Citation: Regina v Duong Hoang Luu [2003] NSWCCA 39
Court: NSW Court of Criminal Appeal
Date: 26 February 2003
Judge(s): O'Keefe J, Bell J
Background
The applicant was convicted by a jury in the District Court of robbery while armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900. The offence occurred in Burwood in broad daylight in July 2001, when the applicant and three associates surrounded a 19-year-old Chinese student, took his wallet and bank card, and withdrew $800 from an ATM while two associates remained with the victim. The victim was threatened before the group left, and the applicant was identified in a parade two months later.
Acting Judge Job sentenced the applicant to eight years imprisonment, with a non-parole period of five years. The Judge found special circumstances justifying a departure from the standard statutory proportion, taking into account the applicant's youth (21 at the time of the offence) and the fact that he had not previously served a custodial sentence.
The applicant sought leave to appeal to the Court of Criminal Appeal, arguing that the sentence was excessive and that the sentencing Judge had made errors in assessing the facts and weighing relevant considerations.
Legal Issues
- Whether the sentence of eight years imprisonment was manifestly excessive in all the circumstances
- Whether the sentencing Judge made errors of fact, including in his assessment of the applicant's role in relation to the offensive weapons used during the robbery
- Whether the sentencing Judge gave insufficient attention to mitigating features of the applicant's case, including his youth and limited criminal history
- Whether the ratio between the head sentence and the non-parole period was appropriate
Decision
The Court found no error in the sentencing Judge's assessment of the facts. The Judge had expressly accepted that the applicant was not one of the offenders carrying the weapons, and did not proceed on a contrary basis. The Court also rejected the submission that the amendment to add an alternative count of robbery in company reflected doubt by the Crown or the jury about whether offensive weapons were used.
The Court examined the R v Henry guideline judgment, which provides a sentencing range for armed robbery offences. Bell J found that the applicant did not fall clearly within the "young offender with little or no criminal history" category, because his prior convictions for demanding money with menaces bore factual similarity to the present offence and were committed shortly before it. Critically, the applicant committed the robbery while on bail for those prior matters, and was not entitled to any sentencing discount for a guilty plea.
The Court confirmed that the Henry guideline is not prescriptive and that departure from it is appropriate in the right circumstances. Here, the combination of the commission of the offence while on bail, the absence of a guilty plea discount, and the threatening conduct after the robbery (warning the victim against reporting it to police) all justified a sentence above the guideline range.
O'Keefe J added that the sentencing Judge had correctly identified the gravity of the offence, its planned and gang-like character, and its contribution to a pattern of offending requiring general deterrence. The appeal was unanimously dismissed.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- Upholding the sentence, the Court of Criminal Appeal confirmed that the R v Henry guideline for armed robbery is not prescriptive and may be departed from where, for example, the offender was on bail at the time of the offence and received no discount for a plea of guilty.
- An applicant's prior convictions can affect whether they qualify for the more favourable sentencing range applicable to "young offenders with little or no criminal history," particularly where those prior offences are similar in nature and were committed proximate to the index offence.
- Committing an indictable offence while on bail is a significant aggravating factor that may warrant a sentence above the range suggested by guideline judgments.
- No error was established in the sentencing Judge's factual findings simply because an alternative count was added to the indictment mid-trial; the Court rejected the inference that this reflected doubt about whether offensive weapons were present.
- The planned, group nature of the offending and post-robbery threats to deter the victim from reporting the matter to police were each treated as features that increased the objective seriousness of the offence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 97(1), 527C(1)(d), 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
Cases:
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- R v Barton [2001] NSWCCA 63; 121 A Crim R 185
- R v Richards [1981] 2 NSWLR 464