Regina v V D N

Supreme Court of NSW|2004-05-21|Before: Whealy J, Mr P

CITATION : Regina v V D N [2004] NSWSC 426 HEARING DATE(S) : 09/02/04, 19/02/04, 26/03/04, 30/04/04 JUDGMENT DATE : 21 May 2004

JUDGMENT OF : Whealy J at 1 DECISION : In relation to the charge that you, being armed with an offensive weapon namely a knife, did in company with others, assault Mrs Lu with intent to rob her, you are convicted and sentenced to a fixed term of imprisonment for 15 months. The sentence is to commence on 4 December 2002 and will have expired on 3 March 2004. In relation to the charge of manslaughter you are convicted and I sentence you to a term of imprisonment of 6 years and 9 months. The sentence is to date from 4 December 2002. I set a non-parole period of 3 years commencing on 4 December 2002 and expiring on 3 December 2005. The offender will be eligible to be released to parole on 4 December 2005. I find that there are, within the meaning of s 19(3) of the Children's (Criminal Proceedings) Act 1987, special circumstances justifying the detention of the offender in a Detention Centre until the expiry of the non-parole period I have set, it being noted that the offender will turn 21 on 8 August 2005. I recommend that upon his release to parole the offender should receive continued counselling and rehabilitive treatment. This should relate especially to anger management, the control of alcohol and avoidance of drug abuse.

Children's (Criminal Proceedngs) Act 1987 Crimes Act 1900 NSW LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Sentencing Procedure Act Children's Detention Centre Act Children's Detention Centre Regulations R v O'Connor (2003) NSWSC 1041 R v Avakian (2003) NSWSC 1042 R v WKR (1993) 32 NSWLR 447, 459 and 465 Hill (1981) 3 A Crim R 397 at 402 R v McDonald (NSWCCA) 12 December 1995 CASES CITED : R v Dib (2003) NSWCCA 117 R v Newman, R v Simpson (2004) NSWCCA 102 R v McGuire (NSWCCA unreported 30 August 1995) R v Troja (NSWCCA unreported 16 July 1991) R v Bloomfield (1998) 44 NSWLR 734 at 738-739 Pearce v Regina (1998) 194 CLR 610 at 662 and 664 Johnson v The Queen 2004 HCA 15 PARTIES : Regina v V D N FILE NUMBER(S) : SC 70018/03 COUNSEL : Mr P Conlon SC Mr R Button SOLICITORS : State DDP NSW Legal Aid

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

1 HIS HONOUR: The trial of V D N ("the offender") commenced before me on 9 February 2004. On that day the offender was arraigned on an indictment that charged that, on 20 March 2002 at Canley Heights in the State of New South Wales he did murder Lu Khiem Lu ("the deceased"). The offender pleaded not guilty to murder but guilty to the alternative charge of manslaughter. The Crown accepted this plea in full satisfaction of the indictment. Evidence and submissions on sentence were taken on 19 February, 26 March and 30 April 2004. The matter was stood over until today for sentence. 2 I should add that on 30 April 2004, the offender was re-indicted. This was done to enable the inclusion of a second charge against the offender. This was a charge that on 20 March 2002, the offender, being armed with an offensive weapon, namely a knife, did in company with others assault Mrs Lu, the wife of the deceased, with intent to rob her. The offender repeated his plea of guilty to manslaughter. In addition, he pleaded guilty to the second charge. 3 In a moment I shall say something about the facts of the matter, but it is necessary for me to say at the outset, that although the offender was 17 years and 7 months old at the time of the offence, the principal charge to which he has pleaded guilty is a serious children's indictable offence and accordingly under s17 of the Children's (Criminal Proceedings) Act 1987, he must be dealt with according to law. 4 The maximum penalty for the crime of manslaughter is imprisonment for 25 years (s 24 Crimes Act 1900 NSW). Although the basis of manslaughter is agreed between the parties, that being on the basis of an unlawful and dangerous act, it will be necessary for me to state the facts that I have found in relation to the offence. In relation to the offence referred to in the second charge, it carries a maximum penalty of imprisonment for 20 years. (s 97(1) Crimes Act).

5 The facts relevant to both charges may be briefly summarised as follows. The deceased and his wife were leaving their grocery store on Canley Vale Road, Canley Heights at about 8.00pm on Wednesday 20 March 2002. They walked a short distance to their white van parked in Peel Street. The deceased was carrying approximately $4100, this being the store's takings for the day. 6 As the deceased was getting into the van, he was approached by the offender and two others. I am satisfied that these were Loc Dac Nguyen, ("Loc"), and Terry Chau ("Chau"). The latter is an indemnified witness who gave evidence before me in these proceedings. Two of the group, threatened the deceased and he in turn began to struggle with and resist them. 7 At the same time, before Mrs Lu could enter the van, she was grabbed by the third member of the group. She was pushed against the van in order to prevent her coming to her husband's aid. 8 The deceased was then stabbed a number of times, including a deep wound to the chest, which was ultimately fatal. One of the group then fired two shots into the tyre of the van on the rear passenger side. The three fled in a waiting Nissan sedan, driven by a fourth person, Han Hoai Huynh ("Tommy"). The robbery attempt however had been unsuccessful and the group left the scene of the crime empty handed. 9 Mr Lu died the following morning in Liverpool Hospital after undergoing emergency surgery. 10 Exhibit "A" - a summary of facts - provides a comprehensive statement as to what happened after the assailants fled the scene of the attack. First, it appears that a blood stained knife was thrown from the fleeing vehicle. It was retrieved by a civilian witness and the blood on it was later identified as having come from the deceased. Secondly, when the vehicle came near the location of the Canley Heights Hotel, it seems that two shots were fired from the vehicle towards a pedestrian, James Barnes, who was walking from the hotel at that time. Fortunately, the bullets missed Mr Barnes and struck a parked vehicle. Civilian witness statements indicated that these shots were fired by the driver of the car, Tommy. 11 Tommy and Loc were arrested and interviewed on 25 March 2002. This followed the execution of a search warrant at 16 Kingley Place, Canley Heights during the course of which a Beretta 9 millimetre hand gun was located together with a quantity of ammunition. Later ballistic tests linked that handgun to the shell casings and projectiles found near the scene of the stabbing and the hotel location in Canley Vale Road. Loc denied any knowledge of the murder and advanced an alibi in terms of his whereabouts on 20 March 2002. Telephone call charge records later obtained by police refute that assertion by Loc. A search warrant was executed at Loc's parents home at Gundaroo Street, Villawood on 27 July 2002. During the course of that search, police located a variety of Messner brand knives which were part of a set. Two knives were missing from the set, one apparently being identical in appearance to the knife retrieved near the murder scene. 12 The present offender was initially interviewed on 11 September 2002. At that time, he was living in a Rehab house at Randwick as part of a program pursuant to a Children's Drug Court order. He claimed that he had no memory of the period around 20 March 2002. Later, on 4 October 2002, the offender was arrested at Randwick, where he was still residing as part of the Court programme. He was taken to Maroubra Police Station where he declined to be interviewed and was then charged with murder. 13 It is common ground, for the purposes of this sentencing procedure, that the offender is to be sentenced on the general basis of manslaughter by an unlawful and dangerous act. The precise basis of this, it is agreed, is that the offender took part in an armed robbery with full knowledge that a knife was to be presented; that the presentment of the knife was an unlawful and dangerous act, and that it caused the death of the deceased. As the plea to the second charge acknowledges, the offender was also carrying a knife, although it was not he who stabbed the deceased. I am satisfied beyond reasonable doubt that the facts I have found establish that manslaughter on the agreed basis was committed by the offender. 14 The main point of argument, during submissions on sentence, was whether the offender was, as the Crown alleges, carrying a gun at the time of the robbery and whether it was he who fired two shots into the rear left hand tyre of the van before the three men fled. It is clear from the evidence of Mrs Lu that one of the group fired a gun on these two occasions. The issue is - can I be satisfied beyond reasonable doubt that it was the offender? This version of events was propounded by Terry Chau when he gave evidence before me. Chau stated that it was he who had grabbed Mrs Lu on the passenger side of the van while the offender and Loc were attacking the victim. Chau also stated that he later heard a shot and turned and saw the offender holding a gun pointed at the van's tyre. However, I found Chau to be a very unreliable witness. The offender's counsel, Mr Button, cross-examined him thoroughly and effectively; and Chau appeared to be quite confused and confusing in many of his answers given under cross-examination. In some minor respects, Mrs Lu's evidence supported the contention that it may have been the offender who fired the shots. In other respects, it did not. Given the anguish and trauma sustained by Mrs Lu on 20 March 2002, it is by no means surprising that her recall of the details was meagre. I am not satisfied beyond reasonable doubt that the offender was the person who fired the shots. That being so, both Counsel agreed that it is permissible for me to proceed with sentencing on the basis that the offender knew that weapons were held by the persons involved in the robbery attempt, and that a knife or knives would be presented during the course of the robbery. As it happened, a knife was in fact used to stab and kill the deceased. I am unable to be satisfied beyond reasonable doubt as to the complete details of the role the offender played in the robbery, except that I am perfectly satisfied that he was not the stabber. There is no doubt that one of the attackers assaulted and held Mrs Lu; and there is no doubt one of the attackers fired the shots. The offender by his plea admits he was the person who assaulted Mrs Lu and I am satisfied beyond reasonable doubt that this was the role he played.

