R v Nguyen & Curham
[2024] VSC 616
•4 October 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0079; S ECR 2023 0080
Between:
| THE KING | |
| -and- | |
| DUC NGUYEN | First Accused |
| -and- | |
| SCARLETT CURHAM | Second Accused |
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JUDGE: | Beale J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 July & 4 October 2024 |
DATE OF SENTENCE: | 4 October 2024 |
CASE MAY BE CITED AS: | R v Nguyen & Curham |
MEDIUM NEUTRAL CITATION: | [2024] VSC 616 |
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CRIMINAL LAW — Sentence — Murder & manslaughter — Co-offenders were in an intimate relationship and were involved in fatal shooting of victim in a car in a public street — Curham had previously been in an intimate relationship with victim — Curham texted victim multiple times on day in question and lured victim to car on false pretences — Whilst victim sat in front passenger seat, and Curham sat in drivers seat, Nguyen, whilst sitting in rear passengers seat, shot victim once in upper right back — At his trial, Nguyen admitted shooting victim fatally but denied murderous intention — Nguyen found guilty of murder after trial — Curham pleaded guilty to manslaughter at early stage — Nguyen, aged 43 at time of murder, had extensive priors and poor prospects of rehabilitation — Nguyen suffers from schizophrenia — Verdins 5 applicable to Nguyen — Curham, aged 21 at time of manslaughter, had one prior and good prospects of rehabilitation — Curham suffers from post-traumatic stress disorder — Verdins 1, 4 & 5 applicable to Curham — Nguyen sentenced to 29 years’ imprisonment (NPP 21 years) for murder — Curham sentenced to 10 years’ imprisonment (NPP 6 years) for manslaughter — R v Verdins (2007) 16 VR 269; [2007] VSCA.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K Churchill with Mr J Manning | Office of Public Prosecutions |
| For the Accused, Duc Nguyen | Ms A Beech with Mr D Brown | Hofman Carroll Criminal Law |
| For the Accused, Scarlett Curham | Mr G Steward | Galbally & O’Bryan Lawyers |
HIS HONOUR:
CIRCUMSTANCES OF OFFENCE
Duc Nguyen and Scarlett Curham, the two of you are criminally responsible for the death of Brian Laidlaw on 12 July 2022 in Napier Street, Fitzroy. You, Nguyen, are guilty of murder, which carries a maximum penalty of life imprisonment. You, Curham, are guilty of manslaughter, which carries a maximum penalty of 25 years’ imprisonment. Nguyen, you shot Laidlaw fatally in the right upper back as he sat in the front passenger seat of an Audi Q3 which you borrowed for your joint criminal enterprise. You, Curham, were sitting in the driver seat at the time and had been texting Laidlaw throughout the day, luring him to the Audi on false pretences (namely, that you intended to purchase drugs from him). You, Curham, wanted Laidlaw shot because of a grievance you had against him, of which I will say more later. Nguyen was your intimate partner as at 12 July 2022 and he was happy to oblige you.
The joint criminal enterprise to shoot Brian Laidlaw involved a number of steps in addition to the texting by which Laidlaw was lured to the Audi. First, you, Nguyen, arranged to borrow the Audi from a friend. Second, after the two of you collected the car in South Yarra, you drove to Fitzroy where you stole some number plates from another car. Third, you affixed the stolen number plates to the Audi. Fourth, you drove to Napier Street for the rendezvous with Laidlaw.
After the shooting, you drove off, leaving Mr Laidlaw for dead. He had got out of the car, staggered across the street and collapsed. A short time later, you stopped and removed the stolen number plates from the Audi. You drove to a friend’s house in North Balwyn where you cleaned the Audi and left various items, including the gun, ammunition and clothing you wore during the shooting. You contacted the owner of the Audi and arranged to return the car. You met up with the owner and her partner at another location in North Balwyn. They gave you a lift into town so that you, Nguyen, could retrieve your car.
Victim impact statements
Mr Laidlaw was your primary victim but not the only victim. Mr Laidlaw’s father, Robert Laidlaw and his sister Elaine Woodcock, made victim impact statements. The family is devastated by his death. Robert Laidlaw said the news was horrifying for him and his wife. As well as having to deal with their grief, he says the whole family was hounded by the media and were confronted by disturbing photos on TV and online. He laments that his son’s four children — their grandchildren — are now left without a father. And Robert Laidlaw now suffers from panic attacks that he says overcome him.
Elaine Woodcock, Laidlaw’s sister, says she was the member of the family who was closest to Brian, and his death caused her to fall into a deep depression and start drinking heavily again (after eight years of sobriety). Her downward, grief-stricken spiral impacted her relationship with her husband and her children to the point that she had to move out of her home and in with her parents. She too talks about the relentless media attention.
It is clear that your actions have deeply and disastrously affected a number of lives.
