R v Doung & Galea
[2007] VSC 134
•8 May 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1502 of 2005
| THE QUEEN |
| v |
| HIEY VAN DOUNG & PAUL ANDREW GALEA |
---
JUDGE: | Teague J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 - 31 January, 1 – 3, 6 – 10, 13 – 16, 20 – 23, 27 – 28 February, 1 – 3, 6 - 7 March, 29 August 2006, 19 March 2007 | |
DATE OF SENTENCE: | 8 May 2007 | |
CASE MAY BE CITED AS: | R v Doung & Galea (Sentence) | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 134 | |
---
Criminal Law – Sentencing – Murder arising from failed drug transaction – Manslaughter as to aider and abettor – Drug-related criminal histories – Paranoid schizophrenia – 19 years with non-parole period of 14 years for murder – 6 years and 4 months with non-parole period of 3 years and 10 months for manslaughter.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. Trapnell | Office of Public Prosecutions |
| For the Accused Doung | Mr J. Desmond | Victoria Legal Aid |
| For the Accused Galea | Mr M. O’Connell | Slades & Parsons |
HIS HONOUR:
Kenny Doung (also known as Hiey Van Doung) and Paul Galea, you are each to be sentenced by me with respect to your role in the killing of Michael Tregenza on 26 September 2004. Both of you were presented for trial on a charge of the murder of Michael Tregenza. The jury found you, Kenny Doung guilty of murder. The same jury was unable to agree on a verdict as to you, Paul Galea. You have subsequently pleaded guilty to manslaughter.
The death of Michael Tregenza arose out of a failed drug transaction. As at 26 September 2004, he had been a user of heroin, and he associated with other users. The two of you were also users of heroin. You were also engaged in the sale of heroin. That is said in order to provide context for what follows. You are not to be sentenced by me for that use and trafficking. The two of you were then living in a flat in Princess Street Flemington. The flat is close to a McDonalds outlet. That McDonalds is located on the corner of Flemington Road and Princess Street. It has a frontage to Flemington Road. It also has a large car park to which access is gained via Princess Street. The flat in which you were living was within a minute or so walking distance of that car park.
On the morning of 26 September 2004, you, Paul Galea went from the flat to the car park. Your plan was to drop off to a customer a heroin deal that had been provided by you, Kenny Doung. It was the sort of transaction that the two of you had arranged before. It went otherwise than as planned because a female friend of Michael Tregenza happened to see you, Paul Galea. She was then with Michael Tregenza in Flemington Road. She had bought heroin from you before. She decided to approach you to try to buy heroin. She was aware that Michael Tregenza was not known to you, a matter that might make you suspicious. She told him to conceal himself while she approached you, as she did. She and you went about trying to effect a sale. A problem arose when she objected to being given a deal that she considered was undersize. That led to Michael Tregenza coming out from behind bushes in the car park. There was then a trading of punches between Michael Tregenza and you. In that skirmish, you suffered a graze to fingers of your right hand. You also dropped the heroin deal. You did not see where it went, and nor did they. Your perception was that you had been set up by the other two. You hurriedly moved back across Princess Street to the flat, and went in. You were angry. You had blood on your hand. You told Kenny Doung that a man had bashed you and had taken the heroin.
There was no long discussion as to the options. There was quick action. The two of you moved promptly out of the flat. Before doing so, both of you took up weapons. You, Kenny Doung took up a knife-stick that you had made up some time earlier. It consisted of a large knife taped with red sticky tape to the end of a piece of wood akin to a broom handle. You, Paul Galea took up a tyre lever. The two of you set off to cross Princess Street to the car park to confront the man who, in your view, had made the attack and taken the heroin.
Michael Tregenza was still in the car park. He and his female friend were still looking for the heroin deal that had been dropped. The two of you ran up to Michael Tregenza. You, Kenny Doung swung the knife-stick at Michael Tregenza a number of times. You, Paul Galea positioned yourself so as to restrict Michael Tregenza’s means of escape. Michael Tregenza put up his arms to fend off the blows. No injury appears to have been inflicted at that time. Michael Tregenza was able to move away from the two of you, and he ran off. Both of you chased him as he ran across the car park and towards Flemington Road. You, Paul Galea threw the tyre lever at or towards Michael Tregenza as he ran. It did not come into contact with him.
You, Kenny Doung chased after Michael Tregenza to the front of McDonalds. You came at him again on the footpath in front of the front stairs. He moved up the stairs. You continued to swing and thrust the knife-stick at him. At no stage did he have a weapon. He was merely taking evasive action. You, Paul Galea caught up to the other two and you again acted to restrict the evasive action that Michael Tregenza could take. You were aiding and abetting Kenny Doung at the time that a thrust with the knife-stick to the chest of Michael Tregenza caused a fatal injury. At that critical time, you, Kenny Doung, did have the specific intent required for murder, whereas Paul Galea, you were not aware that that was so.
