R v Tiwary

R v Tiwary - [2009] NSWSC 1415 - NSWSC 2009 case summary — Zoe

[11]

The Victims and the Offender 6 Mr Tay was born in 1977 and was 26 years of age at the time of his death. Mr Tan was born in 1976 and was also 26 years of age when he died. 7 The Offender was born in 1979 and was 24 years of age as at 15 September 2003. 8 The murders occurred in a rented top-floor duplex apartment occupied by Mr Tay, Mr Tan and the Offender at 2/109 Barker Street, Kingsford. Mr Tay had lived in those premises since July 2002. From March 2003, Mr Tay, Mr Tan and the Offender were living together in the premises. The apartment had four bedrooms, a bathroom, a living room and kitchen. It had separate entrances by way of stairways leading to the front door and the back door. 9 Mr Tay, Mr Tan and the Offender were all citizens of the Republic of Singapore. As at September 2003, each was enrolled at the University of New South Wales, with Mr Tay and Mr Tan studying electrical engineering and the Offender studying mechanical engineering. 10 Mr Tan and Mr Tay were due to graduate and complete their degrees at the end of 2003. Each had impressive academic records. Mr Tay was posthumously awarded a degree with second-class honours (Division 2) and Mr Tan was awarded a posthumous degree with first-class honours. 11 The Offender had enrolled at the University of New South Wales in 2000. He had a chequered academic record and did not enrol at the University for the first semester of 2003. 12 Mr Tan and the Offender attended the University on scholarships from the Singapore Armed Services. Mr Tay was privately funded in his studies. 13 The Offender had entered into an agreement with the Singapore Armed Forces whereby he was to pursue his studies diligently and satisfactorily. If he failed in fulfilling the agreement, he and his sureties could be called on to repay monies expended on and advanced to the Offender in regard to his University studies. On 10 June 2002, the Offender reported false examination results to the Singapore Armed Forces so that he could continue his studies financed by the military scholarship. He reported that he had passed all five subjects in semester two of 2001, when he had in fact passed two subjects and failed three. 14 Mr Tay was a quiet and studious person with no known connections to the underworld or criminal element. There was no evidence of any ill will or animosity between him and the Offender prior to 15 September 2003. Likewise, Mr Tan was a quiet and studious person with no known connections in the underworld or criminal element and there was no evidence of any ill will prior to 15 September 2003 between him and the Offender, nor between him and Mr Tay. 15 According to the evidence, Mr Tay and Mr Tan had no known enemies. Both were married men whose wives resided in Singapore. There was no evidence of any marital misbehaviour on the part of Mr Tan. Evidence was adduced at the trial indicating that Mr Tay was involved in what the Crown described, accurately, as a "long distance flirtation" with Jasmine Tan, a friend in Singapore. There was no evidence of any direct contact between them, other than a series of ICQ messages which were before the jury. Immigration searches revealed that Jasmine Tan and her then boyfriend (and present husband) were not in Australia in 2003 (Exhibits BK and BL). 16 Mr Tay was to graduate at the end of 2003. He was anxious to transfer the lease on the Barker Street apartment, and the responsibility for the payment of rent, to the Offender. Prior to 13 September 2003, Mr Tay had discussed with the Offender the prospect that the latter would become responsible for the collection of the rent and the payments of the rental monies. As at August 2003, the Offender owed Mr Tay $5,054.00 for arrears of rent and incidental expenses. The Offender had liaised with Mr Tay for a person named "Andrew" to become the fourth tenant of the apartment, and for "Andrew" to be responsible for a quarter share of the rent from July 2003 onwards. The Crown submitted at trial, and I accept, that the person "Andrew" did not exist and was a ruse of the Offender to have a fourth share of the rent allocated to a person unknown to Mr Tay, in order to reduce the amount of rent to be paid by the Offender to Mr Tay each month. The evidence revealed that "Andrew" owed Mr Tay $1,590.00 as rent for two months, bond money and incidental expenses. 17 On 15 August 2003, the Offender was sent an invoice from the University requiring immediate payment of fees in the sum of $7,271.00. The fees were not paid. 18 The only motive advanced by the Crown for the Offender to murder Mr Tay was the debt owed by the Offender with respect to the apartment, by reference to his own outstanding rent and the money payable by "Andrew". In addition, the Crown contended that there was increasing pressure upon the Offender as the end of 2003 drew near, given his agreement to take over from Mr Tay as the tenant of the apartment. Finally, the Crown pointed to the financial demand made by the University of the Offender for fees, all of which the Crown contended constituted a significant cumulative financial pressure upon the Offender, and a source of grievance between Mr Tay and the Offender.

