Tan v R - [2010] NSWCCA 207

No judgment structure available for this case.

New South Wales
Court of Criminal Appeal

CITATION: TAN v R [2010] NSWCCA 207

HEARING DATE(S): 4 March 2010

JUDGMENT DATE:
16 September 2010

JUDGMENT OF: Giles JA at 1; Hulme J at 3; Latham J at 77

DECISION:
In the case of the appeal against the sentences imposed by Blackmore SC DCJ are:-
1. Grant leave appeal.
2. Allow the appeal.
3. Quash the sentences by Blackmore SC DCJ.
4. Sentence the Applicant in respect of the charge of supplying 50.7 grams of 3,4 methylenedioxymethyl-amphetamine to imprisonment for a non-parole period of 4 years commencing on 7 August 2004 together with a further term of 2 years commencing on 7 August 2008.
5. Sentence the Applicant in respect of the charge of supplying a large commercial quantity viz 1038.7 grams of 3,4 methylenedioxymethyl-amphetamine to imprisonment for a non-parole period of 9 years commencing on 7 August 2004 together with a further term of 3 years commencing on 7 August 2013.
6. Sentence the Applicant in respect of the charge of supplying a large commercial quantity viz 25.64477 kgs of 3,4 methylenedioxymethyl-amphetamine to imprisonment for a non-parole period of 18 years commencing on 7 August 2004 together with a further term of 6 years commencing on 7 August 2022.
In the case of the appeal against the sentence imposed by Price J are:-
1. Grant leave to appeal.
2. Dismiss the appeal.

PARTIES: Yonky Irvin TAN
Regina

FILE NUMBER(S): CCA 2005/4829; 2006/2161

COUNSEL: TA Game SC with D Barrow (Applicant)
D Woodburne SC (Respondent)

SOLICITORS: Steve O'Connor (Legal Aid Commission)
S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court/Supreme Court

LOWER COURT JUDICIAL OFFICER: Blackmore SC DCJ/Price J

- 16 -

2005/4829
2006/2161

GILES JA
HULME J
LATHAM J

Thursday 16 September 2010

Yonky Irvin TAN v R

Judgment

1 GILES JA: Subject to what follows, I agree with RS Hulme J and with the orders his Honour proposes.

2 I do not see conflict between Veen v The Queen (No 2) (1988) 164 CL 465 and R v Twala (Badgery-Parker J, 4 November 1994, unreported). That nothing mitigates the seriousness of the particular crime in consistent with ability to conjure up a case of greater heinousness.

: Yonky Irvin Tan seeks leave to appeal against sentences imposed on him by two Judges. On 16 December 2005, Blackmore SC DCJ sentenced the Applicant in respect of three charges. They, and the sentences imposed, were:-

(i) On 20 March 2002 supplying a prohibited drug, namely, 3,4 methylenedioxymethylamphetamine (hereinafter referred to as “MDMA”) in the amount of 50.7 grams – imprisonment for 6 years including a non-parole period of 4 years, both periods commencing on 7 September 2004.

(ii) On 20 March 2002 supplying a large commercial quantity, viz. 1038.7 grams of MDMA – imprisonment for 12 years including a non-parole period of 9 years, both periods commencing on 7 September 2004.

(iii) On 20 March 2002 supplying a large commercial quantity, viz. 25.64477 kilograms of MDMA – imprisonment for 24 years including a non-parole period of 18 years, both periods commencing on 7 September 2004.

4 The second sentence was imposed on 29 June 2007 by Price J. It was for an offence of murder and the Applicant was sentenced to imprisonment for life.

5 Obviously if the latter sentence stands, then the sentences imposed upon the drug offences become academic. However, as the Court heard full argument in respect of those earlier sentences, or more precisely the third of them, it is appropriate to deal with the argument so presented. The Applicant had been convicted of the three charges in a trial conducted before Dodd DCJ but his Honour retired before sentence. The facts to be derived from the Crown case as presented and the jury’s verdict were reduced to an agreed form in writing and it was on that basis that the Applicant was sentenced.

6 In consequence of information received, the police commenced surveillance of a unit occupied by a Marcel The. On 20 March 2002 he was observed to drive out of a car park at the premises. His car was stopped and searched and in the car the police found some 2000 ecstasy tablets weighing 1038.7 grams. Mr The was arrested and thereafter his home unit was searched. In the course of that search police found a number of other containers of ecstasy tablets which totalled the 25 kilograms which were the subject of the third charge against the Applicant. Also in the unit was a quantity of cash, some small sets of weighing scales and photographs of a pill press.

