R v Nguyen [2001] VSC 278

Supreme Court of Victoria|2001-08-10|Before: Flatman J

SENTENCE - manslaughter - criminal negligence - discharge of firearm whilst affected by alcohol in suburban residence.

Dat Tuan Nguyen, you were presented in this court on a count that at Footscray in the State of Victoria, between 27 and 28 June 1998, you murdered Duc Doan Tran. The jury found you not guilty on that charge, but guilty on the alternative charge of manslaughter. Manslaughter was put to the jury in two ways, manslaughter by unlawful and dangerous act or manslaughter by criminal negligence.

The facts, in my view, supported a verdict by either route, and in terms of sentencing discretion, the culpability would, as Mr Morgan-Payler submitted, be much the same on either. Or the purpose of this sentence I am prepared to accept a submission by Mr Montgomery that the jury verdict was based on criminal negligence.

On the evening of 27 June, you had been drinking with friends and engaging in a karaoke night. The evidence suggests that you drank half a bottle of whisky prior to coming home and that you were adversely affected by alcohol. The fact that you were so affected was confirmed both by the evidence of your step-daughter, Amina Tran, and the way in which your case was presented to the jury. After going to buy some cigarettes, you smoked a cigarette and then went to the back of the house, between the shed and the neighbour's fence, and collected a shotgun you were keeping there. Your reason for such activity was that you wanted to clean the gun and in the future learn how to use it to go hunting with your friends. Although you professed ignorance of the precise nature of the gun, it would appear from your description that it was a sawn-off over and under shotgun. In your evidence at the previous trial you said that the deceased came into the kitchen and you were having a conversation with him. You said that you were seated on the floor, with the gun between your legs, with the muzzle pointing in an upwards direction and the deceased was bending towards you. In your words, you were fiddling with or cleaning the gun at the time.

The gun discharged, hitting Duc Doan Tran in the right chest just below the right shoulder. Within an hour he died from very severe wounds.

You then hid the shotgun, returning the following Monday to ultimately dispose of it in the sea at Altona.

When the police sought information from you, you misled them as to your role in the shooting. Your true involvement was contained in a conversation with your de facto wife, which was covertly tape-recorded, and in your evidence from the previous trial.

You are now 46 years of age, having been born on 5 December 1955 in Vietnam. Your father was an official working with French authorities. He was a victim of the communists who took over from the French. You left Vietnam in 1982 and moved first to Hong Kong and then to New Zealand, before coming to Australia. In New Zealand and Australia you worked hard as a machinist. In the early 1980s you met Ngoc Trinh in Hong Kong. You met up with her again after her marriage had broken down. During the time you lived with her in both New Zealand and Australia, you came to know well both Amina Tran and the deceased. On many occasions you used your money to benefit the deceased in his upkeep, his schooling and otherwise.

A report from psychologist, Mr Healey, which was tendered at the last plea, has also been tendered in this court. In this report, your intelligence is assessed as below average. He has referred to individual circumstances involving your depression, anxiety problems with physical health and poor esteem. There are other mitigating factors.

You come before this court as a person with no prior convictions. At a previous trial on 12 November 1999, you were convicted of murder. Until your appeal was successfully concluded, on 27 February 2001, you had hanging over your head a sentence of 17 years with a minimum of 12. I accept that the experience of this sentence in the circumstances would have been a severe hardship for you.

I also accept that you have previously offered to plead guilty to manslaughter. While no plea of guilty was actually made, your counsel did not advance any real arguments in this court as to why you should be acquitted of that charge. I also accept that you had supported the deceased, Duc Doan Tran, and that you had genuine feelings of remorse in relation to what had occurred. I note that you have maintained your relationship with your de facto wife and family and that you have a genuine body of support.

Having said that, I must emphasise that, in my view, the crime is a very serious one. Whilst the crime of manslaughter can attract quite a disparate range of sentences, the unlawful taking of a human life is recognised in the community at large as one of the most dreadful crimes in the criminal calendar. Parliament has recently recognised this in increasing the maximum penalty from 15 to 20 years in September 1997.

The reason you had this weapon in your possession on this particular night is a puzzling one. I do not accept that you were intending to use it in the manner that you described. To some extent, your purpose in having the gun may be irrelevant, as your counsel has suggested, and it is inappropriate for me to speculate further. However, in another sense it is not irrelevant. In the circumstances of this case, you had no right to have the gun at all. We as a community are vigilant to ensure that guns of any kind are kept in the safest possible circumstances. Guns of this kind, in the context of this case, have no place in suburban homes.

To my mind, there are at least five features of this case that make it a serious example of manslaughter by criminal negligence.

Firstly, the fact that you had the gun at all;

Secondly, the fact that you had such a gun in circumstances where you were completely ignorant of its operation;

Thirdly, the fact that you chose to clean or fiddle with the gun when you made no investigation as to whether it was loaded or otherwise; and

Fourthly, the fact that you chose to carry out this operation with the gun in the kitchen of the house occupied by your wife and family. Far from this being an isolated spot as suggested by your counsel, it was a place where it could be expected that people would come and go.

Finally, and significantly, that this all happened in circumstances where you were, on your own case, adversely affected by alcohol.

This offence resulted in the cutting short of a young man's life only several days short of his fifteenth birthday. Your step-son, Duc Doan Tran, lived in a responsible environment where his father was most concerned about his welfare. The covert tape-recording and the victim impact statements give weight to the anguish his loss has and will cause his mother, father and sister.

While I am conscious of the mitigating features of your individual circumstances, in my view, general deterrence must, nonetheless, play a significant part in the exercise of my sentencing discretion. In the circumstances, I impose a sentence of six years imprisonment and I fix a non-parole period of four years. I declare that you have spent 1,136 days pre-sentence detention inclusive of today and I direct that the declaration be noted in the records of the court.

Pursuant to s.464ZF(2) of the Crimes Act, I order that Dat Tuan Nguyen undergo a forensic procedure for taking of blood and/or saliva samples in accordance with Subdivision 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for the placement on the database. Having considered the seriousness of the circumstances of the forensic sample offence, 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 warranting the order, the fact that the order is not opposed and the fact that the granting of the order is in the public interest.

I am required to inform you that, in undergoing a forensic procedure for the taking of a blood or saliva sample, a member of the police force may, if necessary, use reasonable force to enable the procedure to be conducted.

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