R-v-Nguyen

[1999] NSWSC 592

CITATION:	R-v-Nguyen [1999] NSWSC 592 revised - 31/08/99
CURRENT JURISDICTION:	Criminal
FILE NUMBER(S):	070015/95
HEARING DATE(S):	31/05/99.
JUDGMENT DATE:	4 June 1999
PARTIES :	Regina -v- Minh Hieu Nguyen
JUDGMENT OF:	McInerney J at 1

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	070015/95
LOWER COURT JUDICIAL OFFICER:	A/J McInerney

COUNSEL :	For the Crown: Ms. Wendy Robinson, QC For the Prisoner: Mr. Peter Zahra For the Prisoner:
SOLICITORS:	For the Crown: For the Prisoner:
CATCHWORDS:
ACTS CITED:	S115 & 116 of the Evidence Act
CASES CITED:	Domican -v- The Queen.
DECISION:	Sentence imposed is a term of four years to date from 31.05.99. It is to consist of a minimum term of three years to commence 31.05.99 and to conclude on 30.05.2002 at which time he may be admitted to parole. I have imposed an additional term of one year to date from 31.05.2002 and I note that I have in this sentence had regard to the fact of pre-sentence custody of two years.

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

McINERNEY AJ

FRIDAY 4 JUNE 1999

070015/95 - REGINA v MINH HIEU NGUYEN

SENTENCE

1    HIS HONOUR: In this matter the prisoner was indicted before me on Monday last for the murder of one Cuong Van Dao (hereafter referred to by me as the deceased) who died on 28 June 1994 at Bankstown. When indicted he pleaded not guilty to murder but guilty to manslaughter. The Crown accepted that plea in full satisfaction of the indictment and the learned Crown Prosecutor indicated the basis of the acceptance of the plea was on the basis of an unlawful and dangerous act. The act relied upon was a hitting of the deceased by the prisoner with a baseball bat. The deceased, it appears, died some days later from complications received as a result of a series of assaults on him by the prisoner and other persons in a fight that took place in the precincts of the Bankstown RSL Club after a concert which a number of Vietnamese attended. This was on 28 May 1994. The deceased was conveyed to hospital but died on 28 June 1994 from pneumonia which was caused by the injuries received in the assaults. Dr Ellis, the pathologist, has stated in his report that the antecedent cause of death was a severe head injury. The basis of the Crown case against the prisoner was that he with others was engaged in a common criminal enterprise to assault and attack the deceased.

2    Historically the prisoner and the Co-accused were tried before Finnane AJ and a jury between 23 June 1997 and 31 July 1997 and he was convicted by the jury of murder but the jury could not agree in respect to the Co-accused, Tuan Le. The prisoner appealed against his conviction and that was upheld by the Court of Appeal on 1 October 1998 and a new trial was ordered. His Co-accused, apparently, was later re-tried and found not guilty.

3    The prisoner was arrested in respect of this matter on 15 June 1994 and was bail refused until 3 March 1995 when he was granted conditional bail. He was again bail refused on 10 July 1997 to 16 October 1998 when he was again given conditional bail and he has been on bail since that time. Consequently there is a period of custody of one year and eleven months and twenty-six days that has to be considered in any sentence that I impose.

4    The facts in this case are very much in dispute and consequently it is necessary for me to determine beyond reasonable doubt the facts on which I propose to sentence the prisoner and I should say it is by no means an easy task because of certain conflicting evidence.

5    There are, however, some undisputed facts. On the evening of 28 May 1994 it appears some hundreds of people, mostly of Vietnamese origin, attended a concert at the Bankstown RSL Club. The prisoner who gave evidence before me on this plea described this as a "special night" and he had bought a ticket some time earlier. The entertainment was provided by artists including some from overseas and I accept the evidence that this was a legitimate well-conducted evening until the series of events occurred.

6    The deceased, I should state, from the post-mortem photographs and from his weight, was a very small man weighing only 37 kilos. He attended with his de facto wife Lucy (known as Lucky) Ahovelo and his nieces Kim Linh Le and Kim Lien Le together with a group of friends. The prisoner was present at some stage with his girlfriend and later, it appears, in the company of young people including his Co-accused. It appears during the concert when dancing was being undertaken someone from the group with which the prisoner was associated approached the young Kim Linh Le, then a fifteen-year old girl, and asked her to dance, which she did. Although, when spoken to, she initially denied to police that she did in fact dance. The deceased, on seeing this occurring, told the young man not to dance with her again and this caused some annoyance on the part of the young Vietnamese man.

7    It appears as the concert was ending the deceased suddenly was struck by a chair by one of the guests at the function which caused him to fall down and bleed. The evidence of the identity of that person is very much in dispute. Shortly after the deceased left the concert, having been assisted by other friends to the carpark, where he was attacked by a group of young men who apparently kicked and punched him and the prisoner who struck him on the head with a baseball bat. Things got out of control completely, it would appear, because shots were fired and another person was killed and one was wounded. The Crown concedes there is no association of the prisoner with those incidents. A short time later a Suzuki Vitara motor vehicle driven by the prisoner was seen speeding off by an off-duty officer on the Hume Highway, Yagoona and, apparently, went through a red light.

8    When first spoken to by the police on the morning of 30 May and thereafter on other occasions, the prisoner denied he was present when the shooting occurred and when the deceased was assaulted. He was taken to the police station where he was questioned and he continued to deny any complicity in the offence. The investigation continued as did his denials.

9    Eventually on 15 June 1994 the police attended at the home of the parents of the prisoner where he was, in fact, residing at the time, with a search warrant. After searching the premises he was then taken to the Bass Hill police station. He was asked by police what he did at the concert and amongst other things he said he had one schooner of Fosters. He conceded that he had a dark jacket with patches. He was then questioned extensively about his movements and he continued to deny being present when the incident occurred continually asserting that he had left before it happened. He was then told by the police that there were traces of blood on the driver's side door of the Suzuki vehicle and then he said that the man who went to the hospital hit him. He said, "I walking past and he hit me, I went to hit him back but there were too many people."

10    He then said that he went to the carpark and he "was looking for the man who hit me, I saw people fighting, I saw them kicking each other". He then said he went looking for something to hit him with and "I found a baseball bat on grass in the street". He said that he grabbed it and he went back and hit him, that is the deceased. He said, "I hit him once, I kept trying to hit him but I miss, someone pull me off". He said he then went to the car and drove off with one of his friends and that he threw the bat away when he was asked what he did with the bat.

11    He was further questioned about this and then he conceded that he had obtained it from his car and didn't throw it away but, in fact, burned it. He was then subjected to a record of interview in which he made certain admissions. It is those admissions that are pressed on me by Mr Zahra, his counsel, as a version I should accept.

12    In the light of his denial of any involvement in the matter originally and his deception to the police, one cannot approach his evidence with any great degree of confidence. I sought from the learned Crown Prosecutor what the Crown relied upon in respect of this charge and she informed me that the major Crown witness was the wife of the deceased, Lucy Ahovelo. She has provided the police with a number of statements. I have not had the advantage of observing her under examination-in-chief or cross-examination and consequently it is difficult for me to determine the issue as to whether she is to be accepted on the question on the finding of facts or whether I should accept the version of the prisoner or accept a version that I determine as the facts. I must emphasise, of course, that it is necessary for me in circumstances such as this to determine the facts upon which I sentence the prisoner beyond reasonable doubt.

13    Lucy, as I shall refer to her, gave evidence of the deceased telling the young Vietnamese man not to dance with his niece and that seems to be a common fact. He said that his niece was not to dance as she was only fifteen years of age.

14    Apparently over the next hour after that minor incident she said they continued to enjoy themselves. In her first statement she then said she saw the Vietnamese boy, as I understand it, the one that her husband had spoken to earlier, who was not the prisoner, pick up a chair, lift it above his shoulders and hit the deceased on the right side of his forehead, knocking the deceased down. She said some of his friends, that is the deceased's friends, started to fight with the boy and three other men who were sitting with the boy stood up and entered the fray. She described the first man as being Vietnamese, wearing a black and white jacket with two patches on each sleeve made of imitation leather which, it appears, was the jacket being worn by the prisoner on that night.

15    She alleges, as I understand her evidence, that it was that person who picked up a beer glass with a handle on it and hit a man named Hai, a friend of the deceased, on the head with that glass. She said they all started to fight and the bouncers came and ordered everyone out. Shortly after, she said, they then decided to go home and they apparently left with a number of other Vietnamese friends, leaving the auditorium and entering the carpark where she saw three of the Vietnamese boys that had been involved in the fight inside including the person who had hit the deceased with the chair and she again identified that person as wearing a jacket with black and white patches and the one who had used the beer bottle which she earlier described as a beer glass.

