Regina v Le [2001] NSWSC 497

New South Wales Supreme Court

CITATION : Regina v Le [2001] NSWSC 497 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC 70046/00 HEARING DATE(S) : 1 June 2001 JUDGMENT DATE : 1 June 2001

PARTIES : The Crown Anh Tuan Le (Prisoner) JUDGMENT OF : McClellan J

COUNSEL : D Frearson (Crown) Dr M Gumbert (Prisoner) SOLICITORS : Director of Public Prosecutions (Crown) Voros & Associates (Prisoner) CATCHWORDS : CRIMINAL LAW - SENTENCING - Manslaughter - stab wound - melee - flight from scene - act of stabbing deliberate - no evidence justifying use of knife in a manner which killed the deceased CASES CITED : R v Georgina Marie Hill 3 A Crim R 397 DECISION : See para 30

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

McCLELLAN J

FRIDAY, 1 JUNE 2001

70046/00 - REGINA v Anh Tuan LE

SENTENCE

1 HIS HONOUR: The prisoner, Anh Tuan Le, was indicted that on 23 February 2000 at Cabramatta he did murder Tuan Quoc Nguyen. The jury found him not guilty of murder but guilty of manslaughter. 2 The evidence discloses that the prisoner was born in Vietnam and came to Australia in August 1999 on a student visa. He initially lived with a family at Randwick and later moved to Campsie and then to Cabramatta, where he apparently lived for a time with the victim and his brother, Phat Quoc Nguyen. The arrangement appears to have been initially satisfactory but after a short while disputes arose in relation to money, and the prisoner moved out. At the time of the offence the prisoner appears to have been living variously at Bankstown or on the streets. 3 Tuan Quoc Nguyen died on the morning of 23 February 2000. The previous evening the prisoner was with another person, playing video games in a shop in Cabramatta. Phat Quoc Nguyen and the deceased were also there. The evidence discloses that there was a conversation, followed by a fist fight. The prisoner won the fight, which took place without any weapons. All of the parties then left those premises. 4 The next morning the prisoner was sitting, talking to an acquaintance by the name of Nhat in Arthur Street, Cabramatta. They were outside a restaurant, next to a lane that goes north to a carpark and then into Hughes Street. 5 Eyewitness accounts of the events were given by a number of people. For various reasons some of the evidence was unsatisfactory. It may be that because of the speed with which the events occurred different witnesses, without reason to do other than tell the truth, have differing accounts of some of the detail. It is difficult to reconcile all of the evidence in a satisfactory manner. 6 However, I am satisfied beyond reasonable doubt that while talking to his acquaintance, the prisoner observed Phat Quoc Nguyen and the victim and another two people in the middle of the carpark. They were walking towards him when on the other side of the road to the prisoner, one person in the group, stopped but the others continued walking. The victim said to the prisoner, as he approached, "Come over here. I want to talk to you". The prisoner moved away but, perceiving a threat from the advancing group, ran to a nearby garden, where a knife had been secreted, and returned. 7 The prisoner does not accept that he delivered the fatal wound to the victim, but he does not deny that it may have been caused by him. The wound, although fatal, was of relatively small dimension and the prisoner, although conceding that he had retrieved a knife, said that its dimension was far greater than the size of the wound. If this evidence was correct, the prisoner's knife could not have been responsible for the fatal stabbing. 8 There was evidence that a knife of the dimensions which could have caused the fatal wound was observed to be secreted in a laneway near to the scene earlier that morning. The person identified as having placed the knife in that location, Mr Tuan Trieu, was a friend of the victim and was observed at the place where he was stabbed. 9 The knife which he had been observed to position before the events could not be located, when a search was conducted, and it is reasonable to assume that Tuan Trieu himself retrieved it. However, as I have indicated, he was a friend of the deceased and there is no evidence that he stabbed the deceased, although he may have joined in the melee. 10 There is direct evidence that the prisoner stabbed the deceased, given by the deceased's brother, Phat Quoc Nguyen. Two statements made by Phat Quoc Nguyen were tendered in evidence, submissions being made on behalf of the prisoner that they should be admitted, notwithstanding the fact that Phat Quoc Nguyen, although present outside the court on the first day of the trial, had flown to Vietnam before giving oral evidence. In that statement, Phat Quoc Nguyen not only says that he saw the prisoner stab his brother but describes the weapon he saw the prisoner using in a manner consistent with the wound which caused the death. 11 Because he did not give evidence Phat Quoc Nguyen's evidence must be approached with caution. However, I am satisfied that it should be accepted, at least, on these issues. 