Qing An v Regina

Qing An v Regina - [2007] NSWCCA 53 - NSWCCA 2007 case summary — Zoe

[24]

7 March 2007 QING AN v REGINA Judgment 1 BEAZLEY JA: On 25 October 2004, Qing An (the appellant) was found guilty by a jury of eight counts of robbery whilst armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900 (NSW) (the Crimes Act). An offence under s 97(1) carries a maximum penalty of imprisonment for 20 years. 2 The offences occurred between 16 August 2002 and 1 September 2002. Each involved the robbery of cash and personal effects, such as watches, mobile phones and jewellery from massage parlours in various locations in Sydney. The offensive weapon used in three of the offences (being Counts 1, 2 and 5) was a knife. The offensive weapon in the remaining five offences (being Counts 6-10) was an imitation pistol. 3 The appellant had been charged with a total of ten offences. He pleaded not guilty to each offence and was tried by a jury before his Honour Judge Dodd in the Sydney District Court. During the course of the trial, his Honour directed verdicts of not guilty in respect of Counts 3 and 4. The guilty verdicts were returned on the remainder, as I have indicated. His Honour Judge Dodd sentenced the appellant to a total effective sentence of 12 years 3 months with a non-parole period of 10 years (although in his Remarks on Sentence his Honour stated he had sentenced the appellant to a total aggregate sentence of 13 years 3 months). 4 The appellant appeals against his conviction on the basis that an irregularity occurred during the course of the jury's deliberation and that the trial judge erred in failing to discharge the jury. 5 The appellant also seeks leave to appeal against sentence. 6 The appeal and application for leave to appeal against sentence were filed out of time. The appellant seeks an extension of time in relation to each. 7 All but one of the offences were committed in the company of John Shaopeng Yin (Yin). Yin pleaded guilty to the offences, which were charged differently to those laid against the appellant, and was sentenced by her Honour Judge Tupman in the Parramatta District Court on 10 December 2003, to a term of imprisonment of 11 years with a non-parole period of 8 years 3 months. It will be necessary to return to Yin's sentence as the appellant claims that there was a lack of parity as between his sentence and that imposed on Yin so as to give rise to a legitimate sense of grievance.

[25]

Application for extension of time 8 On 20 March 2006, the appellant filed a notice of application for an extension of time in which to file a notice of appeal and to file an application for leave to appeal against sentence. The application was accompanied by a letter from his solicitors. Subsequently, the contents of that letter have been amplified in an affidavit of Camilla Taylor, solicitor. Ms Taylor, in effect, provides a chronology of the steps taken in relation to the bringing of an appeal following the appellant's conviction. In brief, those steps involved the filing of a notice of intention to appeal, lodged on 20 December 2004 and a request shortly thereafter to the District Court of New South Wales requesting a transcript. Only a portion of the transcript was provided, requiring a follow-up letter. On 22 March 2005, senior counsel was briefed to advise on the prospects of success. 9 In July 2005, senior counsel advised that there was a jury irregularity. In his advice, senior counsel drew attention to the fact that certain material was not included in his brief, including trial exhibits and the outcome of a series of interlocutory applications. Senior counsel advised that the latter material might reveal further grounds for appeal. Ms Taylor said that a decision was taken that the appeal would be filed, notwithstanding the absence of material, and that the grounds of appeal would be revisited at a later time, should that become necessary. 10 At some time between July and October 2005, and I infer, closer to October, senior counsel advised that he was not able to complete the matter due to his work load. Thereafter, following a grant of legal aid in October 2005, alternate senior counsel was briefed. In February 2006, that senior counsel informed the appellant's solicitors that he was unable to complete the work due to his busy work load. The matter was then returned to the original senior counsel briefed in the matter. In February 2006, senior counsel prepared grounds of appeal in relation to the jury irregularity alone, as the material previously sought from the District Court remained outstanding. However, the notice of appeal was then filed, notwithstanding the absence of this material, which was received some time later. 11 The appellant had 28 days in which to appeal against conviction and to make an application for leave to appeal against sentence: the Criminal Appeal Act 1912 (NSW) (the Criminal Appeal Act), s10(1)(a). The solicitors filed a notice of intention to appeal on 20 December 2004. This was 28 days outside the 28 day time period specified in s 10(1)(a). Thereafter, appropriate steps were taken to obtain the relevant material necessary for the purposes of preparing the Notice of Appeal. However, there was no evidence before the Court of any steps taken to follow up senior counsel briefed to draft the Notice of Appeal. Likewise, once the brief was returned by the first senior counsel and a second senior counsel briefed, there was no evidence of steps taken to seek to ensure that the Notice of Appeal was drafted promptly. Nor is there any evidence in this case of communication with the appellant advising the appellant of the present status of the matter, or from the appellant requesting advice as to what the present status was. Overall, save for the filing of the notice of intention to appeal and the application for transcript, the approach taken to filing the appeal documents might properly be described as dilatory. 12 Having said that, the cause for the delay was very much the failure of both senior counsel to attend to the brief promptly. Had it not been for the fact that the notice of intention to appeal was filed within a time that was likely to attract the exercise of the Court's discretion to extend the time, and that the request for the transcript was made within a reasonable time, I would have been inclined to refuse the extension of time. However, given that those steps were taken in a time that does not attract censure, and taken in conjunction with the fact that the appeal raised an arguable question, I would extend the time in which to file the appeal and the application for leave to appeal against sentence until 20 March 2006.

[26]

Appeal against conviction 13 The trial commenced on 5 October 2004. The jury commenced deliberating on Friday 22 October 2004, and returned the following Monday, 25 October 2004, to continue their deliberations. 14 The jury had with it in the jury room a grey-coloured suit jacket (Exh U), which was identified by witnesses at the trial as being like the jacket worn by the appellant during some of the robberies. The jacket had been seized from the appellant's home when it was searched at the time of the appellant's arrest on 25 October 2002. 15 The appellant had given evidence in his defence. During the course of his evidence he was asked about the jacket. He said that he and his brother had purchased the jacket from a store called, as he could remember it, "Boys to Men" at Fairfield, "seven, eight months or one year before I was arrested". He said that both he and his brother wore the jacket because they were both the same height. In his cross-examination, the appellant agreed that in August 2002, when the offences were being committed, his brother was in Melbourne. 16 Prior to 11am on the morning of 25 October 2004, the trial judge informed the Crown Prosecutor and the solicitor for the accused that he had been advised by the Court Officer that the jury had informed him that "when they'd upended the jacket … a syringe fell out". 17 The appellant's solicitor thereupon made an application for the discharge of the jury. He said that it was "highly prejudicial" to have such an item before the jury; that there was no evidence of anything relating to a syringe, nor was there any evidence of an illness that related to the use of a syringe that might have explained its presence. He submitted that it would have become embedded in the mind of the jury that the appellant may be involved in drugs and that the jury might then deduce that the appellant had a motive for the robbery. 18 The application was opposed by the Crown Prosecutor. He acknowledged that the syringe did not form any part of the evidence tendered by the Crown and that it was only the jacket that had been tendered in the Crown case. He also noted that there had been no evidence that the appellant was in any way using drugs and that the only evidence in the trial in relation to drugs was that the appellant had heard "on the grapevine" that his co-accused Yin was possibly a drug user. He submitted that the matter could properly be dealt with by an appropriate direction. The Crown Prosecutor outlined the direction which he submitted would suffice, including that the jury were not to speculate as to why the syringe was in the jacket. He suggested that the trial judge could give a number of reasons why it was not proper to speculate, including the fact that the syringe could have belonged to somebody else or it could have been used, for example, for proper medical purposes. 19 The appellant's solicitor resisted the proposition that the irregularity could be dealt with by a direction to the jury. He pointed out that there were not many medical conditions in which people legitimately self-medicate using a syringe except perhaps, diabetes; that drug users and drug addicts are rated lowly in public perception; and, relevantly, that given the evidence relating to Yin's drug use, the finding of the syringe in the pocket of the appellant's jacket linked Yin and the appellant in a way that no evidence during the trial had done so far. 20 The trial judge decided that the prejudice that was potentially caused by the finding of the syringe in the jacket could be cured by an appropriate direction to the jury and thus gave the following direction: "Members of the jury thank you. I've brought you back into court because I need to address a matter which has arisen this morning. You have quite rightly brought to the attention of the Court through the court officer that you found a syringe, which I gather fell out of the jacket which is exhibit U. I've had the syringe identified for the purpose of the court record and it's marked as MFI 14. I have certain things to say to you about that find by you. And therefore I'd ask you to listen very carefully to what I now have to say to you about that.

[30]

Members of the jury I've just gone through a number of possibilities of speculation as to how that syringe may have got with the jacket. I've done that not to encourage you to speculate about it, but to direct you not to speculate about the reasons and to illustrate why speculation would be wrong and would be futile in the circumstances of this case. And therefore as I say I stress and direct you that you must not speculate about where that syringe came from or why it was there, whether the accused knew it was there or not or anything to do with that syringe. You must put it completely out of your minds. It has absolutely nothing to do with this case and it must form no part of your consideration in relation to any of the charges in this case. Mr Crown anything further?" 21 In this appeal, senior counsel for the appellant and the Crown agree as to the principles to be applied when an irregularity has occurred in the course of the jury's deliberation. The relevant principle was stated in R v Marsland (NSWCCA, 17 July 1991, unreported). In that case, a forensic report received into evidence made an allegation of sexual misconduct by the appellant against another person in respect of which the accused had been tried and acquitted. The jury asked a question as to the identity of the other person and as to the reason why that person had not given evidence. The trial judge declined to discharge the jury, but directed them that the second person had nothing to do with the matter and the reference had been an error. Gleeson CJ, which whom Lee CJ at CL and Hunt J agreed, said (at 14): "The tender of the document with the name [of the other person] on it was an irregularity and the question we must ask ourselves is whether we can be satisfied that the irregularity has not affected the verdicts, and that the jury would have returned the same verdicts if the irregularity had not occurred." 22 His Honour considered that the irregularity would not have affected the verdicts, given that the trial judge had given a clear direction and there was no reason to doubt that the jury would have taken the direction at face value. His Honour considered it important that there was nothing else of any kind before the jury that would have given them any indication of who the other person might have been. 23 The test stated in Marsland was adopted by this Court in R v K (2003) 59 NSWLR 431; [2003] NSWCCA 406. In R v K, Wood CJ at CL (with whom Grove and Dunford JJ agreed), at [71] considered that it was relevant in the result in Marsland that the irregularity had come to light and was dealt with before verdict and had been the subject of a clear, express direction to the jury, that was considered sufficient to overcome the prejudice. R v K, on the other hand, involved an irregularity that came to light after the jury had given its verdict. 24 That had also been the situation in R v Rudkowsky (NSWCCA, 15 December 1992, unreported). In that case, handbags had been tendered in evidence but it was later discovered that one of the bags contained several sheets of writing bearing what appeared to be the handwriting of the victim. The Crown conceded that the sheets of writing would not have been included in the tender had their presence been known. The material was clearly prejudicial. Gleeson CJ (with whom Cripps JA and McInerney J agreed), in holding that the appeal should be allowed due to the extremely prejudicial potential of the material, said at 6: "The appellant was entitled to be tried and to have his guilt determined according to law. In determining whether there has been a miscarriage of justice in a case such as the present it is important to bear in mind that in this context the word 'justice' means justice according to the law. It is not for this Court to decide for itself after perusing the evidence whether we agree with the jury's verdict. Nor is it for this Court to decide whether, even if the irregularity had not occurred, it is likely or even probable that the jury would have reached the same conclusion. We are not here to decide whether the jury's conclusion was correct. We are not here to decide whether or not the appellant received a fair trial and whether or not his conviction was one entered in accordance with the legal rules that govern the trial of a person in a case such as the present.

