Regina v Nguyen

Supreme Court of NSW|2000-12-15|Before: Whealy J, Dunford J

CITATION : Regina v Nguyen [2000] NSWSC 1177 FILE NUMBER(S) : SC 70219/98; 70073/00 HEARING DATE(S) : 18/08/00; 18/10/00; 17/11/00 JUDGMENT DATE : 15 December 2000

PARTIES : Regina v Hoang Minh Nguyen JUDGMENT OF : Whealy J at 1

COUNSEL : Ms Wendy Robinson QC - Crown Dr M. Gumbert - Prisoner SOLICITORS : S. E. O'Connor - DDP Voros & Associates - Prisoner LEGISLATION CITED : Correctional Centres Act Crimes (Sentencing Procedure) Act 1989 R v Previtera (1997) 94 A Crim R 76 CASES CITED : Veen v The Queen (No 2) (1988) 164 CLR 465 at 477-478 R v Thomson; R v Houlton [2000] NSWCCA 309 R v Nguyen [2000] NSWSC 563, Dunford J DECISION : In relation to the charge of murder, I sentence you to a term of imprisonment for 18 years. I set a non parole period of 9-1/2 years which is to commence on 19 August 2008 and is to expire on 18 February 2018. The prisoner is to be eligible for parole on 18 February 2018.; In relation to the charge of "attempt to escape from lawful custody" I sentence you to a term of 18 months imprisonment. I direct that the sentence commence on 19 February 2018 and I set a non parole period of 6 months to expire on 18 August 2018. The prisoner will be eligible for release on parole on 18 August 2018.; I recommend that the appropriate authorities consider the placement of the prisoner in a completely segregated prison during his imprisonment.; I also recommend that during his time in gaol, the prisoner should be provided with psychiatric assessment and treatment, and that such treatment should continue after his release on parole.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

