R v Tran (No 3)

[2022] NSWSC 1661

Supreme Court

New South Wales

Medium Neutral Citation:

R v Tran (No 3) [2022] NSWSC 1661

Hearing dates:

25 November 2022

Decision date:

09 December 2022

Jurisdiction:

Common Law

Before:

Button J

Decision:

(1) Convicted of the offence of murder.

(2) The offender is sentenced to a non-parole period of 15 years, to commence on 14 March 2019, and to expire on 13 March 2034.

(3) That will be followed by a parole period of five years, to commence on 14 March 2034, and to expire on 13 March 2039.

(4) The first date upon which the offender may be eligible for possible release to parole is 13 March 2034.

Catchwords:

CRIMINAL LAW – sentence – verdict of guilty of murder after trial by jury – substantial impairment not proven on balance of probabilities – fatal violence by running down with car and subsequent blows to face and head with axe – deceased former wife’s new partner – intention to kill – elderly offender – survived Khmer Rouge regime – isolated and lonely life at time of offence – diagnoses of major depression and PTSD – no criminal record – no remorse expressed – sentence imposed

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW)

Category:

Sentence

Parties:

Rex (Crown)
Thanh Tran (Offender)

Representation:

Counsel:
K Jeffreys (Crown)
J Manuell SC (Offender)

Solicitors:
Solicitor for Public Prosecutions (Crown)
Legal Aid NSW (Offender)

File Number(s):

2019/83236

Publication restriction:

Nil

JUDGMENT

Introduction

1. On 19 September 2022, Mr Thanh Tran (the offender) was arraigned before a jury panel and me at Darlinghurst. The indictment averred a single count: that on 14 March 2019 he had murdered Mr Pok Min Fah (the deceased). The offender pleaded not guilty to murder, but guilty to manslaughter, a plea that the Crown did not accept in full satisfaction of the indictment. A jury was immediately empanelled, and the trial commenced. From its earliest stage, senior counsel for the offender made clear that the elements of murder were accepted, but her client relied upon the affirmative partial defence of substantial impairment.

2. On 11 October 2022, the jury brought the trial to a conclusion by delivering a verdict of guilty of murder.

3. Proceedings on sentence were conducted on 25 November 2022, and it now falls to me to impose sentence.

4. Facts adverse to the offender, above and beyond those inherent in the elements of murder and the failure to establish the defence on balance, must be proven beyond reasonable doubt. Mitigating features in favour of the offender need only be proven on the balance of probabilities. Some matters, inevitably, may remain a mystery to me.

5. Murder carries a maximum penalty in New South Wales of imprisonment for life without possibility of parole. It also features, in the circumstances of this case, a standard non-parole period of 20 years. The learned Crown prosecutor did not submit that this is an example of the offence of murder that calls for the imposition of the maximum penalty, a position with which I agree.

Objective features

6. I shall first discuss the attributes and circumstances of the offence itself.

7. Just after 8.30pm on the evening of 14 March 2019, the offender was sitting in his parked car outside the home of his former wife and their two children in a street in Cabramatta, in the south-western suburbs of Sydney. He had arrived only a short time beforehand. The engine and headlights of the vehicle were off. In the cabin of the car with the offender was a pair of binoculars. In the boot of the car was a small axe or hatchet, which was contained within a plastic bag.

8. The offender and his former wife had married many years previously. They had only recently divorced; on the other hand, the intimate side of their relationship had ended two decades previously. The former wife of the offender had commenced a new romantic relationship with the deceased, a man whom she had met at a local social club that the two of them frequented. The intention of that lady and the deceased was that they would, in a few days, move to new shared premises, and begin domestic life together.

9. Some months before, the offender had moved out of the family home to a small apartment in the same suburb. He was living in lonely and isolated circumstances. He maintained a great fondness for his daughter, and had asked her to move in with him, an invitation that she had declined.

10. The deceased left the home on foot, and came into the field of vision of the offender as he sat in the driver’s seat of the car. The deceased was carrying a metal ladder that had been part of the domestic set-up of the family home, and which the offender had not taken with him when he moved out.

11. The offender engaged the ignition of his car, and the headlights became illuminated. From a short distance away, the offender drove his car directly at the deceased, knocking him to the ground. Thereafter, he calmly brought the vehicle to a stop, engaged a lever next to the driver’s seat that opened the boot, walked to the rear of the car, obtained the axe, and, holding it in his hand still in the plastic bag, walked towards the prone and defenceless man whom he had just intentionally run over.

12. Thereafter, the offender applied a number of very forceful blows with the axe to the head of the deceased. To express things plainly, the deceased was hacked to death where he lay. There can be no doubt that, at that stage, the offender intended to kill him. Indeed, his determination to do so led the offender to act in something of a frenzy. As a result of that act of the utmost brutality committed in a public place against a defenceless and utterly blameless fellow human being, the deceased, tragically, died at the scene. The offender himself was arrested at the same location, having made an incompetent effort to escape.

13. Some matters were disputed on sentence that can be thought of as objective features, accepting not only that there is a blurred line between such features and subjective ones, but also that, in any event, in the context of instinctive synthesis, precise differentiation is unnecessary.

14. One of the disputed matters was the time at which the offender first formed a settled intention to kill the deceased. Obviously, the presence of the binoculars in the cabin of the vehicle, the presence of an axe in the boot, and the “ambush” which may be said to have occurred, can all play a role in that evaluation.

15. Reflecting on that topic, I reject without difficulty the proposition that the binoculars were present in the car that evening because on occasion they had been used by the offender as a spectator, from a distance, of soccer games.

