Regina v Paulo Nikau

[1999] NSWCCA 322

CITATION:	Regina v Paulo NIKAU [1999] NSWCCA 322
FILE NUMBER(S):	CCA 60745/98
HEARING DATE(S):	13 October 1999
JUDGMENT DATE:	13 October 1999
PARTIES :	Regina Paulo Nikau
JUDGMENT OF:	Sully J at 1; Ireland J at 15; Hidden J at 16

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70043/96
LOWER COURT JUDICIAL OFFICER:	Barr J

COUNSEL:	S. R. Norrish QC - Crown R. D. Ellis - Applicant
SOLICITORS:	T. A. Murphy - Crown S. E. O'Connor - Applicant
CATCHWORDS:
ACTS CITED:	Crimes Act
DECISION:	Leave to appeal against sentence granted; by majority, appeal against sentence dismissed.

IN THE COURT OF
CRIMINAL APPEAL

60745/98

SULLY J
IRELAND J
HIDDEN J

13 October 1999

REGINA v Paulo NIKAU

JUDGMENT

1 SULLY J: SULLY J: On 30 October 1998 the present applicant, MrPaulo Nikau, stood for sentence before his Honour Justice Barr of this Court. He so stood for sentence having pleaded guilty to a charge of manslaughter and to a cognate charge of malicious wounding. He had been indicted originally upon an indictment charging him with murder, and separately with malicious wounding; and the Crown accepted a plea of not guilty of murder but guilty of manslaughter in discharge of the count charging murder. 2 The statutory maximum penalty for the offence of manslaughter is penal servitude for twenty five years. The statutory maximum penalty for malicious wounding, a contravention of s 35(a) of the Crimes Act, is penal servitude for seven years. 3 The learned sentencing Judge imposed upon the applicant in connection with the offence of manslaughter a sentence of penal servitude for twelve years. That sentence was apportioned between a minimum term of eight years and an additional term of four years. In respect of the malicious wounding offence his Honour imposed a fixed term of penal servitude for four years, dating that fixed term in such a way as to make it concurrent with the sentence imposed in respect of the manslaughter offence. 4 The applicant contends that the sentence thus imposed upon him is manifestly excessive and such as ought to be reviewed by this Court. 5 The relevant facts are within a small compass and can be taken conveniently from the remarks on sentence of Barr J:

"At about 9.30pm on Tuesday 28 November 1995 a number of young men, including one called Sautia and the brother of the prisoner, whom I shall call J N Norman, were in Lethbridge Park. Sautia and J N entered a shop to buy goods, and whilst they were there the staff asked three young men who were of Aboriginal descent to leave the premises. Sautia and J N took it upon themselves to escort the three men from the shop, and that was the cause of some resentment. A fight broke out. Sautia, J N, a man called Tarawa and others took part on one side of the fight. On the other side of the fight there were a number of young Aboriginal men, including the deceased and Mr Morgan.
After the fight, two of the men who had taken part went to the prisoner's house and said something of what had happened. The prisoner and others responded by going to the house of a man called Stenschke in Emerton, and the prisoner there picked up a kitchen knife and put it down his trousers. One of the others told him to put it back, but he did not. Stenschke said that Tarawa had been attacked at the Lethbridge Park shops and that they were returning there. They did so. The group to which the prisoner belonged were of Pacific Islander extraction.
Eventually the prisoner J N and others arrived at a park, some carrying metal bars. The prisoner still had the knife. There was a group of Aboriginal men in the park, including Mr Morgan and the deceased, and when they saw the prisoner's group approaching, members of the Aboriginal group armed themselves with fence palings and ran off into a laneway. There they were attacked by the prisoner's group.
The prisoner ran towards Mr Morgan, holding the knife pointing towards him, and Mr Morgan turned to run. The prisoner stabbed him in the back, remarking as he did so that he was the one who had thrown a bottle.
Sautia and another man laid into Mr Morgan with an iron peg.
Apart from what the prisoner said, the only evidence about what happened to the deceased comes from a statement of Mr Morgan. He said that there were about four islanders around the deceased. He was being held by the arms and the prisoner was between them, punching him. Mr Morgan's statement does not mention a knife and does not appear to be describing an attack with a knife from the rear.
After the fight was over, the prisoner and others returned to the house at Emerton and the prisoner realised that he did not have the knife. After an unsuccessful search for it he said, 'I never meant to get him that bad, but it went straight through'".

