R v Sin

[2008] NSWSC 621

CITATION:	R v SIN [2008] NSWSC 621
HEARING DATE(S):	27 May 2008
JUDGMENT DATE :	20 June 2008
JURISDICTION:	Criminal
JUDGMENT OF:	McClellan CJatCL
DECISION:	Offender convicted of the manslaughter of Samir Chouman. The offender is sentenced to a term of imprisonment with a non-parole period of 7 years and a balance of term of 3 1/2 years. Allowing for the period already spent in custody in relation to this offence 21 March 2007 is the date upon which the sentence commences. The first date the offender will be eligible for parole is 20 March 2014.
CATCHWORDS:	CRIMINAL LAW - sentence - manslaughter by unlawful and dangerous act - knife attack following brawl between two groups - multiple wounds inflicted by significant weapon - plea of guilty - prospects of rehabilitation - finding of special circumstances
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Principal judgment
CASES CITED:	R v Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377
PARTIES:	Sophorn Sin (Offender) The Crown
FILE NUMBER(S):	SC 2007/2167
COUNSEL:	W L Robinson QC (Crown) M Ierace SC (Offender)
SOLICITORS:	Director of Public Prosecutions (Crown) Kings Lawyers (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

McCLELLAN CJ at CL

FRIDAY, 20 JUNE 2008

2007/2167 R v SIN, Sophorn

SENTENCE

1 HIS HONOUR: The offender, Sophorn Sin, has pleaded guilty to the manslaughter of Samir Chouman on 4 August 2005. The maximum penalty for the offence is 25 years imprisonment.

2 At the time of his death, the deceased was living with his mother and nine siblings. He was 18 years of age.

3 On the day of his death, the deceased went with others to the Westfield Shopping Centre at Liverpool. They were generally of Lebanese origin. The evidence establishes that they went with the intention of fighting a group of young people of Asian origin. On the same day, a group of young people of generally Asian origin came to the shopping centre. That group did not, at least initially, include the offender.

4 When they had gathered, they effectively formed two separate groups. They were observed by Westfield security officers walking towards each other. In the immediate area of the entry doors to the shopping centre, the groups confronted each other. They exchanged words and agreed to go outside and fight. This happened and a brawl lasting about 2 minutes occurred.

5 After the initial fight the “Asian” group walked away and using a mobile telephone asked others to come and assist them in a renewed fight. The offender became involved when he was phoned by Kodo Welly and asked to assist. He responded and, armed with a knife, was driven to the scene by Viet Cu Truong. What followed is appropriately described as an aggressive and violent fight between the two groups. A number of young men and some women wrestled each other and punches were thrown. Various persons joined in and some ran from the brawl at different times. It would have been a frightening scene for passersby. It had tragic consequences for Samir Chouman.

6 During the fight Samir Chouman was repeatedly struck by several different members of the “Asian” group. As he was being punched, some of his assailants were trying to restrain him from running away. One of the persons punching Samir Chouman was the offender. Presumably appreciating that he was facing unacceptable odds, Samir Chouman continued to try and leave the fight. He freed himself from his assailants and ran along the mall. The offender ran along beside him and slashed at him with a cheese knife which had a heart shaped blade. The offender admits that he slashed the deceased twice and accepts that he may have caused a third cut. As they were running the offender lost control of the knife. Samir Chouman sought refuge in a shop in the mall known as “Artbox”. The knife was either still in his body or had lodged in his clothing. He was not pursued by the offender. Subsequently, two of the offender’s colleagues called for Samir Chouman to come out of the shop and fight. Both of them ran into the shop and Samir Chouman struck at the two men with a knife, probably the one left behind by the offender. Naroth Tran was cut on the hand. Shortly thereafter one of the other gang members ran to the shop and yelled for them to leave as the “coppers” were coming.

7 The offender left in the car in which he had arrived. In the car he told the others that he had stabbed one of those who they had been fighting. He said that he had left the knife behind and wanted to retrieve it but was dissuaded from doing so.

