THE QUEEN v. NGUYEN PHAN LINH

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JUDGMENT

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Kempster, JA :

1. This is the judgment of the Court.

2. On 11 August 1989 in the District Court Nguyen Phan-linh was convicted by Judge Evans of theft and also of assaulting and of resisting a police officer. On the same day he was sentenced to two years imprisonment for the theft and to three months for each of the two other offences; the sentences of three months to run concurrently but consecutively to the sentence of two years.

3. Nguyen Phan-linh now seeks leave to appeal against the overall sentence of two years and three months but Mr Plowman on his behalf addresses his arguments to the sentence of two years for theft and does not quarrel with the two concurrent sentences of three months for assaulting and resisting a police officer or with the direction that they should be consecutive to the longer sentence.

4. The circumstances of the offence were that during the evening of 17 November 1988 the applicant and another man who has also been convicted and sentenced for this offence were seen in Cameron Road, Tsimshatsui. The other man bumped against a Chinese woman; keeping close to her and thereby affording the applicant the opportunity of opening her handbag and removing a purse. The woman screamed. The applicant threw the purse to the ground and, with his accomplice, made off. After some difficulty both were arrested. The applicant admitted the offence to the police and at all material times it was apparent that he would plead guilty before the court - as he did.

5. The applicant's accomplice had been sentenced to two years imprisonment for the theft and to three months each for assaulting and resisting a police officer respectively but, following a plea of guilty, Judge Cocoran had ordered that all the sentences were to run concurrently. They took effect consecutively to a sentence which the accomplice was then serving.

6. In giving his reasons for sentence in relation to the applicant Judge Evans considered that : -

"... bearing in mind the accused's record, a sentence of 2 1/2 years imprisonment for the first offence was appropriate".

The first offence was the offence of theft. He went on : -

"He had pleaded guilty at first opportunity and though the evidence against him was indeed strong, I allowed 6 months off that term because of his plea and sentenced him to 2 years imprisonment on the first charge".

7. Subject to recent authority in this court, to which allusion has been made but which is not before us, we take the view that the effect of a man's bad record is not to permit the court to extend the normal parameters of sentence in relation to a particular type of offence but merely to deprive him of the whole or part of the discount which he might anticipate by reason of good character. It was, in our belief, wrong for Judge Evans to seek to derive from the applicant's criminal record liberty to regard 2 1/2 years imprisonment as an appropriate starting point for the purpose of the sentencing exercise.

8. We have had the advantage of hearing citation from a number of magistrates' appeals. Those necessarily relate to a jurisdiction where the maximum sentence which could be imposed was and is one of two years. On indictment or charge the maximum sentences are ten and seven years respectively. Further, those citations, by and large, relate to the acts of a malefactor on his own. We are presently concerned with an applicant who committed a planned theft in concert with another in circumstances where he might well expect rich pickings with minimal risk of detection or conviction. It is our view that when cases are brought on indictment or charge, as in the instant case, the guidelines that have been set for magistrates must be revised upwards and that when a man acts in concert with another or others in committing this sort of crime a judge may properly regard 2 1/2 years as a starting point for his consideration of sentence. This is just what Judge Evans did though, as already indicated, he took into account a factor which, for that purpose, he should have ignored. He was dealing with a man who, being a professional pickpocket, could not expect any discount for good character but might have anticipated a discount for plea albeit he was apparently caught red handed. The judge duly allowed him a discount of six months for his plea of guilty thereby reducing the sentence imposed for the theft to two years. That sentence we are disposed to uphold.

9. In the circumstances and expressing our gratitude to counsel who have helped us with argument and authority we dismiss this application for leave to appeal against sentence.