Director of Public Prosecutions v Mehdi & Ors (Sentence)
[2025] VSC 532
•29 August 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0154
S ECR 2023 0155
S ECR 2023 0156
S ECR 2023 0157
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| ZEESHAN MEHDI, MOWEIT QIAN, DARA CHAU and TRUNG NGUYEN | Accused |
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JUDGE: | Fox J |
WHERE HELD: | Melbourne |
DATES OF PLEA HEARING: | 3 June and 4 July 2025 |
DATE OF SENTENCE: | 29 August 2025 |
CASE MAY BE CITED AS: | DPP v Mehdi & Ors (Sentence) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 532 |
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CRIMINAL LAW — Murder — Affray — D1, D2 & D3 convicted by jury — Deceased operating as a standover man and pursuing a debt from D1 — Deceased assaulted D1 in days prior to murder and was looking for D1 on night in question — Complicity — Agreement between D1, D2 and D3 to shoot and kill deceased — Deceased lured to D1’s premises and shot with single barrel shotgun — Identity of shooter not known — Standard sentence offence — Substantial delay not attributable to any accused — Parity — D4 pleaded guilty to manslaughter and affray on basis he was unaware shotgun would be used — D1 sentenced to a total effective sentence of 27 years’ imprisonment with a non‑parole period of 21 years’ imprisonment — D2 & D3 each sentenced to a total effective sentence of 26 years’ imprisonment with a non‑parole period of 20 years’ imprisonment — D4 sentenced to a total effective sentence of nine years and six months’ imprisonment with a non‑parole period of six years and six months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N Hutton SC with Ms J Ball | Office of Public Prosecutions |
| For Zeeshan Mehdi | Mr M McGrath with Mr W Blake | Slades & Parsons Criminal Lawyers |
| For Moweit Qian | Mr G Casement with Ms L Andrews | Chester Metcalfe & Co |
| For Dara Chau | Mr J Desmond with Ms S Stanley | Giorgianni & Liang Lawyers |
| For Trung Nguyen | Mr P Smallwood with Mr J Cleveland | Hofman Carroll Criminal Law |
HER HONOUR:
Introduction
Zeeshan Mehdi, Moweit Qian and Dara Chau, you have each been found guilty by a jury of the murder of Tommy Loulanting. You were also each found guilty of affray. Trung Nguyen, on 22 October 2024, you pleaded guilty to the manslaughter of Tommy Loulanting and to affray. You played no part in the trial and you were not a witness.
The maximum penalty for murder is life imprisonment. The maximum penalty for manslaughter is 25 years’ imprisonment. The maximum penalty for affray is five years’ imprisonment, or seven years’ imprisonment if the offender was wearing a face covering used primarily to conceal their identity.
Overview
Mr Loulanting was shot and killed shortly before 6am on 11 July 2022. The prosecution case at trial was put on two alternative bases of complicity. First, the accused were party to an agreement to kill or cause really serious injury to Mr Loulanting; or, secondly, the accused in question assisted or encouraged another accused (the shooter) to commit murder. The prosecution never nominated who the shooter was. In the course of the trial, the prosecution case on agreement narrowed: to be guilty of murder, the accused in question must have agreed to kill or cause really serious injury to Mr Loulanting by shooting him.
The jury verdict does not disclose the basis of complicity and, of course, the jury did not need to be unanimous as to the mode of complicity. I am satisfied, consistent with the verdict, that all three accused were party to an agreement to shoot and kill Mr Loulanting.
The unplanned attendance of Mr Loulanting at Unit 2/88 Corrigan Road, Noble Park (‘Unit 2’) around 2am on 11 July was a key event. It was after learning of Mr Loulanting’s 2am attendance that Mr Mehdi’s plan began to form or solidify. Mr Mehdi involved Mr Chau, and Mr Chau involved or recruited Mr Qian. Mr Nguyen was collected later but he was not part of the agreement to commit murder.
By the time all four accused were in the silver Mercedes outside 88 Corrigan Road shortly before 5am, the plan as between Mr Mehdi, Mr Chau and Mr Qian was to shoot and kill Mr Loulanting. I am satisfied that all three accused knew about the shotgun by at least this point in time. I accept that Mr Nguyen was unaware of the shotgun, consistent with the agreed basis for his manslaughter plea. Once Mr Loulanting entered Unit 2, he was shot and killed pursuant to the agreement. Two shots were fired. The cause of death was a single fatal shot to Mr Loulanting’s face or chin area. This was grave offending and the sentencing purposes of general deterrence, just punishment and denunciation must be afforded considerable weight.
The offending
Background to the offending
Around April 2022, Kristina Subu, who was a witness in the trial, gave $2,000 to her friend, Diana Mossawi, who is Mr Mehdi’s wife. A dispute arose between the two women as to whether the money was a loan or a gift, and whether it had been repaid. Ms Subu began aggressively pursuing what she considered to be a debt.
At the time of his death, Mr Loulanting was working as a standover man; he employed violence and intimidation to impose his will on others. He was using methamphetamine and had a reputation for being violent, unstable and aggressive. That reputation was borne out by his substantial prior convictions for offences of violence, which were tendered in evidence in the trial, and also by the viva voce evidence of several trial witnesses. Ms Subu engaged Mr Loulanting to help her recover the money.
On 3 July, Ms Subu sent Mr Loulanting to the home of Diana Mossawi in an attempt to recover the debt. Ms Mossawi was at home with the couple’s two‑year‑old son. Mr Loulanting demanded to know where Mr Mehdi was and tried to force his way inside her home. He finally left after Ms Mossawi told him she was calling the police.
Around 4:30am on the morning of 8 July, Mr Loulanting, together with an associate, attended at Unit 2, collected Mr Mehdi and took him to Ms Subu’s house. Once there, Mr Mehdi was tortured, beaten, tasered and humiliated for around half an hour by Mr Loulanting and his associate. Mr Mehdi was eventually released and a deadline was fixed, by which time he had to repay the money. The prosecution case at trial was that this incident was the motive behind the murder. For Mr Mehdi, this was no longer about a debt; it was about exacting revenge on the man who had beaten and humiliated him. On the other side, Mr Loulanting continued to pursue Mr Mehdi and his pursuit was only partly, if at all, about the unpaid debt.
CCTV footage from 8 and 9 July shows various people coming and going from both the Quest apartments in Dandenong and Unit 2. These people include Mr Mehdi, Mr Chau and Mr Kolio, who was a witness at the trial. The evidence establishes that Mr Mehdi and Mr Chau were associates or friends, and there are phone records connecting Mr Chau and Mr Qian. There are no records or other evidence connecting Mr Mehdi and Mr Qian until just before 4am on 11 July.
The events of 10 July 2022
On 10 July, commencing just after midnight, there are numerous calls between Mr Chau and Mr Mehdi, and Mr Chau and Mr Qian. Many of these calls do not connect and some are very short. It is unknown what was said. The calls between Mr Chau and Mr Mehdi continue throughout the day. At 6:20pm, Mr Mehdi messaged Mr Chau, ‘bro bags or no bags doesn’t matter but please remember the mission for tonight’. Fifteen minutes later, Mr Chau called Mr Mehdi, and another 20 minutes later Mr Chau responded with ‘yea’. The ‘mission’ as between Mr Mehdi and Mr Chau may have involved obtaining the shotgun but I cannot be sure about that. Approximately two hours later, Mr Mehdi messaged his wife: ‘but I am gonna do this mission and destroy Christina [Subu]’. In a subsequent message, he said it would not be worse than ‘last time’. These messages suggest that Mr Mehdi was planning to harm or threaten the deceased, but the plan at this time was something less than murder.
