New South Wales Court of Criminal Appeal CITATION: REGINA v John Shaopeng YIN [2005] NSWCCA 138 HEARING DATE(S): 24 November 2004 JUDGMENT DATE: 15 April 2005 JUDGMENT OF: Sully J at 1; Dunford J at 2; Hidden J at 3 DECISION: Leave to appeal granted, appeal dismissed. CATCHWORDS: CRIMINAL LAW: Application for leave to appeal against sentence - Multiple charges of armed robbery - Whether adequate allowance for pleas of guilty, special circumstances - whether sentences, in the aggregate, manifestly excessive Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Regina v Thomson and Houlton (2000) 49 NSWLR 383 Regina v Henry (1999) 46 NSWLR 346 CASES CITED: Regina v Simpson (2001) 53 NSWLR 704 Pearce v The Queen (1998 194 CLR 610 REGINA - Crown (Respondent) PARTIES: John Shaopeng YIN - (Applicant) FILE NUMBER(S): CCA 2004/1805 Ms D Woodburne - Crown (Respondent) COUNSEL: Mr C Smith - (Applicant) S Kavanagh - Crown SOLICITORS: S E O'Connor - Applicant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/21/0179 LOWER COURT JUDICIAL OFFICER: Tupman DCJ IN THE COURT OF CRIMINAL APPEAL 60284/2004 SULLY J DUNFORD J HIDDEN J Friday 15 April 2005 REGINA v John Shaopeng YIN Judgment 1 SULLY J: I agree with Hidden J. 2 DUNFORD J: I agree with Hidden J. 3 HIDDEN J: The applicant, John Shaopeng Yin, pleaded guilty before Tupman DCJ to three counts of robbery whilst armed with a offensive weapon (s97(1) of the Crimes Act) and four counts of robbery whilst armed with a dangerous weapon (s97(2) of the Act). Those offences carry respectively maximum sentences of twenty years and twenty-five years imprisonment. He also asked her Honour to take into account on a Form 1 three further charges of robbery whilst armed with an offensive weapon, one charge of robbery whilst armed with a dangerous weapon and a charge of assault with intent to rob whilst armed with a dangerous weapon. Her Honour imposed sentences which, in the aggregate, amounted to imprisonment for eleven years with a non-parole period of eight years and three months. The applicant seeks leave to appeal against those sentences. At the hearing the Court granted him an extension of time to do so. Facts 4 A useful summary of the facts of the various offences and the sentences imposed is to be found in the written submissions filed on behalf of the respondent Crown, as follows: Charge 1 – robbery armed with offensive weapon (knife) s97(1) Crimes Act committed 16 August 2002. At 4.15pm the applicant and a co-offender entered a massage parlour in Five Dock. There the applicant produced a knife and ordered the 3 occupants to lie on a bed. The applicant removed the receptionist Mr Dong's watch, before tying him and the 2 female employees' hands with bed sheets that had been torn up by the second male. Both offenders were armed with a knife. The applicant searched Mr Dong's pocket and removed $50. A mobile phone was taken out of each victim's bag and $550 cash was removed from a locked drawer with a key taken from Mr Dong. Mr Dong identified the applicant during a picture identification procedure. The sentence imposed was a fixed term of imprisonment of 4 years and 6 months, backdated to commence on 8 October 2002, that being the date the applicant had been taken into custody on his initial arrest. Charges 2 & 3 – 2 x robbery armed with offensive weapon (knife) s97(1) Crimes Act, together with Form 1 containing 3 x robbery armed with offensive weapon (knife), committed on 23 August 2002. Ms Kanthanong was working on reception at a massage parlous in Narwee when she received two telephone calls from a Mandarin speaking male who sought directions. At about 4pm the applicant and his co-offender entered the premises. They enquired about prices and she recognised one of their voices as being the earlier caller. The applicant and his co-offender left and returned shortly afterwards, both men were armed with a knife. Ms Kanthanong and 2 employees were rounded up at knifepoint. The applicant removed another employee and a client from a bedroom at knifepoint. The 5 were assembled together, tied up and searched. $120 cash and a gold wristwatch were taken from Ms Kanthanong (Charge 2); $100 in cash together with an electronic dictionary and a mobile phone was taken from Ms Kwong's bag (Charge 3). Ms Ying had $140 in cash and two mobile phones stolen (Form 1). Ms Ding had two mobile phones and $100 in cash stolen (Form 1). One of the two offenders then went into the bedroom and searched Mr Karakazois' belongings. His mobile phone, house keys and a wallet containing $50 were stolen (Form 1). The victims were continually threatened and demands made for more money. The female victims