R v Huynh & Ors
[2009] VSC 291
•22 July 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1423 of 2009
| THE QUEEN |
| v |
| VIET HUYNH, NOEL CLIFFARD LUNT, LK & ANDREW AZZOPARDI |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 and 23 June, 20 July 2009 | |
DATE OF SENTENCE: | 22 July 2009 | |
CASE MAY BE CITED AS: | R v Huynh & Ors | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 291 | |
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CRIMINAL LAW – Sentencing – Manslaughter, intentionally causing serious injury, intentionally causing injury, affray – Serious instance of manslaughter – Unprovoked vicious violence on defenceless victims – Youthful offenders – Guilty pleas.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M Lincoln | Office of Public Prosecutions |
| For the Accused Viet Huynh | Mr M H Thomas | Revill Papa Lawyers |
| For the Accused Noel Lunt | Mr A Jackson | Haines Polites |
| For the Accused LK | Mr G A Georgiou | Valos Black Associates |
| For the Accused Andrew Azzopardi | Mr D A Sexton | Victorian Legal Aid |
HIS HONOUR:
Viet Huynh, Noel Lunt and LK, you have each pleaded guilty to one count of manslaughter, one count of intentionally causing serious injury, and three counts of intentionally causing injury. You have also pleaded guilty, with you, Andrew Azzopardi, to one count of affray.
The charges, to which you have all pleaded guilty, arise out of an incident which occurred outside some shops in Stenson Road, Kealba at about 11.45 pm on Friday 22 February 2008. As a result of that incident, Bao Tran, who was then aged 17 years, died. In addition, in the course of the incident, Andres Molina (then aged 18 years) suffered a fractured left arm, and three other young men, Maile Latu, Johnny Phan and Thien Le, each sustained injuries. They were then respectively 17, 16 and 17 years of age. All of the injuries suffered by those five victims were inflicted by one or other of you by the use of weapons.
During the evening, and before the incident, you had been at the home of the grandparents of Noel Lunt and his brother, LK, in Driscoll Road, Kealba. You were in company with other youths, including one who will be referred to as “ZN”. While you were there, ZN noticed some vehicles travelling past on more than one occasion. One of those vehicles was a dark grey Magna. A decision was made to pursue those vehicles. You Noel Lunt and Huynh, together with ZN, took possession of some weapons, which included some wooden hockey sticks and a cricket bat which were in the boot of Azzopardi’s vehicle. In addition, you, LK, obtained a small axe. Each of you, together with ZN, got into Azzopardi’s vehicle. At the direction of you , Noel Lunt, you, Andrew Azzopardi drove to the shops on Stenson Road, at which the Magna had parked. At the direction of Noel Lunt, you, Azzopardi, parked your vehicle in front of the Magna. Andres Molina was seated in the driver’s seat of the Magna, Maile Latu was in the front passenger seat, Bao Tran was in the rear passenger side seat, Thien Le was in the rear middle seat, and Johnny Phan was in the rear seat behind the driver.
After your car pulled up, you Noel Lunt, LK and Huynh, together with ZN, each took possession of weapons. In the course of the ensuing incident you, LK, took hold of the axe, while you, Huynh and Noel Lunt, were each holding and using hockey sticks.
You, Noel Lunt, LK and Huynh, together with ZN, got out of the car and approached and violently attacked the Magna and its occupants with your weapons. You, Andrew Azzopardi, remained inside your vehicle during the ensuing incident. In the course of the incident, you, LK, smashed the front passenger window with your axe, and then struck Maile Latu a number of blows with your axe. You then proceeded to smash the rear passenger window with your axe, and you then struck Bao Tran about five times on the back of the head with your axe. In the meantime, Thien Le was struck on the right temple with a hockey stick wielded by you, Huynh. You, LK, also struck a blow to the right chest of Johnny Phan with your axe. You, Noel Lunt, confronted the driver, Andres Molina, and demanded that he alight from the vehicle. When he sensibly refused to do so, you struck him a brutal blow on his left forearm, thereby fracturing his left ulna. You, Huynh, then tried to strike Molina with your hockey stick, and hit his right shoulder. At about that time, a number of you decided to leave, but you, Noel Lunt, stated that you would not leave until Molina got out of his car. You yelled out for someone to get a knife out of your car. At that stage, the attention of your group was distracted by another vehicle which drove past. That enabled Molina to start his vehicle, and to accelerate away from trouble. At about the same time, you, Huynh, called out to LK to stop hitting the occupants of the Magna with the axe.
By that time, both Thien Le and Bao Tran were in a bad state, and were unconscious. Molina drove them to the Sunshine Hospital, where they were each admitted to the Emergency Department. Bao Tran was transferred to the Royal Melbourne Hospital, suffering from grave head injuries, including a compressed fracture of the skull, and consequential intracranial haemorrhage. In the ensuing week, his condition deteriorated, and he passed away on 29 February 2008.
During the whole of the incident you, Andrew Azzopardi, remained inside your vehicle. You did not participate at all in the physical assault which occurred on the Magna or its occupants. During the incident, Andres Molina heard you call out at one stage “Sorry, I’m not with them”. After the Magna had made good its escape, each of you and ZN got back inside Azzopardi’s vehicle, and you returned to the premises of Noel Lunt and LK’s grandparents at Driscoll Road, Kealba. While you were there, you noticed a Suzuki motor vehicle drive past. Because you thought that that vehicle had been associated with the Magna, you each, together with one David Drodrolagi, pursued that vehicle. While you were in the course of endeavouring to attack the vehicle, the police intervened. As a result, you, Noel Lunt and Andrew Azzopardi, together with ZN and Drodrolagi, were arrested. You, LK and Huynh, fled from the scene, but you were subsequently arrested on the next day.
As I have stated, as a result of the incident, Bao Tran died on 29 February. Andres Molina suffered a fracture to the left arm at the elbow, which required surgical intervention. The other three occupants of the Magna, Maile Latu, Thien Le and Johnny Phan each sustained physical injuries. As a result of the trauma associated with the incident, Mr Phan suffered a severe psychiatric reaction, which has disabled him from working. Mr Phan was the best friend of Bao Tran, and his victim impact statement describes the depth of grief suffered by him as a result of the loss of his close and good friend.
You, Huynh, Noel Lunt and LK have each pleaded guilty to the charges of manslaughter, intentionally causing serious injury, and intentionally causing injury, on the basis that you were each acting in concert in respect of the attack by you, and ZN, on the occupants of the Magna. In addition, the four of you have each pleaded guilty to the offence of affray, on the basis that you each participated in a fight in public, in which the degree of violence used and displayed was such as would put reasonably firm bystanders in real fear.
The offences, to which each of you have pleaded guilty, are particularly serious. The attack, which you launched on the occupants of the Magna, was characterised by an appalling degree of violence and savagery. The occupants of the Magna, the innocent victims of your wanton violence, gave you no cause or reason to attack them. Your assault on them was entirely unprovoked and without any justification at all. Those of you who physically participated in it – you, Huynh, Noel Lunt and LK – were armed and had the advantage of surprise over your victims. The occupants of the Magna were unarmed, and they had no opportunity to defend themselves or to escape. The attack by you on them was as cowardly as it was vicious.
It is also clear that the attack was not the product of a sudden outburst of temper or anger. Rather, you were each bent on violence when you departed the premises at Driscoll Road, and you had armed yourselves for that purpose. Although the distance from those premises to Stenson Road is quite short, you each had ample time to come to your senses, and to withdraw from your violent intentions. Indeed, even after your vehicle stopped outside the shops in Stenson Road, there was no cause for you to proceed with your plan. The fact that the attack was, in that way, pre-meditated, is an aggravating and serious feature of your offending.
There can be no excuse, or mitigation, for the brutal violence inflicted by you, Huynh, Noel Lunt and LK, on the occupants of the Magna. Regrettably, the type of violence which you displayed on the evening of 22 February 2008, is all too prevalent, although this case involves a more extreme instance of such violence. All too often such unprovoked and unjustified attacks end in tragic consequences, and frequently result in death or serious injury to the innocent victims, as occurred in this case.
The most serious offence, arising from the events of 22 February, was the unlawful killing, or manslaughter, of Bao Tran, to which you, Huynh, Noel Lunt and LK have each pleaded guilty. The maximum sentence for manslaughter is 20 years’ imprisonment. I regard this as a particularly serious case of manslaughter. While, as your counsel have submitted, this case may not be the worst case of manslaughter in recent times, nevertheless it can be properly classified as being at the high end of the scale of such cases. The actions of you, LK, in repeatedly beating the defenceless Bao Tran with an axe over the head, can only be described as utterly craven and reprehensible. Even allowing for your immaturity as a 16 year old, little can be said in mitigation of your appalling actions. By your pleas you, Huynh and Noel Lunt have correctly admitted that LK was acting in concert with you, and thus you are each equally responsible for the unlawful killing of Bao Tran.
By your actions, the three of you have taken the life of another human being. I have read the police statement of the elder sister of Bao Tran, and also the victim impact statement which she prepared on behalf of her family. Bao Tran was a talented and thoroughly decent young man. He had a full life ahead of him, rich with promise and hope. He was much loved by his family. If not for your evil actions, he would no doubt have lived a valuable and fulfilling life. By your dreadful crime, you have taken his life from him, and you have caused indescribable grief and anguish to his parents and his sisters. The victim impact statement of Ms Tran is a salutary reminder of the enduring pain and desolation wrought by your vicious actions.
In addition, by your actions, you have inflicted serious injury on another young man, Andres Molina, and have caused physical harm to three other young persons. The victim impact statement of Mr Phan eloquently describes the type of trauma to which you subjected your victims.
As I have stated, there can be no excuse or mitigation of your actions. You have each violated the fundamental norms of a decent, civilised and humane society. Your actions cannot be tolerated. It is of real importance that this Court imposes a sentence upon each of you which constitutes a sufficient condemnation by the Court, and the community, of your actions, and which serves as a proper deterrent to others who may be like minded to launch gratuitous and cowardly attacks on defenceless members of our community. In particular, in a case such as this, the Court has a responsibility to impose sentences which send a clear and unambiguous message that this type of conduct will not be tolerated in any measure.
On the pleas in mitigation of sentence made on behalf of each of you, a number of matters were addressed which, it was submitted, should act in mitigation of your sentences.
