Citation: Teck Lee Lew v R [2004] NSWCCA 320
Court: New South Wales Court of Criminal Appeal
Date: 21 September 2004
Judges: Wood CJ at CL, Kirby J, Buddin J
Background
The applicant was a supervisor at a Sydney tavern who became involved in a plan to rob the venue's manager. He had recommended one of his co-offenders for employment at the tavern, and the two remained in contact after that co-offender left. The plan proceeded and, on 22 May 2001, the tavern manager was killed by two of the applicant's co-offenders during the robbery.
The applicant was not present at the killing. He had been convicted at trial of being an accessory before the fact to murder, on the basis that he had participated in planning the robbery that led to the death. The trial judge found that while the applicant had attempted to withdraw from the enterprise, that withdrawal was ultimately ineffective in preventing the offence from being carried out.
At first instance, the applicant was sentenced to 14 years imprisonment with an 11-year non-parole period for the murder accessory count, producing an effective overall sentence of 15 years with a 12-year non-parole period across all counts. He sought leave to appeal against the severity of that sentence and also challenged a conviction on an alternative count that had been incorrectly dealt with at sentencing.
Legal Issues
- Whether the conviction and sentence for being an accessory before the fact to armed robbery on 22 May 2001 (an alternative count overtaken by the jury's verdict on the primary count) should stand.
- Whether the head sentence of 14 years for the murder accessory count was manifestly excessive, given the applicant's attempted withdrawal from the criminal enterprise.
- Whether the non-parole period imposed exceeded the statutory proportion of 75% under the Crimes (Sentencing Procedure) Act 1999, and if so, whether the sentencing judge adequately addressed the question of special circumstances.
Decision
The Court identified an error in the sentencing process relating to the alternative count of being an accessory before the fact to armed robbery on 22 May 2001. Because the jury had returned a verdict of guilty on the primary murder accessory count, no verdict on the alternative count was required. A separate conviction and sentence had nonetheless been recorded in respect of that alternative count, which the parties agreed was wrong. The Court quashed the conviction and sentence on that count.
On the challenge to the head sentence for the murder accessory count, the Court declined to intervene. The trial judge had found that the applicant was involved in organising the robbery, that one version of the facts placed the suggestion of using a firearm with the applicant, and that although the applicant had attempted to pull back from the enterprise, he had not been effective in stopping it. The Court accepted that the sentencing judge had properly taken into account the applicant's relative culpability, including his attempted withdrawal, and was not persuaded that the head sentence of 14 years was unreasonable.
However, the Court found error in the non-parole period. The effective overall non-parole period of 12 years represented 80% of the total sentence, exceeding the statutory proportion of 75% prescribed by s 44(2) of the Crimes (Sentencing Procedure) Act 1999. The trial judge had not explained why a longer non-parole period was warranted, nor had the judge addressed whether special circumstances existed. By contrast, the co-offender Ng received an effective non-parole period of exactly 75%. The Court found the sentencing judge had inadvertently erred and intervened to substitute a shorter non-parole period, finding special circumstances in the accumulation of sentences.
Orders Made
- Appeal against conviction for being an accessory before the fact to armed robbery on 22 May 2001 allowed; conviction and sentence quashed.
- Leave to appeal against the sentence for being an accessory before the fact to attempted armed robbery on 14 May 2001 refused.
- Leave to appeal against the sentence for being an accessory before the fact to murder granted; appeal allowed in part.
- Head sentence of 14 years confirmed; non-parole period quashed.
- Non-parole period of 10 years substituted, commencing 5 July 2002 and expiring 4 July 2012, with a balance of term of 4 years and the full sentence expiring 4 July 2016.
Key Takeaways
- Where a jury returns a verdict of guilty on a primary count, no conviction or sentence should be recorded on an alternative count arising from the same facts; doing so is an error requiring correction on appeal.
- An attempted withdrawal from a criminal enterprise does not automatically reduce an accessory's criminal liability or warrant a reduced head sentence where the withdrawal was ultimately ineffective in preventing the offence.
- Under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, a non-parole period exceeding 75% of the head sentence requires the sentencing court to identify special circumstances; failure to do so, without explanation, constitutes appealable error.
- Special circumstances can be found in the accumulation of multiple sentences, justifying a modest reduction in the non-parole period to allow adequate time for supervision and rehabilitation on parole.
- In dismissing the challenge to the head sentence, the Court of Criminal Appeal confirmed that relative culpability among co-offenders, including the fact that principals received substantially longer terms, was a relevant but not determinative consideration when assessing an accessory's sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 19A, 346
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
Cases Cited:
- R v Mills (CCA, unreported, 3 April 1995)
- R v R & G (1995) 79 A Crim R 191
- R v Sharah (1992) 63 A Crim R 361
- R v Simpson (2001) 53 NSWLR 704
- R v Tietie & ors (1988) 34 A Crim R 438
- R v Truong (NSWCCA, unreported, 22 June 1998)
- R v Wright (CCA, unreported, 8 July 1997)