Regina v TNT [2002] NSWSC 537

New South Wales Supreme Court

CITATION : Regina v TNT [2002] NSWSC 537 FILE NUMBER(S) : SC 70069/01 HEARING DATE(S) : 11/06/02, 17/06/02 JUDGMENT DATE : 19 June 2002

PARTIES : Regina TNT JUDGMENT OF : Hidden J at 1

COUNSEL : Mr B Smith - Crown Mr Clive Jeffreys (solicitor) - Offender SOLICITORS : SE O'Connor - Crown Jeffreys & Associates - Offender CATCHWORDS : CRIMINAL LAW: sentence - murder - second offence - offender influenced by others - significant assistance to authorities. R v Hearne [2001] NSWCCA 37 CASES CITED : R v Ellis (1986) 6 NSWLR 603 @ 604 R v Thomson (2000) 49 NSWLR 383 @ para 160(ii) DECISION : See para 21.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HIDDEN J

Wednesday 19 June 2002

70069/01 – REGINA v TNT

SENTENCE 1 HIS HONOUR: The offender, TNT, has pleaded guilty to the murder of HHL in the south western suburbs of Sydney on 7 August 1996. 2 I am indebted to the Crown prosecutor for the following succinct summary of the facts: "About 3.40 pm on Wednesday 7 August 1996 HHL, student, aged 18 years, (born 31.7.78), was sitting in the Sunshine coffee shop near the entrance to Bankstown Railway Station talking to a friend … when the offender, then aged 16 years (born 5.5.80), MHN aged 17 years (born 11.10.78), HLD, aged 18 years (born 17.4.78) and a number of other men entered. The offender approached HHL, put his arm around his shoulder and asked him if a schoolbag lying nearby on the floor was his. When HHL acknowledged ownership of the bag, HLD picked it up. The offender, with his arm still around HHL's shoulder and with the others, led him from the shop. HHL was taken by the offender, MHN and others to a Corona station wagon which was parked nearby and driven to a park in Augusta Street, Bankstown near the Bankstown City Sports Complex where he was assaulted by the offender, MHN and two of the other men. An eye witness, RF, saw two of the group on their knees punching HHL as he was lying on the ground whilst the other two in the group were kicking him. As RF approached, the group of men stopped assaulting HHL. One of them assisted HHL to walk from the park to the Corona station wagon which was parked in nearby Antwerp Street. The four men who had been assaulting HHL boarded the vehicle with him. HHL was seated in the middle of the back seat with one of the men on each side of him. The vehicle was then driven off. HHL was driven to a residence at 3 Kamira Street, Villawood and taken inside by the offender, MHN and others. With his wrists bound in front of his body, he was later placed in a bedroom and imprisoned there. Later HHL was taken to a garage at that address where he was punched by MHN, the offender, HLD and a man named Gwyn. HHL was also struck across the back of the head twice by MHN with a piece of timber. MHN then tried unsuccessfully to kill him by strangling him with a length of wire. MHN then stabbed him in the throat. HHL died shortly afterwards. Later that evening, the offender, MHN and HLD dumped HHL's body at a construction site in Orchard Road, Chester Hill. About 6.30 am on the following morning, Thursday 8 August 1996, his body was found at the construction site. He was then laying face up with his upper garment pulled up exposing his mid section. There was dry sand adhering to his face and mid section. There was dried blood around several lacerations to his throat and on the top section of his upper garment. There was blood staining on the sand under his head and throat. The blood staining had been absorbed by the sand to a depth of 25 mm. Above his head for a length of 1.2 metres there was an area of disturbance in the sand running generally in a north/south direction consistent with dragging of the body from the nearby roadway. Later that morning Dr Peter Bradhurst, forensic pathologist, attended and conducted an examination of HHL's body. From the rectal temperature taken from the body, the ambient temperature at the scene and other information, Dr Bradhurst estimated death to have occurred by 7.30 pm on the 7 August 1996 or a little later." 3 During a post mortem examination, Dr Bradhurst observed several serious head injuries, evidence of strangulation and of stabbing to the throat, and a number of bruises and abrasions to the face and other parts of the body. He concluded that the head injuries were inflicted first, followed by the strangulation and then the stabbing, those injuries being inflicted whilst the deceased was still alive. He was also of the opinion that the head injuries, the strangulation and the stabbing, viewed individually, could have been fatal. 4 When first interviewed by police about the matter early in 1997, the offender denied any knowledge of it. However, he disclosed his involvement in a subsequent electronically recorded interview of 11 October 2000. He gave evidence before me which was to much the same effect. I shall return to his account in a moment. 5 An extraordinary feature of this case is that a little over a week before the killing of HHL, on 31 July 1996, the offender himself killed another man, TCL. He pleaded guilty to that murder, and on 3 May 2002 he was sentenced by Sully J to imprisonment for 14 years, commencing from his arrest on 5 October 2000, with a non parole period of 9 years. He was also sentenced to a concurrent term of imprisonment for a related offence to which I need not refer. On that occasion he shot TCL dead in what his Honour described as "a gangland killing … against a sinister background of conflict arising out of illicit drug trafficking" (para 37 of his Honour's remarks on sentence). Also implicated in that killing were the man MHN and two brothers, NPP and NVP. 6 The two murders were unconnected but, as far as the offender is concerned, there was the common thread of the malign influence of MHN. To understand this it is necessary to sketch the offender's background. The evidence about that matter which is before me was also before Sully J. His Honour summarised it in this way (paras 14-19): "The prisoner was born on 5 May 1980 in Vietnam. At the instance of his mother, who wanted