70219/98 - REGINA v Hoang Minh NGUYEN 70073/00 - REGINA v Hoang Minh NGUYEN

1 HIS HONOUR: There are two convictions for which the prisoner stands for sentence. The first charge is that the prisoner did on 9 April 1999 at Sydney, in the State of New South Wales, attempt to escape from custody, he then being an inmate at Silverwater Correctional Centre. 2 This charge is made under s 34(1) of the Correctional Centres Act. The offence carries a maximum penalty of ten years imprisonment. 3 The facts were as follows: - 4 On Friday 9 April 1999, the prisoner and two co-offenders, Messrs Dinh and Lu, were taken from the Silverwater Gaol Complex where each of them was in custody. They were conveyed to the Supreme Court, Queen's Square, Sydney for an arraignment hearing. About 12.30 pm, the prisoner and the two co-offenders were removed from the cells and taken to Court 1A where they were seated in the dock. The charges were read out to the prisoner and a misunderstanding occurred between the prisoner and his barrister. As a result, the Judge granted a short adjournment so that the misunderstanding could be clarified. The door to the dock was then opened by Corrective Services personnel so that the prisoner and the two co-offenders could be returned to the cells. The prisoner was then observed to jump out of the dock and run towards an exit door which leads to the public foyer. He was then tackled by Corrective Services Officers Walker and Boyd. The others also attempted to escape but were recaptured before they could leave the building. 5 The prisoner was then escorted back to the court cells and secured. 6 The prisoner pleaded guilty to the charge on 21 January 2000 before her Honour Karpin DCJ. The matter was subsequently stood over to the Supreme Court on 18 October 2000. The purpose of this was to enable the plea to be joined to the murder plea which is the second charge for which the prisoner stands convicted. It was the intention that sentences be imposed for both matters. 7 I note that her Honour Judge Karpin sentenced the two co-offenders on 21 January 2000. Each received a sentence of eighteen months imprisonment being a minimum term of eleven months and an additional term of seven months. 8 As the brief recital of the facts show, this was an amateurish attempt at escape. It was not apparently premeditated. The prisoner was quickly restrained and the attempted escape came to nothing. No one was injured in the attempt. 9 Section 57(2) of the Crimes (Sentencing Procedure) Act 1999 requires that a sentence for attempted escape is to be served concurrently with a sentence being served at the time or a sentence to be imposed in the same proceedings. 10 For this reason, it is accepted both by the Crown and on the prisoner's behalf that the question of the sentence to be imposed for this offence should be determined after I have dealt with the second charge, namely that which relates to the plea and conviction for the offence of murder. I shall however, take into account in relation to the present offence the various subjective matters which I propose to state at some length in relation to the sentence to be imposed in relation to the murder charge. 11 I turn now to consider that charge. 12 The prisoner was arraigned before Barr J on 18 October 1999 and pleaded guilty to a charge that on 28 April 1998 at Silverwater in the State of New South Wales he did murder one Van Hung Tran. A conviction was accordingly entered that day. 13 I have received submissions on 18 August, 18 October and 17 November 2000. On that last day I reserved my decision on sentence until today. 14 The death of the deceased occurred as a result of an attack upon him by the prisoner and two other co-offenders. The sentencing process has been made more complicated by the fact that after the two co-offenders pleaded not guilty, they were acquitted. The prisoner then sought to change his plea but this application was refused by Dunford J on 7 July 2000. (R v Nguyen [2000] NSWSC 563). The nature of the complications will appear from these reasons for sentence. 15 The deceased was an inmate at the Silverwater Metropolitan Reception and Remand Correctional Centre at the time of the offence, as was the prisoner. On 28 April 1998 the prisoner and two of his cell mates who I shall refer to as Lu and Dinh were escorted with other prisoners to a section of the Industrial Centre known as Cortex 1. In this section of the Centre, the inmates were involved in textile work, that is, the manufacture of clothing and sheets for various hospitals. In this workshop, individuals were individually assigned a tool bag containing items such as metal clippers and unpickers. A number of toolbags contained scissors. 16 The officers escorting the prisoners to Cortex 1 were Correctional Officers Harvey and Crosier. Shortly after Officer Harvey had finished processing the distribution of the tool bags to the prisoners, and after he had returned to his office, he noticed that about ten prisoners had formed in a group in the workshop. He approached the group, and most of the prisoners moved away. He saw Lu holding a pair of bloody scissors in his right hand standing over another prisoner who was doubled over. He noted also that prisoner Dinh was holding scissors, and as the prisoner who had been doubled over stood up he was able to identify him as inmate Tran, the deceased. Officer Harvey stated that Lu began to strike Tran to the upper part of the body with an overhand motion with the scissors. Dinh began to strike Tran to the lower part of the body in an underhand motion with the scissors. They were described by Officer Harvey as being in a "frenzy". The Officer attempted to pull Lu away from Tran by the back of his shirt and Lu continued to strike out at Tran as he was being pulled away. 17 The prisoner came from Officer Harvey's right hand side. He struck the deceased at least two times in the stomach area with a pair of scissors. Correctional Officer Crosier joined Officer Harvey at about this time having heard a commotion from the work area. He had heard Harvey call out to the inmates to stop. The deceased was attempting to protect himself, Officer Crosier saw that the deceased had both his arms raised and was moving them around trying to block the scissors away. 18 Assistant Superintendent Carroll arrived at the scene of the incident about this time. He gave a detailed description of each of the men stabbing repeatedly at the deceased's head, face and body. 19 At about this point, Officer Crosier left the scene to open the door of the workshop to allow officers responding to the duress alarm to enter. A number of prison officers entered the area and moved towards the prisoner and the other two inmates. They attempted to stop the attack on the deceased. 20 Officer Harvey observed that Tran had sunk down on to his left knee and he saw Dinh strike Tran three times to the top of the head with the scissors. Tran fell back against a bench and then to the floor. 21 Deputy Governor William Poulten, who had arrived by this time, called on the inmates to put the scissors down on the ground. At this stage, the three inmates stopped the attack on the deceased and threw the scissors down on the ground. They walked away from the deceased towards the smoking area of the workshop. In all, some sixty wounds were inflicted on the deceased. Numerous of these stabbings penetrated vital organs in the chest cavity. He was officially pronounced dead at about ten to nine on that morning.

