The Queen v Terdputham and Seehaverachart [2015] VSC 740

Supreme Court of Victoria|2015-12-17|Before: BEALE J

CRIMINAL LAW - Sentence - Murder - Joint criminal enterprise - Serious example of murder - Killing was payback for intervention by "good Samaritan" - Parity considerations - Pre-sentence detention includes time spent in gaol overseas - s 18(1) Sentencing Act 1991.

1 After a trial, you, Thatiya Terdputham and Sarud Seehaverachart, were both found guilty of the murder of Luke Mitchell. The maximum penalty for murder is life imprisonment.

2 In the early hours of 24 May 2009, the two of you and your former friend Teparat Tepsut, cornered Mr Mitchell in the car park of a 7-Eleven on Sydney Rd, Brunswick. In plain view of many horrified witnesses, Mr Mitchell was then viciously attacked. He was punched and kicked and stabbed repeatedly, including three times to the chest, which proved to be the fatal stab wounds.

3 It is unclear whether Tepsut physically participated in that cowardly attack. Some witnesses saw only two men assault Mr Mitchell. Others saw three or four. Discrepancies such as these are not surprising, given the speed and shocking nature of the attack.

4 It is also unclear as to which member or members of your group inflicted the fatal stab wounds. But I am satisfied beyond reasonable doubt, for reasons I will provide shortly, that both of you, Terdputham and Seehaverachart, stabbed Mr Mitchell. It is also clear that what was done to Mr Mitchell was done by agreement between the three of you. All three of you hunted him down because a short time before he had tried to stop your group from assaulting another man named Craig Bartlett.

5 Mr Bartlett had upset your group because, as he was walking along Sydney Road, he saw you, Terdputham and Seehaverachart, arguing with a woman and told you to leave her alone. He was punched and chased for his troubles. Tepsut joined in, throwing an abandoned pram at Mr Bartlett.

6 That's when Mr Mitchell, a stranger, stepped in. Blows were exchanged. You were both injured. The fight ended and Mr Mitchell moved away.

7 But your group, which had been drinking whisky heavily throughout the evening, was not prepared to let matters rest there. Tepsut went and got knives and a meat cleaver from a nearby massage parlour that he owned. He says that he did that under instruction from you, Terdputham. Whether that was so, I can't say beyond reasonable doubt. What I do find beyond reasonable doubt, based on the evidence of an independent eye witness named Hamish Michael, is that Tepsut returned to the street and offered the both of you knives. You, Terdputham took some at that time: you, Seehaverachart did not. But not much time passed before you, Seehaverachart, also armed yourself.

8 All three of you went into the massage parlour for a short time, then got into the black Mercedes that you, Terdputham, were driving that evening. It was your mother's car. The three of you drove south on Sydney Road, looking for Mr Mitchell. He, his sister-in-law, Daniela, and some friends had stopped at the 7-Eleven in their car to get cigarettes. On spotting Mr Mitchell, you Terdputham drove the Mercedes into the 7-Eleven car park and all three of you hurriedly got out of the car. By this stage, all three of you were armed with knives. During the attack on Mr Mitchell, which I have already briefly described, his sister-in-law Daniela physically intervened, trying to stop it. She suffered some knife wounds herself but, thankfully, nothing major.

9 Once the three of you had completed the task that you came for, you all jumped back in the Mercedes and sped off. There was much blood in the car and on the knives. Some of the blood was yours, Seehaverachart, as your arm was cut badly during the frenzied attack on Mr Mitchell. So the Mercedes was dumped and the knives thrown through the window of a garage that was under construction not all that far from the 7-Eleven. Mr Mitchell died on an operating table at the Royal Melbourne Hospital at approximately 6am. Before the day was over, the three of you had flown out of the country on two separate flights to your homeland, Thailand.

10 Let me return to your roles in this joint criminal enterprise. In your case, Terdputham, I am satisfied beyond reasonable doubt that you attacked Mr Mitchell with a knife at the 7-Eleven and stabbed him. First, Hamish Michael, a most impressive eyewitness to the lead up events that took place further up Sydney Rd, saw you take knives from Tepsut just after you had come off second best in your first confrontation with Mr Mitchell. It was only a short time after this that Mr Mitchell was attacked in the 7-Eleven car park. Second, there is Tepsut's evidence that you got out of the car at the 7-Eleven armed with a knife. That evidence is credible, whatever misgivings one might have about Tepsut as a witness, because, it beggars belief that, having taken up arms in Sydney Rd, and then gone after Mr Mitchell in your Mercedes to exact revenge, you would have discarded your weapons. Third, the eyewitness Tohme described a person matching your appearance stabbing Mr Mitchell and the eyewitness El Masri described a person matching your appearance pulling a knife out of Mr Mitchell. Fourth, your former girlfriend, Ms Sawangnet, told police that you admitted to her on the way to the airport that you had stabbed Mr Mitchell. A prison informer, Gregory Dunn, said you had made a similar admission to him. I attach more weight to what your former girlfriend said to police, and at your trial she confirmed that what she had said to the police in her statement was true.

