R v NGUYEN & ORS - Sentence - [2006] NSWSC 850 - NSWSC 2006 case summary

Supreme Court of NSW|2006-07-28|Before: Hulme J, Mr J

CITATION : R v NGUYEN & ORS - Sentence [2006] NSWSC 850 This decision has been amended. Please see the end of the judgment for a list of the amendments.

Regina Khanh Hoang Nguyen PARTIES : Minh Thy Huynh Duong Nguyen ATCN

FILE NUMBER(S) : SC 2005/191; 2005/189; 2005/205; 2005/424

SOLICITORS : Crown: S Kavanagh Prisoner: S O'Connor

18 - `IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

HULME J 2005/191 2005/189 2005/205 2005/424

R v Khanh Hoang Nguyen R v Minh Thy Huynh R v Duong Nguyen R v ATCN

REMARKS ON SENTENCE 1 HULME J: On 6 January 2004 four males, some few seconds apart, entered a billiard hall known as Billiards 2000, located in Cabramatta and walked through it to the rear. To a substantial degree their entry and movement through the billiard hall, and the subsequent departure of 2 of them, was recorded via 2 CCTV cameras which were mounted on the ceiling of the premises. The men made no attempt to hide their faces or conceal their appearance. As they walked through the billiard hall the first man reached into his waistband. I have no doubt that what he reached for was a pistol which, though only as a dark object, is to be seen in a photograph as he entered. As he walked through, the fourth man pulled out a Samurai sword or something similar from a towel or other cloth under which it was concealed and threw the cloth, and a scabbard onto one of the billiard tables. As he left a little later, he retrieved these items. 2 At least 3 of them entered a room behind the main part of the billiard hall where they were seen and the fourth man identified by a witness Mai Nguyen. (I may interpolate that, although there is a deal of commonality of names, first or family, between those involved in this case, virtually none of the persons with the same name were related. The similarity led to a number of persons being identified by their first names during the trial and it may be convenient at times for me to retain that nomenclature here. ) 3 The first man passed through that room and into a courtyard behind. By the time of his entry in to the courtyard, he had the pistol drawn. In the courtyard at the time some sort of celebration was being held for the birthday of Tien Duc Nguyen and about 10 people were then present. The first man advanced some distance with the weapon pointed at or in the direction of Tien Duc Nguyen and then fired at fairly close range - albeit over 50 centimetres - at least twice. It seems likely, although the evidence does not enable me to make the finding beyond reasonable doubt, that the intended victim was Tien Duc Nguyen. In fact one of the guests Linda Huynh was shot, fatally, in the chest and another, Hien Duc Phan, in the arm and possibly the nose. The 4 men then decamped. 4 Nothing occurred in the courtyard that provided any introduction to, or explanation for, the shooting. When police arrived some time later, they found in the courtyard, not only two 9mm cartridge cases from the weapon obviously used by the gunman but three complete .22 calibre cartridges and a spring, follower and base plate, being parts from a magazine of a .22 calibre pistol. Their presence suggests a magazine had simply fallen apart. Such items are not normally left lying around and I draw the inference that one of the guests at the birthday party was also armed with a weapon which, in a poor state of repair, fell apart. However, having regard to the evidence as to the actions of the 4 persons captured on the CCTV camera and of persons present at the time, I have no doubt that the presence of the .22 weapon in no way contributed to the commission of the offences with which I am concerned. 5 The Prisoners were arrested. This occurred in the case of Duong Nguyen and ATCN on 30 January 2004, in the case of Minh Thy Huynh on 12 January 2004 and in the case of KhanH Nguyen on 10 January 2004. On 29 March 2006 they were arraigned before me on charges of murder and of maliciously inflict grievous bodily harm with intent to do so. They pleaded not guilty, a jury was empanelled and their trial commenced. On 5 May last the jury found each guilty on both counts. (I may interpolate that ATCN is referred to by his initials because he was only 16 at the time of the offences and s11 of the Children (Criminal Proceedings) Act prohibits publication of his name.) 6 It now falls to me to sentence the Prisoners. In this connection I should acknowledge that, apart from matters necessarily inherent in the jury's verdicts, I must be satisfied beyond reasonable doubt of any matters I use adversely to the Prisoners but matters in mitigation need only be established on the balance of probabilities. 7 The CCTV recordings are not clear and I allowed other evidence of identification to be given. The jury accepted that the first of the men, and the gunman, was Duong Nguyen, the second ATCN, the third Minh Thy Huynh and the fourth, the man with the sword, Khanh Nguyen. Against the possibility that it is for me to determine the identity of the 4 persons, from within the 4 Prisoners, as distinct from infer what the jury did, I should add that independently of the jury's view, I would draw the same conclusion. The evidence of each of Constables Purcell and Young was convincing. Despite her lies on a considerable number of other issues, so was that of Amee Duong on the issue of identification. So was that of Mai Nguyen who identified Khanh Nguyen. 8 In the way in which the case was conducted, the jury's verdict carries with it the implication that the four were engaged in a joint criminal enterprise. Indeed, the actions of the 4, as captured by the CCTV cameras, the actions of the gunman not in dispute and the evidence of Mai Nguyen, albeit dealing with only 3 of the persons, could leave no possibility of doubt on that score. 9 A number of matters may be specifically mentioned. Firstly, the actions of the gunman leave room for no doubt that his intention was to kill and his actions premeditated, and this whether or not the intended victim was Tien Duc Nguyen. What the gunman intended was a cold-blooded execution. 10 A second is the way in which the gun was carried. Although out in the street it may have been concealed under a jacket Mr Nguyen was wearing, there was nothing to suggest its presence was concealed from his co-offenders. A third is the obvious presence and inherent nature of the sword. A fourth is the obvious deliberateness of the actions of all 4 in the pre-shooting movements depicted on the CCTV camera recordings. A fifth is that there is no evidence that the second and third men were armed. 11 Relevant also is the relationship between the 4 prisoners. I am satisfied that they were all close friends or acquaintances. In this connection I accept the evidence of 3 witnesses Amee Duong and Constables Young and Purcell as to the frequency with which they had seen two or more of the Prisoners together or close to one another. 12 In totality, these matters leave no room for doubt that, although they did not pull the trigger, the 3 Prisoners other than Duong Nguyen were each actively, knowingly and with premeditation participating in the offences he committed. I am satisfied that each was there to, either or both, provide support and encouragement to the gunman and deter, if not deal with, any resistance. 13 In so concluding I do not ignore statements by ATCN and reproduced in the Juvenile Justice report relating to him that he had no advance knowledge that his co-offenders were armed. This "evidence" was not on oath and in any event, given the obviousness of the sword, and the relationship between the parties, I do not believe ATCN's plea of ignorance. The way in which the gun was carried, while it may have been enough for concealment from the public, provides support for this conclusion. 14 The evidence does not permit me to make any finding as to the motivation for the shootings. Amee Duong had for some time been the girlfriend of Duong Nguyen and had borne his child. Some time prior to the offences she had become the girlfriend of Tien Duc Nguyen. She gave evidence that on one occasion Duong Nguyen had warned her against telling Tien Duc Nguyen where he, Duong Nguyen, lived but there was no evidence she ever did so and no suggestion of jealousy on the part of Duong Nguyen arising from the transfer of Amee's affections. In these circumstances the strong probability is that the motive was not jealousy but I am unable to go further. 15 There are a number of statutory provisions particularly relevant to the sentencing of the prisoners. Section 18 of the Crimes Act provides that the crime of murder is punishable by imprisonment for life. Section 33 of the Crimes Act provides the offence of maliciously inflict grievous bodily harm with intent to do so is punishable by imprisonment for 25 years. Section 21 of the Crimes (Sentencing Procedure) Act provides that, notwithstanding these prescriptions, the Court may impose imprisonment for a lesser term. 16 Section 3A of that last mentioned Act identifies the purposes for which a court may impose sentences on an offender as: "(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community." 17 Regard must be had also to Part 4 Division 1A of the Crimes (Sentencing Procedure) Act which sets out a number of standard non-parole periods, declares that they represent the non-parole period of an offence in the middle range of objective seriousness for the offences to which they relate and, in s54B(2) says:- "When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period." 18 By s54D, the standard non-parole period for murder in the circumstances with which I am concerned, is 20 years. The standard non-parole period for the offence of maliciously inflict grievous bodily harm with intent to do so is 7 years. 19 Section 21A of that Act provides that, subject to some qualifications contained in the section, in determining an appropriate sentence the Court is to take into account, in addition to any other objective or subjective factor that affects the relative seriousness of an offence, such of two defined lists of matters, referred to as aggravating and mitigating, as are relevant. In light of the qualifications, and of the inherent elements of the offences of murder by shooting, and of maliciously inflict grievous bodily harm with intent to do so, the only aggravating features which I regard as of significance or possible significance here are:- (c) the actual use of a weapon, a firearm, in both offences; (d) the offender has a record of previous convictions; (e) both offences were committed in company; (g) the injury, emotional harm, loss or damage caused by the offence was substantial; (i) the offences were committed without regard for public safety; and (n) the offences were part of a planned or organised criminal activity. 20 The Crown submitted that I should find that that substantial emotional harm was occasioned to Hien Duc Phan by reason of his being confronted with a firearm and shot. However the concluding paragraph of the sub-section directs that:- "The court is not to have additional regard to any such aggravating factor in sentencing if it is an element of the offence." (The emphasis in this passage and in the following paragraph is mine.) 21 Grievous bodily harm is an element in the second offence of which the Prisoners have been convicted. Thus substantial "injury, emotional harm, loss or damage" is an element in the offence and not something of which account can be taken under s21A(2). However, the Court is not confined to matters in s21A(2) and (3) and s21A(1) requires the court to take into account, in addition to the aggravating and mitigating factors listed in sub-sections (2) and (3), "any other objective or subjective factor that affects the relative seriousness of the offence" and even these are "in addition to any other matters that are required or permitted to be taken into account". The suffering of substantial emotional harm by someone the victim of an offence under s33 of the Crimes Act is something which, quite independently of s21A, a sentencing court is entitled to take into account and, subject to one further matter, if Hien Duc Phan did suffer such harm, I should have regard to it notwithstanding the concluding paragraph of s21(2) that I have quoted. 