I turn, then, to the personal circumstances of each of you. You, Viet Huynh are 20 years of age, having been born in October 1988. You were raised in Sunshine, and have two siblings. Your parents’ marriage was an unhappy one. Your father was a heavy gambler and also used heroin. As a result, there was frequent discord between your parents. Your father was often violent towards your mother, and was also violent to your sister and you, particularly when punishing you for minor and trivial infractions. Your parents separated when you were aged 13 years, but your father continued to visit you, and his violence towards you persisted for a further three years.
You were educated at the local primary school. You attended a new school at Grade 5 level, and were subjected to bullying for the next two years. When you commenced high school, you in fact befriended the bullies. In the ensuing years, you had difficulties with anger management, and were often involved in conflict. Nevertheless, albeit with some difficulties, you completed Year 10 level, but you truanted during Year 11. You left school at about the age of 16 years, not having completed Year 11 level. The report of the psychologist, which was tendered during your plea, indicates that you have a non-verbal IQ of 130, which is particularly high. It would seem that you have a lot of unfulfilled talent, which hopefully you can learn to harness and put to good use.
After you left school, you demonstrated an ability to obtain regular employment. While your work record has been varied, nevertheless you have generally been able to remain employed. You have worked successively in automobile repairs, as a cabinet maker, in a factory, and in customer service. You were working on a help desk for a telecommunications company at the time of your arrest.
In about the middle of 2007, you commenced using amphetamines. It would seem that your use of that substance escalated to become daily. You had consumed some quantity of the drug ice during the evening of this offence. It is noteworthy that during your period of imprisonment to date, you have undertaken a drug rehabilitation program and a rehabilitation prevention program. In addition, you have undertaken other training, in respect of which certificates were tendered on your behalf. It is important that you continue to use your time in prison to better yourself, so that you will be able to put your abilities to beneficial use when you re-enter the community.
In support of your plea, your counsel tendered a report of Mr Warren Simmons, a psychologist, who interviewed you at Port Philip Prison on 12 June 2009. In that report, Mr Simmons noted that since you had been shown photographs of Mr Tran, you have experienced nightmares about your victim, in which you have seen his face and his body. You told Mr Simmons that you think about Mr Tran quite often. Mr Simmons stated that you expressed some remorse for your actions, and that you displayed some empathy for the victim’s family. Mr Simmons considered that your expressions of remorse were sincere, and he is of the view that you have the capacity to understand the impact which your actions have had on other people. Mr Simmons concluded by noting that you do not have marked traits of an anti-social personality, and to that extent you have the potential to rehabilitate yourself and take advantage of the opportunities available to you while you are in prison.
On the other hand, it is a matter of concern that you have come before the courts on five previous occasions. Of particular significance is that on 7 August 2007, you were granted a community based order for 12 months, on charges of causing serious injury recklessly and causing injury intentionally. Further, on 19 September 2007, you had come before the Children’s Court at Melbourne on charges of armed robbery and robbery, and those proceedings had been adjourned without conviction for a period of 12 months, upon you entering into a bond to be of good behaviour. The offences, in which you were involved in this case, occurred during the currency of both the community based order and the adjourned bond. By flouting the terms of those non-custodial orders, you displayed a substantial lack of respect for the law, and, in doing so, treated with contempt the leniency which had been extended to you for the purposes of your rehabilitation.
You, Noel Lunt are 20 years of age, having been born in April 1989. Your parents separated when you were six years of age, and you and your younger brothers, Michael (who is now aged 19 years) and LK (now aged 17 years) were raised by your mother. I understand, from the plea made on behalf of your brother LK, that your parents experienced matrimonial problems for some time before their eventual separation in 1997. Your mother had suffered from emotional and psychological problems, and ultimately she had a nervous breakdown. After your parents’ separation, your father has had irregular, and little, further contact with you and your brothers. You, your mother and your brother lived with your grandparents from the time your parents separated until about two years ago.
You were educated to Year 9 level at Kealba High School. After you left school you obtained work with a locksmith. You then obtained a painting apprenticeship. You were in the third year of your apprenticeship when you were arrested. Thus, you have been gainfully employed since you left school. You have also been actively involved in competitive soccer for the Green Gully and Westgate Football Clubs. A testimonial prepared by the secretary of the soccer club indicates that you and LK have both been held in high regard by the club. You have both regularly volunteered your services when needed, and have been involved in activities including assisting elderly club members at their homes and to visit doctors. Two other character references were tendered on your behalf, each of which speak highly of your character.
During your term of imprisonment, you have undertaken a number of courses. In particular, you have undertaken courses concerning aspects of your behaviour, including mood management, conflict management, problem solving, alcohol abuse, and the like. You have also successfully completed a number of courses, in which you have received training in kitchen operations, cleaning operations and matters pertaining to occupational health and safety. Certificates to that effect were tendered on your behalf during the course of your plea.
Your counsel also tendered a letter from Father Joe Caddy, the Chaplain to the Metropolitan Remand Centre. Father Caddy has had regular contact with you over the last sixteen months. He has discussed the events of 22 February 2008 with you. You have expressed to him your regret for the consequences of the events which led to the loss of a life. Father Caddy considers that you have matured during your time in custody, and that you now have better insight into your actions. He considers that you are unlikely to offend again.
