R. v. LAM CHARM NING

IN THE COURT OF APPEAL

1996, No. 708 and No. 709
(Criminal)

_____________

_____________

______________

J U D G M E N T

______________

Mortimer JA (giving the judgment of the Court): On 9 December 1996 the applicant pleaded guilty to 10 offences of theft. He had already pleaded guilty to 6 offences of obtaining by deception on 21 November 1996 and on 9 December Her Honour Judge Beeson in the District Court sentenced him to a total of 6 years' imprisonment. He now applies for leave to appeal against that sentence.

The facts

2. The 10 offences of theft took place between 23 October 1991 and 5 May 1994. He had taken 10 different jobs with 10 employers. He had produced his identity card to those employers but had given them a false address. Within a few days of each appointment he took the opportunity to steal cash or property and then left without returning. t was usually cash that he took but on one occasion he took a Rolex watch. None of the properties was recovered and the total amount involved over that period was about $200,000.

3. The offences of obtaining that money by deception took place between 11 October 1994 and June 1996. The applicant advertised a 'friendship club' through which he indicated members could attend social gatherings and be introduced to others. The applications were dealt with over the telephone and a bank account was specified into which the victims were to pay fees. The fees were paid but no social gatherings were arranged and when the victims attended, they discovered that fact. These were mean offences but the total amount involved was some only $7,800. In summary, therefore, there were a multiplicity of offences. Many of them involved a breach of trust and they took place over a very long period. They were indicative of considerable dishonesty.

4. After the applicant's arrest in July 1996, he admitted the offences at once and made cautioned statements to that effect. He pleaded guilty to the offences at the earliest opportunity when he appeared in court.

The sentences

5. When the judge came to sentence him, she considered all the circumstances including the fact that he did not have a good character. A number of matters were put in front of her by way of mitigation. However, the only real mitigation was that he had admitted the offences and had pleaded guilty as we have described.

6. The judge rightly chose to consider first the two separate types of offence. Having done that, she considered the theft offences and determined that an overall term of 6 years was appropriate, taking totality into account. Then she reduced that term to 4 years' imprisonment having regard to the plea.

7. For the other offences of deception, she took 3 years as the appropriate total for the six offences, and reduced that to 2 years for the same reason. However, she then made the two sentences of 4 years and 2 years consecutive on the basis that these offences were all committed at separate times and were of a different nature.

The application

8. Mr Andy Hung, who appears for the applicant, submits that even having regard to the number of offences, their nature, and the length of time over which they were committed, 6 years overall after plea is too high. Mr Reading, who appears for the Crown, agrees. We are also satisfied that this sentence in all the circumstances was manifestly excessive.

The approach

9. How should a sentence of this type be approached? We think it preferable that the judge should first approach the two series of offences as she did and determine the appropriate sentence in respect of each. That is the first matter we consider. For the offences of theft, the judge took 6 years as the appropriate totality. That starting point was too high. We think it should have been 5. Similarly, for the other group of offences of deception, we think 3 years was much too high. Eighteen months - as submitted by Mr Hung - would have been the appropriate sentence.

10. Then we consider - as the judge should have - what total sentence would have been appropriate if passed after trial for all the offences. The proper totality for all these offences would have been in the region of 6 years.

11. It is only if a starting point after trial for all the offences is taken, that a proper deduction can be made for the pleas of guilty. It is appropriate here to reduce that total sentence of 6 years to 4 years on the pleas of guilty. That is the sentence which we substitute.

Conclusion

12. We allow the application. We treat the hearing as the appeal. We substitute a total sentence of 4 years for the 6-year sentence the judge passed. We substitute 3 years concurrent for each of the theft offences and 1 year concurrent for each of the deception offences. Those two sentences will run consecutively.