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[2013] VSC 674
General information, not legal advice.
Supreme Court of Victoria
2013-12-11
KING J
Original judgment source is linked above.
Re-trial - Conviction, murder and attempted murder - Shooter acting under his direction - terrorise innocent victims over unrelated drug debt - criminal history of drugs and violence - previous sentence not appropriate after new trial.
Sentence: Murder 21 years, attempted murder 12 years, 3 years cumulative, 24 years total.
1 Dang Khoa Nguyen, you have been found guilty by a jury of the murder of Hieu Trung Luu, together with the attempted murder of Chau Nguyen, on 8 November 2004, the offences occurring at a housing commission flat located at 480 Lygon Street, Carlton.
2 The maximum penalty for murder is life imprisonment and the penalty applicable to attempted murder is 25 years.
3 You were born on 29 January 1970 in Saigon in Vietnam, coming to Australia as a 13 year old refugee. You are now 43 years of age. You were 34 years of age at the time you committed the offending and 37 years of age at the time you were originally convicted and sentenced for the offences of murder and attempted murder.
4 You have a number of prior convictions, commencing, when you were aged 18:
▪ July of 1988 at the Melbourne Magistrates' Court, aged 18, convicted of handling stolen goods and sentenced to pay a fine of $200.
▪ 27 March 1991, aged 21, convicted of being a person in a common gaming house and fined $50.
▪ 19 May of 1992, aged 22, convicted at the Prahran Magistrates' Court of possession of a regulated weapon, possession of a pistol or imitation pistol whilst unlicensed, possession of an unregistered firearm, being in possession of property suspected of being stolen or unlawfully obtained (2 counts), cultivation of a narcotic plant (cannabis), possession of a drug of dependence (cannabis), and use a drug of dependence (cannabis, and sentenced to pay a fine of $300 on Charges 1 to 3, a fine of $100 on Charges 4 and 5 and, without conviction, directed to pay a fine of $100 on Charges 6 to 8.
▪ 15 December 1994 in the County Court at Melbourne, aged 24, convicted of 15 counts of armed robbery, two counts of attempted armed robbery and two counts of causing injury intentionally or recklessly and sentenced to a period of six years on each of the armed robbery and attempted armed robbery charges, 12 months' imprisonment on the first charge of causing injury, six months' imprisonment on the second charge of causing injury, nine months of those charges to be served cumulatively making a total of six years and nine months with a non-parole period of four years.
▪ 6 May 1996 before the County Court at Melbourne, aged 26 convicted of possession of a drug of dependence and sentenced to be imprisoned for a period of three months to be served concurrently with the sentence you were then undergoing.
▪ 1 May 2001, aged 31, convicted of trafficking in a drug of dependence (heroin) possession of a drug of dependence (heroin) 2 charges, and possession of money being the proceeds of crime, 2 charges. You were sentenced to be released on an intensive correction order for a period of six months.
▪ 6 November 2003 at the Melbourne Magistrates' Court, aged 33, convicted of possession of a controlled weapon and failing to comply with a traffic control signal and sentenced to one month's imprisonment in respect of the charge of possession of a controlled weapon, and fined $200 on the traffic offence, the sentence on the first charge being wholly suspended for a period of 12 months.
▪ On 6 September 2004 at Melbourne Magistrates Court, aged 34, for possession of a drug of dependence, namely cannabis, and you were sentenced to pay a fine of $800 and also brought up for a breach of the suspended sentence imposed on 6 November 2003. The breach was found proved and no further order was made.
▪ Finally, you were before the Melbourne Magistrates' Court on 10 September for breach of the said suspended sentence. The breach was proved and the order was extended by a period of 12 months.
Accordingly, at the time that you committed this offence you were on a suspended sentence of imprisonment. That order having been extended on 10 September 2004, some two months prior to the commission of this offence.
5 The circumstances of this offending require the explanation of some background material with references to criminality with which you have not been charged and for which you will not be punished. It is relevant, and indeed necessary to examine and make determinations relating to that criminality to make an accurate assessment of your role in the murder and attempted murder of which you have been convicted. Your involvement in the trafficking of heroin, is not a matter for which you will be additionally punished.
