R v TRAN [2009] NSWSC 1437

New South Wales Supreme Court

CITATION : R v TRAN [2009] NSWSC 1437

HEARING DATE(S) : 06/10/09 - 09/10/09, 12/10/09 - 16/10/09, 19/10/09-23/10/09, 26/10/09-28/10/09, 04/12/09, 11/12/09, 18/12/09

JUDGMENT DATE : 18 December 2009

JUDGMENT OF : Mathews AJ at 1

DECISION : Imprisonment consisting of a non-parole period of 20 years commencing on 7 November 2007 and expiring on 6 November 2027, with a balance term of sentence of 6 years, commencing on 7 November 2027 and expiring on 6 November 2033.

CATCHWORDS : Sentence - murder by stabbing - long crime history

LEGISLATION CITED : Crimes (Sentencing Procedure Act) Act 1999

CATEGORY : Sentence

PARTIES : Regina (Crown) Hoai Vinh Tran (Accused)

FILE NUMBER(S) : SC 2009/2118

COUNSEL : P. Calvert (Crown) C. McNamara (Accused)

SOLICITORS : DPP (Crown) George Smirilios (Accused)

LOWER COURT JURISDICTION :

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

Mathews AJ

FRIDAY, 18 December 2009

2009/2118 – R v TRAN

REMARKS ON SENTENCE 1 HER HONOUR: On 6 October 2009 the offender and Chethona IM were jointly indicted on a charge that on 8 May 2006 they murdered Phuoc Dang. They both pleaded not guilty and a jury trial ensued. On 28 October 2009 the jury found the offender guilty of murder. They entered a verdict of not guilty in relation to Mr Im, who was thereupon discharged. 2 The background of the matter is as follows. The deceased, also known as Peter Dang, was the proprietor of the Purple Rain Café at the Hume Highway, Yagoona. This establishment consisted of a coffee shop on the ground floor and bedrooms on the first floor, as it also operated as a brothel. 3 The deceased had been known to the offender's family for some time. He owed the offender's aunt a considerable amount of money, and he probably also owed a lesser sum to the offender's mother. 4 On the afternoon of 8 May 2006 Mr Dang was in the coffee shop at the front of the Purple Rain Café. One of his employees, who was in a room at the back, heard him shout "I don't have any money". She then heard a crashing sound, and fearing that there was a robbery, she ran out of the building. She telephoned another employee, who rang Mr Dang's mobile phone. He answered and said in Vietnamese "They stabbed me and they have run away. Please call the ambulance right now". She dialled 000 and the police and ambulance arrived shortly afterwards. By this time Mr Dang had made his way out to the street, where he had collapsed onto the footpath. He was taken to Liverpool Hospital where he underwent surgery, but he died at about 11.30 that night. A post-mortem performed the next day by Dr Ellis revealed seven stab wounds, three to the left of the chest and four to the left of the trunk and back. The chest injuries were much deeper and more serious than the others. Dr Ellis concluded that Mr Dang died as a result of blood loss caused by the stab wounds to the chest. 5 It appears that, in spite of extensive police enquiries into Mr Dang's murder, there was insufficient evidence to link any particular person to the crime. Various enquiries were made in relation to the offender, but it was not until 26 July 2007, nearly 15 months after the killing, that he was formally questioned about it. In a recorded interview at Bankstown Police Station that day, the offender told police that on the day of the killing he was at his home in Hughes Street, Cabramatta. He did not go out at all, nor did he have any visitors, as he was detoxing from heroin. The only person he spoke to that day, he said, was his mother. 6 The police secured a significant breakthrough in the investigation into the killing in the form of a long-time friend of the offender who became a registered police informer and who gave evidence at the trial under the name of Mr S. Mr S said in evidence that on the morning of the killing the offender telephoned him and asked him to drive him to the Purple Rain Café. Mr S declined, saying that he was busy. Later in the afternoon he received a call from the offender, asking him to provide an alibi for that afternoon. Mr S arranged for another friend to do so. Later again he had a further conversation with the offender which I shall describe shortly. 7 Mr S had various further conversations with the offender in which the offender admitted his involvement in the killing of Mr Dang. One of them, on 25 October 2007, was recorded on a listening device lawfully carried by Mr S. I shall be returning to these conversations a little later. 