R v Huynh

[2007] NSWSC 409

CITATION:	R v Huynh [2007] NSWSC 409
HEARING DATE(S):	23/06/06, 25/09/06, 3/11/06, 23/2/07, 13/04/07, 19/04/07
JUDGMENT DATE :	24 April 2007
JUDGMENT OF:	Buddin J
DECISION:	For offence of demanding money with menaces, offender sentenced to a fixed term of 6 years to commence on 23 August 2003 and to expire on 22 August 2009. For offence of murder, offender sentenced to a non-parole period of 16 years with a total term of 22 years. Each term of that sentence is to commence on 23 August 2005. The non-parole period will expire on 22 August 2021 and the total term on 22 August 2027. The total effective non-parole period is 18 years and the total effective term is 24 years. The offender is thus eligible for release on parole on 22 August 2021.
CATCHWORDS:	Sentencing - offences of murder and demand money with menaces - death occurring during course of abduction of victim - assessment of offender's evidence given after conviction - whether or not standard non-parole period to be applied - application of principles of totality
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995
CASES CITED:	Andrews v R (2006) 160 A Crim R 505 MAH v R [2006] NSWCCA 226 Pearce v the Queen (1998) 194 CLR 610 R v AJP (2004) 150 A Crim R 575 R v Apps [2006] NSWCCA 290 R v Durocher-Yvon (2003) 58 NSWLR 581 R v Hammoud (2000) 118 A Crim R 66 R v Isaacs (1997) 41 NSWLR 374 R v Imnetu [2006] NSWCCA 203 R v MA (2004) 145 A Crim R 434 R v Mostyn (2004) 145 A Crim R 304 R v Olbrich (1999) 199 CLR 270 R v Previtera (1997) 94 A Crim R 76 R v Simpson (2001) 53 NSWLR 704 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Wallace [2007] NSWCCA 63 R v Way (2004) 60 NSWLR 168 R v Weldon & Carberry (2002) 136 A Crim R 55 R v Yildiz (2006) 160 A Crim R 218 RNM v Regina [2006] NSWCCA 375
PARTIES:	Regina Trung Son Huynh
FILE NUMBER(S):	SC 1247/2005
COUNSEL:	J Kiely SC (Crown) P Bodor QC (Offender)
SOLICITORS:	S Kavanagh (Solicitor for Director of Public Prosecutions) Ford Criminal Lawyers (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

TUESDAY 24 APRIL 2007

1247/2005 – REGINA v TRUNG SON HUYNH

Introduction

1 HIS HONOUR: Trung Son Huynh (the offender) stands for sentence in respect of two offences. First, he is to be sentenced following his conviction by a jury of having murdered Vay Linh Phun between 19 and 23 August 2003. Secondly, he is to be sentenced following his plea of guilty of having on 22 August 2003 demanded with menaces $70,000 from the deceased’s father (San Lai Phun) with intent to steal that property. The maximum penalties for the offences of murder and demanding money with menaces are life, and 10 years, imprisonment respectively.

Factual background

2 As the Crown case in respect of the offence of murder was a circumstantial one, it will be necessary to draw certain inferences from the evidence in order to make the relevant findings of fact. In approaching that task I must proceed in accordance with well-established principles: see R v Isaacs (1997) 41 NSWLR 374; R v Olbrich (1999) 199 CLR 270.

(a) the evidence at trial

3 The Crown case as presented at trial was that the offender kidnapped the deceased some time during the course of the evening of 19 August 2003. At the time of her death, the deceased was a 22-year-old student at the University of Technology who lived with her family at Earlwood. She was last seen alive at 7.15 pm that evening as she drove her car out of the garage of the Peak Apartments in Haymarket where she rented a car space. She had just finished attending a lecture. Just before collecting her car, the deceased made a phone call to Raymond Ho, her boyfriend of 5 years. Her call went to his message bank. When he realised that she had called, he tried to return the call. She did not respond to his call, which was made at 7.39 pm. Mr Ho made a number of other calls to the deceased’s phone during the course of the evening. However he was not successful in reaching her on any of those occasions.

4 The deceased’s body was located on 23 August. It was discovered in the boot of her vehicle which was parked in West Street, Petersham. She was in the same clothes that she had been in when she was last seen on 19 August.

5 The Crown case was that the car was parked there by the offender (with the deceased in it) shortly after 11 pm on 19 August and that it remained there undisturbed until it was discovered on 23 August. A forensic pathologist, Professor Hilton, was called by the Crown. His opinion, which was not challenged, was that the deceased died as a result of being manually strangled. He gave evidence that no great amount of force would have been required to have caused her death. Fortunately no other violence was perpetrated upon the deceased’s body.

6 Professor Hilton also expressed the view that the state of decomposition of the deceased’s body indicated that she had only been in the position in which she was found for a period of 36-48 hours (or possibly less). Nevertheless he conceded that it was possible that her body had been there for a rather longer period of time (ie 90 hours or so). That was of course the state of affairs for which the Crown contended.

7 The actual time of death became a very significant issue at the trial. Given the way in which the Crown case was presented, and given the issues which the jury were asked by the parties to consider, it is apparent that the jury accepted the Crown case as to when the deceased’s car (with her body in it) was parked in West Street. I also accept the Crown’s contention and accordingly will proceed to sentence the offender upon that basis.

8 It is apparent, from what I have already said, that the deceased was killed at some stage between 7.15 pm and 11 pm. Based upon the evidence given at trial it is not possible to state with any greater precision when her death occurred. Indeed the circumstances as to how and where it occurred remained shrouded in mystery at the end of the trial.

9 The Crown’s case depended upon the twin pillars of opportunity and motive. The Crown relied upon several pieces of evidence in support of its case that the offender’s movements on the evening of 19 August provided him with an opportunity to kill the deceased. First, it relied upon records retained by the Mirramar Apartments in Pitt Street, Sydney where the offender was residing at the time with his then wife, whom I shall refer to as A. A. was a close friend of the deceased. Indeed they were fellow students at the University. Although it is common ground that the records are not entirely accurate, they nonetheless reveal that the offender left his apartment shortly after 6.30 pm on 19 August. The apartment complex is in the Haymarket area, and is only a relatively short distance from the University campus. Mobile phone records reveal that the offender was in the Kingsgrove area at 7.39 pm, at which time A. attempted unsuccessfully to contact him. Kingsgrove, it may be noted, is only a short distance from Earlwood and is in the general direction in which the deceased was likely to have been travelling that evening.

10 A. gave evidence that she left the apartment that evening some time after the offender. The records indicate that she did so at 7.05 pm. She then drove the couple’s car to the Palm Court Motel in Haberfield. She was captured by a surveillance camera arriving there at about 7.25 pm. She said that she decided to go there following an incident involving the offender which had caused her to want to spend the night on her own. As it transpires, the motel, which the couple had frequented prior to getting married, was a mere 600 metres from where the deceased’s car was found in West Street.

11 The records from the Mirramar Apartments reveal that the offender returned there at 9.14 pm before departing again at 9.29 pm. He entered and left through the car park even though the only vehicle which he and his wife owned was in her possession at the time at Haberfield. The Crown contends that the offender returned to the premises in the deceased’s car. I am not satisfied to the requisite standard that that fact has been established. It is not, in any event, a matter that is pivotal to the Crown case. The offender then used his mobile phone on three occasions between 9.39 pm and 9.51 pm to contact his wife on their home phone. He was unsuccessful in his efforts to do so.

12 Records held by the Mirramar Apartments indicate that the offender again entered the premises at 11.29 pm. Mobile phone records reveal that he then rang his wife from the home phone. The evidence, both from A. and the offender, is that he called her twice. On the first occasion she hung up on him. During the course of the second call, she told him where she was. She agreed to his request that he come over and stay with her.

13 The offender then caught a taxi and arrived at the motel at around midnight. Following his arrival, the offender and his wife talked for some time. His wife then went to sleep. The offender gave evidence that at about 2 am he went out in the couple’s car in order to purchase cigarettes. He said that he was gone for about five minutes. Surveillance camera footage at the motel captured an image of a person leaving and returning to the premises at that time. In cross-examination the offender agreed that there was a 24 hour service station next door to the motel but he maintained that it was closed that evening. Be that as it may, I am satisfied to the requisite standard that he took the opportunity, whilst he was out, to go and check on the deceased’s car in West Street.

14 The offender gave evidence about his movements between about 7 pm and 11 pm that evening. It suffices to say that the jury clearly rejected his account. It is not surprising that it did so since his evidence upon this, and other issues, was quite implausible.

15 When the deceased did not arrive home on the night of 19 August her family and friends, including Mr Ho, became concerned. They made persistent attempts over the following few days to locate her. It is unnecessary to detail their efforts other than to say that the fact that she was missing was in due course reported to police. In an endeavour to locate her, one of the deceased’s closest friends, Carmen Taing, made contact with A. during the morning of 20 August. She provided A. with her phone number. I am satisfied to the requisite standard that the offender was aware from about that time that concerns were held for the deceased’s safety by her family and friends. The offender admitted that he obtained Ms Taing’s phone number, although I am unable to determine precisely when and in what circumstances he acquired it.

16 On 22 August, the offender rang Ms Taing’s mobile number at 12.10 pm. Ms Taing, who had known the deceased for 13 years, gave evidence that when she picked up the phone she immediately recognised the deceased’s voice. She gave evidence that she heard the deceased utter words to the effect of “my contact lenses are dry”. Immediately thereafter the offender sent, within a very short space of time, three separate SMS messages to Ms Taing. These messages were in the following terms:

I have your Lin Phun. Now go and tell her dad I want $70,000 for her release by 7 pm today.

Place money in white plastic bag and stand in front of Commonwealth bank at Campsie with mobile phone and await instructions.

Do not let the police know, if I see anything wrong, my man will kill her. We will release her 2 hours after received the money. Remember don (sic) be stupid.

17 The offender admitted sending those messages and indeed it was his conduct in sending those messages which is the subject of the charge to which he pleaded guilty. The messages were sent from a mobile phone containing a SIM card which was in the offender’s name.

18 Notwithstanding what is contained in the first of the SMS messages, the offender gave evidence during the trial denying that he had the deceased with him at the time. He also denied having a recording of her voice at the time he sent the message. Moreover, despite what appeared in the final message, he denied having anyone with him who might kill the deceased if his demands were not met. Finally he denied knowing that she was dead at the time. His case was that Ms Taing was mistaken about her identification of the deceased’s voice.

19 I have no doubt whatsoever that it was the deceased’s voice on the phone. Apart from any other consideration, the context in which the call occurred dictates such a conclusion. As the deceased was already dead at the time, it is apparent that her voice must have been pre-recorded. In respect of that matter I note that when police searched the offender’s vehicle, they found a cassette holder which had no cassette in it. The offender, in my view, was unable to satisfactorily explain what had become of the cassette.

20 After tracing the SMS messages, the police immediately placed the offender under surveillance. That evening the offender went to dinner with his wife at the Star City Casino. Whilst he was there, he sent two further SMS messages to Ms Taing in which he changed his plans concerning the payment of the ransom. Somewhat puzzlingly, the offender at no stage attended the Campsie address which he had originally nominated. Nor did he arrange for anyone else to go there to collect the ransom monies. In any event the effect of those further messages was to indicate that the ransom monies were now to be placed in a plastic bag under a vehicle in the Casino car park. Ironically the vehicle which the offender nominated was one of the police surveillance cars.

21 The offender admitted in his evidence that when he returned to his vehicle some time later, he checked to see if the plastic bag had been left in the designated place. When he discovered that it had not been, he and his wife got into their vehicle and left the carpark. The offender returned to the carpark about two hours later. Notwithstanding his denial, I am satisfied to the requisite standard that he did so in order to make a further check as to whether the money had been left there.

22 The following morning the offender was followed as he left his apartment building at about 8.45 am. He went to the University to return a library book for his wife. He was then followed as he drove out to West Street. When he got there he completed a loop and immediately returned to the city without stopping. Once more the offender provided an explanation for having undertaken this trip which the jury would have had little difficulty in rejecting. I am satisfied to the requisite standard that his real purpose in going there was to check to see if the deceased’s vehicle was still there.

23 It was only as a consequence of following the offender on that trip that the police were able to discover the deceased’s vehicle and, in due course, her body. The offender was arrested later that day. In a lengthy ERISP interview he told police that he had had no involvement in the disappearance or death of Ms Phun. Moreover, he denied having sent the SMS messages. Subsequently however, as I have said, he acknowledged by his plea of guilty that he had in fact sent them.

24 Some time later police became aware of the existence of a surveillance camera on the wall of the St Vincent de Paul Society building in West Street. The Crown case was that footage taken from that camera, which captured images of the surrounding area, displayed the position in which the deceased’s vehicle had been parked. The Crown also contended that the footage showed the driver of the vehicle emerging from it and then walking towards Parramatta Road. That person was apparently wearing a light coloured jacket and dark trousers. The jacket was described by A. as being similar in colour, length and style to the offender’s jacket, which was in evidence. A. said that the offender wore that particular jacket “most of the time”. Moreover, the offender admitted that he was wearing it, as well as a pair of dark trousers, when he arrived at the Palm Court Motel that evening. Notwithstanding the limitations which are apparent in the nature and quality of the footage I accept, given all the circumstances of the case, that the person depicted in the footage is in fact the offender. Two police witnesses gave evidence that they had viewed the footage for the entire period between 19 August and 23 August and had not seen anyone access the vehicle during that time.

25 There is one further piece of evidence to which I should briefly refer. On 21 February 2006 the Director of Public Prosecutions received an anonymous letter. The author of the letter maintained that the person who was really responsible for Ms Phun’s death was Raymond Ho, whom as I earlier mentioned, was the deceased’s boyfriend. The author of the letter said that he was a friend of Mr Ho. He said that Mr Ho had come to his place at 9 pm on 19 August and had confessed to having inadvertently killed Ms Phun following an argument. The author of the letter said that Mr Ho had then sought his assistance in disposing of the deceased’s body. The author of the letter maintained that he had driven the deceased’s vehicle (with her body in the boot) to West Street where he had dumped the vehicle.

26 Mr Ho gave evidence at the trial. He denied any involvement in Ms Phun’s death and denied having made admissions to anyone that he had done so. Clearly the Crown eliminated the reasonable possibility that Mr Ho was responsible for Ms Phun’s death. Far from assisting the offender’s case, the letter to the Director of Public Prosecutions actually damaged it. It is common ground that the offender did not have the wherewithal, given his custodial circumstances, to have physically typed the letter. Nevertheless I have little hesitation in concluding that the offender played some role in its creation. No one else had both the intimate knowledge of the Crown brief and the motive to have done so. It is not without significance that the author of the letter maintained that he arrived at West Street at about 11.30 pm. That was when, according to the time displayed on the surveillance camera, the deceased’s vehicle arrived in West Street. It was only during the trial however that it emerged that the time shown on the surveillance camera was half an hour ahead of the real time, a matter of which the author of the letter was clearly unaware at the time the letter was written.