The objective criminality of the manslaughter offence 15 The findings I have made do not, to any significant degree, impact upon the appropriate assessment of the level of criminality involved in the offender's role in relation to the manslaughter in which he was involved. Rather, had those circumstances involved a finding that it was the offender who fired the shots into the rear tyre of the van, that finding would have impacted upon the presence of an additional aggravating feature. Notwithstanding that I have found in the offender's favour in relation to this particular factual dispute, the level of criminality revealed by his participation and involvement points to criminality at a serious level. Mr Button accepts, for the purposes of his submissions, that this is so. The offender himself was armed with a knife. It is quite apparent that the person who stabbed the deceased was armed with a knife; and the third member of the group was in possession of a loaded revolver. At whatever precise moment this group of three young men decided to assault and rob Mr & Mrs Lu, they were, to the knowledge of each other, armed with weapons. They each knew that there was an intention to present those weapons, if necessary, during the robbery. As it turned out, senselessly and tragically, a knife was wielded during the fracas and Mr Lu was stabbed to death. These circumstances I have briefly recounted require that the offender's level of criminality, related to his involvement in the crime be assessed as serious. 16 These observations regarding the offender's level of criminality need to be tempered by a number of further considerations. First, the Crown has accepted the plea of guilty to manslaughter in full satisfaction of the indictment for murder. The summary of facts relied upon by the Crown demonstrate a situation where it is quite plain that one of the assailants deliberately and intentionally stabbed the deceased in circumstances where there existed an intention to kill or at least cause really serious physical harm. The conjuncture of these two matters necessarily lead to the conclusion, conceded as it was by the Crown, that the present offender was not the person who stabbed the deceased. Secondly, the offender does not come forward to be punished on the same basis as the person who in fact stabbed the deceased. The offender accepts by his plea that, as one of the assailants, he knew that one or more of the weapons being carried by the group would be presented for the purposes of the robbery. Further, the offender accepts by his plea that the overall consequence of the joint criminal enterprise was that the deceased did in fact die as a consequence of being stabbed with a knife presented by one of the assailants. Thirdly, in those circumstances, Mr Button has correctly described the offender as a principal in the second degree to manslaughter. In that sense, and having regard to the particular facts I have found in relation to his involvement in the offence, he was, to a degree, at a remove from the actual killing. 17 These propositions, as I have said, need to be stated so as to temper the remarks I have made regarding the offender's level of criminality in the manslaughter offence. This is a point that needs to be made and emphasised to enable legitimate community expectations to be appropriately addressed. On the facts I have found, it would seem that Loc was the person who stabbed the deceased. As I understand it, he is to face trial on a charge of murder. But whether the Crown will be able to prove beyond reasonable that it was he who stabbed the deceased; and whether the Crown can prove that he did so with the requisite intention so as to satisfy a jury that murder was committed, are not matters known to me. It may be the position that, in the end, no one will be brought to justice for the actual blow that ended the life of Mr Lu on 20 March 2002.

As disappointing as such a result may seem from the point of view of legitimate community expectations, especially in the case of an apparent murder, this is the reality that must and does from time to time confront both the Court and the community. Importantly, from the Court's point of view, it then becomes necessary to state that it is not the Court's role to punish this offender on the basis that it was he who stabbed the deceased, notwithstanding that he played a significant role in the events that led to the deceased's death. It would, in fact, be entirely contrary to proper principle to do so (see my remarks in R v O'Connor (2003) NSWSC 1041; R v Avakian (2003) NSWSC 1042).