[12]

Events Leading Up to 15 September 2003 19 On Saturday, 13 September 2003, the Offender purchased a softball bat from the Rebel Sports Store in Sydney. He took the softball bat to the apartment, where it remained until its use in the murder of Mr Tay and Mr Tan two days later. The Crown did not contend that the purchase of the softball bat by the Offender on 13 September 2003 evidenced a plan to use it as a weapon, let alone to kill, at that time. 20 In September 2003, the Offender was working part time as a security guard and he worked in this capacity at times on 13 and 14 September 2003. The Offender returned to the apartment at about 6.00 pm on Sunday, 14 September 2003 and watched television with Mr Tay and Mr Tan. The Offender went to bed and did not wake until about 6.30 am on Monday, 15 September 2003. 21 The Offender's then girlfriend, Elvira Metiljevic, gave evidence at the trial. At about 6.30 am on Monday, 15 September 2003, she rang the Offender and they spoke for about half an hour, arranging to meet that afternoon at the University at 2.00 pm. In his interviews with police, the Offender said that following this phone call, he showered, had breakfast and went back to bed. The Offender said that, at about 8.00 am, he heard what he thought was the television playing, but did not get out of bed at that time and went back to sleep. It was the Offender's account that the next noises he heard were the noises surrounding the killing of Mr Tan at about 2.10 pm. Clearly, the jury rejected the Offender's account given in recorded interviews. 22 Mr Tay's computer, located on the desk in his bedroom, was switched off manually at 10.16 am on 15 September 2003. 23 Mr Tan's computer, located in his bedroom, was last used at 12.02 pm on 15 September 2003 and was manually shut down immediately after that use. Before then, Mr Tan had sent emails at 10.42 am and 11.06 am to his thesis supervisor, Professor Ambikairajah. I accept that Mr Tan was immersed, at that time, in preparation of his thesis. 24 It was the case that Mr Tan and Mr Tay, who were reasonably close friends, would usually attend University classes together. On 15 September 2003, however, Mr Tan left the Barker Street apartment shortly after midday to attend a lecture at the University of New South Wales which was nearby. Mr Tay remained at the apartment.

[13]