11 As for you Seehaverachart, your distinctive appearance on the night - the long frizzy hair in a ponytail - made you stand out as you attacked Mr Mitchell with a knife. Multiple witnesses testified to you performing that role.

12 It may be that Tepsut also joined in the knife attack on Mr Mitchell, contrary to his claim that he stood back. But, as I indicated in my sentencing reasons for Tepsut, I could not be satisfied of that beyond reasonable doubt.

14 I have received victim impact statements from Mr Mitchell's mother, father, stepmother, two brothers and sister-in-law Daniela. I have also received a victim impact statement from a friend of Mr Mitchell, Jacinda Hollingworth, who witnessed the attack at the 7-Eleven. As I said in sentencing Tepsut, the loss and suffering felt by Mr Mitchell's family is immeasurable. Unsurprisingly, Ms Hollingworth has also been profoundly affected.

15 Both of you wrote letters to the Mitchell family from Thailand in 2013, prior to your extradition. You professed remorse for your involvement in Mr Mitchell's death, and indeed, these letters were relied on by the prosecution as admissions. But both of you were careful in those letters not to admit to your true roles in Mr Mitchell's death. In your letter, Terdputham you stated 'I have realised that I must face up to my responsibilities for my involvement in Luke['s] death' but you did no such thing, instead running your trial. In your case, Seehaverachart you positively and falsely asserted in your letter that you did not have a knife when you attacked Mr Mitchell in the 7-Eleven car park. Neither of you are to be punished for running your trials. That was your right. Nor are you to be punished for writing those letters. But I do not accept the expressions of remorse in those letters, which could only have added to the anguish felt by the Mitchell family.

16 On the spectrum of murder offences, this murder falls in the upper range. As I said, you hunted down Mr Mitchell. The attack upon him with deadly weapons occurred in a very public place. You and your co-accused were not deterred by the fact that there were many people present. In full view of these witnesses, your victim was punched, kicked and stabbed repeatedly. You took revenge on Mr Mitchell for, a short time earlier, courageously coming to the aid of Mr Bartlett. After the killing, you fled not only the scene of your crime but the country, the very same day.

17 Denunciation, just punishment, and general deterrence are important sentencing considerations. Specific deterrence also has a role to play but less so, essentially because of your absence of prior convictions and the fact that you both have good prospects of rehabilitation if you avoid excessive alcohol use in the future.

18 Turning now to your personal histories, Terdputham, you were born on 14 April 1975 in Thailand. At the time of the offence - 24 May 2009 - you were aged 34. You are now aged 40.

19 You grew up in Thailand. Your family was well off. Your father was a successful businessman, running a residential and commercial interior decoration business. Your parents used to entertain at home a lot and you recall your father being a heavy drinker. Your parents separated when you were about 15. Your father lives in Bangkok still, your mother lives in Melbourne. You have one younger brother, who is in his early thirties. He also lives in Melbourne.

20 You were an average student. You left school in Year 10 after your parents separated. Around the same time - when you were only 15 - you moved out of home and began living with a friend who was working. You did some labouring work. You also began drinking and using heroin, to which you became addicted.

21 At the age of 19, you returned to the former family home and lived with your mother. You tried to get off drugs by yourself but failed. You went into a drug rehabilitation clinic for a time. You continued to abuse alcohol.

22 Just before your 21st birthday in 1996, and as I understand it with your parents support, you came to Australia to study. You boarded with an Australian family in Adelaide. You studied English and interior decoration. As you socialised more, you began again to drink excessively and in late 1998, before you had finished your interior decoration course, your father made you return to Thailand and work in his business. You continued to drink heavily. You had a brief relationship and fathered a son who is now 16 but you have had virtually no contact with him. Your own father's business collapsed in 2001. You returned to Australia to study. By this time your mother was also living here, in Melbourne. She had married an Australian in 2000 but her new husband passed away in 2001. You went to live with your mother. You did further study in English and a hospitality course, which you completed. Whilst studying, you formed another relationship and fathered a daughter, who is now aged about 11. Commencing in 2005 you worked as a chef at Crown Casino for 19 months. Your relationship failed in 2007, which you attribute to your heavy drinking. You left Crown and moved to Sydney, working as a chef at a League's Club in Redfern for two years. You returned to Melbourne in 2009, living again with your mother. You were unemployed and drinking heavily. The offence occurred on 24 May 2009.

