R v Nguyen, Ho & Nguyen [2007] VSC 540

3 I will describe the background to and circumstances of your offences, before moving to your personal circumstances and other relevant matters.

4 Mr Ho was the only one of you to give evidence in the trial. He told the jury and I accept that, in October and November 2004, he was dealing in drugs and in particular, heroin. He said that he spent most of his days driving around parts of Melbourne. He used his own and one or more hired cars and a number of different mobile phones and SIM cards to avoid detection. He kept a gun in a compartment in his own vehicle.

5 In the two week period leading up to 8 November 2004 when the offences were committed, Mr Khoa Nguyen and one Mau Duong had made arrangements by telephone for the supply to Mr Duong of three separate lots of one ounce of heroin for about $5000. The drugs were to be supplied on credit and Mr Duong was to pay for each ounce after selling it himself.

6 The first ounce of heroin was delivered, on Mr Duong's instructions, to the Carlton flat where the offences later were to be committed. Mr Duong was not present when Mr Ho delivered the drugs to a man who lived at the flat and, according to Mr Duong's evidence, was to sell them in the block. Several days later, Mr Duong paid for the heroin and was supplied with a second ounce by Mr Ho, outside a Richmond restaurant nominated by Mr Khoa Nguyen. In accordance with Mr Khoa Nguyen's instructions, Mr Duong had telephoned Mr Khoa Nguyen to announce his arrival and Mr Ho had come to Mr Duong's car to take the money for the first lot of drugs and to deliver the second. A similar arrangement was made between Mr Khoa Nguyen and Mr Duong in relation to a third ounce of heroin which Mr Duong collected outside the same restaurant on Friday 5 November 2004, when he paid for the second ounce. Mr Ho was again involved in the delivery, as was a female person named Linh who told Mr Duong to deal with Mr Ho in future.

7 On the night of either Saturday 6 November or Sunday 7 November 2004, Mr Duong received a call originating from the mobile phone utilising a number which Mr Khoa Nguyen had given to him. He had not answered the call or called back. Telephone records indicate that someone using the same telephone had tried to call Mr Duong on several occasions between 10.30 and 10.48 pm on the night of Sunday 7 November 2004. I am not persuaded by Mr Ho's evidence that it was he who made the attempts using that mobile phone. Nor do I accept his evidence that he spoke to Mr Duong, making out that he was Mr Khoa Nguyen (who was known to Mr Duong) when Mr Duong called Mr Khoa Nguyen to arrange the supply of heroin. I note in this regard Mr Ho's concession that their voices were not similar.

8 I am satisfied that each of you went to the Carlton flat early on Monday 8 November with the intention of obtaining payment for the third drug delivery arranged between Mr Duong and Mr Khoa Nguyen.

9 That night, Mr Ho had collected Mr Khoa Nguyen and Mr Quang Nguyen from the Housing Commission flats at 106 Elizabeth Street, Richmond where Mr Quang Nguyen lived. Security surveillance footage shows him arriving at about 11.22 pm and you all leaving the block at about 12.19 am. You had all been drinking alcohol and were affected by it to some extent. Mr Ho was, nevertheless, sober enough to drive to Carlton and to bring with him, from his car, the revolver he used to shoot the victims of the offences. You were all also able to later make what appears to have been a speedy exit down stairs from the twelfth floor of the Carlton flats, avoiding being recorded by the surveillance cameras in the lifts.

10 I note at this point that I am not satisfied that Mr Khoa Nguyen or Mr Quang Nguyen knew that Mr Ho brought the gun to the flat.

11 You arrived at the Carlton flats shortly before 1 am. After having been let in by one of the occupants who responded to a knock, you went into the dimly lit loungeroom where a group of young people were sitting about or lying down. Some of them had been smoking marijuana, a television was on and some had been watching it. The room was approximately six metres long and four metres wide. It was somewhat crowded with furniture which included a double bed, a coffee table, another table carrying stereo equipment and the television and a piece of exercise equipment. The man to whom Mr Ho had delivered the first lot of heroin was absent.

12 Mr Chau Nguyen, the 19 year old who would become the victim of the attempted murder, was lying asleep on the floor. Ms Kathleen Quach and Mr Viet Tran were sitting on the floor and Mr Hieu Luu, the 21 year old murder victim, and Mr Hung Nguyen were lying on the bed. Mr Luu was also asleep.

13 After coming into the loungeroom, Mr Ho and Mr Quang Nguyen began repeatedly asking those present where "Mau" was. Mr Quang Nguyen began waving a sword around in a threatening way, swinging it from side to side. The sword was at least 60 cm long and was described in evidence as being similar to a Samurai sword.

14 I note that I am not satisfied that Mr Quang Nguyen brought the sword with him to the flat. Police photographed what might have been a scabbard or container which might have held a sword standing against the wall in one of the two bedrooms in the flat. There was no evidence as to its function or contents. In those circumstances, I cannot be satisfied beyond reasonable doubt that it did not house that sword. I am nevertheless satisfied that, even if Mr Quang Nguyen had not brought the sword with him to the flat, he had found it in the flat and had taken it with him into the loungeroom where he used it to try to discover the whereabouts of Mr Duong.

15 People in the loungeroom were trying to move away from Mr Quang Nguyen to avoid the sword. They were frightened and there was screaming. Another man, Mr Tien Pham, heard the commotion and ran into the loungeroom from one of the flat's two bedrooms. He asked what was going on and heard Mr Ho asking where Mau was. Mr Pham said that Mau did not live there and tried to contact him using his mobile phone.

16 Mr Quang Nguyen was laughing in a way Mr Pham described as "silly" and "strange", like a crazy person. He inflicted an apparently superficial cut on Mr Tran's leg, cutting his jeans in the process. He approached Mr Pham and held the sword across his throat as he asked about Mr Duong. When Mr Pham moved away, Mr Quang Nguyen cut his neck with the sword. The cut was more than 30mm long, but was superficial. At one point, Mr Khoa Nguyen pulled Mr Quang Nguyen away from Mr Hung Nguyen. At another, Mr Quang Nguyen said something nonsensical to Mr Hung Nguyen about being sorry that he had slashed him, he hadn't known the young people were friends.

17 I accept Mr Ho's account that he became upset and formed the view that the young people were concealing Mr Duong's whereabouts. All those in the room were younger and physically smaller than Mr Ho and he acknowledged that he was in a position to control them. Nevertheless, he took out his revolver and began spinning its barrel to frighten them into revealing Mr Duong's whereabouts. There was enough light for the occupants to be able to see what Mr Ho was doing.

18 After this failed to produce Mr Duong or any satisfactory information, Mr Ho deliberately shot Mr Chau Nguyen in the head with the intention of killing him. Mr Ho was kneeling on one knee, with his right arm extended holding the gun, approximately a couple of metres away from Mr Chau Nguyen's head. Mr Chau Nguyen's feet were closer to Mr Ho.

19 I found Mr Chau Nguyen to be a reliable and honest witness and I am satisfied beyond reasonable doubt on the basis of his evidence, that, before Mr Ho shot him, Mr Khoa Nguyen said either "get him off" or "fuck him off", indicating to Mr Ho that he was referring to Mr Chau Nguyen. Mr Ho then said words to Mr Khoa Nguyen to the effect of: "that man?" and Mr Khoa Nguyen confirmed that he was referring to Mr Chau Nguyen. Mr Khoa Nguyen was sitting either on a table carrying a stereo system and speakers or on some part of that equipment, with his legs apart. He was laughing in a way that made him sound mad to Mr Chau Nguyen. He was described by Mr Chau Nguyen as being positioned close to Mr Ho. Mr Chau Nguyen saw Mr Quang Nguyen sitting on the bed, waving the sword around.

20 Mr Chau Nguyen had been asleep on the floor. His face had been covered with a blanket which he had pulled down when he awoke, in order to see what was going on. He had lifted his head from the floor to look, but had not moved from his prostrate position before being shot. He had never met any of you before, had not spoken to you or done anything to you. He lost consciousness when he was shot.

21 The bullet which had hit Mr Chau Nguyen's head would appear to have subsequently ricocheted off the wall behind him.

22 Mr Luu had awoken at the sound of the shot. He stood up on the bed and took a step generally in the direction of Mr Ho. Mr Ho then turned towards him, with the gun in his hand, and then shot Mr Luu in the head, with the intention of killing him or causing him really serious injury. Mr Luu fell down across the coffee table in the room.

23 After Mr Luu was shot, Mr Quang Nguyen felt for his pulse and announced that he was dead. Mr Ho or Mr Quang Nguyen suggested leaving and dumping the body. Mr Khoa Nguyen suggested that you all should just leave. None of you did anything to try to assist either of your victims. Indeed, as you left, Mr Quang Nguyen instructed those in the flat not to call police or an ambulance. He also told them that they did not know who you were if anyone should ask.

24 You each left the twelfth floor of the Carlton flats without using the lift where a security camera might have filmed you. Mr Khoa Nguyen was the first to leave. He is photographed by surveillance cameras back in the entry foyer of the Richmond flats just after 1.09 am.

25 Mr Ho suggested to Mr Quang Nguyen that they use the stairs to avoid the surveillance cameras and I accept his evidence that the two of them ran down and that Mr Quang Nguyen was carrying the sword as he ran. Mr Ho drove Mr Quang Nguyen home to the Richmond flats. Mr Quang Nguyen is photographed by the video surveillance cameras demonstrating martial arts moves to the guard in the security foyer at about 1.12 am. He is to be seen balancing on one leg several times. Mr Quang Nguyen left the sword in the car and Mr Ho later disposed of both it and his gun in an industrial dumpster as he drove to his girlfriend's home in Wantirna.

26 After you left, Mr Pham called an ambulance at 12.59 am. Both victims were transported to the Royal Melbourne Hospital. Mr Luu was in a critical condition. He underwent an operation and later died.

27 Mr Quang Nguyen was arrested later on the day of the offences. When interviewed, he claimed to have been asleep at home the night before, after drinking too much at a party in the Richmond block of flats.

28 Mr Chau Nguyen escaped death. He regained consciousness after you left. He was later able to walk to the ambulance after his head wound had been attended to and bandaged by ambulance officers. He suffered a five centimetre full thickness gunshot wound to the head with the bone on view. Air had leaked into his brain through the cranial tissues. He had a compound skull fracture. He too was operated upon and has a scar about 7 centimetres long on his forehead. He has lumps on his forehead. He spent some five days in hospital, gradually recovering his memory of events.

29 Although it was Mr Ho who shot Mr Chau Nguyen and Mr Luu, the jury's verdict indicates that it concluded that Mr Khoa Nguyen and Mr Quang Nguyen were acting in concert or with a common purpose with him or aided and abetted his commission of those crimes. The prosecution argues that I should be satisfied that each of you came to the flat that night with the intention of killing, if necessary, to recover the drug debt. I am not. Nor am I satisfied that, before you came to the flat, any of you had agreed to commit either of the crimes or to carry out a purpose which might possibly include their commission.

30 I am satisfied, however, that each of you came to the flat with the intention of recovering the drug debt from Mr Duong. In sentencing you, I have taken into account your individual roles in each crime.

31 I will now deal in turn with your personal circumstances and relevant sentencing considerations, referring to counsels' submissions.

32 Mr Khoa Nguyen, you were born on 29 January 1970 in Saigon in Vietnam. You are now 37 years old and the eldest in a family of three sons and one daughter. You came to Australia as a 13 year old refugee with your father and one of your two younger brothers. You had been educated to the equivalent of year eight level in Vietnam and spoke no English. Two years later, your father was able to sponsor the rest of the family to come to Australia.

33 You lived in a hostel and different Housing Commission flats. Your father worked on the assembly line at Holden and your mother in a textile factory. She returned to Vietnam about ten years ago and now runs a small jewellery store in a Saigon market. Your second brother assists her there.

34 You attended Richmond High School starting at year 8 and leaving at 17, without finishing year 11. You laboured on farms and did city factory work. Your longest job was for two to three years in a Brunswick jeans factory. For about a year your family opened a fast food takeaway shop in Collingwood. Ultimately, it was unprofitable.

35 In 1989, aged 19, you became an Australian citizen.

36 You met your 36 year old wife when you were 17 and she was 15 years old. She completed HSC and first year engineering studies. You have twin daughters aged six and a three year old son.

37 Your father died when you were 25 years old, which must therefore have been in about 1995.

38 At the time of the offences, you and your wife had retail clothing business in Richmond and Knox City. You worked as a buyer and courier in the businesses. She now works for a clothing wholesaler, arranging the overseas manufacture of fashion items. She remains supportive of you and attended your trial whenever she could.

39 As is apparent from my findings as to the circumstances of the offences, you were also involved in the drug trade to the extent of making arrangements for Mr Duong to be supplied with heroin in October 2004.

41 Aged 22, on 19 May 1992, you were convicted and fined at Prahran Magistrates' Court for possession of a regulated weapon (which you believe to have been a knife), an imitation pistol, an unregistered firearm and stolen property, as well as cultivation of one cannabis plant, possession of a small amount of cannabis and use of cannabis.

42 At 24 on 15 December 1994, you were convicted in the County Court of 15 armed robbery and two attempted armed robbery offences, as well as two offences of causing injury intentionally or recklessly. You were one of five masked offenders who entered an illegal gambling club, variously armed with a rifle, handguns, knives and other weapons. You had a meat cleaver. After demanding that approximately 30 patrons stand up against a wall, you stole jewellery, wallets, cash and mobile phones. A single shot was fired during the incident. You were sentenced to concurrent terms with a total sentence of six years and nine months imprisonment with a non-parole period of four years.

43 On 6 May 1996, the County Court sentenced you to three months imprisonment for possessing a drug of dependence, to be served concurrently with your armed robbery sentence.

44 On 1 May 2001, the Melbourne Magistrates' Court made you the subject of a six months intensive corrections order in relation to convictions for trafficking and possessing heroin and possession of money being proceeds of crime. Police had found heroin in 24 balloons in your intercepted vehicle. They also found heroin in balloons and ecstasy tablets and approximately $30,000 in cash at your home.

45 On 6 November 2003, the Melbourne Magistrates' Court imposed a one month suspended sentence after you were convicted of one count of possessing a controlled weapon. Police had found two hunting knifes in your vehicle on 16 September 2002. You had claimed that they were for self-defence. You breached that suspended sentence twice. No order was made in relation to the first breach on 6 September 2004 when you were convicted of possession of cannabis and fined $800. However the suspended sentence was extended for 12 months on 10 September 2004, when you were found guilty of possession of a controlled weapon. It is not clear from the material before the Court what that weapon was.

46 That suspended sentence was current when the offences before the Court were committed.

47 Counsel making the plea on your behalf notes that you maintain your innocence, despite the jury's verdict. He submits that you made yourself scarce after the incidents of 8 November 2004 because you did not consider that you had committed any crime and because you did not want to be arrested until Mr Ho, who had done the shooting, was taken into custody. Once that happened, you surrendered yourself to police through a solicitor. You thought that no-one would believe your account because you were Vietnamese and had a prior criminal history.

48 I will first make some general remarks applicable to you and your co-offenders.

49 I agree with counsel for the prosecution that the crimes you all committed can properly be described as cold blooded and ruthless. They are serious examples of serious offences.

50 You have shown a callous and wanton disregard for the right to life of each of your innocent young victims. The context was one of drug trafficking. You entered a flat, in the early hours of the morning, to seek payment for an ounce of heroin which you had arranged to be supplied on credit to a man who had paid for two separate supplies of the same amount within the previous two weeks. Even though there was evidence that he had not returned calls emanating from the mobile phone using the number you had given him, there is no evidence that he had given any other indication that he would not pay.

51 Neither you or your co-offenders faced any threat from your young victims or from anyone else in the flat that morning. You were not provoked, other than by the failure of others in the room to reveal the whereabouts of the man you sought.

52 Neither victim nor anyone else present in the flat was involved in the drug transaction. They were all significantly younger than each of you. Each victim had been asleep almost up to the time when he was shot by Mr Ho. Mr Chau Nguyen did not know you and had not even spoken to any of you after waking up and before you indicated to Mr Ho that he was to be shot. The situation created by the three of you in the flat was terrifying to those present who had gathered privately as friends.

53 Even after two young men had been shot in the head, none of you showed any concern for their plight, leaving without trying to help either one. Mr Quang Nguyen even went so far as to direct those in the room not to call an ambulance, without any dissent being expressed by Mr Ho or you.

54 Your crimes warrant denunciation by the Court, even though I have not found that they were pre-planned in the sense urged by the prosecution. The community must be protected from behaviour such as yours, you must be punished and each of you and others must be deterred from engaging in such lawless violence in similar circumstances or at all.

55 Even though you were all undoubtedly affected by alcohol at the time, your self induced intoxication does not excuse your behaviour. You were all sufficiently sober to make the trip from Richmond to the twelfth floor Carlton flat and you subsequently had your wits about you sufficiently to take the stairs to avoid detection by surveillance cameras in the lifts. I have taken your intoxication into account in assessing your individual culpability, and note that I have not considered it an aggravating factor for any one of you.

56 I consider you, Mr Khoa Nguyen, are equally morally culpable with Mr Ho in relation to the attempted murder of Mr Chau Nguyen. That is because I accept Mr Chau Nguyen's account of your indication to Mr Ho that he should be shot.

57 Notwithstanding the jury's verdict, however, I take into account your lesser role in relation to the shooting of Mr Luu. I consider you less morally culpable than Mr Ho in relation to that crime and sentence you on the basis that you aided and abetted him in its commission. Nevertheless, you have been found by the jury to have encouraged or acquiesced in the murder. This was in circumstances in which it would appear from your role in Mr Chau Nguyen's shooting that you were generally in a position to influence Mr Ho to some extent and I am satisfied that you took no action to try to stop him from shooting Mr Luu.

58 Counsel submits on your behalf that you have good prospects of rehabilitation, referring to your age and family support and your three young children who give you an incentive to reform. He also argues that, apart from those connected with the armed robbery in 1994, your prior criminal history involves less serious offences than those committed on 8 November 2004. He asks the Court to take into account that, in relation to the 1994 armed robbery offences, you were armed with a meat cleaver and that it was one of your co-offenders who had a gun.

59 It is said that you have only ever had a drug problem (in the sense of an addiction) at one time, having started to use heroin when you went to prison in 1994. You continued to do so for some two years after your release, up to the time when your twin daughters were born. You underwent a detoxification program at Moreland Hall at some point. It is common ground that you are to be sentenced on the basis that you were not a heroin addict at the time of the offences.

60 You were almost 35 years old when you committed the crimes for which you are being sentenced. Your family support and significant armed robbery sentence and other sanctions had all failed to deter you from your involvement in the illegal drug trade to the extent of arranging for the supply of heroin to Mr Duong and your very serious offending on 8 November 2004 whilst still under a suspended sentence of imprisonment.

61 I have taken into account the need to avoid a crushing sentence.

62 I will sentence you to seventeen years imprisonment for the murder of Mr Luu and ten years imprisonment in relation to the attempted murder of Mr Chau Nguyen. Despite the short time between the offences, your role and their seriousness warrant some cumulation. Four years of your sentence for attempted murder shall be cumulative upon the sentence for murder, making a total effective sentence of twenty-one years.

63 In all the circumstances and bearing in mind the importance of your rehabilitation, I will fix a non-parole period of sixteen years.

64 I declare that the period of 904 days you have been held in custody in relation to these offences to be reckoned as a period of imprisonment served under this sentence.

65 Mr Ho, you are 30 years old. You were born in a refugee camp in Thailand on 16 May 1977. Both your parents were born in Cambodia and are of Chinese descent. They had fled from the Khmer Rouge regime in Cambodia and spent four or five years in the Thai camp. You arrived in Australia with your family in 1979 and speak English fluently.

66 Your parents live in the eastern suburbs of Melbourne and your 58 year old father worked throughout his life in a knitting mill as a machine operator. Your mother also worked in the textile industry, but she now performs home duties. Your elder sister is 35 and works packaging in a factory. She has a two and a half year old daughter and has never been in trouble with the police. Your 33 year old brother has been employed as machine operator and has been involved in dishonesty and drug-related offences. He has been a heroin addict in the past.

67 You were educated at Nunawading and North Ringwood primary schools and Forest Hill Secondary College to year 10 and Burwood Heights High School in year 11. Your parents told counsel that you were successful both in your class work and at sport.

68 By the age of 17 you had fallen in with what your father told counsel was the "wrong group". Whilst at home you were involved with a home based textile business, preparing goods for sale, labelling and ironing, outside you were using drugs, smoking marijuana, taking Rohypnol pills and injecting heroin at 18.

69 In 1995, when you were still 17, you had begun appearing in the Magistrates' Courts. Proceedings relating to charges for handling stolen goods and theft were adjourned on your own undertaking and then you were subjected to community based orders in relation to convictions for burglary and theft offences. You then breached a community based order and on 7 July 1995, were sentenced to concurrent periods of three months' imprisonment on burglary and theft charges.

70 Before you were dealt with for the breach in July, you had been convicted of attempted burglary and going equipped to steal, for which you were sentenced, on 18 April 1995, to concurrent periods of two months imprisonment on each charge suspended for 18 months. A three month suspended sentence of imprisonment followed the next month for attempted robbery and assault in company.

71 By July of the same year you had been sentenced to 12 months imprisonment after convictions on numerous charges of burglary, theft, trafficking, attempting to traffick, possessing and using heroin, as well as handling stolen goods and obtaining property by deception. Two weeks later, you received a further month of imprisonment for drug related charges- this time involving cannabis. Four days later, you were sentenced to six months imprisonment for charges relating to illegal abalone fishing and you were fined $3000.

72 In October of the same year, you were sentenced to 15 months imprisonment for armed robbery. You were 18 years old. In February 1996, you were sentenced to five months imprisonment on burglary and theft charges. At the age of 19, you were convicted of theft again and sentenced to three months imprisonment. Convictions for heroin trafficking, assault and resisting police followed in July 1997 and you received concurrent sentences of 18 months imprisonment on each charge.

73 In August 2000, you were 23 and were convicted on charges including burglary and theft and sentenced to a combined custody and treatment order for 12 months. On 4 September 2000, you were convicted of multiple burglary and theft and attempt charges and sentenced to a further three years' imprisonment.

74 In gaol, you committed an offence for which you were fined on 7 September 2000. This was followed by a conviction for assault on 6 October 2000 which attracted fourteen days of imprisonment.

75 You were then sentenced to seven days imprisonment on 23 July 2003 for possession of amphetamine and cannabis. According to counsel making the plea on your behalf, you breached parole in July 2003 and had to serve the balance of some five months of parole. You breached parole again, after being out of prison for seven or eight months, and were released again in September 2004. You committed the offences for which I am sentencing you two months later.

76 Although it is not a prior conviction, I take into account in relation to your prospects of rehabilitation that, a little over a month after the 8 November 2004 murder and attempted murder, you committed an armed robbery of a jewellery shop, using a gun to threaten staff. You stole goods said to "cost" some $1.8m. On 1 March 2007, you were sentenced to six years of imprisonment in the County Court. A four year non-parole period was fixed in relation to that sentence. The learned sentencing judge declared that the period of 674 days you had spent in detention on the murder, attempted murder and armed robbery charges was to be reckoned as a period of imprisonment under that sentence under s 18(1) of the Sentencing Act 1991.

77 Your addiction had waxed and waned as you went in and out of custody. You underwent a methadone program in 1999 and you were drug free by September 2002, when you were released from custody. You told counsel that you were sick of heroin which you thought "wrecked your life". You decided to use ecstasy and cocaine, only to become addicted to them.

78 It was, nevertheless, common ground that you too were to be sentenced on the basis that you were not addicted to drugs at the time of counsel's submissions in the plea on 15 October 2007. Counsel argues that your ability to have ridden yourself of a previous heroin addiction whilst in custody is testament to your to rehabilitation potential.

79 I note that I have taken into account the evidence as to the level of your intoxication in sentencing you. I note that you were not only able to remember to take your loaded gun with you to the flat and to make a getaway down twelve flights of stairs after the crimes, but you were also able to drive to and from the flat and on to Wantirna after delivering Mr Quang Nguyen back to Richmond, disposing of the gun and sword on the way.

80 Notwithstanding your disturbing criminal history, counsel submits that your prospects of rehabilitation are good. He points to your relative youth, what he describes as your respectful and presentable manner in giving evidence in the trial and the intelligence you demonstrated in giving evidence. He refers to your drug free condition at 15 October 2007.

81 Counsel emphasises that you have the support of your family who attended the trial whenever they were able. He told the Court that your mother describes you as having a good heart and not being a bad man. She also says you have a great interest in young children.

82 There was no other material to support counsel's assertions that you have good prospects of rehabilitation.

83 Counsel for the prosecution submits that the Court should take into account your self-confessed drug dealing activities and lifestyle at the time of the offences. I have done so. You gave evidence in the trial describing your life as a drug dealer. You said that you were buying significant amounts of heroin in 350 g "cakes" to be divided up and sold in one ounce lots. You were taking the measures I have described to avoid detection. You kept a gun in your vehicle. This lifestyle and your subsequent commission of an armed robbery offence, only a little less than a month after these offences, militates against the submission that your prospects of rehabilitation are good.

84 Nevertheless, you are still a relatively young man and I have taken the importance of rehabilitation as a sentencing consideration when determining your sentence and fixing a non-parole period.

85 I will sentence you to 20 years imprisonment for the murder of Mr Luu and ten years imprisonment for the attempted murder of Mr Chau Nguyen. In sentencing you, I must take into account the period of some 32 months you have served under the armed robbery sentence: being the period from 1 March 2007 to date and the period of pre-sentence detention of 674 days, reckoned as time served under that sentence.[1] In order to do so, in your case I will order that only two years and four months of the attempted murder sentence shall be served cumulatively upon your sentence for the murder, with the result that you are sentenced to a total period of 22 years and four months imprisonment in relation these two offences.

86 Given your relative youth and bearing in mind the importance of your rehabilitation and the need to avoid a crushing sentence, I will order that this sentence be served cumulatively upon two years of the balance of your six year sentence for armed robbery.

87 Taking into account all the matters to which I have referred, I will fix a new single non-parole period of 19 years under s 14(1) of the Sentencing Act in relation to all sentences you are to serve or complete.

88 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.

89 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.

90 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.

91 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.

92 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.

93 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.

94 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.

95 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.

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

97 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.

98 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 Daizepam 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.

99 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.

100 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.

101 As submitted by counsel making the plea on your behalf, the Court must take into account your mental situation in accordance with the relevant authorities.[2] Counsel argues that I should conclude that your moral culpability is reduced, that you are not an appropriate vehicle for general deterrence and that the need for specific deterrence is lessened in your case.

102 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.

103 I agree with counsel appearing on your behalf that you played a different and lesser role in the offences which both occurred within a short period of time. I am not satisfied that you were involved in the drug transaction, other than by reason of your going to the flat with the intention of recovering the drug debt owed by Mr Duong to either Mr Khoa Nguyen or Mr Ho.

104 I accept that you should be sentenced as an aider and abettor of the crimes committed by Mr Ho and that the circumstances of your offending warrant a relatively high degree of concurrency in your sentences.

105 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.

106 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.

107 Counsel also submits that it could not be said you have no prospects of rehabilitation, notwithstanding your personal difficulties and relevant criminal history. I agree.

108 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.

109 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.

110 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.

111 I have taken all these considerations into account and will sentence you to imprisonment for 13 years for the murder of Mr Luu and for six years for the attempted murder of Mr Chau Nguyen. Two years of the attempted murder sentence shall be served cumulatively upon that relating to the murder, making a total sentence of 15 years imprisonment.

112 I will fix a non-parole period of 10 years in your case.

113 I declare that you have spent 870 days in custody which shall be reckoned as time served under this sentence.

[1] See: R v Renzella [1997] 2 VR 88.

[2] See : R v Verdins [2007] VSCA 102 at [31]- [32] per Maxwell P, Buchanan and Vincent JJA.