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Court of Criminal Appeal 26 November 2001

R v Tan

[2001] NSWCCA 490

Assault & violenceTheft & property
CRIMINAL LAW: SENTENCE WHETHER SENTENCES EXCESSIVE

Citation: R v Tan [2001] NSWCCA 490
Court: NSW Court of Criminal Appeal
Date: 26 November 2001
Judge(s): Hidden J; Newman AJ

Background

The applicant pleaded guilty in the District Court to two serious offences: aggravated robbery under s 95(1) of the Crimes Act 1900, carrying a maximum of 20 years imprisonment, and demanding money by force with intent to steal under s 99, carrying a maximum of 10 years. The offences arose from a sustained and organised criminal episode targeting a woman in Hurstville on 16 March 2000.

The victim was ambushed in her building's garage, forced into a van, bound with masking tape, and held while offenders searched her home, withdrew money from her bank accounts using her PIN numbers obtained under duress, and attempted to extort money from an overseas account. She was later released after being threatened that her son would be killed if she contacted police. The following day, the applicant was arrested attempting to retrieve a bag the victim had placed in a bin under surveillance, pursuant to a further demand for $10,000.

Latham DCJ sentenced the applicant to eight years imprisonment with a five-year non-parole period on the robbery charge, and a concurrent fixed term of four years on the demand money charge. The applicant sought leave to appeal, arguing the sentences were manifestly excessive and that the sentencing judge had erred by not specifying a discrete discount for his guilty pleas.

  • Whether the eight-year sentence for aggravated robbery was manifestly excessive, having regard to Judicial Commission statistics and the applicant's favourable subjective circumstances
  • Whether the sentencing judge was required to specify a quantified discount for the applicant's early guilty pleas and cooperation with police

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Hidden J, with Newman AJ agreeing, accepted that the sentence was high, noting it exceeded all recorded figures in the Judicial Commission statistics for the relevant period. However, the Court found that statistical comparisons have limited value because they disclose nothing about the individual circumstances of the cases recorded.

Both offences were characterised as unusually serious examples of their respective categories of criminality. The sentencing judge had expressly considered the totality of the applicant's criminal conduct across both charges in arriving at the effective sentence. The Court found the sentence was justly high and remained unpersuaded that it was manifestly excessive.

On the second ground, the Court declined to find error in the sentencing judge's failure to specify a discrete percentage or dollar figure discount for the guilty pleas. Hidden J noted this question had been affected by the High Court's decision in Wong v The Queen; Leung v The Queen [2001] HCA 64, which had been handed down very recently, and concluded that no error was established on this basis. Whether it remained open for a sentencing judge to specify such a discount was left as a question the Court did not need to resolve.

The Court acknowledged that the applicant had presented a genuine and relatively strong subjective case, including an early plea, full admissions in a recorded police interview, no prior convictions in Australia, age (27), and a gambling problem said to underlie the offending. Latham DCJ had addressed all of these matters in her sentencing remarks, and the Court found no basis to disturb her conclusions.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that sentences exceeding all recorded figures in Judicial Commission statistics are not, of themselves, manifestly excessive where the individual offending is unusually serious.
  • Statistical sentencing data assists both sentencing courts and appellate courts, but carries limited weight because it reveals nothing about the specific circumstances of the cases it records.
  • A sentencing court may take into account the totality of an offender's criminality across multiple charges when setting the principal sentence, without that approach constituting error.
  • Following the High Court's decision in Wong v The Queen; Leung v The Queen [2001] HCA 64, a sentencing judge's failure to specify a quantified discount for a guilty plea does not necessarily amount to a sentencing error.
  • Strong subjective circumstances, including an early guilty plea, full cooperation with police, youth, and absence of prior convictions, do not automatically reduce a sentence to below a range that reflects the gravity of the objective offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 95(1), 99

Cases:
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- Wong v The Queen; Leung v The Queen [2001] HCA 64