Supreme Court New South Wales Medium Neutral Citation: R v LK [2019] NSWSC 605 Hearing dates: 22 February 2019 Decision date: 23 May 2019 Jurisdiction: Common Law - Criminal Before: Hamill J Decision: Sentenced to imprisonment for 5 years with a non-parole period of 2 years 9 months. Catchwords: CRIMINAL LAW – sentencing – manslaughter – unlawful and dangerous act – joint criminal enterprise – drug deal gone wrong – organised and brutal attack – where offender acted as driver and played a limited role in the offence – extensive and long standing drug dependence – no previous offences of violence – positive finding of remorse – good prospects of rehabilitation – guilty plea – valuable assistance to authorities – total discount of 50% – finding of special circumstances Legislation Cited: Crimes Act 1900 (NSW), s 24 Crimes (High Risk Offenders) Act 2006 (NSW), s 25C Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2), 23, and 44 Cases Cited: OS1 v R [2012] NSWCCA 102 Panetta v R [2016] NSWCCA 85 R v AB [2017] NSWCCA 88 R v AC (No 7) [2016] NSWSC 404 R v AMT [2005] NSWCCA 151 R v Barnes [2013] NSWSC 1627 R v Charman [2007] NSWSC 1177 R v ES (No 2) [2018] NSWSC 1708 R v Gallagher (1991) 23 NSWLR 220; (1991) 53 A Crim R 248 R v J Shedden [2012] NSWSC 759 R v Lenati [2008] NSWCCA 67 R v OPA [2004] NSWCCA 464 R v Perez-Vargas & Stevens (1986) 8 NSWLR 559 R v Robertson; R v McArthur [2014] NSWSC 1401 R v S [2000] NSWCCA 13; (2000) 111 A Crim R 225 R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151 Robertson v R [2015] NSWCCA 251 SZ v Regina [2007] NSWCCA 19 Category: Sentence Parties: Regina LK Representation: Counsel: L Lungo (Regina) K Chapple SC (LK) Solicitors: Office of the Director of Public Prosecutions (Regina) Streeton Lawyers (LK) File Number(s): 2016/59802 Publication restriction: No publication of the offender's name. Judgment 1. On 6 December 2015, on a stretch of grass on the side of a road in Villawood, Tu Luong was beaten with metal bars and stabbed. He was taken to hospital but died later that day. Mr Luong's death arose out of a drug deal gone wrong. He owed money for an ounce of methylamphetamine that was given to him "on tick". A number of people were charged with offences arising out of Mr Luong's killing and six men are to stand trial later this year. 2. On 24 February 2016, LK was charged with Mr Luong's murder. On 25 October 2018, LK pleaded guilty to manslaughter and the prosecution accepted his plea in full satisfaction of the indictment. The basis of the plea is that the offender was involved in a joint criminal enterprise to engage in an unlawful and dangerous act, namely to assault the deceased. The prosecution accepts that he did not have an intention to kill or to inflict grievous bodily harm and that he did not contemplate that the criminal enterprise in which he was engaged would result in Mr Luong's death or really serious injury. By his plea of guilty, LK accepts that he is criminally responsible for Mr Luong's death and he is now to be sentenced for his role in the killing. The offence is extremely serious which is reflected in the maximum penalty of 25 years. [1] 3. The facts of the offence were set out in an agreed statement of facts tendered as part of the prosecution's case on sentence. These facts, to the extent that they attribute roles and responsibility to the other alleged offenders do not represent any findings of fact, and are not admissible, against those other people. It is expected that the offender will give evidence in accordance with those facts at the murder trial in October. Facts of the Offence 1. Mr Luong's killing can only be understood by reference to the events in the days leading up to 6 December 2015. The offender knew the deceased only as Michael. His involvement arose from his role as a driver for a co-accused, a job for which he was paid in drugs. 2. On 4 December 2015, an ounce of methylamphetamine or "ice" was allegedly supplied to a co-accused, Tony Ho, whilst he was in the company of LK and another witness. The ice was valued at $4000 and supplied "on tick", which is to say that payment for the drugs was to be made later. On 5 December 2015, Mr Ho supplied the drugs to Mr Luong and made a similar arrangement for the delayed payment. The deceased was to supply the ice to a person in a home unit in Cabramatta. Mr Ho drove to the unit block with Mr Luong and another person, and they remained waiting in the car while the deceased entered the unit block. Mr Luong did not return. It was the belief of the various accused that they had been "ripped off" by Mr Luong. 3. The deceased was sent a message, via his girlfriend, that he was to make urgent contact as he had taken "things" without paying. 4. On 6 December 2015, LK agreed to drive four of the co-accused – Mr Ho, Sinh Hoang, Abdul Feroz and Vuong Nguyen – "around the corner" to meet up with the deceased on Belmore Street, Villawood. The offender was driving a black Honda Accord. During the drive, LK overheard Mr Ho speaking on the 'phone with Min Trinh who was travelling in another vehicle. A short time later a white Ford Territory came alongside LK's vehicle. Witness A, Mr Trinh, Jason Pham and the deceased were in the second car. The vehicles separated and LK pulled his black Honda over to the kerb. Mr Hoang jumped out of the car and ran to the Ford Territory. Mr Trinh was already out of the other vehicle and pointed to the deceased who was sitting in the back seat of the car. Mr Ho and Mr Feroz got out of LK's car and each produced a metal bar. Mr Nyugen also left the vehicle and approached the Ford Territory. 5. The co-accused opened the door to the back seat and started to assault the deceased. Mr Luong was screaming and kicking out at the co-accused while they attempted to pull him out of the car. At this stage he was struck with a knife that had been produced by one of the co-accused as well as the metal bars. One of the co-accused managed to push Mr Luong part way out of the back seat and Mr Luong was dragged from the vehicle and pushed onto a grassed area where the assault continued. LK saw the victim stabbed in the leg and he heard Mr Luong screaming. LK could see the events from the car and said the last time he saw the victim he was seated upright. 6. LK did not leave the vehicle while these events unfolded. He was not aware of the extent to which Mr Luong was to be injured and, it seemed to be accepted by the prosecution, did not know weapons were to be used. However, he had seen a knife earlier in the day and was instructed to sharpen it. There was no mention that the knife was to be used in the assault. He last saw the knife when it was on the kitchen table back at Mr Ho's house. 7. Following the assault, the co-accused got back into LK's car and travelled to a house in Fairfield where they were joined by the occupants of the Ford Territory. The commotion alerted neighbours to the events that were unfolding. Mr Luong was taken to Liverpool Hospital but he died a short time later. 8. A post-mortem examination revealed that the cause of death was a stab wound to his chest. There were two wounds to the chest area. There was a 9cm deep wound that penetrated the right ventricle of the heart. The other wound was 2.2cm deep. There were a number of other injuries including stab wounds to the abdomen, left upper posterior thigh and right hand as well as subcutaneous haemorrhaging to the right side of his neck. 9. The police seized LK's vehicle on 19 January 2016 to conduct a forensic examination. The offender stored the car in the car park at his workplace to avoid police detection. Fingerprints found in the vehicle were consistent with those of the co-accused. An assessment of the objective seriousness of the offence 1. The offender did not personally inflict any of the injuries or take part in the assault. However, he is criminally responsible for the actions of his co-offenders with whom he was engaged in a joint criminal enterprise. His culpability arises from his involvement in the joint criminal enterprise to locate and inflict unlawful violence on the victim. Whilst he told police at one stage that it "wasn't supposed to get violent", his plea of guilty involves an acknowledgment that he was aware of (at least) the possibility that the victim would be assaulted by the co-offenders. He knew full well that he was involved in a criminal escapade to recover a drug debt and that violence might be employed. The withdrawal of the murder charge means that he must not be sentenced on the basis that he was aware of the possibility that others would act with intention to kill or inflict grievous bodily harm in the course of the assault. 2. There are a number of aggravating features of the offence. Not all of them are to be taken into account pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The parties agreed that the fact that the offence was committed in the company of a number of co-offenders was a factor to be taken into account under the provision. The remaining matters are taken into account in an assessment of the objective gravity of the offence although not strictly under s 21A (insofar as there is any meaningful distinction). These include: 1. The offence was committed in the context of relatively large scale drug dealing and was, accordingly, part of a planned or organised criminal activity. There was some planning involved in the offence but the offender was not part of the planning and generally followed instructions. 