Director of Public Prosecutions v Mean
[2019] VSC 675
•11 October 2019
| IN THE SUPREME COURT OF VICTORIA | Unrestricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0135
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| METH MEAN |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 August 2019 |
DATE OF SENTENCE: | 11 October 2019 |
CASE MAY BE CITED AS: | DPP v Mean |
MEDIUM NEUTRAL CITATION: | [2019] VSC 675 |
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CRIMINAL LAW – Sentence after trial – Murder – Victim knew offender – Attacked in home with wooden object and knife – Fractured skull and multiple wounds – Offence in 1987 – Cold case investigation – DNA testing of semen sample found on body of deceased – Offender not suspect until 2017 – Sentencing practices at time of offence considered – Offender youthful at time of offence – No remorse shown – No prior convictions – Substantial degree of reformation – Good prospects for rehabilitation – Not fluent in English – Culturally isolated in prison – 23 years’ imprisonment – Non parole period of 17 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Dr Nanette Rogers SC with Ms C Parkes | Office of Public Prosecutions |
| For the Accused | Mr Anthony Lewis with Mr A Malik | Galbally & O’Bryan |
HER HONOUR:
Introduction
Meth Mean, on 8 May 2019, a jury found you guilty of the murder of Ranny Yun.
The maximum penalty for murder is life imprisonment.
Ranny Yun was murdered by you in her own home at 44 Windsor Avenue, Springvale, during the afternoon of the 15 October 1987. She was around 27 years old at the time of her death and was married to Kuy Hieang Thong.
Procedural history
In July 2017, the investigation into the unsolved murder of Ranny Yun was assigned to the Victorian Homicide Squad Cold Case Unit.
On 1 November 2017, you were arrested by police in Western Australia, and interviewed[1] about the murder by Victorian detectives. You were then remanded in custody and extradited to Victoria for trial. You have remained in custody since your arrest.
[1]Through a Khmer interpreter.
You were committed to this court following committal proceedings which took place in May 2018.[2]
[2]Between 14 – 16 May 2018.
An indictment was filed on 28 February 2019. Preliminary argument then took place in March 2019 over 9 days.[3] On 27 March 2019, a jury was empanelled and the trial proceeded over 26 days.[4] The central issue at trial was whether you were the offender.
[3]Preliminary argument was heard on 13, 15, 18, 19-22, 25 and 26 May 2019.
[4]In the period from 27 March 2019 to 7 May 2019.
On 8 May 2019, a jury found you guilty of the charge of murder.
Factual background
By way of background, you were born in Cambodia. Your date of birth was a matter of contention at trial. When you were young, your parents fled Cambodia with you and your siblings and took you to a refugee camp in Malaysia.
Your cousin, Kuy Hieang Thong, had been living in Australia since 1977 and was fluent in English. During the mid-1980s, Kuy Hieang Thong was able to assist Cambodian refugees to apply for Australian visas, due to his skills in languages other than Khmer.
Kuy Hieang Thong’s grandmother was in the same refugee camp in Malaysia as your family. Ranny and Rada Yun were also there at that time.
Ranny Yun was looking after Kuy Hieang Thong’s grandmother. After he visited the camp, he decided to marry Ranny Yun, partly because of his gratitude to her for caring for his grandmother. That marriage facilitated Ranny and Rada Yun’s migration to Australia. Your father, Muy Mean, asked Kuy Hieang Thong to also sponsor the migration of your family to Australia. This was done.
You arrived in Australia with your family, on the same aeroplane as Ranny and Rada Yun, in August 1985.
Upon migration, your family consisted of your parents, Muy Mean and Chreach Tep, and your four younger siblings: brother Touer and sisters Angela, Chantha and Chanthy.
In 1986, your family settled in Springvale, Victoria, renting a house at 196 Westall Road. You spoke very little English and were sent to the Noble Park Language Centre, before enrolling at Westall High School on 28 April 1987.
Your enrolment at Westall High School was recorded as having been ceased on 12 October 1987, three days prior to the murder of Ranny Yun.
When Ranny and Rada Yun first arrived in Victoria, they lived with Kuy Hieang Thong and his mother Mouy Thong in a unit in Regent Street, Springvale. Ranny Yun obtained work at the Plastex factory in Clayton, bringing in income for herself and other family members. She also took up piece work, sewing clothing from home. At social gatherings hosted at the Regent Street unit, guests were offered food and gambling, producing extra income for the family. Kuy Hieang Thong was not in paid employment at the time due to his asthma.
In 1986, Kuy Hieang Thong went to Thailand for about 10 months. Whilst he was away, Ranny and Rada Yun and Mouy Thong moved in with your family. However, they moved out again when Kuy Hieang Thong returned from overseas, and the family group took up residence at 44 Windsor Avenue, Springvale.
