Regina v Ang

[2001] NSWSC 758

CITATION:	Regina v ANG [2001] NSWSC 758
FILE NUMBER(S):	SC 70026/01
HEARING DATE(S):	24 August, 2001
JUDGMENT DATE:	4 September 2001
PARTIES :	Regina ANG
JUDGMENT OF:	Ireland AJ at 1

COUNSEL :	Mr P Dare - Crown Mr R Greenhill SC/Mr W Barry - offender
SOLICITORS:	SEO'Connor - Crown John Ajaka - Offender
CATCHWORDS:	Manslaughter by criminal negligence - pushing semi-conscious body of dececeased into river - early plea - offender affected by amphetamines placed in his drink by others without his knowledge - exceptional circumstances - well established rehabilitation - remorse - contrition. 2 year sentence of imprisonment suspended s.12 Crimes (Sentencing Procedure) Act 1999.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act, 1999
CASES CITED:	R v Troja (NSW CCA 16.7.1991 unreported) The Queen v Wade (NSW CCA 14.4.1989 unreported) R v Blacklidge (NSW CCA 12.12.1995 unreported) R v Dodd (1991) 57 A Crim R 349 R v Hill (1981) 3 A Crim R 397 at 402 R v Smith (1964) Crim LR 70 R v Hungerford (SC NSW 17.8.1993 unreported) R v GDP (NSW CCA 24.4.1991 unreported)
DECISION:	Non publication and broadcasting of the name of the offender and of the victim pursuant to s 11 Children (Criminal Proceedings) Act 1987 and I further order that there be no publication or broadcasting of any information which may identify the offender. Sentenced to 2 years imprisonment to date from 4.9.2001. Sentence will expire on 3.9.2003. Pursuant to s 12(1)(a) of Act, execution of the sentence be suspended for the 2 year term of the sentence. Pursuant to s 12(1)(b) I direct that the offender be released from custody on condition that he enters into a good behaviour bond for a term of 2 years, concurrent with this sentence, the said bond to include conditions.

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

IRELAND AJ

Tuesday, 4 September, 2001

70026/01 - REGINA v A.N.G.

SENTENCE

1    HIS HONOUR: The offender, ANG, was committed for trial from Cobham Children’s Court on 5 April 2001 on a charge alleging that he, on 9 October 1999 at Emu Plains, murdered GAC, the deceased, who was his uncle.

2    Upon arraignment in the Supreme Court on 6 July 2001, upon that charge, the offender pleaded not guilty of murder but guilty of manslaughter. The Crown accepted that plea in full discharge of the indictment. The basis upon which the Crown accepted the plea was that of criminal negligence by pushing the semi-conscious body of the deceased into the Nepean River, resulting in his death by drowning.

3    It is agreed as between the parties that the offender indicated an intention to plead guilty to a charge of manslaughter prior to the committal hearing and that whilst the Director of Public Prosecutions did not act unreasonably in requiring the testing of evidence at committal in a charge as serious as murder, nevertheless, 6 July 2001 was, in the circumstances, the first opportunity available to the offender to enter his plea of guilty to the offence of manslaughter. R v Thomson and Houlton (2000) NSW CCA 309 (17.8.2000).

4    It is common ground as between the parties that the agreed facts to which I shall refer represent as complete and accurate an outline as is possible to distil from what has been described as a confusing and inconsistent body of evidence.

Background of the Deceased

5    The deceased, GAC, who was born on 9 April 1968, was aged thirty one years at the time of his death and was the youngest brother of the offender’s mother. Throughout his adulthood he lived an aimless life given to significant substance and alcohol abuse thought to have contributed to his state of clinical depression.

6    On a number of occasions, leading up to the time of his death, the deceased told various members of his family of his feelings that his life was “not worth living”. He was observed by family members over a period of time to have neglected his appearance, personal hygiene and nutrition.

7    Of real significance in the material placed before the Court in these sentencing proceedings is the unchallenged statement of the grandmother of the offender, who is also the mother of the deceased. This lady, who is the mother of six children, has been closely involved in the upbringing of her grandson, the offender, as well as her youngest son, the deceased, and has first hand knowledge of the deceased’s apparent suicidal ideation. This lady is also cognisant of the affection with which the offender and the deceased regarded each other, as well as the depth of family support for the offender to which I shall return.

