R v Duca
[2019] VSC 371
•6 June 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0093
| THE QUEEN | |
| v | |
| LAWRENCE MICHAEL DUCA | Accused |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 20 March 2019 and 6 May 2019 |
DATE OF SENTENCE: | 6 June 2019 |
CASE MAY BE CITED AS: | R v Duca |
MEDIUM NEUTRAL CITATION: | [2019] VSC 371 |
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CRIMINAL LAW – Sentence – Statutory murder – Deceased killed in furtherance of armed robbery – Offender fired fatal shots – Denunciation – General deterrence – Lack of remorse – Whether offender intoxicated at time of murder – Consideration of DPP v Perry (2016) 50 VR 686 – Consideration of The Queen v Martin [2007] VSCA 291; DPP v Arvanitidis [2008] VSCA 189; and Hasan v The Queen [2010] VSCA 352 – Sentence of 20 years’ imprisonment with non-parole period of 16 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Rochford QC with Ms D Manova | John Cain, Solicitor to the OPP |
| For the Accused | Dr T Alexander | Anthony Condello, Condello Lawyers |
HER HONOUR:
Lawrence Duca, you were convicted after trial of the statutory murder of Phuong The Vuong. You shot and killed Mr Vuong in his home during the course of an armed robbery, committed in company with Abelardo Ramos.
The maximum penalty for statutory murder is life imprisonment.
Summary of Offending
At the time of his death, Mr Vuong lived alone in Deer Park. He was self-employed as a sewing machinist, manufacturing garments for high-end fashion labels from his home. He also offered massage services from his home, performed by himself or other Vietnamese males he retained for that purpose.
Mr Vuong participated in a ‘Hui’, a community loan scheme operating within the Vietnamese community in which members make an initial deposit into a common fund and then take turns borrowing from the combined total. He was known to keep money at home and, at times, loaned money to others with jewellery items taken as security.
But you did not know Mr Vuong prior to forcing your way into his home on the afternoon of 16 June 2017. You came to be there following an earlier conversation that day with Ramos.
Ramos, an old friend with whom you reconnected in about 2014, worked for a man called Mr Nguyen, some of which work involved renovating ex ‘crop’ houses. That is, houses in which cannabis had been grown hydroponically. Ramos had previously supplied you with hydroponic equipment from such premises. That day, he came to your house to repay you $1,500 of a $2,000 loan you had made to him, and also to collect some power tools he had loaned to you.
Together, you took methylamphetamine in the shed. You also took ‘juice’, a liquid psychotropic chemical. You suggested that you work together on a crop house. Ramos mentioned the Deer Park house of Mr Vuong, telling you that it would have hydroponic equipment and, potentially, sums of cash. The Crown case, at trial, was at that stage the agreement between you and Ramos was limited to burglary. It did not encompass the use of weapons.
Together you travelled to your mother’s house, where you had stored Ramos’ power tools. While there, and unbeknownst to Ramos, you collected a bag containing a loaded 12-gague shotgun and spare ammunition. You ingested pills, telling Ramos that they were ‘Xani’ for the pain in your leg.
You then travelled to a nearby rental car company and hired a van, paid for in cash. En route to Deer Park you both assumed high viz work gear to give the false impression that you were simply tradesmen. At the suggestion of Ramos, you stopped to steal licence plates from a parked car, which were then affixed over the original licence plates of the van in an attempt to avoid detection.
Neither of you knew that an image of the van in the relevant vicinity at the relevant time was captured by CCTV footage, and the van was fitted with a GPS tracker.
On arrival at Mr Vuong’s home, you both got out of the van. Each of you were wearing latex gloves. You took the bag with the gun you had brought with you. Together you approached the front door. Ramos knocked and then rang the doorbell. Before the door was answered, you pulled the shotgun from your bag.
Mr Vuong answered the door and, upon seeing the gun, attempted to slam the door shut. You, together with Ramos, pushed against the door. The Crown case was that at that moment, the agreement to commit armed robbery was formed. When you succeeded in opening the door, you entered the house and fired the shotgun twice in rapid succession at Mr Vuong.
Ballistics evidence later established that at least four shots from a 12-gague shotgun had been fired: two outside the door and two into the upper torso of Mr Vuong. The evidence suggests that the first two shots, fired into the door jamb and mat, were perhaps accidental, and that one was fired by you, and the second by Ramos. But you reloaded the gun before entering Mr Vuong’s home and firing the two fatal shots.
Ramos dragged the inert body of Mr Vuong into the kitchen of his home, while you searched the house and made several trips to the van with property from the house, including a stereo, an iPad and some perfume. A Louis Vuitton bag and a black wallet belonging to Mr Vuong were later found at your address.
You and Ramos returned to the van. You both removed the stolen licence plates, removed your high viz clothing and returned from Deer Park. You transferred the stolen items and your belongings to Ramos’ car, after which Ramos returned the van to the hire premises.
Mr Vuong’s body was not found for 10 days. A later post-mortem examination established that Mr Vuong died from gunshot wounds to the chest. Those wounds caused extensive injury to the right ribs and injury to the right lung, thoracic aorta and liver, as well as blood in the chest cavity. Shotgun pellets were found in the oesophagus, trachea and right kidney.
You were arrested on 17 July 2017.
Your offending is grave. In the course of an intrusion into the home of a man entirely unknown to you and for no motive other than personal gain by armed robbery, you caused the death of that man.
Victim Impact
I have received and considered two victim impact statements in this matter.
Ngoc Bao Nguyen, speaks of the death of his younger brother to whom he was close, notwithstanding the fact that Mr Vuong no longer resided in Vietnam. Mr Vuong was in frequent and loving contact with his siblings, nieces and nephews. Mr Nguyen laments that his brother’s life was cut short by violence and that this has deprived his family the opportunity to love him over the course of a natural life.
Fai Chi Man, Mr Vuong’s friend of 20 years, considered him a brother. He was treated as a second father to, and by, Mr Fai’s son. Mr Fai’s family experiences great pain and sorrow at the death of Mr Vuong.
Personal Circumstances
It is necessary to say something about your personal circumstances.
You were born on 12 March 1972. You were 45 at the time of the offence. You are now aged 47 years.
You are the youngest of three children born to your parents. You had, seemingly, an unremarkable but happy upbringing. Your father, to whom you were very close, died in 2017 – a few weeks prior to your offending – of Lewy body disease, a particularly severe form of dementia. Your mother, as well as your brother and sister, are supportive of you, and regularly attended court to support you.
You completed your secondary education, to year 10 level, in 1987. You then attended Coburg Technical School, before commencing a cabinet making apprenticeship, which you completed in 1991. Your entire working life has been spent in the cabinetry trade.
In 1989 you began a relationship with Lucy Duca. You married in 1994 and separated in 2015. Even though you then divorced, you remain friends with your ex-wife and she is strongly supportive of you. Together you have two accomplished daughters, who are also strong in their support of you. Stephanie, now aged 23 years, is studying for her master’s degree in speech pathology. Monique, now aged 20 years, is studying for her bachelor’s degree in criminology.
There is evidence that you have been a cannabis user since your young adulthood. It was put on your behalf that you took this drug to help you deal with anxiety, a condition from which you have always suffered. Medical evidence tendered on your behalf indicates that you have also had bouts of depression.
But you have also used methylamphetamine for a considerable period. Material before me indicates that you began to use this drug in your early 30s. By 2015 you were using ‘ice’ daily and became immersed in a drug subculture. You were also heavily using gamma hydroxybutyrate, known as GHB, and commonly known as ‘juice’. Your drug use has led to considerable difficulty in your life. Not only was it a material cause in the demise of your marriage, but it was a contributing factor to a serious car accident that occurred on 1 May 2016 and in which you sustained a number of injuries, including a serious injury to your right ankle and leg. You have spent a great deal of time in hospital and undergone several surgeries as a result. It may be that you do not regain full function of your lower legs.
Further, you have developed osteomyelitis and ‘MRSA’, commonly known as staph. This has required further hospitalisations and surgery in June and July last year. Those conditions necessitate quarterly medical reviews. You suffer chronic pain and are prescribed long-term antibiotics and pain medication. It is possible that the infections may require the amputation of your right foot.
That car accident also saw you face criminal charges, including for possession of firearms and drugs of dependence, both of which were found by police in your vehicle. You ultimately pleaded guilty to charges of traffick cannabis, deal with property suspected of being the proceeds of crime, possession of cartridge ammunition without licence or permit, possession of two handguns without licence, possession of a controlled weapon without excuse, possession of a dangerous article in a public place, possession of a prohibited weapon without exemption, possession of methylamphetamine, possession of ecstasy, possession of GHB, careless driving, unlicensed driving and driving a motor vehicle impaired by a drug. You successfully appealed the sentences imposed in the Broadmeadows Magistrates’ Court on 23 March 2017 and were sentenced in the County Court on 4 October 2017 to an aggregate prison term of 6 months and a 12 month Community Corrections Order with fines, and with supervision and treatment conditions.
It is to be noted that you were on appeal bail at the time of this offence.
I have received a great many character references on your behalf. However, many of them, particularly those from members of your family and some friends, expressly state that they do not accept the verdict of the jury. For that reason, they are of limited use in assessing your character as against the offending that has been found to have occurred. But, what can be taken from the material tendered is that you are have been a hard-working man and have much support in your community.
You have spent your time in custody usefully. You have completed a number of educational and mental health programs.
Analysis
Role in offending
You were charged with common law murder and, as an alternative, statutory murder.
At trial, you gave evidence in which you denied involvement in the offending. In short, you said that you never reached an agreement with Ramos to commit burglary or armed robbery. You said that you did not bring a shotgun to the home of the deceased. Indeed, you denied that the shotguns later found at your house were yours. While you admitted your presence at the car rental shop and in the van, as indeed you had to given the images from CCTV footage, you said that you were drug affected from Xanax and were asleep in the van when it was driven to Deer Park by Ramos and while it was parked outside Mr Vuong’s house. You got out of the van only once. You denied, absolutely, ever approaching or entering Mr Vuong’s home. You denied shooting the firearm at him. You said you were ignorant of the event until later reading news reports of Mr Vuong’s death.
The jury was unable to agree on a verdict as to common law murder, but returned a verdict of guilty as to statutory murder.
On your behalf, counsel submitted that I should not find that you shot the deceased. Rather, you should be sentenced on the basis that you participated with Ramos in the armed robbery and on the basis that Ramos shot Mr Vuong. This was said to be consistent with the verdict because it was only necessary for the jury to find that either you or Ramos shot Mr Vuong. Counsel founded this submission on four grounds: Ramos was an unreliable witness; Ramos knew the deceased whereas you did not; it is more likely that you participated with Ramos at his request; and Ramos’ evidence that you shot the deceased while he was in the sewing room is unlikely in light of fatty deposits on the front door.
I do not accept that submission.
I find that the returned verdict could only mean that the jury was satisfied beyond reasonable doubt of the Crown case that you shot the deceased. The Crown did not advance any alternative scenario. The difference between common law murder and the alternative of statutory murder was put on the basis of whether the jury could be satisfied beyond reasonable doubt that at the moment you pulled the trigger you had murderous intent. It was not put on the basis that for common law murder it was necessary to be satisfied beyond reasonable doubt that you pulled the trigger, but that for statutory murder it was immaterial whether it was you or Ramos who did so. Further, you gave evidence that you did not approach the front door of the Deer Park house; you did not give evidence that you were present there but that it was Ramos who shot Mr Vuong. The verdict clearly indicates that the jury rejected your version of events. And, simultaneously, that the jury accepted the material part of the evidence of Ramos beyond reasonable doubt.
Further, a question asked by the jury during their deliberations is of no assistance. The question was ‘relating to charge 1 [of common law murder], can an accused cause the victim’s death without pulling the trigger’?[1] The question specifically confined itself to the charge of common law murder and ‘an’ accused not ‘the’ accused. It is sheer speculation that this indicates that the jury were not satisfied that you shot the weapon and therefore convicted you of statutory murder on that basis. It is just as likely that the question was directed towards the assessment of Ramos’ credibility and evidence in accordance with the s 32 Jury Directions Act2015 (Vic) warning.
[1]Trial Transcript, 1040-1.
Accordingly, I sentence you on the basis that you fired the fatal shots into the chest of Mr Vuong during the course of an armed robbery committed with Ramos.
The Nature of Statutory Murder
Statutory murder is not inherently less serious than murder.[2] Nonetheless, in assessing the objective gravity of the offence and your moral culpability for it, I must assess your state of mind with respect to the act causing death.[3] That calls for an assessment of whether, in being party to the act of violence that caused the death of Mr Vuong in furtherance of the foundational offence of armed robbery, you intended to cause him harm.
[2]DPP v Perry (2016) 50 VR 686 (‘Perry’).
[3]Perry, 8(l).
I consider the following facts as relevant to that assessment. First, while the Crown case was that the agreement between you and Ramos to commit armed robbery was made at the moment you produced the shotgun on the doorstep of Mr Vuong’s house, there had earlier subsisted an agreement to commit burglary. You and Ramos together took steps to disguise the true purpose of your journey to Deer Park. Second, you brought the shotgun with you. Third, after the first two shots had been fired into the door jamb and door mat, you reloaded the gun with ammunition you had brought. The purpose of reloading a gun is to enable it to be fired. Fourth, you fired your weapon twice in rapid succession at Mr Vuong shortly after gaining access to his home. Fifth, that was done from relatively close range. Sixth, while you may not have had murderous intent, the firing of a shotgun at Mr Vuong indicates that you intended to cause him harm. Seventh, after Mr Vuong had collapsed to the ground, you searched his house and stole items of value.
Your behaviour was callous and brutal. Your offending is more serious than that of Ramos. You are responsible for the death of a fellow human being. You are to be punished accordingly.
Drug Use
I have already made mention of your problem with illicit drugs. There is evidence before me that you have, over the years, sought help to deal with your addictions, particularly to methylamphetamine.
Your counsel submitted that your drug use could help explain your participation in this offending. He did not press that it was mitigatory. The prosecution, on the other hand, argued that your drug use in June 2017 aggravates your conduct.