At the Windsor Avenue address Ranny Yun shared a bedroom with her husband, whilst Mouy Thong shared another bedroom with Rada Yun. A third bedroom was used by Ranny Yun as a sewing room.
The house at 44 Windsor Avenue, Springvale had only been occupied by Kuy Hieang Thong and the family group for a week or two when Ranny Yun was murdered.
The day of the murder
On the morning of 15 October 1987, Rada Yun left for school at about 8.30am. She was around 15 years old at the time.[5]
[5]Rada Yun was described as 13 years old in the summary of prosecution opening, but subsequently revealed during her evidence at trial that her birth date was changed to a later date on formal documents for migration purposes.
Kuy Hieang Thong’s close friend Heng Tang arrived at the house soon after. He collected Mouy Thong, to take her to spend the day with Sokhon Neang, the wife of another mutual friend. Heng Tang returned a bit later that morning and picked up Kuy Hieang Thong. They were together for the rest of that day, until they were notified about Ranny’s murder. They had spent much of that day at a friend’s house in Nunawading.[6]
[6]The friend was identified as Mr Lim.
Although her time of death is uncertain, it appears likely Ranny Yun was already dead by a little after 3.00pm on 15 October 1987.
Ranny Yun’s mother-in-law, Mouy Thong, had telephoned Ranny at around 1.00pm that day. She inquired about whether Ranny had eaten lunch and the pair talked happily on the telephone for about 20 minutes. That afternoon Ranny Yun also telephoned a woman, Saokun I, to discuss the delivery of a sewing sample. During that call, Ranny Yun excused herself, saying someone was at the door. She returned to the telephone, but completed the call shortly afterwards. It appears that call likely took place after the call from Mouy Thong. The conversation between Ranny Yun and Saokun I appears to be the last time Ranny Yun was known to be alive by any prosecution witness.
In accordance with routine practice, Ranny Yun was due to be collected by a co-worker, Phuoc Hinh, and driven to her afternoon shift at the Plastex factory, along with two other co-workers. The group arrived at Ranny’s house just after 3.00pm as normal, but Ranny did not appear. Attempts to get her to answer the door were unsuccessful, so the group continued on their way to work. At around 3.45pm, Rada Yun arrived home from school with 17 year old Theary Tang (the daughter of Heng Tang). Rada noticed that the front door was unlocked and the back door was ajar. Soon after, the two girls discovered Ranny Yun ’s body on the floor of the sewing room.
A neighbour was summoned, police were called, and Kuy Hieang Thong and his mother were alerted to return home at once. When Ranny’s mother in law Mouy Thong arrived home and saw Ranny’s body, she fell to the ground wailing with grief and shock. She had been very close to Ranny Yun.
Police attended and observed that Ranny Yun was deceased and lying on the floor on her back in the centre of the sewing room, with her top and bra pulled up, exposing her right breast. She was naked below the waist but her pink tracksuit pants remained attached to her left ankle and there was a green and purple sarong over part of her left leg. Her legs were apart and there were bloodstains on her top, right breast, stomach and clothing. She had obvious injuries to her chin, neck and head, and a knife was found next to her, with the blade pointing into and under her neck.
Forensic biological samples were taken from the deceased’s body and tested positive for the presence of semen. There was also a wet stain on the carpet at the apex of the deceased’s legs, which was found to contain spermatozoa.
There were apparent bloodstains seen on the walls and door jamb of the sewing room and on a chair in front of one of the sewing machines.
Other rooms of the house were visually inspected by police, but nothing appeared amiss.
Investigation into Ranny’s murder
Early investigation
Professor Stephen Cordner was employed as a forensic pathologist in 1986 and attended the crime scene to examine the body of the deceased. The following day, he performed an autopsy. He recorded various injuries, including a fracturing of the skull and jaw, extensive bruising, subdural haemorrhage and multiple lacerations, incised wounds and stab wounds, including a gaping wound to Ranny’s throat. A fragment of wood was removed from a wound near the left ear.
Professor Cordner considered that the bruising and fracture to the back of the skull were caused by at least two to three blunt impacts. He opined that it was possible that these impacts also caused a fracture to the jaw.[7] Professor Cordner considered that the wound to Ranny’s throat was caused by at least three to four passes of a knife. He considered it probable that the blows to the back of the head preceded the injuries to the neck. There were no defensive injuries. The cause of death was the multiple injuries (including the fractured skull and wounds to the neck).
[7]If the deceased’s jaw was against a hard flat surface when the back of her skull was struck.
The lack of defensive injuries on Ranny Yun’s body, along with the trauma to the back of head and the location of her body (close to the chair and table in the sewing room), suggested she may have been unexpectedly attacked from behind, whilst preoccupied in the sewing room.
As a trusted member of her husband’s extended family, you were in a position where you could have been a visitor to Ranny Yun’s house on the day of her murder. Ranny would not have expected you to attack her, but a jury found that you did attack and murder her.
After Ranny was murdered, Kuy Hieang Thong, Mouy Thong and Rada Yun left the house and did not return to live there. On 27 October 1987, Kuy Hieang Thong went back to the house with your father, Muy Mean, to pack up furniture and belongings. In the process of doing so, your father lifted a mattress off the bed that had been used by Mouy Thong and uncovered some wood broken into two pieces, with apparent blood staining and a portion of cloth adhering to it. Kuy Hieang Thong contacted police to notify them of the discovery, and they attended and seized the wood for forensic examination. The pieces of wood appeared to have originally been a single piece of turned wood, similar to a table leg. The cloth matched with that seen in the sewing room at the time of the murder.
A partial fingerprint in what appeared to be blood was found on one of the pieces of wood and was photographed.[8] Police attempted around that time to find a match for that fingerprint. They compared the fingerprint to a list of suspects as well as a list of people known to have had access to Ranny’s home. You were not on those lists and your fingerprints were not compared at that time to the partial fingerprint found on the piece of wood.[9]
[8]There were some other prints that were less clear.
[9]Statements of Matthew Haddad dated 7 November 1988 and 31 January 2018, Depositions 194-201; Transcript of Proceedings, DPP v Meth Mean (S CR 2018 0135, Jane Dixon J, 16 April 2019) 908-945 (Matthew Haddad); Prosecution Exhibit 16 (being the list of 14 complainants referred to by Matthew Haddad in evidence on 16 April 2019).
The police were unable to solve Ranny’s murder, and a subsequent coronial inquest took matters no further. Over the years many lines of inquiry were pursued but none were successful.
Cold case investigation
In July 2017, when the investigation into Ranny Yun’s murder was looked at afresh, new DNA profiling methodology was available. Some of the original exhibits were located and submitted for DNA testing.[10]
[10]Statement of Jenelle Maree Heffernan dated 9 May 2018 (with attachments and Appendixes F and Y), Depositions, 255-293.
Forensic Biologists developed a DNA profile from a sample taken covertly from your father and compared it to a DNA profile developed from semen found on Ranny’s Yun’s body. Your father’s profile did not match, but it was considered likely the DNA profile would match that of a close male relative of your father.[11] Police then used covert methods to obtain a DNA profile from you.[12] The comparison between the sample covertly obtained from you and the semen sample led to your arrest and police interview on 1 November 2017.
Arrest interview
[11]Ibid.
[12]That sample was later compared to another sample taken from you after your arrest and found to be identical.
At your police interview, you gave an account of what you did on the day of Ranny’s murder. You said you went to Ranny’s house that day after school, had a glass of water, and saw Ranny standing near the kitchen. You said you then saw your father with Ranny and left the house. (I note that by the time of your interview in 2017, your father had already died.)
Police then told you that Ranny had been sexually assaulted. At first, you denied knowing anything about that.
Then, police told you that DNA from semen found on Ranny’s body had been matched to your DNA. After hearing that, you changed your account of events. You told police that after you left Ranny’s house on the day of the murder, you returned there later that day, but your father was no longer there. You claimed you found Ranny lying half naked on the floor, became aroused, and then masturbated next to her body and ejaculated on her. You told police you tried to move her body away from the blood, so as not to get your clothes dirty. You also said that your semen was found on the inside of her pants because you used her pants to wipe yourself.
After police told you that a fingerprint had been found in blood on a piece of wood, you said you found a wooden club that day, near the door of the room where Ranny was found. You said you put it away near the back of the house. When asked if your fingerprints might have been left anywhere else, you said you picked up the knife. You claimed that you thought Ranny may have been using it to cut oranges and that you left it near the sink so no one would cut themselves on it.
The pieces of wood seized by police in 1987[13] were unable to be located by the time of your trial, but the results and photographs of the fingerprint examination on the wood were still available. Regarding the partial fingerprint found in blood on the wood, Kuy Hieang Thong, Heng Tang and Sokhon Neang were excluded as potential sources of that fingerprint. There was no positive identification of you as the source of the partial fingerprint, but you could not be excluded as the source either.[14]
[13]After being seized, the pieces of wood were sent to the Fingerprint Unit in the early phase of the initial investigation.
[14]Statement of Amanda Kay Gibbons dated 23/01/18, together with annexures A to D and working notes, Depositions 238-254; Transcript of Proceedings, DPP v Meth Mean (S CR 2018 0135, Jane Dixon J, 16 April 2019) 981-1001 (Kay Gibbons).