You have come before the courts on three previous occasions. Your last appearance was before the Sunshine Magistrates’ Court in January 2008 on charges of burglary, theft and destroying property intentionally. On that occasion, just five weeks before your offending in this case, you were released on an undertaking to be of good behaviour for a period of 12 months. Your actions of 22 February were a flagrant betrayal of the trust reposed in you by the Sunshine Court.
For the purposes of your plea, you were assessed by Ms Pamela Matthews, a forensic psychologist, on 15 July 2009. You told Ms Matthews that on the evening in question you had drunk a substantial amount of beer, and had used the drug “ice”. Ms Matthews noted that you have had some difficulties in prison because of your physical size and youth, as a result of which you had been intimidated. She also noted that you commenced to drink alcohol and use illicit substances from the age of 15 years. Ms Matthews formed the conclusion that you are not, by nature, anti-social, but rather that your involvement in the offending was what she described as “an instance of adolescent behaviour fuelled by substance abuse and peer pressure that has escalated out of control”. She considers that you present as being genuinely remorseful for your behaviour and as having some sympathy for the family of your victim. She considers that you have grown in maturity during your time in custody. She also expressed concerns that a lengthy period of custody in an adult prison might be stressful for you and erode your mental state.
You, LK, were born in February 1992, and therefore are 17 years of age. At the time of the offences you had just turned 16 years of age. As I outlined when detailing the personal circumstances of your brother Noel, your parents separated when you were aged 5. Shortly after their separation, your mother was ill. During that time, your grandmother looked after you and your brothers. Like your brother Noel, you have had little contact with your father in the last 12 years. You have a close relationship with your mother, and she has provided a reference on your behalf.
You attended St Albans Primary School and then Kealba High School to Year 9 level. After you left school, you were unemployed for some time. However, approximately six months before February 2008, you gained employment with Prisma Painting as an apprentice painter. During that time, you attended a TAFE College once per week. You have been an active sportsman, playing soccer for some six years with Green Gully, and then for two years with Westgate Football Club. The reference provided by the secretary of that club describes how you, like your brother, have been active in voluntary work for the club off the field.
You have one previous appearance in court. In May 2007, you appeared in the Children’s Court at Sunshine on a charge of robbery. Those charges were adjourned without conviction, on you entering into an undertaking to be of good behaviour for a period of 12 months. It was a condition of that undertaking that you follow the lawful directions of Ms Miranda Bain, a member of the Centre for Family Addiction and Mental Health. I was advised by your counsel, Mr Georgiou, that you attended Ms Bain on some six occasions. It is significant that, like Huynh and your brother Noel, your offending in this case occurred during the period in which you were subject to an adjourned undertaking to be of good behaviour. I was also advised on your plea that, in July 2008, you came before the Sunshine Children’s Court in relation to offences committed by you in 2007. Specifically, those offences included charges of recklessly causing injury in July 2007, and charges of aggravated burglary, recklessly causing injury and criminal damage, in September 2007. In the first incident, you threw a bottle at a youth, and hit him in the head. The second incident concerned a fight in which you became involved, after which you and a friend smashed a garage window. You were sentenced, in July 2008, to six months’ detention in a youth justice centre.
In her reference, your mother describes how, at about the age of 15 years, you began to associate with the wrong company, and commenced to drink alcohol. It was during that time that you started to get into trouble with the police. No doubt, part of your problems were due to the fact that, like your brother Noel, you did not have a positive adult male role model in your life.
I have also read a reference from Ms Kathryn Richardson, who is the mother of your girlfriend Lauren. Ms Richardson’s reference describes a different side of you, to that which is revealed by your police record, and by your actions in the present case. During the years of your relationship with Lauren, you became part of Ms Richardson’s family, and she has described how you were caring towards her daughter, and also very helpful to her. Ms Richardson’s reference gives some basis of hope for your rehabilitation. In this respect, I note that during your period of incarceration, you have been undertaking the Victorian Certificate of Applied Learning and a Business 2 Certificate, as well as a certificate in cabinet making. You have also undergone some 18 counselling sessions with a psychologist. I also note that Ms Richardson has indicated that, upon completion of your term of imprisonment, Ms Richardson is prepared to establish a painting business to provide both you, and your brother Noel, with the opportunity to be employed and to complete your periods of apprenticeship.
For the purposes of the plea, you were assessed at the Parkville Youth Justice Centre by Mr Jeffrey Cummins, a forensic psychologist, on 25 May 2009. Mr Cummins’ report was tendered on your plea, and he also gave evidence. In his report Mr Cummins stated that you did not present as having an anti-social personality disorder, or as having an anger management problem. He considers that at the time of the offence, you had symptoms of an adjustment disorder, arising from the lack of an adult male role model in your life. Mr Cummins stated that in the course of the interview with him, you spoke in a manner which indicated that you had already formed some empathy with the principal victim of your attack. In this connection, I note that you have apparently written a letter of apology to Mr Tran’s family. You entrusted that letter to a fellow detainee at the youth justice centre, which was to be passed onto to Mr Tran’s family on your associates’ release from custody.
In his evidence, Mr Cummins confirmed the contents of his report. In particular, he described how, in the course of your interview with him, you castigated yourself for your role in the commission of the offences. You indicated that you understood the seriousness of the offences. You also demonstrated insight into some of the underlying causes of your offending, namely your immaturity, and the fact that you were easily led. Mr Cummins also confirmed that you made statements to him consistent with you feeling some empathy for the family of Bao Tran.
