New South Wales Court of Criminal Appeal CITATION : Regina v Dang [1999] NSWCCA 42 FILE NUMBER(S) : CCA 60650/98 HEARING DATE(S) : 02/03/99 JUDGMENT DATE : 2 March 1999 PARTIES : Regina v Yu Bin DANG JUDGMENT OF : Abadee J at 1; Barr J at 20; Adams J at 21 LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70021/96 LOWER COURT JUDICIAL OFFICER : Acting Justice Black COUNSEL : W G Dawe QC - Crown T.. Buddin SC - Respondent SOLICITORS : S. E. O'Connor - DPP T. A. Murphy - Respondent CATCHWORDS : ACTS CITED : s 5D Criminal Appeal Act 1912 (NSW) Sentencing Act 1989 (NSW) R v Alexander 78 A Crim R 141 CASES CITED: R v Khan (1996) 86 A Crim R 552 R v Bollen (1998) 99 A Crim R 510 R v Previtera (1997) 94 A Crim R 76 DECISION : Crown appeal is dismissed. Leave to the respondent is granted to appeal against sentence, but the appeal is dismissed. IN THE COURT OF CRIMINAL APPEAL 60650/98 ABADEE J BARR J ADAMS TUESDAY 2 March 1999 REGINA v Yu Bin DANG JUDGMENT 1 ABADEE J: This is an appeal by the Director of Public Prosecutions under section 5D of the Criminal Appeal Act 1912 (NSW) against sentences imposed on the respondent by Acting Justice Black in the Supreme Court, Sydney, on 28 August 1998. In the event there is now only one appeal. That is an appeal founded upon an assertion that the sentence imposed by his Honour for the offence of manslaughter was manifestly inadequate. The Crown has abandoned its appeal in respect of the further sentence that was imposed by his Honour for the offence of malicious wounding. 2 The Crown concedes that the factual matrix for the appeal against the manslaughter conviction is to be found in the reasons for sentencing. The Crown further accepts or does not dispute that the sentences that were imposed for manslaughter and malicious wounding should not be other than concurrent. The respondent has in turn by leave filed a cross-appeal asserting that the sentence for manslaughter was excessive. 3 On 6 July 1998 the respondent was found guilty of the manslaughter of one Hiu and the malicious wounding of her daughter, both matters allegedly having occurred on 22 November 1995. The respondent had been tried on an indictment for the murder of Hiu and further with intent to murder the daughter Vania. As I have said, the jury returned a verdict of malicious wounding and his Honour sentenced the respondent for that offence. That sentence is not any longer the subject of any appeal. 4 The verdict of manslaughter was found by the learned sentencing judge to be based upon the jury having found provocation. In sentencing his Honour found that there were no special circumstances within the meaning of the Sentencing Act 1989 (NSW) and for the crime of manslaughter imposed a total sentence of six years penal servitude comprised of a minimum term of 4.5 years commencing on 6 July 1998 and expiring on 5 January 2003 with an additional term of eighteen months. As a matter of history, his Honour imposed a fixed term of imprisonment of four years for the crime of malicious wounding to be served concurrently with the sentence imposed in relation to the conviction for manslaughter. 5 By letter dated 27 October 1998, the Director forwarded to the respondent advice that the Director had lodged an appeal due to inadequacy of the sentences. By notice dated 26 October 1998 the Director gave notice that he desired to appeal against the sentences although, as I have said, only one sentence is now presently the subject of appeal. It is appropriate for the court to indicate that the delay in advising the respondent of the intention to appeal the sentence has not been explained and absent an explanation it seems to be something that is not to be endorsed or applauded. Indeed, in the period of the delay the court notes that the respondent herself had filed a notice of appeal against the excessive nature of the sentences, but withdrew the appeal prior to the appeal being instituted by the Director. 6 For the purposes of this appeal, which concerns the suggested inadequacy of the sentence for manslaughter, the factual matrix is to be found in his Honour's reasons for judgment at pages 2 to 4 where his Honour stated: "There were specific incidents referred to in the evidence in support of the issue of provocation. There was reference by the prisoner to relationships having deteriorated between her and the deceased and Andrew, the deceased's husband, in as much as verbal exchanges took place. However, on 7 November 1995 there was a series of events commencing at the restaurant where it was common ground that she, the prisoner, and Andrew, had exchanged angry words and that Andrew acknowledged that he brandished a cleaver in her general direction. Upon return to the house at Baulkham Hills, further arguments developed involving the deceased. There was physical confrontation between particularly the prisoner and the deceased. In the course of that I accept the evidence that a rifle was produced by the deceased and a threat uttered in relation to it. That rifle was the rifle subsequently used by the prisoner on 22 November. In addition, the witness Anthony spoke of hearing a threat by the deceased to get a knife and chop or otherwise injure the prisoner and he also spoke of hearing noises downstairs consistent with an implement, a knife or cleaver being obtained. I accepted that evidence that there was also a threat of physical violence. That evening came to an end as far as Andrew was concerned. It was put behind them after some discussion and apology involving Ivan. The prisoner said in evidence that there were subsequent verbal threats to kill her uttered by the deceased and the next physical encounter occurred on the day of the death of the deceased, namely 22 November. It is said by the prisoner that she came home early, she didn't expect to find the deceased at the house. She became concerned about the whereabouts in particular of the rifle that had featured on 7 November. She searched for it, eventually found it in a dismantled condition and took it into her own room where she assembled it and also inserted the magazine which contained a number of bullets. Her reason for doing so, she said, was because she was