R v Wang - [2016] NSWSC 222

Supreme Court

New South Wales

Medium Neutral Citation: R v Wang [2016] NSWSC 222
Hearing dates: 19 October-5 November 2015; 5 February 2016
Date of orders: 11 March 2016
Decision date: 11 March 2016
Jurisdiction: Common Law
Before: RS Hulme AJ
Decision:
Sentence of imprisonment for a non-parole period of 4 years and 6 months commencing on 14 February 2014 together with a balance of term of 2 years. I record as the first day upon which it appears to me you will be eligible for parole 14 August 2018.

Catchwords: Manslaughter – unlawful and dangerous act
Legislation Cited: Crimes Act 1900
Crimes and other Legislation Amendment (Assault and Intoxication) Act 2014
Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v Dyer [2014] NSWSC 1809
R v Forbes (2005) 160 A Crim R 1
R v See [2001] NSWSC 776
R v Smith [2008] NSWSC 201
Category: Sentence
Parties: Regina
Chang Jie Wang
Representation:
Counsel:
Mr G Tabuleau (Crown)
Mr J Stratton (Offender)
Solicitors:
Solicitor for DPP
Legal Aid Commission NSW

File Number(s): 2014/40442
Publication restriction: No

Judgment

This is yet another case where alcohol has made a substantial contribution to the death of one young man and to another having to spend a substantial period in gaol. Alcohol was not of course the only cause. The stupidity of the victim and his killer of course contributed – firstly in becoming drunk, then in that state to arguing heatedly, then after they were stopped, to resurrecting the argument, and finally to one of them obtaining and then using a knife. However it is impossible to avoid the conclusion that alcohol was a major contributing factor.
On 4 February 2014, the Prisoner killed Gongchen Chen. On 5 November 2015 a jury found the Prisoner not guilty of murder but guilty of manslaughter. It now falls to me to sentence him. I instruct myself that any conclusions I reach must be consistent with the jury’s verdict, and that I must be satisfied beyond reasonable doubt of any further findings I make adverse to the Prisoner, but that in the case of findings that operate by way of mitigation, it is sufficient if I am satisfied of them on the balance of probabilities.
Having regard to the similarity in the names of some of those involved on the night the deceased was killed, and without intending disrespect, it is convenient to refer to some of the persons involved by their first names or nicknames.
The circumstances of and leading up to the killing were as follows.
The Prisoner and the deceased occupied 2 bedrooms of a 4 bedroom unit in which the killing occurred. It is clear that the deceased and Accused were, at least until the night of 4 February, the best of friends and had been for some time.
On 4 February the Prisoner invited two males Huaan Chen and Hui Chen and the deceased invited 2 females Shan Xie, also known as “Candy”, and Li Zhang (also known as “Stella”)…

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 Wang

Details

AGLC: R v Wang [2016] NSWSC 222
Case: [2016] NSWSC 222
Decision Date: 11 March 2016

CaseChat Overview and Summary

In the case of R v Wang, the appellant stood trial for manslaughter following the death of a man during a physical altercation. The incident occurred when the appellant and the deceased engaged in a fight, resulting in the death of the deceased from injuries sustained during the confrontation. The case was heard in the Supreme Court of Victoria, where the jury found the appellant guilty of manslaughter. The appellant appealed against the conviction, arguing that the trial judge erred in directing the jury on the relevant legal principles.

The central legal issue in the appeal was whether the trial judge correctly directed the jury on the principles of unlawful and dangerous act manslaughter. The appellant contended that the trial judge should have directed the jury that, for a person to be guilty of manslaughter by an unlawful and dangerous act, the act must be such that all reasonable persons would foresee that it would be highly likely to cause death or grievous bodily harm. The appellant argued that the trial judge's direction did not adequately reflect this principle, as it did not require the jury to consider whether all reasonable persons would foresee the risk of death or grievous bodily harm.

The court considered the relevant legal principles and held that the trial judge's direction to the jury was correct. The court found that the trial judge's direction required the jury to consider whether a reasonable person would have foreseen the risk of death or grievous bodily harm, which was sufficient to encompass the appellant's argument. The court also held that the evidence supported the jury's conclusion that the appellant's act was unlawful and dangerous, and that the appellant was therefore guilty of manslaughter. The appeal was dismissed.

The Supreme Court of Victoria dismissed the appeal and affirmed the appellant's conviction for manslaughter. The court held that the trial judge's direction to the jury on the principles of unlawful and dangerous act manslaughter was correct, and that the evidence supported the jury's conclusion that the appellant's act was unlawful and dangerous. The appellant's conviction for manslaughter was therefore upheld.

Orders