R v Hung Duc Dang

COUNSEL : S J Odgers SC R D Cogswell SC with Ms B Baker SOLICITORS : Kremner Townsend S E O'Connor CATCHWORDS : CRIMINAL LAW - appeals - appeal against conviction - appeal against sentence - manslaughter - robbery in company - use of offensive weapon to prevent lawful apprehension - whether conviction supported by the evidence - whether murder part of joint criminal enterprise - whether use of knife other than in self defence was in the contemplation of the appellant - no miscarriage of justice - whether sentence manifestly excessive. LEGISLATION CITED : Crimes Act 1900 ss 19A, 33B, 97(1) Criminal Appeal Act 1912 s 6 DECISION : (1) Appeal against conviction dismissed. ; (2) Leave to appeal sentence granted, but appeal dismissed.; (3) Conviction and sentence below confirmed.

BEAZLEY JA WOOD CJ at CL CARRUTHERS AJ WEDNESDAY 31ST OCTOBER 2001 Regina v Hung Duc DANG

The appellant was indicted on one charge of murder (s 19A Crimes Act 1900), robbery in company (s 97(1) Crimes Act 1900), and use of an offensive weapon to prevent lawful apprehension (s 33B Crimes Act 1900). The appellant pleaded guilty to the second and third counts and not guilty to the count of murder. Following a trial by jury the appellant was found not guilty of murder, but guilty of manslaughter. He was sentenced to concurrent fixed terms of two and two and a half years respectively for the first two counts and a cumulative sentence of seven and a half years for the offence of manslaughter.

It was the Crown case that the principal and appellant had embarked upon a joint criminal enterprise to rob someone, and that the appellant was guilty of manslaughter by reason of the principles applicable to extended criminal enterprise (common purpose) when following their commission of such a robbery his co-offender killed a would-be pursuer). The evidence showed in this regard that both the appellant and the principal carried knives. After committing the robbery they were pursued from the scene by bystanders to the robbery. Shortly after separating but while still being pursued the principal stabbed the victim who was attempting to detain him. In the meantime the appellant drew his knife and wounded one member of the group who had followed him.

The appellant appeals against the conviction on the basis that it was not capable of being supported by the evidence and the jury should have had a reasonable doubt as to whether: (1) the killing occurred at a time when the joint enterprise to rob was still on foot, or whether it was an act isolated from that venture for which the principal alone was responsible; (2) it was in the contemplation of the appellant that the co-offender might do an unlawful and dangerous act with a knife by stabbing someone otherwise than in self defence.

The appellant also seeks leave to appeal against sentence on the basis that the sentence imposed for manslaughter was manifestly excessive.

HELD (Appeal dismissed) 1: Whether the stabbing was part of the joint criminal enterprise The Crown case was that the offence was similar to a bank robbery, in that the joint enterprise did not come to an end until the robbers had made an escape from the scene of the crime. That was an appropriate analogy to make and the evidence did not leave occasion for any reasonable doubt.

2. Whether the use of a knife other than in self defence was in the contemplation of the appellant What was in issue was the subjective contemplation of the appellant concerning the possible use by the principal of the knife which he was carrying. In deciding that question it was open to the jury to draw an inference as to what was in his mind, by reference to the surrounding circumstances, and the admissions in the ERISP.

The evidence did not leave open as a reasonable possibility any inference other than what the Crown needed to prove to establish manslaughter.

3. Whether the sentence for manslaughter was manifestly excessive The offences committed by the appellant were serious and there was a need for general and personal deterrence. Although the sentence was a heavy one it was not outside the legitimate range of sentencing discretion.

House v The King (1936) 55 CLR 499; Dinsdale v The Queen (2000) HCA 54 applied.

(1) Appeal against conviction dismissed. (2) Leave to appeal sentence granted, but appeal dismissed. (3) Conviction and sentence below confirmed.

