R v Kevin Ly; R v Dung Thi Ngoc Ngo

Supreme Court of NSW|2019-03-01|Before: Bellew J

INTRODUCTION

On 22 October 2018 Kevin Ly ("Ly") and Thi Ngoc Ngo ("Ngo") each pleaded not guilty to: 1. the murder, on 10 April 2013, of Son Thanh Nguyen; and 2. the murder, on the same day, of Thi Kim Lien Do.
Ly and Ngo were found guilty by a jury, of each count, on 23 November 2018.

VICTIM IMPACT STATEMENTS

The Crown tendered two victim impact statements, the first of which was from Phung Kim Thi Nguyen, the sister of Mr Nguyen. Ms Nguyen spoke of the love and affection she and the other members of her family felt for her late brother. It is evident that Ms Nguyen and her family have found it difficult to come to terms with Mr Nguyen's death. It is also evident that the trial of the offenders created additional stress for the members of the family, including in particular Mr Nguyen's young sons. Ms Nguyen described the circumstances surrounding her brother's death as a "recurring nightmare".

Preliminary observations

For the purposes of determining the appropriate sentence, I am required to make findings as to the facts of the offending. Any findings I make must be consistent with the verdicts of the jury. [1]
The Crown case at trial was that the two offenders were parties to a joint criminal enterprise to murder Mr Nguyen, and that such joint criminal enterprise extended to the murder of Ms Do. On the Crown case, the joint criminal enterprise arose from the offenders' desire for retribution for Mr Nguyen's suspected theft of a quantity of drugs from a laboratory which was operating from premises at 26 Beckenham Street, Canley Vale ("the premises"). It is evident that the jury accepted that the joint criminal enterprise alleged by the Crown had been formed, that each of Ly and Ngo were parties to it, and that each of Mr Nguyen and Ms Do were murdered pursuant to it.
Beyond that however, my task of determining the facts of the offending becomes, to say the least, difficult. That difficulty stems, at least in part, from the fact that the Crown case was based largely upon the evidence of two witnesses, to whom I shall refer as Witness 3 and Witness 4, each of whom was the recipient of an undertaking that any evidence they gave would not be used against them. [2] Having observed each of them carefully during the significant periods of time over which they gave evidence, I formed the view that each of them was, in some respects, unreliable. There were occasions on which one or other of them gave evidence which materially contradicted statements they had made when interviewed by the police. On other occasions, the evidence of one contradicted the other. On other occasions, the evidence of one or the other was not consistent with other objective evidence adduced by the Crown.
Witness 3 gave evidence (inter alia) of the circumstances in which Mr Nguyen and Ms Do came to be at the premises on the day on which they were murdered. The Crown submitted that on the basis of that evidence, "the jury must have accepted beyond reasonable doubt the main thrust of (Witness 3's) evidence, at least as to the key activities on 9 and 10 April 2013". As I have discussed further below, Witness 3 gave the only direct evidence of the circumstances in which Mr Nguyen was murdered on 10 April. I agree with the Crown's submission that the jury must have accepted that evidence in large measure. However, I do not accept the submission that the jury must have accepted the evidence of Witness 3 in relation to the events of 9 April, or his evidence in the relation to the broader question of how Mr Nguyen and Ms Do came to be at the premises on 10 April. Given the way in which the Crown put its case, acceptance of the evidence of Witness 3 in relation to those issues was not essential to the jury's verdict. The evidence of Witness 3 in relation to at least some of those issues was unsatisfactory in a number of respects, not the least of which was that it was inconsistent with other evidence in the case, including telephone records. In these circumstances, I am left in a position where I am unable to make any determination at all as to how it was that Mr Nguyen and Ms Do came to be at the premises on 10 April 2013 and, more specifically, who arranged for them to be there.

