Objective seriousness and level of criminality
23 The offender pleaded guilty to the offence of murder upon the basis that his conduct amounted to "felony-murder" or, as it is known in modern parlance, "constructive murder". The relevant foundational crime, it is agreed, is armed robbery with wounding. This offence carries a maximum penalty of 25 years imprisonment (s 98 of the Crimes Act 1900). In its helpful written submissions, the Crown agrees that this is an acceptable basis to approach an assessment of the objective seriousness and level of criminal culpability in the offence. The Crown does not submit that the present case, by any means, falls within the "the worst category" offence so as to require a sentence of life imprisonment. The Crown does however, submit that the offence is objectively serious, having regard to a number of factors. I shall have occasion to consider these matters at a later point in these remarks on sentence. Once again, it is common ground between the Crown and Ms Yehia who appears for the offender that the fact that the offence arose in the course of the commission of an armed robbery with wounding is not a mitigating factor, nor is the offender's culpability reduced on that account (R v Mills NSWCCA 3 April 1995 unreported).
24 I accept the view that it is appropriate in this matter to proceed upon the basis that the offence is properly to be regarded as one of constructive murder. I have come to this conclusion after considering all of the material that has been placed before me during the sentencing proceedings. Of course, an offence, which is characterised as "a felony murder", does not, for that reason alone, dictate the conclusion that a lower level of culpability is involved than applies to other categories of murder. That is the conclusion dictated by the decision of Mills to which I have referred above. The seriousness of any particular felony murder is to be assessed according to "the nature of the acts of the offender which played a part in the death of the victim" R v J B and R J H (1999) NSWCCA 93 at (33).
25 In considering the objective seriousness of the offence, it is appropriate to note that the present offence attracts the operation of s 54A of the Crimes (Sentencing Procedure) Act. Section 54A(2) provides that: "the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness in the Table to this Division". The standard non-parole period for the offence of murder is 20 years. Strictly speaking, this standard non-parole period does not apply to this matter because of the plea of guilty. It remains relevant, however, as a guidepost in the sentencing exercise.
26 The proper approach to the issue arising under the standard non-parole provisions has been exhaustively analysed by the New South Wales Court of Criminal Appeal (R v Way [2004] 60 NSWLR 168; R v A J P [2004] 150 A Crim R 575; R v Vu [2006] NSWCCA 188; R v L M P [2006] NSWCCA 271. First, the Court's task remains one of determining what term of imprisonment is appropriate, having regard to the offence and the circumstances of the offender. Guidance may be obtained by a consideration of the maximum penalty, statistics from the Judicial Commission and the collective wisdom emerging from a range of sentences involving similar conduct. Secondly, the Court needs to determine whether the offence may be characterised as being in the mid-range of objective seriousness. This requires the Court to make an intuitive evaluation of the objective seriousness of the offence, examining into those matters in s 21A, aggravating or mitigating, that relate to the offence (including the offender's state of mind). Matters in s 21A which, however, form part of what is usually termed "the subjective case" of the offender are not relevant to the issue of whether the offence falls within the mid-range or elsewhere. If the Court determines that the offence falls within the mid-range, the standard non-parole period should apply, subject to the remaining issues. These will normally relate to those subjective matters identified in s 21A, relating to the offender, or any other matters that may properly be taken into account beyond those mentioned in s 21(a)(iii).
27 Ms Yehia, counsel for the offender, has submitted that the Court should determine that the circumstances of this offence demonstrates that it falls well below the mid-range of seriousness. The essential matters relied upon by the offender's counsel were the offender's state of mind as evidenced by his intoxication at the time of the commission of the offence, his reduced capacity to exercise judgment and his plea of guilty. The Crown, as I have said earlier, suggests that the level of objective criminal seriousness is higher than that postulated by counsel for the offender. Moreover, the Crown submitted that the objective seriousness was apparent from a number of factors. These were the use of a knife; the fact that the killing occurred during the course of a robbery that was planned; the fact that the knife was taken to the premises to be used for the purposes of the robbery; the fact that the defendant stabbed the deceased a number of times, and finally, that the victim as a shopkeeper was vulnerable.
