R v Hoang Huy Nguyen R v Minh Duc Luong

Judgment 1Hoang Huy Nguyen and Minh Duc Luong each stand to be sentenced for the murder of Phuc Uy Nguyen and the murder of Brian Bao Dung Huynh. Hoang Huy Nguyen was found guilty of those two offences on 24 November 2010 after a trial by jury over which I presided. Minh Duc Luong pleaded guilty to the same two offences on the day on which the trial was due to commence, 27 October 2010. 2Hoang Huy Nguyen was tried together with another offender, Jian Jin, who was found guilty by the jury of four offences of being an accessory after the fact to the murders. Jian Jin was sentenced separately by me on 16 March 2011: see R v Jin [2011] NSWSC 169. The sentence hearing in respect of the two offenders now before the court was unable to proceed on that day and has subsequently suffered further delay through no fault on the part of the offenders due to the unavailability of reports relevant to the sentencing decision. 3The maximum sentence for the offence of murder is imprisonment for life: section 19A of the Crimes Act 1900. The Crown expressly did not contend that the level of culpability of the offenders fell within the terms of section 61(1) of the Crimes (Sentencing Procedure) Act 1999 so as to attract mandatory life sentences under that section. I do not think that life sentences are warranted. The Crown submitted, however, that since each offender is to be sentenced for two murders, the court should impose very significant terms of imprisonment. 4Pursuant to section 54A of the Crimes (Sentencing Procedure) Act , a standard non-parole period of twenty years' imprisonment is prescribed for the offence of murder. The Crown submitted that these offences fall within the middle of the range of objective seriousness for that offence and that the standard non-parole period "applies". The consideration of that submission must of course comprehend the proper sentencing procedure for offences that carry a standard non-parole period discussed by the Court of Criminal Appeal in R v Way [2004] NSWCCA 131; (2004) NSWLR 168 at [117] to [121] and the principles stated in Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [31] to [32] and [37] to [39] per Gleeson CJ, Gummow, Hayne and Callinan JJ; and see the judgment of McHugh J especially at [50] to [56] . 5The proper approach requires the court, in determining the appropriate sentence, to consider whether there are reasons for not imposing the standard non-parole period. To that end, it is necessary to consider the facts relating directly to the commission of the offence in order to determine whether it falls within the middle of the putative range. However, even for offences that do, the court must be astute to avoid an approach that adopts the standard non-parole period as a starting point and allows it to dominate the remainder of the exercise: Way at [131] and [151] to [153]. The task is to weigh all the relevant factors and make a judgment as to what is the appropriate sentence. In the proceedings against Minh Duc Luong, the Crown acknowledged that the pleas of guilty themselves constitute sufficient reason to depart from the standard non-parole period. 6The submissions on sentence in the present case brought forward a number of factual disputes as to the proper basis on which Hoang Huy Nguyen should be sentenced. The principles as to the onus and standard of proof in respect of such matters are well known: see R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at [24] to [27]. 7With those principles in mind, I turn first to consider the facts relating directly to the commission of the two murders. Phuc Uy Nguyen and Brian Bao Dung Huynh both died after being stabbed in the heart during an altercation outside a bar in Bankstown on the evening of 1 February 2009. The Crown case was that the two victims were set upon by four men including the two offenders before the court. The other two men, known in these proceedings only as "Tommy" and "Zeng", appear to have left the country. They have not been brought before the courts. 8Each of the victims suffered a number of stab wounds. The Crown acknowledges that the evidence did not reveal who of the four offenders inflicted the fatal wound in either case. In those circumstances, the prosecution case was conducted on the basis of a common purpose shared by the four offenders to kill or inflict grievous bodily harm on each of the two victims. 