2. The offence involved the actual or threatened use of violence, although that it is a common feature of many cases of manslaughter. [2] 3. The assault occurred in a public place (although the Prosecutor withdrew a submission that the offence was committed with disregard for public safety). 4. The offence involved the use of weapons but the offender was not aware of this until quite late in the piece. 1. Contrary to the submission of Senior Counsel for the offender, I am not persuaded that the brevity of the attack provides very much by way of mitigation. The fact that the assault was swift and efficiently executed is not a circumstance that reduces the criminality to any significant degree. 2. To put it bluntly, this was an organised and brutal attack committed in circumstances where the defenceless victim was lured to the scene because he owed money for drugs. Mr Ho had told the offender earlier in the day: "I'm gunna hit him a couple of times you know, bash him a little bit" and "fuckin I've got to get him. I can't let him get away with that." 3. In spite of his limited role in the offence, this is a very serious instance of manslaughter. mitigating features and matters personal to the offender 1. LK is 41 years old. He was 38 at the time of the offence. He has a limited criminal history, the most significant entry being a drug supply offence in 2003 for which he was placed on a good behaviour bond. He has no history of violence. 2. His personal circumstances were set out in the expert report of Dr Olav Nielssen and a Sentencing Assessment Report prepared by Mr Gehan Sawires. Each report set out the history taken from the offender and the conclusions based on that history. There were also references by family friends (Messrs Neave and Pires) and a letter written by LK that was addressed to the Court and, in parts, directed to the victim's family. 3. The offender was born in 1977 and grew up in Condell Park in south-west Sydney. He completed the Higher School Certificate and has been in regular employment since he left school. He worked in his family's business as a form worker and as a contractor either for himself or his older brothers. Substance abuse and family circumstances 1. LK's life has been marred by substance abuse. His drug dependence is extensive and long standing. It seems that his drug use increases during times of trauma, anxiety and stress. This has led to a cycle of self-medication and relapse. He was a regular user of cannabis from his teenage years until his late twenties. He suffered a serious back injury in his early twenties which resulted in chronic pain and discomfort for which he was prescribed opioids. He told Dr Nielssen that a colleague offered him heroin to deal with the pain and that this developed into a pattern of addiction. He also reported that he was addicted to methamphetamine. 2. The offender's father was diagnosed with advanced prostate cancer in 2013 and the offender assisted in administering palliative care. His father died 18 months before the offence and the offender resumed abusing both heroin and methamphetamine. 3. Dr Nielssen diagnosed the offender with substance abuse and anxiety disorder. While his abuse of illegal drugs explains how he came to be involved in the present offence, it is not a matter that can be taken into account in terms of mitigation, according to current authority. 4. LK currently lives with his mother. A brain tumour which required surgical intervention when she was a child has returned. She has lost the use of her right hand and has difficulty speaking. LK stated that if his mother is still alive when he is released he would like to continue to care for her. Remorse 1. I am satisfied that the offender is remorseful. 2. He made forthright admissions to police shortly after his arrest and offered to assist in the investigation. He entered negotiations to plead guilty at an early stage and ultimately entered a plea of guilty to an appropriate charge. 3. He has expressed contrition to the authors of the reports and to his referees. His letter to the Court is realistic in that it acknowledges that no apology can replace the loss of life caused by this crime or the hurt and devastation to the victim's relatives and friends. While he offers the excuse of his drug problem, he does not appear to be justifying his actions and I believe he is sincere in his expressions of remorse. Criminal record and character 1. The offender does not have a significant criminal record. There are a number of offences on his record but they are not significant and do not disentitle him to some leniency. 