AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 12 September 2002

Regina v Bieu Vinh HUA

[2002] NSWCCA 384

Theft & property
SENTENCING STEAL FROM THE PERSON ACCUMULATION OF SENTENCES.

Citation: Regina v Bieu Vinh HUA [2002] NSWCCA 384
Court: NSW Court of Criminal Appeal
Date: 12 September 2002
Judge(s): Wood CJ at CL; Smart AJ

Background

The appellant was convicted in the District Court of two offences arising from separate incidents on consecutive days in July 2001. The first was stealing from the person: he approached a 19-year-old stranger, used intimidating language, and took the victim's wallet, bank card, mobile phone, and PIN number. The second was demanding money with menaces: the following day, he cornered a different victim at a Chatswood shopping centre, threatened to stab him, and attempted to drag him from a police shopfront before being arrested.

The District Court sentenced the appellant to three years imprisonment with an 18-month non-parole period for the stealing offence, and a concurrent fixed term of 11 months for the menaces offence. The appellant sought leave to appeal, arguing the sentencing judge had erred in two respects: taking into account facts that would have constituted the more serious offence of robbery, and imposing the two sentences concurrently rather than cumulatively.

  • Whether the sentencing judge impermissibly took into account circumstances of aggravation, specifically placing the victim in fear, that would have warranted conviction for the more serious offence of robbery, contrary to the principle in R v de Simoni (1981) 147 CLR 383.
  • Whether the two sentences should have been served cumulatively rather than concurrently, given they arose from different incidents, different victims, and different conduct.

Decision

The Court accepted that the sentencing judge had, in part, erred by relying on the appellant placing the victim in fear when sentencing for stealing from the person. Placing a victim in fear is an element of robbery, a more serious offence, and de Simoni prohibits a sentencing court from treating such circumstances as aggravating factors for a lesser charge. However, the Court drew a distinction: it is permissible to note that stealing from the person carries the potential for fear or violence, as that potential is inherent to the nature of the offence.

On the question of accumulation, the Court held that the two sentences should not have been made concurrent. The offences occurred on different days, involved different victims, and constituted entirely separate criminal conduct. Applying Pearce v The Queen (1998) 194 CLR 610, the Court found accumulation was both warranted and required, and restructured the sentences accordingly. The overall effect was reduced only minimally to reflect the Pearce principle and the restructuring.

The Court found special circumstances justifying a longer parole period, having regard to the appellant's age (20 at the time of offending), his difficult personal history including a disrupted childhood, severe drug addiction, and some prospect of rehabilitation, as well as the cumulative effect of the sentences.

Orders Made

  • Leave to appeal against sentences granted.
  • Appeal against the sentence for demanding money with menaces dismissed; fixed term of 11 months (commencing 29 July 2001, expiring 28 June 2002) confirmed.
  • Appeal against the sentence for stealing from the person allowed; sentence of three years quashed.
  • In substitution, the appellant was sentenced to two years imprisonment commencing 29 June 2002, with a non-parole period of seven months ending 28 January 2003, at which date the appellant was to be released on supervised parole.

Key Takeaways

  • A sentencing court cannot treat circumstances of aggravation as relevant if those circumstances would have supported a conviction for a more serious offence. For stealing from the person, relying on the victim having been placed in fear crosses this line because fear is an element of robbery.
  • A distinction exists, however, between relying on fear as an aggravating factor and noting that stealing from the person carries an inherent potential for fear or violence. The latter observation does not offend the de Simoni principle.
  • Where offences arise from separate incidents, involve different victims, and involve distinct conduct, concurrent sentences are inappropriate. The Court of Criminal Appeal confirmed that accumulation of sentences was both warranted and required in those circumstances.
  • Under Pearce v The Queen, a court restructuring sentences on appeal must fix the correct sentence for each offence individually, with any reduction in overall effect confined to what is strictly necessary to give effect to that principle.
  • Special circumstances justifying an extended parole period can be found in a combination of factors, including the offender's youth, rehabilitation prospects, personal history, and the cumulative burden of accumulated sentences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW), s 7(1A)
- Criminal Procedure Act 1986 (NSW)

Cases:
- R v de Simoni (1981) 147 CLR 383
- R v Delk (1999) 46 NSWLR 340
- R v Stewart [1929] SASR 500
- Ibbs v The Queen (1987) 163 CLR 447
- Pearce v The Queen (1998) 194 CLR 610