I have read the five victim impact statements that have been lodged with the court. Michael Tregenza had two daughters, who were aged 7 and 5 as at the time of his death. One of the five victim impact statements has been prepared by the mother of the two girls and another by her father. The other three have been prepared by Michael Tregenza’s mother, father and sister. The five statements graphically portray the short and long term consequences to his loved ones of his untimely death.
I turn to the personal circumstances of each of you. Kenny Doung, you were born in Vietnam in November 1982, the youngest of four. Your childhood was particularly traumatic. Your father died when you were very young. You spent two years in a refugee camp in Thailand. At one stage in the move from Vietnam to Thailand to Australia, you witnessed the rape and murder of your oldest sister. Your mother raised you and the surviving sister in Footscray. You did well enough at school until you got to the higher levels. You then got in with the wrong crowd. That led to you becoming engaged in illicit drug use. The use and trafficking in illicit drugs, particularly heroin, appears to have dominated your life since 1998. In less than 5 years, you had 12 appearances before the courts, four in the Childrens’ Court, the others in the Magistrates’ and County Courts. Those appearances led to 41 convictions, including 14 for the possession, use or trafficking in heroin. A variety of sentencing orders were made. Two were for periods in Youth Training Centres, and the last was for imprisonment. Convictions in 2001 included one for recklessly causing serious injury and one for being a prohibited person in possession of a firearm. You will have to work impressively on prison programs to address your drug problems before you can be seen to have even fair rehabilitation prospects.
You suffer from paranoid schizophrenia. That is a matter that requires a particular focus in sentencing. I have reviewed carefully the two reports of each of Dr Sullivan and Dr Bell provided to the court. Among the matters that I have taken into account are that: you have made suicide attempts; after one such attempt in 2002, you were hospitalised and diagnosed as suffering from a psychotic disorder; there was not seen by Dr Sullivan to be any link between your psychiatric condition and the events of 26 September 2004; you have spent five weeks in late 2005 and 13 weeks in mid 2006 in the Thomas Embling Hospital, a stay in which hospital is itself a clear sign of the seriousness of your underlying condition; until you had spent some weeks on the last stay at that hospital, you chose to remain particularly guarded as to what you told psychiatrists and others concerned to treat you; treatment at the hospital with anti-psychotic medication appears to have contributed to a significant improvement in the symptoms; when seen by Dr Bell some weeks ago in prison you appeared remarkably well, despite having chosen not to take medication; and your mental condition will continue to be monitored, with future hospitalisation more than a remote possibility.
Your condition appears not to have had a direct bearing on your moral culpability for the murdering of Michael Tregenza. However, I am satisfied that there is reason for sensibly moderating general deterrence because of it, and that your condition will probably mean that your sentence will weigh more heavily on you than it would on a person in normal health. The experiences of your traumatic childhood may have made the descent into illegal drugs more difficult to avoid. Your prior convictions are particularly troubling, as is the circumstance that you chose to prepare and keep on hand the knife-stick. There was, however, no planning but a spontaneous reaction to take up the knife-stick to misguidedly aim to right a perceived wrong to your flatmate. I take your relative youth into account as a mitigating factor.
Paul Galea, you were born in April 1970, and are now 37 years of age. You have three siblings, none of whom have been in trouble with the law. Your sister Dolores and brother George have written tributes which indicate their continuing support for you. Before your father died in 1999, you had been particularly close to him. With his assistance you developed a good work ethic. You are a fully qualified carpenter and boilermaker. After his death, you took up with a woman addicted to heroin. Your involvement with heroin led to your having a number of prior convictions for drug-related offences. In less than four years from October 1998, you went to court nine times. That is troubling. I have noted that you have no convictions for offences of violence. You have an interest in motorbikes. You have had two serious motorbike accidents. The resulting injuries have meant that you are limited in your capacity to move quickly. There are indications that your time in prison has been spent productively. Provided you are able to keep away from drugs, your prospects of rehabilitation appear to be good, given your work qualifications and the level of family support. I accept that you have shown remorse. I must and will allow for your plea of guilty, and for you having to wait so long to be sentenced, for reasons not related to your situation.
There being good reasons for, and no objection to my doing so, I will sign the disposal order as to the knife, and the retention order as to the forensic sample. As to each of you I must declare a number of days of pre-sentence detention and direct that that be noted in the court records. The respective number is 955 for Kenny Doung and 925 for Paul Galea. I sentence you Kenny Doung to nineteen years imprisonment with a non-parole period of fourteen years. I sentence you Paul Galea to six years and four months imprisonment with a non-parole period of three years and ten months.
---
0
0
0