R v Phillip Tran
[2011] VSC 181
•6 May 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1669 of 2009
| THE QUEEN |
| v |
| PHILLIP TRAN |
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JUDGE: | Hollingworth J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18-20, 23-27, 30-31 August, 1-3 September 2010 (trial) | |
DATE OF SENTENCE: | 6 May 2011 | |
CASE MAY BE CITED AS: | R v Phillip Tran | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 181 | |
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CRIMINAL LAW – sentence – murder – acting with others – brutal attack with baseball bat – no premeditation – youthful offender – drug addiction – no remorse – currently serving sentence for other offences – total sentence of 18 years’ imprisonment for murder, to be served concurrently with current sentence – new single non-parole period of 13 years from today.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G Horgan SC | Solicitor for Public Prosecutions |
| For the Accused | Ms C Randazzo SC | C Marshall & Associates |
HER HONOUR:
Phillip Tran, you have been found guilty by a jury of the murder of Aaron Nidea on 22 December 2008. It is now my duty to sentence you for that crime.
Aaron Nidea was 28 when he died. Born in the Philippines, his family had migrated to Australia when he was a child. At some stage, he started using illegal drugs, including heroin. You started using illegal drugs when you were about 14, and were a regular user at the time of the offending. It is not clear how or when you and Mr Nidea first met, but it may well have been through your mutual drug use.
Around the middle of the day on 20 December 2008, you and Aaron Nidea arranged by telephone to meet up and travel to Footscray. Mobile phone records show that you had also been in frequent telephone contact with each other over the previous few days.
Mr Nidea borrowed his father’s car late that morning, ostensibly to do some Christmas shopping. Closed circuit television footage from the Footscray railway station showed that car entering the station carpark, shortly before 1.10 pm. Two people can be seen leaving the car and walking away from the camera, in the direction of a nearby disused Telstra building, a place used as some sort of squat by drug users.
Three men - Luke Morgan, Robert Tasevski and Bruce Smith - entered the Telstra building after you, to have a hit of heroin. In the large common room in the building, they saw Aaron Nidea swinging a baseball bat around, hitting objects that were strewn on the ground, while you were “mulling up” heroin at or near an overturned water-cooler.
Messrs Smith, Tasevski and Morgan gave evidence that they departed some 5 to 10 minutes later, after at least some of them had used heroin, leaving you and Mr Nidea apparently alone in the building.
Some time within the next hour, Mr Nidea was brutally assaulted with a weapon, which has never been found.
Robert Pocknee, who was sitting in a nearby park with some friends, was told by an unidentified man that someone had been bashed in the Telstra building. Mr Pocknee went into the building and discovered Mr Nidea in one of the rooms, badly-beaten, semi-conscious, lying face down and covered in blood. Mr Pocknee tried to help Mr Nidea, while he waited for the ambulance to arrive shortly before 2 pm.
Mr Nidea’s injuries were serious. There were extensive fractures to his skull, his left eye socket and his cheekbone, and bruising of the scalp. He also had lacerations and abrasions on his face and head, together with bruising and swelling to the back of his hands and forearms. Mr Nidea was taken to hospital, where he died from a fractured skull and traumatic brain damage two days later, on 22 December 2008. The pathologist said the injuries were consistent with being struck with a baseball bat, although there were obviously a wide range of implements that could have caused them.
As part of its case, the prosecution also relied upon several admissions made by you to different people.
In January 2009, you met with your friends, Mohammed Chakik and Danielle Hoskins, at the Deer Park Shopping Centre carpark. You had known them both for some years, and at that time would meet up with them a few times a week. Whilst the three of you were together in the carpark, you told Mr Chakik and Ms Hoskins that you and two other men – who you described as “Aussie blokes” – had bashed another man with a baseball bat in Footscray. You told them that the man owed you money.
Joey Janes gave evidence of seeing you whilst you were both in the Sunshine police cells, in early January 2009. He knew you at that time as “Chooka”. A clearly reluctant witness, he eventually conceded that you had bragged to him in the cells about a bashing that you had done with your “whacks” (apparently, meaning your mates) in Footscray. You told him that a baseball bat had been used, and the bashing was over the guy ripping someone off over drugs.
