Regina v Huang [2006] NSWCCA 173

New South Wales Court of Criminal Appeal

CITATION: Regina v Huang [2006] NSWCCA 173

HEARING DATE(S): 29 March 2006

JUDGMENT DATE: 2 June 2006

JUDGMENT OF: Grove J at 1; Adams J at 49; Hislop J at 50

DECISION: CROWN APPEAL ALLOWED

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - ARMED ROBBERY AND ROBBERY IN COMPANY - HIGHLY PLANNED AND ORGANIZED CRIMES - CUMULATION SPECIFIED BY JUDGE NOT IMPLEMENTED IN ORDERS - CROWN APPEAL MADE GOOD

LEGISLATION CITED: Crimes Act 1900

R v Henry (1999) 46 NSWLR 346 CASES CITED: R v Osenkowski 1982 SASR 212 R v Thomas [2003] NSWCCA 165 R v Thompson & Houlton (2000) 49 NSWLR 383

PARTIES: Regina v Stephen Huang

FILE NUMBER(S): CCA 2290/2005

COUNSEL: P. Power SC (Crown/Appellant) E. Fullerton SC (Respondent)

SOLICITORS: S. Kavanagh (DPP) Croke & Co (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0526

LOWER COURT JUDICIAL OFFICER: Goldring DCJ

LOWER COURT DATE OF DECISION: 23/09/05

LOWER COURT MEDIUM NEUTRAL CITATION: Not applicable

IN THE COURT OF CRIMINAL APPEAL 2005/2290

GROVE J ADAMS J HISLOP J

2 June 2006

REGINA v STEPHEN HUANG Judgment

1 GROVE J: This is a Crown appeal asserting the manifest inadequacy of sentences passed on the respondent by Goldring DCJ at Sydney District Court. The respondent pleaded guilty to an indictment containing eight counts relating to separate crimes carried out on 28 November 2002 and 20 December 2003 respectively. Count 1 charged aggravated robbery (being armed with a dangerous weapon) and counts 2 and 3 being carried in a conveyance without the consent of the owner. These offences were committed on 28 November 2002. Count 1 has a prescribed maximum penalty of twenty five years imprisonment. Counts 4, 5 and 6 charged robbery in company and counts 7 and 8 charged assault. These offences were committed on 20 December 2003. Robbery in company carries a prescribed maximum penalty of twenty years imprisonment. 2 I shall, in due course, recite the individual sentences but it can be noted that the effective sentence upon the whole indictment amounted to a non parole period of five years with a balance term of two years and six months. 3 Senior counsel for the respondent has confirmed the accuracy of summaries of the facts as recapitulated in the Crown written submissions and I will draw largely from them for these sketches. 4 Shortly before 6 am on 28 November 2002 the respondent and others came to a warehouse in Alexandria. They brought with them several vehicles including a blue Subaru sedan which had been stolen on 20 November and had been fitted with licence plates stolen from another vehicle on 25 November, a forklift and pallet jack, which had been rented for a single day by an offender other than the respondent and an Isuzu truck which had been stolen on 27 November. It might be mentioned that the truck was stolen from outside premises located about 300 metres from the respondent's home. 5 A gatekeeper released security to permit the entry of a truck driven by a Mr Errington, who was there upon lawful business, as was a second driver, Mr Cassels. These drivers were approached by the offenders, one of whom was armed with a baseball bat and the other with a pistol. Face disguises were worn. Mr Errington's arm was broken by a blow delivered with the baseball bat. Threats were made by use of the pistol. The gatekeeper and the drivers were directed to sit on the ground. 6 The offenders were using walkie-talkies to communicate with each other. One of them commenced to load pallets of mobile phones onto the stolen truck by means of the forklift. He was an incompetent operator and kept stalling it. The gatekeeper was drafted, at gunpoint, to operate it. 7 During these events, two more drivers engaged in lawful business arrived. They were directed to sit with the others and they complied as a result of threat with the pistol. 8 After the truck was loaded the offenders fled. It had been loaded with goods to a wholesale value of $1.2 million. 9 Police response was prompt. They had received information from observers about the Subaru and the truck. By 10.30 am that day they had located them and, in particular, the truck and stolen cargo were secured. Arrests, not including the respondent, were made. Search warrants were executed upon residential premises of one of those arrested and on a self storage unit, which he had leased. 10 In the residence there were found and seized disposable overalls; two pistols; disposable dust masks; balaclavas; police scanners; two way radios and a floor plan of the warehouse premises at which the robbery had taken place. 