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Supreme Court 11 March 2016

R v Wang

[2016] NSWSC 222

Assault & violenceHomicide
MANSLAUGHTER UNLAWFUL AND DANGEROUS ACT

Citation: R v Wang [2016] NSWSC 222
Court: Supreme Court of New South Wales
Date: 11 March 2016
Judge: RS Hulme AJ

Background

The prisoner and the deceased were close friends and housemates. On the evening of 4 February 2014, both men participated in a drinking game at their shared unit along with several other guests. By the early hours of the following morning, all participants were heavily intoxicated.

An argument broke out between the two men, escalating from pushing and shoving into a violent altercation. The prisoner retrieved a knife from his bedroom and ultimately stabbed the deceased in the left upper leg, penetrating the femoral artery. The deceased bled to death from that wound. The prisoner left the building immediately after the stabbing, travelling to Perth within a day or so, before presenting himself to police on 14 February 2014.

A jury acquitted the prisoner of murder but returned a verdict of guilty on the charge of manslaughter. The foreperson informed the court that the jury's unanimous basis for the verdict was an unlawful and dangerous act. The matter then proceeded to sentencing.

  • Whether manslaughter by unlawful and dangerous act was the correct sentencing basis, consistent with the jury's verdict
  • Whether the prisoner intended to kill or inflict grievous bodily harm on the deceased
  • What weight to give to the prisoner's intoxication at the time of the offence, in light of the Crimes and other Legislation Amendment (Assault and Intoxication) Act 2014
  • What discount applied for the prisoner's plea offer and cooperation with police
  • Whether special circumstances existed to justify a variation to the standard non-parole period ratio
  • What the appropriate sentence was, having regard to comparable manslaughter cases

Decision

Hulme AJ agreed with the jury that the appropriate sentencing basis was manslaughter by unlawful and dangerous act. The judge reasoned that, despite the prisoner's anger and resort to a knife, the prior close friendship between the two men made it difficult to conclude beyond reasonable doubt that the prisoner intended to kill or cause grievous bodily harm. The locations of the wounds, being the arm and leg rather than vital areas of the body, further undermined any inference of a murderous intention.

The judge found the precise circumstances surrounding the meat cleaver, which had been found broken and hidden, raised additional possibilities inconsistent with a proven intent to kill. On that basis, the court declined to sentence on any higher basis than the jury's verdict supported.

On the question of intoxication, Hulme AJ held that the Crimes and other Legislation Amendment (Assault and Intoxication) Act 2014 expressly precluded the prisoner's intoxication from operating as a mitigating factor. However, the judge identified several genuine mitigating considerations: the prisoner's good character, genuine remorse, strong rehabilitation prospects, and the low likelihood of reoffending. The prisoner also received a 17.5% discount, which the judgment references in calculating the final sentence, attributable to his cooperation and plea offer.

The court found special circumstances existed, having regard to the prisoner's youth, his first period of incarceration, his good rehabilitation prospects, and the additional difficulties his limited English would create in custody. Those circumstances justified departing from the standard ratio between the non-parole period and the total sentence. Hulme AJ assessed the starting point at eight years, discounted to just over six and a half years, before applying the special circumstances finding to set the final sentence.

Orders Made

  • The prisoner was sentenced to imprisonment with a non-parole period of 4 years and 6 months, commencing 14 February 2014
  • A balance of term of 2 years was imposed
  • First eligible parole date recorded as 14 August 2018

Key Takeaways

  • The Supreme Court confirmed that, where a jury foreperson indicates the unanimous basis for a manslaughter verdict (here, unlawful and dangerous act rather than excessive self-defence or provocation), the sentencing judge retains the ultimate responsibility to determine the proper sentencing basis, but in this case agreed with the jury's stated basis.
  • An absence of evidence of intent to strike vital areas of the body, combined with a close prior friendship between the prisoner and the deceased, was sufficient to prevent the court from finding beyond reasonable doubt that the prisoner intended to kill or cause grievous bodily harm.
  • Under the Crimes and other Legislation Amendment (Assault and Intoxication) Act 2014, voluntary intoxication at the time of an assault causing death cannot be treated as a mitigating factor at sentencing.
  • Special circumstances justifying a reduction in the non-parole period ratio may be established through a combination of factors including youth, a first custodial sentence, strong rehabilitation prospects, and the additional hardship of serving a sentence with limited English proficiency.
  • Comparable manslaughter sentences in the cases reviewed ranged widely, from three years with a 16-month non-parole period to 13 years with a seven-year non-parole period, reflecting the highly fact-specific nature of culpability assessments in unlawful and dangerous act manslaughter cases.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes and other Legislation Amendment (Assault and Intoxication) Act 2014 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases
- R v Dyer [2014] NSWSC 1809
- R v Forbes (2005) 160 A Crim R 1
- R v See [2001] NSWSC 776
- R v Smith [2008] NSWSC 201