23 After fleeing to Thailand, you lived with your father for a few weeks. I am told that he encouraged you to enter a temple and serve as a monk, which you did for about a year. During that time, you say you stopped drinking and have remained alcohol free ever since, this is encouraging so far as your prospects of rehabilitation are concerned. Eventually, you returned to live with your father who was ailing from diabetes.

24 In 2010, your mother returned to Thailand for a visit, at the end of which you drove her to the airport. That is when you were arrested, on 31 October 2010. You spent approximately three years in custody in Bangkok before being extradited to Australia on 23 September 2013. Those three years in a Bangkok jail traumatised you. There was much violence. You witnessed suicides and stabbings. Conditions were overcrowded and unhygienic. The light was left on all night. I have received a report from a forensic psychologist - a David Ball - who has diagnosed you with posttraumatic stress disorder stemming principally from those three years. The PTSD was aggravated when you experienced the prison riot in June this year at the Melbourne Remand Centre. Mr Ball writes:

Given the severity of his PTSD, this condition will not remit without extensive treatment and long term management. Even with treatment and management he is highly likely to be subject to recurrences for the rest of his life. Mr Terdputham's time spent in custody has been far more onerous than would be the case for other prisoners and continues to be so.

25 Your counsel submitted, relying on the fifth principle in Verdins,[1] that prison will be harder for you because of your PTSD, and that I should moderate your sentence accordingly. I accept that submission.

26 I also accept that you have good prospects of rehabilitation if you refrain from alcohol abuse. Your violent behaviour against Mr Mitchell seems to have been an extraordinary aberration, committed under the influence of excessive alcohol consumption. You report that you gave up drinking during your time serving as a monk in Thailand. I hope that is so. You have no prior or subsequent criminal convictions. Your mother and daughter continue to visit and support you.

27 Turning now to your personal history, Seehaverachart, you were born on 17 November 1982 in Thailand. You were aged 26 at the time of the offence and are now aged 33. Your father was once a successful professional Muay Thai boxer. He currently operates a minimart in Phuket. Your mother was a high school teacher, who retired in 2012 to care for you when you were in prison in Bangkok, awaiting extradition to Australia. Your mother currently runs an Amway business. She wrote a moving letter on your behalf, which was tendered at the plea hearing. You have one sibling, a younger brother.

28 In your primary school years, your parents acquired a small farm. You resided with your grandmother in Phuket on weekdays and with your parents and brother on weekends at the farm and during school holidays. You developed a close relationship with your grandmother.

29 You attended Phuket University High School from 1995 to 2000. You helped your parents sell watermelons in Phuket after school almost every day. Your father trained you in Muay Thai, and you fought for prize money. Your parents opened a minimart and you helped out in the shop.

30 You did compulsory military training during your latter high school years. You hoped to join the army or be a policeman but you couldn't pass the exams. You decided to study law in Bangkok, which your counsel told me is easier to get into Thailand than the army or the police; once you obtained a law degree you would be able to gain automatic entry to the army or police, which is what you planned on doing.

31 Your mother had other ideas. She sent you to Australia to study. You were 18 when you arrived in Melbourne in April 2001. You rented an apartment and studied English at Taylors College. In 2002, you studied at Holmesglen TAFE. You got parttime work at a Thai restaurant. You began drinking excessively. You were caught for drink driving several times.

32 At the end of 2004, the Boxing Day tsunami hit southern Thailand. You returned to your home country and stayed there in 2005. You helped out in the minimart and looked after your ageing grandmother. You continued drinking.

33 In 2006 you returned to Melbourne and studied hospitality through Central Queensland University. Your grandmother died in early 2006. You wanted to go home for the funeral but your mother wanted you to stay in Melbourne and apply yourself to your studies. You struggled with your studies. In 2007, a girl in Thailand you had hoped to marry when you completed your studies married someone else. You began drinking more and more heavily. You would often attend class hung over. Your academic results suffered.

34 In 2008, for a time you reduced your drinking and improved your academic performance but then you took on a job as chef at a Thai restaurant. There, you met your former girlfriend, Ms Chatkornrapat, or as you called her, Pang. The relationship with Pang was complicated from the start because she was also in a relationship with another man.

35 By 2009, you were again drinking heavily, occasionally from the moment you woke up. You were drinking whisky, and heavily, on the night you and the others attacked Mr Mitchell.

36 Like your co-offenders, you fled to Thailand the same day as the murder. You worked for a time at a friend's bar, then returned to your parent's home, helping out in the minimart business until you were arrested on 18 September 2010. Like Terdputham, you were held in the Bangkok Special Prison, in overcrowded, unhygienic conditions. You fell ill with fevers requiring hospitalisation on four occasions. You were extradited to Australia on 10 January 2014.

