R v Jin [2011] NSWSC 169

Supreme Court New South Wales

Medium Neutral Citation: R v Jin [2011] NSWSC 169 Hearing dates: 25 February 2011 Decision date: 16 March 2011 Jurisdiction: Common Law - Criminal Before: McCallum J Decision: See paragraphs 41 to 44. Catchwords: Criminal law - sentencing - accessory after the fact to murder Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Morgan (1993) 70 A Crim R 368 R v Farroukh (unreported) NSWCCA 29 March 1996 R v Leung [2000] NSWSC 824 R v Quach [2002] NSWSC 1205 R v Mirad [2004] NSWSC 701 R v Ward [2004] NSWSC 420 R v Doff [2005] NSWCCA 119 R v Almirol [No 2] [2007] NSWSC 323 R v Scowen [2007] NSWSC 792 R v Cowen [2008] NSWSC 104 R v Wells [2008] NSWSC 206 R v Shamouil and David [2009] NSWSC 24 Category: Sentence Parties: Regina v Jian Jin Representation: Counsel: Mr Crespo (Crown) Mr Dennis for the offender Solicitors: Office of the Director of Public Prosecutions (Crown) Greenfield Lawyers for the offender File Number(s): 2009/37239

Judgment 1On 24 November 2010, Mr Jian Jin was found guilty by a jury of four offences of being an accessory after the fact to murder. The maximum penalty prescribed for that offence in section 349 of the Crimes Act 1900 is imprisonment for 25 years. There is no standard non-parole period prescribed for the offence. 2The four charges against Mr Jin related to the assistance he provided to two men, Hoang Huy Nguyen and Minh Duc Luong, after they murdered Phuc Uy Nguyen and Brian Bao Dung Huynh. The Crown case was that Mr Jin provided assistance to those men, knowing or believing that they had committed the two murders, by providing them with safe accommodation for a period of about two weeks immediately after the murders were committed. 3Minh Duc Luong pleaded guilty to the two murders on the day on which the trial of all three men was due to commence, 27 October 2010. Hoang Huy Nguyen was tried jointly with Mr Jin and was found guilty of both murders by the jury. I presided over that trial. 4The two murders were committed at a bar in Bankstown on the evening of 1 February 2009. The Crown case was that the two victims were set upon and stabbed to death by four men including Hoang Huy Nguyen and Minh Duc Luong. The Crown acknowledged that the evidence did not reveal who of the four men inflicted the fatal wounds. In those circumstances, the prosecution case was run on the basis of a common purpose shared by the four men to kill or inflict grievous bodily harm on each of the two victims. 5The stabbings are to be understood in the context of an incident a few hours earlier when one of the co-offenders, Hoang Huy Nguyen, was dining at a Vietnamese restaurant called The My Canh. As he was leaving the restaurant, he was confronted by Phuc Uy Nguyen (one of the men later murdered) and a number of Phuc's friends. Following an altercation, which evidently entailed an assault on Hoang Huy Nguyen's girlfriend, Hoang Huy Nguyen ran away in fear and was chased down the road by at least four men, including Phuc Uy Nguyen. At least one of the men involved in that incident acknowledged in evidence at the trial that the object of the chase was to catch Hoang Huy Nguyen and give him a bashing. 6There was evidence at the trial to the effect that Hoang Huy Nguyen was angry and upset following that incident. He made a number of telephone calls to Mr Jin and another friend of theirs, Mr Gary Xu. Mr Xu gave evidence in the Crown case at the trial after being given a conditional undertaking by the Attorney General that his evidence would not be used against him. Acknowledging the special considerations in respect of his evidence as to which I warned the jury during the trial, I assessed him to be a careful and honest witness. 7Mr Xu said that he received a call from Hoang Huy Nguyen asking to be collected from Bankstown because he (Mr Nguyen) had been involved in a fight. Mr Xu drove to Bankstown where, ultimately, he met up with Hoang Huy Nguyen and a number of other men. 8The evidence at the trial raised a factual issue as to the extent of Mr Jin's involvement in events that followed leading up to the two murders. Mr Xu gave evidence that, after he met Hoang Huy Nguyen at Bankstown, he saw a group of men including Mr Jin standing around the open boot of Mr Jin's car. Mr Xu said that he saw two Kiwi brand knives inside the boot. Forensic evidence at the trial established that two knives of that brand were among the knives used to stab the two victims. 9Mr Xu's evidence on that issue is potentially of mixed impact insofar as an assessment of the seriousness of Mr Jin's offences is concerned. On the one hand, presence at and an awareness of the planning that preceded the two murders might be thought to reveal a state of mind that would exacerbate the moral culpability of Mr Jin's subsequent conduct in assisting the people responsible for the murders after the fact. Conversely, however, Mr Xu gave evidence that, during the course of the gathering at the boot of the car, both he and Mr Jin endeavoured to dissuade Hoang Huy Nguyen from proceeding with any retaliatory attack on Phuc Uy Nguyen (T632.30, T655.23), which would tend to point to a more favourable assessment of Mr Jin's state of mind. 10Those issues are complicated by the fact that Mr Jin's case at trial was that he was not present at any gathering at the car involving knives. In those circumstances, Mr Dennis, who appeared for Mr Jin at the trial and at the proceedings on sentence, disavowed any reliance on the positive aspects of Mr Xu's evidence. I have concluded that, although I found Mr Xu to be a credible and reliable witness, I should not take the events leading up to the stabbings into account for present purposes. 