New South Wales Court of Criminal Appeal CITATION: Yang v R [2007] NSWCCA 37 HEARING DATE(S): 20/2/07 JUDGMENT DATE: 20 February 2007 JUDGMENT OF: Sully J at 1; Bell J at 2; Hoeben J at 29 EX TEMPORE JUDGMENT DATE: 20 February 2007 DECISION: Grant leave to appeal; Refuse the appeal CATCHWORDS: Sentence appeal manifest excess LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 R v Ferrer-Esis (1991) 55 A Crim R 231 CASES CITED: R v Hammoud (2000) 118 A Crim R 66 R v Huang [2000] NSWCCA 238: 113 A Crim R 386 R v Wheeler [2000] NSWCCA 34 PARTIES: Zhong Ping Yang (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2006/2623 COUNSEL: C Loukas (Applicant) W Dawe QC (Respondent) SOLICITORS: S E O'Connor (Applicant) S Kavanagh (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/0815 LOWER COURT JUDICIAL OFFICER: Gibson DCJ IN THE COURT OF CRIMINAL APPEAL 2006/2623 SULLY J BELL J HOEBEN J Tuesday 20 February 2007 Regina v Zhong Ping Yang Judgment 1 SULLY J: The Court is in a position to deal with this matter without reserving. Justice Bell will give the first judgment. 2 BELL J: This is an application for leave to appeal against the severity of sentences imposed on the applicant in the District Court on 19 May 2005. The notice of appeal is dated 16 November 2006. We were informed that the applicant had previously been granted an extension of time in which to bring his appeal. 3 The applicant was arrested on 12 December 2003 at premises at which he was residing in Lidcombe. A search warrant was executed on those premises at that time. The applicant told the police that he was a Chinese national who had overstayed his visa. He said that no other person was residing at the premises and he informed the police that there was a firearm in his bedroom. 4 The police located a firearm loaded with six bullets, in a drawer of the bathroom vanity cabinet. It was a .32 Smith & Wesson long calibre Rossi six chamber revolver; the serial number had been removed from the weapon. The weapon was in working order. The applicant did not have a licence or permit for it. 5 During the search of the applicant's bedroom the police located a counterfeit New South Wales driver's licence in the name of the Liang Yong Zhou, which contained a photograph of the applicant. On the top of a bedside table police located a counterfeit Qantas Visa card in the name of Bill K Fung. 6 The police also located a number of metal stamps capable of being applied to plastic credit cards and a strip of paper with the word "MasterCard" on it, which was also capable of being applied to blank credit cards in the applicant's bedroom. 7 During the course of the search of other rooms in the premises the police located a number of other credit cards, including counterfeit Visa cards in a number of names. In a room that was set out as an office or study, the police located an embossing machine, a credit card printer, a credit card reader, numerous blank credit cards, credit card holograms, coloured foil and credit card signature strips. These items, as well as the stamps and the MasterCard paper found in the applicant's bedroom, are capable of being used to create counterfeit credit cards. 8 The applicant told the police that the items had been left at his premises by other persons more than 20 days prior to the execution of the search warrant. He said that he had maintained possession of them on the understanding that they would be collected and that the false instruments would be used by others to induce persons to accept them as genuine and that the machines and other paraphernalia would be used to create false instruments. 9 The police located 203 plastic cards, being either credit/bankcards or Medicare cards. The majority of the cards were blank, while some had details recorded on them. The police located three drivers' licences that were false. 10 Arising out of these facts, which were not in dispute, the applicant pleaded guilty on indictment to three charges: Count 1: Possession of an unauthorised firearm contrary to s 7 of the Firearms Act 1996; Count 2: Have under control false instruments, namely, a New South Wales driver's licence and a number of Visa Credit Cards knowing them to be false instruments, with the intent that a person will use them to induce another person to accept the instruments as genuine and because of that acceptance, to do some act to the prejudice of another person, contrary to s 302 of the Crimes Act . Count 3: Have under control machines, namely, an embossing machine and a card printer and material, namely, blank credit cards, knowing them to be especially designed for the making of a false instrument with the intent that a person will use them to induce another person to accept the instruments as genuine and because of that acceptance, to do some act to the prejudice of another person, contrary to s 302A of the Crimes Act . 11 The possession of an unauthorised firearm is an offence that carries a maximum sentence of imprisonment for 14 years. It is an offence to which Division 1A of the Crimes (Sentencing Procedure) Act 1999 applies, and is subject to a standard non-parole period of three years. 12 The offences provided by sections 302 and 302A of the Crimes Act 1900 each carry a maximum penalty of imprisonment for 10 years. 13 The applicant was sentenced to concurrent fixed term sentences of 15 months imprisonment, to date from 12 December 2003 in relation to counts 2 and 3. In relation to count 1, the possession of the unauthorised firearm, he was sentenced to a non-parole period of two years and nine months to date from 11 March 2005. In respect of this matter a balance of term of one year and three months was specified. The effective sentence was thus one of five years and three months, with a non-parole period of four years. 14 The sentences are challenged on the sole ground that the overall sentence is manifestly excessive. 15 In written submissions filed on behalf of the applicant, senior counsel then appearing, put it this way: Whilst no specific complaint is made about the length of the individual sentences, it is not irrelevant that the sentence imposed on count 1 is very much towards the top of the range, so that the effect of making the sentence imposed on count 1 wholly cumulative on the fixed terms imposed on counts 2 and 3, where each of the offences was committed on or about 12 December 2003, is to render the total effective sentence manifestly excessive, when consideration is given to the applicant's subjective circumstances. 