John Shaopeng Yin v Regina [2007] NSWCCA 350

New South Wales Court of Criminal Appeal

CITATION: John Shaopeng Yin v Regina [2007] NSWCCA 350

HEARING DATE(S): 3 December 2007

JUDGMENT DATE: 18 December 2007

JUDGMENT OF: Mason P at 1; Barr J at 2; Bell J at 29

DECISION: Appeal dismissed.

PARTIES: John Shaopeng Yin Regina

FILE NUMBER(S): CCA 2007/3613

COUNSEL: H Dhanji G Rowling

SOLICITORS: Steve O'Connor S Kavanagh

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/0364 03/21/0179

LOWER COURT JUDICIAL OFFICER: Tupman DCJ

IN THE COURT OF CRIMINAL APPEAL 2007/3613

MASON P BARR J BELL J

18 DECEMBER 2007 JOHN SHAOPENG YIN v REGINA Judgment

1 MASON P: I agree with Barr J. 2 BARR J: This is an appeal against sentence following my referral on 15 August 2007 under s78 Crimes (Appeal and Review) Act 2001. 3 There is a single ground of appeal. The appellant, John Shaopeng Yin, claims to have a justifiable sense of grievance when he compares his sentences with those imposed on a co-offender, Qing An. Yin and Qing were complicit in a number of offences, but each was also sentenced for an offence of which the other was not convicted. Yin pleaded guilty to all the offences with which he was charged. He also asked the sentencing judge to take into account other offences. Qing pleaded not guilty to all the charges laid against him and was found guilty by the jury of some but acquitted of others. 4 The events giving rise to the charges against either or both of Yin and Qing were as follows. On 16 August 2002 Yin and Qing went to a massage parlour at Five Dock. Each was armed with a knife. Yin produced his knife and they ordered the occupants to lie on a bed. They tied them up. They stole a wrist watch, $50.00 and a mobile telephone from one of the occupants, Mr Dong. They stole from other occupants as well. Yin and Qing were each charged with an offence against Mr Dong under s97(1) Crimes Act – robbery while armed with an offensive weapon or instrument or being in company – which attracts a maximum sentence of imprisonment for twenty years. Yin pleaded guilty. Qing pleaded not guilty and the jury found him guilty. Neither was charged with the robbery of any of the other occupants. 5 On 23 August 2002 Yin and Qing, having telephoned and made a preliminary visit to a massage parlour at Narwee, returned to the premises. Both threatened the occupants with knives. They robbed five occupants of some hundreds of dollars, mobile telephones and the like and jewellery. They tied up the occupants and left them there. Yin was charged with two counts under s97(1) for the robbery of the manager, Ms Knathanong, and for the robbery of one of the employees. Yin pleaded guilty to those two charges and asked the sentencing judge to take into account the three other robberies committed on that occasion. Qing was charged with four offences under s97(1), two identical to those to which Yin pleaded guilty and two relating to the robbery of two of the three other persons present at the time. Qing was found guilty by the jury of offences identical to those of which Yin had pleaded guilty. However, he was found not guilty of the other two offences. He was never charged with any offence against the fifth occupant robbed. 6 On 25 August 2002 Qing went to premises in Sans Souci and, using a replica pistol and threats, held up an occupant. He stole cash in the sum of $850.00. The jury found him guilty. Yin was not party to that offence. 7 On 26 August 2002 Yin and Qing went to a massage parlour at Matraville. One was armed with a replica handgun and the other with a knife. They stole $1200.00 and two mobile telephones from the manager and a small amount of cash and a gold chain from one of the other occupants. For the robbery of the manager Yin was charged under s97(2), an aggravated form of robbery applicable when the offender is armed with a dangerous weapon. It attracts a maximum sentence of imprisonment for twenty-five years. He pleaded guilty and asked the Court to take into account the other robbery carried out at the same time, and presumably the criminality contemplated was as under subs(2). Qing was charged with two offences, both under s97(1). The jury found him guilty of both of them. 8 On 29 August 2002 Yin and Qing went to a massage parlour in Rydalmere. One was armed with a replica handgun. They tied up the occupants and stole from the manager a chain, a ring, some $1,600.00 and a mobile telephone. Another person present was robbed as well. Yin pleaded guilty under subs(2) to the aggravated robbery of the manager. He asked the sentencing judge to take into account his robbery of the other occupant, couched in similar terms. Qing was charged with only one offence, the robbery of the manager, and only under subs(1). The jury found him guilty. 9 On 1 September 2002 Yin and Qing went to a massage parlour in Ultimo. Again one had a replica handgun. They tied up persons on the premises and stole from one of them a chain and some cash. Yin pleaded guilty to aggravated robbery. Qing was tried for the less serious form of robbery and the jury found him guilty. 10 On 8 October 2002 Yin went to a hot bread shop in Yagoona, produced a replica pistol and threatened to kill the two persons on the premises. He stole a wallet and a small amount of cash. He pleaded guilty to the aggravated form of robbery under subs(2). Qing was not involved in that offence. 11 After he and Qing had been sentenced, Yin sought leave to appeal to this Court against his sentences. It was no part of his case that his and Qing's sentences were disparate. The Court granted him leave to appeal but dismissed his appeal. 12 Qing appealed against his convictions and sought leave to appeal against his sentences. It was part of his case that he had a justifiable sense of grievance by comparing his sentences with those imposed on Yin. His appeal against conviction was dismissed. He was granted leave to appeal against sentence and his total effective sentence was reduced, but not on account of any disparity between his and Yin's sentences. 13 The present appeal was presented in a very broad way. There was no attempt to compare sentences for individual offences imposed on Yin and Qing. The overall result was looked at. It was submitted that there was a high degree of correspondence in the criminality of Yin and Qing respectively. Yin was charged with only seven offences. He pleaded guilty to them all and the sentencing judge pronounced him consequently entitled to a discount of twenty-five per cent. He had asked the sentencing judge to take into account five other matters alleged against him. After trial Qing was found guilty of eight offences. Yin and Qing were jointly involved in robbery of people on five occasions. Each was involved alone in a robbery on one other occasion. Although there were differences in the manner of charging, those differences were not significant. Neither was there any difference in the criminality, by and large, of the offenders or in the subjective cases they put before the sentencing courts. Yet the result was that for seven offences Yin, who pleaded guilty, was sentenced to imprisonment for periods amounting to a non-parole period of eight years and three months and a total term of eleven years, whereas Qing who pleaded not guilty was sentenced for eight offences to a non-parole period of seven years and six months and a total sentence of ten years and six months. 14 In Postiglione v The Queen [1997] HCA 26 Dawson and Gaudron JJ said, as reported at 189 CLR 301-302 - The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.