7 On the following day the Applicant was stopped while driving and a police search of his vehicle revealed a suitcase containing some $165,000. In the course of an interview he said that he was minding the money for Mr The.

8 The police then executed a search warrant at the Applicant’s premises finding, inter alia, a form of agreement whereby the Applicant leased the garage at his premises to Mr The and a set of keys to a safety deposit box which, when searched, was found to contain, inter alia, some $98,000 cash. The garage of the premises was searched and samples and scrapings from a number of items in the garage were found to contain approximately 50.7 grams of MDA, this being the subject of the first charge against the Applicant.

9 Some months later the hard drive of the Applicant’s computer which had been located during the search in March was analysed and it appeared that the lease agreement purportedly dated 10 October 2001 had in fact been created on the morning of 21 March 2002.

10 Later again, Mr The agreed to give evidence against the Applicant and in due course did so. It is unnecessary to detail this for Blackmore SC DCJ made findings which were not the subject of challenge in the appeal and which included the following:-

“To my mind the facts demonstrate that the offender was the principal in a highly organised drug sale and distribution network. He was involved in all aspects of the product of ecstasy tablets from the base material. Further, there is evidence that the offender possessed huge sums of cash money, consistent with him having received the proceeds of drugs. No obvious or believable explanation is available for his possession for such large sums of money. The organisation involved here is such that the offence should be regarded as aggravated in the offender’s case.”

11 Upon the basis that the Crown did not urge such a finding, that the offender had no similar prior criminal antecedents and that the drugs were found before distribution, his Honour concluded that the case did not fall within the most serious category. I would myself not take the view that singularly or in combination these matters removed the case from the most serious category but am content to proceed on that assumption for the purposes of this appeal. His Honour also found that the Applicant’s antecedents entitled him to be treated with some leniency on sentence. Putting aside a charge of goods in custody which may well have related to the moneys found by police in the boot of the Applicant’s car at the time of his arrest, those antecedents consisted of only a charge of larceny as a servant in 1998 and bribing a Commonwealth Police Officer in 2000. For none of these offences had the Applicant been sentenced to imprisonment.

12 His Honour recounted that the Applicant was born in West Java in November 1964, had arrived in Australia with his family in 1985, and married in 1992. His Honour detailed the Applicant’s history of employment which would seem to have been consistent and at times entrepreneurial. His Honour noted that custodial records commented positively on the Applicant’s work ethic.

13 Later his Honour observed that:-

“Whilst there is some suggestion that the offender has used drugs on occasions, I note that he denied the use of drugs in the psychologist’s report. It would appear that his involvement in this offence was simply to obtain money.

The offender has shown no contrition.”

14 His Honour also observed that it was difficult to express a view as to the Applicant’s prospects of rehabilitation but that the three offences could be viewed as part of the same criminal operation and therefore that each of the sentences should be served concurrently.

15 Two further passages in his Honour’s remarks provided the basis for one of the arguments advanced on the Applicant’s behalf and it is accordingly appropriate to quote them.

Regina v Nai Poon

16 Later after observing that the statistics maintained by the Judicial Commission relating to ecstasy were so small in number as to provide no assistance, his Honour continued:-

R v Huynh

R v Lee

17 Pursuant to the Drug Misuse and Trafficking Act 1985 (NSW), a large commercial quantity of ecstasy is 0.5 of a kilogram and of heroin 1 kilogram. The maximum penalty provided for supplying such a quantity is life imprisonment and a fine of 5000 penalty units. At the time Blackmore SC DCJ sentenced the Applicant, there was no standard non-parole period provided.

18 Exception was taken to his Honour’s remark that, “Parliament regards possession of ecstasy as a more serious offence than possession of a similar quantity of heroin”. In the context of his Honour’s references to quantity and R v Nai Poon, the statement is demonstrably correct. That case made clear that, insofar as quantities were concerned, the seriousness of an offence was to be judged by what Parliament had provided rather than by some general concepts of which drugs were worse than others. See also Adams v R [2008] HCA 15; (2008) 234 CLR 143. The minimum quantities of heroin and ecstasy that define the bottom of the commercial and large commercial quantities are, respectively .125 kilogram and .5 kilogram in the case of ecstasy and 250 grams and 1 kilogram in the case of heroin.

