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[2006] VSC 352
Supreme Court of Victoria
2006-09-22
HARPER J
Original judgment source is linked above.
SENTENCE - Murder - Offender sentenced on the basis of aiding and abetting - No evidence of offender being affected by alcohol or drugs - Denial of guilt - Absence of remorse - No prior convictions - Relevance of youth of offender and prospects of rehabilitation - Sentenced to a total of 14 and a half years' imprisonment with a minimum of 10 years.
1 Tuan Quoc Tran, you have been convicted by a jury of a charge that you did on 8 July 2002 at South Yarra murder James Huynh. He was the victim of extreme brutality. At least one of his assailants attacked him with a sword. Others kicked him, and he was perhaps assaulted by other means as well. The savagery of the sword was therefore in his case augmented by the humiliation of being kicked while lying helplessly on the ground. Both his death, and the manner of his dying, were the work of young men operating at the lowest levels to which young men can sink.
2 The jury have found that you were so much a part of this as to justify a verdict of guilty of murder. You have consistently denied the charge. The undisputed facts nevertheless tell against you. You arrived at the "Salt" Nightclub in the early hours of 8 July with two close friends, Cuong Quoc Lam and Hung Tu Van. Shortly before 3.00 a.m. that day, Mr Van was viciously assaulted in the nightclub. The person in whose murder you have been found by the jury to have played a part was involved in the assault. What he then did was unforgivable. It nevertheless could not possibly justify the revenge which was shortly afterwards wreaked upon him. Swords were produced. There is no direct evidence about how they came to be present. I am nevertheless satisfied beyond reasonable doubt that a group, including Mr Van and Mr Lam, confronted the deceased. That group was armed with at least two swords, and you were in such physical proximity to them that you must have noticed - and noted - not only these weapons, but also the threat that they posed to the deceased and his companions.
3 James Huynh and those with him quickly became conscious of the danger they faced. They not only saw the swords, which is doubtless what those wielding them intended, but your friend Hung Van, in the words of Justice Redlich, armed himself with one of them and "used that sword to assault James Huynh"[1] who was wounded as a result. James and his companions then ran down Daly Street, turned left into Chapel Street, and continued to flee in a northerly direction towards the Yarra River. The seriousness of their predicament, and their awareness of it, did not decrease as they fled. After the deceased collapsed at the intersection of Chapel Street and Alexandra Avenue, you were - on your own account as given to the police in your record of interview - only a very short distance from him when you heard him repeatedly ask for help and say "Can't you see I'm dying?". Meanwhile, his three companions were so frightened that they ran across the intersection and so into the river itself. They did this although there were clothed and in danger of drowning - a fact of which they, or at least two of them, must have been aware. They nevertheless preferred the risk of drowning to that of being caught by their pursuers. They must have been terrified almost beyond our capacity to imagine.
4 On your own version of the facts, you were one of those who ran down Chapel Street. Although you deny any intention to pursue, you must have been among those who were as a matter of fact pursing the deceased and his relatives, because you were one of the first to reach James Huynh after his collapse. You were therefore at the forefront of the chase. By your own account, you were then armed with a knife. I am prepared to accept that you came upon this weapon by chance when the chase began. You then, in company with others, continued to follow the deceased to the point where he died. On the evidence at their disposal, the jury could hardly avoid the conclusion that everyone running down Chapel Street, including you, realised that a chase was on. You do not suggest that anyone was chasing you.
5 Not only was the deceased aware that he was in deadly danger. So were the witnesses in the nearby apartments. It took most of them very little time to appreciate that a very serious assault was underway. If they knew, it is hardly surprising that the jury concluded that you did too. I have no reasonable doubt that, in the intensely charged atmosphere which then pervaded the scene, all those who had already arrived, or were about to arrive, at the intersection of Chapel Street and Alexandra Avenue were as acutely conscious of the menace of the moment as were its victims. You were one of them. Yet you did nothing to defuse this explosive situation, or even to remove yourself from it. On the contrary, by being armed with a knife, and running with those intent on attack, and then coming to the scene of the murder, you aided and abetted those persons.
6 You told the police in your record of interview that you ran to Alexandra Avenue because you were frightened, and because you were looking for your friends. You told the psychologist, Mr Joblin, that you did not believe the jury understood the details of what occurred that night. But whatever your belief, the fact is that, after the confrontation in Daly Street when James Huynh was injured, you ran after the deceased and his companions. The jury were entitled to ask how this could be if you were frightened, since you were running with and towards the danger which culminated in the deadly scene at the Alexandra Avenue corner. The jury were also entitled to ask how you could be looking for your friends when those friends, Cuong Lam and Hung Van, were outside "Salt" shortly before the confrontation in Daly Street, when you were also in that vicinity, and when Hung Van was involved in the confrontation, inflicting the initial wound suffered by the deceased. The jury were, in addition, entitled to question how, if you were looking for your friends in Chapel Street, you managed to run past Cuong Lam's car, which was parked in that street near the "Legends" pool hall. In addition, the jury might have found it difficult to understand how, if you had lost your friends, you could later be in their vicinity when James Huynh suffered his horrific injuries; or how you found your way to a flat in Footscray, where you met with them. On the evidence available to the jury, that meeting occurred not by chance but by arrangement; and the jury were perfectly entitled to infer that that arrangement was made at a time when, according to you, you were searching for those friends. The jury had no other evidence upon which to work. I am satisfied beyond reasonable doubt of the conclusions to which I refer.
7 In this context, the words used by Justice Redlich when he came to sentence those convicted following the earlier "Salt nightclub" trial are pertinent. They apply as relevantly to you as to those to whom his Honour's sentencing remarks were particularly addressed. His Honour then said, speaking to the prisoners as a group:
"[5] It should not be overlooked ... that most of you were part of a group of young men of good character who commenced the evening enjoying social activity. When you were faced with the prospect of confrontation and likely violence each of you made a choice. You declined to withdraw from any possible involvement. Then, by your presence and conduct, whether fuelled by anger and a desire for revenge, alcohol, a misguided sense of loyalty or peer group pressure, you encouraged the conduct of others. When lethal weapons were produced you remained.
[6] Where there is a confrontation between groups of young men, it must be understood that those who cause the confrontation to escalate to one of extreme violence face the prospect of substantial terms of imprisonment. Those who use weapons to resort to extreme violence and those who choose to remain, providing encouragement when it is apparent that extreme violence will ensue, are all responsible and can expect lengthy gaol sentences for the consequences of such behaviour."
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:
"Courts have recognised that a youthful offender is likely to be exposed to corrupting influences during a period of imprisonment which may entrench criminal ways which would defeat the very purpose for which punishment is imposed. A primary objective of the criminal justice system is to achieve crime prevention to protect the public. The rehabilitation of an offender should not be seen as a consideration inimical to that objective. Crime prevention to protect the public and the rehabilitation of the offender are interlinked objectives. In sentencing there is thus a broad public interest in taking into account the youth of the offender. Where the offence which has been committed is of a very serious nature that factor may have to yield to other sentencing considerations such as general deterrence. In such cases punishment, general deterrence and other sentencing objectives will assume a more important role and the rehabilitation of a youthful offender less significance."[4]
16 Your prospects of rehabilitation remain a factor that I must take carefully into account. I believe that they are very good. It is true that you are not remorseful. You explain this by saying that you are not guilty. On the evidence called in the trial, such a position is unwarranted, and perhaps indicates a self-induced unwillingness to acknowledge a very unpleasant truth. On the other hand, I accept that you have more than enough insight to appreciate not only the horror that James Huynh must have experienced in the last minutes of his life, but also the pain that his death has caused to his friends and relatives, and the mirror-image of that pain felt by your family and that of Ms Hallman. I am satisfied that the realisation of these matters causes you very real and sincere regret.
17 I have considered all the factors relevant to sentencing, including your prospects of rehabilitation, your family support, your youth and your good character. I have also taken into account, as I must, considerations of punishment and deterrence. I have had regard, in addition, to questions of parity. The sentence imposed upon you must be fixed after a careful examination of the sentences imposed upon your fellow offenders, and of the reasons for those sentences.
