Public Prosecutor v Gosling Andrew

• Jurisdiction: Singapore
• Judge: Victor Yeo Khee Eng
• Judgment Date: 11 October 2022
• Neutral Citation: [2022] SGDC 239
• Court: District Court (Singapore)
• Docket Number: District Arrest Case No 924801 of 2019 & Anor, Magistrate’s Appeals No 9067-2022-01
• Published date: 18 October 2022
• Year: 2022
• Hearing Date: 25 February 2022,08 April 2022
• Plaintiff Counsel: Deputy Public Prosecutor G Kannan, Thiagesh Sukumaran and Ben Tan (Attorney-General's Chambers)
• Defendant Counsel: Mr N Sreenivasan S.C and Mr S Balamurugan (M/s K&L Gates Straits Law LLC) and Ms Gloria James and Mr Kevin Liew (M/s Gloria James-Civetta & Co)
• Subject Matter: Criminal Procedure and Sentencing,Sentencing,Causing Death by a Rash Act not amounting to Culpable Homicide,Causing Grievous Hurt by a Rash Act to endanger Human Life
• Citation: [2022] SGDC 239

Principal District Judge Victor Yeo Khee Eng: Introduction

This is an appeal against sentence by the Accused, Mr Gosling Andrew, a 49-year-old Australian national, who pleaded guilty to one charge of causing death by a rash not amounting to culpable homicide under s 304A(a) Penal Code (Cap 224, Rev Ed 2008), and one charge of causing grievous hurt by a rash act which endangers life or the personal safety of others under s 338(a) Penal Code (Cap 224, Rev Ed 2008).

The charges read as follows: -

1st Charge (DAC-924801-2019) [“ First Charge ”]

You, [Accused], are charged that you, on the 18th day of August 2019, at or about 8.35 pm, at Spottiswoode 18 (“the Condominium”), located at 18 Spottiswoode Park Road, Singapore 088642, did cause the death of Nasiari Bin Sunee (“Nasiari”), by doing a rash act not amounting to culpable homicide, to wit, by throwing a wine bottle from the 7th floor lift lobby of the Condominium towards the table area on the 5th floor of the said Condominium, which bottle struck Nasiari on his head, causing head injuries which led to Nasiari’s death, and you have thereby committed an offence punishable under Section 304A(a) of the Penal Code (Rev. Ed 2008, Cap 224).

2nd Charge (DAC-933441-2019) [“ Second Charge ”]

You, [Accused], are charged that you, on the 18th day of August 2019, at or about 8.35 pm, at Spottiswoode 18 (“the Condominium”), located at 18 Spottiswoode Park Road, Singapore 088642, did cause grievious hurt to one Manisah Binte Sitri (“Manisah”) by doing an act so rashly as to endanger human life, to wit, by throwing a wine bottle from the 7th floor lift lobby of the Condominium towards the table area on the 5th floor of the Condominium, which bottle struck Manisah on her right shoulder, resulting in injuries which caused her to be unable to follow her ordinary pursuits during the space of 20 days, and you have thereby committed an offence punishable under Section 338(a) of the Penal Code, Cap 224, 2008 Rev. Ed

Prescribed Punishment

For the First Charge for causing death by a rash act not amounting to culpable homicide under s 304A(a) Penal Code, the prescribed punishment is an imprisonment term which may extend to 5 years, or with fine, or with both.

For the Second Charge for causing grievous hurt by a rash act which endangers life or the personal safety of others under s 338(a) Penal Code, the prescribed punishment is an imprisonment term which may extend to 4 years, or a maximum fine of $10,000, or with both.

The Accused was sentenced to four (4) years’ imprisonment for the First Charge and 18 months’ imprisonment for the Second Charge. I further ordered that the sentences run consecutively, making an aggregate sentence of four (4) years’ and 18 months’ imprisonment. The sentence was ordered to commence with effect from the date of the Accused’s surrender on 28 August 2019. These are the reasons for the sentence imposed.

Statement of Facts

The Accused admitted to the Statement of Facts (“SOF”) without qualification.

The SOF revealed that the accused, 49 years old, is an Australian National. He was unemployed at the material time.

The two victims are Mr Nasiari Bin Sunee (“the first victim”), 73 years old, and Mdm Manisah Binte Sitri (“the second victim”), 69 years old. They were husband and wife.

On 18 August 2019 at about 8.38 p.m., one Mr Mohd Razi called ‘999’ to lodge a police report that “someone threw a bottle down to where they were having a BBQ, and that someone is injured and the bottle hit his head.”

The location given was Apartment Block 18, Spottiswoode Park Road, Spottiswoode 18, Singapore 088642. Police and ambulance resources were deployed to the scene.

The SOF revealed that the Accused entered Singapore on 15 July 2019 for the purposes of seeking employment. After he had applied for his work pass with the Ministry of Manpower, the Accused sought accommodation in Singapore. On 9 August 2019, he began renting unit #XXX (“the unit”) at Spottiswoode 18 condominium (“the condominium”), located at 18 Spottiswoode Park Road, Singapore 088642.

