R v NGUYEN & ORS - Sentence [2006] NSWSC 850

New South Wales Supreme Court

CITATION : R v NGUYEN & ORS - Sentence [2006] NSWSC 850 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 28 July 2006; 11 August 2006

JUDGMENT DATE : 11 August 2006

JUDGMENT OF : Hulme J at 1

DECISION : See paragraphs 96-100

Regina Khanh Hoang Nguyen PARTIES : Minh Thy Huynh Duong Nguyen ATCN

FILE NUMBER(S) : SC 2005/191; 2005/189; 2005/205; 2005/424

Crown: Mr J Kiely SC Khan Nguyen: Mr C Simpson COUNSEL : Minh Huynh: Mr W Terracini SC Duong Nguyen: Mr R Button SC ATCN: Mr PD Young SC

SOLICITORS : Crown: S Kavanagh Prisoner: S O'Connor

- 18 - `IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

HULME J 2005/191 2005/189 2005/205 2005/424

Friday, 11 August 2006

R v Khanh Hoang Nguyen R v Minh Thy Huynh R v Duong Nguyen R v ATCN

REMARKS ON SENTENCE 1 HULME J: On 6 January 2004 four males, some few seconds apart, entered a billiard hall known as Billiards 2000, located in Cabramatta and walked through it to the rear. To a substantial degree their entry and movement through the billiard hall, and the subsequent departure of 2 of them, was recorded via 2 CCTV cameras which were mounted on the ceiling of the premises. The men made no attempt to hide their faces or conceal their appearance. As they walked through the billiard hall the first man reached into his waistband. I have no doubt that what he reached for was a pistol which, though only as a dark object, is to be seen in a photograph as he entered. As he walked through, the fourth man pulled out a Samurai sword or something similar from a towel or other cloth under which it was concealed and threw the cloth, and a scabbard onto one of the billiard tables. As he left a little later, he retrieved these items. 2 At least 3 of them entered a room behind the main part of the billiard hall where they were seen and the fourth man identified by a witness Mai Nguyen. (I may interpolate that, although there is a deal of commonality of names, first or family, between those involved in this case, virtually none of the persons with the same name were related. The similarity led to a number of persons being identified by their first names during the trial and it may be convenient at times for me to retain that nomenclature here. ) 3 The first man passed through that room and into a courtyard behind. By the time of his entry in to the courtyard, he had the pistol drawn. In the courtyard at the time some sort of celebration was being held for the birthday of Tien Duc Nguyen and about 10 people were then present. The first man advanced some distance with the weapon pointed at or in the direction of Tien Duc Nguyen and then fired at fairly close range – albeit over 50 centimetres - at least twice. It seems likely, although the evidence does not enable me to make the finding beyond reasonable doubt, that the intended victim was Tien Duc Nguyen. In fact one of the guests Linda Huynh was shot, fatally, in the chest and another, Hien Duc Phan, in the arm and possibly the nose. The 4 men then decamped. 4 Nothing occurred in the courtyard that provided any introduction to, or explanation for, the shooting. When police arrived some time later, they found in the courtyard, not only two 9mm cartridge cases from the weapon obviously used by the gunman but three complete .22 calibre cartridges and a spring, follower and base plate, being parts from a magazine of a .22 calibre pistol. Their presence suggests a magazine had simply fallen apart. Such items are not normally left lying around and I draw the inference that one of the guests at the birthday party was also armed with a weapon which, in a poor state of repair, fell apart. However, having regard to the evidence as to the actions of the 4 persons captured on the CCTV camera and of persons present at the time, I have no doubt that the presence of the .22 weapon in no way contributed to the commission of the offences with which I am concerned. 5 The Prisoners were arrested. This occurred in the case of Duong Nguyen and ATCN on 30 January 2004, in the case of Minh Thy Huynh on 12 January 2004 and in the case of KhanH Nguyen on 10 January 2004. On 29 March 2006 they were arraigned before me on charges of murder and of maliciously inflict grievous bodily harm with intent to do so. They pleaded not guilty, a jury was empanelled and their trial commenced. On 5 May last the jury found each guilty on both counts. (I may interpolate that ATCN is referred to by his initials because he was only 16 at the time of the offences and s11 of the Children (Criminal Proceedings) Act prohibits publication of his name.) 6 It now falls to me to sentence the Prisoners. In this connection I should acknowledge that, apart from matters necessarily inherent in the jury's verdicts, I must be satisfied beyond reasonable doubt of any matters I use adversely to the Prisoners but matters in mitigation need only be established on the balance of probabilities. 7 The CCTV recordings are not clear and I allowed other evidence of identification to be given. The jury accepted that the first of the men, and the gunman, was Duong Nguyen, the second ATCN, the third Minh Thy Huynh and the fourth, the man with the sword, Khanh Nguyen. Against the possibility that it is for me to determine the identity of the 4 persons, from within the 4 Prisoners, as distinct from infer what the jury did, I should add that independently of the jury's view, I would draw the same conclusion. The evidence of each of Constables Purcell and Young was convincing. Despite her lies on a considerable number of other issues, so was that of Amee Duong on the issue of identification. So was that of Mai Nguyen who identified Khanh Nguyen. 8 In the way in which the case was conducted, the jury's verdict carries with it the implication that the four were engaged in a joint criminal enterprise. Indeed, the actions of the 4, as captured by the CCTV cameras, the actions of the gunman not in dispute and the evidence of Mai Nguyen, albeit dealing with only 3 of the persons, could leave no possibility of doubt on that score. 9 A number of matters may be specifically mentioned. Firstly, the actions of the gunman leave room for no doubt that his intention was to kill and his actions premeditated, and this whether or not the intended victim was Tien Duc Nguyen. What the gunman intended was a cold-blooded execution. 10 A second is the way in which the gun was carried. Although out in the street it may have been concealed under a jacket Mr Nguyen was wearing, there was nothing to suggest its presence was concealed from his co-offenders. A third is the obvious presence and inherent nature of the sword. A fourth is the obvious deliberateness of the actions of all 4 in the pre-shooting movements depicted on the CCTV camera recordings. A fifth is that there is no evidence that the second and third men were armed. 11 Relevant also is the relationship between the 4 prisoners. I am satisfied that they were all close friends or acquaintances. In this connection I accept the evidence of 3 witnesses Amee Duong and Constables Young and Purcell as to the frequency with which they had seen two or more of the Prisoners together or close to one another. 12 In totality, these matters leave no room for doubt that, although they did not pull the trigger, the 3 Prisoners other than Duong Nguyen were each actively, knowingly and with premeditation participating in the offences he committed. I am satisfied that each was there to, either or both, provide support and encouragement to the gunman and deter, if not deal with, any resistance. 13 In so concluding I do not ignore statements by ATCN and reproduced in the Juvenile Justice report relating to him that he had no advance knowledge that his co-offenders were armed. This "evidence" was not on oath and in any event, given the obviousness of the sword, and the relationship between the parties, I do not believe ATCN's plea of ignorance. The way in which the gun was carried, while it may have been enough for concealment from the public, provides support for this conclusion. 14 The evidence does not permit me to make any finding as to the motivation for the shootings. Amee Duong had for some time been the girlfriend of Duong Nguyen and had borne his child. Some time prior to the offences she had become the girlfriend of Tien Duc Nguyen. She gave evidence that on one occasion Duong Nguyen had warned her against telling Tien Duc Nguyen where he, Duong Nguyen, lived but there was no evidence she ever did so and no suggestion of jealousy on the part of Duong Nguyen arising from the transfer of Amee's affections. In these circumstances the strong probability is that the motive was not jealousy but I am unable to go further. 15 There are a number of statutory provisions particularly relevant to the sentencing of the prisoners. Section 18 of the Crimes Act provides that the crime of murder is punishable by imprisonment for life. Section 33 of the Crimes Act provides the offence of maliciously inflict grievous bodily harm with intent to do so is punishable by imprisonment for 25 years. Section 21 of the Crimes (Sentencing Procedure) Act provides that, notwithstanding these prescriptions, the Court may impose imprisonment for a lesser term. 16 Section 3A of that last mentioned Act identifies the purposes for which a court may impose sentences on an offender as: "(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community." 17 Regard must be had also to Part 4 Division 1A of the Crimes (Sentencing Procedure) Act which sets out a number of standard non-parole periods, declares that they represent the non-parole period of an offence in the middle range of objective seriousness for the offences to which they relate and, in s54B(2) says:- "When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period." 18 By s54D, the standard non-parole period for murder in the circumstances with which I am concerned, is 20 years. The standard non-parole period for the offence of maliciously inflict grievous bodily harm with intent to do so is 7 years. 19 Section 21A of that Act provides that, subject to some qualifications contained in the section, in determining an appropriate sentence the Court is to take into account, in addition to any other objective or subjective factor that affects the relative seriousness of an offence, such of two defined lists of matters, referred to as aggravating and mitigating, as are relevant. In light of the qualifications, and of the inherent elements of the offences of murder by shooting, and of maliciously inflict grievous bodily harm with intent to do so, the only aggravating features which I regard as of significance or possible significance here are:- (c) the actual use of a weapon, a firearm, in both offences; (d) the offender has a record of previous convictions; (e) both offences were committed in company; (g) the injury, emotional harm, loss or damage caused by the offence was substantial; (i) the offences were committed without regard for public safety; and (n) the offences were part of a planned or organised criminal activity. 20 The Crown submitted that I should find that that substantial emotional harm was occasioned to Hien Duc Phan by reason of his being confronted with a firearm and shot. However the concluding paragraph of the sub-section directs that:- "The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence." (The emphasis in this passage and in the following paragraph is mine.) 21 Grievous bodily harm is an element in the second offence of which the Prisoners have been convicted. Thus substantial "injury, emotional harm, loss or damage" is an element in the offence and not something of which account can be taken under s21A(2). However, the Court is not confined to matters in s21A(2) and (3) and s21A(1) requires the court to take into account, in addition to the aggravating and mitigating factors listed in sub-sections (2) and (3), "any other objective or subjective factor that affects the relative seriousness of the offence" and even these are "in addition to any other matters that are required or permitted to be taken into account". The suffering of substantial emotional harm by someone the victim of an offence under s33 of the Crimes Act is something which, quite independently of s21A, a sentencing court is entitled to take into account and, subject to one further matter, if Hien Duc Phan did suffer such harm, I should have regard to it notwithstanding the concluding paragraph of s21(2) that I have quoted. 