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[2003] NSWSC 781
plaintiff. Ng and Lew were sentenced as stated, with an overall sentence of 37 years for Ng and 15 years for Lew; Lew’s attempted-robbery sentence was partly accumulated, while the robbery and murder...
The judgment sets sentences for two offenders involved in a robbery in which a tavern manager was killed. Ng was treated as a willing participant in the robbery and murder and received an overall sentence of 37 years. Lew was treated as substantially less culpable because he did not attend the robbery or take part in the killing, although his involvement and failure to prevent the crime remained relevant. His overall sentence was 15 years. The judge said the victim impact statement could acknowledge the deceased and the family’s suffering, but could not increase criminal punishment.
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Adams J’s judgment concerns the sentences imposed on David Ng and Teck Lee Lew for offences arising from a robbery at the Market City Tavern and the killing of its manager, Nigel Stiffe. The judgment was delivered in the Supreme Court of New South Wales on 20 August 2003. It followed Ng’s jury trial and Lew’s joint trial, as well as Lew’s guilty pleas to two accessory offences.
No linked legislation citations have been extracted yet.
There were two relevant criminal episodes. On 14 May 2001, Wai Kit Lo and Sam Man Tran went to the Tavern armed with a metal pole and a knife, but left without attacking Mr Stiffe or completing the attempted robbery ([4]). Lew had pleaded guilty to being an accessory before the fact to that attempted robbery ([1]).
The later robbery was carried out by Ng and Lo. They went to the Tavern with a change of clothes, disguises, a metal pole, a knife and a pistol, then hid overnight in the fire stairs. The next morning, they entered the office area while Mr Stiffe was there. They struck him with the pole, overpowered him and killed him. The post-mortem examination identified a fatal knife wound to his throat and a bullet wound to the back of his head ([5]). They took about $50,000 from the safe ([8]).
The jury found Ng guilty of murder and armed robbery. Lew was convicted as an accessory before the fact to murder. He had pleaded guilty to being an accessory before the fact to the robbery with an offensive weapon, and to the earlier attempted robbery ([1]). The judgment’s central sentencing task was to distinguish Lew’s role from the more direct participation of Ng and Lo.
The judge’s assessment of Ng began with his role in the crime. Ng had become involved before the robbery and willingly participated. Although the evidence did not establish beyond reasonable doubt which of Ng and Lo played the greater part in the killing, the judge was satisfied that they were both fully complicit and, for practical purposes, equally culpable in the murder ([6]). The judge considered that the murder was not planned from the outset, but that Mr Stiffe was deliberately killed after he could identify the offenders ([7]).
The judge found Ng to be a willing participant who needed little encouragement to take part in a very serious crime involving potentially lethal weapons. The assessment also took account of his lack of demonstrated remorse and the absence of signs of reasonable prospects of rehabilitation ([15]). The judge treated deterrence and community protection as more significant in Ng’s case than in Lo’s, while expressly stating that Ng was not to be sentenced for crimes he had not committed ([15]).
Lew’s role was different. He was not present when the robbery took place and did not participate in the killing. The judge accepted that Lew may have told Lo that he no longer wished to be involved and may have tried to dissuade him. But Lew did not take steps to make sure the crime did not proceed. The judge inferred that he did not raise the alarm because doing so could expose his earlier involvement and threaten his employment ([11]). Accordingly, the asserted withdrawal did not provide a defence on the judge’s findings, but his withdrawal from active participation was relevant to sentence ([11], [20]).
The judge also found that Lew had appreciated the risk that a blow to the head with the metal pole could cause serious injury or wounding, though the judge was not satisfied beyond reasonable doubt that Lew foresaw grievous bodily harm. The judge did not find that Lew contemplated the possibility of death, or that he knew a gun or knife would be taken ([10]). Lew’s position of trust at the Tavern aggravated his criminality ([12]).
Other considerations in Lew’s favour included his guilty pleas, his conduct in prison, his family circumstances and the judge’s assessment that he was unlikely to offend again ([16]–[17]). The pleas simplified the trial and involved admissions the Crown could not have been confident of proving, so the judge considered they deserved recognition in sentence ([17]).
The sentences also reflected the relationship between the offences. The attempted robbery on 14 May was separate in time and occasion and therefore required some accumulation. By contrast, the murder accessory offence arose directly from Lew’s involvement in the robbery and was too closely connected to it for a sensible separation in sentence. The judge ordered those two sentences to run concurrently ([21]).
This judgment is a sentencing decision, not an appeal judgment setting out a general doctrinal test. The supplied text does not provide a survey of the legal position before the case, nor does it describe later changes in the law. It would therefore be unsafe to use this judgment alone to make claims about the broader before-and-after state of sentencing law.
The judge identifies ss 22 and 23 of the Crimes (Sentencing Procedure) Act 1989 when discussing the 40 per cent deduction applied in Lo’s earlier sentence ([19]). The judgment also refers to the statutory calculation of a non-parole period under s 44. There is an internal citation inconsistency: paragraph 20 refers to “s44 of the Crimes (Sentencing Procedure) Act 1999”, while paragraph 19 identifies the Act as the 1989 Act. This analysis reports the discrepancy rather than resolving it from outside material.
Within this particular sentencing exercise, the judge explained that the starting point for Lo’s sentence had reflected the objective and subjective features of his case before the discount associated with his guilty plea and assistance ([19]). The judge did not treat that starting point as a fixed comparator controlling Ng’s sentence. Lo’s sentence had included an allowance for the robbery, which had been taken into account on a Form 1, and the judge regarded that treatment as part of the process of inducing Lo to plead guilty and give evidence ([20]). Ng was sentenced separately for armed robbery, with most, but not all, of that sentence concurrent with the murder sentence ([20], [22]).
The judgment’s reasoning is therefore best understood as its application of sentencing considerations to these offenders, not as a complete account of statutory law or a statement of how later courts applied the decision.
At [6], the judge said that although Lo’s account suggested Ng played the major role, the judge could not be satisfied of that beyond reasonable doubt. Both men were fully involved and, for practical purposes, equally culpable in the killing. In plain English, the judge did not resolve the uncertainty about who did more during the killing in Ng’s favour or against him. The judge sentenced on the basis that both were seriously implicated.
At [11], the judge stated that Lew’s private indication that he no longer wanted to be involved was “no defence” because he took no steps to stop the crime from occurring. In plain English, saying privately that one has changed one’s mind was not enough to defeat the charge on these facts. The judge nevertheless considered the claimed withdrawal when assessing sentence at [20].
At [18]–[19], the judge described the victim impact statement as a means of recording Mr Stiffe’s qualities and the suffering experienced by those who loved him. The judge also said it could not be weighed in the balance of criminal punishment. In plain English, the statement was acknowledged as an account of loss and grief, but the judge did not use it to increase the punishment.
At [21], the judge said there could be “no sensible separation” between Lew’s accessory-before-the-fact robbery and murder offences, so those sentences should run concurrently. By contrast, the earlier attempted robbery was sufficiently separate to require some accumulation. In plain English, the sentence structure reflected how closely connected the offences were in time and criminal context.
The judgment is most directly relevant as an example of sentencing where offenders have different levels of participation in a robbery that results in a killing. It illustrates the court’s close attention to each person’s role, what they knew or foresaw, whether they were present, whether they participated in the violence, and whether they tried to withdraw or prevent the crime.
For Lew, the judge distinguished between his involvement in planning or assisting the robbery and his absence from the scene. The judge also examined what risk of injury Lew appreciated, distinguishing that from whether he contemplated death or knew weapons such as a knife or gun would be used ([9]–[12]). These findings show why a sentencing comparison between participants can depend on specific findings about knowledge, foresight and conduct, rather than the shared fact that the victim died.
The judgment also addresses sentencing where one offender pleads guilty to some charges but contests another. Lew’s pleas simplified the trial and made admissions relevant to the remaining charge, which the judge took into account ([17]). The decision further illustrates sentence structuring where multiple offences arise in connected events, but one offence is separate in time and occasion ([21]).
The judgment should not be read as establishing that every private withdrawal is legally ineffective in all circumstances. Its statement concerns Lew’s conduct as found by Adams J, including the absence of steps to prevent the robbery and the judge’s inference about why he did not raise the alarm ([11]).
The supplied judgment contains no later decisions applying, distinguishing, following or otherwise treating this case. It also contains no later history or citation analysis. No account of subsequent judicial treatment can therefore be given on the material provided.
The decision itself refers to Adams J’s earlier sentencing of Lo, including the starting point, the discount associated with ss 22 and 23, and Lo’s cooperation as a witness ([2], [19]–[20]). That is the judge’s explanation of the comparison relevant to Ng and Lew, not evidence of how later courts treated the present judgment.
For research purposes, the case’s later citation history would need to be checked against a current legal database or other appropriate legal source. That history is not contained in the judgment reproduced here.
The judgment does not provide the trial evidence in full or reproduce the earlier reasons for sentencing Lo. Some of the sentencing comparison therefore depends on material the judge says was set out elsewhere ([2], [19]–[20]). The precise treatment of the robbery on the Form 1 in Lo’s case is mentioned, but not explained in detail here ([20]).
There is also a limit to what can be concluded about Lew’s foresight. The judge found that he foresaw a risk of significant injury, at least amounting to a wounding, but did not find beyond reasonable doubt that he contemplated grievous bodily harm or contemplated death ([10], [20]). The judgment does not set out a broader legal test for accessory liability or explain the full legal elements underlying the convictions. It records the judge’s findings for sentencing.
The statutory citation inconsistency concerning s 44 should also be noted: paragraph 20 names the Crimes (Sentencing Procedure) Act 1999, while paragraph 19 names the 1989 Act. The judgment does not explain the discrepancy. Finally, because the supplied text gives no later cases, it leaves open how subsequent courts have understood or applied its discussion of withdrawal, relative culpability, victim impact statements and sentence structure.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
CITATION : REGINA v NG, REGINA v LEW [2003] NSWSC 781 revised - 2/09/2003 HEARING DATE(S) : 25/5/03 - 28/5/03, 2/6/03 - 5/6/03, 10/6/03 - 13/6/03, 16/6/03 - 20/6/03 JUDGMENT DATE : 20 August 2003 JURISDICTION: Common Law JUDGMENT OF : Adams J at 1 DECISION : David Ng: Sentenced on the charge of armed robbery to a fixed term of seven years' imprisonment to commence on 6 July 2001 and expire on 5 July 2008. In respect of the crime of murder you are sentenced to a term of thirty-five years' imprisonment to commence on 6 July 2003 and expire on 5 July 2038. The overall sentence is therefore thirty-seven years. I impose a non-parole period of twenty-seven years and nine months. The earliest date upon which you will be eligible for parole is 5 April 2029; Teck Lee Lew: For the crime of being an accessory before the fact to attempted robbery you are sentenced to a fixed term of imprisonment of three years commencing 5 July 2001 and ending on 4 July 2004. In respect of the offence of being an accessory before the fact to the crime of robbery with an offensive weapon, you are senenced to a fixed term of imprisonment of five years commencing on 5 July 2002 and expiring on 4 July 2007. In respect of the crime of being an accessory before the fact to murder, you are sentenced to a term of imprisonment of fourteen years commencing on 5 July 2002 and expiring on 4 July 2016. The overall sentence is therefore fifteen years. I impose a non-parole period of twelve years. The earliest date upon which you will be eligible for release is 4 July 2013.
CATCHWORDS : Criminal law - sentence - murder - accessory before the fact - robbery - level of culpability - plea of guilty for one offender - parity of sentence - Victim Impact Statement - sentencing principles LEGISLATION CITED : ss 22, 23 & 44 Crimes (Sentencing Procedure) Act 1989 PARTIES : Regina v David Ng Regina v Teck Lee Lew FILE NUMBER(S) : SC 70238/02; 70116/02 Mr P Barrett (Crown) COUNSEL : Mr M McColm (Ng) Mr M Higgins (Lew) S E O'Connor (Crown) SOLICITORS : Mark Klees & Associates (Ng) Hartmann & Associates (Lew)
THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL JURISDICTION
070116/02 - REGINA v TECK LEE LEW 070238/02 - REGINA v DAVID NG
1 HIS HONOUR: On 20 June 2003 David Ng was found by a jury following his trial to be guilty of the murder of Nigel Stiffe on 22 May 2001 at the Haymarket. He was also convicted of the robbery of Mr Stiffe on the same occasion when armed with a dangerous weapon. Teck Lee Lew was also convicted on his joint trial with Ng, with being an accessory before the fact in Mr Stiffe's murder by Ng and one Wai Kit Lo. Lew pleaded guilty to being an accessory before the fact to the robbery of Mr Stiffe on the same occasion (but in light of his knowledge) whilst armed with an offensive, as distinct from a dangerous weapon, and to an attempted robbery of Mr Stiffe by Wai Kit Lo and another man, Sam Man Tran, that occurred on 14 May 2001. 2 Mr Stiffe was killed by the offender, Ng, in company with one, Wai Kit Lo, who pleaded guilty to murdering Mr Stiffe on 5 May 2003 and gave evidence at the trial of Ng and Lew. I sentenced Wai Kit Lo on 9 May 2003 and in the course of giving reasons for the sentence set out in detail the circumstances of the case. Although it is not necessary for me to set them out again some salient features need to be mentioned. 3 Mr Stiffe was the manager of the Market City Tavern. Wai Kit Lo had been employed there for about six months but had resigned, perhaps involuntarily, some months before the offences. Teck Lee Lew was supervisor or shift manager at the Tavern and it was on his recommendation that Lo obtained work there. However, after Lo left that employment he and Lew remained in contact with each other. It was Lo's evidence that Lew suggested to him that the Tavern should be robbed and that he should find a gun for that purpose. Although the offender, Lew, admitted that he was a party to the plan to rob the Tavern he said that it was Lo's idea and that as he was then in desperate need of money he agreed to turn a blind eye to its commission. He denied that he ever discussed the possibility of the use of a gun or, for that matter, a knife in the robbery. He said that the only plan discussed was that Lo would use a metal bar, later described as a shopping trolley pole, to render Mr Stiffe unconscious by a blow to the head. On the whole I am minded to believe Lew's evidence on this point. Certainly Lo had something to gain, and he probably thought it would be a good deal, from alleging that Lew instigated the crime and proposed the use of a gun and not him. Furthermore, there is evidence, which I am minded to accept, that Lew at an earlier time warned Mr Stiffe that Lo had talked about a robbery and asked to ban him from the Tavern. In the absence of any supporting evidence I do not think that Lo's credibility is such that I could believe his evidence either as to Lew's instigating the offence, or as to the gun, or, for that matter, as to the knife. 4 On 14 May 2001, Lo and Tran were armed with a metal pole taken from a dismantled shopping trolley and a knife belonging to Lo's brother. In the result when it came to the point of actually attacking Mr Stiffe they desisted and left the premises before any alarm was raised. 5 So far as the offences that occurred on 21 May are concerned, Ng became involved some days before, although the precise date is uncertain. On the day of the crime Lo and Ng went from Lo's home to the Tavern, taking with them a change of clothes, including tracksuits and balaclavas, a metal pole, Lo's brother's knife and a pistol. The evidence does not permit me to conclude who of Lo or Ng obtained the gun though I think that Lo procured the knife and the pole. I have no doubt that Ng was well aware that the pole, knife and gun were being taken to the robbery. Nothing turns on who obtained or who carried what. The two men remained hidden overnight in the fire stairs where, later, fingerprints of Ng and cigarette butts containing his DNA were found. At about 6.40am on Tuesday 22 May, Mr Stiffe arrived for work at the Tavern and about an hour later he entered the cool room/office area where he normally counted the Tavern's overnight takings. A few minutes later Ng and Lo entered the office area wearing balaclavas and caps to conceal their identities from the closed circuit television cameras operating throughout the premises and also from Mr Stiffe. Again, who was armed with what is uncertain since I cannot accept Lo's evidence on this point beyond reasonable doubt. This is immaterial since I am satisfied that both of them had agreed that the respective weapons would be used as necessary although I accept that they expected that it would be sufficient to obtain Mr Stiffe's compliance if he were threatened with one or more of them. As the offenders entered the office Mr Stiffe got up and walked into the cool room and was struck from behind with a metal pole, it being again planned that he would be rendered unconscious. This, however, did not disable him and a struggle ensued during which the balaclavas worn by the offenders came off. Eventually Mr Stiffe was overpowered and forced to lie on the floor. He was then killed, the autopsy revealing that he suffered a fatal wound inflicted by the knife to his throat as well as a bullet wound to the back of this head. 6 Lo's account of what happened was calculated to reduce his own responsibility for the acts of killing Mr Stiffe but although there is good reason for believing that Ng indeed played the major role I am not satisfied beyond reasonable doubt that this was so. However, whoever took the major role I have no doubt that both offenders were fully complicit and for all practical purposes equally culpable. 7 It is clear that Mr Stiffe was executed because he was able to identify the offenders, although he only knew Lo from previous acquaintance. Although the offenders had not planned on killing Mr Stiffe so that in that sense his death was not premeditated nevertheless it was a deliberate execution in cold blood. The offender, Lo, gave evidence on his plea as to the circumstances of the killing. I was prepared to accept that he was the follower, not the instigator, of the lethal assaults and the murder was not premeditated in the sense that it was planned from the beginning (taking and wearing the balaclavas being the strongest evidence of this) and thus that the case was not in the worst category of case. The evidence does not permit me to find as against Ng that he was the instigator of the killing. So far as he is concerned, therefore, I find that the crime does not fall into the worst category of case but not by much. 8 The offenders stole about $50,000 in cash from the office safe and fled taking money, knife, metal pole and pistol with them. In all the circumstances I think it likely that Ng became involved in the crime by agreement with Lo who was its instigator but he needed no persuading and thereafter enthusiastically participated in it so that the distinction in culpability is, I think, relatively slight. The aftermath of the offences is sufficiently set out in my reasons for sentence in respect of Lo and I do not intend to repeat them here. 9 It was the case of Teck Lee Lew that, although he was a party to the attempted robbery in respect of which he pleaded guilty on 14 May 2001 and was also an accessory before the fact to the robbery with an offensive weapon of 21 May 2001, he had not adverted to the possibility that Mr Stiffe would be seriously injured or wounded though he was aware that Lo intended to use a trolley pole to render Mr Stiffe unconscious. 10 Lew said in his evidence that although a metal pole had been first mentioned the trolley pole was later agreed on and he was unaware what such a pole was made of and it did not occur to him that it might cause serious injury or wounding though I do not doubt that he realised that such a pole would be made of metal and I have also concluded that he was aware that a blow to the head sufficient to cause unconsciousness could well cause serious injury or wounding though I do not think that I could be satisfied beyond reasonable doubt that he adverted to the risk that grievous bodily harm might be inflicted. In the result, of course, no serious injury was, it appears, caused by use of the pole. I am satisfied that Lew did not intend to contemplate the possibility that Mr Stiffe might be killed and I cannot be satisfied beyond reasonable doubt that he contemplated the possibility that Lo would take either a gun or a knife. 11 Lew said that he told Lo some days before the robbery that he no longer wished to be involved and attempted to dissuade Lo from proceeding by saying that he would be identified from the video security and would be caught. The robbery took place when Lew was absent from the premises and it is obvious that Lo did not think he needed to rely on Lew to assist him to accomplish it. In the end I am disposed to think that Lew's evidence about attempting to withdraw from his involvement in the crime might well be true and I consider that he should be sentenced on this basis. Of course, the fact that he privately indicated to Lo that he no longer wished to be involved in the robbery was no defence to the charge since he took no steps to attempt to ensure that the crime did not occur, steps which he could easily have taken had he so wished. I infer that he did not wish to raise the alarm because he knew that his earlier complicity would thereby be exposed and that he might lose his employment. 12 Lew's criminality is aggravated, however, by reason of his position of trust as an employee of the tavern. As a result Lew was complicit in a crime that resulted in Mr Stiffe's death and his conviction for murder although the involvement of Lo and Ng was greater and more culpable by a very considerable margin. 13 I come now to the subjective features of the case. David Ng is twenty-eight years of age and was born in Hong Kong, arriving in Australia with both parents when he was five years old. His father was a chef working in a restaurant in Chinatown and his mother confined herself to domestic duties. His upbringing was normal and unremarkable. 