[31]

However, as has been pointed out by counsel for the Crown, the circumstances that there has been shown to have been an irregularity in the trial does not necessarily mean that the conviction must be quashed and there must be a new trial. It is common ground in this appeal that the test to be applied is that which was stated in the case of R v Marsland , that is to say, whether we can be satisfied that the irregularity has not affected the verdict and that the jury would have returned the same verdict if the irregularity had not occurred. That, it is accepted on both sides, is the test to determine whether in the events that have happened in a case like the present, there has been a miscarriage of justice." 25 As I have indicated, there was no dispute as to the correct principles to be applied. The Crown submitted that the application of the principles gave rise to a number of considerations, namely: the nature of the irregularity; the relevance of the irregularity to the issues before the jury; whether the material was prejudicial; and the extent of the prejudice. Given those considerations, the question was what was called for in the proper exercise of the discretion; namely, a discharge of the jury, or appropriate directions to the jury. That last matter in turn raised the question whether the directions given were adequate. 26 The Crown accepted that the syringe should not have been before the jury. It bore no relevance to the issues in the case and there was no evidence to suggest that the appellant was a drug user, or otherwise had any involvement with drugs. The Crown also accepted that the presence of a syringe or its possession by the appellant, was not capable of lending any support for the prosecution case. In particular, it was not part of the prosecution case that the appellant was motivated to commit the robberies by drug addiction or any other association with drugs. 27 The appellant submitted, however, that the evidence was unfairly prejudicial. 28 Although there was no evidence that the appellant was associated with drugs and the Crown did not advance any motive for the robberies, there was evidence that the appellant had dealt with or had in his possession some of the items taken in the robberies. In particular, there was evidence about pawning a Longines watch on two occasions, about 'John' having an urgent need for money, of himself needing money and of suggestions of John's drug addiction. John, of course, is the co-offender Yin. It is likely that it was these "threads" of evidence, to which if the finding of the syringe was added, gave rise to the appellant's solicitor's concern that the syringe more directly linked the appellant with Yin who, to the jury's knowledge, had pleaded guilty. It is necessary to refer to that evidence in more detail, so as to be able to better gauge whether a direction, and in particular, the direction given by the trial judge, could adequately deal with any prejudice. 29 During the course of the ERISP between the appellant and Detective Senior Constable Davey on 25 October 2002, the appellant was asked questions about the Longines watch. He was informed by Detective Senior Constable Davey that the watch was stolen from Mr Dong and was pawned at the Fairfield Loan Office nine days after the robbery. He was asked whether he knew anything about the watch, but gave no audible reply. He said, however, that he had pawned things at the Fairfield Loan Office, but gave no audible reply as to whether he had pawned the watch. He did say that he had bought quite a few things from the person whom he called John. He said he thought he had bought a men's Longines watch from John, but he had "hocked" it. He said he had also bought a ladies Longines watch, but he had that at home. The appellant conceded, eventually, that he remembered pawning the men's Longines watch. He said he bought it for "a hundred bucks or fifty dollars". He said that he didn't have the money to pay for the watch on him and that "[John] needed money so I bought him, I hocked it and gave him the money". He said that he thought the watch was worth "a few hundred dollars, five, six hundred". 30 In the course of the robbery the subject of Count 1, Mr Dong, the receptionist at the premises gave evidence that a Longines watch was stolen from him. In his evidence, the appellant said that he had purchased the watch from a person by the name of John. The appellant said he knew John from work, when he had been looking for work at the appellant's brother's company. He said he did not know this person by any name other than John and that he had worked with him over a two and a half to three month period. In cross-examination, the appellant identified Yin from a photograph as being the person he knew as John. 31 The appellant said that he had worked with his brother "four, five days a week" from June until July and after that worked two or three days a week until somewhere in mid-August. He said that after having stopped working sometime around 14 or 15 August for his brother, he assisted a neighbour for a couple of days. He said, however, he was not really working, just giving him a bit of instruction as to cutting the gyprock board as he was "a bit sick at the time". 32 The appellant was cross-examined about his purchase of the Longines watch and the subsequent "hocking" of it to the Fairfield Loan Office. He gave a version consistent with his answer in the ERISP. He added, however, that John had needed money urgently when he came around and that John had driven him to the Fairfield Loan Office and that he, the appellant, had gone in alone and, having hocked the watch, gave the money to John. He was asked why he didn't suggest to John that he go to the loan shop himself. The appellant responded, "I don't know. He asked me for help so I thought I was just doing a favour for him, that's all". He said he was not aware of any reason why John couldn't have gone up and hocked the watch himself. He also said that John often borrowed money from him, "twenty dollars here, fifty dollars there". He said that at the time he bought the watch from John, he had heard something about John using drugs, but he wasn't "100 per cent sure". He agreed, however, that at the time he bought the watch, a situation had developed on the building site where John worked, of things going missing. He said that notwithstanding that, he was not concerned about taking a watch from "a person like that" and hocking it for him. The appellant said that he didn't think about it at the time, because he took his word for it that the watch was his and that the ladies watch was his girlfriend's. He had not, however, seen him wearing a watch. 33 The evidence established that the appellant had redeemed the watch, but pawned it on a second occasion. He was asked in re-examination what he wanted to do with the watch after he had pawned it on each occasion. He said that he was going to keep it at the time because John had told him that it was his watch. However, the appellant paid the interest to redeem the watch from the pawnbroker and his reason for pawning it the second time was because he "needed the money on that day". He said that he left it there on the second occasion although he had intended to go back and get it later on. 34 The appellant also gave evidence about being sick and therefore not working during the period of mid-August to early September. His evidence was that he was at home during this time. There was evidence about the use of the appellant's mobile telephone number during this period which revealed that there were no calls made from his mobile phone during an approximate two-hour period between 2.25pm and 4.16pm on 25 August 2002. It was suggested to him that the reason for the suspension of calls during that period was because he was engaging in the robbery of premises at Sans Souci, being the robbery the subject of Count 6. The appellant said that he was at home sick and could not even get out of bed at that time. He said he was being treated by a doctor, called Dr Tan, and "some kidney specialist". He also said that John, or a friend of his, could have had his phone on that occasion. 35 There was also substantial evidence about the use of the appellant's mobile phone number to make calls, both to the premises at which robberies occurred shortly before the robberies, except for the robbery at Five Dock (Count 1), as well as to Yin. The appellant denied that he was responsible for the frequent telephone calls to Yin, saying that he rarely rang him. 36 I have already referred to the principles that apply when an irregularity has occurred in the course of a jury's deliberation. An examination of the authorities in which an appeal has been brought to quash a guilty verdict in circumstances where there has been an irregularity in the jury's deliberations, indicate that there are a variety of appropriate responses, depending upon the nature of the irregularity, its relevance to the issues in the trial and the circumstances in which the irregularity arose. 37 Thus, in R v Olivier (NSWCCA, 15 September 1993, unreported), the Court was concerned with a case where the trial judge had refused to discharge the jury following the discovery that the jurors were in possession of non-evidentiary material. In that case, the appellants were co-accused in respect of charges of assault with intent to rob and malicious wounding. The non-evidentiary material comprised maps that had markings on them indicating various landmarks that had been referred to throughout the case. The maps appeared to have come from the pages of a street directory. There were six photocopies of the same pages of the street directory, causing the observation to be made that that number of copies would suggest one set for every two jurors. The markings were in different hands. 38 When this matter was brought to the attention of the trial judge, his Honour raised it with the Crown and defence counsel. Defence counsel requested the judge to question the jury as to how they came to be in possession of the material and what use had been made of it. The trial judge refused that application. Defence counsel then specifically indicated that he did not propose to make an application for a discharge, nor did the Crown make any application for a discharge. 39 The trial judge then brought the jury back and gave them further directions. In those directions, the trial judge observed that had the jury requested to be provided with material showing the various places that had been referred to in evidence, he would have suggested to counsel that such material might have been helpful and ought to be provided. He indicated, however, that as that had not been done, he would retain the maps to which they had had access and he directed them that they must entirely disregard those items and confine their deliberations to the evidence which had been placed before them. 40 On appeal, the accused were represented by different counsel. It was submitted that the direction to the jury to disregard the maps was insufficient and that the trial judge had erred in not questioning the jury as to the use that had been made of the maps and, in particular, as to whether any of the jurors had used the maps for the purposes of having a view of the relevant locality. It was submitted that his Honour's refusal to make enquiry of the jury provided a basis for "serious disquiet" as to the jury's verdict. Finlay J, with whom Handley and Sheller JJA agreed, stated at [43] that the test to be applied where there was an irregularity was whether: "… this Court can be satisfied that the irregularity has not affected the verdict and the jury would have returned the same verdict if the irregularity had not occurred." 41 Finlay J referred to the statement of Gleeson CJ in Rudkowsky referred to above. His Honour considered, however, that the case was not like Rudkowsky, where the jury had before it inadmissible and highly prejudicial written material which was of such a nature that the irregularity was held to have denied the appellant a fair trial. In Olivier, by contrast, his Honour categorised the material before the jury as being "benign" and observed that it had been dealt with promptly by appropriate directions. In that circumstance, his Honour held that no error had been disclosed in the trial judge's exercise of discretion in declining to interrogate the jury. 42 The question in Olivier did not relate to the discharge of a jury. R v Lansdell (NSWCCA, 22 May 1995, unreported) however, provides a closer factual comparison to the circumstances in this case. There, the appellant had been charged with offences of using an offensive weapon to prevent lawful apprehension and attempting to induce a person to be called as a witness to give false evidence. The facts relating to the first charge were that, during the course of a high-speed police chase, the appellant produced a shotgun from the window of the car of which he was the driver. There was conflicting evidence as to where the gun was located immediately after the chase. The appellant's wife gave evidence that the gun was usually contained in a striped bag and there was evidence that such a bag was located by the police on the front seat of the appellant's vehicle. There was also evidence that during the course of the police chase, there had been a collision and glass had shattered into the front of the appellant's car. 43 It was the appellant's case, given in an unsworn statement, that the gun was in the boot of the vehicle, so that he could not have produced it during the course of the police chase as the Crown case alleged. He made no mention of the striped bag in his unsworn statement. 44 On the eighth day of a twelve day trial, the trial judge and counsel became aware, as a result of a question from the jury: "If the [striped] bag is evidence, is contents of the bag evidence?"

[32]

that there were three fragments of glass in the striped bag. The trial judge gave a direction to the jury that the fragments were not part of the evidence, that there was no evidence how they came to be in the bag and that the jury should not speculate on that matter. In Lansdell , there was no application to discharge the jury. The issue, for the Court of Criminal Appeal, was whether the direction given by the trial judge in the terms I have indicated was adequate. 45 Gleeson CJ, with whom Finlay J agreed, observed that "the evaluation of the potential seriousness of the irregularity, absent the direction given by the trial judge, is not entirely easy". The glass had been found in the bag prior to the completion of the evidence. By the end of the trial, there were at least four different versions of the location of the gun and the bag and, by the end of the trial, the question whether the bag was in the front seat of the car was not of particular significance. What was important, on the defence case, was that the gun had been concealed in the boot. It was not the defence case that the gun was in the striped bag. 46 It had not been suggested during the trial that the glass in the bag had come from a broken window in the car or could be used to support an inference as to the location of the bag at any material time. There was no evidence as to how or when the fragments of glass got into the bag, nor was there any attempt to connect them with any of the glass in the car. 47 Gleeson CJ considered that there was a danger that, without any direction from the trial judge, the jury, or individual members of the jury, might engage in a speculative process of reasoning leading to a conclusion that not only was the bag on the front seat of the car, but the gun was also on the front seat and not in the boot. The significance of the danger of there being such a speculative line of reasoning was arguably even more pronounced because, at the time that the glass was found in the bag, the appellant had not given his unsworn statement which formed the basis, on the appellant's case, for the irrelevance of the location of the bag and the focus upon the location of the gun. 48 Gleeson CJ observed that the trial judge's direction was framed specifically in response to the question asked by the jury. His Honour considered that that was appropriate because it would have been dangerous to embark upon an explanation of the evidentiary significance, or lack thereof of the glass, given that at that stage the evidence was incomplete and it was not known what the defence case would be. His Honour agreed with the observation of Simpson J as to the test to be applied when an irregularity occurs. He said: "… an irregularity having occurred, the question for this Court is whether we are satisfied that it did not affect the verdicts, and that the jury would have returned the same verdicts if the irregularity had not occurred."