19 Otherwise Counsel appearing for the Applicant sought to support his appeal by reference to the Judicial Commission statistics which now embrace significantly more cases than when Blackmore SC DCJ was dealing with the matter and by referring to a number of other cases. It was pointed out that the sentence imposed on the Applicant seems to be the highest ever imposed under the State legislation.

20 In R v Nai Poon, with the concurrence of the other members of the Court, I responded to an identical argument with the remark:-

ex tempore

R v Hayes

“… there is a misconception that the upper limit of the range of sentence is that of the statistical publications of sentence information by the Judicial Commission…

R v Hofer

21 Counsel for the Applicant sought to support the appeal by reference to a number of prior decisions. Because of the differences in roles, quantities or other circumstances, none of those decisions lead me to the view that the sentence imposed in this case in respect of the 3^rd charge was excessive. Indeed, a number of the decisions not only support the sentence but, when regard is had to the Applicant’s role and the quantity of drug, suggest that the sentence imposed by Blackmore SC DCJ was low. Given the consideration which counsel’s reliance on these earlier decisions has required, I shall refer to them but I will do so briefly. All cases involved ecstasy.

22 In R v Woodgate [2009] NSWCCA 137 the offender pleaded guilty to the supply of over 65 kg. He was a senior and trusted figure though not a principal and was sentenced to imprisonment for 14 years including a non-parole period of 10 years. The sentence reflected discounts and the starting point had been, or was deduced to have been, 20 years.

23 In R v Nikolic [2007] NSWCCA 232, the offender pleaded guilty to being knowingly involved in the supply of almost 44 kg. Nikolic was not a principal, assisted a co-offender out of a sense of obligation, and received no offer of financial reward. After a Crown appeal, and a 15% discount for a plea, the sentence imposed was 12 years and 9 months including a non-parole period of 8 years and 6 months. Shorn of the discount, the total sentence would have been 15 years.

24 In R v Opa [2004] NSWCCA 464 the offender pleaded guilty to being knowingly involved in the supply of 3.1 kg. He was a participant in an extensive operation and his role was substantial though he was not a principal. After a review of a number of previous decisions, this Court held an appropriate starting point in the determination of the sentence before discounts was 12 years.

25 In R v Knight and Biuvanua [2007] NSWCCA 238; 176 A Crim R 338 Knight the offender pleaded guilty to the supply of almost 1 kg, though the offence was committed against a background of her having been the controller involved over a period in the business of supply, including use of a number of runners. After a Crown appeal and 10% discount for a plea, the sentence imposed was 14 years and 4 months including a non-parole period of 10 years. Howie J, with the concurrence of the other members of the Court expressed the view that the sentence that should have been imposed at first instance, absent the plea of guilty, should have been 18 years.

26 Edwards v R [2008] NSWCCA 281 was referred to but, because of complexities in that case, I do not find it useful.

27 In R v Stricke [2007] NSWCCA 179, the offender pleaded guilty to 2 counts of supplying ecstasy, one involving 1.2 kg and the other 4.5kg. A third offence involving another drug may be ignored. The offender was not a principal although at a level above a runner or courier. After a Crown appeal and 25% for a plea, for the second offence the sentence imposed was 13 years including a non-parole period of 8 years.

28 In R v Gao and Lim [2007] NSWCCA 343 the offender Lim pleaded guilty to the deemed supply, constituted by an agreement to supply, of some 5000 tablets weighing between 1 and 2.5 kg. Lim’s role was that of a middleman albeit he was regarded as “a fair way up the supply process”. After a Crown appeal and 10% discount for a plea Lim was sentenced to imprisonment for 9 years and 10 months including a non-parole period of 6 years. The Court observed that if the matter had not been a Crown appeal, a starting point of 14 years would have been appropriate.

29 In R v Thompson [2005] NSWCCA 340; 156 A Crim R 467 the offender pleaded guilty to the deemed supply of almost 2 kg. His role was that of a substantial street dealer operating as a principal involved in wholesale and retail supply but as a one-man show. He was re-sentenced by this Court to imprisonment for 13 years including a non-parole period of 10 years. A discount of 25% was allowed for the offender’s plea. This Court observed that had the matter gone to trial, the Applicant would have been a candidate for the standard non-parole period of 15 years.

30 In Wang v R [2009] NSWCCA 223 the offender was found guilty of, inter alia, supplying ecstasy. The quantity involved in that offence was about 1.5 kg. The Court had difficulty in assessing the offender’s role but it was concluded that he was not a mere courier or at a low level. This Court held that the objective seriousness was somewhat below mid-range. The sentence imposed was imprisonment for 16 years including a non-parole period of 12 years.

31 The decision in Opa was not, but the decisions in Woodgate, Nikolic, Knight and Biuvanua, Stricke, Gao and Lim, Thompson and Wang were, made against the background of s54A et seq. of the Crimes (Sentencing Procedure) Act 1999 providing for standard non-parole periods.

32 I have not attempted a review of the cases involving other drugs but the decision in R v Attallah [2005] NSWCCA 277 to which the Crown drew the Court’s attention in another connection lends further support to the sentence imposed in this case. In that case concurrent sentences of 24 years including non-parole periods of 18 years were imposed on an offender who had, over a period of nearly 2 years, supplied about 3 kilograms of heroin and 8.6 kilograms of cocaine to prostitutes working in a brothel he owned. The large commercial quantity prescribed for each of those drugs was 1 kilogram.

33 Another ground of appeal was that the sentence imposed upon Mr The gave rise to a justifiable sense of grievance on the part of the Applicant.

34 Mr The was sentenced by Goldring DCJ on 11 June 2004 in respect of the offences in the second and third of the counts for which the Applicant was sentenced. On each count Mr The was sentenced to imprisonment for 5 years including a non-parole period of 3 years, such sentences to be served concurrently. In arriving at the sentences Mr The was allowed a discount of 50% and a further discount of 1 year because of the utilitarian value of Mr The’s plea. Judge Goldring’s starting point was thus 12 years.

35 The sentence imposed on Mr The was brought to Blackmore SC DCJ’s attention. His Honour observed:-

“… it is also clear on the facts found by the Jury that The’s role was merely to assist in the preparation of drugs, storing of those drugs and hiding of money. All of which he did on behalf of the offender. He was clearly the offender’s underling. The role of the offender as a principal in this organisation brings with it the inevitability that his sentence should be significantly greater than the one given to The.”

36 While recognising that there were obvious differences between the two offenders (principally age, role, plea of guilty, motivation, assistance and antecedents) it was submitted that nevertheless Mr The’s role was a substantial one and while the sentence on the Applicant needed to be “substantially greater” than the sentence imposed on Mr The, the difference was so great to give rise to a justifiable sense of grievance.

37 I do not agree. As Simpson J, with the concurrence of McClellan CJ at CL said in R v Licastro [2008] NSWCCA 131 at [34]:-

“The criminal justice system is assiduous to pursue those who stand to gain the most from drug offending. While recognising that those who labour, usually for small reward, facilitate the enterprise and must therefore be punished accordingly it also recognizes that it is the entrepreneurs who warrant the greater wrath of the criminal law. The applicant can gain no comfort from the principles of parity in sentencing; it was necessary that he be punished as the entrepreneur he was found to be.”

38 Experience has shown that the rewards for principals in drug dealing operations commonly bear no relationship to those enjoyed by persons lower down. I have referred to the fact that police found over $250,000 in the Applicant’s car and a safety deposit box to which he had the key. Blackmore SC DCJ recorded during the course of his remarks on sentence, that on one occasion the Applicant had shown Mr The a suitcase full of bundles of money, mostly green and yellow, and which Mr The estimated amounted to millions of dollars. The rewards for those engaged in drug dealing on a substantial scale are potentially very high. The courts have made it clear that so must be the penalties when they are caught - R v Schaal (unreported, NSWSC, 8 September 1989); R v Swann (1992) NSWCCA, 17 July 1992; R v Kumar [2008] NSWCCA 328 at [64]. There was no error in the large difference between the sentence imposed on Mr The, or its starting point, and the sentence imposed on the Applicant. And even if I had taken a different view, I would not have reduced the Applicant’s sentence. The sentence imposed on Mr The was very low. As Howie J observed in R v SY and Anor [2003] NSWCCA 291 at [95]:-

R v Diamond

R v Isumander and Siregar

39 I am satisfied that none of the grounds of appeal challenging the propriety of the length of the sentence imposed by Blackmore SC DCJ in respect of the third count his Honour had to consider succeeds and that the sentence was not manifestly excessive.

