Regina v Nguyen

R v Mills NSWCCA 3 April 1995 unreported R v JB and RJH (1999) NSWCCA 93 at (33) R v Way [2004] 60 NSWLR 168 R v AJP [2004] 150 A Crim R 575 CASES CITED : R v Vu [2006] NSWCCA 188 R v LMP [2006] NSWCCA 271 R v Henry & Ors (1999) 106 A Crim R 149 at para 273; (1999) 46 NSWLR 346 at 397-8 R v SY; R v KS BC200306107; [2003] NSWCCA 291 at paras 56 to 62 Previtera (1997) 94 ACR 76 Bollen (1998) 99 A Crim R 510

COUNSEL : Mr P. Barrett - Crown Ms D. Yehia - Offender

SOLICITORS : Office of DPP - Crown Legal Aid Commission - Offender

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

1 HIS HONOUR: Hoang Minh Nguyen (whom I shall refer to as "the offender") was indicted before Barr J on 1 December 2006. He pleaded guilty to a charge that on 22 November 2005 at Cabramatta he did murder Chy Pou Yeak ("the deceased"). 2 It is the Crown case that at about 5pm on 22 November 2005, the offender went to the Cabramatta East Newsagency with the intention of committing an armed robbery. At the time, he was armed with a knife. After spending over an hour inside the newsagency he approached the counter and produced the knife. He then demanded money from the deceased, who was the owner of the newsagency. In the course of the armed robbery, the offender stabbed the deceased a number of times wounding him, and one of the stab wounds penetrated the deceased's right axillary vein causing his death. 3 It is necessary to make some further findings of fact to add detail to this brief overview of the circumstances surrounding the death of the deceased. The parties have agreed on a version of the facts that the Court may treat as reliable. I have examined all of the material in the sentencing proceedings and I am satisfied that the facts are as agreed between the parties.

