New South Wales Supreme Court CITATION : Regina v NMTP [2000] NSWSC 1170 revised - 23/02/2001 FILE NUMBER(S) : SC 70023/00 HEARING DATE(S) : 19/10/00, 23/10/00, 24/10/00, 25/10/00, 27/10/00, 30/10/00, 31/10/00, 01/11/00, 02/11/00, 03/11/00, 06/11/00, 07/11/00, 08/11/00, 09/11/0, 10/11/00, 13/11/00, 14/11/00, 15/11/00, 16/11/00, 17/11/00, 20/11/00, 20/12/00 JUDGMENT DATE : 20 December 2000 PARTIES : Regina NMTP JUDGMENT OF : Bell J at 1 COUNSEL : Mr B Newport QC Crown Mr J Gordon - prisoner SOLICITORS : S E O'Connor - Crown Clive Jeffreys & Associates - prisoner Crimes Act 1900 LEGISLATION CITED : Criminal Procedure Act 1986 Children (Criminal Proceedings) Act 1987 Crimes (Sentencing Procedure) Act 1999 R v Crombie [1999] NSWCCA 297 R v Coleman (1990) 19 NSWLR 467 CASES CITED : R v Fltecher-Jones (1994) 75 A Crim R 381 R v GDP (1991) 53 A Crim R 112 R v Pham (1991) 55 A Crim R 128 DECISION : Count 2 - firing a firearm in a public place - sentenced to 3 months imprisonment to date from 06/11/99. Count 3 - malicious wounding of Paul Hoa Long Dinh with intent to do him grievous bodily harm - sentenced to a term of 3 years imprisonment to date from 6/11/99. Non parole period of 18 months imposed. Count 4 - maliciously discharging a loaded arm with intent to do grievous bodily harm to Chompeay Kim - sentenced to a term of 2 years imprisonment to commence on 6 November 2000. IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION BELL J Wednesday, 20 December, 2000 70023/00 - REGINA v N M T P SENTENCE 1 HER HONOUR: On 30 October 2000 the prisoner, NMTP was arraigned before me on an indictment charging him with four offences arising out of an incident that occurred in John Street, Cabramatta on the evening of 6 November 1999. By the first count he was charged with the murder of Paul Hoa Long Dinh. The second count charged him with firing a firearm in a public place. The third count charged him with maliciously wounding Paul Hoa Long Dinh with intent to do him grievous bodily harm and the fourth count charged him with maliciously discharging a loaded arm with intent to do grievous bodily harm to Chompeay Kim. On 20 November 2000 the jury returned its verdicts. The prisoner was acquitted of the murder of Paul Hoa Long Dinh and convicted of the remaining three counts in the indictment. 2 On the evening of Saturday, 6 November 1999 the prisoner was one of a number of young people attending a wedding reception at the Dai Lam Son Restaurant in John Street, Cabramatta. During the course of the evening, there was some trouble between guests seated at the prisoner's table and others at an adjacent table at which a young man named Chompeay Kim was seated. Mr Kim became upset about the behaviour of some of the young men who were smoking in the presence of his nine year old sister, Linda. He remonstrated with them and there was an angry exchange. 3 Chompeay Kim telephoned his friend, Paul Hoa Long Dinh, and told him of the trouble at the restaurant. Mr Dinh agreed to come over bringing other young men with him to act as support for Mr Kim. In due course Mr Dinh arrived with a group of four or five others. They stood outside the Dai Lam Son Restaurant on the side of the road. Chompeay Kim left the restaurant and joined them. Not long after this a group of young people, including Jimmy Nguyen and his brother Tuan, who had been seated at the prisoner's table, left the restaurant. They proceeded east along John Street towards an arcade which gives access to the BKK car park. Mr Dinh and his group followed them walking on the opposite side of the street. 4 As the Nguyen brothers' group turned into the arcade Chompeay Kim, leading Paul Dinh and his companions, crossed the street and gave chase. Inside the arcade Chompeay Kim, the deceased and others of their number, set upon the Nguyen brothers. 5 The business centre of John Street, Cabramatta is monitored by closed-circuit television cameras. At the nearby Cabramatta Police Shopfront, security guards maintain a watch on the monitors and report suspicious conduct to police. The whole of the incident, from the time the Nguyen brothers were set upon, was recorded and the videotape recording was in evidence at the trial. This showed that the assault upon the Nguyen brothers was a violent one involving the use of martial arts techniques. 6 Following the initial phase in the arcade, the fight continued in John Street between members of Chompeay Kim's group and members of the Nguyen brothers' group. None of the participants was armed. The fight involved the use of fists and feet. Both sides appeared to have some familiarity with martial arts. 7 The prisoner approached the fighters in John Street holding a .22 Smith and Wesson self-loading pistol in his right-hand. He fired the pistol on four occasions that evening. The first shot hit the deceased in the chest fatally wounding him. The impact of this shot upon the deceased was not immediately apparent. The deceased continued to walk apparently normally for a short time thereafter. 8 After the prisoner fired the first shot the participants on both sides of the fight commenced to disperse. One second after firing the first shot the prisoner fired a second shot. He was pointing the gun in a southerly direction across John Street. People were moving off in this direction at the time the second shot was fired. The bullet did not hit any person. 