There are then a number of calls between Mr Chau and Mr Qian, as well as Mr Chau and Mr Mehdi. Significantly, at 9:24pm, Mr Chau’s mobile telephone connects to Mr Qian’s home Wi‑Fi. I am satisfied that Mr Chau and Mr Qian were together at this time, either inside or near to Mr Qian’s home. Approximately fifty minutes later, Mr Chau was at 88 Corrigan Road, having driven there in his sister’s silver Honda. At 10:23pm, Mr Mehdi was dropped at the Highways Hotel. At 10:27pm, Mr Mehdi can be seen inside the Highways Hotel with a distinctive red Mendoza brand sports bag. The single barrel sawn‑off shotgun that was later used to kill the deceased was inside that bag.
While at the Highways Hotel, Mr Mehdi received a message from Ms Subu, which made clear she had people watching him and knew where he was. Mr Mehdi was driven away from the Highways Hotel by Mr Kolio. Mr Kolio was, on any view, a frustrating, evasive and often dishonest witness. I put little weight on anything he said. After leaving the Highways Hotel, Mr Kolio and Mr Mehdi were pursued by the deceased and Ms Subu as they drove down Corrigan Road. I accept this was done aggressively and there was an attempt to ‘box in’ Mr Kolio’s car. I do not accept Mr Kolio’s evidence that, at this stage, Mr Mehdi produced a shotgun and tried to thrust it forward towards Mr Kolio. Mr Kolio then drove Mr Mehdi to the house of Mr Jabbour, another witness in the trial.
The events of 11 July 2022
Shortly before 1am, Mr Chau repeatedly tried calling Mr Mehdi. At 1:21am, a call connected for 15 minutes, but it is not known what was said.
Around 2am, Mr Loulanting attended at 88 Corrigan Road looking for Mr Mehdi. This was captured on CCTV and the deceased can be seen carrying a baseball bat as he walks up to Unit 2. By this stage, Mr Loulanting had his two young teenage sons, ML and DL, in the car with him, and may fairly be described as hunting for Mr Mehdi. Ms Subu remained involved throughout. She continued to message Mr Mehdi about the debt. She made it clear to him that Mr Loulanting was after him. She also messaged Mr Loulanting, and laughed about his plans to harm Mr Mehdi. She smoked ice with Mr Loulanting on this night, knowing it made him more violent and aggressive.
At 2:12am, Mr Mehdi sent a message to Mr Chau which read: ‘bro they are at Corrigan house fuckin shit up, and all of this happening because I listened to u last night and trusted ur words when u said Zak wait, tomorrow my boys will come and we do it professional’.[1] Over the next few minutes, the following messages were then exchanged:
Chau to Mehdi: bro what you want to do. we go n do it
Mehdi to Chau: Bro I always listen to everything you said to me to do, now this time as well u tell me what should we do
Mehdi to Chau: They are at Corrigan house fuckin shit house [sic]
[1]Mr Mehdi is also known as ‘Zac’ or ‘Zak’.
Around 3am, Mr Chau collected Mr Mehdi and Mr Jabbour from Mr Jabbour’s house and drove them to where Mr Qian lived. Mr Mehdi had with him the red Mendoza sports bag containing the shotgun. Mr Jabbour’s role on this night is not entirely clear. He was another exasperating and often dishonest witness. He was probably there on the night to provide some sort of backup or support to Mr Mehdi, along with Mr Kolio, who was probably there as some kind of lookout. Whatever role those two were playing does not increase or reduce the seriousness of the offending.
Mr Chau, Mr Mehdi and Mr Jabbour, followed by Mr Qian, who was in a silver Ford, then drove in convoy to a house in Springvale where they collected Mr Nguyen and a silver Mercedes. The purpose of using the silver Mercedes was that it was a vehicle that was not directly connected to any of the accused. It belonged to a person called Hadji, who played no part in the events of this night.
Around this time, Mr Mehdi was also messaging Ms Subu. He misled her and told her he was in the process of getting an Uber to her address. This was never his plan. Instead, the plan was to have Ms Subu attend at Unit 2, which is what occurred. Mr Mehdi knew, or expected, that Ms Subu would be accompanied by Mr Loulanting. That is the inescapable conclusion to be drawn when one looks at all the messages of this night, together with the events of the preceding days.
The next part of the journey was from Springvale to the Sandown Park Hotel, and then from the Sandown Park Hotel to 88 Corrigan Road. At least between Springvale and the Sandown Park Hotel, Mr Chau travelled separately. Mr Mehdi, Mr Qian and Mr Nguyen travelled in the silver Mercedes. At trial, an issue arose as to whether Mr Chau attended at the Sandown Park Hotel and whether this was when he joined the others. Ultimately, it matters little whether Mr Chau entered the silver Mercedes at the Sandown Park Hotel or whether he entered it slightly later when it was parked outside on Corrigan Road. What matters is that all four accused were inside the silver Mercedes and outside 88 Corrigan Road shortly before 5am. Mr Nguyen then left the silver Mercedes, walked up the driveway and covered the CCTV camera located outside Unit 3. This camera captured the view down the driveway and showed people coming and going from Unit 2.
After covering the camera, all four accused entered Unit 2. The witness, Mr Kolio, said he went inside Unit 2 and saw Mr Mehdi unmasked and the other three accused wearing masks. He recognised Mr Chau. An Asian man he did not recognise was holding a shotgun. A great deal of time at trial was spent cross‑examining Mr Kolio with a view to establishing this never occurred, or that he only saw two and not three people, other than Mr Mehdi. This was likely one of the few grains of truth in Mr Kolio’s evidence but, even without his evidence, given all the other evidence and what can be seen on CCTV after the shooting, I would nonetheless be satisfied that all four accused were present inside Unit 2.
At 5:52am, Ms Subu messaged Mr Mehdi with the single word, ‘here’. I am satisfied that all accused knew that Ms Subu had arrived. I am also satisfied they would have known Mr Loulanting had arrived, given he parked diagonally in the driveway of 88 Corrigan Road.
Mr Loulanting, Ms Subu, and Ms Subu’s boyfriend then knocked on the door of Unit 2. Mr Mehdi, unmasked, opened the door. Mr Loulanting pushed past Ms Subu and entered first. Very shortly after entering, he was attacked. He was shot in the back of the leg, which suggests he was facing away from the shooter at this time. He was also struck with a bladed instrument, likely a machete, three times, to the side hip area, the upper side shoulder area and along his jawline extending to his ear. The shotgun was a single barrel weapon and required reloading before the second shot was fired. It is likely that the fatal shot to the face area was the second shot.
Following or during the shooting, Ms Subu and her boyfriend ran from Unit 2. I am satisfied Ms Subu was chased by Mr Mehdi, who was armed with a pole, and one of the accused broke the window of Mr Loulanting’s car. All four accused ran from the house onto Corrigan Road. Mr Qian had the shotgun, Mr Chau had a machete, Mr Nguyen had some type of implement, perhaps a tomahawk or a bar, and Mr Mehdi had a pole. All four engaged in an affray, including Mr Mehdi striking Ms Subu’s boyfriend with the pole. At one stage, Mr Qian pointed the shotgun towards Ms Subu. All four then left in the silver Mercedes. Mr Chau, throughout the events of the night of 10 July and the morning of 11 July, was wearing a distinctive black windcheater with ‘Calvin Klein’ written in white across the front and a small white ‘CK’ on the back. The white writing effectively glowed in the dark when captured on CCTV footage. This made Mr Chau easy to identify.
