R v Tran [2009] VSC 271

3 Mr Tuan Vo knocked at the door of the house shortly after Mrs Vuu heard her husband talking on the telephone. She let Mr Vo into the house. She recognised him from previous visits to her husband which she thought related to drug transactions. Mrs Vuu heard raised voices from the kitchen. She heard Mr Vo complaining about the quality of drugs. Thinking he was angry, Mrs Vuu went into the kitchen and offered him a cup of tea in an attempt to soothe him. She saw Mr Vo and her husband smoking through a water pipe. Mr Vo left and, about five minutes later, you knocked at the door. Mrs Vuu recognised you from your two previous visits to the house and let you in. (Counsel making the plea on your behalf conceded that it would appear from the evidence that you had been buying drugs from Mr Nguyen during the period of months leading up to the murder. You also told the clinical psychologist, Mr Bernard Healey, on 1 November 2008 that you and Mr Vo (then aged 30) had been supplied heroin by Mr Nguyen).

4 You walked into the kitchen where Mr Nguyen had been sitting. You spoke too softly for Mrs Vuu to hear what you said. She did hear her husband ask what you were saying and then to speak to Mr Vo. The two of you then walked out of the house. Mrs Vuu heard you all talking outside for several minutes before her husband returned to the house and went into the kitchen.

5 Then she heard another knock at the door and again let you in. You walked straight past her into the kitchen. She turned around and saw you holding a gun. She only saw the barrel because her view of the gun was obscured by your sleeve. She heard her husband calling out, "Thi, Thi, don't shoot, don't shoot" and saw him holding up his hands. Then you fired a shot and she saw you stoop down to look at her husband and then quickly turn around and walk out. Mr Nguyen then stood up, he told Mrs Vuu to call an ambulance and then he fell down on his face on the floor. He was still alive at that stage and moaning. She called her daughter and told her to call an ambulance. They collected a pillow for Mr Nguyen's head and covered him. He died on the floor from the single gunshot wound to his chest. He was 42 years old.**

6 Both Mrs Vuu and Ms Jenny Nguyen have provided the Court with moving Victim Impact Statements. Your crime has had a very significant impact upon their lives, depriving them of a father and husband. They have suffered a devastating loss which has had serious emotional and financial consequences for them both. Mrs Vuu now struggles as the sole breadwinner in the family and they both must now continue on without a much loved family member.

**7 You gave a personal history which included details of poly substance abuse to Mr Bernard Healey, a clinical psychologist who prepared a report dated 1 November 2008 tendered by counsel making the plea on your behalf. I accept the unchallenged facts stated in that report.

8 You are 23 years old, having been born on 6 December 1985. At the date of the murder you were aged 21. You are the second youngest of five children. Your Vietnamese parents run their own timber flooring business. Your elder sister, Ms Tran Thi Hoa, a former dental nurse, gave evidence on your behalf in the plea. She lives in her own house with her autistic son. Your two brothers live at home, one works with your parents and one is a chemical engineering student. You have another sister who works as an accountant in Malaysia.

9 You were educated to Year 12 level at Christian Brothers College in St Kilda after attending Albion North and Keilor Downs primary schools and Keilor Downs Secondary College. You had completed the first semester of an applied science course at RMIT in 2004, but passed only two or three of the five subjects. (I note that you had applied to resume those studies whilst you were on bail but had been rejected.) Your only work has been in your parents' business.

10 You first became involved with cannabis at the age of 16 when you were still at school. You were eventually smoking five days out of seven, up to six cones a day. You stopped smoking cannabis about four months before the murder. You also began smoking heroin at the age of 16, about once a month, but your use increased to half a gram a day whilst you were still at school. You underwent counselling, but developed a daily habit.

11 You had also begun using ecstasy at weekends when you were 18 and continued to do so until late 2006. At the same time, you smoked amphetamine or "ice" three or four times a week and continued to do that up to early 2007.

12 You related well to your family members until the effects of drugs began to take a toll on your functioning. You were asked to leave home when you were 18, as a result. You were taken in by your elder sister, Ms Hoa Tran.

13 In February 2005, at the age of 19, you were placed on a community based order when convicted of a drug related offence. You completed only 20 of the 100 ordered hours of work. You had started a buprenorphine programme at the time of the community based order but, after some weeks, your craving for drugs led to a relapse into drug use. You were later sentenced to four months' imprisonment wholly suspended for 12 months for breach of the order on 22 June 2007, by which time you were in custody in relation to this matter.

14 You occasionally used cocaine at the age of 19 and had increased that to one gram by the age of 20 up to early 2007. Between the ages of 19 and 20 you also used benzodiazapines to enhance the effects of heroin, but had last used those pills in late 2006.

15 In 2006, you spent two weeks in the Royal Melbourne Hospital after a knife assault to your neck which caused some damage to your vocal chords and resulted in a scar. You have otherwise had good health.

16 You were remanded to prison on 5 June 2007 after your arrest for this offence. You were assessed by the Court Integrated Services Programme ("CISP") on 12 November 2007. You reported no illicit drugs or alcohol use since your arrest. The report from CISP case manager noted your family support and your willingness to address your substance abuse issues and the fact that you had developed some insight into the negative impact of substance abuse. You were granted bail on 19 November 2007 and, up to the trial in September 2008, you complied with the conditions of your bail which included a curfew between 7 pm and 6 am.

17 You sought assistance from a medical practitioner and re-commenced a buprenorphine program. You dropped out again after two months. You told Mr Healey that you had been drug free from August 2008, that you had continued to live at home, had helped in the family business and had withdrawn from unhelpful associations. Your sister said that you were living with her for six months after the CISP program. Mr Healey described you as having had no serious relationship with a member of the opposite sex and no positive friendship ties.

18 In his opinion, your drug abuse had clouded your judgment and hindered your progress personally and in terms of a career path. His testing revealed your above average intellectual capacity; your IQ put you in the 81st percentile of people your age and you showed no major signs of cerebral dysfunction. Mr Healey's personality testing showed your vulnerability to substance abuse and a hypomanic trend, linked to heightened excitability and impulsivity and difficulty in complying with appropriate codes of conduct, particularly when under the influence of drugs.**

**19 Counsel argues that your judgment and performance were affected by drug abuse at about the time of the offence. He submits that you were capable of being a normal citizen and not offending if you had not been on drugs, although he agrees that there is a lack of evidence about you being affected by drugs on the day of the murder.

20 Counsel argues that you have good prospects of reform and rehabilitation, relying upon your relative intelligence and your level of education. He argues that you will conform when given the opportunity, noting that you managed to stay out of trouble and comply with bail conditions whilst on bail under the CISP programme. He points to your close family support and the fact that your sister has been willing to provide you with a home. He emphasises the significance of your relative youth, given that you were 21 years old at the time of the murder.

21 Counsel for the prosecution submits that this was a drug related crime, but notes that the evidence did not establish that your drug use affected your mental functioning on the night in question. He argues that there is no justification for concluding that your moral culpability was reduced by your drug use. He characterises the murder as a cold blooded one committed in the context of a business dispute. The murder was, in effect, an execution in the family home in front of Mr Nguyen's wife whilst his child was in the house. Counsel argues that your willingness to reform your drug taking habits does not reduce your moral culpability for this heinous crime.

22 Counsel also contends that your youth should not play a significant role in relation to your sentence given the callous and serious cold blooded nature of the crime.[1]

23 Counsel also pointed to the absence of any indications of remorse.**

**24 Your crime is a serious example of the offence of murder. It was committed in Mr Nguyen's family home with his wife looking on. (Although Mr Nguyen's daughter was in the house, there was no evidence that you knew she was there.) You did not appear to be in any kind of frenzied or other excited emotional state or affected by drugs in the way described by Mr Healey. There is no evidence that you were acting impulsively. Rather, you calmly shot a man pleading for his life. There is no clear explanation for the murder, even though it took place in the context of drug related dealings involving Mr Nguyen. You had a gun with you that evening.

25 It is vital that other members of the community be deterred from such callous and brutal behaviour in total disregard of the law. You yourself must be deterred in the same way. Your crime calls for punishment and denunciation. Whilst your relative youth, your family support and compliance with your bail conditions and the CISP program, as well as the other matters relied upon as evidence of your rehabilitation prospects must be taken into account, the elements of deterrence, condemnation and just punishment remain significant factors in your sentencing.

26 You do maintain your innocence, as you are entitled to do, but you also cannot claim the benefit of any remorse in the circumstances. You are a young man and your sentence should not be crushing.

27 I will sentence you to imprisonment for 22 years with a non-parole period of 17 years. I consider this minimum period of imprisonment is called for in all the circumstances, notwithstanding your relative youth, bearing in mind all the sentencing considerations to which I have referred.**

[1] Citing R v PDJ [2002] VSCA 211; (2002) 7 VR 612 at 629 per O'Bryan AJA.