R v Lam [2005] VSC 495

General

Cuong Quoc Lam, Hung Tu Van, Linh Van Nguyen (Johnny), Thanh Nha Nguyen (David), Long Thanh Tran, Hong Bui, Hoang Tran

1 On 19 September 2005 following a trial which commenced on 24 January 2005 each of you were found guilty of the murder of James Huynh. Cuong Lam and Hung Van you were also guilty of murdering Viet Huynh and Nam Huynh on 8 July 2002.

Groups of friends-not gangs

2 Some reporting of the trial wrongly suggested that the seven of you were members of a gang and that the deceased were members of another gang. There was no evidence to suggest that was so. Cuong Lam and Hung Van (together with Tuan Tran), you were close friends who regularly socialised together. You were also friendly with Johnny Nguyen and David Nguyen, who were also friends. Long Tran, Hong Bui and Hoang Tran, you were friends. Each of you and your group of friends would regularly socialise together. There was a considerable body of evidence that your two groups of friends knew or were acquainted with each other. James Huynh and John Huynh were brothers and together with their cousins Viet and Nam Huynh and other friends would often socialise together. There was nothing sinister in the association of any of these groups.

3 The question of who brought the swords and machetes to the nightclub was an unresolved issue in the trial. I am unable to make a finding as to the individuals who brought the swords to the Salt Nightclub. The investigators recovered none of these weapons. They were brought in the car or cars of one or more of you or your friends. At least one counsel suggested "culture" may explain the practice of carrying weapons in cars. There is no sufficient basis upon which I could conclude that those who had them in their cars had brought them to the Salt Nightclub with the intention that they would be used that night.

4 The carriage and possession of lethal weapons in motor cars in public places is conduct which is unlawful. Their production for any aggressive purpose should not be countenanced by anyone. To arm oneself in the course of confrontation between groups of persons is calculated to lead to extreme violence.

5 It should not be overlooked in the context of this case that most of you were part of a group of young men of good character who commenced the evening enjoying social activity. When you were faced with the prospect of confrontation and likely violence each of you made a choice. You declined to withdraw from any possible involvement. Then, by your presence and conduct, whether fuelled by anger and a desire for revenge, alcohol, a misguided sense of loyalty or peer group pressure, you encouraged the conduct of others. When lethal weapons were produced you remained.

6 Where there is a confrontation between groups of young men, it must be understood that those who cause the confrontation to escalate to one of extreme violence face the prospect of substantial terms of imprisonment. Those who use weapons to resort to extreme violence and those who choose to remain providing encouragement when it is apparent that extreme violence will ensue are all responsible and can expect lengthy goal sentences for the consequences of such behaviour.

7 The injuries inflicted on James Huynh were horrific. According to Professor Ranson the deceased sustained in excess of 30 incision wounds. Each of you was, in law, responsible for some of those injuries which contributed to his death.

Youthful Offenders and very serious crime

8 On the plea on each of your behalves, substantial reliance was placed upon your youth. It is universally accepted within common law countries that in the case of a youthful offender reformation remains an important consideration. Courts have recognised that a youthful offender is likely to be exposed to corrupting influences during a period of imprisonment which may entrench criminal ways which would defeat the very purpose for which punishment is imposed. A primary objective of the criminal justice system is to achieve crime prevention to protect the public. The rehabilitation of an offender should not be seen as a consideration inimical to that objective. Crime prevention to protect the public and the rehabilitation of the offender are interlinked objectives. In sentencing there is thus a broad public interest in taking into account the youth of the offender. Where the offence which has been committed is of a very serious nature that factor may have to yield to other sentencing considerations such as general deterrence. In such cases punishment, general deterrence and other sentencing objectives will assume a more important role and the rehabilitation of a youthful offender less significance.[1]

Fixing a non-parole period

9 Although the fixing of a non-parole period confers a benefit upon each of you, the minimum term which I must fix in each of your cases is one that all of the circumstances of the offence require that you should serve without the opportunity of parole. All of the considerations relevant to sentencing including punishment, deterrence, your good character, your relative youthfulness, your extended family of support and your prospects of rehabilitation have been taken into account in fixing both the head sentence and the minimum period which you should be required to serve. It was submitted that these considerations should result in some reduction in the head sentence that I impose and in a reduction in the minimum sentence. At least two of your counsel suggested specific minimum terms which I should impose and which in each case excited a response from the Crown that such minimum sentences would be manifestly inadequate. The time that I should order that each of you spends in prison must be proportionate to the gravity of your crime and must satisfy the punitive, deterrent, retributive and rehabilitative aspects of punishment.

False accounts given to investigators and in pre-sentence interviews

10 Each of you who gave statements to police gave a demonstrably false account. Most of you maintained your false accounts of the events of the night in your interviews for a pre-sentence report. The prosecution has submitted that your continued denial of your role or responsibility in the commission of the offence for which you had been convicted was a relevant consideration in relation to your prospects for rehabilitation.

11 Contrition after the commission of an offence is a mitigating factor which will normally lead to some reduction in the sentence which would otherwise be imposed. Expressions of remorse may also be relevant to the offender's prospect for rehabilitation.[2] Thus the Crown submits in the case of five of you that an absence of remorse also bears upon the prosects of rehabilitation. Where an offender demonstrates an unwillingness to accept responsibility for their action a Court may take such matters into account for the purpose of sentence.[3] But an offender's continued denial that he committed the offence, whilst demonstrating an absence of remorse, will not usually mean that there are poor prospects of rehabilitation. One reason why that is so is because repentance may be present even when an accused has chosen to contest the charges made against him.[4] Another may be that that an offender, following a conviction and prior to undergoing a pre-sentence assessment may be advised that it is not in his interests to make any admissions pending an appeal and a possible retrial. I do not regard the false accounts given by any of you during the pre-sentence assessment as affecting my determination of your prospects of rehabilitation.

Approach to disputed facts.

12 Where the prosecution seeks to rely upon a fact adverse to one of you which was not necessarily a fact upon which the jury verdict was based, I have not acted upon it unless I was satisfied about it beyond reasonable doubt.[5] Before I can take into account facts in your favour which mitigate the circumstances of the offence, those facts must be established on the balance of probabilities. The absence of persuasion about a fact favourable or adverse to you does not become the equivalent of persuasion of the opposite fact.[6] On some issues I have been unable to make any finding because neither party has been able to persuade me to the requisite degree.

Cuong Quoc Lam

(i) Circumstances of offending

13 On the Thursday preceding the commission of these offences you attended at the Odeon Nightclub in the company of your co-accused Hung Van and other friends. There you became involved in an altercation with one or more of the deceased. The Crown case was presented to the jury upon the basis that this altercation provided you and Hung Van with a motive for your conduct on 8 July 2002. The Crown has not suggested on this plea that I should take the preceding events into account as an aggravating circumstance and I do not do so.

14 On the evening of 8 July 2002, in the company of Hung Van and Tuan Tran you travelled to the Salt Nightclub arriving there in the early hours of the morning. Whilst in your company Hung Van was subjected to an unprovoked assault by all of the deceased and John Huynh the brother of the deceased James Huynh. Hung Van was "bottled" (the striking of a bottle to the forehead) and suffered incision injuries to the forehead and the top of his head some of which required subsequent stitching. You went to his aid and a number of your co-accused were also caught up in the ensuing scuffle. The Huynhs were ejected from the Salt Nightclub via the Claremont Street exit whilst you, and some of your co-offenders including Hung Van, were taken out of the Salt Nightclub via the front entrance into Daly Street.

15 It was not disputed on your plea that the jury must have been satisfied that you and Hung Van and Tuan Tran armed yourselves with Samurai swords and put on white gloves. You gave a false account as to how you came to be armed and falsely denied that you wore gloves.

16 There was a dispute as to whether there was sufficient evidence to enable me to conclude beyond reasonable doubt that you had brought the weapons and gloves with you in your car with the intention that you would use them on this night if you met the Huynhs.

17 Your counsel suggested during the course of the plea that I should accept that it was the "culture" of some young Vietnamese men to carry such weapons in their cars and that I should not infer that anyone had brought them to the Salt Nightclub for the purpose of assaulting the Huynhs. The prosecution submitted that from the evidence that you moved your car from the vicinity of the entrance to the nightclub and parked it in the vicinity of the Legends Pool Hall I should infer that you returned to the entrance to the nightclub with the swords and gloves. The prosecution had not invited the jury to draw this particular inference. The evidence does not demonstrate from which of a number of possible sources you and Hung Van and Tuan Tran may have obtained the Samurai swords. You are not to be sentenced on the basis that you brought the weapons to the nightclub.

18 Next, the proposition was challenged on your plea that the jury must have accepted the Crown case that you and Hung Van came to an agreement or understanding in Daly Street that you would assault the Huynhs with Samurai swords with the requisite intention to be guilty of murder. The evidence of your conduct and that of Hung Van and Tuan Tran in Daly Street constituted a compelling basis for the conclusion that you and Hung Van reached such an understanding before the fight in Daly Street broke out.

19 When the Huynhs came into Daly Street the fight broke out. The deceased James Huynh, armed with a bottle, approached Hung Van who was carrying a Samurai sword. Hung Van called out loudly "it's them, it's them" and you, Tuan Tran, some of the other accused and other persons who may have also been armed ran towards Hung Van and the Huynhs. James Huynh, moved towards Hung Van and may have struck him with the bottle. Hung Van was swinging his sword wildly and inflicted a serious injury to James Huynh's left arm or wrist causing it to bleed profusely. The deceased's group then turned and fled from Daly Street into Chapel Street. You, Hung Van and Tuan Tran in the company of others, gave chase. Carrying your sword, you chased the deceased some 500 metres to the intersection of Chapel Street and Alexandra Avenue where the deceased, James Huynh fell to the ground weakened by his loss of blood. James Huynh had left a trail of blood on the footpath and road. Whilst lying on the ground near the bus stop, James Huynh was the subject of a brutal attack receiving multiple injuries to the head, face, back, arms, abdomen and legs as a consequence of blows struck with Samurai swords or similar implements.

20 On your plea the prosecution maintained that the jury was satisfied that you inflicted multiple injuries upon James Huynh which were the cause of his death. It had been the Crown case that you either inflicted these injuries upon James Huynh or alternatively that you were present acting in concert with or aiding and abetting Hung Van and/or David Nguyen when they inflicted fatal injuries upon James Huynh. On the plea your counsel submitted that the verdict was consistent with the jury having found that you were only aiding and abetting Hung Van and/or David Nguyen and that you did not inflict any injuries yourself. Plainly the jury's finding of your guilt is consistent with any of the alternative ways the Crown put its case. The verdict did not necessarily mean that you had inflicted injuries. Those witnesses who observed the attack upon the deceased James Huynh from some distance could not identify the attackers. The evidence to which the prosecution pointed in the course of its argument on the plea does not enable me to make a finding to that effect upon the evidence admissible in your trial. I am not satisfied beyond reasonable doubt that you inflicted injuries upon the deceased.

21 Mr Grant argued that as the jury's verdict was consistent with a finding that you aided and abetted Hung Tu Van and David Nguyen I should treat your conduct as on a par with the other offenders who were convicted as aiders and abettors, but he did not dispute that the jury accepted that you conducted yourself as the Crown alleged in giving chase in Daly Street and Chapel Street. The jury rejected your account to the police as false. There was a strong body of evidence that you Hung Van and Tuan Tran armed yourselves with swords and put on gloves. It is almost certainly the case that the jury found that you were acting in concert with Hung Van in Daly Street and with Hung Van and/or David Nguyen when injuries which caused James Huynh's death were inflicted. That is the appropriate view of the facts upon which you should be sentenced. I am satisfied that you were present acting in concert when injuries which caused James Huynh's death were inflicted.

22 The prosecution has submitted that I should treat your conduct more seriously than that of any other principal offenders and that you should be viewed as at the "top of the hierarchy" as the person who organised the other offenders and who was in control. The prosecution sought to elevate your level of responsibility on two bases. First, that you had brought the weapons and gloves in your car and were responsible for their distribution. As I have said, that claim is not made out. Second, that you made the telephone call seeking assistance from Johnny Nguyen and David Nguyen who were then at the Commercial Lounge. The Crown says that following the fight inside the Salt Nightclub you arranged for Johnny Nguyen and David Nguyen to attend at the Salt Nightclub for the purpose of participating in the attack on the Huynhs. The evidence of Quyen Tran, which was the only direct evidence of your knowledge of how Johnny Nguyen and David Nguyen came to attend at the Salt Nightclub, was equivocal. Her evidence was that some days after the event you told her that it was you or a friend who had called friends from the Commercial Lounge to attend at the Salt Nightclub. That evidence did not establish that it was you who had called them. Senior counsel for the prosecution did not suggest that there was other evidence upon which I could conclude that you rather than Tuan Tran or Hung Van were responsible for their attendance. That is not to say that you did not know that they had been called and were aware of their presence by the time you gave chase. The contention that I should view your role as more serious than any of the other offenders cannot be sustained. The prosecution accepted that if the evidence does not warrant either of those conclusions, there is no material distinction to be drawn between you and Hung Van.[7]

23 The jury by its verdict was satisfied that after the attack on James Huynh you then chased Viet and Nam Huynh in an easterly direction across Alexandra Avenue before they jumped into the Yarra River and drowned. At the time that you did so you had the necessary murderous intent.

