R v Teck Lee Lew

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Teck Lee Lew [2004] NSWCCA 320

FILE NUMBER(S):
2004/1880

HEARING DATE(S): 16/09/2004

JUDGMENT DATE: 21/09/2004

PARTIES:
Regina
Teck Lee Lew

JUDGMENT OF: Wood CJ at CL Kirby J Buddin J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70116/02

LOWER COURT JUDICIAL OFFICER: Adams J

COUNSEL:
B Knox SC (Crown)
R Hulme SC (Applicant

SOLICITORS:
S Kavanagh (Crown)
S O'Connor (Applicant)

CATCHWORDS:
Criminal law - sentence appeal - accessory before the fact to murder - complicity in felony-murder - withdrawal from criminal enterprise not ultimately effective.

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

DECISION:
Allow appeal against conviction for being an accessory before the fact to armed robbery on 22 May 2001. Quash the conviction and sentence in relation thereto. Refuse leave to appeal against the sentence imposed for being an accessory before the fact to attempted armed robbery on 14 May 2001. Grant leave to appeal against the sentence imposed for being an accessory before the fact to murder. Allow appeal (in part). Confirm the head sentence but quash the non-parole period. In lieu thereof fix a non-parole period of 10 years to commence on 5 July 2002 and to expire on 4 July 2012 at which time the applicant will be eligible for release to parole.The balance of term of the sentence is thus 4 years. The sentence itself will expire on 4 July 2016.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/1880
WOOD CJ at CL
KIRBY J
BUDDIN J
TUESDAY 21 SEPTEMBER 2004

