DPP v Nguyen [2010] VSCA 31

Court of Appeal (Vic)|2010-02-26|Before: Maxwell P, Bongiorno JA

DPP v Nguyen [2008] VSC 11 (Teague J)

CRIMINAL LAW - Appeal - Sentence - Murder - Two counts - Unpremeditated savage attack with knife - Children present - Late plea of guilty - Total effective sentence 25 years' imprisonment - Non-parole period 20 years - Not manifestly inadequate.

1 On 23 October 2007 the respondent pleaded guilty to the murder of two women, Ba Nguyen (then aged 50) and Khanh Le (then aged 26), and to one count of theft of a motor vehicle, which had belonged to one of the victims. The respondent was subsequently sentenced as follows:

Count 1 (the murder of Ba Nguyen): 19 years' imprisonment

Count 2 (the murder of Khanh Le): 19 years' imprisonment

Count 3 (theft of a motor vehicle): 1 month's imprisonment.

2 The sentencing judge directed that six years of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1. The sentence imposed on count 3 was to be served concurrently. Thus, the total effective sentence imposed was 25 years' imprisonment, and the sentencing judge fixed a non-parole period of 20 years' imprisonment.

3 The facts found by the sentencing judge may be shortly stated.

4 Ba Nguyen and her son, Vu Do, ran a business organising grape pickers for growers in the Robinvale area. The respondent was one of those pickers.

5 On the morning of 1 April 2001, Vu Do left his house in Robinvale to transport pickers to local farms. Ba Nguyen remained in the house with Khanh Le (Vu Do's then girlfriend) and four young children. Two of the children were Vu Do's daughters, Vivian and Valerie, then aged six and four respectively. Ba Nguyen was babysitting her granddaughters and two other children, who were not then two years of age. The sentencing judge described what happened in these terms:

Just before 10am, Ba Nguyen was preparing to leave the house to get some exercise. You knocked on the front door of the house. The door was opened by Vivian. You asked for Vu Do. Ba Nguyen came to the door. She told you that Vu Do was at work. She asked you to come in. She went to the kitchen, and you followed her. You asked her for a pen and paper. These she provided, and you made use of them. Ba Nguyen told you she was going for a run. She walked towards the back door. It was then that you took hold of and made the first use of your weapon. The weapon you used has not been located. It may have been a large knife, a cleaver or a machete. It was sharp and large enough to sever altogether the hand of Ba Nguyen. You wielded it in brutal fashion and in front of the four young children. You inflicted severe chopping injuries to the head of Ba Nguyen. In the process of doing that, you chopped off her left hand. You inflicted a stab wound to the abdomen causing a major injury to her liver and heart.

You told the children to be quiet or you would hurt them. You washed the weapon in the kitchen sink. You then walked to the bedroom where Khanh Le was located. She came out of the bedroom, screaming. You followed her out. You were striking at Khanh Le with your weapon as she backed towards the bathroom. You continued to strike her until she too was dead. She died from blood loss resulting from many chopped and stabbed wounds to her head, chest and abdomen. After this sustained savagery in the hearing, if not all in the sight, of the four children, you required the four to move into another room. They remained in that room until released by the police some hours later.[1]

6 After effectively imprisoning the four children the respondent conducted an extensive search of the house and removed a number of items, including cash, a handbag and a bank credit card. He then stole the van belonging to Khanh Le from outside the house and fled the scene of the murders. He later made withdrawals using the credit card. The respondent evaded apprehension for five years until April 2006 when he was arrested in Sydney.

7 While in New South Wales the respondent had assumed a new and false identity. When apprehended he maintained his assumed identity and denied ever having been in Victoria. He made a 'no comment' record of interview.

8 There was a contested committal hearing in February 2007, during which Vu Do, the son of the deceased Ba Thi Nguyen and boyfriend of Khanh Thi Le, was called as a witness and cross-examined.

9 On 15 February 2007 the respondent was committed to stand trial and entered a plea of not guilty. At a final directions hearing in the Supreme Court on 17 October 2007 the matter was adjourned for trial commencing on 22 October in the Supreme Court in Mildura. The trial hearing commenced on 22 October 2007. There were preliminary discussions in the morning and a voir dire in the afternoon. Vivian and Valerie Lam were scheduled to give evidence the following day. The children had made VATE interviews on the day of the murders and had made statements on 29 September 2007 in anticipation of giving evidence at the trial. On 23 October 2007 the respondent was re-arraigned and entered a plea of guilty to two counts of murder and one count of theft.