Criminal History 22 The criminal antecedents of the prisoner shows that he has a history of violence. Whilst still a juvenile, he was convicted on 8 December 1995 of malicious damage and assault occasioning actual bodily harm. He was put on probation for eighteen months. During the period he was on probation, on 7 August 1996, he murdered one Hoang Huy Le. 23 Shortly before 16 September 1996, that is, within a matter of weeks after the murder, he had been involved in a violent incident at Bankstown Sports Club. During an altercation, he stabbed a woman in the chest and the left knee and kicked another woman in the stomach and she then fell down the staircase at the Club. On 7 February 1997 the Children's Court at Lidcombe imposed two concurrent control orders for twelve months and six months effectively in relation to these offences. The prisoner was sent to the Kariong Juvenile Justice Centre. 24 Further difficulties arose for the prisoner in that Centre. Property was damaged and there were assaults on other inmates. These resulted in the prisoner coming before the Gosford Local Court on 27 March 1997. He was convicted of malicious wounding and assault occasioning actual bodily harm. A fixed term of six months commencing on 27 March 1997 was imposed in respect of each offence concurrently. The prisoner served these sentences at Lithgow Gaol. 25 The prisoner was awaiting trial in relation to the murder charge to which I have referred when the present murder occurred. He was also awaiting trial for two further offences. The first of these was the murder of a man named Truong on 21 June 1996 at Petersham. The second related to the malicious wounding of Luat Ngo on the same day at the same place. 26 In late 1998 the prisoner pleaded guilty to the Le murder. He also pleaded guilty to the charge of malicious wounding of Luat Ngo. He pleaded not guilty to murder but guilty to manslaughter in relation to Mr Truong. That plea was accepted by the Crown in full satisfaction of the indictment. 27 In relation to the Le murder, he was sentenced by Kirby J on 29 October 1998 to penal servitude for a period of twenty two years made up of the minimum term of sixteen years and an additional term of six years. This minimum term was to expire on 18 August 2013. 28 In relation to the manslaughter and malicious wounding charges, the prisoner was sentenced by Kirby J on 20 November 1998 to penal servitude for fixed terms of four years and one year respectively. These sentences were to be served concurrently with the sentence for murder.

The Submissions on the Prisoner's Behalf 29 The complications which arose in relation to the present sentencing process related essentially to the evidence and submissions made on the prisoner's behalf by his counsel, Dr Gumbert. Dr Gumbert recognised in the light of Dunford J's refusal to allow a change of plea, that the guilty plea and conviction to the present murder charge stood in the way of self defence being raised. Dr Gumbert quite frankly made it clear that there may well be an appeal against Dunford J's decision. In the meantime, he accepted, indeed invited, the completion of the sentencing process. 30 The material tendered by Dr Gumbert, without objection, comprised extensive material relating to the violent disposition and criminal history of the deceased together with extracts from the transcript taken at the trial of the two co-offenders, each of whom were acquitted. 31 It is convenient if I go directly but briefly, to the submissions which emerged from that evidentiary material.

Dr Gumbert submitted that the Court should not accept, in certain respects, the evidence of Assistant Superintendent Carroll. Against this, the Crown pointed to the fact that all of the statements of Carroll (and indeed all of the statements of the various prison officers relevant to the murder) were admitted into evidence without objection. Further, no witness was required to attend for cross-examination. It has not been necessary for me to make any final assessment of the reliability of the evidence of Superintendent Carroll. He was not a witness to the assaults on the deceased except at the very end. Correctional Officer Harvey saw the greater part of the attack upon the deceased and, as to a slightly lesser extent, did Correctional Officer Crosier. Dr Gumbert accepted that I could place reliance on their evidence and that of Correctional Officer Ford. The facts I have found emerge from the statements of those officers. For this reason, it is not necessary for me to make a decision as to whether Assistant Superintendent Carroll was or was not telling the truth about his knowledge of the deceased's past history or about his involvement with the deceased in the prison system.

It was submitted the evidence regarding the deceased showed that he was a very large, powerfully built man, involved in the prison in body building. Secondly, he was a stand over man in the prison system and a man whose previous criminal history branded him as a "monster". The deceased was a murderer serving a life sentence for a particularly abhorrent crime. His prison history showed that he had been involved in at least three assaults including two stabbing type attacks. On another occasion a sharpened spike had been found hidden in his cell. The essence of these submissions was that the deceased, on account of these characteristics, may well have been armed with a weapon such as a knife during the attacks on him. It was argued that the extracts from the trial of the co-offenders showed that it could not be ruled out as a possibility that the deceased had a knife on the morning of 28 April 1998. 32 I do not accept this submission. The prisoner gave no evidence in the sentencing proceedings before this Court. He did not provide his version of the events of the morning of 28 April 1998. I must therefore examine the question of whether the deceased was armed with a weapon by reference to other evidentiary material. I am satisfied from that material that the deceased was not armed with a knife or scissors. First, he was not observed by either Officer Harvey or Crosier to be armed with a weapon. Of course, it is true Officer Harvey did not see the commencement of the fight but it remains the fact that at no time was the deceased observed with a weapon. Secondly, neither the prisoner, nor the other two inmates who were involved in the stabbing, received any wounds themselves. If, as submitted, the deceased was a stand over man, physically powerful and armed with a knife, it is more likely than not that one or other of the smaller men would have been wounded in the course of the attack. They received no injuries at all. 33 Dr Thomas Clark provided a psychiatric report on behalf of the prisoner dated 17 August 2000. Dr Clarke had seen and examined the prisoner at Long Bay Correctional Centre on 13 August 2000. Part of the history he obtained from the prisoner included the assertion that the deceased had raped the prisoner in the shower some two weeks before the killing. A second matter was apparently raised by the prisoner with Dr Clark, namely his claim that the killing of the deceased was done in self defence when the prisoner went to the aid of the other two men. The Crown urged that I should not accept these statements because the prisoner had not given evidence of these matters in the sentence proceedings. Moreover, the first time such an allegation had been made, that is that the prisoner had been raped, was in the interview with Dr Clark in August 2000. 34 I am prepared to accept that the prisoner was attacked and raped in his cell as he told Dr Clark. I am not prepared to accept that the attack on the deceased occurred in circumstances where the prisoner sought to act in either his defence or in defence of the co-offenders. The objective facts as I found them to be, having regard particularly to the statements of the Correctional Officers concerned, together with the objective scientific evidence in relation to the wounds sustained by the deceased and the absence of any wounds or injuries sustained by the prisoner or the co-offenders, leave me in no doubt that this was a sustained and frenzied attack on the deceased to settle old scores. I am prepared to find and do find that the prisoner's actions were not premeditated, and that they occurred spontaneously, but no doubt they occurred against the background of the indignity the prisoner had suffered a fortnight earlier at the hands of the deceased.

Objective Seriousness 35 This was a frenzied and violent killing. Whatever may have been the personal characteristics of the deceased, he was killed in a brutal, persistent and frenzied fashion. As I have already indicated he sustained over sixty wounds. These men set upon him with the intention of doing him to death and they ceased their deadly attack only when they were sure that they had achieved their aim. He died a short time later. I should say at this point that I have received a victim's impact statement from Ms Le Vuong. I have read the contents of this statement and I express the Court's sympathy to Ms Vuong in relation to the tragic loss of her husband. I do not, however, propose to take the statement into account in relation to the sentence (Regina v Previtera (1997) 94 A Crim R 76).

Aggravating Circumstances. 36 The Crown has placed reliance upon the fact that this is the third unlawful homicide for which the prisoner has been sentenced. I have set out earlier the details of those other matters. I accept that these are circumstances of aggravation. In particular, there is little doubt that the prisoner is not entitled to any leniency having regard to his relevant criminal history. It is necessary, however, that this criminal history must not precipitate the imposition of a penalty of greater length than the offence warrants: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477-478. 37 On the other hand there is no doubt that the prisoner's criminal history highlights the fact that the type of violence that was exhibited in relation to the dispatch of the present deceased is by no means uncharacteristic in the prisoner. It was put by the Crown, and indeed, conceded by Dr Gumbert, that as long as the prisoner does not receive some significant treatment for his psychiatric state of depression, he will continue to pose a very significant threat to society.

