[Home] [Databases] [WorldLII] [Search] [Feedback] Supreme Court of New South Wales

You are here: 

R v See [2001] NSWSC 776 (7 September 2001)

Last Updated: 11 September 2001

NEW SOUTH WALES SUPREME COURT

CITATION: R v SEE [2001] NSWSC 776



CURRENT JURISDICTION:

FILE NUMBER(S): 70095/00

HEARING DATE{S): 10 August 2001

JUDGMENT DATE: 07/09/2001

PARTIES:
Regina
Choon Hai SEE

JUDGMENT OF: Hulme J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
Crown: Mr P Miller
Prisoner: Ms L Flannery

SOLICITORS:
Crown: SE O'Connor
Prisoner: Legal Aid Commission of NSW


CATCHWORDS:


ACTS CITED:


DECISION:
See paragraph 29


JUDGMENT:

- 12 -
IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

70095/00

HULME J
Friday, 7 September 2001

R v Choon Hai SEE

REMARKS ON SENTENCE

1 His Honour: On 30 July 2001, Choon Hai See was indicted on a charge that on 12 September 2000 he attempted to use an offensive weapon namely a knife with intent to assault Zee Wei Ang, also known as Simon Ang, thereby occasioning him actual bodily harm. To this charge he pleaded guilty.

2 He was then indicted on a charge that on 12 September 2000 he did murder Han Cheat Ang, also known as Jack Ang. To this charge the Prisoner pleaded not guilty. On 10 August last, a jury found him not guilty of murder, but guilty of manslaughter and he now stands to be sentenced for both offences. Pursuant to s33B of the Crimes Act, the lesser charge carries a maximum penalty of 12 years. Under s24, the maximum penalty for manslaughter is 25 years.

3 It falls to me to decide, in a manner consistent with the jury’s verdict, the facts upon the basis of which the Prisoner is to be sentenced. Insofar as any matters are to be used adversely to the Prisoner, I must be satisfied of them beyond reasonable doubt. In summary the circumstances of the offences were as follows.

4 The Prisoner and the two victims were employees of a Chinese restaurant which operated within the premises of the Mingara Recreation Club at Tumbi Umbi. The three also lived together in premises rented by the proprietor of the restaurant for such employees. For some period prior to 12 September, the Prisoner had been the butt of some puerile teasing. He had been kicked on the behind three times while squatting and an apple core or egg shells had been thrown at him twice. The Prisoner seems to have mentioned that he had a girlfriend and the deceased said the Prisoner was old and any young girl would fall in love with the deceased rather than the Prisoner. On one occasion the deceased, who was only 17, said the Prisoner’s private part was very small, a remark which elicited laughter from others nearby.
.
5 Other incidents arose out of the fact that the Prisoner and the deceased were in Australia on 3 months tourist visas and were not supposed to be working. Apparently Immigration officials had on at least one prior occasion raided the premises in which the 3 persons lived. The Prisoner had come to Australia to earn money and had paid some $2,500 to an agent in Malaysia for the airfare and a job and did not want to lose the benefit of this. To minimise the possibility of being caught at his residence, the Prisoner adopted the practise of leaving home early, many hours before he was due to commence work. The deceased, who would seem to have been instrumental in helping the Prisoner obtain the job at the restaurant, laughed at that and said that if he got caught, he would dob the Prisoner in.

6 There seem also to have been two occasions where the deceased raised the topic of stabbing the Prisoner to death. On one occasion he showed the Prisoner a knife on some nail clippers and asked him whether he believed that that knife could stab him to death. On another occasion, talking on a phone in the Prisoner’s presence, he said he would do so. These incidents caused the Prisoner to feel scared, although it is not clear for how long.

