R v Tang
[2018] VSC 460
•20 August 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0136
| THE QUEEN |
| v |
| PHUC THIEN TANG |
Accused
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JUDGE: | Taylor J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 03 August 2018 | |
DATE OF SENTENCE: | 20 August 2018 | |
CASE MAY BE CITED AS: | R v Tang | |
MEDIUM NEUTRAL CITATION: | [2018] VSC 460 | |
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CRIMINAL LAW – Sentence – Murder – Use of weapons – Accused with significant criminal history – Accused with significant history of drug use – Accused on methamphetamine at time of offence – Accused on bail at time of offence – Plea of Guilty – Remorse – Significant weight given to general deterrence and denunciation – Need for specific deterrence – Guarded prospects of rehabilitation – Sentence of 25 years’ imprisonment with non-parole period of 20 years
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms F Dalziel | Office of Public Prosecutions |
| For the Accused | Mr G Casement | Stary Norton Halphen |
HER HONOUR:
Phuc Thien Tang, you have pleaded guilty to the murder of Hoa Thi Huynh, known as Lina Huynh, on 7 September 2017.
The maximum penalty for murder is life imprisonment.
Summary of Offending
You and Ms Huynh had been in and out of a relationship since 2012. In mid-June 2017 you were both living together in the sunroom of a house in St Albans. Two others were also living in that house. None of you were there with the permission of the owner. Adjoining the house were two bungalows which were occupied by lawful tenants.
At some stage between mid-June and early September 2017, the owner of the premises became aware of you and the other squatters in the house and ordered you to leave.
On Thursday 7 September 2017, you and Ms Huynh went to the ANZ ATM in Alfrieda Street, St Albans at about 12.10 am. Ms Huynh conducted a balance enquiry for her account. It returned a zero balance. You both returned to the ATM at about 1.25 am. Ms Huynh attempted to withdraw $590.00 from her account, however, there were insufficient funds for that transaction to be completed.
Shortly thereafter you and Ms Huynh parted ways, briefly. She returned directly to the squat house. You went to another St Albans address where you injected methamphetamine before also returning to the squat house at about 3.00 am. You have had a very long standing and stubborn drug addiction and, since about 2013, you had been injecting between 0.1 and 0.2 grams of methamphetamine daily. As you well knew, the effect of that drug upon you was to augment your anger.
Ms Huynh disliked your drug habit. Upon your return to the squat house during the early hours of 7 September 2017, you both argued about it. You told Ms Huynh to stop nagging you. Nonetheless, she continued to voice her concerns.
In anger you picked up a metal vacuum cleaner pole and struck Ms Huynh several times about the head until she stopped breathing. You also stabbed her in the face with a sword, penetrating her left nostril and into her brain.
Your immediate reaction to these horrific acts of violence was to change your clothes, place Ms Huynh’s bag (containing her passport, purse and driver’s licence) in the garage and depart in possession of her ANZ debit card.
You re-attended the Alfrieda Street ANZ ATM where, at 4.10 am, you attempted to withdraw $60.00 from Ms Huynh’s account. There had in fact been a deposit of $565.00 made to that account at 4.08 am, that being Ms Huynh’s fortnightly Centrelink Newstart allowance. Your attempt to withdraw these funds, as well as two further attempts, were unsuccessful due to your failure to enter the correct PIN code. On each attempt you had used the same four digits, but in different sequences. The ANZ debit card belonging to Ms Huynh was, after the third failed attempt, retained by the ATM.
You then returned to the garage of the squat house. You retrieved some personal belongings and the identification documents of Ms Huynh before catching a train to the city. Later that day you went to the Richmond area, where you slept on the streets until your arrest some thirteen days later on the morning of 20 September 2017.
The body of Ms Huynh was not discovered until three days after her death.
On 10 September 2017, Ms Nguyen, a visitor to one of the tenants residing in one of the two St Albans bungalows, decided to investigate if you and Ms Huynh had vacated the squat house. She entered the sunroom to see bedding on the floor. She began to move the bedding until she noticed blood and realised there was a body beneath the blankets. The police were called and arrived to observe the body of
Ms Huynh lying on a thin camp mattress with obvious head injuries. A strong odour was apparent. The 73 centimetre metal sword was still in situ. The blade had penetrated approximately 17 centimetres into Ms Huynh’s brain.
From within the room police recovered a metal vacuum cleaner pole with blood and strands of hair attached to it. Blood spatters were observed on the walls and the ceiling. Ms Huynh’s body had undergone some decompositional changes.
An autopsy was conducted on 2 December 2017. The cause of death was not able to be ascertained, due in part to the decompositional changes that had occurred and also because a combination of factors may have caused the death. Despite this, the forensic pathologist made a number of relevant observations and findings.
