R v Quach [2002] NSWSC 1205

New South Wales Supreme Court

CITATION : R v Quach [2002] NSWSC 1205 FILE NUMBER(S) : SC 70226/02 HEARING DATE(S) : 13 December 2002 JUDGMENT DATE : 17 December 2002

PARTIES : Crown Phuc Hang Quach - Accused JUDGMENT OF : Simpson J

COUNSEL : LL Lungo - Crown A Cook - Accused SOLICITORS : Crown Solicitor Nikola Velcic & Associates - Accused CATCHWORDS : accessory after fact of murder - disposal of a murdered body - mitigating circumstances - plea of guilty - assistance to authorities - special circumstances - suspended sentence LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 R v Farroukh, CCA, unreported, 29 March 1996 CASES CITED : R v Gamgee [2001] NSWCCA 251; 51 NSWLR 707 R v Thomson and Houlton [2000] NSW CCA 309; 49 NSWLR 383 DECISION : Sentenced to imprisonment for a period fo two years, commencing 17 December 2002 and expiring on 16 December 2004; execution of the sentence suspended for a period of one year and nine months, from 16 March 2003; direct that Phuc Hang Quach be released from custody on 16 March 2003 on condition that he enters into a good behaviour bond for a period of one year and nine months commencing 16 March 2003