each identified the applicant. Her Honour found that the applicant's blood was found at the scene. The co-offender's mobile phone records showed calls being made to the massage parlour. The sentence imposed on each offence was a fixed term of 6 years imprisonment, each term to commence on 8 April 2003. Charge 4 – robbery whilst armed with a dangerous weapon (firearm) s97(2) Crimes Act, together with Form 1 containing 1 x robbery whilst armed with a dangerous weapon (firearm), committed on 26 August 2002. The day before the offence Mr Zhi Liang Yuan, the proprietor of a massage parlour in Matraville received a number of telephone enquiries from a male who asked if Chinese women worked there and sought directions. On 26 August 2002 the same caller rang and said that he would be attending shortly and bringing a friend. Twenty minutes later the applicant and his co-offender entered the premises. Mr Yuan recognised the voice of one of them as that of the caller. Mr Yuan was pushed in the back and when he turned he saw that one of the offenders held a handgun. The other offender had a knife. Her Honour was not able to distinguish which weapon the applicant held. Mr Yuan handed him his wallet. The applicant and his co-offender then tied Mr Yuan's and his 2 employees' hands with cable ties and ordered them to sit on the couch. Mr Yuan was searched and $1,200 and two mobile phones removed (Charge 4). Mr Yuan was told that they had been sent by their boss and challenged the fact that he had set up business. He was told that they would return the following week to collect more money and that they knew where he lived. Ms Feng, who was working at the premises at the time, had a gold chain taken from her neck and $15 in cash removed from her wallet (Form1). The sentence imposed was a fixed term of 6 years imprisonment to commence on 8 October 2003. Charge 5 – robbery whilst armed with a dangerous weapon (firearm) s97(2) Crimes Act, committed on 8 September 2002. At approximately 10.45am Ms Shelly Chow, the receptionist at a massage parlour in Broadway received a telephone enquiry asking how many girls were working and if they were Chinese. At about 11am the applicant and his co-offender entered the premises separately. The first man pushed Ms Chow into the bedroom and told her to sit on the bed. He produced a knife. An employee, Sissy was then forced into the room. She tried to run away but was pushed onto the ground. She was then told to sit near Ms Chow. Both women were forced to go to the reception area, where their hands and legs were tied to each other with strips torn from a jumper. Ms Chow's necklace was taken from her neck and $130 in cash from her purse (Charge 5). Ms Chow was able to identify the applicant during a photographic line-up. The sentence imposed was a fixed term of 6½ years imprisonment to commence on 8 October 2003. Charge 6 – robbery whilst armed with a dangerous weapon (firearm) s97(2) Crimes Act, together with Form 1 containing 1 x assault with intent to rob armed with a dangerous weapon, committed 29 August 2002. At about 1pm the applicant and his co-offender went to a massage parlour at Rydalmere. The owner, Ms Minh Lu explained that both employees were currently with customers. When the customers left, one of the offenders produced a gun and directed the three women to the waiting room and told them to sit on the sofa. One of the offenders removed a gold chain from Ms Lu's neck and a ring from her finger. Ms Wei Huang told the offender that her necklace was a fake – the offender said that he did not want it (Form 1). Ms Huang then said that her phone was very old. The offender said that he was not going to take anything from the girls as his boss only had problems with the boss. The other offender went into the waiting room and started going through things there. The offender who had taken her jewellery left the room and returned with a towel that he used to tie the women's wrists behind their backs. Ms Lu was taken into another room and was asked where the business money was kept. Ms Lu's wallet and $500 in cash was taken from a drawer. Ms Lu was then taken back to the other girls and their ankles were tied to each other. Before they left one of the offenders said that they were told by their boss to come here. When they untied themselves Ms Lu realised that they had taken $1,100 in cash and her phone from her bag (Charge 6). Ms Lu's mobile phone was later sold in Fairfield and the buyer was able to identify the co-offender from a photographic line up. The sentence imposed was a fixed term of 7 years imprisonment to commence on 8 January 2004. Charge 7 - robbery whilst armed with a