R v Ramos
[2019] VSC 67
•18 February 2019
| IN THE SUPREME COURT OF VICTORIA | Unrestricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0094
| THE QUEEN |
| v |
| ABELARDO RAMOS |
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JUDGE: | TAYLOR J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 February 2019 |
DATE OF SENTENCE: | 18 February 2019 |
CASE MAY BE CITED AS: | R v Ramos |
MEDIUM NEUTRAL CITATION: | [2019] VSC 67 |
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CRIMINAL LAW – Sentence – Statutory Murder – Deceased killed in furtherance of armed robbery – Co-offender fired fatal shots– Late plea of guilty – Serious violent offender – Protection of the community – Denunciation – General deterrence – Specific deterrence – Guarded prospects for rehabilitation – Consideration of DPP v Perry (2016) 50 VR 686 – Sentence of 15 years’ imprisonment with non-parole period of 11 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Rochford QC with Ms D Manova | John Cain, Solicitor to the OPP |
| For the Accused | Mr C Mandy SC with Ms A Kapitaniak | Kurnai Legal |
HER HONOUR:
Abelardo Ramos, you have pleaded guilty to the murder of Phuong The Vuong on 16 June 2017.[1] You agreed with Lawrence Duca to commit an armed robbery on Mr Vuong once you had gained entry to his home. In furtherance of that armed robbery, Duca shot and killed Mr Vuong.
[1]Pursuant to the Crimes Act1958, s 3A (‘Crimes Act’).
The maximum penalty for statutory murder is life imprisonment.
Summary of Offending
At the time of his death, Mr Vuong lived alone in Deer Park. He was self-employed as a sewing machinist, manufacturing garments for high-end fashion labels from his home. He also offered massage services from his home, performed by himself or other Vietnamese males he retained for that purpose. Mr Vuong advertised the availability of those massage services in a Vietnamese newspaper.
Mr Vuong participated in a ‘Hui’, a community loan scheme operating within the Vietnamese community in which members make an initial deposit into a common fund and then take turns borrowing from the combined total. He was known to keep money at home and, at times, loaned money to others with jewellery items taken as security.
Neither you nor Duca had any direct link with Mr Vuong. Rather, you became aware of Mr Vuong’s address via your friend Huey Nguyen in about April 2017. You had the impression, from what you had heard Mr Nguyen say to others, that the Deer Park home of Mr Vuong was a ‘crop house’ – that is, a location in which cannabis was grown hydroponically.
You had previously supplied Duca with hydroponic equipment suitable for cannabis growing from other ex-crop houses which you had renovated. The initial agreement with Duca to steal hydroponic equipment, cannabis and other unspecified valuable items from the Deer Park home of Mr Vuong came about on 16 June 2017, when you visited Duca at his home to repay $1,500 of a $2,000 debt you owed him, and also to collect power tools you had previously loaned to him.
Together you took methylamphetamine in the shed.[2] Duca then became insistent to work with you on renovating an ex-crop house. You mentioned the Deer Park house to him and stated that you were certain that it would have hydroponic equipment and, potentially, sums of cash.
[2]It was common ground at your plea that your intoxication, if any, following this is of no relevance to your later offending. Rather, it is of some relevance in the assessment of you prospects of rehabilitation and the need for specific deterrence.
The Crown accepts that at that stage, the agreement was limited to burglary. It did not encompass the use of weapons.
You went first to Duca’s mother’s house, where he had stored your power tools, and then hired a van from a rental company nearby, paying cash and using your identification documents. En route you both assumed high viz work gear to give the false impression that you were simply tradesmen. At your suggestion, you and Duca stopped to steal licence plates from a parked car, which were then affixed over the original licence plates of the van in an attempt to avoid detection.
Unbeknownst to you both, an image of the van in the relevant vicinity at the relevant time was captured by CCTV footage, and the van was fitted with a GPS tracker.
On arrival at Mr Vuong’s home, you both got out of the van. Each of you were wearing latex gloves. Duca carried a bag he had brought with him. Together you approached the front door. You knocked on the door and then rang the doorbell. Before the door was answered, Duca pulled a shotgun from his bag.
Mr Vuong answered the door and, upon seeing the gun, attempted to slam the door shut. You, together with Duca, pushed against the door. At that moment the agreement to commit armed robbery was formed. When the door opened, Duca entered the house and fired the shotgun twice in rapid succession at Mr Vuong.
Ballistics evidence later established that at least four shots from a 12-gague shotgun had been fired: one into the door jamb, one into the doormat, seemingly before you gained entry to the house, and two into the upper torso of Mr Vuong.
Mr Vuong’s body was dragged to the kitchen, a distance of about two metres. Your DNA was later found on the sleeve of Mr Vuong’s clothing, and a boot print matching your boots was found in the trail of his blood.
The house, which was not a crop house, was ransacked and certain items of value were taken.
You and Duca returned the van to the hire premises, after removing the stolen licence plates, removing your own high viz clothing and transferring the stolen items and your belongings to your own car.
Mr Vuong’s body was not found for 10 days. A later post-mortem examination established that Mr Vuong died from gunshot wounds to the chest. Those wounds caused extensive injury to the right ribs and injury to right lung, thoracic aorta and liver, as well as blood in the chest cavity. Shotgun pellets were found in the oesophagus, trachea and right kidney.
Your offending is extremely serious. In the course of an intrusion into the home of a man entirely unknown to you and for no motive other than personal gain by armed robbery, you caused the death of that man.
Victim Impact
I have received and considered two victim impact statements in this matter.
Ngoc Bao Nguyen, the older brother of Mr Vuong, speaks of his brother who, although he no longer resided in Vietnam, spoke frequently to his siblings and nieces and nephews. Mr Nguyen laments that his brother’s life was cut short by violence and has deprived his family the opportunity to love him over the course of a natural life.
Fai Chi Man, Mr Vuong’s friend of 20 years, speaks of the man he considered a brother and who was considered another father to, and by, Mr Fai’s son. He states that his family now lives in pain and sorrow as a result of the loss of Mr Vuong.
Personal Circumstances
It is necessary to say something about your personal circumstances.
You were born on 14 August 1980 in a rural part of Manila. You were 36 years of age at the time of this offence. You are now 38.
You were a late child to your parents, being the last of five siblings and the youngest by some seven years. You were an active, happy child, although left largely to fend for yourself due to your father’s gambling and your mother’s consequent need to work long hours. You came to Australia aged about nine or ten with two of your brothers and your parents. Your two eldest siblings had already emigrated. Your transition to your new country was not easy. You struggled because of language difficulties and the ending of your parents’ marriage within a year of arrival.
You attended school to Year 11, although you struggled academically. You then became a chef and worked in that capacity for a few years. You married your childhood sweetheart very young and together you had a son. That marriage ended in divorce in 2006 and you have been estranged from your son for many years. Your prior criminal offending, about which I will say more later, is likely relevant to those circumstances.
You were incarcerated between 2002 and 2011. Upon release, you satisfactorily completed your parole. You lived with, and looked after your mother. You also looked after your father and step-mother. Indeed, at the time of this offending you were, together with your brother, a joint-legal guardian of your father. You feel some guilt that he died after your arrest and remand for this offence. You gained work as an assistant chef at Monash University, a job for which you were grateful, but left due to underpayment issues.
You then gained various licences and certificates, including a forklift licence and a truck licence, to allow you to work in the field of transport and logistics. You began to work for your friend, Huey Nguyen.
You met your current wife on-line. She was then resident in Singapore, moving to Australia in 2011 or 2012. Together you have a three year old son and a 16 month old daughter.
At the time of your offending you were feeling both financial and emotional pressure. You were supporting your aging parents and step-mother, as well as your pregnant wife and young child. You were also using ‘ice’. It was submitted on your behalf that although your use was increasing, you were not addicted. You are now being treated with methadone in custody.
Prior Criminal History
On 17 December 2003 you were resentenced by the Court of Appeal to a total effective sentence of 12 years’ imprisonment with a non-parole period of nine years, following a successful Crown appeal against the manifest inadequacy of the original sentence.[3] The individual sentences contributing to that total, with certain orders as to cumulative effect, were five years’ imprisonment for aggravated burglary, three and a half years’ imprisonment for common assault, six years’ imprisonment for threatening to kill and nine and a half years’ imprisonment for kidnapping.
[3]DPP v Ramos, Santos and Herasan [2003] VSCA 215 (Buchanan and Vincent JJA and Harper AJA)
You took the lead role in the incident giving rise to those charges, namely a home invasion motivated by spite in which you kidnapped a five year old girl after placing her mother in handcuffs, applying electrical tape as a gag and threatening to kill the mother at knife point – all of which took place in front of the five year old girl and her 18 month old cousin.
As conceded by your Senior Counsel, this history is obviously relevant to the assessment of your prospects for rehabilitation and also the need for specific deterrence. Moreover, the conviction and sentence for making a threat to kill renders you a serious offender for the purposes of the instant sentencing exercise.[4] As no sentence other than imprisonment is appropriate, I must regard the protection of the community from you as the principal purpose for which the present sentence is imposed.[5] The Crown does not submit that in order to achieve that purpose, I should impose a disproportionate sentence relative to the objective circumstances.[6]
[4]Sentencing Act 1991 (‘Act’), s. 6C Threat to kill is a ‘serious violent offence’ listed in Clause 3(b)(iii) of Schedule 1 of the Act and is therefore a ‘relevant offence’ for the purposes of s. 6C.
