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.