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District Court 23 March 2009

R v Han; R v Hu; R v Huang

[2009] NSWDC 49

Fraud & dishonestyPublic order & justice offences
CRIMINAL LAW SENTENCE DEMAND MONEY WITH MENACES THREATS BIG CIRCLE GANG ALLEGATION OF DEBT RECOVERY

Citation: R v Han; R v Hu; R v Huang [2009] NSWDC 49
Court: District Court of New South Wales
Date: 23 March 2009
Judge(s): Knox SC DCJ

Background

Following a jury trial at Parramatta District Court in October 2008, three offenders were convicted of offences arising from two separate incidents of demanding money with menaces from the same victim, referred to as AL. AL was a Cantonese-speaking Australian citizen who had been employed as head chef at a restaurant operated by one of the offenders, Han.

The first incident occurred in August 2006 at the restaurant in Campsie. Han and a restaurant manager confronted AL in an upstairs room, accused him of stealing food and colluding with a deliveryman to defraud the restaurant, and demanded he pay $17,700. AL was shown CCTV footage, threatened with physical violence, required to copy out an IOU document, and pressured to produce a guarantor for the alleged debt. The court noted the video evidence of alleged theft appeared unremarkable, and the amount demanded was never adequately explained.

The second incident occurred between late April and early May 2007 at Carlingford. On this occasion, Hu and Huang (acting on Han's instigation) confronted AL at a different location and demanded $10,000. Proceedings of crime charges were also laid in relation to small amounts of money received by Hu and Huang following that demand.

  • Whether the offending conduct, framed by the defendants as debt recovery arising from an employment dispute, affected the objective seriousness of the extortion charges
  • The appropriate sentences for each offender under section 99(2) of the Crimes Act 1900, which carries a maximum of 14 years imprisonment
  • Whether special circumstances existed for each offender, justifying a reduction in the standard ratio of non-parole period to total sentence
  • Whether Han's role as the instigator of the second demand (Count 3) warranted additional penalty alongside his sentence for Count 1
  • The appropriateness of a suspended sentence for Huang on Count 2, given his lesser role and lack of prior convictions

Decision

The court treated the alleged employment context and debt recovery framing as aggravating rather than mitigating the offences. The court found that even if AL had stolen food, that did not justify the conduct of the offenders and could not reduce the culpability of what amounted to unlawful extortion. The association of Han and others with the Big Circle gang, a criminal organisation, was a relevant background feature considered in the sentencing exercise.

Han, as the primary orchestrator of both demands, received the heaviest sentence. He was the employer whose directions initiated both the August 2006 demand and, through instigation, the April to May 2007 demand. The court sentenced Han to three years imprisonment with a two-year non-parole period for Count 1, and a concurrent fixed term of twelve months for Count 3.

Hu received eighteen months imprisonment with a twelve-month non-parole period for his role in the second demand. Huang, whose role was assessed as lesser and who had no prior convictions, received a suspended sentence of eighteen months for the same count. Both Hu and Huang were convicted without penalty on the proceeds of crime charges, which involved very small amounts ($100 and $30 respectively).

The court found special circumstances for all three offenders, primarily because of their age, family backgrounds, language difficulties, and the anticipated hardship of imprisonment in an English-speaking custodial environment. This finding justified reducing the standard non-parole to total sentence ratio below the statutory default.

Orders Made

  • Count 1 (Han): 3 years imprisonment commencing 1 February 2009, expiring 31 January 2012; non-parole period of 2 years expiring 31 January 2011
  • Count 2 (Hu): 18 months imprisonment commencing 24 January 2009, expiring 23 July 2010; non-parole period of 12 months expiring 23 January 2010
  • Count 2 (Huang): 18 months imprisonment suspended pursuant to section 12 of the Crimes (Sentencing Procedure) Act 1999, commencing 23 March 2009, on conditions of good behaviour and compliance with Probation and Parole requirements
  • Count 3 (Han): Fixed term of 12 months imprisonment commencing 1 February 2009, concurrent with Count 1 sentence
  • Count 4 (Hu): Conviction recorded, no penalty imposed
  • Count 5 (Huang): Conviction recorded, no penalty imposed
  • All offenders subject to parole conditions requiring good behaviour and notification of residential address, employment, associates, and travel arrangements to Probation and Parole

Key Takeaways

  • A claimed debt recovery purpose does not reduce the objective seriousness of an extortion offence; the District Court here treated the employment and debt recovery framing as irrelevant to, and arguably aggravating of, the unlawful conduct.
  • Under section 99(2) of the Crimes Act 1900, demanding money with menaces in company carries a maximum of 14 years imprisonment, reflecting the serious nature of organised or group extortion.
  • Instigation of an offence by another person can ground a separate conviction and sentence alongside direct participation in an earlier related offence, as illustrated by Han's consecutive sentencing on Counts 1 and 3.
  • Special circumstances justifying a reduction in the non-parole to total sentence ratio can encompass language difficulties and the anticipated hardship of imprisonment for non-English-speaking offenders, beyond the more commonly cited factors of rehabilitation or youth alone.
  • Where co-offenders have meaningfully different levels of culpability and different criminal histories, the sentencing court may impose substantially different outcomes, including the option of a suspended sentence for the least culpable participant.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 99(2), 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12

Cases:
- R v Antoun; R v Antoun [2004] NSWCCA 268
- The Queen v De Simoni (1981) 147 CLR 383
- Dinsdale v R (2000) 202 CLR 321
- R v Edwards (1996) 90 A Crim R 510
- Imnetu v R [2006] NSWCCA 203
- Marcus v R [2007] NSWCCA 229
- R v Nguyen [2000] NSWCCA 44
- T v R (1990) 47 A Crim R 29
- R v Truong [1999] NSWCCA 272
- Veen v R (No. 2) (1998) 164 CLR 465
- Weininger v the Queen (2003) 212 CLR 629
- Wright v R [2006] NSWCCA 122
- R v X [2004] NSWCCA 93
- R v Zamagias [2002] NSWCCA 17