8 The shop assistants in Artbox assisted Samir Chouman. They pulled up his jumper revealing his significant wounds. Security guards from Westfield ran to the shop and assisted with first aid. An ambulance was called and arrived at the hospital at 7.56 pm. However, Samir Chouman died following surgery at 12.35 am on 5 August 2005.

9 A post-mortem was conducted which revealed that Samir Chouman died from multiple wounds which occasioned blood loss from organs including the right lung and liver. There were four wounds on the right side of his body and one on the left. The uppermost wound on the right chest was incised and of approximately 15 cm in length located 3 cm above the nipple. This wound penetrated the skin, subcutaneous fat and muscle of the chest wall (about 3 cm in thickness) The second chest wound was located 5.5 cm below the same nipple and was 7 cm in length. It also extended through the skin, subcutaneous fat and muscle of the chest wall and entered the pleural cavity and penetrated the right lower lobe of the lung and extended into the liver. The wound to the liver measured 4 cm wide and 4 cm in depth. The third wound was to the right abdomen and was located 12 cm above the pubis. It was also an incised wound which was 5.5 cm in length and extended through the skin, subcutaneous fat and muscle to a depth of 3.5 cm. The fourth wound was the only one on the left side of the trunk and was an incised wound 11 cm in length, which extended through the skin, subcutaneous fat and muscle for a depth of 3.5 cm and entered the peritoneal cavity.

10 There was another wound to the right upper arm of the deceased which had the appearance of a defensive wound. The origin of this wound is not clear. It is possible that it was made by the offender. The offender has denied responsibility for the wound to Samir Chouman’s left abdomen. I am satisfied beyond reasonable doubt that the offender made the cuts to the right side of Samir Chouman’s body and either one of them or together were the cause of his death.

11 The knife used by the offender was designed as a Parmesan cheese cutting knife. The overall length is approximately 19 cm with the blade measuring approximately 7.5 cm. The knife was found on the floor of the shop. It is a significant weapon and if sharpened, it penetrates the skin of a victim, it will inevitably occasion serious injury.

12 The precise circumstances of the attack by the offender on the deceased occasioned me some difficulty in understanding them until the offender gave evidence. The offender admitted that he used the knife with the intention of inflicting harm upon his victim. However, he did not hold it in a manner consistent with an intention to inflict a deep wound. Rather, he used it in a backhanded slashing motion with his index finger under the handle and closest to the blade. This is consistent with the pattern of wounds found at the post-mortem. It is apparent that the knife must have been particularly sharp and applied with some force to enable it to penetrate the deceased’s clothing and inflict relatively deep wounds. The offender says his purpose was to slow his victim so that he could inflict further physical blows upon him. I accept this evidence.

13 Although the offender did not initially accept responsibility for the killing, he now does so. Shortly before the trial was to commence he disclosed to his sister that he proposed to plead guilty because “it was playing on his mind and he just wanted to have a clear conscience and just do his time, and just, live, start living his life.” He gave evidence to similar effect.

14 The offender was born on 2 January 1985 in Cambodia and, accordingly, is now aged 23. When he was an infant his parents and elder sister left Cambodia and spent three years in a refugee camp in Thailand. They came to Australia in 1988 and spent six months in Villawood Detention Centre. The offender’s parents did not enjoy a happy relationship and separated when he was 12 years of age. Both households were relatively poor.

15 The offender left high school in 2001 whilst in Year 12. Since leaving school he has had a number of short-term labouring jobs but has been unable to establish permanent employment. Although when tested his intelligence appears, at least in non-verbal skills, to be above average, he did not apply himself to his studies during his latter years in high school and requires further education if he is ever to achieve employment commensurate with his natural abilities.

16 The offender has established a permanent relationship which has existed for at least three years. He has been living with his partner at her parent’s home. He is apparently welcome in that household. His relationship with his own parents and siblings has not been close although more recently he has increased contact with his sister.