40 The final ground of appeal against the sentences imposed by Blackmore SC DCJ was that his Honour should have employed a commencing date for the sentences one month earlier than he did, his Honour having been misinformed that the Applicant’s pre-sentence custody was 1 year, 3 months and 9 days whereas it was in fact 1 year, 4 months and 9 days. The Crown agrees with this submission, if indeed the Crown did not advert first to the error. Accordingly, leave to appeal should be granted and the appeal allowed to the extent of ordering that the sentences commence on 7 August 2004 with consequential amendments to other dates.

The Sentence for Murder

41 On 1 December 2006 a jury convicted the Applicant of a charge of murdering Dominic Li. The findings upon which the Applicant was sentenced included that he had procured an attack designed to inflict grievous bodily harm on the deceased. The attack occurred and the deceased died.

42 The circumstances giving rise to the attack were that the deceased had been an accountant for the Applicant and his wife and had introduced the Applicant to his brother-in-law, Phillip Ma. Phillip Ma was commissioned by the Applicant to launder substantial amounts of cash in which the Applicant and one Emil Chang had an interest by gambling at the Melbourne Casino. Mr Ma’s gambling efforts failed and about $500,000 of the cash he received was lost.

43 Price J was satisfied that the money provided to Ma was illegally obtained. Ma signed an IOU acknowledging he had borrowed $513,363 from the Applicant and would return the money in three months. The Applicant placed pressure on the deceased to get the money back and the deceased informed Ma that the Applicant had been hassling him. Ma rang the Applicant telling him he was unable to pay and thereafter received a number of threats of death some at least were from the Applicant. Ma went into hiding.

44 Chang conceived a plan to flush Ma out of hiding. Chang and the Applicant agreed that hydrochloric acid be used to disfigure the deceased’s face.

45 The Applicant sought to engage one “X” to throw the acid. “X” declined the offer but at the Applicant’s request contracted three others to carry out the attack. The Applicant supplied the deceased’s address, a camcorder containing a video of the deceased’s home, and $10,000 which was an agreed fee, advised that a gun (which “X” supplied) should be given to the assailants, and told “X” that the best time for the attackers to go to the deceased’s home was early in the morning and that he wanted “the guy to look like a pig”.

46 Price J’s description of the attack itself was as follows:-

“16 … at about 7.30am on 13 December 2002… one of the assailants knocked on the front door carrying a package which had “Dominic Li” 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 assailant’s pulled him by his collar and tie onto the front veranda 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 a vehicle in which a third person was waiting.

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

47 Price J concluded that although the idea originated with Chang, the Applicant knew that the acid would inflict upon the deceased’s intense pain and observed:-

“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 culpability of a procurer is less than the assailant: see GAS v R [2004] 217 CLR 198 at 23. In this case the culpability of the Applicant 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.

48 His Honour also observed that at the time the Applicant was on conditional liberty in the form of two bonds for the offences of goods in custody and bribing a Commonwealth Officer and that this was an aggravated feature. Taking into account the Applicant’s earlier convictions for the 3 drug offences dealt with above, his Honour concluded that the Applicant’s record meant he was not entitled to leniency.

49 Having regard to an argument advanced on behalf of the Applicant, I should set out further passages from his Honour’s remarks:-

50 After quoting section 61(1) of the Crimes (Sentencing Procedure) Act and referring to R v Harris (2000) 50 NSWLR 409 and R v Ngo (2001) 125 A Crim R 495, his Honour continued:-

“45. The primary focus of s61(1) is an assessment of how extreme the Applicant’s culpability is: see R v Merritt (2004) 146 A Crim R 309 [at 52].

Regina v Hillsley

R v Nelson

R v Wilson

47. In order to terrify Ma, an attack involving extreme cruelty was planned and procured by the Applicant 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 Applicant is not reduced nor is the gravity of the offence. The Applicant’s level of culpability is such that the Applicant’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.