27 The other matter upon which the Crown relied was motive. I am satisfied that the offender was in dire financial circumstances at the time of the offence. His circumstances motivated him to kidnap the deceased in the hope that he could thereby obtain a substantial sum of money for her release. I am satisfied that he became aware from conversations with his wife that the deceased’s family enjoyed a measure of affluence and that the deceased would be an appropriate target. He was aware of what she looked like and the area in which she lived, having driven her home (in the company of his wife) on an occasion about a year prior to her death.

28 The offender admitted that he had not worked for about 14 months prior to the offence. His wife was a full-time student and had little or no income. The offender had only $1200 or $1300 in cash available to him at the time of the offence. He had no money in the bank and no other source of income. The rent on his apartment was 3 weeks in arrears. At the time of the offence he was making plans to move into cheaper accommodation. He owed $18,000 to Westpac and had recently sold his computer to a pawnshop.

29 Even more significantly he conceded, in cross-examination, that he had spent in the order of $130,000 in the 12 months preceding the offence. The offender gave evidence that those monies had come in part from the proceeds of an insurance payout which he had received following a fire (which had destroyed a shop that he had bought from his brother-in-law), as well as from money which he had received from his mother in Vietnam. Incredibly, the offender denied in the witness box that he was in desperate financial need. No doubt he did so because he realised that to admit that he was in such circumstances would considerably strengthen the Crown’s case on motive. The offender told the jury that he could, as he put it, call upon his mother at any time to send him money should the need arise. The offender was unable however to explain how he had managed to spend such a large sum of money in a period of 12 months particularly as there was nothing to suggest that he was living an extravagant lifestyle.

30 It was that combination of features of the evidence, relating to opportunity and motive, that enabled the Crown to establish its case despite the absence of any eyewitness or forensic evidence linking the offender with the death of Ms Phun.

(b) the evidence on sentence

31 When the sentencing proceedings were well advanced, events took a most unusual turn. Mr Bodor QC, who appeared for the offender, indicated that his client now wished to assist the authorities by indicating how the deceased had actually met her fate. The proceedings were adjourned to enable the offender to provide the authorities with the information which he had. Arrangements were also made for him to be released from custody so that he might participate with police in a “run-around” of places where he said relevant events had occurred. That “run-around” was video recorded and became part of the evidence on sentence. The offender’s offer of assistance had the consequence that the sentence proceedings became extremely protracted. It is most regrettable that they have taken so long to resolve. By the same token however, the interests of justice demand that the parties be given every opportunity to present material to the Court which may impact upon the question of sentence, particularly in a case which assumes the significance that the present one does. The matter was then further delayed when the offender himself became ill and required hospitalisation. There was yet further delay whilst a report was obtained from Justice Heath about his condition. I will have more to say about his medical condition a little later.

32 The offender was provided with a certificate pursuant to s 128 of the Evidence Act 1995 in respect of the offences of kidnapping, with which he had not been charged, and perjury. He then proceeded to admit that he had lied to the jury and that he had done so because he had hoped to avoid being convicted of murder even though he realised that he was guilty of the offence. He admitted in other words that he had thought that he could “get away with it” by lying.

33 The offender gave evidence as to what he maintained were the true circumstances surrounding the death of Ms Phun. For the first time he acknowledged some responsibility for her death. He went further and implicated two other persons, Raymond Ho and a person whom I shall refer to as B., in the events which culminated in her death. He provided in intricate detail the nature and extent of their involvement in the matter. The offender’s assertions led the police to re-interview Mr Ho and to also interview B.

34 I will now sketch the evidence given by the offender. He said that he first met Mr Ho in 1997 in a pool hall located near to a store owned by Mr Ho’s parents. It appears that they both lived in the Marrickville area at the time. He said that he subsequently met Mr Ho at Star City Casino on a few occasions. The offender said that he borrowed money from Mr Ho on about three occasions.

35 He said that approximately 7 to 10 days before Ms Phun’s death he bumped into Mr Ho at Star City Casino. At the time he said that he owed Mr Ho $800. He said that Mr Ho said that he could extinguish the debt by doing a job for him. The offender then gave evidence that Mr Ho told him that the job involved kidnapping a woman and holding her for 48 hours before releasing her. The offender gave evidence that he informed Mr Ho that his friend, B., may have a place where the kidnap victim could be held. Mr Ho, he said, agreed that the offender should approach B. whom the offender said Mr Ho already knew. The offender said that he then spoke to B. He said that B. agreed that they could keep the woman in the premises in which he was then living. As I understand the evidence, B. shared the premises with about six other people. The offender said that he had known B. since they had shared accommodation some years previously.

36 The offender told Mr Ho that B. had agreed to be involved. The offender said that Mr Ho then gave him some details about the plan to kidnap the woman. Mr Ho told the offender that he would supply him with sleeping pills which were to be given to the woman he was to kidnap. He said that she was not to be harmed. He also, according to the offender, gave him his mobile phone number so that the offender could contact him if anything went wrong.

37 The offender said that Mr Ho gave him $9,200 in cash as payment for his services. That sum took into account the debt which the offender owed Mr Ho. The offender said that he and B. then made plans to make “extra money” from the kidnapping by extorting money from the girl’s family without Mr Ho’s knowledge. For that purpose the offender bought a tape-recorder in order to record the woman’s voice.

38 On the evening of 19 August the offender said that he was picked up from outside his apartment building by B. He said that he was then driven to the vicinity of Star City Casino where he met Mr Ho. The offender said that Mr Ho supplied him with sleeping pills which were to be given to the woman whom they were to abduct. He said that he was also provided with the model and registration number of the woman’s vehicle. He was also furnished with information as to the time at which the woman would arrive at the pre-arranged meeting place. It was to be in a laneway behind a doctor’s surgery on Illawarra Road, Marrickville. The offender said that he was also given $10,000 by Mr Ho to give to B. for his role in the enterprise.

39 The offender said that he and B. then drove to the meeting place. The offender said that as he felt unable to go through with the plan to abduct the woman, he persuaded B. to take over that role. For that reason he said that he provided B. with a pair of scissors, a roll of tape, the sleeping pills and the tape-recorder. The plan was to tape-record her voice before giving her the sleeping pills.

40 The offender said that when the woman arrived in the laneway and parked her vehicle, B. went and got into her vehicle. He described in some detail what he said he could see happening in the woman’s vehicle. The offender maintained that at that stage he still did not know who the victim was. In due course the offender said that B. returned to their vehicle. Upon his return he said that B. told him that he thought that he had killed the woman. The pair then departed the area leaving the deceased behind in her vehicle. The offender said that B. told him that the woman had started to scream and that in attempting to stop her from doing so, he had panicked and must have killed her. As I understand his evidence, the offender said that B told him that he had tried to tie the deceased up but she had been endeavouring to fight him off.

41 The offender said that he and B. then returned to his apartment in order to obtain items with which to remove anything that could link them with the deceased’s car. After that they returned to the laneway in order to retrieve the deceased’s body. The deceased was then placed in the boot of her vehicle. The two vehicles were then driven to a quiet industrial area where the deceased’s car was cleaned. The offender then drove the deceased’s vehicle to West Street and left it in the position in which it was later discovered. He admitted that he was captured by the surveillance camera as he was leaving the scene. The offender said that he was then driven back to his apartment by B. During that trip the deceased’s belongings were dumped in a rubbish bin.

42 The offender gave evidence of having then called his wife. He then caught a taxi to the motel where she was staying. He admitted that he had gone out at 2 am the following morning to check on the deceased’s vehicle which he had left in West Street.

43 The offender gave evidence that he only ascertained that the deceased was his wife’s friend, Ms Phun, when his wife received a phone call the next morning from Ms Taing. Ms Taing called, he said, because she was trying to ascertain if his wife knew of the deceased’s whereabouts.

