New South Wales Court of Criminal Appeal CITATION: Ta v R [2009] NSWCCA 196 HEARING DATE(S): 24 July 2009 JUDGMENT DATE: 24 July 2009 JUDGMENT OF: Basten JA at 1, 38, 52; Hulme J at 39; Johnson J at 2, EX TEMPORE JUDGMENT DATE: 24 July 2009 DECISION: Application for leave to appeal against sentences is refused. CATCHWORDS: CRIMINAL LAW - sentence - robbery whilst armed with dangerous weapon - two robberies and one attempted robbery - planned and co-ordinated offences committed at three separate hotels over short period - whether part of same criminal enterprise - whether error in accumulation of sentences - whether sentences manifestly excessive - whether leave to appeal against sentences ought be granted - leave refused Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 CATEGORY: Principal judgment Nguyen v R [2007] NSWCCA 14 R v XX [2009] NSWCCA 115 CASES CITED : R v Fadi Jajou [2009] NSWCCA 167 Clarke v R [2009] NSWCCA 49 R v Henry (1999) 46 NSWLR 346 Veen v The Queen (No 2) (1987-1988) 164 CLR 465 PARTIES: Ahn Tuan Ta (Applicant) Regina (Respondent) FILE NUMBER(S): CCA 2007/13849 COUNSEL: Ms C Nash (Applicant) Ms M Cinque (Respondent) SOLICITORS: Ford Criminal Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 07/11/0704 LOWER COURT JUDICIAL OFFICER: CJ Armitage DCJ LOWER COURT DATE OF DECISION: 15 August 2008 2 IN THE COURT OF CRIMINAL APPEAL 2007/13849 BASTEN JA RS HULME J JOHNSON J 24 July 2009 AHN TUAN TA v REGINA Judgment 1 BASTEN JA: I invite Johnson J to deliver the first judgment. 2 JOHNSON J: The applicant, Ahn Tuan Ta, seeks leave to appeal against sentences imposed at the Parramatta District Court on 15 August 2008 with respect to two counts of robbery whilst armed with a dangerous weapon under s 97(2) Crimes Act 1900 and one count of attempted robbery whilst armed with a dangerous weapon. 3 The maximum penalty for each offence was imprisonment for twenty-five years. There is no standard non-parole period for this offence. 4 The applicant had pleaded not guilty to each charge and was convicted on all counts following trial by jury. Each offence was committed on 15 February 2007. The following sentences were imposed for the offences: (a) Count 2 - attempting to rob Colin McNamara of certain property, a quantity of cash, the property of St Patrick's Tavern, whilst armed with a dangerous weapon, a pistol - non-parole period of three years to date from 24 April 2007 and expire on 23 April 2010 with a balance of term of two years to date from 24 April 2010 and to expire on 23 April 2012; (b) Count 1 - robbing Christopher Walker of certain property, the sum of $49,605.00, the property of St Leonards Tavern, whilst armed with a dangerous weapon, a pistol - non-parole period of four years to date from 24 April 2008 and to expire on 23 April 2012 with a balance of term of two years to date from 24 April 2012 and to expire on 23 April 2014; (c) Count 3 - robbing Daren Adler of certain property, the sum of $41,725.10, the property of the Madison Hotel, whilst armed with a dangerous weapon, a pistol - non-parole period of four years to date from 24 April 2009 and to expire on 23 April 2013 with a balance of term of two years to date from 24 April 2013 and to expire on 23 April 2015. 5 The total effective term with respect to the three offences comprised a non-parole period of six years to date from 24 April 2007 and to expire on 23 April 2013 with a balance of term of two years to date from 24 April 2013 and to expire on 23 April 2015. The Applicant was arrested on 24 April 2007 and has been in continuous custody since that date. Facts of Offences 6 The sentencing Judge made findings of fact with respect to the offences. What follows is drawn from those findings. 7 At about 1.34 am on Thursday, 15 February 2007, two men ran into the St Leonards Tavern, Pacific Highway, St Leonards (Count 1). One man was armed with a samurai sword and the second man was armed with a pistol. The two men had got out of a red Subaru WRX driven by the Applicant. The Applicant parked the vehicle and went to the door of the hotel, yelling to his accomplices to open the door. Each of the three men wore gloves and hoods which disguised their faces. Events inside the hotel were recorded by CCTV. The three offenders yelled at patrons and staff to stay on the ground. The manager was directed to take the offenders to the office and open the safe from which cash was removed and placed into a shopping bag. Whilst that was happening, one of the offenders took another staff member to empty money out of cash registers. The manager was then directed to open all the poker machines and remove cash from them. 8 The Applicant moved between various parts of the premises, ensuring that the patrons and security guards stayed down. At one point, he walked over to one of the security guards and told him to get up, at the same time pointing to the gun which the security guard had in his holster. The security guard feared that he was about to be shot. The Applicant directed the guard over to the bar area and walked away. During the course of the robbery, the three offenders communicated by way of two-way radio. One radio transmission overhead by witnesses expressed words to the effect "It's all good, it's all good, we've got it under control". As they were leaving the premises, one offender was heard to say "Let's go, let's go". A total of $49,605.00 was taken during the robbery. 