Regina v Tan [2007] NSWSC 684

New South Wales Supreme Court

CITATION : Regina v Tan [2007] NSWSC 684

HEARING DATE(S) : 28 May 2007

JUDGMENT DATE : 29 June 2007

JUDGMENT OF : Price J at 1

DECISION : Sentenced to imprisonment for life.

CATCHWORDS : Criminal Practice and Procedure - sentencing - murder - joint criminal enterprise to inflict grievious bodily harm - contract attack - extreme culpability - worst category of offence of murder - life sentence.

Crimes (Sentencing Procedure) Act 1999 s 3A, s 9, s 21A, s 61(1) LEGISLATION CITED : Crimes Act 1900 s 19A(2), s 19A(3), Crimes Act 1914 (Cth) Firearms Act 1996

Gas v The Queen (2004) 217 CLR 198 R v Harris (2000) 50 NSWLR 409 R v Isaacs (1997) 41 NSWLR 374 CASES CITED : 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

PARTIES : Regina Yonky Tan

FILE NUMBER(S) : SC 2006/882

COUNSEL : Mr Maxwell QC - Crown Mr Ierace SC - Prisoner

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

PRICE J

29 June 2007

2006/882 Regina v Yonky TAN

Remarks on Sentence

1 His Honour: On 1 December 2006 the prisoner Yonky Tan was convicted by a jury of a charge of murdering the deceased Dominic Li at Sydney on 2 January 2003. 2 It is my duty to determine the facts relevant to sentencing the prisoner. My view of the facts must be consistent with the verdict of the jury and the findings of fact I make against the prisoner must be arrived at beyond reasonable doubt: see R v Isaacs (1997) 41 NSWLR 374 at 378 – 379. 3 At about 7.30am on 13 December 2002 the deceased was savagely attacked by two men on the porch of his home at Concord where he lived with his wife and 14-year-old son. As a consequence he died on 2 January 2003. 4 It was not the Crown case that the deceased's attackers had intended to murder him. The Crown contended that a joint criminal enterprise existed to inflict grievous bodily harm on the deceased, that the prisoner and the co-accused Richard Nimmo and Maua Sua were participants in that joint criminal enterprise, as were Emil Chang, [AB] and [E]. The accused Nimmo and Sua were alleged to be the deceased's attackers on 13 December 2002. The jury found Nimmo and Sua not guilty. They were not satisfied beyond reasonable doubt of the identity of the two assailants. 5 The Crown case against the prisoner depended to a significant extent on the evidence of [AB] who had earlier pleaded guilty to a charge of being an accessory before the fact to the murder. On sentence he was given a 25 per cent discount for undertaking to give evidence in the trial. [AB]'s evidence included accounts of a telephone conversation between the accused Sua and the prisoner during which Sua agreed to carry out the attack for $10,000.00, and of a meeting at Aurora Drive Tregear which Sua, [AB] and the prisoner attended. He also recounted a telephone conversation between Sua and the prisoner on the afternoon of the day of the attack during which Sua told the prisoner that "the job" had been done. 6 A difficulty for the Crown in the cases against Sua and Nimmo was the evidence of identification given by the deceased's wife and Mr Edema, a neighbour, which did not match these two accused. The acquittal of Sua and Nimmo showed that the jury was not prepared to accept all of the evidence of [AB] beyond reasonable doubt. 7 Considerations of identification formed no part of the jury's deliberations in the case of the prisoner. There was a large amount of evidence in the Crown case against him which provided independent support for [AB]'s evidence which included emails, records of telephone calls and SMS messages, telephone intercepts and the evidence of Phillip Ma and Shirley Pang. 8 In the case of the prisoner, the issue at trial was whether he had procured the attack on the deceased. The prisoner in evidence denied that he had done so. It is clear from the jury's verdict that they rejected his evidence. My findings of fact are consistent with the Crown case. I find the prisoner's evidence to be largely untruthful. 9 The deceased was a Sydney accountant. The prisoner and his wife had been his clients. In about April 2002 the deceased introduced his brother-in-law Phillip Ma to the prisoner who asked him to gamble money for him for which Ma was to receive a commission of seven per cent. The prisoner had access to large amounts of cash in which Emil Chang had an interest. The purpose in engaging Ma was to have him launder the cash by using it to gamble at the Melbourne Casino. Ma met with the prisoner about six times and was given a total of about $780,000.00 in cash. Ma's efforts at the baccarat table failed dismally and about $500,000.00 of the cash he received was lost. The deceased was not involved in the money laundering nor in Ma's loss of the money. 10 The Crown has invited me to find that the money given to Ma came from the sale of prohibited drugs. On the evidence given in the trial I am unable to make such a finding. I am satisfied beyond reasonable doubt that the only rational inference to be drawn from the extent of the cash available to the prisoner, his testimony at trial of the businesses in which he was involved and his motive in engaging Ma is that the money was unlawfully obtained. 11 Ma signed an I.O.U dated 21 July 2002 in which he acknowledged that he had borrowed $513,363.00 from the prisoner and would return the money within three months, which he was unable to do. At a meeting in the front of Star City Cafe, the prisoner told him to pay the money back within two weeks and Ma's photograph was taken by the prisoner's wife. The prisoner placed pressure on the deceased to get the money back which Ma owed. During a meeting between Ma and the deceased in about September 2002, the debt was discussed. The deceased told Ma to telephone the prisoner as the prisoner had been ringing him up hassling him. Ma rang the prisoner telling him he was unable to pay. The prisoner said he didn't care and he knew many people who could shoot him. Threatening SMS messages were received by Ma and two copies of the photograph taken by the prisoner's wife of Ma with the words "dead or alive" upon them were placed on the loading dock wall of Betta Electrical where Ma sometimes worked. Ma went into hiding. 12 Chang and the prisoner became increasingly frustrated and angry that Ma would not repay the money. A plan was conceived by Chang to have the deceased attacked to flush Ma out of hiding which the prisoner embraced. They agreed that hydrochloric acid would be used to disfigure the deceased's face. 13 The prisoner rang [AB] saying "I need you to do something for me" which was "to throw acid on this man's face". He told [AB] that the man was going to "rip" him off. When [AB] declined to do so, the prisoner asked if he knew anyone who would be interested in doing it. In a further telephone conversation with [AB], the prisoner made an offer of $6,000 for someone to carry out the assault. 14 By an SMS message, the prisoner sent [AB] the deceased's address. He provided him with a camcorder containing a video of the deceased's home and gave him $10,000.00 which by then had been agreed upon for the attack. He advised [AB] that it was better to give the gun to the assailants because the deceased "is an expert in Kung Fu." The prisoner sent [AB] a text message with the instruction that he wanted "the guy to look like a pig" and made enquiries of him as to when the attack was to happen. [AB] was told by the prisoner that the best time for the attackers to go to the deceased's home was early in the morning before he went to work. 15 Three persons were contracted by [AB] to attack the deceased. [E] was one of them. His role was to provide and drive the car which took the attackers to the home of the deceased. One thousand dollars was to be his share for his participation in the crime. 16 As I have mentioned, the attack took place at about 7.30am on 13 December 2002. [E] had earlier driven with the two men to the deceased's home. Whilst driving around the block, the deceased's house was identified. Leaving the engine running, [E] parked the car around the corner from the home and the two assailants got out. [E] remained seated in the vehicle. One of the assailants knocked on the front door carrying a package which had "Dominic Li" on it and pretended to be a courier. The deceased's wife answered the knocking and called her husband who came to the door. The deceased had been brought to the front door of his home by the ruse of a parcel delivery. When the screen door was opened, one of the assailants pulled him by his collar and tie onto the front verandah and forced him into a kneeling position. The other attacker appeared pointing a pistol at the deceased's wife's head forcing her to kneel. Both men were armed with pistols. One of them kicked the deceased and struck him on the head with a pistol. The other poured hydrochloric acid from a bottle onto the deceased's face and body which he inhaled and ingested. The assailants decamped to [E]'s vehicle and were driven away. 17 Having been woken by his mother's screaming, the deceased's son ran to the kitchen where he saw her in distress. He then saw his father lying on his back on the verandah. The deceased was breathing deeply, his lips were whitish in colour and there was blood near his head. The son noticed an overwhelming pungent chemical odour. In an attempt to wash the acid off his father, he poured a partly filled bucket of water over him. The deceased's wife had telephoned the ambulance which arrived a short time later. Ambulance officer Harris described seeing a yellow-type substance steaming on the front verandah. 18 Some yellow liquid taken from the verandah steps was analysed by Ms Katarina Burda, a senior analyst with the Physical Evidence Laboratory of the Division of Analytical Laboratories and was found to contain a strong solution of hydrochloric acid. The deceased's socks, shirt and singlet were examined and were found to be stained and damaged by contact with a strong solution of hydrochloric acid, as were a number of pieces of paper which had been found in his pockets. 19 A strong solution of hydrochloric acid had been used in the attack to inflict hideous injuries upon the deceased.