Regina v Mao Vann

• 12 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SENTENCE 1 HIS HONOUR: On 1 June 2004, the prisoner was arraigned and pleaded guilty to the murder of Userph Rima and the assault of Kamal Elmasri at Liverpool on 8 February 2002. He also asked that a charge of possess loaded firearm in a public place at the same date and place be taken into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1995. 2 The Crown thereupon tendered a bundle of documents described as an "Agreed Brief" including the prosecution statement of facts, a criminal history of the prisoner, a number of witness statements, the transcript of an interview with the prisoner (Ex A), 5 sets of photographs (Exs B to F) and a videotape of the crime scene with an interview at that scene with the prisoner on the day of his arrest (Ex G). All of these exhibits were admitted by consent and I was informed none of the witnesses whose statements had been tendered were required for cross-examination. The proceedings were then adjourned. 3 At the resumed hearing on 27 August 2004, counsel for the prisoner informed me (T 2) that "essentially" the facts were agreed but the inferences to be drawn from those facts were to an extent in dispute, and that the main issue was whether there was an intent to kill or do grievous bodily harm or merely a reckless indifference to human life. 4 The prisoner then gave evidence in which he attempted to minimize his culpability for the death of the deceased and to that end gave a version of the facts which was in various respects different to, and at times inconsistent with, the facts contained in the material admitted without objection in the Crown case. The Crown Prosecutor did not object to this evidence but vigorously challenged it in cross-examination and submitted that it should not be accepted. 5 The difficulties that can arise in sentencing proceedings following a plea of guilty when a statement of agreed facts and witness statements are tendered by consent and the defence subsequently adduces evidence inconsistent therewith have recently been discussed by the Court of Criminal Appeal in cases such as R v Palu (2002) 134 A Crim R 174 at [21], R v Falls [2004] NSWCCA 335, but it is not necessary to discuss these problems in detail as I am quite satisfied that, where inconsistent with the evidence led by the Crown, the prisoner's evidence should not be accepted. 6 There are a number of reasons for this: firstly, the various exhibits in the Crown case, particularly Ex A with the Statement of Facts and the statements of witnesses were admitted without objection and the evidence of none of the witnesses was challenged by cross-examination; secondly, in various respects, the prisoner's evidence was inconsistent with what he said in his recorded interview with police and in the video recorded "walk around", and I consider his spontaneous responses on the day of his arrest are more likely to be reliable than responses given some 2 ½ years later, no doubt after a considerable amount of thought and re-construction; thirdly, in some respects his evidence is inconsistent with objective facts, for example, he says that after entering the theatre area the first time and returning to the car park, he was there only a very short time before he heard a commotion and returned to the theatre with the rifle, but the car park video shows a lapse of over 6 minutes; and fourthly, parts of his evidence lack credibility, such as that if he believed his friend Robert Ly was being attacked by others he would attempt to protect him by firing in the direction of his attackers, when such a course of action carried the very real risk that Ly himself could be killed or seriously injured. 7 In the Defence case, a report was tendered from Dr Rod Gardner, Senior Lecturer in Linguistics at the University of New South Wales. The report was objected to by the Crown but I admitted it subject to a proper curriculum vitae being provided. This has since been done. 8 His report was mainly directed to propounding that a number of the prisoner's answers in his recorded interview could have meant something other than what they appeared to mean. He concluded that the prisoner speaks a non-standard variety of English which would show some differences from standard educated Australian English and may include some grammatical and lexical differences from the latter, but that he speaks English as, or very close to, a mother tongue variety. Later at p 14 of his report, he said the prisoner speaks English fluently, but does not speak a standard variety of Australian English. 9 Although of Cambodian background, the prisoner was born in Australia, educated here and has lived here or in New Zealand all his life. Although his family apparently spoke Khmer at home, I had the opportunity to observe his ability and proficiency in English in the witness box, and I am quite satisfied that his conversational English is in no way deficient. His answers were responsive, intelligent and showed a clear understanding of the questions. The interviews he had with police also demonstrated responsive, intelligent answers with an understanding of the questions, and I reject the submission that his answers in those interviews should be qualified or disregarded in any way. 10 The facts in the Crown Statement of Facts which I accept may be summarised as follows. On the evening of Friday, 8 February 2002, Userph Rima, aged 16 went to the Greater Union movie theatre at Westfield Shopping Centre at Liverpool accompanied by his girlfriend, Angelica Kourkos, his cousin, Mohammed Flaifel aged 17 and Mohammed's girlfriend, Yolanda Moussa aged 17, where they purchased tickets and entered cinema 12 to watch the 9:15pm session of the movie, "Domestic Disturbance". Also attending the movie that evening were Robert Ly and his female friend, Kinh Tu. Mr Ly and his friend sat in the row in front of Userph Rima and his party immediately prior to the movie commencing. 