R v Tran [2022] NSWSC 1661 | Case summary

Judgment (8 paragraphs)

[1]

Introduction

On 19 September 2022, Mr Thanh Tran (the offender) was arraigned before a jury panel and me at Darlinghurst. The indictment averred a single count: that on 14 March 2019 he had murdered Mr Pok Min Fah (the deceased). The offender pleaded not guilty to murder, but guilty to manslaughter, a plea that the Crown did not accept in full satisfaction of the indictment. A jury was immediately empanelled, and the trial commenced. From its earliest stage, senior counsel for the offender made clear that the elements of murder were accepted, but her client relied upon the affirmative partial defence of substantial impairment.
On 11 October 2022, the jury brought the trial to a conclusion by delivering a verdict of guilty of murder.
Proceedings on sentence were conducted on 25 November 2022, and it now falls to me to impose sentence.
Facts adverse to the offender, above and beyond those inherent in the elements of murder and the failure to establish the defence on balance, must be proven beyond reasonable doubt. Mitigating features in favour of the offender need only be proven on the balance of probabilities. Some matters, inevitably, may remain a mystery to me.
Murder carries a maximum penalty in New South Wales of imprisonment for life without possibility of parole. It also features, in the circumstances of this case, a standard non-parole period of 20 years. The learned Crown prosecutor did not submit that this is an example of the offence of murder that calls for the imposition of the maximum penalty, a position with which I agree.

[2]

Subjective features

Turning from a discussion of the offence to the individual who has committed it, the plea at the start of the trial and the verdict at the end of it means that there can be no utilitarian discount. Having said that, the trial was merely a question as to which form of the overarching offence of homicide constituted the true verdict; it was conducted in a very focused way, as a result of that position of the offender; and, as part of permitting the jury to assess the partial defence, he consented to speak to a psychiatrist qualified by the Crown. I give the offender some credit for all of that.
The offender was born in April 1943. Accordingly, on the evening of the offence he was aged 75 years 10 months, and is now aged 79 years.
He grew up in a small town in Cambodia near the border with Vietnam, in unprivileged circumstances. Of Chinese background, he was then a Cambodian citizen who spoke Cambodian, at least one Chinese language, and Vietnamese fluently.
In the late 1960s and early 1970s, the Vietnam War began to spill over into Cambodia, and the town became too dangerous a place to live. The offender and his family departed for Phnom Penh, the capital of Cambodia some distance to the west. There he established himself for a second time, until the notorious Khmer Rouge regime came to power in early 1975. The offender and his family were part of the infamous emptying of that city of its residents, and were subjected to a very arduous and frightening journey to the rural parts of that country, where they became forced labourers. For about a year they lived with an explicit fear of death if they were to disobey the regime, even by way of speaking when prohibited, and were so lacking in food as to be literally reduced to eating vermin in order to survive. Theirs was a life of the utmost deprivation, combined with terror.
Eventually, on the purported basis of being Vietnamese, they were permitted to depart for Vietnam, and commenced a new life in what had recently become Ho Chi Minh City. There the offender made a success of starting again, and was able to earn a living with his skill in watch repairing.
Completely unexpectedly, in 1983 the Vietnamese government ordered the offender and his family to move immediately to a refugee camp, I presume because it had been discovered that, in truth, they were not Vietnamese. In two such camps, the offender languished in very difficult circumstances, although one then positive development from that period was that the offender and his former wife began their romantic relationship in 1985.
Eventually, by way of a refugee camp in Thailand, the offender and some family members came to Australia as refugees. He himself arrived in 1987. By that stage, of course, many family members, friends, acquaintances, and persons known from the small town, had disappeared during the years of the Khmer Rouge regime, they having died undoubtedly as a result of starvation, sickness, torture, or murder.
When the offender arrived in this country, to my assessment he had gone beyond the point of being able to start yet again successfully. He made some effort to learn English, and some effort to work, but neither was taken very far. As I have said, he lived under the same roof with his wife and two children for many years, but romance and intimacy between husband and wife died years ago.
By the evening of the offence, he was living in a small apartment with a boarder to whom he was not close, leading a lonely and isolated life, feeling rejected by his former wife, and excluded from enjoying a relationship with his children. His days were basically aimless, featuring as they did such things as watching other persons play chess in a pedestrian mall, drinking at the social club, and gambling on poker machines.
Despite the jury not being satisfied that all elements of the defence of substantial impairment had been established on the balance of probabilities, I do accept that, by the time of the offence, the offender was suffering a mild version of Major Depression, and that his life had been damaged by post-traumatic stress disorder (PTSD), founded upon all of the grossly adverse experiences that he had endured.
Having said that, I think that the symptoms of the former illness did not go far beyond the normal reaction that one might experience in one's old age as a result of being asked to leave the family home after many years, and trying to start again in very isolated and sad circumstances. And as for the latter condition, there is no suggestion that the offence was occasioned by any explicit flashback whereby the offender suddenly experienced any of the terrible events of his previous life.
It goes without saying that a rejected former intimate partner such as the offender has not the slightest right to inflict violence upon anyone as a result of that rejection, let alone fatal violence. Australian society simply expects persons in the position of the offender to find a way to deal maturely with the sadness and disappointment they are experiencing. So does the criminal justice system. In other words, the circumstances in which the offence was committed would usually constitute, in my opinion, no mitigation whatsoever; indeed, they could arguably constitute a matter in aggravation, in the sense not only of wilfully extinguishing the life of a romantic rival, but also of wilfully denying one's former intimate partner happiness with the deceased person for the rest of their own life.
Here, however, I accept that the circumstances are a little different. As senior counsel submitted to the jury, the offender had lost everything many times in his life. He had endured a life that featured great deprivation on many occasions; indeed, for a time, gross inhumanity. The loss of family life in late 2018 and early 2019 was, I accept, yet another loss, one which the offender by then was incapable of bearing. As well as that, seeing the ladder carried by the deceased played its part, I find on balance, in the commission of the offence, in that I believe it constituted in the mind of the offender a symbol of his romantic and domestic rejection and replacement.
All of those factors - a life marred by extraordinary deprivation and disruption, two psychiatric conditions, and the role that those three factors played as context for the emotions underpinning the offence itself - do nothing to excuse what occurred on that evening. But they do go some way to explaining it, and in my opinion they do so in a mitigating way, by reducing the moral culpability of the offender to some degree.
Furthermore, the offender possesses no criminal record whatsoever in this country, and I infer that he was a law-abiding person in Cambodia, Vietnam, Thailand and anywhere else before he came to live in Australia. He deserves credit for that, and this offence of the utmost violence must be thought of as being completely out of character. It also plays a role, of course, in my assessment of his prospects of rehabilitation.
Turning to that topic, I believe that the offender has done and will do his best to use his time in custody quietly and constructively. He is in reasonably good health as I understand it for a man of his age and experiences, and I infer in particular that he is not a smoker. He does, however, suffer from diabetes, a condition that I believe will be able to be reasonably well-controlled in custody by way of a modified diet.
In short, if the offender reaches a point in his life where he becomes eligible for release to parole, I believe that his prospects of rehabilitation and refraining from offending on conditional liberty would be excellent.
To be weighed against all of those positive aspects is the fact that the offender has expressed no remorse whatsoever for what he has done. That is despite the fact that quite some time had past between the return of the verdict and the hearing of the proceedings on sentence. It is noteworthy that he has not even seen fit to express remorse for the unquestionable suffering that he has visited upon his former wife, and also upon his beloved daughter, who was in the habit of referring to the deceased as "Uncle". Although certainly distressed in his recorded interview with police, and not forgetting that he pleaded guilty to manslaughter, in the circumstances I do not regard those matters as discharging the onus regarding remorse called for by way of the relevant legislation.
All of that is not, of course, to regard his silence on this matter as an aggravating feature, or to hold it against him in any other way. It is simply to note that, even years later, Mr Tran has said and done nothing to suggest that he is remorseful for the enormity of his criminal act, or that he has any insight into the unquestionable harm that it has done, directly and indirectly. In short: I accept that he must now regret his act of the grossest violence, but I regard that regret as very largely self-centred.
The unavoidable reality is that, in order to reflect the gravity of the actions of the offender; to respect the dignity of the life of the deceased; to denounce publicly and solemnly this kind of conduct; and to do one's best to deter others who find themselves in the position of the offender from acting as he did, it is necessary for me to impose a sentence of imprisonment that will almost certainly lead to the offender either dying in gaol, or being released in a state of enfeeblement. But that is the inevitable consequence of what Mr Tran has done, and the stage of his life at which he has done it.

R v Tran

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Judgment (8 paragraphs)

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