R v Lam & Ors
[2005] VSC 495
•23 December 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1505 of 2003
| THE QUEEN |
| v |
| CUONG QUOC LAM & ORS |
JUDGE: | Redlich J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 January 2005 to 19 September 2005 | |
DATE OF SENTENCE: | 23 December 2005 | |
CASE MAY BE CITED AS: | R v Cuong Quoc Lam & Ors | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 495 | |
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Sentence – Murder – Principals in the first degree – Youthful offenders - Unlawful possession of weapons in a public place
Aiders and abettors – Youthful offenders - Choosing to remain when expectation of a violent confrontation – Encouragement of violent conduct by conduct or presence – Good prospects of rehabilitation
---APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Dean S.C. with Mr P. Southey | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For Cuong Quoc Lam | Mr S. Grant | Michael Gleeson & Associates |
| For Hung Tu Van | Mr A. Jackson | Haines & Polities |
| For Linh Van Nguyen | Mr D. Brustman | Valos Black & Associates |
| For Thanh Nha Nguyen | Mr F. Gucciardo | Theo Magazis & Associates |
| For Long Thanh Tran | Mr G. Mullaly | Victoria Legal Aid |
| For Hong Bui | Mr J. Saunders | Valos Black & Associates |
| For Hoang Tran | Mr M. Rochford | Brendan Wilkinson |
TABLE OF CONTENTS
General................................................................................................................................................. 1
Cuong Quoc Lam, Hung Tu Van, Linh Van Nguyen (Johnny), Thanh Nha Nguyen (David), Long Thanh Tran, Hong Bui, Hoang Tran........................................................................................... 1
Groups of friends-not gangs....................................................................................................... 1
Youthful Offenders and very serious crime................................................................................ 2
Fixing a non-parole period.......................................................................................................... 3
False accounts given to investigators and in pre sentence interviews....................................... 3
Approach to disputed facts......................................................................................................... 4
Cuong Quoc Lam.......................................................................................................................... 5
(i) Circumstances of offending................................................................................................ 5
(ii) Personal Circumstances................................................................................................. 9
Hung Tu Van............................................................................................................................... 12
(i) Circumstances of offending.............................................................................................. 12
(ii) Personal circumstances................................................................................................ 14
Linh Van Nguyen (Johnny)........................................................................................................ 17
(i) Circumstances of offending.............................................................................................. 17
(ii) Personal circumstances................................................................................................ 20
Thanh Nah Nguyen (David)...................................................................................................... 24
(i) Circumstances of offending.............................................................................................. 24
(ii) Personal circumstances................................................................................................ 26
Long Thanh Tran......................................................................................................................... 32
(i) Circumstances of offending.............................................................................................. 32
(ii) Personal circumstances................................................................................................ 36
Hong Bui...................................................................................................................................... 40
(i) Circumstances of offending.............................................................................................. 40
(ii) Personal circumstances................................................................................................ 45
Hoang Tran.................................................................................................................................. 48
(i) Circumstances of offending.............................................................................................. 48
(ii) Personal circumstances................................................................................................ 51
Sentencing......................................................................................................................................... 54
Victim Impact Statements........................................................................................................ 54
Cuong Quoc Lam and Hung Tu Van....................................................................................... 55
David Nguyen............................................................................................................................. 58
Johnny Nguyen............................................................................................................................ 59
Long Thanh Tran and Hong Bui............................................................................................... 60
Hoang Tran.................................................................................................................................. 61
Orders................................................................................................................................................. 61
HIS HONOUR:
General
Cuong Quoc Lam, Hung Tu Van, Linh Van Nguyen (Johnny), Thanh Nha Nguyen (David), Long Thanh Tran, Hong Bui, Hoang Tran
On 19 September 2005 following a trial which commenced on 24 January 2005 each of you were found guilty of the murder of James Huynh. Cuong Lam and Hung Van you were also guilty of murdering Viet Huynh and Nam Huynh on 8 July 2002.
Groups of friends-not gangs
Some reporting of the trial wrongly suggested that the seven of you were members of a gang and that the deceased were members of another gang. There was no evidence to suggest that was so. Cuong Lam and Hung Van (together with Tuan Tran), you were close friends who regularly socialised together. You were also friendly with Johnny Nguyen and David Nguyen, who were also friends. Long Tran, Hong Bui and Hoang Tran, you were friends. Each of you and your group of friends would regularly socialise together. There was a considerable body of evidence that your two groups of friends knew or were acquainted with each other. James Huynh and John Huynh were brothers and together with their cousins Viet and Nam Huynh and other friends would often socialise together. There was nothing sinister in the association of any of these groups.
The question of who brought the swords and machetes to the nightclub was an unresolved issue in the trial. I am unable to make a finding as to the individuals who brought the swords to the Salt Nightclub. The investigators recovered none of these weapons. They were brought in the car or cars of one or more of you or your friends. At least one counsel suggested “culture” may explain the practice of carrying weapons in cars. There is no sufficient basis upon which I could conclude that those who had them in their cars had brought them to the Salt Nightclub with the intention that they would be used that night.
The carriage and possession of lethal weapons in motor cars in public places is conduct which is unlawful. Their production for any aggressive purpose should not be countenanced by anyone. To arm oneself in the course of confrontation between groups of persons is calculated to lead to extreme violence.
It should not be overlooked in the context of this case that most of you were part of a group of young men of good character who commenced the evening enjoying social activity. When you were faced with the prospect of confrontation and likely violence each of you made a choice. You declined to withdraw from any possible involvement. Then, by your presence and conduct, whether fuelled by anger and a desire for revenge, alcohol, a misguided sense of loyalty or peer group pressure, you encouraged the conduct of others. When lethal weapons were produced you remained.
Where there is a confrontation between groups of young men, it must be understood that those who cause the confrontation to escalate to one of extreme violence face the prospect of substantial terms of imprisonment. Those who use weapons to resort to extreme violence and those who choose to remain providing encouragement when it is apparent that extreme violence will ensue are all responsible and can expect lengthy goal sentences for the consequences of such behaviour.
The injuries inflicted on James Huynh were horrific. According to Professor Ranson the deceased sustained in excess of 30 incision wounds. Each of you was, in law, responsible for some of those injuries which contributed to his death.
Youthful Offenders and very serious crime
On the plea on each of your behalves, substantial reliance was placed upon your youth. It is universally accepted within common law countries that in the case of a youthful offender reformation remains an important consideration. Courts have recognised that a youthful offender is likely to be exposed to corrupting influences during a period of imprisonment which may entrench criminal ways which would defeat the very purpose for which punishment is imposed. A primary objective of the criminal justice system is to achieve crime prevention to protect the public. The rehabilitation of an offender should not be seen as a consideration inimical to that objective. Crime prevention to protect the public and the rehabilitation of the offender are interlinked objectives. In sentencing there is thus a broad public interest in taking into account the youth of the offender. Where the offence which has been committed is of a very serious nature that factor may have to yield to other sentencing considerations such as general deterrence. In such cases punishment, general deterrence and other sentencing objectives will assume a more important role and the rehabilitation of a youthful offender less significance.[1]
[1]Director of Public Prosecutions v Lawrence (2004) 10 VR 125 at 132 [22]; R v Angelopoulos [2005] VSCA 258; R v Ung [2002] VSCA 101 per Eames JJA at [18-30] and per Callaway JA at [38-41]; R v Misokka Unreported Victorian Court of Appeal 9 November 1995 per Vincent AJA at [48]; R v Pham & Ly (1991) 55 A Crim R 128 per Lee CJ at 135.
