New South Wales Court of Criminal Appeal CITATION: HAN, Zhi Qiang v R [2009] NSWCCA 300 HEARING DATE(S): 19 November 2009 JUDGMENT DATE: 18 December 2009 JUDGMENT OF: Campbell JA at 1; Howie J at 5; Rothman J at 6 (i) Leave to appeal the sentence, imposed by his Honour Judge Knox SC on the applicant on 23 March 2009, be granted; DECISION: (ii) Appeal be dismissed. CATCHWORDS: CRIMINAL LAW – appeal – sentence – manifest excess – proper range of sentences – use of statistics – appeal refused LEGISLATION CITED: Crimes Act 1900 CATEGORY: Principal judgment Johnson v R [2004] HCA 15; (2004) 205 ALR 346; (2004) 78 ALJR 616 Lowe v R [1984] HCA 46; (1984) 154 CLR 606 Markarian v The Queen [2005] HCA 25; (2005) 22 CLR 357 Mill v R [1988] HCA 70; (1988) 166 CLR 59 Pearce v R [1998] HCA 57; (1998) 194 CLR 610 CASES CITED : Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 R v Araya [2005] NSWCCA 283 R v F [2002] NSWCCA 320; (2002) 132 A Crim R 308 R v George [2004] NSWCCA 247; (2004) 149 A Crim R 38 R v Morgan (1993) 70 A Crim R 368 R v Singh [2001] NSWCCA 424 PARTIES: Zhi Qiang Han (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2008/8134 COUNSEL: P Boulton SC / J Overall (Applicant) F Veltro (Respondent) SOLICITORS: Ren Zhou Lawyers (Applicant) Office of the Director of Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2008/8134 LOWER COURT JUDICIAL OFFICER: Knox DCJ LOWER COURT DATE OF DECISION: 23 March 2009 IN THE COURT OF CRIMINAL APPEAL 2008/8134 CAMPBELL JA HOWIE J ROTHMAN J 18 DECEMBER 2009 HAN, Zhi Qiang v R Judgment 1 CAMPBELL JA: I have had the benefit of reading the judgment of Rothman J, which sets out the relevant facts. 2 Sentences imposed on other people for crimes that bear some similarity to the crime in question can legitimately be looked at as part of the process of a judge fixing a sentence. But in themselves they will not inform the judge of the range of sentences that would properly be open in a correct application of sentencing principles. It is the sentencing principles themselves that it is the duty of the judge to apply. They include taking account of the maximum penalty that Parliament has prescribed for the offence in question, and how the criminality of the particular mode of committing the offence that is being sentenced for compares to the criminality of the various possible ways in which a contravention of the particular prohibition that creates the offence could occur. 3 Statistics about the sentences that have been imposed for a particular offence can be of some assistance in informing the judge about the range of sentences that have actually been imposed for that offence. But the use of such statistics is limited. Part of the reason why that is so is because consideration of the range of sentences actually imposed is at best a check that the judge is correctly applying the sentencing principles. Part is because the statistics leach out many of the objective facts and all of the subjective circumstances that must be taken into account in a sentencing decision. Part is because the limited number of sentences that make up the sentences summarised by the statistics do not necessarily cover the full range of circumstances in which that particular crime can be committed. This list does not purport to be exhaustive. 4 For the reasons given by Rothman J at [43]-[47] the sentences in this case were not manifestly excessive. I agree with the order proposed by Rothman J. 5 HOWIE J: I agree with Rothman J. 6 ROTHMAN J: The applicant, Mr Han, seeks leave to appeal and, if granted, appeals the sentence imposed by his Honour Judge Knox SC of the District Court. Mr Han pleaded not guilty to two charges of demanding money with menaces, the maximum penalty for each being imprisonment for 14 years. He was convicted by a jury and sentenced by his Honour in relation to one of those charges (Count 1) to imprisonment for 3 years, with a non-parole period of 2 years and, in relation to the second of those charges (Count 3), to imprisonment for a fixed term of 12 months, wholly concurrent with the non-parole period in the other count. There is no standard non-parole period for the offences here in question. 7 The first offence (Count 1) occurred on or about 13 August 2006 and the second offence (Count 3) occurred between 28 April 2007 and 3 May 2007. The offences are referred to, respectively, as Counts 1 and 3 (Count 2 relates to two other offenders, who demanded money with menaces against the same person in similar or related circumstances). There were also counts of dealing with the proceeds of crime, which are currently irrelevant. 8 In respect to Count 2, relating to Messrs Hu and Huang, Mr Hu was sentenced to imprisonment for 18 months, with a non-parole period of 12 months, and Mr Huang was sentenced to imprisonment for 18 months, the sentence then wholly suspended. 9 In his notice of appeal, Mr Han raised the following grounds of appeal: In relation to Count 1 (the Campsie offence): Ground 1: The sentence was manifestly excessive; Ground 2: Error in the finding of fact that the demand for money was based on one box removed from the restaurant and placed in the victim's car; Ground 3: Error in the finding of fact that Mr Han knew that the threats were made and the general nature of them. In relation to Count 3 (the Carlingford offence): Ground 4: The sentence was manifestly excessive; Ground 5: Lack of parity between the sentence imposed upon Mr Han and the sentences imposed upon Messrs Hu and Huang. 10 At the hearing, no grounds, other than manifest excess, were pressed. 11 The somewhat cryptic reference in ground 2, above, to the finding of fact based upon one box removed, relates to an attempt to suggest that the demand for money made by Mr Han related to the benefits received by the victim, Mr Alan Lo, from conduct that Mr Han described as larceny, by Mr Lo, as a servant. It is necessary to recite the facts before dealing with the ground of appeal. Facts 12 Mr Han, hereinafter referred to as the applicant, was the owner of a restaurant at Campsie. The victim, Mr Lo, was an employee of the applicant. During the course of 2006, the applicant became concerned that he was losing money in the restaurant and considered that someone was pilfering goods from him. As a consequence of that concern, he went to some trouble and expense to install a CCTV camera and related security equipment. 13 Sometime during the course of 2006, the applicant was shown a video of the victim leaving the restaurant with a box, which was a polystyrene box. 14 On 13 August 2006, the victim asked Mr Chen, the manager of the restaurant, for his wages, as he had not been paid for the previous two weeks. Mr Chen asked him to go upstairs with him, where Mr Chen showed the victim the video of the victim exiting the rear of the restaurant with a box. Mr Chen accused the victim of stealing things from the restaurant. The victim denied stealing anything and explained that the box was empty and that he had intended using it to store things. During the course of this conversation, the applicant and two other persons entered the room. 15 Mr Chen demanded compensation from the victim, who asked how much Mr Chen was prepared to accept. The evidence was that the victim had asked that question because he believed that these men had a criminal background and that he was scared for his safety and he was prepared to pay an amount. The victim suggested the sum of $2,000. The applicant rejected that amount and the applicant continued to ask the victim to calculate the amount that he considered he needed to pay. 16 At one point during this conversation, when all of the abovementioned were in the room, a demand was made on the victim that he pay $17,700. At the time that this conversation was occurring, the victim was owed wages to the amount of $2,700. He was told that he needed to pay an amount of $15,000 and forego the wages that he was owed. The victim made it clear that he did not have that amount of money. 17 No attempt was made to explain how it was said the figure of $17,700 was calculated. He was then told that he needed a guarantor for the debt and the suggestion was made that his girlfriend be rung by him and asked to guarantee the amount. The victim was told that if the girlfriend did not arrive before 2.00am, there was no guarantee as to what would happen. The girlfriend owned another restaurant. The victim was told that if the girlfriend did not arrive and/or the guarantee not be arranged, someone would be sent to burn down her restaurant and also hurt the victim's family. The victim rang his girlfriend, who arrived shortly thereafter. 18 During the time that the five men were waiting for the girlfriend to arrive, Mr Chen, the manager, required the victim to copy, in his own handwriting, a document the effect of which was that it acknowledged a debt for $17,700, less the salary for two weeks, to be paid by 15 August. The document was in Chinese and was referred to at the trial and in the remarks on sentence as the "I.O.U". 19 When the victim's girlfriend arrived, she too was shown the video. The victim protested his innocence, to which Mr Chen reacted by telling him to "shut up". Mr Chen made the comment that he needed to teach the victim a lesson. There was some discussion between the victim and his girlfriend, after which the girlfriend, scared of what might happen, offered to pay $5,000 to settle the matter. This offer was rejected. Mr Chen demanded at least $15,000. When the girlfriend asked what would happen if that amount could not be provided, Mr Chen said: "you know who I am, and you also know that I have a lot of brothers around." 20 The girlfriend signed the document as guarantor, upon which the victim and she were allowed to leave. Unsuccessful attempts were made to finance the amount of money. On 15 August 2006, the victim reported the matter to police. The police contacted Mr Chen, who informed them that the victim had been confronted over allegations that he was stealing stock and had agreed to pay back $15,000. Mr Chen denied any wrongdoing. 21 On 2 September 2006, police attended the applicant's restaurant for a meeting with the applicant and the applicant's counsel. A solicitor was also present. The police were provided with the CCTV tape, the I.O.U document and some other ancillary documentation. Police requested an itemised account, written in English, of what, it was said, the victim had stolen. 22 The victim, understandably, did not return to the restaurant and gained other employment. On 29 April 2007, his new employer told him that two men (Messrs Hu and Huang) were waiting to see him. The victim did not know, at this stage, either of these men. Mr Hu (who called himself, and is referred to as, "Fat Tom") told the victim that he owed money to his former boss and that he had come to collect it. Mr Hu referred to the amount of $10,000 and there was a reference to the I.O.U. He also made it clear that if he didn't pay off the debt there may be trouble, and that he would return the next night. 23 After this conversation, the victim became scared and contacted police at 1.00am on 30 April 2007. Arrangements were made for the victim to wear a listening device. When Messrs Hu and Huang arrived at the restaurant on the next evening, the conversation was recorded. Mr Hu referred to himself as "Big Circle Fat Tom". "Big Circle" referred to an alleged gang. The victim told them that he could pay them $1,000 first up, but wanted a receipt. With that comment, the victim handed over $1,000, in marked notes, that had been provided to him by the police. 24 The next day, the victim rang Mr Hu and told him that, as a result of a windfall at the casino, he, the victim, was able to pay off the remaining $9,000. He also tried, unsuccessfully, to telephone the applicant. The applicant returned his call. In that conversation, the victim asked the applicant whether he had sent "Tom" over to see him and collect the debt and whether he, the applicant, had received the $1,000. The applicant replied in the affirmative. The applicant made it clear that the victim needed to pay the balance and "if you are looking for trouble, I can surely give you a lot of trouble through my boys." 25 On 3 May 2007, the victim, once more fitted with a listening device, paid over $9,000, provided by the police, to Messrs Hu and Huang. Shortly thereafter, Messrs Hu and Huang were arrested and found to be in possession of the $9,000, plus some of the original $1,000. The applicant was, at that stage, also arrested by police and charged with these matters. 26 As earlier stated, the applicant contended at trial that he had a genuine belief that the victim owed him money as a result of his pilfering or embezzlement of food and other stock. Thus, it was said, the applicant's threats were part of a legitimate commercial debt recovery process. The applicant gave evidence at the trial. His evidence was that a stocktake had found that some $18,000 worth of items were missing and he denied threatening the victim. He accepted that money had been sought from the victim and he accepted that he sent Mr Hu and Mr Huang around to collect money, when the victim was working at Carlingford. He denied, however, that he asked either Mr Hu or Mr Huang to threaten the victim. 27 The express finding of fact by the trial judge, and the necessary result of the finding of guilt by the jury, is that the applicant's claim that there was a legitimate debt was rejected and the amount that he had sought from the victim was money to which the applicant was not entitled. The foregoing summary of facts is taken largely from the summary by the Crown, in this appeal, but fairly represents the findings of fact by the sentencing judge, and the material that had been adduced during the course of the trial. The foregoing summary is sufficient for the purpose of understanding the discussion on the grounds of appeal, which are next discussed. Ground of Appeal 28 As earlier stated, at hearing, senior counsel appearing for the applicant pressed no grounds other than manifest excess, and in that regard, seemingly only in relation to the sentence for the offence that is Count 1. Nevertheless, some comment needs to be made on the other grounds of appeal, because the raising of some of those grounds affects the discussion on manifest excess, even though the grounds are no longer pressed. 29 The grounds relating to what are essentially findings of fact, namely, grounds 2 and 3 in relation to the Campsie offence, disclose that, even at the time that the grounds of appeal were drafted, Mr Han had no understanding of the nature of his criminality, or remorse for his conduct. A jury necessarily found that the applicant knew that the threats were made and the general nature of them, because absent such a finding, the applicant would not have been found guilty. 30 The ground of appeal, relating to whether the threats and demand for money were based upon one box being removed from the restaurant, or more material than that, shows most clearly that there is little or no remorse or understanding of the nature of the criminality of the conduct. It is not for individuals in society to enforce their own debts by the making of threats of physical harm. It is fundamental, to the rule of law and the nature of civilised society, that any allegation that debts are owed, when contested, is resolved independently and by the judicial process. 