There were multiple blunt force injuries to the left side of Ms Huynh’s head and one to the left side of her face. There was blood in the trachea, stomach and duodenum, indicating that Ms Huynh swallowed and aspirated blood prior to her death.
Ms Huynh’s hands and wrists displayed multiple bruises, lacerations and abrasions consistent with defensive marks. She suffered multiple other injuries over the shoulder, lateral chest and breasts. It is unclear whether the metal sword inserted into Ms Huynh’s head made a significant contribution to her death.
A toxicological analysis showed no alcohol, common drugs or poisons within
Ms Huynh’s system.
Shortly after your arrest, you participated in a record of interview with police in which you made a number of significant admissions.
You said that when you arrived back to the squat house that Ms Huynh had started “nagging” you about your drug use. You told her to “shut up”, but she wouldn’t and you got angry and “wacked” her several times about the head and face until she stopped moving. You initially said that she was lying down when you first hit her, but later said that she may have been either sitting or standing until you struck the first blow. You could not explain why you struck so many blows, but you admitted that you kept going until she no longer said anything. You said you realised she was dead and covered her with a blanket. You were scared and decamped after changing your clothes.
With respect to your drug use, you admitted to feelings of anger and loss of control when you used “ice”. You said you should not have returned to the squat house until the effects of the drug had worn off.
You admitted to owning the sword located by police at the squat house but could not recall inserting it into Ms Huynh’s head. You also did not recall attending the Alfrieda Street ANZ ATM to withdraw funds from Ms Huynh’s account and you denied killing her for the money in that account. You told police that you had left Ms Huynh’s purse and identification documents in a garden bed in Richmond. They later recovered it from that location.
Impact on Victims
I have received a Victim Impact Statement from each of the two sons of Ms Huynh. The shock and grief of these two young men is palpable. Each of them speak of missing the small, ordinary interactions with their mother and of a profound sadness that important future events in their lives will not be shared with her. Planned overseas travel will not eventuate. Ms Huynh will never know the future spouses and children of her sons.
Each of them speak of how difficult it is to talk about what has happened to their mother. And of a feeling of social isolation. They are, as one said, “broken and miserable”.
Prior Criminal History
You have a very significant criminal history.
It is not necessary to set that history out in full detail, but since 1989, when you were 20 years of age, you have had a substantial number of court appearances for a variety of offences. You have received fines, community based dispositions and sentences of incarceration which have been both suspended and actual. You have breached a number of court orders. Your past crimes are largely property and drug related, with a few instances of weapon, assault and causing injury offences.
Your criminal record reads as it actually is: the history of man with a pernicious drug addiction and scant ability to live a life other than in the milieu of crime.
There is a further matter relevant to your antecedents.
In August 2017, the month before you killed Ms Huynh, she had in fact been residing in Braybrook with another man in an intimate relationship. That relationship was of short duration and Ms Huynh asked you to help her move from that Braybrook house. In doing so Ms Huynh told you that that other man had repeatedly raped her over the proceeding weeks.
In response, you armed yourself with a samurai sword and an imitation handgun. You approached that other man in his kitchen and pushed the barrel of the imitation firearm against his forehead. Believing that firearm to be real, that man managed to push it away. You then attempted to unsheathe the sword and yelled words to the effect of, “I am going to kill you, I am going to stab you until you die because you took my wife”. The other man managed to grab the sword, preventing it from being fully unsheathed, suffering a minor cut to his hand. He then fled. By the time police arrived, so had you.
The following day, you received a phone call from the niece of that man. In response you threatened to burn the man’s house down and demanded a few thousand dollars from his niece on pain of killing her and her mother if that demand was not met and, additionally, threatened to attend at her home with your gun, samurai sword and other people.
You had taken ice at the time of these events.
Your counsel stated that you are to plead guilty to various offences arising from this conduct shortly. But it is significant to note that you were arrested, charged and bailed to appear with respect to these August 2017 events prior to 7 September 2017. Consequently, you were on conditional liberty at the time you murdered Lina Huynh.
Personal History
I now turn to the matters personal to you.
You were born in Vietnam on 28 June 1968. You were 49 years of age at the time of the offence. You are now 50 years of age.
Your father was a ranking officer in the South Vietnamese Forces during the Vietnam War. He was killed in about 1973. From 1975, you and your family suffered persecution and discrimination at the hands of the victorious North Vietnamese communist regime.
You were raised by your mother and attended school, but, in 1983 at the age of about 15, your mother arranged for your passage out of Vietnam to enable you to avoid military service and further difficulty. That journey took you across the South China Sea to the Philippines. There you spent about a year in a refugee camp before you were selected to immigrate to Australia.
