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: That the sentences on counts 1, 2 and 3 commence on 19 March 2004 and the non parole period on count 1 expire on 18 March 2009; that the sentences on counts 4, 5, 6, 7, and 8 commence on 19 March 2006 and the non parole period on count 4 expire on 18 march 2009; that (although his Honour did not expressly specify it) the first date of eligibility for the respondent's parole became 18 March 2009. 25 In his remarks on sentence his Honour said: "I am going to make the three sentences that I propose for the offences committed on 28 October (sic) concurrent with each other and similarly the second group of offences but there will be some partial accumulation of those sentences." 26 In fact, the effect of the orders made was that there was no accumulation. 27 The Crown complaint in this appeal is two-fold. First, grouping the individual offences by occasion, the sentences assessed in respect of each failed to reflect the objective gravity of the offences; second, the total effective sentence does not reflect the total criminality. 28 The high level of objective criminality needs no comment beyond the sketch of the conduct constituting the offences above set out. Deliberate and planned crimes like these demand a considerable element of the reflection of personal and general deterrence. Those who contemplate participation in such attacks upon the conduct of lawful business and commerce should anticipate punishment of a severity proportioned to such organized and intentional misconduct. 29 The Crown submissions contain a detailed analysis of the guideline judgment in R v Henry (1999) 46 NSWLR 346. It should be noted that, in the present instance, the principal offences are aggravated robbery contrary to s 97(2) of the Crimes Act 1900 and robbery in company contrary to s 97(1) thereof. Senior counsel for the respondent had stated at first instance: "Your Honour, it is conceded that those three factors in each case, that is the degree of violence actually presented, the planning involved and the value of the property stolen served to distinguish the case from the guideline of four to five years that the court specified in Henry would apply where a range of factors such as youth and the like presented, that is not this case." 30 This concession was pithily epitomized when she added "We're way out of Henry territory." 31 The concession was not to suggest that the current offences were of lesser seriousness. 32 However, his Honour observed that, "it was never an issue" that the respondent would plead guilty and it can be inferred that his Honour was assessing a discount for the plea of guilty in a utilitarian sense at or near the top of the range suggested in R v Thompson and Houlton (2000) 49 NSWLR 383. 33 To address the first complaint of the Crown it is necessary to pay attention to what his Honour found in relation to the respondent's subjective case, which it is contended in a submission to this Court to have been "powerful and quite unique." Not all the subjective aspects were favourable to the respondent. Although young, born on 21 March 1983, he had been dealt with in the Children's Court for serious offences including aggravated robbery and robbery in company. On 24 October 2003, less than two months before the bank robbery, he received a suspended sentence of two years imprisonment for robbery in company. For various and cumulating reasons he was at conditional liberty at the time of both the warehouse and the bank robberies. 34 However, his Honour was obviously impressed with the changes which had been wrought while the respondent had been in custody and by evidence of family support. He said: "Mr Huang has never denied his involvement in either of these offences. He has pleaded guilty. It was never in issue that he would plead guilty. He has expressed remorse. He has been in custody now for some eighteen months. During that time his behaviour has changed quite markedly and there is evidence, admittedly on a hearsay basis but not seriously challenged, that he has obtained a position of trust in the Correctional Centre where he is held and he has been given responsibility. He has undertaken courses. He is in a relationship with Ms Kinanne, who is in court and who has provided a statement, an affidavit in fact, on which she was not cross-examined, and he clearly has a supportive family. Mr Huang was born in China. His family was sponsored to immigrate to Australia by his grandparents. He did not come to Australia until he was three years old but he has been here ever since then. He was educated in Australia. His brother gave evidence today and spoke of a very difficult childhood; both parents worked very hard in the restaurant trade. There were times when the family had little money, did not have a great deal to eat and, of course, English was not their first language, so Mr Huang had a difficult time growing up. He says that he was picked on at school and there is no doubt that he slipped into juvenile offending at an early age. As Ms Fullerton put it, he started off with petty juvenile offences and moved to among the most serious offences known to the criminal law. That is why he is here today. He has written a letter in which he expresses regret and remorse. He has asked for details about restorative justice programmes in gaol and in terms of personal deterrence I would be satisfied, on the balance of probabilities, that his likelihood of re-offending in this way is now considerably less. Although he has spent periods in Juvenile Justice Centres he has now spent a long period in an adult prison and the evidence is that he is behaving like a model prisoner. He has the support of his family and his partner to look forward to and, as I say, the chances are that he is unlikely to offend." 35 He also said: "Mr Huang at times seems to have become dependent on various substances, including particularly steroids and some other drugs, but the evidence before me is that since he has been in custody during the last eighteen months, and he has managed to break any habit that he had." 36 I do not understand the Crown to complain of the concurrency of sentence within the groups of charges referrable to the separate occasions of the warehouse robbery on the one hand, and of the bank on the other. 37 The matter for examination is therefore whether in respect of the first crimes, a total sentence of seven and half years with a non parole period of five years and in respect of the second group of crimes, a total sentence of five years with a non parole period of three years, lay outside of the range of a sound discretionary assessment by the first instance judge. Whilst I consider the sentences markedly lenient, when there is taken into account the utilitarian discount referrable to a plea of guilty at the earliest opportunity and appropriate weighing of objective and subjective factors, I am unpersuaded that the sentencing discretion should be held to have miscarried as claimed in the initial complaint by the Crown. 38 I turn to the second aspect of the Crown complaint. It is not insignificant in my view that his Honour expressly said that he intended partial accumulation of sentences. At the very least, some accumulation was required. His Honour knew that Jaafar, who was involved only in the bank robbery, had been dealt with by Hosking DCJ some six months previously and he had received a sentence consisting of a non parole period of two years four months with a balance term of one year eight months for his part in it. Effectively, the respondent received no punishment for the bank robbery additional to that which he had received for the warehouse robbery. 39 The Crown has made good its contention that the total effective sentence was, making every allowance for the factors favourable to the respondent, manifestly inadequate. 40 As I have said, I do not understand there to be complaint about the internal structure of sentences within the counts referrable to the separate offences (save the complaint which I have rejected) and manifest inadequacy can be met by making an order for some cumulation, which I consider should be made, and which his Honour apparently intended to make but did not at all implement. 41 It is submitted that the residual discretion of this court should be exercised to dismiss a Crown appeal. Comparison was invited with the circumstances and result in R v Thomas [2003] NSWCCA 165. The gravity of the respondent's participation in these organized crimes is considerable. The objective seriousness outweighs factors which can be taken into account in his favour by a sizeable margin. It is not appropriate to exercise residual discretion as sought. The result in Thomas does not persuade me to the contrary. 42 It can be noted, however, that a view was formed in Thomas that that respondent had "truly reached a turning point in his life and is truly determined not to re-offend." A similar claim is made by the respondent: and see R v Osenkowski 1982 SASR 212. At the time of sentence the respondent had been in custody for eighteen months. His Honour had received in evidence a report from Ms Tanya Levin, a social worker with experience in assessment of gaol inmates with drug and alcohol issues as well as in other areas. Inter alia, she obtained reports from gaol supervisors. She recorded: "Mr Huang is also the personal 'sweeper' for Senior Assistant Superintendent Cheryl Waters who is the area manager in his division. Ms Waters describes Mr Huang as 'one in a million inmates'. She stated that the position of sweeper goes unfilled unless an inmate can be found who is appropriate. Mr Huang's level of integrity and work ethic is highly unusual in her experience." 43 The respondent has now been in custody for over two years. By consent, his affidavit sworn 29 March 2006 was read. His good conduct has not abated. He is making use of opportunities within the prison system. He continues to have a "nil gaol record." I have already cited his Honour's relevant comments. 44 It is appropriate that I take into account the restraint which it is appropriate for this Court to exercise when resentencing after a Crown appeal and, by reason of the promise in the matters to which I have just referred, the resentence should be assessed at the very minimum of appropriate range. 45 Like his Honour, and with emphasis contributed by the respondent's continued admirable response to his situation, I would find special circumstances so as to vary in his favour the proportion between non parole period and balance term. I note that, for count 1 the balance term set by his Honour was equivalent to one half of the non parole period and for count 4 was equivalent to two thirds. Of course having regard to the absence of accumulation, it was only the sentence on count 1 which was effective. 46 I would adopt the proportion applied in respect to count 1 to the total cumulated sentence which I now propose. The immediate result is to delay the respondent's earliest date of eligibility for parole by one year. The overall consequence will be imposition of what I regard as the very least required to reflect these gravely serious crimes. 47 Although I have said that the assessments in respect of the individual counts and the enveloping "group" sentences were not inadequate and, as such, would not ordinarily be disturbed, it will achieve with simplicity the practical consequence that I have indicated if the sentence on count 4 is divided into a non parole period of two years and a balance term of three years and directed to commence one year before the expiry of the non parole period on count 1. 48 I propose the following orders: 1. Crown appeal allowed. 2. Sentences and orders in respect of counts 1, 2 and 3 of the indictment confirmed. 3. Sentences in respect of counts 4, 5, 6, 7 and 8 of the indictment confirmed, but orders in respect of those sentences quashed, and in lieu thereof sentences and orders as follows substituted: On count 4 the respondent sentenced to imprisonment consisting of a non parole period of two years to commence on 19 March 2008 and expire on 18 March 2010 with a balance term of three years to expire on 17 March 2013. On counts 5, 6, 7 and 8 the respondent sentenced to imprisonment for fixed terms of two years to commence on 19 March 2008 and expire on 18 March 2010. The sentences on counts 5, 6, 7, and 8 to be served concurrently with each other and with the non parole period set in respect of count 4. The reason for setting the fixed terms is that those sentences will be completely subsumed within the non parole period fixed in respect of count 4. 4. The earliest date for eligibility of release to parole is specified as 18 March 2010. 49 ADAMS J: I agree with Grove J. 50 HISLOP J: I agree with Grove J. ********** 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.