R v Nguyen [2011] VSC 73

2 You were arrested on 8 November 2004 and charged with the murder of Hien Truong Luu and the attempted murder of Chau Nguyen.

3 You stood your trial for these offences in September and October 2007. You were convicted of both offences by a jury. You were sentenced to a total effective sentence of 15 years. A period of 10 years was fixed before you would be eligible for parole.

4 You subsequently appealed to the Court of Appeal against your convictions. On 18 December 2009, the Court of Appeal allowed your appeal and quashed the convictions and you were released from custody.[1] You had then been in custody for five years, one month and ten days. All but nine months of that period had been served as part of the sentence imposed by Williams J on 17 December 2007.

5 The Director of Public Prosecutions then applied for Special Leave to Appeal against the order of the Court of Appeal and you cross-appealed. In the result, both appeals were effectively allowed, which led to an order for your re-trial.[2]

6 A sealed copy of the order of the High Court has been placed on the file. It follows that you were liable to be tried for offences which occurred in 2004 and in relation to which witnesses had last given evidence in 2007. Although it may have been that the task of the prosecutor may have been ameliorated by the passing of the Evidence Act 2008 (Vic), I am satisfied that the conduct of any re-trial would have been no easy task. Delay would not necessarily have made the task of your legal advisers any easier.

7 In the circumstances, the resolution of the matter was a sensible and practical result. I should observe, however, that the case for manslaughter against you is a strong one.

8 In this case, I have available to me a large amount of material from the original trial. I have her Honour's detailed sentencing remarks. I have been informed by your counsel, Mr Croucher, and counsel for the prosecution, Mr T. Gyorrfy, that they both accept her Honour's findings, with appropriate variations, given the matters to which you have pleaded guilty in comparison with the matters for which you fell to be sentenced by her Honour.

9 In the early hours of 8 November 2004, you and your co-accused, Dang Khoa Nguyen and Bill Ho, went to the flat in Carlton where these events occurred. In a two week period leading up to 8 November, your co-accused had been dealing in heroin with one Mau Duong, who had arranged for one delivery to be made to the Carlton flat.

10 You were at your home at the Housing Commission flats at 106 Elizabeth Street, Richmond with Khoa Nguyen when you were collected by Ho. You were all affected by alcohol when you left the flats at 12.19am. Ho had a revolver with him. It is accepted that you and Khoa Nguyen did know about the gun.

11 When the three of you entered the flat, there were a number of young people there, including the two victims, Mr Hien Luu and Mr Chau Nguyen. You and Ho demanded to be told where "Mau" (that is Duong) was. You started waving a sword around. You used the sword to attack two of the residents of the flat, but in a largely superficial way. Your behaviour at that time was somewhat strange. You may have brought the sword with you or you may have found it at the flat. It is accepted that it cannot be established beyond reasonable doubt that you did bring the sword with you. If that fact could have been established beyond reasonable doubt, the case against you might well have been a more serious one. Your use of the sword does show your commitment to the use of both violence and threats of violence to extract the information you and the others were seeking, and before it was used, you knew of the presence of the gun and must have seen it being used for similar purposes.

12 That lays the foundation for your plea to manslaughter. The unlawful and dangerous act is the killing of the deceased by Ho shooting him in the head. You are not guilty of murder because you did not intend or foresee the possibility of death or serious injury as a result. You were party to an agreement capable of being spelled out in all the circumstances, which had within its scope an act which was both unlawful and dangerous, unlawful being either a direct use of force or the threat to use force and dangerous and carried with it an appreciable risk of serious injury. It seems to me that by the time the fatal shot was fired, you were party to such an agreement. Such a position is consistent with each of your co-accused being convicted of murder in accordance with their own intentions or their own understanding of any agreement.[3]

13 It seems to me, although it is unnecessary for the matter to be finally concluded, the liability for manslaughter by a secondary party will be much easier to establish and the distinction recognised here by the High Court that even though one or more accused may be convicted of murder, the possibility that other accused may be guilty of the lesser offence of manslaughter is frequently open.

14 You are to be sentenced, therefore, for your part, which was to attack and threaten others not intending death or serious injury. Since each of your co-accused was convicted of murder and attempted murder, a comparison with their sentences is unhelpful. When sentenced for murder, you were treated as an aider and abetter. Such a distinction is no longer of consequence, as you are now to be dealt with for the lesser offences indicating your criminality.

15 The factors personal to you are also of importance. I am happy to adopt what her Honour said when sentencing you for murder and attempted murder:[4]

"Mr Quang Nguyen, counsel making the plea on your behalf referred the Court to reports from the psychiatrist, Dr Lester Walton, to the Magistrates' Court at Melbourne dated 20 June 2005 and the forensic psychologist, Mr Tim Watson-Munro, to your solicitors dated 5 November 2007 for details of your personal circumstances.

There is some debate in the reports about your birth date which I will treat as being December 1972. I do not regard it as significant whether or not you were born two years earlier.

You left Vietnam, fleeing with your family, when you were about ten years old, and spent 12 months in an Indonesian refugee camp before settling in Melbourne. You found this an extremely difficult period, as it involved your dislocation from Vietnam, what Mr Watson- Munro describes as the harsh realities of refugee camp life and your poor capacity to adjust to life in Australia because you spoke no English and found the culture so different.

You picked up the rudiments of English when attending school to year 7 level in Richmond. It would seem that your English skills are poor as you used an interpreter when being examined by Mr Watson-Munro and throughout the trial.

After leaving school, you worked with a jeweller in Carlton. You were unemployed after losing your job when your place of employment was destroyed by fire. You worked in factories for some time.

Your parents returned to Vietnam when you were aged about 18, leaving you with a sense of abandonment which aggravated your existing poor capacity to cope. About then, you drifted into a continuing pattern of illicit drug use.

Your situation is complicated by the physical injuries suffered to your head and brain in a motorcycle accident in Vietnam in 1999. You underwent neurosurgery and subsequently have suffered from significant cognitive difficulties, particularly in relation to memory loss. You have also abused alcohol for many years, with attendant liver problems.

You told Mr Watson-Munro that, at the time of the offences, you were injecting 2.5mg of heroin each day, mixing it with 'ice'. You were suffering intense paranoia, anxiety and sleep deprivation of up to two days at a time, as well as symptoms of an amphetamine psychosis involving predominantly auditory hallucinations. I note that there was no evidence to suggest that you were experiencing any hallucinations when in the flat on 8 November 2004. There you had the presence of mind to direct people not to call an ambulance. Further, Mr Ho's evidence was to the effect that you were yelling at him, asking why he had shot the victims, as you both ran down the stairs afterwards.

You have unsuccessfully tried to rid yourself of drugs by treatments including hospitalisation over the years.

Dr Walton concluded in June 2005 that you had schizophrenia, aggravated by your drug abuse, but that you were not suffering from a simple drug induced psychotic disturbance. He noted your significant brain injury and described you as a substance dependent person. You faced drug trafficking charges in 2005. Dr Walton also concluded that it was probable that your brain injury and severe psychiatric illness might have compromised your capacity to consistently exercise proper social judgment. He thought you would require active psychiatric treatment for the indefinite future and that minimal adequate treatment could be provided in a custodial setting. He said that he would not be surprised if you required transfer to St Paul's Psychiatric Unit at some stage of your incarceration.

Mr Watson Munro reports that you are not receiving specific treatment for addiction in prison, but that it appears to him that you are receiving medication including Diazepam and Endep for your 'broad spectrum psychological problems'. You told Mr Watson- Munro that you believed that you had seen a number of psychiatrists whilst in custody. There were, however, no reports from any treating doctors. You have been diagnosed with Hepatitis B and C and this has increased your anxiety.

Mr Watson-Munro found significant cognitive deficits, including memory disturbance, problems with forward planning and impulse control. He said that your insight into your deteriorating cognitive state had enhanced your underlying symptomatology. He noted that, whilst you maintained your innocence in relation to the offences of which you have now been found guilty, you conceded that you had no real recollection of what had been alleged against you. Mr Watson-Munro concluded:

This man suffers a plethora of medical and psychological problems. These include a Polysubstance Abuse Disorder, and an Adjustment Disorder, according to DSM-IV criteria. He also has a head injury and arising from the interaction of the organic and psychogenic issues in this case he suffers from significant problems with his memory and general cognition. These problems in turn have been compounded by his longstanding drug abuse and his disturbing addiction to "Ice" in recent years, which no doubt would have severely aggravated his underlying symptomatology.

You married in 1998, but Mr Watson-Munro reports that you are distressed and depressed because your relationship has essentially ended with your incarceration and you believe that your wife has re-partnered. You are also concerned about the welfare of your eight year old son who visits you intermittently.

Mr Watson-Munro notes that your psychotic symptoms have diminished, but that you still occasionally hear voices. He considers that you will require continuing supervision and ongoing treatment as a matter of urgency and that your problems will create a significant management issue in a custodial environment. Mr Watson-Munro says you report a sense of despair regarding the future. He states that 'the intensity of the time which [you are] required to serve will be magnified' by virtue of your physical and psychological conditions. He concludes finally that:

... even with expert and delicate care this man's clinical prognosis is at best guarded and in all likelihood quite bleak.[5]

As is the case with each of your co-offenders, I have taken into account the evidence as to your intoxication and do not regard it as an excuse or an aggravating factor. You were able to flee down the stairs carrying the sword. You were also able to balance on one leg when demonstrating martial arts moves to the guard at the Richmond flats after your return.

However, in all the circumstances, your behaviour in drawing attention to yourself in the foyer of the Richmond flats on your return would seem to demonstrate the lack of insight perceived by Dr Walton and your reported lack of planning skills.

You have no prior convictions for violent offences. Your only sentence of imprisonment was for nine months in relation to drug trafficking in 2005. This is not a prior conviction for sentencing purposes, but should, nevertheless, be taken into account in relation to the issue of your potential for rehabilitation. Prior to that, in 1996 and 1997 (when you were 23 and 24, respectively) and again in 2002 (at 29), you were convicted in the Magistrates' Court of possession and use of heroin and cannabis, importation of a small amount of opium and possession of a regulated weapon, for which you received a community based order and fines. In the case of the importation, the County Court varied your sentence to a good behaviour bond on appeal.

Counsel points out that despite your relationship difficulties, your wife and her brother, as well as your sister and son attended Court to support you on occasions. He urges the Court not to impose a crushing sentence upon you.

I must take into account your physical, mental and psychiatric conditions. I consider that your role in the offending behaviour and, in particular, your psychiatric illness make you less morally culpable than your co-offenders. Your illness moderates the need for general deterrence. I am satisfied that your mental condition will cause imprisonment to weigh more heavily upon you than others. This would also seem likely to increase its impact as a specific deterrent as well. Your potential rehabilitation is likely to be assisted by appropriate medical treatment and must not be prevented by a crushing sentence."

16 Although her Honour found that you were not directly involved in the transactions which led up to these charges, you had, at about the relevant time, allowed your flat to be used for drug trafficking at least for the reward of drugs to be used by you. I suspect at the time your life was dominated by drugs and the drug scene, although you did have some employment with your sister.

17 As I have already observed, from the time of your arrest you have spent five years, one month and ten days in custody until your release in December 2009. All but nine months of that time was served as part of the sentence for this offending. It has been urged upon me that I should sentence you to a term of imprisonment which would allow your immediate release. The prosecution concedes that such a sentence would be within the range of appropriate sentences available.

18 There are two factors of importance that would be an additional feature of this case. The first, of course, is that you fall to be re-sentenced when you have been at large for almost a year. The fact of sentencing after release on successful appeal has been treated as a matter of additional hardship.[6] I take that feature of the case into account. The second factor is the consideration what has happened to you since your release. It is closely related to the first factor, but is not subsumed by it and I have also taken it into account.

19 It is not suggested that you have been in further trouble since your release in December 2009. You are presently under the care of your general practitioner and a psychiatrist (Dr Carr). You are taking antipsychotic medication and antidepressant medication. Insofar as one can judge these things, you look well.

20 The most important feature in your life is that you have the full time care of your 11 year old son, who attends the local Catholic primary school and who has gone into Grade 6 this year. Your wife was killed in a motor car accident in October 2009 and, pending your release, your son was cared for by your sister-in-law (the wife of your co-accused, Khoa Nguyen). After release, you assumed his care. It is not suggested that the effect of this sentence would have on him is such that it should be taken into account directly. The effect of that sentence on you is one of the circumstances I am entitled to take into account in deciding whether or not to send you back to prison immediately in that I am satisfied that it would make the serving of the sentence more onerous.

21 The other matters emphasised by Mr Croucher, who appeared with Mr C. Boyce for you on the plea, were your pleas, delay and the question of pre-sentence detention. I further accept in a way that I have already adverted to, your pleas should be given significant weight notwithstanding the fact that you do not have to stand trial for murder and attempted murder.

22 It is obvious that the question of delay is important in this case and it should be noted that you did stand trial on a total of four occasions, although three of those trials did not proceed to verdict. You now fall to be sentenced for events which occurred about six years ago.[7]

23 The authorities have made it clear that I may only have regard to the four years and four months as pre-sentence detention. It is appropriate to have regard, as a general sentencing consideration, to the fact that you did serve a total of five years.[8]

24 It appears that you have not worked since your release and the prospects of work for you in the future are somewhat bleak. You may, however, be assisted by the Parole Board in that regard. After your son has grown up, you entertain the possibility of returning to Vietnam to your mother, who returned there 20 years ago to work as a jeweller. It should be noted that you had at one stage been an apprentice jeweller before all of these events.

25 I regard this example of the crime of manslaughter in the middle of the range but at the lower end of that part of it. I accept that the death of Mr Hieu Truong Luu was for you an unintended consequence of your part in the enterprise. You did not do any act which caused the death of Mr Luu or the injury to Mr Chau Nguyen.

26 I accept that because of that latter consideration, together with your limited mental functioning, it has been difficult for you to form proper insight into your offending. I do take your plea as evidence that you accept responsibility for the part you actually played.

27 Mr Croucher submitted that the sentence you have served was sufficient by way of non-parole period. This sentence should not in any be a precedent for a sentence I might impose in other circumstances. I must first of all have regard to the appropriate head sentences. In fixing those sentences, weight must be given to the age of the case, the fact that four trials have already taken place in whole or in part, your pleas, your mental condition, the fact that you now have the sole care of your son and the fact of acquittal followed later by an order for re-trial. These considerations have led me to conclude that a head sentence of six years and six months imprisonment is appropriate for the crime of manslaughter (Count 1) on that count, and I sentence you to two years imprisonment being the appropriate sentence for recklessly causing serious injury (Count 2). I direct that six months of that sentence be served cumulatively upon the sentence on Count 1, being a total effective sentence of seven years.

28 I then have regard to the appropriate non-parole period, given that head sentence, and next the general sentencing purpose of a non-parole period.[9] I am satisfied that the period already served is a suitable non-parole period. Given the head sentence I have fixed, I do not regard the non-parole period as being lower than usual. I regard it as being appropriate in all the circumstances.

29 You will be sentenced to be imprisoned for seven years and I fix a non-parole period of four years, four months and fifteen days. I declare that four years, four months and fifteen days be reckoned as having already been served under this sentence.

30 Pursuant to s 6AAA of the Sentencing Act 1991, I state that, had it not been for your pleas of guilty, I would have imposed a sentence of 8½ years with a non-parole period of 6 years. In this case, that indication is somewhat artificial because there are so many other features relevant to this sentence, as I have outlined above.

31 I order that the above declaration and the above statements be entered in the records of the Court.

[1] R v Dang Quang Nguyen [2010] VSCA 23.

[2] R v Nguyen [2010] HCA 18.

[3] See Markby v R [1978] HCA 29; (1978) 140 CLR 108.

[4] R v Dang Quang Nguyen [2007] VSC 540, [88] - [100], [102], [105] - [106], [108] - [110].

[6] R v Wei Tang [2009] VSCA 182.

[7] R v Merrett & Ors [2007] VSCA 1.

[8] R v Renzella [1997] 2 VR 87.