A great deal of evidence was canvassed during your trial establishing different lines of investigation pursued by detectives since 1987. Evidence was called from one of the detectives, who testified that before the cold case investigation you were simply not on their radar as a suspect.[15]
[15]Transcript of Proceedings, DPP v Meth Mean (S CR 2018 0135, Jane Dixon J, 18 April 2019) 1167 (John Ashby).
Conclusion on the events of 15 October 1987
Based on the whole of the evidence before the jury, and consistently with the jury verdict that you murdered Ranny Yun, I am satisfied beyond reasonable doubt[16] that in the course of attacking Ranny Yun:
(a)you struck her from behind using a piece of wood, which then broke into two pieces;[17]
(b) you then inflicted knife wounds to her neck;
(c)at some point whilst you were there, you deposited semen on her body; and
(d)before leaving the crime scene, you hid the wood you had used to attack Ranny Yun under Mouy Thong’s mattress.
[16] Sentencing facts adverse to the accused must be established beyond reasonable doubt, whereas facts relied on in mitigation need only be established on the balance of probabilities.
[17]This finding is fortified by the reference you made in your record of interview to noticing and handling a wooden club when you were at the crime scene. It is a finding that fits with the nature of the blunt trauma injuries to the back of Ranny’s head, with the fact that the pieces of wood were bloodied and had cloth adhering that matched cloth from the room where Ranny was found, which was a sewing room, and with the fact that a fragment of wood was found behind Ranny’s ear during her autopsy.
I cannot be satisfied beyond reasonable doubt as to whether you brought the wood to the house or obtained it somewhere at the house,[18] although I note that the surviving occupants of the house did not recognise that item.
[18]Oral submissions were made on this point at the plea hearing: Transcript of Proceedings, DPP v Meth Mean (S CR 2018 0135, Jane Dixon J, 2 August 2019) 20 – 23 (Anthony Lewis) and 42 Dr Nanette Rogers SC).
I also cannot be satisfied beyond reasonable doubt that you planned to attack Ranny before you went to her house. There is insufficient evidence before me as to whether something passed between yourself and Ranny Yun that day, motivating you to attack her, or whether it was an impulsive decision for reasons known only to you, or whether you contemplated the matter for a longer period.
Regarding the sexual aspect of what happened, the Prosecution were unable to establish exactly what took place and did not allege that you sexually assaulted or raped Ranny Yun. There was also no evidence of any sexual relationship between you and Ranny. The Prosecution went to the jury on the basis that you ejaculated on and in Ranny’s body before, during or after the murder. I cannot be satisfied as to whether you ejaculated onto her body before or after her death.[19]
Events following the murder
[19]The Prosecution conceded that it could not prove those matters: Outline of Prosecution Submissions on Sentence, dated 1 August 2019, [10]-[11]. Your explanation in your arrest interview that you did not murder Ranny, but merely happened upon her body lying half naked on the floor, and then became sexually aroused and ejaculated onto the body, was highly implausible and must have been rejected by the jury.
Sometime after the murder of Ranny Yun, you left Victoria with your parents and siblings to live in Western Australia. You were able to carry on your life there, free from suspicion.[20] You found work, and later became married and had four children with your wife. You now have two grandchildren.
[20]As previously stated, police said you were not on their radar as a suspect until they received further DNA results in their cold case investigation.
For thirty years, the murder of Ranny Yun remained unsolved, with no likely suspect identified. You were able to go on with your life, without facing any consequences for murdering Ranny Yun. You must now face those consequences.
Your personal history and circumstances
I will now refer to your personal history. You spent your childhood in war-torn Cambodia. During the years of the Pol Pot regime, your parents were forced to scrape together a living for the family, selling vegetables. You did not attend school in those years and you recall often being hungry and sick.
In 1984, your parents escaped with you and your siblings, first to Thailand then to the refugee camp in Malaysia. You went to school in the camp but I am told you were bullied at that time. I was also told that you have suffered impaired hearing since falling out of a boat and nearly drowning at the age of four. No medical evidence was put forward about that, but impaired hearing could explain why your schooling in Australia did not go well. The exact circumstances of your withdrawal from school are opaque, but your hearing and language deficits may have made it difficult for you to fit in.
After the murder of Ranny Yun, your family moved to Western Australia. You did not resume school, but instead began working in unskilled and semi-skilled occupations. You had several periods of unemployment over the years and found it difficult to adapt to different work environments.
You married your wife Nem Khann in 1991 and went on to have four daughters with her. I have received testimonials from Nem Khann and your daughters, Marie (aged 28), Veronica (aged 23) Allisa (aged 22) and Jennifer (aged 19). I also received testimonials from your sisters, Chantha and Chanthy.[21] Your former employer, Bill, also put forward a short character reference.[22]
[21]These seven testimonials were all dated between 19–29 July 2019 and tendered at the plea hearing before me on 2 August 2019.
[22] Dated 23 July 2019.
Your eldest daughter, Marie Mean, describes assisting you with job seeking appointments over the years, due to your difficulty understanding English. She said that you were a big part of her life when she became a mother. Your wife and daughters describe you as a hardworking family man and loving father. I was also told you remained close to your mother after your father died.
You and your wife purchased a house in Thornlie, Western Australia, having obtained a mortgage to do so. Prior to your arrest, you were paying off the mortgage and had been employed for some months in a powder-coating factory.[23] Your wife now works in a cheese factory to meet the mortgage payments on your Thornlie house.
[23]Your brother also worked at that factory.
It appears likely you will have the ongoing support of your wife, and family whilst serving your prison sentence and upon release. This factor is favourable to your prospects for rehabilitation.
Date of birth
Due to the civil disorder in Cambodia prior to your family’s departure, you and your family members do not have birth certificates. Your date of birth on your visa documents is 23 April 1973. However, at trial the prosecution case sought to prove that you were born in 1967 or 1968 and were aged between 18 and 20 at the time of Ranny’s murder. The Prosecution submitted that your date of birth was falsified on your documentation to facilitate your schooling in Australia. Kuy Hieang Thong gave evidence that he participated in the process of recording a false date of birth for you and your brother Touer Mean on your visa applications and your mother admitted that something like this was done by him. He said he altered your date of birth to make you three or four years younger.[24]
[24]Transcript of Proceedings, DPP v Meth Mean (S CR 2018 0135, Jane Dixon J, 3 April 2019) 251 (Kuy Hieang Thong).
The evidence at trial as to your exact age was imprecise. Kuy Hieang Thong said he remembered that when war broke out in Cambodia, in March or April 1970, you were about two or three years old.[25] On the other hand, he also said that he left Cambodia in 1972 and that, at that stage, your parents had three children and you were aged about six or seven.[26]
[25]In his police statement dated 1 November 2017,
[26]Transcript of Proceedings, DPP v Meth Mean (S CR 2018 0135, Jane Dixon J, 28 March 2019) 85-86 (Kuy Hieang Thong).
Rada Yun gave evidence that she was born on 6 July 1972, but that her date of birth was recorded as 30 December 1973 on her visa documents, for schooling purposes. She testified that she always believed that your brother, Touer, was a year older than her and that you were a few years older than her.
You told the police in your record of interview that you were four or five years older than your brother Touer.[27]
[27]Record of interview, answer 36. I will not refer to the evidence from your mother and your brother on the question of your age, because I have formed the view that much of their evidence on this point was unsatisfactory.
At your plea hearing, the Prosecution argued that the Court should be satisfied beyond reasonable doubt that you were at least 18 years of age at the time of Ranny’s murder. Your counsel, Mr Lewis, submitted that the Court ought not find beyond reasonable doubt that you older than 17 at that time[28]. Mr Lewis also argued that, regardless of your exact age, the principles relating to youthful offenders apply in your case. The Prosecution accepted that, whatever your precise age, whether 17, 18 or 19, your youthfulness and immaturity at the time of the murder was relevant to your sentencing.
[28]Mr Lewis conceded that you were older than 14 at the time of the offence and that it was open for the Court to conclude that your official birth date had been altered on your visa documents.
I am satisfied beyond reasonable doubt that you were at least 17 years of age at the time of the murder and that you were developmentally immature in 1987. I have taken into account your disrupted childhood, lack of formal education and difficulty settling into schooling at Westall High School in considering your youthfulness in its proper context, regardless of the lack of clarity about your correct date of your birth.
Sentencing Factors
There are a range of factors the Court must consider in imposing a sentence on you for your crime.
Gravity of offending
You murdered Ranny Yun in an extremely brutal manner. Although you were a young person in 1987 you were able to use your physical strength to subdue Ranny Yun in the course of attacking her. You were also old enough to appreciate the seriousness of taking a life.
The Prosecution submitted that the Court should take into account the sexual aspect of your offending when considering your motive for the murder. Whilst it is not clear exactly how your sexual behaviour unfolded, it was a part of the event and adds to the gravity of what took place.
Victim impact statements
Victim Impact Statements were received from Ranny Yun’s younger brother Tha Theirry Yun[29] and younger cousin Rada Yun.[30]
[29]Dated 9 May 2019.
[30]Dated 24 July 2019.
Tha Theirry Yun migrated from Cambodia to the U.S.[31] in July 1980. He said that in 1975, in Cambodia, Ranny Yun was taken away and put in a forced labour camp for teenage girls whilst he was taken and put into a forced labour camp for boys. He never saw Ranny again. He remained separated from his family from 1975 until 1991, when he learned that his parents were alive in Cambodia. When he visited them in 1991, he was told about the murder of Ranny. He was lost for words, describing the sadness and pain of learning that you took away his sister’s life and her prospects of a better future in her newly adopted country.
[31]United States of America.
Rada Yun described how the murder of her older cousin impacted her greatly over the years since the discovery of Ranny’s body. She said that Ranny was like a sister to her and she felt she was left alone after Ranny died. She became vulnerable and was easily taken advantage of without Ranny’s protection. The trial process required her to relive many things that were very distressing to her.
The victim impact statements of Ranny Yun’s brother and cousin speak eloquently of their grief. On the basis of all of the evidence that emerged at trial it was apparent that Ranny Yun was a person with a bright future and a strong work ethic who contributed to the welfare of family members. Having escaped civil war in Cambodia, it is tragic that Ranny’s life was ended by you at a time when she was still adapting to her new life in her home in Springvale. She was murdered in a place where she was entitled to feel safe. The murder of a person in their own home is a matter that aggravates the objective seriousness of the crime.[32]
Remorse
[32]DPP v Zhuang [2015] VSCA 96 [53].
The Prosecution noted that the conduct of your case involved suggesting at least three other people, including Ranny’s husband, as the possible culprit. The Prosecution submitted that the way in which your trial was conducted was a reflection of your lack of remorse for the murder.[33] There is some merit in this submission. It was not disputed by your counsel that you have not acknowledged your crime nor shown any remorse.
[33] Referring to s 5(2C) of the Sentencing Act 1991 (Vic).
I consider that your absence of remorse detracts from the degree of mitigation of sentence that might have been available had remorse been shown for your actions.
Youth as a mitigating factor
Your youthfulness and immaturity at the time of the offending are an important factor in your sentencing, although I accept the Prosecution submission that, as the level of gravity of criminal offending increases, there is a corresponding reduction in the mitigating effects of youthfulness.[34]
[34]Azzopardi v R (2011) 35 VR 43 [44]; Hague v The Queen [2019] VSCA 218 [250].
In the case of DPP v SJK[35] it was said:
In the case of young people, to some extent, the law incorporates an acknowledgment of aspects of immaturity. By reason of the stage of development that an offender may have reached, he or she may not fully appreciate the seriousness and real consequences of the offending actions. However, it does not follow that this is always the situation or that, as teenagers, offenders cannot be held appropriately accountable for their conduct in engaging in serious criminal activity.[36]
[35][2002] VSCA 131. See also DPP v TY(No 3) [2007] VSC 489 (‘TY (No 3)’) [42] – [46].
[36]As per Phillips CJ, Chernov and Vincent JJA.
In the case of DPP v TY (No 3),[37] when sentencing a 14 year old child for murder, Bell J canvassed sentencing practices at that time for homicide offences in respect of children and young people. His Honour acknowledged that the application of sentencing principles is ‘very challenging’ when a young person commits a crime that is ‘very serious’.[38]
Rehabilitation and the offender’s character
[37]TY (No 3).
[38]Justice Bell stated: ‘True, youth and rehabilitation remain mitigating considerations of the first importance. But, they may apply with less force in such cases, having regard to the enhanced significance of other considerations, such as general and specific deterrence and the denunciation of the heinous nature of the crime…Where the balance is to be struck in cases of serious crimes depends on the overall circumstances’: at [45] – [46].
One of the reasons why youthfulness may mitigate sentence is that future rehabilitation is considered very important for young offenders. However, in your case, your youth has been expended without you having had to face the consequences of your crime and you must now do so as a much older person. Nevertheless, I accept that a degree of reformation appears to have already occurred, based on the testimonials of your family regarding your lifestyle and conduct over the past decades. No prior convictions were alleged against you and your only other court appearance was for a relatively minor workplace assault committed in Western Australia.[39]
[39] A spent conviction. Sentencing will assume otherwise good character.
Hardship in custody
You are currently a billet at the Port Phillip Prison, working five days a week in the assembly area. You have been able to have telephone contact with family members but have received few visits because of the cost involved in travel from Perth to Melbourne. Your lack of fluency in English makes it difficult for you to socialise in prison and you are somewhat isolated because of the lack of Khmer speaking inmates.
I take into account the hardship you will experience in prison as a result of isolation from your family and from Khmer speaking persons.
Current sentencing practices
In sentencing you, I must have regard to current sentencing practices as they presently exist,[40] whilst keeping in mind that the principle of equal justice that directs attention to sentencing practices at the time of your offending.[41] In considering current sentencing practices for the crime of murder, I reviewed material produced by the Sentencing Advisory Council and the Judicial College of Victoria.
Relevance of the delay in you being charged and brought to trial
[40]Sentencing Act 1991 (Vic), s 5(2)(b) (‘Sentencing Act’); Stalio v R (2012) 46 VR 426; [2012] VSCA 120 (‘Stalio’). In Stalio, the Court of Appeal held that the phrase ‘current sentencing practices’ in s (5)(2)(b) of the Sentencing Act 1991 relates to sentencing practices at the date of sentence not at the date of the commission of the offence: at [9(A)] and [11].
[41]Lowe v R (1984) 154 CLR 606, 610-11; Stalio [9(C)], [34]–[35] and [52]–[55].
In your case Meth Mean, the lapse of time since the commission of the murder involves three key aspects. The first relates to your youthfulness and immaturity at the time of the murder. The second relates to the extent to which you settled into a law abiding life in adulthood.[42] The third relates to the principle of equal justice, which I have already mentioned. However, the mere fact of the lapse of time before your offending was uncovered, is not in and of itself a factor that mitigates the sentence to be imposed.
[42]See Carter v the Queen [2018] VSCA 88 (‘Carter’) [52] and [63]–[64].
Sentencing practices at the time of your offending
Mr Lewis tendered sentencing statistics from 1987 and 1988,[43] which appeared to show that the average sentence of imprisonment for the offence of murder has increased over the years since 1987. I accept that this is established by reference to outcomes then and now.[44]
[43]Sentencing Statistics, Higher Criminal Courts, Victoria, 1987, published by the Management Information Section, Courts Management Division, Attorney-General’s Department.
[44]See also the remarks of Weinberg JA in R v Lavery [2017] VSCA 587 [60]–[61] (a sentence for a 2008 crime), along with the annexure to that sentence.
In sentencing you I intend to give effect to the principle in Stalio v R,[45] that has also been applied in the recent cases of Bradley v the Queen [46] and Carter v the Queen.[47] That principle requires me to have regard to the sentencing practices around the time of your offending as a relevant factor in ‘the imposition of punishment to the extent which is just in all the circumstances’.[48] I have done so.
[45]The Court of Appeal said in Stalio that ‘the concept of equal justice requires regard to be had to sentencing practices at the date of the offence if those practices can be demonstrated to have required the imposition of a materially lesser sanction for like offences than current sentencing practices would impose’: at [9(C)].
[46]Bradley v The Queen [2017] VSCA 69 (‘Bradley’). In Bradley, in a joint judgment of the Court of Appeal, the Court mentioned, in obiter dicta, a ‘possible qualification’ to the application of the principle of equal justice. The Court suggested that in some cases involving a long delay in a crime being punished, the offender may not be entitled to seek to be treated as if criminal responsibility had been established earlier: at [124]–[125]. The Court noted that in Bradley, ‘It was the applicant's own conduct, in leaving Victoria and concealing his responsibility for [the] murder for over thirty years, which made it impossible for him to be sentenced contemporaneously with the offending’: at [124].
[47]In Carter the Court of Appeal confirmed the principle of equal justice as expressed in Stalio, rejecting the argument that Stalio has been impliedly overruled by the High Court decisions of Kilic (2016) 259 CLR 256 and Dalgliesh No 1 (2017) 349 ALR 37: at [62].
[48]Stalio [52]; Sentencing Act 1991 s 5(1)(a).
In determining what weight to give to past sentencing practices, I have considered the circumstances of your case.[49] In your case, you left the crime scene after hiding the wood, and maintained your silence for three decades. However, I accept the submission of Mr Lewis that your move to Western Australia was conducted by your whole family and you simply went with them.
[49]In Carter, the Court of Appeal confirmed that Stalio does not require sentencing courts to sentence in accordance with the prevailing sentencing practices at the time of the offending; it only requires the court to have regard to sentencing practices at that time. The Court also stated that the weight to be given to that factor will depend upon the circumstances of the case.
Sentences in comparable cases
Mr Lewis referred the Court to the cases of DPP v Baea,[50] R v Pyliotis[51] and Bradley.
[50]DPP v Baea [2017] VSC 40 (‘Baea’).
[51]R v Pyliotis [2019] VSC 231 (‘Pyliotis’). This case is currently on appeal, which is yet to be determined.
In Baea, Elliott J sentenced an offender who was 21 at the time of their offence to 22 years’ imprisonment with a non-parole period of 17 years. There are some similarities between the circumstances in Baea and your case. The offender murdered a school friend’s mother after visiting her home. It was a brutal, unprovoked attack. The sentencing judge took into account the offender’s background of hardship as well as his youth and prospects of rehabilitation. There are also significant differences between your case and Baea. The offender in that case pleaded guilty. The day after the murder he spent time in church showing a desire to repent. He confessed to police and showed them where he left the murder weapon.
In Pyliotis, the offender was 23 when she committed murder. She was sentenced to 19 years’ imprisonment with a non-parole period of 15 years and 6 months. Justice Coghlan considered her a youthful offender, who was ‘unsophisticated and unworldly’.[52] The case had some unusual features and the offender had developed serious mental health issues by the time of her sentence, making it less useful as a comparator.[53]
[52]Pyliotis [21].
[53]Ibid [21]- [34]. She was considered to have overall good prospects of rehabilitation, despite her ‘lack of insight and remorse’ She was also found to have been mistreated in custody and made a suicide attempt the month prior to her sentencing and was considered to have led a ‘somewhat tortured life’.
In Bradley, Osborn JA sentenced the offender to 27 years’ imprisonment with a non-parole period of 21 years.[54] While Mr Lewis raised the case in the context of explaining the principle set out Stalio,[55] there are some common features between that case and your own. The offender was sentenced for the crime of murder after a long period of delay. His youth at the time of offending was relevant to his sentencing. However, I do not consider Bradley to be a strong comparator. Your life circumstances at the time of your offending were quite different to the offender in that case. At the time of his crime, he was already in the workforce, regularly drank alcohol and had been living with a female partner. He had a higher level of maturity than appears to be the case for you. The circumstances of his crime were also objectively more serious.[56] Further, the offender in Bradley continued to commit crimes after the murder and fell to be sentenced as a serious violent offender.
[54]That sentence was upheld on appeal.
[55]See also R v Hague [2018] VSC 323.The offender was sentenced to 26 years (with a non–parole period of 20 years). Lasry J’s sentence in that case was recently upheld in Hague v The Queen [2019] VSCA 218. In considering the issue of the delay in sentencing in that case, the Court of Appeal held, ‘…The applicant was not to be sentenced on the hypothetical basis that he was being sentenced at the time the offence occurred... The sentencing practice that applied to offending of this kind at the time of the offence is relevant to the extent that it can be ascertained…The applicant was entitled to some moderation in sentence on that account. However, just as current sentencing practice cannot control the sentencing discretion in a particular case and does not cap and collar the sentence, past practice cannot have a greater or more controlling effect’: at [251]–[252] (Ferguson CJ, Niall and Weinberg JJA).
[56]The offender in Bradley jointly participated, along with two other men, in the murder of a teenage girl who refused a demand for sexual intercourse. They stabbed her to death in a carpark, stabbing her at least 19 times. They then dumped her body by the side of the road, which was considered an aggravating factor.
Purposes for which sentences may be imposed
One common thread in all sentencing for the crime of murder is the recognition given to the sanctity of human life. The crime of murder is intrinsically grave. You robbed Ranny Yun of the precious gift of life.
Your lifestyle in Western Australia over the years since the murder has been conventional and your family speak well of you, but the fact remains that you have been able to raise a family and become a grandparent free of any curial consequences until now. As I have mentioned already, there is some evidence of rehabilitation with maturation since 1987, and I am especially mindful of your youthfulness and immaturity when you committed this dreadful crime. I consider your future prospects for rehabilitation to be good. On the other hand, the manner in which the murder was carried out, involving a sustained attack on a young woman in her own home and some form of sexual behaviour, make this a serious example of a very grave offence.
The principles of general deterrence, denunciation and just punishment deserve prominent recognition in your sentence. Specific deterrence and community protection do not require the same degree of weight, based on the way you have conducted your life as an adult, although this finding is tempered by your lack acknowledgment of your offending.
Principle of Parsimony (section 5(3))
I am bound by the principle of parsimony enshrined in s 5(3) of the Sentencing Act 1991 (Vic) that provides that the court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.
Conclusion
Murder is a crime that damages the whole community in addition to the direct impact experienced by the loved ones of the deceased person. Apart from the victims who gave victim impact statements other family members and friends will also have been grievously affected by the murder of Ranny Yun.
Having considered the objective gravity of your offence, along with your personal circumstances and all of the factors put forward in mitigation, I consider that you should be sentenced to 23 years’ imprisonment. The minimum non parole period you should serve is 17 years’ imprisonment.
Declaration of pre-sentence detention
Pursuant to section 18 of the Sentencing Act 1991 (Vic), I declare that the period you have spent in custody prior to your sentencing on 11 October 2019 is 709 days not including today.
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