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[2011] NSWSC 1480
Supreme Court of NSW
2011-09-05
Rothman J, Latham J
Original judgment source is linked above.
REMARKS ON SENTENCE 1On 6 December 2008, Paul Elliott was murdered. He was shot by Michael Christiansen; the co-offender was Tuan Anh Tran. The Court is required to sentence Mr Tran who has pleaded guilty to the murder of Mr Elliott. 2Mr Christiansen has already been sentenced by Latham J on 29 July 2011 for a number of offences including this murder for which Mr Christiansen was sentenced to a non-parole period of 15 years and three months and a balance of term of five years and nine months.
Facts 3Agreed facts are before the Court from which the following is extracted (with some minor amendments relating to the description of the persons involved): "1. In or about September 2008, Mr Tran supplied Mr Elliott with a large commercial quantity of the prohibited drug methylamphetamine. The purity of the methylamphetamine within the admixture was at a level unacceptably low for the deceased's purposes. Consequently a dispute developed between the two men. Mr Elliott returned most of the drugs to Mr Tran and demanded money. Mr Tran was unable to comply with his demand. Consequently the deceased threatened Mr Tran with violence. 2. Mr Tran was introduced to Mr Christiansen (a convicted co-offender in this matter) at a park in Glebe in the afternoon of 4 December 2008. At that meeting Mr Tran gave Mr Christiansen a package containing 2,985g of the methylamphetamine. This was methylamphetamine returned to Mr Tran by Mr Elliott. Mr Tran and Mr Christiansen reached a understanding or arrangement amounting to an agreement between them that Mr Christiansen would provide physical protection to Mr Tran at a planned meeting with Mr Elliott in which Mr Tran intended renegotiating the terms and conditions of the supply of methylamphetamine. Both Mr Tran and Mr Christiansen contemplated the possibility that Mr Christiansen might shoot and kill Mr Elliott as a possible incident in the execution of the renegotiation of the supply of methylamphetamine. 3. Surveillance footage revealed that on 4 December 2008 at 2:35pm, Mr Christiansen removed a hand gun from the storage unit he leased under a false name. An optical device was installed inside that storage unit on 26 November 2008, pursuant to a Surveillance Devices warrant. Mr Christiansen used the storage unit to store drugs and firearms. At 5:40pm on 4 December 2008 Mr Christiansen put the package containing the methylamphetamine into the storage unit. 4. Mr Tran travelled to Melbourne on Friday 5 December and met with Mr Elliott. Mr Tran arranged that they meet in Sydney on 6 December 2008. Mr Elliott later told his girlfriend, "I have to go to Sydney, to a meeting. If this doesn't go right, you might not see me again." Mr Elliott also said that he was chasing up an outstanding debt, which was owed to him. 5. Mr Tran arrived back in Sydney on the night of Friday 5 December 2008. 6. Earlier that day Mr Christiansen purchased a large metal tool box with wheels from a sheet metal manufacturer in St Peters. 7. Mr Tran and Mr Christiansen were aware that Mr Elliott had previously served a sentence of imprisonment for the aggravated burglary of Victorian laboratory that lawfully manufactured methylamphetamine. They were aware that Mr Elliott committed this offence with other armed gunmen. This offence was the subject of Gotcha - one of the books in the Underbelly series that documented the crimes of various Melbourne underworld figures. Mr Tran and Mr Christiansen were informed that Mr Elliott: was in the habit of carrying a firearm; had a reputation as a "stand over man"; and was an associate of a notorious Melbourne underworld family ("the Morans"). ... 9. Early on Saturday morning 6 December 2008 Mr Elliott and his girlfriend prepared to travel to Sydney. Mr Elliott was observed, by his girlfriend, moving something wrapped up in a towel from his car towards the hired Holden Statesmen. The towel was old and faded. The object was about 40 centimetres in length and about 10-15 centimetres wide. Mr Elliott was holding the towel as if there was something wrapped inside it. At the time Mr Elliott was wearing gloves. Mr Elliott had been seen, by his girlfriend, in possession of a gun in about March or April 2008. He had kept it wrapped up in a black sock and secreted in the driver's side door. 10. Mr Elliott and his girlfriend arrived in Sydney at about 3:40pm on Saturday 6 December 2008. Soon after checking into their hotel at Wolli Creek, Mr Elliott told his girlfriend that he had to go out and meet someone. As he left he said, "I will be back in an hour." ... 12. That same afternoon Mr Christiansen drove to Belmore where he collected Mr Tran. Mr Christiansen then drove to [the murder scene]. Mr Christiansen reversed his van, containing the large metal box he had earlier purchased, onto the driveway of the property. 13. Mr Christiansen went inside and to the back of the house and Mr Tran waited outside. A short time later, Mr Elliott arrived and spoke with Mr Tran as they entered the house. Mr Elliott said to Mr Tran, "Why are we meeting here". Mr Tran replied, "I have some money for you." Mr Elliott said, "That's not good enough". Mr Elliott then loudly questioned whether there was someone else in the house and started entering other rooms. 14. Mr Elliott entered the back room where Christiansen was standing with his firearm drawn. Mr Elliott drew his firearm. Christiansen fired several shots from his firearm at the chest and head of Mr Elliott - who died as a result of those gunshot wounds. Mr Elliott did not discharge his firearm. 