New South Wales Supreme Court CITATION : REGINA v. TRAN [2003] NSWSC 373 HEARING DATE(S) : 11/4/2003; 22/4/2003; 2/5/2003 JUDGMENT DATE : 2 May 2003 JURISDICTION: Criminal JUDGMENT OF : Greg James J at 1 DECISION : Imprisonment for five years to commence on 19 February 2002, with a non-parole period of two years and three months which will expire on 18 May 2004. The earliest date upon which the offender will be eligible for release on parole is 18 May 2004. CATCHWORDS : Criminal law - manslaughter - sentence - level of culpability - offender affected by sleep disorder - lacked specific intent for murder - mental state verging on that of automaton - consideration of interim sentencing regime under amending legislation - aggravating and mitigating features - special circumstances found. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 CASES CITED : Shrestha (1991) 173 CLR 48 Oinonen [1999] NSWCCA 310 PARTIES : REGINA v. TRAN, Phuc Hoa FILE NUMBER(S) : SC No. 70073 of 2002 COUNSEL : Crown: L. Lungo Off: D. Yehia SOLICITORS : Crown: S.E. O'Connor Off: Legal Aid Commission IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION GREG JAMES, J. FRIDAY 2 MAY 2003 No. 70073 of 2002 REGINA v. PHUC HAO TRAN SENTENCE 1 HIS HONOUR: The offender Phuc Hao Tran has pleaded guilty to the manslaughter of his partner Yoke Phin Loh. That plea was accepted by the Crown in full discharge of an indictment which charged the offender with the murder of that lady. The material to be considered on the plea has been included in one volume marked Exhibit A. 2 On the evening of 6 December 2001 the offender and Mrs. Loh at the home of a friend consumed a considerable quantity of alcohol and fell asleep. During the evening whilst they were in bed together something happened between him and her. Whatever it was that happened resulted in her death. They had drunk between them the best part of a carton of beer before going to sleep together on a mattress in a spare bedroom. The other person in the house, the householder, Phuc Hang Quach was asleep in another bedroom. 3 The offender became aware that Mrs. Loh had died. He wrapped her body in plastic, woke Mr. Quach, told him that he had "accidentally" killed Mrs. Loh and asked him to help dispose of the body. The body was placed in a vehicle and driven to a location where it was disposed of. 4 A week later Mrs. Loh's flatmate reported her missing to police. 5 On 11 January, approximately a month after the deceased's death, the offender was spoken to by police at Lidcombe Police Station. He took part in an electronically recorded interview. In that interview he said that he had seen Mrs. Loh on 6 December. They had met and gone to various places during the day but had parted company, that he drove to Lakemba and then to his home at Marrickville where he went to bed. Following the interview he was allowed to leave. 6 Enquiries were however made concerning his and Mrs. Loh's mobile phone records. Those enquiries indicated that her mobile phone handset had been used but with a simcard registered to him and this had occurred on 7 December 2001. That use continued until two days after the initial interview with the police. 7 Lawfully authorised telephone interceptions occurred. It was discovered that the offender's mother had called him to advise that his father had died in Vietnam and he should return home to Vietnam. He made urgent arrangements to fly to Vietnam for that purpose. On 19 February 2002, police attended Sydney International Airport and, as he was preparing to leave for Vietnam, arrested him for the murder of Mrs. Loh. 8 Since the Crown accepts that he was returning to Vietnam for his father's funeral the Crown did not seek to assert any flight on his part as inculpating him. 9 The offender was spoken to by the police on 19 February 2002 and admitted killing Mrs. Loh. He referred to having a nightmare and waking to find that she was dead. He admitted giving her telephone to a friend after replacing his simcard. He admitted disposing of her property. He gave answers in that interview concerning what had happened between himself and Mrs. Loh which caused her death. "We never angry. That's why I don't know why I kill her ... all times see her is good time ... we never have arguments ... see each other few times per year ... we had small relationship." 10 He referred in that interview to having fallen asleep with Mrs. Loh and felt her hand or one of her arms scratching him heavily on the chest. He tightly embraced her, she yelled out "not very loud" and he saw his hand tight on her neck. She put her hand on his chest again "I think she defend herself" he said:- "I hold her until she die ... I don't try to kill her first, did not plan to kill her first ... she do not defend any more so I opened have a light in the room ... I looked at her and she open her eye and she's yelling again ... look like yelling but when she open her mouth and I just put my hand in her mouth ... I put in her mouth to stop her yelling but she start, you know ... rolling, look like she want to catch me again so I hold my body her until ... until she died. She really die ... I don't know why I kill her and how can I kill her ... had no reason to kill her ... and I don't know what to do next ..." 