Reported Decision : New South Wales Court of Criminal Appeal CITATION : R v Tran [1999] NSWCCA 443 FILE NUMBER(S) : CCA 60234/99 HEARING DATE(S) : 10/12/99 JUDGMENT DATE : 23 December 1999 PARTIES : Regina Van Dung Tran JUDGMENT OF : Beazley JA at 1; Newman J at 2; Greg James J at 3 LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70009/97 LOWER COURT JUDICIAL OFFICER : Hulme J COUNSEL : Crown: C K Maxwell QC Tran: P Bodor QC SOLICITORS : Crown: S E O'Connor Tran: Trevor Nyman & Co CATCHWORDS : Manslaughter; Appeal against sentence; Special circumstances R v Oinonen [1999] NSWCCA 310 Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 Anderson v The Queen (1993) 177 CLR 520 CASES CITED: R v Isaacs (1997) 41 NSWLR 374 R v Olbricht [1999] HCA 54 R v Schelberger (CCA, unreported, 2 June 1977) R v Faulstone (CCA, unreported, 18 July 1990) DECISION : Leave to appeal granted; Appeal dismissed IN THE COURT OF CRIMINAL APPEAL CCA 60234/99 CORAM: BEAZLEY JA NEWMAN J GREG JAMES J Thursday, 23 December 1999 REGINA v. TRAN Van Dung JUDGMENT 1 BEAZLEY JA: On Friday 10 December 1999 the Court gave judgment in this matter. Leave to appeal was granted but the appeal was dismissed. The Court stated that reasons would be given later. The reasons for the Court's decision are contained in the decision of Greg James J, with which I agree. 2 NEWMAN J: I agree with Greg James J. 3 GREG JAMES J: Application is made for leave to appeal against sentence imposed in the Supreme Court of New South Wales for the crime of manslaughter. 4 The applicant, for the killing of his brother in the circumstances I shall shortly refer to, was sentenced, having regard to the three months he had already spent in custody, to imprisonment for an effective minimum term of four years and six months and an additional term of one year and five months. 5 The applicant had pleaded not guilty to an indictment charging him with murder but following an adjournment in which the prosecution carried out some ballistic tests on the relevant weapon, he was reindicted. He maintained his plea to the charge of murder but pleaded guilty to manslaughter. 6 Upon the Crown Prosecutor indicating that plea was accepted in full satisfaction of the indictment, the jury, at the trial judge's direction, brought in verdicts in accordance with the prisoner's pleas. The prisoner was remanded for sentence. 7 The learned trial judge in his remarks on sentence made findings of the factual context of the commission of the offence for which the applicant came forward for sentence. 8 In summary, the applicant, who was the elder brother of his victim, had, in consequence of the separation of his parents, taken the victim and another brother to live with his wife, children and himself. He had told his mother he would try to assume a parental role in respect of the victim who was in Year 12 and although he had been performing well at school up to that time, was noticed to be wagging school, smoking marijuana and indulging in other undesirable behaviour. 9 Some months prior to the commission of the offence, it was noted that some gold was missing from a safe owned by the mother. She had informed the prisoner of this. Two weeks prior to the commission of the offence she noticed some jewellery was also missing. In due course, she confirmed that loss to the prisoner. It appears that it was only the mother, the deceased and another brother who knew the combination of the safe. At about midnight on 27 July 1996, the prisoner rang his mother and advised that he was bringing the deceased over to her place so that he, the other brother and the prisoner might discuss with her the missing jewellery. On arrival, the prisoner interrogated his brothers as to whether they had robbed their mother. Both brothers denied having done so. The prisoner was disposed to believe the other brother and was sceptical about where the deceased had obtained money for his marijuana. After 15 to 20 minutes the prisoner went out to his car where he had a Luger pistol. 10 The trial judge expressed the view that the prisoner may have, at that time, been angry and concluded from what was said in the ERISP and by witnesses that the prisoner was affected to some degree by alcohol at the time of the shooting. His Honour was of the view that the anger and intoxication would not operate to reduce criminality. As far as the intoxication was concerned, his Honour was also of the view that it did not exacerbate the criminality and did not find it necessary to make any finding as to anger in this regard. The trial judge held that it appeared to the prisoner that the deceased was being insolent and rude. 11 The pistol was licensed. The prisoner had told police, and there was no evidence to the contrary, that he had the pistol in the car because he was intending to participate in a practice shoot at a shooting club of which he was a member. The prisoner obtained the pistol from the car and a loaded magazine and returned to continue the confrontation with the deceased. 12 In the prisoner's ERISP he said that he had tried to scare his brother as he had kept on denying taking the mother's property:- "I intended just to scare him like this and accidentally I shot him, so I put the gun down here like this and then I called another younger brother of mine to call the police." 13 He told the police in the ERISP:- "So I just try to scare him by pointing the gun at him, but somehow it went off. It went off and I hit him." 14 He admitted that he had said:- "So I just said that if he stole money from Mum then I wouldn't let him off scot free, I will kill him. But that was only what I said to scare him and when I, I shot, I, somehow he jumped sideway and accidentally he was shot. … When I shot at him I didn't aim at him, I was shooting on one side of where he was, but somehow it hit him." 15 He had earlier said that he wanted to fire a shot away from the deceased and had intended to shoot just to the side of him. He said he intended to do that as the deceased had disregarded warnings for proper behaviour earlier and he wanted to appear "fair dinkum about what I intended to scare him". 