8 On 7 November 2007, the offender was arrested in relation to the murder of the deceased. That evening, whilst waiting at Bankstown Hospital to obtain medication which the offender had requested, he made a number of unsolicited statements which were clearly designed to implicate the person who had driven him to the Purple Rain Café on 8 May as the actual perpetrator of the crime. He named that person as "C". In the early hours of the following morning a recorded interview took place at Bankstown Police Station. The offender told police that on 6 May 2006 C had driven him to the Purple Rain Café. An argument developed with the deceased. He, the offender, then punched the deceased and C stabbed him. The deceased fell to the floor saying "I'm hurt, your friend stabbed me". The offender denied knowing that C had a knife with him when they went into the café. He professed regret for what had happened saying "I didn't do anything wrong, I just punched him. I didn't want any of this to happen" and other similar protestations. 9 On 11 December 2007 the co-accused, Chethona IM, was arrested for the murder of Phuoc Dang. He entered into two recorded interviews that day. In the first one he said that he drove the offender Mr Tran to the Purple Rain Café on the day of the killing. A fight developed between the deceased and the offender and he, Mr Im, then left. He did not see any stabbing take place. Later that day he had a further interview in which he said that in fact he remained within the Purple Rain Café during the whole of the incident. He described what took place in terms I shall set out shortly. 10 Mr Im's evidence was inadmissible against the offender at the trial. However, given the jury's verdict, this account provides the only first hand description of the events of that day. It is therefore relevant and admissible on sentence. Moreover, Mr Im's account is in many respects consistent with what the offender told Mr S, as I shall describe shortly. 11 The trial of the two accused was initially scheduled to commence on 21 September 2009. The preceding week the Court sat in order to determine a number of evidentiary issues. During the course of those preliminary proceedings the offender had two psychotic episodes, one in court and one in gaol. So serious were the concerns about his mental health that an enquiry was convened as to his capacity to stand trial. However, his condition improved rapidly and on 25 September he was found fit to stand trial. The trial eventually commenced on 6 October. 12 The offender gave evidence at his trial, in which he reiterated the version given in his last ERISP, namely that it was his co-accused, Mr Im, who stabbed the deceased. There were a number of unlikely features in this account. Indeed its essential foundation was unlikely in the extreme: Mr Im had never met the deceased before that day. He went to the Purple Rain Café only because the offender had asked him to drive him there as a replacement for Mr S, who was unavailable. Mr Im had no reason whatsoever to launch into a vicious attack, involving no less that seven stab wounds, upon this complete stranger. Nor did he have any reason for taking a knife with him in the first place. In the circumstances, it was not surprising that the jury rejected the offender's account and found him guilty of murder. 13 The maximum penalty for murder is life imprisonment. There is a standard non-parole period of 20 years. This is the non-parole period which is to be imposed in relation to offences in the middle range of seriousness, subject to upward or downward variation according to the offender's personal circumstances. 14 Accordingly, a sentencing judge's first task is to determine where the particular offence lies in terms of its objective seriousness. 15 This takes me back to the only two available accounts of what happened inside the Purple Rain Café on the afternoon of the killing. The first comes from Mr S's evidence. According to Mr S, he had a telephone conversation late on 8 May with the offender in which he asked what had happened. The offender said: "I went to see Phuoc (the deceased) to try and get some money off him for my mum. We got into an argument. Ong Phuoc was being a bit of a smart arse and I stabbed him. He was bleeding so much and we ran". In a much later conversation, Mr S asked the offender how many times he had stabbed the deceased. In response the offender held up his hand and showed four fingers. Mr S asked where he had stabbed him. The offender indicated the left side of his chest area. In the conversation between Mr S and the offender on 25 October 2007, which was recorded by listening device, Mr S said to the offender "You and Chethona went? Why the fuck did you guys stab him?" The offender's response was difficult to decipher. The Crown Prosecutor submitted that he said "Don't know. That was the plan". Mr McNamara, on the other hand, submitted that he said "Don't know. That wasn't the plan". I am inclined to accept Mr McNamara submission in this respect. Indeed Mr S confirmed in his evidence that this was what the offender in fact said. This is a matter of some significance, as I shall discuss later. 