After the shooting, Mr Mehdi rang Ms Subu and said ‘I shot your boy’. I accept this occurred. I do not, however, accept that Mr Mehdi meant to convey that he himself was the shooter. He may have meant that he arranged for her ‘boy’ to be shot. According to Mr Jabbour, Mr Mehdi is meant to have told him that he was standing there with the gun and shaking when the guy from the silver Ford (Mr Qian) took the gun from him and shot the deceased. I am not sure if this was ever said.
Approximately two months after the shooting, Mr Qian wrote, in a text message to a person called Big Jace, ‘I knew I shouldve dropped her too lol. I reloaded for her. But didnt pull. 6am traffic in corrigan. Fkn mo lol’.
After several months of investigation, Mr Qian, Mr Chau and Mr Mehdi were all arrested. Mr Chau told a number of lies to the police. He claimed not to know the other accused and not to have been at Corrigan Road at the time of the shooting. Mr Qian told similar lies. Mr Mehdi’s record of interview was not in evidence in the trial. Mr Nguyen was arrested on 21 October 2022. He made some admissions, including that he was the one who covered the CCTV camera.
At trial, Mr Mehdi and Mr Qian admitted they were present inside Unit 2. Neither admitted to being the shooter or otherwise killing the deceased, and denied murderous intent. They did not dispute their participation in the events making up the affray, but Mr Mehdi argued he was acting in self‑defence. Mr Chau admitted he was in the vicinity of Unit 2, but denied being inside Unit 2 at the time the deceased was present and killed, and denied he was part of the affray. No accused gave evidence in the trial.
Factual findings for the purposes of sentencing
In this trial, and not uncommonly, the jury verdict does not resolve all matters of potential importance relevant to an individual offender’s culpability.[2] I make the following findings for the purposes of sentencing:[3]
[2]Cheung v The Queen (2001) 209 CLR 1, 9–10 [5]–[6] (Gleeson CJ, Gummow and Hayne JJ).
[3]In the case of the accused Mr Nguyen, the factual findings are based on the Summary of Agreed Facts.
(a) Mr Chau sourced the single barrel sawn‑off shotgun from Mr Qian on the night of 10 July at around 9:24pm, being the time of the Wi‑Fi connection. It is unknown what was said between Mr Chau and Mr Qian at this time. Mr Chau later provided the shotgun to Mr Mehdi. The evidence establishing this is circumstantial but compelling. Mr Qian had a video of the shotgun on his phone prior to this night.[4] Within 10 minutes of connecting to Mr Qian’s Wi‑Fi, there are two missed calls from Mr Chau to Mr Mehdi, followed by a short call from Mr Mehdi to Mr Chau at 10:01pm. At 10:20pm, Mr Chau arrives at 88 Corrigan Road, where he collects Mr Mehdi and drives him to the Highways Hotel. Minutes later, Mr Mehdi enters the Highways Hotel with the red Mendoza sports bag containing the shotgun. Immediately after the shooting, Mr Qian was in possession of the shotgun during the affray. Three months later, Mr Qian was found with a red Mendoza sports bag containing a single barrel sawn‑off shotgun. It is unrealistic to suggest that it is a different red Mendoza sports bag, or a different single barrel sawn‑off shotgun.
[4]There was evidence of two videos found on Mr Qian’s phone showing the shotgun, one taken 20 April 2022 and the other taken 24 September 2022. At trial, it was not disputed that the shotgun in the videos was the same shotgun Mr Qian was found with in the red Mendoza sports bag. It was disputed that the shotgun was the murder weapon.
(b) While I am satisfied that Mr Chau provided the shotgun to Mr Mehdi at around 10:20pm on 10 July, I am not satisfied it was done pursuant to any agreement to shoot the deceased. It is unclear what Mr Mehdi’s intentions were at this time, and what role, if any, others would play. Nor am I satisfied that Mr Qian knew anything about Mr Mehdi or the deceased at this point. I do not draw any conclusion as to why Mr Qian had the shotgun.[5]
[5]It is also not clear if Mr Qian owned or possessed the shotgun between 20 April 2022 (the date of the first video) and this night, or otherwise had access to the shotgun.
(c) The events of 2am on 11 July marked a turning point. Mr Mehdi was not at 88 Corrigan Road, but based on what he was told, he genuinely believed that the deceased was hunting for him and that Mr Loulanting was with up to eight others. Mr Mehdi’s response to learning this was to contact Mr Chau and seek his assistance. The reference to Mr Chau having said he would enlist his ‘boys’ and they would come and ‘do it professional’ may refer to a professional killing, but I am not prepared to draw that inference to the criminal standard.
(d) The actions of the deceased contributed to the events of this night. He had involved himself in the dispute, and had remained involved for approximately one week. He violently assaulted Mr Mehdi on 8 July and it was likely his intention on this night, had he not walked into the trap, to repeat that assault. Based on the evidence of ML, which I accept, the deceased knew that the ‘guy’ (singular) in the unit had a gun on him, but went in anyway. While of course Mr Loulanting did not deserve to be killed, it cannot be said that he was in the position of an innocent bystander or a blameless victim. The deceased was not invited to, nor asked to attend, Unit 2. He was killed inside a property that was not his, and where he had no lawful right or need to be.
(e) Mr Mehdi was concerned that the deceased may be with several other people and, likely for this reason, Mr Mehdi was also keen to have people with him so he was not outnumbered. Mr Nguyen was, by chance, at Hadji’s house in Springvale. Mr Nguyen understood he was part of an agreement to unlawfully assault the deceased, but he did not know that the assault would involve a firearm.
(f) By around 5am, all four accused were in the silver Mercedes outside 88 Corrigan Road. As between the three trial accused, I am satisfied there was an agreement to shoot and kill the deceased when he arrived at Unit 2. It may be the agreement existed earlier, but for the purposes of sentencing, I am satisfied it was in place by this time.
(g) Mr Nguyen covered the CCTV camera and the other accused knew this was being done. The purpose of covering the CCTV camera was so there would be no record of the deceased or the accused entering or leaving Unit 2.
(h) Mr Mehdi had been in contact with Ms Subu after 2am, leading her to believe he might repay all, or some, of the money. He lured her to Unit 2, knowing the deceased would also attend. This was part of the plan.
(i) Once inside Unit 2, all accused other than Mr Mehdi covered their faces and armed themselves. Mr Mehdi was not disguised because the plan relied on the deceased seeing and recognising him, and pursuing him into Unit 2.
(j) The deceased entered Unit 2, whereupon he was ambushed and killed. I cannot be sure what order the shots and other blows were inflicted, but it does not alter the gravity of the offending. Mr Qian’s message to Big Jace was a damning admission. He identifies the time and place of the incident and admits to reloading the shotgun. His reference to ‘dropped her too’ is a reference to having dropped someone else and, here, that can only mean the deceased. I am satisfied that Mr Qian fired at least one of the two shots.
