Regina v Phuoc Giau Nguyen [2004] NSWSC 1067

New South Wales Supreme Court

CITATION : Regina v Phuoc Giau Nguyen [2004] NSWSC 1067 HEARING DATE(S) : 29 October-14 November 2003, 21 May 2004 JUDGMENT DATE : 15 November 2004

JUDGMENT OF : Hidden J at 1 DECISION : Shoot with intent to murder: 12 years fixed term from 20 March 2002. Murder: 20 years, non-parole period 14 1/2 years, from 20 March 2004.

CATCHWORDS : CRIMINAL LAW: sentence - murder, shoot with intent to murder - pleas of not guilty - unpremeditated - intent to kill. LEGISLATION CITED : Crimes (Sentencing Procedure) Act PARTIES : Regina v Phuoc Giau Nguyen FILE NUMBER(S) : SC 70014/03 COUNSEL : T Hoyle SC - Crown A Martin - Offender SOLICITORS : S Kavanagh - Crown T Voros - Offender

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

HIDDEN J

15 November 2004

70014/03 REGINA v Phuoc Giau NGUYEN

REMARKS ON SENTENCE 1 HIS HONOUR: On 14 November 2003 the offender, Phuoc Giau Nguyen, was found guilty at his trial of the murder of Khanh Thanh Nguyen, and of shooting at Tri Binh Tran with intent to murder him. Both offences were committed in the course of the same incident, which took place in the early hours of 2 February 2002 at the Pavillion Hotel in George Street, Sydney. On 21 May 2004 I received evidence and heard submissions on the question of sentence. 2 The facts can be stated shortly. In the early hours of Saturday, 2 February 2002 the deceased, Khanh Thanh Nguyen and his friend, Tri Binh Tran were together at the Pavillion Hotel. Also at the hotel were the offender and two of his associates. There is no evidence that the offender and the deceased were known to each other. There is evidence that Mr Tran knew the offender, but it is not clear how well or in what circumstances. Initially, all of them were in a bar and dance floor area on the second floor of the hotel. One of the offender's associates flicked a cigarette butt at Mr Tran. This led to an argument between those two men, in which the other three became involved. It may be that this escalated into a violent exchange, but the evidence about that is far from clear. 3 A little later, the deceased and Mr Tran left that area and went to a gaming lounge on the first floor. Minutes later, the offender and his two associates also entered the gaming lounge, and the offender confronted the deceased and Mr Tran about what had occurred upstairs. The offender then drew a handgun from his clothing and shot the deceased twice, once in the stomach and once in the lower back. He then shot Mr Tran three times, wounding him in the right shoulder, left hip and left thigh. 4 The offender was restrained by his associates, and they fled from the gaming room and out of the hotel. The deceased, who was lying on the floor, mortally wounded, pulled a handgun from his clothing and handed it to a witness, asking him to "get him back" for him. The witness took the gun to the men's toilet and deposited it behind a toilet bowl. It was later recovered by police, who found that its magazine was fully loaded. This, of course, was not the weapon used by the offender, which was never found. 5 The deceased died from his wounds later that morning. Mr Tran underwent hospital treatment for his injuries for about a week. 6 One cannot but wonder whether there is a background to this incident not disclosed by the evidence. However, I can sentence the offender only on the basis of the evidence which is before me, which establishes no more than that the shooting was the spontaneous product of a confrontation arising from the incident on the second floor of the hotel. 7 The offender was arrested on 20 March 2002 and declined to be interviewed. He did not give evidence at the trial or in the sentence proceedings. The central issue in the trial was whether he was the gunman. 8 He was twenty-four years old at the time of the offences and is now twenty-seven. He has a disturbing criminal record. Between 1995 and 1996 he was dealt with in a children's court and a local court for assault occasioning actual bodily harm, resisting arrest, some firearms offences and a variety of traffic offences. All these resulted in non- custodial orders. However, in 1998 he was sentenced in the District Court for four counts of robbery in company to terms of imprisonment aggregating seven years, with a minimum term of four-and-a-half years, to date from 4 April 1997. 9 The facts of those offences were extremely serious. The offender and a number of accomplices overpowered a man in his motor vehicle and drove him to a park, where they demanded money. The victim said that he had no money, but could borrow some from his mother-in-law or from a friend. He was then driven to his in-laws' home, where the occupants were bound and covered with blankets, and money and jewellery were stolen. The original victim was assaulted on several occasions and menaced with a pistol by the offender's accomplices, although not by the offender himself. The offender was released on parole at the expiration of his minimum term on 3 October 2001 and, accordingly, was on parole at the time of the present offences. 10 His background is sketched in a helpful report of a clinical psychologist, Mr Terry Smith. He has five siblings, and was born and raised in a small town in Vietnam. His father left the family when he was only three years old. His mother did not remarry and the family was very poor. After completing primary school in Vietnam, he migrated to this country with his mother and four of his siblings. 11 Here, he attended high school and obtained a reasonable grasp of the English language. However, he left school at the end of Year 9 because he was bored and wanted to work to support his mother. He felt that he had endured poverty for too long and wanted to enjoy a better life. 12 He had unskilled employment for a time but, unfortunately, he began to associate with unemployed youths who were using illicit drugs to cope with their unemployment. He began to use a variety of drugs himself, although drug abuse does not appear to have become a major problem for him. However, it was through this peer network that he became involved in criminal activity. 13 While he maintained his innocence of the present offences, he expressed to Mr Smith his compassion for the family of the deceased and for Mr Tran and his family. Mr Smith observed of him: Mr Nguyen impresses as a young man of at least average intellectual ability with excellent interpersonal skills and more than adequate communication skills. The impression gained was of a confident and assertive man who obviously had the capacity for thoughtful consideration and insight. He did not impress as one who had a 'chip on his shoulder'. 14 He formed a relationship with a girl when he was released on parole, and it seems that he continues to enjoy her support and that of his family. Mr Smith saw his prognosis as being "at a watershed". He did not think that he required any treatment and considered that, if he were to be provided with any therapeutic assistance, "it would only be in the role of support". He concluded: …it is difficult to make comment on a young man's adjustment over the medium to longer term when his life has been so strongly influenced by incarceration. The signs are there that he could live a positive life if he makes the right choices. 15 As I have said, the offender is to be sentenced on the basis that the offences were not premeditated. However, I am satisfied that he shot the deceased intending to kill him. His counsel did not argue the contrary. So much is apparent from the circumstances and from the fact that he was found guilty of shooting at Mr Tran with intent to murder him, which necessarily entails an intent to kill. 16 It is most disturbing that this young man was carrying a loaded pistol (as it is that the deceased himself was armed in the same way). However, he is not to be sentenced for his possession of that firearm. The use of a weapon is one of the aggravating factors to be found in s21A of the Crimes (Sentencing Procedure) Act: see subs (2)(c). However, it is a factor of limited significance in a homicide, and it cannot be taken into account in aggravation of the offence of shooting with intent to murder because it is an element of that offence: see the concluding words of subs (2). What is significant, however, is that the shooting took place in a public place where other patrons of the hotel were put at risk: subs (2)(i). 17 That the offender was on parole is a serious aggravating factor long recognised in the authorities, and now spelled out in subs (2)(j). Counsel for the offender suggested that I might find, by way of mitigation, a measure of provocation arising from the incident on the second floor: subs(3)(c). However, that incident appears to have been relatively trivial, even if it did involve a violent exchange, and it affords no adequate explanation for his extremely violent conduct. It serves to underline the spontaneous nature of that conduct but does not otherwise mitigate its seriousness. 18 I take into account the offender's difficult background and, in the light of the psychological report, I think that he has reasonable prospects of rehabilitation. I have considered the question of special circumstances and there is certainly evidence justifying such a finding. However, the aggregate sentence I have in mind is such that any significant departure from the statutory norm would result in an effective non-parole period inadequate to reflect his criminality. Although the two charges arise out of one brief incident, I propose to pass partly cumulative sentences. For that reason only, I shall fix a non-parole period for the murder which is a little less than the normal proportion. The result will be an aggregate sentence which maintains the statutory proportion, but which provides a substantial period of parole eligibility to foster his rehabilitation. 19 Following his return to custody upon his arrest, the offender's parole was revoked from 2 April 2002 and he has now served the balance of his parole, expiring on 3 April 2004. I shall date the first of the sentences which I propose from the day of his arrest, 20 March 2002. I have not made a quantifiable adjustment to the sentences I would otherwise have passed because two years of his pre-sentence custody is referable to his balance of parole, but I have taken that fact into account in arriving at the appropriate sentences. Although the sentences will be partly cumulative, I have determined the aggregate sentence with an eye to totality. The case is not affected by the 2002 amendments to the Crimes (Sentencing Procedure) Act altering the structure of sentences and introducing standard non-parole periods. 20 Phuoc Giau Nguyen, on the charge of shooting at Tri Binh Tran with intent to murder him you are sentenced to imprisonment for 12 years, to date from 20 March 2002. I decline to set a non-parole period in respect of that sentence because of the sentence I am about to pass for the other charge. For the murder of Khanh Thanh Nguyen you are sentenced to imprisonment for 20 years, with a non-parole period of 14 ½ years, to commence on 20 March 2004. The aggregate sentence, then, is imprisonment for 22 years, with a non-parole period of 16 ½ years, dating from 20 March 2002. You will be eligible for release on parole on 19 September 2018.