REGINA v LO

N THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT ON SENTENCE 1 HIS HONOUR: On 5 May 2003 the offender Wai Kit Lo pleaded guilty to the murder of Mr Nigel Stiffe on 22 May 2001 at Haymarket in Sydney. He has asked me to take into account in sentencing him on this offence, a further offence of attempted armed robbery of Mr Stiffe, committed on 14 May, about a week before the murder. The facts set out below are taken from the Statement of Facts tendered by the prosecution with the consent of the offender, who was represented by Mr Stratton of counsel. 2 The offender Wai Kit Lo had been employed by the victim Mr Stiffe, the Manager of the Market City Tavern in Haymarket for about 6 months, resigning some months before the offences. Teck Lee Lew, another employee at the Tavern, who had recommended him for employment, continued to work at the Tavern and remained in contact with the offender after he resigned. The offender told police (and the prosecution does not dispute) that about two months after he resigned he was approached by Teck Lee Lew who suggested that the offender should rob the Tavern. Although he was reluctant at first, he later agreed. 3 On the evening of 14 May 2001 the offender and another man (Sam Man Tran) were seen on closed circuit cameras installed outside the Tavern to enter the fire stairs from the outside. The offender later told the Police that he and the other man had balaclavas and the offender was armed with a metal pole taken from a dismantled shopping trolley. Sam Man Tran was armed with the offender's brother's knife. The two men were also seen on closed circuit cameras within the Tavern going from the fire-stairs to the cool-room/office area of the Tavern after Mr Stiffe had entered that area of the hotel, and were later seen returning to the fire-stairs. The offender said that they intended to carry out an armed robbery on Mr Stiffe, but they desisted and left the Tavern without committing the crime. Later that night the offender spoke with Teck Lee Lew about the failed robbery. 4 Call charge records obtained by police in respect of mobile telephones of the other suspects, Teck Lee Lew and David Ng, together with records for the home telephones for Lew and the offender show frequent telephone activity between them both before and after the failed robbery attempt on 14th May 2001 and before the robbery and killing of Mr Stiffe. After Mr Stiffe's murder Lew telephoned the offender via mobile telephone. 5 At about 9:00 pm on Monday, 21 May 2001 the offender and David Ng went from the prisoner's home to the Market City Tavern, Haymarket. The offender told police that they took with them a change of clothes, including tracksuits and balaclavas, to use during the robbery, that he was armed with a metal pole and his brother's knife and Ng was armed with a pistol. They remained hidden overnight in the fire stairs, which connect the three levels of the tavern. Police found fingerprints of the offender and Ng in the fire-stairs. Cigarette butts containing a mixture of DNA consistent with that of both the offender and Ng were also found there. Around 6:40 am on the following day Mr Stiffe arrived for work at the Tavern. At 7.48 am he entered the cool room/office area which is the area where he normally counts the money from the Tavern's takings. At 7:53 am the offender and Ng left the fire escape on level 2 and entered the office area. Both were wearing balaclavas and caps to conceal their identities from the closed-circuit television camera (CCTV) operating throughout the premises. The offender told police that he was armed with a metal pole and Ng with a knife and pistol. The offender said that he had handled the pistol whilst in the fire-stairs and that he knew that it had been later loaded by Ng. He told police that he and Ng put sticky tape on their hands to prevent their fingerprints being discovered. When they left the fire-stairs, the offender had the metal pole out. Both offenders were seen on video surveillance. The offender told police that Ng said "Let's go and do it" and he thought that they would "run into the office, see him [Mr Stiffe] sitting there, run up to him, knock him out, and then I'll grab the money, he'll [Ng] drag the guy and put him into the cool room, lock him up. That gives us approximately an hour to leave…" However, Mr Stiffe got up and walked into the cool room. The offender struck him from behind with the metal pole. A struggle ensued, during which the balaclavas of the offender and Ng came off and Mr Stiffe recognised the offender. He offered money to them to "walk away" but the struggle continued. Mr Stiffe attempted to escape through the office door into the office. He was overpowered and forced to lie on the floor. The offender gave the victim some tissues to wipe his face. The offender told police that Ng then attempted to shoot the victim but the gun misfired. He reloaded and re-cocked the weapon and shot Mr Stiffe in the back of his head. The offender told police that Ng then cut his throat. The offender felt the victim's pulse. Mr Stiffe was still alive. Then Ng cut his throat again. The offender told police that he did not want Mr Stiffe to be killed. 