The facts of the offending

As previously noted, Witness 3 gave direct evidence of the circumstances in which Mr Nguyen was murdered. He also gave evidence of Ms Do's presence at the premises, from which the jury was invited to (and obviously did) conclude that she too was murdered pursuant to the joint criminal enterprise. It is evident from the jury's verdicts that they accepted the essence of the evidence of Witness 3 in all of these respects. With those matters in mind, I find the facts of the offending to be as follows.
In the period leading up to the offending, a drug laboratory operated from the garage at the premises. The manufacture of drugs within that laboratory was overseen by Mr Nguyen. Ngo had some interest in the operation of the laboratory, the precise nature and extent of which I am unable to determine. There is no evidence of any interest held by Ly.
On or about 9 April 2013 it came to the attention of Ngo that a quantity of drugs which had been manufactured within the laboratory had gone missing. Ngo suspected that Mr Nguyen was responsible for that theft.
Mr Nguyen and Ms Do, who were in a relationship at the time, arrived at the premises on 10 April 2013. Ngo was also there at that time, as was Ly.
Following their arrival, Mr Nguyen went to the garage and Ms Do, having put some shopping items in the kitchen, went separately into one of the bedrooms. [3] Shortly afterwards a number of men, one of whom was Ly, "burst" (to use Witness 3's words) out of one of the bedrooms and went to the garage [4] . I am not able to determine how many men came out of the bedroom and went to the garage. The evidence of Witness 3 was inconsistent as to whether there were 4 or 5.
Witness 3 remained inside the premises. [5] Mr Nguyen was then dragged into the house by the men who had emerged from the bedroom. At that time his hands and legs were bound, and there was blood on his face. [6] Having been dragged into the house, Mr Nguyen was assaulted. [7]
Witness 3 then decided to check on the welfare of Ms Do. He went into the bedroom and saw her on the bed with her hands and legs bound [8] and with an injury to her head. [9] She was screaming: [10] "Don't kill me, I do not know anything. If you know anything, tell them".
Witness 3 was then pushed out of the bedroom by a male who was in there with Ms Do. He returned to the lounge room where he saw Mr Nguyen, whom he described as having a lot of blood around him. [11]
Ngo then said to Mr Nguyen: [12] "Give it back. Do you want to give it back or not?"
Mr Nguyen tried to respond, but was unable to do so. [13]
Ngo's exhortation to Mr Nguyen to "give it back" was obviously a reference to giving back something of value. I am satisfied that the "something of value" in the present case was the quantity of drugs which had gone missing from the laboratory, and which Ngo suspected had been stolen by Mr Nguyen.
Importantly, Witness 3 gave evidence that he then observed Ngo pass what he described as "some sort of a cardboard box" to one of the men who were present, and who was in possession of a sword. [14] He described the box as between 9 and 12 inches in length, and 5 inches in depth [15] , with a "picture of some small animal or possibly some design". [16]
According to Witness 3, when Ngo passed the box over, she said to Ly: "Do it". [17]
Witness 3 said that the man to whom the box had been passed opened it up, at which time Witness 3 said he saw that it contained "a stack of $50.00 notes". [18]
The description of the box containing the money which was given by Witness 3 in evidence was at odds with the description he had given to the police when he made a statement. When cross-examined, he agreed [19] that he had told the police that what had been handed over was not a cardboard box at all, but a grey coloured hard plastic case, big enough to hold what he described as "a portable gas bottle". He also agreed [20] that he had told police that it was 50cm long, 40cm wide, and 10 to 15cm deep.
The evidence given by Witness 3 in this regard is of some importance. On the basis of such evidence, the Crown submitted that I should categorise the offending as amounting to a so-called "contract killing". It was the Crown's submission that in those circumstances, I should impose a sentence of life imprisonment upon each of the offenders.
In order to accept the Crown's submission, it is necessary for me to be satisfied, beyond reasonable doubt, that money was handed over by Ngo to another person in the way in which Witness 3 described. [21] I have already made mention of the fact that the evidence of Witness 3 was unreliable in some respects. The fact is that the description given by Witness 3 in evidence before the jury of the size and nature of the box that held the money was diametrically opposed to what he told the police. In circumstances where such evidence is fundamental to the reliability of Witness 3's observations, I am not satisfied that any box, of any description, containing money was handed over by Ngo to anyone at all.
The evidence of Witness 3 in respect of this issue was inextricably linked with his assertion that, upon handing it over, Ngo commanded Ly to kill Mr Nguyen by ordering him to "do it". In all of the circumstances, I am not satisfied that those words were said by Ngo.
However, consistent with the verdict of the jury, I accept the evidence of Witness 3 that once Mr Nguyen was brought into the house from the garage, Ly wrapped a rope around his neck and, with the assistance of two unidentified males, choked Mr Nguyen to death. [22] I am satisfied that this occurred pursuant to the joint criminal enterprise to which Ngo and Ly were parties.
There was no direct evidence before the jury which established the precise circumstances in which Ms Do was killed. Witness 3 gave evidence that having walked outside for a period of time, he came back into the lounge room of the premises and saw "two big bags" which he described as being in the nature of garbage bags. [23] He gave evidence that he could not see what was inside either bag but that he "guessed" that one bag contained the body of Mr Nguyen, and the other the body of Ms Do. Witness 3 gave evidence that with the help of another person he carried the body of Ms Do to a vehicle and later disposed of it in bushland. It was found in a significantly decomposed state some months later. Mr Nguyen's body was dumped on the side of the roadway, and was found a short time later.
The evidence does not permit me to make any findings as to the manner in which Ms Do was killed. However, it is evident that the jury accepted the Crown case that Ms Do was killed pursuant to the joint criminal enterprise which had been formed between (at least) Ngo and Ly. There is no evidence that Ms Do played any part in the manufacture of any drugs. Indeed, her pleas for help in the bedroom, which I am satisfied were made, would suggest that she knew nothing at all about such manufacture. She was at the premises on that day solely because she was in Mr Nguyen's company. The only available conclusion is that she was murdered because both Ngo and Ly were fearful that if she remained alive, she would be in a position to alert the authorities to the circumstances surrounding Mr Nguyen's death.
Further, the evidence does not permit me to make any determination of precisely when the joint criminal enterprise was formed. The Crown accepted that on the whole of the evidence, any pre-planning, which is an aggravating factor, [24] was to be measured in hours and not days. The offending was further aggravated by the fact that it was committed in company. [25]
In the case of Ly, the offending was also aggravated [26] by the fact that he was serving a suspended sentence for an offence of demanding money with menaces which had been imposed only a matter of days earlier. The Crown withdrew an initial submission that the offending in Ngo's case was aggravated by the fact that she was on parole at the time. [27]