15. Mr Christiansen carried the empty metal box into the house. Mr Tran and he placed Mr Elliott into the metal box. They then moved the metal box into Mr Christiansen's van. 16. Mr Tran drove Mr Elliott's vehicle to the Redfern area. Christiansen followed in his van. Mr Tran left Mr Elliott's vehicle and gave the keys to Christiansen who drove his van to his home in Annandale. 17. Mr Tran arranged with others to attend and to clean the room where Mr Elliott had been fatally shot. This included portions of the carpet and underlay in the room where Mr Elliott had been fatally shot. 18. Mr Christiansen arranged with others to dispose of the box containing Mr Elliott at sea the next day." 4Following those events Mr Christiansen, with others, disposed of the body by drilling holes into the box and dropping it into deep water about 12 kilometres to the east of Sydney Harbour. Mr Christiansen also set the deceased's car alight. 5On 16 December 2008, Mr Christiansen was arrested on other charges at a location at which were found property belonging to Mr Elliott. In that property was a piece of paper containing a fingerprint of Mr Tran. Mr Christiansen was also found in possession of low-grade amphetamine. The police interviewed Mr Christiansen on 21 January 2009 and he made detailed admissions including the role of Mr Tran in the events just described. 6As a consequence of the material provided by Mr Christiansen, surveillance device warrants were obtained and conversations of Mr Tran were recorded which also implicated him in the murder. 7In an interview with the police, Mr Tran informed the police that he was the middle man in a drug deal in which the seller would not give the money back, which caused a dispute to arise between Mr Tran and Mr Elliot. The meeting was ostensibly to resolve that dispute and Mr Tran engaged Mr Christiansen as a bodyguard for protection. The agreed facts are consistent with that version and also consistent with Mr Tran's version that Mr Christiansen shot Mr Elliott when Mr Elliott was investigating or examining the house. Mr Tran admitted, at that interview, to helping Mr Christiansen load Mr Elliott into the metal box. 8On 4 August 2010, police charged Mr Tran with the murder of Paul Elliott from which date Mr Tran has been in custody and the Court will commence the sentence to be imposed from that date. Mr Tran waived a committal hearing and on 1 April 2011, the Court was informed that the matter might be short. Notwithstanding that indication, a plea of not guilty was entered on 6 May 2011 and a trial fixed for 29 August 2011. 9There was a change of legal representation and on 23 August 2011, on the application of the new defence counsel, the trial date was changed to 5 September 2011. Counsel conferred with Mr Tran on 28 August 2011. On 1 September 2011, the Crown and the Court were each informed that there would be a plea. The jury panel was cancelled and the plea was formally entered on 5 September 2011. The timing of the plea was not the earliest available time. Nor was it the latest time. Notwithstanding the late plea, given the number and identity of the witnesses that were otherwise due to be called (exhibit D), the plea has a significant utilitarian value. Further, while not going to utilitarian value, guilt may have depended to a large degree on the testimony of a co-offender who may have had significant credibility issues, which emphasises the acceptance by Mr Tran of his responsibility in this crime. 10I allow a discount for a plea of guilty of approximately 7.5 percent: section 22 of the Crimes (Sentencing Procedure) Act 1999 (hereinafter, "the Act"); R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; 115 A Crim R 104. 11From the foregoing agreed facts, it is clear that Mr Tran's intention was that Mr Christiansen provide protection because of the inherent and known danger posed by Mr Elliott. The fact that, on the agreed facts, Mr Tran's purpose in engaging Mr Christiansen was to protect Mr Tran from the notorious violence of Mr Elliott is a factor that is relevant to determining the seriousness of the offence in question. The Crown alleges that Mr Tran should be sentenced on the basis of joint criminal enterprise, to which counsel for Mr Tran does not take issue. It is therefore unnecessary to deal with the principles of joint responsibility, including extended common purpose. However, it is clear that Mr Tran had a real and reasonable fear that, if the meeting with Mr Christiansen were to be held, his life was seriously at risk. 12It should also be noted that the agreed facts before the Court in this exercise are different from the facts in which Mr Christiansen was sentenced in that it is now clear that Mr Tran did not have a role in obtaining the box in which Mr Elliott was conveyed after his death, and therefore, the Court is unable to conclude, beyond a reasonable doubt, that Mr Tran had taken any steps prior to the murder, which disclose an anticipation, expectation or actual foresight that the death would occur. 13In the circumstances, I take the view that Mr Tran's involvement in the murder and culpability in the offence is less than that of Mr Christiansen. Taking into account the nature of the offending only, in which term I include the physical acts of the offender and their consequences together with the circumstances personal to the offender that are causally connected to the commission of the offence such as his state of mind, I consider that the objective seriousness of the offence is slightly above mid-range; see Muldrock v R [2011] HCA 39; 85 ALJR 1154 at [22]. 