The events causing death

8    On Saturday, 9 October 1999 the offender, who was then aged sixteen years and eight months, went to visit friends at 47 River Road, Emu Plains. The deceased resided at those premises. The offender was forbidden to attend those premises by his parents who held the well founded belief that drugs were used there.

9    During the afternoon and evening, without his consent, a number of the offender’s drinks were ‘spiked’ with the amphetamine known as ‘speed’.

10    The deceased also consumed alcohol and drugs. Post mortem blood and urine analysis conducted by the Division of Analytical Laboratories disclose the blood alcohol reading of 0.226 grams per 100 millilitres of blood, together with the presence of Ketamine, amphetamine and delta-9 -THC acid, which is the major active drug present in cannabis, in various quantities. The cause of death was established to be drowning.

11    In the opinion of the forensic scientist, Dr William Allender, the deceased, at the time of death, was under the influence of alcohol and the Ketamine would have enhanced its central nervous system depressant effects.

12    Between 7 pm and 9 pm on the evening of 9 October, 1999 the deceased and the offender walked across the road from number 47 River Road down to the western bank of the Nepean River.

13    The offender said that at the river bank the deceased was grieving about the state of his life, being drug-addicted and having a relationship with a twelve year old girl.

14    The deceased said that he wanted to end his life but did not have “… enough guts …” to do it himself. He told the offender that when he had taken certain tablets which he had with him and alcohol he would be “knocked out” after which he wanted the offender to push him into the water and “let him go”.

15    The offender described the deceased as having taken “seven or eight tablets” before drinking “… heaps of alcohol …” after which the deceased lay on a rock at the water’s edge and closed his eyes. Thereafter the offender pushed the deceased into the water and walked back to 47 River Road where he told others what he had done.

16    The offender returned with two of his friends to the river bank to find the body of the deceased in the water. A check of the pulse established the body to be deceased.

17    The body was removed from the water and the offender went to 47 River Road where he obtained a motor vehicle. The three persons carried the body of the deceased to the vehicle which was driven by the offender to Lapstone Creek. The offender dragged the deceased from the vehicle through some ten metres of bush to the north side of Lapstone Creek and put the body in the creek.

18    The deceased’s body was located about 3.30 pm on Sunday, 10 October 1999 by children. The body was identified by finger prints.

19    Following identification of the deceased, the family was contacted. On 11 October 1999 the offender made a statement denying any knowledge of the death. On 13 October 1999 he returned to Penrith Police Station with his mother and took part in a recorded interview with Detective Senior Constable Pascoe. A recorded statement of the offender disclosed the events causing the death of the deceased to which I have made reference.

20    Evidence given at the committal hearing by others present at 47 River Road and on the river bank during the evening of 9 October 1999, described the offender, after his drinks had been ‘spiked’, variously, inter alia, as ‘smashed’, ‘stoned’ and ‘well affected’ and complaining of ‘… not feeling very well and didn’t know what was going on’. Evidence was also given, at committal, of the anger expressed by the offender when he became aware of the fact that his drinks had been contaminated, albeit as a practical joke or as a so described ‘party trick’. The distinguishing feature present in this regard is that the intoxication of the offender cannot in a material sense be categorised as wholly voluntary or self induced.

Subjective circumstances

21    The subjective circumstances attending the offender warrant careful consideration. He was, as I have observed, aged sixteen years and eight months at the time of the offence and is presently eighteen and a half years of age.

22    His school career, which he had hoped to progress to tertiary qualifications, was cut short when following the laying of the charge of murder, he was expelled from school. He at once became apprenticed to his father as an automotive technician employed in his father’s business where he has continued, undertaking the associated TAFE course in which he has completed two of the three years of the course which I am informed requires a further year of practical training following the academic segment. The offender is on all accounts assiduously applying himself to his employment and to his training and studies.

23    The offender has an unblemished record and is highly regarded by members of his family, many of whom have made statements which testify to him being a respectful and well behaved young man, who has been deeply affected by the events which bring him before the Court. He is remorseful and contrite in his expressions of regret to family members, who find his involvement in the death of his uncle to be quite out of character.

24    The offender is part of a large family whose members reside in the Penrith area and whose social activities largely revolve around family functions and celebrations. One rarely sees family support of the strength evidenced in this case by the statements and presence in Court of many family members unanimous in the favourable views they hold. In this regard I am greatly assisted by the reports of officers of the Department of Juvenile Justice being that of Ms Nadine Bedo of 20 August 2001 and Ms Gina Proudlove of 21 August 2001.

25    The latter comprehensive report of Ms Proudlove has been of great assistance to the Court in understanding the family background and personal history of the offender.

26    It is clear from the material tendered that the part played by the offender in the death of the deceased has impacted heavily upon him and that he will carry the burden of his involvement throughout his future life.

27    I am satisfied that the extensive contact with the family and the offender which the Juvenile Justice Officer, Ms Proudlove, has undertaken has placed her in a position to assess not only the veracity of the offender’s remorse and contrition and the distress which he experiences, which I accept, but also the change in course along which the offender now directs his lifestyle with the strong support of his parents and wider family. I recognise also the benefit of counselling which the offender has received and should continue so to do.

28    It has been urged upon the court by Mr Greenhill, Senior Counsel for the offender, that this is an exceptional case which may appropriately be considered in the light of the deceased’s request to the offender to do what he did resulting in the compassionate response of the offender in his state of confusion largely imposed by the acts of others. Accordingly, it is submitted that the demands of justice and rightful community expectations may be satisfied without the need to interrupt and fragment the offender’s employment and rehabilitation, which are respectively stable and well advanced, by the imposition of a sentence which would require the offender to at once be taken into custody.

29    It is to be noted that Mr Dare, Crown Prosecutor, submits that such a course would not demonstrate error in sentencing in the conceded exceptional circumstances of this case.

30    The protean nature of the crime of manslaughter and the consequential wide range of sentences imposed has frequently been the subject of judicial recognition in this and other courts.

31    In R v Troja (NSW CCA 16.7.1991 - unreported) at 3, Kirby P said this:

”It is trite to say that the range of sentences available on a conviction of manslaughter is greater than for virtually any other crime. This is because of the high maximum sentence fixed by Parliament and the great variety of activities which may constitute manslaughter ranging, as they do, from the morally almost innocent to the seriously culpable. See The Queen v Wide (NSW CCA -14.4.1989 - unreported).”

32    It is also trite to say that the sentence which is appropriate in each case of manslaughter depends on its own special circumstances.

33    In R v Blacklidge (NSW CCA - 12.12.1995) at 4 Gleeson CJ said this:

“It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.
At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. ( R v Dodd (1991) 57 A Crim R 349 ; R v Hill (1981) 3 A Crim R 397 at 402).”

34    The likelihood of the offender re-offending is, in light of the material placed before the court, remote. In terms of general deterrence the exceptional circumstances of this case render the penalty to be imposed of extremely limited application as an example to others.

35    The mitigating features of an early plea, together with genuine contrition and remorse, sound strongly in the offender’s favour, however, in my view considerations of rehabilitation warrant paramount emphasis. In saying this I do not wish it to be thought that I am losing sight of the important part which the law is called upon to play in upholding the protection of human life and in the appropriate punishment of those who take it.

36    In R v Smith (1964) Crim L R 70 the English Court of Criminal Appeal said this:-

“… in the case of a young offender there can rarely be any conflict between his interest and the public’s. The public have no greater interest than that he should become a good citizen.”

37    That principle has been accorded recognition in a series of cases assembled in the judgment of Newman J in R v Hungerford (SC NSW - 17.8.1993 unreported) at 9; and see also R v GDP (NSW CCA - 24.4.1991 unreported) per Mathews J at 10.

38 The progress towards rehabilitation of the offender over the past twenty months and his response to the support afforded to him, together with the other mitigating circumstances to which I have referred, warrants the exercise of the court’s discretion to suspend sentence pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 (“the Act”).

39    ANG for the manslaughter of GAC of which you have been convicted, you are sentenced to 2 years imprisonment to date from today. The sentence will expire on 3 September 2003.

40 Pursuant to s 12(1)(a) of the Act, I order that execution of the sentence be suspended for the 2 year term of the sentence.

41 Pursuant to s 12(1)(b), I direct that the offender be released from custody on condition that he enters into a good behaviour bond for a term of 2 years, concurrent with this sentence, the said bond to include the following conditions:-

That the offender will:

(1) be of good behaviour in every respect;

(2) reside with his parents;

(3) not associate with any persons not approved by his parents;

(4) continue with his TAFE course and his apprenticeship to completion;

(5) maintain his full-time employment;

(6) accept the supervision and direction of Juvenile Justice Community Services Officers, including attendance at the Intensive Programs Unit as directed to receive offence specific counselling.

Last Modified: 09/05/2001