REGINA v TECK LEE LEW

Judgment

WOOD CJ at CL: I have read in draft form the judgment of Buddin J. I agree with the orders proposed, and with the reasons of his Honour.
KIRBY J: I agree with Buddin J.
BUDDIN J: Teck Lee Lew (whom I shall refer to as the applicant) was jointly tried with David Ng. Ng was found guilty of the murder on 22 May 2001 of Nigel Stiffe. He was also found guilty of having at the same time robbed Mr Stiffe whilst being armed with a dangerous weapon.
The applicant was found guilty of being an accessory before the fact to the murder by Ng and a person by the name of Wai Kit Lo. He also pleaded guilty at the outset of the trial to being an accessory before the fact to the armed robbery (albeit upon the basis that the weapon was an offensive weapon and not a dangerous one). That count was charged as an alternative to the count of being an accessory before the fact to murder. The Crown declined to accept his plea in full discharge of that count in the indictment and accordingly the trial against the applicant proceeded in respect of what I shall refer to as the primary count. I shall shortly return to consider the significance of that fact in light of the jury’s verdict upon the primary count. The applicant also pleaded guilty to a further count of being an accessory before the fact to an attempt by Lo and a person named Tran on 14 May 2001 to rob Mr Stiffe whilst they were armed with an offensive weapon.
The applicant was sentenced to a fixed term of 3 years imprisonment to date from 5 July 2001 in respect of the offence committed on 14 May 2001. He was sentenced to a further fixed term of 5 years imprisonment in respect of the offence of being an accessory before the fact to armed robbery on 22 May 2001. Each of those offences attracts a maximum penalty of 20 years imprisonment.
In respect of the primary count, the applicant was sentenced to a term of 14 years imprisonment with a non-parole period of 11 years. That sentence, and the sentence imposed in respect of the other offence committed on the same day, were each ordered to commence on 5 July 2002. The effective overall sentence was thus one of 15 years imprisonment with a non-parole period of 12 years. The maximum penalty for the primary count is, by reason of the combined operation of ss 19A and 346 of the Crimes Act 1900, imprisonment for life.
Lo, who gave evidence at the applicant’s trial, was sentenced by the trial judge to a term of 18 years imprisonment with a non-parole period of 13½ years for the murder of the deceased. His Honour allowed an overall discount of 40% to that offender on account of his plea of guilty and his assistance to the authorities. But for those features of the case, it can be inferred that Lo would otherwise have received a head sentence of 30 years imprisonment. The trial judge sentenced Ng to a term of 35 years imprisonment for the murder of the deceased. The effective overall sentence imposed upon Ng for that offence and for the offence of armed robbery was 37 years with a non-parole period of 27 years and 9 months. In sentencing Lo and Ng, the trial judge found that although neither of them had planned to kill the deceased and that the killing was not therefore premeditated, it was nonetheless a deliberate and cold blooded execution on their part.
Following his plea of guilty to the attempted robbery on 14 May, the offender Tran received a sentence of 3 years with a non-parole period of 12 months to be served by way of periodic detention. He too received a significant discount for giving assistance to the authorities which also entailed his giving evidence at the trial of the applicant and Ng.
The applicant seeks leave to appeal against the severity of the sentences imposed upon him although in fact no submission was advanced concerning the sentence which was imposed in respect of the offence committed on 14 May 2001.
Before dealing with the challenge to the two remaining sentences, it is necessary to first consider a challenge to the applicant’s conviction for the offence of being an accessory before the fact to armed robbery on 22 May 2001 to which, as I have said, the applicant pleaded guilty, it having been charged as an alternative count. The jury’s verdict of guilty upon the primary count had the consequence that there was no need for a verdict to be taken upon the alternative count. In those circumstances, no sentence should have been imposed in respect of the alternative count. The applicant’s record should not include a conviction for this matter as if it were in some way a separate offence. It would appear that this issue was simply overlooked at the sentence hearing. Accordingly, it is common ground that the conviction and sentence for that offence should be quashed.
It is also common ground that this conclusion will have no practical impact upon the other sentences which were imposed because the sentence imposed for this offence was concurrent with, and wholly subsumed by, the sentence imposed in respect of the primary count.
That leaves the application for leave to appeal against what is asserted to be the severity of the sentence imposed upon the applicant following his conviction in respect of the primary count. In order to properly assess the submissions which were advanced on behalf of the applicant, it is convenient to refer to the trial judge’s sentencing remarks. Contained therein are his Honour’s findings of fact upon the critical question of the applicant’s role in the offence:
Mr Stiffe was killed by the offender, Ng, in company with one, Wai Kit Lo, who pleaded guilty to murdering Mr Stiffe on 5 May 2003 and gave evidence at the trial of Ng and Lew. I sentenced Wai Kit Lo on 9 May 2003 and in the course of giving reasons for the sentence set out in detail the circumstances of the case. Although it is not necessary for me to set them out again some salient features need to be mentioned.