6 What is not in dispute is that in November of 2004 you were in the business of trafficking heroin. It was a commercial enterprise that you ran as a proper business. You described, when giving your evidence, the process about delivering heroin to your customers when you said:
And in crossexamination[1] whilst discussing the arrangements made with Mau:
7 You had known the witness Mau Duong since 2002 but had lost contact with him for a period of time. You met up with him again in approximately October of 2004 at a restaurant called the Four Seasons in Victoria Street, Richmond. He asked if you would help him to traffick some heroin and you agreed to do that.
8 The arrangements were that you would supply Mau Duong with heroin on credit to enable him to on-sell the heroin and pay you for the heroin once he had completed his sales. You provided him with a telephone number for the purpose of ordering the heroin as required and making arrangements for the repayment of the heroin obtained on credit using that same telephone number. The first delivery of the heroin was arranged by Duong ringing the number you provided. He told you he was at a flat in Carlton when you asked, the flat being a housing commission flat at No. 480 Lygon Street, Carlton. You told him to wait there and somebody would go there, meet him and pass over the heroin. Mau Duong left the flat at about 7 to 7.30 and returned sometime later between 8 and 9. During that time the delivery of heroin had been made and left with an unknown person at the flat. Duong was subsequently informed that the person who had delivered it was a man named Bill.
9 The next occasion that Duong rang you was to ask for more heroin, informing you that he had the money to repay the first delivery of heroin. Accordingly you directed him to the Four Seasons Restaurant and told him wait outside with the money. Bill Ho, together with a girl named Linh, attended in a car and he met them outside the restaurant. He described Bill as having yellow hair, and there was no dispute in the trial that the Bill referred to was Bill Ho; a person previously convicted of the murder and attempted murder for which you stand to be sentenced. This was one or two weeks earlier. Bill asked for the money, the money was given to him, and the heroin handed over.
10 Mau Duong was also told by Bill that he would deal with him from now on rather than you. A further meeting took place between two to four days prior to the shooting. A phone call was made to you by Duong seeking a further delivery of heroin and again you told Duong to go to the restaurant to meet Bill to obtain the heroin. That transaction occurred and, accordingly, Duong was in possession of approximately an ounce of heroin for which he had not paid you at the time of the shooting. He had been in possession of that heroin for between two to four days. I am unable to say precisely how long.
11 The phone records indicate that there were 11 calls from Mau Duong to you on the phone number you gave him between 27 October 2004 and 4 November 2004. The Crown submitted to the jury that the heroin was purchased by Mau Duong on the Friday night prior to the shootings which occurred early in the morning of Monday 8 November, and whilst I cannot be satisfied with precision as to it being the Friday night, I am satisfied it was either the Thursday or Friday night prior to the murder that the delivery of the heroin occurred.
12 On Sunday 7 November 2004, you called Mau Duong between 10.30 and 10.45, one of those calls was answered by the girlfriend of Mau Duong who informed you that he was sleeping or not available to speak on the phone. More calls were made and no response. I am satisfied that you were the user of the mobile phone service and that it was you seeking to speak to Mau Duong.
13 On the evening of Sunday 7 November 2004, Bill Ho went to the housing commission flats in Elizabeth Street, Richmond where your brother Quang Nguyen lived. You were also at that flat. Ho arrived at around about 11.30pm, you gave evidence on oath during the trial that you were attending a party at the flats in Richmond and you provided an explanation of how you came to be at the flats in Carlton where these offences occurred. You told the jury that on the Sunday morning Bill Ho had been in touch with you to say he was going to the city to meet his girlfriend on Sunday night and on the way he would drop into Carlton to see if he could see Mau Duong, because Mau Duong's phone was switched off. You said you told him that if he was going to Carlton to drop by at Richmond and pick you up so that, if Mau had a problem you could assist him because he was your customer. You said concern about not being able to get in touch with Mau did not relate to protecting your heroin that had been given on credit, your concern was only to help Mau if he was in trouble.
14 In your evidence, you said that night there was a birthday party for a friend in the Richmond flats, and you, together with your brother, wife and many friends attended that party; about 20 of you. At about 8 o'clock that night Bill Ho called you and you told him to come to the party, and he arrived at about 11 o'clock. At the time he arrived you claimed you were very drunk because you had been drinking spirits, and you all left the party at around midnight because there were no more drinks and decided to go to the Casino. You said you dropped your wife and children at your brother's place and you, your brother and Ho all left to go to the casino. Bill Ho decided to call in at the flat in Carlton to see if Mau Duong was all right and you and your brother only happened to be there because you were on your way to the Casino.
15 In your evidence you described yourself[2] as:
'I was very, very drunk. My brother he's drunk too. At first I told my brother to sit in the car and wait, but he said if he sits there he will fall asleep so - yep and then he said he wanted to walk and I said yeah and so we go together'.
16 I do not accept that the evidence you gave on oath was truthful, reliable or accurate in relation to this issue of how you came to be at the premises, or your level of intoxication. In terms of how affected you say you were by alcohol, you have a very clear memory as to what you say occurred in the premises, about which people were where, who said what, exactly what were the actions of Bill Ho. You gave detail as to who opened the door, what was said, recalling the lighting, where you sat, what you sat upon, which I find inconsistent with your description of being 'very, very drunk'.
17 Your version as given by you to the jury was that you were so drunk you dozed off whilst sitting upright in the flat on a speaker, awakening occasionally when particular things happened, but then going back to sleep; claiming to awake and see your brother Quang swinging a sword around, walking up to him taking the sword from him, placing it in the kitchen, returning to your position on the speaker, and then closing your eyes again. You told the jury that you were unaware that Bill Ho had a gun or that your brother Quang had a sword, which they had brought with them to the flat in Carlton.
18 For the purposes of sentencing, I am satisfied beyond reasonable doubt, consistent with the verdict of this jury, that what occurred in the flat in Carlton was that you Bill Ho and your brother Quang arrived at the premises, knocked on the door and started asking for Mau Duong and if he was present in the flat. I am satisfied that the three of you went to the premises looking for Mau Duong, because you were concerned that he had absconded with your heroin without paying you. That concern had arisen as a result of Mau Duong not answering his telephone and then the telephone becoming unavailable, as in no response whatsoever when the number was called.
19 I am satisfied equally that Bill Ho worked for you in your heroin trafficking business. You dealt with customers over the telephone and it was Bill Ho who performed the more dangerous task of delivering the heroin to the individual customer and receiving the money from the customer and delivering it to you. I do not accept that you were equal partners in the business, and your behaviour on the night in the premises confirms the other material which indicates that you were the person in charge.
20 You all went into the premises. The loungeroom of the premises contained a number of people. There was a television which was working, a double bed, a large coffee table, and another table near the television containing stereo equipment. Next to it the television and some exercise equipment. Chau Nguyen who was then 19 years of age and who would be the victim of the attempted murder was lying asleep on the floor. He was working as a farm hand and was asleep, shortly due to wake up to go to work out in Kooweerup. He had been at work earlier that day. Kathleen Quach and Viet Tran were sitting on the floor looking at the television, Hieu Luu who was 21 years of age and who was the man who was ultimately murdered, together with Hung Nguyen, were lying on the double bed against which Ms Quach and Mr Tran were sitting at that time. Hieu Luu was also asleep.
21 After coming into the loungeroom, Bill Ho and Quang Nguyen repeatedly asked those present were Mau was, having already asked the person who let them in whilst still in the hallway. Quang Nguyen waved a sword around, swinging it in a quite threatening manner from side to side. It was described as being similar to a sword or machete about 60cm long. People were trying to move away from Quang Nguyen to avoid the sword. They were indeed very frightened and there was screaming going on. You were told that Mau Duong did not live at the premises and was not there. A phone number for Mau was provided, it was the same number that you had and people there were frantically trying to call Mau Duong, but not getting any response. You were sitting on a speaker at the end of the room observing what was going on. At one point you got up from where you were seated and approached your brother, pulling him away from the person that he was threatening. It was clear that the denials about the knowledge as to Mau Duong's whereabouts were not being accepted by Bill Ho or by you. Bill Ho produced a revolver and commenced to point it at various occupants in the room, spinning the barrel around whilst demanding they reveal the whereabouts of Mau Duong.
22 Chau Nguyen awoke from sleeping on the floor as a result of the commotion that was occurring and that he felt someone standing on him. I am unable to say precisely who it was who stood upon him, but when he awoke he saw a man holding a Japanese sword sitting on the bed close to the table, swinging the sword around. He saw you sitting on the speaker close to the television and he saw Bill Ho kneeling down on one leg. You he described as sitting down with your legs apart and laughing. He heard you say in English to the man who was kneeling opposite him 'fuck him off or get him off'. Bill Ho, the man who was kneeling down, took the gun he held in his hand and pointed it directly at Chau Nguyen, who was a short distance away. Bill Ho, then turned back and looked at you sitting on the speaker and asked you the question, 'that guy?' You then nodded your head, and the man kneeling down, Bill Ho, shot him. The question 'that guy' was asked at the same time as Bill Ho was directly pointing the gun at Chau Nguyen. I am satisfied, having heard the evidence of Chau Nguyen, that you did direct Bill Ho to shoot him. He was shot in the head at quite close range, and miraculously survived. The bullet entering his head, fracturing his skull and travelling around the skull under the skin and exiting at the rear and hitting the wall behind it. Chau Nguyen fell unconscious to the ground from the semi-raised position he had placed himself in upon waking. After that first shot at Chau, Hieu Luu, who had been asleep on the bed, had awoken and started to stand up. Bill Ho fired a second shot at Hieu Luu, it hit him in the head and he fell forward onto a coffee table. This is the shot that killed him. Your brother Quang went and checked his pulse, turned and stated he's dead. You, Ho and your brother Quang, had a brief discussion and then went to leave the flat. As you were leaving the flat, the occupants were told 'don't call the police or the ambulance'. The three of you went down the stairs from the 12th floor of the Carlton flats to avoid being caught on CCTV cameras.
23 Bill Ho's drove you all away from the premises, and back to the flats in Richmond. An ambulance was called at 12.59am. Both of the victims were transported to the Royal Melbourne Hospital; Mr Luu in a critical condition who died shortly after an operation, Chau Nguyen regained consciousness after you had left the premises and was later able to walk to an ambulance. However, he suffered a five centimetre full thickness gunshot wound to the head, and the bone in his skull was on view. He had a compound skull fracture and air had leaked into his brain through his cranial fissures. He was also operated upon and has a scar on his forehead as well as lumps under the skin. He was in hospital for some days and then in recovery subsequently. He is an incredibly fortunate young man in one respect and incredibly unfortunate in the other. Neither Chau Nguyen nor Hieu Luu had any involvement in heroin trafficking, they were not recipients of the drug, they were not - on the evidence before me - users of the drug, they were unfortunate young men who happened to be sharing an apartment in Carlton with a number of others. Clearly in some endeavour to save costs.
24 Chau Nguyen was a farm worker spending his early hours of the morning through to the day cutting asparagus at farms; a hard, tedious, poorly paid job, but one which he was obviously willing to do. I have no information about the employment of Hieu Luu but equally there is no suggestion that he was involved in heroin trafficking or distribution, he was just unfortunately asleep on a bed in a flat in Carlton. These offences are exceedingly high level examples of offences of murder and attempted murder. They are executions of entirely innocent young men who were asleep and had neither said nor done anything that could be seen as provoking, causing or in any way contributing to their death or injury.
25 I am satisfied that you were the head of a heroin trafficking organisation, dealing in one ounce lots who became concerned that one of the persons to whom you had advanced heroin on credit may have been about to default upon the repayment of that heroin.
26 I am satisfied that you, together with Bill Ho, who worked for you in your organisation, went with your brother, Quang, who, upon the material provided to Justice Coghlan and Justice Williams, on his pleas, could be described as somewhat simple-minded, went to the premises in Carlton expressly to find Mau Duong for the purpose of obtaining your money or restoring the heroin to your possession.
27 I am satisfied that on arrival there and being unable to find Mau Duong, you intended to demonstrate to Mau Duong and the others in the flat, who you assumed to be his friends, that this was a serious matter. This was to send a clear message to Mau Duong that you were not to be taken lightly or trifled with and that your direction to Bill Ho to 'fuck him off or get him off' was a direction to shoot Chau Nguyen with the intention of killing or really seriously injuring Chau Nguyen.
28 In terms of the shooting of Hieu Luu, there is no evidence that you took any particular action to direct Bill Ho to shoot him, but equally, you did not give any direction to Bill Ho to stop shooting or stop pointing the gun at anyone. I am satisfied that Bill Ho was acting under your direction, that he worked for you in your heroin trafficking business and this was not a frolic of his own, but an agreement that had been entered into prior to your attendance at the flat in Carlton. The agreement was to use violent means, if necessary, to recover the money or the heroin that was in the possession of Mau Duong, I am satisfied that when you told Bill Ho to fuck off Chau Nguyen, you were directing him pursuant to the agreement that you had entered into to use those violent means to kill Chau Nguyen, and as indicated you did nothing to say that the agreement was ended or that he must stop or not shoot anyone else. You remained in the position you occupied, sitting on top of the speaker, until after Hieu Luu had been shot and it was not until that point that you said that all of you should leave.
