R v Tang [1999] NSWSC 630

New South Wales Supreme Court CITATION : R v Tang [1999] NSWSC 630 CURRENT JURISDICTION : Criminal Division FILE NUMBER(S) : 70212/98 HEARING DATE(S) : 09/02/1999; 22/02/1999; 01/03/1999-05/03/99, 08/03/1999-12/03/1999, 15/03/1999-19/03/1999, 22/03/1999-24/03/1999. Sentence hearing 18/06/1999; Sentence: 25/06/1999 JUDGMENT DATE : 25 June 1999

PARTIES : Regina Choi Kia Tang JUDGMENT OF : Hidden J at 1

COUNSEL : B Newport QC (Crown) G Cusack QC (Tang) SOLICITORS : DPP (Crown) Heenan & Co (Tang) CATCHWORDS : Criminal Law - Sentence - murder by stabbing - spontaneous violent incident - no questions of principle - DECISION : MT 11 years; AT 4 years.

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

HIDDEN J

Friday 25 June 1999 070212/98 - REGINA v CHOI KIA TANG REMARKS ON SENTENCE

1 HIS HONOUR: The prisoner, Choi Kia Tang, has been found guilty by a jury of the murder of David Laxalle at Berala on 24 February 1997. 2 For some months prior to his death Mr Laxalle had been living with his mother at 19 McDonald Street Berala, following the breakdown of his marriage. On the night of Sunday, 23 February 1997, the prisoner and three young companions were stealing mangoes from trees in the backyard of that home. Mr Laxalle observed this and pursued the men into McDonald Street. He seized one of them and there was a struggle, in which the prisoner and the other two men engaged themselves. 3 It is unnecessary to examine in any detail the evidence of what then occurred. It is sufficient to say that Mr Laxalle was punched and fell to the ground, where he was kicked. In a videotaped interview with police at the scene, which he adopted in the trial as his best recollection of these events, the prisoner claimed that Mr Laxalle seized him by the shirt and punched him in the head. For his part, he admitted having punched Mr Laxalle in the head and having kicked him two or three times to the head and body. 4 In the course of the struggle Mr Laxalle was stabbed seven times to the torso and upper left arm. In the light of the jury's verdict, I am satisfied that it was the prisoner who inflicted all of those wounds. One of the other young men admitted having a knife, but I could not fairly conclude that he used it. Even if he had, it would have no significant bearing upon the prisoner's culpability. 5 Mr Laxalle managed to make his way back to his mother's home, where she ministered to him as best she could and summoned help. Sadly, it was necessary for her to give evidence about this in the trial. He was conveyed by ambulance to Westmead Hospital, where he died the following morning. 6 For the purpose of sentence, I accept that the prisoner became involved in the attack to free his companion and that Mr Laxalle did strike him. This in no way excuses his behaviour but it underlines the spontaneous nature of the attack, during which, no doubt, the prisoner was in a state of high emotion. I have no idea why he had a knife that night, as he has never admitted that he did. However, there is no basis upon which I could find that he was carrying it with the intention of stabbing anyone. From the jury's verdict it follows that he intended to inflict at least grievous bodily harm upon Mr Laxalle but, despite the number and nature of the wounds, I am not satisfied that he intended to kill. 7 This is not to ignore the community's abhorrence of young men carrying knives in circumstances such as these. That abhorrence is justified by the type of situation which brings the prisoner before this Court: an unexpected eruption of violence leading to the use of a knife aggressively and, far too often, fatally. The sentence which I pass, whilst recognising the spontaneous nature of this killing, must reflect that community concern. 8 The prisoner was eighteen years old at the time of the incident, and is now twenty. His three companions were sixteen years old at the time. Each of them pleaded guilty to assault occasioning actual bodily harm and was dealt with by a non-custodial order. Clearly, the prisoner stands in a very different position and must face a substantial custodial sentence. 9 The prisoner has a minor record in the Children's Court, which is of no present significance. He was born in Cambodia, the youngest of eight children. It seems that his father was killed by the Pol Pot regime. At the age of six he came to this country with his mother and most of his siblings. He has no memory of his father or, indeed, of his country of origin. 10 As one would expect, this background had an adverse effect upon his family life. His mother was a stressful person and they were in financial difficulty. He had difficulty communicating with his mother, who never learnt English, and he felt unable to provide her with the support and sympathy she deserved from her experiences in Cambodia. Despite this, he progressed satisfactorily at school, completing the school certificate. On leaving school, he obtained employment and at the time of his arrest he was undertaking a trade course conducted by the Commonwealth Employment Service. 11 From the age of twelve he had had the benefit of attendance at residential camps for disadvantaged children arranged by the Uniting Church. At the trial his counsel led oral evidence and tendered a number of testimonials from people involved in that program, all of whom had observed him to be industrious, courteous and helpful. Mr Robert Urquhart, who gave oral evidence, said that his reliability led to his being appointed a volunteer youth leader at the camps, and that he had never seen him act aggressively. Clearly, his behaviour at the time of this tragic incident was out of character. 12 A psychological report by Ms Katherine Barrier, prepared for the purpose of sentence, reveals that the prisoner is of below average intelligence and lacks self-esteem. He had been living away from the family home in the period leading up to the killing and, on the history he provided to Ms Barrier, he appears to have been under pressure from a shortage of money and the competing demands of his job, his course and his family commitments. Ms Barrier considered that he is in need of counselling which, I trust, will be available to him in prison. 13 It is pleasing to note that, since he has been in custody, he has been furthering his general education and has enjoyed the continuing support of his family. Although his prospects of rehabilitation are good, I consider that that end would be furthered by an extended period of supervision and the sanction of parole after he has served the custodial component of his sentence. Accordingly, I find special circumstances within the meaning of s5(2) of the Sentencing Act 1989, although only a minor departure from the statutory norm is warranted. 14 The sentence which I pass must reflect the gravity of his crime, while giving appropriate weight to his age, his background and character, and the desirability of his rehabilitation. All those matters must also be reflected in the minimum term, bearing in mind that his release on parole is a matter for the Parole Board, not for me. The sentence will date from the date he was taken into custody, 23 March 1997. 15 Choi Kia Tang, you are sentenced to penal servitude for fifteen years, comprising a minimum term of eleven years, commencing on 23 March 1997 and expiring on 22 March 2008, and an additional term of four years, commencing on 23 March 2008 and expiring on 22 March 2012. **********