Ho v The Queen
[2012] VSCA 26
•24 February 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2008 0522
| BILL HO | Appellant |
| v | |
| THE QUEEN | Respondent |
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ELECTION TO HAVE AN APLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION AND SENTENCE DETERMINED BY THE COURT OF APPEAL
PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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JUDGES: | BUCHANAN and HANSEN JJA | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 24 February 2012 | |
DATE OF JUDGMENT/ORDER: | 24 February 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 26 | |
JUDGMENTS APPEALED FROM: | Section 315 Application for Leave to Appeal, Court of Appeal, 14 October 2011, Weinberg JA R v Nguyen, Ho and Nguyen [2007] VSC 540 (Williams J) | |
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CRIMINAL LAW – Murder and attempted murder – Verdicts of guilty not unsafe or unsatisfactory – No point of principle.
CRIMINAL LAW – Sentence – Total effective sentence of 22 years and 4 months’ imprisonment with a minimum term of 19 years’ imprisonment not manifestly excessive – No point of principle.
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DETERMINED ON THE PAPERS
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | No appearances | |
| For the Respondent | No appearances |
BUCHANAN JA:
After a trial in the Supreme Court the applicant was found guilty on one count of murder and one count of attempted murder. A plea was conducted and the applicant was sentenced to be imprisoned for a term of 20 years on the count of murder and for a term of 10 years on the count of attempted murder. Two years and four months of the sentence on the count of attempted murder were cumulated on the sentence on the count of murder, creating a total effective sentence of 22 years and 4 months’ imprisonment. A non-parole period of 19 years’ imprisonment was fixed pursuant to s 14(1) of the Sentencing Act 1991.
The applicant sought leave to appeal against his conviction and sentence. The applications were dismissed by a single judge of this Court. The applicant has elected to have the applications heard by this Court.
The applicant and a man called Khoa were engaged in trafficking heroin to one Mau. On 8 November 2004 Mau owed the applicant and Khoa $5,000 for a quantity of heroin that had been supplied to him.
The applicant and Khoa went to a flat in Carlton in order to find Mau. They were accompanied by another man, Quang. The three men entered the flat. The applicant was armed with a revolver while Quang had a samurai sword. A number of persons were present in the flat.
The applicant believed that those in the flat were hiding Mau. One of the persons in the flat attempted to telephone Mau, but could not contact him. The applicant was upset. He played with the magazine of his revolver. Quang cut the neck of one of those present with his sword and slashed another on the knee and shin.
The applicant shot one Chau Minh Nguyen in the head. Chau Minh said in his evidence that he woke from sleep to see the applicant on one knee insisting that Mau be found. He said that the applicant pulled out his revolver and pointed it directly at him, asking ‘That guy?’. Khoa nodded his head and the applicant shot Nguyen. A short time later the applicant fired a second shot which struck Hieu Trung Luu in the head. Hieu Trung died immediately. Chau Minh survived.
The applicant gave evidence at the trial. He admitted that he went to the flat to recover a drug debt from Mau and that he was armed with a revolver. In the course of his evidence he said:
I thought if I pulled it out they would see the gun and get scared and tell me where Mau was, and pretty much … there was no response, I guess, and I thought of taking a shot at the wall and there was someone laying down near the wall and I shot above his head but at the wall, just to scare them.
After that it looked like it hit the person lying down and I was really scared … not long after I remember seeing a shadow come across to me on my right and I turned around and at that point the gun went off and I was, I remember seeing, seeing him fall down and I don’t know, I was just – after that I don’t know what I was thinking, I was just shocked …
The applicant said that the time that elapsed between the first and second shots was a couple of seconds. He said that he did not mean to harm Hieu Trung or Chau Minh and that, ‘I was just there that night just ready to scare them and get [my] money back, and no, I never wanted it to turn out like it did.’
The applicant’s evidence narrowed the issues. The questions for the jury were whether the applicant intended only to scare Chau Minh by shooting over his head and whether the shot that killed Hieu Trung was an accident.
