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Supreme Court 20 June 2008

R v SIN

[2008] NSWSC 621

Assault & violenceHomicideFirearms & weapons
CRIMINAL LAW SENTENCE PLEA OF GUILTY PROSPECTS OF REHABILITATION FINDING OF SPECIAL CIRCUMSTANCES

Citation: R v SIN [2008] NSWSC 621
Court: Supreme Court of New South Wales
Date: 20 June 2008
Judge(s): McClellan CJ at CL

Background

The offender pleaded guilty to the manslaughter of an 18-year-old man following a violent confrontation between two groups of young people outside a shopping centre in Liverpool on 4 August 2005. The incident began when two groups, one of Lebanese origin and one of Asian origin, agreed to fight at Westfield Liverpool. After an initial brawl, the Asian group called for reinforcements, and the offender was contacted by phone and driven to the scene armed with a knife.

During the resumed fight, the deceased attempted to flee. The offender ran alongside him and slashed him with a Parmesan cheese cutting knife, inflicting multiple wounds. The deceased sought refuge in a nearby shop and died following surgery in the early hours of 5 August 2005. The post-mortem confirmed he died from multiple wounds causing blood loss from the right lung and liver.

The offender did not initially accept responsibility. Shortly before trial, he disclosed to his sister that he intended to plead guilty because the offence had been troubling his conscience. The court proceeded to sentencing on that plea.

  • What sentence was appropriate for manslaughter by an unlawful and dangerous act involving the use of a knife in a group brawl?
  • What weight should be given to the offender's guilty plea, personal circumstances, and prospects of rehabilitation?
  • Whether special circumstances existed to justify extending the balance of term beyond the standard ratio of non-parole period to overall sentence.
  • Whether the sentencing pattern for manslaughter established in the case law constrained the sentence available at first instance.

Decision

McClellan CJ at CL found that the offender had used the knife with the intention of inflicting harm and slowing the deceased so that further blows could be landed, not with the specific intention of inflicting deep wounds. The slashing motion used was consistent with the wound pattern revealed at post-mortem. The court was satisfied beyond reasonable doubt that the wounds inflicted by the offender to the right side of the deceased's body caused his death.

The court acknowledged both aggravating and mitigating factors. On the aggravating side, the offender attended the scene armed, the knife was a significant and sharp weapon, multiple wounds were inflicted on a person attempting to flee, and the offence occurred in a public place in front of bystanders. On the mitigating side, the court accepted the offender's guilty plea, his Cambodian refugee background, his difficult upbringing, limited formal education, and a psychologist's assessment indicating genuine prospects of rehabilitation. The guilty plea was given a discount at the lower end of the available range, having been entered late.

The court noted that, while the sentence might appear lenient relative to the 25-year maximum, it was required to reflect the established sentencing pattern for manslaughter as confirmed by the Court of Criminal Appeal in R v Forbes. The court observed that any departure from that pattern would require comprehensive review at appellate level and was not available to a sentencing judge at first instance.

A finding of special circumstances was made, extending the balance of term beyond the standard proportion, on the basis that the offender would require structured support upon release to reintegrate into the community.

Orders Made

  • The offender was convicted of the manslaughter of Samir Chouman.
  • Sentenced to imprisonment with a non-parole period of 7 years and a balance of term of 3 years and 6 months.
  • Sentence backdated to commence 21 March 2007, accounting for time already spent in custody.
  • First eligible parole date: 20 March 2014.

Key Takeaways

  • A sentence for manslaughter by unlawful and dangerous act must reflect the established sentencing pattern confirmed by the Court of Criminal Appeal; a first-instance judge is not free to depart from that pattern absent appellate review.
  • The Supreme Court found that arming oneself before travelling to a fight, and using a weapon on a person attempting to flee, were significant aggravating features, even where the offender did not intend to inflict a deep wound.
  • Special circumstances justifying an extension of the balance of term were established where the offender's background and circumstances indicated a particular need for support and supervision upon release.
  • A late guilty plea attracted a discount, but only at the lower end of the range, given that it was entered shortly before trial rather than at the earliest opportunity.
  • The court noted that the presence of intergroup violence involving weapons in public spaces was a troubling community development, though it found no evidence the offence was motivated by racial or ethnic prejudice.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- R v Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377