28 Moreover, the Crown submitted that the use of the knife and the fact that the offender was on parole at the time of the killing are properly to be seen as aggravating factors.
29 In my view, the circumstances of the present offence brand it as an offence of considerable seriousness. It does, however, fall below the mid-range of objective seriousness for an offence of this kind although, for the reasons I shall explain, not far below the level of mid-range.
30 There are several features of the commission of the present crime which lead me to these conclusions. First, although I cannot be satisfied beyond reasonable doubt that the offender intended to kill or to cause really serious physical injury to the deceased, I am nonetheless satisfied that this is a reasonably serious example of a felony murder. The offender had armed himself with a knife, had stationed himself in the shop for a considerable time before the demands for the money were made; and made those demands while brandishing the knife at head level in front of the deceased. Secondly, when the deceased refused to hand over the money, and sought to push the offender away from the counter towards the door with a chair, the offender commenced attempting to stab him with the knife. There were repeated attempts to stab the deceased between the time the men were at the counter and the time of the infliction of the ultimate stab wound, presumably out in the street. Thirdly, while the evidence does not enable me to say precisely how and when the fatal stab wound was inflicted, it is clear that the repeated stabbing actions by the offender put the deceased in peril on a repeated number of occasions. It would have been a simple matter for the offender to have run away from the shop when it was clear to him that he would not achieve his ends. It is the dangerousness inherent in the continuous stabbing actions towards the deceased, and the inflictions of a number of minor injuries upon him together with the one fatal injury, that highlight the objective seriousness of this offence. I consider that I am also entitled to take into account as an aggravating factor that the weapon used here was a knife. I do not consider that this involves any double counting, having regard to the nature of the foundational crime. A knife is a very dangerous weapon, as the decisions of the Court have indicated on many occasions. Its use, or repeated use as has happened here, can and often does easily result in a tragic fatality. I note that the offender has a relatively minor record of previous convictions, none involving violence. I do not propose to take these into account, other than to note that, on 9 May 2005, he was convicted of an offence of aggravated break and enter and of committing a serious indictable offence. He was sentenced to a period of eight months imprisonment, was released to parole on 7 September 2005 with the parole period continuing until 7 June 2006. This, I consider, means that the subject offence was committed not long after he was released to parole. This is a significant aggravating factor. It does not increase the objective seriousness of the offence but may be taken into account in the overall sentencing exercise.
31 I do not accept however that the deceased was a vulnerable victim, having regard to the fact that the offence took place in a reasonably busy shopping centre during late daylight hours. Nor do I accept that the killing was part of a planned or organised criminal activity. Clearly enough, there was some degree of planning in relation to the robbery but it would be inappropriate to take this into account in relation to the killing itself which was haphazard, and occurred on the spur of the moment.
32 In relation to the arguments advanced by counsel for the offender, I am unable to accept, on the balance of probabilities, that the offender's drug addiction and his intoxication, due to the various medications he was taking operate so as to reduce his capacity to exercise judgment in such a way as to reduce the level of criminality involved. Before giving brief reasons for this conclusion, it is necessary for me to say something about the factual situation. The offender himself did not give evidence before me and I have had to rely upon statements he has made to other people, particularly in the course of psychiatric and other assessments. For example, there is a detailed account in Dr Rosalie Wilcox's report. It will be convenient if I set this out in full. At page 5 of the report of 17 November 2006, Dr Wilcox states: -
"Mr Nguyen was released on parole in September 2005, two months prior to the alleged offence. He initially resided at the family home, however, when he resumed his use of illicit drugs, his mother asked him to leave. He then lived with various friends and occasionally returned home if he had nowhere else to stay.
He said that the drugs that he used include marijuana, heroin, cocaine, ice, prescribed sedatives and alcohol.
Only a few days prior to the index offences he said that he decided to try and stop his drug use particularly his use of heroin. This was primarily because his family wanted him to stop using drugs and had told him that he could come home if he was drug free.
Mr Nguyen attempted a "home detox" with the assistance of his GP Dr Tan. He was prescribed a combination of Valium, Normiston and Catapress and was told how much to take and when to take it. He managed to stop his use of heroin for two days, however, because he experienced quite marked symptoms of withdrawal and felt very weak and sick he said that he took more pills than he was prescribed. He said that he tried not to think about heroin and kept smoking marijuana to help him sleep.
The day before the alleged offence he spent time at a friend's place and later slept in the garage with his brother. On the day of the alleged offence due to feeling weak and not eating and from withdrawing from heroin, he said that he could not cope any longer. He travelled to Liverpool in order to borrow a gram of heroin from a friend as he felt unable to deal with the symptoms of withdrawal.
Prior to going to his friend's place, he said that he smoked "a few cones and took some pills". He was again uncertain of the quantity of the marijuana or of the number of pills that he took before he left his home.
After he left Liverpool he returned by train to Cabramatta. He said that he talked to a few mates in Cabramatta and walked around. He recalled going into the newsagency and said he primarily went into the newsagency because he was looking for balloons. He said he used balloons to carry drugs.
On specific questioning he said that he did not go into the newsagency with an intention to commit a robbery. When asked where the knife came from, he said that it was not usual for him to carry a knife and he was not sure where he obtained it from but acknowledged that it came from "somewhere in Cabramatta".
From then on Mr Nguyen had a very patchy memory of subsequent events. He said that he only had "flashes". He could recall that he fell to the ground and collapsed and said that his next memory was waking up in Cabramatta Police Station. He went on to tell me that the deceased hit him with a stool and he remembered falling down. He said that while he was at the Cabramatta Police Station he asked the police what he was doing there".
33 I have mentioned above some of the medication prescribed by Dr Tan on 18 November 2005. In addition there was Antenax, Temazepam, Baclofen, Brexin, Maxolon and Buscopan. There is a report from Professor Donald Christie (page 2 para 3) which labels the use to which these various medications are normally put. They can be for sleep, muscle cramps, diarrhoea and to prevent vomiting. The cocktail of drugs, as it was called, are drugs largely dealing with the likely physical effects of withdrawing from heroin.
34 Dr Christie, in his report, expressed certain opinions about the possible effect some or all of these drugs may have had on the offender on the day. For example, he said that, if the offender had been suffering mild withdrawal at the time of the offence, it is possible that agitation and mood swing associated with withdrawal could have contributed to the effects of the other drugs. If he had in fact used heroin at about 12pm on 22 November 2005, it was possible that he was beginning to experience mild symptoms of withdrawal by 6pm. In relation to Catapress, this could cause, in high doses (especially in conjunction with Benzodiazepines and heroin) additive effects of sedation, confusion and disorientation.
35 On the other hand, Professor Macdonald Christie thought it unlikely that the offender would have been suffering from effects of an abrupt cessation of Clonidine given the time frames he analysed. He noted, however, that high doses of Diazepam and Temazepham can produce sedation and severe memory impairment. They can also, paradoxically, produce disinhibition, agitation and aggressive behaviour. He suggested that it was "possible" that these combined effects could have enhanced agitation or aggressive behaviour induced by other drugs. He went on to examine in some detail possible effects of the other drugs I have mentioned earlier. His conclusion was: -
"There is a possibility that Mr Nguyen suffered from excessive agitation, a loss of self restraint or increased aggression as a result of use of prescribed drugs discussed above, perhaps combined with the effects of heroin withdrawal at the time that the alleged offence occurred. The likelihood that the influence of any one of these drugs alone contributed substantially to the nature and quality of his act and/or capacity to form the intent to kill is quite low. However, in combination the effects of some of these drugs may have been additive, increasing the likelihood that they contributed to the nature and quality of his act and/or his capacity to form the intent to kill. Unfortunately, the extent of such interactions cannot be determined with any certainty."