Mr Cummins also stated that he considers that the psychotherapy, which you are currently undertaking, is appropriate to address your adjustment disorder, and that it should continue for a substantial period of time. Mr Cummins was of the view that your attitude to that therapy is positive, and that you are receiving appropriate benefits from it. In essence, Mr Cummins considers that you now have favourable prospects for rehabilitation, given that you have some insight into the underlying causes of your offending.
In the course of sentencing submissions, substantial weight was placed by counsel for the three of you on your respective youth. Reference was made to the principle that, in general, it is in the public interest that the rehabilitation of young offenders be given primacy in the sentencing process. In particular, the law recognises that it is to the community’s benefit that young offenders be sentenced in a manner which will enhance their rehabilitation into society.
However, that principle does not invariably operate as an absolute proposition. In particular, there are cases in which the considerations of the youth of the offender and his rehabilitation, while still important, nevertheless must be properly balanced by the need for the Court to impose a sufficiently strict sentence, in order to operate as a general deterrent, and as a specific deterrent to the particular offenders. In my view, this is such a case. As I have already stated, the unlawful killing by the three of you of Bao Tran constitutes a particularly serious instance of the crime of manslaughter. As a whole, the conduct of the three of you in the incident in which Bao Tran was killed, and the other four occupants of the Magna injured, was characterised by gratuitous, vicious and cowardly violence on your behalf. Regrettably, that type of conduct is all too prevalent in our society, although, as I have stated, this case is perhaps a more extreme instance of such a phenomenon. It is most important, in the public interest, that courts impose sufficiently severe sentences, so as to adequately express the outrage and condemnation of the community and the law at your behaviour, and to send a clear message that the type of conduct in which the three of you saw fit to engage on that night simply will not be tolerated in any way, shape or form. Those who see fit to indulge in the type of vicious and wanton violence which characterised your offending must be left in no doubt that, when apprehended, they will suffer a substantial and lengthy loss of their freedom to live in society. In cases such as this, the Court has a responsibility to impose sentences which will, in that way, provide a measure of protection to innocent and defenceless members of our community from mindless acts of violence such as occurred in this case. Those considerations, in my view, should not be sacrificed or unduly diminished by the weight given to your rehabilitation as young offenders.
In this case, it is relevant that each of the three of you, in the twelve months preceding the offending, had had the benefit of some leniency extended to you by a court or courts. Each of you, on the night in question, showed arrant disdain for the leniency given to you. Your actions on the night in question displayed a gross contempt by the three of you for the law, and for the proper principles of a civilised society. In my opinion, it is necessary that each of you receive such a sufficiently severe sentence as to leave you in no doubt as to the attitude of the law should, on your release, you contemplate indulging in the same type of behaviour again.
I do accept that the youth of the three of you, and in particular you, LK, is relevant as to the level of your culpability. Persons of your young age do not have the benefit of the same maturity and judgment as an older person might have. However, your immaturity is no excuse, nor indeed an appropriate explanation, for your conduct on that night. There are very many adolescents in our society who have had a less advantaged upbringing than you, and who also come from broken homes, who would not think for one instant of being involved in the type of conduct that the three of you indulged in.
In sentencing each of the three of you, I take into account your youth, although, as I have stated, that consideration is balanced by other sentencing requirements of general and specific deterrence, and proper condemnation of your violent actions. If not for your youth, the sentences I shall impose on you would have been measurably longer. In particular, I intend to fix a period in which each of you will be eligible for parole, which is longer than would be the case if you were of more mature years.
In the case of you, LK, it is also appropriate to observe that, in light of your young age, and the matters put on your plea, the Adult Parole Board might give favourable consideration to transferring you to a youth justice centre.
In sentencing each of you, I also take into account your pleas of guilty. In doing so, I accept that each of you offered to plead guilty at a relatively early stage of the proceeding, so that the committal was, in effect, unopposed. That plea, in each case, is of utilitarian value, and it is in the community’s interest that those who have committed offences publicly acknowledge them by pleading guilty to them. In addition, I accept that, at least to a limited extent, you have each displayed some remorse for your conduct. It is difficult on the materials for me to assess the depth and sincerity of the remorse which you have each expressed. However, in mitigation, I am prepared to accept that you have at least each developed some insight into the wrongfulness of your actions, and into the suffering which you have occasioned, particularly to the family of Bao Tran. That insight and that remorse gives some hope for the eventual rehabilitation of the three of you. The courses which you have each undertaken while in custody, and the therapy which you, LK, have undergone, also provide some cause to hope for your rehabilitation. It is in the best interests of the three of you that you continue to take those positive steps, and to use your time in custody to better yourselves.
In determining your sentences, questions of the parity of the sentence to be given to each of you presents some difficulty. The three of you acted in concert in attacking the Magna and its occupants. Thus, you are each equally responsible at law for the actions of the other of your co-accused. You, LK, struck the fatal blows, which caused the death of Bao Tran. In that sense, you are more culpable for his death than Huynh and Noel Lunt. However, you were two years younger than your co-accused. While you were launching your ferocious attack on Bao Tran, they were occupied in inflicting vicious attacks on the other victims in the car. Further, you have less previous convictions than either Huynh or Noel Lunt. Balancing those factors out, in my view you, Huynh, Noel Lunt and LK should be punished equally for the manslaughter of Bao Tran.
It was you, Noel Lunt, who struck the blow which shattered the elbow of Andres Molina. Again, you were acting in concert with you, Huynh and LK. Thus the attack by you, Noel Lunt, on Molina fell within the scope of the joint agreement which you had with your two co-accused. It is significant that at about the same time you, Huynh, struck Thien Le with your hockey stick, and then followed up the blow, which Noel Lunt inflicted on Molina, by hitting him yourself with your hockey stick. At about the same time you, LK, were viciously attacking the other three occupants of the vehicle with your axe. Thus, in my view, the culpability of the three of you, for the serious injury intentionally caused to Andres Molina, was equal. Because you, LK, are younger than the other two co-accused, it is appropriate that you receive a slightly lower sentence for that count on the presentment.
It would appear that it was you, LK, who struck the blows, which inflicted intentional injury to both Johnny Phan and Maile Latu, while it was you, Huynh, who struck the blow that caused the intentional injury to Thien Le. Again, the two of you were acting in concert with you, Noel Lunt, in injuring those three persons. It would seem that the more violent of the three of you was LK. That additional culpability is balanced by your younger age than the other two co-accused. Thus, it is appropriate that the three of you be sentenced equally on the three charges of intentionally causing injury.
In respect of the charge of affray, it is appropriate that you, Huynh and Noel Lunt receive higher sentences than LK, because of the differences in your ages. However, as discussed during the course of sentencing submissions, the offence of affray is very much part and parcel of the other offences to which you have pleaded guilty. Therefore, in the case of the three of you, I shall make orders that your sentences, on the charge of affray, be served wholly concurrently with your other sentences of imprisonment.
Apart from the count of affray, the five other charges to which the three of you have each pleaded guilty, each constitute separate offences, albeit that they were committed in the course of the one incident. There were five separate direct victims of those offences, namely Bao Tran, Andres Molina, Maile Latu, Johnny Phan and Thien Le. The three of you each deserve separate punishment in respect of each of those five offences. However, unless I allow for substantial concurrency of your sentences on counts 2 to 6, your total sentences will be excessive and thus unjust. Thus, the principle of totality requires me to provide for substantial concurrency of your sentences on those five counts.
Before I sentence the three of you on those counts, and on the count of affray, I shall first deal with the case of you, Andrew Azzopardi.
The sentencing considerations, relevant to you, Andrew Azzopardi, are wholly different from those applicable to your co-accused. First, you have only been convicted of the offence of affray. Secondly, there is an explanation attaching to your offending, which substantially mitigates your involvement in it. Thirdly, there are other matters relating to your cooperation with the authorities, and your personal circumstances, which set you apart from your co-accused.
Although you have only pleaded guilty to one charge, I agree with the assessment of your counsel, Mr Sexton, that this is one of the more serious instances of the offence of affray. However, I accept that there are a number of mitigating circumstances relating to your involvement in that offence. First, your involvement in the offence was purely as the driver of the vehicle containing your co-accused. It would appear that you remained inside your vehicle throughout the whole of the incident. You gave no encouragement at all to your co-accused to attack the Magna or the occupants of it.
Further, and importantly, I accept that you participated by driving your vehicle to the scene of the offence, and by driving away from it with your co-accused, because you were in genuine fear of some of your co-accused. Immediately upon your arrest, you told the police why you participated in the offence, and in particular you explained to them a threat made to you earlier in the night by one of your co-accused, and the effect that that had on you. Your fear of that co-accused is supported by the police statement of your employer, Jamie Gunton, who described a previous incident, in which you were plainly in fear of some of your co-accused. Subsequent to your arrest, you participated in one record of interview, and made two statements to the police, in each of which you have consistently given the same explanation for your involvement in the affray. The informant accepts your explanation. I therefore accept that, on that evening, you were prevailed upon to act as the driver for one of your co-offenders, because he had threatened you with a knife. I also accept that, in a more general sense, you were intimidated by your co-accused, and that it was for that reason that you became involved in driving them to and from the scene of the crime.
Furthermore, you frankly admitted your role to the police, from the very moment at which you were arrested. The notes of the arresting officer have been tendered to me, and they contain your account of the events, which is consistent with that later given by you in your record of interview, and in your two further statements to the police. I accept that you have given an honest and frank account of your involvement in the offence on the night. Furthermore, your plea of guilty reflects, and is consistent with, your acceptance of responsibility for your actions, from the moment of your arrest.
Thirdly, and importantly, you have given useful and important cooperation to the police in their investigation of this serious crime. On the evening of your arrest, and indeed in the early hours of the morning, you participated in a record of interview which lasted for some one and a half hours, and in which you made full and frank admissions to them. On the completion of the record of interview, you then made a statement to the police, which you signed. In the record of interview, and in that statement, you set out accurately and truthfully the details of the involvement of both yourself and your co-accused in the offences. Furthermore, you made an additional statement to the police on 3 March 2008, in which you provided further details of the offence. Allied to that, you have given an undertaking to this Court that you will assist the police, and will give evidence, in the forthcoming prosecution of another co-accused. That assistance, and that undertaking, is a significant mitigating circumstance. As a matter of public policy, the law recognises the importance of cooperation and assistance, given by those associated in crime, in the successful prosecution of other offenders. For that reason, the type of assistance and cooperation given by you is regarded as a substantially mitigating circumstance. In addition, I consider that your cooperation is particularly courageous, and reflects a genuine respect by you for the law and for its processes.