2. In spite of the entries that he does have, and based on the material in the references, his care for his parents, and his reaction to the police investigation, I am satisfied that LK is generally a person of reasonably good character. He is not flawless and his good character has been tarnished by his drug abuse. Prospects of rehabilitation 1. I am satisfied that the offender has good prospects of rehabilitation and is unlikely to re-offend in relation to a serious offence of violence. These findings are based on a combination of factors including the opinions of the authors of the reports. 2. Mr Sawires is of the opinion that LK has a "medium risk of reoffending". Dr Nielssen is of the belief that LK's "likelihood of any further offences would be greatly reduced if he was successful in giving up drugs." The Sentencing Assessment Report recommends various interventions designed to manage the risk of re-offending. A particularly important factor is that he has no further association with his co-accused. His undertaking to give evidence against the co-accused is likely to take him away from these anti-social influences. 3. As I have said, LK has no previous offences of violence and his criminal history contains what must be (based on the sentencing results) relatively minor offences. A number of the offences are typically associated with people who have substance abuse issues. None of these offences resulted in a term of imprisonment and he has complied with his bail conditions in this matter for a period exceeding three years. 4. The offender has seen numerous counsellors and psychologists over the years in relation to his substance abuse and associated psychological problems. A person with drug abuse issues may have multiple attempts at rehabilitation before they are successful. The fact that an offender has relapsed, or has failed in previous attempts at rehabilitation, or committed an extremely serious offence, does not mean that a sentencing court should give up on them or instinctively find that their prospects of rehabilitation are poor. LK reported to Mr Sawires that he has decreased his use of illicit substances and this was confirmed by his brothers. However, there have been some positive readings for opiates including as recently as 15 November 2018. There is a dispute as to the cause of the positive readings and LK has provided an account that is not considered credible by the author of the report. 5. In spite of his past, and possibly quite recent, failings, I am satisfied that LK is committed to reform. He acknowledges in his letter to the Court that he must be sent to gaol and wants to "stick close" to his family when he is released. With a structured re-entry into the community, I think his prospects of rehabilitation are good. Plea of guilty 1. LK is entitled to a reduction in his sentence to reflect the utilitarian value of the plea of guilty. There was a minor dispute as to the extent of the discount although the parties were not too far apart. Senior Counsel for the offender submitted that a discount of 15-20% was appropriate. The Prosecutor submitted that the plea of guilty was not entered at an early stage and therefore should not attract a discount of any more than 15%. 2. The offender was charged with murder on 24 February 2016. He offered to plead guilty to being an accessory after the fact to murder while the matter remained in the Local Court. This was rejected. The various accused were committed for trial on 15 November 2017. LK's trial was listed to commence on 22 October 2018 together with six co-accused. On 25 September 2018, LK again offered to plead guilty as an accessory. This offer was also rejected. On 12 October 2018, the offender offered to plead guilty to manslaughter. That offer was accepted on 25 October 2018, that is shortly after the trial was due to commence but before the matter was again listed for trial. 3. In the circumstances, I assess the utilitarian value of the plea of guilty to be worthy of a discount of 15%. Assistance to authorities 1. One of the most significant features of the offender's case is his undertaking to provide assistance to the authorities and give evidence against his co-accused. On 25 October 2018, LK signed an undertaking to give evidence on behalf of the prosecution in the criminal proceedings of his co-accused (including any appeal or retrial). The offender gave evidence at the sentence proceedings in which he confirmed his intention to assist authorities and give evidence for the prosecution. 2. LK was first interviewed by police on 19 January 2016 when his car was seized and police made a "form of demand" (presumably) for details of who was using the car at relevant times. He provided a false account of his involvement in the offence and nominated "Johnny" as the driver of the black Honda Accord. The full content of that interview is not in evidence. On 24 February 2016, LK participated in a further interview with investigating police in which he admitted to being the driver, described the events that led to Mr Luong's death and acknowledged that he attempted to conceal his vehicle. It seems to be accepted that the version he gave on that occasion is largely true. He made a witness statement on 17 March 2017. 