Roles and motive
I accept as a starting point that the role of an offender is an important factor relevant to an assessment of the culpability of that offender.[6] In some cases involving an agreement, it may be necessary for the sentencing judge to consider the role or actions of the individual accused, insofar as the material before the judge permits. This commonly occurs in cases involving a large scale drug trafficking enterprise, where the parts played by the participants may vary widely, from organiser to courier.[7] However, criminal agreements are, by their nature, rarely documented or written down. They may, as here, be formed over a relatively short period of time. The evidence may not allow the fact finder to be certain of who played what part in the execution of the agreement, or what motivated a particular participant.
[6]See also Sentencing Act 1991 (Vic) s 5(2)(d), which requires a sentencing court to have regard to the offender’s culpability and degree of responsibility for the offence.
[7]R v Olbrich (1999) 199 CLR 270, 277–278 [14]–[16] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
The prosecution never nominated who killed the deceased, and it is necessary to have regard to the manner in which the case was put before the jury to ensure that full effect is given to the verdict.[8] It was open to the jury, and consistent with the prosecution case, to convict the three of you of murder without determining who fired the fatal shot. As participants in an agreement to murder and as a matter of law, you are each liable for each other’s actions when committing the crime. You were all part of an agreement to shoot and kill the deceased, and you were acting as a team. You were together throughout the execution of the agreement. The position following verdict may have been different if the prosecution case on agreement had not narrowed in the way it did. However, once you agree to kill a person by shooting them, your personal criminal responsibility is not reduced because you did not pull the trigger. For example, in the circumstances here, it could not be said that Mr Mehdi was less culpable if he did not pull the trigger himself, given the genesis of this agreement was his grudge against the deceased. As Mr Mehdi said to Ms Subu, ‘I shot your boy’ — whether he actually shot the deceased, or arranged for the deceased to be shot, is immaterial.
[8]R v Bennett (2002) 137 A Crim R 210, 217 [30] (Winneke, Vincent JA and O’Bryan AJA).
It could be said that Mr Mehdi is more culpable, because he had a motive and was seeking revenge. It was Mr Mehdi who set the plan in motion. However, he went to Mr Chau for advice as to what to do and, based on the messages, it seems Mr Mehdi was listening to Mr Chau. It is very hard to draw a real distinction between the roles of Mr Chau and Mr Mehdi. Mr Qian was then recruited, but it was still approximately two hours prior to the murder, and he agreed to join a plan to kill someone he did not even know. Again, this makes it difficult to meaningfully separate out or lessen the role of Mr Qian in this enterprise.
I find that Mr Mehdi was motivated by both a desire to revenge the earlier attack on him, but also by fear of what Mr Loulanting might do to him next. However, he had other options. He was not unexpectedly confronted by Mr Loulanting and reacting. Mr Mehdi could have avoided the deceased on this night by remaining in public places, such as the multiple 24‑hour pokies venues that everyone was in and out of during the days in question. He could have arranged to meet Ms Subu in a public place. Revenge can be exacted on a person who has behaved lawfully or where, as here, they have behaved unlawfully.[9] Here, at least insofar as Mr Mehdi is concerned, while his desire for revenge was mixed with fear, he had no right to do what he did. As Niall JA succinctly stated in Wyka v The Queen,[10] ‘the law cannot condone revenge, particularly at the barrel of a gun’.[11]
[9]See R v Pan [2021] VSC 703. In that case, the conduct that provoked the killing was lawful; the victim had reported the offender to the police and the offender harmed the victim in response. Revenge is personal; it is an act of retaliation against someone who has caused harm, either to the person seeking revenge or someone associated with them. Revenge may be contrasted with vigilantism. The latter involves a person taking the law into their own hands, to prevent or punish a crime, or a perceived crime. It often leads to attacks on innocent persons.
[10][2020] VSCA 104.
[11]Ibid [3].
It was submitted on behalf of Mr Chau that his moral culpability ought to be assessed as lower because, even if he became involved in a plan to kill the deceased, he cannot be said to be the person who instigated that plan. I am satisfied that Mr Mehdi recruited or enlisted Mr Chau to assist him. However, in the circumstances here, I reject any suggestion that this was a spontaneous plan formed after the deceased entered Unit 2. The weight of the evidence shows this to be most unlikely. The text messages between Mr Mehdi and Mr Chau at around 2:12am show that Mr Mehdi went to Mr Chau for advice as to what to do. It seems Mr Chau became involved to help Mr Mehdi, but the nature of their relationship, and why he wanted to help him by agreeing to murder, is not known. In such circumstances, whether you are the person recruiting others to help kill someone you have a grudge against, or you are the one who is recruited, does not reduce the gravity of the individual offending.
Mr Qian was part of a plot to murder the deceased by at least the time the accused were in the silver Mercedes on Corrigan Road. He may well have joined, or at least known of, the plan earlier. In the case of Mr Qian, I do not know why he attached himself to this plan. He played an essential role, and he fired at least one shot. In those circumstances, it cannot be said that his moral culpability is reduced because he was not the one with the grudge against the deceased. In my view, the moral culpability of each of you is high.
Matters personal to Mr Mehdi
Background
Mr Mehdi, you were aged 34 at the time of the offending and are now aged 37. Your prior convictions are lengthier and more serious than your co‑accused, however your background and mental health issues raise matters that are relevant in mitigation. You have been in protection since you were remanded into custody and time served in protection is generally treated as more onerous than time served in mainstream prison. Finally, you are not an Australian citizen and face the prospect of deportation.
You are an Afghan Hazara man and a Pakistani citizen who was born in Quetta, Pakistan in 1987. You were the third of four siblings, with an older brother, older sister and younger brother. Your family fled to Pakistan as refugees to escape from widespread ethnic and sectarian persecution in Afghanistan. You completed your secondary education in Quetta and performed well in mathematics and Islamic studies. Your family was relatively stable and you did not experience violence or other abuse within the home. However, from the age of 9, you were subjected to prolonged and repeated sexual abuse by adult male neighbours. You were too ashamed and confused to report this abuse, and you also feared for your family’s safety if you disclosed what was occurring.
Quetta was subjected to terrorist bombings, shootings and violence. As a Shia Muslim, you were targeted by local Sunni youths motivated by hatred towards the Hazara minority. You were stabbed and subjected to other violent assaults. You migrated to Australia alone in 2007 aged 19 seeking refuge, safety and opportunity. Your father was later killed in a terrorist bombing attack in Pakistan in 2010, and your sister was killed in a separate bombing in 2012. Your mother and younger brother now live in Afghanistan. You described your older brother to Mr McKinnon, psychologist, as ‘mentally not all there’. You have no immediate but some extended family still in Pakistan.
After arriving in Melbourne, you commenced a Diploma of Community Welfare but discontinued studying in order to work and support your household. You have only basic English literacy and verbal skills which has restricted your employment choices. Since being in Australia, you have worked in manual roles including food distribution and pipefitting. You met and married your first wife in 2008 but divorced in 2012 due to irreconcilable differences. You married your second wife in 2017 and have one son, aged 4. Your wife is Afghan and you share a close relationship with her family. You maintain regular telephone contact with your wife, but you have not seen your young son since you were remanded.
You commenced abusing inhalants and ‘chroming’ at age 9, primarily in response to the sexual abuse you suffered. You instruct that you kept doing this for years. After your first marriage failed, you sank into depression and started using methamphetamine to obtain temporary relief from your distress. You have also occasionally used other drugs including cannabis, GHB, MDMA and cocaine. After the birth of your son, you attempted to abstain from substance abuse but never entirely succeeded. You continued to use methamphetamine and were using at the time of this offending.
