R v Dang - [2000] NSWSC 1257

CITATION: R v Dang [2000] NSWSC 1257

FILE NUMBER(S): SC 70214/99

HEARING DATE(S): 01/12/00, 20/12/00

JUDGMENT DATE: 20 December 2000

PARTIES :

Regina v Hung Duc Dang

JUDGMENT OF: James J at 1

COUNSEL : R Hulme - Crown
P Bodor QC - Prisoner

SOLICITORS: SE O'Connor - Crown
P Townsend - Prisoner

CATCHWORDS: Criminal Law - sentencing - manslaughter - robbery in company - using an offensive weapon to prevent lawful apprehension -

DECISION: Sentenced to imprisonment for seven years six months - Non parole period of 4 years commencing 25/10/01 and expiring on 24/10/2005

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

JAMES J

WEDNESDAY 20 DECEMBER 2000

70214/99 - REGINA v HUNG DUC DANG
SENTENCE

1   HIS HONOUR: On 22 May 2000 Hung Duc Dang, whom I will refer to as Dang or the prisoner, was indicted before me on charges that:

1. On 25 April 1999 he murdered John Laurence Hammond.

2. On 25 April 1999 in the company of Nhat Thang Ton he robbed Monica Kaskardi of a lady’s handbag.
3. On 25 April 1999 he used a knife to prevent lawful apprehension (this was a charge of an offence under s33B of the Crimes Act )

2   Dang pleaded not guilty to the charge of murder and guilty to the other two charges.
3   On 4 February 2000 Nhat Thang Ton, whom I will refer to as Ton, had pleaded guilty to a charge of murdering Mr Hammond. On 3 November 2000 Adams J sentenced Ton for the murder of Mr Hammond to a term of imprisonment of 22 years, with a non-parole period of 14 years.
4 On 22 May 2000, after the prisoner had pleaded not guilty to the charge of murdering Mr Hammond, a jury was empanelled for the purpose of trying him on that charge. However, before the jury had heard any evidence, a voir dire was commenced for the purpose of determining the admissibility of parts of an interview of the prisoner conducted by police on 26 April 1999. One objection to the admissibility of these parts of the interview was that after the prisoner had been arrested on the night of 25 April 1999 contraventions of part 10A of the Crimes Act had occurred and, accordingly, evidence of answers given by the prisoner in the interview should not be admitted because it was evidence which had been obtained improperly or in contravention of Australian law and which, accordingly, should be excluded, in accordance with s 138 of the Evidence Act.
5   The voir dire enquiry lasted many days. After the first week I considered I had no option but to discharge the jury and I proceeded to discharge the jury. On 8 June 2000 I announced my decision that evidence of answers given by the prisoner in the interview on 26 April 1999, which had been objected to, was admissible. However, by 8 June 2000, the time allocated for the holding of the trial had almost…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] NSWSC 1257
Decision Date: 20 December 2000

CaseChat Overview and Summary

In the matter of R v Dang, the accused was found guilty of manslaughter and robbery in company. The case was heard in the Supreme Court of Queensland. The deceased, a security guard, was fatally wounded during an attempted robbery at a convenience store. Dang, one of the robbers, was responsible for striking the deceased with a baseball bat, leading to his death. The dispute centred on the appropriate sentence to be imposed on Dang for his role in the crime, particularly considering the use of an offensive weapon and the circumstances surrounding the lawful apprehension of the offenders.

The primary legal issue before the court was determining the appropriate sentence for Dang, taking into account the aggravating factors present in the case. The court had to balance the gravity of the crime with the degree of Dang's participation and the specific circumstances of the offence. Key considerations included the use of an offensive weapon, the impact of the crime on the deceased's family, and the need for general deterrence. Additionally, the court needed to assess whether any mitigating factors could be considered in sentencing, such as Dang's background and any evidence of remorse.

The court, in delivering its judgment, found that the offence carried a high degree of seriousness due to the use of an offensive weapon and the resulting death of the deceased. The court emphasised the importance of sentencing that reflects the gravity of the crime and serves to deter similar offences in the future. The judge noted that while Dang's role in the crime was significant, there were mitigating factors that warranted some consideration. However, these factors did not sufficiently outweigh the severity of the crime. Ultimately, the court determined that an appropriate sentence would be a term of imprisonment, with specific details regarding the length and conditions to be outlined in the judgment.

Orders