16    She noticed that that individual was holding a baseball bat in his right hand with some of it hidden up his sleeve. She also saw some other individuals nearby. She alleges then that the boy who was holding the bat said to the deceased "Fuck you, I'm going to kill you".

17    He then held the baseball bat with two hands and hit the deceased in the back of the neck with the bat. She then jumped in and punched into them and swore at them and told them to leave the deceased alone. In the general melee it appears that a further incident occurred, which I have referred to earlier, where other persons were shot and wounded and she said she was threatened. She then observed the deceased was on the ground and there were seven Vietnamese standing over him and taking it in turns to kick him and the person she described as wearing the jacket that the prisoner says he was wearing picked up the baseball bat, held it in his right hand and hit the deceased twice on the right side of his forehead whilst the deceased was lying on the ground. She said the boys then ran away. Her husband was unconscious and bleeding from the head. She said she believed she would be able to recognise these persons.

18    In relation to the statement in respect to the identification of the prisoner, he was identified, it appears, by the clothing he was wearing but in relation to the initial statement that she gave to the police it was clear, as I understand the statement, that the identification of the person by the clothing he was wearing would lead to the conclusion from her statement at that time that it was not the prisoner who hit the deceased with the chair but she apparently changed that later.

19    A record of interview was then conducted with Lucy by the police when she alleged that the man in the black and white jacket with patches picked up the chair and hit him over the head (p.4 of that record) and that, as I understand the evidence, was contrary to the material in her first statement. She also alleged that the person said that he was going to kill her, contrary also to what she said earlier, alleging this occurred because she had thrown a punch at him.

20    When they went outside she said the man in the black and white jacket picked up the baseball bat with both hands and smacked it over the deceased's head on the right side of the skull. She was then shown some computerised images, numbered FA 00153 question 198, and she said she recognised the scars on the face. She agreed it was the first image she did the previous night and first of all she said he was the man with the bat. Then she apparently became unsure of that and she answered question 206 that she was trying to think if that person in the image had the gun or the bat. She was then shown another image, number FA 00154, and she then said he was the one with the bat stating that she was quite positive and then she became quite positive that FA 00153 was the man with the gun.

21    She made a further statement on 14 June 1994, which is document 7 in the material tendered before me by the learned Crown Prosecutor, and she referred to her two other statements. She referred to para 7 of that statement and said that what was contained therein was incorrect, that is the first statement she made, as it was the person with the jacket with the patches on the sleeves who hit the deceased over the head with the chair. She also corrected her description of the person holding the gun which she said had a cream jacket. She said this was not correct as the person with the gun was wearing a dark jacket, not a cream one. Then she described her mistakes as resulting from her suffering from shock as to what happened to her de facto and his friends saying that everything was happening too fast.

22    The young niece Kim Linh Le provided a number of statements to the police. She confirmed in her statement of 29 May that a man she described as Cuong asked her for a dance and she said no. As I have said earlier, she said she didn't have a dance with him but it turned out she in fact did. She said when the young man Cuong approached and asked her to dance the deceased told him to leave her alone. She saw a fight break out. She didn't see how it started and she didn't see how her uncle was injured. She said outside later she saw a man with a baseball bat. She was able to describe him but the rest of the statement did not, in my view, assist in the identification of individuals responsible for these acts. I think I should say she was unable to describe him adequately.

23    In her second statement of 9 June 1994 she was then shown certain people in a video. Apparently some video had been taken of the evening in regard to this matter which the police obtained and she looked at the video and really could not identify anyone with certainty. There was a line-up and I think again she was unable to identify anyone and I do not think her evidence carried the matter any further.

24    Tendered by consent were two further statements which became Ex 3. The first one from Branko Milosevic, who was a casual bar attendant who from an area in the building saw a commotion in the carpark and together with another friend, John Seeto, walked to the top of the alleyway to the entrance to the carpark where he saw a blonde woman involved in a verbal argument. I take it this was Lucy, although she was not specifically identified. He said she appeared to be with five people and the man she was arguing with was with about eight people. He said the argument moved towards Kitchener Parade which was on the boundary of the carpark. The blonde woman was near the gate at the carpark. She then went running back to the security staff standing in the alleyway and he said the group was just fighting and a man was knocked to the ground and a man moved with a baseball bat and looked as though he had come from Kitchener Parade and was swinging it at all and sundry and he hit someone.

25    A further statement was obtained from Do Lam. He said that when he and his girlfriend left the club having attended the concert she saw a Vietnamese man and his blonde girlfriend pushing and shoving three Vietnamese men. The blonde person swore at them and a fight began. He then saw a man running from Kitchener Parade and saw a man hit a man causing the man to fall to the ground and he was kicked whilst there by the persons around him. Then he saw another different man running back with a baseball bat hitting him on the head. It appears by his observations that there were two persons carrying a bat.

26    I have spent some time evaluating that evidence and, as one would expect in such circumstances, the evidence was confused and to some extent contradictory. As I said, the prisoner gave evidence before me but in the light of his deception to the police in attempting to disguise his being in attendance at the time of that incident, leads me to treat his evidence with considerable reserve. Putting his case at its highest he said a fight broke out of which he had no part. As he walked past the guy accidentally hit him (transcript p 4). The guy is identified as the deceased. He said that by that time he had had a few drinks at the party and when he was hit he got angry and tried to hit him back. He wasn't sure of how much he had had to drink, about a few glasses, he said. He said he had drunk a few glasses before he went to the concert and he said in his record of interview that he had had a couple of Fosters but he could not remember how many and he was drinking schooners. I note that in his statement to the police after the incident he said he had only had one schooner of Fosters that night.

27    He was interviewed by a psychologist, Mr Taylor, and he told him he had only had three or four glasses of beer over a number of hours and that led Mr Taylor to conclude that there was no evidence he was significantly intoxicated. It is impossible on the material before me to determine with any degree of accuracy the amount of alcohol this man consumed that night. I am satisfied, however, that he was not drunk as he would have me believe in his evidence as justifying what he did. I am satisfied that he may well have been affected by liquor to some extent but I do not accept he was significantly intoxicated.

28    He told Mr Taylor the man hit him on his head with a fist. He said he felt shocked and hurt and denied any knowledge of the fight that took place with the deceased in the auditorium and the reason for it and he also denied hitting the deceased with the chair. I should add in the circumstances I am not satisfied on the evidence before me that he was the person responsible for hitting the deceased on the head with the chair, although there is evidence to suggest he was, which I will refer to. He said that when he left the club he went and obtained the baseball bat which was conveniently in the back of his motor vehicle, went back, saw them fighting and then he ran, he said he ran into the deceased and hit him. He was holding the bat two-handed and hitting him but denied raising it above his head, alleging when he swung it it was level with his chest. At the time he said when he struck the blow the deceased was sitting on the ground and he believed he had hit him somewhere on the head and he tried to hit him again but he missed. When he was asked how he was feeling at this time he said, "That time I get drunk, I don't know I am doing this". He agreed that he was very mad. As I have said, I do not accept for a moment that at the time he was drunk and he did not know what he was doing. This was, I believe, a very deliberate act and a determined act on his part.

29    When first spoken to by the police he did not inform them that he had this bat in the car for his own safety, rather, he said he went looking for a weapon and conveniently found it on the grass and disposed of it as he was driving home. That, of course, all turned out to be untruthful. When I sought from the Crown if the Crown disputed that he had got hit on the way out, Madam Crown said that she was not in a position to dispute this version.

30    In his evidence here he was asked about his conceding that he drove off fast. Mr Zahra submitted to me that his answer that he told the police he drove off fast goes to show that he was being truthful in his answers because at the time of the record of interview it was submitted he did not know he had been observed driving fast by an off-duty police officer. I have problems in accepting that submission because he certainly knew before his record of interview was taken that his driving had been observed when he had gone through a red light. He would have inferred from that that he had been driving fast as he apparently was.

31    When he was asked by Mr Zahra, "What do you now wish to tell the court about why you did this?" his answer was, "At the time I was drunk and I didn't know anything about what I was doing, I was struck so I just wanted to get back and hit the guy back". As I have made it clear, I reject that explanation.

32    He agreed in cross-examination by the learned Crown that that night he was wearing a very striking battle jacket with various patches on it and he agreed it met the description Lucy had given of the individual she identified. He said he had left with Tuan Le and he did not see the deceased hit over the head with the chair. He said when he was struck the person was arguing and fighting with other people. He agreed here that it was an accidental punch but at the time he said he did not know if it was accidental or intentional. He denied also that he hit anyone with a beer glass and he alleged he did not know what they were fighting about.

33    The evidence presented in this case is confusing. If I were to accept the evidence of Lucy then the prisoner's part of the deceased's death takes on a more sinister overtone than the prisoner alleges. Indeed, if one accepts her evidence he was the initial aggressor, hitting the deceased over the head with the chair, but I have taken some time to refer to some of the unsatisfactory evidence of Lucy in her descriptions of the various individuals who assaulted her husband that night.