[33]

The Chief Justice added: "That question is to be answered in the light of the direction which the trial judge gave when the irregularity came to his attention." 49 His Honour observed that criminal trials and appeals are conducted upon "certain assumptions", one of which was that juries both understand and follow directions given by trial judges. He observed that it frequently happens that inadmissible material is placed before the jury and, sometimes, such material has potential to cause considerable prejudice to an accused. Ordinarily, in that circumstance, the problem is addressed by the giving of an appropriate direction. His Honour recognised, consistently with the test that he said applied, that there were occasions when a trial judge or an appellate court might conclude that no direction could adequately protect an accused person, and that the only proper course was to discharge a jury. The Chief Justice was of the view that this case did not fall into that category and found that the direction given by the trial judge was adequate in all the circumstances. As I have said, Finlay J agreed. However, Simpson J held that the direction was not adequate. 50 In my opinion, the direction given by his Honour was appropriate and sufficient. His Honour, in clear language, directed the jury that the syringe was not evidence in the case and its presence was to be ignored. He cautioned them that it had never been part of the Crown case that the appellant was in any way connected with drugs and that any such thought must be put out of their minds. They were directed not to speculate as to how the syringe came to be in the jacket. His Honour indicated that there were other possible explanations for the use of a syringe, including legitimate self-medication, but that there was no evidence that it had been used by the appellant for that reason, or that he even knew that the syringe was in his jacket. His Honour indicated that there could have been a variety of reasons why the syringe came to be in the jacket, including having been placed there by mistake after it was seized by the police. His Honour reiterated the importance of not speculating and that this syringe had nothing to do with the case. 51 Although there was evidence that the co-accused was possibly a drug user, it was not part of the Crown case that the appellant was a drug user or had a motive related to drugs for the commission of the crimes. In those circumstances, I consider that the direction given by his Honour was adequate. The authorities are clear that it is a matter for the discretion of the trial judge as to what course to take when an irregularity has occurred. The authorities are also clear that appropriate directions may, in certain circumstances, be sufficient. Given the directions to the jury in this case, I am of the opinion that his Honour did not err in dealing with the matter in that way. I am satisfied that the presence of the syringe did not affect the verdicts, and that the jury would have returned the same verdicts if the irregularity had not occurred. The jury gave due consideration to their task. This is apparent, amongst other things, from the fact that the jury brought the syringe to the court's attention. 52 There was significant identification evidence before the jury. That included photographic evidence identifying the appellant, as well as descriptions of what the appellant was wearing, which included the jacket. That jacket was of a very particular style, described in the evidence as a "Mao" jacket which was grey in colour. It was readily identified by the witnesses. There was also a significant body of coincidence evidence, including numerous telephone calls from the mobile phone that was found on the appellant at the time of his arrest, to the premises that were robbed in the days immediately preceding the robbery. That occurred in respect of all premises other than for the robbery at Five Dock (Count 1 on the indictment). There was also evidence of many telephone calls from the appellant's mobile to Yin. The appellant himself gave evidence of an association with Yin including some knowledge of a suggested drug habit. There was also evidence of pawning expensive goods cheaply, allegedly because Yin wanted a small amount of money. 53 In short, the direct identification evidence, taken in conjunction with the coincidence evidence made this a strong Crown case. There was no evidence or suggestion that the appellant was a drug user or had a motive for the crime. Juries are given directions on the basis that those directions will be followed. To the extent the syringe may have had the potential for prejudice, I am satisfied that such potential was overcome by the trial judge's directions. 54 For the reasons that I have indicated, I would dismiss the appeal.

[38]

Failure to impose individual sentences in respect of each offence 61 In imposing the sentences in respect of the eight Counts, his Honour first dealt with Count 1, imposing a sentence of six years and a non-parole period of four and a half years. His Honour then "grouped" the remaining Counts in the following way. First, in respect of Counts 2 and 5, his Honour said: "In respect of each of the second and fifth Counts in the indictment you are sentenced to a term of imprisonment for seven years to date from 25 October 2002 and to expire on 24 October 2009. I set a non-parole period of five years and three months to date from the commencement of the sentence and to expire on 24 January 2008. I do not find special circumstances. You are eligible to be considered for release to parole at the expiration of a non-parole period." (Emphasis added) 62 He then dealt with Counts 6, 7 and 8: "In respect of Counts 6, 7 and 8, you are sentenced to a term of imprisonment for eight years to date from 25 October 2004 and to expire on 24 October 2012. I set a non-parole period of six years to date from the commencement of the sentence and to expire on 24 October 2010. I do not find special circumstances. You are eligible to be considered for release to parole at the expiration of the non-parole period." 63 His Honour then dealt with Counts 9 and 10: "In respect of Counts 9 and 10, you are sentenced to a term of imprisonment for nine years to date from 25 January 2006 and to expire on 24 January 2015. I set a non-parole period of six years and nine months to date from the commencement of the sentence and to expire on 24 October 2012. I do not find special circumstances. You are eligible to be considered for release to parole at the expiration of the non-parole period." 64 The appellant submitted that his Honour (other than in respect of Count 1) did not differentiate between the offences in each grouping. It was submitted that in those circumstances, his Honour failed to impose an individual sentence in respect of each offence as required by s 44. The appellant submitted that by failing to set out the sentences one after the other and impose sentences separately in respect of each offence, it was not possible to properly examine the sentence that had been imposed in respect of each individual offence. It was submitted that this undermined the recent trend towards transparency in sentencing: see Markarian v The Queen (2005) 79 ALJR 1048; [2005] HCA 25 at [39]. 65 The Crown submitted that his Honour's approach is an accepted practice in sentencing for multiple offences and is adopted to avoid the sentencing process becoming too cumbersome and also to be able to better deal with the principle of totality. 66 There may be circumstances in which such an approach is appropriate. However, I do not consider that it is appropriate in a case such as the present where the number of offences is not so numerous that to deal with them individually would be cumbersome. Indeed, in a case such as the present, involving eight offences, six of which were committed on separate occasions, there is a danger in failing to deal with each offence separately in that the criminality involved in the individual offences may be overlooked or become lost in the attempt to assess the totality of the seriousness of the offences. 67 As was pointed out in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 "totality" is considered after the individual sentences are imposed. In Pearce, McHugh, Hayne and Callinan JJ said (at [45]): "A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality."

[39]

Their Honours had observed earlier in the same paragraph: "To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error." 68 Pearce, however, does not prescribe a mandatory approach. In Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15 Gummow, Callinan and Heydon JJ said at [26]: "… the joint judgment in Pearce recognises the currency of [ Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70] by referring to the principle of totality which it reiterates. The joint judgment in Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. Pearce does not decree that a sentencing judge may never lower each sentence and then aggregate them for determining the time to be served. To do that, is not to do what the joint judgment in Pearce holds to be undesirable, that is, to have regard only to the total effective sentence to be imposed on an offender. The preferable course will usually be the one which both cases commend but neither absolutely commands. Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected." (Original emphasis) (Footnote omitted) 69 Nonetheless, I consider that this was a case to which the approach in Pearce was particularly apt and that the danger adverted to in the joint judgment was real. 70 The Crown submitted, however, that it was apparent from the Remarks on Sentence that there was no error as alleged. The Crown pointed out that in the Remarks on Sentence, his Honour sentenced the appellant "in respect of each" of Counts 2 and 5 (emphasis added). However, his Honour did not repeat that terminology in respect of Counts 6, 7 or 8, or in respect of Counts 9 and 10. The Crown submitted that the omission of the word "each" in respect of the second and third grouping of offences was a simple omission and that the word "each" should be implied before the other counts and that there was no failure to sentence in respect of each offence. The Crown submitted that a correct reading of his Honour's remarks was that his Honour intended to make the sentences in each group concurrent with each other and for there to be partial accumulation as between each group of offences. 71 There is sense in the submission that the absence of the word "each" in respect of the second and third groups was a mere omission as it would be curious for the trial judge to decide to group sentences and then treat groupings in a different way when there was no apparent reason to do so. 72 There was one aspect of his Honour's sentencing remarks, however, that might indicate that his Honour may have failed to sentence individually within each group, namely, the manner in which his Honour grouped the sentences. 73 The first grouping was in respect of Counts 2 and 5. Those two Counts could logically be referred to together, as they involved the same incident (and his Honour said he sentenced in respect of each of them). However, the grouping of Count 6 with Counts 7 and 8 is not so logical. Counts 7 and 8 could logically be referred to together, as those charges related to the robbery at premises at Matraville, the separate charges relating to the robbery from two different persons present at the premises at the time. However, Count 6 was a charge relating to a robbery at Sans Souci a day before the robbery at Matraville. Likewise, Counts 9 and 10 were not connected. The robberies subject of these offences were on different occasions and at different locations. 74 On the other hand, his Honour acknowledged the requirement to sentence individually in accordance with Pearce and an appellate Court should not lightly ignore a clear statement by a trial judge as to the process he followed. On balance, I have concluded that his Honour sentenced the appellant in respect of each offence. 75 This part of his Honour's sentencing remarks does, however, raise a different matter for consideration. After referring to the need to sentence in respect of each offence, his Honour stated: "I also need to allocate increased penalties in respect of those offences occurring later in time as the offences were committed and rather than adopt a global approach to sentencing which would be in error as discussed in the Court of Criminal Appeal decisions in Gorman [2002] NSWCCA 516 and Swadling [2004] NSWCCA 421. Accordingly the sentences I am about to impose will as to some of them have differing terms of imprisonment and differing terms of non-parole period." 76 Gorman was a very different case from the present. It was concerned, principally, with the correct application of Pearce, where a number of offences (in that case sexual offences), were committed on the same victim during a single but extended period of time. In Swadling, Smart AJ, with whom Hodgson JA agreed, reviewed the principles that were to be applied when sentencing for multiple offences. His Honour pointed out that in that case, the trial judge (who, incidentally, was Dodd DCJ, who appears to have been conscious of the matters raised by the Court in Swadling), had not undertaken an analysis of the individual offences, but had appeared to adopt a global approach contrary to Pearce and Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70. In re-sentencing, Smart AJ, when considering the numerous counts as they occurred later in the sequence of offending, referred to the criminality of the offender as "mounting" and applied successive increases of six months imprisonment above that imposed on the previous sentence. 77 In R v Bavadra (2000) 115 A Crim R 152; [2000] NSWCCA 292 Wood CJ at CL (Beazley JA and Greg James J agreeing) considered at [37] that "[h]aving regard to the individual seriousness of the offences charged in these counts, the accelerating outbreak of unlawfulness on the part of the respondent, and the inconsistencies in sentence identified [the trial judge had undervalued] the degree of criminality displayed …"

[43]