The Murder of Mr Tay 25 Consistent with the jury's verdict, I find that the Offender attacked Mr Tay with the softball bat in the lounge room of the apartment soon after midday on 15 September 2003. This time can be determined in the following way. As will be seen, it is reasonably clear on the evidence that Mr Tan returned to the apartment soon after 2.00 pm that day. Shortly thereafter, consistent with the jury's verdict, the Offender attacked and murdered Mr Tan in the apartment. By that time, Mr Tay was already dead. 26 Evidence was given by Dr Duflou, pathologist, which touched upon the time of the initial attack on Mr Tay and the time of his death (T495-496, T503-504, T524-525). Dr Duflou referred to examinations conducted by Dr Rodriguez, neuropathologist. Examination of Mr Tay's brain by Dr Rodriguez revealed the presence of the substance Beta AAP, which becomes visible after survival of Mr Tay for a period of between at least 30 minutes and about two hours. In this case, Dr Rodriguez was of the opinion that the substance became visible after about two hours, that is from the time when the head injuries were inflicted to him. I accept that Mr Tay survived for about two hours between the time he was struck to the head and the time of death. 27 Accordingly, I find that Mr Tay was attacked by the Offender with the softball bat shortly after midday on Monday, 15 September 2003. Mr Tay sustained two injuries to the head at that time. The first injury was a blunt-force injury and the second was a laceration to the back of the head. Dr Duflou testified that Mr Tay had died as a result of blunt-force head injury to the back of the head, and observed as well a stab wound to the neck and multiple superficial stab wounds to the forehead, and probably blunt-force defensive injuries to the left hand. The blunt-force injuries were consistent with having been caused by an object such as the softball bat. 28 The stab wound to the neck had minimal bleeding and this indicated that, when inflicted, Mr Tay was either very close to death or had died. 29 Dr Duflou stated that it was possible that a kitchen knife (Exhibit K) caused the stab wound to the neck. The kitchen knife came from the cutlery drawer in the kitchen of the apartment. 30 I note the finding of Adams J at [7] that it was very likely that, after the Offender had attacked Mr Tan, he checked whether Mr Tay was dead by pricking his forehead with the knife, and thinking that he was or might be still alive, he then stabbed him in the throat. Before me, the Crown submitted that the appropriate finding was that the Offender had stabbed Mr Tay in the neck shortly before Mr Tan returned to the apartment to ensure that Mr Tay was dead. 31 I note that forensic examination of the softball bat and the knife did not disclose any of Mr Tay's blood on either object. The Crown contended that the Offender had washed the softball bat in the period following the attack upon Mr Tay and the return of Mr Tan to the apartment. The absence of Mr Tay's blood on the knife did not sit comfortably with the Crown's hypothesis that the Offender had stabbed Mr Tay shortly before Mr Tan's return to the apartment, nor is it consistent with the view of Adams J that Mr Tay had been stabbed by the Offender after the murder of Mr Tan. I note that Mr Tan's blood was detected on the knife and the softball bat. 32 There is no direct evidence as to events leading the Offender to viciously attack Mr Tay with the softball bat. The Crown contended that the attack on Mr Tay by the Offender was motivated by a dispute concerning the monies owing by the Offender to Mr Tay for past rent, and the Offender not taking over and making the lease payment on 13 September 2003, in the context of other financial pressures upon the Offender, including the requirement to pay University fees. At one level, it is difficult to understand how such a dispute could lead to an extremely violent and homicidal attack upon Mr Tay. On the other hand, I accept that the build up of financial pressure upon the Offender created a grievance between him and Mr Tay. Of course, there may have been other unknown factors which contributed to the attack on Mr Tay. For whatever reason, it was the Offender who savagely attacked and killed Mr Tay on 15 September 2003. 33 The jury was directed that there was no obligation upon the Crown to prove motive in the trial and that motive was not an element of the crime of murder (SU31). However, the jury was directed that motive can be an issue in the trial and that the presence or absence of motive, or the nature of the motive which is suggested, may bear upon a determination as to whether the jury was satisfied beyond reasonable doubt that it was the Offender who killed Mr Tay and Mr Tan (SU31): De Gruchy v The Queen [2002] 211 CLR 85 at 92-93 [28]-[32]; R v Vjestica [2008] VSCA 47; 182 A Crim R 350 at 382-383 [112]-[115]. 34 The Crown submitted, and I accept, that the Offender left the body of Mr Tay behind a couch in the living room and positioned a chair at the end of the lounge to camouflage the presence of the body from Mr Tan when he arrived home. 35 The Crown acknowledged that it was not possible to determine whether the attack by the Offender on Mr Tay arose suddenly out of an argument between them that day, or whether there was premeditation. The Crown did not submit that the purchase of the softball bat two days earlier supported a finding that its criminal use upon Mr Tay was planned. I am not in a position to make a finding one way or the other. No finding of planning and premeditation adverse to the Offender can be made in these circumstances. Of course, that does not automatically lead to a finding that the attack was spontaneous. The Court is simply not in a position to make a finding either way on this aspect. 36 I am satisfied beyond reasonable doubt that the Offender intended to kill Mr Tay at the time when he stabbed him in the neck. I am satisfied that the Offender intended, at the very least, to inflict grievous bodily harm on Mr Tay at the time of the initial attack with the softball bat.

[14]

The Murder of Mr Tan 37 Mr Tan arrived at the University at about 12.15 pm, a little late for his midday lecture. The lecture concluded early at about 1.50 pm. A number of witnesses observed Mr Tan at the University that afternoon, some noting that Mr Tay was not with him. Some also observed that Mr Tan appeared distracted, and he indicated to one witness that he would not be attending a session later that afternoon. After leaving the lecture hall, Mr Tan walked to the steps leading from the University to the corner of Willis Street and Oval Lane, Kingsford. This was a well-used pedestrian pathway to and from the University. He was observed by witnesses at the Willis Street steps shortly before 2.00 pm. He was seen to enter a vehicle parked in Willis Street near the steps. Other persons were in that vehicle. There were different descriptions of the vehicle by the two witnesses who testified on this aspect. Although it was a relatively short walk from the Willis Street steps to 109 Barker Street, Kingsford, I accept that Mr Tan was conveyed by vehicle to his residence that afternoon. 38 A defence argument at trial was that persons in that vehicle were involved in the murder of Mr Tan. The jury rejected that suggestion, and the associated suggestion that the same persons may have been involved in the earlier murder of Mr Tay. 39 I accept that Mr Tan was dropped at 109 Barker Street, Kingsford and that he walked up stairs and entered the apartment by the front door. If he had entered via the rear stairs, he would have immediately come across Mr Tay's body on the lounge room floor, together with heavy areas of blood staining. 40 By this time, the Offender had determined that it would be necessary to kill Mr Tan on his return to the apartment. Having regard to the jury's verdict, I accept the Crown submission that his motive for killing Mr Tan was to remove him as a witness who could harm the Offender with respect to the murder of Mr Tay. Of course, Mr Tan had not been present when Mr Tay was murdered. The attack upon Mr Tay had occurred some time prior to Mr Tan's return to the apartment after 2.00 pm. However, I accept the Crown submission that the Offender perceived that Mr Tan was in a position to shed light upon the relationship between Mr Tay and the Offender, and the dispute between them, which may explain how the Offender would come to attack Mr Tay. Beyond that, the Crown submitted that the Offender had already determined to give an account to police and others of events whereby a stranger or strangers had killed Mr Tay, and that the murder of Mr Tan was necessary as well so that the Offender could thereby use the same explanation for the deaths of the two men. 41 I accept that the Offender had washed Mr Tay's blood from the softball bat before the return of Mr Tan to the apartment. The likely explanation for the absence of Mr Tay's blood on the knife was that the Offender had washed this as well following his use of the knife on Mr Tay, but that this use occurred in sufficient time before the return of Mr Tan to the apartment to allow the knife to be washed in this way. I note that the forensic examination of the apartment did not disclose any obvious signs of the washing of items to remove blood in the kitchen or bathroom. 42 The Crown submitted that Mr Tan entered the apartment by the front door and eventually entered the kitchen, where he commenced to cook chicken wings in a pot. Mr Tay's body was on the lounge room floor, but the positioning of a chair would have rendered it difficult for a person to observe the body on entering the kitchen. 43 I accept that the attack upon Mr Tan commenced in the lounge room. The Offender wielded the softball bat which struck Mr Tan to the head and face. Blood stains and tooth fragments of Mr Tan support a finding that this was the location of the commencement of the attack upon Mr Tan. Dr Duflou determined that the direct cause of death of Mr Tan was the combined effect of blunt-force head injury and stab wounds to the neck. There were 10 wounds to Mr Tan's head, two to the right ear, one to the left eye and one to the mouth. He received massive fracturing of the skull. Dr Duflou considered that the amount of force required to cause these head injuries would have been considerable over a period of time, involving multiple swings of the softball bat with significant force behind it. There were five knife wounds to Mr Tan's neck. Because the two major knife wounds to the neck were very close together, Dr Duflou considered that it was likely that Mr Tan was unconscious, or was prevented from moving his head whilst these injuries were sustained. 44 Paint scrapings were taken from the eastern wall of the lounge room in the vicinity of Mr Tay's blood, and from the western wall in the vicinity of Mr Tan's blood. The softball bat was also examined for this purpose. A scientific examination of the three items (the paint scrapings from the two walls and the softball bat), revealed that traces on the three items were indistinguishable with respect to colour, fluorescence, infrared spectroscopy and pyrolysis gas chromatography mass spectrometry. This evidence pointed to one-way transfer from the softball bat to the two walls, producing dark marks on the walls. However, examination of the softball bat could not reveal a two-way transfer, namely presence of the wall paint on the softball bat. Nevertheless, the evidence of the one-way transfer, taken with the balance of the evidence, supported a conclusion that the softball bat had been used as the weapon which inflicted blunt-force head injuries to both Mr Tay and Mr Tan and I so find. The presence of Mr Tan's blood on the bat fortifies this finding. 45 The forensic evidence, including the pattern of blood stains, points to the attack upon Mr Tan commencing in the lounge room with Mr Tan then fleeing down the hallway towards the front door, whilst being further attacked with the softball bat until he slumped in the corner at the front door where further blows were struck, and then finally the knife wounds inflicted to his neck. 46 The beating of Mr Tan was so savage that it exposed his brain and parts of the damaged skull penetrated his brain. I am satisfied beyond reasonable doubt that the Offender intended to kill Mr Tan at the time of the attack upon him with the softball bat and knife.