Fixing a non-parole period
Although the fixing of a non-parole period confers a benefit upon each of you, the minimum term which I must fix in each of your cases is one that all of the circumstances of the offence require that you should serve without the opportunity of parole. All of the considerations relevant to sentencing including punishment, deterrence, your good character, your relative youthfulness, your extended family of support and your prospects of rehabilitation have been taken into account in fixing both the head sentence and the minimum period which you should be required to serve. It was submitted that these considerations should result in some reduction in the head sentence that I impose and in a reduction in the minimum sentence. At least two of your counsel suggested specific minimum terms which I should impose and which in each case excited a response from the Crown that such minimum sentences would be manifestly inadequate. The time that I should order that each of you spends in prison must be proportionate to the gravity of your crime and must satisfy the punitive, deterrent, retributive and rehabilitative aspects of punishment.
False accounts given to investigators and in pre-sentence interviews
Each of you who gave statements to police gave a demonstrably false account. Most of you maintained your false accounts of the events of the night in your interviews for a pre-sentence report. The prosecution has submitted that your continued denial of your role or responsibility in the commission of the offence for which you had been convicted was a relevant consideration in relation to your prospects for rehabilitation.
Contrition after the commission of an offence is a mitigating factor which will normally lead to some reduction in the sentence which would otherwise be imposed. Expressions of remorse may also be relevant to the offender’s prospect for rehabilitation.[2] Thus the Crown submits in the case of five of you that an absence of remorse also bears upon the prosects of rehabilitation. Where an offender demonstrates an unwillingness to accept responsibility for their action a Court may take such matters into account for the purpose of sentence.[3] But an offender’s continued denial that he committed the offence, whilst demonstrating an absence of remorse, will not usually mean that there are poor prospects of rehabilitation. One reason why that is so is because repentance may be present even when an accused has chosen to contest the charges made against him.[4] Another may be that that an offender, following a conviction and prior to undergoing a pre-sentence assessment may be advised that it is not in his interests to make any admissions pending an appeal and a possible retrial. I do not regard the false accounts given by any of you during the pre-sentence assessment as affecting my determination of your prospects of rehabilitation.
[2]R v Skura [2004] VSCA 53 per Smith AJA at [52]; R v Dardovski [1999] VSCA 81 at [19].
[3]R v Reid [2005] NSWSC 230 at [108]; R v Teichelman [2000] VSCA 224.
[4]R v Gray (1977) VR 225 at 231.
Approach to disputed facts.
Where the prosecution seeks to rely upon a fact adverse to one of you which was not necessarily a fact upon which the jury verdict was based, I have not acted upon it unless I was satisfied about it beyond reasonable doubt.[5] Before I can take into account facts in your favour which mitigate the circumstances of the offence, those facts must be established on the balance of probabilities. The absence of persuasion about a fact favourable or adverse to you does not become the equivalent of persuasion of the opposite fact.[6] On some issues I have been unable to make any finding because neither party has been able to persuade me to the requisite degree.
[5]Weininger v R (2003) 212 CLR 629; (2003) 196 ALR 451; Olbrich v R (1999) 199 CLR 270 at 280; Storey v R [1998] 1 VR 359 at 369; R v Cheung (2002) 209 CLR 1; (2001) 76 ALJR 133.
[6]See Footnote 5 Weininger at 453 [24].
Cuong Quoc Lam
(i) Circumstances of offending
On the Thursday preceding the commission of these offences you attended at the Odeon Nightclub in the company of your co-accused Hung Van and other friends. There you became involved in an altercation with one or more of the deceased. The Crown case was presented to the jury upon the basis that this altercation provided you and Hung Van with a motive for your conduct on 8 July 2002. The Crown has not suggested on this plea that I should take the preceding events into account as an aggravating circumstance and I do not do so.
On the evening of 8 July 2002, in the company of Hung Van and Tuan Tran you travelled to the Salt Nightclub arriving there in the early hours of the morning. Whilst in your company Hung Van was subjected to an unprovoked assault by all of the deceased and John Huynh the brother of the deceased James Huynh. Hung Van was “bottled” (the striking of a bottle to the forehead) and suffered incision injuries to the forehead and the top of his head some of which required subsequent stitching. You went to his aid and a number of your co-accused were also caught up in the ensuing scuffle. The Huynhs were ejected from the Salt Nightclub via the Claremont Street exit whilst you, and some of your co-offenders including Hung Van, were taken out of the Salt Nightclub via the front entrance into Daly Street.
It was not disputed on your plea that the jury must have been satisfied that you and Hung Van and Tuan Tran armed yourselves with Samurai swords and put on white gloves. You gave a false account as to how you came to be armed and falsely denied that you wore gloves.
There was a dispute as to whether there was sufficient evidence to enable me to conclude beyond reasonable doubt that you had brought the weapons and gloves with you in your car with the intention that you would use them on this night if you met the Huynhs.
Your counsel suggested during the course of the plea that I should accept that it was the “culture” of some young Vietnamese men to carry such weapons in their cars and that I should not infer that anyone had brought them to the Salt Nightclub for the purpose of assaulting the Huynhs. The prosecution submitted that from the evidence that you moved your car from the vicinity of the entrance to the nightclub and parked it in the vicinity of the Legends Pool Hall I should infer that you returned to the entrance to the nightclub with the swords and gloves. The prosecution had not invited the jury to draw this particular inference. The evidence does not demonstrate from which of a number of possible sources you and Hung Van and Tuan Tran may have obtained the Samurai swords. You are not to be sentenced on the basis that you brought the weapons to the nightclub.
Next, the proposition was challenged on your plea that the jury must have accepted the Crown case that you and Hung Van came to an agreement or understanding in Daly Street that you would assault the Huynhs with Samurai swords with the requisite intention to be guilty of murder. The evidence of your conduct and that of Hung Van and Tuan Tran in Daly Street constituted a compelling basis for the conclusion that you and Hung Van reached such an understanding before the fight in Daly Street broke out.
When the Huynhs came into Daly Street the fight broke out. The deceased James Huynh, armed with a bottle, approached Hung Van who was carrying a Samurai sword. Hung Van called out loudly “it’s them, it’s them” and you, Tuan Tran, some of the other accused and other persons who may have also been armed ran towards Hung Van and the Huynhs. James Huynh, moved towards Hung Van and may have struck him with the bottle. Hung Van was swinging his sword wildly and inflicted a serious injury to James Huynh’s left arm or wrist causing it to bleed profusely. The deceased’s group then turned and fled from Daly Street into Chapel Street. You, Hung Van and Tuan Tran in the company of others, gave chase. Carrying your sword, you chased the deceased some 500 metres to the intersection of Chapel Street and Alexandra Avenue where the deceased, James Huynh fell to the ground weakened by his loss of blood. James Huynh had left a trail of blood on the footpath and road. Whilst lying on the ground near the bus stop, James Huynh was the subject of a brutal attack receiving multiple injuries to the head, face, back, arms, abdomen and legs as a consequence of blows struck with Samurai swords or similar implements.