THE OBJECTIVE SERIOUSNESS OF THE OFFENDING

The inherent seriousness of any act which takes a human life cannot be understated. The fact that the joint criminal enterprise in this case resulted in the deaths of two people obviously renders the offending more heinous than would be the case if there were only one victim.
For the reasons I have previously set out, I do not accept the Crown's submission that the circumstances of the offending should be categorised as a so-called "contract killing". The Crown made it clear that if such a finding were not made, it would not press the submission that a life sentence was appropriate in either case. However, even though the offending cannot be categorised in that way, it remains the case that it was above the mid-range of objective seriousness.
The brutal and callous nature of the manner in which Mr Nguyen was choked to death is evident from the post-mortem examination, which revealed evidence of bilateral bruising and haemorrhaging, along with a fracture of the superior horn, all of which were brought about by mechanical trauma applied to the neck. [28] There was further evidence that Mr Nguyen had his hands tied behind his back with black cable ties, had visible strangulation marks on his neck, and had traces of blood coming from his nose [29] , all of which is entirely consistent with the description given by Witness 3 of what occurred. The presence of further blunt force trauma injuries on the back of the torso [30] and face [31] is also consistent with the evidence of Witness 3.
The state of decomposition of Ms Do's body at the time that it was found was such that the precise manner in which she was murdered cannot be determined. Smothering, asphyxiation, and choking were all considered to be possibilities. [32] Witness 3 gave evidence that when he saw Ms Do in the bedroom, her hands and legs were bound and she had an injury to her head. Whatever the precise mechanism of her death was, the overwhelming inference is that it was also brutal. Moreover, I am satisfied that Ms Do's murder is explicable only on the basis to which I previously referred, namely a desire to ensure, as far as possible, that there was no witness to Mr Nguyen's killing. Killing a person for the purposes of, in effect, removing them as a witness to the killing of another necessarily increases the seriousness of the offending.
Ly was the person responsible for choking Mr Nguyen. The person(s) responsible for the act(s) causing the death of Ms Do have not been identified. However, both were murdered pursuant to the joint criminal enterprise which had been formed. The person who actually physically performs a criminal act pursuant to a joint criminal enterprise may not necessarily be the most culpable of participants. Whether that is so will depend upon all of the circumstances of the case [33] .
The Crown submitted that I should find that Ngo was the "instigator and financier" of the joint criminal enterprise in the present case, and someone who was of greater maturity than Ly [34] . At the same time, the Crown acknowledged what was said to be a countervailing factor, namely that Ly appeared "to have been a stranger who chose to kill both victims purely for financial gain". [35] The Crown's submissions highlight the difficulty in differentiating between the two offenders for the purposes of assessing their relative culpability. There is obviously an inference that Ngo had some interest in the laboratory at the premises, as indicated by her exhortation to Mr Nguyen to "give it back". However, for the reasons I have already expressed, the evidence does not satisfy me that she was the financier. Equally, the evidence does not satisfy me that Ly was motivated by financial gain. Although there was a difference in age, Ngo being older than Ly, that difference did not, on the evidence, bear upon the offending.
I am unable to draw any distinction between the role and culpability of the respective offenders. In all of the circumstances, they are to be sentenced on the basis that they were parties to a joint criminal enterprise to murder two people.