7 On 12 September there had been some further teasing involving the deceased and a co-worker Wilson Ming. The Prisoner and the deceased were moving goods. Mr Ming suggested that the deceased not help the Prisoner. The deceased acquiesced to the extent of refusing to help with heavy items. The Prisoner complained, Mr Ming offered to fight him and both went outside the restaurant and engaged in some physical conflict. Although neither seems to have been significantly hurt, the evidence indicated that the Prisoner was getting the better of Mr Ming when others intervened. Both went back to work but Mr Ming said to the Prisoner words to the effect, “tonight when we go home, I will assault you to death.” Later the deceased said to the Prisoner that he deserved to be assaulted by Mr Ming and indicated he was looking forward to seeing a show when they went home. The deceased said he would be visiting the Prisoner in a hospital or the police station and if he died he would give the Prisoner’s family $10.00, “dead people’s money.” I have no doubt that these matters introduced a degree of fear in the Prisoner.

8 Some time later and while the Prisoner was in the kitchen using what can best be described as a pointed carving knife to cut lemons, the deceased repeated teasing along these lines. The deceased also remarked that he had wanted for some time to hit the Prisoner and said something to the effect “if you dare, you come over to chop me”.

9 The Prisoner charged at him and did so. The evidence is not clear as to the details of the early stages of the fight which ensued although it would seem that the early injury to the deceased was in the mouth area. There was a scuffle during which both were on the floor. At some stage while the deceased was lying on the ground, the Prisoner stabbed him a number of times in the chest. Others induced the Prisoner to surrender the knife. Then the Prisoner grabbed a meat cleaver and chopped or swung at the deceased with this several times.

10 The evidence of Dr Oettle established that the deceased suffered 30 stab or incised wounds. These included a wound to the deceased’s neck which Dr Oettle described as deep, cutting through the wind pipe and left carotid artery and 115 millimetres long; 2 stab wounds to the chest, one 160mm deep and penetrating the right lung, the other 170 mm deep and penetrating both lungs - T233; 3 longitudinal wounds to the face, two about 70 mm long and the third extending from the mouth to the lateral aspect of the left cheek, and 2 incised wounds to the abdomen, one 110 and the other 190 mm long through which part of the contents of the abdominal cavity protruded. I am satisfied that the two wounds to the abdomen and that to the neck were inflicted by the meat cleaver.

11 The Prisoner then ran upstairs. I am not satisfied that he had any particular intention at that time but having arrived on the next floor, he saw Simon Ang by whom he had also been teased. Still armed with the meat cleaver he commenced to chase this victim through the restaurant and in the presence of its patrons and staff. In the course of this chase, one of the patrons called out to the Prisoner who stopped dead in his tracks and then handed over the meat cleaver. Others then escorted the Prisoner away, he was treated by ambulance officers and a little later arrested. He has been in custody ever since.

12 One issue which falls for determination is whether in respect of the offence of manslaughter, the Prisoner should be sentenced upon the basis merely of having caused death by an unlawful and dangerous act or upon the basis of provocation reducing murder to manslaughter. Neither the Crown nor Counsel for the Prisoner contested that the latter finding should be made and I am certainly satisfied that it should. The question then arises whether the Prisoner had an intention to kill or merely an intention to do grievous bodily harm. Although I am not sure that, in the circumstances of this case, it matters, I am not satisfied that the Prisoner had an intention to kill. My reason for that conclusion is as follows. During at least much of the attack, the Prisoner was utterly out of control. In these circumstances I do not regard evidence as to what happened during the latter stages as providing any foundation for a conclusion that at the beginning his intent was to kill. The ferocity of the attack from shortly thereafter was such as to make me doubt whether at that stage the Prisoner was thinking with sufficient clarity to have in mind an intent to kill as distinct from merely wreaking great damage on the deceased.

13 Lest it be thought the matter has been overlooked, I should refer to the fact that at times the Prisoner said that he had attacked the deceased to teach him a lesson by giving him a cut and to scare him. Except insofar as it is limited by reference to “a” cut, the former statement is not inconsistent with what I regard as the explanation for the attack. The Prisoner’s personality and/or history were such that there were limits to what he could endure. He was pushed beyond those limits and reacted. Stopping the teasing or punishing the offender may well have been in his mind but I do not regard these things as a total explanation. I do not regard the Prisoner’s intention at the relevant time as limited to scaring.