Mr Janes also said that after he had been sprayed with mace by the police, for acting up in the cells, you gave him your t-shirt to wear. He said that when he went into the Melbourne Custody Centre, a short time later, he told his friend, Bruce Smith, how he had obtained the t-shirt, and what you had been saying about your involvement in the bashing. In general terms, Bruce Smith’s evidence confirmed Mr Janes’ account of their conversation in the Custody Centre. Mr Smith also said that the t-shirt reminded him of the t-shirt worn by one of the men in the squat on the day of the attack.
There was no direct evidence as to what happened to Mr Nidea, how many people were involved in the attack, or why it occurred. The circumstantial prosecution case against you was that you had been involved in the attack, either acting alone, or acting with other persons (either in concert, or by aiding and abetting). In essence, your defence was that the jury could not be satisfied that you were there in the squat that day, or had anything to do with the attack.
In returning a verdict of guilty of murder, the jury must have been satisfied beyond reasonable doubt that you were there, and participated in the attack in one of the ways suggested by the prosecution. However, given the evidence and the way the case was run, the jury’s verdict does not disclose whether the jury found that you acted alone or with others. It is therefore necessary for me to consider the evidence for myself, in order to assess the seriousness of your conduct and to determine an appropriate sentence.
As far as motive is concerned, the prosecution suggested that Mr Nidea was indebted to you, probably in respect of drugs. A couple of months before his death, around September 2008, Mr Nidea told Cheren Goodchild, his former long-term girlfriend, that he was in “a little bit of trouble” and owed some money. Ms Goodchild thought he said he owed thousands of dollars, but could not remember the precise amount. But Mr Nidea did not tell her to whom he owed the money, or what it was for. However, Mohamed Chakik and Danielle Hoskins said you told them that the man you bashed had owed you money.
There was no evidence that you had made any threats to Mr Nidea about any money he may have owed you. And none of Messrs Tasevski, Morgan or Smith suggested that they saw any animosity or tension between you and Mr Nidea in the squat that day. Further, the prosecution accepts that there was no premeditation involved in the attack. So, even if Aaron Nidea did owe you money, I am sentencing you on the basis that whatever occurred in the squat that day happened relatively spontaneously and was unplanned.
I am satisfied from the evidence of Messrs Tasevski, Morgan and Smith that you had a hit of heroin in the squat in their presence, shortly before the attack must have occurred. Although there was no evidence as to whether you had used any other drugs that day, given your drug addiction at the time, it is possible that this hit was not your first hit for the day. Mr Morgan said he also saw Mr Nidea use heroin in the squat that day, although neither Mr Smith nor Mr Tasevski gave any such evidence; and there was no evidence as to whether Mr Nidea had heroin in his body when admitted to hospital. But in any event, there was no suggestion in this case that either of you were substantially affected by drugs at the time of the attack.
I turn to consider the evidence as to how many people were involved in the attack.
As mentioned earlier, in your admissions to Mr Chakik, Ms Hoskins and Mr Janes, you told them that other men were involved with you in bashing a man with a baseball bat in Footscray. Although your friends, Mr Chakik and Ms Hoskins, said they were under the influence of drugs at the time, and did not believe that your admission was true, I found them to be consistent and credible witnesses, with no apparent reason to lie about what you said to them. Mr Janes was not a particularly impressive witness, and had an obvious motive to do what he could to assist his friend, Mr Smith, who the police regarded as a suspect for this murder at the time Mr Janes first spoke to them. But his account of what you told him was generally consistent with what Ms Hoskins and Mr Chakik said you told them. You did not tell anybody the names of the other men involved, although you told Ms Hoskins and Mr Chakik that it was two “Aussie blokes”.
It is clear that, at least in their initial investigations, the police considered Mr Tasevski and Mr Smith to be possible suspects in the murder, based primarily on what Mr Morgan had told them he saw and heard that day, and how he had left the squat before the other two. Both Mr Tasevski and Mr Smith also have unimpressive criminal records. But by the time he came to give evidence, Mr Morgan’s account was more favourable towards Messrs Tasevski and Smith than the initial accounts he had given to police.
Mr Morgan also said that while he and his friends were in the squat, he saw three other white men enter the common room from elsewhere in the building, and leave through a window in the common room. On the other hand, Mr Tasevski and Mr Smith said they did not see anybody else in the squat, except for you and Mr Nidea. Nevertheless, it is clear that the squat was regularly frequented by drug users, and there were a number of rooms and a number of points of entry and exit; it would have been very easy for other persons to have entered and remained in the building unseen by witnesses.