Your criminal history commenced in 2011, aged 24. You have 13 Magistrates’ Court appearances and one successful sentence appeal to the County Court, in which you received a Community Correction Order which you went on to breach. You have prior convictions for multiple offences including driving offences, drug trafficking and dishonesty. You have convictions for violence including reckless conduct endangering life or serious injury, assault with a weapon, unlawful assault, possess a prohibited weapon, intentionally cause injury, threat to kill and contravene a family violence intervention order. You have been sentenced to short terms of imprisonment, including for breaching Community Correction Orders. Prior to this offending, you had received a six month sentence of imprisonment in October 2020 for a number of offences, including traffick methamphetamine and ecstasy, possess cartridge ammunition without a license, obtain property by deception and theft.
You fall to be sentenced as a serious violent offender pursuant to Part 2A of the Sentencing Act 1991 (Vic) (‘Act’).[12] Pursuant to s 6D(a) of the Act, I must regard protecting the community from you as the principal purpose for which the sentence is imposed. The prosecution did not seek a disproportionate sentence pursuant to s 6D(b), and such a sentence is not warranted here.[13] You were also on bail at the time of this offending for charges including drug trafficking, handling stolen goods, possessing a controlled weapon and committing an indictable offence while on bail. This somewhat aggravates your offending but, for reasons I will come to, it does not alter my approach as to whether cumulation between the sentences should be ordered.[14]
[12]You have a prior conviction for Make Threat to Kill dating back to 2016 for which you received a term of imprisonment as part of an aggregate sentence. Make Threat to Kill is a serious violent offence pursuant to sch 1 cl 3(b)(iii) of the Act. Murder is a serious violent offence pursuant to sch 1 cl 3(a) of the Act. You therefore fall to be sentenced for murder as a serious violent offender pursuant to ss 6A & 6B of the Act.
[13]The imposition of a disproportionate sentence pursuant to s 6D(b) of the Act has been described as ‘of a kind which is rarely imposed’ and ‘rightly considered rare’; see R v Tutchell [2006] 168 A Crim R 25, 32 [35], 40 [76] (Ashley JA).
[14]The Act, s 16(3C) states that every term of imprisonment imposed on a person for an offence committed while released on bail shall be served cumulatively unless otherwise directed.
Psychological material
A psychological assessment report authored by Mr McKinnon and a neuropsychological assessment report authored by Dr Staios were tendered on your behalf. According to Mr McKinnon, you suffer from complex post‑traumatic stress disorder (‘PTSD’) resulting from your sexual abuse and exposure to violence and death. Your symptoms include high‑level depression, anxiety, flashbacks and paranoia. In Mr McKinnon’s opinion, your complex PTSD likely made a significant contribution to your offending by degrading your ability to apply good reasoning and sound judgement. Your background has tended to lead you to criminal situations and you are likely to react to any perceived threats with a defensive, or even violent, reaction. Given you had been victimised by the deceased a few days earlier, it is likely you were driven to exact revenge and replace your role as the victim (loser) with the role of the perpetrator (victor). Your anti‑social and criminal traits, and associated violent tendencies, also made ‘significant contributions’ to your offending. Based on your self‑reporting, Mr McKinnon did not consider that your methamphetamine use was a factor in your offending. Mr McKinnon opined that you are currently in a very poor state of mental health and at high risk of suffering further deterioration following sentencing. Your status as a protection prisoner limits the programs and services you can access, although you are currently medicated and being treated by a psychologist.
Dr Staios assessed your cognitive functioning by administering a number of tests in English. Given your limited English language skills, I found this somewhat surprising.[15] Dr Staios did not address what impact, if any, testing in English would have on the results. Dr Staios’ ‘impression’ was that your performance across several neuropsychological measures was primarily impacted by your medication. He recommended a medication review and further testing in six months’ time. Overall, I found his report of limited assistance. I accept his opinion that your earlier childhood trauma has very likely led to emotional dysregulation, maladaptive coping strategies, and the subsequent integration of anti‑social personality traits into your personality structure.
[15]Mr Mehdi had an Urdu interpreter throughout the trial, although to my observations, the interpreter was seldom used.
Your counsel raised the applicability of the Bugmy[16] principles given your childhood exposure to sexual abuse, unrest and sectarian violence. They conceded there was no link between this offending and your background but submitted that the ‘general approach’ articulated in Bugmy has application. The prosecution did not contest the ‘general application of the Bugmy principles, and conceded some application of Verdins principles 1 and 6 was ‘appropriate’. It is difficult to disentangle your childhood experiences from your complex PTSD, where the former led to the latter. I accept that prior to arriving in Australia, you faced the type of violence, trauma and fear that many people would never experience in their lifetime. The impact of your early life and the state of your mental health combine when assessing, as best I can, the reasons for this offending. Overall, I accept that your moral culpability is somewhat reduced due to your childhood trauma and your complex PTSD.[17]
[16]See Bugmyv The Queen (2013) 249 CLR 571 (‘Bugmy’).
[17]R vVerdins (2007) 16 VR 269 (‘Verdins’), Limb 1; Bugmy, 594–595 [40], [43]–[44] (French CJ, Hayne, Crennan, Kiefel, Bell an Keane JJ); DPP v Herrmann (2021) 290 A Crim R 110, 118–122 [36]–[48] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA).
Due to your complex mental health issues, combined with your status as a protected prisoner, you are likely to experience imprisonment as more burdensome than someone of ‘normal’ mental health.[18] I accept Mr McKinnon’s opinion that there is a high risk of your mental health deteriorating if you receive a ‘long term’ of imprisonment. The extent to which imprisonment will have a significant adverse effect on your mental health is somewhat unclear, although it certainly may do, depending upon how you react to your sentence.[19]
[18]Verdins limb 5 insofar as the burden is due to mental health problems.
[19]Verdins limb 6.
No character references were tendered on behalf of any of you. Mr Mehdi, your prospects of rehabilitation are difficult to assess and, based on the material I do have, appear guarded. Mr McKinnon was unable to offer any useful opinions or suggestions about your prospects of rehabilitation as you are currently very unwell and unable to contemplate your future beyond prison. Dr Staios assessed you as high risk of further offending.
Risk of deportation
You are not an Australian citizen and you are currently on a valid permanent resident visa. Once you are sentenced, you face mandatory cancellation of your visa.[20] If that were to occur, you would be almost certainly deported, unless you request revocation of that decision and your request is successful.[21] In all the circumstances, given the sentence I will impose, I accept there is a real prospect you will be liable to deportation. As set out in Hague v The Queen,[22] the Court may consider the considerable chance you will be deported in a number of ways. First, the prospect of deportation is a form of extra‑curial punishment. This is particularly so given you have made a life in Australia and you have a young child living here.[23] If you are deported, there is a real chance you will lose the opportunity to have a meaningful relationship with your son. Of course, that opportunity has already been damaged by your own actions in committing murder. Secondly, your time in custody will likely be more burdensome than it is for other prisoners, due to your anxiety about the prospect of future deportation. I have no evidence of this, but I am prepared to accept, in a general sense, that the prospect of being deported from Australia will engender anxiety. For these reasons, the prospect of deportation constitutes extra‑curial punishment and mitigates the sentence I would otherwise impose.
[20]Pursuant to s 501 of the Migration Act 1958 (Cth), if someone is sentenced to a single sentence of more than 12 months, they will not pass the ‘character test’ and their visa will be cancelled.