Nguyen
Nguyen, you were charged with murder and ran your trial. When arraigned in front of the jury panel, you pleaded not guilty to murder but guilty to manslaughter. You admitted that you shot Brian Laidlaw but claimed you did not do so with an intention to kill or to cause really serious injury.
On 25 March 2024, your jury found you guilty of the murder of Brian Laidlaw. The standard sentence for murder is 25 years’ imprisonment.[1] If a head sentence of 20 years or more is imposed, any non-parole term must be at least 70% of the head sentence, unless that is not in the interests of justice.[2]
Disputed facts
[1]Crimes Act 1958 s 3(2)(b).
[2]Sentencing Act 1991 s 11A(4).
At your plea hearing, your counsel, Nguyen, disputed the following matters:
·That prior to Laidlaw getting in the Audi, there was a plan to shoot (as opposed to a plan to merely confront )Laidlaw;
·That you shot Laidlaw intending to kill.
I am satisfied beyond reasonable doubt that prior to Laidlaw getting in the car the plan was to shoot him, not merely to confront him with the firearm. You made a number of voice recordings during the day of your conversations with Curham. It is sufficient to refer to the following extracts from the transcripts of those recordings which confirm that the plan was to shoot Laidlaw.
First, Exhibit 13 at pp 6–7:
NGUYEN: Just ask him straight-out, not ah, mm, ah, mm, oh, oh, oh. Just, "Is anyone gunna be there with me? I wanna fuck." Simple. Fuck, you make life hard on me, man. I'm stressing out because I don't know how many people's gunna be there. Yeah, I have a gun but I've only got six shots in it, babe. It's a 22 and from here to this car it'd miss.
Second, Exhibit 14 at p 4:
NGUYEN: Yeah, yeah. I'm happy just to pop him just to fuckin' make you .......... feel a bit better about what happened, you know what I mean? Like, fuckin', bit of revenge.
Third, Exhibit 15 at pp 4–5:
NGUYEN: Well, that’s why I'm gunna pop him one, then, be happy about it. Lure him in.
Fourth, Exhibit 15 at p5:
NGUYEN: Just think about - picture in your head what it's gunna look like with him on the ground.
Your counsel submitted, both to the jury and to me at your plea hearing, that there was no plan or at least no plan to shoot Laidlaw. She submitted that your conversations with Curham were nothing more than chaotic, drug-affected ramblings and that your talk of shooting Laidlaw was mere bravado. Whilst the two of you may have been drug affected, and your conversations were sometimes bizarre and reminiscent of a Tarantino film, it is clear from the recorded conversations that you planned with Curham to shoot Laidlaw.
But I am not satisfied beyond reasonable doubt that you shot to kill. You only fired one shot into his upper right back. You could have shot him in the head. The prosecution did not press for a finding that you shot with the intention to kill. Consistent with the jury’s verdict, I find that when you shot Laidlaw, you did so intending to cause him really serious injury.
Objective seriousness of offending
I am obliged by the High Court to assess the objective seriousness of your offending, Nguyen.[3] It was a planned shooting. Whilst, on the evidence, the planning did not extend beyond the day in question,[4] you took a number of steps on that day in furtherance of the joint criminal enterprise, as summarised above. Your offence was committed in company. You were a prohibited person in possession of a firearm. You shot Laidlaw in the relative privacy of a car, but that car was parked in a public street. Laidlaw staggered across the street before falling to the ground in public view. I consider it to be an upper mid-range example of the offence of murder. I do not put it in the upper range because, on the evidence, the duration of the planning was comparatively limited and you only fired one shot into Laidlaw’s upper right back.
[3]R v Kilik (2016) 259 CLR 256, [19].
[4]Conceded by prosecution (Plea hearing transcript, 3 July 2024, p42).
Curham
You, Curham, were also charged with murder, but you negotiated a plea deal before trial. On 24 January 2024, you pleaded guilty to manslaughter. As mentioned, manslaughter carries a maximum penalty of 25 years’ imprisonment.
The summary of prosecution opening for your plea hearing says this:
39. The Crown case is that Scarlet CURHAM entered into an agreement with Duc Tan NGUYEN to shoot the deceased and pursuant to that agreement, NGUYEN shot the deceased and caused his death. CURHAM intended that NGUYEN would shoot the deceased - an act that was both unlawful and dangerous.
40. It is therefore alleged CURHAM was complicit in the offence by virtue of ss 323(1)(c) and 324 of the Crimes Act 1958.
Evidence at plea hearing
Curham, you gave evidence at your plea hearing. That came about because I made it clear that I was not prepared to find that you had been sexually assaulted by Laidlaw based on hearsay — namely, what you told others.
I did not find you to be an impressive witness. In examination in chief, you claimed that Laidlaw raped you repeatedly. Indeed, you said every time he had sex with you it was non-consensual and yet you agreed you were in a relationship with him for six or seven months.[5] You never reported the rapes to the police. You never told your mother he had raped you until after the shooting.
[5]Plea hearing transcript, 3 July 2024 [63].
You said that the relationship ended in about November and December 2018 and that you then had no contact with him thereafter, save for two occasions: first, when you retrieved pornographic photos of yourself from him in about early 2019 [6] and, second, on the day you and Nguyen killed him, that is over three years later. I found the latter aspect hard to believe. As the prosecutor put to you in cross-examination, there is nothing in the text messages between you and Laidlaw on 12 July 2022 that suggests you had not been in touch for such a long period, not a single message along the lines of “Well, I haven’t heard from you for a long time.”
[6]Ibid [64].
Under cross-examination you denied that you were angry at Laidlaw on 12 July 2022,[7] or that you wanted revenge,[8] or that you encouraged Nguyen to shoot him.[9] Your answers struck me as self-serving rather than candid.
[7]Ibid [68].
[8]Ibid [68], [72].
[9]Ibid [70].
I am satisfied that you had a grievance with Laidlaw. I am also satisfied on the balance of probabilities that at one time he was in possession of pornographic photos of you, that you did not want him to have and which you eventually retrieved. I am satisfied of that, because your mother provided corroboration for the existence of those photos. But I am not satisfied to the Briginshaw[10] standard that he raped you.
Objective seriousness of offending
[10]Briginshaw v Briginshaw (1938) 60 CLR 336.
As regards the objective seriousness of your offending, Curham, offences of manslaughter vary enormously. For example, a manslaughter might be the result of one spontaneous drunken punch in response to provocation. I consider yours to be an upper mid-range example of the offence of manslaughter. The offending was planned. It involved the use of a weapon. The weapon was a loaded firearm. The plan was to shoot Laidlaw. It was committed in company. Your role in luring Laidlaw to the car was critical. Even though you did not pull the trigger, you were a major player in the joint criminal enterprise. Laidlaw was shot in a car parked in public street. At the time of your offence you were on an undertaking to the Magistrates’ Court to be of good behaviour.
CIRCUMSTANCES OF OFFENDERS
I turn now from the circumstances of the offence to the personal circumstances of each of you, beginning with you, Nguyen.
Nguyen
Personal history
In 1978, your parents migrated to Australia from Vietnam. Your father was a factory foreman and your mother a seamstress.
On 21 February 1979, you were born in Adelaide, making you 43 at the time of the murder and 45 now.
You were the youngest child in a sibship of three brothers (one of whom died in 2001).
In 1980, your parents separated. Your mother re-partnered shortly after the separation and you developed a positive relationship with your stepfather. Your contact with your biological father was sporadic.
You commenced primary school in South Australia and completed it in Victoria.
You attended Westall High School for your secondary education.
In your mid-teens, whilst still at school, you began using illicit drugs. It seems that drug addiction has been an intractable problem for you ever since.
You left school in Year 9.
Since leaving school, you have had several occupations including as a screen printer, mechanic, sandblaster and forklift driver.
In March 1998, when you were 19, you received your first adult sentence involving actual incarceration, a total effective sentence of 21 months’ detention in a Youth Training Centre for multiple offences, including two armed robberies. I will refer to your criminal history in some detail later. For now, suffice to say that between the ages of 19 and 40 that you were sentenced to incarceration on 11 separate occasions, the two longest sentences being 8 years with a minimum of 6, and 5 years with a minimum of 3 years.[11]
[11](1) 26.3.98 – Total effective sentence (TES) of 21 months YTC; (2) 16.4.98 – 3 months YTC; (3) 5.9.21 – TES of 5 years, Non Parole Period (NPP) of 3 years; (4) 16.6.2005 – TES of 3 months imprisonment; (5) 19.10.2006 – TES of 27 months imprisonment, NPP of 15 months; (6) 1.8.2007 – 3 months imprisonment; (7) 27.10.2010 – TES of 8 years imprisonment, NPP of 6 years; (8) 17.5.2018 – TES of 88 days imprisonment; (9) 10.8.2018 – TES of 513 days imprisonment, NPP 9 months; (10) 29.11.2018 – TES of 3 months imprisonment; (11) 28.10.2019 – 14 days imprisonment
In 2001, your older brother died from myocarditis.
In 2004, you were first admitted to a psychiatric unit after you reported auditory hallucinations to a drug treatment service.
In May 2006, you were arrested by the armed robbery squad and subjected to violent physical abuse by members of that squad. The abuse was caught on a covert recording device as the armed robbery squad was under investigation at that time.
In 2006, you were diagnosed with paranoid schizophrenia whilst imprisoned.
In 2008, you were admitted to Thomas Embling Hospital, the first of several such admissions.
On 14 October 2017, you were the victim of a serious assault where you were stabbed multiple times to your chest, abdomen and hands. You experience chronic nerve pain in your hands, despite multiple corrective surgeries.
In 2018, you were injured in a motor vehicle accident and also suffer chronic nerve pain from that experience.