14 Ng was educated at a number of State schools, obtaining his Higher School Certificate in 1993. Since leaving school he attempted a business management course at TAFE but discontinued after six months. Since then he has worked selling clothes and toys door to door for a time then worked selling mobile telephones. He also worked part time as a waiter in various Chinese restaurants. He made a substantial profit from a fortunate real estate purchase. He has no physical or mental health problems. Ng claims that although he used cannabis and smoked heroin occasionally he is not and was not ever addicted to any substance. Psychometric testing indicated that he functions in the above average range with no significant personality issues. Ng has no relevant criminal record. 15 If Ng so desired I have little doubt that he is capable of living in a law abiding and productive manner. Whether he wishes to do so it is impossible to say. It seems that he needed little, if any, encouragement to become involved in a very serious crime involving the use of potentially lethal weapons. The crime itself demonstrated a frightening degree of indifference to fundamental moral standards. He has not demonstrated any contrition or remorse. I am unable to see any signs that there are reasonable prospects for rehabilitation and therefore can make no allowance in his favour in this regard. His crime shows that he is a dangerous man and there is no reason to infer that he will be any less dangerous in the future. Of course, this does not mean that he should be sentenced for crimes that he has not committed but it does mean that the element of personal deterrence and protection of the community is more significant in his case than it was in the case of the offender, Lo. 16 The offender, Lew, was born in Singapore and is now aged thirty-six years. He came to Australia with his parents in 1979 when he was thirteen years old, attending a local high school for three years, leaving with his School Certificate in 1982. He has been in continuous employment since leaving school, lastly, of course, at the Market City Tavern. The offender has a large and supportive family. He was married for one year and has a daughter now aged twelve with whom he had regular and frequent contact until his arrest and incarceration. His daughter visited him once at the remand centre but was so frightened by the experience that she has not visited him since. Following his divorce the offender commenced another relationship which lasted for about five years. He is the father of another daughter, now aged seven years, who has visited him mostly with his parents but sometimes with her mother. In 1997 the offender married again. Lew has no significant criminal antecedents. 17 In many ways both Ng and Lew have been model prisoners, especially the offender, Lew, who has undertaken responsible work assisting Asian inmates to adjust to the correctional centre environment and avoid potential conflicts. An additional factor in Lew's case is that he pleaded guilty to the attempted robbery charge and indicated that he would do so at an early stage. He has also pleaded guilty to the charge of being an accessory before the fact of robbery and I should repeat here, as I have already pointed out, that this was robbery with an offensive, rather than a dangerous weapon, which is an important distinction in point of seriousness. Although in the circumstances his trial on the charge of murder was not thereby averted the plea simplified the trial significantly and involved admissions as to his complicity which the Crown could by no means have been confident of proving to the requisite degree of certainty. It seems to me that I should acknowledge the significance of those pleas in the sentence which I intend to impose. I regard it as significant from the point of view of the offender's chances of rehabilitation as well as reflecting on the seriousness of the crime that he did not participate in the crime in the result although his withdrawal was insufficient to comprise a defence to the charge. I accept that Lew's involvement in this crime was an aberration and that he is most unlikely to offend again. The extent of his actual involvement does not demonstrate nearly the level of criminal culpability shown by the offender, Ng, or, for that matter, the offender, Lo. 18 A victim impact statement has been tendered by the prosecution in which Mr Stiffe's widow once again spoke of the upright and generous character of her husband, her distress and grief not only over his loss but over the dreadful way in which he died. As I said when passing sentence on Lo, what is done in this courtroom does not and cannot in any way compensate for Mr Stiffe's death or the pain that those who love him will feel to the end of their days yet once again I think it right that we should, even in this small way, record the qualities of a man who was so callously and brutally murdered and note the suffering inflicted by his murderers on those who knew and loved him. 19 I do not propose to repeat what I previously said about the use to which a victim impact statement can be made in proceedings of this kind. It is enough to say that for the reasons I have already given in connection with Lo's sentence such a statement cannot be weighed in the balance of criminal punishment. As is obvious from the sentence imposed on Wai Kit Lo the starting point before the deduction of forty per cent as provided by ss 22 and 23 of the Crimes (Sentencing Procedure) Act 1989 was thirty years' imprisonment. That figure reflected all the objective and subjective features of his case except the matters for which a discount was justified in the public interest. Thus I accepted that there were reasonable prospects of Lo's rehabilitation and accordingly I gave considerable weight to the importance of this consideration in respect especially of young offenders not only for their own sake but also in the public interest. 