[21]Pursuant to s 501CA of the Migration Act 1958 (Cth).
[22][2022] VSCA 17; 98 MVR 503, 12–13 [28]–[31] (Forrest and Walker JA).
[23]Ibid.
Personal circumstances of Mr Qian
Mr Qian, you are the youngest of the offenders; you were 25 years old at the time of the offending and are now aged 28. Your prior convictions are limited to two Magistrates’ Court appearances for nine offences including theft, unlawful assault and threaten serious injury. On both occasions, you were fined. You also have a subsequent matter, having been found in possession of the shotgun in October 2022.
Your parents migrated to Australia from China and you were born here. You have one younger brother, and both your father and brother work as engineers. Your mother is an accountant. As a child, you felt pressured to achieve both academically and in extracurricular activities. You were bullied in primary school and believe you were largely targeted due to your race. You changed schools in Year 6 and began fighting back. Your behaviour deteriorated from this point. You attended two different high schools for Years 7 and 8, and you were expelled during Year 8 for truancy, fighting and poor behaviour. Your parents enrolled you in a school for ‘troubled adolescents’ that used physical punishment as discipline (with parental approval). Apparently, your behaviour improved in this setting. You then attended a different high school in Year 11 and were expelled in Year 12 due to ongoing behavioural problems.
You left home at age 18 but were financially assisted by your parents up until your remand, including assistance with rent and living expenses. You were first employed by Coles supermarkets while still at school. You then worked as a cabinetmaker and at age 20 began working as a furniture removalist. You worked in this field until your arrest in October 2022. You have one long‑term relationship from when you were aged 23 and have one child from this relationship. After your remand, you initially maintained contact with your partner and had video visits with your child. Your partner soon ended this contact and you have not seen or heard from her since late 2022 or early 2023. You believe that she and your child now live in Queensland.
Cognitive testing administered by a psychologist when you were 13 years old found you to be operating at least three years behind peer level. At the time, it was opined that your low cognitive abilities resulted in you feeling bewildered, frustrated and angry at school. A GP mental health care plan, prepared when you were 17 years old, listed your problems or diagnoses as ‘PTSD; anger issue [sic]; insomnia/drug abuse’. There is no explanation as to how these diagnoses were reached and I do not accept, on the material provided, that you suffer from PTSD. You have seen a psychiatric nurse in custody and are medicated with an anti‑psychotic and an anti‑depressant. It is unclear what has led to these prescriptions.
You were also on bail at the time of this offending, albeit for minor matters. You failed to give information to police in a driving matter on 2 October 2020 and were charged. Subsequently, you failed to appear, a warrant issued and you were placed on bail. When the matter was finally dealt with in October 2022, you received a without conviction fine. In the circumstances, I do not regard the fact you were on bail as aggravating this offending.
You are still relatively youthful. Your parents have visited you in custody on occasion, and you speak with them by phone. Your prospects of rehabilitation are difficult to assess given the seriousness of the crime and the absence of any real explanation by you as to why you did this. Nonetheless, given your age and lack of serious prior convictions, your prospects of rehabilitation are at least reasonable, if not good.
Personal circumstances of Mr Chau
Mr Chau, you were aged 43 at the time of the murder and are now aged 46. Your prior convictions are limited and they are considerably less serious than those of your co‑accused Mr Mehdi. Prior to 2017, you had only appeared at court once on charges of intentionally cause injury and riot. You received a without conviction fine. In August 2017, you received two months’ imprisonment, combined with a Community Correction Order, for charges including theft, burglary, dangerous driving while pursued by police and possess a controlled weapon without excuse. On appeal, you were resentenced to a Community Correction Order only. In February 2018, you were fined for possessing cocaine. In January 2019, you were dealt with for breaching your Community Correction Order. The order was varied and continued. Approximately oneweek after the deceased was killed, you were convicted on four counts of driving while disqualified and one count of failing an oral fluid test. You were sentenced to a 12 month Community Correction Order. You failed to attend your induction appointment and proved impossible to contact. Given what had just occurred, this is unsurprising, and breach proceedings have since been instigated.
You were born in Cambodia in 1979. Your family fled to Vietnam and later to Thailand before arriving in Australia in 1990 with the assistance of the church. Your early childhood was spent in refugee camps where you were exposed to frequent shelling, poor living conditions and the deaths of other children. You, your mother, your father and your sister arrived in Australia when you were aged 11. You spoke no English and had never attended school. Despite this, you went on to complete Year 12 at De La Salle College and later undertook a seven year apprenticeship as a programmer at Toyota. You subsequently worked as a quality engineer at Nissan, on a rose farm and in various labouring roles. Your father was a former Cambodian army serviceman, and you and your sister were occasionally subjected to violence by your father. Your parents have now retired. You married in 2014 and have one daughter, aged 8. Your daughter suffers from a neurodevelopmental disorder. Your wife is employed and you receive regular visits from your wife, daughter and sister.
You have a history of recreational drug use in social settings. You first consumed methamphetamine around the age of 33 and smoked the drug on weekends. You have no formal mental health diagnoses and you do not consider that your refugee experience has adversely affected your mental health. I accept that your prospects of rehabilitation are at least reasonable, if not good. You do not have a history of significant violence, you are physically and mentally well, you previously complied with a Community Correction Order and you have completed a number of courses while in custody. Based on what I know, this offending would appear to be out of character. It is at the least a very significant escalation in light of your limited criminal history.
Personal circumstances of Mr Nguyen
Mr Nguyen, you were aged 38 at the time of the offending and are now aged 41. You were born in Vietnam in 1984. You have one younger sister and multiple half‑siblings. Your father left when you were very young and your mother moved to Australia when you were aged 8, leaving you and your sister behind with an older half‑sister and her husband, who were farmers. You attended school during the day and worked in the rice fields in the afternoons and evenings. In 1998, aged 14, you and your sister came to Australia. You were excited to reunite with your mother but discovered on arrival that she had remarried. Your step‑father was violent towards your mother. You tried to intervene, but at age 16 were told to leave by your step‑father, which you did. Following this, you moved between friends, share houses and the streets, with only sporadic contact with your mother.
Upon arriving in Australia, you did not speak or understand English. You and your sister attended language school for six months, after which you were enrolled into Year 8 at Noble Park Secondary College. You were often ridiculed when you tried to speak and found it very hard to make friends. You moved to Springvale Secondary College but left in Year 10, unable to read or write in English. After leaving school, you worked in a grocery store and then on farms throughout Victoria, mostly picking fruit. At age 18, you became an Australian citizen. You met your first partner, Huang, online and, at age 19, you travelled to Vietnam to meet her in person. While there, she fell pregnant and you returned to Australia alone. Your daughter was born in Vietnam. You and your partner tried to maintain a long distance relationship but the distance was too great. After you separated, you continued to send money to support your daughter.