9 The Applicant and his co-offenders then travelled directly into the city of Sydney. At about 1.45 am, they attempted to commit an armed robbery at St Patrick's Tavern located in King Street, Sydney (Count 2). The Applicant parked the red Subaru WRX outside the hotel and the co-offenders forced their way through the locked front doors of the premises by kicking them in. CCTV footage depicted one of the offenders holding a gun and the other a samurai sword. Hotel staff, including a security guard, were in the process of closing the premises for the evening. When staff heard noises coming from the doors, they telephoned the police. They then fled into the fire stairs where they waited, until the offenders had left. CCTV footage from inside the hotel showed the offenders trying unsuccessfully to force open the bar till. After a short while, they fled and got back into the vehicle which quickly drove away. 10 The offenders then travelled to Surry Hills. At about 1.50 am, they committed another robbery at the Madison Hotel located at 52 Devonshire Street, Surry Hills (Count 3). They were observed to arrive in the Subaru vehicle which stopped directly outside the hotel. Two of the offenders ran into the premises and confronted staff. One offender was armed with a samurai sword and the other with a pistol. One of the bar staff, Matthew Bevan, attempted to escape by running outside. When he did so, the Applicant, who had remained in the car, drove it directly at him. This forced Mr Bevan to take cover behind a vehicle parked nearby in order to avoid being hit. The Applicant yelled out to him "Get inside or I'll fucking shoot you". 11 Once inside the hotel, the two co-offenders ordered staff to the ground before gaining access to the cash registers. One offender confronted the hotel manager and required him to open the hotel safe and remove cash from it. Whilst doing this, the manager heard the offender say "Check the two-way". Just before they fled the hotel, one robber spoke into his two-way radio and said "Yeah, Ok, Ok" and then yelled out to the second robber "Let's go, let's go". A total of $41,725.10 in cash was taken and the three offenders sped away in the Subaru vehicle. 12 At about 10.15 pm on Friday, 16 February 2007, the red Subaru was located in Alexandria on fire. The fire was extinguished and a search of the vehicle revealed, amongst other things, a sledgehammer, 11 poker machine cash boxes, the remains of a scanner or portable radio and the remains of two samurai swords. Subsequent examination of the vehicle established that it had been stolen from Alexandria on 20 December 2006. 13 During the period prior to the offences, the Applicant's telephone was the subject of a telephone intercept warrant. A number of telephone calls were intercepted between the evening of Wednesday, 14 February 2007 and the afternoon of 19 February 2007 which provided cogent evidence of the Applicant's involvement in the subject offences. 14 The Applicant was arrested at his residence on 24 April 2007. Execution of a search warrant upon the premises revealed, amongst other things, a Subaru ignition module with a key in it, these items being capable of starting and running a 2000 model Subaru Impreza WRX. The Applicant was interviewed by police and denied his involvement in the offence. The Applicant's Subjective Circumstances 15 The Applicant was born in August 1983. He was 23 years old at the time of the offences and 25 years old at the time of sentence. 16 The Applicant has a prior criminal history. In 2001, he had convictions which resulted in control orders in the Children's Court for using an offensive weapon to prevent lawful apprehension, larceny, driving a conveyance without consent of the owner, assault police and entering a building with intent to commit an indictable offence. 17 In February 2003, the Applicant was sentenced to terms of imprisonment for three offences of driving whilst disqualified. 18 Between 2003 and 2005, the Applicant was sentenced to terms of imprisonment for aggravated break, enter and commit serious indictable offence and assault police officer in the execution of duty causing actual bodily harm. 19 On 30 November 2005, he was sentenced to imprisonment for 18 months, with a non-parole period of 12 months, for driving whilst disqualified. The present offences were committed on 15 February 2007 whilst the Applicant was on parole. 20 A pre-sentence report recorded that the Applicant's past response to supervision ranged from superficial to complete non-compliance. 21 The Applicant was born in a refugee camp in Hong Kong to parents of Vietnamese descent and had come to Australia in 1985. He has a history of illicit drug use and problem gambling. 22 A psychological report was also tendered on sentence which touched upon aspects of the Applicant's background and offending behaviour. Grounds of Appeal 23 The Applicant advances the following grounds of appeal: (a) Ground 1 - the learned sentencing Judge erred in relation to the degree of partial accumulation. (b) Ground 2 - the sentences were manifestly excessive. 