Citation: REGINA v TON [2000] NSWSC 1023 revised – 8/11/2000
Court: Supreme Court of New South Wales, Common Law Division
Date: 3 November 2000
Judge(s): Adams J
Background
The offender, a young man, participated in a street robbery in Sydney's CBD on 25 April 1999. He and an associate targeted a nineteen-year-old student who had just used an ATM, snatching her handbag. As the two men fled in different directions, a bystander intervened and physically detained the offender, producing what appeared to be a police badge and identifying himself as a police officer.
The offender stabbed the bystander twice in the left side of the chest with a knife he was carrying. One wound damaged a major pulmonary vein, and the bystander died from blood loss shortly after arriving at hospital. Adams J found beyond reasonable doubt that the offender genuinely, though mistakenly, believed the man was a police officer at the time of the stabbing.
Following his arrest, the offender made extensive denials to police and maintained his innocence for some time. He eventually confessed to his sister while on remand and, when arraigned in the Supreme Court, pleaded guilty to murder. Both prosecution and defence accepted that the relevant intent was to cause grievous bodily harm rather than to kill.
Legal Issues
- What was the appropriate sentence for the murder, having regard to the objective gravity of the offence?
- What weight should be given to the offender's youth and personal background as mitigating factors?
- What discount, if any, was warranted for the guilty plea, given the offender's earlier lies to police?
- Whether the statutory relationship between the head sentence and the non-parole period should be departed from, and if so by how much.
Decision
Adams J found the objective circumstances of the murder to be very serious. The killing occurred in the course of a street robbery, and the stabbing was carried out to avoid apprehension. The court acknowledged, however, the offender's mistaken belief that the victim was a police officer as part of the factual context, without treating it as substantially diminishing the gravity of the offence.
On the subjective side, Adams J identified several mitigating factors: the offender was young at the time of the offence, had no prior convictions for violence, had experienced significant disadvantage including drug addiction from a young age, and demonstrated genuine remorse and contrition. The court accepted that his initial denials to police reflected deep shame and an inability to confront what he had done, rather than a calculated strategy, though those lies nonetheless limited the credit available.
Regarding the guilty plea, Adams J applied a 20 per cent discount on utilitarian grounds. The court noted that, while the plea was formally entered at an early stage, the offender had told extensive lies to police and effectively maintained his denial until his arraignment. This history placed his plea toward the lower end of the range for credit. Remorse was taken into account separately but could not be isolated as a discrete mitigating element.
Adams J departed from the standard statutory relationship between the head sentence and the non-parole period, setting a longer non-parole period relative to the overall sentence. The court cited the offender's youth, the nature and context of the offence, his history of drug addiction from a young age, and the need for a longer period of post-release supervision as justifying that departure.
Orders Made
- The offender was sentenced to a total term of 22 years' imprisonment.
- A non-parole period of 14 years was set.
- The sentence was backdated to commence on 27 April 1999, the date the offender was taken into custody.
- The earliest eligible parole date was set at 26 April 2013.
Key Takeaways
- A murder committed to avoid apprehension during a street robbery was treated as objectively very serious, notwithstanding that the offender held a genuine but mistaken belief that the victim was a police officer.
- The 20 per cent guilty plea discount was calibrated downward from the maximum available, because extensive lies told to police and maintained until arraignment diminished the utilitarian value of the plea, even though the plea itself was formally entered early.
- Genuine remorse and contrition were taken into account as part of the overall assessment of subjective features, but the sentencing court noted it was not possible to assign a discrete mitigating value to that factor in isolation.
- Departure from the standard statutory head sentence to non-parole ratio was justified where the offender's youth, drug addiction history, and the need for extended post-release supervision were all present together.
- Statements made by the offender to acquaintances on the night of the killing, before any police contact, carried significant evidentiary weight in establishing the facts of the offence.
Legislation and Cases Referenced
Legislation:
- Sentencing Act 1989 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Administration of Sentences) Act 1999 (NSW)
Cases:
- R v Previtera (1997) A Crim R 76
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Hearne [1999] NSWSC 605
- Nguyen (unreported, NSWCCA, 14 April 1994)
- Tran [1999] NSWCCA 109
- R v Petroff (unreported, NSWSC, 12 November 1991)
- R v Crump (unreported, NSWCCA, 30 May 1993)
- Siganto v The Queen (1998) 194 CLR 656
- R v Winchester [1992] 58 A Crim R 345
- R v Thompson; R v Houlton [2000] NSWCCA 309