R v Nguyen
[2013] NSWSC 197
•15 March 2013
Supreme Court
New South Wales
Medium Neutral Citation: R v Nguyen [2013] NSWSC 197 Hearing dates: 1/03/2013; 8/03/2013 Decision date: 15 March 2013 Before: Fullerton J Decision: On the charge of manslaughter, sentenced to a term of imprisonment of 9 years and 6 months, comprised of a non-parole period of 7 years and a balance of term of 2 years and 6 months.
On the charge of wounding with intent to inflict grievous bodily harm, sentenced to a term of imprisonment of 6 years and 3 months, comprised of a non-parole period of 4 years and 9 months and a balance of term of 1 year and 6 months.
Sentences for each offence backdated to commence on 8 September 2010.
First eligible for release to parole on 7 September 2017.
Catchwords: CRIMINAL LAW - sentence - manslaughter - excessive self-defence - wounding with intent to inflict grievous bodily harm - victim was police officer -- objective seriousness Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Firearms Act 1996Cases Cited: Attorney-General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, Re [2002] NSWCCA 518; 56 NSWLR 146; 137 A Crim R 180
Iskov v R [2011] NSWCCA 241
Josefski v R [2010] NSWCCA 41
Muldrock v R [2011] HCA 39; 244 CLR 120
R v De Simoni [1981] HCA 31; 147 CLR 383; 5 A Crim R 329
R v Penisini [2004] NSWCCA 339Category: Sentence Parties: The Crown
Philip Nguyen (Offender)Representation: Counsel:
M Tedeschi QC (Crown)
L Ledinh (Solicitor) (Offender)
Solicitors:
Director of Public Prosecutions (Crown)
Ledinh Lawyers (Offender)
File Number(s): 2010/300562
REMARKS ON SENTENCE
HER HONOUR: Upon his re-arraignment on 19 July 2012 the offender entered a plea of guilty to the manslaughter of William Crews on 8 September 2010 contrary to s 18(1)(b) of the Crimes Act 1900 and a further count of wounding Mr Crews with intent to inflict grievous bodily harm on the same date contrary to s 33(1)(a) of the Crimes Act ("the wounding offence"). At the time of his death William Crews was a serving member of the New South Wales Police Service holding the rank of Constable. He was aged 26.
Manslaughter attracts a maximum sentence of 25 years imprisonment. The wounding offence also attracts a maximum of 25 years imprisonment to which a standard non-parole period of 7 years applies.
The Crown accepted the pleas of guilty in satisfaction of a range of charges, including shooting at Constable Crews with intent to murder contrary to s 29 of the Crimes Act, upon which the offender was committed to stand trial in December 2011 and upon which he was arraigned in March 2012 when the matter was listed for trial.
On his re-arraignment it was also agreed that two of the offences upon which he was committed for trial would be included on a Form 1 to be taken into account on the sentence for the manslaughter charge in accordance with the procedure in s 33(2) of the Crimes (Sentencing Procedure) Act 1999. Those offences were the unauthorised possession of a prohibited firearm, contrary to s 7(1) of the Firearms Act 1996, and possession of 3.21 grams of methylamphetamine for the purposes of supply, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985. The firearm the subject of the possession charge was used by the offender in committing the offences to which he pleaded guilty. Although the drug offence was included on the Form 1, for reasons which I will detail later, I do not propose to take it into account in imposing sentence.
On 9 October 2012 the offender applied to reverse his pleas of guilty. That application was refused.
He appeared before me for sentence on 1 and 8 March 2013.
In light of the fact that the pleas of guilty were entered after the matter had been fixed for trial I propose to allow a discount of 10 per cent on the sentence to be imposed on each count. The reason for the timing of the pleas is irrelevant to an assessment of their utilitarian value as is the fact that the offender applied unsuccessfully to reverse the pleas of guilty.
The basis upon which the pleas of guilty were accepted by the Crown as reflecting the offender's culpability for both the death and wounding of Constable Crews was incorporated in an agreed statement of facts.
The facts for sentencing purposes
In September 2010 the offender lived at a unit complex at Bankstown. He also had use of a garage numbered 8 in the basement car park to the complex.
On 8 September 2010 Detective Senior Constable Roberts, attached to the Middle Eastern Organised Crime Squad, received information from a registered source as a consequence of which a search warrant was applied for in relation to the offender's residential unit and Garage 8. The warrant was issued later that day. Detective Senior Constable Roberts was the officer-in-charge of the execution of the warrant. Prior to the deployment of the police officers who were to assist in the execution of the warrant, Detective Senior Constable Roberts conducted a briefing which was attended by those officers, including Constable Crews.