44 On 21 August the offender said that he spoke to B. and asked him to assist in extorting money from the deceased’s family. B. declined to do so. That evening the offender said that he called Mr Ho and left a message for him that the deceased could not be released until the following day. He said that he explained to Mr Ho that she could not be woken up as she had consumed an excessive number of sleeping pills.

45 The offender confirmed that he had called Ms Taing on 22 August and issued the demands for money. He said that he had done so because he was still desperate for money. He admitted that during the phone call he had used a tape-recording of her voice. He confirmed that he had gone to Star City Casino that evening with his wife. He admitted that on the morning of 23 August he had driven out to West Street again to check on what, if anything, had happened to the deceased’s vehicle.

46 The offender said that after he was taken into custody, B. had written to him asking him not to implicate him in the offence. The offender said that, as a consequence, he had written to B. seeking his assistance in providing him with a false alibi. He said that he had also asked him to contact Detective Templeton, the officer in charge of the investigation, and tell him about Mr Ho’s involvement. He said that the next he knew of the matter was that the anonymous letter had been received by the DPP. Although he did not physically create the letter, the offender admitted that he had provided the information contained in it which he presumed must have then been passed on to police by B. He also confirmed that his wife had had nothing to do with Ms Phun’s abduction or death. The offender said that even though he had not actually caused Ms Phun’s death himself he realised that the law regarded him as “equally responsible for her death”.

47 The offender said that he realised that in making admissions about his role in Ms Phun’s death that it was “most probable that any appeal [he] might otherwise have regarding [his] conviction would be lost”. The offender then gave the following evidence:

Q. Why have you decided to tell the court now your version of the events?
A. Because now I been found guilty and I don't want to - I don't know, I just want to get it over. I want to just stand up for myself one time and tell the truth. I been lying. About three years now I been lying with myself, lying to everybody. I want to finish this.

Q. Sorry?
A. I just want to finish it.

HIS HONOUR: Q. "I just want to finish it"?
A. Just Linh family know what really happened to her and what circumstance around, and, yes, if only for me so it would help me a lot in looking forward, not carry any more secret, any more lie in me. I want to just let it out. I just want to tell the truth, that's all.

BODOR: Q. And how do you feel about the activity that led to Linh's death and your involvement in them?
A. Very regret now, very sorry. But it happened.

48 As I have said, Mr Ho was re-interviewed by police following which he then gave sworn evidence. He once again denied having had any involvement in Ms Phun’s death. He denied having had any role in recruiting the offender to kidnap the deceased. He also denied knowing either the offender or B.

49 Both the offender and Mr Ho were extensively cross-examined. The proceedings were then adjourned to enable B. to give evidence. However there was one more surprise in store. At the outset of proceedings on the day that the matter resumed, Mr Bodor sought and was granted leave to re-open his case so that the offender could give further evidence. During the course of his further evidence, the offender admitted that he had told yet further lies whilst giving evidence on the previous occasion. In particular, he said that he had lied in implicating Mr Ho in the offence. He admitted that Mr Ho had had nothing to do with the abduction and murder of Ms Phun. Moreover the offender admitted that he had told lies in describing the abduction as having taken place close to Mr Ho’s premises in Marrickville. He said that he realised that he had seriously wronged Mr Ho and that he could not persist with that deception. The offender’s explanation for having falsely implicated Mr Ho was because he had been covering up the fact that the plan to abduct Ms Phun had been hatched with his ex-wife. He said that he had previously not been able to bring himself to acknowledge her participation in the scheme because, he said, he still loved her.

50 He then went on to detail what, he said, had really occurred. The offender said that he and his wife had argued on several occasions in August 2003 about their desperate financial position. The offender admitted in evidence, what had long been evident, that the cause of his difficulties was his serious gambling problem. The offender admitted that he had lost about $100,000 in this fashion in the 12 months prior to August 2003. The offender said that he did not tell his wife that he had gambled the money away. He said that he told her that he had lost the money in a failed business venture. He said that his wife was very upset because she felt too ashamed to go back to her family given that they had disapproved of the marriage in the first place.

51 The offender said that he first broached with his wife the plan to abduct the deceased and demand a ransom from Ms Phun’s family, a few days before 19 August 2003. He said that his wife at first resisted his entreaties but he said that he was able eventually to pressure her into agreeing to assist him. Her role, he said, was to arrange a meeting with the deceased at a location in Belmore from where she was to be abducted. The plan, as I understand it, was for A. to tell the deceased, once she had been released unharmed, that she had had an argument with the offender and that she had forgotten their arrangement to meet. This excuse was to be offered as the explanation as to why she had not turned up to meet the deceased.

52 As I understand it, A. had previously met the deceased at that location in order to discuss matters associated with their university course. It was decided that the abduction should occur on the following Tuesday evening, that being the only evening on which the pair did not have classes together. As I understand it, it was decided that the meeting had to be arranged on an occasion when they would not otherwise be seeing one another. The offender said that he then approached B. and enlisted his support as well. He said that he offered him $40,000 out of the total of $100,000 which he intended to demand from the deceased’s parents. The offender said that B., who was also initially reluctant to be involved, agreed to assist and to provide a room in his house in which to confine the deceased.

53 The offender gave evidence, the effect of which was to repeat what he had earlier said about the role performed by B. He said however that B. had supplied the sleeping pills which were to be given to the deceased. He again maintained that it was B., rather than himself who had gone to the deceased’s vehicle and ended up killing her. He said that B. told him that the deceased had started screaming when he got into her car. He said that B. told him that he had tried to keep her quiet and that in so doing must have killed her. This episode, he said, had taken place at the location in Belmore and not in Marrickville. In direct contrast to what he had originally told the Court, the offender on this occasion said that he had not seen anything of what had gone on in the deceased’s vehicle when B. had got into it. He said that after B. had returned to their vehicle he had gone over to check on the deceased. The offender said that when he checked on her he realised that she was dead. When the offender met up with his wife at the motel later that night he said that he misled her by telling her that the deceased was secure at B’s place.

54 The offender said that following Ms Phun’s death he initially did not want to go ahead and make the ransom demands. Eventually he did so largely because he was still desperate for money. He did say however that he was also in a total quandary as to what to tell his wife who still did not know that her friend was dead. He said that she was continually questioning him as to when he was going to release her given that everyone was looking for her. That prompted him to maintain the pretence that the abduction was still on foot.

55 B. gave evidence and was cross-examined. He admitted knowing the offender and agreed that they had shared a house for about six months in 1997 or 1998. Thereafter, he said that they had worked together for about a year in a noodle factory. He said that they had had infrequent contact in the period between 1999 and 2003. On the last occasion that he had seen the offender, B. said that the offender had asked him for a loan for an amount of between $1500 - $2000. The offender told him that the money was needed by his brother who had had an accident in New Zealand. B. said that he could only offer him $500, an offer which the offender declined. At no stage, he said, had the offender lent him money.

56 B. denied any involvement in Ms Phun’s death or in any plan to kidnap her. He said that he first found out about her death when he read a newspaper account of it. He said that although he had visited the casino he had only gone there on one occasion with the offender and that that was years ago.

57 He denied having spoken to the offender since his incarceration. Nor, he said, had they corresponded. He denied having sent any letters to the DPP and denied having been asked by anyone to do so. Moreover he said he was not sufficiently fluent in English to have written the letter to the DPP.

58 A was also interviewed by police. As the Crown Prosecutor quite correctly observed, she participated in the interview “somewhat reluctantly”. However when the offender’s assertion that she had been involved in the plan to abduct the deceased was put to her, she denied it. She then indicated that she did not want to answer any further questions. The interview was then terminated.

59 Proceedings were adjourned to enable A. to give evidence. When the matter resumed, Mr Williams of counsel announced his appearance on her behalf. He indicated that she did not wish to give evidence. Discussion then ensued as to whether she would give evidence and whether or not a s 128 certificate should be issued to protect her in the event that she did so. In the final analysis, the parties agreed that there was little point to be gained in calling A. As the Crown Prosecutor said, if she did not wish to give evidence then he would “respect her wishes”. Mr Bodor did not insist that she be called either because, as he said, the parties were clearly at issue over the matter.

60 Two separate but obviously related issues arise from the body of evidence which I have just outlined. First, it may reduce the offender’s culpability for the offence of murder, and secondly, his evidence implicating A. and B. may entitle him to a discount on sentence because it constitutes assistance to the authorities within the terms of s 23 of the Crimes (Sentencing Procedure) Act 1999 (hereinafter referred to as the Act).

61 I accept, even without the offender’s disclosure, that there are parts of the evidence which indicate that it is highly likely that there was more than one participant in the episode which culminated in Ms Phun’s death. For example, it is reasonable to infer that the deceased was intercepted as she drove home that fateful evening. Since the offender barely knew her, it is difficult to conceive of how he could have managed to have caused her vehicle to stop on a public street and have then managed to abduct her without some form of assistance. It is to be particularly borne in mind that the evidence indicates that at the time his wife had possession of the only vehicle which they owned. It seems most likely that the abduction occurred whilst the deceased was sitting in her vehicle waiting to meet up with some one. The actual abduction and the transporting of her to a concealed place may also have required the assistance of a second person. Whether that be so or not, it is patently clear that some one other than the offender actually typed, and then transmitted the anonymous letter to the DPP.

62 Mr Bodor contended that there were aspects of the evidence which were capable of providing support for the offender’s version of events. In particular he pointed to what he had said about his wife’s role in the plan to abduct the deceased. He submitted that the evidence that she had made arrangements on the very evening of the abduction to stay in a motel which was a mere 600 metres from where the deceased’s car had been dumped, and at which she was joined for the night by the offender, was capable of supporting his version.

63 Regardless of whether the offender had any accomplice, the only evidence which actually implicates either A. or B. comes from the offender. As he readily admitted, he not only initially lied to the police but then went on to tell a litany of lies to the jury and then again to the Court in the sentence proceedings in respect of Mr Ho’s involvement. Even now there are aspects of his evidence that are difficult to accept.

64 Nor, notwithstanding Mr Bodor’s submission, is there one shred of evidence that directly corroborates any part of his testimony in which he implicates A. and B. Furthermore, any trail that may have existed in August 2003 has now gone completely cold. It is idle to speculate as to how things may have turned out had this information been forthcoming at the outset of the investigation. In any event, both A. and B. deny any wrongdoing. In those circumstances, there is simply no evidentiary basis for concluding, even on the balance of probabilities, that either A. or B. had any involvement in the events which led to Ms Phun’s death. That being so, I cannot see any scope for extending to the offender any discount for having assisted the authorities in respect of this matter. Indeed, Mr Bodor realistically conceded that the assistance which had been proffered, was of no real practical utility.

65 That leaves the question of the offender’s role. The offender, as I have said, denied that he actually killed the deceased. However he accepts liability for her murder because he was present at the scene ready, willing and able to assist B. in the abduction of Ms Phun. Indeed he acknowledges that his role was critical as he not only planned the abduction but provided B. with the wherewithal to effect it. He thus admits to being party to a joint criminal enterprise with B. to abduct Ms Phun. It is common ground that the conduct described by the offender constitutes “felony-murder” because it involved acts amounting to the specially aggravated form of the offence of kidnapping, an offence which attracts a maximum penalty of 25 years imprisonment. That form of the offence is made out, pursuant to s 86 of the Crimes Act, if the offender is in company and actual bodily harm is occasioned to the victim. An offence which attracts a penalty of 25 years, where death is caused by an offender or his or her accomplice, renders the offender guilty of “felony-murder”.

66 I am not however disposed to entirely reject the offender’s evidence. Indeed, it is to his credit that during the course of his evidence on sentence he made various admissions. For example, he admitted that he was captured by the surveillance camera walking away from the deceased’s car at 11 pm on 19 August. He admitting playing a tape-recording of the deceased’s voice during the phone call which he made to Ms Taing on 22 August. He admitted that he had twice driven past the deceased’s vehicle in West Street to check to see if it was still there. Finally, he admitted having provided the information which found its way into the anonymous letter which was received by the DPP.

67 Regrettably, it is not always possible to resolve every issue that arises in a case such as this. In the final analysis, I am left in some uncertainty about who actually killed Ms Phun. Having said that, everything points to it being the offender who caused her death. Subject to the matters to which I have just referred, his credibility is completely in tatters. Moreover B. emphatically denied having killing the deceased. It is hard to accept that the offender, even on his version, was simply able at the last moment to persuade his accomplice, assuming he had one, to abduct the deceased. As I have suggested, there are also a number of inconsistencies between the various versions given by the offender about what he did and what he observed his accomplice do at the time when the deceased met her fate.

68 Mr Bodor accepts that it is unnecessary to finally determine this issue because on any view of the evidence, the offender’s culpability is not reduced in any meaningful way. Indeed on one view of the matter, the involvement of an accomplice would serve only to aggravate the offence because that would mean that it was committed “in company”: s21A(2)(e) of the Act; R v Imnetu [2006] NSWCCA 203.

69 For those reasons, there is nothing in the offender’s evidence that would incline me to adjust the sentence on the basis that he played a less significant role than the one that was implicit in the jury’s verdict.

70 None of this is to suggest that the offender is to be punished for taking the course which he has since his conviction. On the contrary I am prepared to extend to him a measure of leniency on account of the fact that he has, albeit belatedly, accepted some responsibility for having caused Ms Phun’s death and for the contrition that he has expressed for having done so. As Mr Bodor put it “the offender has travelled a self-destructive and tortuous path to get to [that] point”. Nevertheless and apart from any other consideration, it will always be a measure of some comfort to the grieving family that a person who has been held responsible in law for having killed their loved one, admits having done so. There is, in my view, a public interest in encouraging offenders to acknowledge their wrongdoing even after they have been convicted. His admissions have also, as the offender acknowledged, deprived him of any realistic chance of ever challenging his conviction on appeal. Nevertheless, the reduction of sentence on this basis must be modest because of the offender’s insistence, until very late in the day, that Mr Ho was involved.

71 Before leaving this aspect of the matter there is one other issue to which I should briefly refer. Counsel were in agreement, given the findings which I have expressed, that it was appropriate to provide anonymity to the persons whom I have referred to as A. and B. On the other hand it was regarded as appropriate, in the light of the offender’s final stance, to refer to Mr Ho by name in order that his name could be cleared.

Subjective features

72 The offender was born on 2 December 1976 and is accordingly presently aged 30. He was 26 at the time of the offences. He grew up in Vietnam and came to this country on a student visa when he was aged 19. His childhood was unremarkable but for an incident which he related to Dr Allnutt, who prepared a psychiatric report on his behalf. He informed Dr Allnutt that when he was eight “he was made to watch an execution by his uncle”. He told Dr Allnutt that “this had been a terrible experience for him and had left an indelible mark on his memory”. His arrest for the present offences had, he said, revived those unpleasant memories and had caused him to suffer from nightmares whilst he has been in custody.

73 The offender spent his first six months in this country studying English at a language centre in Bondi. He thereafter studied information technology and a general computer course. He also completed a business course. At one stage he had a business importing noodles and exporting fruit and at another stage he worked in a bakery. Nevertheless it appears that his mother has supported him financially for most, if not all of the time that he has been in Australia. His parents remain in Vietnam whilst his younger brother lives in New Zealand.

