Lu v The Queen

[2008] NSWCCA 261

Reported Decision: 190 A Crim R 109

New South Wales

Court of Criminal Appeal

CITATION:	Lu v Regina [2008] NSWCCA 261 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	24 September 2008
JUDGMENT DATE:	11 November 2008
JUDGMENT OF:	Beazley JA at 1; Hislop J at 1; Harrison J at 1
DECISION:	1. Leave to appeal against sentence granted; 2. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – sentencing for the offence of manslaughter by unlawful and dangerous act – revenge attack – long criminal history – exercise of discretion by trial judge – sentence within appropriate discretionary range - CRIMINAL LAW – sentencing – totality – offender on conditional liberty at time of offence – accumulation of sentence on earlier sentence imposed for different offence – partial accumulation would not adequately reflect objective criminality of offence
LEGISLATION CITED:	Crimes Act 1900, ss 18, 24 Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A(3)(i)
CATEGORY:	Principal judgment
CASES CITED:	Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41 Johnson v R [2004] HCA 15; (2004) 205 ALR 346 Lu v R [2007] NSWCCA 74 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mill v R [1988] HCA 70; (1988) 166 CLR 59 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 R v Avakian [2003] NSWSC 1042 R v Buddle [2005] NSWCCA 82 R v Diab [2003] NSWSC 978 R v Diab [2005] NSWCCA 64 R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1 R v Hoang [2004] NSWSC 205 R v Hung Duc Dang [2001] NSWCCA 321 R v Lewis [1999] NSWSC 131 R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566; 163 A Crim R 381 R v Newman (Supreme Court of New South Wales, Barr J, 3 September 1997, unreported) R v Richards [1981] 2 NSWLR 464 R v Tran [1999] NSWCCA 109 R v WHS (NSWCCA, Hunt CJ, Smart and McInerney JJ, 27 March 1995, unreported)
PARTIES:	Hoang Quang LU (Appellant) Regina (Respondent)
FILE NUMBER(S):	CCA 2006/3354
COUNSEL:	A Haesler SC (Appellant) L Lamprati SC (Crown)
SOLICITORS:	William O'Brien Solicitors (Appellant) Solicitor for Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 2006/1992
LOWER COURT JUDICIAL OFFICER:	Price J
LOWER COURT DATE OF DECISION:	9 November 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	Regina v Lu [2007] NSWSC 1259

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CCA 2006/3354

BEAZLEY JA
HISLOP J
HARRISON J

11 November 2008

Hoang Quang LU v Regina

Headnote

The applicant, Mr Lu, pleaded guilty to manslaughter, contrary to s 18 of the Crimes Act 1900. Price J sentenced Mr Lu to a total term of imprisonment of 9 years 4 months, comprising a non-parole period of 6 years 2 months, with a balance of term of 3 years. At the time of sentence, Mr Lu was already serving a sentence imposed by Maguire DCJ for supply prohibited drug, comprising a total term of imprisonment of 4 years 8 months, with a non-parole period of 3 years 7 months. Price J effectively commenced the sentence for the manslaughter offence at the expiration of the non-parole period for the supply prohibited drug offence.

Mr Lu seeks leave to appeal against sentence on two grounds: first, that the sentence imposed was too severe; and secondly, that his Honour erred in failing to partially accumulate the sentence for the manslaughter offence on the earlier sentence for the supply prohibited drug offence, imposed by Maguire DCJ.

The offence occurred in circumstances where Mr Lu, who was carrying an iron bar and was in the company of another person, chased the victim and attacked him. The victim was stabbed during the attack. On the agreed facts before the Court, the stabbing was done by the other attacker. The altercation was a revenge attack for an incident that occurred between Mr Lu and the victim and their respective female partners a fortnight previously.

Mr Lu was sentenced by Price J on the basis that he intended that he and the other person would assault the victim and occasion actual bodily harm, and that Mr Lu was not aware that the other person was in possession of a knife which he would use to fatally stab the deceased.

Mr Lu had a lengthy criminal history and poor prospects for rehabilitation. However, Mr Lu’s contrition and remorse were factors in mitigation. A discount of 15 per cent was allowed for the utilitarian effect of the plea of guilty.

Price J rejected that the offence arose from the prisoner’s heroin addiction, so that the sentence for manslaughter should be made partially concurrent with the sentence for the supply prohibited drug offence. As the two offences represented discrete and independent acts of criminality, Price J held that partial accumulation would not adequately reflect the criminality of the offence of manslaughter.

Held per the Court

Ground 1: the sentence imposed by Price J was within the appropriate discretionary range

1. The taking of a human life amounting to manslaughter calls for very severe punishment: [21].

2. There is no fixed sentence for manslaughter and the offence is one where the objective gravity can vary in significant degrees: [21]-[22].

R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1 (considered).

3. A sentencing judge is given considerable latitude when considering the appropriate sentence to impose and its relationship with other sentences for similar offences: [22].

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 (considered); Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 (referred to).

4. Nothing was shown, either by comparison with the manslaughter sentences referred to the Court, or by reference to any other material, that the sentence imposed by his Honour was outside an appropriate discretionary range: [48].

R v Hung Duc Dang [2001] NSWCCA 321; R v Lewis [1999] NSWSC 131; R v Hoang [2004] NSWSC 205; R v Newman (Supreme Court of New South Wales, Barr J, 3 September 1997, unreported); R v Avakian [2003] NSWSC 1042; and R v Diab [2003] NSWSC 978 (all considered).

Ground 2: there was no error by the trial judge in refusing to partially accumulate the sentence for the manslaughter offence

5. Having regard to the principle of totality of the sentences to be imposed, Price J maintained an appropriate relationship between the totality of the criminality involved in Mr Lu’s offending, and the totality of the sentences to be imposed: [58]-[61], [66].

Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 (considered); Mill v R [1988] HCA 70; (1988) 166 CLR 59 (referred to).

6. The trial judge’s refusal to aggregate the two sentences was a just and appropriate measure of the total criminality involved: [59], [66].

R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 (considered); Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41; Johnson v R [2004] HCA 15; (2004) 205 ALR 346 (both referred to).

7. The commission of the offence whilst on conditional liberty weighed heavily against Mr Lu.

R v WHS (NSWCCA, Hunt CJ, Smart and McInerney JJ, 27 March 1995, unreported); R v Richards [1981] 2 NSWLR 464; R v Tran [1999] NSWCCA 109 (applied).

IN THE COURT OF

CCA 2006/3354

BEAZLEY JA
HISLOP J
HARRISON J

11 November 2008

Hoang Quang LU v Regina

Judgment

1 THE COURT: The applicant, Hoang Quang Lu, seeks leave to appeal against sentence imposed upon him by his Honour Price J on 9 November 2007 following his plea of guilty for the manslaughter of Phillip Anthony Rousianos on 1 October 2005. Mr Lu had been indicted for the murder of Mr Rousianos, to which he pleaded not guilty. However, on 15 August 2007, being the first day of trial, he entered a plea of guilty to manslaughter, which was accepted by the Crown in full discharge of the charge on the indictment.

2 The crime of manslaughter carries a maximum sentence of 25 years imprisonment: Crimes Act 1900, s 24. Price J sentenced the applicant to a total term of imprisonment of 9 years 4 months, comprising a non-parole period of 6 years 2 months to commence on 30 April 2009 and to expire on 29 June 2015, together with a balance of term of 3 years 2 months, expiring on 29 August 2018.

3 At the time of sentence, Mr Lu was serving a sentence for supply prohibited drug that had been imposed by Maguire DCJ on 26 May 2006. Maguire DCJ imposed a total term of imprisonment of 4 years 8 months for that offence, with a non-parole period of 3 years 7 months. The sentence and non-parole period commenced on 2 November 2005. The non-parole period expires on 1 June 2009.

4 Price J, after giving credit for a period of 32 days served in custody for the offence of manslaughter, effectively commenced Mr Lu’s sentence for this offence at the expiration of the non-parole period for the supply prohibited drug offence.

5 Mr Lu seeks leave to appeal on the basis that some other lesser sentence was warranted in law. He raises two proposed grounds of appeal: first, that the sentence imposed was too severe; and secondly, that his Honour erred in failing to partially accumulate the sentence on the earlier sentence imposed by Maguire DCJ.

6 Price J made findings of fact for the purposes of sentencing Mr Lu in accordance with the following agreed facts. The deceased was killed on 1 October 2005, when he was stabbed on the front porch of premises into which he had run to escape from Mr Lu and another person, who were chasing him. At the time, Mr Lu was armed with an iron bar. Mr Lu and the other person jumped over the fence of the property into which the deceased had fled and surrounded him. The deceased kicked out at Mr Lu, who then punched the deceased in the face. It was agreed at the sentencing hearing before his Honour that the other person produced a knife and fatally stabbed the deceased. That person was later tried separately and was acquitted.

7 The attack on the deceased came about one month after there had been an altercation between the deceased and Mr Lu’s girlfriend, Ms Hudson. That had occurred when, in the early hours of the morning, the deceased and his girlfriend, Ms Malcolm, had driven to Mr Lu’s premises. Ms Malcolm had knocked on the door of the premises, which had been opened by Mr Lu’s girlfriend, Ms Hudson. The two women had an argument, Ms Malcolm wanting Mr Lu to be woken up so she could speak to him directly. Ms Malcolm returned to the car, but was followed out of the house by Ms Hudson. The argument between the two women continued and there was a physical confrontation between them.

8 The deceased got out of his car and punched Ms Hudson. Mr Lu emerged from the house and there was a physical altercation between Mr Lu and the deceased. During that altercation, Mr Lu was punched and kicked by the deceased, whilst he was on the ground. Ms Hudson had to intervene, to stop the deceased from kicking Mr Lu. In the course of this, the car in which the deceased and Ms Malcolm had driven to the premises rolled backwards and over Ms Malcolm, injuring her.

9 The deceased and Ms Malcolm left and returned to their home unit. Shortly thereafter, Mr Lu arrived, wielding a machete. Mr Lu confronted the deceased, raising the machete towards him. At that point, the deceased’s father and younger brother intervened and Mr Lu backed off, but not before making death threats towards the deceased. Mr Lu then left.

