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Supreme Court 20 August 2003

REGINA v NG, REGINA v LEW

[2003] NSWSC 781

Assault & violenceHomicideTheft & property
CRIMINAL LAW SENTENCE MURDER ACCESSORY BEFORE THE FACT ROBBERY LEVEL OF CULPABILITY

Citation: REGINA v NG, REGINA v LEW [2003] NSWSC 781 revised - 2/09/2003
Court: Supreme Court of New South Wales, Common Law Division
Date: 20 August 2003
Judge(s): Adams J

Background

The two offenders faced sentencing following a joint trial arising from the murder of a hotel manager during an attempted robbery at the Market City Tavern in Sydney's Haymarket on 22 May 2001. The first offender, David Ng, was convicted by jury of murder and armed robbery. A third man, Wai Kit Lo, had already pleaded guilty to the murder and been sentenced separately; his evidence was central to the trial of Ng and the second offender.

The second offender, Teck Lee Lew, had worked at the Tavern as a shift supervisor and had previously recommended Lo for employment there. Lew was convicted at trial of being an accessory before the fact to murder, and pleaded guilty to being an accessory before the fact to the robbery and to an earlier attempted robbery on 14 May 2001. Lew's role was confined to facilitating the plan, not participating in the physical attack.

The victim, Mr Stiffe, was the Tavern's manager. Ng and Lo concealed themselves overnight in the fire stairs, then confronted Mr Stiffe early the following morning. When Mr Stiffe's balaclava was removed during a struggle and he was able to identify Lo, he was killed with both a knife and a firearm. The offenders stole approximately $50,000 in cash.

  • What sentences were appropriate for Ng on the charges of murder and armed robbery, having regard to his level of culpability and the circumstances of the killing?
  • Whether the murder fell into the "worst category" of cases, given that the killing was not pre-planned from the outset but was nonetheless deliberate and executed in cold blood.
  • How to assess Lew's culpability as an accessory before the fact, particularly the degree of his knowledge about weapons and the risk of serious harm.
  • How to structure Lew's sentences across three distinct offences, including whether concurrent or cumulative terms were appropriate.
  • Whether parity principles applied, given that Lo (the co-offender who pleaded guilty) had already been sentenced separately.

Decision

Adams J found that although the murder was not premeditated in the strictest sense (the offenders had worn balaclavas to avoid identification, indicating they did not plan to kill from the outset), the killing was nonetheless a deliberate execution in cold blood once Mr Stiffe could identify them. The court found the offence did not fall into the worst category of murder, but only marginally so. The court was also unable to find, beyond reasonable doubt, that Ng was the instigator of the lethal assaults, and treated both Ng and Lo as equally culpable for all practical purposes.

In sentencing Ng, the court imposed a 35-year term for murder to run cumulatively on a seven-year fixed term for armed robbery, producing an overall sentence of 37 years with a non-parole period of 27 years and nine months. The court structured these sentences to reflect the seriousness of a calculated killing carried out in the course of an armed robbery.

For Lew, the court accepted that his involvement was an aberration and that he was unlikely to reoffend. The court found his guilt on the accessory before the fact to murder charge derived directly from his participation in the robbery enterprise, given that he had adverted to the substantial risk that serious injury might be inflicted. Because the accessory to murder charge was inextricably linked to the accessory to armed robbery charge, the sentences for those two offences ran concurrently. The attempted robbery on 14 May was treated as sufficiently separate in time to warrant some accumulation.

The court sentenced Lew to a total effective term of 15 years, comprising concurrent sentences for the robbery-related accessory offences, partially accumulated upon the earlier attempted robbery sentence, with a non-parole period of 12 years.

Orders Made

David Ng:
- Armed robbery: fixed term of seven years' imprisonment commencing 6 July 2001, expiring 5 July 2008.
- Murder: 35 years' imprisonment commencing 6 July 2003, expiring 5 July 2038.
- Overall sentence: 37 years, with a non-parole period of 27 years and nine months; earliest parole eligibility 5 April 2029.

Teck Lee Lew:
- Accessory before the fact to attempted robbery: fixed term of three years commencing 5 July 2001, ending 4 July 2004.
- Accessory before the fact to robbery with an offensive weapon: fixed term of five years commencing 5 July 2002, expiring 4 July 2007.
- Accessory before the fact to murder: 14 years commencing 5 July 2002, expiring 4 July 2016.
- Overall sentence: 15 years, with a non-parole period of 12 years; earliest release date 4 July 2013.

Key Takeaways

  • A murder committed to silence a witness who could identify the offenders was treated as a deliberate execution in cold blood, even where killing was not part of the original plan, placing the offence close to (but not within) the worst category of murder.
  • Where two offenders are both fully complicit in a killing during an armed robbery, a court may find them equally culpable for practical sentencing purposes even if one may have taken the more active role, provided the evidence does not establish that distinction beyond reasonable doubt.
  • An accessory before the fact to murder may be found guilty of that offence based on participation in a joint enterprise where the accessory adverted to the substantial risk that serious injury would be inflicted, even without specific knowledge that a killing would occur.
  • Concurrent sentencing for accessory before the fact to murder and accessory before the fact to armed robbery was appropriate where the murder arose directly and inextricably from the robbery enterprise.
  • The court assessed Lew's plea of guilty as carrying significant utilitarian value, reducing not only the issues at trial but also simplifying proceedings that would otherwise have complicated the accessory to murder charge.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 23 and 44

Cases:
- No specific cases were cited in the portions of the judgment provided. The sentencing of co-offender Wai Kit Lo (sentenced 9 May 2003 in related proceedings) was referenced and formed part of the factual foundation for these sentences.