10 In sentencing the respondent the sentencing judge concluded that there was insufficient evidence to satisfy him that the murders were premeditated, and so the respondent was sentenced on the basis that the killings were done on the spur of the moment. On appeal, the Director took no issue with this conclusion.

11 In terms of the respondent's moral culpability the sentencing judge said:

Your moral culpability for brutally executing two defenceless women in their own home is substantial. It is the more substantial because you executed the two women in front of four young children.[2]

12 The sentencing judge then made reference to the victim impact statements (to which I shall return later) and to the respondent's background. At the time he was sentenced the respondent was 37 years of age. He was born in Vietnam. He suffered many adverse consequences due to the war in Vietnam and its aftermath. His family life and education were gravely interrupted and impaired. The respondent eventually became a flight attendant with Vietnam Airlines. In 1998 he chose not to board a flight returning to Vietnam and remained in Australia as an illegal immigrant.

13 The sentencing judge then had regard to a number of mitigating factors:

You are entitled to a substantial discount for having pleaded guilty. Apart from other utilitarian benefits, your pleas serve as an indication of remorse, and as a means of avoiding the ordeal for Vivian and Valerie of having to be questioned twice over as to what they saw and heard back in April 2001. There are other mitigating considerations for which I must allow. You have no prior convictions. Given the minimal family support available, prison will be harder for you.[3]

14 The Director of Public Prosecutions has appealed against the sentence imposed, pursuant to s 567A of the Crimes Act 1958 (Vic). Before turning to the grounds of appeal I propose to briefly deal with the principles relevant to such appeals.

15 As this Court affirmed in R v Clarke,[4] a Director's appeal should only be brought in a rare and exceptional case, to establish some point of principle. One circumstance which may give rise to the bringing of a Director's appeal is where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle.[5]

16 In dealing with such appeals it is important to bear in mind that sentencing is an exercise of broad judicial discretion and on appeal this Court is not entitled to simply substitute its opinion for that of the sentencing judge. As Charles JA observed in Clarke:

A court of criminal appeal dealing with any appeal against sentence, including by a prisoner, is not a court hearing the matter anew, and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. It may only interfere if there is manifest inadequacy or it is shown that the sentencing judge fell into material error of law or fact.[6]

17 It should also be noted that when, in dealing with a Director's appeal, the court decides to resentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance.[7]

(i) The sentences imposed in respect of counts 1 and 2 (counts of murder), the sentence in respect of count 3 (theft), the total effective sentence imposed and the non-parole period fixed are all manifestly inadequate;

(ii) The order for cumulation as between counts 1 and 2 (counts of murder) was inadequate in all the circumstances; and

(iii) The lack of cumulation in respect of count 3 (theft) was in error in all the circumstances.

19 Turning first to ground 1 and the contention that the sentences in respect of counts 1 and 2 were manifestly inadequate, counsel for the Director submitted that sentences of 19 years' imprisonment do not adequately reflect the fact that the maximum penalty for this kind of offending is life imprisonment. It is submitted that the principles of just punishment, denunciation and deterrence ought to have assumed greater importance in the circumstances of this case. In that regard counsel pointed to the fact that the respondent brutally murdered two defenceless women in an unprovoked, sustained attack in their home and in the presence of four children, two of whom were old enough to comprehend the nature of his acts. It is also submitted that the sentencing judge gave too much weight to mitigating factors concerning the offender and in particular to the plea of guilty, the indication of remorse and the alienation of imprisonment.

20 Counsel also advanced a further aggravating factor, namely that the respondent had threatened the children, put them in a room where they remained, horrified, for a prolonged period. These matters were not specifically put to the sentencing judge as aggravating factors. But it is clear that some of these matters were before the sentencing judge and were taken into account by his Honour in determining the gravity of the offending.

21 In further written submissions filed after the hearing of the appeal, with leave, the Director also contended that the use of a weapon in this case was an aggravating feature. This proposition was opposed by the respondent on two bases:

their mere possession, carriage and use of a knife to commit the offence of murder does not amount to an aggravating factor for the purpose of the imposition of sentence for the offence of murder; and
this is a matter which is advanced for the first time on appeal and the Director is not entitled to rely upon an aggravating circumstance if it was not relied upon before the sentencing judge.[8]

22 It is not necessary for us to consider and decide these issues in the present appeal. As the Director notes in his submissions, whether the use of the weapon in the context of this offending is regarded as an aggravating factor or as going to the gravity of the offending is of little moment. One way or another, it is a circumstance to be taken into account, and I am satisfied that it was taken into account by his Honour.

23 There can be no doubt that these were brutal murders attended by a number of aggravating factors. Two defenceless victims were murdered in their home, in the presence of children. The victim impact statements speak of the devastating effect these murders have had on the victims' families and especially on Vivian and Valerie.

24 But, as is apparent from the sentencing remarks, his Honour had regard to these matters and concluded that the respondent's moral culpability was substantial and that it was 'the more substantial because (the respondent) executed the two women in front of four young children'.[9]

25 I am not persuaded that the sentencing judge failed to properly have regard to the nature and gravity of the offending. The real issue is whether his Honour gave too much weight to the mitigating factors.

26 The Director contends that the sentencing judge gave too much weight to the plea, the indication of remorse and the alienation of imprisonment.

27 It is apparent from his sentencing remarks that the sentencing judge provided a 'substantial discount' on the basis of the respondent's guilty plea.

28 A sentencing judge possesses a wide discretion in interpreting the quality and sentencing implications of a plea of guilty[10] and may take into account a range of matters including the strength of the Crown case; the fact that witnesses and the victim's family and friends are spared the trauma of a trial; the community benefit in terms of the time, convenience and money saved; and the demonstrated remorse of the accused.[11] These matters are particularly relevant where there is a plea of guilty to murder. In Hall,[12] this Court observed that 'the more serious the crimes, the greater the weight to be given to a plea of guilty'.[13] In Donnelly Charles JA (with whom Winneke P and Hedigan AJA agreed) said:

The advantages of a plea of guilty obviously extend beyond the families involved, the stress which a trial would cause them and the removal of the trauma to which witnesses would otherwise be subjected. That stress is plainly magnified when the trial is for murder.[14]

29 The plea in this case was late, on the second day of the trial. Generally speaking the earlier the plea the greater the saving to the State and the greater the potential discount. But two features of this case support the proposition that it was open to the sentencing judge to provide a substantial discount. The plea meant that Vivian and Valerie did not have to give evidence and be questioned again about what they saw and heard in April 2001. The second matter is the sentencing judge's observation that the respondent's pleas 'serve as an indication of remorse'. A plea of guilty that is indicative of remorse will ordinarily carry more weight than a plea dictated solely by self-interest.[15] Counsel for the Director conceded that it was open to the sentencing judge to find that the plea in this case was indicative of remorse.

30 As to the third mitigating factor, the alienation of imprisonment, the sentencing judge said, '[g]iven the minimal family support available, prison will be harder for you.'[16]

31 The absence of family support is likely to make the respondent's experience of prison more onerous than for others and it was appropriate that the sentencing judge take this matter into account.[17] Counsel for the Director accepted that this was so, but argued that, having regard to the sentence imposed, the mitigating factors were given too much weight by the sentencing judge.

32 As I have said, these were brutal murders attended by aggravating factors. But they were not premeditated and there are a number of mitigating factors, including the respondent's plea of guilty. As I have already noted it was open to the sentencing judge to provide a substantial discount for the plea. In all the circumstances I am not persuaded that the sentences imposed in respect of counts 1 and 2 were manifestly inadequate.

33 In reaching this conclusion I have also had regard to two Sentencing Snapshots published by the Sentencing Advisory Council. The first (No 27) describes sentencing outcomes for the offence of murder in respect of sentences handed down by the Supreme Court between 2001/02 and 2005/06.[18] Some 152 people were sentenced for murder over that period.[19] The imprisonment terms imposed ranged from 13 years to life, while the median term was 18 years (meaning that half of the imprisonment terms were shorter than 18 years and half were longer).[20] The second Sentencing Snapshot (No 84) covers the period between 2003/04 and 2007/08[21] and the results are similar to those in Sentencing Snapshot No 27. Imprisonment terms ranged from 11 years to life, while the median was 19 years.[22] Of course these reports are only of limited assistance as they do not detail the relevant offending or whether a sentence was imposed following conviction after a trial or after a plea of guilty. Despite these limitations it is apparent that the sentences imposed by the sentencing judge were consistent with the median sentence imposed for murder in recent years.

34 In respect of count 3 (theft) the Director contends that the sentence imposed (one month imprisonment) was manifestly inadequate, but no submissions were advanced in support of that proposition and it was all but abandoned at the hearing of the appeal. I am not persuaded that the sentence imposed in respect of count 3 was manifestly inadequate.

35 Appeal grounds two and three contend that the order for cumulation in respect of the counts of murder was inadequate and that the lack of cumulation in respect of count 3 was erroneous.

36 It is convenient to deal with the last point first. The sentencing judge directed that the sentence of one month's imprisonment imposed in respect of count 3 be served concurrently with the 19 years' imprisonment imposed on count 1. It is relevant to observe that his Honour was never asked to cumulate any part of the sentence on count 3. In such circumstances and given the seriousness of the offences the subject of counts 1 and 2, the sentencing judge can hardly now be criticised for not directing any cumulation in respect of the sentence imposed in relation to count 3.

37 The challenge to the order for cumulation in respect of the two murder counts can be seen as a particular of the general proposition that the total effective sentence and the non-parole period fixed were manifestly inadequate.

38 The Director contends that the appropriate sentencing range reasonably open in the circumstances was between a total effective sentence of 30 years, with a non-parole period of 25 years, at the lower end, and life imprisonment with a 35 year non-parole period, at the higher end. The range proposed was not moderated to take account of the double jeopardy discount involved in resentencing on a Director's appeal.

39 I note that before the sentencing judge the Director sought 'some cumulation' in relation to the sentences imposed in respect of the two murders. This suggests that at the plea the Director did not envisage that a sentence of life imprisonment was within the range. Of course the sentencing judge was not bound by this indication.

40 The Director made reference to a number of cases in support of the proposition put regarding the appropriate sentencing range. The cases referred to were all double murders, but it was acknowledged that none of them was completely analogous to the circumstances of this matter.

41 R v Hettiarachchi[23] was the only case where the murders were committed in the presence of children. The prisoner had stabbed to death his elderly and defenceless parents-in-law. He was sentenced to 22 years' imprisonment in respect of each murder and the sentencing judge directed that five years of the sentence imposed for the second murder be served cumulatively with the sentence imposed on count 1. This gave a total effective sentence of 27 years and the sentencing judge fixed a non-parole period of 22 years. A subsequent Director's appeal, contending that the sentences were manifestly inadequate, was dismissed.[24]

42 Hettiarachchi was convicted after a trial, there was no guilty plea, nor was there any indication of remorse. These are important points of distinction from the matter before us. Had Hettiarachchi pleaded guilty or shown remorse, he would have been entitled to more favourable consideration, as the sentencing judge acknowledged:

The fact that you have pleaded not guilty, does not increase in any way the penalty that will be imposed, but it does indicate a total lack of remorse and prevents me from providing any substantial or any discount at all for contrition, remorse or saving your wife, having to go through this trial.[25]

43 Similarly, in R v Russo[26] the offender was convicted following a trial for the murder of his two elderly parents, by bashing them to death in their home, for financial gain. In sentencing after a retrial, Bell J imposed a sentence of 18 years' imprisonment for the murder of each parent, with 10 years cumulation, resulting in a total effective sentence of 28 years. His Honour fixed a non-parole period of 23 years. While these murders were not committed in the presence of children, the offender had laid a false trail, which is an aggravating factor[27] not present in the matter before us, and he did not plead guilty.

44 Counsel for the Director also made reference to R v Crosbie[28] (life imprisonment with a non-parole period of 30 years); R v Wales[29] (30 years with a non-parole period of 24 years); R v Sharpe[30] (life imprisonment with a non-parole period of 33 years; DPP v Kabo[31] (25 years with a non-parole period of 20 years; and DPP v Adajian[32] (life imprisonment with a non-parole period of 25 years). While each of these cases involved double murders, there are a number of matters which distinguish them from the circumstances of this case.

45 In Kabo the offender was convicted after a trial, hence there was no discount for a plea. In Crosbie, Wales, Sharpe and Adajian the offenders pleaded guilty, but there were aggravating features not present in the instant case, namely:

Crosbie:[33] the offender 'derived sexual excitement and perverted pleasure' from killing the victims in a sadistic manner;[34] he performed sexual acts with the body of his first victim (post mortem); and there was some degree of pre-planning.
Wales:[35] there was an element of premeditation.
Sharpe:[36] involved the planned murder of his pregnant wife and the subsequent murder, two days later, of his 18 month old child. Both were killed with a spear gun and neither died instantly. The circumstances relating to the murder of the child were particularly horrific.[37]
Adajian:[38] the total effective sentence reflected the fact that, in addition to two murders, the offender was also convicted of armed robbery and attempted murder.

46 The cases relied upon by the Director are of limited assistance given the particular circumstances in those cases as compared to the present case. In any event sentencing practice is but one of the relevant considerations.

47 In this case the sentencing judge directed that six years of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1, resulting in a total effective sentence of 25 years. His Honour then fixed a non-parole

48 The making of orders as to cumulation or concurrency are matters for the exercise of a broad judicial discretion. As this Court recently affirmed in the Hettiarachchi appeal:[39]

There can be no inflexible rules as to how this is done; what is important is that whether or not cumulation is imposed, and to what extent, must reflect the criminality of the offences, subject to due observance of the totality principle.[40]

49 I am not persuaded that the amount of cumulation between counts 1 and 2 was manifestly inadequate.

50 The total effective sentence was within range, albeit at the low end of the range. As noted earlier, on appeal the court is not entitled to simply substitute its opinion for that of the sentencing judge. It may only interfere if it is satisfied that there is, relevantly in the circumstance of this case, manifest inadequacy. I am not persuaded that the sentences imposed in this case were manifestly inadequate, nor am I persuaded that the sentencing judge fell into error such as to warrant correction on appeal. It follows that the appeal must be dismissed.

51 I have had the advantage of reading in draft the reasons for judgment of Ross AJA. I too would dismiss the appeal, for the reasons which his Honour gives.

[1] DPP v Nguyen [2008] VSC 11, [4]-[5].

[4] [1996] VICSC 30; [1996] 2 VR 520 ('Clarke') (Charles JA, with whom Winneke P and Hayne JA agreed).

[5] See Everett v R [1994] HCA 49; (1994) 181 CLR 295, 299-300 (Brennan, Deane, Dawson and Gaudron JJ).

[6] Clarke [1996] VICSC 30; [1996] 2 VR 520, 522; cf R v Allpass (1993) 72 A Crim R 561, 562-3.

[7] Clarke [1996] VICSC 30; [1996] 2 VR 520, 522 (Charles JA). I note that s 289(2) of the Criminal Procedure Act 2009 (Vic) now provides that '[i]n considering whether an appeal should be allowed, the Court of Appeal must not take into account any element of double jeopardy involved in the respondent being sentenced again, if the appeal is allowed.'

By virtue of cl 10(4) of sch 4 of the Criminal Procedure Act 2009 (Vic), this provision applies to an appeal where the sentence is imposed on or after the commencement day, 1 January 2010.

[8] See DPP v Moses [2009] VSCA 274, [16].

[9] DPP v Nguyen [2008] VSC 11, [7].

[10] R v Gray [1977] VicRp 27; [1977] VR 225, 232, approved in R v Donnelly [1998] 1 VR 645, 648 ('Donnelly') (Charles JA, with whom Winneke P and Hedigan AJA agreed).

[11] Donnelly [1998] 1 VR 645, 648-9 (Charles JA).

[13] Ibid 469 (Crockett and Southwell JJ).

[14] Donnelly [1998] 1 VR 645, 649.

[15] R v Morton [1986] VicRp 82; [1986] VR 863, 867.

[16] DPP v Nguyen [2008] VSC 11, [10].

[17] R v Chow (1987) 11 NSWLR 561; see also Pereira (1991) 57 A Crim R 46, 48-9.

[18] Sentencing Advisory Council, Sentencing trends for murder in the higher courts of Victoria, 2001-02 to 2005-06, Sentencing Snapshot No 27, August 2007.

[21] Sentencing Advisory Council, Sentencing trends in the higher courts of Victoria 2003-04 to 2007-08 - Murder, Sentencing Snapshot No 84, June 2009.

[23] [2007] VSC 541 ('Hettiarachchi').

[24] R v Hettiarachchi; DPP v Hettiarachchi [2009] VSCA 270 ('the Hettiarachchi appeal').

[28] [2003] VSC 69 ('Crosbie').

[29] [2003] VSC 115 ('Wales').

[30] [2005] VSC 276 ('Sharpe').

[31] [2006] VSC 340 ('Kabo').

[32] [1999] VSCA 105 ('Adajian').

[40] Ibid [83] (Nettle and Weinberg JJA, Hollingworth AJA). Cf R v Hogan [2008] VSCA 279, [29] (Maxwell P, Redlich JA and Robson AJA).

At a glance

Court

Decision date

Before

Source

Judgment (102 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (3)