R v Tuan Anh TRAN

Supreme Court of NSW|2011-09-05|Before: Rothman J, Latham J

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.

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

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