On your plea the prosecution maintained that the jury was satisfied that you inflicted multiple injuries upon James Huynh which were the cause of his death. It had been the Crown case that you either inflicted these injuries upon James Huynh or alternatively that you were present acting in concert with or aiding and abetting Hung Van and/or David Nguyen when they inflicted fatal injuries upon James Huynh. On the plea your counsel submitted that the verdict was consistent with the jury having found that you were only aiding and abetting Hung Van and/or David Nguyen and that you did not inflict any injuries yourself. Plainly the jury’s finding of your guilt is consistent with any of the alternative ways the Crown put its case. The verdict did not necessarily mean that you had inflicted injuries. Those witnesses who observed the attack upon the deceased James Huynh from some distance could not identify the attackers. The evidence to which the prosecution pointed in the course of its argument on the plea does not enable me to make a finding to that effect upon the evidence admissible in your trial. I am not satisfied beyond reasonable doubt that you inflicted injuries upon the deceased.
Mr Grant argued that as the jury’s verdict was consistent with a finding that you aided and abetted Hung Tu Van and David Nguyen I should treat your conduct as on a par with the other offenders who were convicted as aiders and abettors, but he did not dispute that the jury accepted that you conducted yourself as the Crown alleged in giving chase in Daly Street and Chapel Street. The jury rejected your account to the police as false. There was a strong body of evidence that you Hung Van and Tuan Tran armed yourselves with swords and put on gloves. It is almost certainly the case that the jury found that you were acting in concert with Hung Van in Daly Street and with Hung Van and/or David Nguyen when injuries which caused James Huynh’s death were inflicted. That is the appropriate view of the facts upon which you should be sentenced. I am satisfied that you were present acting in concert when injuries which caused James Huynh’s death were inflicted.
The prosecution has submitted that I should treat your conduct more seriously than that of any other principal offenders and that you should be viewed as at the “top of the hierarchy” as the person who organised the other offenders and who was in control. The prosecution sought to elevate your level of responsibility on two bases. First, that you had brought the weapons and gloves in your car and were responsible for their distribution. As I have said, that claim is not made out. Second, that you made the telephone call seeking assistance from Johnny Nguyen and David Nguyen who were then at the Commercial Lounge. The Crown says that following the fight inside the Salt Nightclub you arranged for Johnny Nguyen and David Nguyen to attend at the Salt Nightclub for the purpose of participating in the attack on the Huynhs. The evidence of Quyen Tran, which was the only direct evidence of your knowledge of how Johnny Nguyen and David Nguyen came to attend at the Salt Nightclub, was equivocal. Her evidence was that some days after the event you told her that it was you or a friend who had called friends from the Commercial Lounge to attend at the Salt Nightclub. That evidence did not establish that it was you who had called them. Senior counsel for the prosecution did not suggest that there was other evidence upon which I could conclude that you rather than Tuan Tran or Hung Van were responsible for their attendance. That is not to say that you did not know that they had been called and were aware of their presence by the time you gave chase. The contention that I should view your role as more serious than any of the other offenders cannot be sustained. The prosecution accepted that if the evidence does not warrant either of those conclusions, there is no material distinction to be drawn between you and Hung Van.[7]
[7]T 54-5.
The jury by its verdict was satisfied that after the attack on James Huynh you then chased Viet and Nam Huynh in an easterly direction across Alexandra Avenue before they jumped into the Yarra River and drowned. At the time that you did so you had the necessary murderous intent.
Your counsel abandoned an argument that the jury’s verdict on Counts 2 and 3 was consistent with a finding that you did not chase Viet and Nam Huynh to the river but that Hung Van did so and that by your presence at the bus stop you were aiding and abetting him. Mr Grant acknowledged during oral submissions that the jury had been directed that such a verdict was not open.
The account of Mark Ung which the jury must have accepted and which I act upon demonstrated that you were involved in the chase of Viet and Nam Huynh. You were observed running towards the river in an easterly direction armed with a sword. Your intention in doing so was to at least inflict really serious injury upon them. By your conduct you instilled in them a well-founded fear of physical harm which led them to jump into the river to their deaths.
The prosecution also relied on the evidence that you called your friend Hung Nguyen and arranged for him to attend with his girlfriend, An Tran to collect you from the area of the Salt Nightclub and to take your vehicle away from the area. The prosecutor submitted this made your conduct more culpable because you had enlisted the assistance of persons who were not otherwise involved in the events of that night and you did so to avoid detection. This action does reflect the fact that you were thinking clearly about your conduct and its consequences at the time you called Hung Nguyen, but I do not regard it as a circumstance which should result in the imposition of a heavier sentence.
(ii) Personal Circumstances
You were born in Vietnam in 1979. Your father left the family when you were about one year old. You came to Australia in 1981 at the age of two. You came to Australia as a boat person with your mother having first been a refugee in a camp in Malaysia. You were then a little over one year of age. You went to primary school at Albion North and completed your secondary school education at Chisholm Catholic College completing Year 12 in 1997. You gained admission to university and commenced a civil engineering degree at the Victoria University of Technology in 1998. In the year 2000 you decided to transfer to RMIT and commenced a building surveying course. At the end of 2000 you transferred back to Victoria University and continued the same course. At the time you committed these offences you were in your final year of the course.
Whilst completing the course you have been gainfully employed as a shop fitter and shop assistant. You were then living at home with your mother and grandmother, a younger brother Hien Lam and a younger sister Michelle. As your counsel described it you were a sort of father figure to the younger children and even at such an early age you were the principal person bringing income into the family.
Your former employer Mr Murray gave character evidence. He explained the various jobs that you had performed in his shop and business. You helped him in his business at a time when he was in difficulties and worked for a period without being paid. Mr Murray became friendly with you and your family and after you were arrested for these offences he has continued to visit your mother and younger brother. Mr Murray also testified that you have a very caring family who are very supportive of you.
According to the pre-sentence report you also had a part-time job working for a printing material supplier as a toner cartridge technician during your latter years at school and during the period in which you attended at Victoria University prior to your imprisonment. You also became adept at installing intercoolers into car engines and you were able to earn some income from that endeavour. Your industry enabled you to purchase the silver WRX which was the subject of evidence in this trial. Your grandmother, who speaks no English and is in ill-health was dependant upon your assistance in driving her to various appointments. Your mother who speaks little English and is a part-time dressmaker, your younger brother Hien who is now 23 and your sister all benefited from your support.
Your girlfriend, who you first met in Year 11 at Chisholm College and with whom you have remained a friend for the last eight years has provided an impressive written reference as to your character. (Exhibit A on plea). It has described you as “loyal, honest, loving, considerate and a supportive individual who has the ability to see and understand things from another person’s perspective”. It confirmed that you were dedicated to your family, your education and your work and described you as “entirely peace loving”. It is evident your conduct in the early hours of the morning of 8 July 2002 was quite out of character with the person that she had come to know so well.
On the plea Mr Grant called Ms Anne Hooker who is the Youth Development Officer at the Port Philip Prison who has been in charge of the remanded Young Offenders’ Program at the prison for the last seven years. Amongst the aims of the program are the goals of enabling a positive custodial experience by the offender and enhancing the young person’s ability to effectively manage his life without re-offending. It appears that you entered the program almost immediately after your arrival and your behaviour throughout your period of incarceration has, according to Ms Hooker, been exemplary. She described you as a model prisoner. Despite the length of time you have been involved in the committal proceedings and then this trial you have successfully completed a number of programs covering a wide range of issues. The certificates of completion of those in-house programs were tendered on the plea.[8] Whilst on remand at Port Philip you were kept with other inmates in the Young Offenders’ Program and largely kept separate from other inmates. The objective of the program was to try and keep young offenders away from mainstream prisoners so as to improve the youthful offender’s prospects of rehabilitation within the prison setting. Ms Hooker explained that because of the seriousness of the offence with which you have been convicted and the likely length of sentence you will be treated as a maximum security prisoner which would require your incarceration at Barwon Prison.