10 The circumstances immediately preceding the stabbing of the deceased occurred when Mr Lu was driving along Lachlan Street, Liverpool and saw the deceased and the deceased’s mother and brother walking along the street. Mr Lu returned to his home, where the other person was at the time. Mr Lu and the other person then drove back to where Mr Lu had last seen the deceased. They did so, having agreed to attack the deceased, assault him and occasion him actual bodily harm. They found the deceased, his mother and brother, still walking along the street. Mr Lu and the other person jumped out of the vehicle, Mr Lu holding the iron bar which had been in his vehicle, and began yelling at the deceased. The deceased ran and the attackers chased him.

11 His Honour identified the unlawful and dangerous acts which substantially contributed to the death of the deceased as including a threat of violence to the deceased, occasioned when Mr Lu waved an iron bar at the deceased whilst he was standing at the side of the fence. At that time, the deceased was on the porch of the residence knocking on the front door seeking help. Both Mr Lu and the other person then jumped over the fence and surrounded the deceased. His Honour also referred to Mr Lu’s actual violence in punching the deceased in the face.

12 His Honour found that this was “an objectively serious offence of manslaughter by unlawful and dangerous act. His Honour considered that Mr Lu was motivated by a desire for revenge for what had occurred a month earlier in the incident involving Mr Lu’s girlfriend. His Honour sentenced him on the basis that his offending did not involve an intention to kill or inflict grievous bodily harm upon the deceased, or reckless indifference to human life. Central to that finding was that there was no suggestion Mr Lu knew that the other person was in possession of a knife which he would use to fatally stab the deceased. Rather, his Honour considered Mr Lu intended that he and the other person would assault the deceased and occasion actual bodily harm.

13 Senior counsel for Mr Lu had submitted to the trial judge that the confrontation at Mr Lu’s home a month prior, occurred when the deceased had gone there to obtain prohibited drugs. It was suggested that the reason Mr Lu could not report the assault upon his girlfriend to police was because of his own involvement in that criminal activity. His Honour rejected this as a matter of mitigation. His Honour pointed out that neither Mr Lu’s involvement in criminal activity, nor the assault upon him and his girlfriend, could justify Mr Lu taking the law into his own hands and seeking to exact physical revenge: see R v Buddle [2005] NSWCCA 82 per Wood CJ at CL at [11].

14 His Honour next referred to the applicant’s lengthy criminal history, which commenced in 1990 and included driving offences, a series of break enter and steal offences, the possession of house breaking implements, drug offences and robbery in company.

15 His Honour stated that this criminal history deprived Mr Lu of any consideration of leniency to which he may have been entitled, if the current offence had been an isolated act of criminality. His Honour considered that having regard to Mr Lu’s criminal history, he would give more weight to considerations of personal deterrence and the protection of the community than otherwise would be the case: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566; 163 A Crim R 381; R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159.

16 His Honour found as aggravating circumstances the fact that at the time of the offence, Mr Lu was subject to a s 12 bond which he had entered into on 20 June 2005 and that he was on conditional bail for the charge of supply prohibited drug, for which he was sentenced by Maguire DCJ on 26 May 2006.

17 His Honour had regard to Mr Lu’s personal circumstances, including a traumatic early life, when, as a boy of nine, his family had fled Vietnam on a small boat. The applicant had been further traumatised during the boat journey, when the boat capsized and his uncle and younger brother, aged seven, drowned. Mr Lu has been diagnosed by a psychologist, Mr Watson-Munro, who provided an assessment for the purposes of the sentence hearing, as having a post-traumatic stress disorder, which he described as “escalating”. Mr Lu attempted to treat his disorder by self-medicating with heroin, cannabis and alcohol at a high level of intensity. Mr Lu’s drug abuse commenced at age 15. Mr Lu also had a very difficult adjustment to life in Australia. He had last worked in 1992. He is married, but separated, with a 15 year old son with whom he speaks regularly.

18 Although Mr Watson-Munro considered that Mr Lu had been drug-free for an extensive period and that he had developed some insight into his problems, his Honour found that his prospects for rehabilitation were poor.

19 His Honour allowed a discount of 15 per cent for the utilitarian effect of the plea of guilty, which he did not accept had been entered at the first available opportunity. This is not in dispute and it is not necessary to investigate the circumstances in which that plea was entered. His Honour did accept, however, that Mr Lu had shown contrition and remorse for the offence and took this into account as a factor in mitigation: Crimes (Sentencing Procedure) Act 1999, s 21A(3)(i).

20 Finally, his Honour rejected a submission that as this offence arose from the prisoner’s heroin addiction, this sentence should be made partially concurrent with the sentence imposed by Maguire DCJ for the offence of supply prohibited drug. His Honour considered that the manslaughter offence had occurred due to Mr Lu’s desire for revenge and that the two offences represented discrete and independent acts of criminality. His Honour recognised that this was not determinative of whether the sentences ought to be imposed partially, concurrently, or consecutively: see Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41 per Howie J at [27]. However, he considered that partial accumulation in this case would not adequately reflect the criminality of the offence of manslaughter.

Ground 1: the sentence imposed was too severe

21 Senior counsel for Mr Lu acknowledged that there were four important principles to which regard needed to be had in respect of this ground of appeal. First, that a life was lost and that the taking of human life amounting to manslaughter calls for very severe punishment. Secondly, there is no fixed sentence for manslaughter and the offence is one where the objective gravity can vary in significant degrees. As Spigelman CJ observed in R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1, at [133], the offence is “almost unique in its protean character” and that its objective gravity may vary from “a joke gone wrong to facts just short of murder”. In short, matters of fact and degree arise in all categories of manslaughter: see Forbes at [134].

22 Thirdly, a sentencing judge is given considerable latitude when considering the appropriate sentence and its relationship with other sentences. In Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357, Gleeson CJ, Gummow, Hayne and Callinan JJ, at [27], once again reiterated that there is no single correct sentence to be imposed in respect of a particular offence: see Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at 624 [46]. Their Honours pointed out that judges at first instance were to be “allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies”.

23 In Forbes, Hall J, having noted, at [190], the difficulty in establishing a sentencing pattern in cases of manslaughter, then set out the following propositions that he considered could be derived from other judgments of this Court:

“

· The peculiar difficulty in the case of manslaughter is to discern a range of commonly imposed sentences. Sentences for manslaughter vary greatly because of great variations in the circumstances of individual instances of the offence. There have been many statements made by this court to that effect: Kirby, P., (Grove and Newman, JJ. agreeing) said in Regina v. Troja (CCA, unreported 16 July 1991 at p.3):-

‘This aspect of sentencing law, as it applies to a person convicted of manslaughter, presents a particular difficulty to an appellate court where it is invited to review the sentence imposed by the trial judge in the exercise of that judge’s discretion. In the vast range of circumstances giving rise to such a sentence, it is difficult to discern any clear pattern or coherent standard. As Wood, J. himself observed, the sentence which is appropriate to each case of manslaughter depends ultimately upon its own special circumstances.’

· Wood, J. (Hunt, CJ. at CL. and Sharpe, J. agreeing) said in Regina v. Morabito (1992) 62 A. Crim. R. 82 at 86:-

‘That kind of analysis can be helpful, but the circumstances involving manslaughter being so various, it would be erroneous to place too much store on any sentencing survey, let alone to look for a median or average outcome.’

· In Regina v. Maguire (CCA, unreported 060609/94), James, J. (Grove and Hulme, JJ. agreeing) stated:-

‘I agree that if a comparison is to be made between a sentence for manslaughter and other sentences for manslaughter, it will usually be more fruitful to compare the case under consideration with other cases of manslaughter of a similar sort. For example, if the case under consideration is a case of manslaughter by reason of provocation, it will usually be more useful if any comparison is a comparison with other cases of manslaughter by reason of provocation. This was the approach adopted by the Chief Judge at Common Law at first instance in Regina v. Alexander .
In some cases of voluntary manslaughter where, apart from the partial defence of provocation or diminished responsibility, the prisoner would have been guilty of murder but the Crown has not succeeded in disproving either provocation or diminished responsibility, a heavy sentence will be appropriate. But there will also be cases of involuntary manslaughter, that is of cases of manslaughter by unlawful and dangerous act or manslaughter by criminal negligence, where a heavy sentence will also be appropriate.

· In Regina v. Woodland [2001] NSWSC 416, Wood, CJ. at CL. (at [27] to [30]) stated:-

‘The offence of manslaughter is one for which the maximum available sentence is one of imprisonment for 25 years. The offence involves the felonious taking of human life, and for that reason it has been recognised as a most serious crime: Hill (1981) 3 A. Crim. R. 397 at 402. The value, which the community places upon the preservation of human life, is reflected by the need to have conduct involved in its taking denounced by a sentence appropriate to the circumstances of the case: Macdonald (NSWCCA, unreported 12 December 1995). It is, however, an offence, which involves an excessively wide variety of circumstances, calling for a range of penal and, sometimes, non-penal outcomes, with the consequence that it is difficult to obtain much by way of assistance from reference to the Judicial Commission’s statistics or from other cases: Elliott (NSWCCA, unreported 14 February 1991, per Newman, J.) and Green [1999] NSWCCA 97’.”

Hall J also appended to his judgment an analysis of the manslaughter sentences that he had reviewed.

24 Mr Lu draws upon some of these cases as indicating that where sentences similar to that imposed on him were considered, the level of personal culpability of the offender in those other cases had been significantly greater than in his case. The cases upon which he relied to demonstrate this are R v Hung Duc Dang [2001] NSWCCA 321; R v Lewis [1999] NSWSC 131; R v Hoang [2004] NSWSC 205; R v Newman (Supreme Court of New South Wales, Barr J, 3 September 1997, unreported); R v Avakian [2003] NSWSC 1042; and R v Diab [2003] NSWSC 978.

25 The Crown submits that these cases have been chosen selectively and Mr Lu’s reliance on them overlooks significant differences in them as compared to Mr Lu’s circumstances. In particular, the Crown submits that the subjective features of the accused persons and their moral culpability in those cases were different from Mr Lu’s position and mostly more favourable to the accused person.

26 As this is a significant aspect of the approach taken on behalf of Mr Lu in seeking to establish that the sentence imposed on him was manifestly excessive, it is appropriate to consider each of these cases.

Diab

27 Mr Diab (Diab) pleaded guilty to manslaughter and was sentenced to a term of imprisonment of 9 years, with a non-parole period of 6 years. The principal offender pleaded guilty to murder by shooting the deceased with a firearm. Diab was present at the shooting and knew that the principal offender was in possession of a loaded and unauthorised weapon, which Diab had purchased. He was also aware that the principal offender intended to threaten the victim: [5]. It was apparent from offences contained on a Form 1 that two days prior to the shooting, Diab had threatened a group of young men with the same firearm.

28 Diab had entered a plea of guilty on the second day of trial, for which the trial judge gave an overall discount of 25 per cent: [45]. There were a number of factors favouring leniency in his case, including that he was young, with strong prospects for rehabilitation. He had also expressed contrition. The trial judge accepted that Diab might not have known that the principal offender had reached for the gun on alighting from the car and that there was a lesser degree of forethought about the possibility of its use: [52]. The trial judge also found special circumstances, based on his age, his less than average academic and reading ability, the absence of any prior criminal history, strong family ties, a work ethic with career prospects, and his contrition evidenced by an early plea of guilty and expressions of remorse: [60]. His Honour also had regard, as an aggravating factor, to the fact that some penalties had been imposed on Diab whilst he was in custody.

29 Leave to appeal against sentence was granted, but the appeal dismissed: R v Diab [2005] NSWCCA 64.

Dang

30 Mr Dang (Dang) was tried for murder and was found guilty of manslaughter, for which he was sentenced to imprisonment for 7 years 6 months, with a non-parole period of 4 years. This sentence was imposed cumulatively upon sentences for two offences committed at the same time. The total term of imprisonment was 10 years, with a non-parole period of 6 years 6 months. The circumstances of the offence were these. Following the commission of a robbery in company, Dang’s co-offender killed a pursuer who was attempting to detain him. Both offenders were carrying knives and it was in Dang’s contemplation that the co-offender might commit an unlawful and dangerous act with the knife by stabbing someone, other than in self-defence. During the course of the incident, Dang also wounded another person who had followed him.

31 The following factors were relevant to Dang’s sentence: he was young (21 as at the date of sentence); he had no prior criminal history; he came from a good family background and he had a supportive family. The trial judge found special circumstances, including that i) the sentence was to be served cumulatively upon other sentences for fixed terms, which were not themselves subject to any possibility of release on parole, ii) Dang was a youthful first offender who would serve his sentence upon protection, iii) there was a need for counselling to address his lack of insight and drug use, resulting in the non parole period being set to 65 per cent of the total term.

32 On appeal, the Court found that whilst the sentence was a heavy one, it was not outside the legitimate range of sentencing discretion: R v Dang [2001] NSWCCA 321.

Lewis

33 Mr Lewis (Lewis) pleaded guilty to manslaughter, which the Crown accepted in full discharge of an indictment of five counts, including murder. He was sentenced for manslaughter to a term of imprisonment of 9 years, with a non-parole period of 6 years. Lewis was involved in a bikie gang, who committed a violent group assault on the victim. The victim had been removed from a club by a security guard and a member of the gang. A scuffle ensued. Lewis joined in the assault and repeatedly delivered blows to the victim’s head with his elbow and fist, causing him to fall face down. Lewis then tried to pin the victim’s arms, and repeatedly kicked him whilst he was on the ground. During this time, three or four other members of the gang joined in. Lewis saw the assailants stomping on the victim, but did not see the victim being stabbed, which ultimately caused his death.

34 Lewis’ participation was aggravated by the fact that at the time of the offence, he was in breach of parole for offences related to malicious wounding with intent to cause grievous bodily harm (by stabbing), for which he had been sentenced to 4 years with a non-parole period of 1 year 11 months; and driving whilst disqualified, for which he had been sentenced to a term of imprisonment of 6 months: [15] ff. He had also moved cities and assumed a false identity for a year to avoid arrest, before surrendering to police. Lewis accepted that he knew at least some of his fellow assailants were armed with knives and that an assault in such circumstances exposed the victim to an appreciable risk of serious injury by stabbing: [21].

35 The trial judge considered that as a matter of objective criminality, this was a most serious criminal offence, in light of the group assault and the supposed interest of teaching the victim a “lesson” for drunk and abusive behaviour: [24]. Lewis was 25 years and 6 months old at the time of the offence. His Honour considered that he should be given modest credit for his remorse and that he had good prospects for rehabilitation, as he had family support and significant creative, manual skills. However, militating against his prospects for rehabilitation was the risk that Lewis would resume his gang related activities: [31]. His Honour also took into account Lewis’ plea of guilty. His Honour did not quantify any percentage discount in this regard. It should be noted, however, that this decision predated the commencement of the Crimes (Sentencing Procedure) Act 1999. His Honour found special circumstances, including the risk of imperilling Lewis’ marriage, which was very important to his ultimate rehabilitation, and protection from revenge attacks by fellow inmates: [46]-[47].

