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Supreme Court 25 June 1999

R v Tang

[1999] NSWSC 630

Assault & violenceHomicide
CRIMINAL LAW SENTENCE MURDER BY STABBING SPONTANEOUS VIOLENT INCIDENT NO QUESTIONS OF PRINCIPLE

Citation: R v Tang [1999] NSWSC 630
Court: Supreme Court of New South Wales
Date: 25 June 1999
Judge(s): Hidden J

Background

The offender, an eighteen-year-old Cambodian-born man, was found guilty by jury of murdering David Laxalle at Berala on 24 February 1997. The killing arose from a street confrontation after the deceased observed the offender and three younger companions stealing mangoes from the backyard of his mother's home and pursued them into the street.

A struggle followed in which the deceased was punched, kicked and stabbed seven times to the torso and upper left arm. He managed to return to his mother's home before being taken to hospital, where he died the following morning. The offender was twenty years old at the time of sentencing.

The matter came before Hidden J for remarks on sentence following the jury's verdict of guilty at a trial conducted over several weeks in early 1999.

  • What sentence was appropriate for a murder committed by a young offender during a spontaneous street altercation involving a knife?
  • Whether the offender intended to kill, or only to inflict grievous bodily harm.
  • What weight should be given to the offender's age, background, character and prospects of rehabilitation in determining the minimum and additional terms?
  • Whether special circumstances existed to justify a departure from the standard ratio between minimum and additional terms under s 5(2) of the Sentencing Act 1989.

Decision

Hidden J accepted, for sentencing purposes, that the offender joined the attack to free a companion and was struck first by the deceased. The court was satisfied that the offender inflicted all seven stab wounds but was not satisfied, despite the number and severity of those wounds, that he intended to kill. The jury's verdict established an intention to inflict at least grievous bodily harm.

The court emphasised the community's justified abhorrence of young men carrying knives and the pattern of unexpected violence leading to fatal outcomes. While the spontaneous nature of the incident was a relevant consideration, it did not diminish the seriousness of the offence or the need for the sentence to reflect that community concern.

Hidden J gave weight to the offender's youth, his Cambodian refugee background (his father having been killed under the Pol Pot regime), his otherwise positive character as described by witnesses from a Uniting Church youth program, and his good prospects for rehabilitation. A psychological report noted below-average intelligence, low self-esteem and personal pressures at the relevant time. The court found the offender's conduct was out of character.

Special circumstances were found under s 5(2) of the Sentencing Act 1989, warranting a minor departure from the statutory norm, on the basis that an extended period of post-release supervision would assist rehabilitation. The sentence was dated from the day the offender was taken into custody, 23 March 1997.

Orders Made

  • Total sentence of penal servitude for fifteen years.
  • Minimum term of eleven years, commencing 23 March 1997 and expiring 22 March 2008.
  • Additional term of four years, commencing 23 March 2008 and expiring 22 March 2012.

Key Takeaways

  • A finding that an offender did not intend to kill, even where seven stab wounds were inflicted, remains open to a sentencing court where the evidence does not positively establish a murderous intent.
  • Spontaneity of a violent incident involving a knife operates as a contextual factor rather than an excuse, and the sentence must still reflect community concern about knife violence.
  • Youth, refugee background, positive character evidence and good rehabilitation prospects are relevant mitigating factors in murder sentencing, though they cannot displace the need for a substantial custodial term.
  • Special circumstances under s 5(2) of the Sentencing Act 1989 were established where an extended additional term would better support the offender's rehabilitation and post-release supervision.
  • Sentences run from the date of custody, not from the date of conviction or sentencing, meaning time already served reduces the effective period remaining.

Legislation and Cases Referenced

Legislation:
- Sentencing Act 1989 (NSW), s 5(2) (special circumstances affecting the ratio of minimum to additional term)

Cases cited: None cited in the judgment.