6 The offender removed approximately $50,000 in cash from the safe and the money, knife and metal pole were put into a backpack. The murderers left the premises by the fire stairs, attempting to hide their faces from the surveillance cameras. The two men then separated and met later at the offender's home. There they counted the money and divided it equally between them. 7 The offender later disposed of the firearm, a Phoenix 8 .22 calibre semi-automatic pistol in water in Bray's Bay off the Kokoda Memorial Walking Trail at Concord from where it was recovered on 25 May 2001. The offender's brother, Wai Man Lo, disposed of the knife used in the offences. 8 The body of Nigel Stiffe was discovered at about 11:20 am by the Assistant Manager. He was found lying face down in a large pool of blood. There were spatters of blood in his vicinity and near the door of the office. 9 The post-mortem examination by Dr Sugo, forensic pathologist, revealed that Mr Stiffe had died as a result of a single gunshot wound to his head and knife wounds to his throat. The weapon had been fired at very close range. There were a number of severe lacerations to his throat as well as abrasions to his head and numerous defensive wounds to his face, arms and hands. 10 The offender and Ng went from the offender's home to have haircuts which changed their appearance. They stayed the night at a friend's house at Epping, sleeping on the lounge and the floor. The next day they travelled by train to Brisbane, Queensland and stayed at a hotel overnight, returning to Sydney by air the following day. 11 On 27 June 2001, police released pictures obtained from the CCTV units in the Tavern on 14, 21 and 22 May 2001. These depicted offenders entering and leaving the Tavern before and after the offence. Police appealed for public assistance in the identification of the offenders. Immediately following this appeal, a phone call was lawfully intercepted between Ng and the offender, during which they discussed the media item and their involvement in the offence. Shortly after, the offender left his home and stayed at a motel at St Peters, a Sydney suburb, before attempting to leave Australia on 3 July. He was seen at the airport when he checked in on a flight to Manilla in the Philippines. The offender was arrested about 10:45 am as he was about to board the aircraft. 12 The offender was taken to Maroubra police station and there he participated in an electronically recorded interview. Amongst other things, he told police that he had gone to the Market City Tavern about the attempted robbery on 14 May, to which I have already referred. The offender also told police what took place on the morning of 22 May 2001, when Mr Stiffe was killed, and what he and Ng did following the crime, as (in substance) set out above. 13 Before the offender's arrest police had collected the following evidence: · Fingerprints of the offender located in the stairwell, · DNA of the offender detected on cigarette butts, · Security video footage from inside the Tavern, · The firearm used in the murder, · Conversations implicating the prisoner, recorded on telephone interception, · Conversations implicating the prisoner, recorded on listening devices, · Evidence of the prisoner's flight, · Evidence of the prisoner's change of appearance, · Evidence of association between co-offenders. 14 As I have mentioned, following his arrest, the offender made extensive records of interview implicating himself and his co-offenders. The offender has agreed to give evidence against his co-offenders and the Crown intends to call him. 15 The offender has been in custody since 3 July 2001. Because he has implicated his co-offenders, he is in strict protection, and is in the Special Purposes Prison at Long Bay. He will serve much, if not necessarily all, of his sentence in this custody. There is no doubt, therefore, that his imprisonment will be significantly harsher than that served by the ordinary run of prisoners. It is necessary that some adjustment should be made in the period of imprisonment to reflect this consideration. I have taken this into account in determining the appropriate discount mentioned below. 16 There was a paper committal in this matter. The offender pleaded guilty at the arraignment. For reasons which it is not necessary to detail, the sentence proceedings miscarried and the offender later withdrew his plea. The prosecutor has conceded that the circumstances are such that I should treat the offender as having pleaded guilty at the first practicable opportunity following committal. I am prepared to do so. 17 More problematic is the proper measure of culpability. The agreed bases for the plea are either or both that the offender is guilty of murder under s18(1)(a) of the Crimes Act 1900, the killing of the victim having occurred "in an attempt to commit or during or immediately after the commission by the accused…of a crime punishable by imprisonment for life or for 25 years" and that the murder of Mr Stiffe was a foreseeable incident of a common design with Ng to rob Mr Stiffe whilst armed. The crime being undertaken at the time Mr Stiffe was murdered was aggravated armed robbery under s97 of the Act, an offence punishable by 25 years imprisonment. The