R v TNV
[2014] NSWSC 1510
•31 October 2014
Supreme Court
New South Wales
Medium Neutral Citation: R v TNV [2014] NSWSC 1510 Hearing dates: 9-10 October 2014 Decision date: 31 October 2014 Before: Fullerton J Decision: For the murder of Brian Bao Dung Huynh, I sentence you to a term of imprisonment of 13 years and 7 months, comprised of a non-parole period of 8 years and 10 months commencing on 11 July 2012 and expiring on 10 May 2021, with a balance of term of 4 years and 9 months expiring on 10 February 2026.
For the murder of Phuc Uy Nguyen, I sentence you to a term of imprisonment of 15 years and 3 months, comprised of a non-parole period of 9 years and 11 months commencing on 11 July 2016 and expiring on 10 June 2026, with a balance of term of 5 years and 4 months expiring on 10 October 2031.
You will be first eligible for release to parole on 10 June 2026.
Catchwords: CRIMINAL LAW - sentence - murder - multiple offenders - guilty plea - youth of offender Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 6
Crimes Act 1900 (NSW), s 18(1)(a)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 54D(3)Cases Cited: BP v R [2010] NSWCCA 159; 201 A Crim R 379
Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
IE v R [2008] NSWCCA 70; 183 A Crim R 150
JT v R [2011] NSWCCA 128
KT v R [2008] NSWCCA 51; 182 A Crim R 571
MJ v R [2010] NSWCCA 52
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Jin [2011] NSWSC 169
R v Nguyen and Luong [2011] NSWSC 562
R v Way [2004] NSWCCA 131; 60 NSWLR 168Category: Principal judgment Parties: The Crown
TNV (Offender)Representation: Counsel:
N Adams (Crown)
G Brady (Offender)
Solicitors:
Director of Public Prosecutions (Crown)
Nyman Gibson Stewart (Offender)
File Number(s): 2009/237851 Publication restriction: Non-publication order as to offender's name
REMARKS ON SENTENCE
HER HONOUR: TNV was arraigned before me on 16 June 2014 (the date listed for his trial) at which time he pleaded guilty to the murder of Phuc Uy Nguyen and the murder of Brian Bao Dung Huynh contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). Both deceased died from stab wounds inflicted when they were attacked outside a bar in Bankstown on 1 February 2009. The offender participated in that attack with three co-offenders. He was aged 17 years old at the time of the murders (having turned 17 in January 2009) and 22 at the time of sentence.
The offender left Australia on 6 February 2009 and travelled to Vietnam where his father resides. He voluntarily returned to Australia on 28 March 2012. He was arrested on 11 July 2012.
On 12 July 2012, he participated in a lengthy recorded interview with police where he admitted being party to the attack in which the deceased died. At the conclusion of the interview he was charged with their murder. He has been in continuous custody since that time.
Murder carries a maximum sentence of life imprisonment. It also attracts a standard non-parole period of 20 years. However, having regard to the offender's age at the time of the offences and the operation of s 54D(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the standard non-parole period has no application in this sentencing exercise (see BP v R [2010] NSWCCA 159; 201 A Crim R 379).
The Crown submitted that each of the murders for which the offender is to be sentenced were above the mid range of objective seriousness. Whether that submission is accepted depends upon the resolution of a range of factual matters the subject of contest at the sentence hearing.
The basis upon which the offender's culpability for the murders should be assessed was also in dispute. The Crown submitted that he participated in a joint criminal enterprise with three co-offenders to inflict grievous bodily harm on Nguyen (and any of his friends who may have been present to support him) and that they were each armed with a knife for that purpose and with that intent. Defence counsel submitted that I would be satisfied that the offender should be sentenced on the basis that he participated in an extended joint criminal enterprise to assault Nguyen, knowing that each of his co-offenders was armed with a knife which might be used by them (or one of them) and that either Nguyen or someone in his company might suffer grievous bodily harm as a result.
