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Supreme Court 9 May 2003

REGINA v LO

[2003] NSWSC 582

HomicideTheft & propertyFirearms & weapons
SENTENCE MURDER EARLY PLEA ASSISTANCE TO AUTHORITIES 18 YEARS WITH 13.5 YEARS NON PAROLE PERIOD

Citation: [2003] NSWSC 582
Court: Supreme Court of New South Wales
Date: 9 May 2003
Judge(s): Adams J

Background

The offender was a former employee of a Sydney hotel in Haymarket. Together with an accomplice, he planned and executed a robbery of the hotel's manager, who had previously employed him. The plan had been suggested by a current employee of the hotel who remained in contact with the offender after he resigned.

An initial robbery attempt on 14 May 2001 was abandoned. The offender and his accomplice returned on 21 May 2001, concealing themselves overnight in the hotel's fire stairs. The following morning, they confronted the manager as he counted the takings. A struggle ensued, during which the manager recognised the offender. The accomplice then shot the manager in the back of the head and cut his throat. The offender told police he did not want the manager killed. The men left with approximately $50,000 in cash.

The offender was arrested at Sydney Airport on 3 July 2001 as he attempted to board a flight to the Philippines. Upon arrest, he gave a detailed electronically recorded interview to police and, on 5 May 2003, pleaded guilty to murder in the Supreme Court. He also asked the court to take into account a related charge of attempted armed robbery, listed on a Form 1 document.

  • What is the appropriate sentence for murder in circumstances involving an armed robbery gone wrong, where the offender participated in the killing but claimed not to have intended the victim's death?
  • What weight should be given to an early guilty plea and voluntary admissions to police at the time of arrest?
  • What discount is warranted where the offender undertakes to give evidence against accomplices who might otherwise escape conviction?
  • Whether the statutory requirement under section 23(3) of the Crimes (Sentencing Procedure) Act 1989 that a sentence not be unreasonably disproportionate to the offence affected the level of discount available for assistance to authorities.

Decision

Adams J identified the murder as a serious example of the offence. The killing occurred during a premeditated armed robbery, the victim was recognised and offered money to allow the offenders to leave, and the fatal violence was prolonged and brutal. The offender was present throughout, participated actively, and handled the firearm used to kill the victim, knowing it had been loaded.

The court accepted, however, that the offender did not himself shoot or cut the victim and that he told police he had not wanted the victim killed. These matters bore on his moral culpability relative to his accomplice, but did not diminish the gravity of the offence overall.

Adams J applied a 40 per cent overall discount to the sentence that would otherwise have been imposed. Two factors drove that reduction: the offender's voluntary and detailed admissions to police immediately upon arrest, followed by an early guilty plea at the first practicable opportunity; and his undertaking to give evidence against his accomplices. The court noted that the public interest, reflected in the relevant sentencing legislation, required significant reductions in such cases even where the resulting sentence might otherwise appear inadequate for the offence.

The court found that, although circumstances capable of constituting special circumstances existed, the length of the sentence meant a further reduction to the non-parole period beyond the statutory ratio was not justified.

Orders Made

  • The offender was sentenced to 18 years' imprisonment, commencing 3 July 2001 and expiring 2 July 2019.
  • Eligible for release on parole on 2 January 2015.
  • The attempted armed robbery charge on the Form 1 was taken into account.

Key Takeaways

  • A 40 per cent sentencing discount was applied where the offender both confessed voluntarily upon arrest and undertook to give evidence against accomplices, reflecting the strong public interest in encouraging cooperation with authorities.
  • Under section 23(3) of the Crimes (Sentencing Procedure) Act 1989, a sentence must not be unreasonably disproportionate to the nature and circumstances of the offence, but a sentence meeting that threshold may still be one that would otherwise be considered manifestly inadequate in the absence of cooperation.
  • Participation in a killing during an armed robbery can ground a murder conviction even where the offender did not personally deliver the fatal blow, provided the necessary elements under section 18(1)(a) of the Crimes Act 1900 are established.
  • An early guilty plea carries weight both as a practical benefit to the justice system and as evidence of remorse, including the benefit of sparing the victim's family from a contested trial.
  • Where the term of imprisonment imposed is already lengthy, the sentencing court may decline to reduce the non-parole period below the standard statutory ratio even where special circumstances are present.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18(1)(a)
- Crimes (Sentencing Procedure) Act 1989 (NSW), ss 13A, 22, 23(3), 44

Cases:
- Nguyen (unreported, NSWCCA, 14 April 1994)
- R v Crump (unreported, NSWCCA, 30 May 1993)
- R v Hearne [1999] NSWSC 605
- R v Previtera (1997) A Crim R 76
- R v Petroff (unreported, NSWSC, 12 November 1991)
- Tran [1999] NSWCCA 109
- Veen v The Queen (No 2) (1988) 164 CLR 465