In 2008, you were introduced to heroin and ice, and very quickly became addicted. You were unable to work due to your drug addiction. You commenced a relationship with another addict and, in 2009, your son Jonathan was born. You and his mother separated and you were granted custody. You significantly reduced your drug use, resumed casual manual work and cared for your son. At age 26, you met your third partner, Huong. You were together for four years, during which time you both worked and purchased a house together. In 2013, your son Max was born. Unfortunately, this was followed by you relapsing into serious drug use, which rapidly led to the end of your relationship. Since then, drug use has been an entrenched part of your life. You lost custody of Jonathan in 2015, the same year your criminal history commenced. For the past decade, you have been in a cycle of severe drug addiction, homelessness, offending and punishment. Your prior convictions are reasonably lengthy, but they start later in life and you have no prior convictions for crimes of violence. You have convictions for numerous offences including possess drugs of dependence, driving offences, possess a controlled weapon, possess and own an unregistered handgun and ammunition, theft, burglary and aggravated burglary. You have received a range of sentences, including a Community Correction Order (which you breached) and terms of imprisonment. Your criminal history is limited to the Magistrates’ Court, other than one County Court sentence appeal. Your prospects of rehabilitation are very much tied to your drug use; if you overcome your addiction, they are good, but if you resume using drugs when released, they are poor.
You were released from custody in March 2022, having served the whole of a 12 month head sentence. By July 2022, you were homeless and abusing drugs. You did not know the deceased and you did not know he had assaulted Mr Mehdi on 8 July. You did not know Mr Chau or Mr Qian. You knew Mr Mehdi because you had used drugs together in the past. You had no plans to meet any of them on 11 July and met entirely by chance at Hadji’s house in Springvale. You agreed to assist in what you understood would be an assault and you were unaware that anyone had a firearm. You were not part of an agreement to shoot Mr Loulanting.
Sentencing considerations
Standard sentence
The standard sentence for murder is 25 years’ imprisonment and is one factor I must take into account. The standard sentence must not be treated as the starting point from which to add or subtract time.[24] It is intended to represent the sentence for an offence ‘in the middle range of seriousness’ taking into account ‘only the objective factors affecting the relative seriousness of that offence’.[25] The objective factors are to be determined without reference to matters personal to a particular offender, and wholly by reference to the nature of the offending.[26] Section 5B(5) requires me to explain how the sentence imposed ‘relates to that standard sentence’; that requirement is satisfied by identifying in these reasons the facts, matters and circumstances which bear on the ultimate sentence.[27]
[24]DPP v Lindemann [2024] VSC 220, [117] (Hollingworth J); the Act, s 5A(1)(b).
[25]The standard sentence regime is established by s 5A of the Act. The principles to be applied are set out in Brown v The Queen (2019) 59 VR 462. Fixing of non‑parole periods for standard sentence offences is governed by s 11A of the Act. Pursuant to s 11A(4)(b), if the head sentence is greater than 20 years, any non‑parole period must be fixed at least 70% of the head sentence unless the court considers it is in the interests of justice not to do so.
[26]The Act, s 5A(3). The narrow definition of ‘objective factors’ found in s 5A(3) ignores a range of matters which a sentencing judge must consider when assessing both the nature and gravity of the offending, and an offender’s moral culpability. Those matters, both aggravating and mitigating, must still be taken into account and their significance is not displaced or reduced by the standard sentence regime. See Brown v The Queen (2019) 59 VR 462, 479 [57] (Maxwell P, Priest, Kaye, Forrest, Emerton JA) (‘Brown’), citing McLaren v The Queen [2012] NSWCCA 284, [28] (McCallum J). See also ss 5(2)(c) and 5(2)(d) of the Act and see Brown, 479 [55], where the Court stated that the seriousness of an offence must still be assessed in the conventional way, by considering both objective gravity and moral culpability.
[27]Muldrock [2011] HCA 39; (2011) 244 CLR 120, 127 [13] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Brown, 474–5 [39]–[45].
Timing and value of guilty plea (Mr Nguyen only)
Mr Nguyen, although your plea of guilty to manslaughter was entered late in the overall procedural history of this matter, it was made in circumstances where the prosecution persisted with the more serious charge of murder, which was ultimately withdrawn. The timing of your plea must be viewed in this context.[28] Your guilty plea provides evidence of remorse. Additionally, I accept that you feel guilty for what occurred, and the part you played in Mr Loulanting’s death has weighed on you. Your guilty plea shows an acceptance by you for your role in this matter, and a willingness to facilitate the course of justice. It has substantial utilitarian or practical value, as it spared this Court the time and expense of a trial. That value is not diminished because your co‑accused nonetheless ran a trial.
[28]Cameron v The Queen (2002) 209 CLR 339, 345 [20] (Gaudron, Gummow and Callinan JJ), citing Atholwoodv The Queen (1999) 109 A Crim R 465, 468 (Ipp J).
Delay
There has been considerable delay in this matter. Delay may be mitigating in two broad ways: first, having a serious charge hanging over your head while on remand is stressful and makes custody more onerous. Secondly, an accused may be able to point to rehabilitative progress in the period between charge and sentence. The prosecution conceded delay is a relevant factor to be considered here.
All of you were first charged with murder in late 2022. Due to the unavailability and behaviour of several prosecution witnesses, the matter was adjourned more than once due to no fault of yours. I accept that you have all been on remand for a very lengthy period of time and, in those circumstances, I take into account the uncertainty and stress you would have experienced as a result of the delay.
Mr Nguyen, there is evidence that you have made considerable rehabilitative progress while on remand. You have worked as a prison billet and completed multiple courses, including courses in spoken and written English. During the period of delay you have demonstrated both remorse and reformation, and this entitles you to a meaningful sentencing discount.[29]
[29]Tones v The Queen [2017] VSCA 118, [41] (Maxwell P, Redlich JA and Kyrou JA).
Mr Chau, on the material I have, you have taken some steps to rehabilitate yourself while on remand. However, the weight to be afforded to this is limited by your refusal to accept the jury’s verdict.[30]
[30]R v Schioparlan (1991) 54 A Crim R 294, 301 (Young CJ).
Youth
The only accused to rely on youth as a mitigating factor was Mr Qian. Mr Qian, you were a relatively young man but you were not a young offender.[31] Moreover, the weight that attaches to youth correspondingly reduces as the level of criminality increases.[32] I do not find that your age alone mitigates the sentence I would otherwise impose for the crime of murder, but it remains a relevant matter.
[31]See the Act, s 3 (definition of ‘young offender’).
[32]Azzopardi v The Queen (2011) 35 VR 43, 57 [44] (Redlich JA).
Gravity of offending
Murder
There are several serious aspects of this offending: the crime was planned, albeit the planning was not lengthy or sophisticated; the plan was to shoot and kill the deceased; it was committed in company; the deceased was outnumbered; multiple weapons were used; and, other than Mr Mehdi, you were all wearing a face covering to disguise your identity. The fact that Mr Mehdi was not wearing a disguise does not reduce the gravity of his offending, given my finding that it was part of the plan that he needed to be recognised by the deceased in order for the deceased to enter the unit.
The attack itself lasted a minute or two. I cannot be sure what order the blows and shots were inflicted but, regardless, the deceased’s final moments would have been terrifying. You left him dead or dying in the hallway as you ran out and terrorised his sons, Ms Subu and her boyfriend. No victim impact statements were tendered on the plea, but no doubt those who loved Mr Loulanting, including his children, have been devastated by his violent death.
This was not a spontaneous reaction to an unexpected event. That said, the conduct of the deceased cannot be ignored. He chose to operate as a standover man, a role he seems to have embraced. He attended, uninvited, a property associated with Mr Mehdi. He was undeterred by the knowledge that ‘the guy’ (who, presumably, he believed to be Mr Mehdi) had, or might have, a firearm with him. The criminal milieu in which the deceased chose to involve himself forms part of the overall circumstances of the offending. However, all victims are entitled to the protection of the law.[33]
[33]Humphries v The Queen [2010] VSCA 161, [24].
