Man who threw bottle that killed 73-year-old in act of 'religious hostility' has jail term cut by 6 months

SINGAPORE: A man who threw a wine bottle which struck and killed a 73-year-old man in 2019 has had his jail term shortened by six months upon his appeal at the High Court on Tuesday (Dec 20).

Australian Andrew Gosling will now serve five years in prison instead of the original term of five years and six months which he was sentenced to earlier this year after pleading guilty to two charges.

Gosling, 50, had been handed four years' jail for the charge of causing death by a rash act, and 18 months in jail for the charge of causing grievous hurt by a rash act, with the sentences running consecutively.

Upon appeal, the jail term for causing death by a rash act was reduced from four years to three-and-a-half years. The sentence for causing grievous hurt by a rash act remains the same, making the new aggregate sentence five years' jail. 

In imposing the new sentence, Justice Chua Lee Ming considered that the aggregate sentence should not exceed the maximum for the more serious charge - which in this case was the charge of causing death by a rash act, which carries a maximum jail term of five years. He then shortened the jail term for this charge by six months. 

On Aug 18, 2019, Gosling threw the bottle from the seventh floor of Spottiswoode 18 condominium at a group of Malay-Muslims who were at the fifth-floor swimming pool area, wanting to startle them.

He had been "angry and upset" at attacks committed by fundamentalist groups in Bali and Melbourne that killed Australian citizens.

The bottle struck the head of an elderly man, killing him, before ricocheting and striking the shoulder of the man's 69-year-old wife, injuring her.

The district judge said during sentencing in April that Gosling's actions could be viewed as demonstrating "religious hostility" towards the group and that he must be firmly dealt with.

On Tuesday, Gosling's lawyers argued that the original sentence was "manifestly excessive" and that the jail term should be four years at the most. 

The hearing was conducted on Zoom, with Gosling appearing online from remand and his parents attending virtually from Australia.

Lawyers Gloria James-Civetta, N Sreenivasan and Selvarajan Balamurugan contended that the district judge in the State Courts had erred in ordering the sentences to run consecutively rather than concurrently. 

The district judge had also failed to adequately consider the forensic psychiatric report and placed undue weight or excessive reliance on the fact that the offences involved religious hostility, said the lawyers. 

Senior Counsel Sreenivasan said that the district judge failed to take into account that the offences occurred from a single act of throwing the wine bottle, even though two people were harmed.

Mr Sreenivasan referred to the one-transaction rule, which essentially ensures that an offender is not doubly punished for the same conduct. 

There was no evidence that Gosling had targeted these two people with the single wine bottle, Mr Sreenivasan argued.  

"The consequences I readily admit could affect more than one person, it's like if you drive a car at high speed you could hit one or more pedestrians ... that's why I'm not saying it's a single offence, it's a single state of mind applicable to both offences," Mr Sreenivasan said. 

Using a scenario where a driver drove into a bus stop - knowing that there were people there - and injured five, Justice Chua asked if it was right that the driver be effectively punished only once.

The judge felt that the one-transaction rule did not apply in the present case. He noted that Gosling had thrown the wine bottle towards the pool area fully aware of the risk that he could hurt one or more persons there.

"It would be against common sense to say that he should be punished for the death/injuries caused to only one person, no matter how many persons were killed/injured by his act," he said. 

Mr Sreenivasan also argued that the district judge had not considered the totality principle in his decision. This principle is applied by judges at the end of the sentencing process to ensure that the overall sentence is sufficient and proportionate to an offender's overall criminality. 

Gosling's lawyers contended that the aggregate sentence breached the totality principle as it exceeded the normal level of sentences imposed for the more serious offence - the charge of causing death by rash act - and the maximum sentence under that charge.

Justice Lee said that for the present case, imposing an aggregate sentence equal to the sentence imposed for the charge of causing death by rash act "would not meet the ends of justice". 

"However, in my view, on the present facts, the aggregate sentence ought not exceed the maximum provided for (that charge). For this reason and to this extent, I allow the appeal and reduce the aggregate sentence to five years’ imprisonment."

DOUBLE COUNTING AGGRAVATING FACTOR

The lawyers also argued that the aggravating factors in both charges were "given effect twice" by the district judge. 

"It is clear that the learned district judge had taken into consideration aggravating factors such as the purported religiously aggravated offending and intoxication for both offences. In ordering consecutive sentences, the common aggravating factors also 'run consecutively' as these factors are given effect twice.

"If the sentences are to be consecutive - which they should not be - then the aggravating factors should only be considered once," the lawyers in submissions. 

Justice Lee disagreed that the district judge had erred in applying the same aggravating factors to both charges.

"The same facts gave rise to two different offences as two victims were involved. I do not see why the same aggravating factors cannot be considered in respect of each offence," said the judge. 

Mr Sreenivasan also submitted that the district judge disregarded a forensic psychiatric report jointly done by an Institute of Mental Health psychiatrist and a private psychiatrist. 

The report noted that Gosling's negative religious thoughts during the incident were likely a “product of his impaired mental state at that time” as he had been intoxicated with alcohol and disinhibited.

The psychiatrists agreed that Gosling's thoughts were “not genuinely reflective of any anti-muslim sentiment” and, further that it is “unlikely to have been religiously motivated”, said the lawyers. 

"Notwithstanding this, the learned district judge held that he could not disregard the gravity of the matter and had to impose a very stiff custodial sentence. Respectfully, this approach is not logical," the lawyers said in submissions.

However, Justice Lee disagreed that the district judge had disregarded the report. 

Justice Lee noted that the district judge said Gosling demonstrated racial hostility while intoxicated, and did not say that Gosling was racially motivated. "He has not in his judgment anywhere taken a position contrary to the experts' opinion," Justice Lee said. 

All he said was that Gosling had demonstrated racial hostility and that this was affected by intoxication which cannot be denied, Justice Lee said. 

Arguing against the appeal, the prosecution, represented by Deputy Public Prosecutor Tan Ben Mathias, said that the district judge was correct in ordering the sentences to run consecutively which reflected the overall criminality of Gosling's offences. Mr Tan disagreed that there was any overlap or double counting of aggravating factors. 

Even if the harm caused had been occasioned from a single act, Mr Tan said that the consequences of "profound and irreversible harm" caused to the victims also needed to be taken into account.  

According to Gosling's lawyers, their client has been remanded since Aug 28, 2019, which is nearly 40 months. With a one-third remission factored in, this means that Gosling may be released by the end of this month, Mr Balamurugan told CNA.

Causing death by a rash act carries a jail term of up to five years, a fine or both. Causing grievous hurt by a rash act carries a jail term of up to four years, a fine of up to S$10,000 or both.