16 The bullet struck the deceased in the upper right side of his head and passed through his brain fatally injuring him. The learned trial judge accepted, and the evidence is all one way in this respect, that the prisoner then rushed over to the deceased and his actions thereafter are clearly indicative of caring for the deceased. 17 The plea had been accepted on the basis of manslaughter by way of unlawful and dangerous act. The Crown, when setting out the matters upon which it relied in its case on the plea, asserted that the shot had been fired to frighten the deceased to show the deceased his brother was serious and meant to find out who had taken the jewellery and the money. The Crown accepted that the shot was not meant to hit the deceased but merely to frighten him. 18 There was evidence in the ERISP that the applicant had a degree of familiarity with the weapon but it seems to have been accepted by the Director of Public Prosecutions and generally that the weapon had discharged in circumstances where it is possible for the magazine to be removed and replaced without affecting the bullet which would remain in the chamber and that the pistol might in those circumstances remain cocked. The detection of that potential for an unintended discharge apparently underlay the prosecutor's abandonment of the charge of murder and the acceptance of the manslaughter plea. 19 The possibility was open that a user might take out the magazine, see that it was empty, presume the gun was empty and not realising that there was a cartridge in the chamber, discharge the weapon without further cocking it. 20 The applicant gave evidence before his Honour as to the circumstances of the discharge of the firearm as follows:- "I threatened him but he kept saying he didn't do it and at that stage I thought that there was no bullet in the gun. Q. Go on. A. Never in my mind had I the thought of pulling the trigger but I do not know why the gun was fired." 21 He asserted that he hadn't shot the gun much and was not particularly familiar with the workings of the gun and that he had never, even though he had loaded the magazine into the gun that night, cocked the gun. He admitted having fired the gun on one occasion, firing 20 to 30 rounds on that occasion. He had said to the police that the bullet automatically got loaded into the gun when it was put in. He was not cross-examined to challenge his account before his Honour. 22 Although there was no cross-examination by the Crown, his Honour did ask a number of questions of the prisoner and, having received answers which he held were inconsistent with the prisoner's evidence on another occasion, handed down to the prisoner's counsel a copy of the transcript of the prisoner's evidence on the bail application. The prisoner accepted that the evidence he had given on the bail application was false asserting that he had not wanted to mention his family problems to the court. 23 He attempted to explain the inconsistency between the account of the shooting given in the ERISP and that given on oath before the trial judge on the basis that he was referring to differing occasions so that, although he had thought he might shoot the gun, he hadn't intended to shoot it at the time that it went off. 24 There was no further cross-examination by the Crown nor any case in reply, nor anything the Crown wanted to put on address, although there was some discussion as to the time at which the possibility of the acceptance of the plea first became available. 25 It was submitted that the first time at which the Crown was willing to accept a plea of manslaughter in discharge of the indictment, that plea was made. However, his Honour indicated that it could have been made, albeit on the basis that it was still open to the Crown to proceed with a charge of murder, at the committal. This discussion was in the context that at all times in the ERISP and subsequently, the applicant had admitted discharging the weapon. However, his Honour allowed for the utilitarian value: Regina v. Oinonen[1999] NSWCCA 310. 26 His Honour's attention was drawn to the Judicial Commission statistics of sentences for manslaughter which show a very wide spread of terms and the submission put to his Honour that those statistics show approximately 35 to 45% of matters with similar statistical parameters were dealt with by way of minimum terms of two years or less. 27 A further submission was put to his Honour that he should find special circumstances. 28 The trial judge rejected the applicant's account of the shootings given in evidence before him holding the applicant's earlier lies concerning his residence and separation from his wife raised with him by his Honour displayed a major defect in credibility. He was of the view that the prisoner's answers to questions concerning the firing of the pistol in the ERISP were clear and impossible to reconcile with his evidence on oath. He concluded that he could not accept that the applicant was as ignorant of the operation of the pistol as he had asserted. His Honour properly had regard to principle and held that acquaintanceship with the working of the pistol could not be used against the applicant unless his Honour was satisfied of that matter beyond reasonable doubt. His Honour concluded, on the basis of what had been said in the ERISP, that he accepted beyond reasonable doubt the account that the applicant took out the pistol, loaded the magazine into it, pointed the gun just to the side of the deceased and fired one shot which, unexpectedly, hit the deceased killing him. 29 His Honour found favourable subjective circumstances and that that prisoner had embarked upon employment in gaol. The prisoner is now 39 years of age, married with five children and had arrived in Australia as one of a group of boat people with two of his brothers, industriously worked here to bring his family to Australia and to set up and operate a sewing company. 