Mr Stiffe was the manager of the Market City Tavern. Wai Kit Lo had been employed there for about six months but had resigned, perhaps involuntarily, some months before the offences. Teck Lee Lew was supervisor or shift manager at the Tavern and it was on his recommendation that Lo obtained work there. However, after Lo left that employment he and Lew remained in contact with each other. It was Lo’s evidence that Lew suggested to him that the Tavern should be robbed and that he should find a gun for that purpose. Although the offender, Lew, admitted that he was a party to the plan to rob the Tavern he said that it was Lo’s idea and that as he was then in desperate need of money he agreed to turn a blind eye to its commission. He denied that he ever discussed the possibility of the use of a gun or, for that matter, a knife in the robbery. He said that the only plan discussed was that Lo would use a metal bar, later described as a shopping trolley pole, to render Mr Stiffe unconscious by a blow to the head. On the whole I am minded to believe Lew’s evidence on this point. Certainly Lo had something to gain, and he probably thought it would be a good deal, from alleging that Lew instigated the crime and proposed the use of a gun and not him. Furthermore, there is evidence, which I am minded to accept, that Lew at an earlier time warned Mr Stiffe that Lo had talked about a robbery and asked to ban him from the Tavern. In the absence of any supporting evidence I do not think that Lo’s credibility is such that I could believe his evidence either as to Lew’s instigating the offence, or as to the gun, or, for that matter, as to the knife.
On 14 May 2001, Lo and Tran were armed with a metal pole taken from a dismantled shopping trolley and a knife belonging to Lo’s brother. In the result when it came to the point of actually attacking Mr Stiffe they desisted and left the premises before any alarm was raised.
So far as the offences that occurred on 21 May (sic) are concerned, Ng became involved some days before, although the precise date is uncertain. On the day of the crime Lo and Ng went from Lo’s home to the Tavern, taking with them a change of clothes, including tracksuits and balaclavas, a metal pole, Lo’s brother’s knife and a pistol. The evidence does not permit me to conclude who of Lo or Ng obtained the gun though I think that Lo procured the knife and the pole. I have no doubt that Ng was well aware that the pole, knife and gun were being taken to the robbery. Nothing turns on who obtained or who carried what. The two men remained hidden overnight in the fire stairs where, later, fingerprints of Ng and cigarette butts containing his DNA were found. At about 6.40am on Tuesday 22 May, Mr Stiffe arrived for work at the Tavern and about an hour later he entered the cool room/office area where he normally counted the Tavern’s overnight takings. A few minutes later Ng and Lo entered the office area wearing balaclavas and caps to conceal their identities from the closed circuit television cameras operating throughout the premises and also from Mr Stiffe. Again, who was armed with what is uncertain since I cannot accept Lo’s evidence on this point beyond reasonable doubt. This is immaterial since I am satisfied that both of them had agreed that the respective weapons would be used as necessary although I accept that they expected that it would be sufficient to obtain Mr Stiffe’s compliance if he were threatened with one or more of them. As the offenders entered the office Mr Stiffe got up and walked into the cool room and was struck from behind with a metal pole, it being again planned that he would be rendered unconscious. This, however, did not disable him and a struggle ensued during which the balaclavas worn by the offenders came off. Eventually Mr Stiffe was overpowered and forced to lie on the floor. He was then killed, the autopsy revealing that he suffered a fatal wound inflicted by the knife to his throat as well as a bullet wound to the back of this head.
Lo’s account of what happened was calculated to reduce his own responsibility for the acts of killing Mr Stiffe but although there is good reason for believing that Ng indeed played the major role I am not satisfied beyond reasonable doubt that this was so. However, whoever took the major role I have no doubt that both offenders were fully complicit and for all practical purposes equally culpable.
It is clear that Mr Stiffe was executed because he was able to identify the offenders, although he only knew Lo from previous acquaintance. Although the offenders had not planned on killing Mr Stiffe so that in that sense his death was not premeditated nevertheless it was a deliberate execution in cold blood. The offender, Lo, gave evidence on his plea as to the circumstances of the killing. I was prepared to accept that he was the follower, not the instigator, of the lethal assaults and the murder was not premeditated in the sense that it was planned from the beginning (taking and wearing the balaclavas being the strongest evidence of this) and thus that the case was not in the worst category of case. The evidence does not permit me to find as against Ng that he was the instigator of the killing. So far as he is concerned, therefore, I find that the crime does not fall into the worst category of case but not by much.
The offenders stole about $50,000 in cash from the office safe and fled taking money, knife, metal pole and pistol with them. In all the circumstances I think it likely that Ng became involved in the crime by agreement with Lo who was its instigator but he needed no persuading and thereafter enthusiastically participated in it so that the distinction in culpability is, I think, relatively slight. The aftermath of the offences is sufficiently set out in my reasons for sentence in respect of Lo and I do not intend to repeat them here.
It was the case of Teck Lee Lew that, although he was a party to the attempted robbery in respect of which he pleaded guilty on 14 May 2001 and was also an accessory before the fact to the robbery with an offensive weapon of 21 May 2001, (sic) he had not adverted to the possibility that Mr Stiffe would be seriously injured or wounded though he was aware that Lo intended to use a trolley pole to render Mr Stiffe unconscious.
Lew said in his evidence that although a metal pole had been first mentioned the trolley pole was later agreed on and he was unaware what such a pole was made of and it did not occur to him that it might cause serious injury or wounding though I do not doubt that he realised that such a pole would be made of metal and I have also concluded that he was aware that a blow to the head sufficient to cause unconsciousness could well cause serious injury or wounding though I do not think that I could be satisfied beyond reasonable doubt that he adverted to the risk that grievous bodily harm might be inflicted. In the result, of course, no serious injury was, it appears, caused by use of the pole. I am satisfied that Lew did not intend to contemplate the possibility that Mr Stiffe might be killed and I cannot be satisfied beyond reasonable doubt that he contemplated the possibility that Lo would take either a gun or a knife.