36 I have given consideration to all of this material and to other matters detailed in Exhibit 1. I am not persuaded that the offender's capacity to form a judgment impinged upon the level of objective criminality involved in the commission of the offence. Putting the matter plainly, I am not satisfied that the evidence is sufficient to enable me to come to a conclusion, based on the probabilities, that the offender's thinking was clouded so as to relevantly reduce his mental capacity to exercise judgment. I consider that the offender is, obviously enough, in denial about precisely what it is he did on 22 November 2005. It is reasonable enough to suppose that he does not want to admit to himself the detail of his actions on that evening. This denial has led him to claim that he has either no, or very little, recollection of the events in question. On the other hand, his presence in the shop over a considerable period of time with the knife, his very deliberate actions in approaching and speaking to the deceased, and later trying to stab the deceased repeatedly while he was being forced out of the shop, satisfy me beyond reasonable doubt that he well knew what he was doing; and that he was acting in a deliberate way in an endeavour to rob the shopkeeper of money in his till.
37 The opinions expressed by the various medical experts amount to no more than well-intentioned suppositions on their part. They are not supported by any hard evidence from the offender himself nor from any other objectively reliable circumstances.
38 It is true that Ms Yehia sought to obtain some support from the evidence of lay witnesses. In the end, however, I have concluded that this body of evidence is not sufficiently reliable for me to conclude that the proposition advanced on the offender's behalf has been made good. The first of those witnesses was Ms Ly. In her statement at para 68 she describes the offender at the time of the robbery. This description is as follows: -
"I would describe the young man as being 18 to 22 years old. He was about 165cm tall. …He was Asian, I think may be Vietnamese or Chinese from his appearance. He also seemed to understand my conversations with the customers that I had in Vietnamese. He had a long slim face and his skin colour was very similar to mine but he had fairly dark coloured lips. He had swollen eyelids and they were a bit red. He looked like he didn't sleep last night and I believe that he looked like he was on drugs. I see people walking around the shop all the time that are affected by drugs and they have the same kind of look as he did".
39 As I have said earlier, there seems little doubt that the offender did take some heroin that day at about 2 o'clock. It is also clear that he had been taking the medications referred to earlier in an endeavour to come off the heroin habit. Ms Ly's remarks, however, do not persuade me that the leap can be taken so as to conclude that the offender's capacity to know what he was doing at the shop had been in someway reduced so as to lessen his criminal culpability. A reading of the entire statement suggest a much more deliberate pattern of the offender consciously moving around various parts of the store, reading magazines and looking in considerable detail at other items in the store and then ultimately, when he had clearly decided the time was right to implement his plan, moving then swiftly to threaten and demand money from the deceased. There is nothing in this long catalogue of behaviour that suggests that either the medication the offender had been taking or the heroin he had taken that day had, individually or collectively, some significant impact on his thinking or capacity to act.
40 Ms Yehia also made reference to material in the offender's brother's record of interview and in that of a third person, Jenet Uy. This material suggests no more than that the offender had ingested heroin earlier on that day and that it had some impact on him that, observable at the time. In fact, at questions 319 to 323, Ms Uy said no more than that the offender "didn't look that good" after he had come back from obviously taking the hit of heroin. She had very little to say about him apart from that observation.
41 Ms Yehia also referred to a passage in the decision of Wood CJ at CL in R v Henry & Ors (1999) 106 A Crim R 149 at para 273; (1999) 46 NSWLR 346 at 397-8. Ms Yehia relied upon this passage to suggest that the offender's drug dependency may throw light on to his state of mind or capacity to exercise judgment at the time the offence was committed. In my view, however, the offender's long-standing addiction to drugs is not a mitigating factor and is not a matter that reduces the objective criminality of the offence. Secondly, there is nothing in the passage relied upon in Henry that requires me to take a different point of view or to accept the argument advanced on the offender's behalf. (R v S Y; R v K S BC200306107; [2003] NSWCCA 291 at paras 56 to 62).