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Court of Criminal Appeal 21 September 1999

Regina v Trinh Regina v Chieu

[1999] NSWCCA 295

Theft & property
CRIMINAL LAW CONCEPTION OR PRE (B) NOT ESTABLISHED (C) ESTABLISHED

Citation: Regina v Trinh; Regina v Chieu [1999] NSWCCA 295
Court: NSW Court of Criminal Appeal
Date: 21 September 1999
Judge(s): Sully J; Barr J

Background

Two applicants, associates in a criminal enterprise, sought leave to appeal against identical sentences of five years' penal servitude (minimum term of three years, additional term of two years) imposed by Judge Rummery QC in the District Court. The enterprise involved receiving stolen motor vehicles and "rebirthing" them: giving stolen vehicles the identity of legitimately purchased damaged vehicles, then selling them. Both applicants pleaded guilty to three counts of receiving stolen motor vehicles on indictment, and asked that additional matters be taken into account on sentence.

The sentencing judge regarded the objective criminality of both applicants as equal. The operation was described as planned, carefully executed, and involving significant detail, including the alteration of chassis numbers, compliance plates, and engine numbers. The statutory maximum for receiving stolen property under the Crimes Act 1900 (NSW) is ten years' penal servitude.

The two appeals were heard together. Although both applicants were sentenced identically, their subjective circumstances differed. The first applicant had a limited prior criminal record (for unrelated matters), while the second had no criminal antecedents at all.

  • Whether the sentencing judge had an impermissible preconception or pre-judgment that full-time custody was the only appropriate sentencing option, giving rise to apprehended bias
  • Whether the sentencing judge failed to properly take into account subjective features in the first applicant's case
  • Whether the sentencing judge failed to treat the second applicant as a person with no criminal antecedents
  • Whether, if any error was established, the second applicant was entitled to a more lenient sentence on re-sentencing

Decision

On the pre-judgment ground, the Court applied the principles in The Queen v The Commonwealth Conciliation and Arbitration Commission; ex parte The Angliss Group (1969) and Vakauta v Kelly (1989). It held that a tribunal member is not disqualified merely because they have formed views or an inclination of mind on a subject. The applicable test is whether a reasonable suspicion could arise that the decision-maker would not bring a fair and unprejudiced mind to the matter. The Court was not satisfied that the sentencing judge's remarks crossed that threshold, and this ground was not established.

On the question of subjective features, the Court found no error in the way the sentencing judge approached the first applicant's circumstances. That ground also failed.

The Court accepted that the sentencing judge had erred by not expressly treating the second applicant as a person with no criminal antecedents, which was an established ground. However, the Court then considered whether this error warranted re-sentencing to a more lenient outcome. It concluded it did not. Both applicants were involved in an extensive, planned operation of real criminal weight. The most significant difference between their subjective positions was that the first applicant had a limited unrelated prior record while the second had none at all. In the Court's view, this distinction was insufficient to establish that a more lenient sentence was "warranted in law." The sentence, though severe, fell within the range properly available to the sentencing judge.

Barr J agreed with Sully J in both applications.

Orders Made

  • Trinh: leave to appeal against sentence granted; appeal dismissed
  • Chieu: leave to appeal against sentence granted; appeal dismissed

Key Takeaways

  • A sentencing judge is not disqualified for bias simply because they hold preliminary views or an inclination toward a particular sentencing outcome; the test is whether a reasonable person could suspect the judge would not bring a fair and unprejudiced mind to the question.
  • The ground that the sentencing judge failed to treat the second applicant as having no criminal antecedents was established, confirming that a clean record must be expressly recognised in sentencing remarks.
  • Establishing a specific sentencing error does not automatically lead to a more lenient sentence on appeal; the Court of Criminal Appeal must still be persuaded that the resulting sentence was either manifestly excessive or otherwise not warranted in law.
  • In dismissing both appeals, the Court confirmed that the offence of receiving stolen property carries a strong element of deterrence, reflecting the legislature's view that receiving is more serious than ordinary larceny.
  • Equal objective criminality between co-offenders can support identical sentences even where their subjective circumstances differ, provided those differences do not bring the sentence outside the available range.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 188 (receiving stolen property)
- Sentencing Act 1989 (NSW)

Cases:
- Reg v Phillips & anor, unreported, NSW Court of Criminal Appeal, 11 December 1991
- The Queen v The Commonwealth Conciliation and Arbitration Commission & ors; ex parte The Angliss Group (1969) 122 CLR 546
- Vakauta v Kelly (1989) 167 CLR 568
- Regina v Michael Lalic, unreported, NSW Court of Criminal Appeal, 27 November 1996
- Regina v Stephen Lorne Astill (No. 2) (1992) 64 ACrimR 289
- Reg v Oastler, unreported, NSW Court of Criminal Appeal, 7 October 1992