On 18 August 2019, the Accused met an acquaintance, one “Chak” for lunch. After lunch, the Accused and “Chak” drank a pint of beer each at a bar at about 3.00 p.m. The Accused returned to the unit at about 3.30 p.m. and went for a swim at the swimming pool, located at the 5th floor of the condominium.

While the Accused was swimming, he noticed that a group of persons were having a barbeque (“the BBQ group”) on the 5th floor next to the swimming pool (“the BBQ area”). The two victims would later join the BBQ group.

From the photograph of the BBQ area taken at around 5.12 p.m., it showed a number of people (about 13 persons) who were present at the BBQ area at that time.

Following his swim, the Accused left the condominium at about 6.00 p.m. to have dinner at Tanjong Pagar Hawker Centre. During dinner, the Accused drank two large bottles of Tiger Beer. Each bottle contained 640 ml of beer. After dinner, the Accused returned to his condominium unit at about 7.00 p.m. At the unit, the Accused drank a can of Anchor beer containing 330 ml of beer. He consumed the beer at the balcony of the unit, which overlooked the swimming pool. The Accused admitted during police investigations that, at this juncture, he knew that he was a “bit drunk”.

From his balcony, the Accused could see the BBQ group. He observed that the BBQ group comprised of individuals belonging to the Malay/Muslim community because he noticed several of the females in the BBQ group wearing headscarves. At this stage, the two victims had joined the BBQ group. There were an estimated 10 to 15 people who were part of the BBQ group at this point of time.

The Accused admitted that whilst at his balcony, and upon seeing Malay/Muslim persons at the BBQ area, the thought crossed his mind that he ought to use a weapon, such as a gun, to shoot at the BBQ group. However, he dismissed this thought because he felt that it would be a “heinous” act.

Sometime before 8.30 p.m., the Accused left his unit on the 7th floor to dispose of his rubbish at the common rubbish chute, which was located at the lift lobby of each floor. As the Accused lived on the 7th floor, he proceeded to dispose of his rubbish at the rubbish chute that was located at the lift lobby of the 7th floor. The 7th floor lift lobby overlooked the BBQ area on the 5th floor. As he disposed of his rubbish, the Accused had a clear view of the BBQ group below at the BBQ area, and could see 12 to 15 people thereat.

At the rubbish chute, the Accused found an empty wine bottle (“the bottle”), measuring a length of 30.1 cm, and weighing about 0.62 kg.

Sometime around 8.35 p.m., the Accused held the bottle by its neck, using his right hand. He raised the bottle behind his head and flung it downwards, using an over-arm throwing motion, aiming the bottle towards the area in which the tables at the BBQ area were located (“the table area”). Members of the BBQ group were gathered at the table area.

When the Accused threw the bottle from the 7th floor of the condominium, the two victims were seated at one of the tables.

The height between the 5th floor and the 7th floor of the condominium is 10.53 metres. The approximate distance between the accused’s position at the 7th floor of the condominium and the first victim’s position was about 18.29 metres.

After the Accused threw the bottle, he ran back towards his unit. While running back towards his unit, the Accused shouted abusive words against Muslim. The Accused ran back to his unit because he did not want anyone from the BBQ group to have seen him throwing the bottle from the 7th floor.

The bottle thrown by the Accused flew through the air downwards towards the BBQ group and struck the first victim on his head. The bottle ricocheted off his head before hitting the second victim on her right shoulder. After hitting the second victim, the bottle landed on the ground and remained unbroken.

The first victim collapsed on the ground and was rendered unconscious. He was later conveyed by an ambulance to Singapore General Hospital (“SGH”). When the ambulance arrived, the paramedics noticed that the victim was semi-conscious and was groaning in pain.

The second victim subsequently found that she could not raise her right arm, and a second ambulance was called to convey her to SGH.

The Accused admitted during police investigations that he threw the bottle towards the table area for two reasons: The Accused threw the bottle as an act of mischief as he wanted to startle the BBQ group when the bottle hit the ground and broke upon impact; and The Accused committed the act as he was angry and upset at the terrorist attacks committed by Islamic fundamentalist groups in Bali and Melbourne, that had killed Australian citizens.

The Accused admitted that he had acted rashly in throwing the bottle from the 7th floor towards the table area. When he did so, he was aware that there were people seated at, and standing around the tables in that area. The Accused was fully aware of the risks associated with throwing the bottle towards the table area. Specifically, the Accused was aware that there was a risk that the bottle he threw from such a height would strike one or more persons at or around the table area, causing death and/or serious injuries. Although the Accused was aware of these risks, he considered these risks to be “low” and did not do anything to mitigate the risk of the bottle hitting someone.

Accordingly, by throwing the bottle towards the table area, the Accused took a conscious and deliberate risk that the bottle would strike one or more persons at or around the tables in the area, causing death and/or serious injury to them. In doing so, the Accused demonstrated a clear heedlessness towards the said risk of resulting death and/or serious injury.

A medical report dated 9...