frightened that the deceased would use it against her. At a later stage she heard the deceased outside in the upstairs part of the house and when she came out of her room and saw her, she was threatened verbally, she said by the deceased and also she said attacked by the deceased who was wielding a stick. The prisoner had had time, she said, to obtain a metal pole with which to defend herself. Anthony was present in the house, heard some sounds of a hostile nature, saw the metal pole used by the prisoner but did not see any wooden pole which the prisoner said was used by the deceased. I do not think it is necessary for me to make any express finding about what happened that afternoon save to say this; I accept that there was a verbal threat uttered by the deceased against the prisoner and that in combination with all that had gone before, and that she felt that she had nowhere to seek help, she felt threatened and she felt in such a state that the only way out, it seemed to her, was to use the rifle to kill the deceased. Those findings, it seems to me, are consistent with my interpretation of the jury's verdict. It should be added that the jury rejected a defence of self-defence raised by the prisoner, in my view correctly." 7 The Crown's submission on sentence is that the sentence for manslaughter was manifestly inadequate. In supporting that argument, the Crown has taken the court to the decision of Justice Hunt in the case of R v Alexander 78 A Crim R 141 and the schedule of sentences attached to that judgment. The Crown has also taken the court to the decision of this court in R v Khan (1996) 86 A Crim R 552. It is appropriate to observe that the material appearing in the schedule in Alexander does in fact reveal the total sentences that were imposed. 8 Mr Buddin on behalf of the respondent has put before us other materials relating to single instant cases of manslaughter sentences where the sentences have been by reason of provocation. The submission that Mr Buddin makes is that the decision in Alexander, the decision in Khan together with the reference to other cases of manslaughter, do not support the proposition that in the instant case, the sentence for manslaughter was manifestly inadequate. I believe that there is substance in that proposition. 9 The Crown further submits that a particular passage in his Honour's reasons for sentence reveals error: That passage appears at page 12 of the appeal book. It is in the following terms: "I do not think it is necessary for me to make any express finding about what happened that afternoon save to say this; I accept that there was a verbal threat uttered by the deceased against the prisoner and that in combination with all that had gone before, and that she felt that she had nowhere to seek help, she felt threatened and she felt in such a state that the only way out, it seemed to her, was to use the rifle to kill the deceased. Those findings, it seems to me, are consistent with my interpretation of the jury's verdict. It should be added that the jury rejected a defence of self defence raised by the prisoner, in my view correctly." 10 The Crown specifically argues that in the instant case error is reflected in the passage. It argues that what his Honour failed to do, was to make findings of the type, that Alexander's case suggests should have been made when a judge is involved in sentencing in circumstances where provocation has been found by the jury. I would add that the approach of Justice Hunt in Alexander's case to sentencing has been applied by many sentencing judges since the decision. (See example the recent decision of Regina v Green (McInerney J 20 October 1998, unreported). 11 It is said that his Honour's failure to specifically make the findings of the type that Alexander's case suggests should be made, led him to impose an inappropriately lenient sentence in the case. I agree with the Crown's approach that the passage that has been quoted leaves much to be desired. Indeed, there is a paucity of material contained in his Honour's findings. That said, nevertheless I am satisfied in the circumstances of this case that implicitly, having regard to the findings that have been made and in the context in which they have been made, the spirit of the decision in Alexander's case was with. 12 In my view, the Crown has not made good either that the sentence was manifestly inadequate by reference to the schedule in Alexander's case or, indeed, by reference to Khan or any other cases. Further, I do not consider that the Crown has made good that error has been reflected in the absence of express findings by reference to the approach in Alexander's case. 13 It is appropriate for me to consider one other matter which has been raised by the Crown in its submissions and properly raised by it in order to assist the court. It in turn is a matter, relied upon by the respondent in her cross-appeal against the sentence that was imposed. It is argued that the trial judge fell into appealable error when he found as an objective fact that the husband of the deceased and other relatives of the deceased suffered grief as a result of the deceased's death. It is asserted by the Crown when in drawing the Court's attention to this particular error said to arise from the victim's impact statements that were put before his Honour, that even if there was error, such in any event would not result in the Crown appeal being dismissed on the grounds of inadequacy. 14 Mr Buddin for the respondent submits that the statement by his Honour in respect of the victim's impact statement reflects the taking into account of irrelevant material so that error has been revealed in the sentencing reasons. This in turn, it is argued would result in the cross-appeal, on the grounds of excessiveness being allowed. 15 In my view, his Honour did fall into appealable error when he referred to the objective fact that the husband of the deceased and other relatives of the deceased had suffered grief as a result of the death of the deceased. In my opinion, what his Honour did transgressed the appropriate principles that had been laid down by this court in such decisions as Regina v Bollen 99 A Crim R 510 and Regina v Previtera 94 A Crim R 76. 