[5]The Act, s 6D(a).
[6]The Act, s 6D(b).
Analysis
A number of complex issues arise in this matter.
The nature of statutory murder
It is beyond doubt that statutory murder is not inherently less serious than murder.[7] Nonetheless, in assessing the objective gravity of the offence and your moral culpability for it, I must assess your state of mind with respect to the act causing death.[8] That is, whether, in being party to the act of violence that caused the death of Mr Vuong, in furtherance of the foundational offence of armed robbery, you intended to cause him harm.[9]
[7]DPP v Perry (2016) 50 VR 686 (‘Perry’).
[8]Perry, [8](l).
[9]Perry, [8](m).
Your counsel submitted that this assessment required two overlapping, but discrete steps: an assessment of your culpability for the agreement to commit armed robbery and an assessment of your culpability for the act causing death.
You say, and it is accepted by the Crown, that your agreement with Duca to commit armed robbery was reached merely moments before entering the house, when Duca produced the gun and prior to Mr Vuong answering the door. Until that point, your agreement was simply to steal hydroponic equipment and drugs from the house.
Your counsel argued that this temporal limitation reduces your culpability in so far as it compares with other cases where the planning of the foundational offence subsisted over, at least, some hours.
In Perry, the accused and his girlfriend entered and remained in a jewellery shop for about five minutes, purportedly to have an earring appraised. ‘Later in the afternoon’[10] the accused returned to the shop carrying a large kitchen knife. During the course of the robbery, the accused first stabbed the wife of the deceased and then stabbed the deceased twice to the chest. After further confronting the wife, the accused left with certain items of jewellery.[11]
[10]Perry, [12].
[11]Perry, [12]-[15].
In DPP v Chounlamountry,[12] the accused was after trial acquitted of common law murder but convicted of statutory murder. The foundational offence was armed robbery. The accused decided to rob the deceased at night. The accused left his own children in the care of their grandmother, and at 4.30am the next morning,[13] entered the home of the deceased wearing gloves and carrying a large knife. Although sentenced on the basis that the first, fatal blow was not intentional, it was relevant to culpability that the accused stabbed the deceased repeatedly thereafter and at least two of those subsequent wounds had the potential to be fatal.[14]
[12][2016] VSC 509 (‘Chounlamountry’).
[13]Chounlamountry, [16]-[17].
[14]Chounlamountry, [66]-[67].
The cases of DPP v Cooper[15] and DPP v Williamson[16] concern co-offenders. Together they planned an aggravated burglary on a Sunday and entered the target house at 12.47am on the Monday morning, with Cooper armed with a knife.[17] Both men tied up the 89 year old victim. Cooper stabbed him 13 times in the back. Both men then searched the house and took valuable items, leaving the victim to die over the course of some four hours and 38 minutes. Cooper pleaded guilty to common law murder, aggravated burglary and theft. He provided a statement against Williamson. Williamson later pleaded guilty to statutory murder, aggravated burglary and theft.
[15][2018] VSCA 21 (‘Cooper’).
[16][2018] VSC 172 (‘Williamson’) On 7 August 2018, Whelan JA granted leave to appeal to Williamson against the severity of his sentence: Williamson v R [2018] VSCA 193. That appeal is pending.
[17]Cooper, [9].
In Williamson’s case, the Crown accepted that the knife was brought along in case he and Cooper ‘needed to gain compliance’.[18] Contrary to the statement of Cooper, the Crown also accepted that Williamson had not forced a gag into the mouth of the deceased,[19] nor had he given a nod or shrug of encouragement to Cooper immediately prior to the stabbing.[20]
[18]Williamson, [6].
[19]Williamson [13].
[20]Williamson, [16].
Your counsel argued that in contradistinction to these cases, your agreement to commit armed robbery was made extremely quickly. The fatal shots, fired in furtherance of the agreement to commit armed robbery, followed very soon after that agreement was reached. It was submitted that these circumstances allowed you no opportunity to reflect and withdraw.
The Senior Crown Prosecutor submitted that the temporal aspect of the agreement to commit the foundational offence was not the critical factor in the assessment of your culpability for it. You were present at the house of Mr Vuong, not for an innocent purpose, but to commit burglary. You could have walked away at the moment you saw the shotgun. That was your opportunity to react and withdraw. Instead, you joined in and, tellingly, continued to participate even as the gun was being reloaded. It was submitted that the only purpose for which the gun was reloaded was to enable it to be fired. If the gun was to be used merely to intimidate, it need not have been reloaded.