Criminal History 18 I will now detail the offender's antecedents. The Crown has presented me with material described as the offender's criminal history. It is a relatively brief history. The offender who is now 19 years and nine months old has the following matters recorded; on 27 September 2001, he was sentenced to 18 months probation in the Campbelltown Children's Court for supplying a prohibited drug on an ongoing basis; on 14 April 2003 in the Bidura Children's Court, he was sentenced to two concurrent six month control orders. These related to two counts of supplying a prohibited drug and for having goods in custody. It appears these control orders were imposed following the offender's arrest and remand in custody in relation to the murder charge. Those events necessarily interrupted the rehabilitation program he was in the process of completing as part of his supervision by the Drug Court. Subjective circumstances 19 It is necessary now to give consideration to the offender's subjective circumstances. It is fair to say that, in the main, the offender's subjective case is a strong one. 20 The offender was born on 8 August 1984. He is the third of four children. The Nguyen family were, for a time, detained in a refugee camp in Hong Kong but migrated to Australia in August 1990. On the whole, they are a very close family. There was a period of time when the parents separated but, after a time, they put their differences aside and came together again. The other children have given no problems to their parents. The eldest son is Kam Van Nguyen. He gave evidence in the proceedings. He is 28 years of age and runs his own business called Kam Tiling. Initially, he said, the family lived with relatives and later obtained accommodation at Cabramatta. They then moved to Adelaide and worked on a farm for a time but returned to Sydney and eventually bought a house in the suburb of Hebersham. 21 The offender's schooling was relatively uneventful and he successfully completed Year 10 at Miller Technical High. It appears that he started to "go off the rails" shortly before this time. For whatever reason, he started to become difficult at school and it appears that he may have begun experimenting with drugs and mixing in bad company. Shortly before he turned 16, in July 1999, the offender became seriously ill and was diagnosed with acute myeloid leukaemia. This was a serious life threatening malignancy. The offender underwent intensive chemotherapy with multiple side effects and multiple admissions to hospital. The treatment finished, however, in January 2000. By then, the offender was in remission and he has remained so up until the present time. 22 It is clear that the offender's illness and its treatment had an impact upon him. They appear to have operated as a significant catalyst for a bout of anti-social behaviour on the offender's part. Ms Danielle Castles provided the Court with a psychosocial report. In this document (part of Exhibit 1) Ms Castles suggested that the offender may have suffered from a bout of post-traumatic stress disorder as a consequence of his illness and treatment. I have significant misgivings as to whether this has been established as a valid medical matter. Ms Castles did not give evidence before me. Nor, for that matter, did the offender. I do accept, however, as I have said, that the offender's illness and treatment operated, at a practical level, as a catalyst for a degree of depression, a lack of self-esteem and it clearly played a part in his continued anti-social behaviour. Statements from his family indicated that there were significant changes in his behaviour after the completion of his treatment for leukaemia. He manifested anger, dysfunctionality and lost interest in his studies and further education. 23 Within a short time, these problems had further manifested themselves in drug abuse, alcohol abuse and mixing in bad company. The offender absented himself from home on a number of occasions and obviously gave great distress to his parents and siblings. It is clear that he was well on the way to becoming, as common parlance puts it, a street child. 24 The timely intervention of probation orders from the Children's Court and his subsequent appearance in the Drug Court recalled the offender, however, into a remedial position. Anh Nguyen, a street worker with the Open Family Australia Streetwork Program, provided a report to the Court. This demonstrated that the offender came under intensive support for rehabilitation purposes during 2002. As noted earlier, the offender was in fact in a rehabilitation centre at Randwick when he was arrested and charged with the offence before the Court. According to Anh Nguyen, the offender was very well behaved during the time he was with the Youth Drug Court and was on the point of completing his rehabilitation at the Ted Noffs Foundation Rehabilitation Centre at Randwick at the time of his arrest. 25 The offender was then transferred to the Kariong Juvenile Centre in October 2002. He has been there since that time - bail refused. The control orders imposed by the Bidura Children's Court on 14 April 2003 operated for six months from 14 April 2003. They were, in effect, superimposed on his remand situation. 26 In general terms, the offender has done well in the Juvenile Justice centre. Pastor Martin Parish provided a report dated 18 April 2004. He is a departmental chaplain visiting Kariong on an average of three times a week. Pastor Parish confirmed that the offender has actively sought counselling from the centre's professional staff and has participated successfully in both group and individual work. He confirmed that the offender has shown remorse for the victim and the victim's family. His behaviour at the Kariong Detention Centre has, in the main, been exemplary. He has undertaken courses to combat his drug and alcohol issues and his urine tests have shown no signs of any substances. He has developed a deeper religious awareness and in particular has pursued the discipline of Islam in his religious quest. 27 One matter which has clearly played a significant part both in the offender's decision to plead guilty to the present charges, and in his general path to rehabilitation, is the fact that his mother, Mrs Tuyen Thi Le was diagnosed in 2003 as suffering with lung carcinoma. This has now spread to various parts of her body, particularly the heart. Mrs Le has undergone extensive chemotherapy and radiotherapy but unfortunately, it is quite apparent that she is on the verge of leaving this life. This tragic circumstance has clearly had an impact on the entire family. It is undoubtedly, as I have indicated earlier, a significant factor which has played its part in the offender's decision to plead guilty in relation to the present charges. 28 Finally, I should mention that there is also a pre-sentence report from the Department of Juvenile Justice. This report is under the hand of Rebecca Cowper, a Juvenile Justice officer and is endorsed by Mr La Spina, the manager of the Fairfield Juvenile Justice Community Service. The report is of the appropriate nature so as to comply with s 25 of the Children's (Criminal Proceedings) Act 1987 and the relevant regulations. The report, it must be said, is generally expressed in the most positive of terms. For example, it confirms the offender's successful participation in programs available at the Kariong Detention Centre and also speaks well of his progress in his studies through the George Walpole Anderson School at the centre. On page 3 the following appears: - "All reports from staff at Kariong Juvenile Justice Centre are positive. Mr Foster, Dien's school principal stated that Dien always does what he is supposed to and is never disruptive. Mr Coombes, Dien's key worker, confirmed this as reflective of Dien's behaviour within the centre generally. Mr Coombes further states considering the distress Dien has been under while waiting for his trial and the poor health of his mother, Dien is one of the best young people he has ever worked with." 29 Notwithstanding the generally positive nature of the material in support of the offender's subjective case, there are a number of matters that require comment and resolution. First, in Ms Castles' report there are indications that, on occasions, the offender displays some anger and irritation. There is no need for me to provide the details but the fact that the offender is not, in my view, at this stage fully rehabilitated is a matter to be taken into account. On the other hand, it is easy to understand that the situation in which the offender finds himself, particularly his lack of education, the spectra of his own illness reoccurring and the prospect of his mother's death are matters that would necessarily trouble him. Secondly, throughout the material there are indications that throw some doubt on the presence and extent of the aspect of the offender's sense of remorse and contrition. For example, in the pre-sentence report there is a statement at the foot of page 3: - "Dien presents himself as a quite young man who is friendly and easy to converse with during the assessment process. Of concern though is that Dien continues to refuse to accept responsibility for his actions with regard to this offence, and stated that he pleaded guilty in order to be sentenced so that he will be eligible for leave sooner, and will therefore be able to spend time at home with his sick mother." 30 In the report from Anh Nguyen, there is a statement in the remarks on conclusion in the following terms: - "When visiting Dien at the Kariong Detention Centre, Dien has shown remorse for the trouble that he has caused his family for the past few years (he never ever mentions to me about his involvement in the death of Mr Lu especially at this time when he knows that his mother has cancer). Dien wants the case to conclude so that he can change his life and make his mother happier." 31 These remarks raise an issue as to the presence of remorse and contrition. On the other hand there is an explicit statement made in the Castles' report on page 6 where the offender told the author of the report - "I'm sorry. I was stupid and I was young. I feel sorry for the kids missing their father, the wife missing her husband. I'd do anything I could to bring him back but there's nothing I can do. I did the wrong thing. I put a man's life at risk." 32 There is also an important statement in Pastor Parish's report. At page 2, the following appears: - "Van Dien has spent many an hour with me and or with our other chaplains and regular religious visitors, expressing grief shock disbelief remorse and regret for the pain to others and a deep feeling of shame. His remorsefulness has led him to admit guilt as soon as it was appropriate. In my experience, Van Dien's expression of remorse is genuine. I believe that Van Dien is honestly making big changes in his lifestyle since coming to Kariong and wants to make amendments for the pain his crime has caused to the community and his family." 33 Finally, there is the matter of the offender's plea to both charges. So far as the manslaughter charge is concerned, it appears common ground between the Crown and Mr Button that shortly after a contested committal, the offender asked to see Mr Button and his instructing solicitor in conference at the Kariong Detention Centre. It appears that the offender was significantly motivated by a number of matters, particularly his mother's illness, to bring the matter of the outstanding charges to an end. He instructed his counsel and solicitor to negotiate for the acceptance of a plea of guilty to manslaughter. The process of this negotiation began towards the end of 2003 and culminated in the plea which was taken on the day appointed for the hearing of the trial. Similarly, the plea to the second charge was "bedded down" during this period even though the plea itself was not entered until 30 April 2004. 34 From all these matters, and in particular the last, I have formed a firm view that the offender has expressed genuine remorse and contrition for his offence. He did not give evidence before me but I think I can safely act upon the broad range of statements in the material to which I have made reference. To the extent that there is some contradiction in those statements, or at least a limitation on the effect of expressions of remorse, I do not think that they should detract from the overall findings I have made. I am reinforced in this view by the remorse demonstrated by the guilty pleas and the circumstances in which the offender gave instructions for those pleas to be negotiated. It is not necessary to provide any further detail but I should also add that the Crown case against the offender, particularly in the light of the unreliable evidence of Mr Chau - an aspect of his evidence which apparently appeared quite clearly at committal - was by no means a strong one. This further reinforces the presence of genuine remorse evident in the pleas entered by this offender to both charges. 35 In relation to the offender's rehabilitation, I have reached a firm conclusion that he has used his time well in detention. The availability of the programs at Kariong and the prospects of furtherance of his educational working skills is plainly for his benefit. It is fair, I think, to say that the offender has a further distance to travel on the road to rehabilitation but it is clear that he is doing his best and succeeding to a reasonable level.

