Citation: Hung Duc Dang v R [2001] NSWCCA 321
Court: NSW Court of Criminal Appeal
Date: 31 October 2001
Judge(s): Beazley JA; Wood CJ at CL; Carruthers AJ
Background
The appellant and a co-offender travelled into Sydney's CBD together, each carrying a knife. Although they had no specific plan at the outset, both had a mutual understanding that they would rob someone if the opportunity arose. That evening, they snatched a woman's handbag in Castlereagh Street and fled north along the street before separating, each pursued by members of the public.
The co-offender, while still being pursued, stabbed and killed a man who attempted to detain him. In separate but simultaneous circumstances, the appellant drew his own knife during a struggle with his pursuers and wounded one of them. The appellant was charged with murder, robbery in company, and using an offensive weapon to prevent lawful apprehension.
The appellant pleaded guilty to the robbery and weapons charges. After a second trial on the murder count, the jury acquitted him of murder but found him guilty of manslaughter on the basis of extended common purpose: the Crown's case was that the lethal stabbing by the co-offender fell within the scope of the joint criminal enterprise both men had embarked upon.
Legal Issues
- Whether the killing occurred while the joint criminal enterprise to rob was still on foot, or whether it was an isolated act for which only the co-offender was responsible
- Whether it was in the appellant's contemplation that the co-offender might use a knife in an unlawful and dangerous manner otherwise than in self-defence
- Whether the manslaughter sentence of seven and a half years (cumulative, with a four-year non-parole period) was manifestly excessive
Decision
Was the enterprise still on foot? The Crown analogised the situation to a bank robbery, where the joint enterprise does not end until the offenders have escaped the scene. The Court accepted that analogy. The evidence did not leave any reasonable doubt that the stabbing occurred while the enterprise remained active: both men were still being pursued following the robbery when the fatal stabbing took place.
Was knife use in the appellant's contemplation? The Court held this question turned on the appellant's subjective contemplation of what the co-offender might do with the knife he was carrying. The jury was entitled to draw inferences from the surrounding circumstances and from admissions the appellant made in his electronically recorded interview (ERISP). On the evidence as a whole, the only reasonable inference available was that the appellant did contemplate the possibility of his co-offender using the knife in an unlawful and dangerous way. The Court applied the principles in McAuliffe v The Queen (1995) 183 CLR 108 on extended common purpose.
Was the sentence manifestly excessive? The Court acknowledged that sentencing for manslaughter is inherently difficult given the wide range of circumstances that can produce that verdict. Nevertheless, the offences were serious and called for both general and personal deterrence. The overall sentence, though heavy, fell within the legitimate range of sentencing discretion. The Court found no error of law in the sentencing judge's approach, applying the standard in House v The King (1936) 55 CLR 499.
Orders Made
- The appeal against conviction was dismissed
- Leave to appeal against sentence was granted, but that appeal was also dismissed
- The convictions and sentences below were confirmed
Key Takeaways
- The Court of Criminal Appeal confirmed that a joint criminal enterprise to rob does not necessarily end at the moment of the taking: it may continue while the offenders are fleeing and attempting to escape, making a co-offender's acts during that flight potentially attributable to all participants.
- Under the extended common purpose doctrine, a participant in a joint enterprise may be guilty of manslaughter where it was within their subjective contemplation that a co-offender might commit an unlawful and dangerous act, even if that specific act was not planned. A jury may draw that inference from surrounding circumstances and admissions.
- Carrying identical weapons to a co-offender as part of a joint enterprise was treated as significant circumstantial evidence of what the appellant subjectively contemplated about how those weapons might be used.
- No error was established in the sentencing judge's exercise of discretion. A cumulative manslaughter sentence of seven and a half years, with a four-year non-parole period, survived challenge as manifestly excessive given the seriousness of the offending and the need for deterrence.
- McAuliffe v The Queen (1995) 183 CLR 108 remained the governing authority on extended common purpose, and its application here required no departure from or qualification of the principles it established.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 19A (murder), 33B (use of offensive weapon to prevent lawful apprehension), 97(1) (robbery in company)
- Criminal Appeal Act 1912 (NSW), s 6
Cases
- McAuliffe v The Queen (1995) 183 CLR 108
- House v The King (1936) 55 CLR 499
- Dinsdale v The Queen [2000] HCA 54