Lew said that he told Lo some days before the robbery that he no longer wished to be involved and attempted to dissuade Lo from proceeding by saying that he would be identified from the video security and would be caught. The robbery took place when Lew was absent from the premises and it is obvious that Lo did not think he needed to rely on Lew to assist him to accomplish it. In the end I am disposed to think that Lew’s evidence about attempting to withdraw from his involvement in the crime might well be true and I consider that he should be sentenced on this basis. Of course, the fact that he privately indicated to Lo that he no longer wished to be involved in the robbery was no defence to the charge since he took no steps to attempt to ensure that the crime did not occur, steps which he could easily have taken had he so wished. I infer that he did not wish to raise the alarm because he knew that his earlier complicity would thereby be exposed and that he might lose his employment.
Lew’s criminality is aggravated, however, by reason of his position of trust as an employee of the tavern. As a result Lew was complicit in a crime that resulted in Mr Stiffe’s death and his conviction for murder although the involvement of Lo and Ng was greater and more culpable by a very considerable margin.
A little later his Honour made the following observations:
I regard it as significant from the point of view of the offender’s chances of rehabilitation as well as reflecting on the seriousness of the crime that he did not participate in the crime in the result although his withdrawal was insufficient to comprise a defence to the charge.
…
The extent of his actual involvement does not demonstrate nearly the level of criminal culpability shown by the offender, Ng, or, for that matter, the offender, Lo.
…
So far as Lew is concerned his culpability is significantly less, as I have already said, than that of either Lo or Ng since not only did he play no part in the killing of Mr Stiffe and did not intend or foresee the infliction of grievous bodily harm upon him, though, as I have said, I think that he did foresee significant injury, at least amounting to a wounding, he did withdraw from active participation in the crime. …
Lew has been convicted of three crimes of which attempted robbery is so separate in point of time and occasion as to require some accumulation with the other offences. It is obvious from what I have already said that his conviction of the offence of being an accessory before the fact to murder arose from his involvement in the joint enterprise of robbing Mr Stiffe and his guilt is thus derived directly from the fact that Mr Stiffe was killed in the course of that crime, Lew having adverted to the substantial risk that serious injury amounting at least to a wounding might be inflicted. As it is so inextricably bound up in the offence of being an accessory before the fact to the armed robbery no sensible separation can be constructed and the sentences should for the same reason be served concurrently.
The applicant’s background was summarised by the trial judge in the following terms:
The offender, Lew, was born in Singapore and is now aged thirty-six years. He came to Australia with his parents in 1979 when he was thirteen years old, attending a local high school for three years, leaving with his School Certificate in 1982. He has been in continuous employment since leaving school, lastly, of course, at the Market City Tavern. The offender has a large and supportive family. He was married for one year and has a daughter now aged twelve with whom he had regular and frequent contact until his arrest and incarceration. His daughter visited him once at the remand centre but was so frightened by the experience that she has not visited him since. Following his divorce the offender commenced another relationship which lasted for about five years. He is the father of another daughter, now aged seven years, who has visited him mostly with his parents but sometimes with her mother. In 1997 the offender married again. Lew has no significant criminal antecedents.
The applicant had a prior conviction in the Local Court for assault occasioning actual bodily harm in respect of which he was placed on a recognisance to be of good behaviour for two years. However, as is apparent, the trial judge clearly regarded that matter as having no significance to the present proceedings. That was a very generous finding particularly in view of the fact that the applicant was still subject to that recognisance, at least when the offence of 14 May was committed.
The trial judge then made the following observations concerning other aspects of the applicant’s subjective case:
In many ways both Ng and Lew have been model prisoners, especially the offender, Lew, who has undertaken responsible work assisting Asian inmates to adjust to the correctional centre environment and avoid potential conflicts. An additional factor in Lew’s case is that he pleaded guilty to the attempted robbery charge and indicated that he would do so at an early stage. He has also pleaded guilty to the charge of being an accessory before the fact of robbery and I should repeat here, as I have already pointed out, that this was robbery with an offensive, rather than a dangerous weapon, which is an important distinction in point of seriousness. Although in the circumstances his trial on the charge of murder was not thereby averted the plea simplified the trial significantly and involved admissions as to his complicity which the Crown could by no means have been confident of proving to the requisite degree of certainty. It seems to me that I should acknowledge the significance of those pleas in the sentence which I intend to impose. I regard it as significant from the point of view of the offender’s chances of rehabilitation. … I accept that Lew’s involvement in this crime was an aberration and that he is most unlikely to offend again.