29 Whilst I am strongly of the view that you must have been aware of Bill Ho's possession of a gun and your brother's possession of a sword, the evidence is not sufficient to allow me to be satisfied beyond a reasonable doubt that you knew precisely what weapons each of those men carried into the flat. Whilst I am satisfied beyond a reasonable doubt that you were aware that weapons were being taken to the flat, I cannot be satisfied to the required standard that you were aware that one of the weapons was a firearm. I am satisfied that you were aware that Ho was in possession of a firearm when you told him to "fuck him off or get him off" referring to Chau.
30 The callousness and brutality of this offending is shocking.
31 Counsel appearing on your behalf relied upon the material presented before Justice Williams and the comments of Justice Williams in relation to the personal circumstances and her findings in respect of the offending. I will act upon her Honour's comment and findings in relation to your personal circumstances. I do not act upon her Honour's findings as to the circumstances of the offending as we have each had a trial unfold before us in which we sat as the trial judge. The evidence in each trial is undoubtedly different. For example, in the trial before her Honour Justice Williams, the then accused Bill Ho gave evidence on oath and you remained mute. In the trial proceeding before me, Bill Ho was not called as a witness, and you, gave evidence on oath on your own behalf, and accordingly the findings of fact that I make are based upon the material that I have heard in this proceeding, not upon the material that her Honour heard in the trial she conducted.
32 In relation to your personal circumstances, they are contained within paragraphs 32 to 60 of the sentencing remarks of Justice Williams of 17 December 2007.[3]
33 I will act upon the material referred to by her Honour as being an accurate personal history reflecting the circumstances in which you were raised and have spent your time in Australia.
34 In the plea before me it was submitted that upon your release from prison you intend to return to Vietnam and assist your mother with her business in that country, despite seeking clarification I have been unable to ascertain whether you will be resuming cohabitation with your wife and children or living predominantly in Vietnam.
35 It was also submitted by your counsel that at the time of this offending you had both an alcohol and drug problem, being alcohol, heroin and 'ice'. No material has been put forward to support this claim of drug and alcohol problems existing at the time of this offending, and it is also inconsistent with the submissions and findings of Williams J as to your personal circumstances at that time, specifically that you were not a heroin addict and there was no mention of the drug 'ice'. There was some mention of the use of alcohol, but her Honour found that the impact of any alcohol consumed that night was minimal. Accordingly, I do not accept that you had a drug or alcohol problem at the time of this offending.
36 In terms of the sentence imposed by Williams J at paragraphs 62 and 63 of the sentence, her Honour directed that you were to be imprisoned for 17 years for the murder of Mr Luu and to be imprisoned for 10 years in relation to the attempted murder of Mr Chau Nguyen. She directed that four years of the sentence on the attempted murder should be cumulated upon the sentence for murder, making a total effective sentence of 21 years, and directed that you are to serve a non-parole period of 16 years.
37 Your counsel has urged that I reimpose the same sentence as her Honour Williams J on the basis that it would be a rare occurrence that a higher sentence would be imposed after a retrial, and counsel relied upon the decision of Jeffrey Murdoch (a pseudonym) v The Queen, a decision of the Court of Appeal of Redlich, Priest and Coghlan JJA,[4] as strong support for the fact it would be a rare, unusual and, in this case, inappropriate course, to impose anything in the way of sentence more than the sentence originally imposed by Williams J, for this offending.
If the appellant is convicted on any count at the retrial, the sentencing judge will also have to take into account another important factor in the sentencing process. Ordinarily but not invariably, a successful appellant should not receive a longer sentence after conviction on a retrial than he or she received at the original trial. If the sentencing judge at the retrial thinks that the original sentence was manifestly inadequate, it is open to that judge in the exercise of the sentencing discretion to give a sentence higher than that imposed on the first occasion. But an exercise of discretion by a sentencing judge that increases the original sentence given to the accused is necessarily rare. That is because such an increase may be perceived, by the public and the accused, as containing a retributive element imposed because the accused had successfully appealed against his or her earlier conviction or sentence. If the raising of a sentence after a successful appeal became common, it might discourage appeals. Such a result would be contrary to the public interest, for an organised society has a vital interest in the proper administration of its criminal justice system. Rights of appeal are an important means of preventing the perpetuation of error in criminal trials.[7]
39 I indicated, shortly after the trial and before the plea, that the sentence imposed previously I considered manifestly inadequate and I requested that counsel provide submissions at the time of plea, relevant to the determination of whether it is appropriate or not appropriate for me to impose a sentence other than the sentence imposed by Williams J. I am mindful that I am not sitting as a Court of Appeal in respect of the decision of Justice Williams. The view I have formed of the offences, and your role within those offences, based upon the evidence called at your trial is what informs my decision as to the adequacy or otherwise of the sentence previously imposed. I also need to take into account the public policy considerations of resentencing a person, who has again been convicted after a successful appeal.
40 This issue was examined by the Court of Appeal in Murdoch, particularly in the judgment of Priest JA, with whom Redlich and Coghlan agreed, and at paragraph 162, his Honour stated:
In my opinion the trial judge following upon a conviction on a retrial must, when he comes to sentence, exercise his own judgment and his own discretion. He will do that having regard to the offence committed; to the circumstances of its commission; to the antecedents of the convicted person and to all other relevant facts which are personal to him. In addition he will have regard to the sentence imposed upon the first conviction and he will be conscious of the principle, so called, 'that unless there is some strong ground there should not be a disparity between the sentence imposed upon persons convicted on the second occasion after a retrial compared with those that were imposed upon them on the first occasion' (see Leary and Compt (unreported, Court of Criminal Appeal, Western Australia, 18th August 1975, per Jackson CJ)). That principle is based upon policy.
The policy consideration underlying the specification of the upper limit on the sentence is twofold. In the first place, a person whose conviction is tainted in that the first trial was defective to an extent not capable of being saved by the proviso, should not, in fairness, be required to run any risk of suffering a heavier sentence on a new trial as a consequence of exposing on appeal the defective nature of the first trial. It is in the public interest in ensuring orderly and proper administration of the criminal law that defects in trials should be challenged and laid bare on appeal. As a corollary to this, it is wrong that any person should suffer ill founded criminal judgment in consequence of a defective trial, and feel constrained to avoid exposing that defect lest on a new trial a heavier sentence be passed.
In the second place, the passing of a heavier sentence on a new trial could be seen by the convicted person, as well, perhaps, by others in the community at large, as possibly importing some element of retribution by the machinery of criminal justice in consequence of the conviction on the first trial having been successfully overthrown. Any such impression would, of course, be groundless. But, at the same time, it is highly desirable to avoid any possible basis for permitting the operation of the system to be exposed to criticism of such a nature (see Gilmore (1979) 1 A Crim R 416, at 419 to 420, per Street CJ).
But if having had regard to the first sentence and to the policy considerations to which I have referred, as the trial judge in this case did, and to all other facts relevant to sentence, the sentencing judge is of the opinion that the sentence passed following upon the first conviction was inadequate or inappropriate, then he must act upon that opinion because it is at that point his judgment which is decisive and it is a judgment which he must make and act upon_. It would, I think, be wrong for him to say: 'In my judgment the first sentence was altogether inadequate or inappropriate but nevertheless it was a sentence imposed and therefore I will impose it again'_.
An increase by a second sentencing judge of a sentence first imposed should be rare. The first sentence ordinarily should be regarded as a 'ceiling'. In this case the circumstances did not justify departure from the ordinary rule.
42 Whilst I understand and appreciate the policy involved in an increase in sentence on a re-trial, I find myself in the position of saying that in my judgment the first sentence was inadequate for the offending, as I find the offending to be, and your role in that offending. I do not have any intention of punishing you for an error that was demonstrated, and the granting of a re-trial as a response to that error, my concern is only about imposing an appropriate penalty for the offending in which you have participated in the manner that I have found you participated.
43 Williams J found your involvement to be of a different level to that which I find it to be, and as already indicated, there have been two quite distinct and different trials. In the trial before Williams J you did not give evidence, whereas in the trial before me you gave evidence on oath. I found your evidence entirely unconvincing, your description of your involvement unreliable, and, consistent with the verdict of the jury, I found that you were the person who had entered into an agreement with Bill Ho to kill or at the least cause really serious injury to the two men who were shot. The gun was aimed at the head of each of these men; the distance from which they were shot by Ho was a short distance; the killing and the attempted killing was ruthless, intentional and demonstrated a total indifference to the lives and welfare of these two quite young men. Your actions were consistent with you behaving like you were a crime boss, giving directions to execute people who you did not even know, and who had no involvement in the drug trade. Whether this role was in your own mind or whether you were attempting to demonstrate to those who knew Mau Duong what an important or ruthless figure you were in the criminal world, is irrelevant.