Facts surrounding the death of the deceased 4 On 22 November 2005 the offender was 20 years of age. Mr Chy Pou Yeak was 57 years of age. They did not know each other. 5 At this time, the deceased owned the Cabramatta East Newsagency, which was located on the corner of Broomfield Street, and Cabramatta Road, Cabramatta. He also owned the neighbouring butchery, Leang Hong Butcher. 6 In conducting his newsagency business, the deceased, in addition to keeping money in two cash registers, also kept money in a white plastic cassette box - located behind the counter and inside a cabinet near a cigarette display. Money was removed, from time to time, during the day, from the cash registers and placed in the white cassette box. 7 At about 5.00pm on 22 November 2005, the offender was seen inside the newsagency. After entering the newsagency, he moved around various parts of it, appearing to be looking at various items and to be reading some of the magazines. Also, he was looking behind the counter. Because of the offender's movements, and the time he had spent in the newsagency, his presence aroused the suspicion of an employee, Ms Ly, who moved her handbag from the position she had placed it, into another position. Ms Ly also took some money out of the cash register. 8 At about 6.15pm, the deceased walked from his butcher shop into the newsagency and went to the staff area. Ms Ly followed the deceased to the staff area and informed him of how long the offender had been in the newsagency. 9 At about 6.30pm, the deceased walked from the back of the newsagency and went out the front door, towards the butcher shop. About two minutes later, he returned to the newsagency and went to the back room, where he stayed for about a minute. After that he walked out the staff door towards the offender and spoke to him. After this conversation he walked behind the counter and put his back to the counter and faced the wall. He opened the sliding cabinet and took out the white cassette box. He then opened the table drawer and put the cassette box inside. He then partially closed the drawer. He collected some of the money from each of the cash registers and put some into his pockets. He put the balance into the cassette box. Shortly after the offender walked towards the deceased and said "Give me the money". The offender said this more than once. At the time the offender was holding a knife level with his head. When the offender said these words the deceased said "No". 10 The deceased then stepped backwards and took hold of a chair that was behind one of the cash registers. The deceased then pushed the chair towards the offender, trying to push him out from behind the counter. When the deceased grabbed the chair, the money he had in his possession fell to the floor. At this time, the offender was still holding the knife level at about head height. The deceased said "call the police, call the police". 11 When the deceased, using the chair, tried to push the offender out of the newsagency the offender started stabbing at the deceased with the knife. At the time, blood was observed coming from one of the deceased' arms. Further, the deceased was saying "call the police, call the police". 12 As the offender and the deceased came closer to the front door to the newsagency, they kept pushing each other backwards and forwards, with the offender continually stabbing at the deceased and trying to grab the chair. 13 Eventually, the deceased managed to push the offender out of the front door of the newsagency. When outside the newsagency, the offender lunged at the deceased a number of times with the hand holding the knife. The lunging by the offender was towards the deceased's chest area. 14 After continuing to struggle, the deceased and offender fell to the ground with the offender on top of the deceased. 15 At this time, the deceased was bleeding from wounds inflicted upon him by the offender. 16 Shortly after, the offender was dragged off the deceased by a number of witnesses and detained by them until the police arrived. At that time, the offender still had the knife, used in the stabbing of the deceased, in his hand. 17 First aid was given to the deceased by some witnesses. Police and ambulance were contacted and arrived shortly after. When the police arrived they arrested the offender. When the ambulance officers arrived they gave some treatment to the deceased and then took him to Liverpool Hospital. 18 On the way to the Hospital, ambulance officer Delahunty examined the deceased. She observed that the deceased was conscious but agitated. He was writhing around, becoming pale and had lost a large amount of blood. She further observed that the deceased's injuries included a stab wound to his right anterior chest, which was bleeding quite heavily, a stab wound to his left lateral chest and a stab wound to his left forearm. 19 At about 7.00pm, Dr Vukasovic examined the deceased at Liverpool Hospital. At this time, the deceased was in cardiac arrest. In the Emergency Department cardio-pulmonary resuscitation commenced and Mr Yeak was given four units of blood. Inter-costal catheters were inserted and a left thoracotomy was done. Despite these measures, the deceased could not be revived and life was pronounced extinct at 7.12pm. 20 In an expert statement dated 18 September 2006, Professor John Hilton stated that there is a "direct medical nexus between the penetrating wound to Mr Yeak's right armpit (axillary) and Mr Yeak's death". The deceased' injuries consisted of five incised wounds; two stab wounds; and three 'injuries'. Two of the incised wounds penetrated the skin and subcutaneous fat. Two penetrated only the skin. No comment is made about the fifth incised wound. The "injuries" consist of three scratches, and a bruise. The deceased's left shoulder and right lower forearm were scratched and there was a bruise on the front of the middle of his right arm. 21 At about 9.30pm, Constables Bird and Cross escorted the offender to Liverpool Hospital for treatment for injuries including, a deep cut to the right index finger. The offender received six sutures to his finger and was then taken back to Cabramatta Police Station. Subsequently, the offender exercised his right to silence. 22 The offender has remained in custody since 22 November 2005. He was committed for trial on 11 October 2006 from Liverpool Local Court and entered a plea of guilty at his first arraignment hearing. It is common ground between the parties that the only reason that a plea was not entered earlier was that it was necessary to conclude a series of psychiatric assessments in relation to the offender and the nature of his offending.

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).

The subjective case for the offender 42 The offender's background and his long addiction to drugs are part of a sad tale, one that is probably not uncommon among some of the young Vietnamese community. It is nonetheless a tragic tale. The offender was born on 29 June 1985. He was 20 years old at the time he committed the offence and is now 21 years of age. He was born in Australia but his parents are Vietnamese. 43 The offender's father drank heavily and was often violent. In particular, he was violent towards the offender when he was a young child. The parents separated however, when the offender was quite young and he has had no subsequent contact with his father. Although the offender has continued to reside with his mother, he has not been able to communicate easily with her as she spoke no English and he spoke no Vietnamese. As a result, his relationship with his mother was not a close one. Rather, he drew closer to his siblings, who themselves fell into a serious pattern of drug abuse. 44 The offender's own history of drug use commenced at a very young age, probably when we was about 12. He progressed, however, to intravenous drug use when he was about 15. While there have been a number of attempts to abstain from heroin, they have been, in the main, unsuccessful. 45 The offender was a poor student and had difficulty with concentration and learning. Undoubtedly, his early mixing with drug taking youths would have not been of much assistance to his prospects of a reasonable education. The offender left school at the end of Year 8 and conceded that, prior to this time, he mainly associated with delinquent friends who were often involved in petty crime. He ran away from home on a few occasions. After he left school, he spent time in a youth refuge in Parramatta. The offender told Ms Wilcox that he had been sexually molested on a number of occasions during his childhood. Apparently this was by one of his mother's brothers. He had also been sexually assaulted by an Aboriginal youth while he was in a Juvenile Detention Centre. 46 From the age of 16 onwards, the offender was arrested on many occasions and spent time in various Juvenile Detention Centres including Cobden and Reiby for offences such a shoplifting and larceny. He has never been able to maintain any form of consistent employment and has had no training for any form of employment. He acknowledged to Dr Wilcox that his life revolved around spending time with his friends and using drugs. 47 It will be apparent from what I have said earlier that, not only has the offender used heroin regularly for a number of years, he has used other drugs as well. He told Dr Wilcox he liked using heroin because it made him forget every day life. It stopped him caring about the past and made him feel good. It is clear, as is so often the case, that this self-medication by the offender is, and has been, undertaken by him as a result of his own free choice and election, notwithstanding that his environment and background has had a role to play. 48 He has been in custody since 22 November 2005. He was initially placed on Methadone, however, it appears he stopped taking the Methadone. It also appears that he has been using drugs in custody, despite the risk of infection. He told Dr Wilcox that this was because he did not care about the consequences. 49 The offender has a well documented past psychiatric history. It appears that he has suffered from depression for many years. He has been prescribed anti-depressant medication on occasions but he has not kept up this medication. On one occasion, he took an overdose of the medication because he was fed up with his life. On another occasion, he tried to hang himself at Long Bay Correctional Centre. This was not long after he came into custody for the current offence. His cellmate, however, stopped him from his endeavours. 50 On specific questioning from Dr Wilcox, the offender said that he did not experience flash backs of the alleged offence. Rather, he had flash backs of incidents that occurred in childhood. Due to being in protection he said that he had a lot time to think and he had been thinking about what had gone wrong in his life and the things that he was ashamed of, particularly the alleged offence. He expressed feelings of guilt, hopelessness, worthlessness, uselessness and referred to himself as "a disgrace". He said that many of these feelings had been present prior to the alleged offence. 51 It appears that he has been kept in moderate protection because both he and his family had been threatened while he has been in custody. He told Dr Wilcox that there was "a bounty" on his head. The offender was obviously having difficulty coping with incarceration. It is clear that he will require counselling and attention to manage the underlying issues that have contributed to his chronic depression and his dependence on drugs. There is a risk of self-harm. He has in recent times demonstrated some manifestations of paranoia. He is suffering at present from major depression and it is probable, according to Dr Wilcox, that he has an underlying chronic depression or Dysthymia. It is not suggested in the evidence that there is any connection between his earlier depressive illness and the offence. All these matters however, are clearly relevant in an assessment of the weight to be given to the subjective factors and to the ultimate consideration as to whether special circumstances have been demonstrated. 52 The psychiatric evidence establishes that the offender's childhood experiences pre-disposed him to the development of a chronic low-grade depression that was associated with a degree of impaired self-esteem and self worth. He has, on occasions, suffered from major depression in the past and it is probable that he has an underlying chronic depression. There was no evidence that he was suffering from any psychotic condition or mental illness at the time of the commission of the offence. It is clear that in the future he will require counselling to manage the underlying issues that have contributed to his long-term depression and his dependence on drugs. 53 I do not consider that there is anything in the psychiatric evidence that would require that the objective level of culpability involved in the commission of the offence be reduced. There is no suggestion in the psychiatric evidence that there was any connection between the degree of depression he suffered on 22 November 2005 and the commission of the offence. On the other hand, I am perfectly satisfied that the offender's current mental state does not pose any danger or threat to the community either at present, or upon his release. I do not consider that the existence of the level of depression suffered by the offender at the present time warrants less weight being given to general deterrence in the present matter. Although, it may do so in some cases, that is not the situation here. I do, however, consider that his depression will make conditions in prison more difficult for him and that is a matter, I think, that will require a consideration both in the context of the sentence to be imposed and the issue as to whether special circumstances have been demonstrated.

The sentence to be imposed 54 What sentence then should be imposed? Before coming to this matter, I should say that I have been provided by the Crown with Victim Impact Statements from the children of the deceased. These are very moving statements. They demonstrate the tragedy that can befall a family where a knife has been used in connection with a shop or street robbery. I hope that the opportunity of expressing their deep sorrow for the loss of their beloved father will give some solace and relief to members of the deceased's family. I am of course, obliged by existing authority not to take these matters into account in the assessment of the appropriate sentence to be imposed. See Previtera (1997) 94 ACR 76; and Bollen (1998) 99 A Crim R 510. 55 The crime of murder is regarded as one of the most serious offences in the criminal calendar. The maximum penalty prescribed by the legislature is life imprisonment. That is an appropriate indicator of the seriousness with which the community views the offence. 56 I have earlier indicated that the circumstances of this offence mean that it must be regarded as serious. It was, however, a spontaneous unplanned and haphazard killing. The factors that make it more serious are that it involved the use of a knife; there was repeated attempted stabbing with that knife; and the offence was committed while the offender was on parole. On the other hand, there are a number of mitigating factors. A significant factor here is the plea of guilty. In the circumstances of the matter as I have outlined them, I think that it is not inappropriate to say that it was a plea entered at the earliest opportunity. I understand this to be conceded by the Crown. In those circumstances it is appropriate to allow a discount for early plea. This discount should be a discount of 25% to recognise both that the offender has facilitated the course of justice and that the plea has a considerable utilitarian value. 57 I am less confident as to the extent of the offender's remorse. It is true that there are one or two passages in the material from Dr Wilcox that suggest the offender is remorseful. It must be said there is not much material of this kind although, on the other hand, the offender is obviously a very depressed and quiet person. He is, indeed, a person of few words. He has not given evidence before me. Nevertheless, I think that I should recognise that there is an element of remorse shown by the offender. It is difficult to put the position in the offender's favour much higher than that. 58 Again, with the issue of rehabilitation, one cannot be certain that the prospects are particularly hopeful. The offender, however, is a young man. He has tried on occasions to give up his drug dependency although he has never succeeded to any great extent. I suppose that one can only hope that rehabilitation is not beyond him and the time that he will spend in custody may lead him to understand how even his difficult and tragic life can be turned around. It is not beyond possibility that he could yet become a useful member of the community. The fact that he apparently has been taking drugs in custody is not a hopeful sign. 59 The offender is certainly entitled to have his youth taken into account. There is also the fact that he has never before been convicted of a crime involving violence. 60 Although there are aspects of the offender's youth, circumstances and other subjective matters that point towards a finding of special circumstances, I do not consider, in the end, that there are special circumstances in the present matter. This is because it is my view that an application of the statutory relationship itself will produce a substantially lengthy period of parole supervision necessary and suitable to address those problems I have identified which the offender will undoubtedly face in re-establishing himself in the community after a very lengthy period in custody. There is nothing that indicates that a shorter non-parole period should be fixed than that which would flow from the normal statutory relationship. Consequently, there are no special circumstances to warrant a further reduction in the non-parole period. Sad as his subjective case is, I do not consider that it calls for any further reduction in his sentence. 61 In my view, prior to a discount for early plea, an appropriate sentence for this offence would be a total term of 24 years with a non-parole period of 18 years. After allowance for a 25% discount, the non-parole period will be for a period of 13 years and six months with a balance of term of four years and six months. The sentence will be backdated to 22 November 2005, the date when the offender went into custody. 62 Hoang Minh Nguyen for the crime of murder I sentence you to imprisonment. I set a non-parole period of 13 years and six months. This is to commence on 22 November 2005 and to expire on 21 May 2019. 63 The balance of the term is to be for a period of four years and six months commencing on 22 May 2019 and expiring on 21 November 2023. 64 I recommend that during this period in prison, the offender receive treatment and counselling for his depression and his drug addiction. I further recommend that these treatments be extended to the offender during his time on parole.

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