Associated with your cooperation and frank admissions, I also accept that you have been, and are, genuinely remorseful for your actions of the night of 22 February 2008. There is a significant body of evidence put before me which satisfies me, to a high degree of persuasion, that you are sincerely remorseful and contrite for what you have done. I heard evidence to that effect from your aunt, Ms Vajada, who was a most impressive witness. The existence of your remorse was also supported by the report of Ms Elizabeth Warren, a psychologist, who has examined you for the purposes of this case. I am also impressed that a number of the references, tendered on your behalf, indicate that you have suffered real embarrassment, shame and distress arising out of your involvement in the offence for which you are to be sentenced. Moreover, your remorse, and your commitment to redeem yourself, is evidenced by your recent work for the Melbourne City Mission, and in particular your involvement in visiting, and giving your company to, elderly people as part of the Mission’s program.
In relation to your personal circumstances, you are 19 years of age, and have no previous convictions. You come before the Court as a man of otherwise good character, as is eloquently attested by the large amount of references which have been tendered. A common thread of all the references is that you are a compassionate, trustworthy and gentle person, who is not prone to being involved in violent activities. A number of the references observe that your involvement in the affray was totally out of character for you.
You come from a large and most supportive family. You were educated to Year 12 level, having completed your VCAL in 2007 at the Catholic Regional College in Sydenham. You did not exhibit any behavioural problems at school. In 2005, you were involved in the local army cadet program. While at school, you also carried out part time work for McDonald’s since the age of 16. You have continued to work for McDonald’s, and since October 2008 you have been employed by it on a full time basis. I have read references from two of your supervisors at McDonald’s, who speak highly of your commitment to your work, of your trustworthiness, and of your general character. You have also been actively involved in sport, including soccer, swimming and Taekwondo.
In 2008, you deferred your education, and commenced working for P & O, unloading containers. In the middle of 2008, you travelled to Malta to visit your ailing grandmother. On your return, you took up full time employment with McDonald’s. In June of this year, you commenced a 15 week course in electrotechnology at Vic Tech College. Your long term aim is to join the Australian Armed Forces as an electrical engineer.
It is clear from your background and antecedents, and from your character references, that, other than for your involvement in this case, you have been hitherto a person of good conduct and behaviour. I accept that your involvement in the affray was entirely out of character for you. I also accept that you would not have been involved in the incident, if you were not intimidated by your fellow accused.
Mr Sexton submitted that in the circumstances I should impose upon you a term of imprisonment, which should be fully suspended. The circumstances of your offending in this case are so serious that I consider that it would only be appropriate to impose a suspended sentence in exceptional circumstances. However, in my view, this is a case in which, for the reasons I have already set out, I am satisfied that such exceptional circumstances have been properly established. At the risk of repetition, those circumstances may be summarised as follows:
(1)Your involvement in the offence was limited.
(2)You were involved in the offence because of your fear of your co-accused.
(3)From almost the moment of your arrest, you have cooperated with the police, and have made full and truthful admissions to them.
(4)You have pleaded guilty and are genuinely remorseful.
(5)You have undertaken to assist the authorities in the prosecution of a co-offender.
(6)You have no previous convictions and are of otherwise good character.
(7)You are a young man, and the gravity of your offending does not, in my view, outweigh the importance attached to your rehabilitation.
(8)In my view, the prospects for your successful rehabilitation are very good. That view is founded on your previous good character, your genuine remorse, your cooperation with the authorities, your involvement in community work, and your strong family support. It is also supported by the report of Ms Warren.
Finally, I note that Mr Lincoln, who appeared to prosecute in this matter, has indicated that the Crown accepts that a wholly suspended sentence would be an appropriate disposition in this case. In my view, that concession by the Crown is entirely proper.
Accordingly, and for the reasons just stated, for the offence of affray, I sentence you to a term of 2 years’ imprisonment, the whole of which I shall suspend for a period of 24 months. The effect of that sentence is that you will not be required to spend any time in custody, but you must not commit any further offence which is punishable by imprisonment, otherwise, in the absence of exceptional circumstances, you will be required to serve some or all of the suspended sentence.
I am required, by s 6AAA of the Sentencing Act, to state the sentence I would have imposed if you had not pleaded guilty. That requirement is somewhat artificial in your case, as your guilty plea is inextricably tied up with your cooperation, your remorse, and your prospects for rehabilitation. With that qualification, and doing the best I can, if not for your plea of guilty and cooperation, I would have sentenced you to an immediate term of two years’ imprisonment, with a minimum non-parole period of twelve months.
I return then to the sentences to be pronounced in respect of each of you, Viet Huynh, Noel Lunt and LK.
I sentence you, Viet Huynh, as follows:
(a)On count 1 (affray) I sentence you to 3 years’ imprisonment.