The offender Ly

Tendered without objection in the case for Ly on sentence was a report of Tim Watson-Munro, Consultant Forensic Psychologist, dated 3 April 2013. Self-evidently, that report was prepared for the purposes of unrelated proceedings involving charges of demanding money with menaces for which Ly was sentenced only 5 days prior to the present offending. The following background drawn from that report is uncontroversial.
Ly is now 27 years of age. He is of Vietnamese background. He has little or no relationship with his natural father. His stepfather is said to have been a member of a criminal gang. As a consequence of that, Ly was exposed to considerable trauma and upheaval in his formative years, although it is said that he retains a close relationship with his mother. He left school in Year 8, having had what could only be described as a fragmented education which saw him attend numerous schools over a short period. He has had little paid employment since leaving school and he has no children.
At the time of assessing him in 2013, Mr Watson-Munro reported that Ly presented as "a co-operative, though clearly depressed and anxious man, who had had a highly complex developmental history". Mr Watson-Munro recommended various forms of treatment which, he concluded, would "maintain and galvanise the new direction in life which he had established". Clearly, any new direction in life which the offender Ly may have established at that time was short-lived. Having been given the benefit of a suspended sentence on 5 April 2013 for the offences in respect of which Ms Watson-Munro provided his report, the present offending occurred 5 days later.
Counsel for Ly submitted that although the report of Mr Watson-Munro was completed in respect of separate and unrelated sentence proceedings some time ago, it had been obtained at a time which was proximate to the commission of the present offences, and provided some useful background and insight into the offender. Beyond the matters of background that I have outlined, the report of Mr Watson-Munro is of no weight at all for the purposes of determining an appropriate sentence. No other documentary material was tendered in Ly's case on sentence.
Ly has a criminal record which includes convictions for: 1. taking and/or detaining in company with intent to gain an advantage in 2008, for which he was sentenced to term of imprisonment; 2. robbery in company and aggravated break and enter with intent to commit a serious indictable offence in company in 2008, for which he was also sentenced to a term of imprisonment; and 3. demanding property with menaces for which (as previously noted) he was given the benefit of a suspended sentence in 2013.
Counsel made it clear that Ly maintained his innocence and that in these circumstances no issues of contrition or remorse were required to be considered. Counsel stressed that any sentence to be imposed was not to be increased by reason of the fact that Ly chose to plead not guilty. That, of course, is self-evident.
Counsel further submitted that I should make a finding of special circumstances in Ly's favour based upon the fact that: 1. he was aged 21 at the time of the offending; 2. this is the first occasion on which he has found himself in full-time adult custody; 3. he had difficult upbringing; and 4. there were other issues identified in the report of Mr Watson-Munro which warranted such a finding.
In my view, the matters relied upon by counsel do not justify a finding of special circumstances. The sentence that I propose to impose will necessarily incorporate a lengthy non-parole period which will give Ly ample time and opportunity to re-integrate into the community.
Counsel for Ly did not submit that there were any mitigating factors which might be taken into account under s 21A(3) of the Sentencing Act. I accept that to be the case. In particular, I am unable to make any determination of Ly's prospects of rehabilitation.

