On 18 March 2015 the offender was found guilty by a jury of murdering Kim Lien Huyhn on 13 September 2012 in her home at 4 Alick Street, Cabramatta. He stands now to be sentenced for that offence.
The maximum sentence for murder is life imprisonment and there is a standard non-parole period of 20 years imprisonment.
[2]
The facts
I find the following facts. Those facts which are found against the offender have been found by me beyond reasonable doubt and those in his favour on the balance of probabilities. It is my obligation to make findings of fact consistent with the verdict of the jury.
The offender was born on 1 March 1954. He was 58 years of age at the time of the offending and is now aged 61. He was born and raised in Vietnam and schooled to year 9 level.
He married in Vietnam and two children were born there. At some time he fled to the United States of America as a result of his involvement in the Vietnam war. Four further children were born in the United States and all six children were raised by the offender and his former wife.
The offender was examined by Dr Susan Pulman and Lisa Zipparo, both neuropsychologists, at one consultation in October 2014. This was prior to his trial. The offender emerges from their report as a relatively simple man with simple needs. The psychologists thought that he had sustained brain damage from being brutalised when captured as a prisoner of war during the Vietnam war. He demonstrated average non-verbal abilities and intact verbal memory function but he showed compromised performance in tasks of visual memory and more complex processing speed and working memory tasks. That comparison was strongly suggestive of brain damage.
Although he had lived in the United States from about 1980 he had learnt very little English because his wife took care of everything. Although he worked for short periods when he first moved to the United States he was largely unemployed and on a disability pension due to war wounds to his leg, and, presumably, his brain.
He and his wife separated in about 2006 and shortly after that time the offender met the deceased online. At some point she travelled to the United States to meet him and on another occasion prior to his moving to Australia he came here where he met the three daughters of the deceased.
In July 2011 the deceased and the offender were married at Sacramento in California. He then travelled to Australia with the deceased. He was sponsored here on a spousal visa by the deceased and that remained his status at the time of the deceased's death.
The deceased was aged 54 at the date of her death. She had previously been married and three daughters Alice, Aminda and Anna were born to that marriage. In 2001 the deceased's former husband had a serious stroke. He subsequently developed Alzheimer's disease. Although the deceased looked after him for a period of time his needs became so great that it was not possible for him to be looked after other than in a full time nursing facility. At some time after these events the deceased and her former husband were divorced. However, they apparently remained on good terms.
The deceased and her former husband had run a strata management company called K & H Real Estate from premises in Canley Vale, a few kilometres from where they lived. After her former husband suffered his stroke the deceased continued to carry on this business herself.
The offender and the deceased lived at the house at 4 Alick Street, Cabramatta with two of the deceased's daughters, Aminda and Anna although by reason of Anna's ongoing training as a vet she spent lengthy periods of time living away from home.
For some time after they met and after they married the relationship between the deceased and the offender was harmonious. The evidence suggests that the offender was accepted into the family by the deceased's three daughters who seemed to be favourably disposed towards him.
However, it seems clear that the relationship between the deceased and the offender started to deteriorate from about four months or so prior to the deceased's death. From about that time the offender was sleeping downstairs, generally in the front room on the left of the hallway on a sofa bed although sometimes in the room on the right of the hallway on a futon bed. At times the deceased would lock her bedroom door upstairs. There was evidence from the deceased's daughters that their mother could be hard on the offender, calling him unpleasant names, asserting that he was lazy and accusing him of cheating on her with women he contacted on the internet. The picture that emerged of the offender from the deceased's daughters was of a fairly passive individual who simply endured what was directed towards him by the deceased. Even where the daughters expressed concern to him about the way the deceased spoke to him, he would shrug it off.
The offender was socially isolated having virtually no friends or acquaintances apart from the deceased and her family. He claimed not even to know the Vietnamese neighbours to speak to. None of this appeared to bother him.
The relationship between the deceased and the offender was clearly an unequal one. The deceased was an apparently successful businesswoman with money and other property. The picture of the deceased which emerges from the evidence is that of a fairly tough-minded and driven person who had firm ideas about what was and was not appropriate behaviour, particularly for her daughters, but was loving and supportive of her daughters to give them the best start in life.