14 Before I turn to the significance of these findings, it is convenient to say something of the Prisoner’s subjective circumstances. He has no criminal record. He was born on 18 April 1971. He lived in a fishing village, leaving school when he was about 17. His father did not earn much and the Prisoner worked from the time he was 8, giving his earnings to his mother. At age 19 he went to Singapore to work in a shipyard. There he earned enough money to purchase a house for his parents in their village. He considered work in the shipyard dangerous, so he took out insurance policies also, at least in part, in their interests. He seems to have been teased – he used the terms “bullied and intimidated” - in the shipyard and in 1997 resigned.

15 Not long after, when his mother became ill, he decided to return to Malaysia to look after her and there purchased a van with a view to starting a business. That did not succeed. He also started a relationship with a girl. His parents disapproved and in consequence the relationship broke up. In July 2000 he came to Australia to earn some money in the circumstances I have indicated. In the restaurant, the Prisoner earned $400 per week working from 10am to 9pm with two 20 minute and one 1½ hour breaks during the day.

16 The theme of being the butt of teasing or bullying recurs during the evidence. In the witness box the Prisoner said that during all of his life people had been picking on him. He said something similar in his ERISP. In a letter tendered during the sentencing proceedings, the Prisoner’s mother and father said that at school the Prisoner was often bullied and would sometimes return home in tears. He did not fight but was beaten up, was not happy and was rarely seen smiling. In other respects they confirmed much of what the Prisoner had said concerning his past.

17 During the course of the trial, Dr Lucas, a psychiatrist gave evidence that at the time of the offence, the Prisoner was suffering from an adjustment disorder with a depressive condition falling short of a major depressive episode though of moderate severity. Dr Lucas attributed this largely to the stressors which I have mentioned. The doctor pointed out that whereas in Singapore the Prisoner could escape work place problems by avoidance, his circumstances here – financial, working illegally on a visitor’s visa and unable to speak English – did not permit the same response. In a later report Dr Lucas said that the Prisoner did not have characteristics suggesting a high risk of future dangerous conduct but given the incident with which I am concerned, the risk of future offending is slightly above that of a similar aged male who has not offended in the past.

18 In custody the Applicant has acquired some certificates for courses in reading and writing and oral expression. Nevertheless, I have no doubt that relative unfamiliarity with the English language will make time in prison harder for him than otherwise, as will the fact that he is away from family and friends. This is not a case where, putting aside the migration laws, the Prisoner has come to Australia to offend and both of the matters mentioned argue for some consideration in sentencing. It is, of course, his first time in custody and, in totality, these matters justify a finding of special circumstances. In accordance with authority, I ignore the fact that at the conclusion of his incarceration, the Prisoner is likely to be deported.

19 Shortly after the Prisoner was taken aside at the Recreation Club, he expressed sorrow to his employer for what had occurred. He freely admitted his involvement during his interview with the police and did so in the witness box. Some weeks before the trial he had given instructions to plead guilty to manslaughter and although an offer to this effect, I infer in full satisfaction of the indictment, was rejected by the Crown, the defence case was run on the basis that he was guilty of manslaughter. He did not give evidence on sentence but a letter from the prison chaplain records that the Prisoner is remorseful. Having regard to his nature as revealed from his history, I accept that he is remorseful for what he did. That fact will be reflected in the sentence.

20 In Thompson and Houlten [2000] NSWCCA 309; (2000) 115 A Crim R 104 the Court of Criminal Appeal laid down as a guideline that a court should allow and be seen to allow a discount from the sentence which would otherwise be imposed for the utilitarian value of a plea. Because the Crown would not accept the plea offered in this case, there was no value to the justice system in the offer. Nor was it repeated by the Prisoner’s plea entered at the commencement of the trial. On the other hand, the trial was run as I have indicated. Because of the absence of any, or any significant utilitarian value, and despite the other matters to which I have referred, it seems to me inappropriate to allow any discount on account of any utilitarian value. And, despite what was said in Thompson and Houlten as to the strength of the Crown case in this connection, it seems to me relevant in circumstances such as here to bear in mind that the difficulties of opposing a manslaughter verdict were insuperable.