Upon arrival to this country you spoke no English. You lived with a cousin and, despite the language difficulty, attended high school where you had limited success.
For the decade between about 1988 and 1998 you worked in various factory positions. You have not been in employment much, if at all, since that time, but rather in receipt of unemployment benefits.
You had two significant relationships before that with Ms Huynh. Each lasted about five years. The first commenced when you were about 20 years of age and the second when you were about 28 years of age. That latter relationship progressed to marriage in 1999. That union produced a son, now an adult resident interstate. You have no contact with him.
You commenced the use of illicit drugs during the first of those relationships and it is necessary to describe your drug history.
You commenced using heroin in your early twenties. What began as occasional use rapidly became a daily habit. The magnitude of that daily habit escalated. And so began your criminal offending in the form of petty crime to support your addiction. That, too, soon escalated. It was not long before you were first imprisoned, but even the custodial environment, and access to rehabilitation and methadone programs, could not break the cycle. And, as I have already said, your criminal history is a map of the next quarter century or so of your life.
You commenced using methamphetamine in about 2013 in an ill-conceived effort to counteract the sedative effect of methadone. It became a daily habit and, as you told police, the more money to which you had access, the more ice you used.
Since your arrest for the murder of Ms Huynh you have recommenced a methadone program and, as it was put on your plea, remained free of illicit drugs. Apparently this is the first time you have managed to remain drug free within a custodial setting.
Or, indeed, for long outside of it.
I have read the psychiatric report of Dr Fiona Best tendered on your behalf. She stated that you meet the criteria for Amphetamine Use Disorder and Opioid Use Disorder (on maintenance therapy and in a controlled environment). She did not find any causal connection between your offending and any mental disorder. Indeed no issue of Verdins[1] was raised on your plea.
[1]R v Verdins (2007) 16 VR 269 (‘Verdins’).
You have recently been diagnosed with HIV.
Analysis
The murder of Lina Huynh was a savage and vicious crime during which you employed two different weapons. In a sustained attack you used a metal pole to beat the women you profess to have loved and who was defenceless, until she was, at least, unconscious. One blow was sufficient not only to lacerate the skin of her scalp, but also to fracture the bone of her skull. You further defiled her by inserting the blade of a sword through her nostril until it had penetrated her brain to a significant extent. This was, as the learned prosecutor submitted, a most serious example of family violence.
The need to impose a sentence with significant emphasis on general deterrence is manifest. The law must uphold the sanctity of human life by imposing condign punishment on any member of the community who kills another with murderous intent and without lawful justification or excuse. There is also a need to denounce what you did to Ms Huynh and for just punishment. The murder of an intimate partner is nothing less than detestable.
I do accept that you acted spontaneously, in the heat of an argument about your drug use, without any premeditation. I accept that you did not kill Ms Huynh for the money in her bank account.
But your callous, cowardly behaviour immediately after Ms Huynh’s death in leaving her body, taking her bank card and identification documents and leaving the scene demonstrates that at that stage you had no regard for anything except your own interests. The remorse that you have subsequently expressed, particularly when interviewed by police and then to Dr Best, came much later. I accept those later expressions of remorse as genuine.
I also take account of your early plea of guilty. Not only is it indicative of some remorse, but I take into account its utilitarian value. Your plea has facilitated the course of justice. The community has, by that plea, been spared the expense of a trial. And the family and friends of Ms Huynh have been spared the ordeal of a trial.
At your plea, your counsel argued that there is something unique to a plea of guilty to a charge of murder that was deserving of a particular discount in the sentencing exercise.[2] This submission was based upon a combination of the seriousness of the charge and the asserted rarity of a plea of guilty to it. The latter factual issue was disputed by the Crown.
[2]Counsel for the accused referred to R v Donnelly [1998] 1 VR 645, 648 (Charles JA) (‘Donnelly’) and
As Charles JA said in Donnelly:[3]
…[a] sentencing judge possess a discretion of great width [and] that … it is for the [sentencing] judge to interpret the quality and implication of the plea [of guilty].
[3]Donnelly [1998] 1 VR 645,648; see also R v Gray [1977] VR 225.
Indeed, when undertaking the instinctive synthesis, it is necessary for me to take into account the desirability of a plea of guilty in facilitating the course of justice, preventing community expense and in the avoidance of the inevitable trauma occasioned to a victim’s family and witnesses during a trial.[4] I am also required to consider as to whether or not a plea of guilty is indicative of genuine remorse and an accused’s prospects of rehabilitation. In addition to the other statutory considerations set out in s 6 of the Sentencing Act 1991 (‘the Act’), I must also to take into account the stage at which the plea of guilty was entered.[5] Reductions in a sentence, in light of a guilty plea, may also be made for purely utilitarian reasons as dictated by the public interest.[6]
[4]Duncan [1998] 3 VR 208, 214-5.