In October 2019, whilst in prison, you suffered an episode of acute catatonia and were transferred to the St Augustine’s Unit at St Vincent’s Hospital for two days.
On 30 November 2019, you were released from prison. Your mental health deteriorated.
On 3 January 2020, whilst mentally impaired, you attacked your stepfather, believing he was possessed by aliens. You were arrested and remanded in custody.
On 9 June 2021, having been found not guilty of the alleged offences against your stepfather by reason of mental impairment, you were released from custody on a non-custodial supervision order for a nominal period of 10 years and admitted to the Doveton Community Care Unit (‘Doveton CCU’).
Between 16 June 2021 and 30 June 2022, whilst you were living at the Doveton CCU, you were regularly blood tested and the results were mostly negative for illicit drugs.[12]
[12]Save for five occasions (20.10.21, 4.1.22, 5.2.22, 20.3.22, 10.4.22).
In September 2021, you commenced an intimate relationship with Curham.
On 18 March 2022, your stepfather died and you relapsed.
You told the psychiatrist, Dr Pandurangi [29], to whose report I will refer in some detail shortly, that you acquired the gun about one month prior to the murder. You told him you acquired it for your protection.
On 30 June or 1 July 2022, you were discharged from Doveton CCU after Curham overdosed in your room and drug paraphernalia was found there. The two of you lived with your mother for a time until she asked you both to leave.[13]
[13]Report of forensic psychiatrist Dr Pandurangi, dated 10 June 2024, [28].
On 12 July 2022, you murdered Laidlaw. According to Dr Pandurangi, earlier that day you spoke to your case manager and indicated to him that you were with Curham, that you would return home later that afternoon. You were noted to be “polite during interaction … reported [your] mood as good … denie[d] risks of harm to self and others”.[14]
[14]Ibid [18(x)].
On 13 July 2022, you were arrested and charged. You have been in custody ever since.
Medical reports
Your counsel tendered several expert reports about you. The current report is by forensic psychiatrist, Dr Pandurangi, dated 10 June 2024. He drew on the historical psychiatric reports of Dr Leon Turnbull dated 12 March 2020, Dr Victoria Jackson dated 18 June 2020 and Dr Roth Trisno dated 28 December 2022, as well as Justice Health and Monash Health medical records. Consequently it is only necessary to refer to Dr Pandurangi’s report in these sentencing reasons.
I highlight the following matters in his report.
Having reviewed your medical history and interviewed you, he opined that you suffer from schizophrenia and that your long-standing psychotic symptoms “appear to be fairly resistant to treatment”.
He opined that it “is unlikely that drugs are causally related to your schizophrenia”[15] but that your use of illicit drugs especially methamphetamines “likely leads to relapse[s] of your mental illness.”[16]
[15]Ibid [40].
[16]Ibid [41].
He opined that you also “probably” have a personality disorder with prominent negative affectivity and disinhibition traits.[17]
[17]Report of forensic psychiatrist Dr Pandurangi, dated 10 June 2024 [39].
Dr Pandurangi writes “There is no indication that his offending was driven by underlying psychotic beliefs”[18] and “no indication to suggest that he would have not understood the wrongfulness of his conduct”.
[18]Ibid [48].
Dr Pandurangi opined that your “underlying mental disorders would render prison more onerous compared to others who do not suffer that condition”[19] and that “you are unlikely to receive the psychosocial support for [your] mental health conditions, in a prison setting, which is likely to impact [your] rehabilitation”.[20] I note that Dr Pandurangi did not say that your mental illness will or may be exacerbated by your incarceration.
[19]Ibid [50].
[20]Ibid.
Dr Pandurangi also noted that in prison you are on antipsychotic and antidepressant medication and that you “regularly see a psychiatric nurse and occasionally a psychiatric registrar who monitor [your] mental health and treatment”.[21]
[21]Ibid [7].
Dr Pandurangi writes that “Given the history of chronic and possibly treatment resistant mental illness and limited opportunities for psychosocial rehabilitation in prison, I am guarded about the prospect of his full recovery”.[22]
[22]Ibid [54].
I also note that you told Dr Pandurangi lies in you interview with him, namely that you and Curham were only planning to threaten Laidlaw with the gun, not shoot him. Dr Pandurangi writes “[h]e decides to take his firearm to intimidate the victim and describes being compelled to fire at the victim when he is presumably urged by Ms Curham.”[23] I reject this self-serving account.
Criminal history
[23]Ibid [47].
Let me return to your criminal history, which runs to 24 pages. It includes many convictions for offences involving violence and weapons and illicit drugs. The sentences imposed on you over the years have included adjourned undertakings, community-based orders, community corrections orders, drug treatment orders, youth detention orders, suspended sentences of imprisonment and multiple sentences of imprisonment. Your criminal history sheet begins in August 1996 at Dandenong Magistrates’ Court when you were 17. You were placed on a one-year undertaking for offences including armed robbery and possession of a pistol or imitation pistol and causing injury intentionally or recklessly. It was a condition of your undertaking that you attend a drug and alcohol rehabilitation program.
