New South Wales Supreme Court CITATION : Regina v Lu [2007] NSWSC 1259 HEARING DATE(S) : 18 October 2007 JUDGMENT DATE : 9 November 2007 JUDGMENT OF : Price J at 1 DECISION : Convicted. Sentenced to a term of imprisonment with a non-parole period of 6 years and 2 months which is to commence on 30 April 2009 and is to expire on 29 June 2015. Balance of term 3 years and 2 months which is to commence on 30 June 2015 and expire on 29 August 2018. Earliest date of eligibility for release to parole is 29 June 2015. CATCHWORDS : Criminal law - manslaughter by unlawful and dangerous act - sentence - plea of guilty Crimes (Sentencing Procedure) Act 1999 s 12, LEGISLATION CITED : s 21A(2)(i), s 21A(2)(n) s 21A(3)(i) Evidence Act 1995 s 131(5)(b) Ahmad v Regina [2006] NSWCCA 177 Cahyadi v Regina [2007] NSWCCA Johnson v The Queen (2004) 78 ALJR 616 R v Blacklidge (unrep, NSWCCA 12 December 1995) R v Buddle [2005] NSWCCA 82 R v Close (1992) 31 NSWLR 743 R v Elyard [2006] NSWCCA 43 CASES CITED : R v Fernando [2002] NSWCCA 28 R v M.A.K, R v M.S.K [2006] NSWCCA 381 R v McNaughton [2006] NSWCCA 242 R v Ponfield (1999) 48 NSWLR 327 R v Previtera (1997) 97 A Crim R 76 R v Simpson (1992) 61 A Crim R 58 R v Thomson; R v Houlton (2000) 49 NSWLR 383 Regina v Forbes [2005] NSWCCA 377 PARTIES : Regina Hoang Quang Lu FILE NUMBER(S) : SC 2006/1992 COUNSEL : Mr R Button SC - Prisoner Mr G Tabuteau - Crown IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST PRICE J 9 November 2007 2006/1992 Regina v Hoang Quang LU REMARKS ON SENTENCE 1 HIS HONOUR: On 15 August 2007 Hoang Quang Lu was arraigned on an indictment which contained a single count that he on 1 October 2005 did murder Phillip Anthony Rousianos. After entering a plea of not guilty to murder, the prisoner entered a plea of guilty to manslaughter. The Crown accepted the plea in full discharge of the indictment for the offence of murder. 2 The maximum sentence for the crime of manslaughter is 25 years imprisonment. 3 A statement of agreed facts was tendered at the sentencing hearing on 18 October 2007 by consent and marked as exhibit B. The Agreed Facts 4 The agreed facts are: "1. About one month before 01 October 2005, in the very early hours of the morning, Phillip Anthony Rousianos (the deceased) and his girlfriend, Naomi Malcolm, drove over to the nearby premises of the offender, Hoang Quang Lu, at 3 Goulburn Street, Liverpool. Naomi Malcolm knocked at the door. The offender's girlfriend, Helena Hudson came to the door. There was an argument between the two women. Naomi Malcolm wanted Helena Hudson to wake up the offender so she could talk to him directly. Helena Hudson refused. There was a verbal exchange. Naomi Malcolm returned to the car. Helena Hudson followed her out of the house. Helena Hudson remonstrated with Naomi Malcolm. A physical confrontation followed. The deceased got out of the car, and punched Helena Hudson. The offender emerged from the house. There was a further physical confrontation, between the offender and the deceased, in which the offender was punched and kicked whilst on the ground, by the deceased. The offender's girlfriend, Helena Hudson, had to intervene to stop the deceased from kicking the offender. This was happening around the car in which the deceased and Naomi Malcolm had arrived. In the commotion, the car rolled backwards, and over Naomi Malcolm, and injured her. The deceased and his girlfriend then left and returned home to the address of the deceased, a unit in nearby Hart Street. A few minutes later, the offender arrived, in his car, wielding a machete. There were screams and yelling. The offender confronted the deceased, raising the machete at him. At that point the deceased's father, and his younger brother Danny, intervened. The offender backed off, making death threats at the deceased, and left. 2. On Saturday 01 October 2005 at approximately midday, the deceased and his younger brother Danny, who was 15 at the time, and their mother Sophie Rousinaos, left their home in Hart Street, Liverpool, to walk to the Westfield shopping centre, which was a short distance away. At the time the family car was at the workshop being repaired. The three walked west along Lachlan Street. Danny Rousianos saw the offender in his car, driving towards them, that is to say east, in Lachlan Street. The offender was alone in the car. The offender saw the deceased and his two companions. He slowed down and turned left into a side-street. Danny Rousianos said to the deceased "Phil, there's Wayne, driving past" . The offender was also known as Wayne. 3. The offender returned to his premises at 3 Goulburn Street, Liverpool, where alleged co-offender Dinh Khuong Pham was at the time. The offender collected Pham, and the two left in the offender's vehicle. 