The applicant does not contend that the trial judge fell into any error which can be identified. Nor is there any challenge to any of his Honour’s findings of fact. Indeed the submission, when refined to its essence, is that given the favourable findings of fact which were made by the trial judge, the ultimate sentence which was imposed is manifestly excessive. It follows, it is submitted, that the trial judge concluded that his role was a rather limited one. In support of that proposition the applicant referred, in his written submissions, to the following features of the case:

The applicant was a party to an agreement with Lo that there be a robbery at the Tavern, but his Honour accepted the applicant’s version that the idea originated with Lo;
the applicant’s role in this plan was limited – in the attempt on 14 May 2003 he was to “turn a blind eye”;
the applicant had no knowledge or belief about any weapon being employed in the robbery apart from an item referred to as a “ shopping trolley pole”; his Honour declined to find that the applicant contemplated the possibility that a gun or knife would be taken to the robbery;
the applicant adverted to the possibility of the metal pole causing a wounding, but his Honour specifically refrained from finding that he adverted to the possibility of it causing grievous bodily harm;
the applicant had no involvement in the planning for, or carrying out of, the robbery on 22 May 2003. In fact, he attempt (sic) to withdraw from the enterprise but had to concede that he had not done all that he reasonably could to undo the effect of his previous participation; and
the applicant received no share of the substantial proceeds of the robbery on 22 May 2003.

The applicant submitted that his liability for the offence was “somewhat technical” in the sense that even though he was found not to have participated in the robbery on 22 May and indeed had sought to distance himself from it, he nonetheless had to concede his guilt of that offence because he had not done what the law regards as being sufficient to have withdrawn from the enterprise. See R v Tietie & ors (1988) 34 A Crim R 438; R v Truong (NSWCCA unreported 22 June 1998). The trial judge found that the applicant’s conviction upon the primary count depended upon the operation of the felony-murder rule, in that the applicant was a party to the commission of the foundational offence of armed robbery with wounding which, pursuant to s 98 of the Crimes Act, attracts a maximum penalty of 25 years imprisonment. His Honour had also found that the applicant’s conduct had placed him within the reach of s 98 because he had contemplated the possibility that the deceased would be wounded during the course of the armed robbery.
It is nevertheless accepted by the applicant that there is no impediment to a conviction being based upon a person’s complicity which arises from his or her participation in a joint criminal enterprise in a felony murder. See R v Sharah (1992) 63 A Crim R 361; R v R & G (1995) 79 A Crim R 191. Nor did the applicant contend that a conviction which is based upon the operation of the felony-murder rule, is necessarily less serious than other forms of murder. See R v Mills (CCA unreported 3 April 1995).
Regardless of what legal ingredients provided the basis for the applicant’s conviction, what remains of critical importance for sentencing purposes is an assessment of what act or acts he performed or omitted to perform in furthering the criminal enterprise and the consequences which relevantly flowed from that conduct.
In order to make that assessment, it is necessary to recall the context in which this offence occurred. The applicant gave evidence at the trial during the course of which, as counsel who appeared on his behalf in this court acknowledged, he had made a number of concessions concerning his complicity in various aspects of the overall enterprise. The applicant gave evidence the he had had lost about $3,500 whilst gambling at the tavern in the period shortly before the abortive robbery on 14 May. The applicant said that he had taken the money from the till even though he was not supposed to borrow money for the purpose of gambling.
The applicant said that he and Lo had had a conversation in the early hours of 13 May in which Lo had also asked him for a loan of $4,000. He said that he had then informed Lo that he had gambled away the $3,500. Thereafter, he said, Lo had discussed with him the plan to rob the premises. He said that Lo had promised him $15,000 for his assistance in facilitating the execution of the plan. The plan involved his turning a “blind eye” when Lo and his companion entered the premises to commit the robbery.
The applicant and Lo continued to maintain regular telephone and face to face contact after the failed robbery attempt. Indeed the applicant had initially believed that the robbery was to be rescheduled for the following day although it did not go ahead at that time either.
Eventually the applicant repaid the money which he had taken. This, he said, had eased his financial pressures. He said that he had informed Lo that the robbery attempt had been captured on the closed circuit television system and that he did not wish to continue his involvement in the scheme. Nevertheless the applicant said that Lo had told him that he still intended to proceed with it. Although the applicant expressed concerns about his doing so, he said that “[Lo] assure me that he can continue, he got the better plan to do it”.
As the trial judge found, the applicant was, initially at least, a willing participant in the enterprise to rob the premises. He was aware that it would involve two offenders who were to be armed with an offensive weapon. He was aware that in order that the robbery could be carried out a metal pole was going to be used with sufficient force as would render the victim unconscious. He no doubt would also have appreciated, given that the deceased was a large man, that very considerable force would have been required to achieve that objective. He was also aware, as the trial judge found, of the possibility that the victim would, as a result of the blow or blows which were in contemplation, be wounded.
The applicant was undoubtedly, by reason of his position of responsibility in the business, very familiar with the layout of the premises and the work practices of the deceased who was ultimately responsible for the takings of the business. His knowledge of the tavern’s business was no doubt important to the success of the overall plan. Indeed as the trial judge remarked, a significant aggravating feature of the applicant’s conduct in participating in this offence was the fact that in doing so he had seriously abused the position of trust in which he had been placed by his employer.
The applicant’s motivation for involving himself in this offence was the financial pressure that he was under at the time. He conceded in his evidence that “greed sort of overtook the whole thing”. He said that he had wanted to use the proceeds of the robbery to cover the gambling debt which he had incurred to his employer in the hope that the debt would not be discovered. Understandably he was fearful of losing his job if it were to be discovered. His conduct was that of a man acting out of desperation.
