New South Wales Supreme Court CITATION : R v PHAM [2002] NSWSC 621 FILE NUMBER(S) : SC 70078/01 HEARING DATE(S) : 25 June 2002 JUDGMENT DATE : 25 June 2002 PARTIES : Regina Bao Ngoc Pham JUDGMENT OF : Hulme J at 1 COUNSEL : Mr P Power SC Mr G Cusack QC Crown: SE O'Connor SOLICITORS : Prisoner: TA Murphy Legal Aid Commission DECISION : The Prisoner is sentenced to imprisonment for a term of 25 years commencing on 5 October 2000. I fix a non-parole period of 20 years also commencing on 5 October 2000. The Prisoner will become eligible for parole on 4 October 2020. - 14 - IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION HULME J 25 June 2002 70078/01 R v Bao Ngoc PHAM REMARKS ON SENTENCE 1 On 3 May last, Bao Ngoc Pham was convicted by a jury of having, on 11 July 1997 at Smithfield, murdered Zi Qiang Jin. The circumstances – of which I must be satisfied beyond reasonable doubt before I can use them adversely to the Prisoner – included the following. 2 The deceased was a wholesale drug dealer – in the words of Detective Long "a mid range distributor of heroin". The Prisoner was a retail distributor, he being assisted in this activity by three or four other persons with whom he was residing. I have no doubt that the Prisoner was the principal of this retail operation. 3 The deceased and the Prisoner made an arrangement to meet on the evening of 11 July. There was a phone call between the deceased and a mobile phone used by the Prisoner at six minutes past nine that evening directed to this event but whether that call occurred before the Prisoner left home or after he was at the meeting place, it is unnecessary to decide. The Prisoner took with him to the meeting two of the other occupants of his premises. One, Jason Hanser, was used by the Prisoner as a chauffeur to drive the Prisoner and others around in the course of his drug-dealing operation. The third person was Vinh Phan, a friend with whom the Prisoner had a very close relationship. The Prisoner said he considered Vinh, as he was referred to during the trial, like a "half brother". 4 Mr Hanser drove the other two from their residence to shops in Dublin Street, Smithfield in a yellow Commodore which had been purchased that afternoon. The Crown contended that the Commodore had been purchased for the express purpose of the events of that evening. However, there was evidence that the car generally used by Mr Hanser had some mechanical problems and although there is evidence which supports it, I am not satisfied that this claim by the Crown is made out. There is no evidence, apart from the fact that the acquisition was not registered, to suggest that immediately after 11 July, as distinct from later when the Prisoner became aware of police interest in the group and in the yellow Commodore, that any steps were taken to distance himself from the vehicle. 5 On arrival at the shops, the Prisoner and Vinh walked away from the yellow Commodore and waited for the deceased. After five or ten minutes he arrived driving a smallish white Suzuki. The Prisoner entered the front passenger seat and Vinh sat in the rear. It probably does not matter but I am disposed to accept his evidence that he was sitting behind the Prisoner. The deceased recommenced driving. 6 Behind the shops is a laneway, something of the order of 2 cars wide. One of the shops which backs onto the laneway is a video store which closes, or from which the staff leave, at about 9.30 pm. On the other side of the laneway are residential properties. At about 9.20pm, perhaps a little later, the deceased was driving the Suzuki down the laneway at what must have been a slowish speed. The Prisoner and Vinh were still in the vehicle. During the course of this the deceased was shot three times in the head or neck. At least one of the bullets, one which struck the deceased in about the left temple, was fired by the Prisoner. 7 A second bullet entered the rear left side of the deceased's neck, travelled horizontally but at an angle of about 60 degrees through the body exiting just under the deceased's right chin. A third bullet entered the deceased in a position I might describe as virtually the mid line of the back just below the base of the neck, exiting again almost on the mid line from the front lower neck and then entering the deceased's right wrist. 8 Although I have referred to these bullets by numbers, there was no evidence which indicated in what order they had been fired. Dr Little the pathologist who gave evidence said that the second bullet was fired with the firearm in contact with the deceased's skin and the third, while the firearm was in contact with the deceased's clothing. 9 Despite his evidence to the contrary, I am satisfied that one, and probably both, of the second and third bullets were fired by Vinh. Two persons living nearby who gave evidence, a Mr Thompson and Ms Pappa said they heard the three shots and that they were evenly timed with about one second in between. I accept this evidence. 10 Unsurprisingly, the vehicle which the deceased had been driving then came into collision with a structure on the edge of the laneway. Ms Pappa gave evidence, which I accept, that this crash followed the gunshots. At about this time, Vinh suffered a knock and gash on his forehead. The precise cause does not matter, but I suspect it was when the Suzuki suffered its collision. Vinh became dazed or semi-conscious. The Prisoner helped him out of the Suzuki and to the yellow Commodore which was nearby and the two were driven away by Mr Hanser. The weapons involved have never been found. 11 Many of the circumstances as I have recounted them to this time accord with evidence given by the Prisoner. His evidence was that the meeting with the deceased had occurred in consequence of an arrangement whereby the deceased was to supply to the Prisoner two firearms and ammunition. Some of the questions of the Prisoner's counsel to Vinh suggested that the Prisoner and Vinh had agreed to buy guns off Jimmy for protection against gangs of other people. Vinh did not agree with this but presumably the questions reflect instructions from the Prisoner. 12 According to the Prisoner, after the three met the deceased drove away some little distance, stopped, produced and handed over the firearms and ammunition and showed the Prisoner and Vinh how the weapons were loaded. (It may be that the Prisoner showed Vinh – the difference is immaterial.) The Prisoner said the deceased refused a request that the group drive somewhere and test the weapons saying he was not feeling well and started driving back. In cross-examination, the Prisoner first said that in loading the guns the deceased put bullets in each of the 6 holes, then a little later that the deceased put only 1 or 2 bullets in and then took them out. The Prisoner said that after the deceased then gave the gun to him, the Prisoner put a few bullets back in. 13 According to the Prisoner, on the way back to the laneway the deceased asked for payment for the weapons. The Prisoner did not have the money on him. An argument developed about that and some $6,000 which the Prisoner said he owed in drug money. Abuse followed and then the deceased, still driving, gave the Prisoner a backhander to his face. An attempt by the Prisoner to hit the deceased missed and then, according to the Prisoner, he saw the deceased pull out a gun. 14 The Prisoner's case in this trial was that immediately after he realised that the deceased was pulling out a gun, he, the Prisoner, commenced to raise his own gun from his lap. He heard 2 bangs and then fired himself. The likelihood of the deceased pulling out a gun in circumstances when driving and when he knew that the other 2 in the car, one of whom was in the back seat, had their own weapons and ammunition is low. I doubt if the jury accepted this account and I do not. Even if the guns had been unloaded at the conclusion of any demonstration – an event which strikes me as unlikely and as the only evidence of it is that of the Prisoner, not an event I am prepared to accept occurred - it strikes me as in the highest degree unlikely that the deceased would have so confidently believed that the weapons remained in that state that he would pull out a firearm of his own when it is suggested he did. 15 On the Prisoner's account it was fortuitous that by then the deceased was driving down the laneway. Vinh's evidence was that the deceased had just driven round and round the shops a few times. Mr Hanser's evidence was that in the course of driving from their residence to the shops, the Prisoner gave directions. Mr Hanser parked at the end of the laneway, the Prisoner and Vinh got out, walked back down the laneway and the next thing Mr Hanser observed was the Suzuki's head lights coming along the laneway from his rear, pulling over to the left and stopping. 16 It might also be mentioned that during a search of the Prisoner's premises, the police discovered a letter from a brother of the prisoner. That letter advised the Prisoner not to meet Jimmy unless in company "and with licence". The Crown suggested that the word "licence" is a euphemism for "gun" or weapon, particularly as the Prisoner would not seem to have had a driver's licence. The Prisoner however maintained that he understood the reference to indicate that he should go out, or certainly far out, only with a licensed driver. Even without the benefit of knowledge of the Prisoner's criminal record, I regarded this as an improbable version and the Crown's much more likely. In fact the Prisoner did meet the deceased in the company of a friend and, one may add, business associate. Both were armed at least at some stage and both shot the deceased within a second or so of one another. 17 When first interviewed by the police in connection with the matter on 16 February 1998, the Prisoner acknowledged having met or seen the deceased on a few occasions but asserted the last one was one or two years previously. He said he could tell the police nothing about the deceased's death and had never rung him. He denied any knowledge of the yellow Commodore. 18 In these and other respects the Prisoner lied time after time in the interview he had with police. So did Vinh and I regard each of them as having no, or virtually no, credibility. There was no attack on Mr Hanser's credibility and, in consequence, less opportunity for me to form any assessment of him. However, having regard to his occupation in the months prior to the killing, he could hardly be regarded as a pillar of the community. I have little confidence in anything he said. 19 One issue which requires consideration is the extent, if any, of premeditation involved in the killing. The objective facts certainly demonstrate that there was some. Both the Prisoner and Vinh were armed with loaded weapons. I am not prepared to accept the Prisoner's evidence that any unloading of the weapons occurred. Both shot the deceased within a second or so of the other of them doing so. Thus not only were they armed but, prior to the shooting, their weapons must have been in a position ready for use. There was the relationship between the Prisoner and Vinh to which I have referred and, whether or not the purpose was to buy guns, I have no doubt that the meeting with the deceased was in furtherance of the criminal enterprise of which the Prisoner was principal. I have no doubt that the Prisoner's role in the offence was in no way subsidiary to that of anyone else. 20 Because, and only because, there is no evidence that the Prisoner and Vinh had weapons prior to the time the Prisoner says they were handed over by the deceased, I am not prepared to find that in fact the Prisoner and Vinh entered the car with weapons. I think they probably did, rather than relying on what the deceased supplied, but that degree of persuasion is not enough for me to use the conclusion against the Prisoner. 21 Although the laneway where the deceased was shot is not the most obvious place in which to carry out a killing at 9.30 at night, one is left with the extraordinary coincidence that the killing occurred in very close proximity to the Prisoner's chauffeur and vehicle. 22 I am not prepared to infer that prior to the meeting with the deceased the Prisoner and Vinh had agreed to definitely kill him. However, there can be no reasonable doubt that both were prepared to do so, and that the Prisoner knew of Vin's willingness to assist him in this regard. The irresistible inference is that they agreed to do so at least if circumstances were thought to warrant that course. 23 So far as the Prisoner's subjective circumstances are concerned, he was born on 12 September, 1979. The Prisoner did not give evidence but a psychologist's report which was tendered provides some information. The Prisoner was apparently born in Vietnam and raised by a relation for his first 7 years as his mother was working. When he returned to his family he felt "estranged" from them. The Prisoner completed year 5 in Vietnam but then attended Cabramatta Public School and in due course completed year 9. He apparently truanted from school both in Vietnam and Australia and was not attracted to learning. His family life apparently consisted of a rigid routine of work and school with little socialisation or fun. He said he "eventually matured and developed love and caring" towards them. 24 The psychologist records that the Prisoner drank alcohol mainly on weekends and did not partake of illicit drugs. He has formed a relationship with a young woman and has a young child. 25 The psychologist administered a number of tests to outline the Prisoner's current level of intellectual literacy and psychological symptomatology. The psychologist's conclusion was that the Prisoner was:- "of Below Average intelligence and literacy skills who suffered from the poor attachment with and severe abuse from his family. These experiences appeared to have adversely affected his interpersonal relationships, psycho-social development, and behaviour. He appeared to have been involved in anti-social acts at an early age as part of his need for belonging, and cultivated his stimulus seeking behaviour. He reacted impulsively under distress and subsequently realised his mistake and appeared to have shown remorse." 26 If that last sentence is intended to refer to the Prisoner's offence, I reject it. Indeed I am not persuaded of the accuracy of anything but the first five words which I have quoted. 27 Although a deal of the Prisoner's evidence was given through an interpreter, his ERISP was conducted in English and I do not regard his command of that language as impeded to any extent that argues for a reduced term of imprisonment. 28 The Prisoner has a criminal record. There are no individually serious offences on his New South Wales antecedents although the document does include a reference to possession of a wooden handled knife and of having goods in custody. However, it does display an attitude of contempt for the law. On two occasions the Prisoner failed to attend court, two of his offences were of stating a false name, one may infer when pulled up when driving. Two were for driving without a licence and two were for driving while disqualified. After the commission of the offence with which I am concerned he went to Queensland. There on 13 April 2000, he was convicted of supplying a dangerous drug on 2 occasions and sentenced to imprisonment for a period of 2 years, such imprisonment to be suspended after 6 months. He was arrested there on 5 October and extradited to New South Wales on the following day. Bail granted on 7 October 2000 was not met and revoked on 9 October 2000 and he has been in custody since. In light of this history, I propose to backdate the commencement of his sentence to 5 October 2000. 