LIAO v R

CASES CITED: De Simoni (1981) 147 CLR 383 Henry (1999) 46 NSWLR 346

PARTIES: Han Liao (Appl) The Crown

COUNSEL: T J Golding (Appl) W Dawe WC (Crown)

SOLICITORS: Legal Aid Commission of NSW (Appl) Director of Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2007/35

McCLELLAN CJ at CL HULME J HOEBEN J

MONDAY 2 APRIL 2007 LIAO, Han v R Judgment 1 McCLELLAN CJ at CL: The applicant pleaded guilty to one count of robbery when armed with an offensive weapon contrary to s 97(1) of the Crimes Act 1900. The maximum penalty for the offence is twenty years imprisonment. He was sentenced to a non-parole period of two years and nine months to commence on 8 December 2005 and expire on 7 September 2008. The sentencing judge imposed a further term of three years and three months making a total sentence of six years. 2 The applicant pleaded guilty at the earliest opportunity. There was no issue as to the relevant facts which were included on a fact sheet which read as follows: "The victim Michelle Ho and her daughter Eva Kwok and the offender Han Liao all reside at the premises 18 McArthur Street Ultimo. Mrs Ho is the owner occupier of the premises and lives there with her daughter Kwok whilst the offender is a tenant. The offender occupies the bedroom located on the third (top) level of the three-storey townhouse. Each bedroom can be locked individually. At about 10.15 am Thursday 8 October 2005 the offender went to Ho's bedroom located on the second floor and spoke to her about fixing a broken window in his bedroom. The offender returned to his bedroom whilst Ho entered the offender's bedroom several minutes later to look at the window. As Ho entered the room the offender held a black handled kitchen knife in his right hand and a wooden rolling pin in his left hand. The offender placed the blade of the knife against Ho's neck and said, 'I don't want to hurt you, all I want is money, please don't scream.' Whilst the knife was placed against Ho's neck the offender has demanded her to hand over money. The victim screamed and the offender fearing Kwok would hear used the rolling pin and hit Ho once connecting with her upper right arm. The offender demanded the victim's wallet and fearing for her life, Ho told the offender it was in her bedroom located on the second floor. The offender then used bed sheets cut into strips and tried to tie Ho's hands behind her back. Ho struggled with the offender and during the struggle the knife cut Ho's left hand. The offender tied Ho's hand together in front of her chest, tied her feet together and gagged her mouth. The offender pushed Ho on the bed and then left the room and went to Ho's bedroom to search for the wallet. Unable to locate the wallet, the offender returned to his bedroom, saw that the victim was now standing up. He pulled out the mouth gag and again demanded to know where the wallet was. At this point the knife was still in the offender's right hand. Ho feared for her life and told the offender her wallet was located in the second drawer of her wardrobe. The offender again left Ho tied up and returned to her bedroom but again was unable to find the victim's wallet. The offender again returned to his bedroom and confronted the victim. The offender said, 'Don't scream, I will kill you then myself.' The offender then placed his left hand on Ho's left shoulder and placed the knife against the back of her right shoulder. With the victim in front of the offender, he forced her to walk down the stairs. As Ho's feet were still tied she had to hop along. After a short distance the offender untied the victim's feet and told her to be quiet. The offender and the victim made their way to her bedroom. Once in the bedroom the offender said 'where are your bank cards.' The victim Ho indicated to her handbag. The offender looked in the handbag and removed the wallet. He opened the wallet and took out two bank cards being a Bank of China debit card in the name of Ms Michelle Manyum Ho and a St George Cirrus card number 5018030057110609 belonging to Eva Yan Yin Kwok. The offender then demanded the pin number for both cards. The victim fearing for her life wrote down two wrong pin numbers on a piece of paper. The offender said, 'If I can't get any money out with these cards I'll come back and kill you.' The offender tied Ho to the bed and placed the gag over her mouth. The offender grabbed Ho's keys and went back upstairs and retrieved some more strips of blankets. The offender returned to the victim's bedroom and covered her eyes using the blankets and he tied her feet. The offender locked the bedroom and made his way to the convenience store located on the corner of Macarthur Street and Bulwara Street. Whilst in the store the offender attempted to withdraw money from both cards but was not successful. The offender returned to the house and saw a number of the public outside the house. The offender inquired as to what happened and was told a lady was screaming inside. The offender made his way into the house and into Ho's bedroom. Ho saw the offender and began screaming which caused the offender to run out of the house, over to the Power House Museum walkway towards Darling Harbour. Kwok heard Ho scream and went to her aid. Kwok untied Ho and called police. Police arrived a short time later and a description of the offender was broadcast over police radio. Ambulance officers arrived and treated Ho for a cut to her left hand. Police formed a crime scene and witnesses were identified. Meanwhile the offender outside the Chinese Gardens Darling Harbour called triple 0 and directed police to his location. He also told the operator his description which matched the description circulated by police radio. Uniform police approached the offender and as they believed he was carrying a knife instructed him to get onto his knees and place his hands behind his head. The offender was immediately searched and police located the Bank of China debit card belonging to Ho and the St George Cirrus card belonging to Kwok in the left pants of the offender. Police also found two sets of keys, one containing a silver coloured stainless steel pocket knife in the right pants pocket of the offender. Both sets of keys belonged to the victim. The offender was arrested and cautioned and conveyed back to the City Central Charge Room and introduced to the custody manager. The offender was read and explained his rights under Par 9 of the Law Enforcement (Powers and Responsibilities) Act 2002. A Mandarin speaking interpreter was called in and arrived at 4.20 pm. The offender participated in an electronic interview and made full admissions to the planning and execution of the armed robbery on the victim Ho. The offender stated that on 2 December 2005 he lost the last of his money ($7,000) by gambling at Star City Casino. Contemplating suicide and desperate to get home to China he bought the knife used in the robbery at Woolworths on 7 December 2005. He then planned what he was going to do that night before carrying it out the next day. The offender hoped to withdraw funds from both victims' accounts to enable him to buy a plane ticket to China. The offender admitted holding the knife to the victim's neck and threatened to kill her as well as hitting her with the rolling pin. A search warrant was applied for and granted by Downing Centre Local Court. A search warrant was executed at the offender's bedroom of the house and several exhibits, including the knife and wooden rolling pin were found and seized by police. The offender consented to a forensic procedure being photographs and a buccal swab for forensic comparison to exhibits found at the scene. Further enquiries revealed or showed that the offender was an illegal immigrant whose student Visa expired in 2004. The offender is to be released into the custody of Immigration upon the finalisation of this custody." 3 The sentencing judge found that the offence was serious. His Honour concluded that the offence was planned and that the applicant's landlady was terrorised, tied up and beaten. His Honour determined that the objective seriousness of the offence was higher than "the mid line of objective seriousness." Although his Honour found that the offence involved some degree of planning, although not at a sophisticated level, he concluded that it was not a significant aggravating factor in the offence. 4 The applicant pleaded guilty and his Honour accepted that the plea was entered at an early stage. His Honour found that the applicant was truly contrite. He determined that the applicant should receive a 25% discount for his plea. 5 At the time of sentencing the applicant was 25 years of age. He had no criminal record. He was born in China and is an only child of moderately wealthy parents. He came to Australia to study after completing high school in China. He was progressing satisfactorily in his studies but began mixing with a group of people who led him to a dependency upon crystal methylamphetamine and he also developed a serious gambling problem. In his report Mr Chris Latch, a psychologist, concluded that the applicant "led a secret withdrawn, isolated and schizoid lifestyle with few interpersonal contacts or social interactions." He described the applicant as eccentric, disorganised and socially isolated. He was found to have "a high level anxiety and traumatic stress with a mild level of dysthymia." His gambling problems led to him withdrawing from University. The sentencing judge found that he had misled his parents and was ashamed to seek further funding from his parents so he could return to China. His Honour was satisfied that the applicant's motivation for the offence was to enable him to purchase an airline ticket to China. 6 The sentencing judge concluded that the applicant had excellent prospects of rehabilitation. He found that he had a good relationship with his mother and had formulated a plan for his future in China upon release from custody. His Honour had regard to the fact that being without family or contacts in Australia the applicant's term of imprisonment would be more harsh than might otherwise be the case. His Honour found special circumstances having regard to the applicant's need for ongoing rehabilitation upon his release from prison.

The appeal 7 The applicant submitted that the sentence which his Honour imposed was excessive and advanced the following four grounds.

1. His Honour has wrongly overstated and mischaracterised the extent of the violence inflicted on the victim and,

2. His honour has wrongly taken into account the injuries he inflicted on the victim.

3. His Honour has wrongly considered that the applicant had "to some extent, breached a degree of trust … in committing the offence"

4. The sentence imposed is manifestly excessive. 8 In his submission on behalf of the applicant counsel drew attention to the fact that in an exchange with counsel during the sentencing proceedings the sentencing judge drew attention to the fact that the photographs revealed that the victim was "a small woman with great injuries, some substantial bruising." Although it was accepted that remarks made in the course of submissions may not ultimately have significance it was nevertheless submitted that his Honour "wrongly took into account the actual bodily harm suffered by the victim. Section 97 of the Crimes Act does not, as does s 95 for example, provide for the malicious infliction of actual bodily harm as an aggravating circumstance. If that fact was to be taken into account, an additional offence alleging it would have needed to be before his Honour." It was submitted that his Honour had breached the principle set out in De Simoni (1981) 147 CLR 383. 9 In my opinion the submission must be rejected. When his Honour delivered his remarks on sentence he referred to the guideline judgment in Henry (1999) 46 NSWLR 346 and found that the present case was more serious. His Honour said he reached this conclusion "because of the gratuitous use of violence, the fact that the offender tied up and threatened the victim," and the fact that the offender, "to some degree breached a degree of trust by enticing the landlady into his bedroom for the purpose of committing the offence." His Honour did not include any reference to the nature or extent of the injuries to the landlady. 10 The applicant pleaded guilty to the offence provided by s 97(1) of the Crimes Act. In so doing he pleaded guilty to robbing his victim when armed with an offensive weapon. However, as his Honour found, in committing the offence the applicant inflicted violence on his landlady, induced terror in her and left her with physical bruising and pain. He put her in fear of her life. It must have been a terrifying experience exacerbated by the fact that she was not only assaulted but was bound and gagged and left in her locked room. After the applicant had secured her he left so that he could retrieve money utilising her bank cards. He told his victim "if I can't get any money out with these cards I'll come back and kill you." 11 These factors, in my opinion correctly, influenced his Honour in concluding that the offence was more serious than the guideline contemplated in Henry. Although his Honour referred to "gratuitous" violence which was probably an inappropriate description I do not believe it has led his Honour to impose an excessive sentence. If not gratuitous it was certainly violence of a high order. 12 It is true that s 95(1) provides a specific offence of robbery in circumstances of aggravation which includes the use of corporeal violence on any person. However that offence, like an offence contrary to s 97(1) carries a maximum term of imprisonment of twenty years. Accordingly, the difficulty which the applicant apprehended may arise from the finding by his Honour of gratuitous violence could not arise and there was no breach of the principles in De Simoni. 13 His Honour determined that when committing the crime the applicant "breached a degree of trust" by enticing his landlady into his bedroom for the purpose of committing the offence. 14 The applicant submitted that this finding by his Honour was not correct and that the offence should be likened to the robbery of a shopkeeper or taxi driver where there is some form of professional relationship rather than one of trust. It was submitted that a relationship of this type falls outside that contemplated by s 21A(2)(k). It is not necessary to resolve this submission. 15 The relationship between landlady and lodger is not the same as that between a child and a guardian or similar relationships. However, the landlady provided accommodation for the applicant within her own home, allowing him access to her. The applicant abused this relationship when, under pretence, he enticed her into his room. 16 In my opinion whether or not his Honour had in mind s 21A when considering the elements provided in the guideline in Henry knew it was a relevant factor that the opportunity for the applicant to commit this offence was provided by the fact that he was a lodger in the victim's premises. 17 In my opinion the submission that the sentence imposed was manifestly excessive cannot be accepted. As I have indicated I am satisfied that his Honour was correct in finding that the applicant's criminality was greater than the guideline contemplated in Henry. Even allowing a discount of 25% for the applicant's plea of guilty his Honour was required to impose a sentence which marked the serious nature of the offence. To my mind a greater non-parole period may have been appropriate in the circumstances of this offence. However, mindful of the applicant's prospects of effective rehabilitation his Honour determined to impose a non-parole period which is less than 50% of the total sentence. In my view neither the non-parole period nor the total term are excessive. 18 Although I would grant leave to appeal in my opinion the appeal should be dismissed. 19 HULME J: I agree. 20 HOEBEN J: I also agree. **********

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