Each of the following persons were convicted of the murders or being an accessory after the fact to murder:
(1) Hoang Huy Nguyen ("Kevin") was arrested on 13 October 2009 and was charged with two counts of murder. He was found guilty after trial and, after an order for partial accumulation, was sentenced to an effective term of imprisonment of 30 years with a non-parole period of 22 years and 6 months. He was aged 26 at the time of the murders (see R v Nguyen and Luong [2011] NSWSC 562);
(2) Minh Duc Luong ("Duc") was also arrested on 13 October 2009 and charged with the same two counts of murder. He pleaded guilty and, after a 10 per cent discount for the guilty pleas, was sentenced to an effective term of imprisonment of 28 years with a non-parole period of 21 years. He was aged 18 at the time of the murders (see R v Nguyen and Luong [2011] NSWSC 562); and
(3) Jian Jin ("Rick") was arrested on 11 May 2009 and charged with two counts of accessory after the fact to murder. He was found guilty after trial and was sentenced to imprisonment for 2 years and 3 months with a non-parole period of 12 months. He was aged 22 at the time of the offence (see R v Jin [2011] NSWSC 169).
Two other men, Manh Duong Tran ("Tran") and Liang Xu ("Gary"), were also involved in what the Crown contends was the agreement to inflict grievous bodily harm to which this offender was a party and from which the deaths of the deceased resulted. Neither was charged. Tran left the jurisdiction and has not returned. Gary was granted immunity from prosecution in exchange for giving evidence in the trials of Kevin, Duc and Rick. He has since served a sentence for an unrelated matter and was deported to China at the expiration of that sentence.
Kevin and Duc were sentenced for the murders by McCallum J in 2011 in accordance with the approach to sentence as mandated in R v Way [2004] NSWCCA 131; 60 NSWLR 168, a decision since disapproved of by the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. In sentencing Kevin after trial for each of the murders, and in sentencing Duc who pleaded guilty on the first day of trial, her Honour departed from the standard non-parole period of 20 years.
Although the standard non-parole period for murder has no application in these sentence proceedings, equal justice considerations which underlie the principle of parity will need to be considered in order to ensure there is no unjustified disparity between this offender's sentence and the sentences that have been imposed on Kevin and Duc. Differences in their subjective circumstances will also need to be considered. The maximum penalty of life imprisonment operates as a legislative guidepost in these proceedings, as it did in the proceedings of the co-offenders.
The fact that this offender was a juvenile at the time of the murders is a significant differentiating factor. His chronological age, coupled with the insights into the extent of his emotional immaturity provided in the reports Mr Borenstein, a clinical psychologist, and Dr Nielssen, a forensic psychiatrist, informs the assessment of his moral culpability for the murders. In addition, the weight to be afforded his prospects of rehabilitation, both because of his youth and the passage of time between the offending and sentence, will also need to be considered in fixing an appropriate sentence.
On sentence, the Crown tendered a folio of documents, including the offender's electronically recorded interview with police and CCTV footage which recorded the confrontation with both deceased in the course of which they were fatally stabbed, together with the events immediately preceding and subsequent to that attack. The applicant is clearly depicted as present on the approach to and throughout the confrontation, including running from the scene with his co-offenders.
The offender gave evidence at the sentencing hearing.
To a large extent, the facts relied upon by the Crown for sentencing purposes were agreed, or were not the subject of any material contest. In addition, much of what the offender told police in the ERISP, which he repeated in his evidence, was not the subject of challenge.
What remained in issue was whether the evidence allows for a finding that when the offender armed himself with a knife at the invitation or direction of Kevin, and then joined with him, Duc and Tran (each of whom were also armed with knives) in approaching the bar where it was anticipated Nguyen would be in company with others, it was their joint intention to use the knives to inflict grievous bodily harm or whether that decision (if it was made at all) was only made at the point of the confrontation. If the evidence does not allow me to find the murders were committed as part of a joint criminal enterprise, the only available basis upon which the offender is to be sentenced for murder is by the operation of an extended joint criminal enterprise to assault where the possibility of one or more offenders using the knives to inflict grievous bodily harm was contemplated by this offender.
Whether the offender used a knife in the attack on either of the deceased was also in issue.
The resolution of these factual disputes will inform an assessment of this offender's criminal culpability for each of the murders. While I am not obliged to resolve the disputes of fact in a way most favourable to him, he is entitled to the benefit of any reasonable doubt I might have both as to whether he participated in the joint criminal enterprise alleged by the Crown, and whether he inflicted any stabs wounds as a party to that agreement or whether he was party to an extended criminal enterprise. Were I satisfied that the offender did not actually stab either of the deceased, or that the evidence does not permit that finding to be made beyond reasonable doubt, it would follow that his criminal culpability for the murders would be lessened to some extent. However, what remains unchanged by a finding favourable to the offender on that issue is that two unarmed men were ultimately set upon by four armed attackers (this offender being one of them), in circumstances designed to ensure that the four attackers had the tactical advantage of surprise, and that two young men died in most violent circumstances, and in a public place, as a result.
Although it was no part of the Crown case that this offender inflicted either of the fatal stab wounds, the Crown did maintain the submission that I would be satisfied that he inflicted at least one of the ten stab wounds sustained by Nguyen after he ran from where his friend Huynh had been attacked and was fatally stabbed a short distance away. The Crown accepted that I might be left with a reasonable doubt as to whether the offender inflicted any of the three stab wounds sustained by Huynh.
Unless specifically noted, what follows are the facts that are not disputed.
On 1 February 2009, Nguyen was dining with friends at a restaurant in Bankstown when he thought he recognised Kevin sitting at a nearby table as a person responsible for assaulting a friend of his earlier in the year. Nguyen and his friends confronted Kevin. Kevin was struck by Nguyen and fled.
The offender gave evidence that Kevin telephoned him and asked him to come to Bankstown for what Kevin described as "something urgent". He did not supply any further details and the offender did not seek them. The offender gave the same account to police. As will become obvious when I deal with the offender's subjective circumstances, the offender was very much in Kevin's thrall at this time in his life and, for that reason, was vulnerable to his request or demand for assistance without the need for explanation.
In oral submissions the Crown accepted that the evidence did not support a finding beyond reasonable doubt that the offender was told over the telephone that he was needed to assist Kevin in launching a reprisal attack on Nguyen, and that he would be armed for that purpose when he arrived. It was the Crown submission that when he arrived at Bankstown he learned that Kevin had been assaulted by Nguyen after being falsely accused of having assaulted one of Nguyen's friends and that Kevin wanted his friends to accompany him to confront Nguyen (and anyone with whom he might have been in company) to avenge that accusation, or in retaliation at being struck, or both, and that Kevin arranged for them to be armed for that purpose.
The offender was picked up at his home by a taxi. Tran was in the taxi. The offender had not previously met Tran. Tran directed the taxi to pick up Duc, a friend of both the offender and Tran, after which they travelled to a multi-storey carpark in Bankstown. The offender was not asked in cross-examination as to what, if anything, was said en route to Bankstown or if the offender enquired of the others as to whether they knew the reason that Kevin had summoned them.
Gary, who gave evidence for the Crown in the trials of Kevin, Duc and Rick and whose account is summarised in the narrative statement of facts tendered before me, was also contacted by Kevin. Gary drove to Bankstown in his car. There was nothing in the statement of facts to suggest that Gary knew the reason he was being summoned, although it would seem to follow that Kevin had informed him of his intentions since it would seem that it was Gary and Rick who obtained or collected the knives that were brought to the meeting point and distributed.
On arrival at Bankstown, the offender, Duc and Tran collected Rick who was outside a bar before they met up with Kevin and Gary. The offender had not previously met Gary. It was at that time that a bag containing knives was retrieved from the boot of Rick's car and distributed to each of Duc, Tran and this offender by Gary. Kevin also armed himself with a knife. The offender gave evidence that Kevin instructed the group to use their knives, "if anything happened". The statement of facts (no doubt relying upon what Gary later told police) records a conversation where Kevin said, "I want to talk to these guys that fought me", and that Gary and Rick both cautioned against fighting with knives. According to the offender, he was told to keep the knife and to use it for his own protection. In his evidence he accepted that he knew at that time that it was likely there would be a physical confrontation between Kevin and Nguyen and that he was to be there for support. The offender's version and the Crown facts on this issue are not materially different. The question at issue is the form of support that was asked of him and the support he ultimately provided.
