R v Tran [2003] VSC 165

Supreme Court of Victoria|2003-05-23|Before: REDLICH J

CRIMINAL LAW - Sentence - Murder - Killing of partner - Loss of self-control.

Ms Kay Robertson, Solicitor for Public Prosecutions

You were born in Vietnam on 26 July 1969. Your father, following his "re-education" after the war was killed in a motor car accident in Vietnam when you were aged 15. You attended university in Vietnam, studying Marine Engineering but did not complete those studies when you were able to join your mother in Australia in 1994, she having lived in Melbourne since 1992. Upon your arrival in Melbourne, you resided with your mother and brother in Footscray and worked for two years as a machinist in a clothing factory whilst undertaking English studies. You then took employment as a dye colourer in a leather factory in Footscray where you worked for about a year and a half before commencing a Diploma of Building Construction and Building Surveying at Sunshine TAFE which you completed over a two year period. During this time, you were able to work part time for Don's Smallgoods and upon completion of your studies, you commenced to work there on a full time basis.

In approximately 1995 you met Phung whilst she was still studying at Deakin University. Over time you formed a close and intimate relationship. In late 2001 you purchased a home with Phung at 24 Mountain View Avenue in Avondale Heights. The house was in the deceased's name as she was able to qualify for the Home Buyers' Scheme. You already owned premises at 6 Lily Street, Braybrook. You and Phung obtained a joint loan for the property at Avondale Heights and contributed a significant amount of your own funds towards this purchase. Within a short time after its acquisition Phung decided to end her relationship with you, informing you that she did not think you were compatible.

Shortly after informing you of her decision to end your relationship, Phung commenced a relationship with one Cuong Tran who was a co-worker at Premier Technologies. This relationship continued until her death. You could not bring yourself to accept the fact that your relationship with Phung had ended. You continued to pursue her in an effort to change her mind. On occasions you waited for her at her home to return from work, you waited for her at work, you delivered flowers to her at work, you brought her presents and you constantly telephoned her. You told others how desperately you wanted her back. So affected were you by the deterioration of your relationship that you commenced to absent yourself from your employ. Because of the extent of your absenteeism your employment was terminated in late December. You told Phung that your life was worthless without her and you threatened suicide. In November 2001 you told the deceased's sister, Huong, that you could not bear to be separated and that you would kill Phung and then kill yourself.

On New Years' Eve 2001 you left a note which Phung found saying that you were intending to take your own life. Phung became seriously concerned and called Lifeline and police attended at your premises to find a rope hung over a beam. You were taken to Western Hospital and you were medically examined before being discharged. Whether or not you intended to commit suicide I accept that this incident demonstrated how profoundly you had been affected by the termination of your relationship with Phung. Despite the end of the relationship you insisted that Huong accompany you to shop for gifts for Phung. Huong agreed to accompany you and you purchased lingerie, sleepwear and jewellery for Phung which you gave to her on 21 December 2001.

On Monday, 4 February 2002 you called Phung and informed her that you had a new girlfriend. She was happy with this news. Arrangements were made for her to meet you that evening. During the afternoon the deceased called you and said she did not wish to meet you that night. It appears that after further discussion she agreed to meet with you. Phung left her home at about 8 o'clock that evening, driving her own vehicle. A little later, and whilst in her vehicle she spoke on her mobile phone to her boyfriend Cuong. It appears that she was driving in the direction of your jointly owned property at Avondale Heights. Her movements thereafter remain uncertain until, as you were subsequently to inform the police, she arrived at your home at 6 Lily Street, Braybrook shortly after midnight. You left your house and got into the front passenger seat of Phung's vehicle. She then drove to your house in Mountain View Avenue where you remained in the car for about 15 minutes arguing. The deceased then drove towards Keilor Park. You continued to argue. You told the police that the arguments were over the sale of the house, money and Phung's relationship with her boyfriend Cuong. The argument became so heated that the deceased stopped the car on the side of the road in Keilor Park Drive. In a report to Mr Geoffrey Cummins dated 24 March 2003 which was tendered during the plea you said:

"We were arguing about many things - about friends. She said my friends were only labourers and had no skills. I told her when you have friends you don't look down on them and you don't use them. She was telling me I was only a labourer and we were quarrelling about the house. At first she said the money from the house would come to me because I put all the money into the house. Later she said she had gone to borrow money and she said she needed the money and something about the house in her name. I'd already stopped working and I put my name down at Uni to do some more studies. I also needed money to pay for 6 Lily Street. Then she spoke about my family. She said my auntie and uncle were only labourers and they didn't have equal status with her family. She'd talk about my mum - she'd swear - she said f'k your mum (in Vietnamese). She said your mum loved the dog more than you - normally she was very hot tempered and she'd say this more and more and she kept talking and I tell her to be quiet. I wanted her to be quiet and she doesn't show respect to other people. She'd treat them with contempt."

During the heat of the argument you grabbed hold of the deceased around the throat and strangled her. She struggled violently attempting to get away from you scratching you on the face, shoulders and arms and also biting you to the top of the left ring finger. After you had killed Phung you pushed her body across to the front passenger seat of the vehicle and drove her car to the Botanical Gardens car park in Stadium Drive, Keilor Park only a short distance from where you had killed her. You got out of the car and opened the boot. You placed a dark coloured plastic garbage bag over the boot interior light and taped it up with electricity tape, having found both of these items in the boot of the car. You removed the deceased's outer clothing leaving her in her underwear. You explained to police subsequently that you removed her clothing so that there would not be any fingerprints. You removed her earrings, necklace and watch, all gifts that you had given her which you told the police you intended to keep as a souvenir. You then placed the deceased's body in the boot taking her clothing, jewellery, car keys and mobile phone. You then ran and walked home throwing away these items along the way.

The following morning the deceased's sister noticed that Phung had not returned. She was supposed to take her father to hospital that morning for medical treatment. Thereafter, Phung's family and friends made every effort to try and locate the deceased. They contacted the police and Phung was reported missing. They searched throughout the Sunshine, Avondale Heights and surrounding areas. They spoke with you, Phung's mother pleading with you to tell them if you knew what had happened to her. You denied any knowledge of her whereabouts telling them and subsequently police in your initial interviews that you had not gone out on the evening of 4 February. You accompanied the family and friends whilst they searched in an attempt to locate her. When interviewed by police who were seeking to ascertain her whereabouts you gave different accounts as to how you came to have the injuries which you had sustained.

On 11 February the Homicide Squad who had now taken over the investigation further interviewed you. Once again you claimed you had no knowledge of Phung's whereabouts and claimed you had nothing to do with her disappearance. On the next day, police located Phung's body in the boot of her car where you had parked it at the Botanical Gardens car park. You were again interviewed by the Homicide Squad and repeated your claim that you had nothing to do with her death and claimed that the injuries that you had were the result of scratches from your dog. On 15 February an Evidence Warrant was executed at your home at which time you admitted to police that you had killed Phung. In a subsequent formal interview you admitted strangling the deceased, removing her clothes and jewellery and placing her body in the boot. You told the police that you had got really angry with her and it just happened. You told police that Phung made derogatory remarks about your family's social and education background, and about your own educational and employment background.

Steven Kersey Larcombe was a part time Research Assistant in the Computing Maths Department at Deakin University who was providing private tutoring to the deceased and her cousin. He became quite friendly with both of them and their family and eventually met you. In his statement to police, Mr Larcombe detailed certain pertinent observations he made of you and the deceased that I do not regard as necessary or appropriate to narrate. (See p. 162 of the depositions). This passage was relied on by your counsel in support of the plea. The evidence of Mr Larcombe provides some confirmation of the explanation you provided to both investigating police and Mr Cummins as to what occurred before you lost control. While this may in part explain your conduct it provides no justification for your resort to violence as a solution to your problems. You have taken the life of a young woman. The sentence I must pronounce should reflect the Court's denunciation of such violence and must be such as to deter others from such conduct. It must clearly reflect the commitment of this community to the sanctity of human life.

During the course of the plea, the Learned Prosecutor stipulated that the Crown does not allege that your murder of Phung was pre planned and accepts as you informed the police that you lost control and killed her by strangling. The Crown has pointed to the fact that prior to killing Phung you had demonstrated a level of jealous and obsessive behaviour and an unwillingness to accept that the relationship was over.

Your conduct in placing Phung's body in the boot of the car and concealing her whereabouts and your attempts to distance yourself from involvement in her death are aggravating circumstances. You denied any involvement in her death to her family and joined them in futile attempts to locate her, driving family members to various suburbs around Melbourne in their frantic search. In an interview on 12 February you told the police that you had last seen the deceased some three weeks earlier before she had gone on holidays to Queensland and you had last spoken to her at 8.00 pm on 4 February. By the time the deceased body was found it was badly decomposed.

I have been provided with victim impact statements from Tu Ngoc Nguyen, Phung's father, Thi My Dung Tran, Phung's mother, Duc Thong Nguyen, her brother and Thi Diem Huong Nguyen, her sister. These statutory declarations provide a human dimension to your terrible crime. Each of them describes the horror of your crime and the sadness of their loss such a short time after the happy reunion of the family in Australia. Each of them must deal with the vivid images of the circumstances in which you killed Phung and concealed her body. They are all traumatised and suffer from depression and anxiety. Although there are matters contained within the victim impact statements that it is not appropriate for me to take into account, their statements are a vivid reminder that you have taken the life of a young woman who had a bright future ahead of her and who was a loving daughter and caring sister. As Phung's sister Thi Diem Huong observes, you have destroyed the happiness of that family in taking her precious life and you have irreparably damaged the lives of those who loved her.

It is undoubtedly the case that that you committed this offence against a background of what is commonly referred to as "unrequited love". I accept the opinion of Mr Cummins expressed in his report that at the time you caused Phung's death you were not thinking clearly because of your state of acute grief and acute depression. I take these matters into account as matters bearing upon the degree of moral culpability which I should attach to your conduct.

For a period of about ten days following your violent act you showed little remorse for your conduct being more concerned to protect yourself and conceal your involvement in this crime. Mr Taft, who appeared on your behalf in a comprehensive and persuasive plea directed my attention to a number of matters which satisfy me that by the time you made your confession to police at your home you were afflicted by your conscience and demonstrated significant remorse. Your video and interview substantiates this. I am satisfied that you have continued to demonstrated genuine and significant remorse.

You indicated your intention to plead guilty to this crime at the earliest time and your plea of guilty is further evidence of your genuine remorse. I accept the submission of your counsel that your plea of guilty warrants a substantial discount from the sentence that I would otherwise be bound to impose.

You have already demonstrated a capacity for industry during your brief time in Australia and I accept that you have excellent prospects for rehabilitation. You have no prior convictions and there is nothing outstanding alleged against you. I have no reason to think that you will offend against the law again.

In determining the appropriate sentence I have considered the provisions of the Sentencing Act 1991.

The Learned Prosecutor has referred me to the decision of R v Midas Conway[1] and the decision of the Director of Public Prosecutions v Colin Earl Graham[2], both being cases which bear some similarities to the present case but also significant differences. There are, in my view, a number of circumstances which exist in your case and which cannot be found in these cases which justify a more lenient approach than that adopted in either of those cases.. In contrast to Graham's and Conway's case, you have pleaded guilty. The Crown accepts that your action was spontaneous and you have exhibited significant remorse and grief over your tragic conduct. Nevertheless, you have, by your plea, acknowledged that you deliberately strangled the deceased with the intention to kill her or at least cause her really serious bodily injury and your subsequent conduct is an aggravating circumstance.

Mr Tran for the murder of Phung Kim Nguyen I sentence you to 16 and a half years' imprisonment and I fix a minimum of 12 and half years before you become eligible for parole. Pursuant to s 18 of the Sentencing Act 1991 I declare that the time that you have spent in custody in relation to this proceeding is 463 days inclusive of today's date and I direct that it be reckoned as a period of imprisonment already served under the sentence imposed.

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Judgment (26 paragraphs)

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