statement of facts was agreed between prosecution and defence. However, it does not refer to the motive of the offender in checking the victim's pulse or to whether, although he did not want (he says) Mr Stiffe to die, he was prepared to assist Ng to kill him. Mr Stratton submitted that the facts do not justify the conclusion, beyond reasonable doubt, that the offender was, in effect, a principal in the second degree, namely that he was present and ready to assist Ng or, at least, intended that Ng should think that he was prepared to help. Mr Stratton informed me that the prosecution would not submit to the opposite effect but took the position that it was for him to attempt to persuade the Court to the conclusion for which he contends. (I interpolate here that although it will be proper in many circumstances - and this is one - for the prosecution and the defence to agree on the facts to be presented to the Court on sentence, I do not consider that the prosecution should adopt the position of not making submissions on crucial issues that fall to be determined in the proceedings. Such submissions are designed to assist the Court in drawing appropriate conclusions, whether of law or fact, and an agreement such as that apparently made in this case cuts across the overriding duty of the prosecution to the Court.) It was submitted by Mr Stratton that I should accept that the offender foresaw the possibility that Ng might intentionally cause Mr Stiffe grievous bodily harm but not that he would intentionally kill him. In what I took to be a very carefully worded submission, he went no further than to argue: "There is no evidence that the accused either physically assisted in the acts causing death or that he intended Mr Stiffe to be killed". Although the offender gave evidence, he was not asked about the matters to which I adverted above concerning his state of mind, either by Mr Stratton or the Crown prosecutor. Certainly, the use of balaclavas suggests that it was not intended at the outset to kill Mr Stiffe, although no doubt they were also used to avoid possible identification by the CCTV units installed in the premises. It is obvious that Mr Stiffe was killed because he could identify Ng and the offender. The offender assisted Ng by checking Mr Stiffe's pulse to ascertain whether he was dead before Ng cut Mr Stiffe's throat for the second time. Although the offender said that he did not want Mr Stiffe to be killed, this does not reduce his culpability by much. It is not necessary, I think, to identify with precision - even if that were possible - the state of mind of the offender at the time of Ng's cold-blooded execution of Mr Stiffe. I am prepared to accept that he had conflicting emotions, that he was a follower rather than the instigator of the lethal assaults, that he had not foreseen that Mr Stiffe would be killed and that he did not actually intend Mr Stiffe to be killed. This is sufficient, though only barely sufficient, to take the crime out of the worst category of cases of murder. However, I think that the conclusion that, however reluctantly, he intentionally assisted Ng to murder Mr Stiffe is inescapable. (One consequence of not imposing a life sentence is, of course, that the offender will be eligible for parole, which where the sentence is lengthy, is a very significant amelioration of its severity.) 18 In summary, the robbery was carefully planned, indeed (so far as the offender was concerned) rehearsed, the offenders were armed with lethal weapons, the infliction of grievous bodily harm was foreseen if not intended, the murder was brutally accomplished, with the offender - knowing what his accomplice intended to do - assisting to the extent of checking whether the victim was still alive and, when he discovered that he was, standing by tacitly encouraging the infliction of a third cruel injury; they then completed the robbery and made good their escape. It is clear that the murder was committed to enable precisely this to occur. 19 The offender was the subject of a psychiatric examination by Dr Olav Nielssen who, as I understand his report, found that the offender's mental state was normal, with no symptoms of mental illness, thought disorder or other abnormality. Dr Nielssen noted that the offender reported being troubled by intrusive recollections of the offence, producing anxiety symptoms and disturbed sleep of a severity warranting antidepressant medication and made a diagnosis of adjustment disorder with anxiety symptoms because of the presence of a clinically significant level of anxiety arising from the offence. This evidence provides support for the doctor's opinion - though it is going too far, I think, to state this is a medical opinion - that the offender is genuinely remorseful. The offender gave evidence before me in which he expressed remorse for the commission of this offence. It seemed to me that this evidence was truthful and I have taken it into account. Apart from the inherent value of remorse, it provides some basis for accepting that rehabilitation is practicable although, of course, that will depend upon the character of the offender, about which it is not possible to be much more than speculative. 20 The offender was born in Australia, the third of four boys. His parents came here from Hong Kong and both worked fulltime to support the family, his father as a chef and his mother as a packer and piece worker. His upbringing was unremarkable. The offender stayed at school until year 12 in 1997, though his pass in the Higher School Certificate was very low, reflecting consistently low grades throughout his schooling. When he left school he started using drugs, attempting to abstain from time to time but always relapsing. He said that he supported his habit through his Social Security benefit, earnings from a variety of short-term jobs, pooling his resources with other drug users, selling his belongings and borrowing money. In May 1999 and June 2000 the offender was convicted of the offence of possessing a prohibited drug and placed on a bond, which was current when he committed the present offences. It appears that the offender's older brother is serving a long sentence for what was described as a contract killing but the offender denies that he was in any influenced by this into undertaking the present offence. 21 The offender was twenty-two when he committed this appalling crime. The strongest factor favouring rehabilitation has been found, in most cases, to be the simple fact of getting older. I am prepared to sentence the offender on the basis that there is a reasonable prospect of rehabilitation. Certainly it is in the public interest, as well as his own, that he be rehabilitated and the sentence should be structured to permit this to occur. It is a consequence, however, of the nature of strict protection custody that he is ineligible for day release. Of course, this consideration will not arise for many years. 22 A Victim Impact Statement has been tendered by the prosecution. In it Mr Stiffe's widow and the mother and step - mother of their three children aged 17, 14 and 2 years tells but briefly of the upright and generous character of her husband, her agonising loss and the dreadful impact of his murder on their family. What is done in this courtroom does not and cannot in any way compensate for their loss and pain. Yet it is right that we should, even in this small way, place on record the qualities of the man whose life was so ruthlessly ended and the suffering inflicted by his murderers on those who knew and loved him. 23 As I have said in other cases, however, by permitting Victim Impact Statements to be received in a hearing such as this, the law does not thereby place them to be weighed in the scales of justice. I respectfully agree with and adopt the careful reasoning of the Chief Judge at Common Law in R v Previtera (1997) A Crim R 76 at 85 ff as to why this must be so. The loss of a life is the gravest injury known to the criminal law. Accordingly, it is not made any more serious because the victim's death is the cause of pain or grief to others, however intensely felt. It would significantly undermine the moral standards essential to the rule of law if the life of one person were to be regarded as more valuable than the life of another or the killing of one person as more grievous than the killing of another, because of their personal or social circumstances. It would be wrong to take one day from an otherwise appropriate sentence for murder because the deceased was selfish, obnoxious, cowardly and without friends or family to grieve for him or her. By exact parity of reasoning, it cannot be right to add a day to an otherwise appropriate sentence because the deceased was generous, brave, loved and surrounded by friends and family. If this were not so, counsel for the murderer might rationally submit that, as the victim was of the former character, the crime was less grave and the sentence should be more lenient and the Crown prosecutor, by referring to a grieving family, submit to the contrary. The virtues or vices of the deceased, the extent of his or her social connections and whether the death caused grief or passed unnoticed by an indifferent public, would then become the subject of evidence and argument. The law will neither value a life nor punish a death by such a demeaning process. More difficult, perhaps, to accept but also important is the notion that the worth that the law ascribes to the life which has been lost is a reflection of that same sense of reason and humanity which requires value also to be ascribed to the lives of the persons who come to be sentenced. 24 In Veen v The Queen (No 2) (1988) 164 CLR 465 at 476, Mason CJ, Brennan, Dawson and Toohey JJ said - "...sentencing is not a purely logical exercise and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions..." 25 In dealing with offenders, the Court must remain objective and dispassionate. All the relevant facts must be carefully weighed. The circumstances of the crime include not only the result but also the events which gave rise to it, the intentions of the perpetrators, their personal characteristics and attributes and the various explanations for their criminal behaviour. The public interest as well as the personal interests of the victims must be reflected in the outcome. As is obvious, these considerations will be in tension, if not in conflict. 