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Supreme Court 9 November 2007

Regina v Lu

[2007] NSWSC 1259

Assault & violenceHomicide
CRIMINAL LAW SENTENCE PLEA OF GUILTY

Citation: Regina v Lu [2007] NSWSC 1259
Court: Supreme Court of New South Wales
Date: 9 November 2007
Judge(s): Price J

Background

The offender pleaded guilty to the manslaughter of a 21-year-old man, Phillip Rousianos, who was fatally stabbed during a retaliatory attack in Liverpool in October 2005. The offending arose from a prior incident approximately one month earlier, in which the deceased had punched the offender's girlfriend and had punched and kicked the offender while he was on the ground. The offender was motivated by a desire for revenge.

On the day of the killing, the offender spotted the deceased walking along a street with his mother and younger brother. He returned home, collected a companion (Pham), and the two drove back armed with an iron bar, intending to assault the deceased and cause him actual bodily harm. The offender chased the deceased onto a residential property, where Pham produced a knife and inflicted a fatal stab wound to the deceased's heart. The offender had no knowledge that Pham was carrying a knife.

The Crown accepted the guilty plea to manslaughter in full discharge of a murder indictment. The offender was already serving a sentence in the District Court for an unrelated offence.

  • What was the appropriate sentence for the manslaughter, having regard to the offender's objective and subjective circumstances?
  • What discount should apply to reflect the guilty plea?
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio.
  • Whether the manslaughter sentence should run concurrently, partially concurrently, or cumulatively upon the existing District Court sentence.
  • Whether the offender was disadvantaged by the two matters not being dealt with together.

Decision

Price J identified the starting point for any manslaughter sentencing exercise as the unlawful taking of a human life, noting that the objective gravity of the offence was substantial. The offender had organised and led the attack, procured a companion, armed himself with an iron bar, and chased a fleeing victim onto private property where the victim was cornered. Although it was Pham who produced the knife and delivered the fatal blow, the court found the offender's conduct substantially contributed to the death and made the fatal confrontation possible.

The court determined an undiscounted starting point of 11 years imprisonment. A 15 per cent discount was applied to reflect the utilitarian value of the guilty plea, reducing the sentence to 9 years and 4 months. The court acknowledged the offender's subjective circumstances, including prior drug addiction, genuine remorse, and a difficult personal history, but gave limited weight to these factors given the objective seriousness of the offending.

Price J rejected the submission that the manslaughter sentence should run wholly concurrently with the existing District Court sentence. The court found the two sets of offending were discrete and independent, the present offence being driven by revenge rather than drug addiction. Full accumulation was ordered, as partial accumulation would not adequately reflect the criminality involved.

Special circumstances were found, given that the manslaughter sentence was made cumulative upon an existing sentence. This justified a longer than usual balance of term relative to the non-parole period.

Orders Made

  • The offender was convicted of manslaughter.
  • Sentenced to imprisonment with a non-parole period of 6 years and 2 months, commencing 30 April 2009 and expiring 29 June 2015.
  • Balance of term of 3 years and 2 months, commencing 30 June 2015 and expiring 29 August 2018.
  • Earliest date of eligibility for release to parole: 29 June 2015.

Key Takeaways

  • A person who organises and leads a retaliatory attack, even without knowing a co-offender carries a weapon, may be convicted of manslaughter where their unlawful and dangerous acts substantially contribute to the victim's death.
  • The undiscounted starting point for this manslaughter was set at 11 years, reflecting the organised and premeditated nature of the assault, the use of a weapon by the offender, and the vulnerability of the victim who was cornered while seeking help.
  • A guilty plea to manslaughter attracted a 15 per cent discount for utilitarian value, consistent with the approach taken in cases such as R v Thomson; R v Houlton.
  • Where two sets of offending are independent in their motivation and character, a sentencing court may order full accumulation of sentences even where a common background factor, such as drug addiction, is present in one matter.
  • Special circumstances justifying a non-standard non-parole ratio can arise where a sentence is made cumulative upon an existing sentence, as the total period of supervision warrants a longer post-release period.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 21A(2)(i), 21A(2)(n), 21A(3)(i)
- Evidence Act 1995 (NSW), s 131(5)(b)

Cases:
- R v Blacklidge (unrep, NSWCCA, 12 December 1995)
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- R v Simpson (1992) 61 A Crim R 58
- R v Close (1992) 31 NSWLR 743
- Cahyadi v Regina [2007] NSWCCA
- Johnson v The Queen (2004) 78 ALJR 616
- Ahmad v Regina [2006] NSWCCA 177
- R v Ponfield (1999) 48 NSWLR 327
- R v Previtera (1997) 97 A Crim R 76
- R v McNaughton [2006] NSWCCA 242
- R v Fernando [2002] NSWCCA 28
- R v Elyard [2006] NSWCCA 43
- R v Buddle [2005] NSWCCA 82
- R v M.A.K; R v M.S.K [2006] NSWCCA 381
- Regina v Forbes [2005] NSWCCA 377