(b)On count 2 (intentionally causing serious injury to Andres Molina) I sentence you to 5 years’ imprisonment.
(c)On count 3 (intentionally causing injury to Maile Latu) I sentence you to 2 years’ imprisonment.
(d)On count 4 (intentionally causing injury to Johnny Phan) I sentence you to 2 years’ imprisonment.
(e)On count 5 (intentionally causing injury to Thien Le) I sentence you to 2 years’ imprisonment.
(f)On count 6 (manslaughter of Bao Tran) I sentence you to 9 years’ imprisonment.
I direct that 12 months of the sentence on count 2, and 4 months of each of the sentences on counts 3, 4 and 5, be served cumulatively on your sentence on count 6, and upon each other, making a total effective sentence of 11 years’ imprisonment. I direct that you serve a minimum of 7 years’ imprisonment before you become eligible for parole.
Pursuant to s 18(4) of the Sentencing Act I declare that the period of 427 days be reckoned as already served under the sentence which I impose. I shall cause a notation to be made in the records of the Court that that declaration was made.
Pursuant to s 6AAA of the Sentencing Act I indicate that if you had not pleaded guilty, I would have sentenced you as follows:
On count 1, 3 years’ imprisonment;
On count 2, 6 years’ imprisonment;
On each of counts 3, 4 and 5, 3 years’ imprisonment;
On count 6, 10 years’ imprisonment.
I would have directed that 18 months of the sentence on count 2, and 6 months of each of the sentences on counts 3, 4 and 5, be served cumulatively upon your sentence on count 6, and upon each other, making a total effective sentence of 13 years’ imprisonment. I would have directed that you serve a minimum of 9 years’ imprisonment before you became eligible for parole.
Noel Lunt, I sentence you as follows:
(a)On count 1 (affray) I sentence you to 3 years’ imprisonment.
(b)On count 2 (intentionally causing serious injury to Andres Molina) I sentence you to 5 years’ imprisonment.
(c)On count 3 (intentionally causing injury to Maile Latu) I sentence you to 2 years’ imprisonment.
(d)On count 4 (intentionally causing injury to Johnny Phan) I sentence you to 2 years’ imprisonment.
(e)On count 5 (intentionally causing injury to Thien Le) I sentence you to 2 years’ imprisonment.
(f)On count 6 (the manslaughter of Bao Tran) I sentence you to 9 years’ imprisonment.
I direct that 12 months of the sentence of count 2, and 4 months of each of the sentences on counts 3, 4 and 5, be each served cumultatively upon your sentence on count 6, and upon each other, making a total effective sentence of 11 years’ imprisonment. I direct that you serve a minimum term of 7 years’ imprisonment before you become eligible for parole.
Pursuant to s 18(4) of the Sentencing Act I declare that the period of 516 days be reckoned as already served under the sentence which I impose. I shall cause a notation to be made in the records of the Court that that declaration was made.
Section 6AAA of the Sentencing Act requires me to state the sentence which I would have imposed if you had not pleaded guilty. If not for your plea of guilty I would have sentenced you to the following terms of imprisonment:
On count 1, 3 years;
On count 2, 6 years;
On count 3, 3 years;
On count 4, 3 years;
On count 5, 3 years;
On count 6, 10 years.
I would have ordered that 18 months on count 2, and 6 months on each of counts 3, 4 and 5, be served cumulatively on your sentence on count 6 and upon each other, making a total effective sentence of 13 years’ imprisonment. I would have directed that you serve a minimum term of 9 years’ imprisonment before you become eligible for parole.
I sentence you, LK, as follows:
(a)On count 1 (affray) I sentence you to 2 years’ imprisonment.
(b)On count 2 (intentionally causing serious injury to Andres Molina) I sentence you to 4 years’ imprisonment.
(c)On count 3 (intentionally causing injury to Maile Latu) I sentence you to 2 years’ imprisonment.
(d)On count 4 (intentionally causing injury to Johnny Phan) I sentence you to 2 years’ imprisonment.
(e)On count 5 (intentionally causing injury to Thien Le) I sentence you to 2 years’ imprisonment.
(f)On count 6 (manslaughter of Bao Tran) I sentence you to 9 years’ imprisonment.
I direct that 6 months of the sentence on count 2, and 2 months of each of the sentences on counts 3, 4 and 5, be served cumulatively upon your sentence on count 6, and upon each other, making a total effective sentence of 10 years’ imprisonment. I direct you serve a minimum term of 6 years’ imprisonment before you become eligible for parole.
Pursuant to s 18(4) of the Sentencing Act I declare that the period of 332 days be reckoned as already served under the sentence which I impose. I shall cause a notation to be made in the records of the Court that that declaration was made.
Pursuant to s 6AAA of the Sentencing Act if you had not pleaded guilty, I would have sentenced you as follows:
On count 1,3 years’ imprisonment;
On count 2,5 years’ imprisonment;
On each of counts 3, 4 and 5, 3 years’ imprisonment;
On count 6,10 years’ imprisonment.
I would have directed that 12 months of the sentence on count 2, and 4 months of each of the sentences on counts 3, 4, 5, be served cumulatively upon your sentence on count 6, and upon each other, making a total effective sentence of 12 years’ imprisonment, and I would have directed that you serve a minimum of 8 years’ imprisonment before you became eligible for parole.
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