9 The deceased walked off in a westerly direction along John Street. Chompeay Kim also walked off in a westerly direction. Quoc Thai Nguyen, who was associated with the Nguyen brothers' group, appears to have followed Chompeay Kim and confronted him. 10 Six seconds after the second shot was fired Tin Van Pham, a member of the Nguyen brothers' group, pointed towards the deceased and Kim. The prisoner was standing next to Tin Van Pham at this time. One second later the prisoner fired the third shot. This shot was fired towards the deceased and struck him on the lower left calf causing a relatively superficial wound. Two seconds after this the prisoner fired a fourth shot aimed at Chompeay Kim. 11 It was apparent from the jury's verdict that the Crown failed to exclude the reasonable possibility that the first shot was fired in defence of Quoc Thai Nguyen or Tin Van Pham or others who were then fighting with the deceased and his group. 12 The second count in the indictment, firing a firearm in a public place, is made an offence by s 93G(1)(b) of the Crimes Act, 1900 ("the Act"). It carries a maximum sentence of 10 years imprisonment. It is a Table 2 offence for the purposes of the Criminal Procedure Act 1986 and is thus to be dealt with in a Local Court unless an election is made for trial on indictment. I bear in mind that the maximum penalty which can be imposed when this offence is dealt with in the Local Court is one of 2 years imprisonment. This is a matter to be taken into account in the way outlined by Wood CJ at CL (with whom Simpson J agreed) in R v Crombie [1999] NSWCCA 297 at paras 15 and 16. In assessing the gravity of this offence I take into account that this shot was fired very shortly after the first shot. 13 I approach the matter of sentence upon an acceptance that at the time he fired the first shot, the prisoner was acting in defence of his friends, Quoc Thai Nguyen and Tin Van Pham. It is apparent that the effect of the first shot was to cause participants in the fight to disperse. It is in this context that the jury's verdicts are to be understood. The prisoner failed to establish on balance of probability that he had a reasonable excuse for discharging the weapon at the time he fired the second shot. Nonetheless I consider his culpability for this offence is reduced by reason of the fact that this shot was fired so shortly after the first shot in circumstances in which it is reasonable to consider that the prisoner remained affected by panic and the emotion surrounding the firing of the first shot for which there was, in law, justification. 14 Somewhat different considerations apply to an assessment of the objective gravity of the offences charged in counts three and four of the indictment. Count three alleged the malicious wounding of Paul Hoa Long Dinh with intent to do grievous bodily harm contrary to s 33 of the Act. The maximum sentence for this offence is one of imprisonment for 25 years. There was an interval, albeit a short one, between the firing of the first and second shots and this third shot. At the time of firing the third shot Mr Dinh was leaving the scene and he had his back to the prisoner. Notwithstanding the speed with which events unfolded that night (and my acceptance that the prisoner had been initially motivated by a desire to defend his friends from threat of serious harm), I consider that the firing of a shot at Mr Dinh with the intention of causing him serious bodily harm at a time when he was unarmed and leaving the scene is a serious offence. 15 The fourth count which charges an offence contrary to s 33A of the Act of maliciously discharging a loaded arm with intent to do grievous bodily harm to Chompeay Kim is also to be viewed in a serious light. Mr Kim was unarmed and appeared to be leaving the scene. This offence carries a maximum sentence of 14 years imprisonment. 16 Quoc Thai Nguyen was the owner of the pistol used by the prisoner. He brought the pistol with him to the restaurant that night. I find that at a time when Quoc Thai Nguyen believed that a fight was likely to break out he handed the gun to the prisoner for safekeeping. There is no evidence that the prisoner was minded to join the fight. He appears to have left the restaurant and made his way to the BKK car park located behind it. At this time, it would seem, he received word of the attack on his associates. He ran back to the scene in John Street armed, as it were, by chance with the pistol. 17 The evidence disclosed that a number of the young people attending the wedding reception in the Dai Lam Son Restaurant that night were drinking alcohol. Bottles of spirits had been placed by the host on each table. The prisoner did not give evidence before me. A background report prepared by the Department of Juvenile Justice sets out the prisoner's account of the relevant events. He told the officer preparing the report that he had been drinking alcohol for the first time on the night of the offence and that he had drunk to excess. He said his recollection of the commission of the offences was jumbled and non-coherent. A number of persons present at the reception that night gave evidence consistent with a view that the prisoner was very significantly affected by alcohol. I did not accept those witnesses as reliable in their accounts in this respect. I considered the accounts of the extent of the prisoner's drunkenness were exaggerated. Thus, the witness Thai Loan Nguyen described the prisoner as having difficulty walking and requiring assistance. To my mind the appearance of the prisoner on the videotape recording is inconsistent with an acceptance of the accuracy of her recollection in this respect. However, I accept that the prisoner had consumed alcohol that night and that he was affected to some degree by it. 18 As the Court explained in Coleman (1990) 19 NSWLR 467 and R v Fletcher-Jones (1994) 75 A Crim R 381 the circumstance that an offender is intoxicated at the time of the commission of an offence may be viewed either as a circumstance of aggravation or mitigation. Having regard to the prisoner's age and the absence of any evidence suggesting his knowledge that when affected by alcohol he was liable to behave violently, I am not inclined to view the evidence of his intoxication as a circumstance of aggravation. My acceptance that he was affected by alcohol to some degree provides some explanation for his conduct particularly when viewed against the background of his past good character. However, I am not persuaded that the degree of intoxication was such as to provide any substantial mitigation. 19 The prisoner has been in custody since his arrest on 6 November 1999. His custody has been solely referable to the subject offences. It appears that while in detention the prisoner was charged with and subsequently convicted before the Local Court at Wyong of the offence of "malicious damage". On 3 February 2000 the Court imposed a sentence by way of 12 months recognisance in respect of this matter. I do not have regard to that matter in considering the exercise of my sentencing discretion. The prisoner was a person with no criminal convictions at the date of the subject offences. 20 The prisoner was born on 30 April 1983. He is the eldest of four children born to Minh and Trinh Pham. He and two of his siblings were born in Vietnam. In 1993 the prisoner's father migrated to Australia and subsequently, in September 1994, his wife and children joined him under the Family Reunion Program. 21 The Juvenile Justice report is consistent with a view that the prisoner has had the benefit of loving parents who have been concerned to see him and his siblings raised in a stable environment with an emphasis on education and worthwhile pursuits. Mr and Mrs Pham separated and subsequently divorced, however, they maintained a joint commitment to raising their children. Mr Pham continued to be a regular visitor to the household. The disruption occasioned by the prisoner's arrest and subsequent incarceration appears to have led to some reconciliation between Mr and Mrs Pham. In an effort to offer one another support over this stressful time, they have resumed living together. Throughout the prisoner's incarceration both parents have visited him regularly. 22 The prisoner attended Fairfield High School for three years. When the family moved to Bonnyrigg he enrolled in Year 10 at Bonnyrigg High School. He is presently undertaking Higher School Certificate studies at the Kariong Juvenile Justice Centre. He impresses staff as displaying a mature attitude towards school-work and he has obtained good results. Additionally, he has undertaken various TAFE certificates in subjects of interest to him including cooking, grounds maintenance and woodwork. 23 The prisoner's parents report that his regular associates at the time of this incident were school friends regarded by them as constituting a good peer network. His companions at the wedding reception centre were described as being older than the prisoner and not forming part of his regular peer group. It appears that these older young men have not maintained contact with the prisoner during his incarceration. 24 Generally the picture painted by the Juvenile Justice report of the prisoner's life prior to the commission of the subject offences was a positive one. His weekends were described as being busy, filled with family activities and sport. He set a good example to his younger siblings, always informing his mother of his whereabouts and spending time with the younger children. 25 The prisoner's response while in custody has been good. He has not presented as a management problem. He is perceived as being determined to make the most out of his period of incarceration in terms of his education and other vocational programs. The Centre's psychologist describes him as having attained "high levels of behaviour" and as being liked by both detainees and staff. 26 The favourable picture which emerges from the Juvenile Justice report receives support in the various attachments thereto. 27 I consider that the prisoner has good prospects of rehabilitation. 28 The offence the subject of count three in the indictment, malicious wounding with intent to do grievous bodily harm, is a serious children's indictable offence for the purpose of the Children (Criminal Proceedings) Act 1987 ("the Act"). Accordingly, in respect of this matter the prisoner must be dealt with according to law pursuant to s 17 of the Act. Neither the offence the subject of count two nor count four in the indictment are serious children's indictable offences for the purposes of the Act. Section 18 of the Act provides that a person (to whom the division applies) charged with an indictable offence other than a serious children's indictable offence shall be dealt with according to law or in accordance with Division 4 of Part 3 of the Act. I consider the appropriate course is to deal with the prisoner according to law in relation to both counts two and four. Such a course is commended by the circumstances that I must deal with him according to law in relation to the offence charged in count three. The offence charged in count four is of such gravity that it would itself require such a course. It was not submitted that I would deal with the prisoner otherwise than according to law with respect to his conviction for the offence charged by count two. 29 I bear in mind the principles to which a Court is required to have regard in exercising criminal jurisdiction with respect to children as set out in s 6 of the Act. In particular I note principles (C) and (D): "(C) That