22 The one reservation to which I have just referred arises because my understanding of the evidence, including Mr Phan's Victim Impact Statement is that this emotional impact was due at least primarily if not exclusively, to the murder of his girl friend. In accordance with R v Previtera (1997) 94 A Crim R 76, I am not entitled to take this into account. 23 In my reference to s21A(2)(c), I have included only the firearm and not the sword. While the sword was undoubtedly present it did not figure directly in the injury to either victim. However it was taken there, unsheathed, and then carried into the back room of the premises and those facts mean that its use was threatened as part of the offending. It may fall within paragraph (c) but if it does not, it clearly is a factor the Court is entitled to take into account under s21A(1). 24 So far as the factor in s21A(2)(i) is concerned, I should record my view that the commission of 2 offences rather than one was partly the product of the lack of regard for public safety and, given that there will be some punishment for both offences, I must take care that undue weight is not also given to the lack of regard for public safety and the concomitant risk that the actions of the gunman would result in more than one offence. 25 That said, the issue of public safety still remains an aggravating feature of the offences. The presence of the sword in the hands of the fourth man is a clear indication that other injury was a real risk. I draw the same conclusion from the presence of the .22 bullets and the magazine parts. The nature of those objects is such that they are unlikely to have been left lying around and, as I have said, I draw the inference that one of the guests at the party was armed, albeit with a defective weapon. The probability is that that weapon was produced in response to the actions of the gunman. The Prisoners are not, of course, to be punished because someone else was armed. However the conclusion that someone else was armed provides a clear demonstration of the potential for danger to others arising from the actions of the Prisoners. Experience shows that it is not only the intended victims who are injured in the course of public acts of violence. 26 The listed mitigating factors of relevance or possible relevance are:- (e) The offender does not have any record (or any significant record) of previous convictions; (f) The offender was a person of good character; (g) The offender is unlikely to re-offend; (h) The offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise; (i) The offender has shown remorse for his offence …; (and) (j) The offender was not fully aware of the consequences of his or her actions because of the offender's age or any disability. 27 Although I recognise the possible relevance of these matters, it must also be said that, as circumstances of mitigation, the onus of establishing them lies on the prisoners and serious questions arise as to the extent to which that onus has been satisfied. It is convenient to defer further consideration of the topic until I come to consider the prisoners individually. 28 It is appropriate that I acknowledge that sentencing principles dictate that the maximum penalty is reserved "for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs v R (1987) 163 CLR 447 at pp 451-452" - Veen v R (No 2) ([1987-1988] 164 CLR 465 at 478. 29 Furthermore the "standard non-parole period" is not something to be applied mechanically. Its function is to operate as "a reference point, or benchmark … along with the other extrinsic aids such as authorities … and the specified maximum penalty, as are applicable and relevant." - R v Way (2004) 60 NSWLR 168 at [122] 30 It was submitted on behalf of the Crown that both offences "could be regarded as falling within the mid-range of seriousness". However, a number of features lead me to the conclusion that the murder was above the middle range of objective seriousness for such an offence. These features are the intention to kill and premeditation. As I have said, in the case of the gunman this was a cold-blooded execution. Furthermore, although I these are of lesser importance, the offence was committed in company, involved the use of one weapon, viz. a firearm, and the threatened use of another, viz. the sword, and involved both disregard for public safety and, what is not quite the same thing, the risks to others. To some extent the impact of these features overlap and again I am conscious of the need to avoid double counting. The offence was planned and organised but these factors are so involved in the matters just referred to that I incline to the view that they bear no additional weight. 31 However, there is also another factor which takes the objective seriousness of the murder in this case substantially further above the mid-range than the matters I have so far mentioned. It is this. The offenders, made no efforts to conceal their identity notwithstanding that the offence was committed in full view of a not insignificant number of other people, the vast bulk of whom seem to have been members of the Vietnamese community and many of whom lived in Cabramatta or nearby suburbs and notwithstanding also that the offenders were themselves often to be seen in or adjacent to the Cabramatta shopping centre. Indeed the murder was the most brazen offence that I have come across in my time on the bench.

32 It is impossible to avoid the conclusion that the absence of any attempt at concealment of the offenders' identity was a matter of choice. The possibility that it was simply a matter of forgetfulness by all of the offenders is so remote that it should be rejected. A fortiori is this so when effort was made to conceal the presence of the sword prior to entry into the billiard hall. The immediate departure of the offenders from the scene after the shooting makes it clear that they did not desire to be apprehended and one is led to the conclusion that the offenders desired or were at least content for their identity and actions to be known within that portion of the community as were represented at the billiard hall.

33 One may take judicial notice of the fact that a reputation for violence is both of value, and valued, within some sections of the population and I find it impossible to avoid the conclusion that the acquisition of such a reputation was regarded as an advantage by the offenders. 34 In concluding as I have, I reject the submission of counsel for Duong Nguyen that the method of conduct of the offences, in the omission to conceal faces, take out the CCTV cameras and retain cycled but unfired 9mm cartridges, was some indication of (no more than) childishness and that I could not be satisfied to the requisite standard that the absence of concealment was a matter of aggravation. 35 Many of the factors to which I have referred have a similar aggravating tendency so far as the offence under s33 is concerned. However, there being no evidence that that or any relevant second offence was premeditated, even if it was on the cards, in that situation I am not inclined to give those factors the same significance as they have in the case of the murder offence. I do not regard the offence under s33 as above the mid-range of objective seriousness. 36 Is it below that range? I do not so regard it. The s33 offence, or some offence involving violence and injury was a distinct possibility once there was a firearm present and presented or with an intention to fire it. The presence of the sword leads to the same conclusion. While it may have been hoped that the presence of the weapons would be sufficient to deter any opposition, it was not unlikely that the sword would have been used at least defensively if there had been opposition. 37 I turn then to the circumstances of the offenders. None gave evidence in the trial or during the sentencing proceedings. In the case of each there was a Pre-Sentence Report prepared by the Probation and Parole Service or Juvenile Justice.

Duong Nguyen 38 He was born on 21 September 1981 and was thus 22 at the time of the offence. His criminal record includes offences committed in 1999 of driving whilst disqualified, driving in a manner dangerous to the public and three counts of stating a false name. He again drove whilst disqualified, falsely stated his name on two occasions and drove a motor vehicle so as to exceed the speed limit by between 15 and 30 kms per hour. In December 2000 he again drove whilst disqualified and in 2001 committed offences of possessing a prohibited drug, behaving in an offensive manner at or near a public place or school and resisted an officer in the execution of his duty. These 2001 offences were in breach of a bond imposed for one of his driving whilst disqualified offences. The pre-sentence report recorded that his response to supervision under the Bond was considered borderline. 39 In 1999 he was also convicted in Victoria of possession and trafficking in heroin and made the subject of a 200 hours community service order. 40 Duong is the eldest of 4 siblings, a sister being killed in a car accident in 2003. He reported a happy childhood but an unsettled period during adolescence. His mother died when he was 14. His father commenced a new relationship and Duong did not get on well with his father's new partner. He left the family home when he was 15, thereafter mixing with a negative peer group. A letter from Duong's father that was tendered on sentence seems to put all of the blame for this on his partner and says that he was never told about her conduct until he and she separated. I am content to accept that there may have been difficulties between Duong and his "stepmother". However, as I foreshadowed during the hearing, the evidence is not strong and I am not prepared to place any significant weight on it as an explanation for Doung's offending or the associations that he said followed. 41 He left school when he was 17, there having been some behavioural problems at high school. He informed the author of the pre-sentence report that he had held various positions, usually being employed by friends. His employment history included, clothes pressing, farm work and employment in a coffee shop and restaurant. Though acknowledging occasional cannabis use, Duong denied any other problems of addiction and mental health issues. 42 Duong's father remains supportive and is willing to have Duong reside with him on release from custody. 43 To the author of the pre-sentence report, Duong maintained his innocence of the offences presently under consideration.

Khanh Nguyen 44 Khanh Nguyen was born on 8 May 1976 and was 27 years at the time of the offence. 45 His criminal record includes, in 1992 malicious wounding, in 1993 possession and supply of heroin, in 1994 three counts of driving whilst disqualified and another charge of driving in a manner dangerous. Sentences of periodic detention in respect of two of the driving offences were cancelled and Khanh sentenced to a fixed term of 4 weeks imprisonment. In 1994 he was also convicted of an offence of demanding money with menaces, possession of a prohibited plant and self administration of a prohibited drug. In 1999 he again drove whilst disqualified and whilst using a handheld telephone. In 2001 he again drove whilst disqualified and was sentenced to periodic detention for 12 months. 46 Khanh was born in Vietnam. He came to Australia in 1985 after his elder brother provided sponsorship for him, his father and two of his siblings. His mother and two other siblings attempted to come to Australia via boat but were killed by pirates. 47 Khanh's father maintained a strict but close and supportive family union. When aged 18, Khanh became a carer for his father, because of the latter's health problems. At the time of his incarceration Khanh was in a de facto relationship and had two young children and apparently been in that relationship for 6 years prior to his admission into custody. 48 At school his performance was average until year 8 when his behaviour was characterised by truancy and fighting. He left school midway through year 9. The pre-sentence report records Khanh providing vague information concerning past employment, though indicating he had worked as a machinist for several years and also loading trucks. The employment was said to be part time in order for him to care for his father. 49 Khanh was associated with the 5T gang between the ages of 14 and 18 and asserted he was negatively influenced by gang members. He asserted this association ceased in 1994 when he met his de facto and realised the harmful consequences of the association. Nevertheless he apparently maintained associations with people involved in criminal activity. 50 Khanh reported using cannabis from age 14 on a daily basis and prior to entering custody still "2-3 times per week". He had experienced paranoia which contributed to the cannabis use. It may be he has unresolved issues relating to the death of his mother and siblings. 51 In custody Khanh has been employed as a wing "sweeper" and although considered a reasonable worker, often needs prompting. 52 To the author of the pre-sentence report, he maintained he was not involved with the offences. He would seem to have a high level of family support.

Minh Huynh 53 He was born on 13 September 1982 and was thus 21 at the time of the offences. In 2000 he committed the offences of purchasing an unregistered, but not prohibited, firearm, not keeping such a firearm safely and possessing a loaded firearm in a public place. He was fined $500 and placed on two 2 year bonds. 54 His family migrated to Australia from Vietnam in 1981 and he had a stable family environment during his formative years. He found school difficult leaving in year 9. At the age of 15 he commenced employment as a removalist assistant, but from 6 months thereafter until 6 months prior to his arrest, he was employed as a painter in an uncle's business. He was due to recommence such employment during the week in which he was arrested. 55 He consumed alcohol 5 times per week after work. For 2 years prior to his arrest he had been using ecstasy to an addictive extent. His use was "nearly every night" and sometimes during the day. The pre-sentence report records "he was adamant that he would not use the substance on release because he could now "remember things". " 56 The Pre-Sentence Report records that shortly after entering remand Mr Huynh was assaulted resulting in damage to his left eye so serious that, using only that eye, he can only see a vague blurred outline of any one sitting opposite him. The report also observes:- "Mr Huynh was very hesitant to discuss the offence. This hesitation was not because he chose to be uncooperative but because he was convinced that an appeal was likely and his obvious dilemma resulted in uncertainty. Therefore he chose not to discuss any details of the offence. Hence it was difficult to gauge any authentic attitude to the offence… (and) the question of whether he was affected by any drug during the commission of the offence was not canvassed." 57 Since being incarcerated, Mr Huynh has successfully completed numerous courses including many for numeracy and others covering topics of drugs, anger management and construction work. A letter from a prison Chaplin confirms that Mr Huynh is doing what he can to improve himself and a further letter indicates he is presently employed as the Deputy's office sweeper and is an excellent worker who does not need supervision.

ATCN 58 This Prisoner was born on 26 February 1987 and, as I have said, was thus 16 at the time of the offences. His only recorded conviction is of possessing a prohibited drug in respect of which he was charged on 27 February 2005 and dealt with at the Gosford Local Court. This offence apparently related to 2 ecstasy pills. 59 ATCN's family arrived in Australia in 1987 although because he was born after the lodgement of the applications for migration he was left behind, arriving in Australia with his sister-in-law in 1991. There were apparently no relationship problems within the family after it was reunited until some time in 2000 when ATCN moved out. Thereafter he resided with associates, visited his family irregularly and would not listen to family guidance and directions. ATCN reported that he went to reside with his co-offenders and other negative peers "in order to have fun and more freedom, i.e. to go out any time or do anything that no one would complain to him". His association with these persons had developed in 1998 and from then until 2000 he had been seeing them at weekends after school and during school holidays. 60 At school his attendance was regular, he displayed no behavioural problems, he coped well with most subjects, but there was difficulties with English and he left half way through year 10 in the middle of 2003. He has resumed year 10 studies since being incarcerated. 61 Prior to being incarcerated, he smoked cannabis on a daily basis for 3 years. He has participated in drug counselling sessions and other courses since being in custody. He has also received counselling for stress and anxiety. 62 The pre-sentence report also records: "At the time of the offences (ATCN)… was relatively immature, vulnerable and directionless in that he was not residing at home or attending school, but residing with a group of older negative peers and used illicit drugs. (ATCN) separated from his family over a crucial period of his life, i.e. from 7 months old to about 4 years of age. (ATCN) and his family arrived in Australia as refugees… the family's difficult background characterised in displacing, escaping, loss of family members whilst escaping, separation, relocation and adjustment to a new environment, where systems and language are different." (sic)". 63 The pre-sentence report drew attention to provisions of the Children (Criminal Proceedings) Act. 64 During the hearing on sentence there were also tendered a letter from a Prison Chaplain, a number of certificates as to education and courses undertaken in gaol and a psychological report from a Mr Chapman. ATCN also has put a deal of effort into improving himself while in custody, completing his school certificate. Reports as to his level of achievement in many areas described that as "sound" though in some areas he achieved the second highest rating of "high". He has also undertaken some practical training. 65 Mr Chapman's report is lengthy, detailed and informative but I shall make no attempt to provide anything like a complete summary of it here. It indicates that while ATCN did not demonstrate any obvious signs of mental illness, he did exhibit attitudinal deficits, peer dependency and a history of significant cannabis use. His IQ was assessed at about the tenth percentile and he himself essentially illiterate and enumerate. He was assessed as not well equipped in terms of judgment, insight and foresight. The report reveals that ATCN over an appreciable portion of his life, has had concerns as to his parenthood concerns made more understandable by the movements of his family. Conditions of Incarceration 66 Evidence was given that since their incarceration, Duong and Khan have been kept in classifications of "protection/non-association" or "strict protection/ non-association", that these classifications have involved much less freedom of movement than afforded to the general gaol population and an inability to pursue courses. The fact that these classifications seem to have existed from the outset argues for them not being attributable to misconduct of the prisoners since they went into jail. 67 Mr Baker, an officer of the Probation and Parole Service indicated that, even if these classifications are maintained, it did not follow that these prisoners would remain subject to the same restrictions as have applied hitherto. He agreed with my understanding gained or confirmed during the course of numerous matters in this court or the Court of Criminal Appeal that there are gaols and pods within gaols adapted to provide to prisoners with these sorts of classifications much and perhaps all of the (relative) freedom of movement enjoyed by prisoners generally. Mr Baker anticipated that once the prisoners had been sentenced, a review of their situation could be expected to occur soon. 68 In these circumstances, I take the view that I should make some allowance in favour of these prisoners on account of the past conditions of custody and a limited allowance for the possibility that in the future that custody will also include more than usual restrictions. Conclusions 69 What conclusions should I draw as to the Prisoners? In the case of Mr Duong Nguyen, while he does not have any record of violence or serious offending and individually his past offences are of no present relevance, his record is significant in demonstrating an attitude of refusal to adhere to at least some of society's rules when doing so does not suit him. I also am not otherwise persuaded that he was a person of good character. Such information as there is about his employment does not enable any positive conclusion as to his character to be formed from this aspect of his life either. 70 Equally I do not feel able to conclude on the balance of probabilities that he is unlikely to re-offend or has good prospects of rehabilitation. The sentence I must impose will obviously provide an incentive for him not to re-offend and in that sense to rehabilitate himself but one cannot be unconscious of the fact that gaol does not always operate in one direction in relation to these matters. I should make it clear that I also am not able to reach any view that Duong Nguyen is likely to re-offend or that his prospects of rehabilitation are poor. 71 I should record that there is no evidence of remorse and I see nothing in Mr Nguyen's past that goes any way towards providing any explanation for his offences or for extending any leniency to him. In so concluding I do not ignore the fact that he was 21 at the time of the offences and that there are cases where some leniency on account of youth has been allowed to offenders of his age. 72 In R v Hearne (2001) 124 A Crim R 451, I had occasion as a member of the Court of Criminal Appeal to consider at some length the topic of the significance of youth and it is unnecessary to repeat much of what is recorded in the report of that case. It is not however inappropriate to repeat and adapt a little of what was then said:- "Where immaturity is a significant contributing factor to an offence, then it may fairly be said that the criminality involved is less than it would be in an adult of more mature years…. It takes no great maturity to appreciate in the course of planning a murder or other instances of violence, that such activities infringe the rights of others in a way that no civilised society can tolerate." 73 I should add that I have also had regard to observations in R v AEM [2002] NSWCCA 58 and of my own in R v JLC-H [2004] NSWCCA 70 to which Counsel for ATCN took me. However, nothing in those remarks causes me to qualify what I have just said. Murder is so alien to normal civilised behaviour that I am satisfied that any immaturity which may have existed by reason of Duong Nguyen's age - and there is no reason to think that there was any - was not a contributing factor to the offence. Accordingly I allow no leniency on account of his age. 74 By way of demonstration of the remarks in the immediately preceding paragraph I would add the following. There is no evidence whatsoever that the reason for the shooting was some competition between drug dealers. However that is at least as likely a possibility as the immaturity of youth. Yet bearing in mind that an inference can only be drawn as the most probable deduction from the established facts - see Holloway v McFeeters (1956) 94 CLR 470 at 477 - no one would conceivably infer than such competition was the reason for the shooting. 75 Subject to three matters, Khanh's situation is not different to any material degree from that of Duong. Khanh's record of demanding money with menaces provides some suggestion of a willingness to use violence but there are other types of menaces and the evidence does not justify any inference that the offence on his record involved violence. The second matter is Mr Khanh's family history. It clearly involved some stressors but there is no basis for inferring that they had anything to so with the offending or laid any foundation for it. The third matter is that Mr Khanh Nguyen is 6 years older than Mr Duong Nguyen. The case for making no allowance for youth is thus stronger. 76 Minh Huynh's situation is somewhat different from that of Duong and Khanh. His antecedents are lesser in number and do not display the repetition of offending that those of Duong and Khanh do. Unfortunately, the evidence does not disclose whether his purchase and possession of the firearm had some sinister connotations or amounted simply to two of those silly things that young men do. Given these were his first offences, it is impossible to infer from the sentences imposed that the offences were simply in the latter category. 77 He also differs from the others in that he would seem to have been in fairly constant employment and such as to lead to the inference that he acquired sufficient skill in his trade to be readily employable when released. The evidence of his conduct since incarcerated also gives room for optimism. 78 Although the very limited information I have makes part of the task difficult, and some of the decisions on a knife-edge, I think that the proper conclusions in his case are that probability he will not be addicted to drugs at the time of his release and, as to the matters referred to in paragraphs (e) to (h) of s21A(3) of the Crimes (Sentencing Procedure) Act, that I am not satisfied that he does not have any significant record of previous convictions, that I am not satisfied that he was a person of good character but that I am satisfied on the balance of probabilities, he is unlikely to re-offend and has good prospects of rehabilitation. Like the others he has shown no remorse. 79 In reaching that last conclusion, I am not unconscious of the terms in which the relevant part of his Pre-Sentence Report is couched and the indications of tentativeness there present. However, he bears the onus and he has not fulfilled it. 80 Again I see no basis for concluding that Minh Huynh's youth had anything to do with the commission of his offences. 81 I have also reflected on the injury to his eye that Mr Huynh as suffered in prison. Regrettably injuries suffered by prisoners at the hands of other prisoners are a not uncommon feature of prison life. However, unless such an event bears on the conditions that an offender is likely to experience during his incarceration or leads to the conclusion that prison will bear more harshly on him than on prisoners generally - and there is no evidence to this effect - it is not a ground for ameliorating the sentence otherwise appropriate. There are obvious difficulties in allowing other prisoners to affect the sentences that courts impose. 82 The favourable conclusions I have expressed in Mr Huynh's case lead to the conclusion that, notwithstanding I regard his objective criminality as great as that of Duong and Khanh, the sentence to be imposed on him will be somewhat less. 83 ATCN does not have any record of convictions previous to the subject offences and even if his offence of possessing a prohibited drug is taken into account no significant record. Particularly having regard to the evidence of his associations, I am not satisfied that he was a person of good character nor do I feel able, on the probabilities, to conclude that he is unlikely to re-offend or has good prospects of rehabilitation. That said, I do acknowledge the effort and improvement which seems to have occurred while he has been in custody and I am not pessimistic as to these matters.

84 In his case however, I think the proper inference is that youth was a contributing factor in his offending. He was 13 when he left home and went to live with associates and while, both to an adult and to most children of his age even, such a decision was likely to lead to problems, it is impossible to conclude otherwise than that that decision was partly the product of youth. Keeping company with, and more particularly living with those associates, was calculated to lead him to be much influenced by them. Even at his age when the offences were committed, 16, it is to be inferred that he was much under their influence and that his decision to participate in the events of 6 January 2004, influenced by his immaturity. 85 The psychologist's report provides further, and strong support, for the view that ATCN's immaturity was likely to be a contributing factor to his offending, and to being influenced by his older co-offenders. 86 That said, even at age 16, he must have known that shooting or killing was very, very wrong. While an appreciable allowance should be made for his youth, it is not possible but to regard his moral and legal culpability as high. 87 In what I have just said, I have not expressed myself in the terms of s21A(3)(j). I do not conclude that ATCN was not fully aware of the consequences of his actions.

Other Matters 88 I turn then to the issue of what sentences should be imposed. Because for the reasons I have given I regard the murder offence as substantially above the mid-range in objective seriousness and because, except in the case of ATCN, I seen no subjective factors arguing significantly for lesser sentences, I take the view that the non-parole period of the sentences for murder should exceed the standard non-parole period 89 In arriving at this conclusion I am influenced by what I see as the proper demands of retribution but more importantly of general deterrence. The courts have an obligation to do what they can to see that the punishment of those who seek to impose their will on others by violence, particularly the extreme violence of death, is such as to operate as a serious discouragement to others tempted to offend in the same way. The position is a fortiori in the case of those who desire a reputation for violence. 90 The result will be, of course, a tragedy for the offenders. However their deliberate actions resulted in tragedy for Linda Huynh and the Court must do what it can to minimise the prospects of similar conduct by others. It must be recognised also that in enacting the non-parole period for murder that it has, the legislature has clearly indicated that the sentences imposed for murder should be higher than they were. 91 Considerations of totality require that there be a substantial degree of concurrency of the sentences for murder and the offence under s33. In fact there will be an accumulation of 2 years. However I make it clear that the length of that period has been influenced to a great extent by the length of the sentences I intend to impose for murder. Were those sentences appreciably shorter, a lesser degree of concurrency would have been called for. 92 The accumulation of sentences also leads me to the view that I should find special circumstances so as to increase the balance of the term for murder at the expense of the non-parole period. However, I see no other basis for finding special circumstances or, even if they did exist, reducing the non-parole period. The balance of term will be more than sufficient to enable the Prisoners to re-adjust to life in the community if that is ever to occur. Furthermore, even though this is the first time in prison for most of them, the non-parole periods reflect what I regard as the minimum time they should spend in prison for their offences. The balances of term will be rounded because that will be sufficient for present purposes. 93 There is one further matter to which I should refer and that is the relative objective criminality of the offenders. It was submitted that I should find that Khanh, Minh Huynh and ATCN were less criminally liable than the gunman, Duong. It was submitted that weight was to be given to the fact that the other three did not press the trigger and may, for example, have only contemplated the doing of grievous bodily harm. The sword was not, so it was said, actually used as a threat. 94 I acknowledge that the task of assessing the relative criminality of the offenders is one I should undertake and that the mere fact that they were engaged in a joint criminal enterprise does not mean they are necessarily equally responsible. However, in the circumstances of this case, their prior association and the way in which all four acted, I take the view that the proper conclusion is that all are equally culpable. 95 I record also that I am satisfied in consequence of the matters referred to in Mr Chapman's report as to ATCN's intelligence, personality, past and education, the fact that he has indicated a desire to pursue that education and the desirability of him for as long as possible being not exposed to older offenders, whether his co-offenders or others, there are special circumstances justifying his detention as a juvenile offender after he attains the age of 18 years. He is in my view someone who is very vulnerable.

Sentences 96 Duong Nguyen - (i) For the offence of maliciously inflicting grievous bodily harm upon Hien Duc Phan with intent to do so, I sentence you to imprisonment for a non-parole period of 7 years commencing on 30 January 2004 with a balance of term of 2 years and 4 months (ii) For the offence of the murder of Linda Huynh, I sentence you to imprisonment for a non-parole period of 23 years commencing on 30 January 2006 with a balance of term of 8 years (iii) I record my view that the earliest date upon which you will become eligible for parole is 30 January 2029 97 Khanh Nguyen - (i) For the offence of maliciously inflicting grievous bodily harm upon Hien Duc Phan with intent to do so, I sentence you to imprisonment for a non-parole period of 7 years commencing on 30 January 2004 with a balance of term of 2 years and 4 months (ii) For the offence of the murder of Linda Huynh, I sentence you to imprisonment for a non-parole period of 23 years commencing on 30 January 2006 with a balance of term of 8 years (iii) I record my view that the earliest date upon which you will become eligible for parole is 30 January 2029

98 Minh Huynh - (i) For the offence of maliciously inflicting grievous bodily harm upon Hien Duc Phan with intent to do so, I sentence you to imprisonment for a non-parole period of 7 years commencing on 30 January 2004 with a balance of term of 2 years and 4 months (ii) For the offence of the murder of Linda Huynh, I sentence you to imprisonment for a non-parole period of 21 years commencing on 30 January 2006 with a balance of term of 7 years (iii) I record my view that the earliest date upon which you will become eligible for parole is 30 January 2027 99 ATCN - (i) For the offence of maliciously inflicting grievous bodily harm upon Hien Duc Phan with intent to do so, I sentence you to imprisonment for a non-parole period of 7 years commencing on 30 January 2004 with a balance of term of 2 years and 4 months (ii) For the offence of the murder of Linda Huynh, I sentence you to imprisonment for a non-parole period of 15 years commencing on 30 January 2006 with a balance of term of 5 years (iii) I record my view that the earliest date upon which you will become eligible for parole is 30 January 2021 (iv) I order that you be detained in a detention centre as a juvenile offender until you attain the age of 21 years. 100 I order to be remitted to the Local Court all of the back charges in this matter.

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R v NGUYEN & ORS - Sentence

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