34    This was a very confused situation. There were a number of individuals involved in various activities. It was night time, everything happened very quickly and even Lucy conceded she was shocked and hers is the only identification that can be relied upon other than the concession made by the prisoner. She was mistaken, apparently, in some aspects of her identification and she gave an explanation for that and I can understand it.

35    This is a case, should it have gone to the jury, where more extensive and careful directions would have to be given on the question of identification. I bear those matters in mind and I have regard, particularly, to ss 115 and 116 of the Evidence Act and cases such as Domican v The Queen and other authorities that are well known and established. The authorities require a very careful exposition of the problems of identification and I have regard, amongst other matters, to the fact that she was attempting to recognise strangers, all young men of Vietnamese appearance. It is not clear, as she was described as a blonde, that she herself was of Vietnamese background. It was night time and I have no evidence as to the degree of lighting in the carpark. I have not seen her and I have not heard her cross-examined. I point out, of course, there are discrepancies between the statements of the witnesses. Despite misgivings I am driven to conclude beyond reasonable doubt that I should accept with modifications the version of facts given by the prisoner. I do not accept, as I have said earlier, that he was drunk but I accept that he consumed some alcohol which may have affected him to some extent and caused him to lose his temper. Furthermore and not without some reservation, I accept that something happened to him to lose his cool and I accept for the purposes of sentence that he was struck accidentally as the fight was taking place. For some reason not satisfactorily explained he apparently lost his temper and, I would emphasise, without any real justification in the circumstances even if he was hit in the manner in which he said he was.

36    I find, however, without justification he determined to hit the deceased with the baseball bat which he had conveniently in the back seat of his vehicle. This necessitated him leaving the auditorium, crossing the RSL carpark to where his car was parked on the other side of Kitchener Parade and obtaining from that vehicle the baseball bat. He did not, in my view, give a satisfactory explanation of why he had it in his car. He said it was for his safety. In using it as he did on this night it could hardly be said he used it for his safety. He, having obtained the bat, then deliberately returned to the scene when the unfortunate deceased, I find as a fact, was on his knees having been seriously assaulted by the other individuals and then, swinging the baseball bat, hit him hard over the head. Whether or not he struck the deceased more than once as deposed to by Lucy, it was agreed by the Crown and Mr Zahra on behalf of the prisoner, that the pathologist who conducted the post-mortem was not able to determine how many blows were struck to the head of the deceased and whether the injuries received were all the result of being struck by the baseball bat or could have resulted from being hit by fists or boots. Thus there is not sufficient credible evidence as to whether he struck the deceased more than once but even on his own version he attempted to do so, whether or not he raised the baseball bat above his head or not I am satisfied that the blow he struck was one with considerable force with the obvious intention of inflicting violence on the deceased.

37    The Crown, having accepted the plea of manslaughter, did not submit he intended to kill or inflict grievous bodily harm at the time. In any event, this is not a case when a person is hit in the heat of the moment and then immediately retaliates, which is often the case in circumstances such as this. Rather, it was in circumstances of a cold-blooded and deliberate act, perpetrated on a man who was already serious injured, on his knees and defenceless and I have no doubt that it in some way contributed to his death. He also, by his flight from the scene, evidences, in my view, his own knowledge of the unlawful act which he had perpetrated and sought to escape detection and he burnt the baseball bat so it could not be found.

38    In pleading guilty, of course, he has conceded that the act of hitting the deceased was unlawful and exposed the deceased to a significant risk of injury. In my view there was absolutely no justification for this activity and it has been in some sense responsible, together with the other assaults, for a death and calls for, in my view, severe punishment for such a cowardly attack on a defenceless man and, as I have said, a very small defenceless man.

39    Turning to the subjective facts: it is conceded by the Crown that he was a man of good character, having no criminal convictions and I must have regard to that good character in any sentence I wish to impose. It is a man to see a man hitherto of good character and background standing for sentence for this offence. I should say there is nothing in his background to suggest that he is given to violent acts and I have regard to the fact that this act must be considered as an aberration and out of character. Whilst it is a tragedy for this prisoner, one must always bear in mind that it was a far greater tragedy for the deceased who is now dead.

40    It appears that at the time of this incident he had a girlfriend and he was living in a residence with his parents and was working. It was said that he was a dutiful son and, indeed, he is at present living with his parents with his de facto wife who now has his child. He appears to have had a reasonable employment background and is working at the present time for his brother in a bakery at Dee Why. There is no evidence that would suggest that prior to or since this incident that he mixes with any gangs or bad company and I accept he is a moderate social drinker.

41    His father gave evidence. He said he was one of four sons who came from Vietnam. The prisoner, apparently, was born in Vietnam and his father said he was the most gentle of the members of the family. He said he appears to have been depressed and little wonder; it would be surprising if someone ... not to be depressed. His father is of the view that he is contrite and regrets what he has done. He believes it all happened because he was drunk and he cannot do anything to help the family. I am not satisfied that the prisoner is contrite in the sense that he regrets having killed or having contributed to the death of the deceased as he would have me believe. He was asked about how he felt about what he had done and he said, "I regret it very much and this has been dragging on and hanging over my head for a long time and I can't do anything to help my family at the moment". It is to be noted that in that answer there is no regret as to the death of the deceased. Mr Zahra, no doubt perceiving the gap in that answer, said this, "How do you feel about the person that has died?" and the prisoner answered, "I regret it very much that he died and I'm so sorry that he died, I did not know him at all." He then went on to say that he "felt sorry and sympathy for his wife and children, just as I would be going to gaol and leaving my wife and children".

42    The regret that he has, in my view, results in the main from the predicament in which he finds himself.

43    I also have to take into account his plea of guilty. Everyone who pleads guilty is entitled to have that matter considered in respect to the penalty to be imposed. Pleas of guilty are to be encouraged and judges are required to give due allowance for such pleas. It is important that persons charged with criminal offences plead to those offences and be given an appropriate allowance for that. Having said that, however, the amount of allowance must depend on the particular circumstances in each case. In this case the prisoner admittedly was charged with murder initially and it was not until a few days before his retrial was due to commence that he was offered a plea of manslaughter. It is said, to his credit, that he immediately accepted the offer of the plea.

44    In assessing that matter one must bear in mind that he had in fact been convicted of murder and in his mind would be a possibility of that occurring again. In that respect the amount of allowance for the plea, in my view, is somewhat marginal but I do make allowance in that regard. I do note further that the trial in which he had been charged earlier took a number of weeks and he is entitled to discount because of the fact that he saved the Crown the expense of a long and costly trial and I make allowance for that.

45    I also bear in mind that he has had this matter hanging over his head for a number of years.

46    It has been argued before me by Mr Zahra that I should find special circumstances because this is the prisoner's first prison sentence. That fact, of course, can amount to a special circumstance. In this case, of course, he has spent almost two years in gaol so he is not going there cold, so to speak, as would a person being convicted for the first time. I have considered that question. Having regard to the background of the prisoner I do not believe there are any other bases for the application of special circumstances. In my view, having regard to the sentence I propose to impose on him as in relation to the additional term he will have more than adequate time to readjust into the community. He has his family support.

47    Concluding, I should say I do not find in the circumstances special circumstances.

48    The question of sentencing for manslaughter is extremely difficult. There is a wide divergence of facts that constitute the offence of manslaughter. Whatever may be said about it, nevertheless it is one of the most serious crimes in the criminal calendar and the legislation has provided a maximum sentence of twenty-five years penal servitude.

49    I have had regard to statistics supplied by the Judicial Commission in respect to manslaughter by an unlawful and dangerous act. I observed that in the sampling of 148 cases 84 per cent of those cases result in a prison sentence. Of a sample of 124 cases the sentences range from eighteen months to twenty years plus. In respect to minimum terms, 69 per cent range from three years to eight years. Whilst I have regard to them they give some guidance but in the main little assistance because each case must be determined on its own facts.

50    The prisoner took part in what can be best described as a gang attack on a defenceless man in a deliberate fashion and such conduct will not be tolerated by the courts. It seems to be an offence that is becoming quite common and persons who indulge in such activity must realise that very severe punishment will follow. The question of public deterrence must loom large in this case.

51    The total sentence for this offence, in my view, bearing in mind all the circumstances including his strong subjective facts, lead me to sentence you to penal servitude for six years. I note the prisoner has, in fact, spent two years in prison and I make allowance for that fact. The sentence I propose is a term of four years to date from 31 May 1999. It is to consist of a minimum term of three years to commence on 31 May 1999 and to conclude on 30 May 2002 at which time he may be admitted to parole. I have imposed an additional term of one year to date from 31 May 2002 and I note that I have in this sentence had regard to the fact of pre-sentence custody of two years.

Last Modified: 06/30/2000