9The offences must be considered in the context of an incident that occurred about two hours earlier when 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 killed) and a number of Phuc's friends, who had also been dining in the restaurant. Phuc Uy Nguyen evidently believed that he recognised Hoang Huy Nguyen as a person who had been involved in a fight in Chinatown on New Year's Eve. There was no cogent evidence as to whether Hoang Huy Nguyen had in fact been involved in any such fight and I am not satisfied that he was. 10Hoang Huy Nguyen told the group that they were mistaken but it appears they did not believe him. I am satisfied that at some point during the altercation that followed, Hoang Huy Nguyen was struck or punched in the head. His girlfriend was also evidently assaulted at some point. Hoang Huy Nguyen ran away from the restaurant in fear and was chased down the road at speed by at least four men, including Phuc Uy Nguyen. A member of that group who gave evidence at the trial acknowledged that the object of the chase was to catch Hoang Huy Nguyen and give him "a bashing". There was also evidence that one of the men was carrying a baton. CCTV footage recovered by police revealed that it was an earnest chase. I accept that it must have been quite terrifying to Hoang Huy Nguyen. 11There is a factual contest as to what happened next. Although the Crown put the case to the jury on the basis that the agreement to attack the two victims may have been reached spontaneously just before they were stabbed, the primary Crown case was that greater planning was involved. The Crown's contention was that, after escaping from the group at the My Canh restauarant, Hoang Huy Nguyen spent the next couple of hours mustering a group of his own and arming them with knives to carry out a reprisal attack on Phuc Uy Nguyen. 12It is not in dispute that Hoang Huy Nguyen made a number of telephone calls to the co-offender, Jian Jin and another friend of theirs, Gary Xu. Mr Xu was a critical witness in the Crown case as to the events leading up to the murders and their aftermath. 13I should note that, in sentencing Mr Jin, I said that I had assessed Mr Xu to be a careful and honest witness. However those remarks were made in the context that Mr Jin was charged only as an accessory after the fact. Accordingly, Mr Xu's evidence as to events leading up to the stabbings did not form any part of the factual basis on which Mr Jin was sentenced. The submissions on sentence on behalf of the present offenders launched a substantial attack on the reliability of that evidence. I have accordingly undertaken a further close review of the whole of Mr Xu's evidence in assessing those submissions, taking into account the dangers of relying on his evidence as to which I warned the jury. 14Mr Xu's evidence was that, on the afternoon of 1 February 2009, he received a call from Hoang Huy Nguyen who said that he had "been fought" by somebody and was not able to go home if no one would come and pick him up. Mr Xu drove to Bankstown where he met Hoang Huy Nguyen in a parking space in the street. Hoang Huy Nguyen asked Mr Xu to go and park in the multiple level car park, which he did. He then walked back to Hoang Huy Nguyen, who asked him whether he had a knife in his car. He said that he didn't. Hoang Huy Nguyen then sent Mr Xu to meet two other men, Tommy and Duc, in front of a restaurant. Mr Xu went and waited for them but could not find them. He called Hoang Huy Nguyen to find out where they were. Hoang Huy Nguyen said that he had already found them and told Mr Xu to come back. 15When Mr Xu went back to meet Hoang Huy Nguyen again at the parking area in the street, he saw that Jian Jin had also arrived. A number of men were gathered at the boot of Mr Jin's car, including Mr Jin, Hoang Huy Nguyen, the offender Minh Duc Luong, Tommy, Zeng and another person not known to Mr Xu. Mr Xu said that the boot of Mr Jin's car was open and that he saw two Kiwi brand knives in there. He said that Hoang Huy Nguyen told him that he had bought the knives. 16Mr Xu said that, while the men were gathered at the boot, two security guards with dogs walked around from the park. The arrival of the two guards prompted Hoang Huy Nguyen to ask the group to move to the multi level car park, which they did. The two guards gave evidence in the trial. Nothing in their evidence caused me to doubt the veracity of Mr Xu's account. 17After they got to the car park, Hoang Huy Nguyen left for a short time with Jian Jin, Minh Duc Luong, Tommy and Zeng. When they returned, Hoang Huy Nguyen asked Mr Xu to take Tommy and Zeng to have something to eat and then to send them home. Mr Xu took them back to Jian Jin's flat. Separately, mobile telephone records established that Hoang Huy Nguyen also left Bankstown for a period of time, travelling to the Canley Vale area with Jian Jin. I do not accept that those records disprove the version of events given by Mr Xu, although his estimates as to some of the times at which various events occurred appear to be wrong. 