Citation: R v Dang [2000] NSWSC 1257
Court: Supreme Court of New South Wales
Date: 20 December 2000
Judge(s): James J
Background
The prisoner, a 19-year-old man of Vietnamese origin, travelled into central Sydney with a co-offender on the evening of 25 April 1999. The co-offender had brought two knives and gave one to the prisoner during the journey. Together, they snatched a handbag from a young woman in Castlereagh Street, then fled in separate directions.
The prisoner was chased and cornered by members of the public. He drew his knife during the ensuing scuffle, cutting one person on the wrist before being overpowered and handed to police. Meanwhile, the co-offender stabbed and killed a man during his own flight from the scene.
The prisoner was charged with murder, robbery in company, and using an offensive weapon to prevent lawful apprehension. He pleaded not guilty to murder and guilty to the other two charges. Following a jury trial, he was acquitted of murder but convicted of manslaughter on the basis of common purpose.
Legal Issues
- Whether the prisoner could be found guilty of manslaughter, despite not personally killing the deceased, through application of the doctrine of common purpose
- Whether certain admissions made during a police interview were admissible, given alleged contraventions of Part 10A of the Crimes Act during the arrest period
- How to approach sentencing for three overlapping offences, including the identification of special circumstances to justify a longer parole period
Decision
On the admissibility question, James J conducted an extended voir dire and ultimately ruled that the prisoner's answers during the police interview of 26 April 1999 were admissible under the Evidence Act. The first jury was discharged during this process due to time constraints, and a fresh trial was required.
For the manslaughter conviction, the Crown did not allege the prisoner personally stabbed the deceased. Instead, the prosecution succeeded on common purpose: the jury was directed that guilt required proof that the prisoner knew the co-offender had a knife, and that he contemplated the co-offender might commit an unlawful and dangerous act with it in the course of the robbery, yet continued to participate. The jury returned a verdict of not guilty of murder but guilty of manslaughter.
On sentencing, James J assessed the manslaughter as serious given that the prisoner actively participated in the robbery, was armed, and knew his co-offender was also armed. Against this, the court weighed the prisoner's youth (19 at the time), his status as a first offender, his Vietnamese background and migration history, and some expressed contrition, though the prisoner still regarded the robbery as a "small" matter.
Special circumstances were found to exist, warranting a non-parole period below the standard three-quarters ratio. The court accepted that the prisoner's youth, his first time in custody, the likelihood of serving on protection, and the need for rehabilitative support during parole all justified a proportionally longer period on parole. The sentences for robbery in company and use of an offensive weapon were ordered to be served first, with the manslaughter sentence to follow consecutively.
Orders Made
- Robbery in company: fixed term of 2 years 6 months, commencing 25 April 1999, expiring 24 October 2001
- Using a knife to prevent lawful apprehension: fixed term of 2 years, commencing 25 April 1999, expiring 24 April 2001 (concurrent with robbery sentence)
- Manslaughter: 7 years 6 months, commencing 25 October 2001
- Non-parole period for manslaughter: 4 years, commencing 25 October 2001, expiring 24 October 2005
- Earliest parole eligibility date: 25 October 2005
Key Takeaways
- A conviction for manslaughter by common purpose does not require the accused to have personally inflicted the fatal blow. It requires proof that the accused knew the co-offender was armed, contemplated that the co-offender might use the weapon unlawfully and dangerously in the course of the joint enterprise, and nonetheless continued to participate.
- Admissions obtained in a police interview remained admissible even where procedural irregularities were alleged during the arrest phase, subject to the court's assessment under s 138 of the Evidence Act.
- Where multiple offences arise from a single criminal episode but extend across a period of time, consecutive sentences may be appropriate to reflect the full criminality involved.
- Special circumstances justifying a reduced non-parole period were established by a combination of factors: the prisoner's youth, his status as a first-time custodial offender, the prospect of serving on protection, and the rehabilitative needs identified in expert evidence.
- The Supreme Court treated the co-offender's significantly heavier sentence (22 years for murder) as consistent with the prisoner's lesser culpability, given that the prisoner was convicted of manslaughter rather than murder and did not personally kill the deceased.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 33B (using an offensive weapon to prevent lawful apprehension); Part 10A (police detention and questioning procedures)
- Evidence Act 1995 (NSW), s 138 (exclusion of improperly or illegally obtained evidence)
Cases:
- R v Isaacs (1997) 90 A Crim R 587 (principles for fact-finding at sentencing)