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2
Supreme Court 4 September 2001

Regina v ANG

[2001] NSWSC 758

Homicide
MANSLAUGHTER BY CRIMINAL NEGLIGENCE PUSHING SEMI CONSCIOUS BODY OF DECECEASED INTO RIVER EARLY PLEA EXCEPTIONAL CIRCUMSTANCES WELL ESTABLISHED REHABILITATION

Citation: Regina v ANG [2001] NSWSC 758
Court: Supreme Court of New South Wales
Date: 4 September 2001
Judge(s): Ireland AJ

Background

The offender was a sixteen-year-old who, on the evening of 9 October 1999 at Emu Plains, pushed his semi-conscious uncle into the Nepean River. The uncle had asked the offender to do this after consuming tablets and large quantities of alcohol, telling the offender he wanted to end his life. The uncle drowned, and his body was later relocated by the offender and two companions to Lapstone Creek, where it was found the following afternoon.

The offender had attended a gathering at the premises where his uncle lived, a location his parents had forbidden him to visit because of drug use there. During the evening, other persons at the premises spiked the offender's drinks with amphetamines without his knowledge or consent. Witnesses at the committal hearing described the offender as "smashed," "stoned," and "well affected" by the time of the events at the river bank.

The offender was originally charged with murder. Upon arraignment in the Supreme Court on 6 July 2001, he pleaded not guilty to murder but guilty to manslaughter on the basis of criminal negligence. The Crown accepted that plea in full discharge of the indictment. The court noted that the offender had indicated his intention to plead guilty to manslaughter before the committal hearing, and that 6 July 2001 represented the first available opportunity to formally enter that plea.

  • What sentence was appropriate for manslaughter by criminal negligence where a range of exceptional mitigating circumstances applied?
  • What weight should be given to the involuntary intoxication of the offender caused by the spiking of his drinks?
  • How should the offender's youth, early plea, genuine remorse, and well-established rehabilitation bear on the sentencing exercise?
  • Whether the circumstances justified a suspension of the sentence of imprisonment under section 12 of the Crimes (Sentencing Procedure) Act 1999.

Decision

Ireland AJ identified the offence as serious, involving the taking of a human life and the unlawful pushing of a semi-conscious person into a river. The court acknowledged that the objective gravity of manslaughter could not be minimised. However, it found that the circumstances surrounding the offence were genuinely exceptional, distinguishing this case from the ordinary range of manslaughter matters.

A central feature was that the offender's intoxication at the time was not voluntary or self-induced in any meaningful sense. His drinks had been spiked by others, apparently as a prank, and the court held that this could not be treated as equivalent to voluntary intoxication. The court also found significant the agreed facts regarding the deceased's mental state, his expressed suicidal ideation, his heavily impaired condition due to alcohol, Ketamine, amphetamines, and cannabis, and his explicit request that the offender push him into the water.

The subjective circumstances weighed heavily in the offender's favour. Since the offence, the offender had been expelled from school following the murder charge, had secured an apprenticeship, was in full-time employment, maintained strong family support, and had made well-established progress toward rehabilitation over the twenty months between the offence and sentencing. The court accepted that his remorse and contrition were genuine. On general deterrence, the court observed that the exceptional circumstances of the case rendered the sentence of limited utility as an example to others.

Ireland AJ concluded that the considerations of rehabilitation warranted paramount emphasis, drawing on the principle articulated in R v Smith (1964) that for a young offender there is rarely a conflict between the offender's interests and the public interest, because the public interest is served by the offender becoming a good citizen. The court exercised its discretion under section 12 of the Crimes (Sentencing Procedure) Act 1999 to suspend the sentence of imprisonment and release the offender on a good behaviour bond with specific conditions.

Orders Made

  • A non-publication and non-broadcasting order covering the names of the offender and the deceased, and any information identifying the offender, was made under section 11 of the Children (Criminal Proceedings) Act 1987.
  • The offender was sentenced to 2 years imprisonment, commencing 4 September 2001 and expiring 3 September 2003.
  • Pursuant to section 12(1)(a) of the Crimes (Sentencing Procedure) Act 1999, the execution of the sentence was suspended for the full 2-year term.
  • Pursuant to section 12(1)(b), the offender was released on a good behaviour bond for 2 years (concurrent with the sentence) on the following conditions:
  • Be of good behaviour in every respect
  • Reside with his parents
  • Not associate with any persons not approved by his parents
  • Continue with his TAFE course and apprenticeship to completion
  • Maintain full-time employment
  • Accept the supervision and direction of Juvenile Justice Community Services Officers, including attendance at the Intensive Programs Unit for offence-specific counselling

Key Takeaways

  • Involuntary intoxication caused by the spiking of a young offender's drinks without his knowledge distinguished this case from one involving voluntary intoxication, and the Supreme Court treated this as a material mitigating factor rather than an aggravating or neutral one.
  • Under section 12 of the Crimes (Sentencing Procedure) Act 1999, a sentence of imprisonment for a serious offence including manslaughter can be suspended where the cumulative weight of exceptional mitigating circumstances, particularly well-established rehabilitation, justifies that course.
  • A conviction for manslaughter by criminal negligence does not automatically foreclose a suspended sentence; the court's discretion remains, and the full matrix of subjective circumstances must be assessed.
  • The principle from R v Smith (1964) that the public interest in a young offender becoming a good citizen rarely conflicts with the offender's own interests was reaffirmed, consistent with earlier New South Wales authority gathered in R v Hungerford and R v GDP.
  • Where an early indication of a guilty plea is made but the first formal opportunity to enter that plea is delayed by legitimate prosecutorial requirements, the court still treated the eventual plea as an early one for the purposes of the discount in R v Thomson and Houlton (2000).

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
- Children (Criminal Proceedings) Act 1987 (NSW), s 11

Cases
- R v Thomson and Houlton (2000) NSW CCA 309
- R v Troja (NSW CCA, 16 July 1991, unreported)
- The Queen v Wade (NSW CCA, 14 April 1989, unreported)
- R v Blacklidge (NSW CCA, 12 December 1995, unreported)
- R v Dodd (1991) 57 A Crim R 349
- R v Hill (1981) 3 A Crim R 397
- R v Smith (1964) Crim LR 70
- R v Hungerford (SC NSW, 17 August 1993, unreported)
- R v GDP (NSW CCA, 24 April 1991, unreported)