R v Tepsut
[2015] VSC 399
•7 August 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015 0100
| THE QUEEN |
| v |
| TEPARAT TEPSUT |
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JUDGE: | BEALE J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 3 August 2015 |
DATE OF REASONS: | 7 August 2015 |
CASE MAY BE CITED AS: | R v Tepsut |
MEDIUM NEUTRAL CITATION: | [2015] VSC 399 |
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CRIMINAL LAW – Sentence – Murder – Joint criminal enterprise – Serious example of murder – Evidence of remorse – Plea of guilty – Utilitarian discount – Discount for undertaking to give Crown evidence against co-accused.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A Tinney SC and Ms R Harper | Office of Public Prosecutions |
| For the Accused | Mr J Hannebery | McNamara’s Barristers & Solicitors |
HIS HONOUR:
Introduction
Teparat Tepsut, you have pleaded guilty to the murder of Luke Mitchell. The maximum penalty for murder is life.
Circumstances of the Offence
In the early hours of 24 May 2009, you and your former friends, Thatiya Terdputham and Sarud Seehaverachart, cornered Mr Mitchell in the car park of a 7-Eleven on Sydney Rd, Brunswick. In plain view of many horrified witnesses, Mr Mitchell was then viciously attacked. He was punched and kicked and stabbed repeatedly, including three times to the chest and once to the abdomen, which proved to be the fatal stab wounds. It is unclear whether all three of you physically participated in that cowardly attack. Some witness saw only two men assault Mr Mitchell. Others saw three or four. Discrepancies such as these are not surprising, given the speed and shocking nature of the attack.
What is clear is that what was done to Mr Mitchell was done by agreement between the three of you. All three of you hunted him down. Why? Because he had the temerity a short time before to try and stop members of your group from assaulting another man named Craig Bartlett.
Mr Bartlett had upset your group because, as he was walking along Sydney Road, he saw Terdputham and Seehaverachart arguing with a woman and told them to leave her alone. He was punched and chased for his troubles. You joined in, throwing an abandoned pram at Mr Bartlett.
That’s when Mr Mitchell, a stranger, stepped in. Blows were exchanged. Terdputham and Seehaverachart were both injured. The fight ended and Mr Mitchell moved away.
But your group, which had been drinking whisky heavily throughout the evening, was not prepared to let matters rest there. You, Mr Tepsut, went and got knives and a meat cleaver from a nearby massage parlour that you owned. You say that you did that under instruction from Terdputham. You returned to the street and offered Terdputham and Seehaverachart weapons. Terdputham took some at that time, Seehaverachart did not.
All three of you went into the massage parlour for a short time, then got into the black Mercedes that Terdputham was driving that evening. It was his mother’s car. The three of you drove south on Sydney Road, looking for Mitchell. He, his sister-in-law, Daniela, and some friends had stopped at the 7-Eleven in their car to get cigarettes. On spotting Mitchell, Terdputham drove the Mercedes into the 7-Eleven car park and all three of you hurriedly got out of the car. You admit that you were armed with a knife or knives. It is likely that the other two were also armed with knives by that stage. During the attack on Mr Mitchell, which I have already briefly described, his sister-in-law Daniela physically intervened, trying to stop it. She suffered some knife wounds herself but, thankfully, nothing major.
Once the three of you had completed the task that you came for, you all jumped back in the Mercedes and sped off. There was much blood in the car and on the knives. Some of the blood was Seehaverachart’s as his arm was cut badly during the frenzied attack on Mitchell. So the Mercedes was dumped and the knives thrown over a fence, not all that far from the 7-Eleven. Mr Mitchell died on an operating table at the Royal Melbourne Hospital at approximately 6am. Before the day was over, the three of you had flown out of the country on two separate flights to your homeland, Thailand, leaving many more victims than just Mr Mitchell in your wake.
Victim Impact Statements
I have received victim impact statements from Mr Mitchell’s mother, father, stepmother, two brothers and sister–in-law Daniela. Their loss and suffering is immeasurable. Luke Mitchell was only 29 when you and your friends took his life. As his mother Carol observed in her victim impact statement, ‘[he] should have had a long life to live.’ His extended family, friends and co-workers are no doubt also deeply affected by his premature and violent death.
Serious Example of Murder
On the spectrum of murder offences, this murder falls in the upper range. As I said, you hunted down Mr Mitchell. The attack upon him with deadly weapons occurred in a very public place. You and your co-accused were not deterred by the fact that there were many people present. In full view of these witnesses, your victim was punched, kicked and stabbed repeatedly. You took revenge on Mr Mitchell for, a short time earlier, courageously coming to the aid of Mr Bartlett. After the killing, you fled not only the scene of your crime but the country, the very same day.
As your counsel acknowledged and I quote, ‘this is a serious example of an offence of the utmost seriousness. Just punishment, general deterrence and denunciation are important sentencing considerations.’[1]
[1]Defence outline of argument [2].
Personal History
Let me turn now to your personal history. You are 32 years of age, your date of birth being 8 May 1983. You had just turned 26 at the time of the offence. You are an only child. Your father is a Major General in the Thai army, your mother, a recently retired school teacher. They live in Thailand. Gaol will be harder for you because you have no family here.
Also, your parents are not well. Your father had heart surgery in recent years. Your mother has diabetes, high blood pressure and respiratory problems.
You completed your secondary education in Bangkok. In 2002, at the age of 19, you moved to Australia and studied English at Box Hill TAFE for one year. You completed a bachelor degree in hospitality and management in 2006 through Queensland Central University, which has a campus here in Melbourne.
After completing your bachelor degree, you returned to Thailand and, between 2006 and May 2008, you worked with a large department store chain called the Mall Group. Your final position there was International Marketing Manager.
During this period, you also undertook voluntary work as a teacher at lower secondary level. I was provided with a number of certificates in relation to your volunteer work and charitable activities.
In 2008, after completing a 150 hour course in Traditional Thai massage, you returned to Australia and commenced a Masters of Management (Marketing), again through Central Queensland University. At the time of this offence, you had one subject remaining. You were also operating the Traditional Thai Massage business in Sydney Road, which, I am told, your father helped you to acquire.
After the offence, you fled this country, returning to Thailand where, somewhat ironically, you worked for a security services company until your arrest on 1 July 2014.
Having regard to the fact that over many years you seem to have applied yourself conscientiously to both work and study, and more significantly, having regard to the fact that you have no prior or subsequent convictions, it is, as your Counsel observed, ‘bewildering’ that you participated in such extreme and mindless violence on the night of the offence.
But, the positive aspects of your personal history enable me to find that you have excellent prospects of rehabilitation.
The Value of Your Co-operation
So too does the fact that you have pleaded guilty and agreed to cooperate with the authorities in the prosecution of your co-accused. Had you fought extradition, your return to this country could have been years away, and the prospect of another harrowing trial would have been one more thing weighing on the minds and hearts of the Mitchell family. The many witnesses have also been spared another trial, and the community has been spared the cost of additional, drawn out proceedings.
When you were brought back to Australia on 17 July 2015, things moved quickly. You promptly made a signed statement acknowledging that you were a party to a murderous joint criminal enterprise, you waived your right to a committal hearing and agreed to direct indictment. You gave evidence at a Basha hearing on 30 July 2015, confirming the contents of your statement. Your plea of guilty and ongoing cooperation are very weighty sentencing consideration in your favour. They also bespeak remorse.
Full and Frank Disclosure?
Both the Prosecutor and Defence Counsel put the value of your recent and promised cooperation in relation to the prosecution of the other two at a high level. True it is that your statement incriminates you as well as the others. Further, your account is consistent with and confirms what an independent eyewitness, Hamish Michael, said he observed as he looked out of his upstairs window from the other side of Sydney Road in the early hours of 24 May 2009, namely, the first altercation between your group and Luke Mitchell in Sydney Road near the massage parlour, you then going to the massage parlour and returning with knives, you offering those knives to both Terdputham and Seehaverachart and Terdputham taking some of those knives from you. Mr Michael’s observations were made from some distance away and at night: they are open to challenge on that score. Any such challenge is made much more difficult by your evidence. Further, you provide an account of what transpired between the three of you between the time that you armed yourselves and your arrival in the black Mercedes at the 7-Eleven where you spotted Mr Mitchell. That account includes Terdputham saying he would ‘teach Mitchell a lesson’. While that alleged statement by Terdputham might be somewhat ambiguous, the prosecution case of a joint criminal enterprise is strengthened by this evidence. You describe Terdputham as holding a knife as he got out of the Mercedes at the 7-Eleven. Your account of what happened after the attack at the 7-Eleven also fills in a number of gaps in the prosecution’s narrative of events.
But having said that, I have reservations about the reliability of some of your evidence. There are some notable differences between your draft statement of 19 July 2015 and your signed statement of 21 July 2015. In giving evidence at the Basha hearing on 30 July 2015, you eventually conceded under cross-examination from Terdputham’s counsel that in your draft statement you tried to recount events ‘without much relation to [yourself]’[2]. You went onto say that in your signed statement you tried to make it more complete.
[2]R v Terdputham & Anor (S CR 2014 0144; S CR 2014 0155), pre-trial transcript 107.
As to who made the initial decision to resort to knives, it is difficult to say. There is independent evidence from Hamish Michael that you went over to the massage parlour after the first altercation and returned to your friends with multiple knives, and in fact handed Terdputham some knives. You claim that Terdputham was the instigator, that he told you to go and get the knives and that he made the decision to go after Mr Mitchell to teach him a lesson. That account may be self-serving but neither is it far-fetched, given that Terdputham was injured by Mitchell in the first altercation, that the three of you were driven by Terdputham in his car to the 7 –Eleven, that Terdputham’s girlfriend and a prison informer, Greg Dunn, both say that he admitted to stabbing Mr Mitchell.
The role you ascribe to yourself at the 7-Eleven in both your draft and signed statement is that of an onlooker, armed and ready to assist if necessary but not a physical participant in the attack. But several eyewitnesses say three or more Asian males physically attacked Mr Mitchell at the 7-Eleven. Orlando’s statement even suggests you stabbed Mr Mitchell. Further, you say you did not see either of your friends actually stab Mitchell.
On the other hand, a number of witnesses say there were only two attackers, and the accounts tend to suggest they were Terdputham and Seehaverachart.
I cannot be satisfied beyond reasonable doubt that you are telling half-truths. But nor can I be satisfied on the balance of probabilities that you are telling the whole truth.
But I acknowledge that your evidence makes a strong prosecution case stronger, especially against Terdputham. And I do not overlook the fact that as a result of your co-operation with the authorities in the prosecution of your co-accused, prison is likely to be more burdensome for you than other prisoners.
I will accept your Counsel’s submission, with which the Prosecution agreed, that your plea of guilty and cooperation with the authorities in the prosecution of Terdputham and Seehaverachart in particular ‘takes the penalty … down to a level that is at the lower end of the scale for murder.’[3]
[3]Plea transcript 47.
Sentence
I sentence you to imprisonment for 15 years with a non-parole period of 11 years.
I have imposed a significantly discounted sentence because of your plea of guilty and cooperation with the authorities in the prosecution of your co-accused, which are intertwined.
Following the approach of Justice Terry Forrest in R v Lewis,[4] I declare under s 6AAA of the Sentencing Act 1991 (Vic) that, but for your plea of guilty and cooperation in respect of the proceedings against your co-accused, I would have sentenced you to 24 years imprisonment with a non- parole period of 18 years.
[4] [2015] VSC 252.
I make the forensic sample order and confiscation order sought by the prosecution.
I declare that you have served 402 days by way of presentence detention.[5]
[5]Pursuant to section 18(1) of the Sentencing Act 1991 ‘… any period during which [Mr Tepsut] … was held in custody in relation to— (a) proceedings for the offence; or (b) proceedings arising from those proceedings … must be reckoned as a period of imprisonment … already served under the sentence unless the sentencing court … otherwise orders.’ The High Court indicated that a period spent in custody in an overseas gaol awaiting extradition could be taken in account under the Western Australian equivalent of s 18 in the court’s discretion (Sentencing Act 1995 (WA), s 87 and Lau v The Queen [2009] HCATrans 275 [125]). Section 87 permits the court to have discretionary regard to ‘time in custody in respect of that offence’ – language closely analogous to that in s 18 which refers to ‘period … in custody in relation to … proceedings for an offence’. The Victorian Court of Appeal has considered sentencing appeals in cases where incidentally the sentencing judge had included periods of overseas custody pending extradition in its determination of pre-sentence detention, and did not question that approach (Majeed v The Queen [2013] VSCA 40 [13] and Mokbel v R [2013] VSCA 118 [72]; (2013) 40 VR 625, 646). Accordingly I declared 402 days to be pre-sentence detention. This figure includes the period Mr Tepsut spent in custody in Thailand, prior to extradition.
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