18Mr Xu later received a further call from Hoang Huy Nguyen asking him to take Tommy and Zeng back to Bankstown, which he did. At the request of Hoang Huy Nguyen, he parked his car there and gave the keys to Hoang Huy Nguyen. He then left in Jian Jin's car with Jian Jin. He saw Hoang Huy Nguyen walking away with Minh Duc Luong, Tommy and Zeng. 19Mr Xu's evidence was vigorously tested at the trial. I did not doubt its veracity then and nothing that has been put on behalf of Hoang Huy Nguyen has persuaded me that I should not accept it now. I am satisfied beyond reasonable doubt that Hoang Huy Nguyen was present at Bankstown during the period of time when the security guards had the group under observation at the boot of Jian Jin's car. I am further satisfied beyond reasonable doubt that Hoang Huy Nguyen was planning during that period to return to confront Phuc Uy Nguyen with the backing of a group of armed men and to reprise the conflict opened by Phuc at the My Canh restaurant. I am satisfied that Hoang Huy Nguyen bought the two Kiwi brand knives seen by Mr Xu in the boot of the car to that end. 20As to the attack itself, I am satisfied on the strength of other evidence in the trial as to the following facts. One of the four offenders (not Hoang Huy Nguyen) went into the hotel and invited Phuc Uy Nguyen outside. The other victim, Brian Bao Dung Huynh, followed shortly behind him. I am satisfied on the balance of probabilities that, once outside, Phuc Uy Nguyen punched Hoang Huy Nguyen. I am not satisfied, however, that Hoang Huy Nguyen fell to the ground as contended on his behalf. There was no evidence to support such a finding from the only eyewitnesses to any part of those events, Thy Nguyen and The Hung Nguyen. 21Although the evidence as to precisely what happened next is scant, it is clear that Brian Bao Dung Huynh was stabbed almost immediately and pushed back into the hotel, where he collapsed and died. 22Meanwhile, the fight with Phuc Uy Nguyen moved to a point around the corner from the entrance to the hotel. Senior counsel for Hoang Huy Nguyen invited me to find that the group that continued around the corner did not include Hoang Huy Nguyen, whom he contended had been struck to the ground. I am not persuaded as to that version of events. To my observation, the CCTV footage and stills tendered by the Crown clearly show all four offenders physically participating in the attack around the corner from the hotel and then running away together. I am satisfied beyond reasonable doubt that Hoang Huy Nguyen was on his feet and present at the point around the corner when Phuc Uy Nguyen was stabbed. 23The four offenders ran towards Bankstown station. Within a fairly short time after the stabbings, police recovered four knives, including two Kiwi brand knives, within close proximity to the hotel. DNA evidence at the trial established that two of the knives had the blood of both deceased on them, while a third, one of the Kiwi brand knives, had the blood of Phuc Uy Nguyen on the blade and non-blood DNA of Phuc Uy Nguyen on the handle. 24Shortly after the victims were stabbed, Mr Xu and Mr Jin received a call from Hoang Huy Nguyen asking them to pick him up at Bankstown Station. However, they got lost on the way and eventually collected the four offenders at Yagoona station. They then returned to Hoang Huy Nguyen's place. 25Mr Xu gave evidence as to the conversation that took place at that apartment. He said that Minh Duc Luong reported that a man (presumably Phuc Uy Nguyen) had punched Hoang Huy Nguyen in the face and that he (Minh Duc Luong) had then stabbed him in the back. Tommy said that he had stabbed the second man who came to stop the fighting, presumably Brian Bao Dung Huynh. 26According to Mr Xu's account, Hoang Huy Nguyen then said that he had also stabbed someone. Although there was a contest as to this issue at the trial, I am satisfied beyond reasonable doubt that Hoang Huy Nguyen also said to Mr Xu that the others had thrown their knives on the ground and that he (Hoang Huy Nguyen) had thrown his knife in the bin. 27Later, in a private conversation between Hoang Huy Nguyen and Mr Xu, Hoang Huy Nguyen said that he didn't actually stab anyone. He asked Mr Xu whether police can find out that a knife is not the knife used to stab someone. 28I am satisfied beyond reasonable doubt that Hoang Huy Nguyen was armed with one of the Kiwi brand knives from the boot of Jian Jin's car when he went to the hotel where the victims were stabbed. I am also satisfied beyond reasonable doubt that he knew that the other three men in his group were carrying knives. In reaching that conclusion, I have taken into account the evidence of Mr Xu, which I accept, together with the forensic evidence as to the four knives recovered at the scene. In particular, the evidence was that the Kiwi brand knife which was found to have the blood of Phuc Uy Nguyen on the blade and non-blood DNA from Phuc Uy Nguyen on the handle was recovered from a garbage bin . 29It was submitted on behalf of Hoang Huy Nguyen that I should accept the possibility that the three offenders, Minh Duc Luong, Tommy and Zeng were armed by Mr Xu, or by a person or persons known to him and present at the time the group was observed by the security guards. I do not accept that submission. It is contrary to the evidence of Mr Xu, which I accept. 30Mr Nicholson submitted that I could not exclude the reasonable possibility that the deceased Phuc Uy Nguyen was in possession of one of the knives found at the site, consistently with the forensic evidence that his DNA was found on the knife and was not blood sourced. I am not satisfied on the balance of probabilities that one of the knives came from Phuc Uy Nguyen. The preponderance of evidence points to the conclusion that the knives were collected and brought to the scene by Hoang Huy Nguyen and his associates. Hoang Huy Nguyen made no suggestion when interviewed by police that Phuc had a knife. 31I am satisfied on the balance of probabilities, however, that Hoang Huy Nguyen did not in fact stab either victim. In reaching that conclusion, I have had regard to the evidence of Mr Xu as to his conversations with Hoang Huy Nguyen after the event. It seems likely that, after boasting in the presence of Minh Duc Luong, Tommy and Zeng, Hoang Huy Nguyen told Mr Xu the truth when he later said, privately, that he had not in fact stabbed anyone. It is an agreed fact that Minh Duc Luong stabbed both of the deceased and that is consistent with the DNA evidence. Another knife also had the blood of both deceased on it. It seems likely that the victims were both stabbed by both Minh Duc Luong and either Tommy or Zeng. 32In light of my finding that Hoang Huy Nguyen did not in fact stab either victim and the subjective evidence concerning Hoang Huy Nguyen's background, to which I will return, I am not satisfied beyond reasonable doubt that he was party to an agreement to kill either of the victims. Separately, in considering his culpability, I am satisfied on the balance of probabilities that, when planning the offences, the clarity of his thinking was to some degree adversely affected by the fear he had experienced earlier in the evening. I suspect that the dangerous confrontation he set in train quickly went beyond what he set out to achieve. 33As to Minh Duc Luong, although he admits stabbing both victims, there is otherwise so little evidence before the court on sentence as to his involvement in the offences that I am left with a doubt as to his state of mind. I am satisfied on the balance of probabilities that it is appropriate to sentence both offenders on the basis of a common purpose to inflict grievous bodily harm on each of the two victims. I accept the submission on behalf of the Crown that the offences fall within the middle of the range of objective seriousness for the offence of murder. Although I have made different findings as to their involvement in the offences, in the end I do not think that there is any difference between the moral culpability of the two offenders. 34In determining the appropriate sentences for the present offences, I must specifically take into account any relevant aggravating or mitigating factors referred to in section 21A of the Crimes (Sentencing Procedure) Act 1999. 35I have already recorded my reasons for finding that the offences involved a degree of planning on the part of Hoang Huy Nguyen. In the proceedings against him, the Crown relied upon the following additional aggravating factors. First, the offences involved the use of weapons. I regard that as a factor of little significance in the case of murder, which in my view could be equally awful when committed without a weapon. 36Secondly, the Crown submitted that the offences were committed without regard for public safety. The attack upon the two victims commenced in the public entrance to the hotel and almost immediately spilled onto the footpath of a public street. One of the eyewitnesses who gave evidence at the trial was a woman who was having a drink with a friend. Brian Bao Dung Huynh collapsed on the floor and died near where she was sitting. I do not have any difficulty concluding that the violent fight that resulted in these offences displayed disregard for the safety of members of the public present in and around the hotel. 