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Court of Criminal Appeal 20 February 2007

Yang v R

[2007] NSWCCA 37

Fraud & dishonestyFirearms & weapons
SENTENCE APPEAL MANIFEST EXCESS

Citation: Yang v R [2007] NSWCCA 37
Court: NSW Court of Criminal Appeal
Date: 20 February 2007
Judge(s): Sully J, Bell J, Hoeben J

Background

The applicant, a Chinese national who had overstayed his Australian visa, was arrested in December 2003 when police executed a search warrant at his Lidcombe premises. Officers found a loaded .32 calibre revolver with its serial number removed, along with an extensive array of equipment and materials for manufacturing counterfeit credit cards and false identity documents.

The applicant pleaded guilty on the morning of trial to three charges: unlawful possession of a firearm, having control of false instruments (including a forged driver's licence and Visa credit cards), and having control of equipment designed to make false instruments (an embossing machine, a card printer, and associated materials). A 10 percent discount was applied to reflect the utilitarian value of the late guilty pleas.

In the District Court, Gibson DCJ sentenced the applicant to concurrent fixed terms of 15 months on the two fraud-related counts, and a further cumulative sentence of two years and nine months (non-parole period) on the firearm count. The effective total sentence was five years and three months, with a non-parole period of four years. The applicant sought leave to appeal on the sole ground that the overall sentence was manifestly excessive.

  • Whether the total effective sentence, achieved by accumulating the firearm sentence on the two fraud sentences, was manifestly excessive.
  • Whether the sentencing judge gave sufficient weight to the applicant's subjective circumstances, including his guilty plea, age, absence of prior convictions, limited English, and the fact that his family resided in China.

Decision

The Court of Criminal Appeal granted leave to appeal but ultimately dismissed it. Bell J, with whom Sully J and Hoeben J agreed, found that the individual sentences and the overall sentencing outcome were within the range of sound judicial discretion.

The applicant did not challenge the length of the individual sentences but argued that making the firearm sentence wholly cumulative on the fraud sentences produced an unreasonable total result. The Court rejected this argument. The sentencing judge had specifically directed his mind to the effect that accumulation would have when fixing the non-parole period, and the resulting non-parole period was only marginally above 75 percent of the effective term, which did not suggest error.

On the question of subjective circumstances, the Court acknowledged the principle from R v Huang that imprisonment can be harsher for a foreign national with limited English and no family nearby, a factor that warrants some (though not significant) recognition. However, Bell J was not persuaded that the sentencing judge had failed to give appropriate weight to this or the other subjective matters. The judge had accepted the background material in the pre-sentence report and taken those circumstances into account.

The Court characterised all three offences as serious instances of criminal wrongdoing. The overall sentencing result was neither plainly unjust nor unreasonable.

Orders Made

  • Leave to appeal granted.
  • Appeal refused.

Key Takeaways

  • A sentencing judge who accumulates a firearm sentence on concurrent fraud sentences does not fall into error simply because the cumulative effect produces a longer total term, provided the judge has consciously considered the effect of accumulation when fixing the non-parole period.
  • Under the principle in R v Huang, foreign nationals with limited English and no family in Australia may warrant some recognition that imprisonment is harsher for them, but this recognition need not be substantial and does not automatically reduce an otherwise appropriate sentence.
  • No error was established in failing to distinguish the applicant's circumstances from those in R v Ferrer-Esis (which concerns persons who travel to Australia deliberately to commit crime) where the sentencing judge made no finding of that kind and was not specifically asked to address it.
  • In dismissing the appeal, the Court confirmed that a non-parole period only marginally exceeding 75 percent of the effective term is not, of itself, an indicator of sentencing error.
  • Late guilty pleas entered on the morning of trial attract only modest utilitarian discounts; a 10 percent reduction was accepted as appropriate in these circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 302, 302A
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 21A(2)(n) and Division 1A (standard non-parole periods)
- Firearms Act 1996 (NSW), s 7

Cases:
- R v Ferrer-Esis (1991) 55 A Crim R 231
- R v Hammoud (2000) 118 A Crim R 66
- R v Huang [2000] NSWCCA 238; 113 A Crim R 386
- R v Wheeler [2000] NSWCCA 34