The evidence does leave room for doubt that there was an agreement forged at the time the knives were distributed that a reprisal knife attack would or be launched at Nguyen with the intention of causing him, or anyone with him, grievous bodily harm. I am satisfied, however, that the offender agreed to join with the others to confront Nguyen, and that he had a reasonable expectation that knives might be used in that confrontation in some way, or that he contemplated that might occur, and that someone might be seriously hurt. The fact that the offender told police that he placed the knife in the back of his trousers lends weight to that conclusion, as does the fact that he knew the other three men were also armed. A picture of the knife the offender carried was in evidence. It resembled a kitchen knife approximately 15 centimetres in length, including the handle.
There is no evidence to suggest that the offender was told, or that Kevin believed, that either Nguyen or anyone in his company would be armed. For the offender to arm himself with a knife, even on the basis that he was told or believed he may need it for protection, would suggest that he must have at least contemplated that he might use the knife proactively even if he had no plan to use it when he was first given it.
Shortly after the knives were distributed, the offender, Duc, Tran, Kevin and Gary were confronted by security guards patrolling the carpark and were directed to disperse. The offender gave evidence that he did not recall that happening. Despite there being some doubt on my review of the CCTV footage as to when and where this occurred, it is not an issue that needs to be resolved for sentencing purposes.
In the statement of facts it was after the knives were distributed that Gary drove the offender and Tran to Auburn where they had something to eat, only later returning to Bankstown when Gary received a telephone call from Kevin. Call charge records obtained by police support that account. The offender was unable to recall leaving the carpark with Gary and Tran, whether at the insistence of the security guards or otherwise.
I am prepared to proceed on the basis that with the passage of time the offender has simply forgotten the sequence of events on the night since it would seem from the available evidence that the whereabouts of the offender, from the time the knives were distributed from the boot of the car at about 7.45pm to the arrival of the four offenders at the bar at about 9.19pm, cannot otherwise be accounted for. The fact that he left with Gary and returned an hour and a half later also lends weight to the Crown's submission that he did not involve himself in the confrontation that resulted in the death of both deceased impulsively. By the time he arrived at the bar he had been in possession of a knife for over an hour and a half, with time to reflect upon the enormity of the situation in which he was involved. The extent to which he was emotionally capable of reflecting on such matters given his particular psychosocial circumstances and stage of emotional development as a youth of barely 17 years of age, and whether that informs his moral culpability for the murders of two men, will be addressed later.
At approximately 9.15pm, CCTV footage records what I am satisfied is the coordinated arrival of the offender, Tran and Gary in Gary's car and the arrival of Kevin and Duc in Rick's car. Both cars park in a carpark. Rick and Gary wait with the cars whilst Kevin, Tran, Duc and this offender approach the bar approximately 400 metres away.
Kevin entered the bar alone. He emerged very shortly afterwards with Nguyen, Huynh and another male friend of Nguyen. The offender, Duc and Tran were on the footpath. It was common ground that an argument ensued at that time. From the perspective afforded by the CCTV footage the argument must have almost immediately erupted into a physical fight although who did what cannot be discerned. It was in the course of that phase of the confrontation that Huynh suffered three stabs wounds, one of which penetrated his heart causing death.
The offender gave evidence that he did not stab Huynh although he accepted that he had pulled out the knife that had been given to him earlier from the back of his trousers when the physical fight erupted. In oral submissions the Crown accepted that the evidence did not allow for a finding beyond reasonable doubt that the offender inflicted any of the stab wounds suffered by Huynh.
I have reviewed the CCTV footage. It does not allow me to determine for myself whether or not the offender physically participated in the attack on Huynh by use of the knife. That said, it is clear to me that he was physically present and, to all appearances, in the thick of the melee where he knew his co-offenders were armed and not standing back as he claimed in his evidence. On his own evidence he had his knife drawn. I propose to deal with his criminal culpability for the death of Huynh on that basis.
Nguyen was attacked a short distance from where Huynh was stabbed, in the course of which he sustained ten stab wounds, one of which was fatal. The Crown case was that the offender delivered one or more of the ten stab wounds. The evidence does not allow for a finding, and the Crown does not assert, that he inflicted the fatal wound.
