26 The culpability of the prisoner, however, is greater than [AB]'s. Without the prisoner, the crime would not have been committed. This was an attack which has been contracted at his behest for which he was prepared to pay $10,000.00. [AB] understood, as a result of the prisoner's deception, that the person to be attacked was intending to defraud the prisoner. Although [AB] declined the offer to physically commit the crime, the prisoner persisted. It was he who provided the cruel instructions to [AB] that hydrochloric acid was to be used and that the deceased was to be made to look like a pig. He advised [AB] to give the attackers the gun. The deceased was a man he knew had no involvement in the loss of the money. The prisoner's active participation in the planning of the attack included the provision to [AB] of the deceased's home address, a video of the home and the time of day he was to be attacked.
27 [AB] was the middleman in the conspiracy to inflict grievous bodily harm upon the deceased whereas the prisoner was with Chang one the principals.
28 I will refer to the prisoner's criminal history at a later stage but observe that [AB]'s prior criminal history includes offences more serious than the prisoner's history of criminal offending before the murder. The prisoner's convictions on 16 December 2005 are substantially more serious than the offence of on going supply of prohibited drugs for which [AB] was convicted after the murder.
29 The plan to attack the deceased to flush out Ma, as I have mentioned, was originated by Chang as was the notion to use hydrochloric acid. The prisoner without question implemented the plan and ensured that the attack took place. He knew that the acid would inflict upon the intended victim intense pain.
30 The intention was to send a terrifying message to Ma which would persuade him to come out of hiding. I am not satisfied that another purpose of the attack, as the Crown contends, was to send a message not only to Ma but to others who might renege on drug deals.
31 This is a terrible crime. It is an act of barbarity to contract others to grotesquely disfigure a man against whom there was no grievance solely to provide an example to another. There is no general principle that the culpability of a procurer is less than the assailant: see Gas v The Queen [2004] 217 CLR 198 at 23. In this case the culpability of the prisoner is at least equal to, if not higher than, in my view, the two assailants who carried out the attack in accordance with their instructions.
32 There is little in the way of mitigation. The prisoner's callousness for the murder was disclosed during the lawfully intercepted telephone conversation at 18:49 on 29 January 2003. I accept Mr Sukmana's translation of the word "babi" as the Indonesian for "pig". I have no doubt that the prisoner was referring to the deceased by the use of that word. No remorse has been shown for his criminality. Consistent with his plea, the prisoner has not expressed contrition for the offence. The failure to show remorse or to express contrition is not, however, a justification for increasing the prisoner's sentence.
33 The prisoner's criminal history does not reveal any offences involving violence. The first offence is one of larceny as a servant for which he was convicted and fined in 1988. What follows is a long "gap" in offending. On 21 March 2002, he was convicted for goods in custody and on 23 April 2002 bribery of a Commonwealth officer. For the former offence, the prisoner was placed on a 2 year bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 [the Crimes (SP) Act]. For the latter offence, it appears he was required to enter a recognisance for 2 years under the provisions of the Crimes Act 1914 (Cth). Whilst the prisoner was subject to these bonds, the murder was committed. The commission of the murder whilst the prisoner was on conditional liberty is an aggravating factor.
34 On 16 December 2005, for the offences of supplying ecstacy and two counts of supplying a large commercial quantity of that prohibited drug, the prisoner was sentenced in the District Court to a total overall effective sentence of 24 years imprisonment with a non-parole period of 18 years. He is eligible for release on parole on 6 September 2022. He was charged with the offences on 17 March 2003. These offences are not taken into account as matters of aggravation but are considered for the purpose of deciding whether the prisoner is deserving of leniency. I have been informed that the prisoner has applied for leave to appeal against these sentences.
35 Although the prisoner's criminal offending does not involve violence, I conclude that his record does not entitle him to leniency.
36 The prisoner's subjective circumstances are drawn from his testimony during the trial and from the history given to Anita Duffy. Ms Duffy's report is dated 21 May 2007. The prisoner was born in Bandung Western Java on 10 November 1964 and is now aged 42 years. At the time of the murder, he was 38 years old. After finishing high school in Bandung, he completed a hospitality related course in Djakarta. He migrated to Australia in 1985 and was employed at the Addis factory in Sydney for two or three years. Around 1988 he went to work at Schwarzkopf as a process worker and advanced to eventually become a purchasing officer. During this time the firm sent him to Sydney TAFE to study a Packaging Technology Diploma, a part time course over two years, which he completed. He remained in that employment for seven years until the company was sold and he was retrenched in 1997.
37 The prisoner then commenced three months study through UTS Law School to obtain a migration agent license in 1998. He formed Ausvisa Pty Ltd through which he conducted a migration agency and education consultancy for overseas students. The business although initially successful slowed after the advent of the internet.