22 The one reservation to which I have just referred arises because my understanding of the evidence, including Mr Phan's Victim Impact Statement is that this emotional impact was due at least primarily if not exclusively, to the murder of his girl friend. In accordance with R v Previtera (1997) 94 A Crim R 76, I am not entitled to take this into account. 23 In my reference to s21A(2)(c), I have included only the firearm and not the sword. While the sword was undoubtedly present it did not figure directly in the injury to either victim. However it was taken there, unsheathed, and then carried into the back room of the premises and those facts mean that its use was threatened as part of the offending. It may fall within paragraph (c) but if it does not, it clearly is a factor the Court is entitled to take into account under s21A(1). 24 So far as the factor in s21A(2)(i) is concerned, I should record my view that the commission of 2 offences rather than one was partly the product of the lack of regard for public safety and, given that there will be some punishment for both offences, I must take care that undue weight is not also given to the lack of regard for public safety and the concomitant risk that the actions of the gunman would result in more than one offence. 25 That said, the issue of public safety still remains an aggravating feature of the offences. The presence of the sword in the hands of the fourth man is a clear indication that other injury was a real risk. I draw the same conclusion from the presence of the .22 bullets and the magazine parts. The nature of those objects is such that they are unlikely to have been left lying around and, as I have said, I draw the inference that one of the guests at the party was armed, albeit with a defective weapon. The probability is that that weapon was produced in response to the actions of the gunman. The Prisoners are not, of course, to be punished because someone else was armed. However the conclusion that someone else was armed provides a clear demonstration of the potential for danger to others arising from the actions of the Prisoners. Experience shows that it is not only the intended victims who are injured in the course of public acts of violence. 26 The listed mitigating factors of relevance or possible relevance are:- (e) The offender does not have any record (or any significant record) of previous convictions; (f) The offender was a person of good character; (g) The offender is unlikely to re-offend; (h) The offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise; (i) The offender has shown remorse for his offence …; (and) (j) The offender was not fully aware of the consequences of his or her actions because of the offender's age or any disability. 27 Although I recognise the possible relevance of these matters, it must also be said that, as circumstances of mitigation, the onus of establishing them lies on the prisoners and serious questions arise as to the extent to which that onus has been satisfied. It is convenient to defer further consideration of the topic until I come to consider the prisoners individually. 28 It is appropriate that I acknowledge that sentencing principles dictate that the maximum penalty is reserved "for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs v R (1987) 163 CLR 447 at pp 451-452" – Veen v R (No 2) ([1987-1988] 164 CLR 465 at 478. 29 Furthermore the "standard non-parole period" is not something to be applied mechanically. Its function is to operate as "a reference point, or benchmark … along with the other extrinsic aids such as authorities … and the specified maximum penalty, as are applicable and relevant." – R v Way (2004) 60 NSWLR 168 at [122] 30 It was submitted on behalf of the Crown that both offences "could be regarded as falling within the mid-range of seriousness". However, a number of features lead me to the conclusion that the murder was above the middle range of objective seriousness for such an offence. These features are the intention to kill and premeditation. As I have said, in the case of the gunman this was a cold-blooded execution. Furthermore, although I these are of lesser importance, the offence was committed in company, involved the use of one weapon, viz. a firearm, and the threatened use of another, viz. the sword, and involved both disregard for public safety and, what is not quite the same thing, the risks to others. To some extent the impact of these features overlap and again I am conscious of the need to avoid double counting. The offence was planned and organised but these factors are so involved in the matters just referred to that I incline to the view that they bear no additional weight. 31 However, there is also another factor which takes the objective seriousness of the murder in this case substantially further above the mid-range than the matters I have so far mentioned. It is this. The offenders, made no efforts to conceal their identity notwithstanding that the offence was committed in full view of a not insignificant number of other people, the vast bulk of whom seem to have been members of the Vietnamese community and many of whom lived in Cabramatta or nearby suburbs and notwithstanding also that the offenders were themselves often to be seen in or adjacent to the Cabramatta shopping centre. Indeed the murder was the most brazen offence that I have come across in my time on the bench.