The Sentence to be imposed - General Principles 36 I turn now to consider the relevant factors to be taken into account in the selection of an appropriate sentence to be imposed on the offender. The starting point is the recognition that, so far as the offence of manslaughter is concerned, the offender comes before the Court to be dealt with according to law, notwithstanding that he was under 18 at the time of the commission of the offence. Secondly, there is the need to determine whether, so far as the second offence is concerned, the offender should be dealt with according to law. In my view, he should. It is necessary in that regard to refer to s 18 of the Children (Criminal Proceedings) Act 1987 and to the principles applicable to the circumstances where a court exercises criminal jurisdiction with respect to children (see s 6 of the Act). The nature of the second offence is that it must be regarded as a serious adult crime committed in circumstances which allow little doubt of the personal responsibility of the offender in all the circumstances. There is, as well, his age at the time of the commission of the offence and the circumstances surrounding the decision to take part in the assault and attempted robbery. (R v WKR (1993) 32 NSWLR 447 at 459 and 465). 37 The third important matter of general principle is the recognition that the offence of manslaughter is a particularly serious crime since it involves the taking of a human life, the protection of which is the primary objective of the criminal justice system (Hill (1981) 3 A Crim R 397 at 402; R v McDonald (NSWCCA) 12 December 1995). Fourthly, it is necessary to have regard to the purposes of sentencing set out in s 3A of Crimes (Sentencing Procedure) Act 1999 and, to the extent it is possible in this matter, to the principles relating to the exercise of criminal jurisdiction set out in s 6 of the Children (Criminal Proceedings) Act 1987. Fifthly, it is necessary to consider the matters set out in s 21A of the Sentencing Procedure Act, both as to aggravating and mitigating factors. 38 There are, it is conceded a number of aggravating factors. The offence involved the actual use of violence. It involved the actual use of a weapon and weapons were carried by all the assailants. The offence was committed in company and on a public street. The offender, at the time of the offences, was on probation in relation to the supply of a prohibited drug. 39 There are, however, a number of mitigating factors. I am satisfied that the offence was not, in a real sense, part of a planned or organised criminal activity. True it is, a decision was made to go out and rob but the entire project was rather haphazard and, as has been observed, the robbery failed and the assailants fled empty handed. Secondly, although the offender has a brief list of criminal antecedents, they are not offences of violence and, but for this brief spate of anti-social behaviour in 2001-2002, the offender was otherwise a person of good character. Thirdly, subject to the caution I have earlier expressed, I consider that the offender has good prospects of rehabilitation, although whether my cautious optimism will be justified is a matter unknown to me at the present time. 40 On the issue of rehabilitation, it is necessary for me to say that, when released from custody, the offender will be confronted with the difficult task of recovering his self esteem and good standing in the community. He will need to abstain from the abuse of alcohol and drugs and avoid the company of those persons who have brought him to his present unfortunate state. He will need to reunite with and be fortified by his family. He will need to earn once more the respect of his father and siblings and, if it happens that his mother passes away while he is in custody, he will need to respect her memory and justify her expectations of him. Only with these objectives clearly in his mind will the offender succeed on the path to full rehabilitation. 41 It is next necessary to take account of the offender's remorse and the fact of his pleas of guilty. In this regard, Mr Button has argued that, although the plea was not entered at the earliest possible time, it is appropriately to be regarded as a relatively early plea. Mr Button places reliance upon the circumstances outlined in the earlier part of these remarks on sentence. The Crown does not dispute the propositions advanced by Mr Button and I accept them. Although the plea in relation to the principal offence was not made until the morning of the first day of the trial, it is clear that it was set in train at a much earlier point of time. I have little doubt that the parties knew well in advance of the trial date that a plea would be entered. It is important to note however, the qualification recognised in Mr Button's submissions. That qualification requires recognition of the fact that this was not, in truth, a plea made at the first reasonable opportunity. In that sense, it does not qualify for a full discount. Moreover, even where a plea is offered at the first reasonable opportunity, this does not mean that automatically a full discount for the plea should be given (R v Dib (2003) NSWCCA 117). Nevertheless, the offender is entitled to a reasonable discount for the plea of guilty (s 22 of Crimes (Sentencing Procedure) Act 1999). The discount is to reflect the utilitarian value of the plea and the willingness it recognises on the offender's part to assist and facilitate the course of justice. In my view, in the circumstances of this case, a discount of 15% is appropriate in relation to the manslaughter plea.