3. A confidential exhibit was provided and I have considered its contents in the context of the provisions of s 23 of the Crimes (Sentencing Procedure) Act. 4. Counsel for the offender submitted that there should be a discount of 10% for past assistance and 15% for future assistance. [3] If such a discount (25%) were added to the discount for the plea (15%), there would be a total combined discount of 40%. However, in the course of argument, the learned Prosecutor indicated that he would not make any submission against a total discount (including the plea of guilty and past and future assistance) of 50%. [4] 5. In spite of initially misleading police, LK provided an account in his electronically recorded interview on 24 February 2016 that is accepted by police and the prosecution as being truthful and accurate. Towards the end of that interview he told police "I'll help you out [in] any way, shape or form I can". [5] He provided further information in a statement dated 17 March 2017. The undertaking to give evidence came once the plea negotiations were resolved on 25 October 2018. In terms of the importance of his evidence, and as the Prosecutor observed, the offender is to give evidence in a trial involving six accused men charged with murder. 6. There is significant public utility in providing offenders like LK with meaningful reductions from an otherwise appropriate sentence in order to encourage others to assist in the detection and prosecution of serious crime. The provision of such discounts will sometimes, or often, result in sentences that may appear to be disproportionate to the gravity of the crime. However, provided the outcome is not "unreasonably disproportionate to the nature and circumstances of the offence" such a sentence is appropriate to fulfil the policy objective behind s 23. [6] 7. I have taken into account discounts provided in other cases going back many years. [7] I have also taken into account the observations of Simpson J (as she then was) in R v Lenati to which I referred in sentencing AC. [8] 8. In all of the circumstances of the present case, the appropriate reduction in sentence for past assistance is 12.5% and, for future assistance, 22.5%. This results in a total discount for assistance of 35%. With the plea of guilty attracting a 15% discount, there will be a total combined discount of 50%. I am satisfied, in view of the starting point upon which I have settled, that the application of these discounts will not result in a sentence that is unreasonably disproportionate to the objective gravity of the offence. sentencing principles, objectives of punishment and other relevant matters under the legislation and common law 1. In any case of homicide, it is critical to recognise that the crime involves the felonious taking of human life. Sentences in these cases must denounce such conduct in the clearest way. They must also reflect a central objective of the criminal law, which is to protect human life by sending a clear message that such offences will not be tolerated and will be met with stern punishment. The seriousness with which the law treats cases of manslaughter is reflected in the maximum penalty of 25 years imprisonment. I have kept that maximum penalty in mind throughout my consideration of this case. 2. I have taken into account the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act. The sentence must provide adequate punishment for this serious crime; it must deter the offender, as well as other people, from committing similar offences and becoming involved in criminal enterprises like the one that led to Mr Luong's death. The sentence must recognise the harm done to the victim and to the community as a whole. It must also facilitate both the protection of the community and the rehabilitation of the offender. 3. The need for general and specific deterrence is a particularly significant matter in the present case. Special circumstances 1. There are special circumstances warranting an adjustment in the proportion of the non-parole period to the head sentence. [9] It is LK's first gaol sentence and he has a history of drug abuse. The special circumstances arise from the need or desirability to foster LK's rehabilitation and re-integration into the community by providing a substantial period on parole during which time he can be assisted, and monitored, in his attempts to remain drug free. 2. Because of the reduction in the sentence arising from the offender's assistance, the adjustment to the non-parole period will be relatively modest. The