The applicant, on his own admission, remained aware of the fact that Lo still intended to carry out the robbery. The trial judge found that the applicant “attempted to dissuade Lo from proceeding by saying that he would be identified from the video security and would be caught”. His Honour also indicated that he was prepared to accept the applicant’s evidence “about attempting to withdraw from his involvement in the crime”. Accordingly his culpability is to be clearly differentiated from that of a person who continues to actively encourage the commission of an offence. Ultimately however the applicant did nothing of any material significance to prevent the commission of the robbery on 22 May notwithstanding that he well knew the circumstances in which it was to be carried out. He did not notify the deceased of what was in prospect for him and nor did he inform the police. His criminality is also to be measured to some extent by reference to the tragic consequences which flowed from his failure to do what he could to prevent the planned robbery from going ahead.
Nonetheless it is apparent that the trial judge has drawn a sharp distinction between the sentence which was imposed upon the applicant (namely one of 14 years) and those imposed upon his co-offenders Lo (30 years before the discount for factors which are absent in the applicant’s case) and Ng (35 years) respectively. Without passing any comment about the appropriateness of either of those sentences, what that differentiation demonstrates is that the applicant’s sentence has been significantly ameliorated to take into account in his favour the various matters which his Honour concluded had reduced his culpability for this very serious offence. It is accordingly clear that the trial judge imposed a sentence which had the effect of tempering the objective gravity of the applicant’s conduct by reason of his efforts to withdraw from the enterprise albeit that they were ultimately ineffective. See R v Wright (CCA unreported 8 July 1997).
In passing sentence, his Honour no doubt had regard to a submission made on the applicant’s behalf during the course of the sentence proceedings. The following exchange appears in the transcript:
HIGGINS:  This is a matter where your Honour could impose a sentence on an accessory before the fact which is less than that received by one of the principals that being Mr Lo, despite a 40 per cent discount that he received for his assistance, age and cooperation generally with the police and plea of guilty that he received on sentence such that the total term for count 3 and 5 is capable of earning less than the 18 years imposed on Mr Lo.
…
HIS HONOUR:     You are saying that the starting point for Mr Lo which is obvious when you do the maths is 30 years. The starting point for your client should be considerably less because his actual intent was less culpable than that of Lo.
HIGGINS:  Yes and one step further: not only considerably less but would not be more than 18 for its total term, being the total term for Lo. The level of culpability of Lew could not be greater than that of Lo even with a 40 per cent discount for all those various features.
The trial judge, as I have said, imposed an effective overall sentence of 15 years and thus appears, in the exercise of his discretion, to have acceded to counsel’s submission concerning the appropriate sentence.
This was, on any view of the matter, a very difficult sentencing exercise. His Honour was confronted with a highly unusual set of circumstances and there were a number of factors to be carefully weighed in the balance. Prominent amongst those considerations was the need to properly reflect in the sentence to be imposed, recognition of the fact that the applicant had on the one hand endeavoured to withdraw from the common enterprise but on the other had ultimately been ineffective in preventing it from being carried out.
In all the circumstances, I am not persuaded that the challenge to the head sentence has been made good. The trial judge however imposed a non-parole period which was in excess of the statutory proportion of 75% provided for by s 44(2) of the Crimes (Sentencing Procedure) Act 1999. Indeed the effective overall non-parole period imposed upon the applicant was 80% of the total sentence. It is to be noted that the trial judge imposed an effective overall non-parole period of 75% in respect of the co-offender Ng having determined in his case that there were no “special circumstances” such as to warrant a departure from the statutory proportion. His Honour does not however appear to have considered this question in respect of the current applicant. Certainly his Honour did not indicate why he had chosen to impose a non-parole period which exceeded the statutory proportion. In failing to do so, I am of the view that his Honour has inadvertently fallen into error. In those circumstances I have come to the view that the court should intervene and substitute a shorter non-parole period. I am of the view that it is appropriate to make a finding of “special circumstances” in the applicant’s case by reason of the accumulation of the sentences which were imposed upon him. The adjustment will however be a modest one. In arriving at that conclusion, I have borne in mind the principles that govern the imposition of an appropriate non-parole period. See R v Simpson (2001) 53 NSWLR 704.
I would propose the following orders:
1Allow appeal against conviction for being an accessory before the fact to armed robbery on 22 May 2001.
2             Quash the conviction and sentence in relation thereto.
3Refuse leave to appeal against the sentence imposed for being an accessory before the fact to attempted armed robbery on 14 May 2001.
4Grant leave to appeal against the sentence imposed for being an accessory before the fact to murder.
5             Allow appeal (in part).
6             Confirm the total sentence but quash the non-parole period.
7In lieu thereof fix a non-parole period of 10 years to commence on 5 July 2002 and to expire on 4 July 2012 at which time the applicant will be eligible for release to parole. The balance of the term of the sentence is thus 4 years. The sentence itself will expire on 4 July 2016.

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LAST UPDATED: 21/09/2004

[2004] NSWCCA 320

21 September 2004