31 Even assuming, of which there is no evidence, that the victim in this case had stolen $18,000 worth of goods, it is not for the applicant to threaten physical violence, on two separate occasions, in order to obtain the amount that he considers he was owed. Moreover, the issue of whether the applicant was, in fact, owed this amount of money was put directly to the jury by the trial judge and the jury received specific instructions on it. Once more, the raising of this ground at the stage of appeal shows, fairly clearly, that the applicant does not appreciate the effect of the jury verdict, nor that his conduct was wrong, and does not appreciate the criminality of his conduct. Nevertheless, the applicant is entitled to raise grounds of appeal and cannot be punished more severely for exercising his fundamental rights. 32 I turn then to the issue pressed on appeal, namely manifest excess. All or most sentencing is a process of intuitive synthesis: Markarian v The Queen [2005] HCA 25; (2005) 22 CLR 357. A ground of appeal based on manifest excess is, more than most, within that category. Nevertheless, there are some aspects of the submissions put in support of the ground of appeal that require comment. 33 The submissions on appeal raised an issue of whether the submission was based upon some proposition of parity amongst offenders, who are not co-offenders. Senior counsel for the applicant eschewed such a submission. This approach of senior counsel was both appropriate and correct. 34 It is impermissible to compare, in the sense that one compares sentences for co-offenders, sentences imposed on offenders for different offences: R v Morgan (1993) 70 A Crim R 368 at 371; R v F [2002] NSWCCA 320; (2002) 132 A Crim R 308 at 315; R v George [2004] NSWCCA 247; (2004) 149 A Crim R 38 at 47; R v Singh [2001] NSWCCA 424 at [12]. In R v Araya [2005] NSWCCA 283, Johnson J, with whom Simpson J and I agreed, summarised the law, as it then applied, at [53]-[71]. With great respect to his Honour Justice Johnson, I adopt that summary. 35 It is relevant to note that the parity principle is based upon the principle of equal justice. That principle requires that like should be treated with like, but, to the extent that there are relevant differences, due allowance should be made for them: Lowe v R [1984] HCA 46; (1984) 154 CLR 606, in particular at 623 per Dawson J; Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 at 301, per Dawson and Gaudron JJ. 36 As is made clear in all of the cases, a discrepancy in sentence is not, even in respect to co-offenders, a basis for appeal, or for overturning a sentence. That which is required is a disparity that is unjustifiable. This is an aspect of equal justice. 37 It is impermissible to compare, for the purposes of disparity, sentences for different offences. No two offences are the same, and a difference in the sentence imposed on offenders, who have been engaged in different conduct and been charged with different offences, is to be expected. 38 The principles of equal justice, in relation to contraventions of the same law, but different conduct and offences, is implemented through the application of the principle of consistency in sentencing, which seeks to ensure that the sentence that is imposed is within the range of sentences available for the particular offence and the particular offender. As was said by Simpson J in R v F, supra, at 315: "Consistency in sentencing may be achieved by the slavish adoption, by a subsequent court, of a sentence selected by an earlier court when the facts are comparable. However, that would be consistency purchased at the cost of the sacrifice of the proper exercise of judicial discretion. Within the bounds of the appropriate range of sentences, each sentencing judge (either at first instance or following appeal) must bring to bear his or her own independent assessment of the particular case. … Consistency is not derived from a single case. Consistency in sentencing will be achieved from a range of cases involving similar features, and also variables. It depends upon the accumulated wisdom and experience of sentencing judges. In my opinion a single case is inadequate to enable a principled consistent approach. … Moreover, while consistency in sentencing is, no doubt, an important goal, equally important for the administration of justice is the public perception that sentences imposed by criminal courts are appropriate to the nature and seriousness of the crime committed." Meagher JA (at 309-310) and Howie J (at 316-317) agreed with Simpson J, but preferred to use the words "more important" rather than "equally important", when referring to the public perception that sentences imposed must be appropriate to the nature and seriousness of the crime committed. With great respect, I adopt the comment that the appropriateness of the sentence, given the seriousness and nature of the crime committed, is a "more important", rather than "equally important", principle. 39 It is in the context of determining an appropriate range, that reliance is often placed upon statistics. The difficulty with reliance upon statistics is that an overly strict reliance on the range of sentences previously imposed will be a self-fulfilling limitation, which may bear no relationship to the maximum sentence or the criminality of the conduct. 