Parity 82 The appellant's co-offender, Yin, was sentenced by her Honour Judge Tupman on 10 December 2003 in respect of seven substantive offences, with five matters being taken into account on a Form 1 pursuant to s 33 of the Crimes (Sentencing Procedure) Act. Her Honour observed that the totality of the charges with which she was dealing was six armed robbery charges, five aggravated armed robbery charges and one charge of aggravated assault with intent to rob. 83 The seven substantive charges involved three charges of armed robbery contrary to s 97(1) of the Crimes Act and four charges of aggravated armed robbery contrary to s 97(2) of the Crimes Act. The first three offences dealt with by Judge Tupman corresponded to the offences in Counts 1, 2 and 5 on the appellant's indictment. The fifth and sixth charges against Yin were Counts 10 and 9 respectively charged against the appellant. However, the fifth and sixth charges against Yin were laid under s 97(2) which carries a maximum penalty of 25 years imprisonment. The appellant was charged under s 97(1) in respect of those offences. As I have already said, an offence under s 97(1) carries a maximum penalty of 20 years imprisonment. 84 Further, one of the offences with which the appellant was charged namely Count 7, was taken into account on a Form 1 in Yin's case. Yin also had two matters on a Form 1 corresponding to Counts 3 and 4 on the appellant's indictment in respect of which there were verdicts by direction. The remaining matters on the other Form 1 in the appellant's case were charges that related to the robbery from individuals at the massage parlours, where the robbery of the massage parlour itself constituted the principal charge. 85 It is not apparent from the Remarks on Sentence by Judge Tupman, nor from the transcript of the appellant's trial nor the Remarks on Sentence of Judge Dodd, why the appellant and Yin were not charged in the same way for the same offences. 86 In respect of the charges that were common to the appellant and Yin, there was no difference in the objective criminality of their individual offending. The trial judge considered that their respective roles were equal. He later said that the appellant's "overall criminality is somewhat less that that of Yin". Presumably his Honour was referring in his Remarks on Sentence to the additional offences in respect of which Yin was being sentenced. 87 The subjective circumstances of the appellant and Yin were somewhat similar. Both were in their twenties: the appellant was born on 17 June 1974 and was thus 28 at the time of the offences. Yin was aged 26 at the time of sentence. Both were born in China. The appellant came to Australia in 1985 when he was 10 or 11. It is not apparent from Judge Tupman's Remarks on Sentence when Yin came to Australia, although it appears that it was when he was a child. Both have a history of drug abuse. In Yin's case, Judge Tupman found that the commission of the crimes was motivated by his addiction to heroin. However, Judge Dodd rejected that was a motive in the case of the appellant. Whilst it could be surmised that that was a motive, having regard to the appellant's drug addiction, no evidentiary basis was established to interfere with that finding. In this regard, it should be borne in mind that the appellant, on sentence, continued to maintain his innocence. 88 Both had criminal histories. The appellant had been sentenced to a term of imprisonment in 1993 on five counts of robbery whilst being armed, in respect of which he was sentenced to 4 years imprisonment with a minimum term of 18 months. His Honour Judge Dodd stated that in that circumstance, the appellant had committed the present offences knowing that he was exposed to a significant penalty. Given the convictions for armed robbery, his Honour was not prepared to extend leniency to the appellant in respect of the present charges. Yin also had a criminal history dating back to 1996, and which involved serving sentences of imprisonment. Her Honour Judge Tupman did not consider Yin had good prospects of rehabilitation, mainly due to his drug dependency. Her Honour found that he was remorseful and contrite. 89 Judge Tupman allowed Yin a 25 per cent discount for the pleas of guilty. Were it not for the discount, the effective total sentence that would have been imposed on Yin was 14 years. That was reduced to 11 years for the pleas. The effective total non-parole period was 8 years 3 months. Her Honour found special circumstance, as she had partially accumulated the sentences. 90 Judge Dodd, in considering the question of parity, noted that Yin had pleaded guilty to offences of a more serious nature in some instances, although they were the same offences committed in company with the appellant. His Honour also observed that Yin had been given a discount for the utilitarian value of his pleas of guilty. He observed that, undoubtedly, Yin's pleas of guilty were also taken as some indication of remorse or contrition which was absent in the appellant's case, the appellant, as I have said, continuing to maintain his innocence even upon sentence. His Honour considered that the prospects of rehabilitation were not good. He found that the there was no evidence that the appellant had committed the offences to fund his drug addiction. Indeed, his Honour considered the evidence was "all the other way". 91 The question of parity in this case is somewhat complicated by the different manner in which the appellant and Yin were charged. Yin was charged, in respect of a number of matters, with the more serious offence of robbery with a dangerous weapon: s 97(2). The offence under s 97(1) is, relevantly, robbery with an offensive weapon. Section 97(2) carries a higher maximum penalty of 25 years imprisonment as compared to 20 years under s 97(1). There is the added difficulty that the number of charges is different. Yin was charged with seven offences in respect of which he pleaded guilty, while the appellant was convicted of eight counts. Yin then had a further five matters taken into account on a Form 1. In sentencing Yin in respect of the principal offences to which the Form 1 matters attached, the Court was required to impose a heavier penalty than would otherwise have been the case had he been sentenced only in respect of the principal offence: see Attorney-General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 581; R v Timmis [2003] NSWCCA 518. There were also, in the case of Yin, two separate offences under s 97(2) in respect of which the appellant was not involved. However, there was one offence (Count 6 (Sans Souci)) in respect of which Yin was not charged. 92 The following table compares the offences and respective sentences imposed for Qing and his co-offender, Yin. It should be observed that in Yin's case Tupman DCJ only set a non-parole period in respect of the last count. Where an offence was charged under s 97(2) that has been stated. The reference to the 'notional sentence' in the table is a reference to the sentence that would have been imposed but for the plea of guilty.

[44]

QING YIN Count Offence Sentence Count Offence Sentence Notional Sentence Five Dock 6 yrs Five Dock 1 Victim: Dong 25/10/02 - 24/10/08 1 Victim: Dong 4 yrs 6 mths 6 yrs 16/08 Watch; mobile phone; cash $50 NPP 4 yrs 6 mths 16/08 Watch; mobile phone; cash $50 8/10/02 - 7/04/07 Knife 25/10/02 - 24/04/07 Knife Narwee 7 yrs Narwee 2 Victim: Knathanong 25/10/02 - 24/10/09 2 Victim: Knathanong 6 yrs 8 yrs 23/08 Watch; cash $120 NPP 5 yrs 3 mths 23/08 Watch; cash $120 8/04/03 - 7/04/09 Knife; threats 25/10/02 - 24/01/08 Knife; threats Narwee Narwee 3, 4 Victims: Ying, Ding Verdict by direction Victim: Karakazois, Ying, Ding Form 1 Cash $140, $100; mobile phones Cash $50, $140, $100; mobile phones (taken into account on Count 2) Knife; threats Knife; threats Narwee 7 yrs Narwee 5 Victim: Kwong 25/10/02 - 24/10/09 3 Victim: Kwong 6 yrs 8 yrs 23/08 Mobile phone; cash $100 NPP 5 yrs 3 mths 23/08 Mobile phone; cash $100 8/04/03 - 7/04/09 Knife; threats 25/10/02 - 24/01/08 Knife; threats Sans Souci 8 yrs 6 Victim: He 25/10/04 - 24/10/12 [No co-offence] 25/08 Cash $850 NPP 6yrs Pistol/replica; threats 25/10/04 - 24/10/10 Matraville 8 yrs Matraville 7 Victim: Feng 25/10/04 - 24/10/12 Victim: Feng Form 1 26/08 Gold neck chain; cash $15 NPP 6yrs Gold neck chain; cash $15 (taken into account on Count 4) Pistol/replica; threats 25/10/04 - 24/10/10 Knife; threats Matraville 8 yrs Matraville 8 Victim: Yuan 25/10/04 - 24/10/12 4 Victim: Yuan 6 yrs 26/08 Mobile phones; cash $1200 NPP 6yrs 26/08 Mobile phones; cash $1200 8/10/03 - 7/10/09 8 yrs Pistol/replica; threats 25/10/04 - 24/10/10 Knife; threats s 97(2) Rydalmere 9 yrs Rydalmere 9 Victim: Lu 25/01/06 - 24/01/15 6 Victim: Lu 7 yrs 29/08 Gold neck chain, ring; mobile phone; cash $1600 NPP 6 yrs 9 mths 29/08 Gold neck chain, ring; mobile phone; cash $1600 8/01/04 - 7/01/11 9 yrs 4 mths Pistol 25/01/06 - 24/10/12 Pistol? s 97(2) Rydalmere [No co-offence] Victim: Huang Form 1 (taken into account on Count 6) Pistol Ultimo 9 yrs Ultimo 10 Victim: Chow 25/01/06 - 24/01/15 5 Victim: Chow 6 yrs 6 mths 1/09 Gold neck chain; cash $130 NPP 6 yrs 9 mths 1/09 Gold neck chain; cash $130 8/10/03 - 7/04/10 7 yrs 4 mths Pistol (replica?); threats 25/01/06 - 24/10/12 Knife s 97(2) Yagoona 7 yrs 7 Victim: Le 8/10/06 - 7/10/13 9 yrs 4 mths [No co-offence] 8/10 Wallet NPP 4 yrs 3 mths NPP 5 yrs 8 mths Replica pistol; threats 8/10/06 - 7/01/11 s 97(2)

[45]

93 If comparison is made with the "notional sentence" imposed on Yin it is apparent that the sentences imposed for the common offences were approximately the same. The comparison cannot be precise, for the reasons I have already mentioned, including the use of the Form 1 procedure. Thus, in relation to Counts 7 and 8 (the Marrickville offences), the appellant was sentenced to total sentences of 16 years whereas Yin was sentenced to a "notional" term of eight years in respect of his involvement in those offences, the equivalent matter to Count 7 being dealt with on a Form 1. The effective sentence was the same, however, as his Honour Judge Dodd ordered that Counts 7 and 8 be served concurrently. The one exception where the sentence is not comparable relates to Count 10. This disparity may arise because of his Honour's "escalation" of the sentences in the manner to which I have already referred, although Tupman DCJ also appears to have escalated the sentences although not to the same extent and the higher sentences imposed in respect of some of the later offences may be explicable because of the necessity to have regard to the Form I offences. 94 The two judges approached accumulation a little differently, but that is a process that principally (although not solely) relates to totality. Were it not for the plea of guilty, Yin would have received a longer effective sentence than the appellant, namely a sentence of 14 years. That indicates that Yin's sentence was more severe than the sentence imposed on the appellant, although it must be remembered that Yin was charged with an offence that did not involve the appellant, and had offences taken into account on a Form 1, not involving the appellant. 95 The foundation for the concept that there should be parity in sentencing of co-offenders lies in considerations of fairness and whether a legitimate sense of grievance is engendered by a comparison. "Parity" is not simply a technical concept and while comparison of individual sentences is appropriate, so is comparison of the total effective sentence imposed for co-offending. Once that is done, it is apparent that the appellant could not have a legitimate sense of grievance. Accordingly, I would reject the submission that there was not parity as between the sentences imposed on the two co-offenders.

