R v Vu Minh TRINH [2007] NSWSC 1495

New South Wales Supreme Court

CITATION : R v Vu Minh TRINH [2007] NSWSC 1495 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 9 July 2007-13 July 2007, 16 July 2007-17 July 2007, 19 July 2007-20 July 2007, 12 October 2007, 7 December 2007

JUDGMENT DATE : 21 December 2007

JURISDICTION : Common Law

JUDGMENT OF : Rothman J

DECISION : CRIMINAL LAW – sentence – murder – intent to cause grievous bodily harm – stab wounds causing death – not guilty plea – objective and subjective circumstances – lower range of culpability – sentence imposed.

CATCHWORDS : Sentenced to imprisonment for a non-parole period of 15 years commencing 28 July 2006 and concluding 27 July 2021, the balance of term being a further 5 years expiring on 27 July 2026 - eligible for release on 27 July 2021.

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1990

PARTIES : Regina (Crown) Vu Minh Trinh (Accused)

FILE NUMBER(S) : SC 2006/2880

COUNSEL : J Bowers (Crown) E Wasilenia (Accused)

SOLICITORS : Director of Public Prosecutions (Crown) Crimlaw (Australia) P/L (Accused)

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

ROTHMAN J

21 DECEMBER 2007

2006/2880 Regina v Vu Minh TRINH

SENTENCE 1 HIS HONOUR: On 28 July 2006 Vu Minh Trinh stabbed and killed Mr Ross McAdam for which killing he was charged with murder. Mr Trinh pleaded not guilty and after a trial concluding on 20 July 2007 a jury returned a verdict of guilty of murder. 2 Traditionally the crime of murder has always been regarded as the most serious of crimes because it involves the felonious taking of human life. The legislature has set a maximum sentence of life imprisonment for the worst case of murder and a standard non-parole period of 20 years. These are the guideposts by which the sentence that I must now impose must be measured. 3 As is clear even from the difference between the maximum penalty and the standard non-parole period, even within a crime perceived as the most serious because of our society's view of the sanctity for human life, there is a range of culpability associated with the crime. In order to determine the objective features, which measure the culpability of Mr Trinh and then deal with his subjective circumstances, it is necessary to set out the circumstances of this offence. Before doing so I should briefly set out the purposes of sentencing in a case such as this. Sentencing Principles 4 The purpose in sentencing any offender, even those charged with murder, seeks to resolve what are often, if not necessarily, conflicting goals. In serious crimes such as murder the importance of punishment and public deterrence loom large. These include the protection of society, personal and public deterrence, retribution and reform. Each of those factors, particularly the protective nature of sentencing, personal and public deterrence, and punishment, must have regard to the gravity of the circumstances viewed objectively within the range of crimes that may fall within the offence charged. These point most obviously to the factors that require protection of society, deterrence of the offender and of others who might be tempted to offend, and to retribution. Reform or rehabilitation may also be significantly affected by the objective circumstances of the offences, but is a factor affected most obviously by the subjective circumstances and the capacity for rehabilitation. That capacity for, and the likelihood, if any, of, rehabilitation in turn impacts upon the degree to which a sentence is fixed which ensures the protection of society and the personal deterrence of the offender. There is no single correct sentence and the often complicated interplay of considerations point in different directions. Circumstances of this Offence 5 On 28 July 2006 Mr Trinh stabbed Ross McAdam. The circumstances leading up to that stabbing are relatively clear. 6 Mr Trinh lived, previously, with two Vietnamese friends in a Housing Commission unit. The Housing Commission unit is, at best, designed for one person. The circumstances were extremely cramped. Mr McAdam accommodated Mr Trinh, and thereby eased the cramped nature of the living conditions of his neighbour. Rent was paid. They were described as "friends" but their friendship seems to be confined to the living arrangements and the friendships that necessarily arise from that arrangement. 7 During the course of their domestic cohabitation they argued over minor matters. Largely, those matters, although not themselves serious, seemed to reflect the extraordinarily cramped living conditions which they both endured. The matters over which they fought were such things as the electricity costs (and the use by Mr Trinh of the electricity), the use of the hot water, the cost of food and such matters. To give a small picture of the cramped nature of their living conditions, I should describe very briefly the unit in which they lived. On entry into the front door from a one metre square porch one step into the unit would take you to the back of the couch. On either side of the couch was one bed for each of the inhabitants and there was no room between each bed and the couch. In order to proceed past the two or three seater couch, one had essentially to step over it. Beyond the couch was a very short distance to a television and beyond the television was a small kitchen. Next to the kitchen (on the other side of the television) was the bathroom/laundry. These were the only three rooms. 8 In the earlier hours of the morning on 28 July 2006 there was a dispute between the deceased, Mr McAdam, and Mr Trinh. It is not absolutely certain what the subject matter of the dispute was. It seems to have been about the cost of food. It may have been the cost of either the hot water or the electricity. There were raised voices of a kind that were heard by Mr Banh (Mr Trinh's Vietnamese friend in the unit next door) and there was physical grappling. During the struggle Mr Trinh stabbed Mr McAdam. Mr McAdam at the time was unarmed and the knife that Mr Trinh used to stab him was either one used for the purpose of cutting an orange or otherwise immediately available and grabbed by Mr Trinh. 9 There were three stab wounds, two to the left upper arm, and the fatal wound which was a stab wound in the ribs in which the knife, with a long blade, entered the rear left side of Mr McAdam's chest, between the ribs, penetrated the left lung and heart (both sides) into the right front chest cavity. The stabbing wound was a downward movement. 