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. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. (footnotes ommitted) 15 This Court has a discretion whether to interfere when sentences are disparate. The ground of disparity, standing alone, is only rarely a basis on which to interfere by reducing what is by any other criterion a proper one. It is only if the disparity is of so great a degree and is so wholly unwarranted that the Court will intervene in the interests of the due administration of the law: R v Tisalandis (1982) 2 NSWLR 430 per Street CJ at 433, citing this Court's judgment in R v Kresensen, 6 June 1979 unreported. 16 Subjectively, the cases were similar. Both Yin and Qing were in their twenties and both had a criminal record of sorts. I begin with the understanding that the only subjective matter distinguishing them was Yin's pleas of guilty and Qing's pleas of not guilty. 17 In my opinion the sentences cannot be compared simply on the basis that Yin was sentenced for seven offences and Qing for eight. The sentences imposed on Yin had to comprehend the criminality in the counts charged and in the matters taken into account. The point of taking a matter into account is to impose a longer sentence than if the primary offence had stood alone. Sometimes the additional resulting penalty will be substantial. Ordinarily the Court does this by giving greater weight to personal deterrence and retribution. The Court has a wide discretion when dealing with matters to be taken into account: Attorney General's Application Under s37 Crimes (Sentencing Procedure) Act 1999 [2002] NSWCCA 518. 18 Leaving aside the single offence which each had committed alone, each offender fell to be sentenced for the same five attacks. Mr Dhanji submitted that the Form 1 offences were not only of the same kind as those contemplated by their principal charges, but arose out of the same circumstances. In those circumstances the weight to be given personal deterrence for those offences was minimal. 19 I am prepared to accept that when the only effect of taking matters into account is to draw in every aspect of offending on the occasion contemplated by the principal charge, there may be less need to increase the sentence to deter the offender, but the need for an enhanced deterrent sentence may not be eliminated. Moreover, the need for retribution stands. Looking at the Narwee robbery, it is significantly more culpable to rob five people than two. 20 Yin was sentenced for seven primary offences and had five matters taken into account. That does not lead to any conclusion that his criminality exceeded Qing's in the ratio 12:8, but it does illustrate that his criminality was greater and, other things being equal, apt to attract a higher sentence. 21 Regard must also be had to the choice made by the prosecutor in preferring some charges under s97(1) and others under s97(2). It appears that whenever the two carried out a robbery jointly and used the replica pistol, the Crown charged Yin under subs (2), but Qing only under subs (1). The use of the replica pistol would justify the more serious charge: see the definition of "dangerous weapon" in Crimes Act s4 and Prohibited Weapons Act s4 and Sch 1. On the evidence there would appear to be no other justification for choosing subs (2) in preference to subs (1). The evidence did not enable the sentencing judge to find who had handled the replica pistol from time to time, but both were responsible for its use, whoever handled it on any particular occasion. 22 No doubt, as Mr Dhanji submitted, the range of criminality comprehended by the two subsections is great, with a substantial breadth of common ground, but I do not think that the choice of subs (2) is a matter that may be put aside as having no consequence. An important indicator of the range of sentences for a given offence, and one which a sentencing judge must have in mind, is the maximum sentence fixed by Parliament. Charges preferred under sections which attract higher maximum sentences might be expected to attract higher sentences. This may become more important when a comparison is made between roles played by different offenders. Here, Yin was the only one who was charged with the use of the replica pistol. Even though it was incapable of killing by discharging a bullet, it made more realistic the threats to kill. 23 Mr Dhanji very fairly drew the Court's attention to the judgment of this Court in R v Formosa [2005] NSWCCA 363. In that case Simpson J, with whom McClellan CJ at CL and Hoeben J agreed, dealt with an argument of disparity between sentences imposed on offenders who, like Yin and Qing, had been differently charged. Her Honour observed that in both Lowe and Postiglione the appellants had been charged with offences identical to those with which their co-offenders had been charged and, at [39], that nothing in those judgments was directed towards the application of the parity principle where offenders were charged with different offences carrying different maximum penalties. Her Honour said this at [50] - Here, the main reason for the discrepancy in sentences on the two co-offenders derives from the difference in the charges they faced. The applicant may have a sense of grievance, even a legitimate one, about that difference; but it is not a legitimate sense of grievance in the Lowe or Postiglione sense, concerning the sentences imposed; it is a sense of grievance engendered by the prosecutorial decision making process. That is not something over which this court has supervisory jurisdiction, even by the backdoor method of supervising sentencing. 24 Reference should also be made to the judgment of this Court in Spinks v R [2007] NSWCCA 52 in which Bell J, with whom Sully and Hoeben JJ agreed, shared Simpson J's reservations about the extension of the parity principle to offenders charged with different offences as a result of prosecutorial decision making. Her Honour observed that such persons are for that reason not co-offenders in the sense in which that term is used in Lowe and Postiglione. Although I express no opinion about the comparison of an appellant's sentence with that of an offender convicted of a more serious offence, it seems to me that comparison with that of an offender convicted of a less serious offence, as is done in this appeal, is attended with difficulty. 25 Mr Dhanji drew attention to the remarks of the members of the Court that heard Qing's appeal. Beazley J, with whom Hislop J agreed, drew attention to the complication resulting from the different manner in which Yin and Qing had been charged and to the slightly differing approaches of the sentencing judges to accumulation and totality. Her Honour considered that before the application of any discount for Yin's pleas of guilty, parity required that Qing be given a lesser sentence than Yin, and concluded that Qing could not have a legitimate sense of grievance by reference to Yin's sentences. Mr Dhanji submitted that it followed that the sentences imposed on Qing were either proper or light, compared to those imposed on Yin, and that in view of his other submissions the Court should find a disparity. 26 It seems proper for this Court to have in mind the remarks of the Qing Court. Of course, Yin was not a party to that appeal and no one was present to put the case for him. It seems possible also that there were matters that the Crown could have put against Yin if he had been a party. The remarks of the Qing Court cannot determine the result of this appeal. However, I find myself in agreement with the remarks that Qing had no justifiable sense of grievance by comparing his sentences with Yin's. 27 This was a series of complicated sentences. The two sentencing courts had to take into account a number of significant differences between Yin and Qing, notably that the prosecutor had decided to charge Yin with, and Yin had pleaded guilty of, offences significantly more serious than those proved against Qing. In my opinion they were in all the circumstances treated about equally and, I think, fairly. 28 I would dismiss the appeal. 29 BELL J: I agree with Barr 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.