24 Your counsel abandoned an argument that the jury's verdict on Counts 2 and 3 was consistent with a finding that you did not chase Viet and Nam Huynh to the river but that Hung Van did so and that by your presence at the bus stop you were aiding and abetting him. Mr Grant acknowledged during oral submissions that the jury had been directed that such a verdict was not open.

25 The account of Mark Ung which the jury must have accepted and which I act upon demonstrated that you were involved in the chase of Viet and Nam Huynh. You were observed running towards the river in an easterly direction armed with a sword. Your intention in doing so was to at least inflict really serious injury upon them. By your conduct you instilled in them a well-founded fear of physical harm which led them to jump into the river to their deaths.

26 The prosecution also relied on the evidence that you called your friend Hung Nguyen and arranged for him to attend with his girlfriend, An Tran to collect you from the area of the Salt Nightclub and to take your vehicle away from the area. The prosecutor submitted this made your conduct more culpable because you had enlisted the assistance of persons who were not otherwise involved in the events of that night and you did so to avoid detection. This action does reflect the fact that you were thinking clearly about your conduct and its consequences at the time you called Hung Nguyen, but I do not regard it as a circumstance which should result in the imposition of a heavier sentence.

(ii) Personal Circumstances

27 You were born in Vietnam in 1979. Your father left the family when you were about one year old. You came to Australia in 1981 at the age of two. You came to Australia as a boat person with your mother having first been a refugee in a camp in Malaysia. You were then a little over one year of age. You went to primary school at Albion North and completed your secondary school education at Chisholm Catholic College completing Year 12 in 1997. You gained admission to university and commenced a civil engineering degree at the Victoria University of Technology in 1998. In the year 2000 you decided to transfer to RMIT and commenced a building surveying course. At the end of 2000 you transferred back to Victoria University and continued the same course. At the time you committed these offences you were in your final year of the course.

28 Whilst completing the course you have been gainfully employed as a shop fitter and shop assistant. You were then living at home with your mother and grandmother, a younger brother Hien Lam and a younger sister Michelle. As your counsel described it you were a sort of father figure to the younger children and even at such an early age you were the principal person bringing income into the family.

29 Your former employer Mr Murray gave character evidence. He explained the various jobs that you had performed in his shop and business. You helped him in his business at a time when he was in difficulties and worked for a period without being paid. Mr Murray became friendly with you and your family and after you were arrested for these offences he has continued to visit your mother and younger brother. Mr Murray also testified that you have a very caring family who are very supportive of you.

30 According to the pre-sentence report you also had a part-time job working for a printing material supplier as a toner cartridge technician during your latter years at school and during the period in which you attended at Victoria University prior to your imprisonment. You also became adept at installing intercoolers into car engines and you were able to earn some income from that endeavour. Your industry enabled you to purchase the silver WRX which was the subject of evidence in this trial. Your grandmother, who speaks no English and is in ill-health was dependant upon your assistance in driving her to various appointments. Your mother who speaks little English and is a part-time dressmaker, your younger brother Hien who is now 23 and your sister all benefited from your support.

31 Your girlfriend, who you first met in Year 11 at Chisholm College and with whom you have remained a friend for the last eight years has provided an impressive written reference as to your character. (Exhibit A on plea). It has described you as "loyal, honest, loving, considerate and a supportive individual who has the ability to see and understand things from another person's perspective". It confirmed that you were dedicated to your family, your education and your work and described you as "entirely peace loving". It is evident your conduct in the early hours of the morning of 8 July 2002 was quite out of character with the person that she had come to know so well.

32 On the plea Mr Grant called Ms Anne Hooker who is the Youth Development Officer at the Port Philip Prison who has been in charge of the remanded Young Offenders' Program at the prison for the last seven years. Amongst the aims of the program are the goals of enabling a positive custodial experience by the offender and enhancing the young person's ability to effectively manage his life without re-offending. It appears that you entered the program almost immediately after your arrival and your behaviour throughout your period of incarceration has, according to Ms Hooker, been exemplary. She described you as a model prisoner. Despite the length of time you have been involved in the committal proceedings and then this trial you have successfully completed a number of programs covering a wide range of issues. The certificates of completion of those in-house programs were tendered on the plea.[8] Whilst on remand at Port Philip you were kept with other inmates in the Young Offenders' Program and largely kept separate from other inmates. The objective of the program was to try and keep young offenders away from mainstream prisoners so as to improve the youthful offender's prospects of rehabilitation within the prison setting. Ms Hooker explained that because of the seriousness of the offence with which you have been convicted and the likely length of sentence you will be treated as a maximum security prisoner which would require your incarceration at Barwon Prison.

33 By the time you came to be interviewed by investigating police you were ready to provide them with a carefully crafted account in which you gave a false explanation of how you came to be armed with a sword in Daly Street, falsely denied that you were in the company of Hung Van or Tuan Tran at this time and gave a false account of how you did not chase any of the deceased beyond the area outside the Legends Pool Hall at the corner of Chapel Street and Daly Street. You maintained the same false account when interviewed for the purpose of a pre-sentence psychiatric report. Your counsel accepted that the report should not be viewed as disclosing any remorse on your part for your conduct. I observe in passing that your conduct during the lengthy trial was faultless.

34 Based upon your youth, your work ethic, your conduct in prison, the family network that you have available to you, including the support that you have from your girlfriend and the fact that this is the first time you have come before a Court, I accept the submission made on your behalf that you have very good prospects of rehabilitation. There should be some reduction in the sentence that I would otherwise impose because of your good prospects of rehabilitation and I have taken that into account in determining the appropriate sentence.

Hung Tu Van

(i) Circumstances of offending

35 I now turn to your conduct in relation to the crimes you have committed.

36 You had attended at the Odeon Nightclub on the Thursday night preceding the events at the Salt Nightclub. At that location you and Cuong Lam were involved in a physical altercation with others including John Huynh the brother of the deceased James Huynh. A friend of yours appears to have been the aggressor in that altercation.

37 At the Salt Nightclub while waiting for a drink at the bar you were attacked by the Huynh group, being struck to the head with bottles which caused you injury. After the Huynh group had attacked you inside the nightclub they were ejected as were you, some co-offenders and some of your friends and acquaintances. After being ejected the Huynh group or at least James and John, picked up bottles on their way to the front entrance of the Salt Nightclub.

38 Mr Jackson has quite properly conceded that there are a number of facts upon which the jury verdict is likely to have been based and upon which I should act. You armed yourself with a sword whilst in Daly Street and used that sword to assault James Huynh. You, together with Cuong Lam and other persons, chased the Huynh group out of Daly Street and for some distance north along Chapel Street. You then returned to Daly Street and collected your shoe which you had lost. You then returned to Chapel Street and shortly thereafter you were picked up by Johnny Nguyen and David Nguyen and you were driven to the vicinity of the bus stop where James Huynh lay. At that location you together with David Nguyen and others attacked James Huynh with weapons. At this time you were acting in concert with Cuong Lam who was present. Whilst armed with a sword you then chased John Huynh, Nam Huynh and Viet Huynh to the Yarra River where they jumped in. At that time you were acting in concert with Cuong Lam. You returned to the vicinity of the bus stop, and were driven away but a short time later came back to the area where James Huynh lay. By your admissions on this occasion, although you were not then armed you accompanied David Nguyen who was. Whilst he inflicted further serious injuries upon James Huynh you kicked James Huynh a number of times. You were at that time acting in concert with David Nguyen. Any additional findings concerning Cuong Lam to which I have referred apply equally to you as they are based upon evidence that was admissible in your trial.

39 You consumed some alcohol on this evening but it has not been suggested on your behalf that your consumption of alcohol played any part in the commission of these offences. You were the victim of an attack inside the Salt Nightclub. You received injuries to the forehead and the top of your head as a result of being struck numerous times with bottles. You bled profusely from those injuries. An hour and a half after these events you were observed to be in a shocked and dazed condition which I attribute, at least in part, to the injuries which you had sustained. Whether your ability to make sound judgments was in any other way affected I am unable to say. As the evidence reveals you were angry and keen to extract revenge as a consequence of the attack upon you. The attack on you in the night club provided no justification for any of your subsequent conduct.

40 You were bleeding profusely as you armed yourself in Daly Street. I am satisfied that you and Cuong Lam armed yourself in Daly Street with the expectation that the deceased would eventually appear there and that you would then use the lethal weapons with which you had armed yourselves. It was suggested on your behalf that despite the lack of contemporaneous medical examination I should conclude that your injuries to some extent affected your ability to make rational decisions. I am unable to make any finding to that effect.

(ii) Personal circumstances

41 Hung Van, you are a 29 year old single man of Vietnamese ethnicity. You are the youngest member of your family and have four brothers and four sisters. You live with your elderly parents and a brother in Footscray. Both of your parents are in their 60's and are dependant upon disability support pensions.

42 You were born in Vietnam in Vung Tau near Long Tan in 1976. Your family owned and managed a petrol station. After the conflict in South Vietnam came to an end your family were stripped of the business and your father returned to farm work to support the family. In 1981 two of your older brothers and one of your sisters left in a boat and via Malaysian and Indonesian refugee camps finally came to and were accepted in Australia. In 1989 only you and one sister and your parents were left in Vietnam. The other members of your family who had now settled in Australia were able to sponsor you and in 1989 you arrived in Australia with your parents and sister. You were then 13 years old.

43 On arrival here you spent one year at a language centre and then went to the Maribyrnong High School commencing in Year 7. You continued in your schooling until part way through Year 10. It is evident that your limited knowledge of English limited your capacity for academic achievement and you left school in the middle of Year 10 to begin employment. You were then 17 years of age. You commenced employment with GMH in 1995 and you have remained in their continuous employ until your arrest for these offences in July 2002. You commenced as a machine operator and process worker and you were at the time of your arrest classified as an N31 vehicle builder within the fabrication plant at Holden Engine Operations, Port Melbourne. After you commenced employment you completed a course with the Box Hill Institute of Technical and Further Education and received certificates of competency within your area of work.

44 Your parents are both elderly and speak little or no English. Your mother is in ill health and is quite frail. Nevertheless she attended the trial on a number of occasions and it is evident that you are close to both of your parents. You expressed your concern to Dr Senadipathy in the course of a pre-sentence assessment that you were worried that you were unlikely to see your mother again outside a custodial environment. Your four sisters are married with families of their own and two of your brothers are married with families of their own. All of your siblings live in Melbourne. I am told that none of them have been in any trouble with the police. I accept that you have a large family who has and will continue to support you.

45 Your were in a relationship with a young woman for some seven years prior to your arrest and remand. That woman testified during the course of the trial. As a consequence of your remand that relationship has ended.

46 You suffer from diabetes and you require insulin injections twice daily. As the pre-sentence report indicates you do not have any history of mental illness or drug abuse. You impressed the assessing psychiatrist as a young man who had low self-esteem and were dependent on other young men in your ethnic community.

47 Ms Hooker testified about your role in the Young Offenders' Program since your remand in Port Philip Prison. Although you were 26 at the time of your arrival and were thus ineligible for the program, management concluded that it was appropriate for you to be placed there as the majority of your co-offenders were there. Ms Hooker described you as extremely polite and well-mannered. You have never given management any cause for concern and have demonstrated an excellent work ethic. Despite your difficulties with English you have participated in and successfully completed a significant number of programs covering a wide area of activities. Those certificates of completion were tendered during the course of your plea.

48 You also received a certificate of appreciation for your outstanding work commitment in the "hard yards team". The "hard yards" program is an Australian young achievement small business program which has been operating for youth in your unit for the last six months. It is a program designed to teach young offenders the basics of running and operating a small business. You, in conjunction with some others including some of your co-offenders, made T-shirts and the profits and your wages from your employment in that program have all been given to the Royal Children's Hospital and the Salvation Army. In a short space of time you were required to manufacture a large number of T-shirts and then package them prior to sale. It was at your request that you entered this program. The team has raised over $6,000 for those two charities. You are a willing volunteer for any job and are extremely well thought of by the Correctional staff and Ms Hooker. You are also a cleaner in the management area. You are required to go into their offices which is an extremely trusted position. You have been described as a model prisoner and you conducted yourself in that fashion during the course of the lengthy trial.