10 It was not suggested by the Crown that there was an intention to kill. Nor on the evidence could one be suggested. There was, on the evidence, an intention to cause grievous bodily harm. The question of self defence was put to the jury and rejected and the evidence in the proceedings establishes, relatively clearly, the absence of any motive of self defence. Mr Trinh, himself, in his record of interview, made it clear that he did not consider he needed to defend himself by the use of the knife. 11 Death would have been almost instantaneous. The deceased slumped to the couch and Mr Trinh and his friend Mr Banh made unsuccessful attempts to revive him. Mr Banh noticed blood coming from the left chest area and Mr Trinh went to the unit next door to have his other Vietnamese friend, Mr Thuan Loi Nguyen, call an ambulance. In the process he admitted that he had stabbed Mr McAdam. Emergency services were called but did not immediately arrive. They were called again. 12 There is little doubt that there were three stab wounds, the last of which was fatal. While the prisoner, Mr Trinh, attempted to suggest that the stabbing was accidental, the existence of the three stab wounds is wholly inconsistent with an accidental or non-deliberate stabbing. Nevertheless it is also clear that the resultant death was wholly unintended and that Mr Trinh either called an ambulance in the hope of helping Mr McAdam or was part of the process of calling an ambulance. 13 Mr Trinh waited for the arrival of an ambulance and police. He did not at any stage attempt either to hide from the police or to hide or cover up what had happened. He participated fully in an interview during which he was immediately displaying remorse at the result of the stab wound and a lack of intention of causing Mr McAdam's death. 14 The defence, which predominantly related to accident, did not contest the fundamental factual circumstances, but rather depended upon the intention (or lack of it) of Mr Trinh. 15 As earlier stated, the offence was in every sense spontaneous. While it is a violent offence, it is no more violent than the charge of murder necessarily involves. It was an offence of opportunity and spontaneity that, but for the argument and but for the ready availability of a knife, would never have occurred. There is no involvement of gratuitous cruelty being the kind of cruelty over and above that which was the necessary element of the murder itself. 16 While the offence was not provoked in any legally significant way, the circumstances of the offence were part of a heated argument involving a physical struggle and I take that into account in lessening the culpability of Mr Trinh. 17 Each of Mr Trinh and the deceased, Mr McAdam, had past long-term substance abuse problems, which each of them were seeking to overcome. 18 The intention of Mr Trinh, an intention to do grievous bodily harm, is not as objectively serious as a murder involving a specific intent to kill. Even within this category, premeditated murders are of a worse kind than this. 19 I do not consider, in the current circumstances, the use of a weapon as a particularly significant aggravating factor because it was used, on the evidence, solely because it was immediately at hand and not because of a prior or deliberate arming by Mr Trinh. 20 I consider that the objective circumstances of this offence are such as to bring it below the mid-range of culpability. The Crown submits that it is "at the cusp" of the mid-range, but I am not sure that in the scheme of sentencing, whether it is low range or on the cusp between low-range and mid-range is a fruitful debate. The categorisation of culpability cannot be "absolutely precise". However, I consider that the following elements: the lack of premeditation both as to intent to kill and intent to occasion grievous bodily harm; the lack of premeditation in the use of a weapon; the two-sided nature of the argument; and the immediate attempts to revive the victim and summon help for him, put this offence very much at the low end of the range of culpability within, what must be the most serious category of offences, murder. Further the deceased was a much larger person than Mr Trinh. 21 During the course of his police interview Mr Trinh suggested that he tried to feed Mr McAdam to calm him down. It seems that the argument was exacerbated by the problems that Mr Trinh had in understanding Mr McAdam and the matters about which Mr McAdam was upset. I raise that issue solely because it seems to lessen the culpability of the offence in that, on the evidence before the Court, Mr Trinh sought to avoid the dispute that resulted in Mr McAdam's death. 22 In all the circumstances, it would seem a non-parole period significantly less than the standard 20 years is appropriate. Subjective Circumstances 23 The Court has the benefit of both a pre-sentence report and a psychological report from Mr John Taylor, forensic psychologist. There is also a Justice Health report which discloses that Mr Trinh, because of repeated non-compliance with an ibuprenorphine treatment program, was offered and accepted a transfer to a methadone program in which he is currently participating. 24 There is no doubt that the long-standing drug abuse by Mr Trinh is the reason for his prior criminal offending which, while it includes some matters of assault, breach of apprehended violence orders and demanding money with menaces, is not one which discloses a propensity for violence generally. Most of the offences in his history are drug offences and drug-related offences. 25 There is no evidence that the offence with which the Court is now dealing was "drug-related" in the sense that it involved drugs or that either Mr Trinh or the deceased, Mr McAdam, were affected by drugs at the time of the offence in a way which impacted upon their conduct. 26 Mr Trinh arrived as a refugee in Australia in 1993 and was first convicted of an offence in early 1996. He was on a U.N. Programme from Hong Kong. He has spent some significant periods in custody or under forms of supervision. 27 Mr Taylor, the clinical psychologist, reported, on 28 September 2007, in the following way: "[Mr Trinh] has some instability in his personality adjustment but it is not felt that he can be diagnosed with having a personality disorder at the present time. Based on the information available there is no indication that he had a Conduct Disorder during his teenage years. He is presently diagnosed with having a Substance Abuse Disorder …