[46]

Comparable sentences 96 The appellant next contends that if regard is had to comparable sentences imposed for offences under s 97(1), it will be apparent that the sentences imposed on him were manifestly excessive. It was submitted that this was particularly so, given the sentencing judge's finding that the offences were in the "mid-range of seriousness for such offences". 97 In R v El-Andouri [2004] NSWCCA 178, the Court (Tobias JA, Kirby and Bell JJ) referred to a number of cases involving sentencing for multiple armed robberies. Those cases disclose a range of sentences from 18 years, with a non-parole period of 13 years 6 months: see R v Merritt [2000] NSWCCA 365, which involved one Count of robbery armed with a sawn-off rifle in circumstances where the victim was wounded, to a number of cases where a head sentence of 12 years was imposed, with non-parole periods of between 6 and 9 years. The analysis undertaken by the Court was not exhaustive, the Court only giving consideration to the total effective sentence imposed. It is also relevant that a number of the cases were Crown appeals. 98 While an understanding of sentences imposed by other courts for the same offence committed by different offenders is necessary to promote consistency in sentencing, care has to be taken not to rely upon a limited sample. Whilst the analysis undertaken in El-Andouri is of some assistance, at the end of the day the Court is required to consider whether the sentences imposed here were manifestly excessive. If so, error is established, requiring the appellant to be re-sentenced. Alternatively, if some other error has been demonstrated, the Court may only re-sentence if some other sentence is warranted in law: Criminal Appeal Act: s 6(3). 99 At this point, something should be said about the individual sentences imposed by his Honour. In R v Henry & Ors (1999) 46 NSWLR 346; [1999] NSWCCA 111, in a guideline judgment in respect of offences under s 97(1) (being the offence involved here), this Court held at [162] that a sentence of 4 to 5 years was appropriate in circumstance where the following factors were involved: a young offender with no or little criminal history; a weapon like a knife, capable of killing or inflicting serious injury; a limited degree of planning; limited, if any, actual violence but a real threat thereof; a victim in a vulnerable position such as a shopkeeper or taxi driver; a small amount taken; and a plea of guilty, the significance of which is limited by a strong Crown case. 100 The Court pointed out that the individual circumstances of the commission of the offence and of the offender may mean that a lesser or a greater sentence would be appropriate. 101 This case is more serious than the "common " circumstances referred to in the guideline judgment in that there was no plea of guilty and the appellant had a prior criminal history with one period of imprisonment of 4 years with a minimum term of 18 months.

[47]

Totality 102 The appellant submitted that the offending in this case occurred during a short space of time so as to be part of a relatively short crime spree, although he accepted that the various robberies could not be considered as part of one act of criminality. However, he submitted that the effect of the partial accumulation of sentences, with a lapse of 3 years 3 months between the commencement of the first and the last sentences, resulted in a sentence that was excessive. As I understand the appellant's submission, no complaint was made about the fact of partial accumulation, only its extent. In my opinion, this submission should be accepted. 103 When regard is then had to the sentence imposed here, I am of the view that the sentences imposed by his Honour, in respect of all but Count 1, were manifestly excessive. Likewise, the total effective sentence was manifestly excessive. I have already adverted to this above. The sentence imposed in respect of Count 1 was within a range of sentences that could appropriately be imposed. However, as there were no significant differences in the criminality involved in the various sentences, as I have already discussed, there was no reasonable basis upon which the offence in Count 1 attracted a sentence of 6 years whereas the offences in, for example, Counts 9 and 10, attracted sentences of 9 years. It is almost undoubted that his Honour's error arose from his understanding that he was required to impose an escalating scale of sentences and did so with a degree of escalation which resulted in the latter sentences being manifestly excessive. 104 The next question is whether a sentence of 7 years for each of Counts 2 and 5 is manifestly excessive. It is between approximately 30 and 40 per cent greater than the basic range referred to in Henry, although this case is more serious because of the appellant's prior conviction for five counts of robbery being armed. In my opinion, when regard is had to the fact that there was no difference of note in the seriousness of the offences, it would be inconsistent to treat the other offences differently unless to take into account the acceleration in the offending. Given that I consider that it is a borderline as to whether a sentence of 7 years is within an appropriate range, I am of the opinion that internal consistency within the sentencing process is such that some other sentence is warranted in law: see the Criminal Appeal Act s 6(3). This conclusion is subject to my view that some regard has to be had to the appellant's accelerating criminality, but not to the extent considered by his Honour. I give effect to this view in the sentences that I consider should be imposed on re-sentence. 105 I consider sentences of 8 and 9 years to be outside the available discretionary range. However, I am of the opinion that some regard should be had to the acceleration in the appellant's offending over the short period involved and that should be reflected in the sentence imposed for the last offence.

[48]

Special circumstances 106 The trial judge did not find special circumstances. His Honour acknowledged that because of the appellant's youth and also because of his drug addiction and his attempts to overcome that addiction, it would be open to do so. He considered, however, that given the manner in which he proposed to structure the sentences, it was neither necessary nor desirable to alter the statutory ratio of non-parole period to the head sentence. 107 In the original written submissions filed on behalf of the appellant, it was suggested that his Honour should have accepted that the appellant's offending was motivated by his drug addiction for that reason and should also have found special circumstances. There was no direct evidence to support that submission and his Honour did not err by finding to the contrary. However, there is no doubt that the appellant had a drug addiction problem at the time of the offence from which it might be inferred that that at least explained his offence and might have been the motivation for it. For myself, I do not consider it necessary to decide that question, and the evidence is that he has taken positive steps to overcome it. His attempts have appeared to have been successful. 108 The appellant also submitted that his Honour should have found special circumstances given that his Honour had imposed cumulative sentences. Reference was made to R v King [1999] NSWCCA 251 at [11] per Wood CJ at CL (Greg James J agreeing); R v Simpson (1992) 61 A Crim R 58 at [61]; R v Street [2005] NSWCCA 139; R v Hung Lo 159 A Crim R 71; [2005] NSWCCA 436. In R v Baker [2000] NSWCCA 85, Spigelman CJ at [18] expressed a doubt as to whether the mere fact of accumulation was a special circumstance, but did not decide the point. 109 These cases do not stand for the proposition that the fact that there has been an accumulation of sentences constitutes or may constitute a special circumstance. Rather, the point considered in these cases arose either because the sentencing judge had found special circumstances but had failed to structure the total sentence so as to give effect to that finding or because the structure of the sentences skewed the proportion between the non-parole period and the term of the sentence. 110 Thus, in Hung Lo, which involved sentencing on two counts of supplying heroin, the sentencing judge had found special circumstances and set non-parole periods in respect of the two Counts that were 66.6 per cent of the head sentence. However, the effect of accumulating the sentences resulted in a proportion of the aggregate non-parole period relative to the aggregate head sentence of 82 per cent. 111 A similar problem had arisen in Street. Spigelman CJ also commented upon this issue in Baker, where the Chief Justice said at [18]: "It does not appear to me that the mere fact of accumulation is [a special circumstance]. However, the consequence of accumulation on a minimum term may be, as indeed it would have been in this case, to significantly attenuate an additional term for the other offence. It is not necessary to finally decide this point." 112 In Simpson Hunt CJ at CL examined the problem that sometimes arose when cumulative sentences were imposed and concluded (at 61) that he was satisfied that: "… special circumstances may also exist in the appropriate case where a court is imposing a series of cumulative sentences, so that it can ensure a proper proportion between the total minimum term and the effective additional term - even if it is only to produce an effective additional term equal to, or roughly equivalent to, one-third of the total minimum term which the prisoner is to serve." 113 In my opinion, his Honour Judge Dodd was not obliged to find special circumstances either because of the appellant's drug addiction or because of accumulation. It is apparent from his Honour's Remarks on Sentence that he directed his mind to the question of special circumstances and determined not to make such a finding. It does not appear that any submission was made to his Honour that an accumulation of sentences ought to be considered in relation to special circumstances. But in any event, the disproportion that sometimes occurs when cumulative sentences are imposed did not occur in this case, undoubtedly because the longest sentences were imposed on the last two counts.

[50]

Should this Court re-sentence? 115 The appellant accepted that, even if some error had been shown in the sentencing process, an appellate court would not interfere unless some other sentence is warranted in law: s 6(3) of the Criminal Appeal Act. That statutory provision applies to each sentence, not simply the effective total sentence: Pearce at [49]. For the reasons I have given, I consider that some other sentence is warranted in law in respect of all but Count 1. 116 In approaching the task of re-sentencing I adopt the Remarks on Sentence of the trial judge, to the extent that they record the particular circumstances of each crime, the objective criminality of the crimes and the appellant's personal circumstances. I also have regard to the question of parity, being of the opinion that in this case, parity requires a lesser overall sentence to that which would have been imposed upon Yin but for the pleas of guilty, given Yin's additional criminality in relation to the offence with which he was charged and in respect of which the appellant was not involved. I agree with and adopt the trial judge's assessment that the appellant and Yin were both equally responsible in the commission of these crimes. 117 In this case, although there are multiple offences, they are not so numerous as to make the approach discussed in Pearce inappropriate. In adopting that approach, I propose to consider the appropriate sentence for each offence and to then consider questions of concurrency and totality. 118 As I have said previously, there was little difference in seriousness between the offences. The value of the money and goods stolen varied slightly, but the amount and/or value of the goods stolen was not large, the largest sum stolen being about $1,600. To the extent there was a difference, it was the weapon used. In the earlier offences the weapon used by the appellant was a knife, whereas in the later offences it was a pistol or replica pistol. In this regard, the trial judge did not make a finding as to whether the gun was a replica or not. It was not submitted by either the appellant or the Crown that the use of one or other weapon should impact on the seriousness of the offence. There are cases where this might be so. In this case, however, in the absence of any distinction being drawn in respect of the weapon used, I consider that an approach that the sentences should reflect that the offences were of approximately equal seriousness should have been be applied, subject to regard being had to the appellant's "accelerating criminality": see Bavadra discussed above. 119 Although I have held that Judge Dodd was not in error in declining to find special circumstances, I am of the opinion that because of the partial accumulation of sentences and the fact that the appellant has shown that he has been taking steps to overcome his drug addiction so that his prospects of rehabilitation are better than considered by the trial judge, it is appropriate to make such a finding. 120 I propose that fixed terms of imprisonment be set for all counts save for Count 10. When regard is had to totality, I am of the opinion that the appellant should be sentenced to a total effective term of 10 years 6 months with a non-parole period of 7 years 6 months. I propose that the sentences be partially accumulated by 6 months. I propose a non-parole period of 4 years in respect of Count 10 to take account of my view that when regard is had to the totality of the sentences imposed and when special circumstances are taken into account, the appellant should be sentenced to a total term of imprisonment of 10 years 6 months and a non-parole period of 7 years 6 months. 121 Accordingly, I would propose the following:

[60]

Re-sentence in respect of Count 10 as follows: The appellant is sentenced to imprisonment for a term of 7 years to commence on 25 April 2006 and to expire on 24 April 2013 with a non-parole period of 4 years to commence on 25 April 2006 and to expire on 24 April 2010. 122 HULME J: I have had the advantage of perusing the judgment of Beazley JA which contains a summary of much of the evidence given during the course of the Appellant's trial. So far as possible I shall avoid repetition. 123 Like her Honour, I would extend the time for appeal but dismiss the Appellant's appeal against his conviction. However, I am unable to agree that the syringe found by the jury in the Appellant's coat would not have had much prejudicial value. In my view that prejudicial value was likely to be very high. 124 Furthermore, although when the existence of the syringe was bought to the trial Judge's attention, His Honour directed the jury in terms about which no legitimate complaint can be made and I am a firm believer in the proposition that juries can and do decide cases upon the basis of instructions given to them, it has been recognised that there are exceptions to that general situation. As Simpson J said in R v Lansdell (Unreported, CCA 22 May 1995) "The system necessarily places a great deal of faith in the ability of a jury to accept, and follow, the directions of a trial judge, even in circumstances where it might appear to the jury that they are asked to act against the dictates of common sense. Equally, however, the system recognises that there are bounds beyond which a jury cannot be expected, or asked, to go. For this reason, the criminal appeal courts have developed the notion encapsulated in the commonly used phrase "no direction to the jury could have cured the damage … ." Implicit in this notion is the recognition that there are occasions when the legal system accepts that a jury will not, or cannot be expected to, comply with the directions of a trial judge. 125 Gleeson CJ, in whose judgment Finlay J concurred, made observations to like effect. See also R v K (2003) 59 NSWLR 431 at [78]. 126 The circumstances here fell within that exceptional category. In my view, no directions were capable of overcoming the prejudice which arose from the presence of the syringe in this case. 127 I acknowledge that it was physically possible for the offender John Yin (sometimes referred to as "John Ying"), about whom there was evidence that he was or may have been a drug addict and with whom the evidence showed the Appellant had some significant connection, to have placed the syringe in the Appellant's coat either at a time the coat was borrowed or otherwise. I acknowledge also that there were other possible explanations for the presence of the syringe. However, so strongly does the presence of a syringe in a coat pocket indicate the likelihood that the owner of the coat is a drug addict that I do not believe that the jury could have put the topic out of their mind. Particularly is this so given the evidence as to John Yin's addiction, that John Yin was a friend or associate of the Appellant and that the Appellant had limited employment and had been sufficiently short of money at one stage to be pawning a watch. 128 In my view once the syringe was found by the jury, the only proper course for Judge Dodd to take was to acquiesce in the application that the jury be discharged without verdict. 129 However, even if error is found, the proviso to Section 6 of the Criminal Appeal Act enables this court to dismiss an appeal if it considers that no substantial miscarriage of justice has actually occurred. I am persuaded that that is the situation and the court should exercise its power under that proviso. In my view the evidence against the Appellant on the charges of which he was convicted was so compelling that conviction was inevitable. 130 The charges upon which the Appellant was convicted arose from the robbery of persons who happened to be present at the relevant times at six brothels - On 16 August 2002 at Five Dock

[61]

On 1 September 2002 at Ultimo 131 In each case there were two offenders and one or more weapons in the form of knives or pistols (whether imitation of otherwise). In the case of the offences at Narwee, Matraville and Ultimo, each was preceded by one or more calls from a phone which contained a SIM card used by the Appellant and in the case of offences at Sans Souci and Rydalmere by a previous attendance of one or both of the offenders. In the case of all of the offences, persons present at the premises were tied up. With the possible exception of the robbery at Five Dock, the victim of which, Mr Dong, gave inconsistent accounts in this regard, on each occasion one offender was noticed to be taller than the other. The Appellant acknowledged that John Yin was the taller of the two. 132 The modus operandi involved in all offences was such as to strongly suggest, if not compel, the conclusion that they had at least one common author. The evidence before the jury that John Yin had pleaded guilty to offences of armed robbery on 16, 23, 26, and 29 August and 1 September 2002 involving Mr Dong, Ms Kunthanong, Ms Kwong, Mr Yuan, Ms Lu and Ms Chow provided yet further evidence in that regard in relation to those offences. 133 There was uncontested evidence that the Appellant had on 25 and again on 30 August 2002 pawned a Longines watch stolen during the course of the robbery on 16 August 2002. In an ERISP the Appellant said he had bought the watch from John Yin. The Appellant didn't have money at the time, Mr Yin needed some, so the Appellant bought the watch, pawned it and gave the purchase price $50 or $100 to Mr Yin. In evidence the Appellant could give no explanation for why he didn't suggest to Mr Yin that the latter pawn the watch. It is not unfair to say that the Appellant's explanation for his transactions involving the watch, more detail of which appears in the reasons of Beasley JA, is absurd and his dealing with it provides strong evidence of his involvement in the first of the robberies. 134 Asked in an ERISP which occurred on 25 October 2002 about use of the SIM card to which reference has been made, the Appellant agreed he had had sole use of the SIM card for the last "two, three, four months". However, he went on to say that sometimes at work someone would pick up "a" - it may be inferred he meant his - phone and use it. A little later, after John Yin was mentioned, the Appellant said Mr Yin used his phone a lot either at work or when he visited the Appellant at home and sometimes took it away for a while. 135 Called to give evidence during his trial, the Appellant was unable to name the persons apart from John Yin who used his phone. 136 While it might be going too far to describe the Appellant's statements and evidence as to the use of his phone by others as absurd, it is fair to say that both in what he said and in the manner of his telling it, the Appellant's accounts appeared as inherently improbable. Unless one accepts the Appellant's statements as to others using his phone and draws the inference that that use extended to making the calls to the Narwee, Matraville and Ultimo brothels shortly before the robberies there occurred, the fact that those calls were from a phone that included the Appellant's SIM card provides strong evidence of his involvement in the robberies at those premises. 137 Other evidence against the Appellant included that of a number of persons who had been at the brothels at the time of the robberies and who identified photographs of the Appellant as depicting one of the robbers. However, the strength of this evidence of identification varied significantly from one witness to another and it is necessary to consider what each said and also any other matter that might be thought to have any possibility of a significant impact on the jury's assessment of the weight of the identification evidence. It may be noted that Mr Dong, Ms He, Ms Lu, Ms Chow and Mr Dao were shown copies of one photograph of the Appellant and Ms Kanthanong, Ms Kwon and Mr Yuan were shown copies of a different photograph. There is a substantial difference between the photos. It was common ground that the photographs picked out by these witnesses as photographs of the Appellant were in fact of him. 138 Mr Dong was a receptionist at the Five Dock premises on the occasion of the robbery there. On 20 November 2002 he was shown two series of photographs by police officers. 139 During his perusal of the first series of photographs, he rejected a number of pictures fairly quickly saying, "these ones are not, definitely". However, there was appreciable hesitation while he looked at two other photographs. As between these two he said there was "more percentage this picture" and later when referring to the second, "I don't think this is the one, because too many spots (later referred to as "chicken pox") on there". Later again when asked, "What percentage would you, would you say likely this person is the person" (sic), he said "80%" and "if the guy is real, I can say 100%. It's a picture. The real percent is 100%. It's the picture". There was certainly no immediate identification such as to suggest confidence in the result. In evidence Mr Dong said that the reason he had picked out this photograph was that it was of the crew-cut man who robbed him. Other evidence showed that at about the time, Mr Yin did not have a crew cut but the Appellant did. 140 When shown the second set of photographs and even before he had seen them all, Mr Dong picked out one and said "this one for sure". Later, when reminded that he had said 80% during the course of his consideration of the first set of photographs and asked about the photograph he had identified in the second set, he said "same as that, 80%. Even more, maybe 5, maybe 85%. But the picture is the picture." And later "I can't 100%, 80%, 85%." 141 According to a Sergeant Davey who gave evidence - and this appears to have been common ground - the photograph Mr Dong identified in the second group was of John Yin. 142 It should be mentioned also that at one stage Mr Dong said that one of the men was shorter than he himself was. Later and somewhat inconsistently Mr Dong also said both were of the same height. 143 A Ms Kanthanong was present at the robbery on 23 August 2002. She was shown a series of photographs on 3 October 2002 and picked out one as the shorter of the two men involved in the robbery. During the course of her identification attempt, the person interpreting for her said "must be this one" and "number 16, this one 80%". However, the selection of those two passages from the totality of the transcript of Ms Kanthanong's identification is very misleading. When either that totality is considered or the video recording of the identification exercise is seen, it is apparent that Ms Kanthanong's identification was very, very indefinite. 144 A Ms Kwong was also present at the 23 August 2002 robbery. On 3 October 2002 she was shown 3 folders of photographs and picked out one photograph. She confirmed these matters during a later video recording and that the photograph she had picked out was numbered 16. In evidence she said that the person depicted was the shorter of the two offenders. 145 A Ms He was present at the 25 August robbery. On 14 November 2002 she was shown a series of photographs and, as her actions demonstrate, very firmly identified 2 as those of the persons who had participated in the robbery. One was of the Appellant and assuming there has been no interference with the order of photographs in Exhibit H, this was, according to Ms He, a photograph of the shorter of the 2 robbers. 146 Asked as to the certainty of her identification, when seeing the photographs Ms He said 200% in the case of the Appellant and 100% in the case of the taller offender. In evidence she said that she was 100% sure in the case of the shorter man but could not be 100% sure in the case of the taller man. 147 The second photograph identified by Ms He was, according to Sergeant Davey, not of Mr Yin. (It should be remembered that Mr Yin had not pleaded guilty to an offence on the day the robbery at Ms He's premises occurred.) 148 Mr Zhou was Ms He's husband. He gave evidence of 2 men attending at the Sans Souci premises 2 days before the robbery, of some short conversation and of the men then leaving, as if they were customers tired of waiting. Shown a series of photographs on 14 November 2002, he identified a photograph of the Appellant, saying in the witness box that it depicted the shorter of the 2 men who had so attended. The transcript of the audio tape of Mr Zhou's consideration of the photographs - the video tape equipment malfunctioned - records Mr Zhou as saying, "I am not sure, but it resembles", that he would be more sure if he could see the height of the person and, asked how similar the person in the photograph was to the person spoken to at the brothel, Mr Zhou said, "Just the face, 70 or 80%". 149 Mr Xuan was the owner of the brothel at Matraville. He was there on the day of the robbery at those premises. On 10 October he attended a police station and looked at a bundle of photographs. He set aside two photographs and said and in his manner indicated that he was 100% sure one was a photograph of the short robber but not 100% sure the second photograph was of the taller robber. As has been said, the photograph identified as that of the shorter robber is a copy of a photograph of the Appellant. 150 Sergeant Davey gave evidence that the second photograph was not of Mr Yin. Certainly the person depicted looks very different from the person identified by Sergeant Davey as Mr Yin in Exhibit D 151 A Ms Lu was present at Rydalmere on 29 August 2002. On 20 November 2002 she was shown 2 sets of photographs. Out of the first set she selected one. In summary she said that the photo looked a bit like the younger and taller robber and the robber with short hair - other evidence indicated that that description fitted the Appellant - did not appear at all in the first set. 152 Ms Lu was then shown a second set of photographs. After putting about 6 or to one side, she reacted to the next as if she instantly and definitely recognised the person depicted. She then considered a few more and also put them aside. However much of the transcript of the questions and answers, all via an interpreter, that followed the apparent recognition is in terms calculated to cast doubt on the firmness of that recognition. It includes expressions, "seems like this person", "look like that person", "If I can see the real person then … I can say" and "I just feel that he is that person". Nevertheless at a later stage when she was asked "How strongly do you feel that this is the person?", she is recorded as replying "I think this picture is the same" and "…this guy I would say the similarity over 90%". Between the question and first of these answers there were 8 exchanges between the interpreter and Ms Lu and 3 exchanges between the first and second answers. She then added, "Because there is differ, obvious difference between real people and picture, and you can't, you can't seen his height". 153 In evidence she said that she selected the photograph because she recognised the person as the shorter man who robbed her. In should also be mentioned that in evidence Ms Lu said the shorter person had a gun although in her statement she attributed the only gun to which she referred as held by the taller robber. 154 Ms Chow was present on 1 September 2002 at the Ultimo brothel and described the robbery there. On 18 November 2002 she was shown 3 sets of photographs, much but not all of the conversation being interpreted. Out of the first set she selected one saying "this one is 70% I guess" and referred to the person depicted as that "short person". She then asked to see more pictures, indicating she had not seen enough and that if there is someone else (in further pictures) who was similar, then there would be a waste of time. Shown a second set she again put aside one photograph saying that it was of the taller person. She did not pick out any photograph from a third set. 155 Saying "100%, not sure, I have to look again" Ms Chow did so, then remarking, "I am sure. 1000%". 156 In evidence, Ms Chow said that she looked through the photographs she was shown and selected two, one the taller man and one the shorter man. Shown a group of photographs in court, which may have been one of the set but which certainly contained fewer than the totality of those Ms Chow saw at the police station, she identified one bearing her signature as that of the shorter man. 157 Included in the items stolen on 29 August from Ms Lu was a mobile phone. A Mr Dao gave evidence of having purchased a mobile phone at the end of August from a man at a club who had 2 phones to sell. On 11 December 2002 Mr Dao was shown by police a series of photographs and selected one. During the course of the interview Mr Dao said that the photo looked like the person who sold him the phone but he was not sure and in order to make sure the police should look at the video recordings at the club. Asked how sure he was that the photo was of the man who sold him the phone Mr Dao said 80 to 90%. Asked to write something on the selected photo to identify it, Mr Dao wrote words to the effect "He looks like the one who sold me the phone". There was evidence that the phone purchased by Mr Dao was shown by police to Ms Lu but, I think, no evidence to indicate that it was hers. 158 In summary the eyewitness evidence identifying the Appellant as a participant in the robberies was as follows:- Five Dock Mr Dong 80% likelihood Narwee Ms Kanthanong very, very indefinite Ms Kwong no reservations Sans Souci Ms He 100% likelihood Mr Zhou 70-80% likelihood Matraville Mr Xuan 100% likelihood Rydalmere Ms Lu varying between "I feel" and almost certainty Ultimo Ms Chow 100% 159 Considered in isolation some parts of this evidence clearly have their weakness. However when regard is had to the totality and to the other aspects of the evidence to which reference has been made, the case against the Appellant in respect of each of the charges was compelling. In these circumstances, it is appropriate to apply the proviso to s6 of the Criminal Appeal Act - see Wilde v R [1987-1988] 164 CLR 365 at 372; Festa v R [2001] 208 CLR 593.

