R v Feroz; R v Ho; R v Hoang; R v Nguyen; R v Trinh

[2020] NSWSC 341

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Feroz; R v Ho; R v Hoang; R v Nguyen; R v Trinh [2020] NSWSC 341
Hearing dates:	19 - 20 March 2020
Date of orders:	03 April 2020
Decision date:	03 April 2020
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	(1) Abdul Feroz is sentenced to imprisonment for 9 years with a non-parole period of 6 years. (2) Tony William Ho is sentenced to imprisonment for 20 years with a non-parole period of 15 years. (3) Sinh Jason Hoang is sentenced to imprisonment for 22 years with a non-parole period of 16 years and 6 months. (4) Vuong Van Nguyen is sentenced to imprisonment for 9 years with a non-parole period of 6 years. (5) Minh Duc Trinh is sentenced to imprisonment for 9 years with a non-parole period of 6 years and 9 months.
Catchwords:	CRIMINAL LAW – sentencing – murder and manslaughter – senseless killing over drug debt – a little bit of money – sentencing after trial – two offenders convicted of murder – three offenders convicted of manslaughter – assessment of objective criminality – parity – where joint criminal enterprise escalated at the scene – where one offender produced a knife and used it – others unaware that knife would be used – offender employed varying degrees of violence – one behaving like a chook with its head cut off – motive for offence – love triangle unlikely explanation – relevant considerations on sentence
Legislation Cited:	Crime (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22A Crimes (High Risk Offenders) Act 2006 (NSW), s 25C Firearms Act 1996 (NSW), ss 7A(1), 36(1), 39(1), 65(3) Weapons Prohibition Act 1998 (NSW), s 7(1)
Cases Cited:	Ghamraoui v R [2009] NSWCCA 111 Magro v R [2020] NSWCCA 25 Merrick v R [2017] NSWCCA 264 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 R v Cardoso [2003] NSWCCA 15; (2003) 137 A Crim R 535 R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1 R v LK [2019] NSWSC 605 R v Merrick (No 5) [2016] NSWSC 661 R v Oinonen [1999] NSWCCA 310 R v Pham; R v Nguyen; R v Trinh [2019] NSWSC 1539 R v Sumpton (No. 4) [2015] NSWSC 684 Tabbah v R [2019] NSWCCA 324 Todd v R [1982] 2 NSWLR 517
Category:	Sentence
Parties:	Regina Abdul Feroz Tony William Ho Sinh Jason Hoang Vuong Van Nguyen Minh Duc Trinh
Representation:	Counsel: L Lungo (Regina) W Brewer (Feroz) R Webb (Ho) N Carroll (Hoang) B Hancock (Nguyen) S Schaudin (Trinh)   Solicitors: Director of Public Prosecutions (Regina) Criminal Defence Group (Feroz) Voros Lawyers (Ho) Ly Lawyers (Hoang) Matt Lorkin Solicitor (Nguyen) George Sten & Co Criminal Lawyers (Trinh)
File Number(s):	2016/00182158; 2016/00182292; 2016/00182141;2016/00182350; 2016/00180864
Publication restriction:	Suppression orders made in respect of the witness LK on 8 October 2019. Pseudonym order in respect of the witness Sandra Dobson.

Judgment

1. Tu Luong was stabbed to death on the side of a road in Villawood on 6 December 2015. It was a senseless killing motivated by a small drug debt. Mr Luong was killed after he attempted to rip off his drug supplier by obtaining drugs “on tick” and failing to pay for them.

2. On 16 October 2019 six accused men were arraigned on a single count alleging that they murdered Mr Luong. The six men were Abdul Feroz, Tony William Ho, Sinh (Jason) Hoang, Vuong Van Nguyen, Jason Pham and Minh Duc Trinh. A jury was empanelled and the trial commenced. On 4 November 2019 the prosecution case closed and three of the accused men – Mr Pham, Mr Nguyen and Mr Trinh – made applications that the jury be directed to return verdicts of not guilty. The basis of each application was that there was no evidence capable of supporting a verdict of guilty in relation to either murder or the naturally occurring alternative of manslaughter. Judgment was delivered on 6 November 2019. [1] The applications by Mr Nguyen and Mr Trinh were refused. The jury was directed to return a verdict of not guilty in relation to Mr Pham and he was discharged.

   1. R v Pham; R v Nguyen; R v Trinh [2019] NSWSC 1539.

3. The trial proceeded with three of the accused – Mr Feroz, Mr Ho and Mr Nguyen – either giving evidence themselves or presenting evidence from other witnesses. Mr Hoang and Mr Trinh elected to call no evidence. The defence case closed on 11 November 2019. Counsel addressed the jury between 12 to 22 November 2019. The summing up commenced on Friday, 22 November 2019 and the jury retired to consider its verdicts at 12:45pm on Monday, 25 November 2019. On Tuesday, 3 December 2019, the jury returned the following verdicts:

1. Abdul Feroz – not guilty of murder but guilty of manslaughter.

2. Tony Ho – guilty of murder.

3. Jason Hoang – guilty of murder.

4. Vuong Nguyen – not guilty of murder but guilty of manslaughter.

5. Minh Duc Trinh – not guilty of murder but guilty of manslaughter.

4. The five men were convicted in accordance with those verdicts and the matter was stood over until 19 to 20 March 2020 for evidence and submissions on sentence. Each of the five men now stands to be sentenced.

Findings as to the facts of the case

5. The five offenders are to be sentenced on the facts established by the evidence adduced at trial, together with any evidence tendered in the course of the sentencing hearing. The factual findings must be consistent with the verdicts of the jury. Aggravating circumstances must be established beyond reasonable doubt. Mitigating circumstances are to be proved on the balance of probabilities. At this stage, there is not a great deal of dispute as to the facts of the case. In addition to two informant witness and a number of eyewitnesses whose evidence was, to varying degrees, of questionable reliability, there was CCTV footage of the events that unfolded in Belmore Street, Villawood on 6 December 2015. Another important piece of objective evidence was a schedule of telephone and SMS records showing communications between the co-offenders and their approximate location at various times.

6. The day before the killing, Mr Luong received an amount of drugs (ice) from the offender Mr Ho. The ice was valued at $4000 and provided “on tick” (meaning payment for the drugs would be made later). Mr Ho had obtained those drugs from Mr Trinh, who was a middle level drug dealer. Mr Luong went missing without paying for the drugs. He and Mr Ho went to a location in Cabramatta the day before the killing and Mr Luong entered a unit block. Mr Ho waited in the car for about half an hour but Mr Luong did not return. Mr Ho sent a text message asking what was taking so long but Mr Luong did not respond. [2] Over the following 24 hours or so Mr Ho, Mr Trinh and others communicated with each other and with Mr Hoang in an attempt to locate Mr Luong. They were attempting to arrange for the return of the drugs or to be paid for them. Neither Mr Nguyen nor Mr Feroz played any real role in this. Their only contact with Mr Ho was for the purpose of buying drugs for their personal use.

   2. Transcript (“T”), 1008, 1009, 1114.

7. There were meetings at Mr Ho’s house. The house was described by his counsel on sentence as his “residence” and a place where he sold and consumed drugs with his friends, associates and customers. Two of the customers of Mr Ho’s drug supply business were Mr Feroz and Mr Nguyen. [3] At one stage on the Saturday, and in the context of the search for Mr Luong, Mr Ho produced a hunting knife and asked LK if he could sharpen it. LK said he could and did so. [4] I am satisfied that this knife was the weapon that inflicted the fatal stab wound. LK’s evidence was that others may also have “had a go” at sharpening the knife including Mr Feroz (to whom he referred as Blackie). [5] However, Mr Ho’s evidence was that Mr Feroz was not in the bedroom when the knife was being sharpened. [6] Mr Feroz denied seeing a knife on the Saturday and I accept his evidence. [7]

   3. T. 862 [14], 865.

   4. T. 344-347.

   5. T. 348.

   6. T. 1015.

   7. T. 867.

8. Eventually Mr Luong was located and an arrangement was made by Mr Pham and a witness, Ms Dobson (a pseudonym), to meet with him in Bligh Street Villawood. These arrangements were made by telephone in the presence of Mr Trinh. Mr Luong travelled to the meeting by taxi. [8] Ms Dobson drove Mr Trinh and Mr Pham to the meeting place in a white Ford Territory registered to Mr Trinh’s mother. [9] When Mr Luong arrived at the meeting place, he was ushered into the white car.

   8. T. 119-121.

   9. T. 122.

9. The group then travelled further down Bligh Street past the intersection at Mandarin Street where a black Honda Accord arrived at the scene. The Honda was driven by LK and his passengers were Mr Ho, Mr Nguyen, Mr Hoang, and Mr Feroz.

10. The evidence was that Mr Trinh called out something to the effect of “what is he [Mr Ho] doing here” or “what are you [Mr Ho] doing here” and may have told the people in the black car to "fuck off". [10] I do not accept that these were genuine remarks or that Mr Trinh was truly surprised by the presence of Mr Ho and others. Telephone communications between the parties establish, at least by inference, that Mr Trinh, Mr Ho and the others prearranged to meet in order to confront Mr Luong about the missing drugs. I accept the Prosecutor’s submission to the jury that it was "no coincidence" that the two cars just happened to show up in Bligh Street at the same time. [11]

    10. T. 374, 921.

    11. T. 835 from [9].

11. Both cars then travelled to Belmore Street. The CCTV footage (Exhibit H in the trial) shows what happened over the next minute and a half. It all happened very quickly. As soon as the white Ford Territory pulled up Mr Trinh jumped from the car and indicated to the people in the black Honda Accord where Mr Luong was seated. Four of the occupants of the black car – Mr Nguyen, Mr Hoang, Mr Ho and Mr Feroz – got out of the vehicle and headed towards the white Ford. At around this time, Mr Hoang produced the knife and Mr Ho told him to “put away” or something along those lines. [12] I accept Mr Ho’s evidence on this issue and it receives some support from LK. [13]

    12. T. 978-979.

    13. T. 381[16]-382.

12. Mr Nguyen approached the white Ford and pleaded with Ms Dobson to unlock the door of the car. [14] Based on the jury's verdict it must be accepted that Mr Nguyen did this knowing that Mr Luong would then be subject to unlawful violence. There is no evidence that Mr Nguyen played any part in the violence that followed. Nor was he ever in possession of a weapon. However, I am satisfied beyond reasonable doubt that he knew that there were batons or similar weapons in the black car. I am not satisfied that he knew there was a knife. Ms Dobson unlocked the door of the white car whereupon two or three of the men from the black car commenced to assault Mr Luong or attempted to drag him from the vehicle. There was some evidence that he may have been stabbed at that point. [15] He was either pulled from the car or got out of the car and attempted to flee. He fell to the ground and the attack continued.

    14. T. 134.

    15. T. 491.

13. Based on the verdicts of the jury, the CCTV footage and the other evidence in the case, I am satisfied beyond reasonable doubt of the following acts on the part of each of the accused:

• Mr Ho struck Mr Luong with an iron bar on something like three occasions. This included an occasion after he knew that Mr Hoang was armed with a knife and had stabbed the deceased. I reject the submission that he was unaware that a knife had been used until after the incident in spite of his comment to the effect “I hope I didn’t break his knees”. [16]

  16. T. 574; Sentencing Transcript (“ST”), 49.

• Mr Feroz struck Mr Luong with a curtain rod on one or two occasions.

• A pathologist’s evidence established that none of the blows delivered by Mr Ho and Mr Feroz caused any significant injury to Mr Luong. I accept that the striking with the iron bar and curtain rod looks far worse on the CCTV footage than it was in actuality.

• Mr Nguyen was present at the scene and able to provide assistance had it been necessary. However the evidence showed that Mr Nguyen did nothing by way of acts of violence directed towards Mr Luong and appeared, to use the vernacular, to be running around the scene like a chook with its head cut off.

• Mr Hoang was armed with a large knife. The description of that knife varied but I am satisfied that it was a relatively large hunting style knife. As I have said, I am satisfied that this was the knife produced by Mr Ho on the day before the killing and sharpened by LK and possibly others. I am satisfied when Mr Hoang produced the knife, Mr Ho told him to put it away.

• Mr Hoang stabbed Mr Luong on more than one occasion.

• At some stage Mr Luong was stabbed in the chest and this wound proved to be fatal. There is an issue as to who inflicted the fatal stab wound.

14. I am positively satisfied that Mr Feroz, Mr Nguyen and Mr Trinh did not know that a knife was to be used until Mr Hoang used it. This is consistent with the jury’s verdicts. The CCTV footage shows Mr Feroz attempting to pull Mr Hoang’s arm away when Mr Luong was being stabbed on the roadway. I am also satisfied, based on his evidence, that Mr Feroz went to call an ambulance once he had left the others. However, he stopped when he saw an ambulance go by on its way to the crime scene. [17]

    17. T.906, 951[28].

Facts asserted in the prosecution submissions on sentence

15. In written submissions, the Prosecutor helpfully set out a list of the individual acts of the various offenders. There was not much dispute as to these. I have taken the role of each offender and their individual acts into account although I do not find it necessary to repeat the careful analysis of the Prosecutor in these reasons.

Who inflicted the fatal stab wound?

16. There was a dispute at the sentencing hearing, and in the trial, between Mr Ho and Mr Hoang as to whether Mr Ho also used a knife in the course of the attack.

17. I am not satisfied beyond reasonable doubt that Mr Ho stabbed the deceased. The only positive evidence that he did so came from Ms Dobson who gave evidence of things said by both Mr Ho and Mr Hoang after the event. [18] Ms Dobson was not a convincing witness. Her version of events changed and grew over time and she had a motive for giving evidence inculpating the offenders. At times her evidence was quite theatrical and unbelievable. I would only accept her evidence to the criminal standard where it receives support from other evidence in the case. Ms Dobson claimed that Mr Ho made an admission that he had stabbed the deceased and “fucked him up”. [19] She pointed to two or three places on her chest which is inconsistent with the medical evidence of only one stab wound in that area of the body. In any event, the agreed position at trial was that Ms Dobson’s evidence on this issue was only admissible in Mr Hoang’s case. [20] This position did not change on sentence. Mr Hoang relied on it as raising a possibility that there was a second stabber. While I cannot rule out that possibility in his case, I am not satisfied beyond reasonable doubt (in Mr Ho’s case) that Mr Ho stabbed Mr Luong.

    18. T. 141-142.

    19. T. 141.

    20. T. 1091-1098.

18. That means that the sentencing of the two men charged with murder must proceed on different factual bases. In Mr Ho’s case, I must proceed on the basis that he did not stab the deceased himself. His liability for the stabbing arises as a result of a joint criminal enterprise by which he is responsible for the actions of Mr Hoang. Conversely, in Mr Hoang’s case, I cannot be satisfied that he committed the fatal act of stabbing Mr Luong in the chest because Ms Dobson’s evidence, as unpersuasive as it is, raises the possibility that Mr Ho was responsible for the fatal blow.

Intention of the two men charged with murder

19. I am not satisfied beyond a reasonable doubt that either Mr Ho or Mr Hoang acted with an intention to kill. This is partially because the identity of the person who inflicted the fatal stab wound is resolved differently in each case, that is, the issue is not resolved against either of them beyond reasonable doubt. I am satisfied, and the jury by its verdict must have been satisfied, that each acted with an intention to inflict grievous bodily harm and/or joined and participated in a joint criminal enterprise to inflict grievous bodily harm on Mr Luong.

20. I am not satisfied that Mr Ho attended the scene with the intention that grievous bodily harm be inflicted or that, prior to meeting with Mr Luong, he was part of a joint criminal enterprise to inflict such harm. I find that the situation at the scene escalated and Mr Ho joined in the criminal enterprise that encompassed the infliction of grievous bodily harm by Mr Hoang. The motive for the crime, on Mr Ho's part, was the fact that the drugs had gone missing. He admitted he was very angry about this when he gave evidence and intended to teach Mr Luong a lesson. [21] He also told LK that he intended to break Mr Luong's legs. I am satisfied beyond reasonable doubt that he struck Mr Luong with an iron bar even after he knew the victim had been stabbed.

    21. T. 965[43], 981[29]-[30].

21. In the course of its deliberations the jury asked a question (MFI 55) about a situation where the joint criminal enterprise escalates at the scene. While that question cannot be used in any meaningful way to inform this fact-finding exercise, it is consistent with the view of the facts that I take. That is, Mr Ho attended the scene with an intention to take part in an assault of Mr Luong which was calculated to ensure payment for the drugs or the return of the drugs, but that the enterprise did not encompass an intention to kill or inflict really serious injury. However, the situation escalated and Mr Ho joined in that far more serious joint criminal enterprise knowing that Mr Hoang was armed with, and intended to use, the knife to inflict grievous bodily harm on Mr Luong.

22. As to Mr Hoang, I am satisfied that he intended to inflict grievous bodily harm when he stabbed Mr Luong.

Liability of the three men convicted of manslaughter

23. The acquittals of Mr Nguyen, Mr Feroz and Mr Trinh on the charge of murder indicate that the jury was not satisfied that any of those three men joined the more serious joint criminal enterprise. However each was a participant in a joint criminal enterprise to inflict unlawful violence on Mr Luong.

24. As I said in sentencing LK this was a very serious offence of manslaughter by unlawful and dangerous act. It took place in a suburban street in broad daylight, involved the use of three weapons, and was carried out by a group of men setting upon an unarmed and defenceless victim who was killed over a little bit of money.

25. It is difficult to understand the motivation of Mr Feroz and Mr Nguyen. Each of those men was a functioning drug addict, and Mr Ho was one of their suppliers. It seems that they acted out of loyalty to Mr Ho, or to stay on side with him and, perhaps, at his direction. In a sense they just went along for the ride to make up the numbers. They may initially have thought that they were going to source drugs but must have known, as reflected in the jury’s verdict, that unlawful violence was to be visited upon the man that Mr Ho was looking for. There is no evidence that they knew who that man was, or that they bore him any ill will. Neither had any idea of the seriousness of the situation in which they became involved.

26. Mr Trinh’s position is different. He had a motive because, ultimately, he was out of pocket as a result of the drug rip-off. He played a part in setting up the meeting and, in spite of counsel’s cogent submission, I accept that he pointed Mr Luong out when the black car arrived at the scene. On the other hand, I accept that he did not know the extent of the violence that would be inflicted and may not have expected that violence would be necessary. He told Ms Dobson, before they left to meet the deceased, not to worry and that he was not a violent man. [22] I accept that part of Ms Dobson’s evidence. Further, shortly after the incident Mr Trinh called Mr Ho and said words to the effect of “what the fuck just happened?” [23] That statement supports the finding that he was surprised that the men from the black car immediately set upon Mr Luong once Ms Dobson opened the door. He played no part in the actual violence although he is responsible for the acts of those who participated in the joint criminal enterprise. He left the scene in the white Ford Territory shortly after the attack commenced.

    22. T.124.

    23. T. 138, 142[19]-[21] (Ms Dobson’s evidence), T. 1003[7]-[17] (Mr Ho’s evidence).

Parity

27. LK pleaded guilty to manslaughter and was sentenced on 23 May 2019. The issue of parity and proportionality must be considered in the case of Mr Feroz, Mr Nguyen and Mr Trinh.

28. LK was sentenced to imprisonment for 5 years with a non-parole period of 2 years and 9 months. This was after a 50% combined discount for his guilty plea and assistance. Accordingly, the starting point was a gaol sentence of 10 years. LK had a minor criminal history, the most serious of which was many years old, that did not disentitle him to leniency.

29. As a matter of fairness I advised all counsel at the sentencing hearing that my preliminary view was that there was not much, objectively, to distinguish the cases of the four men convicted of manslaughter. However, there are differences in the subjective cases and some slight differences in the objective criminality.

30. One matter that distinguishes LK’s case is that he was with Mr Ho earlier in the day. He knew more of the history between Mr Ho and Mr Luong and knew that Mr Ho intended to punish Mr Luong by assaulting him. Mr Ho had threatened to teach Mr Luong a lesson and break his knees. In sentencing LK, I noted that “it seemed to be accepted by the prosecution, [that he] did not know weapons were to be used” even though he had been asked to, and did, sharpen the knife the day before. [24] The fact that he stayed in the car while the others played various roles in the assault is not a matter that greatly diminished his culpability compared to theirs. The CCTV shows that the escape from the scene was quick and urgent, a matter that required somebody to be behind the wheel of the car.

    24. The remarks on sentence, incorrectly, suggest at [9] that this happened on the day of the killing.

31. I have taken the objective and subjective differences in the various cases into account in settling upon the individual sentences in each case. At the same time, I am conscious of the need to ensure that none of the offenders are left with a justifiable sense of grievance arising from any marked disparity between the sentencing outcomes. This applies both to a comparison with LK’s sentence but also as between the three men being sentenced today.

32. The parity principle is also relevant to the case of the two men convicted of murder. There must not be a disparity between the sentences imposed on Mr Ho and Mr Hoang that is not justified by the differences between their cases. Neither should be left with a sense of grievance arising out of a lack of proper proportion between their respective sentences.

Section 21A of the Crime (Sentencing Procedure) Act 1999 (NSW)

33. Section 21A(2) provides a list of aggravating factors while s 21A(3) provides a list of mitigating factors relevant to sentencing. I have already referred to some of these – such as the use of three weapons: cf s 21A(2)(c). Not all homicides involve the use of weapons, and the use of weapons is an aggravating feature in the present case. Even so, in applying the section, it must be remembered that many homicides do involve the use of weapons. I have not considered the offence to be aggravated by the fact that it involved the threatened or actual use of violence: cf s 21A(2)(b). That applies to almost every case of murder or manslaughter by unlawful and dangerous act.

34. Unless there is some particular controversy, I do not propose to identify by reference to the specific sub-paragraphs of s 21A(2) and (3), where the matter has been taken into account. While I will give effect to the section, sentencing ought not to descend into an application of “some sort of checklist”: Ghamraoui v R [2009] NSWCCA 111 at [23]; R v Sumpton (No. 4) [2015] NSWSC 684 at [10]. As I said in R v Sumpton (No 4):

“…it is a matter of synthesising the various factors relevant to a proper assessment of a just sentence, applying the purposes of punishment established at common law and stated in s 3A of the Act, and determining instinctively the appropriate punishment for these offences bearing in mind the individual circumstances of this offender.”

35. I will refer to two matters that were the subject of discussion at the sentencing hearing.

Was the offence committed in company for the purpose of s 21A(2)(e)?

36. In the sentencing of LK, “the parties agreed that the fact that the offence was committed in the company of a number of co-offenders was a factor to be taken into account under [s 21A(2)]”: R v LK [2019] NSWSC 605 at [14]. However, Mr Schaudin (for Mr Trinh) drew my attention to the subsequent decision of Tabbah v R [2019] NSWCCA 324 at [113]-[116]. Having considered that decision, I am satisfied that the fact that these offences were committed in company is not an aggravating factor under s 21A(2). Because the case was presented as one of joint criminal enterprise, the fact that it was committed “in company” was an inherent feature of the offence. Even so, the circumstance that a group of three to five men set upon a defenceless victim is relevant to an assessment of the objective criminality.

Was the offence part of a planned or organised criminal activity under 21A(2)(n)?

37. The Prosecutor did not submit that the offence was aggravated because it was part of a planned or organised criminal activity: s 21A(2)(n). In assessing the objective seriousness of the offence in LK I took into account the fact that the offence occurred within the context of a relatively organised drug supply business and that the motive was to retrieve a drug debt. I did not take the matter into account under s 21A(2)(n). This seems to accord with what was said in Tabbah v R at [77]-[84]. While I find the approach of the prosecution to be curious, I will adopt the same approach in sentencing each of the co-offenders.

Delay

38. The offenders were arrested in June 2016. Their trial was not listed until the end of 2018. Through no fault of the offenders, the trial date was vacated and the matter not listed again until the back half of 2019. The result is that there has been a delay of almost four years between the date of arrest and the sentencing. In at least one of the cases – Mr Trinh’s – there was direct evidence that the delay has been a great burden on him. He, and no doubt the others, have been left in a state of uncertainty as to what will happen in terms of sentence: cf, for example, Todd v R [1982] 2 NSWLR 517 at 519-520; Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70. While not a matter of significant weight given that each of the offenders (except Mr Trinh) maintained the pleas of not guilty throughout the process, it is a matter I have taken into account.

39. The sentence to be imposed on each of the offenders will be back-dated to the date they were arrested. They have been in custody ever since.

Facilitation of the course of justice

40. The trial was run efficiently by the lawyers for each of the five offenders. Most of the witnesses on the prosecution’s witness list were not required and, with one or two exceptions, the cross-examination was targeted and brief. The issues were appropriately confined and very little, if any, time was wasted. The trial came in well under the estimate originally provided. This facilitation of the course of justice is a matter to be taken into account under s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The sanctity of human life, statutory guideposts and the purposes of punishment

41. In any sentencing for homicide, the starting point must be that a human being has been killed. The law must protect, and be seen to protect, the sanctity of human life. The individual dignity of the victim must be vindicated and the harm done must be recognised. The purposes of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act 1999 should be kept firmly in mind. In particular, the Court must denounce the conduct and ensure the offender is adequately punished and made accountable for their actions.

42. Deterrence and the protection of the community are matters entitled to significant weight in sentencing for both manslaughter and murder. At the same time the rehabilitation of the offenders remains a significant consideration. The sentences imposed must not crush their hopes of rehabilitation. Balancing these factors is tricky.

43. The seriousness with which the law deals with cases of murder and manslaughter is reflected in the maximum penalties (life and 25 years respectively) and, in the case of murder, the standard non-parole period of 20 years. I have kept these critical guideposts in mind throughout my consideration of the evidence and submissions on sentence.

No sentence other than imprisonment is appropriate

44. Clearly, in each case, no sentence other than full time custody would be sufficient to reflect the objective gravity of the offence. There is no possible alternative to a full time gaol sentence of some significance. Counsel did not suggest otherwise.

SENTENCING IN THE INDIVIDUAL CASES

45. To this point, I have approached the matter on a global basis as it relates to all of the offenders. I have also set out some of the important objective features of the individual cases and some findings. However, sentencing must be individual and I now turn to the cases of each offender to consider an assessment of their objective criminality, their personal circumstances and other matters relevant to sentence. I will deal first with the three men found guilty of manslaughter and then consider the cases of Mr Ho and Mr Hoang.

Vuong Van Nguyen

Objective criminality

46. Mr Nguyen committed no act of violence and was not carrying a weapon. However, he was responsible for convincing Ms Dobson to open the door of the car and is criminally responsible for the acts of the co-offenders on the principles of joint criminal enterprise. He had little or nothing to do with the planning to meet Mr Luong or rendezvous with those in the white Ford Territory. His objective in going to Mr Ho’s place that day was to obtain drugs. His knowledge that there was going to be violence came later, probably after the men got in the car. I am satisfied beyond a reasonable doubt that he knew that weapons may be used by the time the assailants got out of the black car. He did not know that Mr Hoang had a knife. His criminality was serious but slightly less serious than that of LK, who was well aware of Mr Ho’s plan to assault Mr Luong before they left to meet the deceased.

Personal circumstances

47. Mr Nguyen was born in August 1977. He was 38 at the time of the offence and is now 43 years old. He has three serious matters on his criminal record but they are quite old. In 2000 he was sentenced to 3 years gaol with a 6 month non-parole period for an offence of armed robbery. In 2002, he was sentenced to imprisonment for 4 months for supply of a prohibited drug. In 2004 he was gaoled for 3 years and 6 months with a non-parole period of 2 years for ongoing drug supply. His record does not disentitle him to some leniency.

48. At the time of the present offence, Mr Nguyen was a functioning drug addict. His sister gave evidence in the trial. Mr Nguyen’s father is elderly and the offender has assisted in his care at times. The family is from Vietnam and his father was separated from the family during Mr Nguyen’s childhood because he was in a re-education camp. He was in the camp for around 10 years before arriving in Australia. Mr Nguyen arrived in Australia when he was 14 years old. He is now married with an 8 year old son although he has not had contact with his child since he was arrested. A nice letter from a gaol chaplain was tendered and it spoke well of Mr Nguyen and his behaviour while in custody. Mr Nguyen wrote a letter to the Court expressing his regret for his involvement and I accept that he is genuinely remorseful.

49. A psychologist, Mr Watson-Munro, referred to the fact that Mr Nguyen acknowledged that he was “easily led by others in adverse peer group situations”. That character trait is reflected in his conduct on the day of the incident. Because of his traumatic family background, the dislocation in his teenage years, and an incident when he was shot in a bar in Marrickville, Mr Nguyen has symptoms of post-traumatic stress disorder (PTSD). These included flashbacks, hypervigilance, diminished impulse control, a loss of trust in others and “anticipatory anxiety and depression”. Because these symptoms were not treated “he drifted into a pattern of using drugs”. He has detoxified in gaol and expressed “a strong desire for ongoing treatment”.

50. While I could not find he is a person of good character, I am satisfied that Mr Nguyen has good prospects of rehabilitation. I doubt that he will offend again but this will turn on his successful rehabilitation from the use of drugs.

Special circumstances and sentence

51. I find there are special circumstances justifying a small adjustment to the non-parole period. Mr Nguyen’s rehabilitation will be fostered by an extended period of supervision and assistance when he is released to parole.

52. I propose to sentence Mr Nguyen to a term of imprisonment of 9 years with a non-parole period of 6 years.

Abdul Feroz

Objective criminality

53. Mr Feroz was trying to source drugs from Mr Ho. He was not involved in the plan to meet Mr Luong and probably had little or no knowledge of the dispute between the victim and Mr Ho. The evidence called at trial showed that he was not present at the house until very shortly before the group left to meet Mr Luong. Mr Feroz did not know that violence may be employed and was not aware that a knife would be used until he saw Mr Hoang stabbing Mr Luong when the latter was on the roadway. At that stage he attempted to stop Mr Hoang by grabbing his arm. [25] He intended to call an ambulance. He armed himself with a curtain rod and used it to strike the victim although this did not result in any significant injury. Even so, it demonstrates that he was an active participant in the joint criminal enterprise to inflict unlawful violence. He did this out of bravado. He gave evidence that he did not want to look “like a pussy”. [26]

    25. T. 949[9].

    26. T. 667[42]; T.925[21].

54. Mr Feroz’s objective criminality is serious. Because he actually assaulted the deceased with the curtain rod, his role was greater than Mr Nguyen’s but his action in trying to stop Mr Hoang from stabbing Mr Luong is a significant mitigating feature. I take the view that his objective criminality is less than that of LK and about the same as Mr Nguyen. While Mr Feroz employed some violence on the deceased, his positive action of attempting to stop the stabbing distinguishes his case from those of the other men.

Weapons offences

55. In the course of investigating the homicide of Mr Luong, police executed a search warrant on Mr Feroz’s premises on 15 June 2016. In the offender’s locked bedroom they located a number of weapons. He pleads guilty to six offences resulting from his possession of those weapons. These are to be dealt with under s 166 of the Criminal Procedure Act 1986 (NSW). The parties agree that s 168 means that the appropriate maximum penalties are those that apply when the offences are dealt with summarily. The offences, weapons located and maximum penalties are as follows:

Offence	Weapon	Maximum penalty
Possess unregistered firearm, s 36(1) Firearms Act 1996 (NSW)	A .22 bolt action long rifle with scope and laser.	2 years imprisonment and/or a fine of 50 penalty units.
Possess unauthorised firearm, s 7A(1) Firearms Act 1996	The same rifle (as above).	2 years imprisonment and/or a fine of 50 penalty units.
Possess ammunition without licence, s 65(3) Firearms Act 1996	18 x loose .22 long rifle cartridges.	Fine of 50 penalty units.
Not keep firearm safely, s 39(1)(a) Firearms Act 1996	The same rifle.	12 months imprisonment and/or a fine of 20 penalty units.
Possess prohibited weapon, s 7(1) Weapons Prohibition Act 1998 (NSW)	A flick knife.	2 years imprisonment and/or a fine of 100 penalty units.
Possess prohibited weapon, s 7(1) Weapons Prohibition Act 1998	An extendable baton.	2 years imprisonment and/or a fine of 100 penalty units.

56. In relation to the offences carrying gaol sentences, it was not suggested that there was any utility in considering alternatives to full-time imprisonment. However, there was a radical inconsistency in the submissions as to whether those sentences should be accumulated on the manslaughter sentence or made concurrent. At the sentencing hearing, and in an email sent to my Associate in advance of that hearing, the Prosecutor submitted that the offences on the s 166 Certificate should all run concurrently but that the total sentence for those offences should be “wholly accumulated” upon the manslaughter sentence. [27] Counsel for Mr Feroz agreed with that submission. [28] However, in emails sent after the hearing, the Prosecutor took the opposite approach:

“1. When submissions were requested on the s 166 in relation to the offender FEROZ the parties were asked to address whether: ‘any sentences for those matters should be accumulated in part or in whole on the manslaughter sentence.’

2. The Crown submitted that the sentence should be ‘wholly accumulated’ in answer to that request. What was meant by that and confirmed in oral submissions was that any sentence imposed would run concurrently with the manslaughter sentence. That is, not in any way a cumulative sentence.” [29]

27. ST. 38 (19 March 2020). See also ST. 46-47 (in relation to Mr Ho).

28. ST. 39 (19 March 2020).

29. This email was marked in chambers as MFI S10 and kept in the file.

57. The thrust of what appears in the last two sentence of paragraph 2 of the email was not “confirmed in oral submissions.” When asked for further clarification of the Director’s position, the Prosecutor replied by email on 27 March 2020:

“I do apologise for the confusion. I was incorrect in my description (both written and oral) of ‘accumulated in whole’. What I meant was ‘concurrent’.

When discussing the issue with [counsel for Mr Feroz] prior to the proceedings he also understood ‘accumulated in whole’ to mean ‘concurrent’.” [30]

30. This email was also marked in chambers as MFI S11 and kept in the file.

58. I am grateful to the learned Prosecutor for clarifying this issue before the sentence was imposed. I will approach the sentencing in accordance with the joint position of the parties.

Personal circumstances

59. Mr Feroz was 31 years old at the time of the offence and is 36 now. He has no relevant criminal history. [31]

    31. The only offence of significance was dealt with in the Children’s Court in 2001 and the conviction was “spent” due to a crime free period of 3 years after the disposition of the case under s 33 of the Children (Criminal Proceedings) Act 1987 (NSW).

60. His parents gave evidence in the trial and provided a letter on sentence. They are very impressive people and loving parents. On the day of the offence they were attempting to help Mr Feroz to deal with his drug problem. His sister provided a letter on sentence which showed that the siblings are close and that Mr Feroz was protective and empathetic when his sister was bullied at school. I accept her opinion that Mr Feroz is not generally a person of violent disposition. Mr Feroz has substantial family support. A family friend (Mr Palasseri) spoke very highly of him, as did a friend and employer (Mr Mouka). Mr Feroz had a drug problem at the time of the offence, and this explains his involvement, but he was otherwise a functioning member of the community. He was in employment and had undertaken training with Mr Mouka, who has offered him employment as a senior concrete tester. Mr Mouka described the offender as loyal, reliable and honest. A number of certificates were tendered that indicate he is dealing with his drug problem and has good work skills.

61. A psychiatrist (Dr Chew) provided a report. Dr Chew diagnosed Mr Feroz with an Adjustment Disorder and a Substance Use Disorder. There was a history of treatment for depression. Dr Chew made reference to Mr Feroz describing his drug use as “self-medication”. He said there was “likely a nexus between his conditions and the offending behaviour.” However, the report is devoid of detail and counsel conceded “very little” could be made of the report on sentence except for its emphasis on Mr Feroz’s need for rehabilitation. [32] Counsel specifically disavowed a submission that the report would impact on an assessment of moral culpability or diminish the weight to be afforded to deterrence. There is no evidence that Mr Feroz’s condition will impact on his experience in custody.

    32. ST. 11 (19 March 2020).

59. I am satisfied that Mr Feroz has excellent prospects of rehabilitation if given support to overcome his drug problem. I doubt he will offend in the future.

Special circumstances and sentence

63. I find there are special circumstances justifying an adjustment to the non-parole period. The special circumstances include Mr Feroz’s need for support and supervision upon his release.

64. For the weapons offences, I propose to sentence Mr Feroz to a series of penalties that will be concurrent and result in an effective fixed term of 12 months. The manslaughter sentence will be 9 years with a non-parole period of 6 years. All sentences will run concurrently so that the total effective sentence will be that imposed for the manslaughter offence.

Minh Duc Trinh

Objective criminality

65. Mr Trinh played a significant role in setting up the meeting that led to Mr Luong’s death. While he did not realise the amount of violence that would be employed, I am satisfied beyond reasonable doubt that he knew the infliction of unlawful violence to enforce the drug debt was a real possibility. He used his position as a mid-level drug dealer, and his relationship with Ms Dobson and Mr Pham, to engage those two people in the ruse that tricked Mr Luong into attending the meeting. He was motivated by the desire to recover the money that Mr Ho owed him for the drugs that Mr Luong had “ripped off”. He pointed out Mr Luong to the men in the black Honda. However, he was surprised by the immediacy and ferocity of the attack on Mr Luong and this was evidenced by his exclamation “what the fuck just happened?”[33] He left the scene quickly and personally committed no act of violence.

    33. T. 1003[7]-[17].

66. His criminality is objectively serious, more serious than that of Mr Feroz and Mr Nguyen, and at a similar level to LK. LK knew more about Mr Ho’s intention to punish Mr Luong but Mr Trinh was motivated to get his money back and played a greater role in planning the meeting.

Offer to plead guilty

67. I was informed that Mr Trinh made an offer to plead guilty to manslaughter in the days or weeks before the trial was to commence. It was an unconditional offer with no suggestion that particular facts had to be agreed to by the Director of Public Prosecutions. Another offer was made in the course of the trial. Both offers were rejected by the Director.

68. The orthodox approach to this situation was explained in cases such as R v Oinonen [1999] NSWCCA 310 at [15]-[18], R v Cardoso [2003] NSWCCA 15; (2003) 137 A Crim R 535 at [19]-[21] and R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1 at [121]. The Prosecutor submitted that Mr Trinh was entitled to nothing for his offer to plead guilty and relied on the judgment of Wilson J in R v Merrick (No 5) [2016] NSWSC 661 at [105] to [121]. Her Honour’s approach was upheld by the Court of Criminal Appeal based on the particular facts of that case: Merrick v R [2017] NSWCCA 264 at [99]-[123]. However, in the recent decision of Magro v R [2020] NSWCCA 25, the Court of Criminal Appeal (Gleeson JA, R A Hulme and Button JJ) confirmed the general approach where an offer to plead guilty is made and rejected and the jury ultimately returns a verdict consistent with the offender’s offer.

69. The present case is factually different to the circumstances in Merrick. I will adopt the orthodox approach. As Hidden J explained in Cardoso at [21], to do otherwise would mean that the leniency to be afforded to an offender who offers to plead guilty “would depend upon the Crown’s attitude.” As Hidden J said: “That would be unacceptable.” This passage was referred to with approval in Magro v R at [52].

70. The offer to plead came late but it had some potential utilitarian value. I will reduce the sentence by 10%.

Personal circumstances

71. Mr Trinh was 36 at the time of the offence and is now 40 years old. He has a criminal record that perhaps reflects his status as a mid-level drug dealer. In 1999 he was sentenced to prison for supplying drugs, with possession of a firearm taken into account. In June 2000 he was sentenced to 4 months gaol for goods in custody and possession of ammunition. All of those offences seem to have been committed at the same time (5 March 1999). In 2003 he was sentenced to a period of 2 years and 6 months imprisonment with a non-parole period of 1 year for an offence of supply with other offences (including a weapons offence) taken into account. In 2005 and 2006 he was again sentenced for drug supply, possession and dealing with the proceeds of crime. He had a serious offence of culpable driving which resulted in a 3 year gaol sentence in 2007. In 2009 he was sentenced to an 18 month non-parole period for supply. In 2012 and 2013 he had a number of offences of possessing drugs, goods in custody and supplying drugs. There is also an offence in the Australian Capital Territory in 2016 in relation to which his immediate release was ordered on entering a 2 year good behaviour bond. None of the facts of the matters on his criminal record are known. Mr Trinh’s criminal record disentitles him to leniency but is not an aggravating feature relevant to his offending.

72. Mr Trinh’s brother provided a helpful letter on sentence in which he talked about the fact that their upbringing was “abusive” and that this led to his brother mixing with “the wrong crowd” and developing a drug addiction. His observation is that Mr Trinh has matured in the last few years and he has demonstrated a deep sense of remorse.

73. Dr Simonelli, a psychiatrist, provided a report which confirmed the history of abuse. He reported that Mr Trinh was born in a refugee camp in Hong Kong after his family fled Vietnam. After the family came to Australia, his father “quickly moved into a criminal lifestyle” and Mr Trinh was exposed to a criminal culture from an early age. There was no diagnosis of mental illness although it is clear that Mr Trinh has a long standing drug problem. Mr Trinh expressed remorse and shame for his involvement in the crime and said he is “ashamed at what I’ve become”. He told the psychiatrist that he was at a “cross-roads” in his life. The delay in the trial and the fear that he would receive a lengthy gaol sentence for murder has been a heavy burden on him. He has recently, presumably after the verdicts, started to feel that he has some hope. Mr Trinh says he was prepared to plead guilty to manslaughter “since day one”. I treat that statement with a degree of scepticism given that the offer was not communicated until the trial was soon to commence.

74. In view of his age, the remorse expressed to his brother and Dr Simonelli and reflected in the offer to plead guilty, and his subjective view that he is at a turning point in his life, I am satisfied that Mr Trinh has some prospects of rehabilitation. His criminal record makes it hard to say the prospects are “good”. However, he has no prior offences of violence on his record and it is unlikely that he will ever again involve himself in a crime such as this.

Special circumstances and sentence

75. I would commence with the same sentence as that imposed on LK, that is 10 years. I would reduce that by 10% to result in a total sentence of 9 years. I am not satisfied there are special circumstances in Mr Trinh’s case and the non-parole period will be 6 years and 9 months.

Tony William Ho

Objective seriousness

76. Mr Ho was instrumental in setting up the meeting with Mr Luong and recruited Mr Hoang, Mr Feroz and Mr Nguyen into the enterprise. The day before the killing, Mr Ho produced the knife that was used in the stabbing and asked LK to sharpen it. [34] However, Mr Ho did not know that Mr Hoang would use the knife and did not know that it was taken to the scene. When he saw the knife he told Mr Hoang to put [it] away. [35] Mr Ho was angry and went to the scene with the intention of causing physical harm, but not grievous bodily harm, to Mr Luong. Mr Ho gave directions to Mr Hoang, who seemed to have some facilitative role in the drug business. [36] At the scene, and when things escalated, he joined the enterprise with Mr Hoang to inflict grievous bodily harm on Mr Luong. For the purpose of sentencing Mr Ho, I accept that he did not use the knife and I have disregarded the admissions allegedly made to Ms Dobson.

    34. T. 346-347.

    35. T. 978-979.

    36. T. 965-967.

77. The specific intention to inflict grievous bodily harm, or to join a criminal enterprise to inflict such harm, was formed at the scene, probably – as Mr Webb submitted on his behalf – in the last 15 or 30 seconds. This was when Mr Ho hit the deceased with an iron bar knowing that he had been stabbed.

78. Mr Ho’s leadership role in the more general enterprise (to assault) and motive (money) increase the objective gravity of the offence. However, the fact that he had the intention to inflict grievous bodily harm for such a short time, and the fact that he did not intend to kill, reduces the objective gravity. For the purpose of the application of the standard non-parole period I record my finding that the offence is below the middle of the range of objective seriousness for offences of murder (not involving children, police officers and the other classes of victim referred to in the item attracting a standard non-parole period of 25 years).

A separate offence of possession of a replica pistol

79. There was a certificate under s 166 containing one count of possession of a prohibited pistol: Firearms Act 1996 (NSW), s 7(1). The maximum penalty for that offence (if dealt with summarily) [37] is 2 years imprisonment and/or a fine of 50 penalty units. When police executed a search warrant at his premises on the day of his arrest for Mr Luong’s murder (15 June 2016), they located a 6mm Airsoft calibre repeating pistol. This is an airgun capable of firing plastic pellets. It is deemed to be a firearm by the Firearms Act 1996.

    37. See Criminal Procedure Act 1986 (NSW), s 168.

80. The same confusion that arose in Mr Feroz’s case concerning whether any sentence imposed on the s 166 offence should be made concurrent or cumulative also arose in Mr Ho’s case. The Prosecutor submitted, in court and without demur, that the sentence for this offence should be accumulated on the sentence for murder. [38] However, after the hearing counsel for Mr Ho sought leave to re-open the argument to submit that the sentences should be concurrent. In the email dated 27 March 2020 the Prosecutor confirmed that the Director took the same approach as that taken in the case of Mr Feroz. He wrote:

“3. The [Director] in relation to the offender HO confirms the submission that in relation to his possession of the pellet gun any sentence could be served concurrently with the murder sentence.” [39]

38. ST. 46-47 (20 March 2020).

39. MFI S10.

81. In an email of the same date at 11:47am, the Prosecutor said:

“In relation to both Mr FEROZ and MR HO I cannot now in fairness submit that any or part of a sentence in relation to the s 166 Certificate matters should be partly or wholly cumulative.”

82. There was no suggestion that it should be dealt with otherwise than by way of a gaol sentence. There would be no utility in any other disposition of the matter given the length of the sentence that must be imposed for the murder. I consider it to be at the lower end of the range of seriousness for offences charged under s 7(1) of the Firearms Act. I will impose a 3 month fixed term sentence for this offence and it will commence at the same time as the murder sentence, that is on the day of Mr Ho’s arrest.

Personal case

83. Mr Ho was about to turn 38 at the time of the offence and is 42 years old now. He committed some serious offences of violence in 1999 and received gaol sentences including a 4 year sentence for armed robbery. There is an assault conviction from 2004 for which a fine was imposed. In 2007 he was placed on a 10 month suspended sentence for being an accessory after the fact to a serious indictable offence. Mr Ho has no record for violent offending since then although he has other matters on his criminal history including possession of drugs and weapons in 2012. His record disentitles him to any significant degree of leniency.

84. A report by a psychologist, Anita Duffy, set out Mr Ho’s personal and family history. He was born in Saigon (Ho Chi Minh City) in Vietnam in 1977. His parents were of Chinese origin and his father was arrested by the North Vietnamese after the war and was tortured and imprisoned. Mr Ho had no schooling because of his family’s poverty. His father escaped Vietnam and came to Australia in 1986 as a refugee while Mr Ho and his mother remained in Vietnam. While he was living in Saigon, Mr Ho came under the influence of older friends who led him astray. That pattern continued in Australia when he met youths in Cabramatta who introduced him to crime and drugs. He was the “naughty” one of his family. He had little contact with his father who was working hard a long way from home. His father counselled against taking drugs but he continued using drugs, including with his addicted de facto partner through 1991 to 2001. He acknowledged that he was a disappointment to his parents and siblings. He expressed regret at his involvement in the offence and wanted to say sorry to Mr Luong’s family.

85. Ms Duffy administered various personality tests and Mr Ho presented as insecure and a person with low self-esteem. It is said he has a dependent personality and turns to people who are stronger than him. He met the diagnostic criteria for Substance Use Disorder and had elevated scores for anxiety.

86. Mr Ho wrote a letter to the Court in which he said he was truly sorry. He also said he missed his family and confirmed that his wife and daughter are in Vietnam. The letter was not the most insightful one. For example, Mr Ho said there was “no planning at all”, that “all I wanted was to get either the drugs or the money back” and that he “had no intention of hurting [Mr Luong]”. These assertions do not fit well with the established facts. Even so, I accept Mr Ho’s letter as genuine and have taken it into account along with Ms Duffy’s report.

Sentencing

87. The sentence will include a non-parole period substantially less than the standard non-parole period of 20 years. The objective facts, and in particular the brief time during which Mr Ho had an intention to inflict grievous bodily harm, explains that outcome. The standard non-parole period, along with the maximum penalty (life imprisonment), is an important guidepost but it is not determinative and the Court must consider all factors relevant to the sentencing discretion and then make a value judgment as to what the sentence should be.

88. I propose to impose a sentence of 20 years imprisonment with a non-parole period of 15 years.

89. I am unable to find special circumstances in Mr Ho’s case. Five years on parole will provide a sufficient period of supervision upon his release.

