The Queen v. Chan Wai-keung and Another

HCMA000440/1989

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H E A D N O T E

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COMPENSATION ORDERS - NO ENQUIRY INTO DEFENDANT'S MEANS TO PAY - ORDERS QUASHED.

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BETWEEN

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Coram: Hon. Bewley, J. in Court

Date of hearing: 30 May 1989

Date of delivery of judgment: 9 June 1989

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J U D G M E N T

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1. 1st appellant (D2) was convicted on 15 charges of theft and his twin brother, 2nd appellant (D3), on one charge of handling stolen property. The charges relate to the theft of radio cassettes from cars parked in the New World Centre, Ocean Terminal and Rumsey Street car parks on 29th February and 14th March, 1988.

2. Their appeals against conviction were dismissed on 30th May, but I reserved my decision on sentence until today.

3. The appellants are 28. D2 has six previous convictions, including three for theft or attempted theft. D3 has five previous convictions, including three for theft. Each is in breach of a three months suspended sentence for theft from a vehicle.

4. D2 was convicted on seven charges, together with another defendant (D1), relating to 29th February, and on a further eight charges relating to 14th March. There was a fourth defendant (D4) who was convicted on one charge of handling three radio cassettes.

5. D3 was originally jointly charged with D1 and D2 on the first seven theft charges, but an amended charge of handling six stolen radio cassettes was preferred at a late stage of the case.

6. The appellants' solicitor was specifically instructed to admit to the magistrate before sentence that the appellants had instigated and planned the 29th February theft. D1 was the driver and acted as lookout. D4 also played a minor role.

7. The appellants in their cautioned statements admit receiving only $1,000 odd each from the sale of the radio cassettes, although their total value is said to be $57,800. Very few cassettes were recovered.

8. The magistrate adopted an unusual approach to sentence. He sentenced D2 to 18 months concurrent in respect of the February thefts. He considered D2 deserved a further 18 months in respect of the March thefts, but in fact sentenced him to six months consecutive. He did this in order to leave room for consecutive default sentences, totalling 11 months and 4 weeks, in respect of nine compensation orders totalling $25,720. He also ordered the three months suspended sentence to be served consecutively to the other sentences. This made the total sentence three years, two months and four weeks.

9. The magistrate admits that he made no enquiry into D2's means to pay the compensation order, on the grounds that he had reduced the sentence for the March thefts from 18 months to six months in order to give him the opportunity to be released from prison 12 months earlier in return for paying compensation.

10. That, with respect, is not a proper approach. He should have made enquiry into D2's means to pay. No compensation has yet been paid and, from the evidence on the record, it seems unlikely that it ever would be paid. If these orders were allowed to stand, therefore, D2 would probably have to serve the default sentence.

11. I think, in any event, that the magistrate's assessment of three years as the appropriate sentence for the two series of thefts was too high. In my view the proper sentence is 12 months in respect of each series, to run consecutively. The suspended sentence will also run consecutively. The compensation order is quashed. The result is that D2's sentence is reduced to two years end three months.

12. The same principles apply in the case of D3. His culpability in handling the proceeds of the February theft is comparable to that of D2. 16 months is too severe and this sentence is reduced to 12 months. The suspended sentence will run consecutively, giving a total of 15 months.

13. The appeals are allowed accordingly.

Representation:

Mr. A. Macrae, (Haldane Midgley & Booth), for Appellants.

Mr. Maxwell, C.C., for Crown/Respondent.