6   The wound inflicted upon Mr Morgan was a 1 cm wound immediately to the right of the midline and just above the costovertebral angle. The skin had been cut, it would seem, cleanly down to the fatty layer, but the depth of the wound beyond that point could not be determined accurately. Scans performed on Mr Morgan excluded any deep chest damage. He sustained, as well, abrasions to his trunk. It seems that he has suffered no permanent disability as a result of these not inconsiderable wounds. 7   The wound inflicted upon the deceased penetrated his left lung, the aorta and left pulmonary artery. It was a fatal wound and it brought about the deceased’s death at the scene of the attack. 8   It is perhaps convenient to commence the present consideration of the matter by setting clearly in place the relevant objective facts and their criminality. 9   It seems to me that an event of the kind previously described, which entails the fatal stabbing of one person and the not insignificant wounding by stabbing of another person, and that in the context of an affray in which the person doing the stabbing has joined voluntarily having previously armed himself with a knife in specific preparation for his joining the affray, is indicative of a high level of criminal culpability. It cannot be stressed too often that the taking of human life in circumstances of the kind described is a serious infraction of public order at the very least; and the Courts have made it clear, in terms which everybody of ordinary sense must be taken to understand, that offences of that kind cannot be tolerated, will not be tolerated, and when they occur will be punished with all proper severity. 10   In the present particular case it is contended that the objective criminality for which the applicant must properly answer is, to some extent, mitigated by the effect of some, at least, of the subjective features which are undoubtedly present in his case. It can be conceded that there is an area of overlap in the sense that the acts of the applicant can be explained, in part at least, by reference to disinhibition resulting from the ingestion of alcohol and drugs; and resulting, also, from the operation in a real way of a context of social disputation between people of islander descent, as the applicant is, and people who are Aboriginal Australians, as the competing group was. I think that those matters, although they explain to some extent at least what happened, certainly cannot excuse it. I say again that so far as I am concerned, the objective gravity of what happened on the occasion in question is of a very high order. 11   It is undeniable that there are substantial subjective matters that have then to be brought to proper account. It is not, I think, necessary to rehearse them in very fine detail, as that has been done by the learned sentencing Judge in terms which, at least broadly speaking, are not the subject of present challenge. 12   It is to be borne in mind that the offences now in question were committed at a time when the applicant was subject to a probation order which had been given to him in connection with, among other things, an offence of menacing another member of the public. 13   It is submitted that even allowing for the undeniable objective gravity of what happened, the proper bringing to account of the relevant subjective matters entails that the sentence imposed is, on its face, manifestly excessive. That it is a severe sentence I think can be allowed at once. That it is manifestly excessive I do not think has been demonstrated. When every allowance is made for the personal circumstances of the applicant, - and I say again: they are substantial, and to be given proper weight and not mere lip service, - the fact remains that somebody is dead, and that somebody else was not insignificantly wounded, as a result of the use, the deliberate use, of a knife in circumstances of a public affray. It appears to be the case, judging from things said in the Court below, judging by things said by the applicant in his record with the police, and judging by things said in submission to this Court, that there is abroad in the community in Sydney some continuing bad blood between Aboriginal Australians and people of Pacific Islander extraction. If, and to the extent to which, that is the fact, it needs to be affirmed clearly and with every proper resolve that the Courts, of all the institutions of society, cannot, and will not, stand supinely by while members of those conflicting groups work out their social clashes in the form of street fights where people involved are using either a knife, as was the case with the present applicant; or steel bars and offensive weapons of the kind, which appears to have been the case with some, at least, of the other combatants on the occasion in question. Crime of this kind, as the present matter shows all too vividly, can have devastating consequences. It must be put down with every proper resolve. 14   In my opinion cause has not been shown to interfere with the sentence imposed below. I would grant leave to appeal but dismiss the substantive appeal. 15   IRELAND J: I agree. 16   HIDDEN J: I am unable to agree with the orders proposed. Sully J has rightly emphasised the grave seriousness of this incident. The learned and experienced sentencing Judge expressly had regard to all relevant matters in his comprehensive remarks on sentence. Nevertheless, I am of the view that the effective sentence passed is manifestly excessive, particularly in the light of the applicant's age. 17   In my view, that sentence affords inadequate weight to his youth, to his tragic and profoundly disturbed background and to the social setting in which the offences occurred. His youth and his background afford him claims of leniency in their own right, quite apart from the extent to which they provide some explanation for his involvement in this dreadful affair. 18   Having regard to the totality of his criminality, I would allow the sentence on the malicious wounding charge to stand but I would reduce the sentence on the manslaughter charge to penal servitude for ten years, comprising a minimum term of six years and an additional term of four years. 19   SULLY J: The Court orders:

(1) that leave to appeal against sentence be granted;

(2) by majority that the appeal against sentence be dismissed.

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