[8]Exhibit B on plea.
By the time you came to be interviewed by investigating police you were ready to provide them with a carefully crafted account in which you gave a false explanation of how you came to be armed with a sword in Daly Street, falsely denied that you were in the company of Hung Van or Tuan Tran at this time and gave a false account of how you did not chase any of the deceased beyond the area outside the Legends Pool Hall at the corner of Chapel Street and Daly Street. You maintained the same false account when interviewed for the purpose of a pre-sentence psychiatric report. Your counsel accepted that the report should not be viewed as disclosing any remorse on your part for your conduct. I observe in passing that your conduct during the lengthy trial was faultless.
Based upon your youth, your work ethic, your conduct in prison, the family network that you have available to you, including the support that you have from your girlfriend and the fact that this is the first time you have come before a Court, I accept the submission made on your behalf that you have very good prospects of rehabilitation. There should be some reduction in the sentence that I would otherwise impose because of your good prospects of rehabilitation and I have taken that into account in determining the appropriate sentence.
Hung Tu Van
(i) Circumstances of offending
I now turn to your conduct in relation to the crimes you have committed.
You had attended at the Odeon Nightclub on the Thursday night preceding the events at the Salt Nightclub. At that location you and Cuong Lam were involved in a physical altercation with others including John Huynh the brother of the deceased James Huynh. A friend of yours appears to have been the aggressor in that altercation.
At the Salt Nightclub while waiting for a drink at the bar you were attacked by the Huynh group, being struck to the head with bottles which caused you injury. After the Huynh group had attacked you inside the nightclub they were ejected as were you, some co-offenders and some of your friends and acquaintances. After being ejected the Huynh group or at least James and John, picked up bottles on their way to the front entrance of the Salt Nightclub.
Mr Jackson has quite properly conceded that there are a number of facts upon which the jury verdict is likely to have been based and upon which I should act. You armed yourself with a sword whilst in Daly Street and used that sword to assault James Huynh. You, together with Cuong Lam and other persons, chased the Huynh group out of Daly Street and for some distance north along Chapel Street. You then returned to Daly Street and collected your shoe which you had lost. You then returned to Chapel Street and shortly thereafter you were picked up by Johnny Nguyen and David Nguyen and you were driven to the vicinity of the bus stop where James Huynh lay. At that location you together with David Nguyen and others attacked James Huynh with weapons. At this time you were acting in concert with Cuong Lam who was present. Whilst armed with a sword you then chased John Huynh, Nam Huynh and Viet Huynh to the Yarra River where they jumped in. At that time you were acting in concert with Cuong Lam. You returned to the vicinity of the bus stop, and were driven away but a short time later came back to the area where James Huynh lay. By your admissions on this occasion, although you were not then armed you accompanied David Nguyen who was. Whilst he inflicted further serious injuries upon James Huynh you kicked James Huynh a number of times. You were at that time acting in concert with David Nguyen. Any additional findings concerning Cuong Lam to which I have referred apply equally to you as they are based upon evidence that was admissible in your trial.
You consumed some alcohol on this evening but it has not been suggested on your behalf that your consumption of alcohol played any part in the commission of these offences. You were the victim of an attack inside the Salt Nightclub. You received injuries to the forehead and the top of your head as a result of being struck numerous times with bottles. You bled profusely from those injuries. An hour and a half after these events you were observed to be in a shocked and dazed condition which I attribute, at least in part, to the injuries which you had sustained. Whether your ability to make sound judgments was in any other way affected I am unable to say. As the evidence reveals you were angry and keen to extract revenge as a consequence of the attack upon you. The attack on you in the night club provided no justification for any of your subsequent conduct.
You were bleeding profusely as you armed yourself in Daly Street. I am satisfied that you and Cuong Lam armed yourself in Daly Street with the expectation that the deceased would eventually appear there and that you would then use the lethal weapons with which you had armed yourselves. It was suggested on your behalf that despite the lack of contemporaneous medical examination I should conclude that your injuries to some extent affected your ability to make rational decisions. I am unable to make any finding to that effect.
(ii) Personal circumstances
Hung Van, you are a 29 year old single man of Vietnamese ethnicity. You are the youngest member of your family and have four brothers and four sisters. You live with your elderly parents and a brother in Footscray. Both of your parents are in their 60’s and are dependant upon disability support pensions.
You were born in Vietnam in Vung Tau near Long Tan in 1976. Your family owned and managed a petrol station. After the conflict in South Vietnam came to an end your family were stripped of the business and your father returned to farm work to support the family. In 1981 two of your older brothers and one of your sisters left in a boat and via Malaysian and Indonesian refugee camps finally came to and were accepted in Australia. In 1989 only you and one sister and your parents were left in Vietnam. The other members of your family who had now settled in Australia were able to sponsor you and in 1989 you arrived in Australia with your parents and sister. You were then 13 years old.
On arrival here you spent one year at a language centre and then went to the Maribyrnong High School commencing in Year 7. You continued in your schooling until part way through Year 10. It is evident that your limited knowledge of English limited your capacity for academic achievement and you left school in the middle of Year 10 to begin employment. You were then 17 years of age. You commenced employment with GMH in 1995 and you have remained in their continuous employ until your arrest for these offences in July 2002. You commenced as a machine operator and process worker and you were at the time of your arrest classified as an N31 vehicle builder within the fabrication plant at Holden Engine Operations, Port Melbourne. After you commenced employment you completed a course with the Box Hill Institute of Technical and Further Education and received certificates of competency within your area of work.
Your parents are both elderly and speak little or no English. Your mother is in ill health and is quite frail. Nevertheless she attended the trial on a number of occasions and it is evident that you are close to both of your parents. You expressed your concern to Dr Senadipathy in the course of a pre-sentence assessment that you were worried that you were unlikely to see your mother again outside a custodial environment. Your four sisters are married with families of their own and two of your brothers are married with families of their own. All of your siblings live in Melbourne. I am told that none of them have been in any trouble with the police. I accept that you have a large family who has and will continue to support you.
Your were in a relationship with a young woman for some seven years prior to your arrest and remand. That woman testified during the course of the trial. As a consequence of your remand that relationship has ended.
You suffer from diabetes and you require insulin injections twice daily. As the pre-sentence report indicates you do not have any history of mental illness or drug abuse. You impressed the assessing psychiatrist as a young man who had low self-esteem and were dependent on other young men in your ethnic community.
Ms Hooker testified about your role in the Young Offenders’ Program since your remand in Port Philip Prison. Although you were 26 at the time of your arrival and were thus ineligible for the program, management concluded that it was appropriate for you to be placed there as the majority of your co-offenders were there. Ms Hooker described you as extremely polite and well-mannered. You have never given management any cause for concern and have demonstrated an excellent work ethic. Despite your difficulties with English you have participated in and successfully completed a significant number of programs covering a wide area of activities. Those certificates of completion were tendered during the course of your plea.