11 The material I have just quoted is taken as an extract from the agreed statement of facts provided to me by the Crown and the offender on this plea. 12 It is clear on a full reading of the electronically recorded interview transcript that the offender's ability to use the English language to describe precisely what had occurred is limited. 13 In addition, I have been provided with the reports of Professor Grunstein and Associate Professor Wheatley dealing with the offender's likely suffering from a sleep disorder which taken in combination with the alcohol imbibed may have afforded some explanation for the conduct which caused the deceased's death. Suffice it to say that both Professor Grunstein and Professor Wheatley are of the view that it is reasonably possible that the offender killed the deceased without any specific intent to kill or cause serious harm and indeed on a reading of both reports both professors seem to share the view on the material provided to them that the offender's mental state at the time bordered upon that of an automaton. 14 It is not easy to work out through the language difficulties and bearing in mind what is said by the two professors from what the offender said to the police in the electronically recorded interview of 19 February what is fact and what is a memory of some sleep or intoxication induced nightmare. 15 The best one can say seems to be that the deceased met her death at the hands of the offender probably as a result of the offender placing his hand over her mouth or nose or in her neck region such that either the vaso-vagal nerve was stimulated, she was suffocated or in some other way, unknown, that she met her death without his being conscious that what he was doing was likely to cause her death. 16 The plea accepts however that he deliberately did some act of a nature which was objectively dangerous and which was unlawful and which caused her death. 17 The objective culpability of an act such as that, even taken in conjunction with the context of there having been an attempted disposal of the body, the employing of another for assistance in that regard and the disposal of her property, is having regard to the manifold circumstances in which manslaughter might come to be committed, nonetheless at the lower end of culpability. 18 Notwithstanding that, it is of culpability such as in my view attracts a custodial sentence. 19 I have received written submissions of great assistance from both counsel and oral submissions as to the range of appropriate sentences, in particular, paying attention to the sentences in the schedules of sentences that have been attached to those written submissions. I note here that this is a matter that has been conducted by counsel with the highest professionalism and in a way to afford to the court the greatest possible assistance. 20 The submissions accord with each other on matters of principle except for one matter only. In the Crown's written submissions reference was made to the prospect of deportation as being a matter that could be taken into account in reference to the length of a non-parole period that might be fixed. 21 In his oral submissions today, Mr. Lungo, the Crown Prosecutor, accepted the submission put by Ms. Yehia on behalf of the offender that that submission did not accord with the effect of the High Court's judgment in Regina v. Shrestha (1991) 173 CLR at 48. That concession is well made. 22 The offender's personal circumstances are set out in a document to which there is no challenge provided to me on his behalf by Ms. Yehia. 23 He was born on 22 December 1975 in Ho Chi Min City, Vietnam, the youngest of three children. His father was a soldier in the communist army and during his formative years his father was away for many months. The relationship between his parents was unhappy, characterised by frequent verbal arguments. They eventually separated when he was aged about five years. He resided with his father but continued to maintain contact with his mother. He attained the equivalent of university admission and completed four years of full-time study towards an economics degree in Vietnam. 24 He was granted approval to come to Australia to study. His parents supported him. He arrived on a student visa in 1998 and attended college as a full-time student for two years in Australia after having arrived here. He did not graduate but worked part-time with a cleaning company for some two yeas, subsequently working as a process worker in a packing factory. 25 He had married while in Australia. That marriage has not been successful. He has been divorced since February 2003. He has a temporary residency visa. I have already referred to his father's death in Vietnam and that it was to the funeral that he was intending to travel on 19 February. 26 He has attended and satisfactorily completed a drug and alcohol course and a number of education programmes in custody. The certificates have been provided to me. He has no prior record. 27 It is common ground that the relevant sentencing regime requires that I proceed in accordance with the provisions of the Crimes (Sentencing Procedure) Act 1999 as applicable having regard to the amendments made to that Act by Act 90 of 2002 and in particular that I have regard to s.21A as it now stands, though to s.44 as it stood prior to that amendment since the present s.44 came into operation only on 1 February 2003. This is not a matter therefore in respect of which a standard non-parole period is applicable although the aggravating circumstances and mitigating circumstances are referred to in s.21A are theoretically applicable. 