Of the eight police officers deployed to execute the warrant, three were in police uniform. The remaining officers, including Constable Crews and Detective Senior Constable Roberts, were in civilian clothes. Some or all of the officers were armed with police issue weapons. Constable Crews was armed, as was Detective Senior Constable Roberts. The operation was, however, deemed to be of low risk. It was not anticipated that there would be firearms in the offender's premises or at his disposal.
Police arrived at the unit complex and effected entry at approximately 9pm. Access was obtained with the assistance of a resident who directed police to Garage 8. The basement area was accessed through a closed door from inside the unit complex.
Detective Senior Constable Roberts led the officers into the basement followed by Constable Crews. Detective Senior Constable Roberts was carrying a battering ram in the event that it was necessary to force entry to the garage. Constable Crews was carrying a folder containing the warrant and related documents. Another police officer gave directions to Garage 1 in the mistaken belief it was Garage 8.
Earlier that day the offender was party to discussions in the garage area of the unit complex about a drug deal in which Tan Chung, an associate of the offender, was involved with three other men. These men also discussed an existing drug debt where Chung owed money to one of the men after that man had supplied him with drugs the previous day. The men left the garage shortly before police arrived. The offender and Chung remained. They were inside Garage 1, the door to which was open when police arrived. Three other men were inside Garage 8 behind a closed mesh door.
Constable Crews and Detective Senior Constable Roberts walked towards Garage 1, mistakenly believing it was Garage 8. Other officers, also in civilian clothes, were close behind. Uniformed police were further behind, including the officer tasked with recording the execution of the search warrant. No officer had a firearm drawn. Police (including Constable Crews) signalled their approach to Garage 1 by announcing they were police a number of times.
Detective Senior Constable Roberts then heard Constable Crews, who was the only police officer in front of him, yell out, "Gun, he has a gun". He then saw the offender walking out of Garage 1 in a crouched position holding a pistol which he was pointing in various directions, including in the direction of police. The offender then started moving towards the police. Police were unaware that Chung was hiding in Garage 1 or that there were other men in Garage 8.
Constable Crews and Detective Senior Constable Roberts again identified themselves as police and directed the offender to put down the gun.
What followed was a sequence of five shots fired from three guns in the space of seconds. First, the offender discharged his pistol (later confirmed to be a Bryco Arms pistol loaded with .22 gauge ammunition) at Constable Crews which penetrated the soft tissue of his left upper arm. Constable Crews then discharged three shots in quick succession - effectively in the process of drawing his weapon after he had been shot by the offender. Ballistics later confirmed the shots fired by Constable Crews were discharged in random angulations to the ground. Detective Senior Constable Roberts, who had retreated with other police rearwards behind a side wall, then drew his weapon which he discharged at the offender. Ballistics later confirmed that the single shot from his weapon struck Constable Crews in the neck. This was a fatal wound. Detective Senior Constable Roberts told investigating police that the shot was not a carefully aimed shot, however, at the time he believed that his firearm was pointed at the offender who he was attempting to hit. All three weapons were later confirmed to be in working order.
Immediately after Detective Senior Constable Roberts fired the shot he saw Constable Crews on the ground bleeding from the head. Constable Crews was later transferred to hospital by ambulance. Death was pronounced at 12.15am the following morning.
While Detective Senior Constable Roberts' attention was focused on the welfare of Constable Crews as he was lying prone in the open garage area, the other police officers maintained their position behind cover in the garage. Detective Senior Constable Roberts then saw the offender trying to use his firearm which appeared to be jammed, after which he picked up the battering ram from where it had been dropped and simulated its use as a gun by pointing it towards the officers, including Detective Senior Constable Roberts.
The offender (and Chung) then retreated into the garage and eventually made their way to the offender's unit via a rear door. Police were not aware that the offender had left the basement and, believing he was still in the garage, made attempts to encourage him to surrender his firearm and present himself. When it was ultimately established that the offender was not in the basement, first aid was rendered to Constable Crews and the basement area was secured.
Both in the garage after the shots were fired, on his way to the unit and once inside the unit the offender asserted repeatedly to Chung that the men were, what he describes as, "fake police", and that he believed they thought he had money. Chung said he told the offender that the men were in fact police. The offender told his wife that someone was trying to break into the garage, and that he shot the man and he thought he was going to die. It is unclear whether he was aware that his shot had wounded the officer in the arm and unaware that the officer was shot a second time by someone else. Although this is an available inference it is irrelevant for sentencing purposes. It does, however, lend support to the Crown's submission that the atmosphere in the basement was infused with considerable tension and confusion, and that the exchange of shots were fired in very quick succession with Constable Crews falling to the ground injured in the process.
The offender emptied the twelve bullets from the pistol and placed the magazine into the drain of the bathroom and placed the pistol on the veranda. At some stage he barricaded himself and the other occupants of the unit inside by placing furniture against the door. Police negotiators contacted him and negotiated his surrender. He was arrested and conveyed to Bankstown Police Station together with Chung and the other occupants of Garage 8 who were also arrested.
The three men inside Garage 8 told police that they were playing cards. However, upon a search of that garage police found the following:
(i) a large white coloured plastic storage tub containing a number of empty resealable plastic bags, a brown case containing 2 small bags with white crystal inside, a number of tablets, a set of scales and a white spoon;
(ii) 3.21 grams of N,N-dimethylamphetamine in a resealable bag; and
(iii) an ashtray with a glass pipe and razor blade.
Garage 1 was also searched where empty resealable bags, a glass pipe containing a white substance and a packet of bicarbonate of soda were located.
There is no evidence before me to further identify the "white crystal" or the two tablets in the white tub in Garage 8 or the "white substance" on the pipe in Garage 1. The owners of both garages were spoken to by police and disclaimed any knowledge of the items seized.
The facts are silent as to the result of any charges laid against the three men in Garage 8 or Chung consequent upon their arrest, or any connection between the three men in the garage and the offender. The 3.21 grams of methylamphetamine found in that garage is however the subject of the supply count included on the Form 1. In the course of sentencing submissions I was informed by Mr Ledinh, the offender's solicitor, that he was instructed that Chung had brought that drug to the garage for shared personal use and that they were in joint possession of the drug for that reason. This account is in direct conflict with the signed Form 1 where the offender admitted to having the same drugs in his possession for supply, an offence he had at one time invited me to take into account when imposing sentence on the manslaughter count. The Crown elected not to call any evidence to meet his claim that he had the drugs for personal use and not for supply. In the result, in the exercise of the discretion afforded me under s 33 of the Crimes (Sentencing Procedure) Act, I do not propose to take the supply charge into account as one of the two offences on the Form 1. It will be a matter for the prosecuting authorities as to whether the offence is to be prosecuted as a supply in other proceedings.
I do note that the results of blood and urine testing of the offender after his arrest confirmed relatively minor concentrations of morphine, amphetamine and methylamphetamine which, in light of what the expert pharmacologist was asked to assume was the offender's habitual use of drugs, would not have had any relevant impact on his perception at the time of the shooting incident.
The offender agreed to participate in a recorded interview after his arrest in the course of which he said that he and Chung went to the garage that evening to smoke some heroin. The offender said that at the time of the incident Chung was organising a drug deal involving eight ounces of cocaine. In the agreed facts it is said that the offender falsely claimed to police that he was not involved in the transaction from which I infer that the offender accepts that he was in fact involved. The extent of his involvement was not the subject of any further elaboration.
In the interview the offender told police that whilst he was inside the garage he heard a lot of people shouting and screaming and saw two men standing at the entrance to the front of the garage who he believed were there to rob him. Police later confirmed by enquiries independent of the offender and his family that approximately two weeks prior to the shooting he was the victim of an attempted robbery by two masked men armed with bats whilst he was in Garage 8. On that occasion the offender shouted at the men (apparently to ward them off) and they fled, leaving behind a mobile phone which police located during the search of the premises on 8 September 2010 and were able to trace. The offender reported to his wife that the robbers had cricket bats. He told police the robbers had knives. It is not in dispute that the offender obtained the pistol after this incident to protect himself in the event of another robbery. There is no evidence as to whether the robbers were looking for drugs or money or both.
Although the offender also agreed that he was aware from a previous search warrant executed on his premises that police officers engaged in operations of that kind do not always wear police uniform, there is no evidence as to the circumstances in which the earlier warrant was applied for and executed, or when that occurred relative to the shooting.
The basis upon which the plea of guilty to manslaughter was accepted
For the purposes of the sentence proceedings it was the agreed position that the plea of guilty to manslaughter involves the offender accepting that he caused the death of Constable Crews despite the single shot he fired penetrating Constable Crews' upper arm and the fatal shot being fired by another police officer.
The issue of causation was conceded by his acceptance of the proposition that the discharge of the pistol (which caused the wound the subject of the wounding charge) substantially contributed to the exchange of gunfire in the course of which Constable Crews was fatally shot by a fellow officer, and in circumstances where it was reasonably foreseeable that someone in the vicinity of an exchange of gun fire may be fatally (even if inadvertently) shot.
The plea of guilty to manslaughter also entails the Crown accepting the reasonable possibility that the offender genuinely believed that it was necessary to shoot at the person who proved to be Constable Crews in order to defend himself (based as it was on his mistaken belief that the officer was someone who was intent on robbing him and someone who might have posed a serious risk to his safety). It also entails acceptance by the offender that a reasonable person in his position would not have considered that it was necessary to shoot that person in defence of himself or his property.
The plea of guilty to the charge of wounding with intent to inflict grievous bodily harm entails acceptance of the fact that the offender shot at Constable Crews intending to cause him grievous bodily harm and that he wounded him in the process. Given the offender's concession that his response to the presence of men he believed might rob or harm him was not reasonable, self-defence was not available as a defence to that charge.
Objective seriousness
As assessment of the objective seriousness of both offences is an essential part of the sentencing exercise. That assessment is undertaken referable to the nature of the offending (taking into account any relevant statutory aggravating or mitigating factors) and not circumstances personal to the offender. In this case, because of the basis upon which the pleas of guilty have been accepted, there is a need to carefully isolate and characterise the facts critical to an assessment of the objective seriousness of both offences.
Objective seriousness is also to be assessed according to the established principles of sentencing, including the fact that an offender is not to be punished for any conduct that is not the subject of a discrete charge, even where the agreed facts might reveal other criminal offending - even admitted criminal offending - as they do in this case. The Crown submissions on the issue of objective seriousness, which are relied upon in part to support the ultimate submission that both offences are in the worst category, overlooked that fundamental principle in a number of critical respects.
The Crown relied upon historical facts which are said to reflect the offender's profile as a drug dealer (including his implied admission that he was involved in Chung's negotiating a drug deal on the day of the shooting) to ground the further finding that he armed himself after the attempted robbery to facilitate his drug dealing activities. It was submitted that the seriousness of his offending should be assessed against these facts. Quite apart from whether this submission is open having regard to the principles in R v De Simoni [1981] HCA 31; 147 CLR 383; 5 A Crim R 329, it is without the necessary evidential support in the agreed statement of facts.
The first matter upon which the Crown relied in advancing that submission involved the fact that a warrant was executed on the offender's premises at some earlier date, which the Crown submitted, both in writing and orally, was in the course of a "drug raid" because it was suspected that the offender was "engaged in drug dealing". There was no direct evidence of either of these related facts or any facts upon which I could draw that inference beyond reasonable doubt. As I have already noted, aside from the offender accepting when interviewed by police after his arrest that he was aware from the execution of the earlier warrant that police do not always wear uniforms, there was nothing in the agreed facts as to the circumstances in which that warrant issued, or when, or whether any items of any kind were seized under the warrant.
The further matter relied upon by the Crown as bearing upon objective seriousness focused on the offender's response to the earlier attempted robbery. The Crown submitted that by arming himself with a pistol to protect himself and his property from those who might want to steal from him, he signified his resolve to continue to deal in drugs instead of taking the opportunity to desist from drug dealing. The Crown also submitted that the time during which he maintained this stance aggravated the objective seriousness of the offences that involved the use of the pistol on 8 September 2010. Again, the Crown's submission founders on the failure to establish that the earlier attempted robbery was in fact drug related. There was nothing in the facts to indicate whether the robbers were looking for money or drugs or both, and nothing to indicate whether the offender was dealing in drugs at that time. While he may have been dealing drugs and motivated to arm himself with a pistol to facilitate his drug dealing, the agreed facts do not permit the conclusion to be drawn that he was in fact dealing drugs to the necessary criminal standard. Self evidently, the fact that the offender supplied drugs in May 2005, as reflected in his criminal record, is an insufficient basis upon which to conclude he was in fact dealing drugs at the time of the robbery in 2010. On the other hand, the agreed facts do permit me to find that the offender was involved, in some unspecified way, in Chung's negotiation of a drug deal, either at the time of the shooting or some short time before. It is not clear whether the men in Garage 8 were party to those negotiations. No cocaine or money was located.
In summary, what the agreed facts do establish as proved facts for sentencing purposes is that the offender reacted to the attempted robbery by arming himself with a loaded pistol with which to defend himself should he be confronted by robbers again. Some time later, soon after he had involved himself with others who were negotiating a drug deal, he armed himself because he believed he was going to be robbed or physically harmed, and in the process he fired the pistol at an unarmed man who was approaching him in the basement without taking any steps to ascertain whether that man (or anyone with him) in fact posed any danger to him, or whether the claim by those men that they were police officers was legitimate. In the result, his actions wounded Constable Crews and caused his death.
The Crown acknowledges that the offender is not to be sentenced for his possession of the pistol either on the day of the shooting or for a period of some weeks prior to that day. Neither does his possession of the pistol render either of the offences for which he is to be sentenced more objectively serious. Rather, I was invited by the Crown and the offender to take the offence of possession of the pistol, the remaining offence on the Form 1, into account in imposing the sentence for manslaughter by giving greater weight both to the need for personal deterrence and to the community's entitlement to exact retribution, and in that way to increase the sentence that would otherwise be appropriate for that offence (see Attorney-General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, Re [2002] NSWCCA 518; 56 NSWLR 146; 137 A Crim R 180 at [39]-[42]).
The fact that the pistol was used in the commission of both offences is, however, a statutory aggravating factor under s 21A(2)(c) of the Crimes (Sentencing Procedure) Act, and a factor which, in my view, should be afforded significant weight in the sentencing exercise. Irrespective of the offender's fear of being robbed and perhaps physically harmed in the process, he had no right to arm himself with a loaded pistol and no right to shoot it with the intention of causing his target grievous bodily harm. The risk of serious injury, or even death, entailed by that kind of conduct is obvious and will be denounced in the sentences to be imposed. I am satisfied that taking the use of the pistol into account as an aggravating factor does not entail any breach of the prohibition against double counting in s 21A(4) of the Crimes (Sentencing Procedure) Act. The use of the pistol is not an element of either of the offences.
The Crown placed very considerable weight on the statutory aggravating factor under s 21A(2)(a) as reflecting the objective seriousness of both offences. It provides as follows:
The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
(a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, council law enforcement officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim's occupation or voluntary work...
That section is said to be invoked in this case because Constable Crews was wounded and killed while exercising his public duties as a police officer and that the offence(s) occurred because of his occupation as a police officer, in the sense that he was shot while approaching the offender in his capacity as a police officer executing a search warrant. I am satisfied that each of those preconditions is met. Subject only to the question whether, on a proper construction of the provision, it is necessary for the Crown to prove that the offender was either aware that Constable Crews was a police officer in the execution of his duties when he shot at him (or whether it is sufficient that it was reasonably foreseeable that the men approaching him might have been police officers), the statutory aggravating factor is available to be considered in the sentencing exercise.
Because the Crown has accepted that it is reasonably possible that the offender did not know Constable Crews was a police officer, and that the plea of guilty to manslaughter was accepted on that basis, if it is necessary for the Crown to prove that the offender knew (or believed) that the men were police, the Crown cannot at the same time ask that it be treated as an aggravating factor under s 21A(2)(a) of the Crimes (Sentencing Procedure) Act.
The Crown submitted that each of the factors in s 21A(2) describe a state of affairs, none of which are expressed to require any knowledge on the part of the offender. As a matter of statutory construction that is so. The Crown submitted that it follows that it is sufficient that the objective facts in ss 21A(2)(a)-(p) are proved by evidence in the ordinary way to attract consideration in sentencing proceedings as aggravating factors and that the offender's state of knowledge or awareness is irrelevant. The Crown submitted that were an offender to kill a police officer in an undercover operation believing the police officer to be a drug dealer who had crossed him in some way, s 21A(2)(a) would be enlivened and that the same analysis applies here. I do not find that analogy persuasive. It simply poses the same question in a different context.
The Crown referred me to R v Penisini [2004] NSWCCA 339 in support of the proposition that knowledge is not relevant, where at [20] Spigelman CJ said:
The courts will, and do, give great weight to the protection of members of the police force by reason of the fact that in the course of their duties, they are called upon to place themselves in danger and do so for the benefit of the community at large. That is why the courts have always accepted that the fact that the victim was a police officer is a substantially aggravating factor...
His Honour's observations resound with sound public policy and illustrate the connection between sentencing principles and the public interest but that case is not determinative of the question with which I am concerned since it was clear in that case that the offenders knew the victim was a police officer.
I am assisted, however, by a further authority the Crown expressly drew to my attention when the issue as to what an offender must know or be aware of was resolved by the Court of Criminal Appeal in connection with other statutory aggravating factors under s 21A(2). In Josefski v R [2010] NSWCCA 41, the offender pleaded guilty to an offence of aggravated break, enter and steal and another charge of robbery in company. On the first charge, the sentencing judge took into account as an aggravating factor the degree of emotional harm to the adult female victim who was inside the house that was broken into and the fact that the offence was committed in the presence of a child under the age of 18 years. It was submitted on appeal that this approach was not open to the sentencing judge because it had not been proved that the accused knew either of these factors.
Howie J (with whom James and Davies JJ agreed) observed at [25] that nothing in s 21A has changed the common law rule that the court is only to have regard to the consequences of an offence that were intended or could reasonably have been foreseen. However, his Honour went on to hold that because the offences were committed by breaking into a normal dwelling house, it was reasonably foreseeable that there would be children inside and that there would be substantial emotional harm suffered by any adult inside, and on that basis the features of aggravation were properly available to be considered by the sentencing judge.
As I see it, accepting as I must that the offender might actually have believed that the police officers were robbers (indeed, even accepting that he actually held that belief), I am also entitled to find that he could equally have reasonably foreseen that men approaching him in the basement car park might not be robbers. This conclusion is open since it appears to have been conceded by him in the statement of agreed facts that he heard the men announce that they were police but because he thought they were robbers pretending to be police, he obtained his pistol and fired it at one of them without ascertaining whether they were in fact police.
In the result, I propose to take into account s 21A(2)(a) as an aggravating factor in the assessment of objective seriousness, not because the offender knew or believed that Constable Crews was a police officer, but because he ought reasonably to have foreseen the possibility that he might be. Whilst the feature of aggravation put in this way is of slightly less weight than were he to have been actually aware that the man he shot at was a police officer, it does aggravate the objective seriousness of both offences to a significant degree.
Furthermore, since s 21A(1)(c) expressly preserves the operation of the common law and the well established body of principles that have been developed by sentencing courts over time. As Spigelman CJ observed in Penisini, it has been long recognised that police are in a class of vulnerable people by reason of the duties they perform for the community's benefit. For that reason, irrespective of the particular operation of s 21A(2)(a), the fact that Constable Crews was killed in the execution of his duty is a matter I am entitled to have regard to as a matter relevant to the assessment of the objective seriousness of both offences.
I also take into account the fact that the offences were committed without regard to public safety (s 21A(2)(i) of the Crimes (Sentencing Procedure) Act). Quite apart from the fact that there were other people actually in the basement area when the offender shot at Constable Crews, that area was an integral part of the unit block to which residents and their guests had a right of access.
I note the offender's prior conviction in 2006 for the supply of a commercial quantity of prohibited drugs and the sentence of 3 years imprisonment imposed at that time. The fact that he has a prior record for drug dealing does not aggravate the offending for which he is to be sentenced, in the sense of increasing the objective seriousness of either offence. It does however inform where, within the boundary set by the objective circumstances of each offence, the sentences should ultimately lie. In this case, they must provide for a measure of specific deterrence given that the shooting occurred in the context of the offender involving himself in a drug milieu where negotiations were in progress for a commercial drug supply, even if the extent of his involvement is not known. His prior record also deprives him of the mitigating potential of a finding of good character.
In conclusion, I accept that the offender was unaware that Constable Crews was a police officer when he shot him and that, although he did not fire the shot that killed Constable Crews, he caused his death. I also accept that when he discharged the pistol that caused his death and the wounding he had a genuine belief (entirely misplaced) that he needed to defend himself against a perceived threat of harm. Notwithstanding those findings, the circumstances in which the offences were committed, including the aggravating factors to which I have referred, render both offences objectively serious. I am not persuaded, however, that either offence is in the worst category. It would have been otherwise were the offender to have shot at Constable Crews intending to inflict grievous bodily harm knowing or believing he was a police officer, or were he with that same state of awareness to have pleaded guilty to manslaughter on the basis that Constable Crews was killed by his unlawful and dangerous act in shooting at him.
To the extent that it is necessary to appoint the wounding charge within a range of offending because of the standard non-parole period that attaches to that offence, I am satisfied that it falls within the mid range of offending. Although the offender did not rely in submissions upon his mistaken belief that the police were robbers to ameliorate the seriousness of the wounding charge, it seems to me that some allowance should be made in the assessment of objective seriousness for that offence for the Crown's concession that his belief that the men were robbers was genuine (or that the Crown could not prove that it was not). Neither evidence nor submissions were directed to the nature of the wound and the extent of medical attention that would have been necessary to treat it. However, viewed from the limited perspective of the wound being to the inner aspect of Constable Crews' arm and measuring two millimetres in diameter, I am unable to conclude that the wound was serious. What justifies a finding of mid range offending is that a gun was used accompanied by an intention of causing grievous bodily harm, aggravated by the statutory factors to which I have referred.
The offender's subjective circumstances
The offender was interviewed by an officer of the Probation and Parole Service on 1 March 2013 and provided the following information.
He was born in Vietnam in 1955 and is one of thirteen children. He was aged 55 at the time of the shooting. He was educated to the equivalent level of the Higher School Certificate and spent about three years as a conscript in the army from the age of 17. He left Vietnam in 1977. After spending six months in a refugee camp he arrived in Australia in 1978. He worked as a factory process worker and in clothing manufacturing to provide financially for his family who remained in Vietnam. His parents and some family members have since migrated to Australia. He has had no contact with his parents or his siblings since his remand.
He was married in 1982 and has three children aged between 15 and 26. He was divorced in 1996. In March 2001, following his wife's death, he moved to Sydney to assume the full-time care of his children. His daughter described him as a decent father but when he began using drugs to cope with his wife's death his relationship with his children broke down. His daughter has recently resumed contact with him but his other two children have had no contact with him for at least three years.
He married again in 2001. His second wife migrated to Australia from Vietnam in 2003. They have separated since his remand.
He commenced using heroin and crystal methamphetamine following the death of his former wife. His drug use escalated to daily use. He was directed to address his drug use during periods of supervision with the Probation and Parole Service after his release to parole in January 2008 but failed to do so. At the time of the shooting, the offender reported that he was using approximately half a gram of crystal methamphetamine and a "small amount" of heroin per week. He reported that he does not believe his drug use is problematic. Given his resistance to submit to supervision on his release to parole, his lack of insight into his drug use and his apparent determination to continue to involve himself in some way in a drug milieu, I am unable to find that he has favourable prospects of rehabilitation.
Although the offender suffered a stroke in November 2012 there is nothing to indicate that his time in custody will be more onerous for that reason, or because of his age. He is currently taking prescribed medication.
Remorse
The offender acknowledged the seriousness of the offences and accepted responsibility for the death of Constable Crews. He also acknowledged the impact of his conduct on the officer's family and the community. He gave evidence on sentence where he expressed his remorse which I accept as genuine. He extended his apologies to the family and to the police force. Although his expressions of remorse are delivered late, this is likely because of the understandable difficulties he has faced in accepting his legal liability for the death of Constable Crews. I propose to take his remorse into account in his favour on sentence although its weight as a mitigating factor is, to a large extent, overwhelmed by the collective weight of the aggravating features to which I have referred.
Special circumstances
Mr Ledinh submitted that I should find special circumstances on the basis of the offender's age and what he submitted were his good prospects of rehabilitation. Having regard to my findings and the absence of any sufficiently special circumstances, I decline to do so.
Accumulation or concurrency
The Crown submitted that in the unusual circumstances of this case the sentences to be imposed on the individual counts should be partially accumulated. It is well established that questions of concurrency or accumulation are discretionary, subject to the application of principles of totality. That principled approach requires the imposition of an appropriate sentence in respect of each offence before consideration is given to whether the sentence for one offence can comprehend and reflect the criminality of the other. If it can, then an order for concurrency is usually made. If not then the sentences should be accumulated (in whole or in part) in order to reflect the overall criminality. There is, however, no general or inflexible rule that dictates the sentencing outcome.
