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Court of Criminal Appeal 17 November 2004

Regina v Thien Tu

[2004] NSWCCA 403

Assault & violenceTheft & propertyFirearms & weapons

Citation: Regina v Thien Tu [2004] NSWCCA 403
Court: NSW Court of Criminal Appeal
Date: 17 November 2004
Judge(s): Bell J, Buddin J

Background

The applicant, a former Pizza Hut employee, was convicted after trial of one count of armed assault with intent to rob and two counts of aggravated kidnapping. The offences arose from an attempted robbery at a Pizza Hut outlet in Greenfield Park on 17 August 2002, in which the applicant used a previously known entry code to gain access to the premises and, together with an unidentified accomplice, held two employees at knifepoint and at gunpoint for more than an hour while attempting to open the safe.

The applicant was 23 years old at the time of sentencing. He had come to Australia as a young child from Vietnam and had a positive employment and community background. He maintained his innocence at the sentencing hearing, having been convicted by a jury that rejected an alibi defence.

The applicant sought leave to appeal against the severity of the sentences imposed by Maguire DCJ in the District Court at Campbelltown on 23 December 2003. Each of the three offences carried a maximum penalty of 20 years' imprisonment.

  • Whether the sentences imposed were excessive in all the circumstances, having regard to standard sentencing principles including totality, deterrence, rehabilitation, and denunciation.
  • Whether an error by the sentencing judge in stating the maximum penalty for the first count as 25 years (rather than the correct 20 years) warranted appellate intervention.

Decision

Bell J, with Buddin J agreeing, granted leave to appeal but dismissed the appeal. The Court accepted that the sentencing judge had erred in stating the maximum penalty for the armed assault with intent to rob charge as 25 years' imprisonment, when the correct maximum was 20 years. Given that the judge drew a deliberate distinction between the penalties for the first and second counts, the error could not be attributed to a transcription mistake.

Despite that error, the Court declined to intervene. Bell J concluded that no lesser sentence was warranted in law in respect of the offence. The Court applied the principle that an error in identifying the maximum penalty does not automatically require resentencing if the sentence actually imposed remains appropriate when assessed against established sentencing principles.

The Court also addressed the totality principle, noting that it operates symmetrically. While it commonly operates in an offender's favour to prevent a crushing cumulative sentence, the principle equally requires that the overall effect of sentences be sufficient to reflect deterrence, rehabilitation, and denunciation. This cuts against any argument that totality alone could reduce a sentence that is otherwise warranted.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge's misstatement of the applicable maximum penalty constitutes an error in the sentencing process, but does not automatically result in appellate intervention if the sentence imposed remains appropriate in all the circumstances.
  • Under the totality principle, courts assess whether the combined effect of multiple sentences is both not excessive and not insufficient. The principle does not operate solely in an offender's favour.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that where no lesser sentence is warranted in law, an identified error in reasoning will not, of itself, justify reducing the sentence.
  • Positive personal background, including refugee status, community support, and a productive employment history, formed part of the sentencing assessment but did not outweigh the gravity of the offending, which involved a planned armed robbery, the use of inside knowledge of the premises, and extended detention of two employees.
  • All three offences carried maximum penalties of 20 years' imprisonment under the Crimes Act 1900 (NSW).

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 86(2A) (aggravated kidnapping) and s 97(1) (armed assault with intent to rob)

Cases:
- R v Fidow [2004] NSWCCA 172
- R v Henry (1999) 46 NSWLR 346
- Regina v KM [2004] NSWCCA 65
- R v Rowe (unreported) NSWCCA, 3 October 1996