Mitigating Circumstances 38 The prisoner has led an unhappy and deprived life. He was born on 11 October 1978 in Vietnam. He spent his early years in an institution. His father came to Australia in 1989. He then arranged for the prisoner to come to Australia and, at the age of about eleven, the prisoner came to Sydney by air. He came by himself. His mother is apparently still alive in Saigon however, it is clear that she has rejected him. After coming to Australia, the prisoner stayed with his father for a short time - about eight months, and then started living on the streets in Cabramatta with other dispossessed youths. He became, in effect, "a street kid". Eventually his father remarried and the prisoner has lost all contact with him. The prisoner has had virtually no education until he ended up in Detention Centres. He appears to be still illiterate in both English and Vietnamese. For a time he went to Chester Hill Speed Language School but he did not proceed very far with this. 39 The prisoner suffers from a chronic depression. It is probable that this depression goes back to his early teenage years. Dr Clark's conclusion in this regard is expressed in his report in the following terms: - "However, although emotionally disordered as above, this is not so extreme he is incapable. He is fit to serve sentence but he should be contained in a position where further attempts at education and treatment can be effected. If kept alone in segregation he will be suicide risk." 40 Dr Clark made the point that the prisoner is presently in the segregation unit in Goulburn. He said that this segregation unit is the most "spartan" of units in the State Prison system. Dr Clark agreed that the prisoner's chronic depression is related to the strong levels of dangerous violence he exhibits from time to time in dealing with the situations he encounters whether in the outside world or in prison. He is of the view that unless something positive is done he will remain dangerous at the end of his term in prison. Although it was not made clear to me why the prisoner is on protection, no submission was made that his sentence should be significantly reduced for this reason. Nevertheless, it is a factor which ordinarily will lead to a mitigated sentence (AB v The Queen (1999) 198 CLR 111 at 152). 41 There is also evidence before me of extracts from the evidence of a forensic psychologist Anna Robilliard and Dr Canaris, a psychiatrist. These persons gave evidence in the sentencing proceedings before Kirby J in October 1998. Dr Canaris had initially recommended that the prisoner should be assessed by the Mental Health Services in prison, including a psychiatric assessment. He suggested that, if necessary, the prisoner should be treated by anti-depressant drugs for his chronic depression. He also suggested that it would be desirable for a stable and ongoing therapeutic relationship to be established between the prisoner and a mental health practitioner. Unless these matters were addressed the prospects of the prisoner's long term rehabilitation in relation to his chronic depression would be unlikely. I took Dr Clark to be in general agreement with these suggestions. It was Dr Clark's further suggestion that in relation to the sentence to be imposed on the prisoner for the present murder, a recommendation might be made that he be placed in a completely segregated prison which would, in effect, provide him with a better prospect of contact with the outside world than the conditions in the Goulburn segregation unit where he has been presently located.