4. In the car the offender told Pham that the deceased had had a fight with the offender and that he (the deceased) had hit his wife. The two agreed to drive to where the offender had last seen the deceased and to attack the deceased and assault him and occasion actual bodily harm to him. 5. At the time, the offender had an iron bar in his vehicle. 6. The offender stopped his vehicle in Lachlan Street just behind where the deceased and his mother and brother were walking. The offender and Pham jumped out of the vehicle, the offender holding the iron bar, and began yelling at the deceased and chasing him. 7. As the co-offender Pham ran after the deceased, the deceased's mother, Sophie Rousianos stood in Pham's path. Pham struck Sophie Rousianos in the face, knocking her to the ground. The deceased jumped over the fence of the property at 10 George Street Liverpool, at the corner of Lachlan and George Streets, and ran to the front door of the house. 8. Pham returned to the offender's vehicle and retrieved an object from within the vehicle while the offender stood at the side fence of 10 George Street, yelling at the deceased and waving the iron bar at him. At the time, the deceased was at the front door, knocking for help. 9. The offender, together with Pham then jumped over the fence into the property at 10 George Street and surrounded the deceased on the porch near the front door to the premises. 10, The deceased kicked at the offender and the offender punched the deceased in the face. 11. It is agreed between the parties that during the confrontation on the porch at the front door of the premises that Pham produced a knife and fatally stabbed the deceased. 12. The acts of the offender as set out in the above paragraphs 3-10 constitute an unlawful and dangerous act which substantially contributed to the death of the deceased. 13. After the deceased had been stabbed on the front porch, he walked slowly from the porch to the front gate of the premises and collapsed to his knees. An ambulance crew attended within minutes and conveyed him to Liverpool Hospital where he was pronounced life extinct at 12.59pm. A post mortem examination showed that a blade of a knife had penetrated the full thickness of the right ventricle of the heart, the right main chamber of the heart. The total penetration of the blade was 10cm. The cause of death was given as a stab wound to the chest. 14. The offender whilst reporting to Liverpool Police Station at about 5pm that afternoon was arrested by investigating officers. He agreed to participate in an ERISP interview, where he denied the offence of murder. He was subsequently charged." 5 I make findings of fact for the purpose of sentencing the prisoner in accordance with the agreed facts. 6 Paragraphs 3-10 of the agreed facts disclose the acts of the prisoner which substantially contributed to the death of the deceased. The prisoner's offending did not involve an intention to kill or to inflict grievous bodily harm upon the deceased or reckless indifference to human life. There is no suggestion that he knew that Pham was in possession of a knife, which Pham would use. 7 The prisoner intended that he and Pham would assault the deceased and occasion actual bodily harm to him. He was motivated by the desire for revenge for what had occurred about a month before when the deceased had punched his girlfriend and had punched and kicked him whilst he was on the ground. It was for this purpose that he had left the motor vehicle holding an iron bar and chased the deceased. It was Pham, however, who produced a knife and inflicted the stab wound from which the deceased died. 8 The starting point in the present sentencing exercise as in all offences of manslaughter is that the life of Phillip Rousianos aged 21 years has been unlawfully taken: see R v Blacklidge (unrep, NSWCCA 12 December 1995). 9 The death would not have occurred but for the fact that the prisoner picked up Pham and returned with him to George Street to find the deceased. The prisoner's animosity towards the deceased provided the reason for the agreement with Pham to inflict actual bodily harm. He procured the assistance of Pham in his dispute with the deceased so as to avenge himself and his girlfriend. It was the prisoner who created the circumstances of confrontation in which the deceased unexpectedly found himself. The prisoner as I have said did not know that Pham was in possession of a knife. The acts of the prisoner, which constitute an unlawful and dangerous act, which substantially contributed to the death of the deceased, include the threat of violence to him. The prisoner was armed with an iron bar, which he waved at the deceased whilst he stood at the side fence. At that time, the deceased was seeking help. The prisoner and Pham then jumped over the fence and surrounded him. The prisoner used actual violence when he punched the deceased in the face. Whilst the deceased kicked at the prisoner, he only did so after they had pursued and surrounded him on the porch. 10 This is to my mind an objectively serious offence of manslaughter by unlawful and dangerous act. 11 Mr Button SC submits (POS 11) that the prisoner's use and selling of prohibited drugs was the real cause of the "festering dispute" with the deceased which precluded him from reporting to police that he and his girlfriend had been assaulted. There is no dispute that the confrontation at the prisoner's home about a month before the deceased's death occurred as the deceased had gone there to obtain prohibited drugs. It seems to me that it would be a peculiar result that an inability to report a matter to police because of personal involvement in criminal activity could be considered to be a matter of mitigation. Neither the prisoner's involvement in criminal activity nor the assault upon him and his girlfriend a month before can justify the prisoner taking the law into his own hands and seeking to exact physical revenge: see R v Buddle [2005] NSWCCA 82 per Wood CJ at CL at [11]. The prisoner had confronted the deceased in Hart Street shortly following the assault. The month that had elapsed afforded him the opportunity for calm reflection and to appreciate that violent avengement was wrong. 12 The prisoner has a lengthy criminal history which commenced in 1990 and includes convictions for offences of dishonesty, the possession and supply of prohibited drugs, assault and possession of a prohibited weapon. Other than the offence of assault in 1990 for which he was convicted and fined, there is one offence involving violence, namely the offence of robbery in company for which he was convicted and sentenced in the Campbelltown District Court in September 2000 to a total term of imprisonment of 32 months with a non-parole period of 16 months. Conditions of his release to parole included drug and alcohol counselling. In March 2003 the prisoner was sentenced to 12 months imprisonment for the supply of a prohibited drug, which was suspended on appeal and he came under the jurisdiction of the Drug Court. It appears from the probation and parole report (exhibit 2) that he voluntarily removed himself from the program and was sentenced to a 50 hour community service order by the Drug Court in April 2004 which he failed to complete. Upon revocation of the order on 20 June 2005, the prisoner was sentenced to imprisonment for four months, the term of imprisonment being suspended upon his entering into a s12 Crimes (Sentencing Procedure) Act 1999 ( Crimes (SP) Act) bond one of the conditions of which was that he was to continue his methadone maintenance program. On 26 May 2006 for the offence of supply of a prohibited drug he was sentenced in the Campbelltown District Court to a total term of imprisonment of 4 years 8 months with a non-parole period of 3 years 7 months. The sentence and non-parole period commenced on 2 November 2005 and the non-parole period expires on 1 June 2009. 13 That criminal history deprives the prisoner of the considerations of leniency to which he may have been entitled if the current offence was an isolated act of criminality. Having regard to the prisoner's criminal history, I give more weight to considerations of personal deterrence and the protection of the community than otherwise would be the case: see R v McNaughton [2006] NSWCCA 242; R v M.A.K, R v M.S.K [2006] NSWCCA 381. 14 An aggravating factor is at the time of the offence the prisoner was subject to the s 12 bond which he had entered into on 20 June 2005 and was also on conditional bail for the charge of supply prohibited drug for which he was sentenced in the District Court on 26 May 2006. Bail had been granted in the Liverpool Local Court on 12 March 2005 and included a reporting condition. The prisoner abused his conditional liberty by committing the crime of manslaughter. The commission of an offence whilst on conditional liberty has long been regarded as a factor of aggravation requiring the passing of a deterrent sentence: see for example Regina v Fernando [2002] NSWCCA 28 at [40-42] and R v Ponfield (1999) 48 NSWLR 327 at [48]. 15 The Crown invites me to find that an aggravating factor was that the offence was part of a planned or organised criminal activity: s 21A(2)(n) Crimes (SP) Act. In the present case, the stabbing of the deceased was not planned. The prisoner did not know that Pham had a knife. He had by chance seen the deceased walking along Lachlan Street and had returned to his home where Pham by chance happened to be. Whilst driving back to Lachlan Street, they agreed to assault and occasion actual bodily harm to the deceased. The existence of planning in this offence is limited to that agreement which in my view does not meet the description in s 21A(2)(n). The planning which I have described is a factor which I have taken into account in assessing the objective seriousness of the offence. 