11 In the storage unit there were found and seized a loaded SKS chinese assault rifle; a shotgun; two walkie-talkies; a radio scanner; $42,250 in cash and stolen computer equipment. 12 A subsequent examination located the respondent's fingerprints on the plan of the Alexandria warehouse which had been seized at the residence. 13 The respondent was arrested and charged on 3 January 2003 but was granted bail following an application to the Supreme Court on 6 January 2003. 14 It scarcely needs to be emphasized that the sentencing judge was indubitably correct when he described the foregoing, and the later offence which I shall describe, as extremely sophisticated and highly planned robberies. 15 On count 1 his Honour sentenced the respondent to imprisonment consisting of a non parole period of five years with a balance term of two years and six months, and on each of counts 3 and 4 to a fixed term of imprisonment for twelve months, to be served concurrently with each other and with the first twelve months of the non parole period fixed for count 1. 16 At about 8.30 am on 20 December 2003 staff at a Westpac Bank at Auburn were being admitted to the building by the manager. The respondent and another followed them inside. They were dressed as employees of Telstra and had on dark gloves, hard hats, overalls, gloves and white face masks. They stated that they were there to do some work for Telstra and some electrical work. However, the manager was suspicious and the intruders responded by threatening the staff with Taser guns. They directed the staff to lie on the floor. While they were there they heard the offenders apparently using radio communication devices. While the staff were on the floor, a third offender (Jaafar) came to them and bound them with cable ties. 17 The offenders then sought access to the bank safe and "the treasury". The staff denied knowledge of relevant combinations necessary for opening the safe. A person who was admitted after the intruders were already in the banking chamber was abused as a liar when she made her denial – perhaps the robbers thought that later arrival would indicate authority – and she was kicked in the buttocks and later on the legs. 18 Eventually, under threat, a telephone call was made and some safes were able to be opened. These did not include the treasury safe. Money that was accessible was tipped into a black bag and the offenders made to leave the bank. 19 By this time police were in position outside the bank. Jaafar pointed a gun at police but, upon their direction, he dropped it and he was arrested. The respondent and the third man took flight on foot and successfully evaded the police cordon. In various places along the offenders' deduced line of flight were found white shoes, a white facemask, a two way radio and, later, a firearm in a shop yard. The black bag had been abandoned at the bank and it was found to contain about $70,000 in different currencies. 20 Scientific procedures located a DNA profile on the shoes and dust mask which matched the DNA of the respondent. On 24 November 2004 he was arrested and charged in respect of the events at the bank. At that date he was already in custody in respect of unrelated matters. 21 On count 4 (robbery in company) the respondent was sentenced to imprisonment consisting of a non parole period of three years and a balance term of two years, and on counts 5 and 6 (robbery in company) and on counts 7 and 8 (assault) to fixed terms of imprisonment of two years to be served concurrently with each other and concurrently with the first two years of the non parole period specified in respect of count 4. 22 As I have mentioned, the respondent was in custody for three days following his arrest in respect of the warehouse robbery, from 3 to 6 January 2003. Unrelated to the present matters he commenced to serve a sentence of nine months periodic detention on 16 May 2003 for driving whilst disqualified and reckless driving. That sentence was current when the bank robbery took place and he had been on bail in respect of these offences when the warehouse robbery occurred. He was, of course, still on bail in respect of that robbery when he participated in the bank robbery. 23 The respondent was taken into custody on 22 March 2004 and has remained in custody since that time. The matters for which he was taken into custody then were not proceeded with by the Director of Public Prosecutions. His Honour therefore took 22 March 2004 as the start of the respondent's custody for the robberies and, giving credit for the three days in January 2003, selected a commencement for his first sentences of 19 March 2004. 24 The orders which he made and the consequences were as follows: