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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Regina v Tan

Details

AGLC: Regina v Tan [2007] NSWSC 684
Case: [2007] NSWSC 684
Decision Date: 29 June 2007

CaseChat Overview and Summary

Regina v Tan was a case heard in the higher courts of Australia, involving a dispute regarding the sentencing of an individual convicted of murder. The defendant, Tan, was found guilty of participating in a joint criminal enterprise that resulted in the infliction of grievous bodily harm, culminating in a fatal attack. The case centred on the determination of the appropriate sentence for Tan's role in the crime, specifically whether it warranted the most severe category of murder and the imposition of a life sentence.

The legal issues before the court encompassed the assessment of culpability and the classification of the offence under the criminal code. Key considerations included the degree of involvement and intent in the joint criminal enterprise, the nature of the attack, and the applicability of the worst category of murder. The court had to weigh the circumstances surrounding the crime to determine the appropriate penalty, balancing the gravity of the offence with the individual's role within the joint criminal enterprise.

In rendering its decision, the court meticulously examined the evidence and arguments presented. It concluded that Tan's actions demonstrated extreme culpability, warranting the classification of the offence as the worst category of murder. Given the severity of the crime and the defendant's significant involvement, the court deemed a life sentence to be the appropriate punishment. The reasoning underscored the necessity to impose a sentence that reflected the heinous nature of the crime and the defendant's substantial role within the joint criminal enterprise.

The final orders of the court confirmed that Tan was to be sentenced to life imprisonment, reflecting the severity of his crime and the extreme culpability demonstrated. This decision underscored the court's commitment to ensuring that justice is served in cases of grave offences, particularly those involving joint criminal enterprises.

Orders