Jason Hoang

Objective seriousness

90. Mr Hoang had some role in Mr Ho’s drug business. He was also a consumer of Mr Ho’s drugs. There is no doubt that he was aware of the dispute between Mr Ho and Mr Luong over the missing drugs and that Mr Ho intended to teach Mr Luong a lesson. I am satisfied to the criminal standard that he was present when the knife was produced and that he is the one who took it to the scene. I am also satisfied beyond a reasonable doubt that he used it to stab Mr Luong on more than one occasion. As I have said, there was evidence given by Ms Dobson that Mr Ho made an admission that he had inflicted a stab wound or wounds, perhaps the fatal wound. This evidence was not admitted in Mr Ho’s case but it was relied on by Mr Hoang to raise a doubt that he inflicted all of the stab wounds. Ms Dobson also gave evidence that she saw more than one knife at the scene. While I found her evidence to be generally unsatisfactory, it does raise a reasonable doubt (in Mr Hoang’s case) as to whether he inflicted the fatal stab wound. In any event, I am satisfied that he brought the knife to the scene and he used it with the intention of inflicting grievous bodily harm.

91. There was some suggestion at the trial that Mr Hoang had a different motive for the killing. This involved a love triangle between the offender, the deceased and a young woman who need not be named. The source of this information was LK who said that Mr Luong “was trying to get his girlfriend or something like that and that he had had a confrontation with him, and that, you know, he didn't want to fight him or something like that, just never came to, just said no, that was it, but he said he didn't like him.” [40] During cross examination, LK indicated that “in his mind”, Mr Hoang was jealous or perhaps angry that Mr Luong had some sort of relationship with the young woman. [41] While this could potentially explain why Mr Hoang went beyond the scope of the original enterprise, I accept Ms Carroll’s submission to the jury that this was a bit far-fetched and there was no evidence that Mr Hoang had ever acted with violence towards Mr Luong in the past. The true motive for this crime was a financial one and arose from the debt owed to Mr Ho.

    40. T. 394.

    41. T. 575-576[12], 592.

92. Because he brought the knife to the scene and was the first to use it, I am satisfied that Mr Hoang’s criminality is slightly more serious than that of Mr Ho. In saying that, I am conscious of the fact that Mr Ho was the main organiser of the original enterprise and that he was the one who stood to gain (or recoup his money or drugs). However, that enterprise did not involve the infliction of really serious injury and it was the production of the knife that caused the tragic events to unfold as they did. Were it not for the presence of the knife, it is likely that Mr Luong would be alive today.

Personal circumstances

93. Mr Hoang was born in February 1981 and was 34 years old at the time of the offence. He is now 38 years old. His criminal history includes some serious offences including a drug supply and firearms offences in 1999 for which he was sent to gaol for a couple of years. His record for violence is very minor. He was gaoled again for drug supply in 2003. His criminal history disentitles him to any significant degree of leniency.

94. A psychologist report was tendered which set out Mr Hoang’s personal history. He was born in Hong Kong to Vietnamese parents. His family moved to Australia when he was around 3 years old. He had a normal childhood with no history of trauma or domestic violence. He has a long standing drug problem and was diagnosed with Substance Use Disorder. This disorder is said to be “in remission due to incarceration”. Mr Hoang has made several attempts at rehabilitation over the years. This included an intervention via the Drug Court and using Naltrexone implants to overcome an addiction to heroin. He stopped using heroin but began using ice.

95. He is currently motivated to reform but realises he faces a long gaol sentence. He has a 10 year old daughter and this provides him with the motivation to rehabilitate. The mother of the child also had a bad drug problem and readily gave up custody to Mr Hoang. The child is currently being cared for by his parents. I cannot say that he is a person of good character but his prospects of rehabilitation after a long sentence are reasonable. His objective criminality is slightly higher than that of Mr Ho.

Sentencing

96. Taking into account all matters relevant to sentence, and noting that Mr Hoang’s sentence should be somewhat more severe than that imposed on Mr Ho, I intend to impose a sentence of 22 years imprisonment. I am unable to identify any special circumstances and the non-parole period will be 16½ years.

SENTENCING

Abdul Feroz

97. Mr Feroz, for the weapons offences you are sentenced as follows:

1. Possession of unregistered firearm – a fixed term of 12 months commencing on 15 June 2016 and expiring on 14 June 2017.

2. Possession of unauthorised firearm – a fixed term of 12 months commencing on 15 June 2016 and expiring on 14 June 2017.

1. Possession of ammunition – pursuant to s 10A Crimes (Sentencing Procedure Act) 1999 you are convicted with no further penalty.

2. Not keep firearm safely – a fixed term of 6 months commencing on 15 June 2016 and expiring on 14 December 2016.

3. Possession of the flick knife – a fixed term of 1 month commencing 15 June 2016 and expiring on 14 July 2016.

4. Possession of baton – a fixed term of 14 days commencing on 15 June 2016 and expiring on 28 June 2016.

98. For the manslaughter of Tu Luong – you are sentenced to a non-parole period of 6 years commencing on 15 June 2016 and expiring on 14 June 2022 with a balance of term of 3 years expiring 14 June 2025.

99. I confirm this is a total effective sentence of 9 years with a non-parole period of 6 years and you will be eligible for release to parole at the conclusion of the non-parole period.

100. Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW) I am required to warn you that the Act applies to the offence of manslaughter by unlawful and dangerous act and I direct your lawyers to explain the possible implications of that when you come to the end of your sentence.

Tony William Ho

101. Mr Ho, for the offence of possession of an unauthorised pistol, you are convicted and sentenced to 3 months imprisonment commencing 15 June 2016 and expiring 14 September 2016.

102. For the offence of murder, you are sentenced to a non-parole period of 15 years commencing 15 June 2016 and expiring on 14 June 2031. There will be a balance of term of 5 years expiring on 14 June 2036.

103. You will be eligible for release on parole on the expiration of the non-parole period.

104. Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 I am required to warn you that the Act applies to the offence of murder and I direct your lawyers to explain the possible implications of that when you come to the end of your sentence.

Jason Hoang

105. Mr Hoang, for the murder of Tu Luong, you are sentenced to a non-parole period of 16 years and 6 months commencing 15 June 2016 and expiring on 14 December 2032 with a balance of term of 5 years and 6 months expiring on 14 June 2038.

106. You will be eligible for release to parole at the conclusion of the non-parole period.

107. Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 I am required to warn you that the Act applies to the offence of murder and I direct your lawyers to explain the possible implications of that when you come to the end of your sentence.

Voung Van Nguyen

108. Mr Nguyen, for the manslaughter of Tu Luong, you are sentenced to a non-parole period of 6 years commencing 15 June 2016 and expiring 14 June 2022 with a balance of term of 3 years imprisonment expiring 14 June 2025.

109. You will be eligible for release to parole at the conclusion of the non-parole period.

110. Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 I am required to warn you that the Act applies to the offence of manslaughter by unlawful and dangerous act and I direct your lawyers to explain the possible implications of that when you come to the end of your sentence.

Minh Duc Trinh

111. Mr Trinh, for the manslaughter of Tu Luong, you are sentenced to a non-parole period of 6 years and 9 months commencing 15 June 2016 and expiring on 14 March 2023 with a balance of term of 2 years and 3 months expiring on 14 June 2025.

112. You will be eligible for release to parole at the conclusion of the non-parole period.

113. Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 I am required to warn you that the Act applies to the offence of manslaughter by unlawful and dangerous act and I direct your lawyers to explain the possible implications of that when you come to the end of your sentence.

**********

Endnotes

Amendments

06 April 2020 - Amendment to date.

Decision last updated: 06 April 2020