R. v. TSE LEUNG SHOW

IN THE COURT OF APPEAL

1994, No.563
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant in this matter received an overall sentence of 36 months having pleaded guilty to three charges of taking a conveyance without authority, five charges of handling stolen goods and one charge of theft.

2. The circumstances were somewhat unusual. It seems that the applicant was involved in the taking of motor vehicles and in the removal therefrom of articles of relatively small value and in some cases of using the motor vehicles for purposes which are not clear and then abandoning them. It does not appear that any of the motor vehicles were damaged although in one case the licence plates were changed.

3. The offences occurred over the months of March and April 1988. They are only now being dealt with or appeal as delay was occasioned when the applicant absconded.

4. What we must ask is whether the sentence of three years overall, was an appropriate sentence to impose upon a person having committed these offences. We must look at it globally.

5. The trial judge imposed consecutive sentences of nine months on each of the taking a conveyance charges. He was well aware, and so indicated, that there was never an intention to steal the vehicles. He referred to what was done as "joy-riding". As regards the other charges he had in mind that the property stolen was of little value. He imposed a sentence of three months on four of the handling charges. He imposed a sentence of three months on the theft charge. He ordered that the sentences on two of the handling charges, totally nine months, be consecutive to the sentences on the taking a conveyance charge and that the remaining sentences be concurrent. This gave an overall total of 36 months which the judge ordered be served consecutively to a sentence of 13 months which the applicant was already serving.

6. We are concerned that this overall sentence after plea was excessive. The judge must have started at an overall figure of about 4½ years. This we are satisfied was too high a starting point. The starting point should have been three years and that the overall sentence after plea should have been one of two years.

7. We allow the application for leave to appeal. We treat the hearing of the application as the hearing of the appeal and we vary the sentences imposed as follows: the sentences of 9 months imposed on the first charge, the third charge, and the 20th charge are varied to sentences of 6 months. These sentences are to be consecutive to each other and consecutive to the sentence imposed on the eleventh charge which is not varied. The sentences on the 2nd, the 4th, the 9th the 13th and the 21st charges are not varied and are ordered to be concurrent with the four consecutive sentences of six months. The overall sentence will then be 24 months. This will, as the judge ordered, be consecutive to the sentence previously imposed.