11 Shortly afterwards, Mr Ly's friend dropped a mobile telephone behind her. Userph Rima saw the phone, picked it up and decided to keep it. His friend, Angelica Kourkos was aware of these matters but Mr Flaifel and Ms Moussa were not. Whilst the movie was still in progress, Mr Ly and his friend noticed that the phone was missing and a search was conducted for it, unsuccessfully. A short time later, Mr Ly left the cinema and made a phone call from his mobile phone and then returned to the cinema. 12 The movie finished shortly before 11pm and Mr Rima and his party left cinema 12 and went to the cinema foyer. When there, Mr Flaifel saw Robert Ly walk outside the complex and speak to a group of Asian males, Kinh Tu spoke to Userph, Angelica Kourkos and Yolanda Moussa demanding her phone back. Shortly afterwards a group of between 12 and 20 Asian males came up to Userph Rima and his friends, one of them argued with Yolanda Moussa about the phone and then punched her in the head with his fist. 13 Immediately after this, a number of the group of Asian males began assaulting Userph and his cousin Mohammed Flaifel, about 5 men attacking Mohammed and approximately 7 men attacking Userph. One of the Asian men hitting Userph was armed with a small baseball bat. Angelica Kourkos tried to assist and began hitting the men who were striking Userph, whereupon she was punched to the face and fell to the floor. At one point Mohammed Flaifel, in an effort to assist Userph, picked up a steel stand used to mark queues to the ticket office and threw it at some of the men attacking Userph, but the stand was heavy and it missed the persons it was aimed at. 14 Meanwhile a security guard, Mr Kamal Elmasri, saw the fight developing and, after calling for assistance on his radio, ran to where Userph Rima was being attacked and endeavoured to pull some of the Asian men away from him. He also tried to assist Mohammed Flaifel, who was also being assaulted and at one stage, ran across and grabbed the baseball bat which was being used to attack Userph. 15 At this stage the prisoner entered the shopping centre and fired a single shot from an SKS rifle which struck Userph on his front left upper chest just below the collarbone and ultimately penetrated the upper lobe of his right lung. One fragment of the bullet exited Userph's body on the outer aspect on the right lower arm and struck the security guard, Mr Elmasri in the right shoulder causing a small injury. After being shot, Userph staggered down the stairs and collapsed on the floor of the Westfield Shopping Centre. Immediately after the shooting, the prisoner turned and ran from the complex through the northern exit towards the car park. 16 The prisoner was not in the group of Asian men who initially attacked Userph and his cousin. Prior to the shooting, he was at dinner with his girlfriend, Rebecca Ly (sister of Robert Ly) at a restaurant in Canley Heights. Whilst there, Rebecca Ly received a phone call from her brother and after the phone call, Ms Ly and the prisoner decided to go to the cinema, but on their way they went to the prisoner's home at 26 Parker Street, Canley Vale and he placed a sawn-off SKS self-loading rifle into the car. They then drove to the Westfield Shopping Centre and parked in the car park adjacent thereto. 17 After parking the car, they walked towards the shopping centre and the prisoner entered the main entrance of the shopping centre, but at that stage the movie had not finished and the cinema foyer was empty, so the prisoner and Ms Ly returned to the car where they remained for about 6 minutes. At that stage, the altercation having broken out inside the foyer, an Asian man, Tuan Duc Tai waved in the direction of the prisoner, whereupon the latter left his vehicle and ran to the entry/exit doors of the shopping centre where he entered and fired the shot. His movements during this period and the times were recorded on closed circuit television (Ex D) and that video also records Tuan Duc Tai waving in the direction of the prisoner. 18 Immediately after the shooting, the prisoner turned and ran from the complex through to the exit door back into the car park, returned to his vehicle and a short time later was driven from the car park. The vehicle later stopped in Northumberland Avenue, Liverpool where the prisoner disposed of the rifle by placing it in a drain. 19 Ambulance officers attended the scene and provided treatment for Userph Rima but at the time, he had no pulse and an ambulance officer administered CPR. He was conveyed to Liverpool Hospital and pronounced dead shortly after his arrival. The cause of his death was found on post-mortem examination to be due to blood loss resulting from the damage caused to major blood vessels in the chest, right lung and also his right arm. Mr Elmasri's injury was treated at Liverpool Hospital; it required only a dressing and he was discharged after treatment. 20 The rifle was recovered by police the following day Saturday, 9 February 2002 and on Sunday, 16 February they attended the prisoner's home at 26 Parker Street, Canley Vale where he and Ms Ly were arrested. A search of the premises was conducted. The prisoner was taken back to Liverpool Police Station where he was interviewed and during that interview, he said in answer to question 51, "And I waited there near the car and that's when one of the guys I don't know who it was, I…..met him before, and he, he said that Robert was in trouble. And that's when I ran in and did what I had to do". 21 He also said, "What happened when I got to the door? I looked inside and nothing was wrong. So I just walked back to the car thinking there was nothing wrong. And then suddenly I turned around and saw this Asian guy signalling (A 156) and then I just went in and, you know, did what I did (A 157). I took the rifle and I shot Userph (A 158). When asked if he aimed the shot or whether he just pulled the trigger he said "No, I just pulled the trigger" (A 163), but later in answer to Q 169 he said he did aim the gun in the deceased's direction (A 169). He said that he did not intend to kill the deceased (A 171) but when asked what he thought would occur by pointing the gun in that direction and pulling the trigger, he replied "He might die" (A 173). 