Regina v Tan

[2007] NSWSC 684

CITATION:	Regina v Tan [2007] NSWSC 684
HEARING DATE(S):	28 May 2007
JUDGMENT DATE :	29 June 2007
JUDGMENT OF:	Price J at 1
DECISION:	Sentenced to imprisonment for life.
CATCHWORDS:	Criminal Practice and Procedure - sentencing - murder - joint criminal enterprise to inflict grievious bodily harm - contract attack - extreme culpability - worst category of offence of murder - life sentence.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 s 3A, s 9, s 21A, s 61(1) Crimes Act 1900 s 19A(2), s 19A(3), Crimes Act 1914 (Cth) Firearms Act 1996
CASES CITED:	Gas v The Queen (2004) 217 CLR 198 R v Harris (2000) 50 NSWLR 409 R v Isaacs (1997) 41 NSWLR 374 R v Merritt 146 A Crim R 309 R v Nelson (unreported NSWCCA 25 June 1996) R v Ngo (2001) 125 A Crim R 495 R v Olbrich (1999) 199 CLR 270 Regina v Hillsley [2006] NSWCCA 312
PARTIES:	Regina Yonky Tan
FILE NUMBER(S):	SC 2006/882
COUNSEL:	Mr Maxwell QC - Crown Mr Ierace SC - Prisoner

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

PRICE J

29 June 2007

2006/882 Regina v Yonky TAN

Remarks on Sentence

1 His Honour: On 1 December 2006 the prisoner Yonky Tan was convicted by a jury of a charge of murdering the deceased Dominic Li at Sydney on 2 January 2003.

2 It is my duty to determine the facts relevant to sentencing the prisoner. My view of the facts must be consistent with the verdict of the jury and the findings of fact I make against the prisoner must be arrived at beyond reasonable doubt: see R v Isaacs (1997) 41 NSWLR 374 at 378 – 379.

3 At about 7.30am on 13 December 2002 the deceased was savagely attacked by two men on the porch of his home at Concord where he lived with his wife and 14-year-old son. As a consequence he died on 2 January 2003.

4 It was not the Crown case that the deceased’s attackers had intended to murder him. The Crown contended that a joint criminal enterprise existed to inflict grievous bodily harm on the deceased, that the prisoner and the co-accused Richard Nimmo and Maua Sua were participants in that joint criminal enterprise, as were Emil Chang, [AB] and [E]. The accused Nimmo and Sua were alleged to be the deceased’s attackers on 13 December 2002. The jury found Nimmo and Sua not guilty. They were not satisfied beyond reasonable doubt of the identity of the two assailants.

5 The Crown case against the prisoner depended to a significant extent on the evidence of [AB] who had earlier pleaded guilty to a charge of being an accessory before the fact to the murder. On sentence he was given a 25 per cent discount for undertaking to give evidence in the trial. [AB]’s evidence included accounts of a telephone conversation between the accused Sua and the prisoner during which Sua agreed to carry out the attack for $10,000.00, and of a meeting at Aurora Drive Tregear which Sua, [AB] and the prisoner attended. He also recounted a telephone conversation between Sua and the prisoner on the afternoon of the day of the attack during which Sua told the prisoner that “the job” had been done.

6 A difficulty for the Crown in the cases against Sua and Nimmo was the evidence of identification given by the deceased’s wife and Mr Edema, a neighbour, which did not match these two accused. The acquittal of Sua and Nimmo showed that the jury was not prepared to accept all of the evidence of [AB] beyond reasonable doubt.

7 Considerations of identification formed no part of the jury’s deliberations in the case of the prisoner. There was a large amount of evidence in the Crown case against him which provided independent support for [AB]’s evidence which included emails, records of telephone calls and SMS messages, telephone intercepts and the evidence of Phillip Ma and Shirley Pang.

8 In the case of the prisoner, the issue at trial was whether he had procured the attack on the deceased. The prisoner in evidence denied that he had done so. It is clear from the jury’s verdict that they rejected his evidence. My findings of fact are consistent with the Crown case. I find the prisoner’s evidence to be largely untruthful.

9 The deceased was a Sydney accountant. The prisoner and his wife had been his clients. In about April 2002 the deceased introduced his brother-in-law Phillip Ma to the prisoner who asked him to gamble money for him for which Ma was to receive a commission of seven per cent. The prisoner had access to large amounts of cash in which Emil Chang had an interest. The purpose in engaging Ma was to have him launder the cash by using it to gamble at the Melbourne Casino. Ma met with the prisoner about six times and was given a total of about $780,000.00 in cash. Ma’s efforts at the baccarat table failed dismally and about $500,000.00 of the cash he received was lost. The deceased was not involved in the money laundering nor in Ma’s loss of the money.

10 The Crown has invited me to find that the money given to Ma came from the sale of prohibited drugs. On the evidence given in the trial I am unable to make such a finding. I am satisfied beyond reasonable doubt that the only rational inference to be drawn from the extent of the cash available to the prisoner, his testimony at trial of the businesses in which he was involved and his motive in engaging Ma is that the money was unlawfully obtained.

11 Ma signed an I.O.U dated 21 July 2002 in which he acknowledged that he had borrowed $513,363.00 from the prisoner and would return the money within three months, which he was unable to do. At a meeting in the front of Star City Cafe, the prisoner told him to pay the money back within two weeks and Ma’s photograph was taken by the prisoner’s wife. The prisoner placed pressure on the deceased to get the money back which Ma owed. During a meeting between Ma and the deceased in about September 2002, the debt was discussed. The deceased told Ma to telephone the prisoner as the prisoner had been ringing him up hassling him. Ma rang the prisoner telling him he was unable to pay. The prisoner said he didn’t care and he knew many people who could shoot him. Threatening SMS messages were received by Ma and two copies of the photograph taken by the prisoner’s wife of Ma with the words “dead or alive” upon them were placed on the loading dock wall of Betta Electrical where Ma sometimes worked. Ma went into hiding.

12 Chang and the prisoner became increasingly frustrated and angry that Ma would not repay the money. A plan was conceived by Chang to have the deceased attacked to flush Ma out of hiding which the prisoner embraced. They agreed that hydrochloric acid would be used to disfigure the deceased’s face.

13 The prisoner rang [AB] saying “I need you to do something for me” which was “to throw acid on this man’s face”. He told [AB] that the man was going to “rip” him off. When [AB] declined to do so, the prisoner asked if he knew anyone who would be interested in doing it. In a further telephone conversation with [AB], the prisoner made an offer of $6,000 for someone to carry out the assault.

14 By an SMS message, the prisoner sent [AB] the deceased’s address. He provided him with a camcorder containing a video of the deceased’s home and gave him $10,000.00 which by then had been agreed upon for the attack. He advised [AB] that it was better to give the gun to the assailants because the deceased “is an expert in Kung Fu.” The prisoner sent [AB] a text message with the instruction that he wanted “the guy to look like a pig” and made enquiries of him as to when the attack was to happen. [AB] was told by the prisoner that the best time for the attackers to go to the deceased’s home was early in the morning before he went to work.

15 Three persons were contracted by [AB] to attack the deceased. [E] was one of them. His role was to provide and drive the car which took the attackers to the home of the deceased. One thousand dollars was to be his share for his participation in the crime.

16 As I have mentioned, the attack took place at about 7.30am on 13 December 2002. [E] had earlier driven with the two men to the deceased’s home. Whilst driving around the block, the deceased’s house was identified. Leaving the engine running, [E] parked the car around the corner from the home and the two assailants got out. [E] remained seated in the vehicle. One of the assailants knocked on the front door carrying a package which had “Dominic Li” on it and pretended to be a courier. The deceased’s wife answered the knocking and called her husband who came to the door. The deceased had been brought to the front door of his home by the ruse of a parcel delivery. When the screen door was opened, one of the assailants pulled him by his collar and tie onto the front verandah and forced him into a kneeling position. The other attacker appeared pointing a pistol at the deceased’s wife’s head forcing her to kneel. Both men were armed with pistols. One of them kicked the deceased and struck him on the head with a pistol. The other poured hydrochloric acid from a bottle onto the deceased’s face and body which he inhaled and ingested. The assailants decamped to [E]’s vehicle and were driven away.

17 Having been woken by his mother’s screaming, the deceased’s son ran to the kitchen where he saw her in distress. He then saw his father lying on his back on the verandah. The deceased was breathing deeply, his lips were whitish in colour and there was blood near his head. The son noticed an overwhelming pungent chemical odour. In an attempt to wash the acid off his father, he poured a partly filled bucket of water over him. The deceased’s wife had telephoned the ambulance which arrived a short time later. Ambulance officer Harris described seeing a yellow-type substance steaming on the front verandah.

