ON SENTENCE
1 SULLY J: On Friday last, 26 April, Mr. Thuc Ngoc Tran, ("the prisoner"), was arraigned in this Court upon an indictment containing two counts. The first count charged the prisoner with having murdered, on 31 July 1996 at Fairfield, one Thanh Chi Ly. The second count charged the prisoner with having unlawfully imprisoned, at the same place and on the same day, one Phong Vu Lam.
2 The prisoner pleaded guilty to each count. Thereafter, and partly on Friday last and partly on Monday of this week, I took evidence in connection with the prisoner's sentencing. On Wednesday of this week I heard submissions on that matter. I remanded the prisoner for sentence this morning.
3 I formally convict the prisoner of the offences to which he has pleaded guilty. The conviction for murder attracts, pursuant to section 19A(1) and (2) of the Crimes Act 1900 (NSW) a statutory maximum penalty of imprisonment for the term of the prisoner's natural life; but subject to the mitigating effect of section 21(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The conviction for unlawful imprisonment is a common law misdemeanour. There is no statutory maximum penalty, but accepted usage regards a sentence of imprisonment for 2 years as a de facto maximum save in exceptional cases, of which the present case is not an example.
4 The material facts are as follows.
5 On 1 August 1996 the body of Thanh Chi Ly was found in an oval, known as Endeavour Oval, at Fairfield. He had been shot to death. Post-mortem examination disclosed four gunshot wounds on the body. Two of them were perforating wounds: that is to say, wounds having both identifiable entry and exit points on the body; and the other two were penetrating wounds: that is to say, wounds having an identifiable entry point, but no identifiable exit point on the body.
6 Of the two penetrating wounds, one was a head wound. Its entry point was at the right eyebrow. Its path was from front to back, from right to left, and downwards. Its range is classified in the post-mortem report as intermediate. The second penetrating wound, also, was a head wound. Its entry point was at the mid-line of the back of the head. Its path was back to front, horizontal and right to left. Its range was classified as distant.
7 Of the two perforating wounds, the first was a facial wound. Its entry point was the left side of the nose. Its exit point was the right side of the face. Its path was downwards, from left to right. It, too, was classified as having been occasioned at intermediate range.
8 The second perforating wound was a wound to the ring finger of the right hand. The entry point was the back of that finger; and the exit point was the front of the finger. Its track was through the finger. The range was classified as intermediate. The post-mortem report says of this particular wound that it was consistent with a defence-type wound.
9 Three spent bullets were recovered from the crime scene. All three were .32 calibre lead bullets. Forensic ballistic testing established that all three bullets had been "discharged from the same barrel attached to an unknown firearm". No murder weapon has ever been recovered.
10 Extensive police investigations were carried out in 1996, but without yielding evidence sufficient to charge any person with the murder. Some four years later, additional information came into the hands of the police. It pointed to four persons in particular as having been in some way implicated in the murder. The four were: the prisoner; one Ngoc Phong Pham; his brother Ngoc Vu Pham; and one Hoang Minh Nguyen.
11 On 5 October 200, the police arrested the prisoner. Immediately upon his arrest, the prisoner asked the arresting police whether they had "got other people besides me". The following conversation then ensued between the prisoner and Constable Zdjelar:
CONSTABLE ZDJELAR "What is going to happen from this point on is you will be taken to the Victorian Homicide Office where we wish to formally interview you about this matter."
THE PRISONER: "This happened a long time ago. I have been in Melbourne for three years, why are you speaking to me now about it?"
CONSTABLE ZDJELAR: "Recently we have spoken with a number of people who have given us information about the murder. I will explain this further at the police station."
THE PRISONER: "Have you got other people besides me?"
CONSTABLE ZDJELAR: "There are a number of people we believe were involved in the murder, Phong Ngoc Pham, Vu Ngoc Pham and Minh Hoang Nguyen."
THE PRISONER: "One of those guys told you, ha?"
CONSTABLE ZDJELAR: "We have spoken to some of those persons who have given versions about the murder."
THE PRISONER: "You believe them then, what do you want me to say?"
CONSTABLE ZDJELAR: "As I already explained, you do not have to say anything. As investigators we ask people questions to try and find out the truth.
THE PRISONER: "If I tell you they will kill me. Before I leave Sydney the 'T' they bash me and stab me, I went to hospital. I leave Sydney to get away from that. I have been here three years and live a good life now. I have a family and a young baby. If I tell you can you protect me?"
CONSTABLE ZDJELAR: "We can offer you protected custody which means that if you go to jail you won't be put in with the rest of the prisoners, you are in a special protected area of the jail."
THE PRISONER: "I want to tell the truth but I am worried about my family. I was so stupid, they used me."
CONSTABLE ZDJELAR: "How old are you now?"
THE PRISONER: "I am 20."
CONSTABLE ZDJELAR: "So in 1996 you were 16?"
THE PRISONER: "Yes, I was only young, but Phong and his older brother, I think it is Vu, they used me. I want to tell you truth."
12 Thereafter, and on that same day, the police conducted an extensive interview with the prisoner. In sworn evidence before this Court the prisoner confirmed the truth of the version thus given by him; but with two alterations, one of them being that he had himself fired all four of the shots earlier herein described, whereas he had said in his interview that Ngoc Phong Pham had been the shooter.
13 The narrative that emerges from the interview, from the sworn evidence of the prisoner, and from the other evidence tendered in the proceedings on sentence, can be summarised as follows.
14 The prisoner was born on 5 May 1980 in Vietnam. At the instance of his mother, who wanted a better life for him than he could expect to have in Vietnam, he came to Australia in 1993. He travelled with a maternal uncle, and the uncle's wife and children. The party travelled via Malaysia and Indonesia, spending about 3 years in a refugee camp in Indonesia. In Australia the prisoner attended school at Cabramatta High School for about a year. There he made the acquaintance of Ngoc Phong Pham who was somewhat older, and who was a year or two ahead of the prisoner at school.
15 After about six or seven months of living with his uncle and the uncle's family, the prisoner spent a few months living with an older cousin; and he then went back to Vietnam in order to visit his parents. He stayed in Vietnam for about six months.
16 Upon his return to Australia, he found that his uncle had moved interstate with his family. The prisoner, then aged about 15 years, was thus effectively homeless. He was taken in for a couple of months by the family of a school friend, and he got a factory job. He then drifted, unfortunately, into bad company. He began to use prohibited drugs. He left his job and the friend's home, and drifted for a time as, put simply and colloquially, a street kid.
17 In that unpromising context he met again, and was taken up by, Ngoc Phong Pham, who took him into his, Pham's own home. By that time the prisoner had joined a gang of youths called the Madonna Boys. This gang operated, broadly speaking, as two affiliated groups, one centred on Cabramatta, the other on Bankstown. Ngoc Phong Pham was associated with the Cabramatta group; and Hoang Minh Nguyen was, effectively, the controller of the Bankstown group.
18 While the prisoner lived with Phong Pham, he was drawn by Phong Pham into a life of serious crime involving heroin-trafficking; serious larcenies; and intimidation accompanied on occasion by physical violence. According to the prisoner, he was effectively exploited and manipulated by Phong Pham.
19 After a few months, the prisoner moved out of Phong Pham's home, and went to stay with a friend, and the friend's family, at Bankstown. There he came under the influence of Minh Nguyen. According to the prisoner, he was effectively exploited and manipulated by Minh Nguyen in essentially the same way as had been his experience with Phong Pham.
20 Prior to 31 July 1996 the prisoner had seen the victim Ly in conversation with Phong Pham, but had not been party to the conversation, and had no other knowledge of, or acquaintance with, Ly.
21 According to the prisoner, he was approached by Phong Pham about two weeks before the murder of Ly. He was told that Phong Pham and his brother wanted him, the prisoner, to kill Ly. The prisoner refused, telling Phong Pham that he did not want to become involved with the latter's problems with Ly.
22 Somewhat later, Phong Pham again approached the prisoner in the same way as previously. Again the prisoner refused.
23 On yet a third occasion, the prisoner was approached by Phong Pham. The prisoner was then in the gang orbit of Minh Nguyen; and, in addition to his sense of vulnerability in that regard, he was pressured strongly by Phong Pham. The prisoner, in his evidence, describes that pressure in this way:
"Q. You say that Phong Pham put pressure on you?
A. Yep.
Q. What do you mean by that?
A. I mean like he put the pressure on me. He has come to me a couple of times and he say listen, I have to do it. I don't have any choice at all. First I listen to what he say, and secondly if I wasn't do it on that night, I don't know what is going to happen to me, to my future. Then he told me, "Listen, if you don't do it, you are going down". So after that I just say, "I don't know, I don't know"………………………." [T 28 (44) - (54) ]
24 The foregoing developments came to a head on the evening of 31 July 1996. According to the prisoner, he and Minh Nguyen went together to Phong Pham's house at the invitation of Phong Pham. Phong Pham took the prisoner into his bedroom and again solicited him to kill the victim Ly. The prisoner refused. Phong Pham persisted, threatening the prisoner in these words:
"Listen, either way you are going to do it you know. Or I not going to guarantee for you or for yourself in the future."
25 In addition to these threats, Phong Pham said something to the effect that his wife was a couple of months pregnant, and that if Ly were not killed, he, Phong Pham and his family were at risk "or something like that".
26 Eventually, the prisoner yielded to these approaches by Phong Pham. Thereupon, he, Phong Pham and Minh Nguyen drove to Vu Pham's house. In the car with them were the victim Ly, and the man Phong Vu Lam, the victim named in the second count of the indictment.
27 The two men, Ly and Lam, had gone to Phong Pham's home, according to a statement made by Lam on 19 September 2000, because Ly had been induced to go there in order to look at a car stereo, presumably with a view to Ly's purchase of that item. Ly had invited Lam, who was a good friend, to go with him.
28 What happened upon their arrival at Phong Pham's home is described by Lam as follows:
"7. When we arrived at the house Thanh parked the car in the driveway. Thanh told me to wait in the car. I said I would come in with him, but Thanh told me to wait. Thanh got out of the car and I waited in the passengers seat. Thanh walked towards the house and entered a gate through the brown aluminium fence at the front of the house that leads towards the garage area.
8. Thanh was inside for about 30 seconds or a minute when PHAM Phong opened the same gate that Thanh had gone through. I remember Phong was wearing dark clothes but I don't remember exactly what. When I saw Phong at the gate I got out of the car and walked towards him. I walked through the gate. The front roller door to the garage was closed but a side door was opened and a light was on inside the garage. I walked to the door and looked inside, Phong was standing next to me but had not said anything to me up until that time. Inside the garage I saw a male person I know as Minh inside the garage. Minh was holding onto Thanh by the t-shirt. I saw another male that I know as Thuc standing in the garage just to the right of the door that I was standing at. I thought something was wrong. I started to step backwards out of the door but Thuc put his right arm around my shoulders and pulled me into the garage. I knew Minh and Thuc both by name. I had seen them on six or seven occasions before. Each time I saw them was at Phong's house. I knew they were friends of Phong's. Phong said "Let's get into the car". At that time I was not worried because I did not know what was happening and I knew that everyone was friends.
9. Phong walked out towards the driveway to where the car was parked. Phong walked out first Thanh followed him, Minh followed Thanh I walked behind Minh and Thuc walked behind me. Everyone walked out freely at that time, no one was being pushed or forced."
29 When the five men arrived at Vu Pham's house, the latter joined them in the vehicle. The vehicle was driven to Endeavour Oval. Upon arrival at the oval, the prisoner, Minh Nguyen, and the victim Ly got out of the car and walked on to the oval. The other three passengers, Vu Pham, Phong Pham and Lam, remained in the vehicle.
30 According to the prisoner, Phong Pham, immediately before Minh Nguyen, the prisoner and Ly got out of the car, "……………… just put his arm over me, as I remember he just said, 'just go outside and do it'.. According to the prisoner, Ly was taken by him and Minh Nguyen on to the oval; and there the prisoner shot Ly to death, inflicting all of the gunshot wounds that I have earlier described.
31 The version given by Lam in his statement fleshes out, as follows, the foregoing bare description of the killing:
"12. Vu was wearing a navy or dark blue polo shirt and long pants. Vu walked towards the car and opened the front passengers side and got in. Phong said to Vu, "There is a problem." Vu said to Phong, "You can't avoid it, you have to do it." Phong said nothing. At this stage there was 6 people in the car.
13. The car then drove off with all of us in it. We went in a new direction not the way we came. We were in the Bonnyrigg area but I am not sure whereabouts. Phong asked Vu, "Where are we going?" Vu replied "You just drive". Thanh started begging Vu. He started to cry and say, "forgive me, whatever I owed you I already paid." Vu said to Thanh, "That is not enough." During this time Thanh was still crying. Vu said to Thanh, "I do not want to talk to you anymore." We then crossed the Cumberland Highway heading towards Fairfield. Phong said to Vu, "Let's stop the car I want to discuss something with you." Vu said, "If you have started you'd better finish it." The car did not stop and continued towards Fairfield. We approached a red light which was near a Seven-Eleven store. Phong made a right hand turn and travelled down that road. I saw a park on the right hand side of the road. I know the park but I don't know the name of the park. It is right on the border of Canley Vale and Fairfield. Vu then said, "Finish it up right here." I saw that there was a driveway at the park near the toilet block. Phong parked the car in the carpark near the toilet block. Phong then reversed back out onto the road and parked on the street facing in the direction we had just come from towards the traffic lights. It was late at night and there was no person in the park that I could see. There was no cars parked in the carpark or near the park.
14. Vu said, "Let's get out of the car." Vu got out from the front passengers seat then lifted it forward to allow us out of the back seat. Minh got out then Thanh. Thanh was crying as he got out of the car. Phong said to me, "You stay here." Thuc climbed over me and got out the passengers side as well. Vu then put the seat back and sat in the front passengers seat. At that stage Phong was in the front drivers seat, Vu was in the front passengers seat and I was in the back by myself. The three outside the car were talking loudly. I could hear them clearly because the passengers window was halfway down. The three outside the car was Thanh, Minh and Thuc, they were about one to one and a half metres from the car. Minh or Thuc said, "We only want to talk. Don't run. You don't have to worry". Thanh didn't say anything. I could see that he was shaking. The three of them then walked towards the toilet block at the park out of my sight.
15. About one minute later I heard three to four loud bangs coming from the direction I last saw Thanh, Minh and Thuc walk towards. The bangs were evenly spaced about a few seconds apart. No one in the car said anything when this happened. I then saw Minh and Thuc running back towards the car. I didn't see anything in any of their hands. I didn't see any blood on them. Vu opened the front passengers door and leaned forward. Minh was the first to get into the back seat with me and Thuc followed. I was behind the driver then Minh was in the middle and Thuc was behind the passengers seat. At that time I thought that what happened was very serious, but half of me was thinking it must be a joke we are all good friends."
32 About a month prior to the killing the prisoner had bought the murder weapon from some unnamed person in a car park at Bankstown. He had done so, he said, because he felt the need to have that sort of protection "because when I got out of Cabramatta, between Madonna Boy and the 5 T gangs, they don't get along". According to the prisoner, he took this weapon with him when he drove to Phong Pham's home on the evening of 31 July 1996. He says that he left the weapon in the car before entering Phong Pham's home; but that before leaving that address to travel, in another car, to the oval, he retrieved the weapon and thereafter kept it on his person until after the shooting, when he threw the weapon away somewhere in the Merrylands area.
33 After the murder of Ly, the prisoner continued his association with the Madonna Boys until 3 December 1996 when he was arrested in connection with a matter unrelated to the shooting. He remained in custody until he was released sometime in 1997. Upon his release he went back to Bankstown where he was welcomed by the members of the gang, and invited to resume his activities with the gang. He refused, having had, as he says he told them, enough.
34 Shortly thereafter he was seriously assaulted by a group of Asian youths. According to the police and hospital records forming part of Exhibit C3 on sentence, the attack occurred in the Viet Hoa Plaza at Cabramatta at about 2.30 p.m. on 20 October 1997. The prisoner suffered severe lacerations to his head; his general condition being noted in the police report as "serious but not life threatening". The prisoner was so traumatised by the attack that on 24 October he walked out of the hospital to which he had been admitted on 20 October.
35 Of this incident the prisoner said in his evidence:
"Q. Did you stay in hospital?
A. No, I took off.
Q. You took off?
A. Yes.
Q. Why did you do that?
A. Because friend of mine, they come in hospital and visit me, and he told me that they still looking for me.
Q. Who did you believe they to be?
A. There is only two reasons. Either way the boy from Bankstown, or either way, because during the period of time I was inside, a few people come see me, and they ask me what happened to Thanh Chi Ly and I told them, one of them. Then there is only two reasons that I think I got stabbed in Cabramatta. The first reason is I didn't join back the gang member. The second reason is because I tell somebody about what happened on that night." [T33 (26)-(44)]
36 After leaving hospital the prisoner went to his girl friend's house, where he remained until he had made a complete recovery. His girl friend became pregnant to him. He agreed thereupon with her and with her family that he and she would move interstate, which they did. Thereafter he made a life for himself and his de facto wife, and in due course for their daughter. So things continued until his arrest in October 2000, since when he has been in witness protection custody in this State.
37 It is trite that the correct starting point for the quantification of any sentence is an assessment of the culpability of the relevant objective facts. It is, surely, beyond sensible argument that the objective facts of the present prisoner's case are, to say the very least, culpable in high degree. The prisoner admits to the premeditated fatal shooting in cold blood of a victim who was, at the time of the shooting, effectively defenceless. There was no personal antagonism between the two men. The victim was, indeed, effectively a stranger to the prisoner. The shooting was in truth a gangland killing. It took place against a sinister background of conflict arising out of illicit drug-trafficking. The last in sequence of the shots fired into the victim was fired, on the prisoner's admission made during the course of his evidence, in order to make quite sure that the victim was indeed dead. The body of the dead victim was simply left to lie in the open, pooled in its own blood, for as long as it might take for the chance discovery of the body.
38 The enormity of such a crime must be, on any intelligent and responsible objective assessment, very great. Such a crime tramples roughshod over the immutable sanctity and dignity of human life. The resolute recognition and protection of that sanctity and dignity are the paramount concerns of the rule of law in any society fit to be called civilised.
39 Should the prisoner's crime be characterised as an example of the worst category of murder, and thus apt to attract the indeterminate life sentence for which section 19A(1) and (2) of the Crimes Act provide?
40 The relevant guiding principles in that connection are well established. First, a given case does not fall outside the worst case category merely because "ingenuity can ……………… conjure up a case of greater heinousness": Veen v The Queen (No. 2) (1988) 164 CLR 465 at 477.
41 Secondly, "In order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from subjective features mitigating the penalty to be imposed)": Reg. V Twala (unreported) NSWCCA, 4 November 1994 per Badgery-Parker J at 7.
42 .Were it not for the reasoning that underpins the decision in Twala, I would myself have not hesitated to classify this particular murder in the worst case category. The objective features to which I have earlier referred would justify, in my opinion, such a classification.
43 I think, however, that such an approach would not be compatible with the reasoning common to all three of the Judges who decided Twala. That reasoning appears to take it more or less for granted that because Mr. Twala deliberately stabbed his estranged wife to death at a time when he was emotionally fragile, the part played by that fragility in his having committed the particular crime was sufficient to justify a conclusion, in limine, that the case was, in the words of Veen (No. 2): "recognisably outside the worst category".
44 In the present case, it is a cardinal feature of the prisoner's submissions on sentence that his acts, although reprehensible, are explained by the fact that he was effectively coerced into carrying out the killing. It is not possible to deal with this proposition beyond deciding whether or not to accept what the prisoner himself has said in that connection; there being, at least so far as I can see, no evidence independent of the prisoner and capable, if accepted, of strengthening his version. It was indeed, concerns of this kind that caused me to question, at Wednesday's hearing, whether I ought not to defer the sentencing of the prisoner until after his co-accused had been tried, and a better-rounded view had thereupon emerged of the true power relationships as among the four young men.
45 Having decided not to depart from the usual practice as to the sentencing of one co-accused who is to be called in the Crown case against the other co-accused, I can but do my best to evaluate fairly the prisoner's own protestations of coercion.
46 That is no easy undertaking. The flavour of Mr. Lam's statement does not seem to me to be clearly supportive of the prisoner's version; but that impression might well have been otherwise had I actually seen and heard Mr. Lam in the witness box.
47 There is, of course, the undoubted fact of the October 1997 assault of the prisoner. His own explanation is plausible; but it needs to be remembered that the kind of ugly milieu in which the prisoner had lived actively for some time is notorious for erupting from time to time in such acts of violence; and that the true explanation for the attack might have little, if any, proximate connection to the shooting. In the end I have concluded that, as matters stand, I could not fairly say that it is not a reasonable possibility that some such pressure as the prisoner has described explains at least in part, although it cannot possibly excuse even in part, his deliberate killing of the victim Ly.
48 Such a conclusion, tested by the application of the foundational reasoning in Twala seems to me to require that I treat the prisoner's case as one in which justice will be better done by the imposition of a determinate sentence of imprisonment.
49 I am strengthened in that view by the written submission of the learned Crown Prosecutor that: "………….. there should be a determinate sentence by the Court of a lengthy period of imprisonment which will adequately reflect the seriousness of the offence, act as a deterrent to those who might be like-minded, and at the same time providing safety for the community without destroying the prospect of rehabilitation for the prisoner".
50 It was part of the submissions put for the prisoner that his criminal culpability should be tempered by a consideration of the fact that he was aged 16 years and not quite 3 months at the time of the shooting. I do not think that it would be consonant with authority to refuse to take any account at all of the prisoner's youth at the time of the killing. But neither would it be consonant with authority to give that fact a disproportionate weight in connection with a fair assessment of the objective culpability of the killing.
51 It is useful now to turn to the relevant subjective features of the prisoner's case. They can be summarised as follows: