Wu was not arrested until December 2003. 24 In his remarks on sentence his Honour made various comments about the offences. His Honour considered that there had been a "carefully planned and executed extortion". There had been a pretence on the part of the applicant and of Wu to help the victim but his Honour found that the applicant and Wu "clearly knew exactly what was going on and took part in it". 25 In his remarks on sentence his Honour said at p 7: "This is a joint criminal enterprise in the true sense. All the offenders knowingly took part in it and, on the evidence before me, both Li and Wu are equally culpable. If individuals play different roles in the operation it is clear that they all knew exactly what was going on and were complicit in it. Only one of the offenders before me at the moment, Mr Lin, actually used violence against the victim but all were present at this time, all were present when the victim was struck and when a threat was used to cut off his fingers with a knife which was produced at the time". 26 His Honour found that the victim was a young man from China, in Australia as a student, with no family in Australia, and who was vulnerable. 27 His Honour said: "The two offences of which Mr Wu has been convicted, especially aggravated detain for advantage and the demanding money with menaces, were offences that arose out of the same facts. The actual detention lasted for about three hours at the most but the offence in my view continued for more than a week during which time the offender Li continued to contact the victim and demand money from him and, as the Crown put, this was a continuing offence". 28 His Honour then said: "It seems to me that it is rather artificial to separate the two offences although technically they are there. It is my view that, although the offences of which these two men have been convicted are technically different and Mr Wu has been convicted of two separate offences while Mr Li asked me to take account of the second one on a Form One, in practice will make very little difference to the sentences they receive. They are separate offences but they are clearly part of the same episode of criminality and it is, in my view, not possible to separate them so that the sentences that I impose on Mr Wu should be other than totally concurrent". 29 His Honour noted that the applicant's legal representative had pointed out that on the agreed facts the applicant had urged the other offenders not to punch the victim but his Honour added that: "He, the applicant, did concede that he knew that what was going on was wrong and, as I have said, this is a joint criminal enterprise in which all are equally culpable." 30 His Honour found that the two offenders, Wu and the applicant, had similar subjective circumstances. Each was a young man born in China, who had come to Australia as a student, who had no previous criminal record and who would find imprisonment more than usually onerous because of his limited knowledge of English. His Honour said that he would find special circumstances in favour of each offender, the special circumstances being the same in each case. 31 The applicant had, of course, pleaded guilty. His Honour accepted that the plea of guilty had been entered at the first possible opportunity but added that the plea of guilty had been entered: "...in view of an overwhelming Crown case and it seems to me that an appropriate discount is not the full twenty-five per cent." 32 I note that the reason given by his Honour for not allowing a discount of twenty-five per cent was erroneous. However, the discount actually allowed by his Honour was very close to twenty-five per cent - to be precise, 23.8 per cent. 33 At pages 12 and 13 of his remarks on sentence his Honour said: "As I indicated earlier, I do not regard these matters as being anything more than the middle range of seriousness for this offence. I have been referred to some other cases in the Court of Criminal Appeal which have arisen under this section of the Crimes Act and to some statistics but, in my view, they are of absolutely no help whatever, because the circumstances in those cases are quite different from the circumstances before me. One of the cases appears to be more serious in that there was more serious injury to the victim but I cannot lose sight of the fact that in this case Chris Lin was punched and there was evidence from a doctor that he had received some physical injuries. More seriously, I think, he was injured psychologically in a very serious way. The young man who lent him the $200 saw in the course of his detention that he was upset ." 34 The written grounds of appeal against sentence contain the following grounds: "1. His Honour erred in failing to differentiate between the accused Li having been charged under s 86(2) of the Crimes Act and the accused Wu having been charged under s 86(3) of the Crimes Act, there being two different maximum sentences applicable. 2. His Honour erred in that, whilst finding the matters were in the middle range of seriousness for these offences, he imposed a sentence that is well above the middle range for the seriousness of offences of this type. His Honour also found that the victim was injured psychologically in a very serious way but there is no evidence of that. 3. The sentence imposed is, in all the circumstances, manifestly excessive. 4. There is a lack of parity between the sentences of the Appellant and Wu and Quinn". 35 On the hearing of the application the only ground of appeal which was really pressed by counsel for the applicant was an aspect of the fourth ground. I will, however, refer fairly briefly to other grounds. Ground 1: As was submitted by the Crown, his Honour, at the beginning of his remarks on sentence, clearly and accurately distinguished between the applicant and the co-offender Wu. His Honour noted that the applicant had pleaded guilty to an offence under s 86(2) of the Crimes Act and had asked the court, in sentencing the applicant for the offence under s 86(2), to take into account an offence under s 99(2). Wu, on the other hand, had been found guilty of an offence under s 86(3) and had also been found guilty of an offence under s 99(2). 36 Later in his remarks on sentence his Honour maintained a distinction between the two co-offenders by finding that an appropriate total sentence to impose on Wu was imprisonment for eight years and that an appropriate total sentence to impose on the applicant, apart from his plea of guilty, would have been a lesser term of seven years. 37 There are, however, a number of indications in his Honour's remarks that his Honour did not constantly keep in mind that, while he was sentencing Wu for the offence of specially aggravated detaining for advantage, he was sentencing the applicant for the different and less serious offence of aggravated detaining for advantage. I have already referred to a number of relevant passages in his Honour's remarks on sentence. However, on the hearing of the application counsel for the applicant abandoned any submission that the difference between the sentence imposed on Wu, eight years, and the sentence his Honour would have imposed on the applicant but for his plea of guilty, of seven years, insufficiently recognised the differences between the two offenders. In these circumstances I will not say anything more about the first ground of appeal. Ground 2: 38 In his remarks on sentence his Honour said: "I do not regard these matters as being anything more than the middle range of seriousness for this offence." 