51 As has been said, his Honour then proceeded to impose a sentence of imprisonment for life.

52 Three grounds were advanced in support of the appeal against the sentence for murder:-

1 Having regard to the finding in Paragraph 47 of the Remarks on Sentence, his Honour erred in:

(a) categorising the offence as falling into the worst category of the offence of murder; and

Crimes (Sentencing Procedure) Act

2. The sentence imposed upon “X” leaves the Applicant with a justifiable sense of grievance;

3. The sentence imposed is manifestly excessive.

Ground 2

53 It is convenient to deal first with the second of these grounds. “X’s” sentence reflected a discount of 50% for reasons that have no relevance to the Applicant’s sentence. But for that discount Grove J, who sentenced “X”, would have imposed a sentence of 36 years, including a non-parole period of 27 years. It was submitted that, while it was within Price J’s discretion to categorise the Applicant’s culpability as higher than “X”, that increase in culpability was only to a limited extent. It was submitted that both the Applicant and “X” played pivotal roles in the events culminating in Mr Li’s death and both men were mature with significant criminal histories.

54 I do not agree. While the original plan to use acid may have been conceived by Chang, it was a development of the efforts by Chang and the Applicant to recoup from Ma what they were owed and to obtain from the deceased information about Ma. The Applicant embraced the plan and it was he who initiated and continued the implementation of it with a view to deriving what were seen to be the plan’s benefits. “X” was a minion engaged to assist. Although “X’s” criminality was high, the Applicant’s was substantially greater. There was no breach of the principle of parity in the difference between the sentence on “X” and that imposed on the Applicant. This ground fails.

Ground 1

55 In development of this ground it was submitted that the evidence from the trial suggested that the two assailants went beyond the scope of the joint criminal enterprise and that it was the ingestion of acid that led to Mr Li’s death, an event beyond what had been sought by the Applicant. Further, that the finding that the Applicant contracted for the infliction of grievous bodily harm and not death mitigated to some degree the seriousness of the crime and removed it from the worst case category and the scope of s61(1) of the Crimes (Sentencing Procedure) Act. That section provides:-

(1) 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.

56 Reference was made to numerous cases wherein there are to be found statements, albeit sometimes qualified, along the lines that an intent to inflict grievous bodily harm involves less criminality than an intent to kill. These cases include R v Milhailovic, Howard, Morgan and Young (Unreported, Badgery-Parker J, 15 April 1991; R v Craig (Unreported, Abadee J, 14 April 1993); R v Crofts (Unreported, Grove J, 6 December 1996); R v Keir (2000) NSWSC 111; and R v Irani [2001] NSWSC 475 at [28].

57 Nothing is to be gained by extensive quotation of the passages relied on. They are not statements of law and, if I might say so, as general propositions simply a matter of common sense. However, in common with other crimes, the seriousness of an offence of murder is not judged solely by reference to an offender’s intention. Matters such as motivation, the infliction of cruelty or demonstrated criminality going beyond the necessary incidents of the killing are matters also to be taken into account.

58 That there is not a blanket rule precluding cases of murder where the intention is to inflict merely grievous bodily harm from falling into a worst category is apparent from R v Hillsley to which Price J referred and in which this Court increased a sentence to one of life imprisonment. To the passage quoted by his Honour from that case, one may add remarks at [26]:-

“However, there are some crimes which are so wicked that a sentence less than a life sentence cannot adequately reflect the community interest in retribution and punishment, quite apart from the potential for rehabilitation or any need to protect the community.”

59 In R v Fernando (1997) 95 A Crim R 533 at 544, Abadee J made remarks to like effect.

60 That the (generally) less culpable intention to inflict grievous bodily harm does not necessarily preclude a life sentence is also consistent with the remarks of the majority of the High Court in Veen v The Queen(No 2) (1987-1988) 164 CLR 465 at 478 where the High Court said:-

Ibbs v R

61 I should however refer to remarks of Badgery-Parker J in R v Twala (Unreported, 4 November 1994):-

“(I)n order to characterise any case as being in the worst case category, it must be possible to point to features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed).”

62 This passage from R v Twala has been cited with approval on numerous occasions, e.g. in R v Harris (2000) 50 NSWLR 409 at [84] and R v Merritt (2004) 59 NSWLR 557 at [39] but, with respect to his Honour and those who have endorsed the passage, it seems to me impossible to reconcile the statement that, “it must be possible to postulate the absence of facts mitigating the seriousness of the crime” with the passage just cited from Veen v The Queen (No 2). It is almost inconceivable that a case of murder could not be made worse by the addition of an intention to kill. I observe that a reservation concerning R v Twala which I previously expressed in R v Stanbouli (2003) 141 A Crim R 531 at [117], appears to have been concurred in by Spigelman CJ – see at [1].