The offender Ngo

No evidence was adduced in the case for Ngo on sentence. Counsel for Ngo specifically accepted the Crown's submissions [36] as to her background, which may be summarised as follows.
Ngo was 37 years old at the time of the offending. She is now 44. She has two young children. Her criminal history includes convictions for: 1. supplying a prohibited drug in 2009, for which she was sentenced to a term of imprisonment; and 2. supplying a prohibited drug in 2014 for which she was also sentenced to a term of imprisonment.
There is no evidence before the Court of her work history, no evidence of remorse, and no evidence which enables me to make any finding as to her prospects of rehabilitation.
None of the mitigating factors in s 21A(3) of the Sentencing Act are applicable to Ngo. No submission was made that I should make a finding of special circumstances in her case.

PRE-SENTENCE CUSTODY

Ngo has been in custody solely in respect of the present matters since 22 September 2016. She was sentenced on 17 November 2015 at the Parramatta District Court to a term of imprisonment for 4 years, commencing 3 July 2014 and concluding on 2 July 2018, with a non-parole period of 3 years concluding on 2 July 2017. The offence for which that sentence was imposed occurred after the commission of the present offences. In these circumstances, the latest date on which Ngo's sentence could commence would be 2 July 2017. The earliest date would be 22 September 2016. In the circumstances, I propose to backdate any sentence to commence on 22 September 2016.
Ly has been in custody solely in relation to these offences since 19 September 2016. There is no reason why any sentence should not be backdated to that date.
All parties submitted that a single aggregate sentence was appropriate and in imposing such a sentence in each case I have had regard to principles of totality. As I have previously noted, Ly's offending was aggravated by the fact that he was serving a suspended sentence of imprisonment at the time. That is the only factor which distinguishes the two offenders. In my view, given the seriousness of the offending, it is a factor which is insignificant. The sentence should be the same in each case.

ORDERS

In respect of the offender Dung Thi Ngoc Ngo: 1. For the offence of the murder of Son Thanh Nguyen on 10 April 2013 the offender is convicted. 2. For the offence of the murder of Thi Kim Lien Do on 10 April 2013 the offender is convicted. 3. The indicative sentence for the offence of the murder of Son Thanh Nguyen is 28 years imprisonment. 4. The indicative sentence for the offence of the murder of Thi Kim Lien Do is 28 years imprisonment. 5. I impose an aggregate sentence of 40 years imprisonment commencing on 22 September 2016 and expiring on 21 September 2056, with a non-parole period of 30 years imprisonment commencing on 22 September 2016 and expiring on 21 September 2046. 6. The offender will be eligible for parole on 22 September 2046 and her sentence will expire on 21 September 2056.
In respect of the offender Kevin Ly: 1. For the offence of the murder of Son Thanh Nguyen on 10 April 2013 the offender is convicted. 2. For the offence of the murder of Thi Kim Lien Do on 10 April 2013 the offender is convicted. 3. The indicative sentence for the offence of the murder of Son Thanh Nguyen is 28 years imprisonment. 4. The indicative sentence for the offence of the murder of Thi Kim Lien Do is 28 years imprisonment. 5. I impose an aggregate sentence of 40 years imprisonment commencing on 19 September 2016 and expiring on 18 September 2056, with a non-parole period of 30 years imprisonment commencing on 19 September 2016 and expiring on 18 September 2046. 6. The offender will be eligible for parole on 19 September 2046 and his sentence will expire on 18 September 2056.

Endnotes

R v Isaacs (1997) 41 NSWLR 374.
MFI 1 (Witness 3) and MFI 2 (Witness 4).
T300.10-T300.48.
T301.29-T302.33.
T304.23-T304.46.
T305.10-T305.30.
T306.24-T306.27.
T307.4-T307.26.
T308.10-T308.12.
T308.25-T308.33.
T312.28-T313.
T313.31.
T313.48-T313.41.
T313.43-T314.2.
T315.13; T316.24.
T316.8-T316.9.
T316.36-T316.38.
T316.45-T316.47.
T509.6-T509.20.
T509.30-T509.32.
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54.
T328.35-328.37; T321.27-T321.44.
T328.16-T328.19.
Sentencing Act s 21A(2)(n).
Sentencing Act s 21A(2)(e).
Sentencing Act s 21A(2)(j).
T10.32-10.34.
T149.49-T150.30.
T149.4-T149.6.
T151.36-T151.37.
T152.24-T152.25.
T154.9-T154.22.
GAS v R (2004) 217 CLR 198; [2004] HCA 22.
Written submissions at [15].
Written submissions at [61].
Commencing at para.63. 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: 06 May 2019

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