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

SIMPSON J

17 December 2002

70226/02 REGINA v Phuc Hang QUACH

REMARKS ON SENTENCE 1 HER HONOUR: Phuc Hang Quach appears for sentence having pleaded guilty to an indictment alleging that, between 6 and 7 December 2001, he was an accessory after the fact of the murder of Ms Yoke Phin Loh, committed by an acquaintance of the present offender, Phuc Hao Tran. 2 Evidence about the facts of the murder is rather sketchy. Tran allegedly murdered Ms Loh during the evening of 6 December or the early hours of the following day. It appears that Tran and Ms Loh had had a sexual relationship and had been in bed together in a bedroom ordinarily occupied by the offender in the offender's brother's home. Tran had fallen asleep. He awoke to find Ms Loh scratching him and he responded by holding her tightly and putting his hands over her mouth to prevent her screaming. He lay on top of her until she ceased moving. He realised she was dead, and went to another room in the house where the offender was sleeping. Tran woke the offender and asked for his help. The offender went to his bedroom and saw Ms Loh's body, wrapped in plastic bags. Tran had already wrapped the body. At Tran's request, the offender assisted to secure the body in the plastic wrap by using sticky tape. Both men then carried the body to Tran's car and placed it in the boot. Tran drove for some distance, in a direction chosen by him, to an area of bushland in or near Moorebank. Together the two men removed the body from the car. At this point they were wearing gloves. The offender assisted Tran by helping to carry the body. Tran then dropped the body over a fence in bush and made some attempt to conceal it. The two men then returned to the offender's home. 3 The offender claimed that he advised Tran to report the death to police but Tran did not do so. 4 Ms Loh's disappearance was reported to police by her flatmate on 13 December 2001. Tran was arrested at Sydney International Airport, about to board a flight for Vietnam, on 19 February 2002. Pursuant to the provisions of Part 10A of the Crimes Act 1900, the offender was arrested for the purposes of the investigation. On the same day he assisted investigating police in an inspection of the house where Ms Loh had died. At 1.50 a.m. the following morning he participated in an electronically recorded interview in which he made full admissions. He directed police to the area where he said the body had been dumped and it was located shortly afterwards. The body was significantly decomposed. As a result of the decomposition, on post mortem examination, no cause of death could be ascertained. At the conclusion of the interview the offender was charged with the present offence. 5 The offender has been in custody since the date of his initial arrest, 19 February 2002. He has remained in prison since 20 February 2002. 6 By s349 of the Crimes Act 1900, the maximum sentence applicable to the crime of being an accessory after the fact of murder is imprisonment for twenty five years. 7 The offender gave evidence in the sentencing proceedings. He has no prior convictions of any kind. He was born in Vietnam on 9 March 1979 and was therefore 22 years of age at the time of the offence, 23 years of age now. I accept that his relative youth is a consideration, but I do not accept that he was so young as not to be expected to appreciate the dimensions of the crime he was asked to, and did, commit. Certainly, it does not excuse his almost three-month silence following the offence. His upbringing in Vietnam was, generally speaking, uneventful, although, in a psychological report, it was suggested that his father was a harsh disciplinarian, and that, accordingly, he had been subjected to a history of "paternal childhood abuse". It seems to me that this characterisation rather overstates what was acknowledged, in the report, to be traditional disciplinary methods of the culture and the time. The offender did well at school and in June 1999 came to Australia to study information technology. He has had some employment in Australia. He has two brothers in Australia, both older, with whom he shared accommodation from time to time, in different locations. One of his brothers was friendly with Tran, and the offender also became friendly with Tran. Indeed, he said that Tran became one of his close friends. He met the victim of the offence about three years ago as a friend of Tran's. 8 In his evidence the offender gave an account of the offence essentially as set out above. He said that he had been troubled by the offence and advised Tran to disclose it to police but Tran told him that he wished to sort out other problems in his life before he did so. He said that he had been fearful and ashamed of his involvement, had difficulty sleeping, and considered himself to have committed an error in respect of his family. He said that once spoken to by police he told the truth and that he was willing to assist the police. This last is confirmed by his willingness to give evidence against Tran who is to go to trial on a charge of murder in 2003. I accept that the offender's expressed remorse is genuine. He entered a plea of guilty at the committal stage. He also pleaded guilty to the indictment, but I was told this was because of some technical defect and it was submitted that he should be sentenced on the basis that he had entered a plea of guilty at an early stage. I accept that proposition. I also accept that the plea of guilty is of some utilitarian value. Of more significance, however, is his willingness to give evidence against Tran. 9 As indicated above, the offender has been in custody since February this year. He has few visits, mostly from one or other of his brothers. He married in December 2001, before his arrest, but his wife has visited him only once in gaol. Nevertheless, he harbours hopes that the relationship will resume on his release. 10 He has successfully undertaken various courses in gaol. It is unnecessary to say more about his prospects of rehabilitation. I am satisfied that they are excellent. 11 On behalf of the offender it was argued that this offence is not the most serious of its kind. Fortunately, there are not a large number of precedents involving accessories after the fact of murder. However, I take the view that assistance in the disposal of a body after a murder takes a crime of this kind into the upper echelons of the offence against s349. By that I do not mean to imply that I regard this crime as the most serious of its kind, but I do regard assisting in the disposal of a murdered body as of considerably more seriousness than, for example, assisting an offender to clean himself or herself after the murder: see, for example, R v Farroukh, CCA, unreported, 29 March 1996. Moreover, the offender took no steps at any time up to his arrest to draw the attention of the authorities to what had happened. Even if, as I accept, his participation in the disposal of the body was spontaneous and ill-considered, he thereafter had ample opportunity to reflect upon what he and Tran had done, and take some steps to rectify that position. While he cooperated fully when arrested, and he is entitled to, and will be given, credit for that, that must be seen in the context of his continued silence over almost a three month period. 12 There are, on the other hand, significant mitigating circumstances. As counsel for the offender pointed out, he was not in any way involved in the commission of the offence of murder, he had no reason to foresee or suspect that it might be committed, he knew nothing of any circumstances which might give rise to the murder, or of any ill feeling, animus or tension between Tran and Ms Loh. He had no criminal connections with Tran, and he had no ulterior criminal motive for assisting Tran. He had nothing, except friendship, to gain from what he did. The offence was committed spontaneously, in the middle of the night, when he was taken by surprise by Tran's confession to him. 13 Also in his favour are his youth, the absence of any criminal record, his otherwise apparently blameless life, the motive for which he committed the crime – which it was put, probably correctly, was a combination of fear, loyalty and confusion – and his remorse, which I have accepted as genuine. 14 Having regard to the ten months the offender has spent in custody his counsel urged that a suspended sentence would adequately punish the offender for his crime. Even bearing in mind the fact that he has spent ten months in custody, I am of the firm view that a wholly suspended sentence would be quite inadequate to reflect the objective gravity of this offence. The pronouncement of the sentence itself should ordinarily be such as to convey the seriousness with which the court perceives the particular offence with which it is dealing. A wholly suspended sentence for the present crime would not convey the gravity with which the court views an offence of assisting a murderer to evade justice, and, in the present case, would fall far short of an appropriate sentence for what I regard as a bad example of such an offence. During the course of argument counsel for the offender, with the support of counsel for the Crown, advised that it was not possible partially to suspend a sentence. However, after the conclusion of the hearing, counsel provided me with authority to the contrary: R v Gamgee [2001] NSWCCA 251; 51 NSWLR 707. I have considered taking this course. By s12 of the Crimes (Sentencing Procedure) Act 1999, only a sentence of two years or less may be suspended. 15 As an alternative, counsel argued that special circumstances within the meaning of s44 of the Crimes (Sentencing Procedure) Act 1999 exist, justifying the fixing of a non-parole period of less than three quarters of the term of the sentence. This would enable the imposition of a sentence with a non-parole period that would permit the offender's immediate release. Two "special circumstances" suggested were the offender's youth and his desire to restore his relationship with his wife. I do not regard either of these, in this case, as justifying a finding of special circumstances. Also put to me as a special circumstance was the prospect that, when it is known that he intends to give evidence against Tran, the offender may spend the balance of his sentence in protective custody. I accept that the more onerous conditions of protective custody may, in an appropriate case, justify such a finding, but the evidence as to the likelihood of the sentence being so served was, to say the least, scanty. I do not think this is a case in which the proportions referred to in s44(2) of the Crimes (Sentencing Procedure) Act should be varied by reason of special circumstances. 16 The offender is entitled to a significant discount on sentence in recognition of his early plea of guilty, which I have acknowledged has significant utilitarian value. There is little on which to make a proper evaluation of the utilitarian value of the plea of guilty: R v Thomson and Houlton [2000] NSW CCA 309; 49 NSWLR 383. That is, I have no information on the likely length of a trial, if it were to take place, or the number of witnesses who would be called, or the degree of inconvenience to them. Nevertheless, bearing in mind the early stage at which the plea was entered, I have come to the view that the offender is entitled to a discount, for the plea, of 20%. (See Thomson and Houlton.) More particularly, he is entitled to a significant discount in respect of his agreement to give evidence against Tran. Again, there was little on which to evaluate the importance of his evidence to the Crown case against Tran, but it is obvious that whatever other evidence is in the possession of the Crown, this offender's evidence will be direct evidence of Tran's involvement, and of his admission of the killing. There was no evidence of the presence of any other person who might also give direct evidence. I infer, therefore, that the offender's evidence will be of considerable value. I quantify the discount to which he is entitled on this basis at 30%. The combination of the two means that the sentence I would otherwise have imposed will be reduced by 50%. It is worth noting that this results from the conventional application of established legal principle. 17 Having regard to the previous instances of this offence to which I was referred, and the sentences there imposed, I have come to the view that, before discount, the sentence should be one of four years with a non-parole period of three years. However, that is to be discounted by fifty per cent for reasons I have given. This sentencing would result in a head sentence of two years with a non-parole period of eighteen months. However, since I have also concluded that the sentence should be partly suspended, it is not appropriate to specify a non-parole period – (see Sentencing Procedure Act, s12). I propose to suspend execution of the sentence as to 21 months: that is, from 16 March 2003. I propose to sentence the offender to imprisonment for two years, to commence from today. Taking into account the ten months the offender has spent in custody, that is an effective sentence of two years and ten months.