WEDNESDAY 31ST OCTOBER 2002 Regina Hung Duc DANG

JUDGMENT 1 BEAZLEY JA: I agree with Wood CJ at CL 2 WOOD CJ AT CL: The appellant was indicted before James J, on 22 May 2000, in the Supreme Court, on the following charges:

a) the murder of John Lawrence Hammond (S 19A Crimes Act 1900) - maximum penalty life imprisonment;

b) robbery in company of one ladies handbag, the property of Monica Kaskardi: (S 97(1) Crimes Act 1900) - maximum penalty 20 years imprisonment); and

c) the use of an offensive weapon, namely a knife, to prevent lawful apprehension (S 33B Crimes Act 1900) - maximum penalty 12 years imprisonment) 3 All of the offences charged were committed on 25 April 1999. The appellant pleaded guilty to the second and third counts, and not guilty to the count of murder. A jury was empanelled, but later discharged without returning a verdict in relation to the last mentioned count. A fresh trial commenced on 16 October 2000, confined to the count of murder. The appellant again pleaded not guilty. On 19 October 2000, he was found not guilty of murder but guilty of manslaughter. 4 He was sentenced to concurrent fixed terms of imprisonment of two, and two and a half years, respectively, for the offences of robbery in company and the use of a knife to prevent lawful apprehension. For the offence of manslaughter he was sentenced to a cumulative sentence of imprisonment of seven and a half years, with a non parole period of four years. This resulted in a total effective sentence of ten years, with a six and a half year non parole period. 5 He now appeals against the manslaughter conviction upon the sole ground that it was not capable of being supported having regard to the evidence, or otherwise represents a miscarriage of justice. He also seeks leave to appeal against the sentence, upon the basis that it was manifestly excessive.

Facts 6 On the afternoon of 25 April, the appellant and his co-accused Nhat Than Ton went into the City together. Each was carrying a knife; that carried by the appellant having been given to him by Ton. Although they did not set out with any specific plan to rob anyone, the appellant acknowledged that they had a mutual understanding that, if an opportunity arose to take someone's handbag, they would do so. 7 At about 9.00pm. Monica Kaskardi, who was on her way to meet friends in George Street in the City, withdrew some money from ATM machines at the Westpac Bank, and at the Colonial State Bank in Castlereagh Street. The last mentioned bank was located midway between Liverpool and Bathurst Streets. After walking five or ten steps and crossing to the opposite side of Castlereagh Street, she felt someone grab her bag from behind. She fell to the ground. The strap to her bag broke and the man pulling upon it moved away. That man she identified as the appellant. Another man, who was shown to be Ton, was standing beside him. 8 These two men ran off in a northerly direction along Castlereagh Street. Ms Kaskardi ran after them. At first they stayed together, but after a short distance, upon Ton's instruction, they split up. The appellant turned to the right into Bathurst Street and then left, into Elizabeth Street. Ms Kaskardi followed him. Three other men joined in this pursuit and eventually overpowered him. In the course of the struggle which occurred before he was subdued, one of the men (Phillip Merino) suffered a cut to his hand. That injury was inflicted by the knife which was carried by the appellant, and which he produced during the struggle 9 The circumstances in which this knife was used by him require further mention since they have some relevance for the way in which the Crown case was presented. When the pursuers, Yakup Erklic and Phillip Merino found the appellant, he was hiding behind a pylon. They jumped on him, and during the ensuing scuffle, Mr. Erklic saw the appellant swing his left arm at Mr. Merino. He noticed that Mr. Merino was bleeding from a large gash in the right wrist. He instructed the appellant to drop the knife, which he then did. When police arrived he was handed over to them. 10 Mr. Hong Ta, who was driving down Castlereagh Street shortly after Ms Kaskardi's bag was snatched, saw an Asian woman chasing a man who was about fifteen metres in front of her. A little further down the street, he saw two people (Mr. Hammond and the co-accused Ton) on the western footpath of that street, near the fire station, struggling with one another. Mr. Hammond had hold of the co-accused who was trying to break free. Mr Hammond yelled out help, and the co-accused ran off. A paramedic who responded almost immediately found that Mr. Hammond had two lacerations under his left armpit. He said to the paramedic, "I went to help a girl in distress and a guy swung around and stabbed me". 11 When taken to hospital, he was found to have a stab wound to the interior axilla with penetration of the soft tissues above the rib cage on the left; and another stab wound in the left posterior axilla, which penetrated the chest, left lung and left pulmonary hilum and which had damaged a major pulmonary vein leading to significant blood loss into the plural cavity. He was also seen to have some superficial incised wounds to the left upper arm. His subsequent death was attributed to blood loss and possibly to an air embolism, occasioned by the second of the wounds mentioned. 12 The co-accused was not arrested until 27 April. He was charged with murder, to which he had pleaded by the time of the appellant's trial. 13 The appellant did not give evidence at his trial but relied upon his good character and upon the answers in the ERISP, it being submitted on his behalf that:

a) there was no evidence that the appellant had contemplated the use of the knife by his co-accused to stab anyone;

b) the criminal enterprise between him and the co-accused had been a spur of the moment event, which had concluded before Mr. Hammond was stabbed. 14 It was common ground that neither the accused or Ton presented their knives at the time of the robbery. It was, however, the Crown case that they had the knives available for use, in order to stab anyone who tried to stop them, and that their joint enterprise remained on foot while they were making their escape from the scene of the robbery.

Directions to the Jury 15 It was upon that basis that the case was left to the jury, who were relevantly instructed in the following terms, first in relation to the offence of murder: "The Crown says that the accused is guilty of the crime of the murder of Mr. Hammond or, if not of the crime of the murder of Mr. Hammond, of the crime of the manslaughter of Mr. Hammond, pursuant to certain legal principles which can be conveniently referred to as principles of joint criminal enterprise or common purpose. If two persons carry out a joint criminal enterprise then, subject to certain conditions - and that qualification is important - each of them can be legally responsible for an act of the other done in the course of the carrying out of the joint criminal enterprise. The Crown must establish inter alia the existence of a joint criminal enterprise and the participation in that joint criminal enterprise by the accused. In the present case, broadly speaking, the Crown says that the accused and Mr. Ton entered into a joint criminal enterprise to rob Miss Kaskardi, the accused participated in that joint criminal enterprise and that Mr. Ton killed Mr. Hammond in the course of the carrying out of that joint criminal enterprise."