[64]

6, 7 & 8 Imprisonment for 8 years including a non-parole period of 6 years both such periods to commence on 25 October 2004. 9 & 10 Imprisonment for 9 years including a non-parole period of 6 years and 9 months both such periods to commence on 25 January 2006. 161 The effective sentence of 12 years and 3 months seems to reflect some error in his Honour's maths. In his remarks on sentence his Honour observed:- "I have taken into account the necessity to consider totality and in assessing the questions of concurrence and cumulation, I have come to the view that the minimum term to be served is ten years with the head sentence effectively being thirteen years and three months. That is not precisely a ration of 75% but near enough to it." 162 The property stolen in the offences was respectively as follows:- 1. A Longines wrist watch, a mobile telephone and $600. 2. A gold coloured wrist watch and $120. 5. A mobile telephone and $100. 6. $850. 7. A necklace 8. 2 mobile phones and $1,500 9. A gold chain and pendant and a gold ring. 163 I agree with Beazley JA that leave to appeal should be given notwithstanding the Appellant is out of time. I also agree with her Honour that Judge Dodd did not err in the form in which he imposed sentence. His Honour followed the procedure required by s44 of the Crimes (Sentencing Procedure) Act, as it applied to the Appellant's offences, of first setting the term of the sentence and then setting the relevant non-parole period. 164 I thirdly agree with her Honour's conclusion that the Appellant's complaint of lack of parity with the sentences imposed on the co-offender Yin is not made out. 165 I fourthly agree with her Honour that Judge Dodd erred in thinking that he was required to escalate the sentences he imposed in respect of the later offences simply because they were later. 166 I fifthly agree with her Honour that to group the offences for the purposes of sentence, as Judge Dodd did, was to risk error. However, that course is not inappropriate at times, including those when a sentencing judge has to deal with a substantial number of offences. Beazley JA has taken the view that in the circumstances of this case, eight offences, that course is not justified. In this I disagree with her Honour because whether the course of grouping is to be followed is largely a matter of discretion, and in my view, eight charges is a sufficient number to entitle a judge to take the course Judge Dodd did. 167 I turn to the length of the sentences Judge Dodd imposed. In R v Henry (1999) 46 NSWLR 346 this Court provided a guideline as to the appropriate sentence for offences having a number of identified characteristics, viz. -

[65]

"(i) Young offender with no or little criminal history. (ii) Weapon like a knife, capable of killing or inflicting serious injury. (iii) Limited degree of planning. (iv) … (vii) Plea of guilty, the significance of which is limited by a strong Crown case." 168 The guideline was a head sentence in the range of 4 to 5 years. As a guideline, that range was indicative only - see at [29] - and even then it was but a starting point when the circumstances accorded with those assumed. Other or different factors were liable to operate so as to increase or reduce a sentence from the range indicated - see at [169]. 169 The circumstances here were substantially worse and required a higher sentence for each offence. The Appellant's prior conviction and imprisonment for five earlier armed robberies placed him a long way from the situation contemplated in paragraph (i); there was also more than a limited degree of planning for each offence; and he did not plead guilty. The latter fact alone could be expected to lead to a sentence something of the order of a year longer than the 4-5 year term contemplated in R v Henry. 170 In light of that decision and those differences it is impossible to conclude that a sentence less severe than the 6 year term, including a non-parole period of 4½ years, imposed in respect of count 1 was "warranted in law and should have been passed". In this situation, s6(3) of the Criminal Appeal Act requires that the appeal against that sentence be dismissed. The same must be said in respect of the sentences of 7 years, including non-parole periods of 5 years and 3 months imposed in respect of counts 2 and 5. It is impossible to say that those sentences are manifestly excessive and outside the proper range of Judge Dodd's sentencing discretion. 171 Nor does the fact that the sentence imposed in respect of count 1 was only 6 years require any different conclusion. I know of no principle of law or sentencing practice, or authority, that requires a sentence in itself proper to be reduced simply because another sentence imposed on the same offender for a comparable offence - a sentence that, by the standards of R v Henry, can only be regarded as lenient - is less. Absent such a requirement, I find it impossible to say that lesser sentences "should have been passed" on counts 2 and 5. 172 (I should perhaps add that, had the sentences for counts 1, 2 and 5 been the only ones imposed, I would have regarded the choice of the same starting date for count 1 as for the other sentences indicative of error. However, given the Appellant was being sentenced for 8 offences and a substantial degree of concurrency was thus required, his Honour was entitled to commence the sentences on counts 1, 2 and 5 as he did.) 173 Uninstructed by the decision of this Court in the case of the Appellant's co-offender, R v Yin [2005] NSWCCA 138, I would take the view that the sentences of 8 and 9 years imposed in respect of the remaining counts, 6, 7, 8, 9 and 10 were outside the legitimate exercise of his Honour's discretion. In so concluding I am not unconscious that 8 years is but one more than 7 years and that I have taken the view that that period was one which was within his Honour's discretion. However a line must be drawn somewhere and I regard it as falling below 8 years. The offences the subject of these counts are too far from a "worst case" of offences under s97(1) of the Crimes Act (which provides a maximum penalty of 20 years imprisonment) to justify such a penalty, and this notwithstanding that the Appellant was sentenced in 1993 to 4 years' imprisonment (including an 18 month non-parole period) on 5 counts of armed robbery. 174 In this connection it is relevant to bear in mind the limited scope of the offences, the relatively small amount and value of the property taken or likely to have been available and that there was little if any evidence of any major trauma having been suffered by the victims. Furthermore, although as I have often said statistics have their limitations, it may be noted that a sentence of 8 years falls into the top 3% of sentences for single offences under s97(1). Nor do I see in the difference in the value of the property taken in the offences the subject of counts 6 to 10 any ground for distinguishing between the sentences imposed for the offences the subject of these counts and those the subject of counts 1, 2 and 5. Given the nature of the offences, such difference as there was, was simply a matter of pure chance and is not such as to merit any higher punishment than those imposed for the earlier counts. 175 In R v Yin this Court dismissed an appeal by Yin against the sentences imposed on him by Judge Tupman on 7 charges. These were:- (i) for the same offence as that the subject of count 1 against the Appellant, imprisonment for a fixed term of 4 years and 6 months; (ii) for the same offence as that the subject of count 2 against the Appellant, imprisonment for a fixed term of 6 years; (iii) for the same offence as that the subject of count 5 against the Appellant, imprisonment for a fixed term of 6 years; (iv) for the same offence as that the subject of count 8 against the Appellant, albeit laid under s97(2) of the Crimes Act, imprisonment for a fixed term of 6 years; (v) for the same offence as that the subject of count 10 against the Appellant, albeit laid under s97(2) of the Crimes Act, imprisonment for a fixed term of 6½ years; and (vi) for the same offence as that the subject of count 9 against the Appellant, albeit laid under s97(2) of the Crimes Act, imprisonment for a fixed term of 7 years; (vii) for another offence under s97(2) of robbery of a shop proprietor and in circumstances of little premeditation, imprisonment for 7 years including a non-parole period of 4 years and 3 months. 176 These periods were arrived at after her Honour had made allowance for Yin's pleas of guilty, allowances which, as her Honour indicated elsewhere in her remarks were of, or of the order of, 25%. When such discounts are added back, her sentences represent undiscounted figures as high as 8 and 9 1/3 years. 177 Judge Tupman's observations and the length of some of the sentences make it clear that some of the sentences do reflect an increase from those which would otherwise have been imposed because her Honour was asked to take into account one or more offences on Form 1s. However that is not so in the case of the sentences referred to in the paragraphs I have numbered (v) and (vii) and the dismissal of Yin's appeal thus argues against my initial reaction that the sentences imposed on the Appellant under counts 7, 8, 9 and 10 are manifestly excessive. 178 To what extent, if at all, the fact that many of the charges against Yin were preferred pursuant to s97(2) where the maximum penalty is 25 years, was regarded as of significance is not apparent from Judge Tupman's remarks or the judgments in this Court. However what is of significance is the fact that the only arguments advanced in support of Yin's appeal - see at [10] - were that the allowance for Yin's pleas was inadequate, secondly that a finding of special circumstances should have led to a lower effective non-parole period, and thirdly that the aggregate sentence was manifestly excessive. Furthermore, the argument on the third, which is the only one of any possible relevance here, seems to have been concentrated fairly narrowly. At [16], Hidden J, in whose remarks Sully and Dunford JJ concurred, said:- "Mr Smith's argument that the aggregate sentence is manifestly excessive centred upon the sentence in respect of the seventh charge which, he said, has led to an overall sentence greater than was called for by the whole of the applicant's criminality. He relied not only upon the length of that particular sentence, but also upon the fact that it was directed to commence on 8 October 2006, two years and nine months after the commencement of the sentence on the sixth charge. He noted that such partial accumulation as there was on the other six sentences was much more modest, amounting in all to one year and three months. He submitted that her Honour failed to pass a sentence on the seventh charge appropriate to that particular offence, in breach of the familiar principles enunciated by the High Court in Pearce v The Queen (1998) 194 CLR 610." 179 Later Hidden J characterised the seven year sentence on the seventh charge as "severe". 180 It is, as I have said, not clear what weight the Court gave to the difference between s97(1) and s97(2) in the penalty prescribed. Nor is it apparent how much weight was given to the Form 1 offences. There were 5 of them and Judge Tupman's remarks made it clear that the sentences in respect of the offences I have numbered (ii), (iii), (iv) and (vi) were appreciably increased on account of these offences. So far as the report reveals, no authorities providing any guidance as to the appropriate range of sentences for multiple offences were cited to the Court. In these circumstances, I do not regard the decision in R v Yin as obliging me to reach a conclusion different from that I have expressed concerning the length of the sentences on counts 6 to 10. Even if the result is one of disparity, I do not regard the decision in R v Yin as obliging me to impose on the Appellant sentences higher than I would otherwise regard as appropriate. 181 Reference should be made also to a number of decisions referred to in R v El-Andouri [2004] NSWCCA 178 to which counsel for the Appellant directed the Court. These included:- R v Uasi [1999] NSWCCA 306 - 1 x bank robbery in company, 1 x attempted aggravated bank robbery with wounding, 2 x armed robbery + (on Form 1) 11 robberies of banks, staff and customers, 5 other robberies - proceeds approximately $238,000 - sentence 12 years total and 8 years minimum; Bavadra (2000) 115 A Crim R 152 - Crown Appeal - 2 x robbery with offensive weapon, 2 x robbery in company, 3 x robbery with a dangerous weapon + on (Form 1) 9 other similar robberies and 2 more minor offences - proceeds approximately $60,000 - sentence 12 years total and 8 years minimum; R v Itamua [2000] NSWCCA 502 - 42 x robbery with a dangerous weapon, 2 more minor charges - proceeds over $190,000 - 17 years total and 11 years non-parole; Karaman (2002) 128 A Crim R 72 - Crown Appeal - 1 x robbery in company, 1 x aggravated robbery with wounding, 2 more minor offences - 12 years total and 9 years non-parole; and R v Budd [2002] NSWCCA 302 - 1 x robbery with wounding, 13 x robbery while armed with an offensive weapon, 1 x assault with intent to rob while armed + (on Form 1) 10 similar offences - victims mainly shopkeepers etc. - proceeds over $11,000 - sentence 12½ years total and 8½ years non-parole. 182 It was submitted that these cases point to the conclusion that the sentences imposed in this case were too high. Bavadra, Itamua and Karaman were Crown Appeals but even making allowance for this and a number of other particular features in some of the cases, as a group the decisions certainly do support the Appellant's contention. The difficulty I have is in accepting either that the cases are representative of all cases in this area or should be followed. So far as the first of these matters is concerned this Court has, on innumerable occasions, eschewed arguments as to severity based on one or a few selected cases. Both general experience in the Court and references in Bavadra indicate those selected are not representative. So far as the second of the matters is concerned it seems to me that a number of the sentences imposed were extremely lenient and though the cases mentioned have caused me to pause, I prefer to base my decision on the terms of s97(1) and, with some guidance from the decision in R v Henry, what I perceive to be the needs of general and personal deterrence, retribution, rehabilitation and the protection of the community in this case. 183 Before I turn to the issue of what sentences in lieu of those I regard as erroneous should be imposed, I must refer to another error made in the sentencing of the Appellant, viz. that there was no evidence that the Appellant committed the offences for the purpose of obtaining funds to fund a drug addiction. What his Honour said in this connection was:- 184 A Pre-sentence Report indicated that the Appellant had commenced heroin use in 1996 and used it thereafter during a number of periods, the latest commencing in June 2002. The Pre-Sentence report recorded that the Appellant "attempted to detoxify in August 2002". A psychologist's report also referred to the Appellant having been addicted and there having been intense use in the months before receiving a Naltrexone implant. Notes of Dr Tan who inserted the implant record that on 1 October 2002 the Appellant was in "day 2 or day 3 of detox". The Appellant gave evidence on sentence and provided confirmation of some of these matters. Subject to the matters referred to in the next paragraph, he was not challenged. 185 Included in the Appellant's evidence was the statement that in August/September he was "doing detox at home" and, in answer to a question from Judge Dodds, that he had told the psychologist that in August and September he was housebound undergoing a home detoxification with his Naltrexone implant. 186 The latter statement of course conflicts with the jury's verdict and with some of the evidence to which I have referred. 187 To the evidence so far mentioned may be added the fact that the Appellant associated with John Yin who the evidence suggested was using drugs and some matters of which the Court may take judicial notice, viz. that heroin is notoriously difficult to give up once a person is addicted; that the habit is almost impossible to fund except by crime; and also that pawn brokers interest rates are high and the pawning of goods is evidence of some urgent need of funds. In totality, there was thus a wealth of evidence that at the time of committing the offences the Appellant was in fact addicted, and that the offences were committed as a result. (I put to one side the information his Honour had that a syringe had fallen out of the Appellant's coat, information which may not have been formally tendered before his Honour.) 188 The significance of his Honour's finding is apparent in the following passage from his remarks on sentence:- It has been contended on your behalf by submissions from your counsel that I should find that you have good prospects of rehabilitation. This is based upon the fact of your previous drug abuse and what I accept are your efforts to overcome your drug addiction both before and since your arrest and during your time in custody since your arrest and what I accept to be some considerable achievement in that regard. The difficulty in using that as a basis for concluding that you have good prospects of rehabilitation is that there is no evidence that you committed these offences in any way as a result of your drug addiction. There is simply no evidence before me to indicate for instance, that you committed these offences for the purpose of obtaining funds to fund your drug addiction, nor is there evidence of any other connection. Indeed, the evidence, if anything, as all the other way. As I say it makes it difficult to conclude that your efforts and success in dealing with your drug addiction indicate any efforts or success in rehabilitation in respect of the commission of these offences or the prospect of committing such offences in the future. I am therefore not persuaded on the balance of probabilities that your prospects of rehabilitation are good. It seems to me in view, in particular, of your relative youth but also on account of you previous drug addiction and your efforts in overcoming that, that it would be open to me to find special circumstances. However, in view of the structure of the sentences that I am about to impose I have come to the view that it is neither necessary nor desirable to alter to any extent the ratio of non-parole period to a head sentence by increasing the parole period as opposed to the non-parole period. 189 Of course, if one accepts the Appellant's evidence that he commenced detoxification as early as August 2002 and in August and September was housebound, a finding that the offences were not the result of a heroin addiction is justified but this is not the way his Honour reasoned. It must be recognised that this Court has not seen the Appellant in the witness box and that there are obvious difficulties in this Court making a finding of fact in the face of the Appellant's evidence. Nevertheless the other evidence to which I have referred seems to me so compelling that this Court should conclude that the Appellant was addicted at the time of the offences and that this was at least a major inspiration for them. 190 Judge Dodd's failure to be persuaded that the Appellant's prospects of rehabilitation were good notwithstanding his Honour's findings that the Appellant had made some considerable achievement in his efforts to overcome his addiction, was a consequence of his view that there was no evidence that the offences were the result of drug addiction. In light of my conclusion that this view was wrong, the achievement of which his Honour spoke and the fact that the Appellant voluntarily undertook efforts in this regard prior to and quite independently of being charged with his offences - efforts for which he is to be commended - leads me to the view that this Court should approach the challenge to the sentences imposed without regard to Judge Dodd's findings as to the Appellant's prospects of rehabilitation. 191 That does not of course mean that this Court should adopt an opposite view. The Appellant's prospects in this regard are a matter of mitigation and the evidence is by no means as favourable to him as occurs in some cases. There is of course the evidence of some detoxification and of obtaining the Naltrexone implant prior to being arrested, and although this seems to have been inspired at least in part by his de facto or family, the fact of taking these steps does provide some hope that the Appellant has seen the error of his ways. He has deposed to being drug-free in prison and that that has been confirmed by urinalysis. His plea of not guilty provides no evidence of remorse or acceptance of responsibility for his offending. The Pre-sentence Report gives the Appellant no comfort in this regard beyond saying that the Appellant has the support of his partner of 4 years and of his family. However, it is obvious that they were not enough to prevent the offending that led to these proceedings. 192 A psychological report in evidence included statements that the Appellant suffered longstanding symptoms of depression, anxiety and low self-esteem and while giving credit for the Appellant's progress in overcoming his addiction said that it was of concern that he had not received any psychotherapy directed to the underlying cause of his problem. It assessed him as bright enough to respond to such treatment. An affidavit tendered during the hearing of the appeal stated that the Appellant had undertaken as many courses as were available to him but none of those he had undertaken fulfilled the advice of the psychologist. 193 In the result, although one can say that there are reasonable prospects of the Appellant being rehabilitated by the time he emerges from custody, it does not seem to me that the evidence is sufficient to enable one to say that his prospects in this regard are as high as "good". 194 Being required by the conclusions at which I have arrived to determine myself the length of the sentences imposed on counts 7, 8, 9 and 10, and although I regard the sentences of 6 years and 7 years imposed by Judge Dodd on counts 1, 2 and 5 as within the appropriate sentencing range, subject to the remarks that follow, I would fix for each offence a non-parole period of 5 years and a full term of 6 years and 8 months. Each of the Appellant's offences requires a sentence significantly longer than the guideline sentence indicated in R v Henry even though principles of totality will limit the effective operation of each sentence. (I may add that I am not unconscious that most of what I may refer to as the parole periods will be concurrent with other non-parole periods and, except in the case of the last 1 or 2 offence, it might have therefore been cleaner to impose fixed terms. However, having decided that there should be no interference with the sentences imposed by Judge Dodd on counts 1, 2 and 5, I am disposed to follow his Honour in imposing non-parole periods and longer total sentences.) 195 I turn then to the topics of totality, accumulation and concurrency. Clearly it is not appropriate to simply accumulate all of the non-parole periods. The issue is what effective total non-parole period and sentence properly reflect the Appellant's criminality and other circumstances. The matter is one where there is no single correct answer and one upon which minds can readily and reasonably differ. The conclusion at which I have arrived is that an appropriate result is a non-parole period of 7½ years and a full term of 10 years. Incarceration for either of these periods involves a major imposition on a lifespan of the order of 75 years and in the case of someone like the Appellant, born in June 1974, is calculated to have an effect on his life - work, home, family etc - lasting long beyond the imprisonment itself. The periods also reflect a significant increase above the guideline suggested in R v Henry and also the penalty appropriate for one offence, making it clear to anyone in the position that the Appellant was in that the commission of one offence does not enable the commission of others with impunity. 196 In arriving at the periods referred to in the immediately preceding paragraph, I have given appreciable weight to the fact that the Appellant, of his own volition, even if partly inspired by his girl-friend, took significant steps to cure himself of his addiction. I should also record that I have taken into account the other matters referred to in s21A of the Crimes (Sentencing Procedure) Act although, given the factors argued in the appeal, I do not regard it as necessary to spell these out. 197 One matter which has caused me concern is that the sentence I propose is, particularly when account is taken of the fact that Yin pleaded guilty, appreciably less than that imposed on the latter. However, as Beazley JA has pointed out, although Yin faced only seven substantive charges (compared with the Appellant's eight), he also had five Form 1 matters taken into account and was not regarded as having good prospects of rehabilitation. The remarks on sentence of Judge Tupman who sentenced Yin make it clear that the sentences for the offences where Form 1 offences were taken into account were higher than they would otherwise have been. 198 I do not find it necessary to analyse the differences further. It is sufficient to say that the sentences imposed on Yin, even if the result of this appeal is to create disparity, do not persuade me that those imposed and to be imposed on the Appellant should be higher than I have indicated. 199 I should mention also that in arriving at the conclusions I have, I have given consideration to whether there should be any finding of special circumstances. I see no basis for such a finding except the accumulation of sentences and would structure the last sentence so that the ratio of 3:1 contemplated by s44 of the Crimes (Sentencing Procedure) Act is achieved for the overall sentence. Given the total result of the sentences, that will achieve a sufficiently long non-parole period. 200 Accordingly, the orders I would propose are:- 1. Dismiss the appeal against conviction. 2. Grant leave to appeal against sentence. 3. Dismiss the appeal against the sentence imposed in respect of count 1, viz. that the Appellant be imprisoned for 6 years including a non-parole period of 4½ years, both such periods to commence on 25 October 2002. 4. Dismiss the appeal against the sentences imposed in respect of counts 2 and 5, viz. that for each offence the Appellant be imprisoned for 7 years including a non-parole period of 5 years and 3 months, both such periods to commence on 25 October 2002.

At a glance

Court

Decision date

Before

Source

Judgment (68 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (37)

Cited By (28)