74 The offender met A. during the course of 2000. They were married in September 2001 but apparently kept the marriage a secret from their respective parents.

75 In October 2001 the offender began working for his wife’s brother managing a fruit and vegetable business. In March 2002 he bought the business from him. His mother provided him with a substantial sum of cash as a gift which enabled him to complete the purchase of the business. The offender said that he harboured resentment towards his brother-in-law because he felt that he had been exploited by him in relation to the purchase price. In any event, the business was in due course destroyed by fire. As I have said, the offender received a substantial payout from the insurance company. From the proceeds he bought a fruit shop in Ashfield. However that business failed and it was sold at a substantial loss.

76 The offender swore an affidavit in which he outlined his custodial circumstances. The contents of the affidavit were not the subject of any challenge by the Crown. Extracted below are relevant parts of that affidavit:

In relation to my present incarceration I say the following:

a) My housing location at Silverwater is designated “D3” Special Management Unit, D3 is a maximum security, isolation and segregation unit.

b) It is my understanding that “D3” does not house normal protection inmates.

c) On being incarcerated I was placed in D3 Special Management Unit-Strict Protection. This classification status was placed on me by the Department of Corrective Services .

Soon after my arrival at the Metropolitan Remand and Reception Centre (MRRC) I was informed and verily believe that there was and still is gaol-generated intelligence that there is a contract out for my life. I have been informed and verily believe that Asian inmates, in particular, will attempt to kill me as the victim in my matter was of Chinese origin.

Due to the matters outlined above I verily believe that the Department of Corrective Services has had no other option but to hold me in the Special Protection Non-Association to prevent violence upon me.

The cells in D3 Special Management Unit are approximately 16 feet by 6 feet, with a back door leading to a small yard 10 feet by 6 feet. This yard has a steel barred roof and door.

The Special Management Unit is often placed in a total lock down as a result of inadequate staffing numbers. During such times, I am unable to have access to the telephone to make calls.

77 The offender goes on to state that he works as a sweeper and that he has not committed any internal disciplinary offences. He said that his wife visited him on three occasions after his incarceration but that she has since divorced him. Other than that he has only had two visits from ex-inmates. He now does not have any visitors and has no friends or family in Australia. He said that he is very restricted in what facilities he may use. He says, for example, that unlike mainstream inmates he cannot use the prison oval or the gymnasium and nor can he engage in any organised sporting activities. He maintains that he does not have access to music and art classes or to TAFE courses. Nor he says, does he have the same access to library facilities as mainstream inmates. The offender also says that he does not have the same access to medical, dental or optical services as mainstream inmates.

78 In summary, he states that he is in a cell on his own and has little opportunity to interact with other inmates. He anticipates that the present situation will continue after he is sentenced and he expects, as I understand the situation, that he will remain a “Special Protection Non-Association” inmate indefinitely.

79 Dr Allnutt expressed the opinion that the offender “manifests symptoms consistent with post traumatic stress”. He said that the offender described to him “intrusive memories of a traumatic nature manifesting in the form of flashbacks and nightmares”. Other than that, Dr Allnutt did not discern any significant psychiatric condition which could be affecting the offender, although he did confirm that the offender is socially isolated and that there is no-one who is available to visit him. Being a foreign national whose command of the English language is still rather limited will no doubt magnify the offender’s sense of isolation. The offender is said to be “feeling persistently depressed most of the time”. That is hardly surprising given that he has not only torn asunder the family of the deceased but has also occasioned considerable distress to his own family. As I understand the situation his father, whose health is failing, was forced to resign from his job in Vietnam because of the sense of shame he felt as a result of the offender’s conviction.

80 There is material before me which reveals that the offender provided assistance to the authorities in respect of other unrelated criminal activities. It is inappropriate to refer to the fine detail of that assistance. It is sufficient to indicate that the offender provided information to police in 2004 of a plan by another inmate to commit a very serious crime. There is material which I have seen which is capable of providing some corroboration for the offender’s version of events. However the persons who were involved in the plan apparently abandoned it and then chose to plead guilty. As a consequence, the alleged perpetrators of the plan were not made aware of the fact that the offender had provided information to the police about their activities, although the offender informed Dr Allnutt that they may now know.

81 I have received a report from Justice Health in relation to the offender which is in the following terms:

[The offender] is an otherwise healthy 30-year-old man with chronic hepatitis B, discovered on screening in 2005.

In October 2006 he had an acute flare up of his hepatitis necessitating hospital admission and commencement of antiviral therapy (Lamivudine).

He is under regular specialist hepatology review. His liver function tests are improving and his viral load has fallen.

He may have further spontaneous episodes of acute illness in the future.

Patients with hepatitis B may go on to develop cirrhosis or liver cancer after many years; the likelihood of those complications is widely variable and cannot be precisely predicted.

Relevant sentencing principles

82 I am required to bear in mind the relevant statutory framework that pertains to the sentencing of offenders and to the principles which are enunciated in the authorities that bear upon the issue. That being so, it is common ground that I must have regard to the purposes of sentencing set out in s 3A of the Act. See also R v MA (2004) 145 A Crim R 434.

83 In determining the appropriate sentence for the various offences, I must also have regard to the various aggravating factors set out in s 21A(2) of the Act. It is apparent from the concluding words of s 21A(1) that the list is not exhaustive. As long as I take into account those factors that are relevant and known it is not necessary, as I understand the situation, to deal seriatim with each matter which is identified: Andrews v R (2006) 160 A Crim R 505. Suffice it to say that I have had regard to the statutory requirements to which I have just referred, and given due weight to the matters which I regard as being of particular relevance. In considering this aspect of the matter, I remind myself that I am not to take into account any aggravating feature if it is an element, or if it is an “inherent characteristic”, of the offence charged: R v Yildiz (2006) 160 A Crim R 218.

84 I must also weigh in the balance those matters upon which the offender is entitled to rely in order to mitigate the otherwise appropriate penalty: s 21A(3) of the Act.

85 It is trite to say that murder is regarded as the most serious offence in the criminal calendar. As I have already observed, the maximum penalty prescribed by the legislature is life imprisonment. That indicates the seriousness with which the community views the offence. The starting point for any consideration of the appropriate penalty is the fact that a human being’s life has been taken.

86 The Crown did not however submit that the murder of the deceased fell within the worst category of case. I accept that the present offence, serious as it is, does not warrant a sentence of imprisonment for life as provided for in s 61 of the Act. That being so, s 21 of the Act, which provides for the imposition of a “sentence of imprisonment for a specified term” in circumstances such as the present, has application. Accordingly, I propose to impose a determinate sentence upon the offender for the offence of murder.

87 The only aggravating feature of the offence of murder is the fact that it occurred as “part of a planned or organised criminal activity”, in that it happened during the course of an episode in which the offender planned to kidnap the deceased: s 21A(2)(n).

88 I accept however that the murder itself was not in any sense premeditated. The Crown initially conceded that there was no premeditation associated with this offence. After the offender gave evidence, the Crown’s position changed somewhat upon this issue. It was then submitted that it was open to me to conclude that the death was planned. In support of that submission, the Crown pointed to various matters, including the fact that the offender admitted not having worn a disguise and that the deceased’s voice had been recorded at the time she was abducted. The Crown also pointed to the fact that the deceased’s body remained in the boot of her vehicle for three days before the ransom demands were made. None of those matters however, in my view, compel a conclusion to the requisite standard that the murder was premeditated. Indeed a conclusion that the offence was premeditated would, apart from any other consideration, be difficult to reconcile with what I have already observed was the offender’s clear motive to alleviate his financial problems by planning to kidnap the deceased and hold her only until such time as a ransom demand had been met. Nor does the evidence enable me to conclude to the requisite standard that the death of Ms Phun was accompanied by an intention to kill her. In other words, I accept that the offence was carried out, regardless of whether the offender was acting alone or not, with an intention to commit grievous bodily harm, an intention which was formed on the spur of the moment when the plan to kidnap the deceased went awry. I accept Mr Bodor’s characterisation of the murder as being the “unintended consequence of ineptitude rather than [being] premeditated and planned”. I also accept that his actions on the night subsequent to the murder were those of a man who panicked upon realising that the victim had died.

89 It is common ground that there are a number of matters which are to be weighed in the offender’s favour. The net effect is that there will be some amelioration of the sentences that I would otherwise have imposed. The offender does not have any record of previous convictions: s 21A(3)(e). He has only come to notice on one previous occasion on which, in respect of an offence of shoplifting, he received the benefit of a s 10 bond. In the light of that fact and the other material to which I have referred, I am satisfied that his present offending was totally out of character and that the offender has “good prospects of rehabilitation”: s 21A(3)(h). He is unlikely to re-offend, particularly if his problems with gambling are addressed: s 21A(3)(g). Further, by reason of the tender of a Statement of Agreed Facts at the trial there was “a degree of pre-trial disclosure by the defence”, which had the consequence that there were a number of matters which the Crown did not have to prove: s 21A(3)(l). I will also, as I have indicated, take into account the fact that the offender has acknowledged some responsibility for having committed these offences and that he had expressed a degree of remorse for having done so: s 21A(3)(i).

90 It is also common ground that the offender will find his time in custody more burdensome than would otherwise be the case by reason both of his chronic illness and the fact that he is serving, and is very likely to continue to serve his sentence in protective custody. Although the latter consideration is not a factor which is expressly mentioned in s 21(A)(3) of the Act, the fact that an offender is serving his or her sentence in protective custody is a matter which can be taken into account in mitigation of sentence. I have borne in mind that the circumstances in which an offender who is on protection is serving, and is likely to serve, his or her sentence should be carefully scrutinised by a sentencing court: see R v Durocher-Yvon (2003) 58 NSWLR 581; R v Mostyn (2004) 145 A Crim R 304; R v Way (2004) 60 NSWLR 168 at 199-200; R v Wallace [2007] NSWCCA 63.

91 Finally some consideration, albeit of a relatively modest kind, will be extended to the offender for his offer of assistance to the authorities in relation to the matter which the offender revealed involving the plan by another inmate to commit a very serious crime. In assessing that matter I have had regard to the various matters identified in s23 of the Act and in particular to ss (3). True it is that it was assistance that the authorities had no cause to rely upon. But the offender has nonetheless indicated a willingness to assist authorities and has, as a result, exposed himself to the risk of retribution should his disclosures to the police ever become known: see generally RNM v Regina [2006] NSWCCA 375. His conduct in that respect also augurs well for his rehabilitation.

92 The offence of demanding money with menaces is an extremely serious offence of its kind. It was a particularly callous act to endeavour to extort monies from the deceased’s father for her safe return when, as the offender well knew, she was already dead. I accept that the offender was still in desperate financial circumstances at the time. That situation had not of course been alleviated by the kidnapping of Ms Phun and her subsequent death. I take the offender’s evidence to the effect that he was “fighting with himself” just prior to issuing the ransom demands to mean that he was, as one would expect, wrestling with his conscience. Some of his conduct at the time, such as waiting for several days before making the demands and then not turning up at Campsie to await the payment of the monies, also suggests a degree of ambivalence on his part. It is regrettable in the extreme that his sense of morality did not prevail.

93 The offender is nonetheless entitled to some leniency on account of his plea of guilty to the second charge. Given that the plea was not indicated until the outset of the trial, I would assess the appropriate discount to which he is entitled as being 10%: see R v Thomson & Houlton (2000) 49 NSWLR 383 and s 21 A(3)(k) and s 22 of the Act.

94 The offence of murder attracts the operation of s 54A of the Act. Section 54A(2) provides that “the standard non-parole period represents the non-parole period for an offence in the middle of the range of objective seriousness in the Table to this Division”. The standard non-parole period is 20 years for the offence of murder. Section 54B sets out the mechanism by which the non-parole period is to be determined. The relevant sub-sections are in the following terms:

…
(2) When determining the sentence for the offence, the court is to set the standard non-parole period as the non-parole period for the offence unless the court determines that there are reasons for setting a non-parole period that is longer or shorter than the standard non-parole period.

(3) The reasons for which the court may set a non-parole period that is longer or shorter than the standard non-parole period are only those referred to in section 21A.

(4) The court must make a record of its reasons for increasing or reducing the standard non-parole period. The court must identify in the record of its reasons each factor that it took into account.
…

95 In construing the section, I have had regard to the principles set out in R v Way (supra). The correct approach to be followed appears in the following passages:

In order to give the Division practical utility it seems to us, in the light of the foregoing analysis, that a sentencing judge must ask and answer the following question: “are there reasons for not imposing the standard non-parole period?”

That question will be answered by considering:

(i) the objective seriousness of the offence, considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid range of seriousness for an offence of the relevant kind;
(ii) the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender, as listed in s 21A(2) and (3), and as incorporated by the general provisions in s 21A(1)(c) and by the concluding sentence to s 21A(1).


Depending upon the considerations referred to in the first of these paragraphs, it may become immediately apparent that the case is not one for which the standard non-parole period specified in the Table was intended to apply.

Whatever be the case in that regard, the considerations referred to in the second paragraph may similarly provide a reason for a departure from the standard non-parole period.

If the question, which we consider should be posed, is answered in the affirmative, then it seems to us that the Court should exercise its sentencing discretion in accordance with established sentencing practice and by reference to the matters identified in sections 3A, 21A, 22, 22A and 23 of the Act. The ultimate objective remains one of imposing a sentence that is just and appropriate, having regard to all of the circumstances of the offence and of the offender, and so as to give effect to the purposes mentioned in s 3A of the Sentencing Procedure Act .

In this approach the standard non-parole period can properly take its place as a reference point, or benchmark, or sounding board, or guidepost, along with the other extrinsic aids such as authorities, statistics, guideline judgments and the specified maximum penalty, as are applicable and relevant. In particular, it can have a direct relevance as a reference point to be compared with the sentence which is provisionally reached after an assessment has been made of the relative seriousness of the subject offence, and of the various aggravating and mitigating factors, as well as any other subjective factor that may be present, including in particular the fact, if it be the case, that the offender entered a plea of guilty. In that regard the sentencing judge will need to keep in mind that the standard non-parole periods were framed upon the assumption that the case was determined at trial and that s 22 of the Act contemplates that the fact of a plea will attract a discount.

The reference point has, in this sense, an important role to play in ensuring consistency in sentencing. Because the standard non-parole period will be imposed, subject to s 21A, for matters within the mid range, it will act as a guide for cases that are outside the mid range.

The desirability of a judge adopting the practice of standing back after reaching a provisional sentence, and of reviewing it so as to be sure that it is appropriate for the offence at hand (see the observations made in R v McGourty [2002] NSWCCA 335 at para 45), cannot be understated, and the existence of a standard non-parole period is likely to be of assistance in this respect.

….