18 Some yellow liquid taken from the verandah steps was analysed by Ms Katarina Burda, a senior analyst with the Physical Evidence Laboratory of the Division of Analytical Laboratories and was found to contain a strong solution of hydrochloric acid. The deceased’s socks, shirt and singlet were examined and were found to be stained and damaged by contact with a strong solution of hydrochloric acid, as were a number of pieces of paper which had been found in his pockets.

19 A strong solution of hydrochloric acid had been used in the attack to inflict hideous injuries upon the deceased.

20 The deceased was conveyed by ambulance to Concord Hospital. During the journey, he was complaining that his face was burning and his eyes and face were flushed continuously by the ambulance officer with a sodium chloride solution. A nebuliser mask assisted his breathing. He had sustained extensive burns to the face, lips, back of the throat and upper back from the acid. He was suffering respiratory distress. There were three scalp lacerations. He had bleeding over the brain and cerebral contusions. The blow to his head by the gun had fractured his skull. The deceased’s respiratory, lung, renal and kidney functions continued to deteriorate and he died on the afternoon of 2 January 2003. The inhalation and ingestion of the acid by the deceased had caused multiple organ failure.

21 Both the Crown and Mr Ierace SC acknowledge that I should have some regard to the sentences imposed on [E] and [AB]. It is also necessary to assess the prisoner’s degree of criminality by defining his role and the level of his actual participation in the criminal enterprise: R v Olbrich (1999) 199 CLR 270.

22 Studdert J who dealt with [E] considered that a head sentence of imprisonment for 32 years was appropriate for his participation in the murder. A scheduled offence of supplying the prohibited drug methylamphetamine was taken into account on sentence. The head sentence was reduced by a total of 50 per cent because of his plea of guilty and for his undertaking to give evidence in the trial. As a consequence of the discounts [E] was sentenced to a term of 16 years imprisonment with a non-parole period of 12 years. I have been informed that his appeal against the sentence has been dismissed.

23 [AB] pleaded guilty to an indictment charging him with the offence of being an accessory before the fact to the murder. A charge of possession of a firearm contrary to the Firearms Act 1996 (NSW) on a Form 1 was taken into account on sentence. Grove J who sentenced [AB] assessed the appropriate head sentence for the crime, taking into account the firearm matter, was 36 years. The head sentence was reduced by 50 per cent for his plea of guilty and his undertaking to give evidence in the trial. As a consequence of the discounts, [AB] was sentenced to a term of 18 years imprisonment with a non-parole period of 13 years and 6 months. Mention was made by Mr Ierace SC that [AB] may seek leave to appeal against the severity of the sentence.

24 [E]’s culpability for the murder is substantially less than that of the prisoner. He was engaged by [AB] to provide the vehicle and to be the driver on the night before the attack. He was neither engaged in its planning nor was he one of the assailants.

25 [AB]’s culpability is greater than [E]’s. He recruited the assailants and provided a pistol which was used in the attack. He held the money which was to be paid to the attackers and recruited [E]. [AB] advised one of the assailants where acid could be purchased and suggested that they should be disguised at the time of the attack. [AB] informed the prisoner that the attack had taken place and paid the assailants.

26 The culpability of the prisoner, however, is greater than [AB]’s. Without the prisoner, the crime would not have been committed. This was an attack which has been contracted at his behest for which he was prepared to pay $10,000.00. [AB] understood, as a result of the prisoner’s deception, that the person to be attacked was intending to defraud the prisoner. Although [AB] declined the offer to physically commit the crime, the prisoner persisted. It was he who provided the cruel instructions to [AB] that hydrochloric acid was to be used and that the deceased was to be made to look like a pig. He advised [AB] to give the attackers the gun. The deceased was a man he knew had no involvement in the loss of the money. The prisoner’s active participation in the planning of the attack included the provision to [AB] of the deceased’s home address, a video of the home and the time of day he was to be attacked.

27 [AB] was the middleman in the conspiracy to inflict grievous bodily harm upon the deceased whereas the prisoner was with Chang one the principals.

28 I will refer to the prisoner’s criminal history at a later stage but observe that [AB]’s prior criminal history includes offences more serious than the prisoner’s history of criminal offending before the murder. The prisoner’s convictions on 16 December 2005 are substantially more serious than the offence of on going supply of prohibited drugs for which [AB] was convicted after the murder.

