8 In your case, the jury found either that you were acting in concert with those intent on assaulting James Huynh, or you aided and abetted that assault. I incline to the latter alternative. It is clear that those carrying swords had armed themselves in this way as part of a joint enterprise. Those who were also wearing white gloves likewise signalled their joint participation with the others similarly accoutred. I am not satisfied that you were in either category, because the relevant film is inconclusive, and the evidence of Mark Ung is unreliable.
9 There is another reason why it seems to me that I should deal with you as an aider and abettor. It was on that basis that another offender, Linh Van (Johnny) Nguyen was sentenced by Justice Redlich. It was Mr Nguyen who drove the red Toyota Starlet to the scene after receiving a telephone call at the "Commercial Lounge" nightclub in Prahran. After arriving in South Yarra, he drove David Nguyen and Hung Van into Alexandra Avenue from where they assaulted James Huynh. In these circumstances, Justice Redlich rightly observed that much of Johnny Nguyen's conduct supported the hypothesis that he was acting in concert with the principals of the first degree. His Honour nevertheless felt constrained to deal with Mr Nguyen as an aider and abettor "because the prosecution disavowed any intent to rely upon these circumstances as establishing that [he] acted in concert."[2] It would be unfair, it seems to me, were you not treated likewise. I note in this context that Johnny Nguyen was sentenced to 16 years' imprisonment, of which he must serve a minimum of twelve and a half years before being eligible for parole. I also note that this sentence was predicated on the proposition that Mr Nguyen's conduct was "more culpable than that of any of the other co-offenders who were convicted as aiders and abettors."[3]
10 The seriousness of your complicity in the murder of James Huyhn must also remain firmly in my mind. It is true that you had yourself been injured in the fight inside the nightclub, and were consequently bleeding profusely from the nose and the region around the nose. I accept that, as a result, you were not thinking as clearly as otherwise you might, and had reason to be angry with your assailants. But, in chasing after those who you must have known were running for their lives, in being armed - although without premeditation - and in being thereafter within the vicinity of those who then inflicted fearsome injuries upon the deceased, you aided and abetted James Huynh's murder.
11 I turn now to your personal circumstances. You were born in Vietnam on 20 January 1981. You are now 25 years of age, and were 21 at the time of this offence. As with many Vietnamese migrants to Australia after the end of the Vietnam War, your journey here was hazardous, slow, and uncomfortable in the extreme. You travelled by sea to Hong Kong in a boat that was probably unseaworthy. Its supplies of food and water were also inadequate. When you arrived in Hong Kong you were placed in a refugee camp. You have described this as "worse than a prison". It was in Hong Kong that your mother was reunited with your father, whom you then came to know for the first time. You arrived in Melbourne in 1990 after an uncle (your father's brother) sponsored your family's entry into Australia.
12 Since your arrival, your family has settled well into the Australian community. Your father works in a food processing factory while your mother is a housewife occupied with the care of your 15 year old sister and your 7 year old brother. Your parents are Buddhist, with no history of drug or alcohol abuse and none of violence or aggression. You remain on positive terms with them, and they have supported you during your time in custody. Your closeness to them has made you sensitive to the difficulties you have caused them; and it is to your credit that you acknowledge this with what Mr Joblin describes as particular distress.
13 In addition to your family, you have Kadriye Hallman as a friend of long standing. She is a young woman of a similar age to you. You met her at school and have enjoyed a close relationship with her for most of the time since then. Her mother, Brenda Hallman, gave evidence during the course of your plea. She spoke of her fondness for you, and of the compassion and care you have shown for her daughter. She described you as a very, very good person. I accept that you have been a welcome addition to her family and have consistently demonstrated kindness and devotion to Kadriye who, with her mother, is finding your present situation very difficult - but is nevertheless prepared to give you continued support for which you are grateful. It is a credit to you that you have managed to maintain such strong relationships in difficult times, and with people who, like your own family, have no history of attention from the police or of drug or alcohol abuse. They are, I accept, good and decent people. I think that you can also be generally described in the same terms, and that on 8 July 2002 you became involved in inexcusable behaviour that was out of character.
14 You are intelligent. Before the events of 8 July 2002, you were successfully advancing your career. Having begun your schooling in Vietnam, you completed it to VCE level in Australia. You have since enrolled in the Victoria University of Technology, and subsequently transferred to RMIT University, deferring at the latter institution your study of building and surveying while you worked to finance those studies. You accepted a position at Crown in 2001, and were within two weeks of completing your traineeship there when you were arrested. You have no prior criminal history.
15 One night of madness has brutally ended the life of James Huynh, and tragically blighted your own. This, together with your youth and your other otherwise unblemished record add to the difficulties of determining an appropriate sentence. I proceed upon the basis that you were more than a year younger than Quoc Lam, and some four years younger than Hung Van. You were, I think, inclined to follow their lead. Youth and a tendency to be overly influenced by companions somewhat older than yourself are factors to be taken into account by me in determining an appropriate sentence; and, as Justice Redlich pointed out when sentencing the other young men involved, it is universally accepted within common law countries that in the case of a youthful offender reformation remains an important consideration. His Honour continued: