R v LK

[2019] NSWSC 605

Supreme Court of NSW|2019-02-22|Before: Hamill J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2019-02-22

Before

Hamill J

Catchwords

R v McArthur [2014] NSWSC 1401 R v S [2000] NSWCCA 13
(2000) 111 A Crim R 225 R v Sukkar [2006] NSWCCA 92

Source

Original judgment source is linked above.

Catchwords

R v McArthur [2014] NSWSC 1401 R v S [2000] NSWCCA 13(2000) 111 A Crim R 225 R v Sukkar [2006] NSWCCA 92

Judgment (15 paragraphs)

[1]

Judgment

On 6 December 2015, on a stretch of grass on the side of a road in Villawood, Tu Luong was beaten with metal bars and stabbed. He was taken to hospital but died later that day. Mr Luong's death arose out of a drug deal gone wrong. He owed money for an ounce of methylamphetamine that was given to him "on tick". A number of people were charged with offences arising out of Mr Luong's killing and six men are to stand trial later this year.
On 24 February 2016, LK was charged with Mr Luong's murder. On 25 October 2018, LK pleaded guilty to manslaughter and the prosecution accepted his plea in full satisfaction of the indictment. The basis of the plea is that the offender was involved in a joint criminal enterprise to engage in an unlawful and dangerous act, namely to assault the deceased. The prosecution accepts that he did not have an intention to kill or to inflict grievous bodily harm and that he did not contemplate that the criminal enterprise in which he was engaged would result in Mr Luong's death or really serious injury. By his plea of guilty, LK accepts that he is criminally responsible for Mr Luong's death and he is now to be sentenced for his role in the killing. The offence is extremely serious which is reflected in the maximum penalty of 25 years. [1]
The facts of the offence were set out in an agreed statement of facts tendered as part of the prosecution's case on sentence. These facts, to the extent that they attribute roles and responsibility to the other alleged offenders do not represent any findings of fact, and are not admissible, against those other people. It is expected that the offender will give evidence in accordance with those facts at the murder trial in October.

[2]

Facts of the Offence

Mr Luong's killing can only be understood by reference to the events in the days leading up to 6 December 2015. The offender knew the deceased only as Michael. His involvement arose from his role as a driver for a co-accused, a job for which he was paid in drugs.
On 4 December 2015, an ounce of methylamphetamine or "ice" was allegedly supplied to a co-accused, Tony Ho, whilst he was in the company of LK and another witness. The ice was valued at $4000 and supplied "on tick", which is to say that payment for the drugs was to be made later. On 5 December 2015, Mr Ho supplied the drugs to Mr Luong and made a similar arrangement for the delayed payment. The deceased was to supply the ice to a person in a home unit in Cabramatta. Mr Ho drove to the unit block with Mr Luong and another person, and they remained waiting in the car while the deceased entered the unit block. Mr Luong did not return. It was the belief of the various accused that they had been "ripped off" by Mr Luong.
The deceased was sent a message, via his girlfriend, that he was to make urgent contact as he had taken "things" without paying.
On 6 December 2015, LK agreed to drive four of the co-accused - Mr Ho, Sinh Hoang, Abdul Feroz and Vuong Nguyen - "around the corner" to meet up with the deceased on Belmore Street, Villawood. The offender was driving a black Honda Accord. During the drive, LK overheard Mr Ho speaking on the 'phone with Min Trinh who was travelling in another vehicle. A short time later a white Ford Territory came alongside LK's vehicle. Witness A, Mr Trinh, Jason Pham and the deceased were in the second car. The vehicles separated and LK pulled his black Honda over to the kerb. Mr Hoang jumped out of the car and ran to the Ford Territory. Mr Trinh was already out of the other vehicle and pointed to the deceased who was sitting in the back seat of the car. Mr Ho and Mr Feroz got out of LK's car and each produced a metal bar. Mr Nyugen also left the vehicle and approached the Ford Territory.
The co-accused opened the door to the back seat and started to assault the deceased. Mr Luong was screaming and kicking out at the co-accused while they attempted to pull him out of the car. At this stage he was struck with a knife that had been produced by one of the co-accused as well as the metal bars. One of the co-accused managed to push Mr Luong part way out of the back seat and Mr Luong was dragged from the vehicle and pushed onto a grassed area where the assault continued. LK saw the victim stabbed in the leg and he heard Mr Luong screaming. LK could see the events from the car and said the last time he saw the victim he was seated upright.
LK did not leave the vehicle while these events unfolded. He was not aware of the extent to which Mr Luong was to be injured and, it seemed to be accepted by the prosecution, did not know weapons were to be used. However, he had seen a knife earlier in the day and was instructed to sharpen it. There was no mention that the knife was to be used in the assault. He last saw the knife when it was on the kitchen table back at Mr Ho's house.
Following the assault, the co-accused got back into LK's car and travelled to a house in Fairfield where they were joined by the occupants of the Ford Territory. The commotion alerted neighbours to the events that were unfolding. Mr Luong was taken to Liverpool Hospital but he died a short time later.
A post-mortem examination revealed that the cause of death was a stab wound to his chest. There were two wounds to the chest area. There was a 9cm deep wound that penetrated the right ventricle of the heart. The other wound was 2.2cm deep. There were a number of other injuries including stab wounds to the abdomen, left upper posterior thigh and right hand as well as subcutaneous haemorrhaging to the right side of his neck.
The police seized LK's vehicle on 19 January 2016 to conduct a forensic examination. The offender stored the car in the car park at his workplace to avoid police detection. Fingerprints found in the vehicle were consistent with those of the co-accused.

