The Queen v. Kam Ka-fu

CACC000547/1996

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Coram: Mortimer and Mayo JJA and Sears J in Court

Date of Judgment: 24 January 1997

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JUDGMENT

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Mortimer JA (giving the judgment of the Court):

1. On 5 September 1996 the applicant pleaded guilty before Her Honour Judge Beeson in the District Court to two offences of attempted burglary.

2. These offences were committed with others who were equipped with gloves and screwdrivers. They went on 7 May 1996 between 8 am and 10.30 a.m. to a residential building. They attempted to enter a flat on the 8th floor but failed. They then attempted to enter at flat on the 9th floor. At about the time that they were making these attempts, one occupant returned to his flat. He heard noises on the roof. Having noticed that the flats had been tampered with, he alerted the police. After a chase, the applicant was arrested. He admitted committing the offences with two others.

3. The judge came to sentence him after she had called for reports. Those reports were not in the applicant's favour. He was by this time 21 years of age. He did not have a good record. He had been previously on probation and later to detention centre. The judge rightly decided that imprisonment was the only realistic option. She then chose as a starting point for the attempted burglaries on conviction after trial 2 1/2 years. It is not absolutely clear whether that was the overall starting point for both offences - but perhaps it was not - because she then reduced the charges to 20 months imprisonment, having regard to the plea of guilty. Because there were two separate charges, she then ordered 6 months of one of those sentences should be served consecutively, making 26 months in all.

On appeal

4. The applicant, who appears in person, takes the point that although there were two offences here, they were so closely related in fact and in time that concurrent sentences would have been appropriate. Not without some doubt, we agree that in the circumstances of this case, concurrent sentences would have been appropriate. 2 1/2 years concurrent is the appropriate starting point for the two offences and that in these circumstances - in order to give him credit for his plea of guilty - the sentences ought to have been reduced to 20 months imprisonment.

5. In those circumstances, on the grounds that this sentence was too heavy and the sentence ought to have been concurrent, we quash the sentence of 26 months and order sentences of 20 months concurrent on each offence, making a total of 20 months.

6. We give leave to appeal against sentence, treat the application as the appeal, allow the appeal to the extent that we have indicated.

Representation:

Applicant in person

Mr D.G. Saw (Crown Prosecutor) for Crown/Respondent