A cumulative or concurrent sentence 42 During the course of submissions, I raised with both counsel the question of whether the sentence to be imposed in relation to the present matter should be an entirely cumulative one. The Crown submission was that it would be inappropriate to impose a concurrent sentence since the prisoner has had the benefit of concurrent sentences for three previous serious offences. Moreover, it was pointed out with some emphasis that the present murder, occurring as it did in April 1998, was a discrete offence. 43 Dr Gumbert submitted that the sentence imposed should, from a practical point of view, be a period of years beyond the point of expiration of the present minimum term the prisoner is serving which reflects the true criminality of the offence. That situation might be achieved by a sentence which is partly concurrent and partly cumulative. In my opinion, there is force in this submission and it is reinforced by three further considerations. First, the present offence was committed whilst the prisoner was in custody and approximately six months before he was dealt with by Kirby J in relation to the other murder charges. It was a matter of circumstance that Kirby J did not deal with this offence in addition to the sentencing matters he determined. The prisoner received, appropriately, a heavy sentence for the 1996 murder which reflected, as his Honour's decision shows, the cold blooded nature of the murder committed on that occasion. Secondly, the present murder, although committed in the violent and frenzied manner I have described, arose out of the brutalising circumstances of the prison environment and was not, so far as the prisoner was concerned, a premeditated killing. The criminality, though significant, was not at the same level as the earlier murder offence. Thirdly, it is important in structuring a sentence in all the circumstances, particularly having regard to the strong subjective features of the prisoner's situation, that the sentence imposed should be not one which will "crush" the prisoner completely. 44 It is necessary also to make an allowance for the fact that the prisoner has entered a plea of guilty. In this case, the prisoner has not exhibited or demonstrated any remorse and I do not think any discount should be allowed in relation to this aspect of the plea. There is however, a utilitarian value to the plea. (Regina v Thomson; Regina v Houlton [2000] NSWCCA 309). I propose to allow a discount of 15%, having regard to the date when the plea was entered. 45 In all these circumstances, it is my view that making all necessary allowances, an appropriate sentence for the murder of the deceased is a term of eighteen years. I find that there are special circumstances within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. Those special circumstances reside in the need for the prisoner to have an extended parole period related to his supervision and rehabilitation after release from prison; and for the need to preserve, so far as it is possible within proper sentencing guidelines, the parole period given by Kirby J to the prisoner. 46 I propose to set a non parole period of nine and a half years. For the reasons that I have already outlined, the sentence should be served partly concurrently and partly consecutively. 47 This is so, because notwithstanding the general requirements of s 56 of the Crimes (Sentencing Procedure) Act 1999 it is my opinion that this is an appropriate case for such a direction. In addition to the matters that I have already stated, the principle of totality has application to a consideration of the amount of time the prisoner should spend in prison having regard to the whole of the criminality shown in this offence and the criminality involved in the offence for which he was sentenced by Kirby J (Pearce v The Queen (1998) 194 CLR 610 at 624). 48 I propose to make a direction that the sentence commence on 19 August 2008. The consequence will be that the non parole period would expire on 18 February 2018. 49 I return then to the offence "attempt to escape custody". In determining a sentence for this offence, I must consider not only the criminality involved in the particular offence but I must also have regard to the very long term of imprisonment to be served by the prisoner in relation to the sentences imposed by Kirby J and the sentence I propose to impose in relation to the murder of Tran. Section 57 of the Crimes (Sentencing Procedure) Act 1999 requires that the sentence imposed for "attempt to escape custody" is to be served consecutively with the proposed sentence for murder. Consistently with the sentences imposed by Karpin DCJ in relation to the co-offenders, an appropriate sentence for this offence is a term of imprisonment for eighteen months. 50 For the reasons I have stated, however, I do not consider that there will be any disparity involved if a non parole period set for this offence is less than the minimum term imposed in the sentences relating to the prisoner's co-offenders. For the reasons already given, I find special circumstances in relation to the setting of the non parole period for this offence. There is no need for me to repeat those reasons. 51 Hoang Minh Nguyen, in relation to the charge that you did murder Van Hung Tran, I sentence you to a term of imprisonment of eighteen years. I set a non parole period of nine and a half years which is to commence on 19 August 2008 and is to expire on 18 February 2018.

The prisoner is to be eligible for parole on 18 February 2018. 52 In relation to the charge of "attempt to escape from lawful custody" I sentence you to a term of eighteen months imprisonment. I direct that the sentence commence on 19 February 2018 and I set a non parole period of six months to expire on 18 August 2018. The prisoner will be eligible for release on parole on 18 August 2018. 53 I recommend that the appropriate authorities consider the placement of the prisoner in a completely segregated prison during his imprisonment. 54 I also recommend that during his time in gaol, the prisoner should be provided with psychiatric assessment and treatment, and that such treatment should continue after his release on parole.

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