it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption; (D) That it is desirable, wherever possible, to allow a child to reside in his or her own home." 30 I also take into account the principles governing the sentencing of children set out in the decision of the Court in R v GDP (1991) 53 A Crim R 112. Generally in sentencing children considerations of denunciation and general deterrence are to be given less weight in favour of promoting the rehabilitation of the offender. On occasions that principle will receive less prominence when the Court is dealing with persons in their late teens who commit serious crimes of violence; R v Pham (1991) 55 A Crim R 128 at 153 per Lee CJ at CL. I do not consider that this case falls within the category of cases with which the court was concerned in Pham. I accept that the prisoner did not set out that evening to commit an offence of violence. 31 The prisoner's past good character and the content of the Juvenile Justice report suggests that considerations of personal deterrence need not loom large in my task. However, accepting the principles in GDP guide the exercise of my discretion, I am nonetheless of the view that considerations of general deterrence must receive some recognition in the sentence which I impose having regard to the nature of these offences. The objective seriousness of the offences charged in counts three and four require, notwithstanding the principles to which I have made reference, that I impose custodial sentences. 32 Having regard to the prisoner's age, the circumstance that this is his first sentence of imprisonment and the desirability of promoting his rehabilitation, I consider that there are special circumstances within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. I propose to depart from the statutory proportion as between the sentence and the non-parole period. 33 All three offences occurred in the context of the same episode of criminal offending and were separated by an interval of seconds. In these circumstances the Crown Prosecutor and Mr Gordon, who appears for the prisoner, submitted that the appropriate course is for me to impose concurrent sentences in relation to each of the offences. It was submitted that I might reflect considerations of the totality of the prisoner's criminality in the sentence imposed with respect to the conviction on count three. I was minded to approach the matter upon this basis given the uniform views expressed by counsel and the circumstance that I am dealing with a single episode of criminality. However, I find it difficult to reconcile this "global" approach to sentencing with the observations of the majority in Pearce v the Queen (1998) 72 ALJR 1423. In their joint judgment in that case McHugh, Hayne and Callinan JJ in a passage of general application (not directed to the separate question of the sentencing of an offender in respect of two offences which both involve proof of the same act) observed: "To an offender, the only relevant question may be 'how long' and that may suggest that a sentencing judge or appellant court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of total." 34 I must therefore fix an appropriate sentence in respect of each offence before I consider questions of concurrence/cumulation or totality. The appropriate sentence to be imposed in respect of the offence charged by count three is not one which reflects the criminality of the offence charged by count four. To impose a wholly concurrent sentence with respect to the offence charged by count four with that imposed with respect to count three would mean that no sentence was imposed with respect to that charged by count four. In R v Leroy [2000] NSWCCA 302 Dunford J (in a judgment with which the other members of the court agreed) after referring to Pearce rejected a submission that the imposition of concurrent sentences was appropriate in relation to two offences arising out of the same violent episode. 35 I consider that it is appropriate in this case to impose a sentence in respect of count four which is partly cumulative upon that imposed with respect to count three. I propose fixing a sentence on count two which is wholly concurrent with that imposed in respect of count three. 36 NMTP in respect of your conviction on count two namely firing a firearm in a public place I sentence you to three months imprisonment to date from 6 November 1999. In respect of your conviction for the malicious wounding of Paul Hoa Long Dinh with intent to do grievous bodily harm I sentence you to a term of three years imprisonment to date from 6 November 1999. In respect of this sentence I impose a non-parole period of eighteen months. I am required by s 50 of the Act to direct your release at the end of the non-parole period which I impose. I so direct. That direction will not have operative effect by reason of the sentence which I next impose. In respect of your conviction for maliciously discharging a loaded arm with intent to do grievous bodily harm to Chompeay Kim I sentence you to a term of two years imprisonment. That sentence is to commence on 6 November 2000. In respect of this sentence I impose a non-parole period of twelve months imprisonment. The earliest day on which you will become entitled to be released on parole is 5 November 2001. Pursuant to s 50 of the Crimes (Sentencing Procedure) Act 1999 I direct your release on parole at the expiration of the non-parole period. 37 Pursuant to s 19 of the Children (Criminal Proceedings) Act 1987 I direct that the whole of your sentence be served in a detention centre. ***** Last Modified: 02/26/2001 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.