On the other hand, the offender had virtually nothing and appears to have been financially and probably emotionally dependent upon the deceased. He worked in her business, doing painting and other handiwork. Certainly, his presence in this country was entirely dependent upon his being sponsored for a visa by the deceased. In trying to understand why the deceased was killed by him, it is perhaps significant that in the months leading up to her death the deceased had asked each of her daughters what they thought about the offender and whether they thought she should send him back to the United States.
[3]
The killing of the deceased
It is not known precisely when on 13 September 2012 the deceased was killed. Dr Irvine, the forensic pathologist, was not able to put any time on the deceased's death based on her examination of the deceased. She said that the best that could be done was to look at objective factors about it when it was known that the deceased was last alive and when she was first found dead.
The last contact any person had with the deceased, apart from her killer, was at 12:28pm on that day when she had a phone call with Mr Michael Chakkas who was on the strata committee for a block of units at Warwick Farm of which the deceased was the strata manager. It is not known where the deceased was when Mr Chakkas spoke to her. However, shortly after that time at 12.48pm the offender was using the home computer in the front room of the house.
It seems likely that the deceased went to her office in Canley Vale on the day of her death. The offender said that she went home during the afternoon. That is likely to be correct because one of her neighbours in Alick St, Mrs Curtis, said that she heard the familiar sound of the deceased's car's security system being activated in the afternoon. Aminda had left for work before lunch. Neither Anna nor Alice was living at the house in the days leading up to and including the day of the deceased's death.
Aminda arrived home from work at about 8.30 pm. She did not find her mother's body until around midnight but it can be safely concluded that the deceased had been murdered by the time Aminda returned home that night. Although Aminda walked through the hallway of the house a number of times and walked up and down the stairs twice she did not see her mother's body until she descended the stairs for the second time at about midnight to let one of her dogs out. That was the first time she turned on a light which lit the front room of the house where the deceased's body lay.
The attack on the deceased was brutal as it was determined. She was stabbed four times to the head, she received multiple blunt force injuries to the head and body and she was asphyxiated with five bones in her neck being broken. She sustained some self-defence injuries to her hands, the most significant of which was the near amputation of a finger. All that is known about her dying is that she was alive for at least half an hour after the infliction of the blunt force injuries to her head.
The only matter which might provide some indication of when the deceased was killed was the furious and uncharacteristic barking of Aminda's dogs at about 5.50pm as reported by Mrs Curtis who lived next door. However, it is not necessary to make a finding in this regard.
I am entirely satisfied that the death of the deceased was not planned by the offender. What is likely to have happened is that both the deceased and the offender were home on the afternoon or early evening of 13 September when an argument erupted between them. Consistent with the deterioration in the relationship during the preceding four months the deceased may have threatened to end the relationship and, in effect, to send the offender back to the United States where he did not want to go. Whatever it was that triggered what happened, it seems clear that the offender completely lost control of himself and attacked the deceased.
I am entirely satisfied from the wounds and injuries suffered by the deceased that the offender intended to kill her and not simply to inflict grievous bodily harm upon her. There can be no other explanation for the severity of the injuries and the three different ways those injuries were inflicted.
Following the killing, the offender returned to the business premises in Canley Vale Road where he stayed. When Aminda discovered her mother's body and rang the offender he told her, in answer to her question, that the deceased was at home sleeping. When he arrived at the house he told lies to Aminda about his movements during the day. Subsequently, in the statement he made to the police in the early hours of that morning he also told lies about his movements that day.
This course of lying was perpetuated during the walkthrough of the business premises with Sergeant Barnes. The DVD of that walkthrough did not disclose the offender as being a person upset, in grief or remorseful about what he had done. Certainly, he did not appear to be confused or frightened as he subsequently told the police in his ERISP that he was at that time. That confusion or fright was said by him to be the explanation for not having told the truth on the day of the deceased's death and following.
Later that night the offender made what appeared to be a serious attempt to take his own life. Although the stab wounds he inflicted on himself were superficial, the Emergency Registrar at Liverpool Hospital considered that what the offender had consumed in the way of tablets and other substances could have been life threatening had he not been given a high level of care.
[4]
Remorse
The Crown submitted that his attempted suicide was not an expression of remorse or regret but rather was motivated by a fear of detection. The Crown pointed to the offender's continuing to lie to the deceased's family whilst in hospital and subsequently by the elaborate lie he told in his ERISP. That elaborate lie was an attempt to provide an innocent explanation of how his DNA, fingerprints and footprints were likely to be located (he did not then know that they had been so located) at the crime scene because by the time he participated in the ERISP forensic procedures had been conducted on him.
What he told the police in his ERISP was that he came home and found the deceased lying in a pool of blood. He claimed to have tried to give her mouth to mouth resuscitation. He attempted to clean up some of the blood. His account varied between his believing that she had fainted and believing that there was or may be someone still in the house who had attacked her. He said that he left because he was frightened and went back to the shop to wait for Aminda to arrive home. He made no phone calls to anyone, nor did he attempt to speak to any neighbours in the street or near the shop, despite a number of these persons being Vietnamese.
The jury clearly rejected this account. I find that the offender killed the deceased and then returned to the shop premises in Canley Vale until he again returned to the house after Aminda's midnight phone call. That course of events certainly demonstrates no remorse to that point. He then lied to Aminda, saying that the deceased was home sleeping when he knew otherwise. His statements and behaviour up to the time of the suicide attempt do not disclose any remorse.
There is no evidence that the offender has accepted responsibility for his actions nor acknowledged the injury and loss which he has caused to the deceased and to Alice, Aminda and Anna. He did not give evidence at the sentence hearing.
By reason of these matters, his lying after he was taken to hospital and particularly the elaborate lie in his ERISP, it is difficult to see that his suicide attempt was remorse or grief for the deceased's death. Nor does the note the offender wrote prior to his suicide attempt express remorse, only a regret that the deceased was no longer around to spend life with him. I do not find that the suicide attempt was motivated by remorse, nor that he has shown remorse for what he has done.
[5]
Objective seriousness
The murder was unplanned. I accept that it occurred spontaneously as a result of a loss of control by the offender. There was no apparent motive for the attack on the deceased apart from anger and a loss of control. Nevertheless, the attack was brutal and sustained. The fact that there were stab wounds, blunt force injuries and asphyxiation points to the fact that the offender could have ceased the attack notwithstanding the initial loss of control. I have already found that the intention was to kill the deceased.
There were two matters of aggravation. First, at least one weapon was used to inflict the stab wounds. Secondly, the offence occurred in the deceased's home where she was entitled to feel safe and secure.
A further consideration is that this murder was in a domestic setting. Important factors in sentencing a domestic violence offender are specific and general deterrence, denunciation of the offending conduct and protection of the community: Hiron v R [2007] NSWCCA 336 at [32].
I consider, particularly because the killing was spontaneous from a likely lack of control, that the offending is below the mid-range of objective seriousness.
[6]
Hardship
As noted earlier, the offender is from a Vietnamese background although he resided in America for approximately 30 years before coming to Australia. Nevertheless, he has learned very little English. Both the evidence at trial and Dr Pulman's evidence disclose that he has led a fairly isolated existence both in America and in Australia in the sense that he had few if any friends or acquaintances outside the immediate family. Ordinarily, it would be found that imprisonment for a foreign national serving a sentence here with limited family and other support would be more onerous than for other prisoners: Thi Lan Nguyen v R [2009] NSWCCA 181; R v Huang [2000] NSWCCA 238; [2000] 113 A Crim R 386.
The Crown submitted that because the offender already led a socially isolated life, although he was not unhappy in so doing, this means that imprisonment may well not be more onerous for him. Mr Smith of Senior Counsel for the offender submitted that the offender's age and very limited English language skills means that the usual finding ought to be made.
In my opinion, Mr Smith's submissions should be accepted. As some indication of what he has already experienced, the report from Dr Pulman indicates that since he was transferred from Lithgow to Silverwater he has indeed experienced isolation in custody.
[7]
Rehabilitation and reoffending
Any assessment of this from direct evidence is difficult because the offender did not give evidence at the sentencing hearing. Further, the psychological report was prepared some months prior to his trial where he denied the offence.