44 Your callous actions require condemnation by the court of a very high level. A cold blooded callous and ruthless execution of a young man, and the attempted execution of an equally young innocent man demands condign punishment, that is appropriate punishment.
45 The issue of general and specific deterrence is of substantial significance for sentencing of this type of offending. You have a lengthy criminal history, including previous trafficking in heroin, in 2001; armed robbery charges in which a gun was produced and a shot was fired, in 1994, and you were on a suspended sentence at the time that you committed this offending for being in possession of a controlled weapon. They are not insignificant prior convictions - they are quite relevant to the offending of which you have been convicted.
46 I have considered the sentences imposed upon your cooffenders and discount the sentence imposed on your brother Quang Nguyen, as the Crown accepted a plea of guilty to the crime of manslaughter, and he had significant Verdin's issues. Despite it not being a matter that is really comparable, I will still have regard to that sentence, in respect of the issue of parity. He initially received an original sentence of 13 years for the murder and six years for the attempted murder of which two years was cumulated, making a total of 15 years with a minimum of ten years. For the offence of manslaughter he was sentenced to six years and six months imprisonment, and for the offence of recklessly causing serious injury he was sentenced to two years imprisonment, with six months cumulated making a total head sentence of seven years imprisonment, with a minimum of four years, four months and fifteen days to be the minimum. Pursuant to section 6AAA it was declared that he would have received a sentence of 8½ years with a minimum of six years but for the plea of guilty. He had a number of significant issues that have no application in your case, including, being acquitted by the Court of Appeal and having that acquittal subsequently overturned by the High Court, serious intellectual disabilities, physical and psychiatric issues, different charges and a plea of guilty.
47 The cooffender who fired the gun, Bill Ho, received a sentence of 20 years imprisonment for the murder and 10 years for the attempted murder. Her Honour directed that only 2 years and 4 months be cumulated as he had some 32 months of 'Renzella' time in relation to an armed robbery sentence he was undergoing, thus making a total of 22 years and four months imprisonment. That sentence was directed to served cumulatively upon two years of the six year armed robbery sentence he was then serving. Her Honour imposed a new single non parole period of 19 years. Thus making a total of 24 years and four months with a minimum of 19 years.
48 The sentence I would have imposed on you for these offences would have been a great deal higher, but for the issue of parity with Bill Ho and the policy restraints that exist for sentences from retrials.
49 You have no remorse, your prospects of rehabilitation I find are relatively poor, you have relevant and lengthy prior criminal offending, and these are crimes that require significant denunciation, general deterrence, specific deterrence, and the imposition of just punishment. The finding that you were the person who directed the actions of Bill Ho on that night, is an aggravating factor in terms of the issue of parity.
50 In your favour is the fact that this is a retrial, and the policy considerations that exist in relation to retrials, your behaviour in prison - particularly your participation in programs to improve your prospects of not reoffending upon release and the support that you have from your family.
51 Accordingly, the sentence that I impose for the charge of murder is imprisonment for 21 years, for the charge of attempted murder 12 years. I direct that 3 years of the sentence imposed on the charge of attempted murder is to be served cumulatively upon the 21 years imposed for the charge of murder making a total of 24 years imprisonment. I direct that you are to serve a minimum of 19 years before becoming eligible for parole.
52 Declare that there have been 3,090 (three thousand and ninety) days including today served in presentence detention in this matter and such is to be noted in the records of the court.
[3] R v Nguyen, Ho and Nguyen [2007] VSC 540 [32]-[60].
[4] [2013] VSCA 272, 27 September 2013.
[6] RHMcL v The Queen [2000] 203 CLR 452 [72].
[8] R v Chen [1993] VicRp 64; [1993] 2 VR 139.
[9] R v Garrett (1978) 18 SASR 308; R v Gilmore (1979) 1 A Crim R 416; R v Williams (1981) 5 A Crim R 81; R v Bedford (1986) 28 A Crim R 311.
[10] R v Williams (1981) 5 A Crim R 81, 83-4. (my emphasis)
The Queen
Nguyen [2013] VSC 674
(1978) 18 SASR 308