20 The offender, Ng, however, is significantly older than Lo and I do not think that his age gives rise to the same consideration that applied in Lo's case. As I have mentioned, there is not any evidence that Ng has accepted the need for rehabilitation. Leaving aside, therefore, the ss 22 and 23 considerations, the only potentially significant difference between them favouring Ng is that Lo was the instigator of the offence but he is considerably younger than Ng and has shown signs suggesting reasonable prospects of rehabilitation and whilst Ng did not instigate the offence he was a willing participant. He is older and without signs of rehabilitation. He is a markedly more dangerous man. I have also borne in mind that Lo's sentence for murder included an allowance for the robbery which was taken into account on a Form 1. This mode of dealing with Lo should be treated as part of the process of inducing him to plead guilty and give evidence against Ng and Lew. Ng must be separately sentenced for that offence and I do not regard the fact that it was taken into account in Lo's case requires that Ng should have the same effective result. I have concluded that I must impose on Ng a longer sentence than the sentence used as the starting point for the calculation of Low's discounted sentence. The armed robbery offence is so closely connected with the murder of Mr Stiffe that most of the sentence in respect of it, but not all, should be served concurrently with the sentence for murder. In this respect I have taken into account the requirement that the total term of imprisonment should not exceed the total criminality of the offences having regard to the sentence which I intend to impose with the consequent effect on the length of the non-parole period if there is no departure from the statutory calculation provided for in s44 of the Crimes (Sentencing Procedure) Act 1999. I do not consider that there are special circumstances which would justify a departure. So far as Lew is concerned his culpability is significantly less, as I have already said, than that of either Lo or Ng since not only did he play no part in the killing of Mr Stiffe and did not intend or foresee the infliction of grievous bodily harm upon him, though, as I have said, I think that he did foresee significant injury, at least amounting to a wounding, he did withdraw from active participation in the crime. His sentence should reflect some allowance for his pleas of guilty which operated not only in respect of those charges but also to reduce the issues which would otherwise have significantly complicated his trial as an accessory before the fact in respect of the murder of Mr Stiffe. As I have mentioned, I consider that his involvement in this offence was an aberration and am satisfied that it is most unlikely that he will offend again. 21 Lew has been convicted of three crimes of which attempted robbery is so separate in point of time and occasion as to require some accumulation with the other offences. It is obvious from what I have already said that his conviction of the offence of being an accessory before the fact to murder arose from his involvement in the joint enterprise of robbing Mr Stiffe and his guilt is thus derived directly from the fact that Mr Stiffe was killed in the course of that crime, Lew having adverted to the substantial risk that serious injury amounting at least to a wounding might be inflicted. As it is so inextricably bound up in the offence of being an accessory before the fact to the armed robbery no sensible separation can be constructed and the sentences should for the same reason be served concurrently. 22 David Ng, you are sentenced on the charge of armed robbery to a fixed term of seven years imprisonment to commence on 6 July 2001 and expire on 5 July 2008. In respect of the crime of murder you are sentenced to a term of thirty-five years' imprisonment to commence on 6 July 2003 and expiring on 5 July 2038. The overall sentence is therefore thirty-seven years. I impose a non-parole period of twenty-seven years and nine months. The earliest date upon which you will be eligible for parole is 5 April 2029. 23 Teck Lee Lew, for the crime of being an accessory before the fact to attempted robbery you are sentenced to a fixed term of imprisonment of three years commencing 5 July 2001 and ending on 4 July 2004. In respect of the offence of being an accessory before the fact to the crime of robbery with an offensive weapon, you are sentenced to a fixed term of imprisonment of five years commencing on 5 July 2002 and expiring on 4 July 2007. In respect of the crime of being an accessory before the fact to murder, you are sentenced to a term of imprisonment of fourteen years commencing on 5 July 2002 and expiring on 4 July 2016. The overall sentence is therefore fifteen years. I impose a non-parole period of twelve years. The earliest date upon which you will be eligible for release is 4 July 2013.
Last Modified: 09/05/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Ng and Lew were sentenced as stated, with an overall sentence of 37 years for Ng and 15 years for Lew; Lew’s attempted-robbery sentence was partly accumulated, while the robbery and murder sentences were concurrent.