The sentence to be imposed - specific considerations 42 In relation to the setting and structure of the sentences in the present matter, there are some specific matters that require discussion and determination. At the outset, I should say that I have come to a firm conclusion that no sentence other than imprisonment is appropriate in relation to each of the offences to which the offender has pleaded guilty. I have come to this conclusion notwithstanding the range of sentencing options which are set out both in the legislation and mentioned in the pre-sentence report provided to me by the Department of Juvenile Justice. The aspect of general deterrence looms large in the present matter and this is so notwithstanding the age of the offender at the time of the commission of the offence. Random decisions by groups of young men to assault and rob shopkeepers and other persons in the streets of Sydney, particularly when armed with offensive weapons, require sentences that denounce such conduct and act as a firm deterrent against the repetition of such behaviour. There is an even greater need for appropriate deterrent sentences where the presentment and use of knives in a criminal enterprise lead to the death of a victim as happened here. As the submissions advanced by Mr Conlon SC on behalf of the Crown make clear, the sentences to be imposed on this offender must give considerable weight to the need for deterrence in order to protect the community so far as the Courts can do. This need for deterrence is especially strong, as Mr Conlon submitted, in the context of the carrying and use of knives. I agree with those submissions in their entirety. 43 There are three remaining issues to be determined. They are these: first, the structure of the sentences to be imposed having regard to the time spent by the offender in custody to the present moment. Secondly, the structuring of the sentences so far as the relationship between the term of the sentence and the length of the non-parole period. This, in turn, requires a consideration of the question as to whether there should be a variation of the statutory proportion mentioned in s 44 of the Crimes (Sentencing Procedure) Act 1999 as it applied to offences committed prior to the 1 February 2003. Thirdly, depending on the outcome of those matters, there is the selection of the term of the sentence so as to carry into effect the appropriate objects of the sentencing process. 44 As to the first, Mr Button submitted that there were unusual features in the present matter that warrant consideration being given to a backdating of the sentence to the time when the offender was arrested and taken into custody. This, it will be recalled, occurred on 4 October 2002. Mr Button has conceded that six months of the time spent in custody is not referrable to this offence. Normally, it is appropriate that that period be eliminated from the backdating process. Mr Button has argued that there are two reasons why the six month period ought to be taken into account, either in whole or in part, notwithstanding that it would normally be ignored for that purpose. 45 The first reason arises from the situation of the offender in a Juvenile Detention Centre. Were it the fact that his detention occurred as a consequence of a control order alone there would have been available to the offender certain benefits that were denied to him because of his status as a person on remand, bail refused. The Children's Detention Centre Act and the Regulations allow for unescorted leave for purposes such as employment, ill-health of family members, education and any other acceptable purpose (this privilege however, is denied to a person on remand. See ss 23 and 24 of the Children's Detention Centre Act). The Regulations under the legislation, in addition, allow day leave after a certain time in detention; and also allow overnight leave after a further period. The offender's status in the present matter, as a consequence of his remand situation, undoubtedly denied him those benefits. 46 Secondly, Mr Button has argued that, were it not for the fact that the offender was arrested on 4 October 2002, it was likely that he would have completed his rehabilitation successfully and would not have sustained the imposition of the control orders. In other words, the imposition of the control orders arose directly out of his status as a person on remand, following his arrest. 47 These remarks on sentence, are of course, not the place for an extended discourse on the legal issues relating to the backdating of the commencement of a sentence. The principles, however, may be succinctly stated as follows: -