Hoang

36 Mr Hoang (Hoang) was convicted by a jury of manslaughter and was sentenced to a term of imprisonment of 8 years 6 months, with a non-parole period of 5 years. Hoang participated in a gang attack, in which two of the victims were stabbed. The attack resulted in the death of one young man and the wounding of another. The trial judge found that it was a deliberate group crime, which involved gratuitous violence and planning by a body of young men, who combined to attack to other young men. Both the attackers and Hoang saw it as an attack of revenge: [30].

37 Hoang had previous convictions for shoplifting and drug offences, that appeared to relate to his use of cannabis from age 14, and heroin at 15. The trial judge was not convinced that Hoang had ceased contact with his co-offenders and other drug-using peers whilst in custody: [20]. His Honour found special circumstances, based on Hoang’s youth, remorse and positive efforts made in prison: [20].

Avakian

38 Mr Avakian (Avakian) pleaded guilty to manslaughter, which the Crown accepted in full discharge of an indictment for the charge of murder. The plea was entered on the sixth day of the trial, after a request by Avakian for re-arraignment. He was sentenced to a term of imprisonment of 5 years 6 months, with a non-parole period of 3 years 6 months.

39 Avakian and three other males had approached the victim and his three friends, two of them female, and asked the victim his name and accused him of stealing mobile phones from children. The victim put his hand on his pocket, and Avakian said, “What’s that a knife? What is a knife going to do against a gun?” Avakian told the deceased he had a gun and pointed a silver object at his head, which Avakian’s friends believed was a gun. It was in fact a mobile phone. Avakian said several times, “Are you prepared to die tonight?” and “You are going to die tonight” or “You are going to cop it”. Avakian and his group began to assault the deceased, during which the deceased was stabbed. Avakian did not stab the victim, nor was he aware that any of his company was in possession of a knife: [9]. In addition to two stab wounds, the deceased suffered multiple bruising, abrasions, lacerations, and a nose fracture: [10].

40 The trial judge found as an aggravating factor that Avakian was acting in concert with a group, with a shared intention to assault the deceased, which carried an appreciable risk of injury: [12], [34]. In addition, the trial judge found that Avakian’s role was pivotal, leading to the escalation of violence: [35]. Further, at the time of the offence, Avakian was subject to periodic detention orders and was on a bond for charges that included maliciously wound, and assault of a police officer: [15], [34].

41 Avakian had suffered abuse as a child by his mother, during which time his father was periodically absent. He had a poor academic and employment record and had been a user of hard drugs from age 15. Around this time, he tried to commit suicide. The trial judge found youth as a mitigating factor, as well as that the offence was not part of a planned or organised criminal activity, that there had been some expression of remorse and reasonable prospects for rehabilitation with counselling: [36]-[38]. His Honour found that a discount of 15 per cent was appropriate in relation to the plea, and special circumstances warranted a variation of the statutory proportion between head sentence and non-parole period to facilitate paroled supervision for counselling and drug and alcohol abstention: [47].

Newman

42 Mr Newman (Newman) pleaded not guilty to murder, but guilty to manslaughter and assault occasioning actual bodily harm. He was sentenced to a term of imprisonment of 9 years, with a non parole period of 6 years for the manslaughter offence.

43 The facts were as follows: after the closure of a hotel in the early morning, Newman and a Mr Gash (Gash) and the remaining patrons exited to the street. Gash threatened the two victims and their friends, took out a hunting knife and swung it at a member of the group, chased him and cut him on the chest. The attack momentarily subsided, during which time Newman retrieved an iron pipe from his car and walked back towards the group, making intimidating remarks. Newman raised the pipe and brought it down one victim’s head, causing a 40-50 mm laceration. The deceased pushed Newman to protect his friend, and Gash stabbed him in the back, ultimately causing his death. The offenders threw away their weapons. Newman later recovered the knife, and washed and hid it.

44 It was agreed at the sentence hearing that the stabbing was not completely beyond the scope of the joint enterprise, but was an incident of the commission of the enterprise that Newman had not expected. However, a reasonable person in his position would have realised that he was exposing the deceased to an appreciable risk of serious injury. The trial judge found, at 8:

“… [Newman] was not the leader of the attack but was willing and alert. He was not the man who did the stabbing and had no intent to do really serious bodily injury or kill. However, he did desire to put [the deceased] in fear and was prepared in doing so to inflict substantial injury short of grievous bodily harm. He was armed and in company.”

45 Newman had a criminal history, having been dealt with by the Children’s Court for numerous offences. After being charged with murder and assault in respect of this incident, he was released on bail. However, he breached his bail conditions by committing offences, namely, possession of a dangerous drug; break and enter with intent to commit a felony; and assault occasioning actual bodily harm, for which he was imprisoned for terms totalling 4 years. Newman then escaped from custody, during which he committed further offences and was sentenced to 6 months imprisonment. Later, he was convicted and fined for wilful and unlawful destruction of property.

46 The trial judge found that Newman showed signs of remorse and had assisted police to some extent, but nevertheless had “no particular interest in leading a law abiding life”. Although Newman entered a plea of guilty, the trial judge did not consider it as evidence of contrition. The trial judge made an allowance in the sentence for the fact that Newman would serve the rest of his prison term on protection.

47 As is apparent from this overview, Mr Lu’s sentence is the most severe of the cases relied upon, but only marginally so. However, the other cases involved offenders who were young or relatively young (Lewis was the oldest, being 25 years 6 months). Mr Lu was 32 at the date of the offence and 34 at the date of sentence. Not all had a criminal history and Mr Lu has an extensive criminal history. Most had good prospects of rehabilitation. Mr Lu did not. The offence was aggravated by the fact that Mr Lu was on conditional liberty at the time of its commission.

48 Nothing has been shown, either by comparison with these sentences, or by reference to any other material, that the sentence imposed by his Honour was outside an appropriate discretionary range. Indeed, the sentence imposed by his Honour was an appropriate sentence having regard to the circumstances of the offence, Mr Lu’s age, his prior criminal record and the fact he was on conditional liberty at the time.

Ground 2: Did his Honour err in failing to partially accumulate this sentence on an earlier sentence imposed by the District Court?

49 It will be recalled that Mr Lu was on bail at the time he committed this offence in respect of an offence of supply prohibited drug (the drug offence). He was sentenced for that offence on 26 May 2006 to a total term of imprisonment of 4 years 8 months, with a non-parole period of 3 years 7 months. He was serving that sentence at the time his Honour imposed sentence in this matter.

50 In determining the sentence which should be imposed, including the commencement date of sentence for the offence of manslaughter, his Honour had regard to the sentence imposed for the drug offence and to the principles of totality. In doing so, his Honour referred to Mill v R [1988] HCA 70; (1988) 166 CLR 59.

51 As already indicated above, his Honour rejected the submission that the manslaughter offence should be considered as being due to Mr Lu’s heroin addiction, so that it should be imposed partially concurrently with the drug offence.

52 His Honour recognised that although he considered both offences to be discrete and independent criminal acts, that was not determinative of whether the sentence ought to be imposed partially, concurrently, or consecutively: see Cahyadi per Howie J at [27]. His Honour held that partial accumulation would not adequately reflect the criminality for the offence of manslaughter: see Johnson v R [2004] HCA 15; (2004) 205 ALR 346 at [18].

53 Mr Lu contends that his Honour’s failure to allow any period of partial concurrence involved an erroneous exercise of his Honour’s sentencing discretion. It was submitted that it carried an element of double punishment and resulted in a potentially crushing sentence, involving an effective total non-parole period of 9 years 9 months. It was submitted that this was “simply too long in relationship to the combined criminality” of Mr Lu’s crimes.

54 In support of this submission, Mr Lu said that the sentence imposed for the drug offence was a heavy one, as recognised by this Court in Lu v R [2007] NSWCCA 74, at [16]. That submission has to be considered with care. Mr Lu had pleaded guilty to an offence of supply contrary to the provisions of ss 25, 29 and Sch 1 of the Drug Misuse and Trafficking Act 1985. The maximum penalty for such offences involving less than 250 g was 15 years imprisonment: ss 32(1)(c) and 32(1)(g). The quantity involved in Mr Lu’s case was comparatively small, being slightly more than 24 g. Hulme J (McClellan CJ at CL and Hislop J agreeing) observed, at [11], that the sentence of 4 years 8 months fell within the top 14 per cent of sentences for a plea of guilty imposed for such an offence. Mr Lu’s non-parole period fell within the top 4 per cent. His Honour considered that a quantity of 24 g argued for a lower, rather than a higher sentence, although quantity was not the only relevant factor.

55 Hulme J considered, at [6], that Mr Lu’s subjective circumstances “were not such as to inspire leniency”. His Honour referred to Mr Lu’s long record of offending, his prior periods of imprisonment and the fact he had committed the supply offence whilst on conditional liberty. His Honour noted there was no evidence of contrition and there were poor prospects of rehabilitation. His Honour also noted it was apparent that Mr Lu was a drug dealer. His Honour concluded, at [16], that:

“Personal and general deterrence, retribution and the protection of the community all argued for a heavy sentence.”

56 Mr Lu argues that the factors which disentitled him to leniency in the sentencing for the drug offence, were precisely the same factors as taken into account by Price J in disentitling leniency and justifying the imposition of a heavy sentence for the present matter. He said that having regard to those considerations, it was impossible to isolate a relevant sentencing factor as applying solely to one of the respective offences, or as having only one effect upon the individual sentence. There was, therefore, a real danger that as the factors disentitling him to leniency in each case were the same, that he was disadvantaged by the failure to make the sentences partially concurrent.

57 It was submitted that similar considerations arise when the purposes of sentencing, as now set out in s 3A of the Crimes (Sentencing Procedure) Act, are considered. This submission acknowledged that a sentence for each particular crime had, as a critical component, personal and general deterrence. However, whilst there were strong arguments for saying that general deterrence impacts separately for each discrete offence, the same cannot be said for personal deterrence. It followed that partial concurrence would not have resulted in a less severe effective sentence for the manslaughter. Further, the harm done to the victim would still have been recognised. It was submitted that partial concurrence would have seen Mr Lu adequately punished for each offence, protected the community by removing him from it for a substantial time, denounced his conduct and made him accountable for his actions.

58 Mr Lu also advanced an argument that the unnecessarily lengthy combined sentence which has resulted from the refusal of his Honour to partially accumulate, will not assist in promoting his rehabilitation. Reference was made to the statement of McHugh J in Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 at 307-308 that a sentencing judge must ensure the aggregation of sentences is a “just and appropriate measure of the total criminality involved”.

59 In R v MAK; R v MSK the Court (Spigelman CJ, Whealy and Howie JJ), after referring to this statement of principle in Postiglione, noted that the need to maintain an appropriate relationship between the totality of the criminality involved in a series of offences and the totality of the sentences to be imposed arose for at least two reasons. First, the severity of the sentence was not simply the product of a linear relationship. In this regard, the Court, at [16], adopted the comments of Malcolm CJ in R v Clinch (1994) 72 A Crim R 301 at 306, that:

“… the severity of a sentence increases at a greater rate than any increase in the length of the sentence. Thus, a sentence of five years is more than five times as severe as a sentence of one year. Similarly, while a sentence of seven years may be appropriate for one set of offences and a sentence of eight years may be appropriate for another set of offences, each looked at in isolation, where both sets were committed by the one offender a sentence of 15 years may be out of proportion to the degree of criminality involved because of the compounding effect on the severity of the total sentence of simply aggregating the two sets of sentences.

60 Secondly, an extremely long total sentence may be “crushing” to the offender, which in turn increases the severity of the sentence. It also “destroys such prospects as there may be of rehabilitation and reform”: see at [17].

61 The Court in MAK warned, at [18], that the sentencing court must take care in applying the totality principle. Questions of public confidence in the administration of justice meant that it was necessary to avoid any suggestion that the effect of the totality principle was to provide some kind of discount for multiple offending. Further, it must be apparent that when an offender who is already serving a sentence comes to be sentenced for additional offences, the impression must not be given that little or no penalty is imposed for the additional offences.

62 In this case, Mr Lu does not contend that the sentence should be substantially accumulated on the existing sentence. However, he does submit that some modest accumulation was required to avoid a crushing sentence and the risk of double counting. In advancing this submission, he acknowledged the flexibility which must be given to judges at first instance when imposing sentence: see Johnson per Gummow, Callinan and Hayne JJ at [26].

63 The Crown submits that no appellable error has been shown in his Honour’s failure to partially accumulate the sentence on the drug offence. It submitted that there was effectively an accumulation when regard was had to the total sentence. This submission, however, does not address the issue raised by Mr Lu, who seeks partial accumulation on the non-parole period.

64 Focussing on that question, the Crown particularly emphasises the seriousness of Mr Lu’s conduct in committing the offence whilst on bail: see R v WHS (NSWCCA, Hunt CJ, Smart and McInerney JJ, 27 March 1995, unreported); R v Richards [1981] 2 NSWLR 464 at 465 per Street CJ. See also R v Tran [1999] NSWCCA 109, where Wood CJ at CL, with whom Spigelman CJ, Newman, Hulme and Simpson JJ agreed, said, at [15]:

“Betrayal of the opportunity for rehabilitation offered through probation or parole, or of provisional release on bail, is regarded very seriously and should here have been weighed against the respondent.”

65 The Crown also points out that in this case, the offence was further aggravated by the fact that it was committed at a time when Mr Lu was serving a suspended sentence imposed by Barrett J in the Drug Court (for an offence different from that imposed by Maguire DCJ for the drug offence).

66 This aspect of the appeal has not been easy to resolve. The matters advanced by Mr Lu invoke important principles which he is entitled to have taken into account in the exercise of the sentencing discretion. Likewise, the principle, repeatedly stated by this Court in cases such as WHS, Richards and Tran is of fundamental importance to the protection of the community. The question for consideration by this Court is where the proper balance lies. Mr Lu has, for a period spanning 15 years, shown a disregard of the law. His prior offending has not been trivial. It has included an offence of assault, drug related offences and break enter and steal offences. His conduct in this case demonstrated that he was prepared to carry out a personal act of revenge intending to occasion actual bodily harm to the deceased. Mr Lu has had several periods of imprisonment, none of which has deterred his criminal activity. He has committed offences whilst on bail and whilst on a suspended sentence. In all of the circumstances, the principles stated in WHS, Richards and Tran have particular application in this case. There was no error in the trial judge, after a considered decision, refusing to partially accumulate the sentence he imposed in this matter on the sentence imposed in respect of the drug offence.

67 In the circumstances, we would grant leave to appeal against sentence, but dismiss the appeal.

68 Accordingly, the orders of the Court are:

1. Leave to appeal against sentence granted;

2. Appeal dismissed.

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03/12/2008 - Correct section entered - Paragraph(s) [54]