17 The offender has been interviewed by Ms Robilliard, forensic psychologist, who has identified an agitated, depressive disposition. His early childhood experiences have contributed to his present behaviour. The offender is of short stature and apparently suffered as a consequence at school. During his formative years he exhibited conduct in which he tried to physically assert himself in order to impress his peers. This led him to engage in aggressive, physical conduct. It would seem that he has carried these aggressive tendencies into his behaviour as an adult. Unless he comes to a realisation that such conduct is entirely unacceptable in our community he will continue to experience adjustment difficulties.

18 The offender has been incarcerated in relation to this offence for significant periods. During his incarceration he has been placed in protective custody. This may continue for any period of imprisonment now imposed. However, he does not feel particularly disadvantaged by the fact that he is under protection and the evidence does not suggest that it is of particular relevance to his sentence. Ms Robilliard is of the opinion that the offender needs a period of psychotherapy and assistance with alcohol-related education and counselling. She believes the offender may have problems in establishing himself when released from custody, particularly if his current relationship does not continue, and will benefit from monitoring and support post-release.

19 The history of the offender’s prosecution is unusual. He was originally charged with murder and a committal hearing was held. However, as I understand the position, the Crown was unable to bring evidence from a witness that it was the offender who stabbed the deceased and, accordingly, he was discharged. Subsequently, further evidence became available and an ex officio indictment was filed. Following the committal hearing, the offender had desired to travel to Cambodia, but, at a time when there was no impediment to him travelling, he chose to stay in Australia. Prior to the committal hearing, the offender was in custody for a period of 10 months and 27 days. When subsequently charged, he was granted bail, but was again taken into custody on 11 February this year. This was the occasion on which he pleaded guilty to manslaughter, the Crown having been informed of his intention to enter a plea a few days previously. His total period of custody in relation to this offence is agreed to be in excess of 14½ months. I will allow fifteen months.

20 The offender’s plea has a utilitarian value. The trial was set down for 6 weeks and many witnesses were contemplated. However, the plea was not entered at the first available opportunity but only on the first day of the proposed trial and followed a committal hearing and subsequent ex officio indictment. Its timing obliged the Crown to fully prepare for a lengthy trial. It was submitted that the Crown case was not strong thereby enhancing the value of the plea. To the extent that I am able to judge that situation, the material before me would indicate that there was evidence of the offender’s carrying of the knife and, given the nature of the deceased’s wounds the inevitable inference was that the offender used it during their exchange. In my opinion a discount towards the lowest end of the range is appropriate. I will allow 12.5%.

21 The court received victim impact statements from a number of members of the deceased’s family. The killing of a young person in the present circumstances is a tragedy of enormous proportions. The grief of a mother losing her son is profound. On behalf of the court I extend my deepest sympathy to Ms Kodot and her other children. I am, however, obliged to sentence the offender having regard to the requirements of the legislature.

22 The offender has both indicated that he accepts responsibility for the killing and expressed his remorse. When he gave evidence the following exchange occurred:

“Q. How important is it to you now to accept responsibility for what you did?
A: Well, I feel a bit better about myself. I feel like there is a lot of weight been lifted off my shoulders and I feel like I don’t have to lie anymore
Q. You feel?
A Like I don’t have to lie any more, the truth is out there and I feel better about it.
Q You understand the weight won’t be lifted from the family of the deceased?
A It won’t ever be lifted and I am deeply sorry for that.
Q Do you accept the responsibility?
A Yes, I do.”

23 I accept this evidence. I am satisfied that the offender both accepts responsibility for his actions and is genuinely remorseful.

24 The offender has previously been dealt with by the courts for driving related offences including mid range PCA offences. He was sentenced to 150 and 100 hours of community service to be served concurrently for the offences of driving whilst disqualified and driving with a middle range PCA. He was completing his community service when remanded in custody for the present offence. He was also previously involved in a brawl. This occurred in December 2003 when he, along with others, was charged with various offences for which modest fines were imposed.