The offender gave evidence largely consistent with what he told police to the effect that that he did not stab Nguyen. However, contrary to what he told police, he gave evidence before me that he did punch Nguyen with his left hand multiple times whilst he had the knife in his right hand with the blade pointed to the ground. He told police that he had the knife in an outstretched hand although it is not entirely clear from the questioning whether he was referring to the phase of the attack where Nguyen was the victim or earlier, when Huynh was stabbed. The offender gave evidence that he dropped his knife on the ground at the site where Nguyen was being attacked and that he picked it up again before fleeing on foot with the co-offenders.
Although the CCTV footage of the attack on Nguyen is of a slightly better quality, of itself it does not allow me to conclude beyond reasonable doubt that the offender actively stepped into and towards where Nguyen was being restrained or held or attacked by Duc, Tran and Kevin, and that he then thrust at or into Nguyen with a knife, as distinct from stepping in and punching him. It does not show the knife being dropped or picked up. Although I accept that the offender has endeavoured to give a detailed and honest account of what he actually did in the attack on Nguyen, I found his evidence on this issue unconvincing. The question is whether the forensic evidence resolves the doubt I am left with adverse to the offender.
As the offender fled from the scene with his co-offenders he discarded his knife by throwing it next to a bin a short distance from the bar. He told police he was afraid he would be in trouble. A competing and, in my view a more telling explanation, is that he was aware that he had used the knife to stab Nguyen and that the knife would, or might, link him to that assault.
The knife was recovered and subsequent DNA analysis of the knife revealed the following:
(1) The left side of the blade tested positive for blood and contained a mixture of DNA from both deceased. The major contributor was Huynh and the minor contributor Nguyen;
(2) The right side of the blade tested positive for blood and contained a mixture of DNA from two individuals. The major contributor was Nguyen and the minor contributor this offender; and
(3) The handle of the knife tested negative for blood and did not yield any DNA samples.
There was no evidence as to the quantity of blood in residue on the blade of the knife or the relative quantity of the blood of each of the deceased. I accept that in a volatile multi-assailant knife attack, blood can be easily transferred between assailants and their weapons, or that the blood shed in the attack might be transferred on to a knife held by an assailant without it actually being used to inflict any stab wounds. That may explain Huynh's blood being on the blade of the knife. Although this is a generous interpretation of the forensic evidence, in light of the Crown concession that the evidence did not allow for a finding that the offender stabbed Huynh, it is a finding I am prepared to make. However, it cannot, in my view, adequately account for the blood of both deceased being on the left side of the knife blade, with Nguyen as the major contributor.
The offender, Duc, Tran and Kevin subsequently met with Rick and Gary at Yagoona Railway Station from where they were driven to Kevin's home in Auburn. According to Gary, the offender said, in relation to Nguyen, "I stabbed him one time too". Although the offender does not dispute that he said what is attributed to him, he gave evidence that what he said was untrue and that he only claimed to have stabbed Nguyen because he was scared that Kevin, Duc, Tran and Gary would "turn on him". This was consistent with his explanation to police where he said that he was afraid they would think that he was afraid and had run away. In effect, he says he lied out of bravado.
After taking into account the CCTV footage, the DNA evidence on the offender's discarded knife and what the offender said within a short time of the attack, and also taking into account the offender's explanation for what the CCTV footage revealed of the attack on Nguyen which he was invited to view in open court, I am satisfied beyond reasonable doubt that he was responsible for at least one of the ten wounds Nguyen sustained in the attack from which he died. I propose to deal with the offender's criminal culpability for the death of Nguyen on that basis.
The offender subsequently learnt from his sister's friend (who had heard it on the news) that the two deceased had died. He telephoned his father and informed him that he had done something wrong and that he was in trouble. His father told him to return to Vietnam. He left Australia on 6 February 2009, five days after the murders. His father provided the money for the ticket. Whilst in Vietnam, the offender gave evidence that he was contacted by Kevin on multiple occasions. He was not asked by his counsel or the Crown in cross-examination about what was said or whether there were any discussions about the evidence that was being amassed against him or whether he should return to Australia.
