Shum Ming and Others v. The Queen

CACC001062/1977

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Coram: Huggins and Pickering, JJ.A. and McMullin, J.

Date of Judgment: 6th January, 1978.

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JUDGMENT

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1. The appellants appeal against sentence only, the first in respect of seven sentences for robbery and one for handling stolen property, the second in respect of three sentences for robbery and the third in respect of seven sentences for robbery. Each was sentenced on each charge of robbery to five and a half years' imprisonment those sentences to run concurrently. On the charge of handling stolen property the first appellant was sentenced to two years' imprisonment and that also was to run concurrently with the sentences in regard to robbery.

2. The modus operandi of the appellants was to rush into beauty parlours armed with knives and in each case there were more men than are now in the dock. In most cases there were six such men but in one case five and in another only four. Their custom was to rush these places with knives, terrorize the staff and customers and then relieve them of their money and valuables.

3. The first appellant played a prominent part in this. He is unfortunately not represented today but nothing that he has said induces us to think that five and a half years is anything but an apposite sentence for so many robberies of this nature.

4. I would interpose here the fact that the first appellant has said, and it has been urged on behalf of both the second and the third, that they are first offenders. It is difficult to regard as first offenders persons who, it is true, appear before the court for the first time but appear charged with eight, three and seven offences respectively. Mr. Young, for the second appellant, has made what I can only describe as a plea ad misericordiam referring to the decent background of this young man, who, like the first appellant, is twenty-one years old. But it is to be observed that that background imposes responsibilities as well as evoking some measure of pity from this court for the relatives of the young man so involved. Mr. Young has described these cases as coming closer to the lift and staircase type robberies than to the domestic premises robberies where thugs rush in with knives, tie up, gag and blindfold the inhabitants and ransack the place. It is that type of robbery in respect of which this court said recently that it would be unlikely in the average case to interfere with sentences of six years' imprisonment. It is our view that this beauty salon type of robbery approaches more closely the domestic premises robbery than that of the lift or the staircase. And in any event melon knives are melon knives whether they be used in a beauty parlour or in a lift or staircase. Mr. Young has referred us to various earlier cases in which this court has reduced sentences. They arose before we announced that we would not normally interfere in the domestic premises type of case with sentences of six years' imprisonment. Mr. Young has referred to the remorse of the second appellant, to his infatuation for a particular girl, to his need of money in order to marry her, an intention disapproved of by his parents who are unwilling to finance the marriage and it is submitted to us that the second appellant is the sort of young man who would well respond to rehabilitation. There were, however, three of these offences. They were committed in the company of several other men. They were committed with knives, in one case at least a melon knife, although in other cases the type of knife was not specified. We are of the opinion, unfortunate as we consider his situation, and that of his parents, that we would not be justified in interfering with the sentences of five and a half years' imprisonment imposed on the second appellant.

5. The third appellant was at the time of his trial only sixteen years and four months old. The learned judge in the court below obtained from the Commissioner of Prisons a report as to his suitability for a detention centre or a training centre. That report was to the effect that the boy was suitable for either but that the Commissioner of Prisons considered that a detention centre would be more suitable. The learned judge considered seriously the question of detention centre and came to the conclusion that, having regard to the nature of these offences and to their number and despite the age of the youth, he should receive the same sentence as had the others, that is a total of five and a half years' imprisonment. It is not apparent from his reasons for sentence whether or not the learned judge considered the alternative of a training centre. He did consider that a detention centre would be unsuitable in the sense that the longest period of time for which the boy could stay there would be six months and he considered that that was not an adequate deterrent and that the public interest deserved something more by way of punishment. We agree but we consider that a sentence amounting to one third of the years which a boy of sixteen years and four months has spent upon this earth is excessive purely by reason of his youth. There is a half-way-house. He would remain in a training centre for an indeterminate period between six months and three years, much depending upon his own behaviour. That, we consider, is a more suitable deterrent than the five and a half years to which he was sentenced. In the case of the third appellant we allow the application to appeal against sentence. We set aside the sentences of five and a half years' imprisonment and substitute a sentence of detention in a training centre.

Representation:

First appellant in person.

C. Young (Gunston & Chow) for second appellant.

P. Nguyen (Director of Legal Aid) for third appellant.

W.J. Kitson for Crown/respondent.