R v Chow HC Auckland Cri-2006-032-356
[2007] NZHC 1625
•15 February 2007
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2006-032-000356
THE QUEEN
v
WAN YEE CHOW
Appearances: K Raftery for Crown
P J Kaye for Prisoner
Judgment: 15 February 2007 at 9:00 am
SENTENCING NOTES OF COURTNEY J
Solicitors: Meredith Connell, P O Box 2213, Auckland
Fax: (09) 336-7629
Counsel: P J Kaye, P O Box 941, Auckland
Fax: (09) 379-6433
R V CHOW HC AK CRI-2006-032-000356 15 February 2007
[1] Wan Yee Chow you appear for sentence having been found guilty of the murder of Ah Yam Tam.
[2] The circumstances of the offending are as follows. On the afternoon of
6 July 2005 you drove from Wellington to Auckland with an associate, Mr Taylor, in his car. Mr Taylor gave evidence about the events of that evening and the early hours of the following morning and, clearly, his evidence was accepted by the jury.
[3] Apart from a visit to a restaurant in Avondale, you and Mr Taylor spent most of your time in the area around upper Symonds Street and Anzac Avenue. You drove past the Top City Karaoke Bar in Symonds Street, which was owned by Ah Yam Tam and where he lived with his girlfriend. You had known Mr Tam for more than ten years and had worked briefly for him in 2005 in the Flower City Restaurant in Anzac Avenue, which he had purchased.
[4] After driving past the karaoke bar you proceeded to Parliament Street where you parked and watched the entrance to the Flower City Restaurant. While parked in that location you saw Mr Tam arrive at the restaurant. You drove back to the area around the karaoke bar and then returned to Parliament Street. Between 3.30 and
4 am on 7 July 2005 you directed Mr Taylor to drive back to the karaoke bar and to park in St Benedicts Street behind the block where the karaoke bar was located. You told him to wait in the car and you went to the boot. Becoming concerned, Mr Taylor got out and came to the rear of the car where he observed you putting on dark clothing and removing a revolver and bullets from a bag in the boot. Mr Taylor returned to the car to wait and you proceeded to the rear of the karaoke bar. It is likely that you hid in the toilet or laundry area in the flats behind the bar.
[5] At about 4.30 am that morning Mr Tam drove into the carpark behind the karaoke bar. He got out, noticed you approaching, asked who you were, and you fired a single shot into his chest, ran back to the vehicle parked in St Benedicts Street and you and Mr Taylor drove back to Wellington.
[6] Mr Tam’s death left his 20-year-old fiancée alone facing the additional trauma of witnessing his murder. She had been in the car when you shot her fiancé and dealing with the financial loss resulting from the closure of the karaoke bar and
restaurant. Mr Tam’s murder has caused sadness to the other members of his family, including his elderly mother who still lives in China.
Sentencing principles
[7] I turn to look at the relevant principles in sentencing on a charge of murder. A person convicted of murder must be sentenced to life imprisonment unless it would by manifestly unjust to do so.[1] It would only be in exceptional cases that a
life sentence for murder would not be imposed[2] and your counsel has responsibly
accepted that this is an appropriate sentence. The real issue today is what the minimum period of imprisonment should be before you can apply for parole.
[1] s 172(1) Crimes Act 1961; s 102(1) Sentencing Act 2002
[2] R v Rapira [2003] 2 NZLR 794
[8] A person sentenced to life imprisonment must serve a minimum period of at least ten years in prison before becoming eligible for parole.[3] Where the circumstances of the offending are sufficiently serious a minimum of more than ten years can be imposed.[4] The length of term is to be determined by the Court in deciding what is justified in the circumstances.[5]
[3] s 103(1) Sentencing Act 2002
[4] s 103(3) Sentencing Act 2002
[5] s 103(4) Sentencing Act 2002
[9] However, if circumstances of the murder fall within those specified by s 104 of the Sentencing Act the Court must impose a minimum period of imprisonment of at least 17 years.[6] This is a mandatory requirement, with discretion to impose a lesser term limited to cases where it would be manifestly unjust to impose a sentence of that length. The purpose of this requirement is to ensure a very substantial minimum term of imprisonment for the most serious murders.[7]
[6] s 104 Sentencing Act 2002
[7] R v Williams [2005] 2 NZLR 506 at [47]
[10] The Crown submits that the circumstances of this case fall within s 104(b), being a murder that involved calculated or lengthy planning and included making an arrangement under which money was intended to pass.[8] Your counsel has responsibly acknowledged the likelihood of s 104 applying.
[8] s 104(b) Sentencing Act 2002
[11] In considering the possibility of a minimum term of imprisonment I adopt the approach outlined by the Court of Appeal in R v Williams.[9] This approach requires me to consider, first, the degree of culpability in this case in relation to that found in the usual range of murders. This involves consideration of all the aggravating and mitigating features of the offending, bearing in mind the policy behind s 104 that, in general, the presence of any of the specified circumstances will justify a minimum term of at least 17 years.
[9] [2005] 2 NZLR 506 at [52]
[12] The Crown’s submission is essentially that this murder justifies the minimum period of imprisonment of 17 years because it was a brutal and cold-blooded contract killing, that involved one of the aggravating features specified in s 104, namely the high level of planning and premeditation with the added feature that you acted for financial gain. The particular aspects that the Crown relies on are:
•First, that you were found hiding behind the laundry door in the karaoke bar some weeks prior to the murder. When spoken to by an employee of the bar you said that you were waiting for Mr Tam. On the evidence, it is likely that this is the area in which you did wait for Mr Tam on the night you killed him. I find that this earlier visit was a reconnaissance of the area in preparation for the later murder;
•Second, you had planned to obtain the murder weapon some time before the murder. A sketch of a pistol similar to that used was found on a notepad at your house. Also on the pad was the figure 10,000. You brought the weapon to Mr Taylor’s house before the trip to Auckland and, of course, brought your weapon with you to Auckland;
•The timing of your trip strongly suggests that killing Mr Tam was the primary reason for the trip to Auckland. Apart from going to Avondale you spent almost all of the time in Auckland watching and waiting for Mr Tam in and around his karaoke bar and restaurant and left again immediately after the murder.
•You wore a balacalava or similar disguise and black clothing which your associate saw you change into before the murder.
•You were to receive money for the killing. There was evidence from Mr Taylor that before the murder you visited a restaurant in Wellington and that after the murder you told him you were going back to the restaurant to get $10,000. Significantly, that figure is the same as the figure noted beside the sketch of the pistol in the notebook found in your home. I am satisfied, having heard the evidence, that you did arranged to receive payment for this killing.
[13] There can be no doubt that a commercial contract killing takes the offending well outside the usual range of murder. The level of premeditation and callousness of a murder committed for money must rank among the most serious circumstances in which murder can committed. There is good reason that this type of offending is specified as attracting the 17 year minimum period of imprisonment; society expects sentences for this type of crime to reflect its abhorrence of it. There are no mitigating features associated with the offending that I can take into account.
[14] I turn now to your personal situation. Despite your lack of interest in providing information for the pre-sentence report some information has been available from departmental records and your family. You are now 54 years old. You came to New Zealand from China in about 1986. Your brother has given information about your early years in China. He describes you as having quite limited intellectual capacity and a limited formal education. You were imprisoned in re-education camps during the Chinese cultural revolution and this has affected you emotionally. You still have nightmares about those times. Records held by the Department of Corrections show that when you were interviewed for a psychiatric report in relation to an earlier offence you were assessed as having a post-traumatic stress disorder and an intellectual disability. It was also suggested that due to your limited intellect and cognitive abilities you are easily led and manipulated by others. I also notice from a pre-sentence report that you still have language and mental health difficulties.
[15] You have previous offences for violence in New Zealand. It is apparent from some of the decisions relating to those offences that this offending was part of a pattern that has been developing for some time. The Crown counsel has described you as an enforcer, a term taken from comments in previous cases involving sentencing for other crimes. This is a real concern to a sentencing Judge.
[16] I have carefully considered the recent cases in which a minimum term of 17 years has been considered.[10] As I have noted, unless it would be manifestly unjust to do so I am bound to impose the minimum term of at least that length. The reasons for concluding that such a penalty would be manifestly unjust must be clear and demonstrable. It is only in exceptional circumstances that the minimum period of 17 years is to be departed from. Mitigating factors relating to personal circumstances
will rarely displace the presumption. Such factors have been taken into account in at least one recent case, although I recognise that this course is probably rare.[11]
[10] R v Williams [2005] 2 NZLR 506; R v Parrish (2003) 21 CRNZ 571; R v Khan CA 470/04, 14 June
2005; R v Ross HC WHA t5041587, 7 October 2005 Nicholson J
[11] R v Parrish
[17] There is nothing in the circumstances of this offending that would make the minimum period of 17 years unjust. This was a well planned and calmly executed murder for money. I recognise that your limited mental ability and English skills will make any term of imprisonment more onerous than would usually be the case. Your age means that you would be in your 70s when first eligible for parole if a minimum term of 17 years is imposed. These factors do cause me concern. It is impossible not to feel a level of sympathy for you but this offending, which is the culmination of a pattern of offending over many years, is such that I cannot responsibly depart from the requirement in s 104.
[18] I therefore impose a final term of life imprisonment with a minimum term of imprisonment of 17 years.
P Courtney J
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