In relation to your state of mind with respect to the act causing death, your counsel submitted that you did not intend the death of Mr Vuong, nor did you directly cause it. So much was accepted by the Crown.
In assessing the gravity of your offending and your moral culpability for it, I take all of the circumstances into account. Whether that is necessarily a two-step process or not, all matters are considered in determining where your conduct falls within the range of conduct covered by statutory murder.
You travelled to Mr Vuong’s home with the express intention to steal. You were the instigator of that: you suggested the target, the use of a van and the use of stolen licence plates to mask your presence. You assumed clothing intended to fool the casual observer as to your true purpose. You planned a criminal offence over some hours, but not the foundational offence of armed robbery. At the moment you realised Duca was armed you could have walked away. But you did not. You joined in. You handled the gun. And you continued to participate in the armed robbery as the situation escalated and the gun was reloaded. Your presence assisted and encouraged Duca, as together you carried out this violent crime. At the same time, you did not intend to physically harm Mr Vuong at the time you participated with Duca in the armed robbery and shooting. And, the time between when you became aware that Duca had a gun, to the moment it was used to fatal effect, was of short duration.
Your behaviour was brutal, cowardly and callous. That it approaches the lower end of the spectrum of behaviour covered by statutory murder does not render those words inapposite. You are responsible for the death of a fellow human being. You are to be punished accordingly.
Remorse
Your indication of willingness to plead to statutory murder came very late. Nonetheless, that you have done so is indicative of some remorse. The Crown accepts that you did not intend the death of Mr Vuong. Nonetheless, you left his body for 10 days to be later discovered by his friend and there is scant expression of your contrition.
I give weight to your demonstrated measure of remorse accordingly.
Rehabilitation
The finding that you have some remorse is relevant to the assessment of your prospects for rehabilitation. So too is the support of your family and the fact that after your release from prison in 2011, you were not charged with a criminal offence until 2016. But, there are contrary indicators. You spent many years in gaol for violent offending in company. You have offended again in a violent manner and again in company. You also have some earlier criminal matters concerning possession of an unlicenced handgun and ammunition, but these were not sufficiently serious to attract a criminal conviction. Your reliance upon illicit substances when feeling stressed is of concern, as is you knowingly mixing in a milieu conducting at least potentially unlawful activity, such as your providing hydroponic equipment for cannabis growing to Duca.
Your counsel submitted that your prospects for rehabilitation are guarded, a descriptor accepted by the Crown. I agree.
Sentencing Considerations
Your behaviour in entering the home of Phuong The Vuong on 16 June 2017 by agreement with Duca, who was armed with a shotgun, was abhorrent. Mr Vuong resisted the intrusion of his home by two determined men and moments later lost his life. His last moments could only have been of terror.
General deterrence and denunciation are important sentencing factors, but still secondary to the need to protect the community from you as a serious violent offender. But, I will not impose a sentence longer than that which is proportionate to the gravity of your offending to achieve that purpose.
Similarly, specific deterrence must play some role in your sentence, to deter you from future violent offending.
As I have said, I accept your prospects for rehabilitation as being guarded. I give due weight to your plea; it is relevant to the finding that you have demonstrated some remorse, provides a utilitarian benefit, and indicates a willingness to facilitate the course of justice.
I have had regard to current sentencing practices and have been referred to cases, which I have already discussed, with respect to the appropriate range of sentence.[21] The head sentences for statutory murder in those cases range between 17 years and six months and 25 years.[22] In Cooper, where the accused pleaded guilty to common law murder and other offences, and whose sentence was moderated to give effect to his co-operation, the head sentence for murder was 22 years. Obviously, there are differences in the history and circumstances of the offenders in each case, as well as in the objective gravity of and culpability for the offending.[23]
[21]Chounlamountry, Cooper and Williamson These cases were decided post Perry.
[22]As previously noted, Williamson, being the 25 year sentence, is subject to appeal.
[23]After the conclusion of the plea hearing, defence counsel also referred the Court to R v Duhovic [2017] VSC 689R. I have considered that case.
Sentence
Abelardo Ramos, please stand.
Balancing, as best I am able, the competing considerations laid down in the Act and having regard to the matters I have just discussed, for the offence of murder, I sentence you to imprisonment for 15 years. You must serve a minimum of 11 years before being eligible for parole.
I declare that you have already served 581 days of that sentence by way of pre-sentence detention.
I am required by s 6AAA of the Act to indicate what sentence I would have imposed but for your plea of guilty. As such, I declare that I would have imposed a sentence of 17 years with a non-parole period of 13 years.
As required by s 6F(1) of the Act, I direct that the fact that you are sentenced as a serious offender for the offence of murder be entered in the records of the Court.
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