63 Thus I do not regard Price J’s findings in paragraph [47] of his Remarks on Sentence as leading to the conclusion that his Honour erred in the respects the subject of this ground.

64 In a further support of the second aspect of this ground, Mr Game SC for the Applicant argued that “community protection” in s61(1) of the Crimes Act 1900 was directed to the issue of future dangerousness of the offender and was something separate from deterrence. He sought support for this view in the judgment of Wood CJ at CL in R v Harris (2000) 50 NSWLR 409 at [66] where, under the heading “Potential for dangerousness”, his Honour said:-

Veen (No2)

Garforth

65 Mr Game then drew attention to the remarks of Price J at [41], “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.” and submitted that the limited way in which the observation was couched meant that one could not conclude that the interest of community protection itself warranted the imposition of a life sentence upon the Applicant.

66 Mr Game also contended that at [48] of his remarks, Price J had ignored the qualified finding he had made at [41] and in talking of the community interest in community protection requiring a sentence that may deter other people was confusing the issues of community protection and deterrence and had mistaken what the community protection factor was directed towards.

67 I do not accept the correctness of any of this criticism. Implicit in the qualified finding at [41] of the Remarks on Sentence is the conclusion that, if released, there is a risk of the Applicant re-offending if his own interests are at stake. His Honour did not attempt to quantify that risk but it is clearly relevant to a determination of the sentence to be imposed.

68 Turning to the second aspect of the criticism, there can be no doubt that, particularly when used in juxtaposition to “deterrence”, “community protection” is an expression commonly directed to protection from the particular offender and his dangerousness. The discussion of the topic in Veen v The Queen (No 2) supports this view. So do the remarks of this Court in Garforth (unreported, NSWCCA, 23 May 1994) where the Court said:-

“It is now well settled that the protection of society - and hence the potential dangerousness of the offender - is a relevant matter on sentence.”

69 However, “community protection” is a perfectly normal English expression and protection from the dangerousness of a particular offender is not the exclusive operation of it. The reference in R v Harris (quoted above) to a potential for dangerousness being “of relevance” to the need to have regard to the protection of the community rather than definitive of it tends in the same direction. I accept that it is not completely clear what his Honour was meaning in the second sentence of [48] but as likely an interpretation as any other is that “The community interest in community protection and deterrence requires a sentence which is sufficiently heavy that it may deter other people from even considering using a contract attack to inflict terrible injuries upon an innocent person to terrorise another”. I am not persuaded that there is error in what his Honour said at [48].

70 A fortiori is this so when it is recognised that, as the High Court in Veen v The Queen (No 2) at 476 made clear, the purposes of criminal punishment, viz. of “protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform”, overlap. See also R v Merritt (2004) 59 NSWLR 557 at [43]. In these circumstances, I see no reason to interpret what Price J was referring to in his use of the expression “community protection” as only the dangerousness of the Applicant.

71 In any event it was at [49] rather than at [48] that Price J stated his reasons for imposing a life sentence on the Applicant. Those reasons make clear that his Honour was not basing his sentence upon some conclusion that the interest of community protection itself warranted the imposition of a life sentence upon the Applicant. Accordingly, ground 1 of the grounds challenging the sentence imposed for the murder charge fails.

Ground 3

72 In support of this ground attention was directed to Price J’s finding that there was no intention to kill, remarks that the Applicant had no history of violence and to his Honour’s observations at [41] of his remarks concerning the Applicant’s prospects of rehabilitation and re-offending. Otherwise the principal matters advanced fell into 2 groups. The first consisted of reference to remarks in R v Suteski (2002) 129 A Crim R 559 where Kirby J expressed the view that a starting point exceeding 30 years was excessive and to R v Baartman (unreported, Dunford J, 18 December 1998) and R v Crofts (unreported, Grove J, 6 December 1996) where, subject to some matters of no present relevance, consideration was given to sentences of 30 years imprisonment. There is no reason to think that the observations in the cases relied on were directed to more than the circumstances their Honours were considering.

73 In each of those cases death had resulted from the implementation of a contract to inflict grievous bodily harm – in Suteski, by means of a hammer or bat and a knife, and in Baartman, by shooting the victim in the leg. It was submitted that the weapons used by those offenders were not less worthy of censure than the method used in this case. With that last proposition I completely disagree. The throwing of acid into someone’s face to make the person “look like a pig” displays an inhumanity very much greater than exhibited by those who had commissioned the offences the subject of those earlier cases.