21 Many of the factors relevant to sentencing in a case such as this were adverted to by Hunt CJ at CL in Alexander (1994) 78 A Crim R 141. Particularly because both victim and offender and their families are foreign or of foreign extraction, it may be appropriate to repeat them:-

“The sentence to be imposed for any crime must take into account the many different purposes which that sentence is expected to serve – the protection of society, personal and public deterrence, retribution and reform. But, as the High Court in Veen (No. 2) went on to point out:

“The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.”

In the present case, I am satisfied that there could be no concern for the protection of society, and no need for personal deterrence or reform, so far as this prisoner is concerned. I am satisfied that he is never likely to react in this way again.

It is nevertheless always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without such an assessment the other factors requiring consideration before arriving at the proper sentence to be imposed cannot properly be given their place. Except in well defined circumstances such as the youth or the mental incapacity of the offender, public deterrence is generally regarded as the main purpose of punishment, and the subjective considerations relating to the particular prisoner (however persuasive) are necessarily subsidiary to the duty of the courts to see that the sentence which is imposed will operate as a powerful factor in preventing the commission of similar crimes by those who may otherwise be tempted by the prospect that only light punishment will be imposed. Retribution, or the taking of vengeance for the injury which was done by the prisoner, is also an important aspect of sentencing. Not only must the community be satisfied that the offender is given his just desserts, it is important as well that the victim, or those who are left behind, also feel that justice has been done.

The tensions involved in the imposition of the appropriate sentence in a provocation case – where necessarily there has been at the same time both a loss of self control and an intention to kill or to inflict grievous bodily harm – were discussed by the former Chief Justice, Sir Laurence Street, when speaking for the Court of Criminal Appeal in 1981, in a passage which bears quotation in full:-

“The circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder can vary infinitely, and it is not always easy to determine in any given case what should be done in the matter of sentence. At the start it should be recognised that the felonious taking of a human life is recognised both in the Crimes Act 1900 (NSW) and in the community at large as one of the most dreadful crimes in the criminal calendar. The courts have, however, over the decades gradually manifested a willingness to recognise factual contents which provide some basis for understanding the human tragedies that can lead to the taking of a life. The manifestation of this humanitarian tendency is necessarily attended by the utmost caution. It can be seen to be constantly written in the decisions of the courts and in the enactments of the legislature that the taking of a human life is a grave action calling for a correspondingly grave measure of criminal justice being meted out to the guilty party.

In a case such as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment and the interest of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life.”

22 Alexander also indicates that attention should be directed to:-

“ (i) the degree of provocation offered (or, alternatively, the extent of the loss of self-control suffered), which when great has the tendency of reducing the objective gravity of the offence;

(ii) the time between the provocation (whether isolated or cumulative in its effect) and the loss of self control, which, when short also has the tendency of reducing the objective gravity of the offence; and

(iii) the degree of violence or aggression displayed by the prisoner, which when excessive has the tendency of increasing the objective gravity of the offence.”

23 On any objective standard, it is impossible to describe the degree of provocation here as more than moderate. I referred to some of it as puerile. Much certainly reminds one of school-boy teasing although there were the aspects calculated to cause fear or at least apprehension. On the other hand, the loss of self control was great. It was also immediate by reference to the last of the cumulative acts of provocation. The degree of violence or aggression was extreme although it must be recognised that the first weapon was in the Prisoner’s hand quite innocently before the incident occurred.

24 In this case the purposes of protection of society, personal deterrence and reform have little, although I do not say no, part to play. The Prisoner clearly needs to address, hopefully with the assistance of counselling in prison, his responses to others. Experience shows that among some groups, those who react to teasing rather than laughing it off or letting it pass them by, are the most likely to be teased. Furthermore, a significant element in the offence is that the Prisoner simply lost his temper. Clearly he needs to be able to control it albeit it must be recognised that his history suggests that lack of control has not been a problem in the past.

25 It is considerations of general deterrence and retribution that dominate the sentencing exercise here. A human life has been lost and not only because the Prisoner lost his temper, but because he also used a knife. Such crimes are far too frequent.