What is not appropriate, in our view, is for a sentencing judge to commence the process for every offence (irrespective of its seriousness, and irrespective of whether the offender’s guilt was established after trial or by a plea), at the standard non-parole period, and then to oscillate about it by reference to the aggravating and mitigating factors. The problem with that approach is that the standard non-parole period will tend to dominate the remainder of the exercise, thereby fettering the important discretion which has been preserved by the Act. (pars 117-124; 131)

96 In R v AJP (2004) 150 A Crim R 575, Simpson J provided the following helpful summary of the principles to be applied:

(i) while s54B(2) requires, in sentencing in respect of an offence to which Division 1A applies, unless the sentencing court determines that there are reasons not to do so, that it set the standard non-parole period as the non-parole period for the offence, that obligation exists where the offence in question is an offence in the middle of the range of objective seriousness of offences of that kind; one reason permitting departure from the standard non-parole period is that the offence in question falls outside the middle of that range (para [67]);
(ii) the standard non-parole period was intended for a middle range case where the offender is convicted after trial: a plea of guilty might be in itself a reason for departure from the standard non-parole period (para [68]);
(iii) a sentencing judge will be required, in relation to any given case, to hypothesise what is an abstract offence in the middle of the range of objective seriousness in order to determine where the subject offence lies in relation to such an offence; such an exercise is, in reality, little different from the traditional sentencing exercise of evaluating objective seriousness of any offence, and should be approached intuitively and based upon the general experience of courts in sentencing for the particular offence (paras [74] – [77]);
(iv) circumstances that affect the evaluation of the objective seriousness of any offence include (but are not necessarily limited to) the actus reus , the consequences of the conduct, such factors as impinge upon the mens rea of the offender, matters of motivation, mental state, mental illness or disability (where causally related to the commission of the offence). Factors that affect the circumstances of the offender as distinct from the offence (for example, youth or prior sexual abuse) do not affect the evaluation of objective seriousness (paras [85] – [86]);
(v) that an offence is “typical” or “common” does not dictate that it is in the middle of the range of objective seriousness (para [101]);
(vi) the numerical frequency with which an offence of a particular kind is committed is not an indicator of the objective seriousness of any individual instance of that offence: (paras [101] – [102]);
(vii) where a court determines that there are reasons for departing from the standard non-parole period, the standard non-parole period nevertheless remains of relevance in the sentencing determination, as a reference point, benchmark, sounding board or guidepost (para [122]); see also R v GJ Davies [2004] NSWCCA 319. (par 13)

97 See also R v Apps [2006] NSWCCA 290; Wallace v R (supra).

98 Mr Bodor conceded, properly in my view, that the offence of murder should be treated as being “in the middle of the range of objective seriousness”. I intend nonetheless to fix a non-parole period which is shorter than the standard non-parole period because of the combined effect of the favourable subjective features of the offender’s case to which I referred in paragraphs 88-90.

99 Although the offences are clearly linked to one another, I am mindful of the fact that I am sentencing the offender for two offences in relation to which there are, strictly speaking, two separate victims. That being so, I am obliged to have regard to the principles enunciated in Pearce v the Queen (1998) 194 CLR 610, which of course include questions of totality.

100 It is clear that a sentencing judge has a broad discretion in relation to the approach to be adopted when sentencing for multiple offences: see R v Hammoud (2000) 118 A Crim R 66. In R v Weldon & Carberry (2002) 136 A Crim R 55, Ipp JA (with whom Hulme and Bell JJ agreed) stated the relevant principles to be applied. His Honour said:

A paramount principle of the law of sentencing is that the aggregate sentence should fairly and justly reflect the total criminality of the offender’s conduct: Veen v The Queen (No 2) (1988) 164 CLR 465. This principle applies in all cases, including where punishment is imposed for multiple offences. The sentence must be proportionate to the gravity of the offence, having regard to all the circumstances of the case: Hoare v The Queen (1989) 167 CLR 348; 40 A CrimR 391.

The question whether sentences are to be imposed concurrently or cumulatively must always be answered by reference primarily to these criteria.

It is not infrequent that, where the offences arise out of one criminal enterprise, concurrent sentences will be imposed - but this is not an inflexible rule: Wilkins (1988) 38 A Crim R 445 (per Lee CJ at CL and Carruthers J, Allen J dissenting). The practice should not be followed where wholly concurrent sentences would fail to take account of differences in conduct, the subject of punishment on each count: Pearce v The Queen (1998) 194 CLR 610 at 624 (see also 621 to 622; 380-381). (pars 46-48)

101 It is fundamental that I fix an appropriate sentence for each offence. Notwithstanding the fact that the offences occurred during the course of a connected set of events, two separate offences of very considerable gravity were committed by the offender. Accordingly, I intend to impose sentences which are partly concurrent with, and partly cumulative upon each other. I intend first to impose upon the offender a fixed term for the offence of demanding money with menaces which will represent the non-parole period that I would otherwise have fixed. It is appropriate to impose a fixed term because of the sentence which I intend to then impose for the offence of murder.

102 It was urged upon me that this was a case which warranted a finding of “special circumstances”. The matters which it was suggested would warrant such a conclusion are matters which I have already indicated that I would take into account in setting a non-parole period which is less than the standard non-parole period. I must ensure however that there is no element of “double-counting”. In the result, the relationship which the total effective non-parole period that I intend to impose bears to the total effective sentence will be in accordance with the normal statutory proportion. As I have said the sentence for the offence of murder will be partly cumulative upon the sentence imposed first in time. Accordingly the sentence for murder will be structured in a way which will entail a minor departure from the normal statutory proportion. To that extent there will be a finding of “special circumstances”. In setting the total effective non-parole period I have borne steadily in mind the need to fix the minimum period which the offender must spend in custody: see R v Simpson (2001) 53 NSWLR 704. The consequence is that the period which the offender will spend on parole will, by reason of the operation of s 44 of the Act, be quite adequate to meet all the circumstances of the case.

103 An impact statement from members of the deceased’s family has been placed before me. It is written jointly by her parents and her brother and sister. That material details the impact which her death has had upon them, both physically and emotionally. It is not difficult to imagine the anguish and pain that the family was subjected to as they first discovered that the deceased was missing, then following receipt of the ransom demands believed her to be alive before finally discovering that she was dead.

104 The feelings which the deceased’s family express and the sense of loss which they have each suffered are entirely understandable. It is impossible to adequately summarise that sense of loss in a few sentences and to do so, or to attempt to do so, would detract from the contents of the statement. From my observation they have handled their loss with forbearance and dignity. Clearly no sentence which any court could impose can ever begin to make good that loss. The approach of a sentencing judge to statements of this kind is well settled: see R v Previtera (1997) 94 A Crim R 76; MAH v R [2006] NSWCCA 226. Nevertheless the court expresses its profound sympathy to all those who have suffered, and who continue to suffer, by reason of her death.

105 Abduction is an inherently dangerous activity and it can often have fatal consequences. Unfortunately in the present case it has led to the unwarranted and needless death of an entirely innocent young woman. The community expects that the law will protect the sanctity of human life and that those who unlawfully take the life of another will be met with salutary penalties. Appropriate punishment must also be imposed upon persons who make ransom demands in circumstances such as the present.

106 I have had regard to the authorities to which I was referred by the Crown. Although they all involve cases in which the victim died by strangulation. I have not however derived any particular assistance from them in view of the quite different factual circumstances which they reveal.

107 The offender has been in continuous custody since the date of his arrest, on 23 August 2003. The sentences to be imposed upon him will commence from that date.

108 Trung Son Huynh, for the offence of demanding money with menaces you are sentenced to a fixed term of 6 years to commence on 23 August 2003 and to expire on 22 August 2009. For the offence of murder you are sentenced to a non-parole period of 16 years with a total term of 22 years. Each term of that sentence will commence on 23 August 2005. The non-parole period will expire on 22 August 2021 and the total term on 22 August 2027. The total effective non-parole period is 18 years and the total effective term is 24 years. The offender is thus eligible for release on parole on 22 August 2021.

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