16 The question is how should the error be dealt with. It seems to me that having regard to his Honour's sentencing remarks, and particularly the matters that he referred to in relation to evaluating the objective seriousness of the offence, and the matters and circumstances that he has otherwise referred to in his reasons for judgment, that merely because error is revealed in the taking into account of irrelevant material, that this error does not of itself mandate either the allowing of the appeal or, alternatively, the allowing of the cross-appeal. 17 It is true that his Honour took into account irrelevant material. However, having regard to the sentence that was imposed, bearing in mind the facts and circumstances and the objective seriousness of the offence, I would conclude that in the circumstances, even if the court were to reconsider the matter based upon error having been revealed, that the result in terms of the sentence for manslaughter would not be any different. In my view, the error therefore ought not to cause this court to reconsider the manslaughter sentence, and impose a different sentence because in my view, that different sentence would in the event be the same as that imposed by his Honour. I say this, particularly bearing in mind that in my opinion, having regard to the circumstances and the objective seriousness of the offence, the sentence that was imposed by his Honour was not only a light one, but, if one may use the language of range, was towards the bottom of the range. 18 In the result it seems to me that the court does not have to consider the question of discretionary matters which have also been argued on behalf of the respondent in respect of the Crown appeal. It appears to me that the Crown has not made good its claim that the sentence for manslaughter was manifestly inadequate. It also seems to me, that in the circumstances the respondent has not made good her claim that error in terms of considering irrelevant material has in fact brought about a situation where there should be a re-sentencing on the basis that the sentence imposed was excessive. 19 For all of these reasons, both the appeal by the Crown and the cross-appeal by the respondent in relation to the sentence of 28 August 1998 for manslaughter should be dismissed. It appears to me that there are no further or other orders that need be made to give effect to the views that I have expressed. 20 BARR J: I agree for the reasons given by the presiding Judge that the Crown appeal should be dismissed. I agree for the reasons given by his Honour that the respondent should have leave to bring a cross-appeal against sentence, but I agree that that appeal should be dismissed. 21 ADAMS J: I agree with the orders proposed by the presiding judge and with his reasons, but I wish to add some remarks of my own. In this case the consequence of the actions of the respondent was not only that a person died, but that a child was very seriously injured. Considered by themselves, one can see that the manslaughter sentence imposed by the learned sentencing judge was, if on the lenient side, within the range of his discretion - a discretion which it is important that this court should recognise and indeed uphold. 22 Considered by itself, the sentence imposed for malicious wounding to my mind was within range. It is, however, when you look at both sentences and consider the whole culpability involved, that the question arises whether in the end serving a sentence of six years with a minimum term of four and a half years represents the respondent's total culpability. This question has not needed to be dealt with by this court because the learned Crown Prosecutor withdrew both the appeal against the sentence for malicious wounding and the need to consider whether that sentence, even if correct, should have been concurrent having regard to the total culpability. 23 It should not be inferred that the result of this case implies that it is appropriate when faced with these circumstances that a second serious offence of the kind committed here should have no practical consequences in terms of the sentencing outcome. Indeed, to my mind it should have had significant sentencing consequences. However, as the parties have not had an opportunity in the circumstances to agitate that question, I state my opinion as no more than tentative. 24 I wish to make an observation about the victim's impact statement because the family of the deceased may not appreciate the consequence of this court's finding as to its irrelevance. When we treat, as we are obliged by law to do, the victim's impact statement as irrelevant, we are not saying that it is unimportant. The grief, anguish and continuing unfortunate consequences of a death are never unimportant. They are real and they are significant. 25 The reason why a victim's impact statement cannot be taken into account where a person dies may easily be demonstrated. Assume the deceased was friendless; assume the deceased had no family. It would be monstrous to suggest that that meant for some reason killing her should attract a lesser sentence than would be the case if, as is the situation here, she had a loving family and grieving relatives. Essentially, then, the reason that victim impact statements in cases involving death are not taken into account in imposing sentence is that law holds, as it must, that in death we are all equal and the idea that it is more serious or more culpable to kill someone who has or is surrounded by a loving and grieving family than someone who is alone is offensive to our notions of equality before the law. 26 I do not want those who may be here to think that the court is unmindful of the grief and anguish which they suffer. It is that we must obey the fundamental stricture of the law as to the equality of all citizens who come before us; and in death also the equality which that dreadful consequence brings about. 27 ABADEE J: The formal orders of the court will be therefore that the Crown appeal is dismissed. Leave to the respondent granted to appeal against sentence, but the appeal is dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.