Chan Chi Lai and Others v. The Queen

CACC000122/1976

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Coram: Briggs, C.J., Pickering, J.A. & Yang, J.

Date of Judgment: 31st March 1976.

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JUDGMENT

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Pickering, J.A.:

1. The first appellant, who is even now only 18 years old, was convicted of robbery in August of last year and sentenced to 2 ½ years' imprisonment. In the following month he was again convicted in respect of a previous robbery and sentenced to 18 months' imprisonment to run concurrently with the term which he was then serving. In December, other offences having come to light, he was convicted of robbery and rape and sentenced to 4 years' and 5 years' imprisonment to run concurrently with each other and also concurrently with the sentences which he was already serving. In January of this year he was convicted on his own plea of one offence of rape, 7 of robbery and 8 of false imprisonment and was sentenced to terms of imprisonment totalling 14 ½ years such sentences to run concurrently with the sentences then already being served. It is against these sentences totalling 14 ½ years' imprisonment that the first appellant now seeks leave to appeal.

2. His modus operandi in regard to the offences the subject of 14 ½ years' imprisonment was the same as that employed by him in regard to those for which he was sentenced to 5 years and 4 years concurrently. In each case he rented a room in a flat and subsequently, with an accomplice or accomplices threatened the inhabitants with knives, tied them up and ransacked the premises. In the present case he was assisted by the second and third appellants who not only tied up those occupants who were in the premises at the time the knives were used, but subsequently bound other tenants and visitors arriving newly at the premises. 8 persons were so bound and blind-folded and kept in that situation the whole night through. The first appellant, just as he had done in connection with the charge of rape for which he was already serving a sentence, took one of the female victims to a secluded part of the premises and there raped her whilst her hands were tied.

3. Having robbed 7 of the victims, two of the appellants further took a female victim to her bank on the following morning and there compelled her to withdraw some $4,200 from her account. This money they stole with the exception of $200 which they left at the flat.

4. The sentences totalling 14 ½ years' imprisonment were made up of 7 ¾ years for rape and 6 ¾ years each upon the respective charges of false imprisonment and robbery and the latter sentences were expressed to be all concurrent but consecutive to the 7 ¾ years' imposed for the rape. Mr. Rogers, for the first appellant, argues that the violence employed in the rape was the same violence as that used in the false imprisonment and that therefore the sentences should have been concurrent and not consecutive. In support of this he pointed to the fact that the sentences imposed upon this appellant in the earlier case, namely 5 years for rape and 4 years for robbery had been expressed to be concurrent.

5. We are entirely unable to agree that the violence employed in the act of rape was the same violence as that used in the false imprisonment. The violence employed in the rape was different in degree and different in kind; the offences are entirely distinct offences and consecutive sentences were wholly deserved. We would add that in Application for Review No. 3 of 1976 the Attorney General applied for the review of the concurrent sentences of 5 years and 4 years imposed for the earlier rape and robbery and the court hearing that review was of the opinion that the sentences, relating as they did to distinct offences, should logically have been consecutive. On an application for review, however, this Court is always conscious that it is dealing with a person who, in sharp contradistinction to the old common law rule, is in fact being placed in jeopardy twice for the same offence with all the attendant anxiety and frustration implicit in that situation; it is for that reason that when this Court increases a sentence upon an application for review, the increase is frequently not so great as the offence might have merited had a really adequate sentence been imposed in the first instance; and it was for that reason that in Application for Review No. 3 of 1976 this Court refrained from making the sentences of 5 years and 4 years consecutive but instead ordered that they should remain concurrent yet run consecutively to the term of 2 ½ years' imprisonment already being served by the first appellant.

6. We find no merit in the contention that the violence used in the rape was the same violence as that used in the false imprisonment nor in the fact that somewhat anomalously, the appellant's earlier sentences for rape and robbery were, and were allowed to remain, concurrent.

7. Mr. Rogers' next line of attack upon these very heavy sentences was in relation to the age of the first appellant and counsel pointed out that he had in fact been sentenced to imprisonment for something like 80% of the number of years he had already lived. The learned judge made a conscious effort to assess the overall implication of the sentences which he was imposing and it was for that reason that he refrained from making the sentences totalling 14 ½ years consecutive to those totalling 5 years which the appellant was already serving. The learned judge observed, very rightly in our view, that sentences totalling 19 ½ years would be altogether too heavy. We agree but we are also of the opinion that sentences totalling 14 ½ years are, in the case of a youth of 18, excessive. This is not to excuse his conduct which can only be condemned in the strongest terms but the prospect of 14 ½ years' incarceration must, we consider, be soul-destroying to a youth of 18. Accordingly, we reduce the sentence of 7 ¾ years imposed for the offence of rape to one of 4 years whilst not interfering with the sentences of 6 ¾ years' imprisonment imposed consecutively in respect of the various charges of false imprisonment and robbery. To that extent the application of the first appellant for leave to appeal against sentence is allowed. The net result is to reduce the total of 14 ½ years' imprisonment to 10 ¾ years.

8. The second appellant, who is also 18 years of age, was sentenced upon 8 charges of false imprisonment and 7 of robbery to 6 ¾ years upon each charge, those sentences to run concurrently and also concurrently with a sentence of detention in a detention centre already being served by him. Those sentences were well deserved and, there being not a word of merit in what he had to say to us in court, his application for review to appeal against sentence is dismissed.

9. The third appellant was convicted of 6 charges of robbery and 8 of false imprisonment. He is 17 years of age and arrived on the scene only after the nefarious activities of the first and second appellant had already commenced. He was sentenced to 5 ¾ years' imprisonment upon each of the charges of the case all to run concurrently. The remarks which we have made at the lack of merit of the second appellant's application for leave to appeal apply equally to that of the third appellant and his application must also be dismissed.

Representation:

Rogers (D.L.A.) for first appellant

Second and third appellants in person

Duffy, C.C., for respondent.