You also received a certificate of appreciation for your outstanding work commitment in the “hard yards team”. The “hard yards” program is an Australian young achievement small business program which has been operating for youth in your unit for the last six months. It is a program designed to teach young offenders the basics of running and operating a small business. You, in conjunction with some others including some of your co-offenders, made T-shirts and the profits and your wages from your employment in that program have all been given to the Royal Children’s Hospital and the Salvation Army. In a short space of time you were required to manufacture a large number of T-shirts and then package them prior to sale. It was at your request that you entered this program. The team has raised over $6,000 for those two charities. You are a willing volunteer for any job and are extremely well thought of by the Correctional staff and Ms Hooker. You are also a cleaner in the management area. You are required to go into their offices which is an extremely trusted position. You have been described as a model prisoner and you conducted yourself in that fashion during the course of the lengthy trial.
It is a matter of some regret that all of the benefits of this program will no longer be available to you after you have been sentenced. It is expected that you will be relocated to the maximum security prison at Barwon because of the serious nature of the offences and the length of your sentence.
In December 1994 you appeared at the Williamstown Magistrates’ Court in relation to a number of offences and the disposition of those proceedings was that they were adjourned for 12 months. You were then some 18 years of age. It has not been suggested by the Crown that this is a matter upon which I should attach any weight and I do not intend to do so.
Linh Van Nguyen (Johnny)
(i) Circumstances of offending
You were convicted of one count of murder on the basis that you aided and abetted Cuong Lam, Hung Van and David Nguyen in relation to the murder of James Huynh. The evidence established that you were a friend of Hung Van, Cuong Lam, David Nguyen and Tuan Tran.
On the afternoon of 7 July 2002 your brother lent you his red Toyota Starlet. You went to the Crown Casino in the afternoon and then to a restaurant in Footscray for a child’s birthday. David Nguyen was present at that party. You then went to the Commercial Lounge in Prahran and David Nguyen accompanied you in your brother’s car. You remained there until you or someone in your company received a phone call that there had been a fight at the Salt Nightclub and that Hung Van had been bashed by guys with bottles. You and David Nguyen then drove to the Salt Nightclub in the red Toyota.
You told the investigators that you dropped David Nguyen off in Daly Street. You then drove your car into Chapel Street and whilst you were parked there you observed people running in Chapel Street. Whilst you were stopped there Hung Van got into your car. By the time you commenced to drive north to the river David Nguyen was also a passenger. The jury found that you drove your car into Alexandra Avenue and parked it adjacent to the bus stop where James Huynh lay. Your passengers, Hung Van and David Nguyen emerged and at least one of them was then carrying a sword or machete. Whilst you observed from your car there was a brutal attack upon James Huynh in which injuries were inflicted which caused his death. Hung Van and David Nguyen then returned to your car and you then drove them away from the murder scene. After decamping from the murder scene you drove back to the area of the Como Hotel near the intersection of Daly Street and Chapel Street. From there you drove to a West Footscray flat where Cuong Lam was waiting. The jury by its verdict was satisfied as to these facts and rejected much of your account to investigating police as false.
It was the prosecution case that you drove your car to the vicinity of the bus stop on two occasions. The Crown case was that on both of those occasions Hung Van and David Nguyen alighted and attacked James Huynh whilst he lay at the bus stop. Although the jury’s verdict does not depend upon a finding that you drove to the bus stop on two occasions there was a substantial body of evidence that leads to the conclusion that your car was present on two occasions, (and I make no finding as to whether you drove away and returned) when James Huynh was attacked. I am satisfied that one or both of them were present on each occasion. On one of those occasions one of the occupants of your car took with them a billiard cue which your brother Son kept in the car.
The jury by its verdict rejected the account which you gave the investigating police. It was demonstrably false and it was inevitable that the jury would reach such a conclusion as there was an overwhelming body of evidence that you were untruthful about where you drove your car.
The prosecution said, and it was not disputed, that the guilty verdicts meant that the jury were satisfied that you were present in your brother’s motor car in the vicinity of James Huynh at the time that one or more of the principals in the first degree murdered James Huynh and that you intentionally encouraged Cuong Lam, Hung Van and David Nguyen to commit the murder by your presence and by waiting for them in the car and that you also intentionally helped them by making the car available as a means of escape from the scene of the murder.
The prosecution said your culpability was aggravated by the fact that you went from the Commercial Lounge to the Salt Nightclub in response to the telephone call advising you that Hung Van had been bashed and that you took David Nguyen with you. It is implicit from the prosecution’s claim that you went to the Salt Nightclub, not merely to provide comfort and assistance to your injured friend, Hung Van, but in the expectation that some further violence would occur. It was said on your behalf that that conduct did not constitute an aggravating circumstance but was an act of gross misjudgement on your part. If such conduct is to be viewed as an aggravating circumstance it does not in my view make an appreciable difference to the sentence which I should impose.
Other aggravating circumstances were said to be that you picked Hung Van up in Chapel Street and transported him together with David Nguyen to the scene of the murder; that you made your car available by returning to the scene of the murder with Hung Van and David Nguyen on a second occasion and that you made the billiard cue in your car available as a weapon and that it was used by one or other of them in the commission of the murder. The claim that these are circumstances of aggravation brings into stark relief the issue that was ever present during the course of the trial that much of your conduct upon which the prosecution relied supported the hypothesis that you were in fact acting in concert with David Nguyen and Hung Van.
I am bound to take into account all of the circumstances relevant to your commission of the offence. The principle was relied upon by Mr Brustman that circumstances of aggravation may not be taken into account if those circumstances would have warranted a conviction for a more serious offence.[9] It would not be consistent with fairness and justice that I sentence you on the basis of conduct with which you have not been charged or convicted.[10] It is unnecessary to decide whether this principle would be contravened by the prosecution’s reliance upon conduct which suggests concert on your part with the principals in the first degree. The prosecution disavowed any intent to rely upon these circumstances as establishing that you acted in concert. These events were relied upon as providing the setting in which your acts of aiding and abetting took place. The Crown submitted that they were circumstances of aggravation because the inference was open that you anticipated that there may be violence and conducted yourself knowing that there was a real prospect that that might occur. Put in that confined way your counsel did not take issue with the prosecution’s characterisation of those circumstances.
[9]R v De Simoni (1981) 147 CLR 383 per Gibbs CJ at 389; Savvas v R (1995) 183 CLR 1 per Deane, Dawson, Toohey, Gaudron and McHugh JJ at [9]; R v Nicholas (2000) 1 VR 356; [2000] VSCA 49 at [166].
[10]Newman & TurnbullvR [1997] 1 VR 146 per Winneke P at 150 with whom Hayne JA and Crockett AJA agreed; R v El-Kotob (2002) 4 VR 546; [2002] VSCA 109.
You had consumed a quantity of alcohol on this evening although it is not suggested that such consumption impaired your judgment, but your Counsel urged upon me that your conduct was explained by a sense of misplaced loyalty to your friends.
(ii) Personal circumstances
You are 27 years of age having been born on 20 November 1978 and you were 23 at the time of the commission of this offence. You were born in South Vietnam in a placed called Tingian. You are the second youngest of a family of 10 children. You have five older sisters, two of whom still reside in Vietnam and three of whom have all settled in Australia. You have three older brothers and one younger brother, all of whom have also settled in Australia.