16 An aggravating factor, the Crown contends, is that the offence was committed without regard for public safety: s 21A(2)(i) Crimes (SP) Act. It appears to me that an inherent characteristic of an offence of manslaughter by unlawful and dangerous act is that it is committed without regard for public safety. The lack of regard for public safety in this case was not such that it transcends the inherent characteristics of the offence: see R v Elyard [2006] NSWCCA 43 per Howie J at [43]. Although the attack upon the deceased occurred in broad daylight at about midday on a Saturday the prisoner remained focussed on the deceased and pursued him to the front door of the home. The circumstances of the commission of the present offence are not such that they meet the description in s 21A (2)(i) Crimes (SP) Act. 17 The prisoner, I am informed, was born in South Vietnam on 20 July 1973 and is 34 years of age. He was 32 years old at the time of the manslaughter. As the prisoner did not give evidence in the proceedings on sentence, his subjective circumstances are taken from the histories given in a pre-sentence report (exhibit 2) and the report of Tim Watson-Munro, psychologist (exhibit 3). It appears that he is the eldest in a family of three children. The family fled Vietnam by boat when the prisoner was aged nine. During that journey, the boat capsized and the prisoner's uncle and his younger brother aged 7 drowned. After a three-day search, the body of his brother was discovered. Mr Watson-Munro relates that arising from this, a range of distressing symptoms, which ultimately developed into a post-traumatic stress disorder were experienced by the prisoner. Following a period of nine months in a camp in Thailand, the family migrated to Perth. He attended primary school in Adelaide and then at Campsie. He found it very difficult to adjust to life in Australia and experienced a strong sense of isolation. Whilst in secondary school, he described frequent humiliation and bullying by his peers. He left school in year 9 and worked in various jobs, his last one being in a bakery where he worked for four years. According to Mr Watson-Munro this was his last job and as a consequence of his escalating drug addiction and periods of incarceration, the prisoner has not worked since 1992. The prisoner was married in 1992 but separated in 1998. They have a 15 year-old son with whom the prisoner speaks on a weekly basis. He began smoking marijuana and abusing alcohol at the age of 15. At the age of 21 he started using heroin, initially smoking the drug before progressing to intravenous use. The prisoner claims, Mr Watson-Munro recites, that at the time of the present offence he was using heroin, cannabis and alcohol at a high level of intensity. Mr Watson-Munro opines that in part he was abusing drugs and alcohol as a means of self-medication against his escalating post-traumatic stress disorder. It would appear, Mr Watson-Munro states, that the prisoner has had limited treatment for his condition. The prisoner informed him that he was placed on a methadone program in 1996, which continued for 12 months and he attempted treatment again in 1998 but discontinued after nine months. 18 Mr Watson-Munro opines that there is a direct nexus between his significant criminal history and his complex development history, characterised by an extensive addiction to drugs in the context of him experiencing a protracted and unresolved post-traumatic stress disorder. He considers that the addiction has significantly impacted upon the prisoner's capacity to cope with life and it would appear, he states, that a vicious cycle has developed with the prisoner's medication tending to exacerbate his underlying problems. He reports that the prisoner has now been drug-free for an extensive period and has developed some insight to his problems and significantly appears to be experiencing profound regret for his actions. The prisoner, Mr Watson-Munro observes, remains symptomatic particularly in relation to his symptoms of depression, anxiety and the regular flashbacks which he experiences. Despite this, Mr Watson-Munro states, to his credit he has avoided all drug use and a prior penchant for gambling since being gaoled. Mr Watson-Munro recounts that upon his release the prisoner wants to maintain his drug-free position and to re-enter the workforce with a potential job in the furniture manufacturing industry. To this end he has applied to take an apprenticeship. Mr Watson-Munro expresses the opinion that this again tends to reflect a new found motivation in relation to his rehabilitation. 