30 His criminal record was limited to driving offences and offences of driving with a concentration of alcohol. He had not previously been sentenced to gaol. 31 The relevance here is particularly to whether the prisoner was entitled to the benefit of contrition or a pragmatic discount. However, both in the ERISP and in his evidence, the applicant's remorse and contrition was patent and corroborated by the other evidence and the plea avoided the trial proceeding further. His Honour gave the prisoner credit for those matters. 32 His Honour referred to the fact that the tragedy had arisen by reason of the prisoner's attempting to take over the father's role when the deceased seemed in need of supervision and that he had sought to look after his mother's and brothers' interests, albeit by an entirely inappropriate mode. Rightly, his Honour had reference to the serious nature of the offence and that by his act the prisoner had caused the death of another human being. Further, that there had been no room for a gun whatsoever in ordinary social intercourse in our society; that those matters required a deterrent sentence, albeit that his Honour concluded that the applicant's act was "an act of sheer stupidity". 33 His Honour was given little assistance as to the range of sentences. His Honour did not find special circumstances. 34 It has often been said that the range of sentence in manslaughter cases is extremely wide (Regina v. Schelberger (CCA, unreported 2 June 1977); Regina v. Faulstone (CCA, unreported 18 July 1990)). Unlawful and dangerous act manslaughter, even in circumstances in which a weapon might be used, commands sentences involving an effective time in custody of four to six years up to seven and a half to eight years. About 30% of offenders received a minimum or fixed term greater than four years according to the Judicial Commission statistics in the period January 1990 to December 1998. 35 His Honour's sentence, in those circumstances, particularly with reference to the provocative conduct by the deceased, the focus of his Honour's finding of the applicant's stupidity, the context of the use of a gun and the tragic circumstances which attended this attempt at performing a responsible family role is to be seen, particularly in the absence of a finding of special circumstances, as severe. However, on an application of this kind, this court sits, not to review or re-hear but, for error. It is contended that his Honour's finding as and between the two competing versions given by the applicant on oath and on the ERISP was not open to him, although it is conceded that he was not bound to accept the version most favourable to the applicant. 36 His Honour accepted as necessary that circumstances aggravating the offence be established beyond reasonable doubt (see Chow v. Director of Public Prosecutions (1992) 28 NSWLR 593 at 607; Anderson v. The Queen (1993) 177 CLR 520; Regina v. Isaacs (1997) 41 NSWLR 374; Regina v. Olbricht [1999] HCA 54) but it is submitted that by application of this principle he should not have rejected the account of the applicant such as to come to a different conclusion. 37 Such a submission in the circumstances of this case is misconceived. The applicant in effect gave three versions. One of not intending to shoot; one involving an intention to shoot; and the third that at different times he had an intention to shoot, but shot at a time at which he did not have an intention to shoot. His Honour did not have to accept the most favourable of these. 38 In my view, it was open to his Honour to have sentenced on the basis that the applicant had an intention to shoot, albeit not to harm. It was that matter which was highly important and which gave significance to the difference between the two accounts. His Honour was entitled to reject the asserted unfamiliarity with the weapon. His Honour's findings of fact were based on the evidence and open to him and it was therefore open to him to impose a total sentence as long as this one is. Even bearing in mind the prisoner's apparently worthy background, the offence arising from, as his Honour put it, "sheer stupidity", the depression noted in the report of Anthony Diment, consultant psychologist, tendered on the plea without objection, the prior adverse circumstances under which he grew up and which caused him to come to Australia, the break down of his marriage, the separation from his wife, the prospective loss of his business, all of which has led to a diagnosis of depressive illness, it cannot be said the sentence exceeded the proper ambit of his Honour's discretion. 39 Although these matters, coupled with the fact that this is the applicant's first period of incarceration and that his crime has led to the disintegration of his family and his alienation from many of its members are such as to have left it open to hold the prisoner was in need of a longer additional term than usual but it was not necessary for his Honour to make this finding. It was open to his Honour as a matter of law not to find special circumstances and in the exercise of his discretion to structure the sentence as he did. I cannot find legal error in the exercise of his Honour's discretion here also. 40 It is for those reasons that I proposed the following orders: (i) leave to appeal allowed; (ii) appeal 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.