24 It is appropriate to consider the grounds together. 25 Ms Nash, counsel for the Applicant, submitted that the sentencing Judge erred by imposing a period of partial accumulation of 12 months in respect of each of the individual sentences. It was submitted that a greater degree of concurrency was appropriate in the circumstances. She submitted that all three offences were part of the one criminal episode, emphasising the relatively short period of time over which the three offences were committed. Whilst accepting the sentencing Judge's description of all three offences as being very serious and sophisticated criminal offences, it was submitted that the criminality of the attempted robbery offence was of a lesser order than that of the actual robberies and that this ought to have been reflected in the sentence passed. 26 It was noted that the sentencing Judge had found special circumstances and had fixed a non-parole period which was 60% of the head sentence on the attempted armed robbery offence and 66.67% on each of the armed robbery offences. However, as a result of the partial accumulation of 12 months for each sentence, the effective non-parole period comprised 75% of the effective total term. 27 Whilst acknowledging that the determination concerning accumulation and concurrency is essentially discretionary, it was submitted that error was revealed in the sentences imposed in this case. 28 With respect to the second ground, it was submitted that the sentences imposed upon the Applicant were manifestly excessive as a result of the suggested error with respect to accumulation, so that some other sentence was warranted in law and should have been passed. 29 The Crown pointed to submissions made in the District Court where it was accepted by the Applicant's then counsel that a degree of accumulation with respect to each sentence was appropriate. In this Court, it was contended for the Applicant that this submission advanced at first instance was erroneous. The Crown submitted that these were three entirely unrelated serious offences, two of which resulted in substantial amounts of money being obtained. The Crown submitted that no error had been demonstrated in the sentencing Judge's approach to accumulation and totality for these serious crimes. Decision 30 An assessment whether offences form part of the same criminal enterprise is relevant to the question of concurrency and accumulation of sentences: Nguyen v R [2007] NSWCCA 14 at [12]; R v XX [2009] NSWCCA 115 at [48]-[52]; R v Fadi Jajou [2009] NSWCCA 167 at [56]-[61]. 31 In my view, the present offences ought not be treated as forming part of the one criminal enterprise. These were three planned and co-ordinated offences, two of which involved completed offences of armed robbery with a dangerous weapon and one of which involved an attempted offence of the same type. In effect, the Applicant and his co-offenders, using a stolen vehicle, "hit" three separate licensed premises one after the other in different parts of Sydney. A pistol and sword were brandished and persons were threatened and put in fear. There were three separate groups of persons who where terrorised by the offenders. More than $91,000.00 in cash was obtained from two of the premises. The robbers were disguised and wore gloves, and used two-way radios to communicate with each other. The offences reflected a significant degree of criminal professionalism, executed with a degree of military precision. 32 The proper exercise of sentencing discretion demanded a degree and, in my view, a significant degree, of accumulation of the sentences to be imposed for the three offences. The Applicant has not demonstrated any error which could operate in his favour with respect to accumulation and totality in this case. 33 To the extent that complaint is made concerning the degree of accumulation for the attempted armed robbery offence, I detect no error on the part of the sentencing Judge. A shorter sentence was imposed for this offence, and the degree of accumulation allowed was open to his Honour. 34 His Honour made a generous finding of "special circumstances" leading to the imposition of a non-parole period for each offence which was less than 75% of the full term. The Applicant complains, however, that the total effective non-parole period represented 75% of the total effective term of imprisonment. Section 44 Crimes (Sentencing Procedure) Act 1999 is concerned with the relationship between the full term and the period on parole in relation to each particular offence for which an offender is being sentenced. When sentencing for multiple offences, s.44, although not irrelevant, does not mandate a relationship between an overall non-parole period and the remainder of the overall sentence: Clarke v R [2009] NSWCCA 49 at [11]. The Applicant has not demonstrated error in this respect. 