26 The courts have long held, and it is the law, that prospects of rehabilitation and reform are especially important in respect of young offenders, not only for their own sake but also in the public interest. For this reason, the sentence should "[preserve] a proper opportunity and encouragement for rehabilitation": Wood CJ at CL, R v Hearne [1999] NSWSC 605 at 77. Although the significance of this factor diminishes as the offender approaches maturity (Nguyen, unreported NSWCCA 14 April 1994) and when the offender conducts himself like an adult and commits a particularly serious crime (Tran, unreported [1999] NSWCCA 109), I consider it to be an important element in this case. 27 In R v Petroff (unreported, NSWSC 12 November 1991) Hunt J (as he then was) said, when dealing with a determination under s13A of the Crimes (Sentencing Procedure) Act 1989 - "Capital punishment has been abolished and (except in extraordinary cases...) the law does not regard itself as permitting a slower and more painful death by locking away the murderer and throwing away the key. In addition to retribution - and, of course, deterrence - the purpose of punishment is also to reform the offender as far as possible..." 28 As Allen J said in R v Crump (unreported, NSWCCA, 30 May 1993) - "It is the common experience of judges who have had to consider section 13A applications to note the remarkable effect which imprisonment for a decade or more so often has upon young offenders - notwithstanding how brutally and callously they acted when they committed the crime or crimes. Time and again one wonders: "how could this apparently well adjusted applicant be the person who committed such a crime?" Gone is the brashness. Gone is the bravado. Spent is the passion. Young offenders can change so much during a very long time in gaol as to present almost as an entirely different sort of person. … "I appreciate that the legislation in its present form empowers the Supreme Court to throw away the key, to deny to the prisoner any prospect of ever again being free to live a normal life. But in a civilised country only the most extraordinary circumstances would justify that course being taken - and what was said in the Parliament when the legislation was being enacted evinces a recognition of that." 29 The considerations which moderate the meting out of punishment, whilst keeping at the forefront the policy objectives of sentencing, are not applied primarily because of what is due to the offender but what is due to ourselves as a civilized and humane community. It is not so much because we respect the criminal but because we respect ourselves. 30 In this case there are two additional factors that must play a significant role in reducing the sentence which would otherwise be appropriate. They are, firstly, the fact that the offender voluntarily admitted his crime to the police upon his arrest and then pleaded guilty in this Court at the first practicable opportunity and, secondly, his undertaking to give evidence against his accomplices who, otherwise, might escape conviction. I note the contents of both Exhibits E and F. The discounts required to be given do not arise from any merit in the offender, although his plea and the giving of evidence are cogent evidence of remorse and contrition. The trial that must have been conducted if the offender exercised his fundamental right to require the prosecution to prove his guilt beyond reasonable doubt would not have been short or simple, though its outcome in terms of a verdict of guilty would have been almost inevitable. His plea has also avoided further distress to Mr Stiffe's family. There is a public interest, enshrined in the legislation of this State, that requires a significant reduction in sentence to be given in such cases. For obvious reasons, offenders should be encouraged to assist the authorities in bringing their accomplices to justice, although the bargain may be distasteful. Again, the public interest must take precedence over the imposition of an otherwise appropriately severe sentence. As is provided by s23(3) of the Crimes (Sentencing Procedure) Act 1989, the penalty imposed "must not be unreasonably disproportionate to the nature and circumstances of the offence". However, a sentence satisfying this requirement may well be such as would, in the absence of the matters to which ss 22 and 23 of that Act refer, be manifestly inadequate. 31 In the result, it seems to me that I should give an overall discount of 40 per cent from the sentence that I would otherwise have imposed. I take into account the offence on the Form 1. Although there are matters in this case capable of constituting special circumstances within the meaning of (the now repealed) s44 of the Act, the term of the sentence that will be imposed is such that a lesser non-parole period than is provided by accordance with subs44(2) is not justified. 32 Wai Kit Lo, you are sentenced to a term of 18 years imprisonment to commence on 3 July 2001 and expire on 2 July 2019. You will be eligible to be released on parole on 2 January 2015. Whether you have been sufficiently rehabilitated to justify your release at that time will depend upon the assessment of the Parole Board.

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