25 The offender must be sentenced having regard to the provisions of the Crimes (Sentencing Procedure) Act 1999. He has convictions for the motorcar related matters to which I have referred and the offences arising from the previous brawl. Accordingly, he is not entitled to be sentenced as a person of unqualified good character. However, these offences are of a significantly lesser order of seriousness than the present offence. As I have already indicated I am satisfied that the offender has shown genuine remorse and now regrets his involvement in violent gang behaviour. Accordingly, although there are prospects of his rehabilitation his progress upon release will depend upon him maintaining a stable relationship and pursuing a worthwhile career. He undoubtedly has the natural abilities to succeed in life but whether he will avail himself of the available opportunities is uncertain.

26 The crime which the offender committed was very serious. Manslaughter describes a multitude of circumstances where a person’s life is taken. Each occasion is both a personal and family tragedy. The present crime came from friction between rival groups of young people. The source of the friction was not explained by the evidence. Physical fights between gangs of young people are disturbing events placing, as they do, the lives of the participants at risk. When they occur, as here, in a shopping centre, they are frightening events for passersby. But when the exchange between the participants extends to assailants attacking with knives a heightened level of danger is created. Taking a weapon capable of inflicting fatal injuries into the fight was an aggressive act which turned the contemplated physical brawl into a situation of extraordinary danger. The offender’s conduct cannot be tolerated in a civilised society and his punishment must both mark out the community’s abhorrence of the use of weapons and a determination to ensure that others do not take a similar course. Violence between young people is a problem in our community. The figures for charged assaults record a significant increase in these events over the last decade. When an assailant carries a weapon the potential consequences increase as is so tragically indicated by the outcome in the present case.

27 The offender, in the company of his friends with Asian backgrounds, joined in a fight with another group of young people of Lebanese backgrounds. Both groups come to the Westfield Centre looking for conflict. However, there is no evidence that the offence was motivated by hatred or prejudice against a particular group of people. Nevertheless, these events reflect a troublesome development in our community.

28 The maximum penalty for the offence of manslaughter is 25 years imprisonment. This is, of course, provided by the legislature for the worst class of case. Although not in the worst category of manslaughter, this was a very serious crime. The offender engaged the deceased by holding an extremely dangerous knife with which he intended to hurt the deceased and delay his escape. In my opinion there is no alternative but to impose a sentence of a substantial term of imprisonment. The offender must be punished for his actions which cost Mr Chouman his life. That punishment must clearly mark out the fact that the community will not tolerate the use of weapons in circumstances where the lives of others will be in danger.

29 The sentence which I will impose may, to some people, appear lenient having regard to the legislated maximum. However, that sentence must reflect the pattern of sentencing previously imposed for the offence of manslaughter. That pattern was considered in detail in the decision in R v Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377 where the Chief Justice wrote the major judgment and I joined with him. If the established pattern is to change, the matter would require comprehensive review by the Court of Criminal Appeal and is not an option open to a judge sentencing at first instance.

30 Because of the offender’s need for assistance upon release, if he is to take his place in the community, a finding of special circumstances is appropriate. As I have already indicated I have provided a discount for the offender’s guilty plea at the lower end of the available range.

31 Although others were involved in the brawl I understand they have been dealt with in the Local Court for offences of less significance than the crime committed by the offender. It is accepted that no questions of parity arise.

32 Mr Sin I convict you of the manslaughter of Samir Chouman. Having considered the various matters to which I have referred including matters of aggravation and mitigation, I sentence you to imprisonment with a non-parole period of 7 years and a balance of term of 3½ years. Allowing for the period you have already spent in custody in relation to this offence I provide 21 March 2007 as the date upon which your sentence commences. The first date you will be eligible for parole is 20 March 2014.

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