Regina v AB [2006] NSWSC 69

New South Wales Supreme Court

CITATION : Regina v AB [2006] NSWSC 69

HEARING DATE(S) : 16/09/05; 28/11/05; 05/12/05; 10/02/06

JUDGMENT DATE : 17 February 2006

JURISDICTION : Common Law

JUDGMENT OF : Michael Grove J at 1

DECISION : SENTENCE IMPOSED

CATCHWORDS : CRIMINAL LAW AND PROCEDURE - ACCESSORY BEFORE THE FACT TO MURDER - INTENTION TO CAUSE GRIEVOUS BODILY HARM BY APPLYING ACID TO FACE - FACTS AND CIRCUMSTANCES ASSESSED - NO SPECIAL POINT OF PRINCIPLE FOR DETERMINATION

LEGISLATION CITED : Firearms Act 1996

PARTIES : Regina v AB

FILE NUMBER(S) : SC 2005/1367

COUNSEL : P. Power SC (Crown) D. Dalton (Prisoner)

SOLICITORS : Director of Public Prosecutions (DPP) Freemans (Prisoner)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST MICHAEL GROVE J

Friday 17 February 2006

2005/1367 - REGINA v A.B.

SENTENCE 1 HIS HONOUR: AB, you have pleaded guilty to an indictment charging that you were accessory before the fact to the murder of Dominic Li. As such you are in the category of what was once described as a principal in the third degree and, by Act of Parliament, you are liable to the same punishment as any principal offender. The available punishment extends to imprisonment for life. You ask me, and I shall, take into account on sentence pursuant to the Form 1 procedure, a further offence of possessing a firearm, namely a .32 Browning semi automatic pistol, contrary to the Firearms Act 1996. 2 There is an agreed Statement of Facts and I draw largely from it to recount this summary. 3 It is necessary to identify and describe the participation of others in circumstances which led to the murder in order to place your participation into context. 4 The findings I make are, of course, for the purpose of imposing sentence on you and the establishment of culpability of some others in the context of charges against them remains for determination. 5 Yong Kee Tan, amongst other things, operated a restaurant called the Warung Bandung. His other activities included dealing in illicit drugs. In that aspect of his activities there was an association with a person described as his boss, Emil Chang. 6 As well as for other reasons, you were known to Tan and Chang as the brother of a man who installed some airconditioning in the restaurant. 7 The victim Dominic Li was a partner in a firm of accountants which performed professional services for Tan in respect of legitimate business enterprises, which included the arrangement of student visas. 8 Tan approached Mr Li for assistance in investing a large amount of money which he had available. I am satisfied that this money was obtained by illicit activity, and it was Tan and Chang's desire to, as it is usually termed, launder it. Mr Li declined the approach and told Tan that he had no expertise as an investment adviser but recommended his brother-in-law Philip Ma. 9 During 2002 Tan gave Ma several hundred thousands of dollars, which it was apparently intended to launder by passing through the Crown Casino in Melbourne, ultimately acquiring cheques drawn by the Casino in lieu of cash initially used in gaming. Ma lost a considerable amount of this money and went into hiding. 10 Chang and Tan were unable to locate Ma, and, on their assumption that Li would know his whereabouts, decided to have Mr Li attacked as an indirect way of forcing Ma out of hiding or learning his whereabouts. Mr Li had told Tan that he had had nothing to do with the investment transactions, as was the case, after he had introduced Ma. 11 Chang and Tan determined that the attack on Mr Li would consist of splashing acid on his face in order to produce significant disfigurement. 12 Tan needed to find someone to execute this intention. Some weeks after you were released from gaol at the end of September 2002 he contacted you and asked you whether you would pour acid on the face of a victim and cause intended disfigurement. You declined to do this but told Tan that you could introduce a friend who might be interested in doing such a thing. You introduced Tan to Maua Sua and subsequently became aware that he had agreed to do what Tan wanted for a fee of $10,000. 13 I accept that you had been told by Tan that the intended victim had defrauded him. This was untrue, although you did not know it. I also accept that your knowledge of the enterprise was that it was intended to cause grievous bodily harm in the manner which I have described rather than the death of the victim. Your knowledge, to say the least, extended to intention to engage in horrific conduct. 14 Although you had declined to participate in the physical execution of the attack, you continued your involvement by holding the sum of $10,000, which was the payment agreed to be made by Tan. 15 Other activity by you included locating a hardware store from which acid could be purchased and passing that information to Sua. I am satisfied that you also persuaded your friend Dax Satorre to provide his car and act as driver to take Sua and his associate Richard Nimmo (who had been recruited to help him) to the scene. 16 In the proceedings, I sought clarification of a possible contradiction between the agreed facts and your part in Satorre's involvement. The chronicle of circumstances which can be derived from all the material placed before me establishes to the necessary standard that you were the link whereby he came to participate. 