The offender voluntarily returned to Australia on 28 March 2012, just over three years later. On the Crown case, he left Australia because he knew or expected he would be charged with murder and that he returned because of the burden of his guilt. The offender gave evidence that he left Australia because he knew he was in some general form of "trouble" and that he returned to Australia because he wanted to take responsibility for his participation in the events which led to the deaths of two people, notwithstanding that he did not stab either of them. In light of my findings as to the offender's role in the attack on both Huynh and Nguyen, the latter in particular, I regard the offender's motivations in leaving the country to fall somewhere in between.
The offender was not in contact with any of the co-offenders upon returning to Australia. Kevin, Duc and Rick had been tried and sentenced by that time. He lived with his mother until his arrest. He gave evidence that he did not surrender himself to police because he wanted to spend some time with her. He was arrested on the initiative of the police. There was no evidence in the proceedings as to how he was located. The offender gave evidence that he expected to be arrested upon his arrival at the airport. Upon his arrest he was asked by police whether he was expecting to be found, to which he responded, "Yes". I accept that evidence.
The offender's willingness to accept responsibility for his role in the murders, to the extent of his voluntary return to the jurisdiction where he knew police would eventually arrest and charge him, motivated by what I accept to be genuine remorse, is to his credit and something which is deserving of considerable weight on sentence. It reflects the maturation and insight he has acquired as a young adult in reflecting on his past and the deaths of two people for which, by his plea, he accepts legal responsibility and which he knows will attract lengthy terms of imprisonment. The pleas of guilty which were entered some time after his arrest and charge also reflect a willingness to facilitate the course of justice. I propose to allow 15 per cent for the plea of guilty on each count.
The offender's subjective circumstances
The offender gave evidence that he was born in Vietnam and raised by his maternal grandmother. His uncle and his uncle's wife also resided with his grandmother. His mother had left Vietnam to study in Australia when he was very young and his father had remarried. He saw his father once a month. The offender believed his father preferred his sister over him. The offender attended school in Vietnam five to six days a week until he was aged ten when his grandmother was unable to afford to educate him. He supported his grandmother financially by selling tissues and chewing gum on the streets.
The offender and his sister were brought to Australia by his mother in 2003 after she divorced her second husband. The offender was aged 11. He could speak no English. He did not have a close relationship with his mother and found it difficult to adjust to living with her. This was compounded when she formed a new relationship. The offender disapproved of his mother's new partner and pointed specifically to an instance where his mother and boyfriend had, unbeknownst to them, engaged in sexual intercourse in his presence which, as a young adolescent, he found very confronting.
Before commencing formal schooling, the offender was enrolled in an intensive English school where he met Duc. He rarely saw his mother. He undertook formal schooling at Canterbury Boys' High School. Throughout his schooling he was ostracised and bullied because of his ethnicity and his poor command of English. He did not seek the intervention of the school counselling service being unable to speak openly about his feelings with people he considered to be in authority and because he feared retaliation by the other boys. The offender had only two friends at school, both of whom were Vietnamese and older than him. He was marginalised and excluded from social interaction with his age specific peers. He left high school in Year 10 because his two older friends graduated. I am satisfied his school life was dominated by fear and that his social withdrawal and instability in his home life retarded his socialisation throughout his adolescence.
After leaving high school, the offender was, for a brief period, an apprentice hairdresser. However, he discontinued the apprenticeship after five months because he was late to work on several occasions and could not take the pressure of being reprimanded. He was unemployed for a year prior to the offences. He said he looked for work but was unsuccessful given his age and limited education.
It was after leaving high school that the offender reunited with Duc (whom he met by chance). Duc introduced him to Kevin who was at that stage in his early twenties. The offender gave evidence that he associated with Kevin and Duc and their friends because he had no friends of his own and had no real connection with his mother and sister. He thought Kevin was "tough" and "cool" although he had some fear of him. He admired Kevin for his dominance and felt accepted by him and his friends. He spent a great deal of time in their company.
In the three years that the offender remained in Vietnam after the murders with his father and, at times, his grandmother, he gained employment as a waiter before working at a hair salon. Under the influence of his grandmother, the offender adopted or renewed his Buddhist faith. He said that, with the guidance of the monks, he reflected every day on his past and his predicament. He gave evidence that a belief in karma ultimately led him to consider the emotions of others and to make the decision to return to Australia to accept the consequences of having participated in an armed attack where two men died.
The relationship between the offender and his mother is currently stable. She has visited and supported him whilst he has been on remand. She also visited him three times whilst he was in Vietnam. His grandmother, to whom he has a strong attachment, is aged and unwell. I accept that he feels deep sadness that he will not see her before she dies.
The reports from Mr Borenstein and Dr Nielssen
Mr Borenstein noted in his report that the offender does not currently suffer from any developmental disorder, severe mood disorder or any other major psychiatric disorder, although in his youth he was likely to have been affected by an attachment disorder. Mr Borenstein said:
...Those who suffer attachment disorders are known to develop behaviours defined either by acting out or a strong desire to fit in and deny one's own feelings in order to do so, as has been the case for [the offender]. [The offender] feels he grew up when he returned to Vietnam. He returned to Australia prepared to do what is necessary to ensure he does not follow others at expense to himself.
In Mr Borenstein's opinion, the offender's poor decision making and his inability to appreciate the consequences of his actions, culminating in his involvement in the offences for which he is to be sentenced, was a product of his youth and immaturity. He said:
[The offender's] personality is defined by passivity and submissiveness. [The offender] deferred to those in authority. His early beginnings set up a life script, defined by lack of trust and desire to fit in with others.
There is nothing in [the offender's] history to indicate he would instigate the sort of behaviour which brings him before the Court. [The offender's] history supports the notion he is one who would try to fit in and go along with others, more so if [the offender] is fearful of them, evidenced by his behaviour when bullied in high school.
[The offender] lacks a sense of self from which to assert himself and establish boundaries...
Dr Nielssen noted that the offender does not have a history of drug use or any antisocial behaviour other than the subject offences.
Dr Nielssen reported that the offender has managed life stressors and demands in the past with avoidance or passivity. He also diagnosed the offender as having an attachment disorder which is manifest in his strong desire to fit in with others. Dr Nielssen opined that the offender's involvement in the offences was contrary to his personal history as a young adolescent and that he was caught up in events from which he could not extricate himself because of his age and lack of emotional maturity. He observed:
...Adolescence is recognised to be a period in which parts of the brain, especially the frontal lobes that are important in abstract thinking and social judgement, have not fully matured, and [the offender's] emotional and neurological immaturity is likely to have contributed to his poor decision making and impaired ability to consider the likely consequences of his actions.
The significance of the offender's youth
Because the offender was a juvenile when the murders were committed, it is necessary to refer to s 6 of the Children (Criminal Proceedings) Act 1987 (NSW), despite the fact that he is to be sentenced according to law and that he is now a young adult. Section 6 provides:
A person or body that has functions under this Act is to exercise those functions having regard to the following principles:
(a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,
(b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,
(c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,
(d) that it is desirable, wherever possible, to allow a child to reside in his or her own home,
(e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind,
(f) that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties,
(g) that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions,
(h) that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim.
In this case (b), (f) and (g) have particular application.
In KT v R [2008] NSWCCA 51; 182 A Crim R 571 at [24]-[26] McClellan CJ at CL summarised the rationale behind s 6 of the Children (Criminal Proceedings) Act and reviewed the authorities relating to sentencing juveniles, as to which his Honour observed:
[24] Although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. There remains a significant public interest in deterring antisocial conduct. In R v Pham & Ly (1991) 55 A Crim R 128 Lee CJ at CL said (at 135):
"It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court's function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes..."
[25]The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted himself or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity (R v Bus, unreported NSWCCA, 3 November 1995, Hunt CJ at CL; R v Tran [1999] NSWCCA 109 at [9]-[10], R v TJP [1999] NSWCCA 408 at [23]; R v LC [2001] NSWCCA 175 at [48]; R v AEM Snr, KEM and MM [2002] NSWCCA 58 at [96]-[98]; R v Adamson (2002) 132 A Crim R 511 at [31]; R v Voss [2003] NSWCCA 182 at [16]). In determining whether a young offender has engaged in 'adult behaviour' (Voss at [14]), the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence (Adamson at [31]-[32]). Where some or all of these factors are present the need for the rehabilitation of the offender may be diminished by the need to protect society.
