R. v. LEE YIN YI

IN THE COURT OF APPEAL

1995, No. 801
(Criminal)

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J U D G M E N T

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Hon Yang, C.J.:

1. The applicant pleaded guilty in the District Court to one charge of robbery and was sentenced to imprisonment for three years and six months.

2. She applies for leave to appeal against sentence out of time. Extension of time was granted.

3. The original Grounds of Appeal are:

(1) The sentencing judge wrongly considered the robbery to be a "lift robbery".

(2) The starting point of five years' imprisonment adopted by the judge is too high.

(3) The judge erred in taking into consideration the applicant's previous criminal record when determining a sentence of retribution rather than rehabilitation.

(4) The sentence is excessive.

4. Mr McLanachan, appearing for the applicant before us this afternoon, abandons Ground 1 and argues, as far as Ground 2 is concerned, that the starting point of five years' imprisonment in this case is in any event too high.

5. We have been shown a number of authorities which seemed to indicate that for a lift robbery, the usual range of sentences is somewhere between four years and four months and six years, depending on the particular facts of the case.

6. In the written submission prepared by Mr McLanachan, he stresses that the applicant pleaded guilty to the offence and that the judge erred in taking into account the applicant's past activities in her involvement with drugs and then imposing a sentence for retribution rather than rehabilitation.

7. The facts of the case are relatively simple. In the afternoon of 7 March 1995, the applicant, a woman of 27 years of age, entered a lift at the Kai Yip Housing Estate together with a old lady who was 67 years of age. When the lift reached the 4th floor, the old lady came out of the lift followed by the applicant. Whilst they were in the corridor, the applicant grabbed the old lady by the neck from behind, took her handbag, and pushed her to the ground. The applicant fled, but was later apprehended by the police. The old lady suffered a contusion and tenderness over her right chest and buttock. When questioned by the police, the applicant admitted that she committed the offence in order to obtain money for her drug habit.

8. In assessing sentence, the judge took into consideration the applicant's plea of guilty and noted that the applicant preyed upon the frailty of the old lady. He went on to say:

"Not only is this a very serious offence, even disregarding the aggravating factors, but it is plain the accused has been involved with, if not addicted to, dangerous drugs since she was 17 years of age, i.e. for the last ten years. To make matters worse, she admitted to having supported her habit by trafficking in drugs. In all the circumstances I find the needs of society override the personal wishes of the accused, and I conclude that a period of incarceration in a Drug Addiction Treatment Centre is an inappropriate means of sentencing."

9. Mr McLanachan submits that those words appeared to indicate that the judge was imposing a heavier sentence because of the applicant's past conduct. We do not think so. It seems that the judge here was concerned with the question of whether an immediate custodial sentence in prison was more appropriate than detention in a Drug Addiction Treatment Centre. It is therefore not a question of increasing the sentence because of the applicant's past conduct. She was sentenced for the present offence and nothing more.

10. There are three aggravating factors which need to be taken into consideration when the appropriateness of the sentence is considered, namely:

(1) The robbery was committed in the common part of a private premises.

(2) Physical violence was in fact used, resulting in injuries to the victim.

(3) The victim was an elderly lady who was alone at the time.

11. In all the circumstances, we are of the view that the starting point of five years adopted by the trial judge was correct, so was the discount given for the applicant's plea of guilty. For these reasons, the application for leave to appeal against sentence is refused.