49 It is a matter of some regret that all of the benefits of this program will no longer be available to you after you have been sentenced. It is expected that you will be relocated to the maximum security prison at Barwon because of the serious nature of the offences and the length of your sentence.

50 In December 1994 you appeared at the Williamstown Magistrates' Court in relation to a number of offences and the disposition of those proceedings was that they were adjourned for 12 months. You were then some 18 years of age. It has not been suggested by the Crown that this is a matter upon which I should attach any weight and I do not intend to do so.

Linh Van Nguyen (Johnny)

(i) Circumstances of offending

51 You were convicted of one count of murder on the basis that you aided and abetted Cuong Lam, Hung Van and David Nguyen in relation to the murder of James Huynh. The evidence established that you were a friend of Hung Van, Cuong Lam, David Nguyen and Tuan Tran.

52 On the afternoon of 7 July 2002 your brother lent you his red Toyota Starlet. You went to the Crown Casino in the afternoon and then to a restaurant in Footscray for a child's birthday. David Nguyen was present at that party. You then went to the Commercial Lounge in Prahran and David Nguyen accompanied you in your brother's car. You remained there until you or someone in your company received a phone call that there had been a fight at the Salt Nightclub and that Hung Van had been bashed by guys with bottles. You and David Nguyen then drove to the Salt Nightclub in the red Toyota.

53 You told the investigators that you dropped David Nguyen off in Daly Street. You then drove your car into Chapel Street and whilst you were parked there you observed people running in Chapel Street. Whilst you were stopped there Hung Van got into your car. By the time you commenced to drive north to the river David Nguyen was also a passenger. The jury found that you drove your car into Alexandra Avenue and parked it adjacent to the bus stop where James Huynh lay. Your passengers, Hung Van and David Nguyen emerged and at least one of them was then carrying a sword or machete. Whilst you observed from your car there was a brutal attack upon James Huynh in which injuries were inflicted which caused his death. Hung Van and David Nguyen then returned to your car and you then drove them away from the murder scene. After decamping from the murder scene you drove back to the area of the Como Hotel near the intersection of Daly Street and Chapel Street. From there you drove to a West Footscray flat where Cuong Lam was waiting. The jury by its verdict was satisfied as to these facts and rejected much of your account to investigating police as false.

54 It was the prosecution case that you drove your car to the vicinity of the bus stop on two occasions. The Crown case was that on both of those occasions Hung Van and David Nguyen alighted and attacked James Huynh whilst he lay at the bus stop. Although the jury's verdict does not depend upon a finding that you drove to the bus stop on two occasions there was a substantial body of evidence that leads to the conclusion that your car was present on two occasions, (and I make no finding as to whether you drove away and returned) when James Huynh was attacked. I am satisfied that one or both of them were present on each occasion. On one of those occasions one of the occupants of your car took with them a billiard cue which your brother Son kept in the car.

55 The jury by its verdict rejected the account which you gave the investigating police. It was demonstrably false and it was inevitable that the jury would reach such a conclusion as there was an overwhelming body of evidence that you were untruthful about where you drove your car.

56 The prosecution said, and it was not disputed, that the guilty verdicts meant that the jury were satisfied that you were present in your brother's motor car in the vicinity of James Huynh at the time that one or more of the principals in the first degree murdered James Huynh and that you intentionally encouraged Cuong Lam, Hung Van and David Nguyen to commit the murder by your presence and by waiting for them in the car and that you also intentionally helped them by making the car available as a means of escape from the scene of the murder.

57 The prosecution said your culpability was aggravated by the fact that you went from the Commercial Lounge to the Salt Nightclub in response to the telephone call advising you that Hung Van had been bashed and that you took David Nguyen with you. It is implicit from the prosecution's claim that you went to the Salt Nightclub, not merely to provide comfort and assistance to your injured friend, Hung Van, but in the expectation that some further violence would occur. It was said on your behalf that that conduct did not constitute an aggravating circumstance but was an act of gross misjudgement on your part. If such conduct is to be viewed as an aggravating circumstance it does not in my view make an appreciable difference to the sentence which I should impose.

58 Other aggravating circumstances were said to be that you picked Hung Van up in Chapel Street and transported him together with David Nguyen to the scene of the murder; that you made your car available by returning to the scene of the murder with Hung Van and David Nguyen on a second occasion and that you made the billiard cue in your car available as a weapon and that it was used by one or other of them in the commission of the murder. The claim that these are circumstances of aggravation brings into stark relief the issue that was ever present during the course of the trial that much of your conduct upon which the prosecution relied supported the hypothesis that you were in fact acting in concert with David Nguyen and Hung Van.

59 I am bound to take into account all of the circumstances relevant to your commission of the offence. The principle was relied upon by Mr Brustman that circumstances of aggravation may not be taken into account if those circumstances would have warranted a conviction for a more serious offence.[9] It would not be consistent with fairness and justice that I sentence you on the basis of conduct with which you have not been charged or convicted.[10] It is unnecessary to decide whether this principle would be contravened by the prosecution's reliance upon conduct which suggests concert on your part with the principals in the first degree. The prosecution disavowed any intent to rely upon these circumstances as establishing that you acted in concert. These events were relied upon as providing the setting in which your acts of aiding and abetting took place. The Crown submitted that they were circumstances of aggravation because the inference was open that you anticipated that there may be violence and conducted yourself knowing that there was a real prospect that that might occur. Put in that confined way your counsel did not take issue with the prosecution's characterisation of those circumstances.

60 You had consumed a quantity of alcohol on this evening although it is not suggested that such consumption impaired your judgment, but your Counsel urged upon me that your conduct was explained by a sense of misplaced loyalty to your friends.

(ii) Personal circumstances

61 You are 27 years of age having been born on 20 November 1978 and you were 23 at the time of the commission of this offence. You were born in South Vietnam in a placed called Tingian. You are the second youngest of a family of 10 children. You have five older sisters, two of whom still reside in Vietnam and three of whom have all settled in Australia. You have three older brothers and one younger brother, all of whom have also settled in Australia.

62 You attended primary school in Vietnam to the age of 11 when you and your parents emigrated to Australia following the path of two of your elder sisters who had already settled here. On your journey from Vietnam you and your family were picked up in the middle of the ocean by a Singaporean boat and were taken to a refugee camp in Singapore where you remained for some five months before arriving in Australia in 1989. Upon arrival here your father and mother commenced sewing clothes in their home. They were both industrious and eventually went into the business of manufacturing Asian biscuits. They then embarked upon the manufacture of hammocks and have now done so for in excess of 10 years. Your parents are separated. Your father has returned to Vietnam. He remains in partnership with your mother and with the assistance of your brother still conducts the business. They have now shifted the manufacture of the hammocks from Australia to Vietnam and it is for that reason that your father presently resides there. Your parents remain in relatively good health and despite their separation you remain a close family.

63 After your arrival in Australia you attended at Keilor Downs Primary School and then moved to Altona where you completed one further year of primary school. Initially your English was not good. You then went to Altona Bayside Secondary College until Year 10 leaving school at the age of 15. You then spent a year helping your father and mother in the manufacture of hammocks. You then travelled to the Robinvale district where you spent some time grape picking and upon your return visited Vietnam for some four months on holidays. When you returned to Australia you were employed in the Aussie Lamb Company in Brooklyn as a computer operator. You remained in that job for some three years. You then took a position at a bakery in Williamstown for some four months and then took up employment in a factory where you were constructing pallets. You had been in that employment for about a year when you were arrested in relation to the offence which brings you before this Court. During the time in which you lived in Melbourne you always resided at home and you were living there with your parents at the time of this offence.

64 Dr Senadipathy has provided the Court with a psychiatric report[11] in which the doctor has noted that since you were about 13 years of age you would consume 10 to 12 cans of beer on three days a week when drinking with friends in hotels and nightclubs. You told Dr Senadipathy that you take methamphetamines at nightclubs and that you smoked heroin between the ages of 15 and 18. Mr Brustman informed me that you have never been addicted to drugs or alcohol.

65 You have shown a keen interest in sport engaging in a wide range of sporting activities. You modified motor cars as a hobby and enjoyed the company of friends with whom you would go out at night. Although you had a girlfriend at the time of your arrest that relationship has ceased as a consequence of the fact that you have been on remand for the last three years.

66 Like a number of your co-offenders you maintained your false account in the course of your psychiatric assessment for the purposes of this plea. You continued to deny that you were in any way involved in the death of James Huynh. In your account to Dr Senadipathy you sought to further distance yourself from any involvement in the death of the deceased. It has not been suggested on your behalf that you have demonstrated any remorse for your conduct although you did say in the course of your interview that you felt sorry for the victims as well as yourself and the others in custody. You offered to plead guilty to being an accessory after the fact before the commencement of this trial and I should take that into account as reflecting some recognition of your willingness to accept responsibility for at least part of your conduct.

67 In sentencing you I recognise that there was no history of ill-feeling between you and any of the victims or their families. You were not in any way involved in the altercations which arose in the weeks preceding this event.

68 Unlike most of your co-offenders you do not come to this Court as a person of good character. You have a number of prior convictions. Your first conviction for aggravated burglary and causing serious injury recklessly was at the Children's Court at Broadmeadows in December 1995. You were placed on a nine month Youth Supervision Order. You were then 17 years of age. In the following year you were placed on a bond by the Children's Court for possession of heroin. You were convicted in January 1999 of failing to answer bail and possession and use of heroin. These matters were said to relate to events that occurred three years earlier. You were fined $400. The last of your convictions is, as your counsel rightly acknowledged, a matter which is of some significance to the present sentencing process. You were convicted on 5 February 2001 of causing serious injury recklessly, damaging property with intent and making a threat to kill. You were initially sentenced to three months' imprisonment and on appeal to the County Court on 1 March 2001 you were re-sentenced to a total effective sentence of six months' imprisonment with that sentence being wholly suspended for two years. You were thus undergoing a suspended sentence at the time that you committed the present offence. It appears that the conviction arose out of a fight in a restaurant. According to your counsel you are unable to provide any detail as to what your role was in that fight and though you were advised by a duty lawyer to plead guilty to the charge of threatening to kill you deny that you made any threat. It was suggested by your counsel that you may now be required to serve the period of your suspended sentence. It would appear by operation of the Sentencing Act 1991 that proceedings for breach of that order would now be out of time.[12] I put to one side the consequences of your breach of that order.

69 Your prior criminality should be taken into account in my assessment of your general character and as a factor which may diminish the benefit of other mitigating factors. They do not lead me to conclude however that you have no prospects of rehabilitation.

70 I take into account that your behaviour has been impeccable throughout the lengthy trial process. It is inevitable that you have come to recognise the seriousness of your conduct despite your reticence during your psychiatric assessment to acknowledge your responsibility.

71 Reliance was also placed on your conduct in prison since you have been on remand. Evidence was called from Ms Hooker, the officer in charge of the Youth Offenders' Program at Port Philip Prison who had already testified before me in the course of Cuong Lam's plea as to the content of the Young Offenders' Program.[13] You became involved in the Youth Offenders' Program at the first opportunity. You have successfully completed a number of programs dealing with issues as wide ranging as drug education, offending behaviour and consequential thinking, music therapy, conflict resolution, legal studies and radio and communication. Because of your level of participation and enthusiasm for the programs you were utilised as a type of mentor to encourage and guide other young Asians in the unit to participate in the programs. You played an important liaison role between Correctional officers and some of your fellow prisoners. Because you were enthusiastic and articulate you were often requested to address visitors about the benefits of the program. Ms Hooker testified that the Correctional staff have a very high regard for you because of your attitude and behaviour within the unit. You were housed in a single cell which is reserved for young offenders whose behaviour is exemplary and are performing useful work within the unit. You were described by Ms Hooker as a model prisoner who was held in very high regard as a senior member of the unit. You encouraged your co-offenders to become involved in the program.

72 Mr Boyd, the general manager of a community radio station who has acted as a volunteer within the prison program came to know you during the course of conducting a radio and communications skill program. He was impressed with your keenness and your courtesy. You participated in the "hard yard's" program and have shown enthusiasm to enter into some small business venture upon your release. Mr Boyd described you as a motivator and one who sets and attains goals.

Thanh Nha Nguyen (David)

(i) Circumstances of offending

73 On the day prior to the event of 8 July 2002 you had a fight with your girlfriend over matters that went to the heart of your relationship with her. On the evening of 7 July 2002 you chose the company of some of your male friends even though it was her birthday. You went to a birthday party at a restaurant in Footscray. Your counsel informed me that you and 11 other men consumed six bottles of Remy Martin brandy mixed with coke whilst at the restaurant. By the time you left you were substantially affected by alcohol. You then went to the Commercial Lounge. You consumed more liquor at the nightclub and vomited on two occasions. Shortly before 3.00 a.m. on the morning of 8 July 2002 you then accompanied Johnny Nguyen in his car to the Salt Nightclub.

74 In the pre-sentence report dated 28 October 2005 filed on your behalf, Ms Lechner, a clinical and forensic psychologist, notes that you acknowledge your role in the above offence. You told her that you were extremely intoxicated at the time of the offence estimating that you had consumed close to a bottle of spirits in the hours leading up to the assault. You had also taken "half an E" which seemed to reduce the ill effects of the alcohol but what other effects the tablet had on you, you are unable to say. It appears that recreational drugs are not an uncommon part of the club scene at Salt, Sirens and the Odeon where your counsel informed me that young Vietnamese Australians tended to congregate.

75 You claimed to have little recall of the events stating that you were driven to Chapel Street and got out of the car and were faced with chaos all around you with groups of people seeming to fight. You recalled being involved in a fight. Whilst your memory of subsequent events is poor you recall being shocked by the number of people in the area when you arrived, that you saw weapons and that you were somehow involved in a fight. Ms Lechner noted in her report that you had deficits in the areas of social reasoning and judgment. They are skills that would be further compromised by alcohol abuse and a high level of emotional arousal. Your alcohol and drug affected state may in part explain your offending, but it was not advanced by Mr Gucciardo as a mitigating factor.

76 By their verdict the jury were satisfied that you joined in an agreement or understanding with Cuong Lam and Hung Van to kill or at least inflict really serious injury to James Huynh. In the company of Hung Van and Johnny Nguyen you travelled to the intersection of Chapel Street and Alexandra Avenue alighting at the bus stop adjacent to the deceased James Huynh. You were armed with a sword and in the company of Hung Van inflicted multiple injuries to him which were the cause of his death. Whilst you were still in the company of Hung Van you were driven away from the murder scene by Johnny Nguyen. You went to a flat in West Footscray where in the presence of the other principals in the first degree and other persons, you made certain admissions as to what you had done.

77 Mr Gucciardo has urged me on your behalf not to sentence you on the basis that there was any pre-meditation by you of the crime which you committed. He referred to the evidence which showed that you were still in a state of high agitation and were shouting when you were at the Footscray flat after the crime had been committed. At that time you said "I didn't mean to cut him" and thought that the victim may well die as a result of the injuries that were inflicted on him.

78 The prosecution says that your culpability is aggravated by the fact that you travelled to the Salt Nightclub from the Commercial Lounge for the purpose of participating in the assault upon the Huynhs.

79 Mr Gucciardo disputed that the evidence established that you travelled from the Commercial Lounge to Salt Nightclub with the intention of assaulting the Huynhs. During oral argument the Crown modified its position saying it was inescapable that you were aware of the assault upon Hung Van as you travelled to the Salt Nightclub and that you chose to do so appreciating the likelihood that there would be further violence. I am not satisfied that such an inference is open on the evidence.

80 The Crown also submitted that the combination of circumstantial evidence showed that you had attended at the murder scene on two separate occasions and that it was you who inflicted the final fatal injuries upon James Huynh. There was a great deal of evidence about the movement of the red Toyota, not all of it to the same effect. I am satisfied as the jury must have been that you were a passenger in the red Toyota and you were one of the occupants of the car who attacked James Huynh with a sword inflicting injuries which caused his death.

(ii) Personal circumstances

81 You were born in Melbourne on 26 October 1979, being at the time of this offence aged 22 years. You are the second of three children born to Vo Thi Nho, who is aged 46 years and Son Than Nguyen who is aged 48 years. Your parents arrived in Australia from South Vietnam in 1979. They came as refugees through camps in Malaysia where they spent some months. They had no other relatives when they arrived in Australia and left behind their own parents and many brothers and sisters.

82 Your parents lived in Sunshine and St Albans in modest accommodation, and within five or six years of their arrival in Australia through diligence and sacrifice, they were able to start and run a successful clothing manufacturing business making women's apparel which was distributed and sold through Myer and K-Mart and other outlets. Your parents ran that business successfully until it was abandoned some months after the events of 8 July 2002. The pressure of these events and onwards, together with their connection to the family of the deceased proved too burdensome for your parents, so towards the end of 2002 they moved to Greenbank in Queensland where they now reside.

83 Mr Gucciardo informed me that as a young child your mother describes you as a shy and well-behaved boy who sang in the Yarraville Uniting Church choir and who was well liked. She has never seen you angry, aggressive or violent at any time in your life.

84 You went to Sunshine North Primary School from Preparatory to Grade 6. When you were aged 11 or 12 years, your mother describes you as a child who could not cope with much pressure at school; who would run away from most confrontational situations; who would keep very much to yourself in an introverted way and who would actually wag school in order to avoid trouble rather than confront those who were perhaps more aggressive and extroverted at school. By 13 you first began to try heroin.

85 By Year 9 you already had a drug problem and you were moved to another school. You came before the Children's Court and you were placed on a bond for causing injury intentionally or recklessly. You were with a group of school friends and a fight broke out in a pinball parlour. You were one of ten youths involved in the fight. Within a year you were before the Children's Court again charged with trafficking in and using a drug of dependence. You were placed on a bond. By age 15 years you had already been to court in relation to an affray. You were then sent to Taylor's College in the city for Years 9 to 11, you being approximately 16 years of age by this time.

86 By the age of 17 years, you had a raging heroin habit. In September 1997 you are recorded as having come before the Children's Court at Broadmeadows on counts of trafficking and using a drug of dependence and resisting police. There were also two charges of failing to answer bail. The total effective sentence imposed upon you was nine months in a youth training centre. You were placed on a bond on some of the charges. Mr Gucciardo informed me that there was another conviction during 1998 which is not recorded on the presentment when you were sentenced to a further period in a youth training centre. On your release you repeated Year 11 at Kings Park. Your drug habit continued.

87 The completion of Year 11 effectively ended your schooling and you went to work in the family business. At this time you asked your parents to assist you in withdrawing from drug use by way of a "cold turkey" exercise. Your parents tied you to the bed for five or six days on end and they then took turns to watch over you. This period is recounted by you as being both traumatic and intense.

88 Unfortunately at age 20 years your heroin habit persisted and you were charged with having committed further offences. In breach of your bail, your parents sent you to Vietnam on your own in the hope that you might overcome your addiction. You travelled to the hinterland and commenced living with your grandparents who were then in their seventies. You had not gone willingly to Vietnam, but out of an obligation to your parents to make good. Your parents had given you clear instructions to go to Vietnam, stay with the family and find a wife. You believed you were being punished.

89 You worked in the rice fields and overcame your drug addiction, but your drug usage was substituted by the use of alcohol in binge-drinking episodes with your Vietnamese family after the completion of a hard day's work. Your consumption of alcohol at this time increased substantially. In 2000 to please your parents you married a young Vietnamese woman.

90 Although your return had been approved by your parents, your wife was studying medicine and could not leave Vietnam. You decided to return to Australia alone and you re-commenced living with your parents. You had not used drugs now for a period of a year and a half, having had a Naltrexone implant (opiate inhibitor) inserted in your body before you originally left Australia for Vietnam. As a sign of confidence upon your return, your parents effectively handed over their business to you to run.

91 For more than a year you ran the business and acted as a representative generating work by meeting distributors, suppliers and retailers and in employing about 15 people.

92 In 2002 you returned to Vietnam for some three months to see whether you could live in Vietnam and maintain your marriage. Your wife was not prepared to return with you to Australia.

93 On your return to Australia in 2002 you gave yourself up to authorities and were presented before the Court for the offences on which you had absconded whilst on bail. That resulted in your conviction before the Magistrates' Court at Sunshine on 22 April 2002. You were fined $1,500 in relation to the drug offences and your failure to answer bail and you were sentenced to eight months' imprisonment which was suspended for a two year period.

94 It can be seen from the foregoing that you were three months into your suspended sentence at the time that you committed the crime for which I must now sentence you. I must take that matter into account in assessing your prospects for rehabilitation.

95 When you returned to Australia in 2002 you again ran the family business. With your brother you intended to open an Internet café, signing a lease for premises, and putting $10,000 as a down payment on a bank of sixty or so computers including both hardware and software in order to set that business up. You had, upon your parent's instructions, drawn up a business plan and you were looking forward to the opening of the business.

96 Prior to returning to Vietnam in 2000 you had met and fallen in love with a woman in Melbourne. This relationship had been kept secret from your parents. Shortly prior to the events that bring you before the Court you disagreed with your girlfriend over intimate issues that I need not narrate. By mid 2002 your mood had deteriorated and your consumption of alcohol increased as did your attendance at clubs. Your attendance at clubs meant the occasional use of drugs such as ecstasy and cocaine.

97 Mr Gucciardo describes a strong element of almost self-loathing when you recounted to him your convictions, your failures throughout this period of time and, in particular, disappointing your father by way of your drug addiction and behaviour.

98 Your parents attended the funerals of James, Viet and Nam Huynh. They were reasonably close acquaintances of those families. It was not then known that you were responsible for James' death. Following your arrest it appears that your parents moved to Queensland at least in part to escape the personal embarrassment and the pressure which they were experiencing as a consequence of the fact that there was some connection between them and the victim's families. As a consequence of their move, your parents see you irregularly and you are experiencing a painful sense of abandonment. Your mother comes to visit you when she can and you are visited by your brothers and sisters. Your hope is that when you are released you will go to your parents' farm in Queensland and work on the farm.

99 Since your arrest you were placed in a unit separate from your co-offenders. You have not had the same opportunity to pursue the range of programs in which they have been involved. Some courses have been available to you which you have completed. You have attained "enhanced" status in the prison working as a billet. You have shown some signs of depression and are seeing a counsellor in the prison on a fortnightly basis.

100 It is apparent that as a consequence of a long period of drug addiction during your youth you have undergone major upheavals in your schooling, places of residence, and relationships. Mr Gucciardo emphasised that your history does not suggest that you are an anti-social person or that you have any propensity for violence. He emphasised that you are a young man who has a loving and caring family. Because of your drug addiction you have been unable to act in a sufficiently responsible way. I was urged to accept that you have made genuine endeavours to deal with your problems which have involved substantial sacrifice and that your endeavours are an indicator that upon your release you have some prospects for rehabilitation.

101 I take into account that unlike most of your co-offenders the psychological assessment which has been tendered on your behalf by Ms Carla Lechner shows that you acknowledge your responsibility for the events of this night. You expressed both shame and regret about the tragic incident which has changed the lives of so many young people. Ms Lechner has observed that your level of insight suggests that you are a very good prospect for rehabilitation. You were tearful when recounting the effect of the victims' deaths on you and your family and your general sense of wasted young lives. You are also immensely ashamed of the hurt and pain that you have caused your parents.

102 I should sentence you on the basis that your conduct was not pre-meditated and was attended by lack of judgment and the effects of alcohol when you were faced with a chaotic situation. Ms Lechner has recorded that you are "not without conscience and what occurred weighs heavily on (your) mind". It has severely challenged your view of yourself and led to a chronic state of depression. Ms Lechner suggests that your previous ability to overcome drug addiction and to not relapse in the face of stress, your insight into the tragic nature of the events showing appropriate victim empathy and genuine expressions of remorse and shame together with good behaviour within the prison system are factors indicative of good prospects for rehabilitation. The prosecution, whilst submitting that some of your co-offenders have better prospects of rehabilitation, does not take issue with Ms Lechner's opinion. I have given due regard to her assessment in determining the appropriate sentence to impose.

Long Thanh Tran

(i) Circumstances of offending

103 You travelled to the Salt Nightclub in your own car accompanied by friends, many of whom were called as prosecution witnesses. You and your friends including your co-offender, Hoang Tran met at the Legends Pool Hall near the corner of Chapel Street and Daly Street. By coincidence the deceased and other friends were also there at that time. The evidence does not make it clear whether any of your group knew the deceased James Huynh but it has never been the prosecution's case that there was any ill-feeling between you and your friends and the deceaseds' group. After a brief time each of you accompanied by your friends went to the Salt Nightclub. Some time later the fight broke out between the deceased and Hung Van, Cuong Lam and Tuan Tran. You were standing very close to where the fight occurred but you were not involved. The deceaseds' group was ejected via the Claremont Street exit whilst you both left via the Daly Street exit.