a better life for him than he could expect to have in Vietnam, he came to Australia in 1993. He travelled with a maternal uncle, and the uncle's wife and children. The party travelled via Malaysia and Indonesia, spending about 3 years in a refugee camp in Indonesia. In Australia the prisoner attended school at Cabramatta High School for about a year. There he made the acquaintance of NPP who was somewhat older, and who was a year or two ahead of the prisoner at school. After about six or seven months of living with his uncle and the uncle's family, the prisoner spent a few months living with an older cousin; and he then went back to Vietnam in order to visit his parents. He stayed in Vietnam for about six months. Upon his return to Australia, he found that his uncle had moved interstate with his family. The prisoner, then aged about 15 years, was thus effectively homeless. He was taken in for a couple of months by the family of a school friend, and he got a factory job. He then drifted, unfortunately, into bad company. He began to use prohibited drugs. He left his job and the friend's home, and drifted for a time as, put simply and colloquially, a street kid. In that unpromising context he met again, and was taken up by, NPP, who took him into his, NPP's own home. By that time the prisoner had joined a gang of youths called the Madonna Boys. This gang operated, broadly speaking as two affiliated groups, one centred on Cabramatta, the other on Bankstown. NPP was associated with the Cabramatta group; and MHN was, effectively, the controller of the Bankstown group. While the prisoner lived with NPP, he was drawn by NPP into a life of serious crime involving heroin trafficking; serious larcenies; and intimidation accompanied on occasion by physical violence. According to the prisoner, he was effectively exploited and manipulated by NPP. After a few months, the prisoner moved out of NPP's home, and went to stay with a friend, and the friend's family, at Bankstown. There he came under the influence of MHN. According to the prisoner, he was effectively exploited and manipulated by MHN in essentially the same way as had been his experience with NPP." 7 It was the offender's case that he was effectively coerced into killing TCL, whom he did not know, by NPP and MHN: particularly, it would seem, by NPP. His Honour considered it a reasonable possibility that his actions were the result of "some such pressure …". In the present case it is common ground that he was acting at the behest, and under the influence, of MHN. In October 1998 MHN pleaded guilty to the murder of HHL and was sentenced to a lengthy term of imprisonment by Kirby J. The evidence before Kirby J was significantly different from that which I have received, and counsel are agreed that I need not have regard to his Honour's sentence in dealing with the present offender. 8 I accept that the offender was effectively under the control of MHN and that he was afraid of him. MHN had a reputation for violence and the offender had seen episodes of it. It seems that he now has a formidable record for offences of violence which, apart from the murder of HHL, includes another murder and a manslaughter. 9 The offender's account of the extent of his involvement in the killing of HHL is unchallenged. Like the victim of the previous murder, he did not know HHL. He drove MHN to the coffee shop in a borrowed vehicle, believing that HHL was to be beaten but not killed. He did not know what MHN had against HHL, although on the way to the park near the Bankstown City Sports Complex MHN said something to HHL about leaving his family alone. At the park the offender participated in the assault on HHL to the extent of hitting him once or twice. However, he and one of the other men restrained MHN when he removed one of his boots and began to strike HHL on the head with it. 10 When HHL was returned to the car the offender thought that they were going back to Bankstown to drop him off, but MHN instructed him to drive to the house at Villawood which, as it happened, was the home of NPP. There, when HHL was taken from the bedroom to the garage, the offender said that he wanted to leave but MHN demanded that he stay. He asked MHN to let HHL go but MHN refused, saying that he feared reprisals by HHL against his family. In the garage the offender punched HHL once. When MHN hit HHL with the piece of timber, he said that the matter had gone far enough and that he could not handle it. 11 Any doubt about MHN's intention to kill HHL was put to rest when he attempted to strangle him with the wire. HHL struggled, and MHN instructed the offender and HLD to hold his legs. The offender did so, knowing that MHN was bent upon killing HHL. He left the garage and was not present when MHN stabbed HHL in the throat, although MHN told him immediately afterwards what he had done. As already observed, he then assisted in conveying HHL's body to the building site at Chester Hill. 12 In December 1996 the offender was arrested and charged with assaulting HHL and detaining him for advantage. He was in custody for about nine months until he was granted bail by a judge of this Court. I propose to take that period of custody into account in sentencing him. Those charges later came on for hearing at a Children's Court and he was acquitted of both of them. After he was released on bail he sought to disassociate himself from the Madonna Boys. Sully J narrated what then ensued as follows (paras 34 and 36 of his remarks): "Shortly thereafter he was seriously assaulted by a group of Asian youths. According to the police and hospital records …, the attack occurred in the Viet Hoa Plaza at Cabramatta at about 2.30 p.m. on 20 October 1997. The prisoner suffered severe lacerations to his head; his general condition being noted in the police report as "serious but not life threatening". The prisoner was so traumatised by the attack that on 24 October he walked out of the hospital to which he had been admitted on 20 October. … After leaving hospital the prisoner went to his girl friend's house, where he remained until he had made a complete recovery. His girl friend became pregnant to him. He agreed thereupon with her and with her family that he and she would move interstate, which they did. Thereafter he made a life for himself and his de facto wife, and in due course for their daughter. So things continued until his arrest in October 2000, since when he has been in witness protection custody in this State." 