[3]

An assessment of the objective seriousness of the offence

The offender did not personally inflict any of the injuries or take part in the assault. However, he is criminally responsible for the actions of his co-offenders with whom he was engaged in a joint criminal enterprise. His culpability arises from his involvement in the joint criminal enterprise to locate and inflict unlawful violence on the victim. Whilst he told police at one stage that it "wasn't supposed to get violent", his plea of guilty involves an acknowledgment that he was aware of (at least) the possibility that the victim would be assaulted by the co-offenders. He knew full well that he was involved in a criminal escapade to recover a drug debt and that violence might be employed. The withdrawal of the murder charge means that he must not be sentenced on the basis that he was aware of the possibility that others would act with intention to kill or inflict grievous bodily harm in the course of the assault.
There are a number of aggravating features of the offence. Not all of them are to be taken into account pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The parties agreed that the fact that the offence was committed in the company of a number of co-offenders was a factor to be taken into account under the provision. The remaining matters are taken into account in an assessment of the objective gravity of the offence although not strictly under s 21A (insofar as there is any meaningful distinction). These include: 1. The offence was committed in the context of relatively large scale drug dealing and was, accordingly, part of a planned or organised criminal activity. There was some planning involved in the offence but the offender was not part of the planning and generally followed instructions. 2. The offence involved the actual or threatened use of violence, although that it is a common feature of many cases of manslaughter. [2] 3. The assault occurred in a public place (although the Prosecutor withdrew a submission that the offence was committed with disregard for public safety). 4. The offence involved the use of weapons but the offender was not aware of this until quite late in the piece.
Contrary to the submission of Senior Counsel for the offender, I am not persuaded that the brevity of the attack provides very much by way of mitigation. The fact that the assault was swift and efficiently executed is not a circumstance that reduces the criminality to any significant degree.
To put it bluntly, this was an organised and brutal attack committed in circumstances where the defenceless victim was lured to the scene because he owed money for drugs. Mr Ho had told the offender earlier in the day: "I'm gunna hit him a couple of times you know, bash him a little bit" and "fuckin I've got to get him. I can't let him get away with that."
In spite of his limited role in the offence, this is a very serious instance of manslaughter.

[8]

Prospects of rehabilitation

I am satisfied that the offender has good prospects of rehabilitation and is unlikely to re-offend in relation to a serious offence of violence. These findings are based on a combination of factors including the opinions of the authors of the reports.
Mr Sawires is of the opinion that LK has a "medium risk of reoffending". Dr Nielssen is of the belief that LK's "likelihood of any further offences would be greatly reduced if he was successful in giving up drugs." The Sentencing Assessment Report recommends various interventions designed to manage the risk of re-offending. A particularly important factor is that he has no further association with his co-accused. His undertaking to give evidence against the co-accused is likely to take him away from these anti-social influences.
As I have said, LK has no previous offences of violence and his criminal history contains what must be (based on the sentencing results) relatively minor offences. A number of the offences are typically associated with people who have substance abuse issues. None of these offences resulted in a term of imprisonment and he has complied with his bail conditions in this matter for a period exceeding three years.
The offender has seen numerous counsellors and psychologists over the years in relation to his substance abuse and associated psychological problems. A person with drug abuse issues may have multiple attempts at rehabilitation before they are successful. The fact that an offender has relapsed, or has failed in previous attempts at rehabilitation, or committed an extremely serious offence, does not mean that a sentencing court should give up on them or instinctively find that their prospects of rehabilitation are poor. LK reported to Mr Sawires that he has decreased his use of illicit substances and this was confirmed by his brothers. However, there have been some positive readings for opiates including as recently as 15 November 2018. There is a dispute as to the cause of the positive readings and LK has provided an account that is not considered credible by the author of the report.
In spite of his past, and possibly quite recent, failings, I am satisfied that LK is committed to reform. He acknowledges in his letter to the Court that he must be sent to gaol and wants to "stick close" to his family when he is released. With a structured re-entry into the community, I think his prospects of rehabilitation are good.

[10]

Assistance to authorities

One of the most significant features of the offender's case is his undertaking to provide assistance to the authorities and give evidence against his co-accused. On 25 October 2018, LK signed an undertaking to give evidence on behalf of the prosecution in the criminal proceedings of his co-accused (including any appeal or retrial). The offender gave evidence at the sentence proceedings in which he confirmed his intention to assist authorities and give evidence for the prosecution.
LK was first interviewed by police on 19 January 2016 when his car was seized and police made a "form of demand" (presumably) for details of who was using the car at relevant times. He provided a false account of his involvement in the offence and nominated "Johnny" as the driver of the black Honda Accord. The full content of that interview is not in evidence. On 24 February 2016, LK participated in a further interview with investigating police in which he admitted to being the driver, described the events that led to Mr Luong's death and acknowledged that he attempted to conceal his vehicle. It seems to be accepted that the version he gave on that occasion is largely true. He made a witness statement on 17 March 2017.
A confidential exhibit was provided and I have considered its contents in the context of the provisions of s 23 of the Crimes (Sentencing Procedure) Act.
Counsel for the offender submitted that there should be a discount of 10% for past assistance and 15% for future assistance. [3] If such a discount (25%) were added to the discount for the plea (15%), there would be a total combined discount of 40%. However, in the course of argument, the learned Prosecutor indicated that he would not make any submission against a total discount (including the plea of guilty and past and future assistance) of 50%. [4]
In spite of initially misleading police, LK provided an account in his electronically recorded interview on 24 February 2016 that is accepted by police and the prosecution as being truthful and accurate. Towards the end of that interview he told police "I'll help you out [in] any way, shape or form I can". [5] He provided further information in a statement dated 17 March 2017. The undertaking to give evidence came once the plea negotiations were resolved on 25 October 2018. In terms of the importance of his evidence, and as the Prosecutor observed, the offender is to give evidence in a trial involving six accused men charged with murder.
There is significant public utility in providing offenders like LK with meaningful reductions from an otherwise appropriate sentence in order to encourage others to assist in the detection and prosecution of serious crime. The provision of such discounts will sometimes, or often, result in sentences that may appear to be disproportionate to the gravity of the crime. However, provided the outcome is not "unreasonably disproportionate to the nature and circumstances of the offence" such a sentence is appropriate to fulfil the policy objective behind s 23. [6]
I have taken into account discounts provided in other cases going back many years. [7] I have also taken into account the observations of Simpson J (as she then was) in R v Lenati to which I referred in sentencing AC. [8]
In all of the circumstances of the present case, the appropriate reduction in sentence for past assistance is 12.5% and, for future assistance, 22.5%. This results in a total discount for assistance of 35%. With the plea of guilty attracting a 15% discount, there will be a total combined discount of 50%. I am satisfied, in view of the starting point upon which I have settled, that the application of these discounts will not result in a sentence that is unreasonably disproportionate to the objective gravity of the offence.

R v LK

At a glance

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Catchwords

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Catchwords

Judgment (15 paragraphs)

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Legislation Cited (3)

Cases Cited (18)