REGINA v John Shaopeng YIN

The application 10 Counsel for the applicant, Mr Smith, argued the application on three bases: that her Honour's allowance for the pleas of guilty was inadequate, that a finding of special circumstances should have led to a lower effective non-parole period and, in any event, that the aggregate sentence is manifestly excessive. 11 As I have said, her Honour expressly recognised the utilitarian value of the pleas of guilty. She went on to say that they merited the "full twenty-five percent discount" envisaged in R v Thomson and Houlton (2000) 49 NSWLR 383. She also said that, but for the pleas, she considered an aggregate sentence of fourteen years imprisonment to be appropriate. It was in the light of the pleas that that term was reduced to eleven years. Mr Smith pointed out that that reduction is less than twenty-five percent, which would have yielded a figure of ten and a half years. 12 However, it is necessary to look at other aspects of her Honour's reasoning to understand how the eleven year term was arrived at. She took into account the guideline judgment in R v Henry (1999) 46 NSWLR 346, propounding a range of sentence between four and five years for offences of a kind considerably less serious than the applicant's. Then, turning to the discount for the pleas of guilty, she said: The pleas of guilty should receive a full twenty-five percent discount but I indicate that when assessing the appropriate penalties for each of the offences I have done so by taking into account the Henry guideline sentence which already includes in it a component for a plea of guilty, albeit a plea of guilty entered late. 13 Her Honour was there referring to the clarification of the Henry guideline by Spigelman CJ in Thomson and Houlton at [161]. It appears, then, that her Honour assessed the totality of the applicant's criminality and arrived at the aggregate figure of fourteen years in the light of the guideline, mindful that it embraced the recognition of a plea of guilty of limited value. It is for this reason that that aggregate term was reduced by a little less than twenty-five percent. I see no error in this approach and, in any event, a reduction of three years for the pleas of guilty and the admission of further offences on the Form 1 could not be said to be inadequate. 14 As to special circumstances, it will be seen that the sentence of seven years with a non-parole period of four years and three months on the seventh charge departs from the usual statutory ratio between sentence and non-parole period, but the aggregate sentence of eleven years with a non-parole period of eight years and three months does not. This was her Honour's intention. She reduced the non-parole period in respect of the seventh charge because of the partial accumulation of the sentences, but acknowledged "that overall the non-parole period represents 75 percent of the head sentence." Mr Smith argued that her Honour should have found special circumstances warranting a reduction of that effective non-parole period, given the applicant's background and relative youth, his drug addiction and the desirability, expressly recognised by her Honour, of an extended period of supervision upon his release. 15 Again, I find no error in her Honour's approach. The discretionary nature of the decision whether the circumstances in a particular case are such as to call for a non-parole period less than the statutory norm was emphasised in R v Simpson (2001) 53 NSWLR 704, per Spigelman CJ at [59]-[63], as was the need for that period to reflect appropriately the offender's criminality. The course which her Honour took was a proper exercise of that discretion and the resultant period of parole eligibility, two years and nine months, is a substantial time in which to foster the applicant's rehabilitation, as her Honour intended. 16 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. 17 In fact, her Honour referred to that case and appears to have structured the sentences accordingly. Viewed in isolation, the seven year sentence on that last charge is severe but it could not be said to be inappropriate, given the circumstances of the offence and the fact that it was the last episode in a pattern of serious criminality. However that may be, for the purpose of the assessment required by s6(3) of the Criminal Appeal Act, the question is whether the aggregate sentence is manifestly excessive as a reflection of the total criminality involved. Given the number and seriousness of the offences and the applicant's criminal antecedents, I consider that that sentence and the effective non-parole period were well within the bounds of the legitimate exercise of her Honour's discretion. 18 I would grant leave to appeal but dismiss the appeal.