[26] The weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity (R v Hoang [2003] NSWCCA 380 at [45]). A 'child-offender' of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age (R v Bus, R v Voss at [15]). However, the younger the offender, the greater the weight to be afforded to the element of youth (Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [27]).
In this case, the objective gravity of the offences for which the offender is to be sentenced is above the mid range. His own conduct in the commission of the offences as I have determined it to be, although of a different order to the criminality of Kevin and Duc, does not automatically lead to a reduction in his sentence. That said, Duc was sentenced on the basis that he admitted stabbing both deceased, and Kevin on the basis that he was the instigator of what McCallum J was satisfied was a "common purpose to inflict grievous bodily harm on both victims". Independent of this offender's youth, I consider his moral culpability to be less than that of Kevin and Duc. Although his rehabilitation is a consideration of particular importance given his youth at the time of the murders, it is nonetheless necessary for the sentences to reflect the need for general deterrence, denunciation and punishment (see IE v R [2008] NSWCCA 70; 183 A Crim R 150 at [6]; MJ v R [2010] NSWCCA 52 at [37]-[39]; and JT v R [2011] NSWCCA 128 at [34]-[35]).
I have already referred to the reports tendered on sentence. In addition to the matters which I have summarised above, and accepting the difficulty which attends predictions of reoffending in a sentencing process that will inevitably conclude with an effective sentence of many years duration, in this case I am confident there is no risk of this offender misconducting himself in this way again. Factors countering against the risk of him reoffending include the insight he has gained into the contextual circumstances that led to his offending, his renewed attachment to his mother and his commitment to study whilst in custody with a view to enhancing his vocational prospects upon his release.
Parity
The principle of parity derives from the fundamental norm of equal justice. In Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [28] per French CJ, Crennan and Kiefel J, their Honours said of equal justice:
It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen (2001) 207 CLR 584 at 608, [65]:
"Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.".
I consider there are sufficient points of dissimilarity in the subjective circumstances of this offender from that of Duc and Kevin to allow for a different sentencing outcome in this case. As I have already noted, on the Crown case, Kevin was the instigator of the plan to inflict grievous bodily harm on both deceased and significantly older than this offender, and Duc admitted to stabbing both deceased, both men having participated in a joint criminal enterprise to inflict grievous bodily harm - an offence of greater objective seriousness than the basis upon which I have found this offender to be criminally liable referable to the evidence before me. Although Duc was a young man, being 18 at the time of the offence, he was sentenced as an adult. Her Honour did take his youth into account in assessing his culpability but made no finding that he acted at Kevin's direction. She did find that his pleas of guilty indicated some qualified acceptance of responsibility for the deaths of the deceased. Her Honour knew little of Duc's personal or family circumstances to inform the question whether his Vietnamese heritage would occasion him any particular hardship in custody, and little or nothing of his social circumstances.
The most significant difference between the sentences imposed by her Honour and the sentence I propose to impose on this offender is that no standard non-parole period applies in these proceedings. In addition, the offender was not only a juvenile at law but, as I have found, he was impressionable and vulnerable to the domination of others and the influence of a peer group in which he was the youngest. Despite his participation in the extended joint criminal enterprise that resulted in the death of two people, I consider that leniency can be afforded him.
I propose to adopt the same approach as did her Honour to the principle of totality and to accumulate the sentences to be imposed for each offence by four years. Given the need for this offender to have an extended period on parole, there will be some variation to the statutory ratio that would otherwise apply under s 44 of the Crimes (Sentencing Procedure) Act despite the length of his sentence
Sentence
TNV, for the murder of Brian Bao Dung Huynh, I sentence you to a term of imprisonment of 13 years and 7 months, comprised of a non-parole period of 8 years and 10 months commencing on 11 July 2012 and expiring on 10 May 2021, with a balance of term of 4 years and 9 months expiring on 10 February 2026.
For the murder of Phuc Uy Nguyen, I sentence you to a term of imprisonment of 15 years and 3 months, comprised of a non-parole period of 9 years and 11 months commencing on 11 July 2016 and expiring on 10 June 2026, with a balance of term of 5 years and 4 months expiring on 10 October 2031.
You will be first eligible for release to parole on 10 June 2026.
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Decision last updated: 31 October 2014
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