Citation: R v Nguyen [2013] NSWSC 197
Court: Supreme Court of New South Wales
Date: 15 March 2013
Judge: Fullerton J
Background
The offender pleaded guilty to the manslaughter of Constable William Crews, a 26-year-old NSW Police officer, and to wounding Constable Crews with intent to inflict grievous bodily harm. Both offences occurred on 8 September 2010 at a unit complex in Bankstown, when police were executing a search warrant in the basement car park.
Officers approaching what they believed to be the correct garage announced themselves as police on multiple occasions. The offender, apparently believing the plainclothes officers were not genuine police, emerged from the garage in a crouched position pointing a pistol. He fired first, wounding Constable Crews in the arm. Constable Crews then discharged three shots while drawing his weapon, and Detective Senior Constable Roberts fired one shot aimed at the offender. That shot struck Constable Crews in the neck and proved fatal. The offender subsequently attempted to use his jammed firearm and simulated pointing the battering ram as a weapon before retreating.
The Crown accepted the guilty pleas to manslaughter (on the basis of excessive self-defence) and wounding with intent, in satisfaction of the more serious charge of shooting with intent to murder. Two further offences, unlawful possession of the prohibited firearm used in the incident and possession of methylamphetamine for supply, were listed on a Form 1 to be considered in sentencing, though the court ultimately declined to take the drug offence into account.
Legal Issues
- What was the appropriate sentence for manslaughter by excessive self-defence where the victim was a serving police officer?
- What was the appropriate sentence for wounding with intent to inflict grievous bodily harm against a police officer?
- What discount, if any, should apply for the guilty pleas given their late timing and the offender's subsequent unsuccessful application to reverse them?
- How should the Form 1 firearms offence be treated in sentencing, and why should the drug offence on the Form 1 be disregarded?
- How should the standard non-parole period for the wounding offence operate as a sentencing guidepost following Muldrock v R?
Decision
Fullerton J found the offences to be of considerable objective seriousness. The offender had armed himself with a loaded prohibited pistol, used it to shoot a police officer who had clearly identified himself, and continued to pose a threat after firing. The victim's status as a police officer performing his lawful duties was a significant aggravating feature.
The court accepted that the offender genuinely, though unreasonably, believed the plainclothes officers were not police, and that this mistaken belief underpinned the excessive self-defence basis of the manslaughter plea. However, this did not substantially reduce the gravity of the conduct. The offender's subjective circumstances, including his background and personal history, were weighed against the seriousness of taking a young officer's life.
A discount of 10 per cent was applied to each sentence for the guilty pleas, despite their late entry after the matter had been listed for trial. Fullerton J noted that the reason for the timing of the pleas, and the failed attempt to reverse them, were irrelevant to assessing their utilitarian value. The firearms possession offence on the Form 1 was taken into account, but the drug offence was not, for reasons detailed in the judgment.
Fullerton J acknowledged the unique factual circumstances of the case, including the unusual chain of events by which the fatal shot was fired by a colleague rather than the offender himself, and noted that comparable sentencing cases and statistics provided little useful guidance.
Orders Made
- Manslaughter: imprisonment of 9 years and 6 months, comprising a non-parole period of 7 years and a balance of term of 2 years and 6 months.
- Wounding with intent to inflict grievous bodily harm: imprisonment of 6 years and 3 months, comprising a non-parole period of 4 years and 9 months and a balance of term of 1 year and 6 months.
- Both sentences backdated to commence 8 September 2010, with the offender first eligible for parole on 7 September 2017.
Key Takeaways
- Manslaughter by excessive self-defence can arise where an offender genuinely but unreasonably believes he is acting in self-defence; this does not eliminate, and may only partially mitigate, the objective seriousness of the offence.
- The victim's status as a police officer performing lawful duties operated as a significant aggravating factor in determining the appropriate sentence.
- A late guilty plea still attracts a utilitarian discount, even where the plea was entered only after the matter was listed for trial and the offender subsequently sought (unsuccessfully) to withdraw it; neither of those circumstances affects the discount's availability.
- Under the approach confirmed in Muldrock v R (2011) 244 CLR 120, the standard non-parole period for the wounding offence functioned as a guidepost rather than a fixed benchmark, to be weighed alongside all relevant sentencing factors.
- Factually unique cases, where the causal chain between the offender's conduct and the victim's death is indirect and involves the intervening act of a third party, can present particular difficulty in identifying comparable sentences, and reported cases may offer limited guidance.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(b), 29, 33(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 33(2)
- Firearms Act 1996 (NSW), s 7(1)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
Cases:
- Muldrock v R [2011] HCA 39; 244 CLR 120
- Attorney-General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, Re [2002] NSWCCA 518; 56 NSWLR 146
- Iskov v R [2011] NSWCCA 241
- Josefski v R [2010] NSWCCA 41
- R v Penisini [2004] NSWCCA 339
- R v De Simoni [1981] HCA 31; 147 CLR 383