The Queen v. Li Ming

CACC000480/1985

BETWEEN:

Coram: Roberts, C.J., Silke & Barker, JJ.A.

Date of Judgment: 29 January 1986

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JUDGMENT

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ROBERTS, C.J.:

1. THE APPLICANT SEEKS LEAVE TO APPEAL AGAINST SENTENCES OF FOUR AND A HALF YEARS' CONCURRENT ON EACH OF FOUR CHARGES OF BURGLARY. HE WAS AT THE SAME TIME SENTENCED BY THE DISTRICT JUDGE TO THREE MONTHS' IMPRISONMENT TO RUN CONSECUTIVELY TO THE FOUR SENTENCES ON THE CHARGES OF BURGLARY BUT MAKES NO SUBMISSION IN RELATION TO THIS SENTENCE.

2. THE FOUR CHARGES OF BURGLARY, TO WHICH HE PLEADED GUILTY, ALL RELATE TO OFFENCES COMMITTED BY HIM WITHIN THE BLOCK OF FLATS IN WHICH HE WAS LIVING. TWO OF THE BURGLARIES TOOK PLACE ON 20TH MAY AND TWO OF THEM ON THE 22ND MAY, 1985. ON THE LATTER OCCASION, HE WAS CAUGHT RED-HANDED, AS A RESULT OF A PHONE CALL MADE TO THE POLICE BY ONE OF THE OTHER RESIDENTS OF THE BLOCK.

3. IN RELATION THEREFORE TO THOSE TWO CHARGES, WHICH WERE CHARGES 4 AND 5 ON THE CHARGE SHEET, HE CAN EXPECT LITTLE CREDIT FOR HIS PLEA CF GUILTY. HE CAN, HOWEVER, EXPECT SUBSTANTIAL CREDIT IN RELATION TO THE TWO FIRS! BURGLARIES, CHARGES 2 AND 3, SINCE THE POLICE HAD NO KNO'WL'EDGE OF THOSE OFFENCES AND IT WAS ONLY AS A RESULT OF HIS ADMISSIONS TO THEM THAT HE WAS CHARGED WITH AND PLEADED GUILTY TO THEM.

4. THERE WERE, AS MRS. SPRUCE HAS ARGUED ON HIS BEHALF, NO AGGRAVATING CIRCUMSTANCES IN THE SENSE THAT NO WEAPONS WERE USED, THAT NO VIOLENCE OF ANY KIND WAS THREATENED AND THAT THESE BURGLARIES TOOK PLACE DURING THE COURSE OF THE DAY. THERE ARE, HOWEVER, OTHER FACTORS TO SET AGAINST THIS IN RELATION TO THE APPLICANT S BACKGROUND.

5. HE IS A MAN OF 26 WITH AN APPALLING CRIMINAL RECORD. HE HAS BEEN CONVICTED ON 17 PREVIOUS OCCASIONS; 8 OF THOSE CONVICTIONS WERE FOR BURGLARY, 3 FOR ROBBERY. HE WAS RELEASED FROM A 7 YEAR SENTENCE FOR ROBBERY ONLY IN JANUARY 1985 AND WHILE HE WAS ON BAIL, IN RELATION TO THESE OFFENCES OF BURGLARY, HE COMMITTED THE FURTHER OFFENCE OF BEING IN POSSESSION OF AN OFFENSIVE WEAPON IN AUGUST 1985. HE WAS CONVICTED AND SENTENCED TO SIX MONTHS' IMPRISONMENT FOR THAT OFFENCE ON 24TH SEPTEMBER, LAST YEAR.

6. MRS. SPRUCE HAS SUBMITTED, AND WITH THIS SUBMISSION WE AGREE, THAT A MAN MUST NOT BE SENTENCED FOR HIS CRIMINAL RECORD. THE FACT THAT HE IS A RECIDIVIST, IS NOT A PROPER REASON FOR INCREASING HIS SENTENCE ABOVE THAT LEVEL WHICH IS PROPER FOR THE OFFENCE ITSELF.

7. THERE IS NO INDICATION, HOWEVER, IN HIS REASONS FOR SENTENCE, THAT THIS IS WHAT THE JUDGE DID. IT IS, NEVERTHELESS, PROPER FOR A JUDGE, WHEN CONSIDERING THE APPROPRIATE SENTENCE, TO LOOK AT THE TARIFF FOR THE OFFENCE INVOLVED AND TO TAKE INTO ACCOUNT, WHEN DECIDING WHICH END OF IT SHOULD BE APPLIED, THE RECORD OF THE DEFENDANT. IN THIS CASE THE JUDGE WOULD HAVE BEEN PERFECTLY ENTITLED TO CONCLUDE, ON CONSIDERATION OF THE APPLICANT 's RECORD. THAT THE TOP END OF THE TARIFF WAS APPROPRIATE.

8. FOUR AND A HALF YEARS' WOULD BE A MANIFESTLY EXCESSIVE SENTENCE FOR A BURGLARY COMMITTED IN THE CIRCUMSTANCES OF THESE OFFENCES. THE USUAL SENTENCE FOR BURGLARY IS BETWEEN TWO AND FOUR YEARS. HOWEVER, AS WE HAVE SAID ON A NUMBER OF OCCASIONS, THOSE WHO COMMIT SEVERAL OFFENCES OF THE SAME NATURE OUGHT TO EXPECT, AND TO RECEIVE A HIGHER SENTENCE THAN SOMEBODY CONVICTED OF ONLY ONE SUCH OFFENCE.

9. IN THIS INSTANCE, THE APPLICANT WAS CONVICTED ON HIS OWN PLEA OF FOUR BURGLARIES IN A BLOCK OF RESIDENTIAL FLATS. THE PROPERTY WAS RECOVERED IN THE LAST TWO CASES BECAUSE HE WAS CAUGHT ON THE SPOT BUT WAS NOT RECOVERED IN RELATION TO THE EARLIER BURGLARIES. THERE WERE NO OTHER AGGRAVATING CIRCUMSTANCES.

10. ALTHOUGH, AS WE HAVE INDICATED, FOUR AND A HALF YEARS' I WOULD BE TOO HIGH FOR ONE SUCH BURGLARY, WE SEE NOTHING WRONG WITH IT AS A TOTAL SENTENCE FOR THE FOUR BURGLARIES TO WHICH THE APPLICANT PLEADED GUILTY AND THEREFORE THE APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE IS REFUSED.

Representation:

MRS. J. SPRUCE (D.L.A.) FOR APPELLANT

MR. J.L. CAGNEY, S.A.C.P. FOR RESPONDENT