18 I accept that, of those other offenders, the situation of Hoang Tran is closest to, but not in every respect directly comparable to, your own. His conduct was viewed by Justice Redlich as less culpable than any of his co-defendants. I quote from the sentencing remarks with which his Honour addressed him:[5]
"When the Huynhs ran from Daly Street you joined the chase. You observed one of the principal offenders, Cuong Lam, running near you carrying a sword. Numerous witnesses have described how the young men chasing the deceased were shouting and appeared to be angry. Upon reaching the intersection of Alexandra Avenue and Chapel Street you observed James Huynh on the ground asking to be left alone ... Whilst you were watching [Cuong Lam striking James Huynh with his sword] you stepped, on your estimate, to within one metre of James Huynh. After remaining there for a short time you turned and walked away returning to the area of the Salt nightclub. The Crown accepts that you were only present at the murder scene for a short time and that the attack upon James Huynh continued after you left"
19 Mr Tran initially made a false statement to the police. He subsequently volunteered what Justice Redlich described as a full and relatively frank account. Your statement to the police remains unamended, with all its falsity. Apart from those portions that the jury could not have believed - that you were running only because you were frightened, and were merely looking for your friends - you told the police that you were driven to Footscray after another friend, Huy Dinh, suddenly parked his car in front of you, you kind of recognised it, and that was why you jumped in. You asked Mr Dinh to take you home. He in fact took you and two others to Hung Nguyen's flat. By contrast, in his evidence, Mr Dinh swore[6] that he received a telephone call from you asking him to come quickly and pick you up from the "Salt" nightclub. He agreed, but according to his version got lost getting there, and you made telephone contact again so that he could receive further directions. When he found you and your two companions, you asked him to take him not to your home but to the Footscray flat of Hung Nguyen. I accept this evidence of Mr Dinh. I am satisfied beyond reasonable doubt that his version is accurate and yours is not.
20 Justice Redlich took Mr Tran's honesty into account in assessing his degree of remorse. I adopt the same approach, but with necessarily different consequences. There are other differences between you and Hoang Tran. On the one hand, you have endured the anxiety and stress of facing different charges at different times. You have lived with uncertainty for four years, and that I think is a factor that now requires recognition by a more merciful sentence than would otherwise be imposed. In fashioning that sentence, I take into account, as did Justice Redlich with Hoang Tran and some of his co-offenders, that your behaviour during your trial and generally since the events of 8 July 2002 has been impeccable.
21 Another difference is that that you were armed. Hoang Tran was not, save that he wrapped a belt around his fist. I think that this difference cancels out the effect of your years of uncertainty.
22 Long Tran and Hong Bui were also dealt with as aiders and abettors. They were each sentenced to 15 years imprisonment, with a minimum of 11 years to be served before being eligible for parole. Long Tran drove his car to the scene with the intention of making it available to one or more of the principals to flee following the completion of the crime. Hong Bui also drove to the scene, and made his car available to assist in the commission of the crime. Both men therefore assisted in two ways; by their mere presence, and by offering the principals a means of escape. You aided and abetted only by your presence. You contribution therefore was less than was theirs.
23 I have not yet referred to the victim impact statements with which I have been provided. They make for very sad reading. They do, it is true, gloss over the criminal behavior of which you and Hung Van were yourselves a victim that night. I understand, but cannot share, their position in this respect. I nevertheless take them into account, to the extent that it is permissible for me to do so. I particularly note in this context the passages read to me by Mr McArdle.
24 Tuan Tran, I must sentence you on the basis that you aided and abetted the principals in the first degree of the murder of James Huynh. In fixing that sentence, I must take into account, as I have, the considerations set out in the Sentencing Act 1991. I have had regard to both the objective circumstances of your offence and your personal circumstances. The sentence which I impose upon you must manifest the Court's denunciation of your conduct, and make adequate allowance for both special and general deterrence. Although there are necessarily some differences between your circumstances and those of Hoang Tran, these do not in my opinion warrant any difference in penalty. For the murder of James Huynh, I sentence you to 14 and a half years' imprisonment. I direct that you serve a minimum of 10 years imprisonment before becoming eligible for parole. Pursuant to s.18(4) of the Sentencing Act 1991 I declare the period of 408 days as already having been served under the sentence I now impose. I so certify, and direct that this declaration and its details be entered into the Court records.
25 I also order pursuant to s. 464ZFB(1) of the Crimes Act 1958 that the forensic sample and any related material and information obtained pursuant to the informed consent given by you be retained for placement on the data base. I am satisfied that in all the circumstances the making of the order is justified having regard of the seriousness of the offending, the fact that the order is not opposed, and the fact that the granting of the order is in the public interest.
[1] Sentencing remarks of Redlich J in R v Lam & Ors [2005] VSC 495 at [38].
[2] Sentencing remarks of Redlich J in R v Lam & Ors [2005] VSC 495 at [20].
[3] Sentencing remarks of Redlich J in R v Lam & Ors [2005] VSC 495 at [184].
[4] Sentencing remarks of Redlich J in R v Lam & Ors [2005] VSC 495 at [8].
[5] Sentencing remarks of Redlich J in R v Lam & Ors [2005] VSC 495 at [152].
[6] Transcript, p 976 ff.
R
Tran [2006] VSC 352