19 Handwritten notes regarding the prisoner's efforts in prison to get education and drug and alcohol counselling together with drug analysis reports dated 13 February 2007 and 14 May 2007 were tendered (exhibit 1). These drug analyses disclose that drugs were not detected. 20 Mr Button SC contends that some steps have been taken by the prisoner and there is some ground for optimism for the future. There is, he submits, "a readiness, to try, finally, to deal with what has been going wrong" (POS 12 L 5-6). 21 Whilst the psychologist's report is favourable to the prisoner, an uncritical acceptance of his opinions is not assisted by the lack of evidence from the prisoner. The handwritten notes and two clear drug analyses do not provide a solid foundation for the adoption of Mr Watson-Munro's assessment that the prisoner has been drug free for an extensive period. I accept that the prisoner's personal circumstances as a child and as a teenager were difficult. Although he appears to have taken some positive steps in recent times which if continued will assist in his rehabilitation, the prisoner's history of re-offending, his failures to take advantage of the opportunities offered by the Drug Court to overcome his addiction and to adhere to the conditions of release on parole or on a bond lead me to conclude that his prospects of rehabilitation are poor. 22 The plea of guilty to manslaughter was entered on the first day of the prisoner's trial for murder prior to the jury being empanelled. Mr Button SC contends that the prisoner's plea was entered at the first opportunity and the discount for the utilitarian value of the plea should be assessed at 25 per cent. The Crown, in short, argues that the plea was not entered at the earliest possible time and the value of the utilitarian discount should be assessed at the lower end of the range of 10 to 25 per cent: see R v Thomson; R v Houlton (2000) 49 NSWLR 383. A useful chronology of the proceedings against the prisoner is included in exhibit D which is unnecessary to recite here. It is common ground that representations were made to the Crown solicitor on 4 May 2007 about the possibility of the Crown accepting a plea of guilty to manslaughter and the Crown subsequently indicated that it was not disposed to accepting an offer of a plea of guilty to manslaughter in full discharge of the indictment for murder. No offer of a plea of guilty to manslaughter was made to the Crown prior to 15 August 2007. 23 Mr Button SC argued that the prisoner could not have offered a plea of guilty to manslaughter in the Local Court whilst the charge of murder was maintained as "all of the matters that would otherwise need to be proven by the Crown, including accessorial liability, would no longer be needed to be proved whilst counsel is instructed". (POS p18 L 48-54). With that submission I do not agree. If an accused for tactical or personal considerations determines not to offer a plea in the Local Court it can hardly be said that a subsequent offer was made at the first available opportunity. It was open, furthermore, in the application that a no bill be found for the count of murder to include an offer to plead guilty to manslaughter. Mr Button SC also contends it is virtually impossible for an accused's legal representative to make a firm offer because of s 131(5)(b) of the Evidence Act 1995. This submission ignores the practice adopted by the Director of Public Prosecutions. Such an offer is normally made on a "without prejudice" basis (see Chapter 20 Prosecution Guidelines of Director of Prosecutions) and if rejected would not be commented upon at trial: see Ahmad v Regina [2006] NSWCCA 177 [at 20]. I do not consider that the prisoner's plea of guilty was entered at the first available opportunity. 24 It appears that the Crown was not prepared to consider manslaughter until Pham was acquitted. It may have been that if the Crown had exhibited some interest in the representations made in May 2007 about the possibility of the acceptance of a plea to manslaughter that a formal offer may have been made by the prisoner prior to the day of the trial. I take this into account as a matter of fairness to the prisoner in assessing the utilitarian value of the plea. The trial was estimated to take some three weeks and the entry of the plea not only saved the cost and inconvenience of a trial but avoided in particular Mrs Sophie Rousianos and Dannis Rousianos being required to give evidence once more. They had given evidence before a jury in the Pham trials on two occasions during which their emotional stress was apparent. 25 The prisoner is entitled to a discount for the utilitarian effect of his plea which I assess at 15 per cent. 26 It is submitted by the Crown that, apart from the plea of guilty, the prisoner otherwise has not expressed remorse for his conduct or for the death of the deceased. Mr Button SC points to the statements of remorse in the psychologist's report. Little weight would have been attached by me to these statements if it had not been for the circumstances of the prisoner's plea. The entry by a jury of verdicts of not guilty in the Pham trial may have encouraged the prisoner to stand his trial, however, a plea of guilty was entered to the present offence. I accept that the prisoner has shown contrition and remorse for the offence which I take into account as a factor in mitigation: s 21A(3)(i) Crimes (SP) Act. 27 A victim impact statement of Mrs Sophie Rousianos, the deceased's mother, was read to the Court (exhibit C). The contents of the statement cannot be used by me to increase the prisoner's sentence: R v Previtera (1997) 97 A Crim R 76. I acknowledge the grief and distress of the deceased's family and express on the community's behalf its sympathy and compassion for them. 28 Included in the tendered material are Judicial Commission sentencing statistics and cases imposing sentences for manslaughter which I have considered. In Regina v Forbes [2005] NSWCCA 377 Hall J analysed sentences which have been more recently imposed for manslaughter. His Honour recognised [at 191] there is no obvious trend or range discernible in terms of any particular sub-set of manslaughter offences. However, his Honour's review and the material provided have been of assistance in determining an appropriate sentence. Each case depends on its own facts. 29 As the prisoner is serving the sentence imposed by Maguire DCJ for the offence of supply, it is necessary to consider the principle of totality of criminality: see Mill v The Queen (1988) 166 CLR 59. The prisoner was sentenced to a "minimum term" of imprisonment of 3 years 7 months and to a "further" term of 13 months. The sentence and the non-parole period commenced on 2 November 2005. The term of the sentence expires on 1 July 2010 and the non-parole period expires on 1 June 2009. Mr Button SC submits that the sentence to be imposed should be partially concurrent with the existing sentence as each offence arose from the prisoner's heroin addiction. I reject this submission. The prisoner's desire for revenge was the reason for the present offence and not his drug addiction. The offences represent in my view two discrete and independent acts of criminality. 30 The fact that the offences are discrete and independent criminal acts does not, however, finally determine whether the sentences ought to be imposed partially, concurrently or consecutively: see Cahyadi v Regina [2007] NSWCCA per Howie J [at 27]. In the present case partial accumulation, would not adequately reflect the criminality of the offence of manslaughter. The aggregate sentence I intend to impose is, in my opinion, just and appropriate for both offences: see Johnson v The Queen (2004) 78 ALJR 616 at [18]. 31 There is no merit in Mr Button's further submission that the prisoner was disadvantaged by both matters not being able to be dealt with together. In any event the District Court sentence was passed on 26 May 2006 some 11 months before the representations made to the Crown solicitor about the possibility of an acceptance of a plea in the present proceedings. It was never a realistic possibility that both matters could have been dealt with at the same time even if they had been within the same jurisdiction. 32 It is agreed that the prisoner has served 32 days in custody solely for the present offence, being the period 1 October 2005 to 1 November 2005. The non-parole period of the current sentence expires, as I have said, on 1 June 2009. Accordingly the date of the commencement of this sentence will be 30 April 2009. 33 The appropriate undiscounted starting point of the sentence, I conclude, is 11 years. The sentence is reduced by 15 per cent to 9 years 4 months. 34 I find special circumstances as the present sentence has been made cumulative upon the existing sentence: see R v Simpson (1992) 61 A Crim R 58, R v Close (1992) 31 NSWLR 743. By reason of this finding I have assessed a non-parole period of 6 years and 2 months. 35 Hoang Quang Lu for the manslaughter of Phillip Anthony Rousianos I convict you. I sentence you to a term of imprisonment with a non-parole period of 6 years and 2 months which is to commence on 30 April 2009 and is to expire on 29 June 2015. I set a balance of term of 3 years and 2 months which is to commence on 30 June 2015 and will expire on 29 August 2018. 36 The earliest date of eligibility for your release to parole is 29 June 2015. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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