29 The plan to attack the deceased to flush out Ma, as I have mentioned, was originated by Chang as was the notion to use hydrochloric acid. The prisoner without question implemented the plan and ensured that the attack took place. He knew that the acid would inflict upon the intended victim intense pain.

30 The intention was to send a terrifying message to Ma which would persuade him to come out of hiding. I am not satisfied that another purpose of the attack, as the Crown contends, was to send a message not only to Ma but to others who might renege on drug deals.

31 This is a terrible crime. It is an act of barbarity to contract others to grotesquely disfigure a man against whom there was no grievance solely to provide an example to another. There is no general principle that the culpability of a procurer is less than the assailant: see Gas v The Queen [2004] 217 CLR 198 at 23. In this case the culpability of the prisoner is at least equal to, if not higher than, in my view, the two assailants who carried out the attack in accordance with their instructions.

32 There is little in the way of mitigation. The prisoner’s callousness for the murder was disclosed during the lawfully intercepted telephone conversation at 18:49 on 29 January 2003. I accept Mr Sukmana’s translation of the word “babi” as the Indonesian for “pig”. I have no doubt that the prisoner was referring to the deceased by the use of that word. No remorse has been shown for his criminality. Consistent with his plea, the prisoner has not expressed contrition for the offence. The failure to show remorse or to express contrition is not, however, a justification for increasing the prisoner’s sentence.

33 The prisoner’s criminal history does not reveal any offences involving violence. The first offence is one of larceny as a servant for which he was convicted and fined in 1988. What follows is a long “gap” in offending. On 21 March 2002, he was convicted for goods in custody and on 23 April 2002 bribery of a Commonwealth officer. For the former offence, the prisoner was placed on a 2 year bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 [the Crimes (SP) Act]. For the latter offence, it appears he was required to enter a recognisance for 2 years under the provisions of the Crimes Act 1914 (Cth). Whilst the prisoner was subject to these bonds, the murder was committed. The commission of the murder whilst the prisoner was on conditional liberty is an aggravating factor.

34 On 16 December 2005, for the offences of supplying ecstacy and two counts of supplying a large commercial quantity of that prohibited drug, the prisoner was sentenced in the District Court to a total overall effective sentence of 24 years imprisonment with a non-parole period of 18 years. He is eligible for release on parole on 6 September 2022. He was charged with the offences on 17 March 2003. These offences are not taken into account as matters of aggravation but are considered for the purpose of deciding whether the prisoner is deserving of leniency. I have been informed that the prisoner has applied for leave to appeal against these sentences.

35 Although the prisoner’s criminal offending does not involve violence, I conclude that his record does not entitle him to leniency.

36 The prisoner’s subjective circumstances are drawn from his testimony during the trial and from the history given to Anita Duffy. Ms Duffy’s report is dated 21 May 2007. The prisoner was born in Bandung Western Java on 10 November 1964 and is now aged 42 years. At the time of the murder, he was 38 years old. After finishing high school in Bandung, he completed a hospitality related course in Djakarta. He migrated to Australia in 1985 and was employed at the Addis factory in Sydney for two or three years. Around 1988 he went to work at Schwarzkopf as a process worker and advanced to eventually become a purchasing officer. During this time the firm sent him to Sydney TAFE to study a Packaging Technology Diploma, a part time course over two years, which he completed. He remained in that employment for seven years until the company was sold and he was retrenched in 1997.

37 The prisoner then commenced three months study through UTS Law School to obtain a migration agent license in 1998. He formed Ausvisa Pty Ltd through which he conducted a migration agency and education consultancy for overseas students. The business although initially successful slowed after the advent of the internet.

38 The prisoner had married in 1992 and has three sons, one aged 13 and twins aged 9. Around 2001, the prisoner and his wife opened the Warung Bandung restaurant which they operated for about six months. His wife and mother cooked and the prisoner worked in the restaurant which was next door to his home at Kingsford.

39 It is evident, however, from the remarks on sentence of Blackmore DCJ on 16 December 2005 that the prisoner had been during this time the principal in a highly organised drug sale and distribution network: see exhibit B ROS at 17.