[15]

Events After the Murders 47 The Offender made a '000' call at 2.20 pm on 15 September 2003, which was terminated some 10 minutes and 27 seconds later. He advised the operator that his two friends were dead and when asked what had happened, the Offender replied "I have no idea. I was asleep and I heard this screaming, and I, when I turned my two friends are dead". The Offender's case at trial, arising from the content of the '000' call and statements made by him to police in recorded interviews, was that he was asleep in his bedroom when Mr Tay was killed, and that he was woken by Mr Tan's scream just prior to the murder of Mr Tan. He said that he did not emerge from his bedroom until after the attack on Mr Tan was completed and there was silence in the apartment. The Offender said that he emerged from his bedroom and approached Mr Tan, who was propped up on the floor near the front door. There was evidence before the jury from a number of persons that the Offender had a propensity to sleep in the afternoon. The verdicts of the jury, however, involve a rejection of the Offender's account that he was sleeping at relevant times. 48 Observations of the Offender in the street after arrival of the ambulance and police revealed blood spots on his feet and forearms. Later examination revealed that this was Mr Tan's blood. It was the evidence at trial that the blood spots on the Offender were consistent with either medium velocity impact spatter (deposited upon the Offender in the course of his attack upon Mr Tan) or expirated blood (deposited upon the Offender by a spontaneous cough reflex of Mr Tan whilst blood was deposited in his nose or airways). Given the competing explanations available for the presence of the blood, with one explanation being an innocent one, this aspect of the evidence was, on its own, inconclusive. I accept, however, that the jury considered the totality of the circumstantial evidence, leading to this feature being damaging to the Offender. 49 As I have mentioned, although Mr Tan's blood was identified on the softball bat and the knife, it could not be demonstrated that Mr Tay's blood was present on either object. At trial, the Crown observed that an area of the knife was positive for blood on a screening test, but could not provide a DNA analysis. In the end, it may be stated that there was direct and positive evidence of the presence of Mr Tan's blood on each object, but no evidence of the presence of Mr Tay's blood, although the forensic evidence did not entirely exclude that possibility. 50 By their verdicts, the jury rejected the exculpatory version of the Offender arising from the '000' call, statements made in the street to police and ambulance officers, and in police interviews conducted with him on 15 September 2003, 18 September 2003 and 28 May 2004. 51 The Offender was arrested and charged with the murders on 28 May 2004, and has been in custody since that time.

[16]

The Offender's Subjective Circumstances 52 No evidence was adduced in the sentencing proceedings before me concerning the Offender's background. However, I was invited to proceed upon the basis of the findings made by Adams J at [16]ff, based upon an affidavit of the Offender's father which was read in the sentencing proceedings before his Honour, without objection by the Crown. In addition, the evidence of the trial, including the Offender's recorded interviews, revealed a good deal of information concerning his family background and circumstances. 53 As mentioned earlier, the Offender was born in 1979 and was 24 years of age at the time of the offences. He is now 32 years old. He was born in India, but moved to Singapore with his family when he was three years old. The family then moved to Brunei, where the Offender's father obtained a job as a teacher. 54 The Offender's father retired at the end of 2003 and returned to Singapore. 55 The Offender did exceedingly well at his high school studies, and qualified easily for A levels which placed him in the top 90%-95% of his cohort. He wished to undertake engineering studies, but such a course was not available at the University of Brunei and, in any event, when he finished his secondary education, he was required to perform national service in Singapore. 56 The Offender returned to Singapore in 1998 and entered national service in March of that year. He was selected for the officer cadet school and, in due course, was commissioned as a lieutenant. He volunteered for commando and ranger courses which he undertook, but less than successfully. 57 As mentioned earlier, the Offender gained admission to the University of New South Wales and was granted a training award by the Singapore Armed Forces, leaving Singapore for Sydney in July 2000. 58 Adams J found at [18] that the Offender was part of a strong, loving and supportive family. I am aware that some members of the Offender's family travelled to Sydney to be present during parts of his recent trial. 59 The Offender has no criminal history and has been in custody since his arrest on 28 May 2004.

[18]

