Pin v R [2014] NSWCCA 214

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Pin v R [2014] NSWCCA 214 Hearing dates: 28 March 2014 Decision date: 28 March 2014 Before: Hoeben CJ at CL at [1]; Adams J at [2]; Bellew J at [6] Decision: Leave to appeal refused. Catchwords: CRIMINAL LAW - appeal against sentence - assistance given to authorities taken into account on sentencing Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(m), 23 Category: Principal judgment Parties: Sakona Pin (Applicant) Regina (Respondent) Representation: Counsel: D N Stewart (Applicant) V Lydiard (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2012/78687 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-03-07 00:00:00 Before: Craigie DCJ File Number(s): 2012/78687

Judgment 1HOEBEN CJ at CL: I agree with Adams J. The orders of the Court will be those as proposed by Adams J. 2ADAMS J: This is an application for leave to appeal from sentences imposed by the District Court for two offences of robbery committed in company on 9 March and 11 March 2012. The three offenders in both offences were the applicant, Tony Nguyen and Jason Trieu, all of whom had known each other since school days. 3The applicant was arrested following the attempt to deal with a mobile telephone which had been stolen from the victim of the second robbery. He pleaded guilty to both offences. The sentences imposed resulted in a total effective sentence of 3 years with a non-parole period of 18 months. There is no appeal on the ground of manifest excess. The sole ground of appeal is that the learned sentencing judge failed to address the issue of assistance to authorities given by the applicant to investigating police in his interview of 11 March 2012, which resulted in the identification and arrest of his co-offenders; accordingly, failing to apply ss 21A(3)(m) and 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The applicant was indeed interviewed by police on 11 March 2012. It is also true that he gave certain details to police about the events preceding the robbery and the robbery itself, and then what occurred thereafter. 4During the interview the applicant suggested, amongst other things, that he had been inveigled into these offences of 11 March but that he was reluctant and was influenced into undertaking them by one or other of his co-accused. So far as the identification of the co-accused was concerned, he named one, Jason, but did not proffer a surname, (although he knew it well), and he named the other Tony and, when asked what his surname was - though the applicant knew it well - the question was asked: "Do you know Tony's surname?" The answer was, "No, sir. I only met him that night". Accordingly rather than giving information, he gave only the first name, which said little, and falsely denied that he was aware of the surname. Furthermore, he said that his age was about 23 or 24, which was also a lie. He was somewhat younger; a matter, as I say, that it is reasonable to infer that he knew because he had been at school with that man. The identification of Nguyen in fact occurred because one of the investigating police officers recognised Nguyen from a video as being a person who was involved in the first of the robberies. The assistance, therefore given to the police, was trivial. 5It is true that the Crown Prosecutor, at the hearing on sentence, conceded the applicant gave some assistance. The matter of assistance was not referred to by the learned sentencing judge. In my view, it might have been better since the Crown had raised it - though not raised by the applicant's legal representative - for his Honour to mention the matter and explain why no discount should be given for that assistance. As the matter was not relied on by counsel for the applicant, it may be accepted that he was happy with the concession made by the Crown and the assistance was in fact so trivial as not to warrant any discount. It seems to me that in dealing with the substantial issues in considering the sentencing properly - as his Honour did - his Honour made no error by not mentioning this aspect. It was, indeed, irrelevant. For these reasons I propose leave to appeal should be refused. 6BELLEW J: I agree with Adams J.