His Honour appropriately drew attention to the existence of a real issue as to whether the stabbing of the deceased occurred in the course of the carrying out of the joint criminal enterprise to rob Monica Kaskardi, or after the enterprise had concluded. (Summing up paras 96-99). 16 His Honour then went on to deal with the extended joint criminal enterprise or common purpose aspect of the Crown case concerning those events which the appellant contemplated might be done as incidents in the joint criminal enterprise to rob Ms Kaskardi. In this regard the jury was instructed: "The fifth element of the offence of murder which the Crown must prove beyond reasonable doubt is that, at the time of entering into the joint criminal enterprise to rob Miss Kaskardi and up to and including the time of the stabbing the accused contemplated that, as an incident in the carrying out of the joint criminal enterprise to rob Miss Kaskardi, Mr. Ton might use the knife to stab someone, otherwise than in self-defence, with the intention of killing or with the intention of inflicting grievous bodily harm and the accused, having that contemplation, continued to participate in the joint criminal enterprise to rob Miss Kaskardi." 17 In amplification of this direction, his Honour explained that it was sufficient for the Crown to show that the appellant contemplated the possibility that the knife might be used in this way (summing up p. 105), in the course of which he instructed the jury: "It is not necessary for the Crown to prove that the accused contemplated that Mr. Ton would use the knife to stab someone, in the circumstances referred to in element five. It is, however, necessary for the Crown to prove that the accused contemplated that there was a substantial risk, as distinct from a slender chance , that Mr. Ton might use the knife to stab someone in the circumstances alleged. However, it is not necessary for the Crown to prove that the accused contemplated that it was probable that Mr. Ton might use the knife to stab someone in the circumstances mentioned." 18 The circumstances "referred to" or "alleged" or "mentioned" of which his Honour spoke in this paragraph, derived their content from the preceding paragraph in which his Honour had repeated that the Crown had to prove that the accused contemplated that, as an incident in the carrying out of the joint criminal enterprise, Ton might use the knife to stab some one, otherwise than in self defence, and with the intention required for murder. This qualifications to the directions his Honour regarded as supported by the decisions of the High Court in Johns v The Queen (1980) 143 CLR 108 per Stephen J at 119, and per Mason, Murphy and Wilson JJ at 130 to 131; and in Miller v The Queen (1980) 32 ALR 321 at 326/7. 19 In McAuliffe v The Queen (1995) 183 CLR 108, the Court approved (at 115) the following passage in the judgment of Mason, Murphy and Wilson JJ in Johns at (130 -131): "In our opinion these decisions support the conclusion reached by Street CJ [in the court below] namely 'that an accessory before the fact bears, as does the principal in the second degree, a criminal liability for an act which was within the contemplation of both himself and the principal in the first degree as an act which might be done in the course of carrying out the primary criminal intention - an act contemplated as a possible incident of the originally planned particular venture'." 20 Approval was also given, in the judgment, to the principle referred to by Sir Robin Cook, in delivering the judgment of the Privy Council, in Chan Wing-Siu v The Queen (1985) AC 168 at 175, whereby a secondary party, acting in concert with a primary offender, is criminally liable for acts done by the primary offender of a type which the secondary party foresees but does not necessarily intend. 21 In Johns, Mason, Murphy and Wilson JJ similarly spoke in terms of the act in contemplation being of the "kind (which occurred) should the occasion arise" (at 131-132) and see also R v Powell (1999) 1 AC 1 at 28.

22 When directing the jury on manslaughter, his Honour effectively repeated these directions, so far as the aspects of joint criminal enterprise and the contemplation of the appellant were concerned. In explaining the difference between murder and manslaughter, his Honour concentrated upon the circumstance that, for the latter offence, it was not necessary for the Crown to show that at the time of stabbing the deceased, Ton had the intention of killing him or of inflicting grievous bodily harm. Rather, it had to show that his act was unlawful and dangerous, as that expression has been explained in Wilson v The Queen (1992) 174 CLR 313.

His Honour then added: "As I have told you, a dangerous act is an act which a reasonable person in the position of the accused would have realised would expose the person stabbed to an appreciable risk of serious injury. It is necessary for the Crown to prove beyond reasonable doubt, that the accused contemplated that, as an incident in the carrying out of the joint criminal enterprise to rob, Mr. Ton might do an unlawful and dangerous act with the knife by stabbing someone, otherwise than in self- defence , and that the accused, having that contemplation, continued to participate. What I said previously about the word 'might' in giving you directions about element 5 of murder applies also to element 5 of manslaughter. It is necessary for the Crown to prove beyond reasonable doubt that the accused contemplated that an act of such a kind as to be a dangerous act might be done." ( summing/up paras 190 and 191) 23 The case was accordingly left, both in relation to murder and manslaughter in accordance with the judgment of the High Court in McAuliffe v The Queen (1995) 183 CLR 108 where it was said (at 114): "… each of the parties to the arrangement of understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose. Initially the test of what fell within the scope of the common purpose was determined objectively so that liability was imposed for other crimes committed as a consequence of the commission of the crime which was the primary object of the criminal venture, whether or not those other crimes were contemplated by the parties to that venture. However, in accordance with the emphasis which the law now places upon the actual state of mind of an accused person, the test has become a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose."

24 This kind of case has been conveniently tagged as one involving an "extended joint criminal enterprise": R v Tangye (1997) 92 A Crim R 545 and R v Chai (2000) NSW CCA 320. 25 There was no objection to these directions either at trial, or upon the appeal. They were both correct in law and sufficient. 26 The single question, which was pursued at the appeal, concerned whether or not the verdict was unreasonable or could not be supported upon the evidence (S 6 Criminal Appeal Act 1912), the case being one, so it was submitted, where the jury should have had a reasonable doubt as to whether:

a) the stabbing of Mr. Hammond occurred at a time when the joint enterprise to rob Miss Kaskardi was still on foot, or whether it was an act isolated from that venture, for which Ton alone was criminally responsible; and/or as to whether

b) it was in the contemplation of the appellant that Ton might do an unlawful and dangerous act with the knife which he had in his possession by stabbing someone, otherwise than in self defence.

Joint Enterprise 27 As to the first of these propositions, it was the Crown case that, similarly to a bank robbery, the joint enterprise which was here involved, did not come to an end until the robbers had made an escape from the scene of the crime. In my view, that was an appropriate analogy, and the evidence did not leave occasion for any reasonable doubt about it. 28 It was not to the point that any decision to rob Ms Kaskardi was impulsive or not pre-planned. Each of the appellant and Ton were involved in the robbery, and the only rational inference that could be drawn is that their enterprise continued until such time as they safely made good their escape with the proceeds from their respective pursuers. They were each followed from the scene and they were each stopped within a very short time, and within a very short, distance from the location of the robbery. It is not as if Ton, having made good his escape, then committed some other crime quite unrelated to the enterprise upon which he had embarked with the appellant. 29 I am quite unpersuaded, upon the evidence, that there was a reasonable possibility open that the joint enterprise had come to an end before Mr. Hammond was stabbed. This ground lacks merit.

Contemplation of Appellant 30 Moving to the second element, there were admissions in the ERISP to the effect that the appellant knew that Ton had a knife. 31 In relation to what was in his contemplation concerning that knife, the Crown case depended upon the following answers given in the ERISP: "Q135. Why did you have the knife in your hand? A. Why? Just my friend, he, he just gave it to me. He goes, In case , you know? Q.136 OK. But why did you have the knife in your hand when you were confronted by this man? A. 'Cause there's many of them and like, they were screaming, and I dunno if they have weapons or something too. I'm not sure. Q.137 What was your intention when you had the knife in your hand? A. My intention? Just defend myself." … "Q.139 Did you have the knife out right from the theft or did you take it out, out -- A. Nah, nah, afterwards. I, I just like, after the theft I just ran. And like I took the knife out when like, when they, I confront them." … "Q. 147 And so Tan gave you the knife that cut this man? A. Yeah, he had like two there, so he had one, the old one so I took, took the other one. Q.149 Did you see the knife that Tan had? A. No. He just goes, he put it in his sleeve and then, I dunno. Q. 150 So how do you know that Tan had a knife? A. He told me you know, Hide it quick, I hide mine, where are you hiding yours? That's it." … "Q. 213 Why did Tan need to have a knife for? A. To have some reason. Q. 214 Well what's that reason" A. Self defence." 32 Although some of the answers to these questions related to the purpose which the appellant had in mind, when using his knife, they were also relied upon as supporting an inference that he had contemplated a similar possible use by Ton of his knife. 33 It was the Crown case that, in context, the only reasonable inference open was that when using the expression "self defence", in the answer to Q.214, the appellant had meant the possible use of the knife by Ton to avoid being apprehended, and not for use in self defence in the legal sense. 34 The defence case, as pursued upon appeal, however, was that an inference was reasonably open that the appellant only had in contemplation the possible use of the weapon, by Ton, "in case" some circumstance arose justifying its use in lawful self defence. That use, it was suggested, may have related to something entirely unconnected with any robbery or unlawful conduct on the part of himself and Ton, for example if they were set upon by others in the course of their visit to the city. 35 Alternatively, it could have related to the possibility of someone applying excessive, ie unlawful force in trying to arrest them when they had committed an offence - ie in circumstances where they had become the victims of unlawful aggression, against which they were entitled to defend themselves. 36 Independently, it was submitted that the expression "self defence" did not necessarily involve the use of the knife to actually stab someone, but was also capable of extending to the brandishing of it, so as to frighten off an aggressor or someone minded to arrest either of them. 37 The drawing of an inference which was rationally consistent with the appellant's innocence, so far as this element was concerned, was supported, so it was submitted, by the spontaneous nature of the robbery enterprise, it being unlikely, so the argument went, that the appellant had time or occasion to contemplate whether Ton might use his knife to stab someone, or even what might happen after the bag was snatched. Additionally, it was put, it was important that there was no evidence of the appellant having known or suspected that Ton had used a knife, on any prior occasion, to stab someone. 38 These matters were fully canvassed before the jury. The critical question as to whether the appellant had the contemplation required in law to establish manslaughter was quintessentially one for them. It was not a question that fell for decision by reference to the words of the ERISP alone. That each man had a knife, and that the appellant had produced and used his weapon offensively, to resist a citizen's arrest, unerringly supported the inference which the jury must have drawn, in reaching its verdict, that the appellant contemplated the possible use by Ton of his knife, in order to stab someone. It is important in that regard that the crown did not have to prove hat he contemplated that it would be used in that way. 39 In approaching the question of competing inferences it is necessary to recall what was said by Mason CJ, Dawson and Toohey JJ in Knight v The Queen (1992) 175 CLR 495 at 503: "… with respect, Young CJ was in error in the view which he expressed below that the appellant could only succeed in his argument if the two inferences said to be open - one consistent with innocence and the other consistent with guilt - were equally open. There are not, as Dixon CJ observed, degrees of consistency and, if a reasonable jury ought to have found that an inference or hypothesis consistent with innocence was open on the evidence, then it ought to have given the appellant the benefit of the doubt necessarily created by that circumstance." 40 That question, in the context of the appeal there under consideration, their Honours observed could be: "… rephrased to ask whether the jury, acting reasonably, could have rejected as a rational inference the possibility that the appellant fired, without an intent to kill, the shot which hit (the victim). In considering that question, the Full Court were required to make their own assessment of the evidence, within the limits imposed by the fact that they neither saw nor heard the witnesses (see Chidiac v The Queen (1991) 171 CLR at 443-444,453, 462; Carr v The Queen (1988) 165 CLR 314 at 331) They were required to act upon that view of the facts which the jury were entitled to take having seen and heard the witnesses. (see Chidiac at 452)" 41 The relevant test in relation to the ground relied upon, which was formerly tagged; "the unsafe and unsatisfactory ground", has moved on. Greater emphasis is now placed upon the review which the appellate court is required to undertake (M v The Queen (1984) 181 CLR 487; Jones v The Queen (1997) 191 CLR 439; Fleming v The Queen (1999) 197 CLR 250 and R v Giam (1999) 104 A Crim R 416), it being accepted that "a doubt experienced by an appellate Court will be a doubt which a jury ought also to have experienced". 42 Due respect must, however, still be afforded to the jury decision. So it was that in M, Mason CJ, Deane, Dawson and Toohey JJ said (at 493), in a passage approved in Jones (at 451): "… the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to these considerations." 43 The test posed in Knight, concerning whether or not an inference or hypothesis consistent with innocence was open on the evidence, remains relevant. If this court were of the view, after making its own review of the evidence, that such an inference or hypothesis was reasonably open, then it would be necessary to quash the conviction, in accordance with s 6 of the Criminal Appeal Act 1912. 44 Applying the common sense approach, which is to be attributed to the determination, of that question, I am not persuaded that there was reasonably open an inference consistent with the appellant's innocence, or that as a result the jury ought to have entertained a reasonable doubt. The only sensible or rational inference open, from the answers in the ERISP, from the circumstance that each offender carried a knife and used it to resist arrest, is that their possible use to stab someone for that purpose was very much in the appellant's contemplation. If a knife is produced in order to deter a citizen, or a police officer bent upon effecting an arrest, there is inevitably a substantial risk that it could be used to stab that person, since merely waving or brandishing it could never be confidently assumed to be enough. 45 I do not mean by this observation to suggest that the question is to be decided by reference to an objective test. What was in issue was the subjective contemplation of the appellant: McAuliffe v The Queen (supra). However, in deciding that question it was open to the jury to draw an inference as to what was in his mind, by reference to the surrounding circumstances. 46 The Crown needed to prove, in this case, that the accused had in contemplation a substantial or real risk of Ton using his knife to stab a person minded to effect an arrest - either deliberately or inadvertently in the course of a struggle. In this regard, it is of significance that the jury acquitted the appellant of the offence of murder, which would have required proof that he had contemplated the use of the knife with the deliberate intention of killing or causing grievous bodily harm, but convicted him of manslaughter by an unlawful and dangerous act, for which the Crown only needed to prove that he contemplated its possible use to stab someone. 47 The alternative possibilities advanced by the appellant were to my mind fanciful, in the real life setting of this case. It is unrealistic to imagine any situation in which he could have contemplated the use of the weapon by way of lawful self defence, in circumstances where the co-offender was facing arrest for an offence of robbery committed in a public place. It is equally hypothetical and contrary to common sense, to suggest, in this case, that all he had in contemplation was the carriage of knives, not for the purpose of preventing apprehension for the kind of offence which they had in mind, but in case they were innocently set upon for no good reason, and as a result needed a weapon to defend themselves. 48 The carriage of a knife is unlawful, and in my view there was no room for attributing to the appellant, subjectively, any contemplated use by Ton of his weapon, which was consistent with his innocence of the charge of which he was convicted. I would accordingly dismiss the appeal against conviction. 49 In those circumstances, I find it unnecessary to consider whether the verdict could properly be sustained upon another less onerous basis which was raised, not at trial, but in the course of the hearing of the appeal. That alternative involved the proposition that manslaughter would have been proved had the appellant contemplated that Ton might do an unlawful and dangerous act by brandishing the knife, otherwise than in self defence, in order to frighten away someone attempting to apprehend him, as distinct from having contemplated that Ton might do an unlawful and dangerous act by stabbing that other person. 50 This would potentially require consideration of