22 Later that day, he agreed to accompany police on a "walk around" the area where the shooting occurred and he then showed police his movements on the night of Userph's death, including where he stood and how he held the gun to his shoulder to fire the shot. He also said, "I went straight in and I stopped right here (indicating)…..and then, I don't know, I saw a couple of guys attacking him…..they were there and then, but when I, when they saw me holding the rifle, they all started to run…..and that's when I aimed my rifle at him and I shot". 23 He also claimed in his oral evidence (T 9) that after Rebecca Ly had the telephone call from her brother, whilst she and the prisoner were at the restaurant, she told him that a group of people with machetes and baseball bats were after her brother. This could not have been correct as at that stage, the film was still in progress and the fight in the foyer had not started. There is no evidence that any one used a machete at any stage and the only baseball bat used was used by one of the Asian youths attacking the deceased. In cross-examination, he modified this to saying (T 34) that he was aware from what Rebecca told him that there was "going to be a fight". Of course, the only persons with any reason to start a fight were Robert Ly (whose mobile phone had been taken) and his friends. 24 He said that after he went in to the cinema foyer and saw no one (the film being still in progress), he came back to the car and told Rebecca there was nothing going on and they should go home. However, they did not go home but waited around for approximately 6 minutes (as recorded on the CCTV) before re-entering the cinema foyer following a signal from an Asian youth waving. 25 He was reluctant to admit that the signal for him going back into the cinema was another Asian youth waving at him (T 39-T 44), which was contrary to his answers in his recorded interview (AA 70-75, 156). 26 He also denied the rifle was his and said it belonged to "a group of us in the house", although in his recorded interview, he told police it was his, and the only other persons living at his house appear to have been Rebecca Ly and the person referred to by Det Sgt Bingham in his statement as Sophear Em (sic). 27 What is abundantly clear from the documents tendered on behalf of the Crown, including the witness statements, is that Robert Ly was angry and upset at having his mobile telephone stolen, that he believed (correctly) that the deceased had taken it, and that he thereupon summoned a group of his Asian friends to the theatre to assault the deceased and his companions in retaliation for the taking of the phone. This they did quite viciously in the foyer of the cinema after the film ended and they were continuing to do so when the prisoner entered the foyer for the second time armed with the rifle following a signal from one of the other men in the Asian group. At this stage, those attacking the deceased moved away (a fact confirmed by a number of eyewitnesses' statements and by the prisoner - (see first answer on top of p 5 of walk around transcript) leaving the deceased exposed alone and the prisoner raised the rifle, aimed it in the direction of Userph Rima, although without lining up the sights, and shot him in cold blood. If, as he now claims, he thought the person being attacked was Robert Ly, and he saw those attacking him run away, there was no reason to shoot at all. 28 To suggest that the prisoner was there solely to protect Robert Ly and that his presence at the same time as Ly's associates were attacking the deceased and his companions over the loss of the mobile phone was merely coincidental is to invite one to realms of fantasy. I believe that his first visit to the foyer was to see if the fight had started, and when he found it had not, he decided it to wait around to help when called upon. 29 The major issue on the sentence proceedings has been whether he fired the rifle with intent to kill or cause grievous bodily harm, or only with a reckless indifference to human life (the last mentioned is conceded). I have already set out his answers to QQ 163, 169 and 171 in his recorded interview, and in his evidence he said he pulled the trigger to frighten them. 30 In Dr Gardner's report at p 14, he said he asked the prisoner what he had meant in his answers to Q 169 (did you aim the gun in his direction?) to which he replied "Yes, I did", and he said he meant that he aimed the gun in the "general" direction of the group of people, "a bit above, or beside". He suggested in evidence that he fired it up in the air, but clearly he did not, and in the walk around he demonstrated the manner in which he raised the rifle to his shoulder. Mr Santisi suggested that this was impossible because he was wearing handcuffs at the time of the walk around, but I have watched the video twice and, notwithstanding the hand cuffs, it clearly shows him lifting both hands to shoulder level and he demonstrated an angle of the gun just slightly above the horizontal which would allow for the 7 steps from the floor to cinema foyer level. 31 He certainly did not aim the gun in the direction of the ceiling or to an area of the foyer where there were no people, but at least in the general direction of the victim or the victim and his attackers who apparently decamped when he appeared. 32 In all the circumstances, I am satisfied that he fired with an intent to kill, and not only with a reckless indifference to human life; but even if I am wrong in this finding, I consider that firing into a cinema foyer with a number of persons present with reckless indifference would be no less culpable than firing with an intent to kill, and I proceed on that basis.

33 The prisoner was born in Australia of Cambodian parents on 7 April 1981 and accordingly was 20 years and 9 months old at time of the offence. Although his parents spoke Khmer at home, he was educated entirely in this country to year 11 (although he did not complete that year). His father died from cancer when he was less than 3 years old, but he continued to reside at home with his mother and siblings until about 1997 when he left home, apparently due to friction with his mother's new partner and commenced to reside with undesirable friends who apparently supported him and he commenced using illegal drugs. On 2 occasions, he moved to New Zealand where he worked in a bakery in Wellington operated by an aunt and uncle. In late 2001, he formed a relationship with Rebecca Ly and she was pregnant to him at the time of the offence. It appears that he has never been employed in this country. 34 His only previously recorded conviction is for possessing a knife in a public place, but following the search of his residence for this investigation on 16 February 2002 and the discovery of a quantity of heroin, he has pleaded guilty at committal to a charge of supply prohibited drug and been committed to the District Court for sentence. 35 He has expressed his remorse and regret for the death of the deceased, but in view of his attempts on the sentencing proceedings to minimize his culpability and to resile from what he had told the police in his recorded interview, I have very serious doubts about the genuineness of his remorse, except remorse for his own predicament. 36 I am also satisfied that his plea of guilty to the charge of murder was motivated solely by the overwhelming weight of the Crown case, after all attempts to find some way out by seeking expert evidence which may prove helpful had failed. It was submitted that the issue of murder or manslaughter needed to be investigated in depth; but the known circumstances of this shooting, particularly in the light of the prisoner's admissions to police, could only amount to murder and manslaughter was never a realistic possibility. Accordingly, I do not regard the plea of guilty as evidence of contrition. 37 He is however, entitled to a discount on account of the utilitarian value of the plea; but as it only came after three adjournment applications all of which, except that for the change of solicitor, I found to be without merit, and then only on the day after the date finally fixed for the trial, I regard it as a late plea and accordingly, I only allow a discount of approximately 13 per cent. 38 I have had regard to the matters specified in s 21A of the Crimes (Sentencing Procedure) Act 1999 particularly as aggravating factors that the offence involved the use of a weapon, that he had a previous conviction, that the offence was committed without regard for public safety; and as mitigating factors that by reason of his age, he has good prospects of rehabilitation, his pleas of guilty and his assistance and co-operation with police in his recorded interview and walk through. 39 In addition, I have taken into account the offence of possess loaded firearm in a public place in the manner approved by the Court of Criminal Appeal in Re Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999, no 1 of 2002 (2002) 56 NSWLR 146. 40 In this case, it is appropriate to have particular regard to the need for general deterrence. There is no place in our community for people to be carrying loaded firearms in public places, or to resolve property disputes, or any other disputes for that matter, by the use of such firearms; and it is necessary that this be clearly understood by all members of the public. 41 I have read the Victim Impact Statement by Ali Rima on behalf of the deceased's family. The deceased was clearly a loving member of a large close-knit family and I extend the Court's sympathy to his parents, brothers and sisters. It is a tragedy that he died as he did on the threshold of his adult life and because of a mobile phone; but in accordance with authority, whilst acknowledging the family's loss and distress I have not taken such loss and distress into account in assessing the appropriate sentence. 42 I therefore start with a sentence of 22 years reduced by 3 years for the plea of guilty. I have considered the issue of "special circumstances", but I am not satisfied that there are any such circumstances which in this case justify a reduction in the statutory relationship of non-parole period to head sentence indicated by s 44. 43 The prisoner has been in custody since the date of his arrest, 16 February 2002 and the sentence will run from that date. In the circumstances, the sentence for the assault of Kamal Elmasri will be wholly concurrent with the sentence for the murder.

44 Mao Vann, for the murder of Userph Rima, and taking into account the additional charge of possessing a loaded firearm in a public place, I sentence you to imprisonment for 19 years. The sentence will be taken to have commenced on 16 February 2002 and expire on 15 February 2021 and I fix a non-parole period of 14 years and 3 months. The earliest date on which you will be eligible for release on parole will be 15 May 2016. 45 On the charge of assaulting Kamal Elmasri, I sentence you to imprisonment for a fixed term of 18 months to be served concurrently and to be taken to have commenced on 16 February 2002.

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