The sole ground of the application is that the verdict was unsafe and unsatisfactory.
The applicant has chosen to have the application determined on the papers without a hearing.
It cannot be said that the verdict is unsafe or unsatisfactory in the sense that the evidence contained discrepancies, displayed inadequacies, was tainted or otherwise lacked probative force or that this Court should conclude that there is a significant possibility that an innocent person has been convicted.[1] This Court must not disregard the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence or the consideration that the jury has had the benefit of seeing and hearing the witnesses. There was a body of evidence from eye witnesses as to the shooting of the two victims by the applicant. In the face of that evidence, the jury were not bound to accept the explanation advanced by the applicant.
[1]See M v R (1994) 181 CLR 487.
In a written submission to this Court, the applicant has raised two specific arguments that he contends should cause this Court to doubt his guilt of the offences.
The applicant argues that the concession by the Crown that Quang may have picked up the samurai sword in the flat rather than bringing it with him to the flat is significant for it bears upon the applicant’s credibility.
While the credibility of the applicant was a critical issue, I do not consider that the jury’s consideration of the question whether Quang entered the flat with or without a sword would have had any effect upon the jury’s assessment of the applicant’s evidence of the circumstances in which he fired the revolver. The question of the origin of the sword related only to the complicity of Quang.
The applicant has also characterised as a concession the respondent’s contention that the fact that the applicant’s post-offence conduct was equally consistent with shock as with consciousness of guilt is irrelevant. Again, I do not consider that the concession, if that is how it is to be characterised, was material. Whether the post-offence conduct of either Quang or the applicant saying, ‘Lets just go and dump the body’ and leaving together by the stairs was to be explained as a result of shock or consciousness of guilt was a matter for the jury.
I have had regard to the arguments advanced by the applicant before the judge who refused leave to appeal. The applicant contended that the fact that he registered his attendance at the flats upon arrival was inconsistent with him having any intent to commit the offences that ultimately took place. Further, he contended that the jury may impermissibly have used a finding of guilt on the count of attempted murder as proof of the count of murder. The applicant contended that it was improbable that he formed an intent to kill between the firing of the first and second shots.
In my opinion, none of the matters advanced by the applicant meant that the jury must have entertained a reasonable doubt as to his guilt. None of those matters was necessarily inconsistent with the formation of an intention to kill the victims when the revolver discharged.
Accordingly, for the forgoing reasons I would dismiss the application for leave to appeal against conviction.
The application for leave to appeal against sentence requires an examination of the personal circumstances of the applicant.
The applicant is 34 years’ old. He was born in Thailand and is of Chinese descent. He arrived in Australia with his family as refugees in 1979.
The applicant left school after year 11. He began using drugs. At the age of 18 years he was injecting himself with heroin.
The applicant had some 133 prior convictions from 15 court appearances, including drug offences, offences of dishonesty, assault and armed robbery.
The sentencing judge said that she was not persuaded that the applicant had good prospects of rehabilitation.
When the offences the subject matter of these applications were committed, the applicant was carrying on the business of a drug dealer.
The applicant contended, in a written submission to the single judge of this Court, that ‘the finding of firstly, the Court of Appeal, the High Court of Australia and the Director of Public Prosecutions acceptance of a plea of guilty to manslaughter and recklessly causing serious injury, together, may with respect,
constitute fresh evidence.’
Doing the best I can with this somewhat garbled submission, I do not consider that the possibility that the applicant at one point may have offered to plead guilty to lesser offences is a material consideration that bears upon the question whether the sentence imposed upon him was manifestly excessive.
In my opinion, the total effective sentence of 22 years and 4 months’ imprisonment with a non-parole period of 19 years was within the range of sentences available to the sentencing judge. The offences were unprovoked. They were apparently committed to advance the applicant’s business as a drug dealer. The fact that the applicant brought the revolver to the flat is evidence of a degree of forethought.
I would refuse the application for leave to appeal against sentence.
HANSEN JA:
I agree.
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