13 He admitted the killing of TCL in an interview with police of 5 October 2000, undertaking to give evidence against others who were also involved. He has recently done so in a trial before Sully J. Following his undertaking to assist the authorities, he was placed in protective custody in the Special Purpose Prison at Long Bay and he has remained there since. On 10 October 2000 he told police that he was prepared to be interviewed about another matter and, as I have said, he admitted his involvement in the killing of HHL in an interview the following day. The Crown prosecutor has acknowledged that, but for his admissions in that interview, there was no case against him. Again, he undertook to give evidence against others involved in this killing and it is anticipated that he will give evidence for the Crown in the trial of HLD which is about to commence before me. 14 The offender has always been prepared to plead guilty to whatever might be the appropriate charge against him in relation to the death of HHL. It is in the nature of things that any person requires legal advice before pleading guilty to murder and, indeed, there were specific reasons in this case why that advice was called for. In all the circumstances, the Crown accepts that his plea of guilty was entered at the earliest reasonable opportunity. His remorse is demonstrated by that plea of guilty and by his unsolicited disclosure of his criminality, and it was expressed in his evidence and in a psychological report which is before me. 15 The offender lived a blameless life in Melbourne after he moved there with his girlfriend. He obtained employment in a motor vehicle business, the proprietor of which became what is known in Vietnamese culture as his "godfather", a relationship of considerable significance. That gentleman, KH, gave evidence attesting to the offender's honesty and industriousness, together with his devotion to his child. Consistently with their special relationship, KH has assured him of his continuing support. Similar evidence of his good character was given by DS, also employed in KH's business, and appears in a statement by the offender's girlfriend. She has since married another man but the offender maintains regular telephone contact with their daughter. 16 Like Sully J, I consider that he has good prospects of rehabilitation. His Honour found special circumstances warranting a departure from the usual proportion between sentence and non-parole period and it is common ground that I should do so, in the light of the offender's subjective circumstances and also because he will have to serve the whole of the custodial component of his sentence in protective custody. 17 The crime for which he faces sentence is very serious indeed involving, as it does, his participation in a brutal killing. Moreover, it was committed not long after he had killed another man. On the other hand, the two murders must be understood in the light of the milieu in which he was then living and, in particular, the influence upon him of NPP and MHN. His involvement in the murder of HHL, viewed objectively, is not as serious as the previous killing. The Crown prosecutor recognised as much, acknowledging that the sentence I pass should be less than that imposed by Sully J, although not markedly so. 18 Grave as this crime is, appropriate weight should be given to the offender's youth at the time: R v Hearne [2001] NSWCCA 37, at paras 22-25. Particularly is this so given his disturbed background and the virtual absence of any nurturing during his formative years. I am persuaded by the Crown prosecutor's submission that the sentence for this offence should be wholly cumulative upon the non-parole period fixed by Sully J, although I will backdate it to a date nine months earlier than the expiration of that period in recognition of the time the offender had previously spent in custody as a result of the incident. That being so, considerations of totality demand some moderation of the sentence which might otherwise have been appropriate. In addition, the accumulation provides a further reason to reduce the non-parole period which I set, so as to ensure that he remains eligible for release on parole for a significant period of time. 19 The fact that the offender sought out the police to disclose his involvement in this crime raises considerations akin to those expressed by Street CJ in R v Ellis (1986) 6 NSWLR 603 at 604. It is against that background that the value of his plea of guilty, upon which I have already commented, should be assessed. His willingness to give evidence for the Crown in the trial of HLD is significant, particularly in the light of the evidence of the police officer in charge of the investigation that this is unusual in the South East Asian community. 20 I propose to quantify in a broad, global way the leniency which these matters have earned him: R v Thomson (2000) 49 NSWLR 383, per Spigelman CJ at para 160(ii). Although Sully J did not take that course, I am satisfied that I should do so. But for those matters, I would have imposed a sentence of imprisonment for 20 years. In the light of them, I reduce that sentence by fifty percent to 10 years. I specify a non-parole period of 6 years. Notwithstanding a powerful subjective case, the offender's criminality is of a high order and I do not consider that any lesser sentence or non-parole period could be justified. The non-parole period set by Sully J would expire on 4 October 2009 and, as I have said, the sentence which I pass will commence nine months earlier. 21 TNT, you are sentenced to imprisonment for 10 years, to commence on 5 January 2009, with a non-parole period of 6 years. You will now be eligible for release on parole on 5 January 2015.