In this case the Crown submitted that despite the fact that the one causative act is common to both offences (namely the offender firing a single shot from the pistol), and that both offences were committed in the course of a single episode of the same criminal conduct, in consequence of which Constable Crews was wounded twice (one wound being fatal), the markedly different consequences of that conduct (namely a death and a wounding) warrants a partial accumulation of the sentences. The Crown referred me to Iskov v R [2011] NSWCCA 241 as authority for the proposition that partial accumulation is appropriate even where manslaughter is charged with related offences. In that case the Court had occasion to review partially accumulated sentences imposed at first instance for three offences where the victim was the estranged wife of the offender. One of the offences was manslaughter by criminal negligence and the remaining two offences were offences of violence, the malicious infliction of grievous bodily harm and aggravated kidnapping. Despite the offences being committed against the same victim in the space of a few hours, which of itself warranted a considerable degree of concurrency, the sentencing judge considered it appropriate to partially accumulate the sentences because the list of injuries inflicted in the course of the malicious infliction of serious harm were not comprehended in either of the other two offences. The same applied to the kidnapping. The fact that the victim's death resulted from the offender's failure to drive safely whilst she was a prisoner in the car was also not comprehended by the offender's other criminal contact. That case is readily distinguishable from this case.
After having given careful consideration to the principled approach in the authorities, I do not propose to order that the sentences be partially accumulated. I have come to that conclusion for the following reason. For sentencing purposes, I am invited to accept that the offender caused the death of the Constable Crews when the shot fired by Detective Senior Constable Roberts penetrated his neck and that, literally seconds before, the offender had inflicted a gunshot wound. Although the consequences of the offender's criminal act are different (in that the bullet he fired caused a wounding while the bullet he caused to be fired caused a death), the same criminal conduct is common to both offences. Detective Senior Constable Roberts has no criminal liability for firing the fatal shot. In these circumstances I am satisfied that the total criminality constituted by his offending can be comprehended by the sentence for the manslaughter, which I accept is the more serious offence by reason of the loss of life.
Although there are numerous cases where excessive self-defence manslaughter has attracted sentences of imprisonment (with no less than five cases in the last 18 months) those cases, and the many that have preceded them, do nothing more than establish a range of sentences referable to the maximum penalty of 25 years imprisonment. There is no hierarchy of seriousness in cases of involuntary manslaughter; each sentence is imposed in recognition of the fact that where a life has been feloniously taken the offending must be denounced by a sentence that is appropriate in all the circumstances of the case. The wide range of sentences imposed where a person has killed in the genuine belief of a need to act defensively, are typical of the width of the range of sentences within any category of manslaughter. The degree of variation in the objective facts in the reported cases, the variety of weapons and mechanisms employed from which death resulted and the interplay of necessarily different subjective circumstances has meant that neither of the cases to which I was referred by the Crown or the sentencing statistics are of any guidance. The unusual, even unique, factual circumstances in this case, have presented me with a challenging sentencing exercise.
Victim impact statements
Before I impose sentence it is important that I pause and acknowledge the central part Constable William Crews played in the life of each of his family members, in understandably different ways, as a son, brother and uncle, and I venture to observe as a friend and mentor. As his family is aware, I have not received their statements for the purpose of increasing the sentence to be imposed on this offender but to allow them the opportunity to participate in the sentence proceedings by publicly expressing their grief and making me aware of its ongoing impact on each of their lives. I accept without qualification that they feel their loss on a daily basis, and that there has been no lessening of their grief over the years since Constable Crews' death. I take this opportunity to extend my personal sympathies to them.
Sentence
Taking into account the purposes for which sentence is imposed as reflected in s 3A of the Crimes (Sentencing Procedure) Act I impose the following sentences:
Philip Nguyen, on the charge of manslaughter, after taking into account the offence on the Form 1 and after allowing a discount for the plea of guilty, I impose a term of imprisonment of 9 years and 6 months, comprised of a non-parole period of 7 years and a balance of term of 2 years and 6 months.
On the charge of wounding with intent to inflict grievous bodily harm, and after having regard to the standard non-parole period of 7 years which operates as a guidepost to sentence in the way provided for in Muldrock v R [2011] HCA 39; 244 CLR 120, and after allowing a discount for the plea of guilty, I impose a term of imprisonment of 6 years and 3 months, comprised of a non-parole period of 4 years and 9 months and a balance of term of 1 year and 6 months.
I direct that the sentences for each offence be backdated to commence on 8 September 2010. Accordingly, you will be first eligible for release to parole on 7 September 2017.
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Decision last updated: 15 March 2013
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