Manslaughter
This was a serious example of manslaughter. The assault was planned; it was committed in company, weapons were used and disguises worn. The deceased was outnumbered and brutally attacked. Mr Nguyen, you freely agreed to assist in an unlawful assault and wielded a weapon. It is significant that you did not know of the shotgun, but your offending is still serious. Overall, I agree with the submissions of your counsel: you are guilty of serious offending, but your criminality and culpability are very different to that of your co‑offenders.
Affray
The affray was spontaneous and short lived. It occurred after you all left Unit 2 and before you reached the silver Mercedes. If Mr Loulanting had not been killed, it is very doubtful any of the immediate affray victims would have reported the matter to police. Of course, affray is an offence against public order and the victims extend to innocent bystanders and members of the public, such as Ms Middleton, who happened to be driving by on her way to work.
In the circumstances here, I have determined there is no proper basis to elevate or reduce anyone’s role in the affray based on who was wearing a face covering, or who had what particular weapon. It was very much a group attack, accompanied by a degree of confusion, as evidenced by Mr Qian and Mr Nguyen approaching and attacking Mr Kolio’s car. Mr Kolio was on the same side as Mr Mehdi on this night, or at least he purported to be.
This was a brief but determined confrontation involving weapons and actual violence, albeit no injuries were sustained by anyone. Given the hour, the street was not busy, but early morning traffic was starting to build. It is not a low level example of affray, but nor is it the most serious example of that offence. It was submitted, on behalf of all accused, that there should be total or substantial concurrency as between the sentences for murder (or manslaughter) and affray. There is considerable merit in that submission. In many ways, the affray really formed part of the overall circumstances of the killing on this night.[34]
[34]In common law terms, it could be said to form part of the res gestae of the crime of murder. In O’Leary v The King (1946) 73 CLR 566, the applicant (accused), an employee at a timber camp, was heavily intoxicated and assaulted numerous employees during the course of the evening. At some stage during the evening, and after retiring to bed, the deceased was struck violently to the head multiple times with a bottle. The majority (Latham CJ, Rich, Dixon and Willliam JJ) held that the evidence of the other assaults by the applicant formed part of the circumstances of the crime. They were a connected series of events which should be considered as one transaction.
Parity
Broadly speaking, the parity principle reflects the aims of equal justice and consistency in sentencing. It is desirable that persons who have been party to the commission of the same offence should, if other things are equal, receive the same sentence, but of course things are not always equal. Matters such as age, background, criminal history, prospects of rehabilitation and the general character of the offender are all relevant considerations when determining the appropriate sentence.[35] Personal factors must be taken into account when fixing both a head sentence and a non‑parole period,[36] but differences do not necessarily equate to a greater or lesser sentence.
[35]Lowe v The Queen (1984) 154 CLR 606, 609 (Gibbs CJ). See also Green v The Queen (2011) 244 CLR 462, 474 [31] (French CJ, Crennan and Kiefel JJ).
[36]R v Grmusa and Others [1991] 2 VR 153, 158 (Crockett, Fullagar and Hampel JJ). See also R v Bolton and Barker [1998] 1 VR 692, 693 (Hayne JA).
As already discussed, I accept that Mr Mehdi was motivated to some extent by fear, but also by a desire for revenge. Mr Mehdi chose to be the attacker and not the victim. His complex PTSD played some part in this offending, which was also driven by his anti‑social personality traits and involvement in the criminal world generally. Mr Mehdi falls to be sentenced as a serious violent offender; he was on bail at the time; and he has the most serious criminal history of all the accused. However, he has been held in protection; he faces the risk of deportation; his moral culpability is somewhat reduced for the reasons I have been through; and his time in custody has been, and is likely to be, more burdensome due to his poor mental health.
Mr Qian is the youngest of the accused with very minor prior convictions. He was on bail, but not for a serious or violent offence. His prospects of rehabilitation are more positive than those of Mr Mehdi’s. Mr Chau is the oldest of the offenders. Like Mr Qian, there is nothing that subjectively reduces his moral culpability. His prior convictions are more serious that Mr Qian’s but may still be described as relatively minor in nature, and his prospects of rehabilitation are also positive.
The application of the parity principle in this case is not easy. The offending itself is very serious and carries a maximum penalty of life imprisonment. Collectively, you acted as a team and there is no basis to distinguish between your culpability. The sentencing aims of denunciation, just punishment and general deterrence must be allocated greater weight than your personal circumstances.[37] Taking into account all relevant factors, including your individual backgrounds and circumstances, I have reached the view that the sentence imposed on Mr Mehdi should be slightly greater, particularly in light of his more serious criminal history. The personal differences as between Mr Qian and Mr Chau, including age, are not such as to demand different sentences.
[37]Greenburg v The Queen (1993) A Crim R 392, 400 (Kennedy, Pidgeon and Rowland JJ); Kao v The Queen [2019] VSCA 84, [61]–[63] (McLeish and T Forrest JJA).
Sentences
Indictment C2215851.1
Mr Mehdi, on charge one, the charge of murder, you are sentenced to 27 years’ imprisonment. On charge two, the charge of affray, you are sentenced six months’ imprisonment. I direct that the sentence on charge two be served wholly concurrently with the sentence on charge one. This makes a total effective sentence of 27 years’ imprisonment. I fix a non‑parole period of 21 years’ imprisonment. I declare you have already served 1000 days by way of pre‑sentence detention, such period to be reckoned as time already served under this sentence.
Mr Qian, on charge one, the charge of murder, you are sentenced to 26 years’ imprisonment. On charge two, the charge of affray, you are sentenced six months’ imprisonment. I direct that the sentence on charge two be served wholly concurrently with the sentence on charge one. This makes a total effective sentence of 26 years’ imprisonment. I fix a non‑parole period of 20 years’ imprisonment. I declare you have already served 1010 days by way of pre‑sentence detention, such period to be reckoned as time already served under this sentence.
Mr Chau, on charge one, the charge of murder, you are sentenced to 26 years’ imprisonment. On charge two, the charge of affray, you are sentenced six months’ imprisonment. I direct that the sentence on charge two be served wholly concurrently with the sentence on charge one. This makes a total effective sentence of 26 years’ imprisonment. I fix a non‑parole period of 20 years’ imprisonment. I declare you have already served 1001 days by way of pre‑sentence detention, such period to be reckoned as time already served under this sentence.
In the case of Mr Mehdi, on the charge of murder only and as required by s 6F of the Sentencing Act, I note that he has been sentenced as a serious offender and that will be entered in the records of the court.
Indictment N12361562
Mr Nguyen, on the charge of manslaughter you are sentenced to nine years and six months’ imprisonment. On the charge of affray, you are sentenced to four months’ imprisonment. I direct that the sentence on charge two be served wholly concurrently with the sentence on charge one. This makes a total effective sentence of nine years and six months’ imprisonment. I fix a non‑parole period of six years and six months’ imprisonment. I declare you have already served 983 days by way of pre‑sentence detention, such period to be reckoned as time already served under this sentence. I declare pursuant to s 6AAA of the Sentencing Act that, but for your plea of guilty, the total effective sentence I would have imposed is a sentence of 11 years and six months’ imprisonment and I would have fixed a non‑parole period of eight years and six months’ imprisonment.
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