Regina v Thang Quoc LUONG [2000] NSWSC 505

New South Wales Supreme Court

CITATION : Regina v Thang Quoc LUONG [2000] NSWSC 505 FILE NUMBER(S) : SC 70035/99 HEARING DATE(S) : 15/05/2000 to 19/05/2000 JUDGMENT DATE : 8 June 2000

PARTIES : Regina Thang Quoc LUONG JUDGMENT OF : Sully J

COUNSEL : T. Hoyle SC - Crown A. Webb - Defence SOLICITORS : D.P.P. - Crown Legal Aid - Defence LEGISLATION CITED : Reg v MacDonald (unreported: CCA (NSW), 12 December 1995) Reg v Gordon (1994) 71 A Crim R 459 CASES CITED : Crimes (Sentencing Procedure) Act 1999 Children (Community Service Orders) Act 1987 DECISION : Sentence of imprisonment for 4 years, with non-parole period of 2 years. The sentence and non-parole period are taken to have commenced on 16 May 2000. The earliest day eligible for parole is 15 May 2002

SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

SULLY J

Thursday 8 June 2000

70035/99 - REGINA v Thang Quoc LUONG

ON SENTENCE

1 HIS HONOUR: On 15 May 2000 the prisoner was presented in this Court for trial upon an indictment charging him with the manslaughter, on 13 December 1966 at Cabramatta, of one Jenny Liu. The prisoner pleaded not guilty and he was put, accordingly, upon trial by jury. On 19 May the jury found the prisoner guilty as charged. He was remanded in custody to 26 May, and a pre-sentence report was ordered. On 26 May the Court heard some brief evidence, and the submissions of counsel, in connection with sentence. The prisoner was remanded thereupon until today for the passing of sentence. 2 The material facts are as follows. 3 On 13 December 1996 the prisoner, then a high school student at the end of his Year 10, hosted at his family home a party for a number of school friends. In all about a dozen people attended the party, arriving at various times before lunch-time. One of the guests was Jenny Liu, a close school friend of the prisoner. 4 At the time, the prisoner owned a sawn-off rifle and at least one round of live ammunition. The weapon and ammunition were normally concealed in a space beneath the prisoner's study desk. The prisoner told the investigating police that he had owned the weapon and the ammunition for about a month; that he had bought them for $70 from "a man, a junkie, out in Cabramatta"; and that his motive for acquiring the weapon and ammunition had been self-protection against "all the bad guy". 5 The prisoner did not give evidence at his trial, and so his version of what led up to the death of Miss Liu has to be gleaned from an electronically recorded interview of the prisoner by the investigating police. 6 It appears from that interview that, during the course of the party, the prisoner disclosed to some of his friends that he had this particular weapon. Some of the friends asked, naturally enough, to see the weapon, and the prisoner duly produced it for their inspection. At a time about 10 minutes after the production of the weapon, the prisoner, holding the weapon, was seated in a front bedroom of the family home. With him were several of his friends. Jenny Liu came into the room and saw the weapon in the prisoner's hands. She asked him whether it was a real weapon, and the prisoner told her that it was a fake because, as he told the police, "I didn't want the girl to know". Thereupon the prisoner removed the magazine from the weapon, cocked it and pulled the trigger. In fact, there was then loaded in the weapon a round of live ammunition. The weapon discharged that bullet in the direction of Jenny Liu, who was then about a metre away. The bullet struck Miss Liu, wounding her fatally. 7 The Crown case at trial alleged two alternative types of manslaughter: first, manslaughter by unlawful and dangerous act; and secondly, manslaughter by criminal negligence. It is not possible to say that the jury preferred one in particular over the other. I myself am satisfied beyond reasonable doubt that the jury could properly have convicted upon both bases. It could not be sensibly gainsaid, in my opinion, that it was at once unlawful, dangerous, and criminally negligent to have fired the weapon in the confines of a small suburban bedroom, and at a time when several people were congregated in that space, without having first taken the most precise and particular steps to ensure that the weapon was clear. I am satisfied beyond reasonable doubt that the prisoner did not take any such precise and particular steps. 8 The prisoner was born on 17 March 1979. He was aged, therefore, 17 years and 9 months almost to the day on the occasion of the shooting. Miss Liu was aged 16 years at that time. It is trite that the shooting of Miss Liu was a tragedy for her, for her family and for the prisoner and his family. It is, however, important that a proper sense of that tragedy not obscure a proper sense of the objective gravity of the prisoner's offence. 9 In that connection the following observations of Gleeson CJ, Kirby P and Hunt CJ at CL in their joint judgment in Reg v MacDonald (unreported: Court of Criminal Appeal (NSW): 12 December 1995), are, in my opinion, very much now in point: "In a case such as the present it is important to bear in mind the denunciatory role of sentencing. Manslaughter involves the felonious taking of human life. This may involve a wide variety of circumstances, calling for a wide variety of penal consequences. Even so, unlawful homicide, whatever form it takes, has always been recognised by the law as a most serious crime. ……………………………….The protection of human life and personal safety is a primary objective of the system of criminal justice. The value which the community places upon human life is reflected in its expectations of that system. In R v Hill (1981) 3 A Crim R 397 at 402, Street CJ said: 'In such a case 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'." [see at p 8] 10 Approaching from that viewpoint the facts of the present case, I cannot see how the present manslaughter could be regarded fairly as anything other than culpable in high degree. 11 The subjective matters which are available on the evidence can be summarised as follows: