REGINA v TIWARY

Supreme Court of NSW|2006-11-06|Before: Adams J

CITATION : REGINA v TIWARY [2006] NSWSC 1156

HEARING DATE(S) : 15/5/06-19/5/06, 22/5/06-24/5/06, 29/5/06-31/5/06, 1/6/06-3/6/06, 6/6/06-9/6/06, 13/6/06-20/6/06, 3/8/06

DECISION : On the first count of the indictment in respect of the murder of Chow Lyang Tay, the offender is sentenced to a term of twenty-five years' imprisonment commencing on 28 May 2004.; On the second count of the indictment, in respect of the murder of Poh Chuan Tan, the offender is sentenced to life imprisonment commencing on 28 May 2004.

CATCHWORDS : Sentence - murder - two victims - motive to remove witness - life sentence

LEGISLATION CITED : Crimes (Administration of Sentencing) Act 1999 s135 Crimes (Sentencing Procedure) Act 1999 s 61(1)

CASES CITED : R v Harris (2000) 50 NSWLR 409; (2001) 121 A Crim R 342 R v Merritt (2000) NSWLR 557

PARTIES : Regina v Ram Puneet TIWARY (Offender)

COUNSEL : Mr T Hoyle SC (Crown) Mr Peter Doyle (Offender)

SOLICITORS : S J Kavanagh (Crown) Andrew Miller & Associates (Offender)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

On 20 June 2006 the offender was found guilty by a jury of the murders of Chow Lyang Tay and Poh Chuan Tan on 15 September 2003 at Kingsford. The deceased men were murdered at the home which they shared with the offender, Mr Tay being killed first and Mr Tan being killed some two hours or so later. 2 The three occupants of the premises, namely the offender and the two victims, were citizens of Singapore living in Australia and studying at the University of New South Wales. The two deceased were studying electrical engineering and were in their final year. They were in their early to mid-twenties, as was the offender. The offender was studying on a scholarship from the Singapore Armed Services, of which he was a serving member. Both Mr Tan and Mr Tay were achieving good results in their studies. The offender was having less success in that regard.

The circumstances of the crimes 3 Shortly after 2 pm on Monday 15 September 2003 a "OOO" call was made from the premises by the offender requesting ambulance and police assistance because his flatmates, he said, had been murdered. It is unnecessary to detail the contents of that call. Although it must be accepted that what the offender said about what happened was a fabrication, I do not doubt that he was very emotionally disturbed by what had happened. In substance, the offender claimed he was in his bedroom at the time that the killings occurred. 4 About fifteen minutes later police and ambulance arrived at the premises. The offender was outside the front of the premises. He was questioned by police though, at this stage, as a witness rather than as a suspect. When police eventually entered the premises they saw the bodies of the victims. That of Mr Tay was in the lounge room area towards the back of the house whilst that of Mr Tan was at the front door. 5 The injuries which the deceased had suffered were horrendous. Each died as a result of massive blunt force head injuries. 6 So far as Mr Tay is concerned, he had suffered a number of extremely forceful blows to the back and top of his head which had resulted in major fracturing and damage to the brain. Although there were at least two blows, the pathologist thought that so extensive was the fracture to the skull more than two blows were very likely to have been inflicted. There was also a near-amputation of the tip of the left index finger with associated crushing and laceration of the skin, almost certainly a defensive injury. Five stab wounds were noted to the deceased's neck. Having regard to the minimal bleeding associated with them, they were sustained either very close to the time of death itself or potentially after death. Four very superficial stab wounds were noted on the forehead, each ending on contact with the bone of the skull. These were also almost certainly peri-mortem. On further investigation of the brain, a substance called beta-APP was found to be present. This is a most significant finding since it indicates that the deceased survived for at least two hours after the infliction of the injuries to his brain. 7 The Crown submitted, and I think it likely, that the offender attacked Mr Tay with a baseball bat (later located in the premises by police) when he was sitting at the desk in the lounge room, and left him for dead. At a later point in time, I think very likely to be after he 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. 8 Mr Tay's laptop computer had last been used at 11.58 am. The combination of that time and the significance of the discovery of beta-APP renders it likely, in my view, that Mr Tay was attacked shortly after midday. 9 Mr Tan arrived ten minutes late for a lecture at the university which was due to commence at noon. It is certain that he was not present when Mr Tay was attacked. It follows that he had left the premises some time earlier, though when that was it is impossible to say. Mr Tan arrived home from the university at around 2 o'clock. He entered the premises and went to the kitchen and commenced making his lunch. He would not have seen Mr Tay's body from the kitchen or en route from the front door to the kitchen. It seems likely that when he came out of the kitchen, moving towards the hallway to the front door, he was attacked by the offender. 10 Two injuries were noted on post mortem to the front of Mr Tan's head, in the mouth area and to the eye area. Teeth fragments and broken spectacles were located near this point. It appears that Mr Tan attempted to escape through the front door but, before he could get out the offender struck him again a number of times with the baseball bat. At autopsy, fifteen injuries were noted to the head, all caused by blunt force. It does not follow that there were fifteen blows but there can be no doubt that he was struck many times on his head with the baseball bat. The head injuries were extensive and included multiple areas of damage to the brain itself. The pathologist also noted five stab wounds to the neck, all on the right side, all roughly at the same angle and essentially one below the other. It seems obvious that they were inflicted about the same time. I think that the offender inflicted these wounds because Mr Tan did not appear to him yet to have died as a result of the head injuries. 11 As I have mentioned, I think it is likely that it was after the offender had ensured that Mr Tan was dead that he returned to Mr Tay to inflict the stab wounds which I have mentioned. He then made the "OOO" call.

The motive remains unknown 12 With one exception to which I will come in a moment, there is nothing in the evidence that establishes any motive for these terrible murders. The offender himself appears to have been a person of good character. Nothing has been produced to suggest that he was prone to any form of violence. All the indications are that he and his two flatmates got on well together. At the same time, it is obvious that only the most powerful motive could have provoked the offender into committing two such extraordinarily violent murders. 13 There is some evidence that strongly suggests that the offender owed Mr Tay a total of something over $5,000 for outstanding rent and it may well be that on the day of or perhaps shortly before the murders Mr Tay had requested the offender to pay the outstanding sum. It is also possible that the offender had pretended to Mr Tay that another (fourth) tenant would occupy the fourth bedroom and therefore the total rent payments each of the occupants needed to pay would be reduced including, of course, the offender's. Mr Tay noted that the amount of nearly $1,600 was owing by this fourth person. If this was a sham transaction, then it may be that the offender would have been liable for more than the sum to which I have already referred. I am sceptical, however, that a dispute over the payment of rent could have been sufficient to trigger the extremely violent attacks undertaken by the offender. But this does not seem to me to matter very much since, if the attack on Mr Tay was provoked by a demand for rent, it could not be regarded as in the slightest degree mitigating. Of course, it cannot mitigate the attack on Mr Tan. That attack can only be explained by some animus directed against him for some unknown reason or to prevent Mr Tan or, and so I find, saying anything to police that might have implicated the offender in Mr Tay's murder. 14 Of course, the fact that I am unable to determine the offender's motive is not a mitigating factor so far as his culpability is concerned.

The offender's state of mind 15 The offender has not given any evidence. He did not give evidence in the trial and he has not given evidence on the sentence proceedings. In the trial, extensive interviews between the offender and the police were tendered. In substance, the offender denied his involvement in the murders and gave an explanation for his presence and conduct in the premises at the time which, it is clear, the jury rejected. Accepting as I must the jury's verdict, I am left with no explanation by the offender of his actions or his motives. Not surprisingly, perhaps, there has been no psychiatric evidence tendered relating to his state of mind. I infer, however, from the offender's demeanour whilst interviewed by police over many hours and the way he expressed himself, that there is no reason to think that he suffers from any psychiatric condition capable of shedding light on his conduct. I have mentioned that I think that the offender was very upset when he made the "OOO" call. The significance of this finding is that, although there was a substantial element of premeditation, at least so far as Mr Tan's murder was concerned, these acts of extreme violence were not committed with indifference to the gravity and dreadfulness of what he was doing. I do not doubt that the offender was emotionally affected by and was fully aware how heinous were the terrible acts that, nevertheless, he deliberately committed.

The offender's background 16 An affidavit filed on the offender's behalf during the sentence proceedings from his father was read without any objection by the Crown. That affidavit disclosed that the offender is the second of three sons and was born on 19 May 1979. Accordingly, he is now 27 years of age. He was born in India but came to Singapore with his family when he was three years old. The family then moved to Brunei when the offender's father obtained a job as a teacher. His father retired at the end of 2003 and, as I understand it, returned to Singapore. 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 but such a course was not available at the University of Brunei and at all events, when he finished his schooling, he was required to perform his national service in Singapore. 17 The offender returned to Singapore in 1998 and was drafted into the national service in March of that year. He was selected for the officer cadet school and, in due course, was commissioned lieutenant. He volunteered for commando and ranger courses, which he undertook, but less than successfully. The offender gained admission to the University of New South Wales engineering degree course, was granted a training award by the Singapore Armed Forces and left Singapore for Sydney in July 2000. 18 It is clear from the description of family life given by the offender's father that the offender was part of a strong, loving and supportive family. As far as his father knew, it is clear that he always behaved responsibly and had shown his father and the members of his family both respect and affection. Not surprisingly, the offender's father said that "the present facts are like a bolt out of the blue and not in keeping with his character and previous behaviour which I had observed closely both as a father and an educationist". 19 It is clear that the offender's convictions have been a nightmare for his family and a source of great shame. The offender is close to his family and, being imprisoned in this State, his separation from them will be a significant loss of emotional support. In some cases, as where a drug courier who brought drugs into the country is sentenced, the nature of the offence is such as to render this aspect of the offender's imprisonment less important since he or she comes into the country knowing that, if caught, the ensuing term of imprisonment will be served here. That is not the situation with the offender in this case. 20 At the same time, I should also acknowledge the dreadful sense of loss that has been suffered by the families of the two murdered victims, who lost their lives when they were still young, who had been successful at their studies and who had futures full of promise. Their families will continue to suffer from this terrible loss without remission except for such slight relief as time might afford. 21 There is no evidence of remorse or contrition. As I do not know what led the offender to commit these murders, I am unable to make any finding about the likelihood of rehabilitation, one way or another.

The sentences 22 It is clear that this is a case that requires consideration to be given to the provisions of s61(1) of the Crimes (Sentencing Procedure) Act 1999. That provision is in the following terms - "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."

It is obvious that the imposition of a life sentence is an extreme penalty, the most significant aspect of which is that the offender must be imprisoned for the whole of the remainder of his life, without the possibility of release on parole. A sentence of life imprisonment can only be imposed if the Court is persuaded beyond reasonable doubt that "the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence". Accordingly, if it is reasonably possible that the community interest in the specified matters can be met through the imposition of a sentence other than a life sentence, then that other sentence must be passed. 23 In the present case, the circumstances of the crimes themselves demonstrate that they are extremely grave and, taken together, readily fall into the most serious class of murder. On the other hand, the evidence seems to show that they appear to be completely out of character. Certainly, there is nothing in the offender's previous life to suggest any tendency to violence, let alone irrational anger. That being said, however, the extraordinary level of violence used by the offender is cogent evidence of an aspect of his character or personality which, though it had not been evident before, has been demonstrated now. 24 Although I reject the submission of the Crown that the offender had these crimes in contemplation when he bought the baseball bat a short time before 15 September 2003, I do not accept that the attack on Mr Tay was impulsive and it is self-evident that the attack on Mr Tan was premeditated. Any person who so ferociously attacks another human being is plainly very dangerous. It is clear, therefore, that there is a very substantial community interest in protection that can only be satisfied by a very lengthy sentence. I do not, however, think that it follows that the offender is so dangerous that he must remain imprisoned for his lifetime. 25 The statutory scheme of parole has for many years been an important feature of the sentencing regime in this State. Persons who are eligible for parole cannot - in sentences of the kind inevitably to be passed in cases of the present type - be released unless the Parole Authority is satisfied that, having regard to the considerations specified in the Crimes (Administration of Sentencing) Act 1999, in particular s135, it is appropriate to do so. The specified considerations give high priority to the issue of public safety. The longer the sentence to be imposed, the greater the emphasis that needs to be given to the function of parole in sentencing prisoners and the role of the Parole Authority in that respect. 26 The Parole Authority is made up of representatives drawn from a range of interested groups. It includes police, prisons' administration and members of the public. It has highly competent professional advice available to it that enables a rational determination to be made of the risks to public safety which release of any particular prisoner would entail. That information will usually be significantly greater than that which is available to the sentencing court when sentencing an offender. This is especially so, for obvious reasons, when the sentence to be served is a long one. In such a case, the Court must necessarily speculate to a very substantial degree about the character and attributes of the offender at the time when, in due course, he might be freed. 27 This problem is particularly acute, such as here, where the offender is young, or relatively young. In R v Harris (2000) 50 NSWLR 409; (2001) 121 A Crim R 342, Wood CJ at CL made the following very pertinent observations - "[124] The concerns which exist, in relation to the imposition of indeterminate life sentences, without any option of release on licence or parole, are well known. Such a sentence can be crushing, particularly for a young offender, whose life expectancy, on current tables, may well exceed the fifty-odd years that would apply in the case of the present respondent. They were noted in Garforth (unreported, NSWCCA 23 May 1994), where the Court said: 'But first we should emphasise that we do not intend to diminish the terrible significance of a sentence of life imprisonment. Nor did Newman J. His Honour quoted the following passage from the judgment of Hunt CJ at CL in R v Petroff (unreported, 12 November 1991): 'The indeterminate nature of a life sentence has long been the subject of criticism by penologists and others concerned with the prison system and the punishment of offenders generally. Such a sentence deprives a prisoner of any fixed goal to aim for, it robs him of any incentive and it is personally destructive of his morale. The life sentence imposes intolerable burdens upon most prisoners because of their incarceration for an indeterminate period, and the result of that imposition has been an increased difficulty in their management by the prison authorities.