Relying on medical evidence tendered on your behalf, the prosecution notes that prior to your offending, you experienced periods of drug induced psychosis that took the form of hearing screaming voices and constant murmuring, as well as seeing dark shadows. During an episode in July 2014 you reported visual hallucinations, racing thoughts and impulsive behaviours. It was submitted that those drug induced impulsive behaviours escalated and led to you crashing your car into a pole in May 2016. And, as I have noted, you were on appeal bail with respect to the criminal charges arising from that accident at the time you committed murder.
The prosecution argued that your awareness of your behavioural impulsiveness when under the influence of, particularly, ‘ice’, aggravates the gravity of your offending.
You have obviously had considerable experience of ice. You have attempted to address your addiction. You are clearly aware of the effects it has upon you.
Two of the authorities relied upon by the prosecution refer to offending committed during a psychotic state brought on by voluntary drug ingestion in circumstances where the offender knows the likely effect upon him or her of that drug use.[4] The third authority referred to establishes that alcoholic intoxication can be an aggravating factor where an offender is shown to have foreknowledge as to how he or she is likely to behave when affected by alcohol.[5]
[4]The Queen v Martin [2007] VSCA 291 and DPP v Arvanitidis [2008] VSCA 189.
[5]Hasan v The Queen [2010] VSCA 353.
The difficulty with the Crown submission is that there is no evidence that you were intoxicated on ice at the time of the murder, let alone that you were suffering a drug induced psychosis. The evidence of Ramos is that you squirted some ‘juice’ in your mouth before he had four puffs on an ice pipe and you had ‘a bit more’ than he did.[6] Ramos did not give evidence as to the effect this had on himself, but said that you were ‘bouncing off the walls’. Your evidence was that you were ‘out of it’ as a result of a Xanax tablet given to you by Ramos, or at least as a result of the combination between the effect of that tablet and ice.
[6]Trial transcript, 426.
The state of the evidence means that I am unable to determine either the level of your intoxication at the time of the murder or the drug producing that state.
Further, it is, in my view, speculative to draw a line of ‘escalating impulsiveness’, from the decision in 2014 to get a tattoo whilst ice affected, as you later reported to a psychologist, through your car accident, to your involvement in the armed robbery upon Mr Vuong. They are quite markedly different behaviours.
In short, your issues with drug addiction are neither aggravating nor mitigating of your conduct.
Rehabilitation
But they are, of course, relevant to your prospects of rehabilitation.
You have made, it seems, a good start whilst in custody. But the real test will come when you are no longer in a regime where many decisions are made for you. It is to be hoped that with the loving support of your family and friends, you will find the strength to remain drug free and stay away from the criminal milieu in which you have previously participated.
Notwithstanding your prior criminal history and your battle with drug addiction, I accept your prospects for rehabilitation as good.
Remorse
That is so even though you have expressed no contrition.
Your counsel submitted that your consent to the restitution order should be taken as some measure of remorse. The difficulty with that submission is that it is impossible to be remorseful for something you deny you have done. You gave evidence in your trial denying your guilt. And, the verdict notwithstanding, you maintain your innocence.
Sentencing Considerations
Your behaviour in agreeing with Ramos to enter the home of Phuong The Vuong on 16 June 2017 while you were armed with a loaded shotgun in order to carry out an armed robbery was disgraceful. Mr Vuong resisted the intrusion of his home by two determined men and moments later lost his life when you fired your shotgun to his chest twice. His last moments could only have been of terror.
General deterrence and denunciation are important sentencing factors. The protection of the community must also be considered. Further, specific deterrence must play some role in your sentence, to deter you from future violent offending.
As I have said, I accept your prospects for rehabilitation to be good.
I have had regard to current sentencing practices with respect to statutory murder.[7] I have considered parity with the sentence imposed on Ramos.[8]
[7]Perry; DPP v Chounlamountry [2016] VSC 509; DPP v Cooper [2018] VSCA 21 and DPP v Williamson [2018] VSC 172.
[8]R v Ramos [2019] VSC 67.
Sentence
Lawrence Duca, please stand.
Balancing, as best I am able, the competing considerations laid down in the Sentencing Act 1991 (Vic) (‘Act’) and having regard to the matters I have just discussed, for the offence of murder, I sentence you to imprisonment for 20 years. You must serve a minimum of 16 years before being eligible for parole.
I declare that you have already served 506 days of that sentence by way of presentence detention.
Pursuant to s 84(1)(c) of the Act, I order that the Chief Commissioner of Police pay the sum of $30,000 from the monies seized by police from you at the time of your arrest to the trust account of Hao Huynh on behalf of Thi Cam Van Nguyen, Thu Ha Vuong, Minh Nhut Vuong, Ngoc Buu Nguyen and Thanh Hai Nguyen.
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