dangerous weapon (firearm) s97(2) Crimes Act, committed 8 October 2002. Just after 4am on 8 October 2002 Tien Le and his friend, Nguyen Nguyen finished baking in the Yagoona Hot Bread Shop and opened the store for business. The applicant entered, pointed a gun at Mr Nguyen and demanded money. When he was told there was no money the applicant demanded their wallets. Mr Le produced his wallet that contained $3 in change. The applicant then ordered both men outside to Mr Nguyen's car where Mr Nguyen produced his driver's license and said that he had no money. The applicant followed them back to the shop with the gun at their backs and told them he would shoot if they ran. Back in the shop a struggle ensued and the applicant was overpowered after a struggle. The police arrived a short time later and he was arrested. The police discovered a replica pistol on the footpath. For that offence her Honour imposed a sentence of seven years imprisonment, with a non-parole period of four years and three months, commencing on 8 October 2006. 5 Her Honour could make no finding whether the firearm was a real weapon, capable of being discharged. However, with regard to the aggravating features set out in s21A of the Crimes (Sentencing Procedure) Act, she noted that all the offences except the last were committed in company, that those offences demonstrated a degree of planning on the part of the applicant and his co-offender, and that the female victims of those offences and the victims of the last offence were vulnerable. At the time this application was heard the co-offender had been found guilty after a trial but was awaiting sentence. Subjective case 6 The applicant was twenty-five years old at the time of the offences and is now twenty-seven. He was born in China but when he was a child he and his parents migrated to this country, sponsored by his grandmother. His parents were very hardworking and effectively he was raised by his grandmother. He was adversely affected by her death when he was thirteen years old, and his behaviour deteriorated such that he became involved in criminal offences. Commencing in 1996, he sustained a number of convictions for offences of violence and dishonesty, most of them dealt with by terms of imprisonment. 7 He has a seven year old child from a relationship with a young woman. He separated from that woman but remained close to the child. He began to use heroin in 1998. His parents arranged for him to undergo a detoxification program run by the Chinese army in Beijing. He remained drug free for six months and attempted a reconciliation with the mother of his child. When that was unsuccessful he began to use heroin again. It seems that some of his previous offences were associated with his use of that drug and the present offences were committed to fund his addiction. 8 He had again detoxified while in custody following his arrest for these matters and had remained drug free. Her Honour saw his prospects of rehabilitation as being "entirely dependant" on his ability to abstain from the use of heroin while at liberty. She accepted that he would take advantage of any counselling available to him in prison, and noted that he had the support of his mother and would have accommodation with her and employment available to him upon his release. Her Honour was somewhat guarded about his rehabilitation but accepted that it would assisted by "a relatively lengthy period of supervision in the community." 9 The applicant had been committed to the District Court for sentence on the principal offences, having pleaded guilty to them in the Local Court. Her Honour saw those pleas, and his admission of the other offences on the Form 1, as having "significant utilitarian value." The application 10 Counsel for the applicant, Mr Smith, argued the application on three bases: that her Honour's allowance for the pleas of guilty was inadequate, that a finding of special circumstances should have led to a lower effective non-parole period and, in any event, that the aggregate sentence is manifestly excessive. 11 As I have said, her Honour expressly recognised the utilitarian value of the pleas of guilty. She went on to say that they merited the "full twenty-five percent discount" envisaged in R v Thomson and Houlton (2000) 49 NSWLR 383. She also said that, but for the pleas, she considered an aggregate sentence of fourteen years imprisonment to be appropriate. It was in the light of the pleas that that term was reduced to eleven years. Mr Smith pointed out that that reduction is less than twenty-five percent, which would have yielded a figure of ten and a half years. 