REGINA v TON

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADAMS J FRIDAY 3 NOVEMBER 2000 70075/99

1 HIS HONOUR: On 4 February 2000 the offender, Nhat Thang Ton, pleaded guilty to the charge of murdering John Lawrence Hammond on 25 April 1999 at Sydney. On both prosecution and defence cases, the relevant intent was to cause grievous bodily harm. Mr Hammond died as a result of two stab wounds to the left side of the chest, one of which damaged a major pulmonary vein. It is likely he died as a result of blood loss. The objective circumstances of the crime are very serious. 2 At about 8.55 pm on 25 April 1999, a Ms Kaskardi, a nineteen year old student, set out from her apartment in Elizabeth Street to meet with some friends at a restaurant in George Street. On the way, she withdrew some money from an automatic teller machine at a bank in Castlereagh Street, between Liverpool and Bathurst Streets. She placed the money in her wallet which she put in her handbag that hung from her shoulder by a strap. As she commenced to walk down Castlereagh Street towards Liverpool Street she felt her handbag being pulled off her shoulder from behind. She turned and saw two men, one of whom (Hung Duc Dang) was pulling her handbag with both his hands. The other man was the offender. Ms Kaskardi held onto the bag but the strap broke and she fell to the ground. The two men then ran off in Castlereagh Street towards Bathurst Street. Ms Kaskardi removed her shoes and gave chase, calling for help as she did so. 3 The two men ran in different directions. Ms Kaskardi followed Dang, who had her handbag. As she ran after him she noticed Mr Hammond, whom she did not know, take hold of the offender. Mr Hammond produced a cover for an official police notebook (which he had been given by a friend) and said he was a police officer. A struggle took place. The offender took a knife out of his pocket and stabbed Mr Hammond twice in the left side of his chest. I am satisfied beyond reasonable doubt that when he stabbed Mr Hammond, the offender mistakenly believed that he was a police officer. Mr Hammond let go and the offender fled. Some on-duty fire fighters nearby heard the commotion and emerged from the fire station to see the offender fleeing and Mr Hammond clutching his side and calling for help. First aid was immediately given and an ambulance called but, a little time after he was taken to hospital, Mr Hammond died. 4 Apparently the offender and Dang had agreed to meet at an amusement establishment in Liverpool Street in the event that they were separated during the evening. The offender made his way there and met an acquaintance from whom he borrowed a jumper to cover the blood on his clothing. Some high school students met him there and they got into conversation. They noticed that he seemed very depressed. He talked briefly about the events of that night saying, amongst other things - "I've never robbed a person before. I have robbed shops before but never a person." "It was my friend's idea to rob the ladies. I was just trying to protect my friend." "I can't believe out of all the people I stabbed a copper." "I don't think I injured him." "I couldn't find my friend. I betcha he's caught and it's all my fault." "I shouldn't have done it."

When asked "Well why did you?", he said something like, "I had the knife and [Dang] didn't". (As it happened, Dang did have a knife and also used it in an attempt to avoid apprehension.) 5 The offender left the establishment and returned to Dang's home at Lakemba where he was permitted to stay the night by Dang's flatmate. The offender seemed to be upset and told the flatmate and a friend of his who was also there that he had stabbed a police officer. He said - "Me and Hung were in the city and we wanted to get some money so we saw someone at the ATM and Hung snatched her purse and ran off with it and went across the street. I got nabbed by this person who said he was a police officer. He was undercover or off duty and he pulled out his badge and said he was a police officer. I panicked when I saw the badge and I swung at him."

(Mr Byrne SC for the offender submitted, in effect, that I should accept this account as true.) 6 The offender was asked, "Where did you stab him". He said, "In the chest, near the heart." He was asked, "Which side is the heart?" and he replied, "Oh shit, I think I did stab him in the heart". He added later, "I don't think I killed him, because I didn't stab him that far in". He said that anything could have happened to Dang. "We were supposed to meet at Snooker World. He could have got nabbed by a public hero like I did". (Though intended ironically, this was no more than the truth.) He was asked, in effect, whether the two of them were on drugs at the time and the offender replied, "No, we were straight". He said, "We go to city to look for money."

The next morning the offender said - "Last night (Dang) Hung and I went to the city and robbed somebody's handbag. Then Hung ran away and there was an undercover police [who] tried to hold me. And I stabbed him three times and...ran away." 7 At about 6.30 pm the offender eventually returned to his own home, where he lived with his parents and sisters, telling them that he had been to a friend's house for a party. On the following morning, police arrived and arrested him. 8 I consider that the admissions, made shortly after the offence and on the following morning were the product of feelings of shock, guilt, fear and remorse. Regrettably, however, they did not lead the offender to be candid either with his parents or the police. 9 In a lengthy interview, the offender denied having been with Dang on the day in question and having been present at any robbery of a woman's handbag. He said that he had smoked marijuana during the day on a number of occasions. The police informed him that Dang had told them of his involvement in the crime but he responded that Dang was a liar. The police then showed him the murder weapon which had been found near the scene of Mr Hammond's stabbing. The offender denied that the knife was his or that he had ever seen or owned a knife like it. He was shown a number of items that had been taken from his home when he was arrested which were stained with blood. He said the blood was his. (Later DNA testing showed that this was the truth.) The offender was told about the statements which had been obtained from persons to whom he had spoken on the night of 25 April. He denied making any of the admissions attributed to him and suggested, in respect of one informant, that he had lied to protect Dang. The offender pretended that there was a person, whom he declined to name, who could provide an alibi for him. 10 Having regard to all the circumstances, I am satisfied that the offender's lies to the police were the result, certainly, of a desperate desire to escape punishment, but also of deep shame, and the inability to disclose to his family and accept for himself that he had committed such an appalling crime. 11 In fact, the case against the offender was overwhelming because of the statements he had himself made on the night in question, some of which I have set out, and he was, in due course, charged with Mr Hammond's murder. 12 On the evening of his arrest, the offender was visited by members of his family but continued to deny his guilt. However, about a week later, whilst he was on remand awaiting committal proceedings, he confessed tearfully to his sister that he had, indeed, killed Mr Hammond. In due course, the offender was committed for trial and, when arraigned in this Court, as I have mentioned, pleaded guilty. 13 It appears that the offender had been a heroin addict for about three years but, at the time of the crime, was withdrawing. He had been prescribed a number of drugs for the purpose of reducing the withdrawal symptoms. The Director of the Clinical Forensic Medicine Unit within the New South Wales police force, Dr Moynham, confirmed that these drugs were prescribed to assist heroin addicts when withdrawing from heroin abuse. He considered that one of the drugs, whether with or without heroin, could cause mood changes resulting in a "loss of self-restraint to the extent that a person may carry out actions which he would not carry out if these substances were not in his blood [and that]...withdrawal from a narcotic may also cause similar behaviour". I have been informed by counsel for the offender that, before the offender could be advised appropriately as to his plea, it was necessary to consider whether any defence arising out of this information was appropriate. In due course, as I take it, it appeared that no such defence was available and, accordingly, the offender pleaded guilty. 14 The offender was psychiatrically assessed by Dr Samir Benjamin, who considered that the offender had suffered from heroin dependence and poly-substance abuse for about three years but there was no evidence suggesting any psychotic or mood disorder or an intellectual handicap. Although the offender's parents came to know of his drug addiction and attempted to help him by arranging for him to enter detoxification programmes on a number of occasions, he did not successfully complete them. Some days before the offence he had commenced withdrawing again, with the support of his family. Withdrawal symptoms can be very painful and the offender lapsed on the day in question using cannabis and also, he claimed, heroin. Dr Benjamin thought it possible, however, that the offender's mental state may have been "somewhat compromised" because of the drugs which he ingested which, "could have diminished his ability to exercise control and act rationally resulting in irrational and aggressive behaviour". Dr Benjamin pointed to the well-known effects of higher levels of arousal, irritability and agitation associated with drug intoxication and withdrawal. 15 This material and the circumstances as a whole persuade me that the offender stabbed Mr Hammond as an impetuous and impulsive response to being apprehended and that he may not have done this had he been unaffected by drugs. Although his drug addiction does not reduce the offender's responsibility for committing this grave crime, it is relevant to weighing the prospects of rehabilitation, which must always be regarded as an important factor in sentencing any young person. 16 The offender is of Vietnamese descent but was born in Japan and is presently twenty-one years of age. The family migrated to Australia when the offender was two years old. His parents have worked hard to provide a good home for the offender and his three sisters. The offender did very well at high school until, at the age of seventeen, he became involved with a group of friends who, amongst other things, were experimenting with drugs. He told his father that he used heroin only occasionally at first and thought, if he did this, he would not become addicted. However, after six months he was addicted. His studies became adversely affected, he truanted from school. When he left school in year 12 he obtained some part-time, unskilled work. When he was nineteen he started using cocaine as well as heroin. The cost of his habit was about $900 a day. He said he supported his habit by selling to others. He almost certainly stole from his family. I do not regard it as in any way reducing the offender's culpability, but this criminal behaviour is the inevitable result of the black market in drugs created by prohibition. There is no doubt that, when his parents became aware of his drug problem at the end of 1998, they did everything that they could to help him to quit, but to no avail. Although the offender has caused his parents and his sisters enormous anguish and great shame, they have been regularly visiting him in gaol whilst he is on remand and I have no doubt that their continued support for him will be a very material factor in his eventual rehabilitation. 17 The offender told the Probation and Parole officer that at the time of the offence he was under the influence of drugs but added without prompting, "I don't want people to see me blame the drugs for the offence". I...[am] responsible for this and I have to accept the punishment that goes with it. No matter what I do, this man's life cannot come back". 18 I should say something about the deceased. Mr Hammond had served in the Royal Australian Navy for some years, including active service in the Persian Gulf during the Gulf War. During his career he received two Captain's Commendations, the first for "selflessly giving of his own time to assist a community in need" during the Newcastle earthquake emergency and in fighting bushfires as a volunteer and the second, from the commanding officer of HMAS Canberra, which commended him for his "outstanding professionalism, efficiency and loyalty..." An act of instinctive, selfless courage led to his death. He leaves a widow and a two-year old daughter. His parents have lost their son. The intense grief of his family has been expressed eloquently in the Victims' Impact Statements that have been placed before the Court. 19 As the offender's own sister said to him at the time he confessed his guilt to her in prison: "A good man has been murdered. His wife is without a husband and his daughter is without a father". Those stark words sum up an immeasurable grief and pain and anger, not only for Mr Hammond's family but also for that of the offender. The purpose of these proceedings is, fundamentally, to apply the criminal law to the measurement of punishment to offenders. So far as is possible that process must be objective and dispassionate. But it is nonetheless appropriate that I should acknowledge the dreadful loss that John Hammond's death has caused to his family and, indeed, to the wider community. 20 As I have said in other cases, however, by permitting Victim Impact Statements to be received in a hearing such as this, the law does not thereby place them to be weighed in the scales of justice. I respectfully agree with and adopt the careful reasoning of the Chief Judge at Common Law in R v Previtera (1997) A Crim R 76 at 85 ff as to why this must be so. The loss of a life is the gravest injury known to the criminal law. Accordingly, it is not made any more serious because the victim's death is the cause of pain or grief to others, however intensely felt. It would significantly undermine the moral standards essential to the rule of law if the life of one person were to be regarded as more or less valuable than the life of another or the killing of one person as more grievous than the killing of another, because of their personal or social circumstances. All right-thinking people would accept that it would be completely wrong to take one day from an otherwise appropriate sentence for an offence which resulted in death because the deceased was selfish, obnoxious, cowardly and without friends or family to grieve for him or her. By exact parity of reasoning, it cannot be right to add a day to an otherwise appropriate sentence because the deceased was generous, brave, loved and surrounded by friends and family. If this were not so, counsel for an offender whose actions caused the death might rationally submit that, as the deceased was of the former character, the crime was less grave and the sentence should be more lenient and the Crown prosecutor, by referring to a grieving family, submit the contrary. The virtues or vices of the deceased, the extent of his or her social connections and whether the death caused grief or was simply unnoticed by the indifference of the uninvolved, would then become the subject of evidence and argument. The law will neither value a life nor punish a death by such a demeaning process. Moreover, the worth that the law ascribes to the life which has been lost is a reflection of that same sense of reason and humanity which requires valuing also the lives of the persons who come to be sentenced. 21 In Veen v The Queen (No 2) (1988) 164 CLR 465, per Mason CJ, Brennan, Dawson and Toohey JJ said (at 476) - "...sentencing is not a purely logical exercise and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions..." 22 In dealing with offenders, the Court, as I have said, must remain objective and dispassionate. All the relevant facts must be carefully weighed. The circumstances of the crime include not only the result but also the events which gave rise to it, the intentions of the perpetrators, their personal characteristics and attributes and the various explanations for their criminal behaviour. 23 The courts have long held, and it is the law, that prospects of rehabilitation and reform are especially important in respect of young offenders, not only for their own sake but also in the public interest. For this reason, the sentence should "[preserve] a proper opportunity and encouragement for rehabilitation": Wood CJ at CL, R v Hearne [1999] NSWSC 605 at 77. There is reason here for thinking that the offender's rehabilitation prospects are good. Although the significance of this factor diminishes the nearer the offender is to adulthood (Nguyen, unreported NSWCCA 14 April 1994) and when the offender conducts himself like an adult and commits a particularly serious crime (Tran, unreported [1999] NSWCCA 109), I consider it to be important in this case. 24 In R v Petroff (unreported, NSWSC 12 November 1991) Hunt J (as he then was) said, when dealing with a determination under s 13A of the Sentencing Act 1989 - "Capital punishment has been abolished and (except in extraordinary cases...) the law does not regard itself as permitting a slower and more painful death by locking away the murderer and throwing away the key. In addition to retribution - and, of course, deterrence - the purpose of punishment is also to reform the offender as far as possible..." 25 As Allen J said in R v Crump (unreported, NSWCCA, 30 May 1993) - "It is the common experience of judges who have had to consider section 13A applications to note the remarkable effect which imprisonment for a decade or more so often has upon young offenders - notwithstanding how brutally and callously they acted when they committed the crime or crimes. Time and again one wonders: 'how could this apparently well adjusted applicant be the person who committed such a crime?' Gone is the brashness. Gone is the bravado. Spent is the passion. Young offenders can change so much during a very long time in gaol as to present almost as an entirely different sort of person."

His Honour added (at 55) - "I appreciate that the legislation in its present form empowers the Supreme Court to throw away the key, to deny to the prisoner any prospect of ever again being free to live a normal life. But in a civilised country only the most extraordinary circumstances would justify that course being taken - and what was said in the Parliament when the legislation was being enacted evinces a recognition of that." 26 The considerations which moderate the meting out of punishment, whilst keeping at the forefront the policy objectives of sentencing are not applied primarily because of what is due to the offender but what is due to ourselves as a civilized and humane community. It is not so much because we respect the criminal but because we respect ourselves. 27 In most cases the intention to cause serious injury is somewhat less culpable than an intention to kill. I am satisfied that the likelihood of inflicting fatal injury did not, in the circumstances, occur to the offender. Even so, the intentional infliction of serious injury remains a very grave crime. The seriousness of this offence is aggravated by the fact that, not only was it committed to escape lawful apprehension but also the offender believed that his victim was a police officer. Moreover, the carriage of knives is not acceptable to the community and their use to inflict bodily harm or death inevitably involves criminality of a very high degree. 28 I attach some, but not much, significance to the fact that, as it happened, Mr Hammond was not a policeman, in light of the offender's belief that he was and that he stabbed him, not once but twice in order to escape apprehension. However, the most serious cases of this kind should be confined to the infliction of fatal violence on police, who are under a duty to enforce the law and apprehend offenders. 29 The offender pleaded guilty when he was first arraigned in this court long before any proposed trial. I consider that this was, practically speaking, the first opportunity for him to do so. In Siganto v The Queen (1998) 194 CLR 656, the Court said - "A person charged with a criminal offence is entitled to plead not guilty, and defend himself or herself, without thereby attracting the risk of the imposition of a penalty more serious than would otherwise have been imposed. On the other hand, a plea of guilty is ordinarily a matter to be taken into account in mitigation, first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case."

This principle has, in New South Wales, obtained legislative sanction. Section 22 of the Crimes (Sentencing Procedure) Act 1999 provides - "(1) In passing sentence for an offence on an offender who has pleaded guilty to the offence, a court must taken into account: (a) the fact that the offender has pleaded guilty, and (b) when the offender pleaded guilty or indicated an intention to plead guilty, and may accordingly impose a lesser penalty than it would otherwise have imposed. (2) When passing sentence on such an offender, a court that does not impose a lesser penalty under this section must indicate to the offender, a make a record of, its reasons for not doing so. (3) Subsection (2) does not limit any other requirement than a Court has, apart from that subsection, to record the reasons for its decisions. (4) The failure of a court to comply with this section does not invalidate any sentence imposed by the court." 30 As Hunt CJ at CL said in R v Winchester [1992] 58 A Crim R 345 at 350, the extent to which leniency in sentencing will be afforded because of the contrition demonstrated by a plea of guilty, "will depend to a large degree upon whether or not the plea resulted from a recognition of the inevitable". In this case, the offender's plea of guilty was, indeed, recognition of the inevitable but it was also motivated by his remorse and contrition. Moreover, it is clear that the strength of the Crown case arose, in substance, from the offender's own statements about the crime which were, in large part, the product of his feelings of remorse and guilt. 31 Although the offender had not pleaded guilty at the committal proceedings, which would have been the first opportunity for him to do so, Mr Byrne SC indicated that the reason for this was to permit an investigation to be undertaken of the possible effect of drugs on his state of mind at the relevant time. In the circumstances, this investigation was appropriate. 32 In R v Thomson; R v Houlton [2000] NSWCCA 309, the Court of Criminal Appeal considered, in a guideline judgment, the significance of a plea of guilty both as evidencing contrition and independently requiring recognition by way of reduction of sentence for what were said to be utilitarian considerations of public policy. The Chief Justice, with whom the other members of the Court agreed, said (after summarising the position in other jurisdictions) - "151 Although these practices, as variously expressed, are suggestive, they are of only limited assistance. This is particularly so if, as proposed, any identified range is limited to the utilitarian value of a plea. That utilitarian value will vary from time to time and from one criminal justice system to another. Obviously there are common elements but there are also differences. The task of this Court is to identify a discount range which is appropriate and which will serve the public interests sought to be attained in New South Wales from encouraging early pleas of guilty. 152 In my opinion, the appropriate range for a discount is from 10-25 percent. 153 The determination of where, within such a range, the discount should fall in a particular case is a matter for the discretion of the sentencing judge. 154 There are however two circumstances which will generally affect the appropriate level of discount in a particular case: (i) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial. (ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea. 155 The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, eg, on the date fixed for trial, unless there are particular benefits arising from the prospective length and complexity of the trial. 156 Rare cases involving exceptional complexity and trial duration may justify a higher discount. In some cases no discount is appropriate at all. In some cases the 'discount' will be reflected in a step down in the hierarchy of sentencing options." 33 Although, as his Honour added ([2000] NSWCCA 309 at [156] ), there are cases in which the protection of the public requires that a long sentence should not be reduced by reason of a plea, this is not one of them. 34 Here, although the plea was an early one, the extensive lies told by the offender to the police in denying his guilt, which were, in effect, not resiled from until his plea in this Court, militate against giving him the highest discount available under this head. Having regard to the plea of guilty, I have reduced the sentence that otherwise would have been imposed by 20%. This discount reflects utilitarian considerations alone. I have also taken into account, in dealing with all the subjective features of the case, the evidence to which I have already adverted of offender's substantial and genuine degree of remorse and contrition. However, it is not possible to isolate this particular feature of the case in any meaningful way for the purpose of ascribing to it a particular measure of mitigation. 35 I have departed from the statutory relationship between the sentence and the non- parole period having regard to the relative youth of the offender, the nature of the offence and its context, including, in particular, his drug addiction from a young age, and the need for a longer than usual period of supervision after release on parole. Of course, whether the offender is, in fact, released on parole will depend upon the view of the Parole Board that it is appropriate to do so, having regard to the considerations specified in the Crimes (Administration of Sentences) Act 1999. The sentence will date from 27 April 1999, when the offender was taken into custody. 36 Nhat Thang Ton, you are sentenced to a term of twenty-two years' imprisonment. I set a non-parole period of fourteen years. The earliest date upon which you will be eligible for release on parole is 26 April 2013. *************

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