26 The maximum penalty is, as I have said, 25 years imprisonment. That maximum “is intended for cases falling within the worst category of cases for which the penalty is prescribed: Ibbs v R [1987] HCA 46; (1987) 163 CLR 447 - Veen v R (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 478. Statistics kept by the Judicial Commission show that the mean of full and minimum terms of sentences imposed for manslaughter where the offender has no prior record and has pleaded not guilty are 7 and 4 years respectively. It must be recognised that, because of the wide variety of factual circumstances in which manslaughter occurs, the statistics are of limited assistance. For the purposes of this case and another which is before me also today, I have read a large number of other judge’s decisions, some of which are summarised in a schedule to these Reasons.

27 I acknowledge that a number of those cases argue for a lower penalty than I intend to impose although R v Dally [2000] NSWCCA 162 and perhaps R v Sherry [2000] NSWCCA 35 are in line with my views. Be that as it may, as was said in another context, “In determining the proper penalty ... the fundamental consideration is rather the degree by which, having regard to the maximum penalties provided by the Act in question, the Respondent’s conduct would offend against the legislative objective of suppressing the illicit traffic in the prohibited drug” - R v Peel (1971) 1 NSWLR 247 at 262. The central feature of all cases of manslaughter is the taking of another’s life and while making all allowance for the features of this case favouring leniency, the Prisoner’s response to the teasing he suffered was so out of proportion as to require substantial punishment. I certainly would not place it in the bottom quarter of manslaughter offences requiring full time custody. Despite all that has been said about the seriousness of knife attacks, there is no obvious decline in their frequency. In my view general deterrence and retribution require the sentence I intend to impose. Otherwise the “just desserts” and the importance of those left behind the victim feeling that justice has been done, of which Hunt CJ at CL spoke in Alexander will not have been satisfied.

28 Having regard to the fact that the Prisoner’s attack on Zee Wei Ang was part of the same loss of control, that no damage was inflicted on that victim and the circumstances of the Prisoner desisting from that attack, I propose to make his sentence on the lesser charge concurrent. Because it will be concurrent, it will be a fixed term.

29 The conclusion at which I have arrived is as follows. I am satisfied, as s5(1) of the Crimes (Sentencing Procedure) Act contemplates, that the circumstances are such that no penalty other than imprisonment is appropriate. I am further satisfied that that imprisonment should be full time. Choon Hai SEE, for the manslaughter of Han Cheat Ang, I impose a total sentence of 7 years, including a non-parole period of 4½ years, both periods to date from 12 September 2000; on the charge of attempting to use an offensive weapon namely a knife with intent to assault Zee Wei Ang, thereby occasioning him actual bodily harm, I impose a fixed term of imprisonment of 1 year, also dating from 12 September 2000.

SCHEDULE

R v Choon Hai SEE

NOTE: Unless otherwise indicated, all of the cases referred to are ones where manslaughter on the basis of provocation was the offence being dealt with.

R v Alexander (1995) 78 A Crim R 141
In this matter the sentence imposed was one of 6 years including a minimum term of 2½ years. Hunt J recorded that “after almost 10 years of the most extraordinary conduct by the deceased towards the 2 young children of the prisoner’s first marriage ... and after a prolonged argument with the deceased in which she taunted the prisoner with threats to take the 3 children of the present marriage away from him, suggested that the only solution to the situation was to shoot her, and accused him of being gutless during their 10 years of marriage – the prisoner stormed out of the room, spent a very short period of time outside and then returned, picked up a rifle which had been left there ready to be discharged the previous evening by the deceased herself, aimed it at her and pulled the trigger.” Hunt J had found the deceased’s conduct amounted to “very extreme and grave provocation”.

There were strong subjective features. Hunt J appended to his judgment a schedule of sentences in prior cases. In the case of those since the commencement of the Sentencing Act 1989, the median full term was 6 years.

A Crown appeal (unreported, CCA, 24 February 1995) was dismissed.

R v Azar 1991 56 A Crim R 414
In this matter the Court of Criminal Appeal dismissed an appeal against a sentence of an effective term of 6 ½ years including a minimum term of 5 years. There had been a brawl between a group of young persons including the Appellant and the deceased. At one stage during the fight, the deceased ran at the Appellant, punched him to the face and causing the Appellant to fall to the ground. The Appellant got up, went into a nearby house and obtained a kitchen knife, returned with the knife and rejoined the fight. The deceased was fatally stabbed with the knife.

The Appellant was a man of good character with no relevant criminal history and was unlikely to offend again. He was regarded as having genuine contrition.

Recourse to the remarks on sentence of Newman J made on 14 December 1990 reveal that the issue of manslaughter had been left to the jury upon the basis of both an unlawful and dangerous act and provocation and that in the course of sentencing, His Honour did not consider it necessary to make a specific finding as between the two possibilities.

R v Dally [2000] NSWCCA 162
In this matter the Court of Criminal Appeal dismissed an appeal against an effective sentence of imprisonment for minimum and additional terms of 6 and 2 years respectively. During the course of an altercation during which the deceased kept haranguing and abusing the Appellant and pushing and pulling him, the Appellant stabbed the deceased once with a large carving knife he had little earlier obtained from another room in the house. The trial judge had found that the Appellant had stabbed the deceased deliberately but had not been satisfied that there was any intention to kill. The deceased was taller and of much heavier build than the Appellant and the provocation included threats of physical violence.

The offender had a lonely and unhappy past, was not disposed to violence and had no significant record although he had an alcohol abuse disorder. He notified the authorities immediately he discovered the deceased’s death and gave the police a full account of what had occurred. He felt a considerable degree of remorse and was unlikely to commit any similar offence again. He was 49.

R v Diamond [2000] NSWSC 1212
This offender was sentenced to imprisonment for 6 years including a non-parole period of 4 ½ years. While intoxicated, the offender had been teased by a group and had a T-shirt and cap which he valued taken from him, the first mentioned article being thrown into a tree. He walked away frustrated and humiliated but soon after became angry. He went to a friend’s house, procured a steak knife, concealed it, and returned to the scene of the confrontation. He asked where his shirt and hat was and when the victim responded by dismissive or contemptuous words, the offender brought the knife out, raised his right hand above his shoulder and plunged it into the victim’s left upper chest. Badgery-Parker AJ found that the offender intended to inflict grievous bodily harm but was not prepared to find that that intent had been formed until the time of the killing.

At the time of the offence, the offender was 22 years old. He had behavioural problems since he was younger than 8. As a child he had been diagnosed as having a severe personality disorder and exhibited aggression, anti-social and disruptive behaviour. At about 12 he was sent to Boys Town because no other school would accept him. His aggressive tendencies manifested themselves in a number of offences of violence for which he had previously been before the courts. Alcohol had a tendency to aggravate his aggressive tendency and there was a risk of violence in the future. The offender had generally been unemployed. He had undertaken self improvement programs in gaol, a matter regarded as giving some hope for rehabilitation.

R v Howard [1999] NSWSC 1228
In this matter the sentence imposed included minimum and additional terms of 5 years and 1 ½ years penal servitude. Over a period and for a variety of reasons, the offender had developed growing resentment towards the deceased. On the night of his death, the deceased forced his way into the Prisoner’s residence, knocking him to the floor. The deceased threatened the Prisoner and said to another person present “Sit the fuck down or I’ll kill you too.” Things then calmed down but the Prisoner walked to the kitchen, picked up a carving knife, ran towards the deceased and stabbed him twice. The Prisoner immediately ran away in distress and exhibited almost immediate remorse. He was of good character and had a good employment history. He offered to plead guilty to manslaughter at an early stage and was regarded as having good prospects of rehabilitation. He was 31.

R v Gulam Mohammad Khan (1996) 86 A Crim R 552
In this case the Court of Criminal Appeal increased to 6 years including a minimum term of 4 years a sentence imposed by Hidden J. The offender discovered that the deceased whom he had taken into his home and with whom he had become friends was having an affair with the offender’s wife. On the night in question the offender had surreptitiously returned home and waited to see whether anything transpired and an hour or so later, heard the deceased come home and intercourse occur. Appalling injuries were inflicted upon the deceased including some 59 knife wounds.

It was accepted that the deceased’s conduct constituted grave provocation and that the offender was otherwise of excellent prior character, placid in temperament, a stranger to aggression and deeply remorseful. He was aged 45 years.

