Regina v Thang Quoc LUONG

SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

1 HIS HONOUR: On 15 May 2000 the prisoner was presented in this Court for trial upon an indictment charging him with the manslaughter, on 13 December 1966 at Cabramatta, of one Jenny Liu. The prisoner pleaded not guilty and he was put, accordingly, upon trial by jury. On 19 May the jury found the prisoner guilty as charged. He was remanded in custody to 26 May, and a pre-sentence report was ordered. On 26 May the Court heard some brief evidence, and the submissions of counsel, in connection with sentence. The prisoner was remanded thereupon until today for the passing of sentence. 2 The material facts are as follows. 3 On 13 December 1996 the prisoner, then a high school student at the end of his Year 10, hosted at his family home a party for a number of school friends. In all about a dozen people attended the party, arriving at various times before lunch-time. One of the guests was Jenny Liu, a close school friend of the prisoner. 4 At the time, the prisoner owned a sawn-off rifle and at least one round of live ammunition. The weapon and ammunition were normally concealed in a space beneath the prisoner's study desk. The prisoner told the investigating police that he had owned the weapon and the ammunition for about a month; that he had bought them for $70 from "a man, a junkie, out in Cabramatta"; and that his motive for acquiring the weapon and ammunition had been self-protection against "all the bad guy". 5 The prisoner did not give evidence at his trial, and so his version of what led up to the death of Miss Liu has to be gleaned from an electronically recorded interview of the prisoner by the investigating police. 6 It appears from that interview that, during the course of the party, the prisoner disclosed to some of his friends that he had this particular weapon. Some of the friends asked, naturally enough, to see the weapon, and the prisoner duly produced it for their inspection. At a time about 10 minutes after the production of the weapon, the prisoner, holding the weapon, was seated in a front bedroom of the family home. With him were several of his friends. Jenny Liu came into the room and saw the weapon in the prisoner's hands. She asked him whether it was a real weapon, and the prisoner told her that it was a fake because, as he told the police, "I didn't want the girl to know". Thereupon the prisoner removed the magazine from the weapon, cocked it and pulled the trigger. In fact, there was then loaded in the weapon a round of live ammunition. The weapon discharged that bullet in the direction of Jenny Liu, who was then about a metre away. The bullet struck Miss Liu, wounding her fatally. 7 The Crown case at trial alleged two alternative types of manslaughter: first, manslaughter by unlawful and dangerous act; and secondly, manslaughter by criminal negligence. It is not possible to say that the jury preferred one in particular over the other. I myself am satisfied beyond reasonable doubt that the jury could properly have convicted upon both bases. It could not be sensibly gainsaid, in my opinion, that it was at once unlawful, dangerous, and criminally negligent to have fired the weapon in the confines of a small suburban bedroom, and at a time when several people were congregated in that space, without having first taken the most precise and particular steps to ensure that the weapon was clear. I am satisfied beyond reasonable doubt that the prisoner did not take any such precise and particular steps. 8 The prisoner was born on 17 March 1979. He was aged, therefore, 17 years and 9 months almost to the day on the occasion of the shooting. Miss Liu was aged 16 years at that time. It is trite that the shooting of Miss Liu was a tragedy for her, for her family and for the prisoner and his family. It is, however, important that a proper sense of that tragedy not obscure a proper sense of the objective gravity of the prisoner's offence. 9 In that connection the following observations of Gleeson CJ, Kirby P and Hunt CJ at CL in their joint judgment in Reg v MacDonald (unreported: Court of Criminal Appeal (NSW): 12 December 1995), are, in my opinion, very much now in point: "In a case such as the present it is important to bear in mind the denunciatory role of sentencing. Manslaughter involves the felonious taking of human life. This may involve a wide variety of circumstances, calling for a wide variety of penal consequences. Even so, unlawful homicide, whatever form it takes, has always been recognised by the law as a most serious crime. ……………………………….The protection of human life and personal safety is a primary objective of the system of criminal justice. The value which the community places upon human life is reflected in its expectations of that system. In R v Hill (1981) 3 A Crim R 397 at 402, Street CJ said: 'In such a case as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment, and the interest of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life'." [see at p 8] 10 Approaching from that viewpoint the facts of the present case, I cannot see how the present manslaughter could be regarded fairly as anything other than culpable in high degree. 11 The subjective matters which are available on the evidence can be summarised as follows:

1] The prisoner is a young man. He is now aged 21 years and about 3 months. The consideration to which the prisoner is properly entitled by reason of his age is not, of course, unqualified. As Hunt CJ at CL observed in Reg. v Gordon (1994) 71 A Crim R 459 at 469: "……………………… General deterrence remains of primary importance and, where a youth conducts himself in the way an adult might conduct himself and commits a crime of considerable gravity, the protective function of the criminal courts would cease to operate unless deterrence and retribution remained significant considerations in sentencing that youth." I consider these observations to be appropriate to the case of the present prisoner. 2] The prisoner is married. There is not much evidence about the marriage; and what little there is rather suggests an unconventional marriage. The Court has not heard evidence either from the prisoner or from his wife; and I have come to the conclusion that the fairest way of dealing with the exiguous evidence that is available is to treat it as neutral: that is to say, as being insufficient to justify the drawing of any firm inference, either advantageous or disadvantageous to the prisoner.

4] The prisoner has exhibited significant remorse. Mr. Mansfield, a Juvenile Justice Officer called by the Crown in the proceedings on sentence, gave evidence that he had never known, in his own considerable experience, a young offender who was more remorseful than the prisoner. I accept this evidence.

5] While dealing with the matter of remorse, it is convenient to note that the prisoner was originally charged with murder. On 13 October 1997 that charge was replaced by a charge of manslaughter to which a plea of guilty was entered in the Local Court. On 17 December 1997 that plea was not adhered to and, thereafter, there was a contested committal hearing. The significance of these matters is, of course, that the prisoner has no just claim to a reduction in sentence by reason of a prompt plea of guilty.

6] The prisoner can function, but with limitations, in the English language. Those particular limitations will entail, more probably than not, some greater than usual hardship, at least during the early stages of any sentence of full-time imprisonment. There is the additional consideration that any sentence of full-time imprisonment now imposed will be served in an adult prison, and will be the first occasion on which the prisoner will have served a sentence of full-time custody otherwise than on remand.

7] The Pre-Sentence Report ordered by this Court offers, and I accept, the following summary: "The offender appears to have had a traumatic childhood whilst in Vietnam, which was to some degree overcome by his families' (sic) reunion in Australia. He appears to have a strong identity with his cultural background. (He) does not appear to have any issues of concern in relation to alcohol or other drug substances. He has focused in gaining his Higher School Certificate and employment, which from reports, he has successfully obtained. It is of concern to this Service that he has not addressed the offence through counselling, other than attending a session arranged through the Department of Juvenile Justice. Such counselling could be arranged if he was placed under the supervision of this service."

8] The available evidence establishes other positive things about the prisoner.

He has achieved his Higher School Certificate. After leaving school he had a Panel Beating apprenticeship for a year; a Mechanic's apprenticeship for about six months; and thereafter steady employment. He appears to have been a good and well-regarded apprentice and employee.

In addition, he has been an active influence for good within the Vietnamese youth community. There are in evidence several striking testimonials to that effect.

9] It is, in my opinion, proper to infer, as I do, that the prisoner's offence was out of character. It was a serious lapse in personal and social responsibility, but it does not derive from any tendency repeatedly to break the law. 12 Before bringing into an overall balance the foregoing objective and subjective features, it is necessary to take account of the victim impact statement which was placed before the Court. It is Exhibit D in the proceedings on sentence. 13 It makes, as such statements always do, sad reading. This Court is required to read the statement and has done so. The Court acknowledges, with all proper respect, the feelings that are expressed in the statement. There is nothing in particular that the Court can do beyond making that acknowledgment, at the same time expressing the hope that the opportunity to lodge the statement and to have it publicly recognised will do something, however little, to soothe the grief of Miss Liu's family. 14 It is common ground that the prisoner must now be dealt with in accordance with the new sentencing regime established by the recently enacted Crimes (Sentencing Procedure) Act 1999, ["the Act"]. That entails that, pursuant to s.5 of the Act, the Court must not sentence the prisoner to full-time imprisonment "unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate". 15 The "possible alternatives" are, in summary:

1] A sentence of imprisonment to be served by way of periodic detention.

3] A good behaviour bond pursuant to s.9 of the Act.

4] An order, made pursuant to s.10 of the Act and without proceeding to conviction.

5] An order made pursuant to s.11 of the Act for the deferral of the passing of sentence in order to explore particular aspects of possible rehabilitation.

6] A suspended sentence imposed pursuant to s.12 of the Act. 16 In order to consider properly this range of possibilities it is necessary, in my opinion, to recognise two threshold propositions. First, that the statutory maximum penalty for manslaughter is imprisonment for 25 years; and secondly, that manslaughter is a crime the incidents of which can vary so markedly from case to case that the range of a sound sentencing discretion is in the nature of things very wide. 17 Those basic matters once established, it is necessary to consider whether it would be just in the present particular case to deal with the prisoner in a way that did not entail the recording of a formal conviction. I have no doubt that a failure formally to convict would be wholly inappropriate. A formal conviction is, in my opinion, the very least that the community would be entitled to expect by way of public denunciation in the circumstances of the present case of the unlawful taking of a human life. This rules out, necessarily, a s.10 order. 18 The next thing to be considered is whether, following conviction, the Court should impose a sentence of imprisonment rather than make a Community Service Order pursuant to s.8 of the Act; an order for a Bond pursuant to s.9 of the Act; or an order deferring, pursuant to s.11 of the Act, the passing of sentence. 19 As to a Community Service Order, it is to be noted that the Juvenile Justice authorities have assessed the prisoner as suitable for community service. In that connection the Children (Community Service Orders) Act 1987 is applicable, because the prisoner was not aged 18 years at the time of the shooting of Miss Liu. The applicability of the 1987 Act entails that the Court cannot order more than 250 hours of community service. The relevant evidence, - it is in the form of the document Exhibit C on sentence, - suggests that the prisoner could be placed in something described as "the Graffiti Removal Program (sic)". 20 I have no hesitation in rejecting this alternative. To suggest that the unlawful killing here relevant would be justly punished by 250 hours, at the most, of scrubbing out graffiti is to reduce to an insensitive absurdity the objective gravity of the offence. 21 I exclude, as readily, a s.11 order for the deferral of sentence. This prisoner's case is not one which requires the careful exploration in advance of sentencing of future rehabilitation. 22 A good behaviour bond pursuant to s.9 of the Act might well be a just expedient in some cases of manslaughter; but not, in my opinion, in the present particular case. Whether the conceptual basis of the prisoner's guilt is the doing of an unlawful and dangerous act; or the doing of a criminally negligent act; or the doing of an act which can fairly be characterised in both of those ways; the fact remains that he brought about the loss of another's life by conduct which, as I think, no person of ordinary good sense could dismiss as merely an accident carrying no true moral and legal culpability. 23 I conclude, therefore, that some sentence of imprisonment should be passed. When its proper extent as to head sentence has been set, it will be necessary to consider whether any or all of ss. 7, 8 and 12 of the Act have any, and if so what, proper application. 24 I have taken as a practical starting point the decision, earlier herein cited, in MacDonald. I stress that I have not treated the approach taken in that matter as in any way determinative of the way in which the present matter, very different factually as it is, should be ultimately resolved. 25 But MacDonald was decided by, if I may say so, a particularly strong Bench of the Court of Criminal Appeal, namely Gleeson CJ, (now, of course, Chief Justice of the High Court of Australia); Kirby P, (now Kirby J of the High Court of Australia); and Hunt CJ at CL. The judgment itself is a joint judgment; and it conveys, in my respectful view, perceptions which are helpful for present purposes concerning the intrinsic gravity of the crime of manslaughter, and concerning its proper denunciation and punishment. 26 MacDonald was a case of manslaughter by stabbing. The offender had a generally good record. The joint judgment describes him as "a decent young man of good character"; and accepts that he is "a person with limited intellectual capacity, of dull intelligence and with emotional inadequacies which made it difficult for him to cope with stressful situations". In other words, there were findings of subjective matters, some of which could be found in the present prisoner's personal circumstances; but others of which were much more serious deficiencies than are established by the evidence in the present case. 27 Further, the Court described the stabbing as "a tragic occurrence"; accepted that the circumstances leading up to the stabbing had imposed upon the offender genuine personal stresses which he genuinely could not manage; and recognised that the offender, when he stood for sentence, had actually been in unbroken custody for some 17 months. All of these findings were, at least as it seems to me, significantly favourable to the offender; and the case of the present prisoner has no such features. 28 And yet, at the end of the day, the Court of Criminal Appeal took a very stern view of that particular manslaughter. Their Honours said: "We make full allowance for the strong subjective circumstances in the respondent's favour, and for the fact that he was reacting impulsively to a highly stressful situation, which was not of his own making. We give him the full benefit of the uncertainty that exists in relation to the precise nature of the act which fatally wounded the deceased. Nevertheless, the respondent, by his deliberate act involving the unlawful and dangerous use of a knife, killed the deceased. The objective seriousness of that act, with its consequences, demands a more substantial punishment than that which the respondent has already suffered." [see at pp 9, 10] 29 Their Honours gave effect to those views by imposing a sentence which, if expressed in the form that would now be appropriate under the Act, was a sentence of imprisonment for 5 years, with a non-parole period of 3 years. That sentence, imposed as it was in consequence of a successful Crown appeal, must have been unappellable had it been imposed at first instance. Indeed, a somewhat heavier sentence at first instance would probably have been upheld on appeal. 30 The emphases of policy and of principle to which the Court of Criminal Appeal gave both stern voice and severe practical sanction seem to me to be applicable, mutatis mutandis, to the admittedly different particular facts of the present case; and I consider that I should in duty apply them to the present case. 31 I have come to the conclusion that such an approach would justify the passing upon the present prisoner of a head sentence of imprisonment for 4 years. Such a conclusion renders inapplicable the options of home detention pursuant to s.7 of the Act; of periodic detention pursuant to s.6 of the Act; and of suspension of sentence pursuant to s.12 of the Act. 32 It remains to consider the setting of a non-parole period pursuant to s.44 of the Act. Clearly, as I think, a non-parole period should be set; and it should be, by reason of special circumstances, less than three-quarters of the head sentence. The prisoner's age, the fact that this will be his first experience of full-time imprisonment, and the heavy burden of remorse, combine, in my opinion, to justify a longer than normal period of careful supervision and encouragement after release to parole. In my opinion, this would be achieved fairly by the setting of a non-parole period of two years. I will order, pursuant to s.47(2)(a) of the Act, that the sentence be taken to have commenced on a date earlier than today so as to allow for pre-sentence custody. 33 At the hearing on 26 May last I was informed that the prisoner had spent, to that day, 10 days in custody. My calculation is that, as of today, he has so spent an additional 13 days. I will date the sentence, therefore, to commence on 16 May last. 34 Mr. Luong, upon the jury's verdict that you are guilty of the crime of manslaughter, you are convicted. You are sentenced to imprisonment for 4 years, with a non-parole period of 2 years. The sentence and the non-parole period are taken to have commenced on 16 May 2000. The earliest date on which you will be eligible for release to parole is 15 May 2002. 35 The Court recommends:

1] that you be classified with the maximum possible expedition and to the end of minimising your exposure to hardened criminals;

2] that in so far as is compatible with proper prison administration and discipline;

(a) you be imprisoned at some appropriate place that is reasonably accessible to your wife and family;

(b) you be given reasonable access to prisoners who can communicate readily with you; (c) you be given every reasonable opportunity to study, to improve your English language skills, and otherwise to acquire vocational skills that are likely to be of practical use to you upon your release to parole.

3] that you be afforded, compatibly with proper prison administration and discipline, an opportunity to enter the Young Offenders Programme. ***********

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