16 The other apparently firsthand account came from Mr Im's second ERISP. In summary, he said that after the two of them walked into the Purple Rain Café the offender went up to the deceased and punched him. A fight developed between the two of them. Mr Im tried to pull the deceased off the offender. At that stage the deceased turned around and started to throw punches at Mr Im, and a confrontation developed between them. Whilst this was happening he saw the offender behind the deceased moving his arm very quickly. Shortly afterwards the deceased dropped to the floor and Mr Im saw that he was bleeding. He also saw a knife in the offender's hand. Mr Im said that the offender took the deceased's wallet. They both then left in Mr Im's car. After taking $250.00 out of the wallet, the offender asked Mr Im to stop not far from Bankstown Airport, where he threw the wallet and the knife into a rubbish bin. During the journey Mr Im asked the offender what had happened. The offender responded "When he was fighting with you I just couldn't help it, couldn't stop, just kept on stabbing him". 17 There are obvious problems with both these accounts. Neither the offender nor Mr Im have been consistent in their various versions of what took place on 8 May. Both had a motive to downplay their own roles in this episode. Moreover, Mr Im's account explains how the deceased received the stab wounds to the back, but not the far more serious wounds in his chest. Nevertheless, there is a degree of consistency between the two accounts, and they form a basis for reaching some general conclusions. 18 Combining the whole of the evidence, my findings are as follows. The offender had had a number of disagreements with the deceased for some time before May 2006. It is unnecessary to detail them here, other than the fact that the deceased owed the offender's family a considerable amount of money. The offender had been trying to contact the deceased for some time, but the deceased did not return his phone calls. On the afternoon of 8 May 2006, when the offender realised that the deceased was at the Purple Rain Café, he recruited Mr Im to drive him there. He also took a knife with him. 19 The evidence thus far is relatively clear and non-controversial. It is what happened inside the Purple Rain Café that cannot clearly be determined. The most likely scenario in my view is that the offender took Mr Im with him as a form of support. Immediately after entering the café the offender became aggressive towards the deceased, punching him and demanding money from him. This is consistent with the evidence of both Mr Im and the Purple Rain employee who heard the deceased shout "I don't have any money". The deceased retaliated, and attempted to fight back. This is consistent with both Mr Im's evidence and the offender's statement that the deceased was being a "smart arse". It may well be that it was during this altercation between the two of them that the offender, inflicted the three deep wounds to the left of the deceased's chest. Mr. Im then became involved in the altercation and the deceased turned his attention towards him. At that stage the offender inflicted the four wounds to the left of the back. 20 Whether this is the precise scenario will never be known. But there are two things which are clearly indicated by the evidence: First, that the stabbing of the deceased was preceded by a manual fight between them; and second, that that fight was initiated by the offender. 21 Having made these factual findings, broad and general as they are, the next step is to assess the aggravating and/or mitigating factors applicable to the offence, as opposed to the offender. These are largely to be found in s 21A of the Crimes (Sentencing Procedure) Act 1999. The one aggravating factor which is not inherent in the offence of murder is that the offence was committed in company. The one mitigating factor is that the offence was not part of a planned or organised criminal activity. This is a significant matter, which was strongly emphasised in Mr McNamara's submissions. It is tempered by the fact that there was a degree of planning in that the offender deliberately took a knife with him to the Purple Rain Café, which he concealed from Mr Im. I accept, however, in doing so he was not positively intending to stab the deceased, but to frighten the deceased and to have it available if the situation called for it. He certainly intended to physically assault the deceased, in an attempt to extract money from him. He was probably not expecting the deceased to retaliate. When the deceased did so, the offender produced the knife and inflicted the various stab wounds as described by Dr Ellis. When the deceased fell bleeding to the ground the offender quickly made his exit, having first taken the deceased's wallet. 