[5]See also Donnelly [1998] 1 VR 645, 648-9.
[6]Ibid.
As I have already said, I have taken into consideration the various principles applicable to your plea of guilty and its impact on the sentence that I am to pass.[7] Irrespective of statistics and in light of the well-established principles that relate to the assessment of the appropriate discount to be applied for a plea of guilty, I do not accept that there is anything unique to a charge of murder that, over and above a consideration of the usual sentencing principles, it is necessary to apply a further discount because such a plea is to the ‘most serious offence on the criminal calendar’.
[7]See paragraph [50] above.
You were heavily intoxicated with ice at the time of your offending. Your counsel urged that this was simply explanatory of your behaviour. I do not accept that submission.
You knew the effect that drug had upon you. You told police that you should not have returned to the squat house while the effects were still apparent. And, as you told Dr Best, “[i]n past, I grab a key and go”. While, as the learned prosecutor correctly and fairly submitted, you do not have previous convictions for drug fuelled violent offending, which softens the aggravating impact of your ice use, I nonetheless find your methamphetamine intoxication to be an aggravating feature of your conduct. As I said, you were aware of its effects and you had, just the month before, engaged in acts of violence whilst drug fuelled.
The events of August 2017 as they relate to Ms Huynh’s prior intimate partner and his family are disturbing. Your counsel did not, correctly in my view, press the submission that your behaviour then was protective of Ms Huynh. A more apt description of your behaviour is that it was possessive, jealous and opportunistic. Appropriate and protective behaviour towards your partner, when she made the complaint of sexual violence, would have been to ensure her physical and psychological wellbeing and to encourage the intervention of the appropriate authorities rather than attack the alleged perpetrator in his home, threaten his relatives and take the opportunity to demand money.
Whilst the sentence I impose does not encompass any punishment for the offences then committed, they are relevant because you used weapons during the course of your drug fuelled violent behaviour and, because of those offences, you were on bail at the time you murdered Lina Huynh.
I consider your breach of that conditional liberty as an aggravation of your conduct.
Your history of a disregard for and non-compliance with court orders gives great concern for your prospects for rehabilitation. As does your drug use. The two are, of course, related. As Dr Best stated:
Abstinence from illicit drugs will likely be the most important predictor of recidivism in the future.
You have made what your counsel called an earnest start. You have accepted responsibility for your actions. You have remained drug free and recommenced a methadone program. You have been working five days a week on an assembly line. You have completed an English literacy course and have begun cooking in your spare time. But, there is no doubt given your antecedents, that however earnest your start during the last year has been, the road ahead will be long and arduous. I consider your prospects of rehabilitation to be guarded at best. And the sentence I pass must take account of the need for specific deterrence.
Your counsel submitted that the particulars of your early history in Vietnam, the Philippines and then Australia have a mitigatory effect including upon your moral culpability.[8] Dr Best said of that history:
These early traumatic losses would have had the potential to compromise [your] development to adult life in the areas of interpersonal functioning, family supports, education and employment.
[8]Marrah v The Queen [2014] VSCA 119 at [16]-[17]; R v Rookledge [2004] VSC 300 at [18] (Smith J).
While I accept that the difficulties of your childhood and adolescence have undoubtedly had an impact upon your development and is thus mitigatory, I am of the view that your drug use is more relevant to an assessment of your moral culpability for your offending. It was not submitted on your plea that you commenced taking drugs as a direct consequence of and in response to your difficult formative years. Indeed you did not commence illicit drug use until your twenties.
Nonetheless, I do take into account your background as part of an assessment of your personal circumstances. I also take account of your current isolation and language difficulties in prison.
I also accept that your recent diagnosis of HIV means that you will find imprisonment more burdensome than a person who does not suffer from that condition.
I have been referred to a number of authorities to assist me with the range of sentences for a murder such as this.[9] I have had regard to current sentencing practice.
[9]R v Klaussner [2015] VSC 296; DPP v Daing [2016] VSCA 58; McPhee v The Queen [2014] VSCA 156; Felicite v The Queen (2011) 37 VR 329.
Sentence
Mr Tang, would you please stand.
Balancing, as best as 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 25 years. You must serve a minimum of 20 years before being eligible for parole.
I declare that you have already served 313 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. I would have imposed a sentence of 28 years’ imprisonment with a non-parole period of 23 years.
I also make the disposal order in the terms sought by the Crown.
R v Duncan [1998] 3 VR 208, 215 (principle 10) (‘Duncan’) as authority for this proposition.
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