11Leaving those issues aside, the Crown case rested exclusively upon the assistance afforded by Mr Jin in providing safe accommodation to Hoang Huy Nguyen and Minh Duc Luong for about two weeks immediately following the two murders. I should emphasise that it is no part of the case against Mr Jin that he bears any responsibility for the murders themselves. The essence of the offences of which he has been convicted is the assistance he provided after the fact. 12The main evidence as to those events at the trial came in the evidence of Mr Xu and the statements made to police by Mr Jin when he was interviewed at his request some months after his arrest. 13Mr Jin told police that he and Mr Xu had collected the four men (including Hoang Huy Nguyen and Minh Duc Luong) from Yagoona station on the relevant evening. He knew something had happened because he saw a police van and an ambulance in the area. The following day, Mr Jin went to work in the morning. When he came home, he found Mr Xu, Hoang Huy Nguyen, Minh Duc Luong and another man at his house. He said that Hoang Huy Nguyen and Minh Duc Luong moved in and stayed for "a couple of weeks, two, one week or two weeks." 14As submitted on behalf of the Crown, on the strength of the contents of those statements to police, there was no real contest as to the fact that the accommodation was provided. Separately, Mr Jin acknowledged to police that he became aware of the stabbings at some point. He maintained, however, that it was only after Hoang Huy Nguyen and Minh Duc Luong left his house that he acquired that knowledge. The critical issue to be determined by the jury was accordingly not whether Mr Jin had the necessary knowledge but when he acquired it. 15The jury was evidently satisfied beyond reasonable doubt that Mr Jin knew or believed at the time he provided accommodation to Hoang Huy Nguyen and Minh Duc Luong that the two murders had been committed and that those two men were responsible for the murders. 16The Crown drew my attention to the decision of Grove J in R v Wells [2008] NSWSC 206 at [2] where His Honour described the essential character of the offence of being an accessory after the fact to murder in the following terms: It has been said that there is something special in that offence in that it is in the interests of the community that murderers should be completely isolated from support and deprived of assistance, and that such crimes be not covered up. The severe penalty available against accessories after the fact is a way in which the community protects itself and it is an aspect of the law's general deterrence against homicide. 17That said, it has often been observed, as submitted on behalf of Mr Jin, that there is a wide variation in possible degrees of moral culpability for the offence. As noted by Buddin J in R v Cowen [2008] NSWSC 104, at one end of the spectrum are cases involving dismembering the deceased and disposing of the body parts: see for example R v Almirol [No 2] [2007] NSWSC 323. There are cases at the other end of the spectrum that may not attract a full time custodial sentence, often involving conduct produced by emotional attachment or dependence or a misguided loyalty to the person responsible for the killing. 18Mr Jin did not suggest that his conduct was driven by any such sentiment. Nonetheless, there was some evidence to that effect from Mr Xu. He said that Mr Jin gave Hoang Huy Nguyen permission to stay at his flat, but continued: But Rick [Mr Jin] actually have not much choice because you not supposed to say no to nobody always offer you free drink, offer you a free tank of petrol (T641-2). 19Although the issue was not fully explored at the trial, there was a hint in the evidence that, at least on the part of Mr Xu, there was some deference towards Hoang Huy Nguyen and Minh Duc Luong arising from the fact that Mr Xu was Chinese whilst they were Vietnamese (T564.12). However, in the absence of any evidence on that issue from Mr Jin, it is not appropriate to place any weight on that consideration. 20Mr Jin is now aged 24. He was born in China and came to Australia at about the age of 17. He had an unremarkable childhood and has enjoyed relatively steady employment since his arrival in Australia. His mother lives in Australia. She and her partner, Mr Hall, remain supportive of Mr Jin. Mr Hall gave evidence at the sentence proceedings. He described the family as very close-knit and spoke highly of Mr Jin as a loyal and honest man. 21In assessing the seriousness of the present offences, I am required to take into account any of the aggravating or mitigating factors referred to in section 21A of the Crimes (Sentencing Procedure) Act 1999 that are relevant and known to the court. The Crown acknowledged, and I agree, that there are no aggravating factors relevant to the present offences. 22On behalf of Mr Jin, it was submitted that the court should take into account as a mitigating factor the apparent lack of planning concerning the provision of the accommodation. I am satisfied from the evidence given at the trial that Mr Jin's conduct in providing accommodation to the two co-offenders was entirely unplanned and came about spontaneously as a result of a request made by Hoang Huy Nguyen in the immediate aftermath of the two murders. 23The Crown acknowledged that, although there is no suggestion that Mr Jin's conduct was anything other than voluntary, it is clear on the evidence that he followed direction from Hoang Huy Nguyen, whilst he himself had no personal interest in or knowledge of the victims. Statements made by Mr Jin in his interview with police and the evidence of Mr Xu tended to establish that Hoang Huy Nguyen was angry and upset when he spoke to Mr Jin immediately after the incident at the My Canh restaurant. Whilst it has not been submitted on Mr Jin's behalf that he was acting under duress when he committed the offences, I am satisfied on the balance of probabilities that he was influenced to some extent by Hoang Huy Nguyen, to whom he evidently looked as the effective leader of their group of friends. 24Another mitigating factor is the fact that Mr Jin does not have any record of previous convictions. Further, I am satisfied on the balance of probabilities that he is a person of prior good character. Mr Dennis tendered an impressive collection of character references that speak warmly of Mr Jin as a caring and devoted family member and a hard working employee. I attach significant weight to those matters. 25I am also satisfied, as submitted on Mr Jin's behalf, that there is a low likelihood of recidivism given his age, his work history, his absence of prior convictions and particularly the strong support he enjoys from family and friends. The strength and significance of their support is revealed not only by the character references to which I have already referred, but also in the contents of a report prepared by Dr Matthew Jones, General & Forensic Psychiatrist, following an assessment of Mr Jin. 26Dr Jones, placing emphasis on the character references, described Mr Jin as evidently a man of "positive character, somewhat trusting, and non malevolent". Dr Jones stated that Mr Jin's presentation at assessment was consistent with that description and that there were no indicators on the history or his presentation to suggest that he would be at high risk of re-offending. 27Some insight into Mr Jin's reason for committing the offences may be gleaned from the following history recorded by Dr Jones: When I asked him what happened, Mr Jin told me that "after they came to my house to live". He said that to his friends "my house is an open house". He said he often has friends sleep over a couple of nights and that his wife is accepting of this. He told me that sometimes his friends come over to drink and play games such as computer games, video games, mah-jong and cards. 28There is one aspect of Dr Jones' report that concerns me in that respect, which is that Mr Jin has evidently not openly acknowledged responsibility for the offences of which he has been convicted. He did not give evidence at the sentence hearing and has not expressed any remorse at any stage. Dr Jones reported Mr Jin as having told him "I still feel not guilty". Mr Jin evidently felt that his trial was unfair since the jury was composed of ten women and only two men. 29After careful consideration, however, I have concluded that Mr Jin's failure openly to acknowledge his responsibility for the offences does not undermine what otherwise appear to be very good prospects of rehabilitation. In that respect, I place considerable weight upon the evidence of Mr Jin's step-father, Mr Hall, to which I have already referred. Mr Hall gave a convincing explanation for his view that the offences are totally out of character with the step-son he knows. 30I also take into account the fact that, although Mr Jin pleaded not guilty to the offences, the trial was conducted efficiently by Mr Dennis on Mr Jin's behalf and on the basis that the critical issue for the jury's determination was Mr Jin's state of knowledge at the relevant times as to the commission of the murders. That is a factor which, whilst not demonstrating contrition, shows a willingness to facilitate the course of justice and is appropriately taken into account for the purpose of sentencing: see R v Doff [2005] NSWCCA 119 at [58]. 31The Crown noted that the sentencing statistics available from the Judicial Commission in respect of the offence of accessory after the fact to murder comprise five matters involving offenders without prior convictions. Plainly, as submitted by the Crown, that small sample does not constitute a sentencing range for the offence. 32It was acknowledged on behalf of Mr Jin, properly in my view, that the only appropriate sentencing option for Mr Jin is one of full time custody. Mr Dennis submitted, however, that the proper sentences would sit towards the lower end of the prevailing pattern of custodial sentences. 33Mr Dennis and the Crown referred the Court to the prior sentencing decisions of this Court and of the Court of Criminal Appeal in the following matters: R v Farroukh (unreported) NSWCCA 29 March 1996, R v Leung [2000] NSWSC 824; R v Quach [2002] NSWSC 1205; R v Mirad [2004] NSWSC 701; R v Ward [2004] NSWSC 420; R v Almirol [No 2] [2007] NSWSC 323; R v Scowen [2007] NSWSC 792; R v Cowen [2008] NSWSC 104; R v Wells [2008] NSWSC 206 and R v Shamouil and David [2009] NSWSC 24. 34It should be noted that most of those were cases in which there was only one charge and where the offender pleaded guilty (I note that, in Cowen , the offender was arraigned on a single count in respect of assistance provided following two murders). Acknowledging that the present case differs at least to that extent, I have had regard to those decisions to the extent that they are properly of assistance, bearing in mind the principles stated by Hunt CJ at CL in R v Morgan (1993) 70 A Crim R 368 at 371. 35In my view, measured against the full range of conduct capable of amounting to the offence of accessory after the fact to murder, the objective gravity of Mr Jin's offending considered in the context of his compelling subjective case place these offences very much towards the lower end of that range. There is no basis in the evidence for distinguishing between the moral culpability for each separate offence. 36I have concluded that the appropriate total sentence for each offence is two years imprisonment. 37Separately, it is necessary to consider questions of concurrency, accumulation and totality. Mr Dennis submitted that the fact that the offences were all constituted by the same course of conduct would point in favour of there being significant and perhaps even complete concurrency of the individual sentences. The Crown acknowledged that there is considerable factual overlap between the offences and acknowledged that a significant degree of concurrency should apply to the two offences concerning the murders committed by Hoang Huy Nguyen (counts 3 and 7 on the indictment). The same concession was made in respect of the two offences concerning the murders committed by Minh Duc Luong (counts 5 and 9). 38I accept that concurrency of the sentences for those pairs of offences is warranted. In my view, however, there should be some accumulation of the sentences imposed in respect of each of the two men to whom assistance was provided. I consider that three months accumulation is appropriate. 39A number of factors lead me to the view that there are special circumstances in the present case that warrant departure from the ordinary requirement under section 44 of the Crimes (Sentencing Procedure) Act that the balance of term should not exceed one third of the non-parole period. The fact that there is to be some accumulation in the sentences is relevant in that respect. More importantly, the assessment of Mr Jin by the psychiatrist, Dr Jones, leads me to conclude that there was an element of naivety in Mr Jin's offending conduct. Having regard to that consideration and Mr Jin's youth, it is my view that he would benefit from a substantial period of supervision on parole. 40Accordingly, I propose to fix a non-parole period of 12 months for each offence and to accumulate the offences in respect of the assistance provided to Minh Duc Luong by three months on the offences committed in respect of the assistance provided to Hoang Huy Nguyen, giving an aggregate sentence comprising a total non-parole period of 15 months and a balance of term of a further year. The sentences will be backdated to 16 November 2010 to reflect the time Mr Jin has already spent in custody. The earliest date on which Mr Jin will be eligible for release to parole is 15 February 2012. 41Jian Jin, please stand. For the offence of being an accessory after the fact to the murder of Phuc Uy Nguyen by Hoang Huy Nguyen, I sentence you to a term of imprisonment with a non parole period of 12 months commencing on 16 November 2010 and expiring on 15 November 2011 and a balance of term of 12 months expiring on 15 November 2012. 42For the offence of being an accessory after the fact to the murder of Brian Bao Dung Huynh by Hoang Huy Nguyen, I sentence you to a term of imprisonment with a non parole period of 12 months commencing on 16 November 2010 and expiring on 15 November 2011 and a balance of term of 12 months expiring on 15 November 2012. 43For the offence of being an accessory after the fact to the murder of Phuc Uy Nguyen by Minh Duc Luong, I sentence you to a term of imprisonment with a non parole period of 12 months commencing on 16 February 2011 and expiring on 15 February 2012 and a balance of term of 12 months expiring on 15 February 2013. 44For the offence of being an accessory after the fact to the murder of Brian Bao Dung Huynh by Minh Duc Luong, I sentence you to a term of imprisonment with a non parole period of 12 months commencing on 16 February 2011 and expiring on 15 February 2012 and a balance of term of 12 months expiring on 15 February 2013.