37So far as mitigating factors are concerned, I have already indicated that I accept Hoang Huy Nguyen's plan was precipitated by the fear he experienced during the aggression shown to him earlier in the evening. I do not think that greatly reduces his culpability but it is a relevant factor. 38I accept, as submitted on behalf of Hoang Huy Nguyen, that he should be sentenced as a person of prior good character. He has two prior convictions for drink driving offences but I do not regard those as matters of any significance in the present context. 39Mr Nicholson submitted that the court should find that Hoang Huy Nguyen is unlikely to reoffend and has good prospects of rehabilitation. I have given careful consideration to that question. A matter of considerable concern is that, to this day, Hoang Huy Nguyen maintains his innocence. It is often thought that acceptance of responsibility for an offence is a first and necessary step on the path to rehabilitation. 40Mr Nicholson tendered a report prepared in relation to Hoang Huy Nguyen by Mr Sam Borenstein, Clinical Psychologist. Hoang Huy Nguyen told Mr Borenstein, as to the confrontation outside the My Canh Restaurant, that he was "caught up in events where he believed he was mistaken for his co-accused" and that he "sought to clarify matters with the victim". The version of events Hoang Huy Nguyen told Mr Borenstein was that he went to the hotel and made contact with one of the men who assaulted him. He invited the man outside, who then punched him and in immediate retaliation his friends "knifed the two victims to death". 41At the conclusion of the report, Mr Borenstein states "he expressed what I deemed to be genuine guilt and remorse with regards the death of two persons, and denies direct responsibility". I am satisfied on the balance of probabilities that Hoang Huy Nguyen does have reasonable prospects of rehabilitation, notwithstanding his persistence in maintaining that he is not directly responsible for the offences. The report of Mr Borenstein records a comfortable upbringing involving good education and close family relationships. He has no prior history of antisocial traits or psychiatric disturbance. 42Other material tendered at the proceedings on sentence discloses that Hoang Huy Nguyen has undertaken a number of training courses since his arrest and is employed in the prison. He has a favourable reference from the prison chaplain. 43An additional factor to be taken into account is the period Hoang Huy Nguyen will spend in custody by dint of the lengthy sentences that must be imposed. It seems likely that many years of reflection and the ordinary process of maturing will be conducive to rehabilitation. On balance, I am satisfied that he has reasonable prospects of rehabilitation. 44The Crown acknowledged that the hearing was shortened as a result of concessions made by Hoang Huy Nguyen at his trial which reduced the number of witnesses required to give evidence in the trial and enabled a deal of technical evidence to be adduced in short-hand fashion. That is a factor which, whilst not demonstrating contrition or falling strictly within the wording of section 22A of the Crimes (Sentencing Procedure) Act , 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]. 45As to the offender Minh Duc Luong, I take into account the fact that he pleaded guilty on the first day of the trial. I propose to discount his sentence by about 10% to reflect the utilitarian value of the pleas in accordance with the decision of the Court of Criminal Appeal in R v Thomson; R v Houlton [2000] NSWCCA 309 at per Spigelman CJ. I am also aware that Minh Duc Luong made admissions to police upon his arrest. Although the ERISP was not tendered in the proceedings on sentence, I suspect that was due to oversight. I am satisfied that it is appropriate to take those admissions into account in his favour as indicating some acceptance of responsibility for the offences. 46I also take into account the fact that Minh Duc Luong was only 18 at the time of the offences. That is a significant factor in assessing his culpability for the offences. It is common wisdom that men of that age are still maturing and are less able to exercise good judgment than some older men. I was invited to infer that Minh Duc Luong committed the offences at the behest of another but I do not think the evidence supports such a finding, and I am not sure that it would be a mitigating factor in any event. 