29 He had been dealing in drugs since some time in 1996 when he was living at Villawood and although, of course, he is not to be punished by me for his drug dealing, it provides further evidence of such contempt. 30 The Prisoner's approach in the trial showed no remorse. Apart from some statements in the psychologist's report which do not persuade me, there is no evidence of any. 31 The maximum penalty for the offence of which the Prisoner has been convicted is imprisonment for life. In accordance with principle, such a penalty is reserved for cases falling into a worst category and the instant offence does not. On the other hand, it is a long way from the other end of the range. 32 Although I am unable to find any particular motive for the killing and unwilling to conclude that the Prisoner and Vinh were armed at the time they entered the deceased's vehicle, I am convinced by the other matters to which I have referred that the offence was a cold-blooded execution of a business associate or supplier. 33 No-one who takes any interest in the topic of crime in the community or sits regularly in the criminal jurisdictions of this Court can but be conscious of the frequency with which such executions occur. Nor can one be unconscious of the extent to which in some areas of community life, particularly drug-dealing, firearms are regarded as but tools of trade. 34 So far as my researches go, there are no statistics kept breaking offences of murder down into categories useful here, such as those involving the use of weapons or firearms of one type or another, or otherwise. The statistics kept by the Judicial Commission do not descend into that degree of detail. However there are some compiled by the Bureau of Crime Statistics and Research on shooting with intent which are informative. It was agreed that it was not inappropriate that I take them into account – a conclusion at which I would probably have arrived in the absence of agreement. Offence type Weapon used 1996 1998 2000 2001 % change 96-01 Shoot with intent to murder All other firearm 17 9 12 14 -17.6 Handgun NFD & revolver 6 7 23 32 433.3 Total 25 24 37 59 136.0 Shoot with intent other than to murder All other firearm 20 8 28 17 -15.0 Handgun NFD & revolver 4 14 19 22 450.0 Total 31 28 64 53 71.0 Total All other firearm 37 17 40 31 -16.2 Handgun NFD & revolver 10 21 42 54 440.0 35 The increase in the use of handguns and/or other concealable firearms is substantial. In their demonstration of this increasing use, the statistics confirm a firm impression I had before reading them. 36 Although I am satisfied that the weapons used in this case were handguns, of course the Prisoner before me does not stand charged with possession of such a weapon and is not to be punished for the offence of having had one. On the other hand the frequency with which offences of the general nature of that of which he has been convicted occur, is a relevant consideration. 37 One question which arises is the significance which should be given to the age of the Prisoner at the time of his commission of the offence. He was 17 years and 10 months old and almost invariably in the sentencing of offenders such youth would operate in mitigation. However there are limits to the application of that principle. Those limits are referred to in R v Tran [1999] NSWCCA 109 where, in the case of armed robbery a five member Court of Criminal Appeal said [14]:- "The nature and circumstances of the offence were accordingly such that the Respondent should have been considered as having conducted himself like an adult, with the consequence that relatively little weight should have been given to his age." 38 In R v AEM Snr [2002] NSWCCA 58 the limits of the principle were again considered, this time in the case of an offender who, with two others, had committed over a 3 to 4 hour period a series of aggravated sexual assaults and connected offences on two 16 year old females. AEM Snr was 19 years and 5 months at the time of the offences. On the topic of youth the Court said [171, 172]:- "However, and giving full recognition to that principle, it must be said that it will be rare that the relative youth of an adult offender will be a reason for giving less weight to general deterrence than otherwise would be the case for offences of the kind which are before the court. There was nothing in AEM Snr's individual circumstances which would cause us to consider his youth as a factor which calls for less weight to be given to general deterrence. There was no suggestion that AEM Snr did not understand the nature of his conduct. His conduct during the course of these attacks, especially in the matter referred to in the next paragraph, shows that his youth can play no role in any way in diminishing the extent of his culpability." 