R v MHN (No 2) (unreported, Kirby J 20 November 1998)
In this case the sentence imposed was for a fixed term of 4 years, this being the minimum term which, apart from matters not presently relevant, the Judge would have imposed as part of a longer sentence.

The offender aged 17 years and 8 months at the time was been attacked by a number of youths, spoiling for a fight. One of those was the deceased who introduced a knife into the fight. The offender managed to take hold of the knife, removed it from its sheath and thereafter blindly and with a loss of self control thrust the knife towards his assailants killing one.

The offender had led an unhappy and deprived life spending his early years in an institution. He was sent to Australia to join his father when aged 12 and found adjustment difficult, particularly because he did not speak English. He ran away from home, living on the streets and with friends. He suffered from depression to the extent it was a psychiatric illness. He was charged with the offence following a confession he had volunteered.

R v Sherry [2000] NSWCCA 35
Holding that a sentence of 5 years and particularly a minimum term of 2½ years which had been imposed on the Respondent was manifestly inadequate, the Court of Criminal Appeal increased each of these periods by one year. Because it was a Crown appeal, the court imposed a lesser sentence than would otherwise have been appropriate.

The deceased and the Respondent had been in a volatile defacto relationship marked by violence and drunkenness. In the course of one altercation, the Respondent obtained a knife, returning to the vicinity of the deceased. The report is not completely clear what happened then but the knife entered her neck. The majority in the Court of Criminal Appeal proceeded on the basis that it had been very dangerous for the Respondent to bring the knife very close to the deceased.

R v Vandersee [2000] NSWSC 916
In this matter James J imposed a sentence consisting of imprisonment for 8 years including a non-parole period of 5 years on a woman who had killed her sleeping husband by striking him on the head a number of times with a small axe or tomahawk. His Honour found that the offender had an intention to kill. He also found that depression was a mitigating circumstance. The provocation was a long history of emotional and some physical abuse, culminating in cutting off of part of the offender’s hair on the night of the offence. It was later in the evening that she saw the axe and decided to use it. She turned herself in at a police station next day.

R v Veech [2001] NSWSC 68
This offender had been charged with murder but found guilty of manslaughter. He was sentenced to imprisonment for an effective term of 6 ½ years with a non-parole period equivalent to three-quarters of that.

There had been arguments over some days between the victim and the offender who seem to have been business partners. On the day of his death, the deceased, while at the offender’s premises, loaded some tools into his vehicle. There was a confrontation and the deceased walked towards the vehicle. Without reasonable grounds, the offender thought the deceased was going to acquire a weapon. The offender then loaded a rifle, went outside and fired two shots, one of which severed the deceased’s spinal cord. He fell and the offender then fired two more rounds from close range, each shot causing major damage to the deceased’s heart. Wood CJ at CL found the offender had an intent to kill, the provocation significant but not extreme, the time between the provocation and response was short, the Prisoner’s actions unpremeditated although at least in part very deliberate and controlled and the degree of violence extreme.

The offender had no prior record of significance. His childhood had been somewhat disrupted but he had some employment history. He was not regarded as an ongoing danger.

R v Teklemariam Abebe [2000] VSC 567
This case was one where murder had been reduced to manslaughter by reason of provocation. The sentence imposed was imprisonment for 8 years including a non-parole period of 6 years. The maximum prescribed under the Crimes Act of Victoria, was imprisonment for 20 years.

There had been marriage difficulties between the offender and his wife leading to separation. A relationship between the victim and the offender’s wife had been a major cause of these difficulties.

Co-habitation had resumed and the offender and his wife had established a restaurant. On the day of the offence, the offender arrived at the restaurant and found the victim sitting in the kitchen. In response to a question as to why the victim was there, the offender’s wife described him as her boyfriend and asserted that she intended to live with him as man and wife. The victim looked at the offender “in an arrogant and condescending fashion” and the offender lost control, picked up a knife and stabbed the deceased three times in the chest. The offender was 50 years, Ethiopian, and likely to have been embarrassed by his community knowing of the prior situation of the three persons. The offence was regarded as out of character and the prospects of rehabilitation good. There was no prior record

*****************************

LAST UPDATED: 07/09/2001