The evidence does not allow me to make any positive findings as to whether you participated in the attack with Mr Tasevski and Mr Smith, or with other persons. Nor can I come to any conclusion as to precisely what roles you and any others involved played in the attack, or why it occurred. I am sentencing you on the basis that I am not satisfied beyond reasonable doubt that you acted alone in the attack on Mr Nidea.
This nevertheless remains a serious crime. You participated with others in a brutal attack, involving multiple blows (particularly to the head) with a baseball bat.
And murder is a very serious offence, involving as it does the taking of another person’s life. The maximum penalty for murder is life imprisonment.
Your actions have had serious consequences not only for Aaron Nidea, but also for others. Aaron Nidea was a much-loved member of the Nidea family. Victim impact statements were provided to the court by Aaron’s parents, Ananias and Salve Nidea, his brothers, Ananias and Ariel Nidea, and his sister, Arlene Pye. Those statements tell in moving terms of the impact your actions have had upon them: how difficult it was for them to see Aaron in hospital, unconscious and so seriously injured; and the painful circumstances in which they lost him a few days later. Aaron’s murder has had a profound impact on all of them. Anniversaries and family occasions are particularly difficult. They feel they can no longer look forward to the future, without Aaron in their lives.
Cheren Goodchild has also experienced great pain and sorrow from losing Aaron. Although simply friends at the time of his death, they had previously been together as a couple for more than 10 years, and Ms Goodchild had still hoped they would be able to build a long-term future together. She struggles to contemplate a future without Aaron. His death has affected her emotionally and physically.
Some of Aaron’s family have expressed anger towards you and a desire that I impose a severe sentence on you. I know that no sentence of this court will ever bring back their son, their brother, their friend. However, I must sentence you in accordance with the law, and on the evidence before me, and not otherwise.
I turn to consider your personal circumstances. You were born in a refugee camp in Hong Kong on 31 December 1989, to Vietnamese parents. Your family moved to Australia in 1991, seeking a new life. You have two younger sisters and a younger brother, none of whom has been involved with the criminal justice system, and all of whom still live at home with your parents. Your family life seems to have been stable and relatively uneventful. You have helped your parents take care of your siblings. You are closer to your mother than to your father, and there are some suggestions of physical altercations between you and your father.
Your parents have continued to be supportive of you, and your family and girlfriend have visited you regularly, since you have been in custody.
You experienced learning and behavioural difficulties from a relatively young age, and were finally expelled from school around year 10 or 11. There is some evidence that your behavioural difficulties became worse after you sustained a head injury in a car accident in 2006; however, the primary effect of that injury appears to have been on your memory.
From the age of about 14, you began to associate with much older people, and were rapidly introduced to cannabis and then much harder drugs, including amphetamines, methamphetamines, ecstasy, heroin and cocaine. Your behavioural problems appear to have been strongly linked with your drug usage. Since your mid-teens, you have struggled, without success, with your drug addiction. That drug addiction led in turn to your involvement with the criminal justice system.
Since leaving school, you have had an intermittent employment history. You worked for a brief period at McDonalds, and have assisted your father over the years with his carpentry work. You partially completed a plumbing apprenticeship.
I was provided with a pre-sentence report prepared by a DHS youth justice case manager, dated 4 June 2009, and a report from Mr David Ball, forensic psychologist, dated 5 August 2009, both of which were prepared for the purpose of sentencing you for other offences. I was also provided with a report from Associate Professor Warrick Brewer, a neuropsychologist, dated 3 December 2010, which was prepared for the purpose of this sentencing.
You told the authors of each of those reports that you had been diagnosed with Attention Deficit Hyperactivity Disorder in your younger years. You gave different accounts as to how old you were when the diagnosis was made, and as to whether or not you had received any treatment for the disorder. Each of the authors essentially noted that you had been unable to provide any details regarding your diagnosis, sufficient to enable them to confirm that you have suffered or do suffer from ADHD.
Mr Ball did not do any formal testing of your IQ, but “estimated” that it would be within the “borderline” range. On the other hand, Associate Professor Brewer did conduct formal testing, and assessed your IQ as being within the “average” range, and I proceed on the basis of that assessment. You clearly have some literacy problems, having a reading age equivalent to that of a late primary school-aged child.
None of the reports suggest that you suffer from any formal intellectual disability. According to Associate Professor Brewer, you do suffer from a long-standing reduction in verbal processing capacity. This is probably tied in with your problems paying attention at school, but may also have been exacerbated by your drug use, and the 2006 car accident.
None of the reports suggest that your cognitive difficulties, such as they are, had any impact on your capacity to distinguish between right and wrong, or to know the nature or quality of your actions.
On the one hand, Mr Ball made no mention of any history of depression, and reported that you had not required any psychoactive medication in prison. On the other hand, Associate Professor Brewer said you reported that, as at November 2010, you were taking Zyprexa due to depression, and had been taking such medication since you were in year 9. However, Associate Professor Brewer also noted that you had described to him a wide range of clinical symptoms, including the symptoms of mild-moderate depression, and that the range of symptoms elicited in your tests revealed likely exaggerated levels of psychopathology. Indeed, one of his recommendations was that closer psychiatric monitoring be undertaken, to determine the validity of your various reported psychotic symptoms.
Both counsel accepted that, on the evidence, there was no engagement of any of the principles in Verdins applicable in your case.
Mr Ball described you as a particularly immature person, prone to poor judgment and impulsive behaviour, and with little consideration for the impact that your behaviour might have on others. Similar comments were made in the DHS report in relation to some of your other offending.
You have demonstrated no remorse for this crime.
Your age is another relevant consideration in sentencing you. At the time of the offending, you were about to turn 19. You are now 21.
There are a number of general principles that apply when sentencing youthful offenders. For example, rehabilitation is usually regarded as more important than general deterrence, as rehabilitation benefits the community as well as the offender. And even when (as here) the offender has previously been imprisoned, a shorter period of imprisonment may be justified than would ordinarily be the case. But those principles are not immutable, and due regard must be had in each case to other relevant matters, including the seriousness of the offence. In sentencing you, I am mindful of the fact that murder is a very serious offence, involving as it does the taking of another person’s life, and this is not an isolated instance of criminal behaviour on your part. There is still some need for general deterrence in this case.
Prior to this offending, you had been sentenced by the Children’s Court on two occasions, in October 2006 and November 2007. The first involved charges of possession of a prohibited weapon, recklessly causing injury and theft; the second involved possession of cannabis. On both occasions, the sentencing disposition included your release without conviction.
Although not to be treated as previous convictions for the purpose of sentencing you, I note that since the start of 2009 you have been sentenced for a number of offences, including intentionally causing injury and assault with a weapon (offences committed in July 2007), assault, theft, criminal damage, armed robbery, and possession or use of heroin, cannabis and ecstasy. Your drug addiction seems to have played a role in that offending.
Notwithstanding your history, I accept that you have some prospects of rehabilitation, if you are able to overcome your drug addiction.
Your past efforts at addressing your drug addiction seem to have been rather half-hearted. On two occasions you were admitted to a residential drug and alcohol unit to undergo detox; on both occasions you did not complete the programme. And at least one past attempt at completing a methadone programme was also unsuccessful, apparently due to your lack of genuine commitment to dealing with your addiction.
Since being in custody, you have been in remission. I note that you have passed all random drug-testing undertaken in custody since February 2009. And between August and October 2009, you undertook and completed an intensive drug program conducted by UnitingCare. Those are encouraging first steps, in what is likely to be a difficult path to recovery from long-term addiction.
It is also encouraging that, whilst in custody, you have successfully completed a number of courses, including TAFE courses in kitchen and cleaning operations. It is important that you continue to undertake such training courses as are available to you, to maximise your prospects of finding employment when you do finally leave custody. You have also been playing sport in prison and trying to keep yourself usefully occupied.
I agree with your counsel that you are not a “lost cause”. You do have prospects of rehabilitation, if you are able to overcome your drug addiction. There nevertheless remains some need for specific deterrence in this case.
On 17 November 2009, you were sentenced in respect of two armed robberies and an attempted armed robbery to a total sentence of 4 years’ imprisonment, with a non-parole period of 2 years 2 months. It is common ground that you will become eligible for parole in respect of that sentence in two days’ time, on 8 May 2011. Accordingly, I am required to set a new, single non-parole period in respect of that sentence and the one I am about to impose.
It is agreed that there is no pre-sentence detention in respect of this particular offence.
Balancing as best I can the competing considerations laid down in the Sentencing Act1991, and having regard to the matters I have just discussed, for the murder of Aaron Nidea I sentence you to 18 years’ imprisonment, to be served concurrently with your current sentence. I fix a period of 13 years from today, as the period you must serve before becoming eligible for parole.
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