39 There is no suggestion that the deceased and Prisoner had any relationship other than as supplier and purchaser and I have no doubt that the offence of the Prisoner in this case was committed as an incident of his entrepreneurial activities in the drug dealing he had carried on as principal for a number of years. Equally I have no doubt that the possession of the firearms of him and Vinh was also but an incident of his occupation. At nearly 18 he was not very young. Deliberate killing is how adults behave and in the circumstances as I have described them I think this is a case where he is entitled to no mitigation of penalty on account of his youth. It can hardly be said that persons of his age are so young as not to appreciate fully the sanctity of human life. 40 There is a further matter I should mention. In March 2000 Vinh Phan was tried by Sully J and a jury for the murder of Zi Quiang Jin. He was convicted and, subject to a reduction on account of pre-sentence custody, sentenced to imprisonment for a period of 14 years with a non-parole period of 10 ½ years. 41 In arriving at the sentence that he imposed, Sully J found the deceased was seated in the driving seat with his seatbelt secured across his body and that Vinh had fired at least one of the shots but that there was no evidence of any particular motive. His Honour recorded that Vinh was aged 18 years and 2 months at the time of the shooting and while acknowledging "there are recognised limits of the weight to be given to the bare fact of youth (said it was) nevertheless a factor to be given some genuine consideration in the Prisoner's favour." 42 His Honour also found that Vinh had no criminal antecedents of any moment, had grown up in a fairly austere domestic environment and had fairly limited capacity in English. This, His Honour said, would make imprisonment more arduous for a time. His Honour found no special circumstances and I think it clear that His Honour found no evidence of remorse. 43 The similarity of circumstances and offending as recorded in Sully J's remarks and that of the Prisoner before me provide a strong argument on grounds of parity for imposing a similar sentence on the Prisoner. 44 In due course Vinh appealed from his conviction and the Court of Criminal Appeal allowed the appeal and ordered a new trial. Before that occurred, however, an arrangement was arrived at between Vinh and the Director of Public Prosecutions pursuant to which Vinh was charged with and pleaded guilty to a charge of being an accessory after the fact and agreed to give evidence against the Prisoner, as in due course occurred. None of the factors in this paragraph have any bearing on the argument adverted to in the immediately preceding paragraph. 45 Nevertheless I have concluded that I should not follow any principle of parity in sentencing the Prisoner. That principle is subject to an exception when a judge concludes that an earlier sentence is manifestly inadequate R v Steele (unreported, CCA, 17 April 1997); Reardon (1996) 89 A Crim R 180 at 183, 191: Cox (1991) 55 A Crim R 396 at 401. Unless his Honour attributed to youth far more weight than I feel is appropriate, or concluded that Vinh's criminality was a lot less than I am convinced the Prisoner's was, with respect to Sully J, I am of the view that the sentence he imposed falls into that category. The account which I have given shows that the mitigating circumstances in Vinh's case were few and of little weight. In that situation I regard a sentence of 14 years as wholly inadequate for what can only be characterised as cold blooded murder. 46 In my view the objective circumstances of the offence argue strongly for a punishment which is significantly higher than the median for offences of murder. The Court must set its face sternly against cold blooded executions even in the business of drug dealing. Indeed perhaps one should say, particularly in the criminal milieu. Although it was urged that I should impose on the Prisoner a sentence which does not deprive him of hope and which might make him worse, the requirements of general deterrence are such that I do not feel able to acquiesce in the submission. 47 I should record also that in this case I intend that the non-parole period should be greater than the usual proportion of 75% referred to in S44 of the Crimes (Sentencing Procedure) Act. Given the length of the terms involved, the period during which the relevant authorities may grant the Prisoner parole will be more than sufficient to fulfil the purposes of such periods and I regard the full and non-parole terms I will set as the minimum appropriate to reflect and fulfil the purposes and matters to be taken into account in sentencing. 48 Bao Ngoc Pham, for the crime of murder of which you have been convicted, you are sentenced to imprisonment for a term of 25 years, commencing on 5 October 2000. I fix a non-parole period of 20 years also commencing on 5 October 2000. You will become eligible for parole on 4 October 2020. ********** Last Modified: 07/12/2002 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.