22 Mr McNamara submitted that the offender's intention, when he stabbed the deceased, was to injure him but not to kill him. In one sense that might be right. I very much doubt whether the offender at the time actually adverted to the probable consequences of his actions. Had he done so, however, he must have realised that the infliction of the three deep chest wounds carried, at the very least, a significant threat to life. 23 Had the offender gone to the Purple Rain Café with the positive intention of using the knife to seriously injure or to kill the deceased, then I would have regarded this offence as being above the middle range of objective seriousness. In that event, it would have been a coldly calculated murder. The presence of Mr Im would have meant the deceased had virtually no chance of escape. 24 The absence of a prior positive intention to stab the deceased which gives rise to the first mitigating factor under s 21A, undoubtedly ameliorates the seriousness of the offence. However, the significance of this amelioration is diminished by two matters: first, the fact that it was the offender himself who deliberately initiated the fist fight with the deceased in an endeavour to extract money from him; and second, it took only relatively minor resistance from the deceased to spur the offender into using the knife, with devastating consequences. In this respect, there is no suggestion whatsoever that either the offender or Mr Im suffered any injury at all as a result of this encounter. 25 Taking all relevant matters into consideration, I consider that this offence falls generally within the middle range of seriousness for murder. 26 I turn now to discuss the offender's personal circumstances. 27 The offender is now 30 years old, having been born on 31 July 1979. His mother gave evidence during the sentencing proceedings as did his two younger sisters. Material about the offender's background comes largely from the family's evidence and also from a report of Dr Bruce Westmore dated 11 May 2009. 28 The offender's parents, who are Vietnamese in origin, met at a refugee camp in Thailand. They came to Australia together in 1978. By the time the offender was born in July 1979 they were seeing each other only sporadically. They finally separated the following year, and the offender was thereafter brought up by his mother. In 1983 his mother married Mr Tran. Later they had two daughters, born respectively in 1985 and 1989. The evidence shows that Mr Tran resented the presence of his stepson in the family unit. He constantly picked on him and attempted to goad him into misbehaving so that he could be severely disciplined. A number of specific episodes were described by his mother and sisters which involved actual violence on Mr Tran's part. The situation became so bad, the offender's mother said, that she sent him to a country boarding school when he was in Year 10 in order to get him away from his stepfather. It also served to get him away from his peer group, as at that stage he was commencing to use illegal drugs on a regular basis. He did not however complete his schooling, and he left school before finishing Year 12. His mother divorced Mr Tran in 2000. 29 Since leaving school the offender has had only sporadic employment, mainly doing relatively menial jobs in restaurants owned by his mother. 30 It seems that many of the offender's problems arise from his very significant history of drug abuse. He apparently started smoking cannabis at the age of 15, and later graduated to ecstasy and LSD. Later again he started taking ice and heroin. He continued to take heroin, except for periods in custody, until well after the commission of this offence. 31 The offender has a lengthy criminal record. It started in 1996, when he was only 16 years old, when he was put on probation for a number of drug related offences including supplying a prohibited drug, possessing a prohibited weapon and possessing a shortened firearm. In 1998, when he was 18, he was convicted and ultimately sentenced to imprisonment for a total of four years with a non-parole period of 2½ years for the offence of armed robbery. Numerous other offences followed, relating to personal violence, property offences and serious driving offences. He had been in gaol no fewer than five times before the commission of this offence. Indeed only three days after the killing of Mr Dang he was arrested and charged with larceny for which he was imprisoned for six months from 11 May 2006. Moreover, it is clear from the evidence given at his trial that, in the period between his release from imprisonment in late 2006 and his arrest approximately 12 months later, he was continuing to deal in drugs in conjunction with Mr S. 32 The offender has from time to time suffered from psychotic symptoms. Indeed, as mentioned earlier, he suffered two psychotic episodes shortly before the commencement of his trial. When he was in custody in 2006 he was diagnosed with drug induced schizophrenia . Dr Westmore, who saw him in May and again in September 2009, considered the most likely diagnosis to be of drug induced psychosis. The offender is currently on a supervised medication regime which appears to be keeping his condition well under control. He withstood the stress of his trial with no visible ill effects at all. Indeed he gave evidence in his own case and was in the witness box for the best part of two days. He fielded some very difficult questions in cross-examination with considerable mental agility. Indeed I formed the impression that he is a highly intelligent man, an impression which was supported by his mother's evidence as to his early schooling achievements. 33 There is nothing to suggest that the offender's mental condition had any causal relationship with the killing of Mr Dang. To the contrary, a report of a psycho pharmacological expert, Mr Graham Starmer, noted that "It is unlikely that acute effects of heroin or 'ice' would have still been manifest at the time of the incident, nor would Mr Tran be likely to be withdrawing from heroin at that time. This suggests that if Mr Tran's behaviour was influenced by drugs, it would be more likely to have been the effects of long term, rather than acute, use of the drugs". The offender told Dr Westmore that at the time of the offence he was "normal". 34 Nor, in my view, is the mental health of the offender such as to render him an inappropriate vehicle for general deterrence. Not only is his condition a direct result of his voluntary taking of illegal drugs, but - more importantly - his condition is generally well under control, so long as he abstains from further drug taking. In this regard, it is a matter of some concern that, not long before his psychotic episode in Court, the offender apparently had access to cannabis in gaol. 35 The offender cannot call upon remorse in mitigation of sentence. To the contrary, all his actions since the offence have indicated a striking lack of remorse or contrition. Immediately after the stabbing he took Mr Dang's wallet which he later threw away after extracting $250.00 in cash. He spent this money, together with Mr Im, in playing poker machines and buying heroin. This was in spite of the fact that his stated reason for going to the Purple Rain Café in the first place was to obtain money for his mother, who was in serious financial difficulty at the time. Any expressions of regret made by the offender since then have invariably been associated with his allegation that it was Mr Im, not himself, who inflicted the fatal stab wounds on the deceased. As a result of these allegations Mr Im, an innocent man, spent the best part of two years in prison awaiting the outcome of his trial. This cannot be used in any way to increase or aggravate the offender's sentence, but it certainly deprives him of any mitigation by reason of contrition or remorse. 36 This takes me to a consideration of the aggravating and mitigating factors set out in s 21A of the Act, insofar as they relate to the offender personally. The sole aggravating factor under para (2)(d) is the offender's record of previous convictions. It is, as already mentioned, a very significant record. There are no mitigating factors. In the circumstances it is not possible to say that he has good prospects of rehabilitation or that he is unlikely to re-offend. 37 There is no doubt that the offender had a difficult childhood and youth, largely caused by his domineering and aggressive step-father. It is very likely that this was one of the major causes of the offender's drug taking at a young age. This might to some extent be explanatory of his subsequent behaviour, but it cannot operate to mitigate his sentence for this offence. 38 What then does the future hold for this still relatively young man? He has the intellectual capacity to lead a constructive and purposeful life. His inability to do so thus far is plainly the product of his drug taking. It is to be hoped that he will spend his lengthy time in prison in constructive pursuits which will assist him on his release. 39 This finally brings me to the question of whether there are special circumstances which might justify a departure from the statutory nexus between the non-parole period and the balance of term. Mr McNamara submitted that the offender's need for lengthy supervision upon his release from custody constitutes special circumstances. Were the overall sentence to be a lesser one, this submission would have had great merit. However, the offender will in any event be serving a very considerable period on parole, assuming that he is released at or shortly after the expiration of his non-parole period. 40 Having considered all the evidence I can find no reason to depart from the standard non-parole period for murder nor from the statutory nexus between the non-parole period and the balance of the sentence. 41 The offender has been in custody since 7 November 2007 and his sentence will commence on that date. 42 Hoai Vinh Tran, for the murder of Phuoc Dang I sentence you to imprisonment consisting of a non-parole period of 20 years commencing on 7 November 2007 and expiring on 6 November 2027, with a balance term of sentence of 6 years, commencing on 7 November 2027 and expiring on 6 November 2033.