47I also take into account the fact that Minh Duc Luong has no prior convictions. As to his prospects of rehabilitation, a report was tendered on his behalf by a psychologist, Anna Robilliard, but unfortunately he did not return for the second part of the assessment as scheduled. Regrettably, the result is that the report does little more than to record matters of family background. I have found it of little assistance except on the issue of the added hardship that Minh Duc Luong will probably encounter by reason of his Vietnamese heritage and the fact that he will be serving his term of imprisonment in an English speaking country with little support from family and friends. Hoang Huy Nguyen will, perhaps to a lesser extent, suffer similar hardship. 48Finally, it is necessary to consider questions of concurrency and accumulation and the principle of totality. It was submitted on behalf of the offenders that the fact that the offences were all constituted by the same course of conduct would point in favour of there being significant concurrency of the individual sentences. The Crown acknowledged that a degree of concurrency was appropriate but maintained that there should be some accumulation to take due account of the fact that two lives were taken. 49In determining the degree of accumulation, I have had regard to the fact that the severity of a sentence is not in linear proportion to its length. Although the offences are extremely serious, and warrant lengthy terms of imprisonment, the court should not impose sentences that in aggregate will be crushing. Nonetheless, there must be some accumulation to reflect separate punishment for each murder. In the case of Hoang Huy Nguyen, I propose to accumulate the sentences by four and a half years. In the case of Minh Duc Luong, I propose to accumulate the sentences by four years. 50The fact that there is to be some accumulation in the sentences is a circumstance that warrants some departure from the requirement under section 44 of the Crimes (Sentencing Procedure) Act that ordinarily the balance of term should not exceed one third of the non-parole period. The effect of the adjustment I propose will be that the aggregate sentences will reflect the statutory ratio. Otherwise, I do not think there is any warrant for reducing the non-parole periods so as to provide for an extended term on parole. The period of supervision that will be allowed by the sentences that must be imposed will be adequate for that purpose. 51I propose to set non-parole periods that are shorter than the standard non-parole period. As to Hoang Huy Nguyen, my reasons for reducing the period are my findings as to the fearful state of mind in which he planned the offences, his prospects of rehabilitation, the impact of accumulation of the two sentences and the hardship of serving a sentence in an English speaking country. As to Minh Duc Luong, my reasons for reducing the period are his pleas of guilty, his youth, the impact of accumulation of the two sentences and the hardship of serving a sentence in an English speaking country. 52The effect of the sentences I am about to impose is that Hoang Huy Nguyen will spend a total of twenty-two and a half years in prison without parole. The total term of his sentences will be thirty years. 53Minh Duc Luong will spend a total of twenty-one years in prison without parole. The total term of his sentences will be twenty-eight years. 54Hoang Huy Nguyen, please stand. 55For the murder of Brian Bao Dung Huynh, I sentence you to a term of imprisonment with a non parole period of eighteen years commencing on 13 October 2009 and expiring on 12 October 2027 and a balance of term of seven and a half years expiring on 12 April 2035. 56For the murder of Phuc Uy Nguyen, I sentence you to a term of imprisonment with a non parole period of eighteen years commencing on 13 April 2014 and expiring on 12 April 2032 and a balance of term of seven and a half years expiring on 12 October 2039. The earliest date on which you will be eligible to be released on parole is 12 April 2032. 57Minh Duc Luong, please stand. 58For the murder of Brian Bao Dung Huynh , I sentence you to a term of imprisonment with a non parole period of seventeen years commencing on 13 October 2009 and expiring on 12 October 2026 and a balance of term of seven years expiring on 12 October 2033. 59For the murder of Phuc Uy Nguyen, I sentence you to a term of imprisonment with a non parole period of seventeen years commencing on 13 October 2013 and expiring on 12 October 2030 and a balance of term of seven years expiring on 12 October 2037. The earliest date on which you will be eligible to be released on parole is 12 October 2030.