R v Lai

Case [2015] VSC 346 31 July 2015

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2014 0093

Between:

THE QUEEN
and
NELSON LAI	Accused

---

JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATES OF HEARING:	13-17, 20-24 & 27 April and 1, 4-8 & 11-13 May 2015 (Trial); and 18 June 2015 (Plea)
DATE OF SENTENCE:	31 July 2015
CASE MAY BE CITED AS:	R v Lai
MEDIUM NEUTRAL CITATION:	[2015] VSC 346

---

CRIMINAL LAW – Sentence following trial – Accused found not guilty of murder but guilty of manslaughter – Accused aged 34 accidentally shot girlfriend aged 22 in head with revolver – Accused believed gun was unloaded – Whether accused deliberately pointed gun at deceased’s head or was not looking where gun pointed when pulled trigger three or four times – Unable to exclude reasonable possibility of truth of accused’s account – Serious instance of manslaughter by criminal negligence – Accused twice offered to plead guilty to manslaughter on the basis on which convicted but did not plead guilty before jury – Accused all but admitted negligent manslaughter at trial – Remorse – Reasonable prospects of rehabilitation – Such prospects limited by history of drug use, appalling behaviour towards deceased and prior convictions – Sentencing purposes of general deterrence, specific deterrence, just punishment, denunciation, protection of the community and rehabilitation – Sentence of nine years and five months’ imprisonment with a non-parole period of six years and eleven months – Sentence and non-parole period reduced by one month to account for lost pre-sentence detention resulting from service of a one-month sentence that would have been directed to be served concurrently if imposed after the present sentence.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A. Grant	Office of Public Prosecutions
For the Accused	Mr P. Doyle	Revill & Papa Lawyers

HIS HONOUR:

Overview

Shortly before 9:06 a.m. on 11 October 2013, Nelson Lai accidentally shot his girlfriend Rekiah O’Donnell in the right temple with a revolver at close range. The two of them were in Mr Lai’s small bedroom in his parents’ home in Sunshine North. Mr Lai’s father, who had been asleep in the master bedroom, and his mother, who was in the back yard just outside Mr Lai’s window, both rushed to their son’s bedroom. Ms O’Donnell was lying between the bed and the window, with her head being cradled by Mr Lai. She was bleeding profusely from the gunshot wound to her temple. When asked by his father what happened, Mr Lai said he thought the gun was unloaded.

Mr Lai immediately called Triple-0. He told the operator that an ambulance was required quickly; that he had accidentally shot his girlfriend in the head; that she was still breathing but was bleeding; and that he did not know there was anything in the gun. He tried to staunch the bleeding and then performed CPR (under the direction of the Triple-0 operator) for half an hour before paramedics came into the room. It is apparent from the…

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.

Continue reading R v Lai

Details

AGLC: R v Lai [2015] VSC 346
Case: [2015] VSC 346
Decision Date: 31 July 2015

CaseChat Overview and Summary

Lai was charged with the murder of his girlfriend, but the jury acquitted him of murder and found him guilty of manslaughter. The case came before the court for sentencing. The primary issue was to determine an appropriate sentence for manslaughter by criminal negligence, considering the factors such as the accused's remorse, prospects of rehabilitation, and the need for deterrence and denunciation.

The court found that while the circumstances of the death were tragic and serious, there remained a reasonable possibility that the accused did not deliberately aim the gun at the deceased, even though the accused's account was not fully accepted. Lai had twice offered to plead guilty to manslaughter but did not do so before the jury. Although he all but admitted negligent manslaughter at trial, his history of drug use, appalling treatment of the deceased, and prior convictions limited his prospects for rehabilitation. The court balanced the sentencing purposes of general deterrence, specific deterrence, denunciation, just punishment, and protection of the community with the possibility of rehabilitation.

After considering all these factors, the court imposed a sentence of nine years and five months’ imprisonment, with a non-parole period of six years and eleven months. The sentence and non-parole period were reduced by one month to account for the pre-sentence detention Lai had already served. This decision reflects the court’s approach to ensuring that the sentence was commensurate with the seriousness of the offence while also considering the potential for rehabilitation.

Orders