(a) A sentencing court must take into account the period served in pre-sentence custody where that period is referrable to the offence for which sentence is being passed. (s 24(a) of the Crimes (Sentencing Procedure) Act and s 47(3)). These sections oblige the Court to take time served into account when determining the commencement date of a sentence.

(b) The time spent in pre-sentence custody is a matter to be considered appropriately in fixing the length of the non-parole period. In those cases where the sentence is backdated to a period before the sentence is imposed, the non-parole period will automatically be reduced by an amount equivalent to the reduction in the head sentence. This is because the non-parole period begins on the date when the head sentence commences.

(c) A difficulty may arise in cases where the pre-sentence custody did not continue unbroken to the date of sentence. In such a case, the Court is faced with two options: it can simply state that the pre-sentence custody is being taken into account and reduce the sentence accordingly; or it can backdate the sentence even though the offender was not actually in custody on the date when the sentence is deemed to have commenced. The latter option appears to be not only appropriate but, generally speaking, the favoured option. (See the reasons of Howie J in R v Newman , R v Simpson (2004) NSWCCA 102. McColl JA agreed with Howie J). 48 The application of these principles poses difficulties for the submissions made by Mr Button. It is fair to say that counsel acknowledged those difficulties. Mr Button suggested that at least part of the six month period should be taken into account in some appropriate way. I agree with this submission. 49 The starting point, however, is to acknowledge that the offender is plainly not entitled to have the sentence backdated to take account of the six month period during which the control orders operated. Such an approach would offend the principles I have stated. On the other hand, in the unusual circumstances revealed by Mr Button's first submission, there is no doubt that the offender's status on remand deprived him of a considerable number of benefits otherwise available to him as a person in detention pursuant to control orders. It is appropriate to give recognition to that fact and to either reflect it in the length of the sentence or, perhaps more significantly, the length of the non-parole period. In order to make the process more transparent, however, I think it may more adequately be taken into account in the present matter simply by selecting a figure that notionally represents an appropriate recognition of the situation and by backdating the sentence accordingly. For that reason, I propose to backdate this sentence to 4 December 2002. As I have said, it may be that there are other methods for recognising the force of Mr Button's first argument but I did not understand the Crown to seriously take issue if I were to adopt a method which explicitly recognised the difficulties faced by the offender during part of his period in custody when those difficulties would not have otherwise applied to him. 50 I am not however, satisfied that Mr Button's second submission requires a like response. Whether the offender would have completed his rehabilitation and whether he would have remained crime free prior to April 2003, is entirely a matter for speculation. While the submission has a surface attraction, I consider that, upon reflection, the conclusion suggested by Mr Button is simply not available on the evidence before me. 51 In relation to the second matter: the offender has made out a strong case for the establishment of special circumstances so as to vary the statutory proportion in relation to the length of the non-parole period. There is a clear need, so far as the offender is concerned, for a longer than usual period of probation. This arises from his youth, his apparently successful attempts so far to overcome his drug problems and the general need he has to further rehabilitate himself and resume his position as a useful member of society. 52 In the light of all the findings I have made, what then is an appropriate sentence to impose in relation to the manslaughter charge? I should say that I have taken into account the statistics provided to me by counsel. I have also examined in some detail the nine examples selected by Mr Button where manslaughter offences involving situations not dissimilar to the present have been dealt with by the Court. While I have regard to those examples, it is necessary to bear in mind that in the case of manslaughter especially, neither a consideration of statistical information nor an examination of results in other decided cases illuminates in any decisive manner the decision to be reached in a particular case. Sentences for manslaughter vary greatly because of variations in the circumstances of the individual instances of the offence (R v McGuire (NSWCCA unreported 30 August 1995); R v Troja (NSWCCA unreported 16 July 1991); R v Bloomfield (1998) 44 NSWLR 734 at 738-739). 53 In my view, an appropriate sentence to reflect the various considerations I have outlined is, prior to discount for plea, a sentence of eight years imprisonment in relation to the manslaughter charge. After allowing a 15% discount for the plea, the resultant head sentence is a term of imprisonment of six years and nine months. In setting a non-parole period, I will take into account the special circumstances that I have found to exist. For the reasons I have earlier stated the sentence will be backdated to 4 December 2002. 54 So far as the second charge is concerned, I have come to the conclusion that there should be imposed, after allowance for the guilty plea, a sentence for a fixed term of 15 months. There is no dispute in the present matter that the principles stated in Pearce v Regina (1998) 194 CLR 610 at 662, and 664 have application. These principles require, first, that where an offender comes to be sentenced for more than one offence, it is necessary that those aspects of common criminality in relation to the two offences require that the offender not be punished twice. In my view, the criminality involved in the second offence here is entirely subsumed within the criminality for the first. The offences occurred at the same time and were in fact part of the same common venture. Secondly, it is necessary that the sentencing court, having fixed an appropriate sentence for each offence, is required to consider questions of cumulation and concurrence, as well as questions of totality. (Johnson v The Queen 2004 HCA 15). While, in general terms, punishment for the second offence requires that the Court reflect the additional criminality in the commission of the offence against Mrs Lu, I consider that in all the circumstances of this matter the two sentences may be made entirely concurrent. I propose that the fixed term sentence will also commence on 4 December 2002. 55 Van Dien Nguyen, in relation to the charge that you, being armed with an offensive weapon namely a knife, did in company with others, assault Mrs Lu with intent to rob her, you are convicted and sentenced to a fixed term of imprisonment for 15 months. The sentence is to commence on 4 December 2002 and will have expired on 3 March 2004. 56 In relation to the charge of manslaughter you are convicted and I sentence you to a term of imprisonment of six years and nine months. The sentence is to date from 4 December 2002. I set a non-parole period of three years commencing on 4 December 2002 and expiring on 3 December 2005. The offender will be eligible to be released to parole on 3 December 2005. 57 I find that there are, within the meaning of s 19(3) of the Children's (Criminal Proceedings) Act 1987, special circumstances justifying the detention of the offender in a Detention Centre until the expiry of the non-parole period I have set, it being noted that the offender will turn 21 on 8 August 2005. The special circumstances are the vulnerability of the offender both personally and in relation to his rehabilitation. In relation to these matters, I have had regard to the body of subjective material tendered on the offender's behalf. It is clear that the offender's rehabilitation will be substantially enhanced by his continued detention in a Juvenile Detention centre. On the other hand, I considered that his rehabilitation will be positively handicapped by his being required to serve the balance of his non-parole period in an adult gaol, particularly having regard to the relative lack of rehabilitative programs available in the adult gaol when compared to those available in a Juvenile Detention centre. 58 I recommend that upon his release to parole the offender should receive continued counselling and rehabilitative treatment. This should relate especially to anger management, the control of alcohol and avoidance of drug abuse.

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