(a) whether the brandishing of a knife at a person endeavouring to effect an arrest, is an act of the same type or kind as its use, in those circumstances, to stab such person; and

b) whether it would then matter if the actual act of the co-offender involved an act of stabbing and not one of brandishing the weapon. 51 While each act would constitute an unlawful assault, and while each might well result in the would-be arrester suffering a knife wound, they would differ so far as that consequence would be unintentional in one case, and intentional in the other case. 52 It is at least arguable that each of these questions was answered by the High Court in Markby v The Queen (1978) 140 CLR 108, where Gibbs ACJ (with whom Stephen, Jacobs and Aickin JJ agreed) said (at 113): "The relevant principle, in its application to a case similar to the present was stated as follows by the Court of Criminal Appeal in Reg v Reid (1975) 62 Cr App R 109 (at p112) 'When two or more men go out together in joint possession of offensive weapons such as revolvers and knives and the circumstances are such as to justify an inference that the very least they intend to do with them is to use them to cause fear in another, there is, in our judgment, always a likelihood that, in the excitement and tensions of the occasion, one of them will use his weapon in some way which will cause death or serious injury. If such injury was not intended by the others, they must be acquitted of murder; but having started out on an enterprise which envisaged some degree of violence, albeit nothing more than causing fright, they will be guilty of manslaughter.'" 53 This was a case where the question in issue concerned whether or not the act constituting the offence was no more than an unintended incident of carrying out a common design, or was something outside its scope - often a difficult question: see e.g. R v Anderson & Morris (1966) 2 QB 110 and Varley v The Queen (1977) 51 ALJR 243. By analogy similar principles are arguably applicable to a case of extended joint criminal enterprise, which would mean that the act carried out by the principal in the first degree need to be of the same kind or type as the act contemplated as a possibility by the accused. 54 To establish manslaughter, the Crown would nevertheless have to prove that the act in the subjective contemplation of the accused, viewed objectively carried with it an appreciable risk of serious injury. A risk of fright or a risk of trivial injury would be insufficient: Wilson v The Queen (1992) 174 CLR 313. To that extent, this passage in Markby may now require further explanation in any direction to the jury in respect of a count of manslaughter. It would not, in my view, however, be necessary for the Crown to establish that the accused contemplated or foresaw the actual consequences of the act. 55 In circumstances where the case was left to the jury by reference to whether or not what was in contemplation was the possible use of the knife to stab, I consider it inappropriate to address the question whether the case could have been left in the alternative way mentioned of its possible use by way of being brandished. In particular, that would have called for attention to the question whether a reasonable person, in the position of the appellant, would have realised that an act of Ton, in brandishing his knife at someone attempting to apprehend him, would have exposed him to an appreciable risk of serious injury. That factual issue, which, I am satisfied, would need to be left for determination upon an objective basis, was not considered by the jury and I see no warrant for this Court embarking upon it.

SENTENCE 56 It was submitted that, while the sentences for the offences of robbery in company, and the use of an offensive weapon to prevent lawful apprehension were within range, the sentence for the offence of manslaughter, was manifestly excessive, particularly by reason of the accumulation. In this regard, it is relevant to note that:

a) the appellant was aged twenty-one years when he appeared for sentence;

b) he came from a good background and had a supportive family;

d) he was not the person directly responsible for inflicting the fatal injuries, and to that extent, his objective criminality was considerably less than that of Ton;

e) he had expressed remorse and contrition for his actions, although he was assessed as having limited insight. 57 The co-offender Ton was sentenced by Adams J, to imprisonment for twenty-two years with a non parole period of fourteen years for the offence of murder to which he had pleaded guilty. As I have observed, his objective criminality was considerably greater than that of the appellant. Additionally, in his favour was the fact that he was younger than the appellant, and the fact that he had pleaded guilty, for the utilitarian value of which he had received a discount of 20%. 58 Special circumstances were found in the case of the applicant in so far as:

a) the sentence for manslaughter was to be served cumulatively upon the other sentences which were for fixed terms, and hence were not themselves subject to any possibility of release upon parole;

b) the appellant was a youthful first offender, who would serve his sentence upon protection;

c) there was a need for counselling to address his lack of insight and drug use.

As a result, a non parole period was set equivalent to 65% of the total term. 59 The offences of which the appellant was convicted were serious. In relation to the offence of robbery in company, and the offence involving the use of a knife to prevent arrest, there was a need for a sentence that involved a considerable element of general and personal deterrence, for the reasons noted in Ranse NSWCCA 8 August 1994; Draper NSWCCA 9 December 1988; Rothapfel NSWCCA 4 August 1992 and Bell NSWCCA 29 September 1997. Similar considerations apply to an offence of manslaughter involving, as it did here, the contemplated use of a knife by a co-offender to stab someone, so as to avoid lawful apprehension. 60 Sentencing for the offence of manslaughter is notoriously difficult, given the wide variety of circumstances and differing degrees of objective criminality involved. Nevertheless, it remains a most serious crime, in that it involves the taking of a human life: Hill (1981) 3 A Crim R 397. The overall sentence was a heavy one, but I am not persuaded that it was outside a legitimate range of sentencing discretion in the sense explained in House v The King (1936) 55 CLR 499 at 505, and Dinsdale v The Queen (2000) HCA 54. No error of law has, to my mind, been shown. I would, accordingly, grant leave to appeal against sentence but I would also dismiss that appeal. 61 The orders I propose, therefore, are that:

b) leave to appeal against sentence be granted, but the appeal dismissed;

c) convictions and sentences below be confirmed. 62 CARRUTHERS AJ: I agree with Wood CJ at CL.

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