14I agree with the comments of Latham J when sentencing Mr Tran's co-offender ( R v Christiansen [2011] NSWSC 840), where her Honour said, " 47 I accept that the essence of the agreement between the offender and Tran was the provision of the offender's services as "muscle", in the event that Tran could not resolve his dispute with the deceased. However, even allowing for the fact that the murder may not be strictly characterised as a contract killing, there is considerable force in the Crown's submission as to the objective gravity of the offence on the basis of the factors outlined at [43] above. 48 The offender's decision to provide lethal force in furtherance of Tran's interests as, in effect, a business transaction, at a time when he was fully cognizant of the gravity of his behaviour, exhibits a very high degree of moral culpability. The offender acted in furtherance of the agreement with Tran by killing the deceased and putting into effect the plan that the offender had formulated to conceal the offence and dispose of the body, if that need should arise. 49 An assessment of the objective gravity of the offence takes place against the background of the factors established by the evidence on sentence. ... "
Sentencing principles 15As is clear from by section 3A of the Act, the purposes of sentencing any offender, even those charged with murder, seek to reflect what are often, if not necessarily, conflicting goals. In serious crimes such as murder the importance of punishment and public deterrence loom large. These include the protection of society, personal and public deterrence, retribution and reform. 16Each of those factors, particularly the protection of the community, personal and public deterrence, and punishment, must have regard to the gravity of the circumstances viewed objectively, within the range of crimes that may fall within the offence charged. The objective seriousness of an offence points most obviously to the factors that require protection of society, deterrence of the offender and of others who might be tempted to offend, and to retribution and denunciation. 17Reform or rehabilitation may also be significantly affected by the objective circumstances of the offences, but is a factor affected most obviously by the subjective circumstances and the capacity for rehabilitation. That capacity for, and the likelihood, if any, of, rehabilitation in turn impacts upon the degree to which a sentence is fixed that ensures the protection of society and the personal deterrence of the offender. There is usually no single correct sentence and the often-complicated interplay of considerations or guideposts points in different directions: Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465.
Subjective factors 18Exhibit 1 in these proceedings is a report of Dr Richard Furst, consultant forensic psychiatrist, in relation to Mr Tran. The psychiatric history reported by Dr Furst includes the fact that Mr Tran fled from Communist occupied Vietnam with his family in 1987 and that the trip by boat from Vietnam to Australia was the subject of pirate attack. Mr Tran spent five years in a refugee camp in Hong Kong during which time life was hard and there were significant drug problems, regular violence and conflict between residents. Mr Tran migrated to Australia in 1992 and was later granted a Permanent Protection Visa. 19He was initially housed in a St Vincent's de Paul's charitable home. His mother remarried and he has two younger stepbrothers and a younger stepsister. 20Mr Tran completed year 12 at Marrickville High School but did not perform well academically, after which matters deteriorated for him. He and his family struggled with financial problems. He would work at home sewing and looking after his younger siblings. 21His mother became ill developing a chronic autoimmune disease and he became extremely concerned about her health and the cost of her medication. His mother was under the care of a specialist at Royal Prince Alfred. 22Mr Tran does not drink alcohol but has been using illicit drugs from at least 2006 "in order to escape reality", being the stress in relation to his mother's condition. 23According to Dr Furst, Mr Tran displays no indication of cognitive impairment and has a reasonable insight into his condition and substance abuse. He was open to drug and alcohol counselling and other psychological input whilst in custody. This latter aspect discloses a possibility of rehabilitation for which the prospects are, it seems, quite good. 24Dr Furst opines that Mr Tran "does not appear to have a major mental illness but presents as sad and tearful, regrets his actions, and feels guilty that he was unable to support his mother or his younger siblings by virtue of his offence and current incarceration". He is, apparently, still grieving the death of his mother, compounded by his inability, because of his imprisonment, to visit her when she was gravely ill. 25Dr Furst expresses the view that Mr Tran's mood "is probably excessive and constitutes an adjustment disorder with depressed mood which is a milder form of depression than Major Depressive Disorder". Mr Tran presented as remorseful and keen to educate himself during his incarceration. 26Dr Furst recommends that Mr Tran be placed under the care of Justice Health, with which recommendation, I agree. Justice Health will then be able to monitor his mental health state and provide any counselling and medication if required. Some form of drug and alcohol treatment program whilst in custody would also be extremely useful and offers some significant prospects of rehabilitation. 27Dr Furst also opines that Mr Tran "appears to have positive prospects for rehabilitation despite the nature of his offence. He has a history of working in the community and in custody, remains close to his siblings and promised his mother that he would look after them prior to her death. He is motivated to study and to address his substance abuse issues". I accept this opinion.