Nevertheless, the indications are that the offender was not a violent person. He has no past criminal record and is a person of good character, both of which are mitigating factors. It is very likely that this was a one-off offence so that I am satisfied he has reasonable prospects of rehabilitation and is unlikely to reoffend. His age by the time of his release reinforces that view.
[8]
Special circumstances
There are a few considerations associated with the question of whether there should be a reduction of the non-parole period for special circumstances. First, for sentences for crimes such as murder it is generally accepted that the statutory ratio provides a sufficient period for rehabilitation and reintegration into the community.
Secondly, in the present case the offender is very likely to be deported at the conclusion of his non-parole period. He only remains in this country on a spousal visa. The authorities make clear that ordinarily it is irrelevant that the offender will be deported at the completion of the non-parole period in fixing the sentence and fixing the ratio between the non-parole period and the total sentence.
Mr Smith submitted that, working on the basis that the offender will be near his 80th birthday on release, he would still have limited English skills and would be released into a community which was in many respects largely foreign to him. I accept that the offender's age is a relevant matter when considering special circumstances, while noting that the appropriate sentence cannot be reduced simply on the basis that it is likely to extend to most of the offender's remaining life expectancy: Goebel-McGregor v R [2006] NSWCCA 390 at [128]; Asplund v R [2014] NSWCCA 237 at [67].
Thirdly, his custody will be more onerous by reason of his limited English skills and his social isolation in a country where the only people with whom he has or had a relationship were the daughters of the deceased.
In my opinion, there should be a small reduction of the non-parole period to take account of special circumstances.
[9]
Victim Impact Statements
Each of the deceased's three daughters read lengthy Victim Impact Statements. Their grief and emotional turmoil was undoubtedly worse because their mother was killed by a person they had accepted into their family and had come to trust and like. For various reasons explained in those Statements the deceased's death caused problems amongst the three sisters for some time although those matters appear now to be more resolved. However, they continue to deal with the effects of her death on a regular basis, not the least reason for which is that they need to keep the truth from their incapacitated father who constantly asks for the deceased.
Aminda's position was far worse, not only because she discovered her mother's brutalised body but because she was initially thought to be a suspect arising, partly from the somewhat unusual course of events in the house from the time she arrived home until she found her mother dead on the floor.
The Crown prosecutor has asked that the Statements be taken into account under s 28(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) in connection with the determination of the punishment. I have noted the discussion about this amended section by Hamill J in R v Hines (No 3) [2014] NSWSC 1273 at [77] to [85] and the difficulty of determining when it is appropriate to take a Victim Impact Statement into account. It is far from clear what practical difference has been made by the amendment. As Johnson J noted in R v Pluis [2015] NSWSC 320, all lives are precious and the death of any person is a harm inflicted on the community in general. The harmful impact in this case of the deceased's death on her daughters is an aspect of harm done to the community generally, and that harm is, in any event, one of the considerations that form part of the instinctive synthesis of sentencing.
I consider that I should take the Statements into account. Senior Counsel for the offender does not argue against that position. I again extend the Court's sympathy to Alice, Aminda and Anna for the loss of their mother, and hope that the conclusion of these proceedings may further their recovery from the effects of her death.
[10]
Sentence
I have read and considered the cases provided to me by Senior Counsel for the offender. They have been of assistance in coming to a view concerning the appropriate sentence. Needless to say, however, no two cases are identical.
The offender has been in custody since he attended Cabramatta Police Station on 20 September 2012. The sentence will commence on that date.
Before proceeding to sentence I wish to express my thanks to Counsel and to the solicitors for the Crown and the offender for the efficient and harmonious manner in which the trial and the sentencing proceedings were conducted. I was greatly assisted by them as I am sure the jury were also.
Tony Thao Do, I sentence you to a non-parole period of 16 years commencing 20 September 2012 and expiring 19 September 2028 with an additional term of 7 years expiring 19 September 2035. The offence is to be recorded on the offender's criminal record as a domestic violence offence pursuant to s 12(2) of the Crimes (Domestic and Personal) Violence Act 2007 (NSW).
[11]
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Decision last updated: 08 May 2015
Parties
Applicant/Plaintiff:
R
Respondent/Defendant:
Do
Legislation Cited (2)
Crimes (Domestic and Personal) Violence Act 2007(NSW)