R v Nguyen [2010] VSC 528

2 This count of manslaughter arises from the death of Tim Nguyen who died as a result of a gunshot wound inflicted by a sawn off shotgun which you had obtained illegally not long before this incident and which you unintentionally discharged.

3 The incident occurred, as the Crown accept, accidentally in the early hours of 19 November 2008 when you, the deceased, and two other friends were present in a bungalow at the rear of your parents' home in Main Road East, St Albans. Most of the time leading up to the incident was spent playing computer games. The evidence suggests that over a period of three to four days you and they had been consuming the drug methamphetamine, better known as "ice" and as I understand it, you at least had been awake for all or most of that time.

4 The evidence also indicates that at about 4.00am on the morning of 19 November 2008 you produced a single shot sawn off shotgun which was behind you on the couch you were sitting on. It is not claimed you did that for any aggressive purpose. In your record of interview with police you said that you had obtained the gun for protection about a week before the incident from a "junkie off the street in Footscray". You gave evidence before me that the shotgun was kept, broken, in a zip up black bag. At some stage you pulled out the bag from behind you on the couch, which also contained approximately four or five shells, according to your evidence. What occurred next was the subject of some dispute. During your plea I heard evidence from you, and your two friends who were present being Mr Trung Hieu Dang, and Mr Johnny Pham. Both witnesses agreed that during the time leading up to the incident they had been using the drug "ice".

5 Mr Dang gave evidence that having produced the firearm you waved it around and after that "it just went off". He agreed that he had previously said he was not paying careful attention to what you were doing with the gun although he did say that you were showing the gun off and he persisted in his claim that you were waving it around and that he did not touch the gun at any stage.

6 Mr Pham gave evidence that there was a joke made and that you took a shotgun from behind you and "as an accident [you] stood up and the gun went off" but he didn't see you putting your hands on the trigger. He said that gun was not in a "broken" condition but was straight and the time between him first seeing the gun being held by you and it discharging was only two or three seconds. Although it was put to him that others handled the firearm he was quite definite that that was not possible. He said that despite his regular use of the drug "ice" and his acceptance in cross-examination that Mr Dang was, at the time, sitting very close to you.

7 Your evidence in this Court was that Mr Dang saw the gun and wanted to play with it, that he kept "nagging" you for about half an hour and that after resisting him, you eventually relented and handed him the gun to play with.

8 You gave evidence that when you gave the gun to Mr Dang the "safety" was on, there was no cartridge in the gun and that it was broken. Mr Pham however said that when he saw the gun it was straight. When questioned in detail, Mr Dang could not recall whether the gun was broken or straight at that stage. You maintain that after Mr Dang had played with the gun, you took it back, and it was then in a straight position. In your record of interview with police you said that there was one bullet lying around, "and he probably just put it in..." You say that you then took the gun back. By then it was straight, so you tried to break it in half to put it back into the zip up bag and that one of your fingers must have accidentally gone into the trigger hole and triggered it, causing the gun to discharge and the fatal wound to Tim Nguyen.

9 In his evidence, Mr Dang could not remember whether he had "nagged" you to show him the gun, however he denied that he had ever touched the gun or that it was handed to him in a broken condition or that he loaded a cartridge from the bag into the gun. Mr Pham also gave evidence that no one else touched the gun between the time he first saw it when you pulled it out, and the time when it went off, which he said was a few seconds later.

10 In the course of the prosecutor's cross-examination of you, you admitted that the cartridges for the firearm were all in the black zip up bag, and that you were the only one who handled that bag. You agreed that Mr Dang could not have loaded the gun although you said later in answer to Mr Toohey that Mr Dang was sitting next to you, the implication being that he could have reached into the bag even though you did not give it to him.

11 The law says that if I am to decide this issue against you, because it may result in a heavier sentence, then I have to be satisfied about it beyond reasonable doubt[1]. Based on the evidence about what occurred I have come to the following conclusions about which I am satisfied beyond reasonable doubt. In my view Mr Dang neither handled the gun nor did he load it. I am satisfied that you were the only person to handle that firearm on that night prior to it going off. The gun was closed and I am also satisfied that you accidentally pulled the wrong trigger when trying to break the gun to return it to the bag and to put it away. To some extent these conclusions do not make a significant difference to your sentence. Whether you handled the gun and caused it to discharge or whether you had given to one of your friends, affected as they were by the drugs they were consuming, so they could "play" with it and then, as you would have it, load the gun without you realising it before giving it back to you are both extremely negligent actions on your part.

12 After the deceased man was wounded you, Mr Dang and Mr Pham took him to the Sunshine Hospital in your girlfriend Tran Ly's car. Another friend followed in your vehicle. At the hospital you and your friends took him out of the vehicle and laid him on the ground outside the Emergency Department. One of your friends knocked on the hospital doors and called for help but you drove off leaving your friends at the scene. Mr Nguyen was already dead. You then sought to remove the evidence of what had occurred, cleaning up the bungalow and garaging your girlfriend's car. In the evening of 19 November 2008 you and your girlfriend drove to St Kilda Pier where you threw the shotgun into the water. Later, you co-operated with police to enable the gun to be recovered. On 20 November 2008 you handed yourself in to the Homicide Squad.

13 The Prosecution have submitted that you were "skylarking" at the time that this incident occurred by showing off the firearm to your friends, and that this offence should be regarded by me as being in the middle to lower end of the scale for offences of negligent manslaughter. Your counsel, Mr Toohey, did not concede that this was "skylarking" and he submitted that what occurred was that you quickly handled the weapon, you did not take aim, you believed that it was not loaded and that the safety catch was on and that you made a mistake in attempting to render the weapon safe. For this reason, Mr Toohey submitted that I should consider this offence at the bottom end of the scale of manslaughter offences.

14 However, manslaughter involves the loss of life and is therefore a very serious offence. The community is, and would continue to be, extremely concerned at the fact that you obtained a firearm illegally and were possessing it with ammunition while affected by the drugs that you and your friends were consuming. Once you pulled out that gun, disaster was almost inevitable.

15 One Victim Impact Statement was tendered by the Crown on your plea being that of Thanh Nguyen, the father of the deceased man. Mr Nguyen has detailed the pain and sadness associated with losing his son suddenly. Understandably, he writes that he is extremely affected by the death and that nothing will ever be the same. He also expresses concern about explaining the death to his two younger sons. As a result of the death, Mr Nguyen states that he has been unable to work for 20 months, which has had a serious effect on his ability to repay a mortgage. I have taken Mr Nguyen's statement into account in sentencing you.

16 Your personal circumstances were recounted to me on your plea and are thoroughly detailed in the report of Mr Ian Joblin, forensic psychologist, that was tendered on your behalf. You were born in Vietnam in 1987. Your father left that country when you were aged approximately two years and you continued to live there with your mother and grandmother, with whom you apparently had a good relationship. In 1996 at the age of nine years you travelled to Australia on your own. Your father was by then living in Australia and so you began living with him. It seems that from this point your life became more difficult. According to Mr Joblin, your troubled family circumstances are relevant in your offending and history.

17 Your father was apparently domineering and expected you to do all the household chores from a young age. You suffered considerable abuse at your father's hands and reported that he used not only his hands but weapons as tools of abuse. Your father is apparently a heavy drinker. Your mother came to Australia about four years after you did and moved into the house with you and your father. Your father began abusing your mother soon afterwards and at one point she attempted suicide and was hospitalised. Your parents are now separated although currently living under one roof and you have three younger sisters aged eight, six and four. At the age of 14 you left home and lived for some time on the streets and with friends, however returned to the family home in 2008 in order to ensure your father did not abuse your mother. You have reported that you have a good relationship with your mother and younger sisters however you have no relationship with your father.

18 You began primary school in Australia with no English skills and were ridiculed by other pupils. Your education ended in year 10 after infrequent attendance throughout year 9. Your ambition to study graphic design or engineering did not eventuate due to your inability to stabilise. Mr Joblin reports that your literacy is now satisfactory and that your English is fluent. As was submitted by Mr Toohey on your plea, you have no employment history at all, having worked one day in a chicken factory since leaving school. It is unclear how you supported yourself until this offence.

19 It was not contested on your plea that at the time of this offence you were using the drug "ice". You told Mr Joblin that you first used it experimentally three to four years ago however you did not enjoy it. More recently you began using it again at the encouragement of your friends, and did so to stay awake to continue playing computer games during the night. You reported to Mr Joblin that you believe you have developed a tolerance for the drug, and do not believe that you experience the same effects as other people: for you it would elevate your mood and keep you awake whilst others would shake, tremble and experience other reactions. You have denied that you experience psychotic paranoia, delusions or behave violently or aggressively whilst using "ice". You have told Mr Joblin that at the time of the incident, you were not in any psychotic state. You admit having previously hallucinated whilst using the drug, however you have indicated that you have sufficient insight to stop using the drug when this occurs.

20 In sentencing you, one aspect of concern is your plan for the future and your prospects for rehabilitation. On your plea, Mr Toohey frankly submitted that you have no plan of precisely what you want to do and that you have never given much thought as to where your future lies. When I asked Mr Toohey what this meant for your future prospects, he submitted that you were not a young man with many options. He said you proposed to try to learn some skills within the prison system in the hope that on your release you will have something to build on. You apparently have some interest in carpentry but you have not done anything to further that interest. It seems that you do not have much insight into how your life might develop in the relatively near future.

21 Mr Toohey also submitted however, that the fact that you do not have a clear plan for the future does not render your prospects for rehabilitation low and suggested that your history of abiding by bail conditions and the period between this and your previous offending is an indication that you present no danger to society. I agree with that submission. Mr Toohey further relied on the fact that you seem to have ceased your drug use and have no criminal matters pending against you and I agree that is to your credit. Also, Mr Toohey relied on your compliance with police referring to you voluntarily presenting yourself to the Homicide Squad and taking part in the record of interview, taking part in the re-enactment and complying with requests for the provision of fingerprints and forensic samples.

22 I note that you told Mr Joblin that you are no longer using "ice", and that you attended the Court Integrated Services Program whilst you have been on bail. Apparently you were successful in the program, however Mr Joblin has not sighted a report from CISP nor any drug screening test results which may or may not have been undertaken. Neither were such materials tendered on your plea. No other information was provided to me about any rehabilitation you had undertaken or are presently seeking. Mr Joblin notes in his report that he is concerned about your reported use of "ice".

23 Mr Joblin reports that you indicated "strong symptoms of remorse" in his interview with you and I accept that you are remorseful. You are emphatic that there was no argument between you and the deceased and that to you he was like the younger brother that you wished you'd had. You have indicated that if you could you would take the deceased's place and that you still cannot believe that you are responsible. According to Mr Joblin you were unsure how or whether to approach the deceased's parents at Court. When you gave evidence on your plea, you did appear to be genuinely distressed about what happened to the deceased. I also consider it is appropriate to regard your plea of guilty as a sign of remorse when considered with other evidence including Mr Joblin's report.

24 You have a criminal record which you have admitted through your counsel. This includes two separate appearances for affray and other charges of causing serious injury recklessly, unlawful assault, theft and destroying or damaging property. Mr Joblin concludes however that he is strongly of the opinion that the offending in this incident is not an extension of your previous offending. The previous offences all occurred in 2005 whilst you were living on the streets and were involved in antisocial behaviour. The most serious affray occurred as a result of an altercation in the Fitzroy Gardens between two gangs of Vietnamese youths. There was some suggestion that you assisted in arming your gang and that you may have been carrying a samurai sword. Whatever the circumstances, you were sentenced in the County Court to serve a nine month intensive corrections order.

25 You have been on bail since 5 February 2009 when such bail was granted by his Honour J Forrest J. Since that time, you have complied with all bail conditions and indeed have remained on bail up to the present time with the agreement of the prosecutor.

26 Mr Rochford submitted that an aggravating factor in the offending was that you are a prohibited person in possession of the weapon. This status arises pursuant to section 3(a)(v) of the Firearms Act 1996, because not more than 5 years have expired since you finished serving a term of imprisonment of less than 5 years for an indictable offence, namely affray. Furthermore, the gun was not registered, nor did you hold a licence.

27 Mr Toohey, on the other hand, submitted that despite your criminal history, there is no evidence before me of ongoing issues involving aggression or violence. He submitted that this incident did not involve wanton or deliberate violence. He submitted that this offence falls into a completely different category of manslaughter to that often seen in this Court in that there was no deliberate act of violence. Based in part on these factors, your counsel urged me to consider imposing a sentence upon you which did not require immediate imprisonment, and submitted that a suspended sentence would be appropriate in the circumstances.

28 Mr Rochford on behalf of the Director of Public Prosecutions submitted that the sentencing range should be six to seven years as a head sentence with a minimum term of four to five years. Youth and the chance of your rehabilitation are important factors to be taken into account in fixing the appropriate sentence to be imposed on you. They are however only some of a number of matters that must be taken into account. Whilst giving full weight to your youth, it is necessary to impose a sentence on you which will assist to deter others from similar conduct. I also consider that you need to understand that conduct like this must have substantial consequences for you.

29 In relation to Mr Toohey's proposition that I suspend your sentence, Mr Rochford properly pointed out that given the seriousness of this offence and pursuant to s27(2B) of the Sentencing Act 1991 I must not so order unless I am satisfied that making such an order is appropriate given the existence of exceptional circumstances and that such an order is in the interests of justice.

30 Mr Toohey submitted that exceptional circumstances do exist and that it is in the interests of justice to suspend the sentence. In support of these propositions, Mr Toohey reiterated the points he had made about the circumstances in which the offence occurred, your youth and submitted that there was no violence involved. I cannot agree with that submission. This is a case which calls for an immediate custodial sentence.

31 These circumstances represent yet another in a long line of tragedies which spring from the combination of the consumption of drugs and the use of weapons. The criminal courts are regularly confronted with cases like this where weapons are used in circumstances where their potential to cause tragic harm to victims is either not understood or thoroughly underestimated and where they are treated as playthings, akin to computer games or mobile phones. You have been a witness to the dreadful tragedy that occurs when a shotgun wound strikes a person in the chest and causes fatal injuries. I accept that the circumstances of this offence will of course be with you for the rest of your life, but as I have said, young people such as yourself must be persuaded to resist the temptation to illegally acquire weapons and to handle them whilst affected by drugs such as methamphetamine and particularly in circumstances where you are sleep deprived as a result of the consumption of that drug.

32 In my opinion the appropriate sentence for this matter is that you be sentenced to be imprisoned for a period of six years. I order that you serve at least four years before being eligible to be released on parole.

33 Pursuant to s6AAA of the Sentencing Act 1991 I note that but for you plea of guilty, the sentence that I would have imposed would have been a head sentence of seven years' imprisonment with a minimum term before eligibility for parole of five years. I declare that your pre-sentence detention is 65 days and that that period be reckoned as having been served as part of part of your sentence.

34 I direct that these declarations and their details be entered into the records of the Court.

35 I have made the forensic and disposal orders sought by the Prosecution and not opposed on your behalf.

[1] R v Storey [1998] 1 VR 359