In March 1998, when you were 19, the County Court sentenced you to a total effective sentence of 21 months’ detention in a Youth Training Centre for offences including two counts of armed robbery.
In September 2001, the Country Court sentenced you to a total-effective sentence of five years with a non-parole period of three years for four counts of armed robbery.
In December 2008, the County Court sentenced you to a total-effective sentence of 10 years and 6 months with a non-parole period of 8 years and 6 months for offences which included armed robbery, prohibited person in possession of a firearm, intentionally causing injury and reckless conduct endangering serious injury. On a successful appeal to the Supreme Court in October 2010, the total-effective sentence was reduced to eight years’ imprisonment with a non-parole period of six years. According to the Supreme Court judgment,[24] you had entered a jewellery store with a sawn-off shotgun whilst your female co-offender, who was the getaway driver, waited outside. You demanded money from the store owner. You fired two shots inside the shop, one shattering a mirror, another damaging the shop counter. You struck the shop owner in the face with the butt of the gun. You stole $20,000 worth of jewellery, then left in the rented getaway car which you had fitted with false number plates.
[24]Nguyen v R [2010] VSCA 284.
In September 2017, the Dandenong Magistrates’ Court sentenced you to two years’ imprisonment to be served by way of a drug treatment order in respect of multiple offences which included being a prohibited person in possession of a firearm and possessing a controlled weapon without excuse. You were also convicted and discharged on a charge of possessing cartridge ammunition without a licence. You breached your drug treatment order and in May 2018 you were ordered to serve the unexpired portion of the sentence in prison, being some 520 days. Concurrent sentences of imprisonment were also imposed in May 2018 for offences including possession of a controlled weapon without excuse. On appeal, the County Court in August 2018 set aside the Magistrate’s order requiring you to serve 520 days and substituted 513 days to be served but specified a minimum term of nine months imprisonment.
In November 2018, the Moorabbin Magistrates’ Court sentenced you to an effective total sentence of three months’ imprisonment for multiple offences, which included possessing a prohibited weapon without exemption.
Over the years, you have repeatedly breached community-based orders and parole.
Whether remorseful
Your counsel submitted that you are remorseful for your offending. I hope that is the case, but I am not satisfied of it on the balance of probabilities. As was your right, you ran your trial. Whilst you may have accepted responsibility for shooting Laidlaw, you falsely denied that you did so with murderous intent. You also lied to Dr Pandurangi about merely planning to scare Laidlaw with the gun and about having been compelled to shoot Laidlaw once he was in the car. In these circumstances, I am not persuaded of true remorse on your part.
Prospects of rehabilitation
Having regard to the gravity of the present offence and your lengthy criminal history, I consider that your prospects of rehabilitation are poor. Accordingly, protection of the community from you and specific deterrence are important sentencing considerations in your case. Your counsel submitted that you should receive a longer than usual parole period to combat institutionalisation and promote your rehabilitation. But having regard to your poor prospects of rehabilitation, the importance of protecting the community, and the unlikelihood that a longer parole period will lead to de-institutionalisation, I cannot accept that submission. But the gap between the parole period and the head sentence that I impose will nevertheless be substantial and in my view provide you with a real opportunity to rehabilitate yourself if you are granted parole.
Summary of mitigating circumstances
It is convenient at this point to summarise what I consider to be the mitigating circumstances in your case:
·You pleaded guilty to manslaughter before the jury. That is, you accepted responsibility for unlawfully killing Laidlaw. Your trial was confined to the issue of whether you had murderous intent when you pulled the trigger.
·Your chronic mental impairment means that imprisonment is likely to be harder for you than for a prisoner without that affliction. In other words, principle 5 of Verdins applies. But I am not satisfied that there is a serious risk of imprisonment having a significant adverse effect on your mental health; in other words, I am not satisfied that principle 6 of Verdins also applies.[25]
[25]Principles 5 and 6 of Verdins (2007) 16 VR 269; [2007] VSCA 102, [32] provide, in respect of an offender with a mental impairment (‘the condition’) that: “5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health; 6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.”
Curham
I turn now to your personal history and circumstances, Curham.
Personal history
On 29 September 2000, you were born, making you 21 at the time of the offence and 23 now.
You began life in Queensland, surrounded by a loving extended family. You have an older brother. You remain close to your extended family, many of whom attended your plea hearing.
When you were 12, your immediate family moved to Victoria.
You were a sensitive child. In primary school and secondary school you were bullied. You became increasingly anxious and moody. You engaged in self-harming behaviour, including cutting yourself. Curiously, according to forensic psychologist Patrick Newton, to whose report I will refer in some detail shortly, you did not receive any professional assistance regarding these self-harming behaviours.[26] He reports that your only contact with professional mental health care has been in the context of drug rehabilitation programs.
[26]See the Forensic Psychological Report of Patrick Newton dated 20 May 2024 [22].
At 13, you began using illicit drugs, including ice.[27]
[27]Ibid [27].
At 15, you underwent a drug rehabilitation program with a neurologist, Professor John Currie, who prescribed several psychotropic medications.[28]
[28]Ibid [32].
At 16 you began using heroin.[29]
[29]Ibid [29].
At 17 you began using GHB.[30]
[30]Ibid [30].
You have not undertaken any further education since leaving high school. You have had a couple of jobs in retail.
From a young age, you exchanged sex for drugs. That has cruelled all your intimate relationships.
In 2018, when you were 17, you began a relationship with Brian Laidlaw (who was in his 50s) which lasted about six months. Drugs seemed to have been the glue of that relationship.
Between 2019 and 2021, when you were aged about 19 to 21, you attended an addiction medication specialist, but you continued to use illicit drugs during this period.
In 2022, you participated in a couple of residential drug detoxication programs but relapsed each time.
In about mid-2022, you struck up an intimate relationship with Nguyen, who was in his 40s. Again, drug abuse was a defining feature of that relationship.
On 12 July 2022, you were complicit in the shooting of Laidlaw.
On 13 July 2022, you were arrested and charged. You have been in custody ever since. You claim to have been drug free whilst on remand, the longest period of abstinence since you began using illicit drugs in your early teens. You have undergone a number of drug screens whilst on remand. You provided the results of urine screens from four tests — two in November 2022, one in April 2024 and one in August 2024. They were clean. Based on those results and your mother’s evidence, which I will refer to shortly, I am satisfied on the balance of probabilities that you have remained drug free whilst on remand.
Medical reports
As mentioned, a report was provided by forensic psychologist, Patrick Newton, who also gave oral evidence at your plea hearing. The matters in his report which I will highlight are these:
He spoke to you twice in 2024 and, with your permission, to your mother, who also gave evidence at your plea hearing.
You told Mr Newton that you were bullied by other students both at primary and secondary school — a claim corroborated by your mother — and that you began using illicit drugs in your early teens, often exchanging sex for drugs.
At [16] of his report, Mr Newton writes:
Ms Curham described a history of turbulent and abusive relationships commencing in her early teens. Her relationships with others have often taken place in the context of drug use and have included repeated experiences of sexual violence, physical aggression and coercive control from her partners. Ms Curham noted succinctly, “drugs have spoiled all my relationships”; she added that she could not think of an intimate relationship in which she had been involved that had been caring or loving.
Mr Newton diagnosed you with complex post-traumatic stress disorder.[31] He writes:
“… it is almost certain that Ms Curham was experiencing the core symptoms of the condition at the time of her offending. It is therefore likely that her (at that time) untreated trauma would have had an adverse effect upon her mental state including her ability to think clearly, make appropriate decisions and exercise sound judgment. In particular, her capacity for emotional regulation would have been decreased as would her ability to reason calmly about the interpersonal circumstances in which she found herself. These effects would have been significant in their own right but would have been exacerbated by her consumption of illicit drugs.”[32]
[31]See the Forensic Psychological Report of Patrick Newton dated 20 May 2024 [45].
[32]Ibid [48].
I note that it is not in dispute that both you and Nguyen were drug affected on the day of the shooting.
Mr Newton also diagnosed you with severe poly drug dependence, with physical dependence in remission in a controlled environment (assuming you have been drug free on remand, as you claim to have been).[33]
[33]Ibid [54].
You told Mr Newton that you began a relationship with Laidlaw in about May 2018 “in the context of his providing her with drugs. On her account the relationship was characterised by repeated acts of physical and sexual violence. These included his having non-consensual sex with her while she was severely intoxicated and unable to resist his advances. Despite these experiences, Ms Curham remained in the relationship as she was reliant upon him to provide her with drugs”.[34]
[34]Ibid [18].
You told Mr Newton that you were in a relationship with Nguyen for about a year and that he also supplied you with drugs.[35]
[35]Ibid [20].
Notwithstanding the progress you appear to have made in custody, Mr Newton considered that your insight regarding your drug addiction is still superficial and that you are at risk of relapse when released. He writes:[36]
Ms Curham’s insight into her drug use remains quite limited. While she is not considered to be at greater than average risk of relapse whilst in the structured, supervised environment of remand, she is likely to be at elevated risk for relapse to drug abuse whenever the level of supervision and structure in her life is reduced. In turn, not only would such relapse significantly undermine Ms Curham’s interpersonal stability and destabilise her mental health, but it would also be a profound criminogenic risk factor.
[36]Forensic Psychological Report of Patrick Newton dated 20 May 2024 [57].
Mr Newton considers that you are a vulnerable prisoner on account of your complex mental health needs, “one who is at increased risk of attracting adverse attention from other prisoners.”[37] He opines that “[i]n total, these factors are likely to contribute to a more onerous experience of imprisonment than is typical for prisoners who are not afflicted with Ms Curham’s challenges and problems”.[38]
[37]Ibid [63].
[38]Ibid [64].
I wish to highlight the following aspects of Mr Newton’s oral evidence.
He considered your expressions of remorse for offending to be genuine.[39]
[39]Plea hearing transcript, 3 July 2024, p77.
He also stated that the longer the period of parole “the more capacity there is to bed down [positive] change and ensure that the transition to the mainstream community is stably established.[40]
Criminal history
[40]Forensic Psychological Report of Patrick Newton dated 20 May 2024 [82].
Although you have a long history of poly-drug abuse, you only have one prior on your criminal history sheet.
On the 14 June 2022, Melbourne Magistrates’ Court placed you on an undertaking to be of good behaviour (with a treatment condition) in respect of two counts of possessing heroin, one count of possessing GHB, one count of possessing methyl amphetamine and one count of committing an indictable offence whilst on bail. It is unquestionably a circumstance of aggravation that, within a month of that court appearance, and whilst you were on an undertaking to the Court to be of good behaviour, you committed the present offence.
Character references
References were supplied by your mother, Suzi Curham, your aunty, Rachel McKenzie, and a trauma counsellor, Siobhan Neyland of WestCASA.[41]
[41]CASA means Centre against Sexual Assault.
Your mother, Suzi Curham, supplied a written reference and also gave oral evidence. In her written reference she said you were bullied during your entire schooling which undermined your self-esteem. Your parents alerted the schools, and/or moved you to different schools, but the bullying continued. Your parents found out that you were using and addicted to ice when you were only 14 and you started self-harming not long after that. You were using heroin by 16. Your parents took you to various drug rehabilitation services and specialists, but the problems continued. Periods of abstinence were followed by relapses. Eventually, and so as not to enable your drug use, your parents told you that could not live at home while you were using illicit drugs.
But your mother says this about your progress in custody:
The changes we have seen in the past two years in Scarlett have been remarkable. We feel we have our daughter back. Scarlett now has a strength and resilience that she did not have before and she now has the desire, her own desire to stay clean … She is undergoing trauma counselling, which she had tried to do in the past but it was too painful. She has transformed her own health and fitness.[42]
[42]Letter of support for Scarlett Curham by Suzanne Curham dated 20 June 2024 at page 2.
I note that Mr Newton, as one might expect, is more measured about the progress you have made in custody and how far you still have to go on your journey of rehabilitation.
Your mother also says in her written reference that you are “remorseful of [your] behaviour and actions leading up to [your] arrest”.
Your mother eloquently expresses the love and support of your whole family for you.
As I said, your mother also gave evidence. She was an impressive witness. Your mother said she visits you every weekend in custody.[43] She confirmed that you are truly remorseful.[44] She corroborated your claim that Laidlaw had made pornographic photos of you when you were drug affected and “completely out of it”. She found a USB with the photographs which she destroyed. You had been trying for some time to recover the photographs from Laidlaw. Your mother also said that you told her that Laidlaw had abused and drugged you,[45] although you never specifically told her prior to your offence that Laidlaw had sexually abused you.[46]
[43]Plea hearing transcript, 3 July 2024, p96.
[44]Ibid.
[45]Ibid (p101).
[46]Ibid.
Your aunty in her reference also talks about the way drug addiction has blighted your life. She visits you regularly in custody and considers you to be truly remorseful. She says of you now “[s]he is clean, focused on a better life and has a job she attends daily, she is a fantastic example of trying to turn her life around …another way of showing her remorse”.[47]
[47]Letter in support of Scarlett Curham by her Aunty, Rachel McKenzie, dated 25 June 2024.
According to WestCASA Ms Neylan’s reference, you commenced your involvement with their service in August 2022. You have attended 18 trauma counselling sessions with Ms Neylan since May 2023 and 5 sessions with a previous counsellors. Ms Neylan writes that you have been learning how to manage your anxiety and “have engaged deeply with the ideas discussed”.
A number of certificates were also tendered in respect of your participation in various programs concerning, amongst other things, drug rehabilitation, mental health programs and healthy living.
Whether remorseful
In light of your early plea of guilty, your character references and Mr Newton’s assessment of you, I accept you are genuinely remorseful and that you are making a concerted effort to turn your life around.
Prospects of rehabilitation
I also consider that your prospects of rehabilitation are good. In addition to being remorseful and having a limited criminal history, you are making progress in custody and you clearly have the support of a loving family. The real challenge of course, as Mr Newton indicated, will be to maintain a healthy lifestyle, a drug-free lifestyle, when you are eventually released into the community.
Summary of mitigating circumstances
Let me now summarise what I consider are the mitigating circumstances in your case.
You pleaded guilty. It is conceded by the Crown that your plea of guilty should be viewed as an early plea. You offered to plead to manslaughter prior to the contested committal hearing.[48]
[48]Prosecution’s written submissions at [24].