40 In the circumstances of the current offences with which the applicant was to be sentenced, as earlier stated, the maximum penalty, for each of Count 1 and Count 3, was 14 years' imprisonment. The overall sentence imposed was, because of concurrency, a non-parole period of 2 years as part of an overall sentence of 3 years. The statistics disclose that 61% of persons sentenced (other than in the Local Court) for an offence of this kind have a prison sentence imposed upon them, of which the heaviest sentence imposed was 42 months, and the lightest was 12 months. The median offender was sentenced to 18 months, and the median non-parole period was 6 months. I consider such a range of sentences, in light of the statutory maximum, inexplicable. Of course, the statistics include all persons who pleaded guilty, were granted reductions for assistance to police and law enforcement agencies and the like. Nevertheless, the proposition that the heaviest sentence ever imposed was 3 ½ years, in circumstances where the maximum penalty is 14 years, is less than one might expect. 41 There are possible explanations. The more serious offences may also be a contravention of s 86 of the Crimes Act 1900 (kidnapping), with a maximum sentence of 20 years. Alternatively, most of the serious offences may have been subject to multiple charges each of which is lighter than might otherwise be the case. A third possibility may be that coincidentally all of the previous offences may have been lower level offences. Whatever be the situation, the range disclosed by the statistics does not adequately reflect the seriousness of this offence, now before the Court. 42 Notwithstanding the foregoing comment, and notwithstanding that I consider the range of sentences suggests too lenient an approach, it is inappropriate that Mr Han be used as a scapegoat for the increase in that range of sentences. 43 However, Mr Han was sentenced for two offences. The sentencing judge noted, with which comment I agree, that the two separate offences were separated in time and that the offences required and deserved separate sentences. Nevertheless, the effect of the sentence imposed is that no separate punishment was imposed. Even if I were to use the range of sentences included in the statistics that have been provided, and I were to accept the description of his Honour, the sentencing judge, that the culpability was low to mid range, it would be necessary for me to impose a separate punishment for each of Count 1 and Count 3. 44 While there would be some degree of concurrence, the sentences ought not to have been wholly concurrent. When imposing a sentence for more than one offence, the sentencing judge is required to fix an appropriate sentence for each offence and then consider questions of concurrence. Unless it can be said that each offence is committed as part of a single criminal activity, the sentences should be determined without reference to each other and, then, by imposing the sentences wholly or partially concurrently, the sentencing judge achieves the necessary degree of punishment for the total criminal conduct: Pearce v R [1998] HCA 57; (1998) 194 CLR 610; Mill v R [1988] HCA 70; (1988) 166 CLR 59; Johnson v R [2004] HCA 15; (2004) 205 ALR 346; (2004) 78 ALJR 616. 45 In this case, his Honour had two separate offences, which required separate punishment, with a degree of concurrence. Instead, his Honour fixed a sentence for Count 1, which may have been heavier than the sentence imposed on a median offender based on the range of sentences that is currently available on the statistics provided, but then fixed a second sentence (Count 3) that was wholly concurrent and below mid-range. This is an unorthodox approach. Nevertheless, the sentence imposed for Count 1 is not a sentence that is beyond the range that was available for the criminality involved in the offence. In my view, it is not beyond that which is available, even by comparison with the inadequate sentences that seem to be reflected in the statistics. Even if it were excessive by comparison with the current statistics, if one were required to quash the sentence, one would need to quash the sentence imposed for both Count 1 and Count 3 and re-sentence accordingly, and on no reasonable analysis of the overall sentence imposed could it be said that the overall sentence was manifestly excessive, taking into account both offences. The overall non-parole period is less than the 3:1 ratio that the statute requires. 46 On the range of sentences evidenced in the statistics provided, which, as I have said, I consider to be an inappropriate range for the criminality involved, such an overall sentence for two offences (even accounting for the degree of overlap between the criminal conduct) is not manifestly excessive. A fortiori, it is not a sentence that is manifestly excessive measured by what is appropriate for the criminal conduct involved. 47 Further, I do not consider that a lesser sentence is warranted for the criminal conduct involved, bearing in mind all that can be said in terms of the subjective features of the offender. 48 I propose that the Court make the following orders: (i) Leave to appeal the sentence, imposed by his Honour Judge Knox SC on the applicant on 23 March 2009, be granted; (ii) Appeal be dismissed. ********** 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.