The Queen v. Au Ka Fai and Another

CACC000223/1988

BETWEEN

Coram: Hon. Hunter & Penlington, JJ.A.

Date of hearing: 5th August, 1988.

Date of delivery of judgment: 5th August, 1988.

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J U D G M E N T

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Penlington, J.A.:

1. These are applications for leave to appeal against sentences passed by District Judge Longley in the Victoria District Court.

2. The first charge to which the 2nd applicant (D.2) pleaded guilty was that on the 3rd February he and another person stopped a man in the street. He was then assaulted and various items were taken from him; his wallet, a ring, a watch and a pager. No weapon was used and only minor injuries were inflicted.

3. The second and third charges, to which both applicants pleaded guilty, involved an apartment house where on the 4th February entry was gained, occupants were threatened and assaulted with a beef knife and about $1,700 plus a watch was taken from them. Although there were two charges this seems to have been substantially one incident.

4. The fourth is related to the same apartment house on the same occasion and involved an attempted robbery in a different room. The robbery was not successful but a knife was carried and an occupant's hand injured with it.

5. D.1 was further charged with another attempted robbery also on the 4th February in the early hours when he tried to rob a taxi driver. Again this involved the use of a knife. It would seem this offence was committed following the events giving rise to charges 2-4.

6. The 1st applicant has previous convictions for assault causing actual bodily harm in 1983 when he was sent to the Castle Peak Boys' Home and he was also put on probation.

7. The 2nd applicant has a previous conviction for theft in 1983. He was fined and ordered to pay compensation.

8. The trial judge in his Reasons for Sentence said that he took into account the fact that the applicants have pleaded guilty and that the Charges 2 to 4 related basically to the same incident. Nevertheless they were cases of armed robbery involving the use of knives and the invasion of private premises at night. There was considerable physical violence and injury to the victims concerned. He said that if it had not been for the plea of guilty and the youth of the applicants, D.1 being 19 and D.2 18 at the time of the commission of the offences he would have imposed a total sentence of 7 years' imprisonment in respect of Charges 2-4. We agree.

9. The charge to which the 1st applicant pleaded guilty of the robbery of a taxi driver again involved the use of a knife and it has been said on many occasions that taxi drivers must he protected.

10. We have been impressed by the fact that the 1st applicant's mother has come to this Court today and has given us some information regarding the background of the 1st applicant. It is clear that he has come from a broken home. The judge did not call for probation reports and training centre reports clearly because he took the view that these offences were so serious that a sentence of imprisonment was the only option available. Particularly so far as the 1st accused is concerned we agree that that was quite right because these offences are so serious that if the judge or this Court had called for training centre reports it would only have raised false hopes. This Court had said many times that in armed robbery of this type, despite the youth of the defendants, sentences of imprisonment are inevitable except in the case of extreme youth. We find nothing in the facts here or in the background of the applicants to make these cases exceptional.

11. D.1 was sentenced to 21/2 years' imprisonment in respect of the 1st charge and p.2 to 41/2 years in respect of the 5th. However there seems to be some doubt as to the sentences passed on each applicant on charges 2-4. The judge's notes records it at 51/2 years for each offence, all to be concurrent. However in his Reasons for Sentence he has said he passed sentences of 5 years having given discount for the applicant's age and pleas of guilty. We propose to order that this question be resolved in favour of the applicants and for the removal of any doubt order that the sentences on charges 2-4 be 5 years in each case, to be concurrent with each other and with the other sentences. Save to that extent the applications for leave to appeal against sentence are refused.

Representation:

I.G. Cross for Crown/Respondent

Applicants in person