R v Tan

[2012] NSWDC 277

District Court

New South Wales

Medium Neutral Citation:	R v Tan [2012] NSWDC 277
Hearing dates:	7 December 2012
Decision date:	07 December 2012
Before:	Berman SC DCJ
Decision:	Sentenced to imprisonment consisting of a non-parole period of 5 years and a head sentence of 8 years.
Catchwords:	CRIMINAL LAW - Sentence - Robbery with wounding - Significant injuries
Category:	Sentence
Parties:	The Crown Chn Yap Tan
Representation:	Mr J Gordon - Tan Director of Public Prosecutions
File Number(s):	2012/40883

SENTENCE

1. HIS HONOUR: Chun Yap Tan appears for sentence today. He is twenty-six years of age and has never been sentenced for a criminal offence before, but he has begun his criminal history in a rather spectacular and serious way. Of course I do not mean to suggest that he will necessarily commit a further offence in the future, but I do mean to suggest that Mr Tan's first offence is one of such seriousness that despite his prior good character he must necessarily serve a lengthy time in gaol.

1. He went to the Campsie RSL Club in the early hours of 3 February 2012. He hung around for a while until he noticed Ms Li Ting Chen come into the club. Ms Chen was gambling on the poker machines in the early hours of 3 February, and as she did so she was watched by the offender. At some stage he clearly formed a plan to rob her. He either had a knife with him or went and bought one, and so when Ms Chen got into her car about 3.45am in order to go home the offender got in beside her and was able to threaten her with a dangerous weapon. The weapon was not only capable of inflicting serious injury but the offender used it to do precisely that.

1. Ms Chen was starting to drive away slowly - one can only imagine the fear which she was experiencing at the time - the offender explained to her that he was short of money, but we now know that he was working at the time so he cannot have been that poor. In any case Ms Chen very sensibly handed over her handbag. It had a number of things of value to her including some cash, a phone, and a number of cards. One might have thought that this would be the end of the matter, the offender had got what he came for, he had succeeded in robbing Ms Chen of her property, but the offender was not finished.

1. He put the knife inside Ms Chen's mouth. Ms Chen, quite understandably, tried to get the knife out. As she did so she suffered a significant laceration to her lip. That laceration was about 1.3 centimetres long and required about ten stitches when it was later treated. One can expect some scarring on the face of Ms Chen to result. The offender still was not finished. He turned to face Ms Chen and pulled her hair back. As this was happening he put the knife of the blade across her neck. Fortunately she was not cut at this particular time, but no doubt she was afraid at an extreme level. She took her hands off the steering wheel and grabbed the knife blade in an attempt to snap it. As she did this she suffered injuries, significant ones, to her hands which have required extensive treatment. She also suffered another cut to her chin, this one about 1.5 centimetres long and requiring eight stitches.

1. Still the offender was not finished. By this time the car had stopped and Ms Chen tried to get out of the car but she could not because of the injuries that she had suffered to her hands. Instead of simply getting out and running away, the offender grabbed Ms Chen's hair and pushed her head down cutting her once more, this time across the back of her head just above her neck. That 2.5 centimetre laceration also required suturing later in hospital. Finally the offender left having inflicted a number of serious and separate wounds upon the unfortunate Ms Chen.

1. She ran back to the club. An ambulance was called. She was taken to hospital. She underwent surgery to repair her facial lacerations and t0 repair the injuries to her tendons, nerves and an artery in her hands. She was in hospital for three days but has required extensive treatment since then. She continues to suffer both physically and psychologically. She has suffered great harm, precisely the sort of harm that one would expect if a person did what the offender has done to Ms Chen.

1. The offender was arrested a few days later. He said that he had difficulty remembering what occurred that night because he was intoxicated. He was shown CCTV footage from inside the club which did not show him consuming any alcohol. However, the offender told police that he had consumed alcohol elsewhere before going to the club.

1. The offence of robbery with wounding is of course a very serious one. It carries a maximum penalty of twenty-five years imprisonment, the longest determinate sentence provided for in New South Wales. It also has a standard non-parole period of seven years. I have taken both the maximum penalty and the standard non-parole period into account in determining the appropriate sentence to impose upon the offender.

1. The offender was born in Malaysia. He has a good relationship with his parents and was brought up well by them. The family was certainly not flush with money but their needs were provided for. Before he was about twelve when he misbehaved the offender would be physically punished by the use of a cane wielded by his father, but after that date misbehaviour resulted in a verbal reprimand. The suggestion that perhaps the offender's violent behaviour on 3 February 2012 bears some relationship to the physical punishment he received before he turned twelve is somewhat speculative.

1. He has always apparently had a good work ethic. His father was a fisherman and Mr Tan helped from a young age in order to assist the family's finances. He did not enjoy school and avoided studying, preferring to assist his father.

1. When he was eighteen he and his wife moved to Japan to seek employment. He was deported after being discovered as an illegal immigrant there. He remained back in Malaysia until he was twenty-one where he again travelled overseas, this time to Korea, again as an illegal immigrant, in order to seek work. He went back to Malaysia at twenty-two and came to Australia on a tourist visa. However, he was working, as I have noted, at the time of this offence.

1. It is important to note that he has no criminal history either in Australia or elsewhere. His wife and children have returned to Malaysia given the uncertainty as regards Mr Tan's future in Australia. There was not much point in them staying here. The relationship seems also to be at an end.

1. Mr Tan will thus do his sentence in Australia much harder than would ordinarily be the case. He is isolated from his family and experiences great difficulty in speaking English. He will not be receiving visits from loved ones. He will find it difficult to access the various support services in prison, and even simple things like understanding instructions given to him by Corrective Services officers will be a problem for him.

1. The psychological report tendered on his behalf goes into some detail in explaining the troubles that the offender has had adjusting to life in prison. Of course not too much can be made of this circumstance. It was the offender's choice to commit this offence knowing that if detected he would be sent to prison in a foreign country. I repeat, the offender will do his time in custody much harder than would ordinarily be the case. I have taken this matter into account in deciding the length of the sentence to impose upon him.

1. This was a very serious offence. The offender clearly planned to do what he did well before Ms Chen got in her car, and to continue using the knife on her repeatedly after she had handed over what he came for is a disturbing feature of the present case. In that sense the offender's violence was gratuitous. It was completely unnecessary to do what he did to Ms Chen with the knife once she had handed over her handbag. It is something of a puzzle as to why a twenty-six year old would act in such a violent way apparently for the first time.

1. To the psychologist the offender said that he had taken some pills that night. He was unable to say what they were. From the description given, the psychologist considered that the pills may have been a benzodiazepine, but, as Mr Gordon acknowledges, there is no evidence at all that he can point to to suggest that consumption of drugs of that kind would cause anyone to act out of character. I note also that the offender did not tell the police about any pills that he had taken when he was arrested, and so I am simply unable to find that there is evidence about the consumption of pills, if he did take them, that caused him to act out of character. But that is not to say that he did not. He has clearly acted in a way which is unusual for him. That is important in assessing the prospect of the offender committing further offences in the future. It is likely that this will be an isolated breach of the law. I would have been more comfortable in making that finding if I knew what it was that led him to commit this offence in the first place, but as matters stand I simply do not know why he did what he did.

1. He pleaded guilty at the earliest opportunity and so the sentence I imposed upon him will be twenty-five per cent less than would otherwise have been. I will make a finding of special circumstances in the offender's favour as well, this being his first time in custody, and the lack of easy access to support services in prison suggest the desirability of extending the period of eligibility for parole at the expense of the non-parole period.

1. But I return to where I started. This is a very serious offence. It has caused enormous harm to Ms Chen and the wider community has of course suffered as well. All of us feel less safe when offences of this kind are committed by those who apparently just want to make an easy dollar, and, thus, there needs to be a substantial component of general deterrence built into the sentence I am about to impose upon the offender.

1. The offender is sentenced to imprisonment. I set a non-parole period of five years to date from 7 February 2012 and a head sentence of eight years. The non-parole period will expire on 6 February 2017, upon which date the offender is eligible to be released to parole.

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Decision last updated: 04 April 2013