Conclusion 28Murder is the most serious of offences. It carries a maximum sentence of life imprisonment and a standard non-parole period of 20 years' imprisonment. Each of the foregoing factors are to be considered, along with others, in determining a sentence that is appropriate for the offence and the offender. Plainly, given the seriousness of the offence a full-time custodial sentence is warranted. 29Earlier as stated, I consider that the objective seriousness of the offence is slightly above mid-range. I allow a discount for the plea of guilty. 30Whatever may be the subjective circumstances or the prospects of rehabilitation, one cannot loose sight of the fact that a human life has been taken as a result of the conduct of Mr Tran. The material before the Court confirms that the victim's family suffers the consequences of Mr Elliott's violent and premature death. 31Apart from the nature of the offence committed, the Court also has regard to the fact that the offence was part of a planned or organised criminal activity. Nevertheless, Mr Tran's criminal record is not lengthy and he has good prospects of rehabilitation due to his circumstances and due to his young age. Mr Tran has disclosed remorse, to which Dr Furst attests, and I accept that the remorse is genuine. His plea of guilty confirms his acceptance of responsibility for his actions. 32I have already set out the circumstances and sentence imposed upon Mr Tran's co-offender. Each of the offenders has a different criminal record. Mr Christiansen was sentenced to a number of offences at the same time. Mr Christiansen's involvement in the murder was objectively at a level of higher culpability and Mr Christiansen was entitled to a significant discount on the basis of the assistance that he gave to law enforcement agencies. In dealing with Mr Tran, the Court must take account of the sentence imposed upon Mr Christiansen, even though the facts upon which the sentence is to be fixed are different from the facts before the Court when dealing with Mr Christiansen. 33The parity principle recognises that there should be no marked disparity between the sentences of co-offenders that gives rise to a justifiable sense of grievance: Lowe v R [1984] HCA 46 ; ( 1984) 154 CLR 606 , Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 at 301. Any difference in the sentence imposed on co-offenders should be rationally based on the differences in their circumstances: Jimmy v R [2010] NSWCCA 60 at [254] - [256]. As already stated, Mr Tran is not entitled to the significant discount on account of assistance to police. However, there are other factors, already outlined, that require a sentence at a lower commencing point than was appropriate for his co-offender. Even if there were an irrational disparity between the sentences imposed on these co-offenders, which there is not, it would not entitle me to lengthen Mr Tran's sentence beyond what I consider to be appropriate. 34Mr Tran has a need for continuing counselling and a lengthy period of supervision in the community. He also has family responsibilities. Those are factors that I also take into account in fixing the sentence. Given the length of the sentence, there is no need for a departure from the statutory ratio for the non-parole period. 35Taking into account all of the objective and subjective issues, the Court fixes a head sentence of 20 years' imprisonment with a non-parole period of 15 years.
Conviction and sentence 36Tuan Anh Tran, you are convicted of murder in that on 6 December 2008 at Brighton-Le-Sands in the state of New South Wales you did murder Paul Elliott. 37I sentence you to imprisonment for a non-parole period of 15 years commencing 4 August 2010 and concluding 3 August 2025, the balance of the term being a further five years' imprisonment concluding 3 August 2030. 38You are first eligible for release on parole on 3 August 2025.
Amendments 05 December 2011 - Amendment to the names of counsel appearing Amended paragraphs: Counsel DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 December 2011
R
Tuan Anh TRAN
(1984) 154 CLR 606
(1997) 189 CLR 295
(2000) 49 NSWLR 383
(1988) 164 CLR 465