You are remorseful.
You have good prospects of rehabilitation, meaning that less emphasis can be given to specific deterrence in the sentence I impose on you.
You are a comparatively youthful offender — 21 at the time of the offence, 23 now. However, the seriousness of the offence reduces the weight to be given to that circumstance.
By reason of your post-traumatic stress disorder, which was untreated and operative at the time of your offending, I consider that your moral culpability for your offending is somewhat reduced, even though it was a planned shooting (Verdins 1). There should be some moderation of general deterrence as, by reason of your condition, the suitability of imposing a sentence that makes an example of you to others is somewhat reduced (Verdins 4). I also accept that imprisonment is likely to be harder for you by reason of your mental impairment (Verdins 5).[49]
[49]At [32] of R v Verdins (2007) 16 VR 269; [2007] VSCA 102 , the Court of Appeal said this, relevantly: “Impaired mental functioning, whether temporary or permanent (“the condition”), is relevant to sentencing in at least the following six ways: “1.The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective…4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both. 5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health...”.
CURRENT SENTENCING PRACTICES
I turn then to current sentencing practices.
Nguyen
Nguyen, your counsel referred me to a number of standard sentencing cases (Cross,[50] Pan,[51] Pozzebon,[52] Rozynski[53]) in respect of murder where a firearm was the murder weapon. The sentences of imprisonment ranged from 24 years with a non-parole period of 16 years up to 27 years with a non-parole period of 21 years. All but Cross — which yielded the highest sentence and non-parole period — were cases where the offender pleaded guilty. Unlike your offending, the shooting by Cross was not planned: Cross’s decision to shoot was made only seconds prior to the shooting.
[50]DPP v Cross (No 2) [2023] VSC 40.
[51]DPP v Pan [2022] VSCA 98.
[52]R v Pozzebon [2019] VSC 631.
[53]R v Rozynski (No 2) [2023] VSC 773.
The prosecution also supplied a table of comparable sentencing cases (Heron,[54] Rozynski,[55] Stiller,[56] Wilio[57]). In all but one (Heron), a firearm was the murder weapon. Stiller and Wilio were not guilty pleas. The sentences of imprisonment ranged from 22 years with a non-parole period of 15 years up to 27 years with a non-parole period of 21 years.
[54]R v Herron [2023] VSC 539.
[55]R v Rozynski (No 2) [2023] VSC 773.
[56]DPP v Stiller [2024] VSC 314.
[57]R v Wilio [2022] VSC 86.
I have found these cases to be of some assistance, but of course each sentencing case has to be decided on its own unique facts.
Curham
The prosecution referred me to a number of manslaughter sentencing cases, namely, Bos,[58] Cicekdag,[59] Latuhoi,[60] Williams & Godfrey[61]). In each of these cases except for Bos, a firearm was used to cause the death. In each case, the offender pleaded guilty. Cicekdag and Williams and Godfrey were sentenced prior to the increase in the maximum penalty from 20 to 25 years. Sentences ranged from 6 years and 6 months with a non-parole period of 3 years and 3 months to 12 years with a non-parole period of 9 years.
SENTENCES
[58]R v Bos [2023] VSC 68.
[59]R v Cicekdag [2017] VSC 781.
[60]DPP v Latuhoi [2024] VSC 136.
[61]DPP v Williams & Godfrey [2020] VSC 483.
Disparity of sentences
Before I pass sentence on you both, I should say something about the significant disparity in those sentences which, in my view, is justified by the following considerations:
First, you, Nguyen, are to be sentenced for murder, whereas you, Curham, are to be sentenced for manslaughter.
Next, you, Nguen, are not entitled to a discount for pleading guilty, whereas Curham you are.
Next, I am not satisfied that you, Nguyen, are genuinely remorseful, whereas I am so satisfied with respect to you, Curham.
Next, you, Nguyen, have a lengthy criminal history, whereas you Curham do not.
Next, you, Nguyen, have poor prospects of rehabilitation, whereas you Curham have good prospects.
Next, you, Nguyen, are in your mid-40s, whereas you Curham are a relatively youthful offender.
Next, whilst principle 5 of Verdins applies to you, Nguyen, principles 1, 4 and 5 of Verdins apply to you, Curham.
Nguyen
Mr Nguyen, on the offence of murder, I sentence you to 29 years’ imprisonment with a non-parole period of 21 years.
I declare that you have served 814 days by way of pre-sentence detention.
Ancillary orders
I also make the forfeiture and disposal orders sought by the Crown.
Curham
Ms Curham, on the offence of manslaughter, I sentence you to 10 years’ imprisonment with a non-parole period of six years.
But for your plea of guilty I would have sentenced you to 12 years’ imprisonment with a non-parole period of eight years.
Ancillary orders
I declare that you have served 814 days by way of pre-sentence detention.
Ancillary orders
I also make the forfeiture and disposal orders sought by the Crown as against you.
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