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Supreme Court 29 June 2007

Regina v Tan

[2007] NSWSC 684

Assault & violenceHomicide
CRIMINAL PRACTICE AND PROCEDURE SENTENCING MURDER CONTRACT ATTACK EXTREME CULPABILITY WORST CATEGORY OF OFFENCE OF MURDER

Citation: Regina v Tan [2007] NSWSC 684
Court: Supreme Court of New South Wales
Date: 29 June 2007
Judge(s): Price J

Background

The prisoner had been convicted by a jury of murdering the deceased, a Sydney accountant, who died on 2 January 2003 following a savage attack at his Concord home on 13 December 2002. The deceased had no personal involvement in the events that led to the attack. He became a target because the prisoner sought to use violence against him as leverage to recover a large gambling debt from the deceased's brother-in-law, Phillip Ma, who had lost approximately $500,000 of the prisoner's cash at a Melbourne casino and had gone into hiding.

The prisoner planned and procured a contract attack on the deceased. He arranged for hydrochloric acid to be used to disfigure the deceased's face, provided the deceased's address, supplied a video of his home, furnished a firearm, and paid $10,000 for the assault to be carried out. Two assailants were contracted through an intermediary. On the morning of the attack, they used a courier ruse to lure the deceased to his front door, doused him with hydrochloric acid, and beat him. He died in hospital approximately three weeks later.

The Crown's case was not that the prisoner intended to kill the deceased. Rather, the prosecution proceeded on the basis of a joint criminal enterprise to inflict grievous bodily harm, which resulted in death. The jury convicted the prisoner of murder. Two alleged physical assailants were acquitted on identity grounds.

  • What facts relevant to sentencing could be established beyond reasonable doubt, consistent with the jury's verdict?
  • Whether the prisoner's conduct fell within the "worst category" of murder, as required to justify the imposition of a life sentence under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 and s 19A(2) of the Crimes Act 1900?
  • What weight, if any, should be given to the prisoner's subjective circumstances (including family support and conduct in custody) when determining whether the community interest in retribution, punishment, protection, and deterrence required a life sentence?

Decision

Price J made detailed findings of fact consistent with the Crown case, finding beyond reasonable doubt that the prisoner had procured the contract attack. The court found the prisoner's trial evidence to be largely untruthful, and that the large amounts of cash involved had been unlawfully obtained, though the evidence did not permit a finding that it derived specifically from drug sales.

The court held that, although the enterprise was one to inflict grievous bodily harm rather than to kill, the prisoner's culpability was not reduced. The attack was planned with extreme cruelty: acid was chosen to disfigure the deceased and cause terrible pain, the attack was timed for when the deceased's wife would likely be present, and a firearm was provided because the prisoner warned that the deceased "is an expert in Kung Fu." The deceased's death was slow and horrible. Price J concluded that, notwithstanding the absence of an intention to kill, these circumstances placed the offending within the worst category of murder.

On the question of subjective matters, the court acknowledged that the prisoner had family support and had been an exemplary and hard-working prisoner in custody. However, Price J found that the extreme level of culpability meant those matters had to be disregarded. The community interest in retribution, punishment, community protection, and deterrence could only be met by a sentence of life imprisonment.

Orders Made

  • The prisoner was sentenced to imprisonment for life.

Key Takeaways

  • The Supreme Court confirmed that murder committed in the context of a joint criminal enterprise to inflict grievous bodily harm (rather than to kill) is not automatically less culpable, and may still fall within the worst category of murder warranting a life sentence.
  • Where the level of culpability is found to be extreme, a sentencing court may be required to disregard positive subjective factors, including good prison conduct and family support.
  • A contract attack procured to cause serious injury, even absent an intent to kill, can satisfy the threshold for a life sentence where the planning, cruelty, and consequences are sufficiently grave.
  • The court's findings of fact at sentencing must be consistent with the jury's verdict and established beyond reasonable doubt, including findings as to motive and the source of funds.
  • Deterrence and community protection were given significant weight in the court's reasoning, with Price J emphasising that contract attacks are "abhorrent" and that sentencing must address the broader community interest in discouraging such conduct.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 9, 21A, 61(1)
- Crimes Act 1900 (NSW), ss 19A(2), 19A(3)
- Crimes Act 1914 (Cth)
- Firearms Act 1996 (NSW)

Cases:
- 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