12 However, it is necessary to look at other aspects of her Honour's reasoning to understand how the eleven year term was arrived at. She took into account the guideline judgment in R v Henry (1999) 46 NSWLR 346, propounding a range of sentence between four and five years for offences of a kind considerably less serious than the applicant's. Then, turning to the discount for the pleas of guilty, she said: The pleas of guilty should receive a full twenty-five percent discount but I indicate that when assessing the appropriate penalties for each of the offences I have done so by taking into account the Henry guideline sentence which already includes in it a component for a plea of guilty, albeit a plea of guilty entered late. 13 Her Honour was there referring to the clarification of the Henry guideline by Spigelman CJ in Thomson and Houlton at [161]. It appears, then, that her Honour assessed the totality of the applicant's criminality and arrived at the aggregate figure of fourteen years in the light of the guideline, mindful that it embraced the recognition of a plea of guilty of limited value. It is for this reason that that aggregate term was reduced by a little less than twenty-five percent. I see no error in this approach and, in any event, a reduction of three years for the pleas of guilty and the admission of further offences on the Form 1 could not be said to be inadequate. 14 As to special circumstances, it will be seen that the sentence of seven years with a non-parole period of four years and three months on the seventh charge departs from the usual statutory ratio between sentence and non-parole period, but the aggregate sentence of eleven years with a non-parole period of eight years and three months does not. This was her Honour's intention. She reduced the non-parole period in respect of the seventh charge because of the partial accumulation of the sentences, but acknowledged "that overall the non-parole period represents 75 percent of the head sentence." Mr Smith argued that her Honour should have found special circumstances warranting a reduction of that effective non-parole period, given the applicant's background and relative youth, his drug addiction and the desirability, expressly recognised by her Honour, of an extended period of supervision upon his release. 15 Again, I find no error in her Honour's approach. The discretionary nature of the decision whether the circumstances in a particular case are such as to call for a non-parole period less than the statutory norm was emphasised in R v Simpson (2001) 53 NSWLR 704, per Spigelman CJ at [59]-[63], as was the need for that period to reflect appropriately the offender's criminality. The course which her Honour took was a proper exercise of that discretion and the resultant period of parole eligibility, two years and nine months, is a substantial time in which to foster the applicant's rehabilitation, as her Honour intended. 16 Mr Smith's argument that the aggregate sentence is manifestly excessive centred upon the sentence in respect of the seventh charge which, he said, has led to an overall sentence greater than was called for by the whole of the applicant's criminality. He relied not only upon the length of that particular sentence, but also upon the fact that it was directed to commence on 8 October 2006, two years and nine months after the commencement of the sentence on the sixth charge. He noted that such partial accumulation as there was on the other six sentences was much more modest, amounting in all to one year and three months. He submitted that her Honour failed to pass a sentence on the seventh charge appropriate to that particular offence, in breach of the familiar principles enunciated by the High Court in Pearce v The Queen (1998) 194 CLR 610. 17 In fact, her Honour referred to that case and appears to have structured the sentences accordingly. Viewed in isolation, the seven year sentence on that last charge is severe but it could not be said to be inappropriate, given the circumstances of the offence and the fact that it was the last episode in a pattern of serious criminality. However that may be, for the purpose of the assessment required by s6(3) of the Criminal Appeal Act, the question is whether the aggregate sentence is manifestly excessive as a reflection of the total criminality involved. Given the number and seriousness of the offences and the applicant's criminal antecedents, I consider that that sentence and the effective non-parole period were well within the bounds of the legitimate exercise of her Honour's discretion. 18 I would grant leave to appeal but dismiss the appeal. ********** 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.