37 Your mother has come from Thailand to visit you here on three occasions, the last time being August 2015. You speak with your parents once or twice a week. But because your family are in Thailand, your experience of jail here will be harder. A friend visits you in jail fortnightly.

38 To your credit, you have undertaken numerous courses whilst in custody, and a large number of certificates were tendered on your plea. I also note that when you were in prison in Bangkok, you were given positions of trust and responsibility for other prisoners.

39 At this point, it is convenient to summarise the various matters that I consider work in mitigation of your sentences.

40 Terdputham, you have no prior convictions and no subsequent convictions. Prior to this offence, and subsequently, you have not shown a tendency to be violent. You spent almost three years in the harsh environment of a Bangkok prison, leaving you with post-traumatic stress disorder which has made, and will make jail harder for you. You have been a well behaved and industrious prisoner, both in Thailand and here. I find that you have good prospects of rehabilitation but much will depend on you not drinking to excess.

41 Seehaverachart, you have no relevant priors and no subsequent convictions. Apart from this matter, you have no history of violence. You were a reasonably young offender, aged 26. You spent just over three years in a harsh Bangkok prison. You have been a well behaved and industrious prisoner. You are more isolated in jail than Terdputham, because your family live in Thailand. If you stay off alcohol, you also have good prospects of rehabilitation.

42 There will of course be a marked disparity between the sentence I imposed on Tepsut and the sentences that I impose on the both of you. That is because he pleaded guilty and gave evidence in your trial. Sentencing law required me to give him a substantial discount for his cooperation.

43 As between the two of you, I consider there should be parity. In other words, you should each receive the same sentence. I have found that both of you stabbed Mr Mitchell. To my mind, there is no reason to distinguish between the two of you so far as your roles in the commission of the offence are concerned. You were parties to a joint criminal enterprise. You both attacked Mr Mitchell with knives. Whilst you Terdputham are entitled to some moderation of your sentence because of your PTSD, you have family here in Australia whereas Seehaverachart does not. He is entitled to some moderation of his sentence on that account. You have no prior convictions and Seehaverachart has no relevant prior convictions.

44 You Terdputham were aged 34 at the time of the offence and are now aged 40. You Seehaverachart were aged 26 at the time of the offence and are now aged 33. Whilst the fact that you were younger at the time of the offence works in your favour, Seehaverachart, it could not be said that you were an immature male, especially since you had lived independently for some time prior to the offence. As for Terdputham being older, that lends greater significance to his absence of prior convictions. In my view, it is not appropriate to distinguish between the two of you based on age.

45 Tepsut gave evidence that you, Terdputham instructed him to get the knives. That may have been the case but Tepsut's evidence was self-serving in a number of respects. He was criminally concerned in the events in question. I am not prepared to find beyond reasonable doubt that you instructed him to get the weapons.

46 There will be a significant gap between the head sentence and the non-parole period which I impose on each of you. Nonetheless, the non-parole period in each case is substantial, as it must be given the seriousness of your offending. In my view, a shorter non-parole period would be inadequate.

47 Terdputham and Seehaverachart, I sentence you both to 24 years' imprisonment, with a non-parole period each of 18 years.

48 I declare that you Terdputham have served 1873 days by way of presentence detention and that you Seehaverachart have served 1916 days by way of presentence detention.[2]

[2] Pursuant to s 18(1) of the Sentencing Act 1991 '... any period during which [an offender] ... was held in custody in relation to - (a) proceedings for the offence; or (b) proceedings arising from those proceedings ... must be reckoned as a period of imprisonment ... already served under the sentence unless the sentencing court ... otherwise orders.' The High Court indicated that a period spent in custody in an overseas gaol awaiting extradition could, in the court's discretion, be taken into account under the Western Australian equivalent of s 18 (s 87 Sentencing Act 1995 (WA) and Lau v The Queen [2009] HCATrans 275 [125]). Section 87 permits the court to have discretionary regard to 'time in custody in respect of that offence' - language closely analogous to that in s 18 which refers to 'period ... in custody in relation to ... proceedings for an offence'. The Victorian Court of Appeal has considered sentencing appeals in cases where incidentally the sentencing judge had included periods of overseas custody pending extradition in its determination of pre-sentence detention, and did not question that approach (Majeed v The Queen [2013] VSCA 40 [13] and Mokbel v R (2013) 40 VR 625, 646). Accordingly I declared 1873 days for Terdputham and 1916 days for Seehaverachart to be pre-sentence detention. These figures include the period each offender spent in custody in Thailand, prior to extradition.

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