The Queen v Mazzaro [2015] VSC 528

2 I intend to sentence you to be imprisoned for six (6) years, and to fix a period of three (3) years before which you are not to be considered eligible for release on parole. It is necessary that I state my reasons for arriving at that sentence.

3 At the time of his death Hieu Van Nguyen was aged 18 years. He died as a result of a stab wound to the chest, inflicted by Nathanael Raimundo whilst you held him from behind.

4 Raimundo was the occupier of a house in Alfrieda Street, St. Albans. There was a party held at those premises from the evening of Friday, 10 May 2013, into the early hours of the next day. Considerable quantities of illicit drugs - cannabis, heroin and ice - were consumed at the party. Hieu Van Nguyen was present at various times from the Friday night into the Saturday morning.

5 Shortly after 5.00 am on Saturday, 11 May 2013, you, the deceased and a number of other people were present in the lounge room in various states of intoxication from a combination of drugs and alcohol. Mr Nguyen was sitting in front of a couch talking with Samir Mustafic and Alen Hodzic. You were standing nearby, when Raimundo came into the room in a state of anger. He approached Mr Nguyen - who was squatting - and kicked him. He then pushed Mr Nguyen onto his back. Raimundo then struck Mr Nguyen's head repeatedly with a large champagne bottle, calling him a 'fucking idiot'.

6 Raimundo then said to you, 'we are going to teach him a lesson - you hold him'. You then grabbed the hapless Mr Nguyen from behind and held him by the shoulders. Raimundo then approached the two of you and stabbed Mr Nguyen in the chest above the right nipple. You let go of him and he dropped to the floor.

7 Mr Nguyen asked you and Raimundo to take him to hospital. He said he would not tell anyone who had stabbed him. You ignored his pleading, however, and stripped him of his clothing. He was then placed on a chair while you and Raimundo cleaned up the blood. You then carried Mr Nguyen out of the house and put him into the back of a Honda vehicle that belonged to Raimundo's girlfriend. Raimundo got into the driver's seat and you got into the front passenger seat. You left the premises at about 5.23 am.

8 At 5.30 am, CCTV footage captured the vehicle turning left into Majorca Street. Raimundo stopped outside number 7 Majorca Street, south of the Emergency Department of the Sunshine Hospital which is located on the opposite side of the road. The back door of the vehicle was then opened and you and Raimundo pushed Mr Nguyen out of the car, leaving him naked on the nature strip. Raimundo then drove the car away. Mr Nguyen's body was found by an employee of the Sunshine Hospital at about 5.55 am. Quite clearly, your treatment of Mr Nguyen in his last moments was callous; and you deprived him of dignity in death. I was told by your counsel that your conduct was borne of panic. Nonetheless, your treatment of Mr Nguyen is to be deprecated.

9 Having returned briefly to the house in Alfrieda Street, you then drove the vehicle in which the deceased had been transported to your home in Keilor Lodge. You then parked the vehicle in your garage.

10 At 6.08 am, you called Yildrim Tahir, and asked Mr Tahir to come to your place straight away. When he arrived, you told him that Raimundo had stabbed the deceased. You explained that Raimundo had gone to look for heroin and noticed that it was gone. The deceased had been smoking heroin all night, but had only brought a little to the house, so Raimundo believed Mr Nguyen had stolen it. Raimundo said, 'we have to teach him a lesson', and told you to hold him. You held the deceased from behind and Raimundo came from the side and stabbed Mr Nguyen in the chest. You let go of the deceased and he fell to the floor. These events happened near the kitchen and the living room. The deceased kept saying he would not tell anyone. He was begging to be taken to the hospital but Raimundo told him to shut up. The two of you then grabbed the deceased, put him in the car in the back seat and the car drove to near the hospital with Raimundo driving. You looked for anyone outside, checked for cameras, opened the door and pushed the deceased out onto the road and then drove back.

11 Sometime after you had told Mr Tahir these things, a decision was made to destroy the car in which Mr Nguyen had been transported. The vehicle was burned by Tahir and others.

12 Mr Nguyen died as a result of the stab wound to his chest. The prosecution alleges that, at the time that he stabbed Mr Nguyen, Raimundo intended to kill him or to cause him really serious injury. At the time that he stabbed and killed Mr Nguyen, you were aiding and abetting Raimundo, by holding the deceased so that he could not move away. The Crown accepts, however, that you had neither the intention to kill nor to cause really serious injury to Mr Nguyen, so that you are guilty of manslaughter, not murder. I must sentence you accordingly.

13 The species of manslaughter to which you have pleaded guilty is manslaughter by unlawful and dangerous act. Specifically, it is said that you aided and abetted Raimundo's unlawful and dangerous act in inflicting the fatal stab wound to Mr Nguyen's chest, by holding Mr Nguyen around the shoulders. It might be said, as a result, that factually this is a somewhat unusual case. As a result, although I am bound to have regard to current sentencing practices - and do so, so far as I am able - the identification of current sentencing practices is somewhat vexed.

14 I received a victim impact statement from Mr Anh Thi Luu, Mr Nguyen's brother-in-law. He spoke of the devastating effect that Mr Nguyen's death has had upon his mother, his brother and his sister. It makes for sad reading. I take it into account as showing the significant impact of your offence on each of these victims.

15 I also received a number of documents tendered by your counsel in support of the plea made on your behalf. Thus I have read and - so far as it is legitimate to do so - taken into account references provided by your father and by Mr Michael Iskander. Moreover, I have had regard to a number of certificates which evidence your successful completion of a number of courses whilst incarcerated, including for anger and conflict management, and alcohol and drug treatment, and other useful 'life skill' courses. Several certificates relating to random urinalysis demonstrate that you have tested negative for drugs when tested. It thus seems that you have spent your time in custody productively, which is a cause for guarded optimism.

16 Mr Mazzaro, you were born on 18 September 1993. You were aged 19 years at the time of your offending, and are now aged 22. Your youth - both at the time that you offended, and now - is relevant to the sentence that I must impose. Rehabilitation is important, and, to some extent, the weight to be given to general deterrence is reduced. You are not, however, a first offender. There is no realistic sentencing alternative other than imprisonment,[1] but I intend to reflect your youth and prospects of rehabilitation both in the head sentence and in the non-parole period I impose. I do so being mindful of the potential polluting influences of imprisonment on a young offender.

17 You were born in Brazil, and came to this country with your family when aged 5 years. You are the only child of respectable parents. You attended Avondale Heights Primary School, and Essendon-Keilor Secondary College, where you completed Year 10. You completed a TAFE course in business administration, and worked in an administrative role for some six months. You have also held many casual positions as a labourer and in plumbing.

18 Despite your youth, you have two significant prior findings of guilt. On 10 October 2011 you were released on a youth supervision order on a charge of making a threat to kill and intentionally causing injury. More disturbing, however, is the fact that, on 2 May 2013 - less than two weeks before Mr Nguyen met his death - you were convicted of recklessly causing injury in the Magistrates' Court at Melbourne, and sentenced to a community correction order of 12 months' duration. You were subject to that order at the time you committed the offence of manslaughter. Of course, you are not to be again punished for your earlier offending. Those prior findings of guilt do, however, cast some light on your moral culpability for the present offence, your prospects of rehabilitation and your criminal propensities, and thus the need for the community to be protected. Furthermore, you are not entitled to the leniency that a first time offender in your situation would attract.[2] Specific deterrence is, in my view, of some importance given your criminal history. The sentence I impose must be such as to discourage you from further resort to unlawful violence, although, of course, in light of your youth and other mitigating features, I must not give this factor undue weight.

19 You were committed for trial on charges of murder and arson, but offered to plead guilty to manslaughter relatively soon thereafter. In the circumstances, I regard the plea as early. Moreover, your plea has a utilitarian benefit. Witnesses have been spared the ordeal of giving evidence, and the community has been spared the expense of a trial. Furthermore, although the evidence of it is thin, in my view your plea reflects a degree of remorse for your actions. I intend to ameliorate significantly the sentence that I would otherwise have passed because of your plea of guilty. As I have said more than once, people in your situation must be confident that a plea of guilty will result in a real and palpable 'discount'.

20 I have been informed that you are to be called to give evidence at the trial of Raimundo, but that you will likely be an unfavourable witness. Your failure to cooperate in this regard is not an aggravating feature, but constitutes the absence of a mitigating feature. But had you cooperated, by voluntarily giving evidence in the trial, I would have effected a further moderation of the sentence that I am to impose.

21 General deterrence must, as I have said, be sensibly moderated, although it remains an important consideration in the sentence I am to pass. There can be no doubt that I am bound to consider your youth and prospects of rehabilitation to be relevant, but they must to some extent be subjugated to general deterrence (and other considerations) given the seriousness of the offence.[3] I do not lose sight of the fact that your offence was constituted by grabbing the deceased and holding him, so that yours was not a protracted and vicious attack. Further, I do not lose sight of the fact that you would not have foreseen that death was a probable consequence of your actions. But as I have said, your offending occurred less than two weeks after you had been sentenced for recklessly causing injury. Your actions, in combination with those of Mr Raimundo, robbed Mr Nguyen of his life. Hence, although I must be careful not to give general deterrence too much weight because of your youth, it remains an important consideration, as does the need for just punishment and denunciation of your conduct.

22 As I have said, your prior findings of guilt bear on the leniency that might otherwise have been afforded to a first time offender, and bear on your prospects of rehabilitation. Despite your youth, it would be naively optimistic to regard those prospects as good. You are, however, not beyond reclamation. Labels are often unhelpful in the present discourse, but, at best, I would regard your prospects of rehabilitation as moderate.

23 I take your youth and prospects of rehabilitation into account in fixing the head sentence, and also in fixing the length of the non-parole period.

24 Mr Mazzaro, for the manslaughter of Hieu Van Nguyen, I sentence you to be imprisoned for six years, and I fix the period of three years as the period that you must serve before being considered eligible for release on parole.

25 I declare that the period of 586 days (not including this day) be reckoned as already served pursuant to this sentence.

26 Pursuant to s 6AAA of the Sentencing Act 1991, I declare that, but for your plea of guilty, I would have sentenced you to be imprisoned for nine (9) years, upon which I would have fixed a non-parole period of six (6) years.

[1] R v Mills [1998] 4 VR 235, 241; DPP v Lawrence [2004] VSCA 154; (2004) 10 VR 125, 132 [22].

[2] R v O'Brien and Gloster [1997] 2 VR 714.

[3] DPP v Lawrence [2004] VSCA 154; (2004) 10 VR 125.