You attended primary school in Vietnam to the age of 11 when you and your parents emigrated to Australia following the path of two of your elder sisters who had already settled here. On your journey from Vietnam you and your family were picked up in the middle of the ocean by a Singaporean boat and were taken to a refugee camp in Singapore where you remained for some five months before arriving in Australia in 1989. Upon arrival here your father and mother commenced sewing clothes in their home. They were both industrious and eventually went into the business of manufacturing Asian biscuits. They then embarked upon the manufacture of hammocks and have now done so for in excess of 10 years. Your parents are separated. Your father has returned to Vietnam. He remains in partnership with your mother and with the assistance of your brother still conducts the business. They have now shifted the manufacture of the hammocks from Australia to Vietnam and it is for that reason that your father presently resides there. Your parents remain in relatively good health and despite their separation you remain a close family.
After your arrival in Australia you attended at Keilor Downs Primary School and then moved to Altona where you completed one further year of primary school. Initially your English was not good. You then went to Altona Bayside Secondary College until Year 10 leaving school at the age of 15. You then spent a year helping your father and mother in the manufacture of hammocks. You then travelled to the Robinvale district where you spent some time grape picking and upon your return visited Vietnam for some four months on holidays. When you returned to Australia you were employed in the Aussie Lamb Company in Brooklyn as a computer operator. You remained in that job for some three years. You then took a position at a bakery in Williamstown for some four months and then took up employment in a factory where you were constructing pallets. You had been in that employment for about a year when you were arrested in relation to the offence which brings you before this Court. During the time in which you lived in Melbourne you always resided at home and you were living there with your parents at the time of this offence.
Dr Senadipathy has provided the Court with a psychiatric report[11] in which the doctor has noted that since you were about 13 years of age you would consume 10 to 12 cans of beer on three days a week when drinking with friends in hotels and nightclubs. You told Dr Senadipathy that you take methamphetamines at nightclubs and that you smoked heroin between the ages of 15 and 18. Mr Brustman informed me that you have never been addicted to drugs or alcohol.
[11]Exhibit B on plea.
You have shown a keen interest in sport engaging in a wide range of sporting activities. You modified motor cars as a hobby and enjoyed the company of friends with whom you would go out at night. Although you had a girlfriend at the time of your arrest that relationship has ceased as a consequence of the fact that you have been on remand for the last three years.
Like a number of your co-offenders you maintained your false account in the course of your psychiatric assessment for the purposes of this plea. You continued to deny that you were in any way involved in the death of James Huynh. In your account to Dr Senadipathy you sought to further distance yourself from any involvement in the death of the deceased. It has not been suggested on your behalf that you have demonstrated any remorse for your conduct although you did say in the course of your interview that you felt sorry for the victims as well as yourself and the others in custody. You offered to plead guilty to being an accessory after the fact before the commencement of this trial and I should take that into account as reflecting some recognition of your willingness to accept responsibility for at least part of your conduct.
In sentencing you I recognise that there was no history of ill-feeling between you and any of the victims or their families. You were not in any way involved in the altercations which arose in the weeks preceding this event.
Unlike most of your co-offenders you do not come to this Court as a person of good character. You have a number of prior convictions. Your first conviction for aggravated burglary and causing serious injury recklessly was at the Children’s Court at Broadmeadows in December 1995. You were placed on a nine month Youth Supervision Order. You were then 17 years of age. In the following year you were placed on a bond by the Children’s Court for possession of heroin. You were convicted in January 1999 of failing to answer bail and possession and use of heroin. These matters were said to relate to events that occurred three years earlier. You were fined $400. The last of your convictions is, as your counsel rightly acknowledged, a matter which is of some significance to the present sentencing process. You were convicted on 5 February 2001 of causing serious injury recklessly, damaging property with intent and making a threat to kill. You were initially sentenced to three months’ imprisonment and on appeal to the County Court on 1 March 2001 you were re-sentenced to a total effective sentence of six months’ imprisonment with that sentence being wholly suspended for two years. You were thus undergoing a suspended sentence at the time that you committed the present offence. It appears that the conviction arose out of a fight in a restaurant. According to your counsel you are unable to provide any detail as to what your role was in that fight and though you were advised by a duty lawyer to plead guilty to the charge of threatening to kill you deny that you made any threat. It was suggested by your counsel that you may now be required to serve the period of your suspended sentence. It would appear by operation of the Sentencing Act 1991 that proceedings for breach of that order would now be out of time.[12] I put to one side the consequences of your breach of that order.
[12]Section 31.
Your prior criminality should be taken into account in my assessment of your general character and as a factor which may diminish the benefit of other mitigating factors. They do not lead me to conclude however that you have no prospects of rehabilitation.
I take into account that your behaviour has been impeccable throughout the lengthy trial process. It is inevitable that you have come to recognise the seriousness of your conduct despite your reticence during your psychiatric assessment to acknowledge your responsibility.
Reliance was also placed on your conduct in prison since you have been on remand. Evidence was called from Ms Hooker, the officer in charge of the Youth Offenders’ Program at Port Philip Prison who had already testified before me in the course of Cuong Lam’s plea as to the content of the Young Offenders’ Program.[13] You became involved in the Youth Offenders’ Program at the first opportunity. You have successfully completed a number of programs dealing with issues as wide ranging as drug education, offending behaviour and consequential thinking, music therapy, conflict resolution, legal studies and radio and communication. Because of your level of participation and enthusiasm for the programs you were utilised as a type of mentor to encourage and guide other young Asians in the unit to participate in the programs. You played an important liaison role between Correctional officers and some of your fellow prisoners. Because you were enthusiastic and articulate you were often requested to address visitors about the benefits of the program. Ms Hooker testified that the Correctional staff have a very high regard for you because of your attitude and behaviour within the unit. You were housed in a single cell which is reserved for young offenders whose behaviour is exemplary and are performing useful work within the unit. You were described by Ms Hooker as a model prisoner who was held in very high regard as a senior member of the unit. You encouraged your co-offenders to become involved in the program.
[13]Exhibit A.
Mr Boyd, the general manager of a community radio station who has acted as a volunteer within the prison program came to know you during the course of conducting a radio and communications skill program. He was impressed with your keenness and your courtesy. You participated in the “hard yard’s” program and have shown enthusiasm to enter into some small business venture upon your release. Mr Boyd described you as a motivator and one who sets and attains goals.
Thanh Nha Nguyen (David)
(i) Circumstances of offending
On the day prior to the event of 8 July 2002 you had a fight with your girlfriend over matters that went to the heart of your relationship with her. On the evening of 7 July 2002 you chose the company of some of your male friends even though it was her birthday. You went to a birthday party at a restaurant in Footscray. Your counsel informed me that you and 11 other men consumed six bottles of Remy Martin brandy mixed with coke whilst at the restaurant. By the time you left you were substantially affected by alcohol. You then went to the Commercial Lounge. You consumed more liquor at the nightclub and vomited on two occasions. Shortly before 3.00 a.m. on the morning of 8 July 2002 you then accompanied Johnny Nguyen in his car to the Salt Nightclub.
In the pre-sentence report dated 28 October 2005 filed on your behalf, Ms Lechner, a clinical and forensic psychologist, notes that you acknowledge your role in the above offence. You told her that you were extremely intoxicated at the time of the offence estimating that you had consumed close to a bottle of spirits in the hours leading up to the assault. You had also taken “half an E” which seemed to reduce the ill effects of the alcohol but what other effects the tablet had on you, you are unable to say. It appears that recreational drugs are not an uncommon part of the club scene at Salt, Sirens and the Odeon where your counsel informed me that young Vietnamese Australians tended to congregate.
You claimed to have little recall of the events stating that you were driven to Chapel Street and got out of the car and were faced with chaos all around you with groups of people seeming to fight. You recalled being involved in a fight. Whilst your memory of subsequent events is poor you recall being shocked by the number of people in the area when you arrived, that you saw weapons and that you were somehow involved in a fight. Ms Lechner noted in her report that you had deficits in the areas of social reasoning and judgment. They are skills that would be further compromised by alcohol abuse and a high level of emotional arousal. Your alcohol and drug affected state may in part explain your offending, but it was not advanced by Mr Gucciardo as a mitigating factor.
By their verdict the jury were satisfied that you joined in an agreement or understanding with Cuong Lam and Hung Van to kill or at least inflict really serious injury to James Huynh. In the company of Hung Van and Johnny Nguyen you travelled to the intersection of Chapel Street and Alexandra Avenue alighting at the bus stop adjacent to the deceased James Huynh. You were armed with a sword and in the company of Hung Van inflicted multiple injuries to him which were the cause of his death. Whilst you were still in the company of Hung Van you were driven away from the murder scene by Johnny Nguyen. You went to a flat in West Footscray where in the presence of the other principals in the first degree and other persons, you made certain admissions as to what you had done.
Mr Gucciardo has urged me on your behalf not to sentence you on the basis that there was any pre-meditation by you of the crime which you committed. He referred to the evidence which showed that you were still in a state of high agitation and were shouting when you were at the Footscray flat after the crime had been committed. At that time you said “I didn’t mean to cut him” and thought that the victim may well die as a result of the injuries that were inflicted on him.
The sister of James Huynh, Linh Huynh, had a daughter, Jayde who was born on 8 July three years to the day after James died. Her daughter’s birthday Linh Huynh says will always bring family heartache and pain. Linh speaks sadly of the fact that James was denied the opportunity to marry and have children. She speaks of the loss to the family of so much happiness, love, strength, dreams and aspirations. The family is left with a trauma from which they can never escape. John Huynh in his victim impact statement speaks of the guilt, hurt and pain which he experiences every day in reliving the death of his brother and two cousins. Tuan Huynh, the uncle of James, Viet and Nam explained how pain and grief has engulfed the entire family and how the extended family was called upon to assist and support the parents of the deceased during their suffering. One cousin describes the sadness that would overcome their parents each time they saw their nephews who were much the same age as their sons. Other cousins also made victim impact statements in which they speak of the family’s great loss and the graphic images of the circumstances of their death which they have to endure.
Cuong Lam and Hung Van
The nature and the gravity of the offences that you have committed calls for manifest denunciation of your conduct. You took the lives of three young men, denying them any future and depriving their families of the love and joy which they brought them. Your conduct in preparing for the attack upon the Huynhs in Daly Street, chasing James and his brother and cousins, the frenzied attack upon James Huynh at the bus stop and the chase of Viet and Nam Huynh to the river was out of all proportion to the initial aggressive conduct of the deceased and John Huynh. You both had every opportunity to withdraw from the scene. You did not need to remain outside the nightclub. You chose to arm yourselves with lethal weapons. You did not need to give chase after the deceased turn and fled from Daly Street. By then James Huynh was already seriously injured. You, Cuong Lam ran to the scene of James Huynh’s murder armed with a sword and at the very least remained present acting in concert with those who brutally assaulted him causing horrific injuries. He was no threat to you as he lay on the ground. You, Hung Van were driven to the bus stop where you alighted and with others savagely assaulted James Huynh whilst he was on the ground. He raised his hands in what appeared to one witness to be a plea for mercy but none was shown to him. Whilst armed you both gave chase to Viet, Nam and John Huynh who were so fearful of your intentions and your capacity to harm them that they took what they perceived to be their only avenue of escape. You instilled such a sense of fear into Viet and Nam Huynh that when you gave chase, though they could not swim, they chose to jump into the river to avoid facing your violence. You Hung Van, returned with David Nguyen and subjected James Huynh to a further ferocious attack in which David Nguyen inflicted further mortal wounds whilst you kicked the deceased a number of times.
When counsel for Hung Van came to make his plea on sentence he submitted that I should treat you both as having the same level of culpability and that your roles were much the same. I agree that is how I should view your roles. Though there are some differences in your conduct they do not, in my view, warrant treating either of you as more culpable. The likelihood is high that the jury convicted you upon the basis that you were acting in concert from the time that you armed yourselves in Daly Street and throughout the ensuing period when the three murders were committed.
At the commencement of the plea made on your behalf counsel for Hung Van rightly observed that the principles of condemnation, punishment and general and specific deterrence must take a primary place in fixing your sentence. I should not fix a minimum term which is lower in each of your cases than is necessary to give effect to these principles.
In relation to the murder of Viet and Nam Huynh the prosecution has submitted that for the purpose of sentencing no distinction should be drawn between a murder where an offender has actually inflicted the injuries which caused death and where an offender by his conduct creates in the mind of the victim a well founded and reasonable apprehension of danger such as to make it a natural consequence that the victim would take steps to escape which lead to their death. By the jury’s verdict you were found to possess either an intent to kill or an intent to cause really serious injury to Viet and Nam Huynh at the time that you chased them and they jumped into the river to escape from you. Your moral culpability is not to be reduced by the fact that your intention as to the mode of their death was not precisely fulfilled. That is to say it is immaterial that Viet and Nam’s death was caused in a way which you did not precisely foresee.[19]
[19]Royall v R (1991) 172 CLR 378 per Mason CJ at [43], per Deane and Dawson JJ at [31] and per McHugh J at [73]. In Royall’s case the applicant had ferociously attacked the deceased with the requisite intent. In those circumstances the offender’s moral culpability was not diminished by reason that death occurred as a consequence of the victim’s attempt to escape from the offender.
There may be circumstances where, for the purposes of sentencing, the conduct of an offender who causes the deceased’s death by the infliction of injuries will not necessarily to be equated with the conduct of an offender who inflicts no injury upon the deceased but causes the deceased to take steps to escape which lead to the victim’s death. Your counsel did not suggest this was such a case. In the present circumstances no different head sentence between Count 1, and Counts 2 and 3 is called for. You had already subjected James Huynh to a ferocious attack. Your intent was clear. Viet and Nam Huynh knew the fate which awaited them if they did not flee.
It was submitted on Cuong Lam’s behalf that as the murder of Viet and Nam Huynh arose out of the same act on your part and occurred at the same time there should not be a great cumulation of the sentences on Counts 2 and 3. That is to say it was submitted that I should largely make them concurrent with each other. Reference was made by Mr Grant to the sentences imposed in a number of cases of notorious offenders who were convicted of multiple murders.[20] Senior counsel for the Crown, in responding submitted that when a Court deals with what for brevity may be called multiple murders a life sentence may be called for without the fixing of a non-parole period. This will be so because the sentencing judge must give sufficient emphasis to the sanctity of each human life.
[20]Fox, Richard and Freiberg, Arie (1999) Sentencing: state and federal law in Victoria (2nd Edition), Oxford University Press, South Melbourne at 12.207.
The Crown submitted that were it not for your youth which is a factor which warrants clemency, a life sentence with no minimum term would have been appropriate as you have been convicted of killing a number of victims in horrendous circumstances.[21] Because of your age the prosecution submitted that it would not be appropriate that I impose a life sentence but it was submitted that I should impose a term of imprisonment which reflects the very serious nature of your criminal conduct and the fact that you have been found guilty of three murders. In making orders for cumulation or concurrence I have imposed an effective sentence which I consider represents the proper period of incarceration looking at the totality of your criminal behaviour.[22]
[21]R v Coulston [1997] 2 VR 446; R v Lowe [1997] 2 VR 465.