39 A complaint was made on behalf of the applicant that his Honour, having found that the objective seriousness of the offence was no higher than the mid range of objective seriousness for offences of this kind, had then imposed sentences which were above the mid range of sentences which have been imposed in other cases for these offences. 40 However, his Honour was referred to only a very few other cases and it was open to his Honour to take the view which he did, that because there were only a very few other cases, the sentencing statistics provided to his Honour were of no or little assistance and also to take the view that the "other cases" to which his Honour was referred were of no or little assistance, because the facts of those cases were quite different from the facts of the present case. 41 The Crown referred, properly, to R v Newell [2004] NSWCCA 183 in which Howie J, with the concurrence of the other members of the court, said at para 43: "The Court has been referred to statistical information, notwithstanding that the applicant's solicitor appreciates its limited value. Statistical information may have value in an appropriate case to indicate a range of sentences for offences where there is a predictable similarity in the conduct amounting to the offence. I doubt that offences under s 86 will be sufficiently homogenous that a reference to statistics alone will be of much assistance. But even if a range could be established, it does not follow that a sentence for a particular offence or offender has to fall within that range. It is merely a sounding board upon which a particular sentence may be judged. In this case there is nothing in the material that makes this particular sentence ring untrue". 42 The sentence which his Honour would have imposed on the applicant before allowing for the applicant's plea of guilty, would have been seven years, which is well below the mid point of the sentences available under the statutory maximum. 43 I would reject this ground of appeal. 44 A matter which was not pressed by counsel for the applicant was that his Honour had erred in making a finding that the victim had been injured psychologically in a very serious way. It had been submitted that there was no evidence to support this finding and there would not appear to be any evidence to support it. The only ground for the finding given by the sentencing judge was that the young man who went to the club and provided $200 saw that the victim was upset. It is true that courts have been prepared to find, in the absence of direct evidence, that victims of certain crimes, for example child victims of sexual assault, would have suffered psychological harm. However, I do not consider in the present case that his Honour was warranted in finding that the victim had been injured psychologically in a very serious way, without evidence going beyond evidence merely to the effect that the victim "had appeared upset" during the course of the detention. 45 A further matter is that, if the victim had been injured psychologically in a very serious way, going beyond merely transient emotions, feelings and states of mind, that would be likely to have amounted to "actual bodily harm" (see R v Lardner, unreported, NSWCCA, 10 September 1998). Actual bodily harm to the victim was, of course, not an element of the offence for which the sentencing judge was sentencing the applicant. 46 Ground 3: 47 As previously stated, the number of other cases is very small and, accordingly, the sentencing statistics are of little value. The facts of the present case are, as counsel for the Crown submitted, significantly different from the facts of other cases to which the court was referred. I would not be prepared to find that the sentence imposed on the applicant was manifestly excessive, particularly having regard to the fact that his Honour, in sentencing the applicant for the offence of aggravated detaining for advantage, had to take into account the serious further offence of aggravated demanding of money with menaces, in the commission of which the applicant played a leading role. 48 Ground 4: 49 Counsel for the applicant submitted that there was a lack of proper parity or proportionality between the sentence passed on the applicant and the sentence passed on Wu. It was not submitted that there was a lack of proper parity or proportionality between the head sentences imposed on the two offenders. However, it was submitted that there was a lack of proper parity or proportionality between the non-parole periods set for the two sentences. 50 As I have already sought to demonstrate, his Honour found special circumstances in favour of each of the offenders, in the same circumstances; that is, that each of the offenders was a young man who had come to this country as a student, who had no previous criminal record, who had good prospects of rehabilitation and who, because of his limited knowledge of English, would find imprisonment more than usually onerous. 51 However, his Honour divided the total sentence of eight years imposed on Wu into a non-parole period of four and a half years and a balance of term of three and a half years, that is a ratio of non-parole period to total sentence of about fifty-six per cent. In the case of the applicant, his Honour divided the total sentence of five years four months into a non-parole period of three years nine months and a balance of term of one year seven months, that is a ratio of non-parole period to total sentence of about seventy per cent. 52 It seems to me that the applicant has a valid ground of complaint, that the sentencing judge, having found in his favour that there were special circumstances, gave very little effect to that finding in the sentence he actually passed on the applicant. Furthermore, the circumstances which his Honour found to be special circumstances being the same in the case of both offenders, his Honour gave no explanation in his remarks on sentence of why he had adopted such different ratios of non-parole period to total sentence in sentencing the two offenders. 53 I would grant leave to appeal and I would allow the appeal to the limited extent of varying the non-parole period. I would propose that leave to appeal be granted; that the appeal against sentence be allowed; that the sentence imposed by his Honour Judge Goldring on 22 July 2004 be quashed; and that in lieu thereof a non-parole period should be set of three years and three months commencing on 13 May 2003 and expiring on 12 August 2006, and a balance of term of two years one month commencing on 13 August 2006 and expiring on 12 September 2008. The earliest date on which the applicant would be eligible for release on parole is 12 August 2006. 54 GROVE J: I agree with Mr Justice James. 55 SIMPSON J: I also agree. 56 GROVE J: The orders of the court will be as Mr Justice James has proposed. It is noted that the sentence now imposed takes into account the matter on the Form One. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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