We acknowledge the force of these sentiments. That is why life imprisonment is to be imposed only in the worst type of case. Nevertheless, there are cases in which such a severe punishment fits the crime. This is one such case.'"

[125] The effect of the current law is to continue and to reinforce a division between different categories of persons imprisoned for life, and to condemn those sentenced under s 19A of the Crimes Act , or under s 33A of the Drug Misuse & Trafficking Act 1985, to an even harsher form of punishment than an indeterminate sentence that was terminable by the Executive. Such an offender has no prospect of release, save for the prerogative of mercy. [126] The decisions in Bugmy (1990) 169 CLR 525 (at 537) and Mitchell (1996) 70 ALJR 313 at 320, confirm the notorious inaccuracy of predictions of future dangerousness, yet in a case such as the present that is precisely what is required. It may be that after a lengthy period of imprisonment, counselling and simple maturing, that an offender sentenced to life ceases to be dangerous. [127] Lengthy experience with the life sentence redetermination procedure has graphically demonstrated that to be the case, and has seen a controlled and safe return to society of offenders once considered hopelessly violent and dangerous. See the observations of Allen J, in Crump 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."

His Honour later added: "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." [128] In suitable cases, it is possible by an appropriately framed sentence, to preserve the possibility of a return to prison to complete the original life sentence, in the event of serious reoffending. Persons now sentenced to life under s 19A of the Crimes Act or under s 33A of the Drug Misuse and Trafficking Act are, however, denied all opportunity of release even if wholly rehabilitated." 28 So far as deterrence is concerned, I do not think that this consideration in the circumstances of this case, a life sentence is the only way of satisfying this public interest. A sentence short of a life sentence but nevertheless of considerable length will, in my view, satisfy the requirement of deterrence. 29 I do not doubt that there are some cases where the crimes are so heinous that, simply put, a life sentence is deserved and the only way in which adequate punishment and retribution can be reflected in the sentence is by way the imposition of sentence without the possibility of release. 30 The murders of Mr Tan and Mr Tay could fairly be regarded as being so extreme as to warrant life imprisonment. However, this is not the test under the statute. Before I can impose such a sentence I must positively be satisfied that no other sentence that is available to me could reflect the gravity of the culpability involved in the commission of the offences. As Tobias JA observed in R v Merritt (2000) NSWLR 557 at 559 - "[4] Notwithstanding the absence of one or more of the statutory indicia, the presence and level of significance of the other or others still lead to the conclusion that the level of culpability is so extreme that the community interest can only be met through the imposition of a sentence of imprisonment for life. [5] Obviously, the absence of any one or more of those indicia will make it more difficult for a trial judge to reach the state of satisfaction before such a sentence is mandated (subject always to s61(3)). This is particularly so as the trial judge must be satisfied beyond reasonable doubt that the level of culpability is so extreme as to require the imposition of that sentence. [6] It would, I tend to think, be a rare case where the total absence of one or more of the indicia will still permit the relevant degree of satisfaction to be obtained. On the other hand … absence of the need for personal, as distinct from general, deterrence, is unlikely to influence the decision to any significant degree. [7] … [It] is the combination of the statutory indicia established on the evidence to which regard must be had. It is only where the significance of those indicia, taken in combination, leads inevitably to the conclusion that the level of culpability is so extreme that the community interest can only be met through the imposition of a sentence of imprisonment for life, that such a sentence can be imposed." 31 The murder of Mr Tan is the more serious of the two, not because it was intrinsically less heinous, but because it followed the first and thus permits no room for doubt that it was premeditated and deliberately undertaken in full knowledge of the nature of the crime; I consider, also, that it was committed in order to remove a potential incriminating witness from the scene in an attempt to avoid justice. There is no mitigation. 32 In the result I have reluctantly concluded that, in respect of the murder of Mr Tan, I am bound to impose a sentence of life imprisonment. 33 In the circumstances, there is no point in imposing a non-parole period in respect of the offence in the first count of the indictment. The sentences must be wholly concurrent. Accordingly, the offender is sentence as follows - On the first count of the indictment in respect of the murder of Chow Lyang Tay, the offender is sentenced to a term of twenty-five years' imprisonment commencing on 28 May 2004. On the second count of the indictment, in respect of the murder of Poh Chuan Tan, the offender is sentenced to life imprisonment commencing on 28 May 2004.

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