38 The prisoner had married in 1992 and has three sons, one aged 13 and twins aged 9. Around 2001, the prisoner and his wife opened the Warung Bandung restaurant which they operated for about six months. His wife and mother cooked and the prisoner worked in the restaurant which was next door to his home at Kingsford.
39 It is evident, however, from the remarks on sentence of Blackmore DCJ on 16 December 2005 that the prisoner had been during this time the principal in a highly organised drug sale and distribution network: see exhibit B ROS at 17.
40 In 2002 the prisoner with his family moved to the Central Coast where he lived until his arrest on 17 March 2003 for the offences of supply of prohibited drugs. He has been in custody since that time. He has worked hard whilst in custody and has gained the trust and recognition of the prison officers. He has been, it is clear from the tendered Corrective Services material, a model prisoner and is currently the head gardener at the MRRC. He is in good health and copes with his distress of being in custody by meditating. The prisoner has, I accept, the support of his mother, wife and children.
41 The prisoner's extended periods of stable employment, his positive efforts whilst in custody and the family support provide a basis for a finding that he has prospects of rehabilitation. Indeed the prisoner's exemplary behaviour whilst in custody provides some assurance that upon his release he will not pose a substantial risk to the community. His pitilessness for the ghastly injuries inflicted upon the deceased, however, does not enable me to form the view that there is no risk of him offending again if his interests are at stake.
42 The maximum sentence for the crime of murder is imprisonment for life. A person sentenced to imprisonment for life is to serve that sentence for the term of his natural life: s 19A(2) of the Crimes Act 1900. Section 19A(3) provides that nothing in s 19A affects the operation of s 21(1) of the Crimes (SP) Act which authorises the passing of a lesser sentence than imprisonment for life. As the murder was committed on 2 January 2003 Division 1A - standard non-parole periods of the Crimes (SP) Act has no application to the present sentence. Sections 3A and 21A of the Crimes (SP) Act, however, apply.
43 Section 61(1) of the Crimes (SP) Act provides:
"A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in 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."
44 The level of culpability of the prisoner in the commission of the offence and whether the case is one calling for a life sentence in the terms of s 61(1), is first to be considered, and if so, whether in the exercise of the discretion conferred by s 21(1) the subjective features relating to the prisoner justify a lesser sentence: see R v Harris (2000) 50 NSWLR 409, R v Ngo (2001) 125 A Crim R 495.
45 The primary focus of s 61(1) is an assessment of how extreme the prisoner's culpability is: see R v Meritt 146 A Crim R 309 [at 52].
46 The prisoner did not procure the attack so that the deceased would be killed. It was his intention to cause grievous bodily harm. A contract murder done with the intent to cause grievous bodily harm generally attracts a lesser sentence than a contract murder done with the intent to kill. However, there will be cases where a murder which results from a contract to inflict grievous bodily harm reflects similar criminality to a murder which was contracted with the intention to kill. In Regina v Hillsley [2006] NSWCCA 312 the Court said [at 16]:
"16. Although it will generally be the case that an intention to cause grievous bodily harm is less culpable to a greater or lesser degree than an intention to kill, this is not always the case. In R v Nelson (unreported, NSWCCA 25 June 1996) McInerney J said (Gleeson CJ and Studdert J agreeing) that "there are circumstances where an intention to inflict grievous bodily harm could reflect similar criminality to other cases involving an intention to kill"; see also R v Wilson [2005] NSWCCA [112]."
47 In order to terrify Ma, an attack involving extreme cruelty was planned and procured by the prisoner upon the victim who had the misfortune to be Ma's brother-in-law. This was a contract attack. He was to be attacked at his home at a time when his wife, Ma's sister, was likely to be present. Acid was to be used not only to hideously disfigure him but also to inflict awful pain. Acting upon their instructions the assailants doused the deceased with hydrochloric acid on the verandah of his home. He was hit with a gun. As a result the deceased died a slow and horrible death. In these circumstances, although this was not a contract murder procured with the intent to kill, the culpability of the prisoner is not reduced nor is the gravity of the offence. The prisoner's level of culpability is such that the prisoner's crime, in my view, falls within the worst category of the offence of murder.
48 Contract attacks are abhorrent. The community interest in community protection and deterrence requires a sentence which may deter other people from even considering using a contract attack to inflict terrible injuries upon an innocent person to terrorise another.
49 The prisoner, as I have recognised, has the support of his family and has been an exemplary prisoner. He has been a hard and capable worker. I have taken all these matters into account but, for the reasons already given, I am satisfied that the level of the prisoner's culpability in 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 a sentence of life imprisonment and the subjective features must be disregarded.
50 A victim impact statement from the deceased's wife has been received and read by me. The contents of the statement cannot be used by me to increase the prisoner's sentence. I acknowledge the grief and distress suffered by the deceased's wife and son and express on the community's behalf its sympathy and compassion for them.
51 Yonky Tan for the murder of Dominic Li, I sentence you to imprisonment for life.