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Supreme Court 20 December 2000

Regina v NMTP

[2000] NSWSC 1170 revised - 23

Assault & violenceHomicideFirearms & weapons

Citation: Regina v NMTP [2000] NSWSC 1170
Court: NSW Supreme Court (Criminal Division)
Date: 20 December 2000
Judge(s): Bell J

Background

The offender, identified only by initials, was a young person present at a wedding reception in John Street, Cabramatta on the evening of 6 November 1999. During the evening, a dispute arose between guests at the offender's table and others, escalating into a street fight after one of the other guests summoned friends to attend. The fight involved multiple participants, some using martial arts, and the entire episode was captured on closed-circuit television monitored by nearby police.

The offender intervened in the street fight carrying a .22 Smith and Wesson self-loading pistol and fired four shots. The first shot fatally struck Paul Hoa Long Dinh in the chest. The third shot struck Mr Dinh in the lower calf as he was leaving the scene with his back turned. The fourth shot was directed at Chompeay Kim, who had been involved in the original dispute.

The offender was charged with four counts: murder, firing a firearm in a public place, malicious wounding of Mr Dinh with intent to cause grievous bodily harm, and maliciously discharging a loaded firearm with intent to cause grievous bodily harm to Mr Kim. The jury acquitted the offender of murder and convicted him on the remaining three counts.

  • What sentences were appropriate for each of the three counts on which the offender was convicted?
  • How should the court assess the offender's culpability given the jury's implicit finding that the first shot was fired in lawful defence of others?
  • To what extent should the sentences for the separate offences be served concurrently or cumulatively, having regard to the principle that separate offences should attract separate punishment?
  • What weight should be given to the offender's youth and the requirement under the Children (Criminal Proceedings) Act 1987 that the sentence be served in a detention centre?

Decision

Bell J accepted that when the offender fired the first shot, he was acting in lawful defence of his friends, consistent with the jury's acquittal on the murder count. However, that justification did not extend to the subsequent shots. The second shot was fired only one second after the first, and while the offender had not established a reasonable excuse for it, the court found his culpability was reduced because he likely remained in a state of panic so shortly after a legally justified act.

Different considerations applied to counts three and four. By the time the third shot was fired, Mr Dinh was unarmed, leaving the scene, and had his back to the offender. Bell J characterised shooting at Mr Dinh in those circumstances, with intent to cause serious bodily harm, as a serious offence, notwithstanding the speed at which the overall incident unfolded. The fourth count, involving the shot directed at Mr Kim, arose from the same episode but represented distinct criminal conduct against a different victim.

On the question of accumulation, Bell J applied the principle in Pearce and the Court of Criminal Appeal's reasoning in R v Leroy, finding that wholly concurrent sentences would fail to reflect the separate criminality of the offences against Mr Dinh and Mr Kim. Accordingly, the sentence for count four was made partly cumulative on that for count three, while the sentence for count two ran concurrently with count three.

Pursuant to the Children (Criminal Proceedings) Act 1987, Bell J directed that the entire sentence be served in a detention centre, reflecting the offender's status as a young person.

Orders Made

  • Count 2 (firing a firearm in a public place): 3 months imprisonment, dating from 6 November 1999, to run concurrently with Count 3.
  • Count 3 (malicious wounding of Paul Hoa Long Dinh with intent to cause grievous bodily harm): 3 years imprisonment, dating from 6 November 1999, with a non-parole period of 18 months.
  • Count 4 (maliciously discharging a loaded firearm with intent to cause grievous bodily harm to Chompeay Kim): 2 years imprisonment, commencing 6 November 2000, with a non-parole period of 12 months.
  • Earliest parole eligibility: 5 November 2001.
  • Pursuant to s 50 of the Crimes (Sentencing Procedure) Act 1999, the offender to be released on parole at the expiration of the non-parole period.
  • Pursuant to s 19 of the Children (Criminal Proceedings) Act 1987, the entire sentence to be served in a detention centre.

Key Takeaways

  • A jury's acquittal on murder can inform the sentencing court's assessment of culpability for related firearm offences, particularly where the acquittal implies a finding that the initial use of force was in lawful defence of others.
  • Where multiple shots are fired in rapid succession, the court may treat shots fired only seconds apart differently, acknowledging residual panic following a legally justified act, while still finding criminal culpability for shots that cannot themselves be justified.
  • Firing a weapon at a person who is unarmed, leaving the scene, and presenting no ongoing threat is treated as a serious offence regardless of whether the offender had lawful justification for an immediately preceding act.
  • Under the principle in Pearce, where offences involve distinct criminal acts against different victims arising from the same episode, wholly concurrent sentences risk failing to reflect the separate criminality of each offence.
  • The Children (Criminal Proceedings) Act 1987 requires sentences imposed on young offenders in the Supreme Court to be served in a detention centre rather than an adult correctional facility.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), including s 33 (malicious wounding with intent) and s 93G(1)(b) (firing a firearm in a public place)
- Criminal Procedure Act 1986 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW), s 19
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 50

Cases:
- R v Crombie [1999] NSWCCA 297
- R v Coleman (1990) 19 NSWLR 467
- R v Fletcher-Jones (1994) 75 A Crim R 381
- R v GDP (1991) 53 A Crim R 112
- R v Pham (1991) 55 A Crim R 128
- R v Leroy [2000] NSWCCA 302
- Pearce v The Queen (implied by reference to "Pearce" in the judgment)