35 Even if some error had been demonstrated with respect to sentence, the Applicant has not demonstrated that some lesser sentence was warranted in law and should have been passed for these three offences: s.6(3) Criminal Appeal Act 1912. Indeed, the sentences imposed were, in my view, lenient for offences of this gravity. The objective seriousness of these offences was high. The maximum penalty for each offence was imprisonment for 25 years. The offences were committed whilst the Applicant was on parole and his subjective circumstances did not assist him on sentence. Far from the sentences being manifestly excessive, they were lenient having regard to the circumstances of the offences and the offender. Conclusion 36 It has been the practice of this Court to readily grant leave to appeal against sentence. The question whether leave ought be granted should remain a live one, to be considered by reference to the merits of the application. The present application is devoid of merit. 37 In my view, leave to appeal against these sentences ought be refused. 38 BASTEN JA: I agree leave to appeal should be refused for the reasons given by Johnson J. This course should be adopted as an indication of the Court's opinion as to the lack of real prospects of the proposed appeal. 39 RS HULME J: I also agree with the orders proposed and with Johnson J's reasons. I would, however, go further. I regard the sentences that were imposed as manifestly inadequate. That that is so is demonstrated by a brief comparison of the circumstances here with those which were contemplated by this Court in the guideline judgment in R v Henry (1999) 46 NSWLR 346. 40 In that case, the Court said that an appropriate sentence for one offence in the circumstances there considered was a sentence which involved a full term of imprisonment of between four and five years. Here the effective full term imposed on the three offences was eight years. 41 I turn to the comparison of the circumstances outlined in R v Henry and those here. The first referred to in Henry was "a young offender with no or little criminal history". The Applicant here, aged 24, might have come within the description "young offender"; he did not fall within the description "with no or little criminal history". Apart from a significant number of driving offences, he had 10 convictions for offences of dishonesty, including three for aggravated break, enter and steal. 42 The second situation contemplated in Henry was "weapon like a knife capable of killing or inflicting serious injury". That description reflected the fact that Henry was concerned with an offence under s.97(1) and which carried a maximum penalty of imprisonment of 20 years. The offence here was under s.97(2) and carried a maximum penalty of imprisonment of 25 years. The presence of a samurai sword and pistol in this case demonstrates greater seriousness. 43 The third matter contemplated in Henry was a "limited degree of planning". Here it is clear the planning was extensive and the three offences were carried out, as the sentencing judge observed, "with military precision". 44 The fourth matter in Henry was "limited, if any, actual violence but a real threat thereof". The circumstances here, with one qualification to which I will come, were comparable. 45 The fifth matter in Henry was "victim in a vulnerable position, such as a shopkeeper or taxi driver". Clearly, the employees subjected to the threats here answered that description. 46 The sixth matter in Henry was "a small amount taken". In the two completed offences here $49,000.00-odd was taken in one and $41,000.00 in another. By no stretch of the imagination could those sums be regarded as being anywhere close to the prescription of "a small amount taken". 47 The next matter in Henry was "a plea of guilty". Here, there was no plea of guilty and that distinction alone would tend to increase the sentence from the range envisaged in Henry by something of the order of one-third. 48 The qualification to which I referred earlier when I mentioned "limited, if any, actual violence but a real threat thereof" is as follows. In R v Henry it was contemplated that the threat would be to one victim. In the case of each offence here, there were a number of victims, each of whom was subjected to the trauma of being threatened with a gun and/or samurai sword. The fact that there were so many more victims alone would have justified a very substantial increase in the sentence by comparison with that of Henry. 49 It is incomprehensible that, having referred to Henry in his remarks on sentence, his Honour did not reflect the differences to which I have referred in the sentences he imposed. 50 There is one other matter to which I would refer. His Honour observed: "As to aggravating factors the Crown submitted and I agree that there is a record of previous convictions relevant only on the question of individual deterrence." That proposition is wrong. It flies in the teeth of what the High Court said in Veen v The Queen (No 2) (1987-1988) 164 CLR 465 at 477-478. 51 I regret the fact that, as a practical matter in the absence of a Crown appeal, this Court is not able to substantially increase the effective sentence imposed. 52 BASTEN JA: The order of the Court is: Refuse the application for leave to appeal against the sentences imposed by the District Court on 15 August 2008. ********** 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.