40 In 2002 the prisoner with his family moved to the Central Coast where he lived until his arrest on 17 March 2003 for the offences of supply of prohibited drugs. He has been in custody since that time. He has worked hard whilst in custody and has gained the trust and recognition of the prison officers. He has been, it is clear from the tendered Corrective Services material, a model prisoner and is currently the head gardener at the MRRC. He is in good health and copes with his distress of being in custody by meditating. The prisoner has, I accept, the support of his mother, wife and children.

41 The prisoner’s extended periods of stable employment, his positive efforts whilst in custody and the family support provide a basis for a finding that he has prospects of rehabilitation. Indeed the prisoner’s exemplary behaviour whilst in custody provides some assurance that upon his release he will not pose a substantial risk to the community. His pitilessness for the ghastly injuries inflicted upon the deceased, however, does not enable me to form the view that there is no risk of him offending again if his interests are at stake.

42 The maximum sentence for the crime of murder is imprisonment for life. A person sentenced to imprisonment for life is to serve that sentence for the term of his natural life: s 19A(2) of the Crimes Act 1900. Section 19A(3) provides that nothing in s 19A affects the operation of s 21(1) of the Crimes (SP) Act which authorises the passing of a lesser sentence than imprisonment for life. As the murder was committed on 2 January 2003 Division 1A – standard non-parole periods of the Crimes (SP) Act has no application to the present sentence. Sections 3A and 21A of the Crimes (SP) Act, however, apply.

43 Section 61(1) of the Crimes (SP) Act provides:

“A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.”

44 The level of culpability of the prisoner in the commission of the offence and whether the case is one calling for a life sentence in the terms of s 61(1), is first to be considered, and if so, whether in the exercise of the discretion conferred by s 21(1) the subjective features relating to the prisoner justify a lesser sentence: see R v Harris (2000) 50 NSWLR 409, R v Ngo (2001) 125 A Crim R 495.

45 The primary focus of s 61(1) is an assessment of how extreme the prisoner’s culpability is: see R v Meritt 146 A Crim R 309 [at 52].

46 The prisoner did not procure the attack so that the deceased would be killed. It was his intention to cause grievous bodily harm. A contract murder done with the intent to cause grievous bodily harm generally attracts a lesser sentence than a contract murder done with the intent to kill. However, there will be cases where a murder which results from a contract to inflict grievous bodily harm reflects similar criminality to a murder which was contracted with the intention to kill. In Regina v Hillsley [2006] NSWCCA 312 the Court said [at 16]:

“16. Although it will generally be the case that an intention to cause grievous bodily harm is less culpable to a greater or lesser degree than an intention to kill, this is not always the case. In R v Nelson (unreported, NSWCCA 25 June 1996) McInerney J said (Gleeson CJ and Studdert J agreeing) that “there are circumstances where an intention to inflict grievous bodily harm could reflect similar criminality to other cases involving an intention to kill”; see also R v Wilson [2005] NSWCCA [112].”

47 In order to terrify Ma, an attack involving extreme cruelty was planned and procured by the prisoner upon the victim who had the misfortune to be Ma’s brother-in-law. This was a contract attack. He was to be attacked at his home at a time when his wife, Ma’s sister, was likely to be present. Acid was to be used not only to hideously disfigure him but also to inflict awful pain. Acting upon their instructions the assailants doused the deceased with hydrochloric acid on the verandah of his home. He was hit with a gun. As a result the deceased died a slow and horrible death. In these circumstances, although this was not a contract murder procured with the intent to kill, the culpability of the prisoner is not reduced nor is the gravity of the offence. The prisoner’s level of culpability is such that the prisoner’s crime, in my view, falls within the worst category of the offence of murder.

48 Contract attacks are abhorrent. The community interest in community protection and deterrence requires a sentence which may deter other people from even considering using a contract attack to inflict terrible injuries upon an innocent person to terrorise another.

49 The prisoner, as I have recognised, has the support of his family and has been an exemplary prisoner. He has been a hard and capable worker. I have taken all these matters into account but, for the reasons already given, I am satisfied that the level of the prisoner’s culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of a sentence of life imprisonment and the subjective features must be disregarded.

50 A victim impact statement from the deceased’s wife has been received and read by me. The contents of the statement cannot be used by me to increase the prisoner’s sentence. I acknowledge the grief and distress suffered by the deceased’s wife and son and express on the community’s behalf its sympathy and compassion for them.

51 Yonky Tan for the murder of Dominic Li, I sentence you to imprisonment for life.

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