74 The second principal line of argument involved drawing the Court’s attention to a number of cases where the terrible significance of the indeterminate nature of a sentence of imprisonment for life has been recognised – R v McCafferty (unreported, Wood J, 15 October 1991); R v Petroff (Unreported, Hunt CJ at CL, 12 November 1991; R v Chung (1999) NSWCCA 330; R v Harris at [124]. Again I have no need to quote from the cases. I am conscious of the sentiments expressed. The issue for present purposes is not as to the consequences of a sentence of life imprisonment but whether Price J was entitled to form the view he did that the Applicant’s crime and circumstances merited such a sentence.

75 In passages quoted above Price J has described with clarity those matters. Nothing would be gained by my attempting to further characterise them. Nor will anything be gained by a dilation on general sentencing principles or the operation of s61(1). The latter is sufficiently explained in cases such as R v Harris (2000) 50 NSWLR 409; R v Merritt (2004) 59 NSWLR 557; and Knight v R (2006) 164 A Crim R 126. Once the crime and the relevant circumstances and the relevant sentencing considerations are fully appreciated, the issue whether Price J was entitled to arrive at the sentence he imposed is largely one of impression. I am not persuaded that the decision was not one at which his Honour was entitled to arrive.

76 Accordingly, the orders I would propose:-

In the case of the appeal against the sentences imposed by Blackmore SC DCJ are:-

1. Grant leave appeal.

2. Allow the appeal.

3. Quash the sentences by Blackmore SC DCJ.

4. Sentence the Applicant in respect of the charge of supplying 50.7 grams of 3,4 methylenedioxymethyl-amphetamine to imprisonment for a non-parole period of 4 years commencing on 7 August 2004 together with a further term of 2 years commencing on 7 August 2008.

6. Sentence the Applicant in respect of the charge of supplying a large commercial quantity viz 25.64477 kgs of 3,4 methylenedioxymethyl-amphetamine to imprisonment for a non-parole period of 18 years commencing on 7 August 2004 together with a further term of 6 years commencing on 7 August 2022.

77 LATHAM J: I agree with RS Hulme J.

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Citations

Tan v R [2010] NSWCCA 207

Most Recent Citation

Cases Citing This Decision

5

R v JK [2018] NSWSC 250

R v Hunt [2025] NSWDC 403

Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318

Cases Cited

29

Statutory Material Cited

0

Adams v The Queen [2008] HCA 15

Woodgate v R [2009] NSWCCA 137

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CITATION:	TAN v R [2010] NSWCCA 207
HEARING DATE(S):	4 March 2010
JUDGMENT DATE:	16 September 2010
JUDGMENT OF:	Giles JA at 1; Hulme J at 3; Latham J at 77
DECISION:	In the case of the appeal against the sentences imposed by Blackmore SC DCJ are:- 1. Grant leave appeal. 2. Allow the appeal. 3. Quash the sentences by Blackmore SC DCJ. 4. Sentence the Applicant in respect of the charge of supplying 50.7 grams of 3,4 methylenedioxymethyl-amphetamine to imprisonment for a non-parole period of 4 years commencing on 7 August 2004 together with a further term of 2 years commencing on 7 August 2008. 5. Sentence the Applicant in respect of the charge of supplying a large commercial quantity viz 1038.7 grams of 3,4 methylenedioxymethyl-amphetamine to imprisonment for a non-parole period of 9 years commencing on 7 August 2004 together with a further term of 3 years commencing on 7 August 2013. 6. Sentence the Applicant in respect of the charge of supplying a large commercial quantity viz 25.64477 kgs of 3,4 methylenedioxymethyl-amphetamine to imprisonment for a non-parole period of 18 years commencing on 7 August 2004 together with a further term of 6 years commencing on 7 August 2022. In the case of the appeal against the sentence imposed by Price J are:- 1. Grant leave to appeal. 2. Dismiss the appeal.

PARTIES:	Yonky Irvin TAN Regina
FILE NUMBER(S):	CCA 2005/4829; 2006/2161
COUNSEL:	TA Game SC with D Barrow (Applicant) D Woodburne SC (Respondent)
SOLICITORS:	Steve O'Connor (Legal Aid Commission) S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION:	District Court/Supreme Court
LOWER COURT JUDICIAL OFFICER:	Blackmore SC DCJ/Price J