Assessment of Sentences 63 The Crown submitted that the sentences imposed by Adams J were appropriate and that no good reason existed for imposing any lesser sentence for the murders committed by the Offender. As I have mentioned, Mr Dalton SC acknowledged that the sentences imposed by Adams J were not inappropriate for the person who committed these crimes, although fundamental to this submission was the Offender's continuing denial that he had killed either man or was involved, in any way, in their murders. 64 The maximum penalty for murder is imprisonment for life: s.19A Crimes Act 1900. A standard non-parole period of 20 years applies for the crime of murder: s.54A Crimes (Sentencing Procedure) Act 1999. 65 Section 61 Crimes (Sentencing Procedure) Act 1999 provides for a mandatory sentence of life imprisonment where a person is convicted of murder, and the Court is satisfied that the level of culpability and the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. 66 The Crown submitted that a determinate sentence ought be fixed for the murder of Mr Tay, but a life sentence ought be fixed for the murder of Mr Tan. 67 I accept that features which bear upon the objective seriousness of the murder of Mr Tay include the fact that the Offender was someone whom Mr Tay trusted, the fact that Mr Tay was murdered in his own home, that extreme force was used with the softball bat to Mr Tay's head, that the Offender did not seek any medical help or intervene in any way on behalf of Mr Tay, but left him dying on the lounge room floor, that the Offender stabbed Mr Tay a considerable time (up to two hours) after the initial attack with the softball bat and that the likely motive for it was a financial benefit or, at least, the avoidance of a financial detriment. 68 Factors bearing upon the objective seriousness of the murder of Mr Tan include the fact that the Offender was a person whom Mr Tan trusted, that the Offender's motive for the murder was to silence Mr Tan as a potential witness adverse to him with respect to the murder of Mr Tay, the extreme force used in the attack upon Mr Tan in the lounge room and hallway culminating in a savage and lethal attack using a combination of the softball bat and then the knife. 69 There was a significant time gap between the two murders, and a link between the two, in that the murder of Mr Tan was carried out with the Offender perceiving that it would assist and advance his position in explaining his murder of Mr Tay. 70 The Offender has shown no contrition or remorse for either crime. 71 The Offender's subjective case, involving prior good character and the other positive features to which reference has been made, is entirely secondary to the grave objective seriousness of the crimes for which he has been convicted. 72 It is necessary for the Court to consider the question of the appropriate sentence for each crime separately. 73 For the murder of Mr Tay, Adams J imposed a sentence of imprisonment for 25 years and did not set a non-parole period. No doubt, his Honour took this course because of the life sentence imposed for the second murder. 74 The Crown acknowledged that the principles in R v Gilmore (1979) 1 A Crim R 416 would apply here so that, following a second trial, the Offender should ordinarily not receive a longer sentence or non-parole period than those imposed in the first trial. I accept that this principle has application. 75 In my view, the murder of Mr Tay lies close to the middle of the range of objective seriousness. I see no foundation for a finding of "special circumstances" so that the ratio in s.44 Crimes (Sentencing Procedure) Act 1999 ought stand. I propose to fix a sentence of imprisonment of 25 years, commencing on 28 May 2004 for the murder of Mr Tay, with a non-parole period of 18 years and three months to date from 28 May 2004. 76 I turn to the sentence to be passed for the murder of Mr Tan. 77 The burden of proving that a case falls within s.61(1) rests on the Crown, and the standard of proof is beyond reasonable doubt: R v Merritt (2004) 59 NSWLR 557 at 567 [35]. The primary focus of the legislation is directed towards an assessment of extreme culpability. 78 A life sentence is required if the culpability is so extreme that the community interest (in the combined effect of such of the factors of retribution, punishment, community protection and deterrence as are applicable) could only be met by a life sentence: R v Merritt at 568 [42], 570 [54]. 79 If a life sentence is imposed in this State, it means a sentence for the term of the person's natural life: s.19A(2). It is not open to the Court to set a non-parole period and there is no prospect of release, save for the prerogative of mercy: R v Harris (2000) 50 NSWLR 409 at 429 [122]-[125]. 80 I am conscious that it is an incorrect approach to sentencing to compare the facts of the case at hand with other cases in order to determine whether it does, or does not, fall within the worst case category, deserving of the maximum sentence: R v Merritt at 575 [65]. 81 However, I have considered other sentencing cases in this State where a person has been sentenced for multiple murders. I have taken this course to identify the application of relevant sentencing principles in those cases, rather than by way of a factual comparison to inform a decision as to whether the murder of Mr Tan falls within s.61 of the Act. 82 In R v Mehta [2009] NSWSC 814, Grove J imposed a sentence of 30 years' imprisonment for the first murder and life imprisonment for the second murder, where an offender had pleaded guilty to the two crimes. The offender had murdered his partner, and then a nine-year old child who had witnessed him strangling the child's mother. His Honour found that the mother had been killed for a financial motive and an entirely different and subsequently formed motive, namely to silence a possible witness to murder, inspired the offender to kill the child. There was nothing mitigating in the closeness in time between the two murders. Grove J found at [41]-[42] that the murder of the child fell into the worst category of that crime, and that a sentence of life imprisonment was appropriate given its heinousness. His Honour observed at [49] that the requirements of s.61 Crimes (Sentencing Proceedings)1999 had been demonstrated with respect to the murder of the child. 83 In Ta'ala v R [2008] NSWCCA 132, the Court of Criminal Appeal considered a sentence appeal where an offender had pleaded guilty to two counts of murder committed on the same day, where the second killing was designed to prevent the report to the police of the first murder. Determinate sentences were imposed, giving rise to a total overall sentence of imprisonment for 47 years with a non-parole period of 38 years and six months. Although the sentencing Judge had assessed the second murder as falling within s.61, a determinate sentence was fixed for it, in the exercise of discretion. There was no Crown appeal in that case. The appeal was allowed in part to cure a mathematical error which had occurred in the sentencing process. The total effective sentence was one of 47 years' imprisonment with a non-parole period of 35 years. 84 I have considered other cases in which an offender has been given determinate sentences for multiple killings, including De Gruchy v The Queen, above, and R v Hill [2003] NSWCCA 128. 85 I am faced with the position in this case where the Crown submits that a finding of Adams J that the murder of Mr Tan was in the worst-case category ought be adopted, and where Mr Dalton SC acknowledges that this approach is not inappropriate for the murder of Mr Tan. 86 It remains a matter for me to make a finding as to whether I am satisfied beyond reasonable doubt that s.61 applies, so that the maximum penalty should be imposed for the murder of Mr Tan. 87 An assessment of the heinousness of the murder of Mr Tan involves consideration of the following matters, arising from the verdicts of the jury:

[22]

(d) this was not a spontaneous act by the Offender, immediately deciding to kill Mr Tan who had just witnessed the murder of Mr Tay - rather, the evidence in the trial, and the verdicts of the jury, lead to the unavoidable conclusion that this was an execution of Mr Tan to assist the Offender in what he perceived to be his own defence against the allegation that he had murdered Mr Tay: R v Villa [2005] NSWCCA 4 at [87]. 88 I have given careful consideration to the question whether a life sentence should be imposed upon the Offender for the murder of Mr Tan. I can only take that course if I am satisfied beyond reasonable doubt that the requirements of s.61 have been met, so as to warrant imposition of the maximum penalty. Having assessed the factors which bear upon that decision, I am not satisfied beyond reasonable doubt that this case meets the requirements of s.61. The murder of Mr Tan was a very grave crime, and this will be reflected in the lengthy determinate sentence to be imposed. However, I am not satisfied beyond reasonable doubt that the maximum sentence should be imposed in this case. 89 I have given anxious consideration before reaching this conclusion, which differs from that reached by Adams J. 90 It is necessary to fix a sentence for the murder of Mr Tan. The objective seriousness of this crime lies well above the middle of the range of objective seriousness. It lies close to, but not at, the point where a life sentence ought be imposed. There is no practical ceiling to the non-parole period which ought be set by reference to observations made in R v Folbigg (2005) 152 A Crim R 35: Ta'ala v R at [39]-[43]. I am satisfied that a non-parole period of 30 years should be fixed, with a balance of term of 10 years. I do not find "special circumstances" so as to vary the ratio under s.44 Crimes (Sentencing Procedure) Act 1999. 91 Having determined an appropriate sentence for each offence, I must consider questions of accumulation, concurrence and totality. The total effective sentence must represent a proper period of incarceration for the totality of the criminality involved: R v AEM [2002] NSWCCA 58 at [70]; R v Knight (2005) 155 A Crim R 252 at 272 [112]. 92 There must be a significant level of accumulation, having regard to the fact that two murders were committed, with the latter having additional aggravating factors surrounding it. Although there was a link between the two murders which were, in a sense, part of a course of criminal conduct on the afternoon of 15 September 2003, there must be a significant level of accumulation to reflect the commission of two separate murders, involving differing levels of criminality. 93 I will direct that the sentence for the murder of Mr Tan should commence on 28 May 2012. As a result, the total effective sentence will involve a head sentence of 48 years' imprisonment with a non-parole period of 38 years, expiring on 28 May 2042. 94 Will the Offender please stand. Ram Puneet Tiwary:

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Judgment (26 paragraphs)

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Cases Cited (10)

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