Citation: Regina v Nam [2006] NSWSC 802
Court: Supreme Court of New South Wales
Date: 2 August 2006
Judge(s): Adams J
Background
The offender was a farmer who, together with his wife, infant son, and elderly parents, was subjected to a violent and coordinated attempt at unlawful eviction from a farm property near Arthurville, NSW. The eviction was orchestrated by a man later described by the court as a professional standover man, who was paid $9,000 to remove the family and arrived with a group of men, at least one of whom displayed a firearm. When police attended and departed without resolving the situation, the group remained on the property and continued to intimidate the Nam family through the night.
Shortly after midnight on 23 July 2004, the situation escalated into serious violence. The offender, responding to what the court found was a deliberate campaign of terror directed at his family, killed Michael Pestano and caused grievous bodily harm to two other members of the group, Frank Cocker and Ronald Howell.
The offender pleaded guilty on 13 July 2006 to the manslaughter of Pestano (on the basis of excessive self-defence) and to two counts of maliciously inflicting grievous bodily harm on Cocker and Howell. The sentencing hearing concerned the appropriate penalties for all three offences.
Legal Issues
- What sentence was appropriate for manslaughter by excessive self-defence, having regard to the extreme provocation and terror inflicted by the victims and their associates?
- How should the court treat the grossly provocative and criminal conduct of the deceased and other victims in reducing the offender's moral culpability?
- What weight should be given to the offender's personal circumstances, including time spent in pre-sentence custody, the accumulation of sentences, and prospects of rehabilitation?
- Whether special circumstances existed justifying a longer-than-usual parole period.
Decision
Adams J found that the offending arose out of circumstances largely not of the offender's making. The victims and their associates had engaged in a deliberate, sustained, and criminal campaign to terrorise the Nam family into leaving their home, including the implied display of a firearm, threats to demolish the house, and persistent intimidation through the night. The court characterised this conduct as a violent criminal enterprise that made a violent response almost inevitable.
The court acknowledged the seriousness of the offences in absolute terms: manslaughter carries a maximum of 25 years and each grievous bodily harm count carries a maximum of 7 years. However, the grossly provocative conduct of the victims significantly reduced the offender's moral culpability. Adams J was careful to note that the law does not treat unlawfully killed persons as worth less because of their character, but held that the deceased's conduct, rather than his character, was the key consideration in mitigation.
The court found the offender's prospects of reoffending to be low. His guilty pleas, the circumstances of the offending, and the near two years already spent in maximum security custody (including nine months in protection) all pointed toward a reduced sentence. The absence of rehabilitative programs available to remand prisoners was also taken into account.
Special circumstances were found to exist, justifying a longer-than-usual parole period to assist with rehabilitation and reintegration. The court back-dated the manslaughter sentence by approximately four months to account for pre-bail custody. The sentences for the grievous bodily harm offences were partially accumulated to reflect the seriousness of those separate victims' injuries, but the overall structure resulted in the offender becoming eligible for parole on the date of sentencing.
Orders Made
- Ronald Howell (grievous bodily harm): Fixed term of 18 months imprisonment, commencing 8 December 2004 and expiring 7 May 2006.
- Frank Cocker (grievous bodily harm): Fixed term of 18 months imprisonment, commencing 3 February 2005 and expiring 2 August 2006.
- Manslaughter of Michael Pestano: Non-parole period of 2 years, commencing 3 August 2004 (back-dated four months for pre-bail custody) and expiring 2 August 2006; balance term of 2 years and 6 months, commencing 3 August 2006 and expiring 2 February 2009.
- The offender became eligible for parole as of the date of sentencing, subject to a Parole Board order.
Key Takeaways
- Where victims of a manslaughter are themselves the instigators of sustained, deliberate, and criminal violence against an offender and his family, that conduct can significantly reduce the offender's moral culpability for sentencing purposes, even though the law does not diminish the intrinsic seriousness of a human life unlawfully taken.
- A conviction for manslaughter by excessive self-defence does not preclude the sentencing court from treating the provocative and criminal conduct of the deceased as a major mitigating factor going to culpability.
- Special circumstances justifying a longer parole period can arise from the combination of a first term of imprisonment, accumulated sentences, and the limited rehabilitative programs available to remand prisoners.
- The Supreme Court treated the unlawfulness of the eviction attempt, including the probable commission of an offence under s 2AA of the Landlord and Tenant Act 1899, as part of the overall context establishing that the victims were engaged in a criminal enterprise from the outset.
- Pre-bail custody may be taken into account by back-dating the commencement of a sentence, and time spent in maximum security on remand, particularly in protection, is a relevant factor in assessing the weight of a custodial term already served.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Landlord and Tenant Act 1899 (NSW), s 2AA
Cases cited: No cases were cited in the provided judgment text.