Regina v Thuc Ngoc Tran

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

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:

[1] The prisoner is a young man. He is at present aged, almost to the day, 22 years. He has shown an ability to fashion a stable home life for himself, his de facto wife, and their infant daughter.

[2] As part of that lifestyle the prisoner has been in lawful employment from June 1998 until his arrest in October 2000. The evidence concerning his performance of his workplace duties was very impressive. Growing out of that employment has been the prisoner's adoption by his employer as a Godson in the special family sense recognised in Vietnamese culture.

[3] The combination of the matters noted in [1] and [2] above justifies the conclusion that this prisoner's prospects of rehabilitation are good.

[4] The prisoner has undoubtedly demonstrated an understanding of the enormity of what he did in killing the victim Ly; and has demonstrated, as well, genuine remorse for that crime.

[5] The prisoner has undoubtedly demonstrated a willingness to facilitate the course of justice in connection with the proper punishment of all those who were implicated in the murder of Mr. Ly. His prompt plea of guilty is one measure of that willingness. His cooperation with the investigating and prosecuting authorities is another. It could not be doubted sensibly that such cooperation carries real and serious dangers, and has real and serious consequences, for the prisoner. I have had regard to the requirements of sections 22 and 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) .

[6] The prisoner has no criminal antecedents in New South Wales. There is an indication in Exhibit C1 at tab 18 of a Victorian matter; but nothing in particular was made of it in submissions; and I take no account of it for present purposes.

[7] The prisoner will serve any sentence in very hard conditions deriving from the need to afford him proper protection against reprisals for his willingness to facilitate the relevant course of justice.

[8] The prisoner's disadvantages during his formative teenage years should be recognised; but in a measured way that is not inappropriately disproportionate to the gravity of what is being punished. 52 Before attempting a final synthesis of the foregoing objective and subjective considerations, I should refer to the following matters:

[1] What I have said thus far has concentrated, for obvious reasons, upon the murder charged in the first count of the indictment. As previously noted, the crime charged in the second count is a common law misdemeanour. Very little of the available evidence deals in any particular way with that offence. I think that a sentence of imprisonment for a term actually to be served of 12 months would be appropriate. It would be correct, in my opinion, to order that such sentence be served concurrently with the sentence passed in connection with the murder. In compliance with section 45 of the Crimes (Sentencing Procedure) Act , I express the opinion that it would be convenient to impose the sentence of 12 months as a fixed term. To go through the motions of fixing a head sentence of 16 months and a non-parole period of 12 months seems to me to be needlessly artificial given the terms of the sentence to be imposed presently in connection with the murder.

[2] It was submitted strongly by the prisoner's solicitor that the prisoner is not, as the submission put the point, "a suitable vehicle for general deterrence" . I do not accept that submission. How that factor of general deterrence is to be recognised by the use of the prisoner's particular case is a matter requiring, of course, careful consideration. It is, however, my view that it is altogether correct in principle to use the prisoner's sentence as a means of signalling in a proper way, and both to dysfunctional teenagers and to those who exploit and manipulate them, that youthful dysfunction and disadvantage, however sad and regrettable, cannot be allowed to become a shelter of convenience from proper punishment for crimes of violence, and especially for the crime of murder.

[3] I accept that the available evidence does not indicate a need for any particularly severe personal deterrence. As I have said previously, I accept that the prisoner's prospects of rehabilitation are good. 53 Coming, now, to the synthesis of the whole of the foregoing matters, objective and subjective, I note two statements of principle, both of which are relevant in the present particular case. 54 In the recent High Court decision, Wong v The Queen (2001) 185 ALR 233, Gaudron, Gummow and Hayne JJ say in a joint judgment: " [74] …………….. (T)he reasons of the Court of Criminal Appeal suggest a mathematical approach to sentencing in which there are to be 'increment[s]' to, or decrements from a pre-determined range of sentences. That kind of approach, usually referred to as a 'two-stage approach' to sentencing not only is apt to give rise to error, it is an approach that departs from principle. It should not be adopted. [75] It departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say 'may be' quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an 'instinctive synthesis'. This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features. [76] In R v Thomson , Spigelman CJ reviewed the state of the authorities in Australia that deal with the 'two-stage' approach of arriving at a sentence, in which an 'objective' sentence is first determined and then 'adjusted' by some mathematical value given to one or more features of the case, such as a plea of guilty or assistance to authorities. As the reasons in Thomson reveal the weight of authority in the intermediate appellate courts of this country is clearly against adopting two-stage sentencing and favours the instinctive synthesis approach. In this court, McHugh and Hayne JJ, in dissenting opinions in AB v R expressed the view that the adoption of a two-stage approach to sentencing was wrong. Kirby J expressed a contrary view. We consider that it is wrong in principle. The nature of the error can be illustrated by the approach adopted by the Court of Criminal Appeal in these matters. Under that approach, the court takes, for example, the offender's place in the hierarchy and gives that a particular significance in fixing a sentence but gives the sentencer no guidance, whatever, about whether or how that is to have some effect on other elements which either are to be taken into account or may have already been taken into account in fixing the guideline range of sentences. To take another example, to 'discount' a sentence by a nominated amount, on account of a plea of guilty, ignores difficulties of the kind to which Gleeson CJ referred in R v Gallagher when he said that: "It must often be the case that an offender's conduct in pleading guilty, his expressions of contrition, his willingness to cooperate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical." So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform. [77] The core of the difficulty lies in the complexity of the sentencing task. A sentencing judge must take into account a wide variety of matters which concern the seriousness of the offence for which the offender stands to be sentenced and the personal history and circumstances of the offender. Very often there are competing and contradictory considerations. What may mitigate the seriousness of one offence may aggravate the seriousness of another. Yet from these the sentencing judge must distil an answer which reflects human behaviour in the time or monetary units of punishment" 55 In the High Court decision, Pearce v The Queen (1998) 194 CLR 610, McHugh, Hayne and Callinan JJ quoted with approval the following excerpts from a lecture entitled "The Courts and Criminal Punishments", which lecture was delivered in 1969 by Sir John Barry, a former Judge of the Supreme Court of Victoria: " (The Criminal Law) is a social instrument whose character is determined by its practical purposes and its practical limitations. It has to employ methods which are, in important respects, rough and ready, and in the nature of things it cannot take fully into account mere individual limitations and the philosophical considerations involved in the theory of moral, as distinct from legal, responsibility. It must be operated within society as a going concern. To achieve even a minimal degree of effectiveness, it should avoid excessive subtleties and refinements. It must be administered publicly in such a fashion that its activities can be understood by ordinary citizens and regarded by them as conforming with the community's generally accepted standards of what is fair and just. Thus it is a fundamental requirement of a sound legal system that it should reflect and correspond with the sensible ideas about right and wrong of the society it controls, and this requirement has an important influence on the way in which the judges discharge the function of imposing punishments upon persons convicted of crime." [194 CLR, 622, 623] 56 Applying these collected principles to the facts and circumstances, both objective and subjective, of this prisoner's particular case, I have come to the conclusion that a head sentence could not properly be set lower than 14 years. The normal statutory non-parole period entailed in such a sentence is 10-1/2 years. I have considered whether there are special circumstances such as would justify setting a shorter non-parole period. In my opinion there clearly are. The considerations which I noted at points 3, 5 and 7 in paragraph 51 are such special circumstances. They justify, in my opinion, a non-parole period of 9 years. 57 Thuc Ngoc Tran: For the crime of murder of which you stand convicted, you are sentenced to imprisonment for 14 years commencing on 5 October 2000 and expiring on 4 October 2014 . I set a non-parole period of 9 years commencing on 5 October 2000 and expiring on 4 October 2009. 58 For the crime of unlawful imprisonment of which you stand convicted, you are sentenced to imprisonment for a fixed term of 12 months, commencing on 5 October 2000 and expiring on 4 October 2001. 59 I direct the Registrar to communicate urgently to the Commissioner of Corrective Services that the Court recommends that, in so far as proper prisoner administration and discipline permit:

(1) the prisoner be classified as a matter of urgency;

(2) the prisoner be afforded every practicable opportunity to be in stable and continuing contact with his de facto wife, his infant daughter, and his former employers. 60 I order that all of the exhibits D1, D2, D3 and D4 be returned forthwith to the custody of the prisoner's solicitor, Mr. Jeffries, or his representative in Court this morning.

Last Modified: 05/07/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.