fact that the offender is likely to be placed in protective custody is a factor that is built in to the discount for assistance and it is not appropriate to consider it further, or to give it very much weight, in determining the length of the non-parole period although it has relevance to both aspects of the sentence. [10] 3. It is not possible to reduce the non-parole period by very much without offending the principle of proportionality and the requirement that the minimum period of incarceration reflects the gravity of the crime and the taking of Mr Luong's life. Statistics and comparable cases 1. The offence of manslaughter can occur in such a variety of circumstances that reference to sentencing statistics is of limited use. In R v ES (No 2), [11] McCallum J (as her Honour then was) said at [27]: It is well recognised that manslaughter is an offence which can be committed in a wide range of circumstances and with a wide range of degrees of culpability. The starting point is to make an assessment of the objective seriousness of the particular offence. In making that assessment, a primary consideration is the fact that a human life has been unlawfully taken. It is the responsibility of the courts to protect and preserve human life and to punish those who unlawfully take it. (Footnotes omitted.) 1. The Prosecutor referred me to the decisions in R v J Shedden [2012] NSWSC 759, R v Barnes [2013] NSWSC 1627, R v Robertson; R v McArthur [2014] NSWSC 1401 (upheld on appeal in Robertson v R [2015] NSWCCA 251 and R v Charman [2007] NSWSC 1177. I have considered the reasons and outcomes in those and other cases, particularly those which relate to an offender who is not the actual perpetrator of the deadly assault. 2. These cases provide some insight into the serious nature of the offending, the principles at play, and the sentences that have been imposed in cases with some common features. However, each case is different and none of those authorities include assistance as valuable as that provided by LK. I am satisfied that the starting point upon which I have settled falls within the spectrum of sentences imposed in other cases. This is important to ensure that punishment is consistent, or as consistent as it can be. I am grateful to counsel for the references to these cases. Sentence 1. As conceded by the offender and his lawyers, the only appropriate penalty is a sentence of full-time imprisonment. The offender is on bail and has been since his arrest on 24 February 2016. I will commence the sentence starting today. 2. Having considered all of relevant matters, I have concluded that a starting point of 10 years is appropriate. Applying the combined discount of 50%, the head sentence will be 5 years. To give effect to my finding of special circumstances, the non-parole period will be 2 years and 9 months, allowing the offender to be supervised on parole for a period of 2 years and 3 months. 3. I will now impose sentence. 4. LK, you are convicted of the manslaughter of Tu Luong and sentenced to a total sentence of 5 years. 1. I impose a non-parole period of 2 years 9 months commencing on 23 May 2019 and expiring on 22 February 2022. 2. There will be a balance of term of 2 years 3 months commencing on 23 February 2022 and expiring on 22 May 2024. 3. I am required to advise you that the provisions of the Crimes (High Risk Offenders) Act 2006 apply to the offence for which you have been sentenced. Pursuant to s 25C of that Act, I direct your lawyers to advise you of the possible application of the Act. 4. I recommend that LK be subject to immediate classification and, if necessary or desirable, placed in an appropriate form of protective custody. ********** ********** Endnotes 1. Crimes Act 1900 (NSW), s 24. 2. See Robertson v R [2015] NSWCCA 251 at [14]-[15]. 3. Offender's written submissions (MFI 2) at [40]. 4. Transcript (22 February 2019), pp 18-19. 5. See the answer to Q 512 on p 66 of the transcript of the interview. 6. Crimes (Sentencing Procedure) Act 1999, s 23(3) and see, for example, R v OPA [2004] NSWCCA 464 at [54]. 7. See, for example, R v Perez-Vargas & Stevens (1986) 8 NSWLR 559, R v Gallagher (1991) 23 NSWLR 220; (1991) 53 A Crim R 248, R v S [2000] NSWCCA 13; (2000) 111 A Crim R 225, R v OPA [2004] NSWCCA 464, R v AMT [2005] NSWCCA 151, R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151, SZ v Regina [2007] NSWCCA 19, OS1 v R [2012] NSWCCA 102, Panetta v R [2016] NSWCCA 85, R v AB [2017] NSWCCA 88. 8. R v Lenati [2008] NSWCCA 67 at [35]-[39], and see R v AC (No 7) [2016] NSWSC 404 at [16]. 9. Crimes (Sentencing Procedure) Act 1999, s 44. 10. See R v S [2000] NSWCCA 13; (2000) 111 A Crim R 225. 11. R v ES (No 2) [2018] NSWSC 1708. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 December 2019