R v Chua [2003] QCA 41

Court of Appeal (Qld)|2003-02-14|Before: Williams, JA, Jerrard JA and Mullins J, Separate reasons for judgment of each member of the Court, each concurring as, to the order made

Director of Public Prosecutions (Queensland) for the respondent

WILLIAMS JA: I will ask Justice Mullins to give her reasons

MULLINS J: The applicant applies for leave to appeal against the sentence imposed on her on 21 October 2002 in respect of three counts of accessory after the fact to burglary, stealing and unlawful use of a motor vessel.

On each count the applicant was sentenced to imprisonment for 18 months to be suspended after six months for an operational period of two years.

The principal offender, Sokolowski, was the de facto partner of the applicant. In November 1999 he burgled and stole valuable items from the residence of the complainant, including a 48-foot cruiser. The applicant had no knowledge that Sokolowski intended to commit these offences.

The stolen items which were never recovered were valued at between two and $3 million dollars. Sokolowski worked for the complainant and had a key to the residence where the offences occurred. As a result the complainants were not covered by insurance except for the boat and received only some $200,000.00 from the insurers.

After these offences there was a vast and expensive international search for the missing property and for Sokolowski. Eventually Sokolowski secretly returned home on

5 December 1999 from which point the applicant's role as an accessory commenced.

There was an elaborate process by which using false names Sokolowski, with the applicant's assistance, went by bus to Cairns and communication between the two of them was able to continue.

Sokolowski returned to the applicant on 8 April 2000 and was with her the following day when their baby was born. The applicant then helped Sokolowski depart for Cairns on 14 April 2000.

In June 2000 Sokolowski shifted to Noosa Heads and the applicant spent considerable time at Noosa with him. A chance encounter led to Sokolowski's apprehension in Noosa in December 2000.

Over the 13-month period from 5 December 1999 when the applicant had commenced to assist Sokolowski the cost of the search for him and the property was about $1 million. Sokolowski was granted bail in May 2001. The applicant and Sokolowski were married on 11 November 2001. Sokolowski then purchased a one-way ticket to Bangkok and planned to leave from Sydney airport.

On 24 November 2001 the applicant drove Sokolowski to Murwillumbah Railway Station so that he could catch the train to Sydney. Sokolowski's attempt to leave the country was unsuccessful.

The applicant was born on 18 December 1962 and was between 37 and 39 years old at the time of committing these offences. The applicant came to Australia in 1975 from Vietnam and had not had an easy life. She has two children aged 15 years and 12 years from a former relationship as well as the child born to her and Sokolowski on 9 April 2000.

The applicant had no prior criminal history. It was accepted by the learned sentencing Judge that the offences were out of character and that she committed them because of her irrational attachment to Sokolowski and in order to benefit their child.

After Sokolowski had been apprehended in December 2000 the applicant made full admissions and entered timely guilty pleas. The ground relied on to support the application is that the sentence is manifestly excessive and that a sentence of 18 months' imprisonment suspended after four months would balance the competing interest of deterrence with the mitigating factors in favour of the applicant.

There are no comparable cases. It is simply a question of whether the sentence imposed was within the range appropriate

to the circumstances of these offences, taking into account the applicant's circumstances. Even allowing for all that was put forward in favour of the applicant, she provided assistance to Sokolowski on many occasions over the 13-month period from 5 December 1999 after he had committed serious property offences with great consequences for the victims and the community and then assisted Sokolowski again on 24 November 2001 when he was proposing to flee the country.

I am therefore not satisfied that the sentence was manifestly excessive. I would dismiss the application.

JERRARD JA: In the circumstances I will briefly express my views. They are that there are many matters in mitigation which were all and quite properly taken into account by the learned sentencing Judge, including that there were only sporadic and isolated occasions of actual assistance by the applicant to the offender. Those are described in the sentencing remarks of the learned Judge and in the reasons for judgment of her Honour Justice Mullins.

The evidence shows a lack of any demonstrable monetary gain to the applicant from the offences she committed which were all committed either when she was pregnant with the offender's child or had had the baby. One set of offences, those in mid-2000 were committed in April and May 2000 on the occasion of

two visits by the offender to her at the Gold Coast when their baby was just born and one month old.

She clearly loved the man and it has struck me that the fact of his cohabitating with her may have made it easier for the police to ultimately apprehend him rather than harder. It does appear that it may have been the fact that she continued to use her own name at the library in Noosa which may have assisted in his ultimate capture.

To that one can add that she had no previous convictions and the matters of the earlier plea, the hand-up committal, her demonstrated previous good character and her hard work over a number of years. She has three dependent children.

In those circumstances I would have thought that a sentence of four months actual imprisonment was sufficient as both personal and a general deterrent but acknowledge the force of the observations by Justice Mullins that it is difficult to say that the sentence is not within the appropriate range.

Accordingly, although I would have imposed, perhaps, a lesser sentence of actual imprisonment I agree with the two other Judges in dismissing the appeal.

WILLIAMS JA: The order of the Court is that the application is refused.

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