16 The applicant gave short evidence before the Judge concerning the circumstances of the offences. Such material, as casts light on his background, was contained in a pre-sentence report prepared by Ms Wittrien of the Probation and Parole Service, dated 29 April 2005. She recorded that prior to travelling to Australia in 2002 the applicant had been residing in Shanghai with his wife of 14 years and their 13 year old son. The applicant reported that his relationship with his wife was good, that she was aware of his circumstances, and that she continued to be supportive of him. He said that he had undergone military service with the Chinese Army and that thereafter he had been employed in a variety of positions in Shanghai, including as a driver for a transport company, as a security guard, and as a sales representative for a chemical company. 17 Ms Wittrien concluded her report with the observation: Mr Yang has maintained that he is innocent and claimed that he is an honest person who was simply unlucky in his unwitting association with others involved in criminal activity. However, the explanation he provided concerning his reasons for travelling to, and remaining in, Australia seem a little implausible and naïve for a man of his maturity and experience. Community-based sentencing options were not addressed in the pre-sentence report due to the applicant's immigration status. 18 The Judge was satisfied that the applicant was part of an organisation that was engaged in the manufacture of forged credit cards and licences. His Honour was unable to say what part the applicant played in the organisation. His Honour considered the presence of a loaded pistol, with its serial number removed, was consistent with the firearm being used for criminal purposes. 19 His Honour accepted the account of the applicant's background contained in the pre-sentence report to which I have referred. He concluded that the offences were part of a planned series of events, a circumstance of aggravation to which s 21A(2)(n) of the Crimes (Sentencing Procedure) Act directs attention. 20 The applicant's pleas of guilty were entered on the morning of trial, and the Judge allowed a discount of 10 percent to reflect their utilitarian value. 21 His Honour considered that the firearms offence involved a discrete form of criminal offending, and that it was a serious instance of an offence of this character. The suggestion in the written submissions that the fact that each of the offences was committed on the same day should have led to an order that the sentences be concurrent or only partially accumulated should be rejected: The structure of the sentences involved a discretionary determination and his Honour's decision was open: per Simpson J in R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66 at 67 [7]. 22 His Honour took into account that in determining to accumulate the sentence for the firearms offence - on the concurrent fixed term sentences for the offences arising out of the false instruments - it was appropriate to find special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act, with a view to structuring an effective non-parole period that produced an outcome of approximately 75 percent of the aggregate sentence. 23 In oral submissions counsel drew to attention that strictly 75 per cent would produce a non-parole period some three weeks less than that which his Honour specified. The appeal is an appeal against manifest excess and a complaint of this character is not one that the Court should entertain. His Honour determined that the sentence for the firearms offence should be accumulated on the sentences for the two other offences and directed his mind to the effect that the order for accumulation would have when he came to fix the non-parole period. The circumstance that the non-parole period is marginally in excess of 75 percent of the effective term is not suggestive of error. 24 In both the written submissions and in oral submissions it was put that the total effective sentence is manifestly excessive in that his Honour failed to give sufficient weight to the applicant's subjective circumstances, these being: the plea of guilty, his age, his absence of prior convictions, and the circumstance that he does not speak English and that his family live in China. 25 Our attention was directed to the judgment of this Court in R v Huang [2000] NSWCCA 238: 113 A Crim R 386 per Adams J at [18] - [19]. In Huang his Honour noted, that imprisonment may be more harsh for a foreigner with limited English who has no friends or family who are able to visit. This was a consideration which his Honour observed, required some, though not much, recognition. In making this observation his Honour distinguished such a case from R v Ferrer-Esis (1991) 55 A Crim R 231, in which Hunt CJ at CL made observations relating to persons who come to this country specifically and quite deliberately to commit a serious crime. In the course of oral submissions it was noted that his Honour had made no finding of the latter sort in this case. That is so. His Honour was not asked to make a finding, nor was his attention specifically directed to this consideration. His Honour did take into account the subjective circumstances that are recorded in the pre-sentence report. 26 I am not persuaded that the individual sentences, nor the overall effect of the sentences, is to be taken to exhibit error by reason of a presumed failure to give appropriate recognition to the circumstance that the applicant is a Chinese national with limited English or any other of the subjective circumstances that were identified in the pre-sentence report. 27 The offences were serious instances of criminal offending of their kind. The sentences cannot be characterised in their overall effect as having produced a result that is plainly unjust or unreasonable. I consider they were within the range of sound discretion, and for this reason I grant leave to appeal, but I refuse the appeal. 28 SULLY J: I agree 29 HOEBEN J: I agree. 30 SULLY J: The orders will be as proposed by her Honour. ********** 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.