R v Ng [2002] VSC 562

Supreme Court of Victoria|2002-12-12|Before: TEAGUE J

Criminal Law - Sentencing - Murder - Shooting of taxi driver in course of robbery - Killing intended but not long planned - Guilty plea - Nineteen years imprisonment - fourteen years non-parole period

Edward Shane Ng. You have pleaded guilty to the murder of Cameron Rudd at Dandenong on 14 November 2000. You did not know the deceased personally. Cameron Rudd was a taxi driver, doing his job.

For two years or so into the year 2000, you worked as a baker at Tip Top Bakeries on the Cranbourne side of Dandenong. In that time, you acquired a 9 millimetre handgun. In November 2000, you had left your job as a baker. You were living in your car, an old Commodore, at Cranbourne and elsewhere. On the night of 14 November 2000, you left your car parked off the South Gippsland Highway near the race track. You had no money and you were hungry. You walked around the Cranbourne shopping centre trying to get some food or some money. You had with you your handgun. It was loaded and cocked and ready to fire. You decided to rob someone to get some money. Cameron Rudd was your chosen victim.

His taxi was at a taxi rank in Cranbourne. You got inside and sat in the rear nearside seat. You got him to drive you from Cranbourne to Dandenong. You were later to tell the police that he drove you first to the Tip Top Bakeries factory, and then to Centre Kirkham Road. I do not accept that. I am satisfied that the deceased drove you into James Street, Dandenong. I am not able to make precise findings as to what happened there. I am satisfied that you shot the deceased when the taxi was in that vicinity. I am also satisfied that you had at that time the intention to kill him.

Once having shot the deceased, you were left with dilemmas. How to dispose of the body? How to get his wallet? How to get back to Cranbourne? How to minimise the prospect of being caught? The dilemmas were the greater because the fatal shot to the head of the deceased had caused bleeding.

You released the deceased's seat belt. You moved the deceased sufficiently to the centre area of the front seat to enable you to drive the taxi. You then drove it to Centre Kirkham Road, Dandenong. You parked it there at the end of what is a cul de sac in an industrial location. You pulled the deceased out of the taxi. You put him out on to the ground on his back. You took his wallet from his pants. You took a blue bag that was under the driver's seat. You drove back to Cranbourne. You left the taxi behind the Kentucky Fried Chicken shop. You headed towards your own car. You took some cash out of the deceased's blue bag. You threw the bag into an empty paddock. You took more cash out of the wallet. You then threw the wallet into a drain.

Your plan to minimise the prospect of your being caught almost worked. Indeed, it probably would have succeeded, if you had disposed of the handgun. You chose not to do that. Later in November, you sold the Commodore. You chose to steal or at least to illegally use a Falcon. At the end of December 2000, you were out driving in the Falcon. You still had with you in a bag the handgun with which you had shot the deceased. You pulled into a motel off Springvale Road to make some repairs to the Falcon's bumper bar. Police from Nunawading spoke to you in the driveway of the motel. The police told you to stop and turn the motor off. Instead, you drove off along Springvale Road with the police in pursuit. You drove into Highbury Road. Off Highbury Road, you stopped the car and ran, still being pursued by police. You dropped the bag containing the handgun. You were caught not long after that. You were interviewed by the police. In your account to the police, you added your spin. You portrayed events in a way more favourable to you. You said that the handgun was not yours. That was a deliberate lie. You were later to admit that it was a lie.

After that incident, you went back to living with your family in Lower Templestowe. In early May 2001, firearms examiners established the link between your handgun and the bullet that killed the deceased. On 11 May 2001, you were arrested by the police and interviewed as to the murder of Cameron Rudd. You gave an account to the police that in many respects has been shown by other evidence to be correct. But I am satisfied that your account, as to a number of matters, also contained deliberate lies.

I will briefly summarise why I do not accept as a credible account what you said as to having been driven first to the Tip Top Bakery factory and then to where the body of the deceased was left, but not via James Street. There were several witnesses who saw the deceased's taxi or heard shots in or near James Street. There were too many witnesses giving relatively consistent accounts for me to treat them as irrelevant. Further, the evidence as to distances and times, based on taxi meter readings and the like is more consistent with a stop at James Street than with your version. Further, I regard the amount of, the location of, and the pattern of blood in the taxi as being particularly significant. What was found is much more consistent with movement of the taxi over a couple of kilometres and a few minutes, than with a prompt removal of the deceased on the spot. Before I listened to the evidence and the submissions on the plea, I had reservations as to your capacity to drive at all, let alone a couple of kilometres, next to a 113kg corpse, partly sharing the same seat, partly wedged between the vertical sections of the two front seats. At the end of the plea, I was able to recognise that it was not implausible as I had first thought. Further, as I have noted earlier, there were good reasons for your not wanting to remain near James Street. Some improvisation and ingenuity had to be shown and you were up to the task.

I have found that, when you fired the fatal shot, you intended to kill Cameron Rudd. You told the police that the gun just went off. Implicitly you were saying that the firing of the gun was unintended. I do not accept that. I have carefully watched the videotape which shows your demonstration of what you say happened. I have taken account of the position of the entry wound and other aspects of the forensic evidence. I find the actions as described by you implausible as to timing and as to space. Further, I find it implausible that the deceased would opt to try to grab the gun, given his vulnerable position, and given that he had other more sensible options including just handing over what money he had, or setting off the stress button. Further, the presence of the unfired bullet in the back is much more an indication of intended acts than otherwise. Further, I take account of the circumstance that your handgun was less susceptible than most to an unintended firing given that the trigger had to be moved idiosyncratically down as well as back. Further, I take account of your actions after the shooting in inferring what your intention was at the critical time. You drove to a relatively isolated spot. You turned the body over to remove the wallet. You retained the handgun.

I have spent somewhat longer on my findings of facts than I do generally. I did so in part in deference to the submissions of Mr Montgomery, and in part because of what I perceived to be my obligation in this case in the light of recent authority. Even on the position as argued on your behalf by Mr Montgomery, you made a lot of troubling deliberate choices: To acquire a handgun; to carry it around loaded and cocked and with the safety catch off; to plan to rob a cab driver in his cab; to make a demand in a threatening way; to produce a handgun to reinforce the threat; and to aim the handgun at the victim's head with the finger on the trigger. Your choices created a situation for yourself where you were susceptible, with the slightest stimulus, to form the intention to kill, or for that stimulus to lead to the gun being fired anyway. Even if I had not been satisfied to the requisite standard as to intent, as I am, the difference in sentence would not have been significant.

Before I turn to your personal circumstances, I would record that I have read with attention to detail the victim impact statements lodged with the court. They come from the deceased's wife on behalf of herself and her two children, and from a brother of the deceased. The adverse financial consequences to them have been bad enough. The adverse emotional consequences have been devastating.

You are 35 years of age, having been born in January 1967. You are the second of six children. You have a supportive family. You have had a relatively normal education. You have worked as a driver and factory hand and baker. You have prior convictions, but they do not indicate a disposition for violence.

General deterrence must play a significant part in the sentence that I fix. The deceased was a taxi driver doing his duty. Taxi drivers serve the community at all hours of the day and night. They are vulnerable people. They are vulnerable in a random way. The community would expect that the random killing of one of them would not be dealt with leniently.

On the other hand, there are considerations which do warrant an appropriate reduction in sentence. One, and an important one, is your plea of guilty. The other is the high level of your co-operation with the police.

You have served to today, 580 days by way of pre-sentence detention. I direct that that be noted in the court records. I sentence you to nineteen years imprisonment. I fix a non-parole period of fourteen years.

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