[22]Pearce v R (1998) 194 CLR 610; Mill v R (1988) 166 CLR 59 at 62-63; R v Kalache (2000) 111 A Crim R 152 per Sully J at 184.
In fixing the appropriate sentences I have in each of your cases taken into account the considerations set out in the Sentencing Act 1991. I have had regard to the objective gravity of your offences, your personal circumstances and your prospects for rehabilitation. The sentences which I impose must manifest the Court’s denunciation of this type of conduct and must make adequate allowance for both general and specific deterrence. Because of your sound prospects for rehabilitation and your relative youth I have fixed a minimum sentence which is lower than would otherwise have been appropriate.
Pursuant to s.18(4) of the Act, I declare the period of 1254 days as already having been served by each of you under the sentences I impose and I so certify and direct that this declaration and its details be entered into the Court record. Cuong Quoc Lam and Hung Tu Van, for the murder of James Huynh on 8 July 2002 I sentence each of you to 18 years of imprisonment. For the murder of Viet Huynh on 8 July 2002 I sentence each of you to 18 years imprisonment. For the murder of Nam Huynh I sentence each of you to 18 years imprisonment. I make the following orders for cumulation on Count 1 being the base sentence: - 6 years of the sentence imposed on Count 2 and 6 years of the sentence imposed on Count 3 should be served cumulatively upon each other and upon Count 1. The total sentence is therefore for each of you 30 years imprisonment. A period of 23 years is to be served by each of you before you become eligible for parole.
David Nguyen
You have been convicted of the murder of James Huynh. With the use of a sword you inflicted the most horrific injuries upon a young defenceless man who was lying on the ground already seriously injured. In fixing the appropriate sentence I have had regard to the objective gravity of your offence, your personal circumstances and your prospects for rehabilitation. The sentence which I impose must reflect this Court’s denunciation of your brutal conduct. It must deter others who are minded to resort to such violence.
It was the Crown case that you acted in concert with Cuong Lam and Hung Van. The Crown has submitted that although there are different aggravating circumstances in each of your cases, there is no distinction of substance to be made between your levels of culpability. The Crown submitted that because of your criminal history I should take the view that you do not have the same prospects for rehabilitation as Cuong Lam and Hung Van.
Pursuant to s 18(4) of the Act I declare the period of 1,236 days as already having been served under the sentence I impose and I so certify and direct that this declaration and its detail be entered into the Court record. Thanh Nha Nguyen, for the murder of James Huynh I sentence you to 18 and a half years of imprisonment and I direct that you serve a minimum of 15 years imprisonment before becoming eligible for parole.
Johnny Nguyen
You have been convicted of the murder of James Huynh. Your conduct constituted a most serious form of aiding and abetting the commission of the crime of murder. Although you did not inflict any injuries upon the deceased the sentence which I impose must demonstrate that those who assist or encourage others to commit such a crime share the responsibility for its commission. The sentence which I impose must manifest the sanctity of human life.
There is no principle which necessarily calls for an aider and abettor to receive a lesser sentence than a principal in the first degree, but the Crown recognises that your conduct as an aider and abettor should attract a lesser sentence than the principals in the first degree because of the circumstances of the case; not because your liability is accessorial.[23] Both your counsel and the Crown submitted that I should treat your conduct as significantly less serious than that of any of the principal offenders but that your conduct was more culpable than that of any of the other co-offenders who were convicted as aiders and abettors.
[23]R v Guthrie & Watt [2003] VSC 323 at [31].
Pursuant to s 18(4) of the Act I declare the period of 1,240 days as already having been served under the sentence I impose and I so certify and direct that this declaration and its detail be entered into the Court record. Linh Van Nguyen, for the murder of James Huynh I sentence you to 16 years of imprisonment and I direct that you serve a minimum of 12 and a half years imprisonment before becoming eligible for parole.
Long Tran and Hong Bui
You have both been convicted of the murder of James Huynh. Both of you aided and abetted the commission of that crime. Although you did not inflict any injuries upon the deceased, you assisted and encouraged the principal offenders to commit murder and by law you are responsible for its commission. In imposing the sentence that I do I am bound to reflect the Court’s denunciation of such conduct and emphasise the sanctity of human life.
The prosecution does not disagree with the submission made on your behalves that I should view your roles in the commission of this crime as far lesser than that of the principals in the first degree or Johnny Nguyen though he was presented as an aider and abettor. It was submitted on your behalves that I should impose an appropriate head sentence with a longer period of parole achieved by the fixing of a lower minimum term than might otherwise be the case.[24]
[24]R v Houston & Stanhope I (1982) 8 A Crim R 392 per Starke J at 399 with whom Crockett and O’Bryan JJ agreed at 402; R v JTAV [1999] VSCA 75 (5 May 1999) per Charles JA at [20], per Chernov JA at [25-26}; R v PP (2003) 142 A Crim R 369 per Callaway JA at [6-17]; Bugmy v The Queen (1990) 169 CLR 525 per Mason CJ and McHugh J at 531-532; R v Nguyen [2003] VSC 62 per Warren J at [30].
I have taken into account the matters which were emphasised as mitigatory and which also demonstrated that your prospects of rehabilitation are sound and warrant a lower minimum term than should otherwise be imposed. Your youth, the absence of any criminal record, the strong level of family support and your conduct since you have been on remand strongly point to your prospects for rehabilitation.
Pursuant to s 18(4) of the Act I declare the period of 940 days as already having been served under the sentence I impose on Long Thanh Tran and the period of 760 days as already having been served under the sentence I impose on Hong Bui and I so certify and direct that these declarations and their details be entered into the Court record. Long Thanh Tran and Hong Bui for the murder of James Huynh on 8 July 2002 I sentence each of you to 15 years imprisonment and I direct that each of you serve a minimum of 11 years imprisonment before becoming eligible for parole.
Hoang Tran
You have been found guilty of the murder of James Huynh. You aided and abetted the principals in the first degree in the commission of this crime. The encouragement of others to commit the crime of murder is a serious crime. In fixing the appropriate sentence I have taken into account the considerations set out in the Sentencing Act 1991 and I have had regard to both the objective gravity of your offence and your personal circumstances. The sentence which I impose upon you must manifest the Court’s denunciation of your conduct and make adequate allowance for both general and special deterrence.
The Crown accepts the submission made by Mr Rochford on your behalf that your conduct should be viewed as less culpable than that of any of your co-offenders. That is to say your conduct warrants the imposition of a lower head and minimum sentence than your co-offenders.
Pursuant to s 18(4) of the Act I declare the period of 760 days as already having been served under the sentence I impose and I so certify and direct that this declaration and its detail be entered into the Court record. Hoang Tran, for the murder of James Huynh I sentence you to 14 and a half years of imprisonment and I direct that you serve a minimum of 10 years imprisonment before becoming eligible for parole.
Orders
In each of your cases pursuant to s 464ZF(1) Crimes Act 1958 I order that the forensic sample and any related material and information obtained pursuant to the informed consent given by each of you be retained for placement on the database.
I am satisfied that in all the circumstances the making of the Order is justified having regard to the seriousness of the circumstances of the offending, the fact that the Order is not opposed and the fact that the granting of the Order is in the public interest.
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