R v Tang
[2010] VSC 604
•17 December 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2009 1484
| THE QUEEN |
| v |
| TAI SHUM TANG |
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JUDGE: | T FORREST J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 8,9,10, 12, 15, 16, 17, 18 November and 14 December 2010 | |
DATE OF SENTENCE: | 17 December 2010 | |
CASE MAY BE CITED AS: | R v Tang | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 604 | |
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MURDER – Late plea of guilty – Intention to cause really serious injury – Post-mortem incineration of body an aggravating feature.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs C Quin | Solicitor for Public Prosecutions |
| For the Accused | Mr S Johns | Balmer & Associates |
HIS HONOUR:
Van Nguyen was 23 when she died. She lived on level 3, 110 Elizabeth Street Richmond with her parents and suffered from a mild intellectual disability. The cause of her death was blunt force trauma to the head. Findings consistent with manual neck compression were also made by the pathologist Dr Dodd. Van Nguyen’s partially incinerated body was found on 14 September 2008 in a metal rubbish skip at the rear of a Fasta Pasta restaurant in Cheltenham Road Keysborough.
You worked at that time at a restaurant called Eat Asia, situated in the Parkmore Shopping Centre, Cheltenham Road Keysborough, opposite the Fasta Pasta restaurant. You also lived in Elizabeth Street Richmond, a short distance from the deceased.
You were arrested on 18 September 2008. As a result of thorough and highly competent investigation a very strong case had been assembled against you. On 13 September 2008 you telephoned the deceased at 4.46pm. The call lasted about one and a half minutes. At 10.53pm you entered the foyer area of 110 Elizabeth Street Richmond. At 10.54pm you entered a lift in that building and ascended to the third floor. At 10.55pm you telephoned the deceased’s mobile phone. This call lasted for twenty-two seconds. At 11.29pm you and the deceased entered the lift at 110 Elizabeth Street and travelled to the foyer. You left the building together. This is the last recorded sighting of the deceased.
At 4.38am on the 14 September 2008 your silver Toyota Rav4 was filmed by surveillance cameras in the Parkmore Shopping Centre driving around the car park and loading bays. It stopped at an area of rubbish bins before departing the scene. This is a short distance from where the deceased’s burning body was later discovered. Your vehicle was further filmed in the vicinity of the Fasta Pasta restaurant at 4.59am. A fire in a rubbish skip at the back of the restaurant was reported to the Fire Brigade at 5.44am. The deceased’s partially incinerated body was discovered once the fire was extinguished. Her body was partly clad.
You drove your vehicle home before returning to work at Keysborough at 10.00am. Although rostered to work until 5.00pm you left at about 1.30pm. Your explanation for leaving work at that time was false.
During your interview with police you accepted you knew the deceased and maintained you had accompanied her to a festival on the evening of the 13 September. You said you had eaten with her and walked her to her home leaving her there at about 9.00pm. You said you did not see her or speak to her again after that and that you remained at your unit throughout the night. Your account is demonstrably false, and I am satisfied beyond reasonable doubt that it was motivated by a desire to conceal your guilt of this offence.
The Toyota was seized by police and examined for the presence of DNA. I am satisfied beyond reasonable doubt that the deceased’s DNA was found on
(a)the rear door;
(b)the base of the front passenger seat. Blood was also found at this location;
(c)the back of the front passenger seat.
You pleaded not guilty at your committal in August 2009 and were presented for trial on 8 November 2009. A voir dire was conducted concerning the admissibility of the police interview. It occupied most of four court days. I ruled on that argument and another unrelated argument on the fifth court day and a jury was empanelled on 16 November 2010.
On 18 November 2010, your counsel, Mr Johns, advised me that you wished to change your plea to guilty of the charge of murder. This course, therefore, occurred on the third day of the trial itself and on the eighth day of the overall hearing. Mr Johns conveyed your profuse apologies for the inconvenience and waste of time occasioned by the lateness of your plea. I will observe, in due course, that notwithstanding its timing, I regard your plea as having some utilitarian value.
You are now 52 years old. You were born in a village south of Saigon to a Chinese/Hainanese family. You are the youngest of five children and your parents were rural workers. At age 9 or 10 in 1967 or 1968 you fled Vietnam for Hong Kong with your family. You remained in Hong Kong as an adult. Your schooling ceased when you left Vietnam and you ultimately were employed as an electrical worker.
In 1989 your mother suffered a stroke. She had emigrated to Australia many years earlier. You came to Australia to assist with her care and have remained living in the Richmond area ever since. You have worked as a kitchen hand and cook since you arrived here and you have no prior convictions. You have never married or fathered children and you are currently unattached.
Your solicitors have engaged Dr Danny Sullivan, psychiatrist and Mr David Ball, psychologist at various stages of the legal process. Dr Sullivan was initially engaged in August 2009 to assess your fitness to plead. He offered the opinion then that you were fit to plead, although likely suffering from an adjustment disorder with a depressed mood, and that you presented as having low intellectual functioning. He was consulted again, when on the second day of the jury trial you indicated a desire to change your plea. Again he was of the view that you did not suffer from any mental illness but that you were markedly distressed and suffering the effects of sleep deprivation. Again he regarded you as fit to be tried and prescribed a tranquillising agent.
Mr Ball prepared a psychological assessment after your change of plea. He consulted with you on 29 November at the Metropolitan Remand Centre.
I quote from his report:
Notably, Mr Tang was uncooperative in the assessment and declined to answer many questions including those relating to his back ground and the actual offence. I am given to believe that he has been similarly unresponsive with Defence Counsel. As an initial phase of Mr Tang’s consultation, I completed a limited evaluation of his mental status, including his mood, his thought processes, and his degree of insight.
With this substantial qualification Mr Ball offered the following tentative opinions. He could find no evidence of personality disorder, mood disorder or other clinical syndromes, although he thought there may be some symptoms of depression and anxiety reactively arising from your current circumstances. He found no evidence of alcohol or substance dependence, but he was of the view that your untested IQ would fall in the borderline range placing you in the bottom 5% of the population. Having observed you in the witness box on the voir dire, I saw nothing inconsistent with this aspect of Mr Ball’s assessment, and it is confirmed by Dr Sullivan’s impressions. For completeness I should add that I consider you were slightly more open in your instructions to your counsel than you were with Mr Ball.
Victim Impact Statements have been received from Hanh Thi Bui, the deceased’s mother and Thanh Thai Nguyen, the deceased’s brother. They reveal the profound grief that you have caused them and their family. Van Nguyen’s father is in poor health, her mother is struggling to cope with his care needs and you have added immeasurably to their burden. The deceased was their conduit to the wider world. I am required to and do take into account the impact of your actions upon them.
Any assessment of your moral culpability is necessarily based on circumstantial evidence. This is because you have refused and continue to refuse to supply an account of the events leading to the death of Van Nguyen. I have already observed that your police interview was largely false. You declined to discuss these events with your psychologist or psychiatrist and you have instructed Mr Johns about some of the events of the evening only, stopping short of revealing anything of exactly how or why you killed Van Nguyen.
By your plea you admit that your intention was at least to cause really serious injury to Van Nguyen at the time that you carried out the act that led to her death. Mr Johns submits that I ought not find that you had a specific intention to kill her. It is common ground between your counsel and the prosecution that the only evidence as to your specific intention comes from the pathologist Dr Malcolm Dodd. His examination of the remains of the deceased was to some extent frustrated by your incineration of her body. Nevertheless, widespread and extensive subgaleal haemorrhage involving all six planes was observed. There were no underlying cranial fractures. There was extensive haemorrhage surrounding the right eye and over the right maxillary region. A bruise approximately 3cm x 2cm was located superolateral (above and to the side) of the right elbow.
In the respiratory system the larynx and hyoid bone were intact. Subtle petechical haemorrhages were identified on the epiglottis and the mucosa of the laryngeal lumen immediately above the vocal cords. Dissection of the hyoid bone away from the laryngeal cartilage and the dorsum (or back) of the tongue disclosed marked haemorrhage within the interconnecting soft tissues, the haemorrhage being more pronounced on the right side.
Dr Dodd concluded, inter alia, as follows
The immediate cause of death in this case would appear to be one of blunt force trauma to the head (as evidenced by extensive acute subgaleal haemorrhage in all planes) in tandem with findings entirely consistent with manual neck compression.
I conclude that the deceased received significant blunt force trauma to the head, together with some external trauma to the laryngeal region. I am not satisfied beyond reasonable doubt that there was significant neck compression and I note the caution with which Dr Dodd expresses his findings on this aspect. In the absence of any account as to what actually occurred, and in the absence of any underlying cranial or laryngeal fractures, I am not satisfied beyond reasonable doubt that your admitted murderous intention was specifically to kill, as opposed to intending to cause really serious injury. I regard this as a factor that operates in your favour when assessing an appropriate sentence. In other words, I regard your moral culpability as somewhat lower than it would otherwise be.
You placed the body of the deceased into a metal skip amongst combustible materials and, using a quantity of petrol, sought to incinerate it. Your intention, I conclude, was to try to conceal the identity of the victim and thus your offending. I regard this as a serious aggravating feature of your offending. It has added to the grief of Ms Nguyen’s family and was carried out to avoid detention. It is also relevant to the issue of remorse. I do not consider that you have exhibited any real remorse. Immediately after killing the deceased you sought to destroy your victim’s remains; you lied remorselessly to the police; you ran a contested committal and only changed your plea on the third day of the trial; you continue to refuse to admit the precise circumstances in which you killed the deceased, and when your psychologist pressed you with the Court’s and the deceased’s family’s desire to have answers as to what actually occurred you maintained your silence saying only:
I don’t know how to answer. I’m not well educated. You are a psychologist. I don’t know how to answer.
I have been unable, in all the circumstances, to distil any remorse from your belated plea, although you are entitled to some credit for it. The community has been spared some of the expense and inconvenience that is associated with a contested criminal trial. I estimate that your plea has saved about a week of the Court’s time. Further, the family of the deceased have been spared the full anxiety of the complete trial process. Your plea came too late, however, to spare Ms Bui the ordeal of giving evidence in the trial of her daughter’s killer.
I consider your prospects for rehabilitation are reasonably good. You have no prior convictions and no other outstanding criminal matters. You are of mature years and have demonstrated a considerable capacity for work. The sentence I impose must necessarily be substantial, however, I believe it is unlikely that you will offend again.
I have earlier remarked upon your apparent low intelligence. It has not been suggested on your behalf that there is a link between that and your offending or that you come within the established principles that can operate to ameliorate penalties imposed on those with impaired mental functioning. Nevertheless I consider it has some relevance to this sentencing exercise. I consider that it may, at least in part, explain your amateurish attempts to conceal your criminality and your consistent refusal to confront the true nature of your actions – whether it be to the police, your counsel, your psychiatrist, your psychologist or this Court. In considering these aspects, I have moderated somewhat the effect of the aggravating feature of the defilement of the deceased. It may, in part, also explain your lack of remorse but it does not replace it as a mitigating factor.
I consider that I must give significant weight to the aspect of general deterrence. I accept that your offending was probably spontaneous and as a consequence of an outburst of anger. Spontaneous acts of violence are everyday occurrences in our community. The consequences are mostly the result of luck rather than careful management and too often are tragic. Those inclined to this type of violence must be deterred if possible. I do not consider there is any real need for specific or personal deterrence. Mrs Quin, who prosecuted, accepted that an inference that there was some sexual aspect to your offending could not be drawn on the evidence. Finally, on the matter of sentencing principle, I consider there is a need to punish you and denounce your conduct.
Balancing these competing factors as best I can, I sentence you as follows:
You will convicted and sentenced to 20 years imprisonment. I direct that you serve 16 years before becoming eligible for parole.
But for your plea of guilty, I would have sentenced you to 21 years imprisonment with a minimum of 17 years.
I declare that you have served 821 days pre-sentence detention including today and that such detention be noted in the court record.
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