104 You and your friends gathered near the entrance to the Salt Nightclub. After a short time you went and got your car from the nearby car park and by your own admission to investigating police parked it on the north side of Daly Street near the entrance to the Salt Nightclub. According to the prosecution one of the Salt video cameras captured your vehicle being driven to that position. The video also depicted persons approaching and opening the boot of that car. A short time later after the fight in Daly Street the vehicle was driven away in an easterly direction in Daly Street. You disputed the prosecution claim that that was your car. It was the prosecution case that by the time you drove your car out of Daly Street you had observed the altercation between the deceased and your co-offenders, and you had witnessed the deceased being chased out of Daly Street. The jury's verdict did not depend upon a finding as to these facts. I think it highly likely that the jury accepted that the prosecution's contention was made out. I am satisfied I should sentence you on that view of the facts.

105 You drove your vehicle to the intersection of Chapel Street and Alexandra Avenue. It was the prosecution case that you stopped your vehicle and alighted and were standing in close proximity to the deceased James Huynh when one or more of Cuong Lam, Hung Van and David Nguyen inflicted injuries upon the deceased which caused his death. It was the prosecution case that by your presence in this manner you aided and abetted the principals in the first degree in committing the crime of murder. As this was not the only basis upon which the prosecution said that you aided and abetted the commission of the crime the verdict of the jury did not necessarily depend upon a finding to that effect.

106 The prosecution case was that you returned to your car and continued to drive it around in the vicinity of the bus stop whilst one or more of the principals in the first degree inflicted further injuries upon James Huynh which caused his death. It was the prosecution case that by driving your car in the manner in which you did you made it available to the principals in the first degree as a means of escape from the scene of the murder and thereby aided and abetted them. By your own admission to investigating police you did drive your car in the area while looking for friends and claimed that a short distance east of the area of the bus stop persons who were covered in blood and whom you did not know suddenly got into your car. It was not the prosecution's case that any principal in the first degree had left the murder scene in your car.

107 Your counsel's primary submission was that the jury's verdict was based upon a finding that you had intentionally helped or encouraged one or more of the principals in the first degree by making your car available but disputed that the jury was satisfied that you were present on foot in the immediate vicinity of the deceased at the time one or more of the principals in the first degree caused fatal injuries to James Huynh.

108 Mr Mullaly accepted that you had a great many spots of blood of the deceased James Huynh on your clothing. I have little doubt that led the jury to conclude you were one of those persons present in close proximity to James Huynh at a time when one or more of the principals in the first degree inflicted fatal injuries upon James Huynh.

109 Mr Mullaly argued that making your car available to the principals in the first degree to escape was less culpable than standing in close proximity to the deceased encouraging the principals in the first degree as they inflicted fatal injuries upon the deceased. He conceded that the difference between those two forms of aiding and abetting was marginal.[14] The prosecution and Counsel for Hong Bui, argued that it was more culpable for an aider and abettor to have made his car available to the principals than to have alighted and stood in close proximity to the deceased encouraging the principals in the first degree to inflict fatal injuries upon the deceased. I am unable to accept any of these contentions.

110 In the circumstances of this case the presence of the aiders and abettors on foot in close proximity to the deceased James Huynh whilst he was the subject of a fatal attack was an equally serious form of aiding and abetting to that of making a car available for a getaway. The fact that you were only one of an angry noisy group present at that time does nothing to diminish the seriousness of your conduct. Your presence with others gave the principals in the first degree encouragement and confidence to commit the crime. You should be sentenced upon the basis that the prosecution established that you aided and abetted the principals in the first degree in both of the ways alleged. The jury's verdict was almost certainly based upon such a view.

111 Although Mr Mullaly urged me to reach a different conclusion, the jury by its verdict must have rejected your account to investigating police that you drove your car in Alexandra Avenue looking for your friends. The jury was satisfied that when you drove your car on Alexandra Avenue in the vicinity of the bus stop, you did so with the intention of making your vehicle available to one or more of the principals in the second degree to flee following the completion of the crime. It is almost certainly the case that the jury accepted that you drove your car along Alexandra Avenue proximate to the bus stop on two occasions as described by Mr Searby. You had told the investigating police that you believed you had driven your car in that area on at least two occasions. That is part of the evidence upon which the prosecution relied to establish that you were aiding and abetting the commission of the crime. That you drove in that area on more than one occasion should not be treated as a circumstance of aggravation but as evidencing your purpose.

112 The prosecution relies upon the fact that you moved your vehicle to its position in Daly Street before the fight. I am satisfied that you were in Daly Street at the time of the fight having driven there before the fight. Your counsel urged that care was called for to ensure that the events in Daly Street did not assume a greater role in your sentencing than is permitted and that you not be sentenced for acting in concert or as part of any common purpose. I have already indicated that I have considered such matters within the narrow confines relied upon by the Crown. I accept the prosecution submission that your conduct in Daly Street can be relied upon as showing that it was not your state of mind at the time of aiding and abetting the commission of the crime that you suddenly and unexpectedly found yourself at the murder scene called upon to make a sudden judgment about whether you would lend assistance or give encouragement to the principals in the first degree.

113 The prosecution said that your culpability was aggravated because you made weapons available from your car after moving it to a position immediately outside the Salt Nightclub. Mr Mullaly submitted that there was insufficient evidence to find beyond reasonable doubt that weapons were obtained from that car. I accept the submission that the evidence fell short of enabling a finding to be made that weapons were obtained from your car.

114 The prosecution also said that your conduct in driving persons away from the murder scene who had the deceased's blood on them was an aggravating circumstance. Mr Mullaly argued that to have your culpability assessed by reference to transporting others from the scene would in the circumstances be to punish you for offending conduct other than the conduct for which you were charged and convicted. The jury rejected the incredible account which you proffered to investigators fas to how you came to pick those persons up. Long after the interview had commenced you suddenly informed the investigators that you had seen two persons at the murder scene who had got into your car covered in blood when you slowed down. I regard your conduct in driving others away from the scene, not as an aggravating factor but as evidencing the intent you had in driving your vehicle in the manner in which you did in the vicinity of James Huynh's murder.

115 You maintained your false explanation in the course of your interview for the purpose of your pre-sentence report. That report does not evidence any remorse on your part. But, as your counsel submitted, and consistent with the view that I have already expressed in your co-offender's cases your good prospects of rehabilitation having been clearly established are not to be diminished because of an absence of a recognition by you of your responsibility for this crime.

116 Your counsel said that your role as an aider and abettor should not be viewed as integral to the commission of the offence. It was said that the murder would have occurred even if you had not been involved. Mr Mullaly pointed to the fact that Mark Ung, whose conduct was not dissimilar to yours was not charged.

117 The prosecution also relies on your demeanour during the course of your very lengthy interview on the morning and afternoon following these events. You were described by the senior prosecutor as being "quite detached from the reality" of what had occurred. The prosecution submitted you did not appear to care at all what had happened. Your demeanour was said to throw some light on the explanation proffered on your behalf that your conduct on the night was merely a momentary lapse of judgment. I agree that your manner appeared nonchalant but I do not attach any significance to it for the purpose of sentencing.

(ii) Personal circumstances

118 You are 23 years of age having been born on 9 May 1982. At the time of this offence you were 20 years old. Your parents were born and married in Vietnam. Your father was a fisherman in South Vietnam near Ho Chi Minh City. In 1981 your parents and their two young children decided to leave Vietnam in your father's boat. They with 95 others escaped Vietnam landing in Malaysia in 1981. In February 1982 they were able to come to Australia with your two elder brothers. Your mother was then pregnant with you and some four months after their arrival you were born. You also have a younger brother who was born some two years after your arrival. With industry your parents were able to start a sewing business which enabled them to support you and your three siblings. After some three years they purchased a Vietnamese grocery store in Footscray. They have also been able to acquire a fresh seafood shop.

119 Your oldest brother who works in your parents' grocery store has a family of his own and has never been in trouble with the law. The second eldest brother Giang also has a family and is a builder by pursuit. Similarly, he has never been in trouble with the law. Your younger brother Vien lives at home with your parents and has just completed a professional photography course at the RMIT. He too is of good character. You have extended family as brothers and sisters on both of your parent's sides have, in turn, been sponsored to come here. It is clear that you are a close family and that your family are devastated by your present circumstances.

120 You completed primary school at St Bernadette's in North Sunshine and completed your secondary schooling at St John's and Caroline Chisholm Catholic College. After successfully completing Year 12 you gained entry to a remedial therapy course at the Melbourne College of Natural Medicine passing in seven out of eight subjects. You then transferred to part-time studies and you worked part-time at a restaurant at Southbank and then on a full-time basis for some six months after you stopped your studies. You also assisted your parents working in the store from age 17. At one stage you were simultaneously working for Spotless Services at the MCG and at the Grand Prix. At the time of this offence you were again working full-time at a Southbank restaurant in a supervisory role. You had enrolled for study for a Diploma of Business at RMIT. It was to commence in the second semester of 2003, it being a two year full time course.

121 Ms Hooker, the Youth Development Officer at the Port Philip Prison and the officer in charge of the Young Offenders' Program testified that following your placement in the prison in July of 2003 you isolated yourself from others and you were quite depressed. You struggled with the prison environment and were found to be quite vulnerable. You sought out counselling and had discussions with Ms Hooker. After some counselling and with the encouragement of mentors in the unit it appears that you came to accept your surroundings and enrolled yourself in each of the youth programs available to you both within the unit and at Kangan TAFE. Over time your need for counselling diminished but you would call upon Ms Hooker or others for support when you recognised the need for such support. You have completed a wide range of programs. You have learnt behavioural control that would minimise any risk of re-offending. You have learnt the value of motivation. You completed a consequential thinking program which has taught you the repercussions of your actions. You have also completed a number of full time education courses at Kangan TAFE. Ms Hooker found you to be extremely motivated and highly capable. You exercised initiative in discussing aspects of the program with officers and the work that you were required to complete was always of an extremely high standard. You are also involved in the "hard yard's" program in which you played an active part in the financial management team and also assisted with the production of the manufacturing and processing of T-shirts. You have expressed an interest in completing further studies in relation to business management so that on your release you may start your own business.

122 Ms Hooker expressed concern as to how you would cope in a harsher prison environment. She described you as someone who goes through waves of depression and she considers that your ability to cope is less than many other young offenders. Ms Hooker considered that you will require on-going counselling support. Ms Hooker considered it highly likely that because of the seriousness of the offence and the length of sentence that you will have to serve, you will be placed in maximum security at Barwon Prison. She did not think that you would fit well at all into that prison population and will be vulnerable and a target. These are matters I take into account.

123 Mr Boyd, a volunteer in Port Philip Prison who is the general manager of a community radio station which amongst its functions is dedicated to programs for Vietnamese people, has become familiar with you and your family. He spoke of the high regard with which your family is held within the Vietnamese community. He testified as to your contribution in the "hard yard's" program which has raised a substantial amount of money which is to be donated to the Royal Children's Hospital and the Salvation Army. You volunteered to become actively involved in the financial aspects of the program and assisted the financial comptroller with the preparation of various financial documents. Mr Boyd described you as coming from a strong family environment that had nurtured you and inculcated sound values. Mr Boyd, who was a former police officer, considered that you will have difficulty coping with a tougher prison regime and that you will be very dependent upon family support. He said you were not streetwise and were frightened and quite out of your comfort zone. He also spoke of your aspirations to move into the family business and take on a management role. I take into account his observations and opinions.

124 A psychological assessment by Mr Jeffrey Cummins was tendered.[15] Mr Cummins found you to be of above average intelligence and quite mature for your 23 years of age. He found you to have a philosophical attitude towards your current legal predicament although you report some symptoms which imply that you have some anxiety and depression in response to that predicament. He found that you show an optimistic regard for your future and an enthusiasm for education and achievement. You have not received any psychological counselling whilst in custody and informed Mr Cummins that you did not in your opinion require any. It was Mr Cummins' view which I accept that your prospects for long term rehabilitation are very good.

125 Mr Mullaly expanded upon why I should view your youth as a mitigatory factor. You got caught up he submitted in the group dynamics of that evening as someone who had misguided loyalties and who was vulnerable to following the crowd. Secondly, he said that your immaturity impeded your capacity to reflect upon the possible consequences of your involvement. He emphasised that you had not been involved in any of the disputation between the Huynh family and some of the co-offenders which had arisen first in Adelaide and then at the Odeon Nightclub. I accept that you had no knowledge of such matters. Because of your youth it was submitted that there were real prospects that you would learn a lesson from your experience and be able to put it into practice. Finally, it was submitted that your youth called for a degree of clemency within the limits that a crime of such seriousness presents. I take all of these matters into account together with the fact that you were previously a person of good character.

126 I accept your counsel's description of you as a content young man who planned for further studies with an enthusiasm for life and who has the strong support of his family. I note that your father attended on almost every day of the trial despite its length. I accept that your separation from your family will be a painful one and that you will find prison a difficult environment in which to cope. You are clearly highly valued as a friend and as Ms Quach and Ms Julien stated in their evidence on your behalf you were a hard working and thoughtful young man who showed no sign of aggression. Each testified that this offence was quite out of character.

127 Mr Mullaly, whilst recognising that general deterrence and denunciation are weighty considerations emphasised that for you a maximum security gaol will be a brutal place. I have taken that fact into account in fixing the minimum sentence.

Hong Bui

(i) Circumstances of offending

128 You travelled to the Salt Nightclub in your own car accompanied by friends many of whom were called as prosecution witnesses. You, your friends and other co-offenders met at the Legends Pool Hall and after a brief time you were accompanied by your friends and some co-offenders to the nightclub. Later a fight broke out between the deceased and Hung Van, Cuong Lam and Tuan Tran and you became caught up in the fight. You sustained a minor injury to your eye as a consequence. You admitted becoming involved in the fight inside the nightclub. You told investigators that you were endeavouring to protect your friend, Hoang Tran, and that you went to help him. You, your friends and some of the co-offenders were ejected from the nightclub via the Daly Street exit. Upon exiting the nightclub you told friends that you had been hit during the fight for no reason.

129 After you were ejected from the nightclub you remained in the presence of co-offenders and your friends near the entrance to the Salt Nightclub. You were there for a period of time when some of your co-offenders armed themselves with swords and put on white gloves. When the Huynhs came into Daly Street you ran forward towards the altercation. By your own admission you were within a few metres of Hung Van and the Huynhs and you overhead part of the angry exchange between them. I am satisfied that you must have observed the fight which ensued and realised that some of those involved were carrying Samurai swords and were prepared to use them. When your co-offenders commenced to chase the Huynhs you, some of your co-offenders and other friends also gave chase. Upon entering Chapel Street you went to your car which was parked on the eastern side of Chapel Street and commenced to drive it in a northerly direction towards the river following those who were chasing the deceased. You followed the car driven by Mark Ung and stopped behind him on the river side of Alexandra Avenue opposite the bus stop where James Huynh lay. By your own admission you exited your car remaining out of it for some two minutes. Based upon your own admissions and other circumstantial evidence I am satisfied that the jury found that you crossed the road and were in close proximity to the deceased James Huynh whilst one or more of Cuong Lam, Hung Van and David Nguyen inflicted injuries upon the deceased which caused his death. That, as it was in the case of Long Tran, constituted the first basis upon which the prosecution said you aided and abetted the commission of the crime.

130 You then returned to your car and following the car driven by Mark Ung did a U-turn to stop on the southern side of Alexandra Avenue close to the bus stop. While you remained stationary some of your friends got into your car. Whilst some of the doors of the car were still open you commenced to move off and other persons who had been at the murder scene attempted to get into your car but were unsuccessful. You then left the scene.

131 It was the prosecution case that aware that murder was being committed by the principals in the first degree you made your car available to them as a means of escape that in the case of Long Tran was said to constitute the second basis upon which you aided and abetted the commission of the crime. As in the case of Long Tran the prosecution submitted on your plea that the verdict of the jury meant that it was satisfied that you aided and abetted the commission of the crime in both of the ways alleged.

132 Mr Saunders said on your behalf that the jury found you guilty as an aider and abettor because it was satisfied beyond reasonable doubt that having witnessed the altercation in Daly Street and followed those pursuing the Huynhs in your car, you alighted from it at the intersection of Chapel Street and Alexandra Avenue and stood in close proximity to James Huynh as he was being attacked with Samurai swords or other weapons by one or more of the principals in the first degree and that you remained in close proximity to the attack for a sufficient time for your presence to amount to encouragement. He urged that I should not conclude that you made your vehicle available as a means of escape to the principals in the first degree. He submitted that that would constitute a more serious form of aiding and abetting and that you should be sentenced only upon the less serious basis that you provided encouragement to the principals in the first degree by standing in a position close to James Huynh at the time he was attacked by one or more of the principals in the first degree.

133 As I have indicated in the case of Long Tran I do not think the distinction between the two forms of aiding and abetting is a sound one. On one view the conduct of those in the immediate presence of the principals in the first degree encouraging their conduct could be viewed as more serious than the other means of aiding and abetting.

134 It was argued that the jury did not convict you on the basis that you made your car available to the principals in the first degree as a means of escape. I am unable to accept that submission. It was said that there was no evidence that you knew any of the principals in the first degree. There was evidence upon which the jury could infer that you had some knowledge or familiarity with some or all of the principals in the first degree. In any event it is sufficient that your intention was to aid and abet the principals in the first degree, that is to say, those attacking James Huynh even if you did not know their identity. The primary argument advanced on your behalf was that the evidence did not establish that any principal in the first degree was present attacking the deceased at the time that you drove your car from the river side to the southern side of Alexandra Avenue and stopped near the bus stop.

135 I rejected a 'no case' submission made on your behalf during the trial that the prosecution had failed to establish that you were present at any time when a principal in first degree was inflicting injuries which caused death upon the deceased. The more narrow issue now raised on your behalf is that by the time you stopped adjacent to the bus stop on the southern side of Alexandra Avenue no principal in the first degree remained present. Mr Saunders argued that by their verdict the jury were satisfied that Cuong Lam and Hung Van had run to the river and as the red Toyota Starlet was not at that time present David Nguyen could not be present. I shall not repeat the parties' submissions as to the state of the evidence. The prosecution pointed to the fact that by your own admission another car was present before you performed your U-turn. I remain of the view which I held during the course of the trial that the evidence warranted the conclusion that when you drove your vehicle in Alexandra Avenue, the red Toyota was present.

136 The jury's verdict reflects the fact that the circumstantial evidence including that of the CR Kennedy video establishes that the red car was present for a period of time when your car was parked on both the north and south side of Alexandra Avenue. The prosecution case that you made your car available to assist in the commission of the crime was not confined to the movements of your car on the southern side of Alexandra Avenue. The prosecution relied upon your car's presence and movements as evidencing that you were intending to make your car available to the principal offenders for a getaway.

137 It is almost certainly the case that the prosecution satisfied the jury that you aided and abetted the commission of the crime in both of the ways alleged and I am satisfied that I should sentence you on that basis.

138 I do not accept the prosecution contention that the fact that other persons got into your car and other persons attempted to get into your car should be treated as aggravating facts. It is evidence upon which the jury relied in reaching the conclusion that you had made your car available to assist the principal co-offenders to escape.

139 The prosecution has submitted on your plea that I should view the knowledge which you acquired whilst witnessing the events in Daly Street and the chase into Chapel Street as an aggravating circumstance because the conduct of those that you observed in Daly Street and the altercation which took place with the deceased before the chase alerted you to the likelihood that something serious might occur. The prosecution submitted that you had ample opportunity to reflect on your position and to withdraw from any involvement. These matters it was said demonstrated that you were not suddenly confronted with an unanticipated situation resulting in a momentary lapse of judgment. I am unable to accept Mr Saunders submission that the evidence of events in Daly Street and Chapel Street did not establish anything more than you had admitted in your video interview. Based upon your presence near the entrance to the nightclub for more than five minutes and your admissions that you ran forward and were within one or two metres of the confrontation in Daly Street the prosecution case to the jury was that you were aware of the fact that some of your co-offenders had possession of lethal weapons. I have no doubt that the jury reached such a conclusion. These facts may be taken into account in the limited way suggested by the Crown in the case of Long Tran. Furthermore I do not regard it as a matter which would result in any appreciable difference in the sentence that I should impose.

140 By their verdict the jury plainly rejected important parts of the account which you gave investigating police as being false. In particular, the jury did not accept your claim that you were unaware that the deceased James Huynh was the subject of a vicious attack by some of your co-offenders during the time that your car was stopped in Alexandra Avenue and during the period when you exited your car.

141 There is nothing in Dr Kennedy's pre-sentence report to suggest that you were remorseful about your conduct on that evening. I have already indicated the limited manner in which that fact is relevant to the question of sentence.

(ii) Personal circumstances

142 You are now 23 years of age having been born on 17 December 1981. You were only 20 at the time that this offence was committed. Your youth, your previous good character, your work ethic and your strong family ties led your counsel to submit that you had excellent prospects for rehabilitation.

143 Your parents who are in their early 50s were both born in Vietnam. They emigrated from central Vietnam where the family lived in a small village Phu Chanh which is near Nah Trahn. Your father was a fisherman who owned a fishing boat and your mother worked in the rice fields. In 1981 they used the fishing boat to escape from Vietnam with 40 persons comprising family and friends. Your family endured the hardships which were commonly experienced by those seeking to escape from Vietnam. After some six days at sea and with little food and water they were rescued by a large ship and were taken to Hong Kong. Your mother was then three months pregnant with you. You were born in Hong Kong and some seven months after your birth the family migrated to Australia arriving in 1982. Your parents were hard working and eventually were able to acquire the present family home in St Albans. You have two older sisters Donna, 29 who is completing a Master's Degree in Accountancy, Stacey aged 27 who has a university degree and is a consultant for Hewlett Packard, an older brother Phuong who is 26 and works at your cousin's restaurant, and a younger brother Alex who is a 19 year old and works in a plastics factory. You and all of your siblings lived at home with your parents. I am satisfied that you are a very close family and that you and your brothers and sisters have assisted with paying off the mortgage on the family home.

144 You completed primary school and attended the Delahey Secondary College until Year 12. After successfully completing VCE you were accepted into a Bachelor of Business and Accounting Course at Victoria University in 2000. As your preference was to obtain a degree in Business and Human Resources Management you changed courses and you were in your last semester at the university at the time you committed this offence. It can be seen from the academic results which were tendered that you were a successful student and it is likely that you would have obtained your degree.

145 You have a keen interest in sport representing the school in table tennis and volley ball. You continued with your sporting interests on weekends after commencing at university.

146 During university vacations you worked at Suzuki and you also undertook other factory work. You were also involved with the Open Family Foundation. A reference from the operations manager of Street Outreach in Melbourne was tendered. You involved yourself in many of the foundation's activities and were described as a willing and polite participant who was helpful to other children in the program.

147 On 2 November 2005 you underwent a psychological assessment by Dr Simon Kennedy. I have taken account of its contents. You presented to Dr Kennedy as a conservative, well spoken and cooperative young man who appeared to be well educated. That is the impression that I formed from your video interview with investigating police and from your behaviour during the course of the lengthy trial. When interviewed by Dr Kennedy you spoke with great affection about both of your parents. You have led a conventional social life and you do not have an alcohol or drug problem. You do not suffer from any mental disorder and you have no history of emotional or behavioural problems which would suggest any personality difficulties. In Dr Kennedy's view you displayed no anti-social features. You presented to Dr Kennedy as a young man with a highly developed sense of conscience and traditional values of respect for elders and those in authority. Not surprisingly Dr Kennedy has reported that your conviction and ongoing imprisonment has had a substantial impact upon you and your family. In the concluding passages of his report Dr Kennedy said of you "He has an extremely unusual profile to be involved in such a matter. From this evaluation, Mr Bui's psychological profile does not suggest an individual who would be at risk of committing criminal acts, particularly crimes involving violence of the type associated with this case"[16] - an observation equally applicable to most of your co-offenders.

148 Ms Hooker, the Youth Development Officer at Port Philip Prison, and who has provided evidence on the pleas made by a number of your co-offenders spoke highly of your participation in the program. Shortly after you were placed on remand and entered the program and successfully completed a number of courses including horticulture which was a six month period of full time study. You attended at the Kangan TAFE four days a week to complete that program. Those programs you completed included programs which drew attention to the importance of consequential thinking and the identification of offending behaviour. You completed a legal studies program with the North Melbourne Legal Service. You are described by Ms Hooker as an extremely enthusiastic and positive participant. If there were discussions or roles to be played you would always volunteer. You participated as a billet in the laundry and the kitchen. You were highly thought of by the Correctional staff. You had what Ms Hooker described as "an extremely high work ethic". You were well mannered and cheerful with the Correctional staff. Ms Hooker observed that you received regular visits from your family and enjoyed the support your family gave you.

149 Ms Hooker expressed concerns that she had previously expressed in relation to other co-offenders whose pleas I had already heard. She was of the opinion that you would have difficulty coping in the environment of Barwon Prison which is a maximum security prison to which you are likely to be sent because of the seriousness of the crime with which you have been convicted and the length of your sentence. Ms Hooker was referring to the harshness of the regime that you would experience there and that you were not a hardened or streetwise offender like many of those with whom you would have to share that prison environment.

150 Character evidence was called from Mr Boyd who conducted a radio and communications skill program at Port Philip Prison in which you were a participant. Mr Boyd explained how the program encouraged a sense of discipline and preparation. The program ran for some 12 weeks and Mr Boyd viewed you as an excellent student who interacted well with all of the other participants and who was keen and enthusiastic. The general manager of the spare parts of Suzuki Australia Pty Ltd also testified on your behalf. He confirmed the evidence of other witnesses that your work ethic was high, that you were diligent and always well-prepared and that you were well liked by fellow staff. He would willingly have employed you again if he were able.[17] Like Long Tran I conclude you have excellent prospects of rehabilitation. I accept that I should impose a lower minimum sentence than would otherwise be the case.

Hoang Tran

(i) Circumstances of offending

151 On the evening of 7 July 2002 you met up with a group of friends including some of your co-offenders and a number of witnesses who were called by the prosecution. About midnight you proceeded in three cars to the Salt Nightclub. You were caught up in the fight which broke out in the nightclub. I make no finding as to what your precise role was but at one point you found yourself on the floor and you were kicked a number of times. You were ejected from the nightclub by security guards via the Daly Street entrance leaving with your friends and a number of your co-offenders. It is plain that when you left the nightclub you were upset and angry that you had been assaulted. By that time of the morning you had consumed a large amount of beer although there is no evidence to suggest that your judgment was significantly impaired.

152 After exiting the nightclub you spoke with some of the security guards about regaining access to recover your credit card which you had left at the bar. By the time the fight commenced between Hung Van and the Huynhs you had wrapped a belt around your hand. You ran towards the fight. I am unable to determine what part, if any, you took in the fight but I am satisfied that you observed some of your co-offenders carrying swords. When the Huynhs ran from Daly Street you joined in the chase. You observed one of the principal offenders, Cuong Lam running near you carrying a sword. Numerous witnesses have described how the young men chasing the deceased were shouting and appeared to be angry. Upon reaching the intersection of Chapel Street and Alexandra Avenue you observed James Huynh on the ground asking to be left alone. Initially in your interview with investigating police you said that you saw Cuong Lam striking James Huynh with his sword. Later in the interview you denied that you saw anyone at the murder scene whom you knew. Whilst you were watching you stepped, on your estimate, to within one metre of James Huynh. After remaining there for a short time you turned and walked away returning to the area of the Salt Nightclub. The Crown accepts that you were only present at the murder scene for a short time and that the attack upon James Huynh continued after you left. Whilst walking toward the Salt Nightclub you spoke with a relative of the deceased. At that time you still displayed some signs of aggression and you had your belt wrapped around your hand. Whatever the exchange between you, a car arrived and Cuong Lam, still armed, and perhaps others, came to your assistance and chased the relative to Toorak Road. I do not treat this episode as an aggravating circumstance but it says something as to your prevailing state of mind. You then returned to the nightclub to get your credit card. By then the police had been called and when the manageress requested that you wait for the police to arrive you agreed to do so.

153 You initially made a false statement to the police in which you denied that you had been at the murder scene. It was a common feature of the trial that every one of your co-offenders gave a false account of their movements. Similarly most of the witnesses called by the prosecution who were friends of yours or co-offenders did not give a full and frank account. Their conduct is not a matter for which you are responsible. I mention it because to your credit, and contrary to the position adopted by your co-offenders and most prosecution witnesses, you subsequently resolved to return to the investigating police and volunteer a full and relatively frank account of what you had done retracting your initial false account. That conduct and your exemplary behaviour during the course of the trial, which was the subject of recognition by senior counsel for the prosecution during the plea, pointed strongly to the fact that you showed some remorse for your conduct and the events of that evening. Dr Senadipathy in his pre-sentence report described you as a young man who had a clear understanding of his role in the events of that night. He found that your judgment and behaviour was not affected by any mental illness.

154 In your account of the events of this night which you gave Dr Senadipathy and which is contained in your pre-sentence psychiatric report you sought to distance yourself from the events at the murder scene. For reasons that I have already stated I do not think that I should treat that account as detracting from the remorse that you previously had shown for your conduct.

155 The prosecution says the jury, by their verdict of guilty was satisfied that you were present in the immediate vicinity of the deceased at the time that one or more of the principals in the first degree murdered James Huynh and that by the circumstances of your presence you intentionally encouraged the principals in the first degree and conveyed your assent and concurrence to what they were doing.

156 Mr Rochford submitted on your behalf that the jury verdict established only that it was satisfied that you intentionally encouraged one or more of the principals in the first degree by the circumstances of your presence but he submitted that I should not find that you performed any act which would support the conclusion that you were willing to assist the principals in the first degree if necessary.

157 By your own admission you were present at a time when, according to a number of eye witnesses, a group of young men surrounded James Huynh and whilst there was shouting and angry words one or more of them attacked him with a sword. You observed Cuong Lam and perhaps others in part of that attack from very close quarters before you turned away and left the scene. I accept the prosecution's contention as to the bases upon which the jury reached its verdict. I should sentence you on those bases.

158 The prosecution further submitted that your culpability was aggravated because you attended at the murder scene after becoming aware of the fight in Daly Street knowing that others had weapons, because you armed yourself with your belt and because you observed Cuong Lam chasing the Huynhs armed with the Samurai sword and wearing white gloves.

159 They were matters that bore upon your intention at the crime scene and how your presence may have been viewed by the principals in the first degree. They may be taken into account within the narrow limits I have previously referred to as showing your appreciation of what was likely to occur and your intent at the murder scene.

(ii) Personal circumstances

160 You were born in Vietnam on 6 August 1982, the eldest of three children. You lived with your parents in a town called Phan Rang some 350 kilometres south of Saigon, as it was then known. Your family eventually decided to leave Vietnam in a small boat which held thirty-two people. After heading towards the Philippines for about six or seven days, the boat was intercepted by a container ship which transported you and your family to Japan.

161 Your family remained there for approximately a year living with a group of nuns. Subsequently your mother's sister, having made her way to Australia via Hong Kong as a refugee, sponsored your family to come to Australia in 1988. You were aged about six at this time. Your family commenced living in Yarraville before moving to the Sunshine area. You retain a good relationship with your parents and your family visit you regularly in prison. Your family attended regularly during the course of the trial and have demonstrated their ongoing concern for your welfare.

162 You attended Albion North Primary School followed by attendance at St John's Secondary College from years 7 to 10. In 1999, you completed VCE at Caroline Chisholm Secondary College. The co-accused Long Tran is your school friend. You also know Hong Bui from your VCE years. You had an interest in athletics and you won a number of awards in that field of endeavour. You also played basketball and volleyball. You had an interest in drama and play groups which has continued and you have completed a certificate within the prison system.

163 In 2000, you completed a year at Victoria University at the St Albans campus studying business marketing. You then deferred that course because you wanted to get into a business accountancy course, but you has to wait to obtain entry into that course. In 2001 you worked full-time in a Safeway Supermarket and were employed there at the time of this offence.

164 A number of witnesses were called on your behalf at you plea in mitigation. Ms Hooker the Youth Development Officer within Port Phillip Prison described you as a reserved young man who is polite and well mannered. In respect of your future within the prison system, Ms Hooker is concerned because of your reserved nature. She has concerns as to your being placed in an environment which may be aggressive or by being placed with prisoners who are much older than you and who may be likely to manipulate you.

165 Your reserved demeanour was also attested to by other witnesses called on your behalf including Rodney Boyd (Volunteer Prison Worker), Buu Van Le (Family Friend), Bruce Tu (Cousin) and Ronald Dando (Friend and former class mate). Mr Dando also stated that he had never seen you to be either aggressive or violent on any occasion.

166 I note that following the completion of the second committal you offered to plead guilty to the crime of manslaughter. That offer was not accepted by the Crown. That also is a matter that I take into account as evidencing some recognition of your responsibility for the events of that night.

167 Ms Hooker also told the court that you held the trusted position of billet within the Youth Development Unit because you have demonstrated appropriate behaviour and good participation in the programmes on offer to you. She agreed that the term model prisoner applies to you. She described you as enthusiastic, you having actively sought out and participated in as many programmes as you can. Within the unit you have completed certificates in many programmes. Although not directly involved in the "hard-yards" programme, you actively assisted those who were involved. You have also completed programmes outside the unit at the Kangan TAFE obtaining certificates for several different programmes including information technology and hospitality kitchen operations.[18]

168 You were the youngest of your co-offenders at the time this offence was committed. You have excellent prospects of rehabilitation. You were of good character and you have shown genuine remorse for your conduct and the events of that evening. You have a strong and supportive family. Your conduct both during the trial and in prison reinforces your prospects for reformation. I accept the submission of your counsel that I should impose a lower minimum sentence than would otherwise be the case and that the sentence should not be one which will crush your spirit. As is the case with a number of your co-offenders you will find it difficult to cope with your period of incarceration.

Sentencing

Victim Impact Statements

169 It is important to add a human dimension to the tragic consequences of your acts. Nam Huynh was survived by his very young daughter. Her mother, Nam's partner, Noch Vu speaks of the sadness that her daughter will grow up never knowing who her father really was. She described James, Viet and Nam as the sunshine in the family as everywhere they went they would bring laughter and joy to their family and friends. Viet Huynh's partner, Thuy Thi Minh Tran and the mother of his very young son, spoke of the unforgettable images which haunt her and her son every day of their last sighting of Viet after he was recovered from the Yarra River. She speaks of her deep depression, her recurring nightmares and the stress and responsibility associated with having to look after Viet's child without his care and support. The emptiness in the household of Viet and Nam's parents and the daily struggle with sad memories is vividly depicted by their brother Vu Huynh. Their sister, Christine Duong Huynh narrated her and her family's suffering and the trauma during the search over ensuing days for the bodies of her brothers. Christine spoke of the burden which fell upon her and other members of the family and spoke of her mother's ill health and difficulty in coping with life since their death.

170 The sister of James Huynh, Linh Huynh, had a daughter, Jayde who was born on 8 July three years to the day after James died. Her daughter's birthday Linh Huynh says will always bring family heartache and pain. Linh speaks sadly of the fact that James was denied the opportunity to marry and have children. She speaks of the loss to the family of so much happiness, love, strength, dreams and aspirations. The family is left with a trauma from which they can never escape. John Huynh in his victim impact statement speaks of the guilt, hurt and pain which he experiences every day in reliving the death of his brother and two cousins. Tuan Huynh, the uncle of James, Viet and Nam explained how pain and grief has engulfed the entire family and how the extended family was called upon to assist and support the parents of the deceased during their suffering. One cousin describes the sadness that would overcome their parents each time they saw their nephews who were much the same age as their sons. Other cousins also made victim impact statements in which they speak of the family's great loss and the graphic images of the circumstances of their death which they have to endure.

Cuong Lam and Hung Van

171 The nature and the gravity of the offences that you have committed calls for manifest denunciation of your conduct. You took the lives of three young men, denying them any future and depriving their families of the love and joy which they brought them. Your conduct in preparing for the attack upon the Huynhs in Daly Street, chasing James and his brother and cousins, the frenzied attack upon James Huynh at the bus stop and the chase of Viet and Nam Huynh to the river was out of all proportion to the initial aggressive conduct of the deceased and John Huynh. You both had every opportunity to withdraw from the scene. You did not need to remain outside the nightclub. You chose to arm yourselves with lethal weapons. You did not need to give chase after the deceased turn and fled from Daly Street. By then James Huynh was already seriously injured. You, Cuong Lam ran to the scene of James Huynh's murder armed with a sword and at the very least remained present acting in concert with those who brutally assaulted him causing horrific injuries. He was no threat to you as he lay on the ground. You, Hung Van were driven to the bus stop where you alighted and with others savagely assaulted James Huynh whilst he was on the ground. He raised his hands in what appeared to one witness to be a plea for mercy but none was shown to him. Whilst armed you both gave chase to Viet, Nam and John Huynh who were so fearful of your intentions and your capacity to harm them that they took what they perceived to be their only avenue of escape. You instilled such a sense of fear into Viet and Nam Huynh that when you gave chase, though they could not swim, they chose to jump into the river to avoid facing your violence. You Hung Van, returned with David Nguyen and subjected James Huynh to a further ferocious attack in which David Nguyen inflicted further mortal wounds whilst you kicked the deceased a number of times.

172 When counsel for Hung Van came to make his plea on sentence he submitted that I should treat you both as having the same level of culpability and that your roles were much the same. I agree that is how I should view your roles. Though there are some differences in your conduct they do not, in my view, warrant treating either of you as more culpable. The likelihood is high that the jury convicted you upon the basis that you were acting in concert from the time that you armed yourselves in Daly Street and throughout the ensuing period when the three murders were committed.

173 At the commencement of the plea made on your behalf counsel for Hung Van rightly observed that the principles of condemnation, punishment and general and specific deterrence must take a primary place in fixing your sentence. I should not fix a minimum term which is lower in each of your cases than is necessary to give effect to these principles.

174 In relation to the murder of Viet and Nam Huynh the prosecution has submitted that for the purpose of sentencing no distinction should be drawn between a murder where an offender has actually inflicted the injuries which caused death and where an offender by his conduct creates in the mind of the victim a well founded and reasonable apprehension of danger such as to make it a natural consequence that the victim would take steps to escape which lead to their death. By the jury's verdict you were found to possess either an intent to kill or an intent to cause really serious injury to Viet and Nam Huynh at the time that you chased them and they jumped into the river to escape from you. Your moral culpability is not to be reduced by the fact that your intention as to the mode of their death was not precisely fulfilled. That is to say it is immaterial that Viet and Nam's death was caused in a way which you did not precisely foresee.[19]

175 There may be circumstances where, for the purposes of sentencing, the conduct of an offender who causes the deceased's death by the infliction of injuries will not necessarily to be equated with the conduct of an offender who inflicts no injury upon the deceased but causes the deceased to take steps to escape which lead to the victim's death. Your counsel did not suggest this was such a case. In the present circumstances no different head sentence between Count 1, and Counts 2 and 3 is called for. You had already subjected James Huynh to a ferocious attack. Your intent was clear. Viet and Nam Huynh knew the fate which awaited them if they did not flee.

176 It was submitted on Cuong Lam's behalf that as the murder of Viet and Nam Huynh arose out of the same act on your part and occurred at the same time there should not be a great cumulation of the sentences on Counts 2 and 3. That is to say it was submitted that I should largely make them concurrent with each other. Reference was made by Mr Grant to the sentences imposed in a number of cases of notorious offenders who were convicted of multiple murders.[20] Senior counsel for the Crown, in responding submitted that when a Court deals with what for brevity may be called multiple murders a life sentence may be called for without the fixing of a non-parole period. This will be so because the sentencing judge must give sufficient emphasis to the sanctity of each human life.

177 The Crown submitted that were it not for your youth which is a factor which warrants clemency, a life sentence with no minimum term would have been appropriate as you have been convicted of killing a number of victims in horrendous circumstances.[21] Because of your age the prosecution submitted that it would not be appropriate that I impose a life sentence but it was submitted that I should impose a term of imprisonment which reflects the very serious nature of your criminal conduct and the fact that you have been found guilty of three murders. In making orders for cumulation or concurrence I have imposed an effective sentence which I consider represents the proper period of incarceration looking at the totality of your criminal behaviour.[22]

178 In fixing the appropriate sentences I have in each of your cases taken into account the considerations set out in the Sentencing Act 1991. I have had regard to the objective gravity of your offences, your personal circumstances and your prospects for rehabilitation. The sentences which I impose must manifest the Court's denunciation of this type of conduct and must make adequate allowance for both general and specific deterrence. Because of your sound prospects for rehabilitation and your relative youth I have fixed a minimum sentence which is lower than would otherwise have been appropriate.

179 Pursuant to s.18(4) of the Act, I declare the period of 1254 days as already having been served by each of you under the sentences I impose and I so certify and direct that this declaration and its details be entered into the Court record. Cuong Quoc Lam and Hung Tu Van, for the murder of James Huynh on 8 July 2002 I sentence each of you to 18 years of imprisonment. For the murder of Viet Huynh on 8 July 2002 I sentence each of you to 18 years imprisonment. For the murder of Nam Huynh I sentence each of you to 18 years imprisonment. I make the following orders for cumulation on Count 1 being the base sentence: - 6 years of the sentence imposed on Count 2 and 6 years of the sentence imposed on Count 3 should be served cumulatively upon each other and upon Count 1. The total sentence is therefore for each of you 30 years imprisonment. A period of 23 years is to be served by each of you before you become eligible for parole.

David Nguyen

180 You have been convicted of the murder of James Huynh. With the use of a sword you inflicted the most horrific injuries upon a young defenceless man who was lying on the ground already seriously injured. In fixing the appropriate sentence I have had regard to the objective gravity of your offence, your personal circumstances and your prospects for rehabilitation. The sentence which I impose must reflect this Court's denunciation of your brutal conduct. It must deter others who are minded to resort to such violence.

181 It was the Crown case that you acted in concert with Cuong Lam and Hung Van. The Crown has submitted that although there are different aggravating circumstances in each of your cases, there is no distinction of substance to be made between your levels of culpability. The Crown submitted that because of your criminal history I should take the view that you do not have the same prospects for rehabilitation as Cuong Lam and Hung Van.

182 Pursuant to s 18(4) of the Act I declare the period of 1,236 days as already having been served under the sentence I impose and I so certify and direct that this declaration and its detail be entered into the Court record. Thanh Nha Nguyen, for the murder of James Huynh I sentence you to 18 and a half years of imprisonment and I direct that you serve a minimum of 15 years imprisonment before becoming eligible for parole.

Johnny Nguyen

183 You have been convicted of the murder of James Huynh. Your conduct constituted a most serious form of aiding and abetting the commission of the crime of murder. Although you did not inflict any injuries upon the deceased the sentence which I impose must demonstrate that those who assist or encourage others to commit such a crime share the responsibility for its commission. The sentence which I impose must manifest the sanctity of human life.

184 There is no principle which necessarily calls for an aider and abettor to receive a lesser sentence than a principal in the first degree, but the Crown recognises that your conduct as an aider and abettor should attract a lesser sentence than the principals in the first degree because of the circumstances of the case; not because your liability is accessorial.[23] Both your counsel and the Crown submitted that I should treat your conduct as significantly less serious than that of any of the principal offenders but that your conduct was more culpable than that of any of the other co-offenders who were convicted as aiders and abettors.

185 Pursuant to s 18(4) of the Act I declare the period of 1,240 days as already having been served under the sentence I impose and I so certify and direct that this declaration and its detail be entered into the Court record. Linh Van Nguyen, for the murder of James Huynh I sentence you to 16 years of imprisonment and I direct that you serve a minimum of 12 and a half years imprisonment before becoming eligible for parole.

Long Tran and Hong Bui

186 You have both been convicted of the murder of James Huynh. Both of you aided and abetted the commission of that crime. Although you did not inflict any injuries upon the deceased, you assisted and encouraged the principal offenders to commit murder and by law you are responsible for its commission. In imposing the sentence that I do I am bound to reflect the Court's denunciation of such conduct and emphasise the sanctity of human life.

187 The prosecution does not disagree with the submission made on your behalves that I should view your roles in the commission of this crime as far lesser than that of the principals in the first degree or Johnny Nguyen though he was presented as an aider and abettor. It was submitted on your behalves that I should impose an appropriate head sentence with a longer period of parole achieved by the fixing of a lower minimum term than might otherwise be the case.[24]

188 I have taken into account the matters which were emphasised as mitigatory and which also demonstrated that your prospects of rehabilitation are sound and warrant a lower minimum term than should otherwise be imposed. Your youth, the absence of any criminal record, the strong level of family support and your conduct since you have been on remand strongly point to your prospects for rehabilitation.

189 Pursuant to s 18(4) of the Act I declare the period of 940 days as already having been served under the sentence I impose on Long Thanh Tran and the period of 760 days as already having been served under the sentence I impose on Hong Bui and I so certify and direct that these declarations and their details be entered into the Court record. Long Thanh Tran and Hong Bui for the murder of James Huynh on 8 July 2002 I sentence each of you to 15 years imprisonment and I direct that each of you serve a minimum of 11 years imprisonment before becoming eligible for parole.

Hoang Tran

190 You have been found guilty of the murder of James Huynh. You aided and abetted the principals in the first degree in the commission of this crime. The encouragement of others to commit the crime of murder is a serious crime. In fixing the appropriate sentence I have taken into account the considerations set out in the Sentencing Act 1991 and I have had regard to both the objective gravity of your offence and your personal circumstances. The sentence which I impose upon you must manifest the Court's denunciation of your conduct and make adequate allowance for both general and special deterrence.

191 The Crown accepts the submission made by Mr Rochford on your behalf that your conduct should be viewed as less culpable than that of any of your co-offenders. That is to say your conduct warrants the imposition of a lower head and minimum sentence than your co-offenders.

192 Pursuant to s 18(4) of the Act I declare the period of 760 days as already having been served under the sentence I impose and I so certify and direct that this declaration and its detail be entered into the Court record. Hoang Tran, for the murder of James Huynh I sentence you to 14 and a half years of imprisonment and I direct that you serve a minimum of 10 years imprisonment before becoming eligible for parole.

Orders

193 In each of your cases pursuant to s 464ZF(1) Crimes Act 1958 I order that the forensic sample and any related material and information obtained pursuant to the informed consent given by each of you be retained for placement on the database.

194 I am satisfied that in all the circumstances the making of the Order is justified having regard to the seriousness of the circumstances of the offending, the fact that the Order is not opposed and the fact that the granting of the Order is in the public interest.

[1] Director of Public Prosecutions v Lawrence [2004] VSCA 154; (2004) 10 VR 125 at 132 [22]; R v Angelopoulos [2005] VSCA 258; R v Ung [2002] VSCA 101 per Eames JJA at [18-30] and per Callaway JA at [38-41]; R v Misokka Unreported Victorian Court of Appeal 9 November 1995 per Vincent AJA at [48]; R v Pham & Ly (1991) 55 A Crim R 128 per Lee CJ at 135.

[2] R v Skura [2004] VSCA 53 per Smith AJA at [52]; R v Dardovski [1999] VSCA 81 at [19].

[3] R v Reid [2005] NSWSC 230 at [108]; R v Teichelman [2000] VSCA 224.

[4] R v Gray [1977] VicRp 27; (1977) VR 225 at 231.

[5] Weininger v R [2003] HCA 14; (2003) 212 CLR 629; (2003) 196 ALR 451; Olbrich v R [1999] HCA 54; (1999) 199 CLR 270 at 280; Storey v R [1998] 1 VR 359 at 369; R v Cheung [2001] HCA 67; (2002) 209 CLR 1; (2001) 76 ALJR 133.

[6] See Footnote 5 Weininger at 453 [24].

[7] T 54-5.

[8] Exhibit B on plea.

[9] R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 per Gibbs CJ at 389; Savvas v R [1995] HCA 29; (1995) 183 CLR 1 per Deane, Dawson, Toohey, Gaudron and McHugh JJ at [9]; R v Nicholas (2000) 1 VR 356; [2000] VSCA 49 at [166].

[10] Newman & Turnbull v R [1997] 1 VR 146 per Winneke P at 150 with whom Hayne JA and Crockett AJA agreed; R v El-Kotob (2002) 4 VR 546; [2002] VSCA 109.

[11] Exhibit B on plea.

[12] Section 31.

[13] Exhibit A.

[14] T 215.

[15] Exhibit A.

[16] Exhibit C at 5.

[17] Exhibit B reference by Mark Beauglehole.

[18] Exhibit B on plea.

[19] Royall v R ([1991] HCA 27; 1991) 172 CLR 378 per Mason CJ at [43], per Deane and Dawson JJ at [31] and per McHugh J at [73]. In Royall's case the applicant had ferociously attacked the deceased with the requisite intent. In those circumstances the offender's moral culpability was not diminished by reason that death occurred as a consequence of the victim's attempt to escape from the offender.

[20] Fox, Richard and Freiberg, Arie (1999) Sentencing: state and federal law in Victoria (2nd Edition), Oxford University Press, South Melbourne at 12.207.

[21] R v Coulston [1997] 2 VR 446; R v Lowe [1997] 2 VR 465.

[22] Pearce v R (1998) 194 CLR 610; Mill v R (1988) 166 CLR 59 at 62-63; R v Kalache [2000] NSWCCA 2; (2000) 111 A Crim R 152 per Sully J at 184.

[23] R v Guthrie & Watt [2003] VSC 323 at [31].

[24] R v Houston & Stanhope I (1982) 8 A Crim R 392 per Starke J at 399 with whom Crockett and O'Bryan JJ agreed at 402; R v JTAV [1999] VSCA 75 (5 May 1999) per Charles JA at [20], per Chernov JA at [25-26}; R v PP [2003] VSCA 100; (2003) 142 A Crim R 369 per Callaway JA at [6-17]; Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525 per Mason CJ and McHugh J at 531-532; R v Nguyen [2003] VSC 62 per Warren J at [30].

At a glance

Court

Decision date

Before

Source

Judgment (7 paragraphs)

Parties

Cases Cited (13)