12 I have no doubt that it was the prisoner's act of stabbing with the knife which he retrieved from the garden which caused death. I am also satisfied that by the time the stabbing occurred a general melee was taking place, which involved a number of people, some of whom had weapons. However, although there is evidence that the victim was carrying a pipe, there is no evidence that the prisoner's life was being directly threatened at the time that he stabbed the victim. 13 The prisoner fled the scene and took his weapon with him, which he subsequently discarded. The weapon was not recovered and it was many days later before the prisoner was arrested and charged. 14 At his trial the prisoner did not deny that he killed the deceased. He said that he did not know whether it was the weapon he was holding which caused the fatal wound. He said that when he was approached by the men, including the victim and his brother, he was frightened, tried to escape, but his path, being blocked, he sought the weapon which he knew to be secreted in the garden to defend himself. He said he acted in self-defence. 15 The jury rejected his defence and, although finding him not guilty of murder, convicted him of manslaughter. Both the murder case and that of manslaughter were put to the jury on the alternate basis that the prisoner was engaged in a joint enterprise with his acquaintance. As I have indicated, notwithstanding that the matter was put on this basis, I have no doubt that the prisoner was responsible for the fatal wound. 16 I am satisfied that the prisoner either secreted the weapon or knew where it was hidden and decided to respond to the situation by retrieving it and using it in any fight. His act of stabbing was deliberate and, although a threat existed, there is no evidence which would justify him using the knife in a manner which killed the deceased. Even though there is evidence that the victim had a pipe, there is no evidence which would indicate that the prisoner was entitled to respond to any threat made to him by fatally stabbing the victim. 17 When sentencing the prisoner, it is necessary for me to bear in mind the objective circumstances in which he found himself. It is plain that he felt threatened by the advancing group and that, having regard to the events which occurred on the previous evening, he was entitled to believe that it may be necessary for him to respond by physically defending himself against a threat. 18 In these circumstances, I am satisfied beyond reasonable doubt that although the prisoner was entitled to take steps to defend himself, retrieving the knife and using it in the melee, as he did, was an excessive response to the situation. 19 There is no doubt that sentencing for manslaughter is a difficult process. The range of sentence is greater than for almost any other offence. The maximum penalty is twenty-five years penal servitude. In Georgina Marie Hill v R 3 A Crim R 397, the Chief Justice said: "The circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder can vary infinitely, and it is not always easy to determine in any given case what should be done in the matter of sentence. At the start it should be recognised that the felonious taking of a human life is recognised both in the Crimes Act 1900 and in the community at large as one of the most dreadful crimes in the criminal calendar. The courts have, however, over the decades gradually manifested a willingness to recognise factual contexts which provide some basis for understanding the human tragedies that can lead to the taking of a life. The manifestation of this humanitarian tendency is necessarily attended by the utmost caution. It can be seen to be constantly written in the decisions of the courts and in the enactments of the legislature that the taking of a human life is a grave action calling for a correspondingly grave measure of criminal justice being meted out to the guilty party. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the prisoner 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." 20 I must have regard, when determining the penalty which it is appropriate to impose, to the objective assessment of the criminality of the act leading to death. I must also have regard to the need for deterrence and to discourage others from unlawful and dangerous attacks using knives and similar weapons. 21 I must also make plain that the law will not condone the excessive use of force, especially when that involves the taking of human life. It must be made clear that persons who are tempted to commit crime will be punished severely if they yield to that temptation. This is particularly the case when the contemplated crime involves the use of knives or similar weapons with a significant risk to human life. Our community rightly expects that those who take another's life in those circumstances will be severely punished. 22 In the present case, I am satisfied that the events of 23 February 2000 should be understood as a continuation of the events of the preceding evening. Of course, the animosity evident on that occasion had a history stemming from the time when the prisoner lived with the victim and his brother. It would seem that the parties were unable to resolve their animosity without resorting to violence and, although, on 22 February, this was limited to a fist fight, the situation escalated greatly, the following day. 23 The prisoner's actions in retrieving the weapon and using it in the fight must be understood in the context of the preceding events. I have no doubt that he was ready for a fight and prepared to use the secreted knife to inflict injuries on the victim or his brother or anyone accompanying them. There is no evidence that the killing was related to drugs, gang warfare or any other organised criminal activity. 24 With respect to subjective matters, it is important to appreciate that the prisoner is now aged twenty-three. He was born in Vietnam and the reports from the Probation and Parole officer, who has interviewed him, and that of Terry Kesby-Smith, a clinical psychologist, both identify that the prisoner had a stable upbringing in Vietnam. He completed high school in that country and then entered university, undertaking a course in navigation. It appears that he had completed three years of that course and it was his intention to return to Vietnam to pursue a career in shipping. He came to Australia for the purpose of receiving intensive education in the English language at Martin College at Darlinghurst. I understand that his parents paid for the course and were providing money for his living expenses. At that point of his life there would appear to be no reason why he would not have gone on to become fluent in English, return to Vietnam and create a successful and fulfilling life for himself. There is no indication of any problems which occurred during the course of the years in his life prior to him coming to Australia. 25 However, tragically, not long after taking up residence in Australia and pursuing his studies, his life appears to have significantly deteriorated. He apparently left the accommodation which was originally available for him and, as I have earlier indicated, effectively ended up living on the streets. Although he initially attended regularly at the Martin College, his attendance appears to have deteriorated, and he was described by the college as a loner. Although his facility with the English language has increased, the apparent objective that he become fluent has not so far materialised. 26 There is no evidence that the prisoner has any problems with alcohol and prior to the offence it would appear he had no difficulties with drugs of addiction. He did take to using heroin in the days after the killing when he was seeking to avoid capture. I, however, am told, and accept, that he has no continuing problem with heroin. 27 Through the clinical psychologist the prisoner indicates significant sorrow for the death of the victim, and I accept that that sorrow is genuine. I have no doubt that the prisoner greatly regrets the path which his life has taken since he came to Australia, culminating in the tragic events of 23 February 2000. 28 There is some evidence of at least one prior offence for shoplifting in Australia. Although his tendered record suggests that there are other offences, these are disputed, and the Crown does not advance that, in any event, they are matters which should be considered in the course of my determination of the appropriate sentence in this matter. Accordingly, I expressly disregard the material in exhibit A when determining the appropriate sentence. 29 The prisoner was arrested on 17 March 2000, and he has been in custody since that time. In my opinion a further custodial sentence is necessary. Furthermore, I believe that if, at the end of that custodial sentence, upon his release, he remains in Australia in circumstances similar to those which existed at the time of the present offence, he may have significant difficulties in rehabilitating himself. However, having regard to the material tendered before me, if upon his release he returns to Vietnam, there would appear to be a significant prospect that he may be able to take up his life where he left it upon coming to Australia. If this occurs, there would appear to be every reason to believe that he will be able to satisfactorily rehabilitate himself and live a productive and fulfilling life. However, as I have indicated, in my opinion the circumstances of the offence necessitate a further period of full-time imprisonment. 30 Mr Le, you have been found guilty of the offence of manslaughter. I have heard and taken into account all of the matters that have been put by counsel on your behalf. In particular, I have had regard to the circumstances in which the offence occurred, and to the material brought forward on your behalf by the clinical psychologist and the Probation and Parole officer. You are convicted of manslaughter. You are sentenced to a term of six years imprisonment to commence on 17 March 2000, with a non parole period of four years commencing 17 March 2000 and expiring on 16 March 2004 with an additional term of two years commencing 17 March 2004 and expiring 16 March 2006. Accordingly, you will be eligible for parole on 16 March 2004.