28 Bearing in mind that I am sentencing for manslaughter, a crime in which has been inflicted the greatest injury known to the law and that inherent in the crime is an element of violence, the Crown accepts that those two matters are not to be considered as aggravating circumstances as they are basic to the very nature of the crime. 29 The Crown also concedes having regard to those matters that no other matter referred as an aggravating circumstance under the section is here applicable. 30 Of the mitigating matters to which the section refers, it is clear that the offence was not part of a planned or organised criminal activity, that the offender has no criminal record, was a person of prior good character, has good prospects of rehabilitation even if it is unlikely he will commit offences in the future. Indeed having regard to the nature of this offence and having regard particularly to his circumstances at the time at which it was committed there is no reason to apprehend any offence in the future at all in my view. 31 I have regard to the early plea both for the purposes of s.21A and s.22. The Crown accepts that the plea was accepted as soon as offered and that having regard to the principle in Regina v. Oinonen [1999] NSWCCA 310 the offender should receive the full benefit of an early plea. I do not accept that there was remorse in the sense referred to by the section nor do I understand that Ms. Yehia contends to that effect having regard to her oral submissions made today but it is clear from the record of interview of 19 February that the offender was appalled at the circumstances in which he found himself and was entirely confused and perplexed as to how the death had come about. 32 It is not possible to so analyse and dissect the emotions he revealed on that occasion as to say he was not suffering at the death or expressing any lack of contrition, because he was not fully aware of the consequences of his unlawful act. Indeed, it appears that I should conclude and I do that he verged upon being an automaton at the time of the commission of the act causing death. So much I understand is conceded in his oral submissions by Mr. Lungo on behalf of the Crown. 33 A psychiatric opinion was also provided by Dr. Allnutt. That opinion discloses that the offender does not exhibit the features commonly associated with recidivism. 34 This is the first time the offender will serve a custodial sentence. He is a comparatively young man. He will serve his sentence in a degree of isolation, bearing in mind that the remaining members of his family are overseas, although that matter does not weigh heavily in my view when I have regard to the sentence overall. He has been in custody since 19 February 2002. 35 It is necessary for me to set a non-parole period applying s.44. As s.44 is applicable to this matter I am required first to set the term of the sentence and secondly to set a non-parole period. That period must bear the proportion of being not less than three-quarters of the term of the sentence unless the court decides that there are special circumstances for it being less in which case the court must make a record of its reasons for that decision. 36 I am of the view that there are special circumstances in this matter. They include that the offender verged upon being an automaton, suffering from the sleep order and intoxication to which I have referred at the time of the commission of these offences; that he had no prior criminal record and was a person of prior good character who will be serving his first sentence of imprisonment notwithstanding the limited willed nature of the act that caused him to commit the crime; in my view, he is unlikely to offend and consequently he has good prospects of rehabilitation; that he had a lack of awareness of the consequences which followed from the limited nature of his awareness at the time of the commission of the offence. 37 All of these, in my view, are matters which appropriately go to show there should be other than the normal relationship as prescribed by the section between the non-parole period and head sentence. I consider that the non-parole period in particular should reflect the limited culpability of this offence. 38 I am of the view that an appropriate head sentence in this case is five years imprisonment. Having regard to the special circumstances however, I am of the view that two years, three months non-parole period should be specified. The sentence should date from 19 February 2002. Mr. Crown, can I ask you to reduce that to the standard form for an order? The expiry date of the non-parole period is 18 May 2004? LUNGO: Yes your Honour. HIS HONOUR: Are the calculations right? LUNGO: Yes your Honour. HIS HONOUR: Anything you wish to say Mr. Crown? LUNGO: No your Honour. 39 HIS HONOUR: Mr. Tran would you please stand. Phuc Hao Tran you are sentenced to imprisonment for five years. That sentence is to commence on 19 February, 2002. There will be in respect of that sentence a non-parole period of two years three months which will expire on 18 May 2004. Do you understand that the earliest date upon which you can be released is 18 May 2004. ********** Last Modified: 05/12/2003 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.