17 On Friday 13 December 2002 Satorre met Sua and Nimmo at a garage where they transferred from their car into his. He drove them to the home of the victim where he was in residence with his wife and fourteen year old son. 18 At an earlier point a video film had been taken in order to identify the premises. At your suggestion Sua and Nimmo went to the door carrying a large envelope, pretending to be couriers. Those two approached the door at about 7.30 am. Satorre remained nearby in his car. 19 Dominic Li's wife answered the door and called for her husband. When Mr Li answered the call, a pistol was produced. You had lent this pistol to Sua for use by him and Nimmo in the assault. It was later returned to you. That is the pistol to which the offence relates which you have asked me to take into account under the Form 1 procedure. 20 Both Mr Li and his wife were forced to the ground of their front porch and Mr Li was struck on the back of the head with the pistol. He was then turned onto his back and restrained by one of the two offenders whilst the other poured hydrochloric acid into his mouth. The pour into the mouth also included spillage of the chemical which caused severe burns and permanently blinded the victim. 21 After they had done this, Sua and Nimmo fled to the waiting car and Satorre drove them from the area. 22 Dominic Li's fourteen year old son attempted to rescue his father by pouring water over his face to dilute the acid which was steaming and bubbling as it lifted paint on the porch floor as well as causing ghastly injuries to Mr Li. 23 He was taken to Concord Hospital where, among other injuries, his permanent blindness was diagnosed. His pain level was such that medical treatment included an induced coma, however his life could not be saved and he died on Thursday 2 January 2003. 24 Some of the information which I have related has been able to be derived from the product of lawfully installed listening devices where you yourself spoke about various incidents of your involvement. 25 After the attack, Sua came to you to collect the payment which you were holding, which was passed to him less a sum of $1,000 as a fee to be paid to Satorre. 26 Insofar as you might be described as providing services for Tan, it is conceded by the Crown that there is no evidence that you profited financially. It is submitted on your behalf that you did not participate for reward, and in the financial sense, I accept that that is so. I do not accept, however, that you acted without an eye to advantage. It was acknowledged by your counsel that your assistance to Tan might be interpreted as being motivated by a desire to ingratiate yourself with a person who was a significant supplier of drugs to you. I am satisfied that you were so motivated and I do not regard it as a matter of great weight for reduction of your culpability that you did not seek or receive any money for your participation. 27 I do not need to elaborate upon the appalling fatal culmination of the series of events which I have described, and in which you have played a pivotal role, to define the high degree of seriousness of this offence. 28 I have said elsewhere in dealing with contract killing that such behaviour has the potential to attract the maximum sentence and, contracting to cause a gross form of grievous bodily harm, which in fact results in causation of death must come near to being in that category of seriousness. The gravity of your criminal conduct should not be underestimated. 29 Before turning to other matters I should refer to the circumstance that one participant, Dax Satorre, has already been dealt with following his plea of guilty to murder. Sua, Nimmo and Tan are awaiting trial and there are reports that Chang, who was arrested in Thailand, has died there. 30 It is acknowledged by the Crown and submitted on your behalf that I should pay regard to how Satorre was dealt with in setting a sentence for you. 31 He and you are in the same situation of offering a plea of guilty at the earliest opportunity. He has undertaken to assist the Crown in the prosecution of other offenders. It would appear that the evidence which Satorre would be available to give would be most valuable to the Crown in the prosecution of Sua, but of less certain value in the prosecution of Nimmo, whom Satorre saw only on the one occasion, and he apparently had no relevant contact with Tan. 32 I have briefly referred to Satorre's involvement as the driver of the car and the recipient of $1,000 for his activity. It might be mentioned in passing that the receipt of this sum by him was short-lived as it was used immediately to repay debt in respect of drugs supplied by you. 33 The offer of cooperation by Satorre has led to his being kept on protection in custody and this situation is likely to extend for a considerable period, if not the whole of his incarceration. 34 The assessment by Studdert J who dealt with Satorre was that his participation called for a head sentence of imprisonment for thirty two years. This was reduced by half, which his Honour disclosed as involving a discount of 30 percent for the plea of guilty, the contrition harboured by the offender and past assistance, and a further 20 percent for promised assistance not yet given. In the result Satorre received a sentence comprising a non parole period of twelve years and a total term of sixteen years. I note that I have been informed that an application for leave to appeal against sentence by him is pending. 35 I turn to some subjective matters. You were born on 1 April 1969. You were married and have four children to that marriage. You also engaged in a relationship with a young woman for a time and there is a further child from that now ended relationship. You are a native of the Philippines Republic and have permanent residency in Australia. You arrived here when you were aged 22. Some tertiary qualification was not recognized and you did not complete a local engineering diploma course owing to incarceration for drug offending. Your qualifications are confirmed by tendered documentation. You worked at various relatively unskilled occupations until 1997 since when you have been unemployed significantly owing to your substance abuse. 36 You have prior convictions dating back to 1996. In 2001 you were sentenced to imprisonment for eighteen months with a non parole period of eleven months for supplying a prohibited drug. It is disturbing to note that, having regard to the present Form 1 offence, there was on that occasion taken into account on another Form 1, an offence of possessing an unregistered firearm which was a pistol. Since the commission of the murder you have been sentenced for ongoing supply of prohibited drugs to imprisonment for three years with a non parole period of one year and nine months. On that sentence your specified release date was 21 January 2005. 37 It is an aggravating feature of the present offence that it was committed while you were subject to parole, indeed, as I have related, you responded to Tan's request to assist him to find someone to carry out his macabre intent within weeks of your release from custody. The circumstances do not provide a sound basis for estimating that you have good rehabilitation prospects. 38 Some favourable indication however can be derived from your willingness to assist in the prosecution of other participants. I have read the affidavit of comfort with its annexure, sworn on 14 September 2005 by Superintendent Wallace and note the undertaking signed by you on 16 September. I accept that, as a consequence of your promise of assistance and its anticipated fulfilment, it is likely that you will spend a considerable proportion and possibly the whole of your custody in protection, which is likely to be in some respects more onerous and with less opportunities than it would be if you served your sentence in general population. 39 Your counsel stated that you had heard that your life was in danger. Your capacity to testify about the participation of those yet to be tried makes it credible that you would be in fear. I cannot determine the existence, source or detail of any threat but that you would harbour such apprehension no doubt adds to the subjective burdens of being in custody. 40 I will take the foregoing matters into account in your favour in assessing sentence. 41 I accept that your offer of assistance is an indication of remorse as is your prompt plea of guilty. These matters will operate also to your benefit, the latter having practical benefit to the community and to witnesses in avoiding the necessity for your trial. 42 I have read the contents of your letter expressing apology and contrition. Through your counsel, you have emphasized that, in particular, your offer of assistance is motivated not just by anticipated discount to sentence but a desire to redeem yourself to the extent of acting honourably. I do not consider that the prospect of discount is ignored by you but I accept that your motive includes a somewhat nobler element. 43 It must be said however, that apart from those matters there is little that can be weighed in your favour in sentence assessment. 44 A major focus of submissions on your behalf has been the issue of parity between yourself and Satorre, neither of you being, as are Tan and Chang in a sense, principal contractors, nor as are Sua and Nimmo, being involved in actual physical execution of the killing. It is convenient to deal with aspects of your culpability in the context of some comparisons and contrasts adverted to on the issue of parity. 45 I recapitulate in brief your actions. You recruited Sua for the known purpose of seriously injuring the face of the victim by splashing him with acid. This treatment was to be meted out because you believed he had, in some way cheated Tan. You supplied a pistol to be used in the offence. You made arrangement for Satorre to provide transport. You scouted for a supply of acid and told Sua from whence it could be had. You held the money to be paid for the actual commission of the crime, and when it had been completed, acted, as a sort of paymaster. You received no financial reward, however I have already commented upon your indirect benefit of ingratiating yourself with a supplier of illicit drug to you. 46 Satorre's involvement was, for reward of $1,000, to supply his vehicle and himself as driver, to transport Sua and Nimmo to and from their car and the scene of the crime. 47 On the facts of your respective involvements I assess your overall culpability as greater than that of Satorre. 48 Satorre had a prior record described by the Crown in the proceedings against him as minor. He had not previously been committed to serve actual custody although he had, on an occasion received a suspended sentence. As I have observed, you had been released after custody to parole, which remained current, only a matter of weeks before commencing your involvement which led to the murder of Mr Li. 49 In terms of prior record Satorre would have a call for greater leniency than you. 50 Each of you is in the same situation of having offered pleas of guilty at the earliest opportunity. 51 Each of you has promised assistance and, in respect of interview with and supply of information to police, been of assistance in the past. In the context of intended prosecution of other offenders it is acknowledged by the Crown that, on one view, the assistance that you can offer is of greater value than that which can be offered by Satorre. That is a view which, for the reasons earlier adumbrated, especially your capacity to inculpate Tan, I would take. Indeed, in a written submission the Deputy Senior Crown Prosecutor accepted that assistance now being offered by you is of significantly greater value than that offered by Satorre. Ultimately the Crown submitted that although you have pleaded guilty to a different charge from Satorre, your culpability is able to be compared. I do not take that as a concession or submission that your sentences should be the same. 52 On your behalf it is submitted that there should be little distinction in the level of criminality and, given the added value of potential assistance, you should therefore receive a sentence less than Satorre or, alternatively at most, a sentence of the same order. 53 Whilst I have described the different objective activity of each of you and Satorre, it was submitted that your criminality should be assessed with a reduction by reason of your impaired mental state consequent upon your long term drug abuse. I note the opinion of Mr Ashkar that drug taking impairs your thinking and alters your personality. However in his report of 16 August 2005 he mentions that your claimed symptoms do not satisfy the criteria for anxiety disorder nor did you then manifest depressed mood or thought disorder. I also note your apparent consciousness of what you had got yourself into in various conversations captured by listening devices and in what you stated to police in interview with them. 54 It is claimed that you did not appreciate the seriousness of your actions because your drug taking made you befuddled. I was supplied with documentation concerning the study of the effects of the drug known commonly as "ice" of which you were a partaker. 55 I have read the general information tendered concerning the freebase form of methamphetamine, commonly called "ice", of which you were a user. In gauging the effect on you at the relevant time near the commission of offence, I place weight on your obvious appreciation of what you were involved in and your coherent later observations by which, among other things, you sought to minimize your role and dissociate yourself from the cruel conduct of those whose aims you had served and whom you had assisted by recruitment of people to carry them out. It is the effect of any partaking of "ice" by you which is relevant rather than what is canvassed in publications. As is noted in one of them, the effects of drug vary from person to person dependent upon many factors. 56 The issue is how did the drug affect you. In evidence you agreed with the Crown Prosecutor that taking the drug kept you awake, would make you feel good, did not make you feel aggressive and, indeed, made you feel in a more loving and happy mood. 57 I note the evidence of Mr Riley and I have no reservation about his bona fides but I regard his views as understandably skewed by his concerns about you, a long term acquaintance, for whom he, in charity, cares whereas objectivity does not put you and your actions into such favourable light. 58 I am not persuaded that your mental state was impaired by drug taking to a degree that it has become a factor which should reduce the level of your criminality. 59 The Crown has accepted that murder resulting from intention to do grievous bodily harm is not as serious as murder involving the intention to kill. I would agree with that as a general proposition but note that this was no impulse crime but a premeditated and planned infliction of a particularly gruesome form of grievous bodily harm. 60 I would assess an appropriate sentence for your crime, taking into account the not minor matter on the Form 1 at 36 years imprisonment. Given the date of offence it is appropriate to make that initial assessment of head sentence. 61 I would reduce that by half to accommodate any entitlement to consideration for the plea of guilty, both for practical and subjective matters pertaining to the pleas and for other mitigatory matters and particularly the offer of future assistance. I specify that one half of the discount (25 percent of the head sentence) is referrable in my assessment to that offer of future assistance. 62 I am not persuaded that by reason of special circumstances there should be a departure from the proportion of non parole period to total term which is provided in the sentencing legislation. 63 I do not consider that the discernible difference in final sentence received by you and that received by Satorre would reasonably give rise to a justifiable sense of grievance on your part, having regard to the matters which I have canvassed. 64 The non parole period of your current sentence for ongoing supply of a prohibited drug expired, as I have said, on 22 January 2005 and I find that it is appropriate to commence your sentence for this crime on that date. 65 AB, for your crime for being an accessory before the fact to the murder of Dominic Li, and taking into account the offence of possessing an unlicensed firearm, you are sentenced to imprisonment for eighteen years with a non parole period of thirteen years and six months, each to commence on 22 January 2005. The non parole period will expire on 21 July 2018, which date is specified as the earliest date of your eligibility for release to parole. **********