Regina v Van Xuan Nguyen

Regina v Van Xuan Nguyen - [2005] NSWSC 600 - NSWSC 2005 case summary — Zoe

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The Offence 4 The following findings of fact are drawn from an Agreed Statement of Facts tendered by the Crown in the sentencing proceedings. 5 At about 4.30 pm on Tuesday, 27 February 2001, the deceased, Ngoc Quyen Nguyen (known as "Tony Nguyen") and a friend, Jung Wan Min, were walking in a westerly direction along the southern footpath of Illawarra Road in Marrickville, Sydney. 6 Another person (described herein as "the accomplice" or "the shooter") and the prisoner stopped Tony Nguyen to speak to him. Jung Wan Min then saw the deceased, Tony Nguyen, and the shooter involved in an altercation. They had grabbed each other. Tony Nguyen took two or three steps backwards in an effort to get away. Jung Wan Min saw a small black gun in the shooter's right hand. The shooter pointed the pistol at Tony Nguyen's chest and fired a number of shots. Tony Nguyen fell to the ground. Jung Wan Min tried to assist Tony Nguyen. 7 The shooter then shot Jung Wan Min in the arm, and he fell to the ground and took cover beneath a parked car. Jung Wan Min heard further shots fired. 8 A post-mortem examination concluded that Tony Nguyen died from multiple gunshot wounds to the chest and two which entered his back. After the shooting, Jung Wan Min was taken to the Royal Prince Alfred Hospital where he underwent surgery to his left arm and was later discharged. 9 The prisoner, who is not related to the deceased, Tony Nguyen, was in company with the shooter immediately before and at the time of the shootings. Immediately after the shootings, both the accomplice and the prisoner fled on foot down Illawarra Road, Marrickville. 10 Approximately a year or more before, Tony Nguyen and his friend, Khuya Van Lee ("Joey") were at the "Little Brothers" karaoke bar in Victoria Road, Marrickville. Jung Wan Min was outside sleeping in the car. Tony Nguyen and Joey were involved in an altercation with management at the karaoke bar. This altercation developed into a brawl with management and a number of others at the bar. Chairs and tables were thrown. Tony Nguyen was struck with the blunt side of a sword by Van Loi Nguyen. 11 These events sparked a feud between Van Loi Nguyen and his friends and family on the one hand, and the deceased, Tony Nguyen, on the other. 12 Tony Nguyen told his friend, David Tan, and others of at least five altercations between he and Van Loi Nguyen or other members of the "Little Brothers" family, including the prisoner, in the time between the first fight at the karaoke bar and his death. Tony Nguyen told family and friends that when he visited Marrickville, he had been chased by persons associated with the "Little Brothers" karaoke bar. 13 Approximately six months after the karaoke bar incident, Tony Nguyen saw Van Loi Nguyen at a restaurant, approached him from behind and struck him to the back of the head with a heavy blunt object. Van Loi Nguyen confirms this event stating that he nearly lost consciousness on that occasion. 14 At about 3.00 pm on Tuesday, 27 February 2001, Tony Nguyen and Jung Wan Min were at a pool hall on Illawarra Road, Marrickville. Tony Nguyen became involved in a heated exchange of words with a man later identified as the prisoner. 15 The deceased, Tony Nguyen, told Jung Wan Min that this man - the man involved in the heated exchange of words - was one of the men who had been chasing Tony Nguyen, as a result of Tony Nguyen having bashed one of the man's friends. After they left the club, the deceased and Jung Wan Min had something to eat and, by about 4.30 pm, were walking towards their cars just before the deceased was confronted by the prisoner and the shooter. 16 At about the same time, the prisoner and the shooter were observed talking together in a coffee shop situated a short distance south and across the road from where the shooting took place. Shortly before shots were heard, they left the coffee shop quickly together heading in the direction where the shooting occurred. 17 The prisoner was a former employee of the same "Little Brothers" karaoke bar. An eyewitness to the shooting later identified the prisoner by way of a video identification procedure. 18 On 22 July 2003, the prisoner was arrested and charged by police with murder and attempted murder in connection with this matter. At that time, the prisoner was in immigration detention at the Villawood Detention Centre. However, on 23 June 2003, a warrant had been issued by the Coroner's Court which had the effect of stopping his deportation to allow his arrest and charging with respect to this matter. Counsel agreed before me that the prisoner should be treated as being in custody for this offence from 23 June 2003 and that the sentence should date from that day. He has been held in custody in the New South Wales prison system continuously since 22 July 2003.

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Sentencing for Manslaughter 21 The maximum penalty prescribed for the offence of manslaughter is imprisonment for 25 years: s.24 Crimes Act 1900. The offence of manslaughter involves the unlawful taking of a human life, and as such it has long been recognised as one of the most dreadful crimes in the criminal calendar: R v Hill (1981) 3 A Crim R 397 at 402. In R v MacDonald (Court of Criminal Appeal, 12 December 1995, BC9501664), the Court (Gleeson CJ, Kirby P and Hunt CJ at CL) said at page 8: "Manslaughter involves the felonious taking of human life. This may involve a wide variety of circumstances, calling for a wide variety of penal consequences. Even so, unlawful homicide, whatever form it takes, has always been recognised by the law as a most serious crime. (See R v Hill (1981) 3 A Crim R 397 at 402.) The protection of human life and personal safety is a primary objective of the system of criminal justice. The value which the community places upon human life is reflected in its expectations of that system." 22 In R v Blacklidge (Court of Criminal Appeal, 12 December 1995, BC9501665), Gleeson CJ (Grove and Ireland JJ agreeing) said at page 4: "It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability." 23 The importance of denunciation in sentencing for manslaughter has been stressed: R v MacDonald, above, at page 9. Little assistance is to be gained by reference to sentencing statistics which encompass all forms of manslaughter, save so far as they disclose a broad range within which sentences have been passed since their compilation began: R v Mohamad Ali [2005] NSWSC 334 at paragraph 61. 24 A sentence for manslaughter must reflect the seriousness of unlawfully taking the life of another human being and it is not of great moment whether the killing is characterised as coming within any particular head of manslaughter. Rather, it is a question of what sentence is required to reflect the objective facts by way of retribution and denunciation, the subjective circumstances and, if necessary, deterrence: R v Walsh (2004) 142 A Crim R 140 at 149 (paragraph 40); R v Mohamad Ali, above, at paragraph 56.

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The Prisoner's Subjective Circumstances 26 The prisoner was born on 13 June 1977. He was 23 years old at the time of the offence and 28 years at the time of sentence. 27 The prisoner did not give evidence in the sentencing proceedings. Evidence concerning his subjective circumstances emerged almost entirely from the report of Mr Terry Smith, Clinical Psychologist, dated 22 May 2005 which was tendered in the prisoner's case. 28 The prisoner was born and raised in DaNag, a moderately sized city in Vietnam. He is one of three children, and the only son, in what is said to be an intact and functional family unit. His father worked as a labourer repairing ships at the local shipyard. The prisoner denied factors such as violence, alcohol or gambling in the family. He described the family dynamics in positive and nurturing terms. He denied suffering any adverse factors during his developmental years, such as significant injury, illness or trauma. 29 The prisoner told Mr Smith that his family placed much hope on him travelling to Australia, to perhaps gain residency and then to support his parents in their old age. His parents borrowed money for his transport and he was to gain employment here to support himself whilst studying. He travelled to Australia on 5 March 1998 on a one-year study visa provided with the support of the Vietnamese Government. It was his hope to complete a language course, gain residency, obtain employment and support his parents. He completed a course in English at Sydney TAFE. 30 He met a Vietnamese woman in Australia and they married later in 1998. The prisoner was granted a temporary visa. He and his wife separated in early 2001, but they have not formally divorced. There were no children of the marriage. 31 The prisoner continued to reside in Australia after the Department of Immigration refused his application for permanent residency in July or August 2001. The prisoner told Mr Smith that he lost his passport, did not know where or how to apply for a new one, and remained in Australia without a valid visa. He was regularly employed and supported himself. At the time of the offence, he was living in shared accommodation at Bankstown and was employed as a labourer with a company that removed asbestos from buildings. He asserted that he sent most of his wages to his parents to support them. 32 Mr Smith's report does not contain the prisoner's account of the offence or the background to its commission. Mr Smith does not assert that any mental disorder or condition affected the prisoner at the time of the offence. 33 There is nothing to suggest that the prisoner is in other than good physical health. Mr Smith's report indicates that the prisoner has been experiencing elevated mood problems in coping with high levels of anxiety and depression whilst in prison. I accept that this process is associated with his relative social isolation within the prison system. 34 The prisoner was placed in immigration detention at Villawood Detention Centre on 18 March 2003. He remained there until he was arrested and charged by police on 22 July 2003 after which time he has been detained in prison. 35 Upon his release at the expiration of the sentence to be imposed upon him for this offence, he will be deported from Australia and returned to Vietnam. It is his expectation that he will return to live with his parents and resume his former trade in jewellery making. 36 Whilst in prison in New South Wales, the prisoner has been employed and has undertaken a number of courses. He has been and remains employed as a textile worker at the Silverwater Metropolitan Remand and Reception Centre. He has undertaken English language studies including reading and writing and oral communication and a course in computer keyboarding. 37 The prisoner has a record for traffic offences only. On 9 April 2003, he was fined a total of $800.00 and disqualified from driving for six months for offences of unlicensed driving and possession of an article resembling an Australian Driver's Licence which was calculated to deceive. There is no evidence that the prisoner has a criminal record in Vietnam or elsewhere prior to his arrival in Australia in 1998 and I was informed by Mr Terracini SC that he had no such record.

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(d) any other matter which the Court is required or permitted to take into account under any Act or rule of law. 39 In approaching the use of aggravating factors contained in s.21A(2) of the Act, it is necessary to keep in mind the limitations upon the use of such factors: R v Martin [2005] NSWCCA 190 at paragraphs 38-39. The Court is not to have additional regard to any aggravating factor in sentencing if it is an element of the offence: s.21A(2). 40 During the course of submissions, my attention was drawn to a number of factors within s.21A(2): · s.21A(2)(c) - the offence involved the actual or threatened use of a weapon - it is the fact that the accomplice used a handgun to kill the deceased - however, I cannot be satisfied on the evidence before me that the prisoner knew that the accomplice possessed a handgun - in these circumstances, I do not have additional regard to the fact that a handgun was used as an aggravating factor against this prisoner; · s.21A(2)(e) - the offence was committed in company - it is the fact that two persons, the accomplice and the prisoner, were in the company of each other at the time that the offence was committed - however, the prisoner's plea of guilty was entered and accepted upon the basis that he was involved with the accomplice in an extended joint criminal enterprise and was present in aiding the accomplice at the time of the offence - I do not consider that I should have additional regard to this factor, in aggravation of sentence, in these circumstances; · s.21A(2)(i) - the offence was committed without regard for public safety - the confrontation between the accomplice and the prisoner (on the one hand) and the deceased (on the other), occurred in a busy street in Marrickville at 4.30 pm on a weekday - there were, and were likely to be, a number of people in the area of the confrontation - the prisoner's involvement in a public confrontation in this way may be said to have occurred without regard to the safety of the public in that busy suburban street - the actual use of the handgun by the accomplice was clearly an act committed without regard for public safety - however, given the basis upon which a plea has been entered by the prisoner and the way in which I am invited by the Crown and the defence to approach sentence, I do not consider that this aggravating factor can operate in a substantial way adversely to the prisoner; · s.21A(2)(n) - the offence was part of a planned or organised criminal activity - on the findings of fact which I have made (see paragraph 25 above), I consider that this is a significant aggravating factor in this case - this was a criminal activity planned by the prisoner which involved a further and public phase of an argument which he was having with the deceased, and which involved the prisoner being joined by the accomplice and confronting the deceased in a public street for a criminal purpose - it is, however, not open to me to find that the planned criminal activity extended beyond the extended joint criminal enterprise referred to in paragraph 19 above. 41 It was submitted by Mr Terracini SC, and accepted by the Crown, that the following mitigating factors under s.21A(3) ought be taken into account in determining the appropriate sentence in this case:

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The Prisoner's Plea of Guilty 44 Although the offence was committed on 27 February 2001, it was not until 23 June 2003 that a process was put in train by means of a warrant issued out of the Coroner's Court which, in effect, stayed the prisoner's deportation from Australia to allow him to be prosecuted for offences arising from the incident in Illawarra Road, Marrickville on 27 February 2001. On 23 July 2003, the prisoner was arrested and charged with murder and attempted murder. 45 On 20 November 2003, the prisoner appeared before the Central Local Court and was committed for trial to this Court. There were a number of appearances in this Court on and after 6 February 2004 with the prisoner being arraigned before Barr J on 2 July 2004. He pleaded not guilty to murder and attempted murder and was remanded for trial on 8 November 2004. In due course, a further trial date was fixed to proceed before Wood CJ at CL on 22 November 2004. On that day, the trial date was vacated upon the application of the then legal representatives for the co-accused, Thanh Vu Tran. The prisoner was ready to proceed to trial at that time and was represented by Mr Terracini SC. 46 On 3 December 2004, Barr J fixed 2 May 2005 as a date for commencement of the joint trial of the prisoner and Thanh Vu Tran. 47 On 21 April 2005, the matters were mentioned before me, as the proposed trial judge, and I was informed that the matters were ready to proceed to trial commencing on 2 May 2005. 48 On Friday, 29 April 2005, the prisoner indicated to the Crown through his Counsel, for the first time, a preparedness to plead guilty to manslaughter. Having considered this offer, the Crown indicated a willingness to accept a plea of guilty to manslaughter from the prisoner in satisfaction of the indictment. Mr Terracini SC confirmed that the prisoner, before 29 April 2005, had not acknowledged to the Crown that he was the person in the street with the accomplice on the date of the offence. 49 On Monday, 2 May 2005, being the date fixed for the commencement of his trial, the prisoner pleaded guilty to manslaughter and the Crown accepted the plea in satisfaction of the indictment. Thereafter, the trial of the co-accused, Thanh Vu Tran, commenced on 4 May 2005. 50 Mr Terracini SC submitted that, in these circumstances, a discount of sentence in the order of 25% ought be allowed in accordance with the principles in R v Thomson and Houlton (2000) 49 NSWLR 383. Mr Terracini SC submitted that, although the offer of the plea of manslaughter came on the eve of the trial before me, it was necessary to have regard to what was said to be the practical difficulty in negotiating such a plea at an earlier point. He also pointed to the practical difficulty of explaining to a non-English speaking client the concept of extended joint criminal enterprise and criminal liability for a homicide where the prisoner did not actually kill the deceased. 51 The Crown submitted that it would be wrong to allow a 25% discount in the circumstances of this case. The Crown submitted that it was open to the prisoner to offer a plea of guilty to manslaughter at a much earlier stage than the eve of the trial and that he did not do so. 52 In the circumstances of this case, I do not consider that a discount of 25% ought flow from the plea of guilty. It was open to the prisoner to approach the Crown to offer a plea of guilty to manslaughter at an earlier point than the eve of the trial. This is not a case where such a plea was offered at an earlier time, but rejected by the Crown, but later accepted. Rather, the offer of a plea to guilty of manslaughter was made for the first time on the eve of the second trial date, the first trial having not proceeded for reasons explained above. 53 Having regard to the utilitarian factors arising from R v Thomson and Houlton, above, I will allow a discount of 15% arising from the plea of guilty. Contrition and Remorse 54 Mr Terracini SC submitted that there was contrition and remorse on the prisoner's behalf in this case. 55 In assessing the prisoner's submission concerning contrition and remorse, it is appropriate to have regard to the strength of the Crown case against him. In this respect, there was strong identification evidence against him from a local shop proprietor (including video identification evidence) and from Jung Wan Min who identified the prisoner as the person who argued with the deceased at about 3.00 pm on 27 February 2001. I consider that the Crown case against the prisoner with respect to manslaughter was a strong one. The prisoner expressed remorse in his conversation with Mr Smith, which is referred to in the report. I was informed by Mr Terracini SC that the prisoner was not willing to give evidence in the trial of Thanh Vu Tran and he did not do so. In all the circumstances, the prisoner ought not be given any significant credit for contrition or remorse in this case.

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Special Circumstances 56 Mr Terracini SC submitted that a finding of "special circumstances" should be made in this case for the purposes of s.44(2) Crimes (Sentencing Procedure) Act 1999. In this regard, he relied upon the absence of any significant criminal record on the prisoner's part, his age and the comparative isolation in which he was serving his sentence. Reference was made to the report of Mr Smith, Clinical Psychologist, which emphasised the lack of social contact and visitors available to the prisoner in New South Wales. His former wife does not visit him. The prisoner has apparently not revealed his true custodial position to his relatives in Vietnam. Rather, he has told them that he is in immigration detention in Australia pending deportation. 57 The Crown accepted that the prisoner's isolation in an Australian prison was a factor relevant to a finding of "special circumstances". The more onerous nature of imprisonment in such circumstances has been held to constitute "special circumstances": R v Yu [2003] NSWSC 1153 at paragraphs 75, 81. 58 It is an established principle that the fact of deportation is irrelevant as a sentencing consideration, it being a matter exclusively for the Executive Government. Moreover, the High Court of Australia has held that a foreign national should receive the benefit of being eligible for release on parole: Shrestha v The Queen (1991) 173 CLR 48 at 71; R v Van Hong Pham [2005] NSWCCA 94 at paragraph 13. The fact that the prisoner will be deported from Australia is an immaterial factor in structuring a sentence in this case: R v Van Hong Pham, above, at paragraph 14. Where an offender would otherwise qualify for a finding of "special circumstances", a sentencing judge should not refrain from such a finding because it is believed likely that the offender may be deported at the end of the non-parole period and that supervision therefore would not be provided in Australia: R v Mirzaee [2004] NSWCCA 315 at paragraph 21. 59 I find "special circumstances" in this case by reference to the degree of isolation experienced by the prisoner within the New South Wales prison system.

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