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Court of Criminal Appeal 2 March 1999

Regina v Dang

[1999] NSWCCA 42

Assault & violenceHomicide

Citation: Regina v Dang [1999] NSWCCA 42
Court: NSW Court of Criminal Appeal
Date: 2 March 1999
Judge(s): Abadee J, Barr J, Adams J

Background

The respondent was tried on charges of murder and intent to murder following the death of one woman and the wounding of her daughter on 22 November 1995. The jury found the respondent guilty of the lesser offences of manslaughter and malicious wounding. The manslaughter verdict rested on the jury's finding of provocation.

The sentencing judge, Acting Justice Black, imposed a total sentence of six years penal servitude for the manslaughter (comprising a minimum term of 4.5 years and an additional term of 18 months), with a concurrent fixed term of four years for the malicious wounding.

The Director of Public Prosecutions appealed under section 5D of the Criminal Appeal Act 1912, arguing the manslaughter sentence was manifestly inadequate. The respondent cross-appealed, arguing the sentence was excessive. The Crown later abandoned its appeal against the malicious wounding sentence.

  • Whether the manslaughter sentence of six years was manifestly inadequate, applying the comparator cases relied upon by the Crown.
  • Whether the sentencing judge's reasons disclosed identifiable error in assessing the degree of provocation.
  • Whether the victim impact statement was a permissible consideration in sentencing for an offence involving the death of the victim.
  • Whether the respondent's cross-appeal established that the sentence was excessive.

Decision

The Court found no manifest inadequacy in the manslaughter sentence. Comparable sentences drawn from the schedule in R v Alexander and the decision in R v Khan did not, in the court's view, support the Crown's position. The sentencing judge's approach to the provocation finding was consistent with the jury's verdict, and the court identified no appellable error in his Honour's reasons.

On the victim impact statement, Adams J delivered a notable observation. Because the deceased had died, the victim impact statement could not lawfully be taken into account in sentencing. The court explained that this rule reflects the principle of equality before the law: the gravity of a killing cannot depend on whether the victim had a loving family or was entirely alone. The court was careful to acknowledge that the grief of the deceased's family was real and significant, even though it could play no role in the sentencing exercise.

Adams J also noted, on a tentative basis, that the concurrent sentencing of a second serious offence arguably produced an outcome where that offence carried no practical sentencing consequence. However, because the Crown had withdrawn the relevant appeal before that question could be fully argued, the court did not resolve it and expressly confined the observation to a tentative one.

The respondent's cross-appeal, brought by leave, was also dismissed. The court found the sentence neither inadequate nor excessive.

Orders Made

  • Crown appeal dismissed.
  • Leave granted to the respondent to appeal against sentence; respondent's appeal dismissed.

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal found that comparable manslaughter sentences founded on provocation did not establish that a six-year total sentence was manifestly inadequate.
  • A victim impact statement cannot be taken into account in sentencing where the offence resulted in the victim's death. The principle underlying this rule is that the law treats all victims as equal in death, regardless of their personal circumstances or family connections.
  • Where provocation reduces murder to manslaughter, the sentencing court's findings need only be consistent with a reasonable interpretation of the jury's verdict; no express finding on every factual detail is required.
  • Adams J flagged, on a tentative basis only, that concurrent sentencing for a second serious offence should ordinarily carry real practical sentencing consequences, though the court left that question unresolved given the Crown's withdrawal of the relevant ground.
  • The delay by the Director in notifying the respondent of the Crown appeal was noted critically by the court, particularly given that the respondent had filed and then withdrawn her own appeal in the intervening period.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Sentencing Act 1989 (NSW)

Cases:
- R v Alexander (1994) 78 A Crim R 141
- R v Khan (1996) 86 A Crim R 552
- R v Bollen (1998) 99 A Crim R 510
- R v Previtera (1997) 94 A Crim R 76