16. I also readily reject the proposition that the axe was present because the offender, an elderly man, wished to have it for self-protection; after all, that thesis was completely inconsistent with much that the offender had said after his arrest about the axe, and was only put forward by him at a very late stage of his sworn evidence at trial.

17. I also approach with caution his evidence that he had taken the axe with him as a gardening tool when he left the family home, bearing in mind that he was moving to an apartment, with the result that there would be no occasion for him to chop down, or trim the branches of, trees or shrubs.

18. Having said all that, the criminal standard on sentence with regard to aggravating features is a powerfully demanding one. On reflection, I think it reasonably possible that the binoculars were in the car because the offender wished to catch sight of his children or his former wife or, indeed, the deceased. And I think that the axe could have been present because the offender had brooded upon the possibility of doing physical harm to the deceased, if they encountered each other in circumstances that suited the offender doing so.

19. Beyond that, I am not prepared to go. In particular, I am not satisfied beyond reasonable doubt that the offender possessed a settled intention to kill the deceased at any stage before the engine of his motor-vehicle was engaged. Having said that, in light of what the offender did immediately after the deceased was run over, I am satisfied as necessary that the intention of the offender when he engaged the engine of his car and drove it towards the deceased, went beyond merely inflicting really serious injury.

Objective gravity

20. Coming now to my assessment of the objective gravity of this particular example of an offence that is always inherently of the utmost seriousness, I need not recount all of the features that I have sketched above in support of my finding. That is because both counsel were expressly content with my initial thought, put forward by me in the proceedings on sentence: this murder is objectively extremely grave.

Subjective features

21. Turning from a discussion of the offence to the individual who has committed it, the plea at the start of the trial and the verdict at the end of it means that there can be no utilitarian discount. Having said that, the trial was merely a question as to which form of the overarching offence of homicide constituted the true verdict; it was conducted in a very focused way, as a result of that position of the offender; and, as part of permitting the jury to assess the partial defence, he consented to speak to a psychiatrist qualified by the Crown. I give the offender some credit for all of that.

22. The offender was born in April 1943. Accordingly, on the evening of the offence he was aged 75 years 10 months, and is now aged 79 years.

23. He grew up in a small town in Cambodia near the border with Vietnam, in unprivileged circumstances. Of Chinese background, he was then a Cambodian citizen who spoke Cambodian, at least one Chinese language, and Vietnamese fluently.

24. In the late 1960s and early 1970s, the Vietnam War began to spill over into Cambodia, and the town became too dangerous a place to live. The offender and his family departed for Phnom Penh, the capital of Cambodia some distance to the west. There he established himself for a second time, until the notorious Khmer Rouge regime came to power in early 1975. The offender and his family were part of the infamous emptying of that city of its residents, and were subjected to a very arduous and frightening journey to the rural parts of that country, where they became forced labourers. For about a year they lived with an explicit fear of death if they were to disobey the regime, even by way of speaking when prohibited, and were so lacking in food as to be literally reduced to eating vermin in order to survive. Theirs was a life of the utmost deprivation, combined with terror.

25. Eventually, on the purported basis of being Vietnamese, they were permitted to depart for Vietnam, and commenced a new life in what had recently become Ho Chi Minh City. There the offender made a success of starting again, and was able to earn a living with his skill in watch repairing.

26. Completely unexpectedly, in 1983 the Vietnamese government ordered the offender and his family to move immediately to a refugee camp, I presume because it had been discovered that, in truth, they were not Vietnamese. In two such camps, the offender languished in very difficult circumstances, although one then positive development from that period was that the offender and his former wife began their romantic relationship in 1985.

27. Eventually, by way of a refugee camp in Thailand, the offender and some family members came to Australia as refugees. He himself arrived in 1987. By that stage, of course, many family members, friends, acquaintances, and persons known from the small town, had disappeared during the years of the Khmer Rouge regime, they having died undoubtedly as a result of starvation, sickness, torture, or murder.

28. When the offender arrived in this country, to my assessment he had gone beyond the point of being able to start yet again successfully. He made some effort to learn English, and some effort to work, but neither was taken very far. As I have said, he lived under the same roof with his wife and two children for many years, but romance and intimacy between husband and wife died years ago.

29. By the evening of the offence, he was living in a small apartment with a boarder to whom he was not close, leading a lonely and isolated life, feeling rejected by his former wife, and excluded from enjoying a relationship with his children. His days were basically aimless, featuring as they did such things as watching other persons play chess in a pedestrian mall, drinking at the social club, and gambling on poker machines.

30. Despite the jury not being satisfied that all elements of the defence of substantial impairment had been established on the balance of probabilities, I do accept that, by the time of the offence, the offender was suffering a mild version of Major Depression, and that his life had been damaged by post-traumatic stress disorder (PTSD), founded upon all of the grossly adverse experiences that he had endured.

31. Having said that, I think that the symptoms of the former illness did not go far beyond the normal reaction that one might experience in one’s old age as a result of being asked to leave the family home after many years, and trying to start again in very isolated and sad circumstances. And as for the latter condition, there is no suggestion that the offence was occasioned by any explicit flashback whereby the offender suddenly experienced any of the terrible events of his previous life.

32. It goes without saying that a rejected former intimate partner such as the offender has not the slightest right to inflict violence upon anyone as a result of that rejection, let alone fatal violence. Australian society simply expects persons in the position of the offender to find a way to deal maturely with the sadness and disappointment they are experiencing. So does the criminal justice system. In other words, the circumstances in which the offence was committed would usually constitute, in my opinion, no mitigation whatsoever; indeed, they could arguably constitute a matter in aggravation, in the sense not only of wilfully extinguishing the life of a romantic rival, but also of wilfully denying one’s former intimate partner happiness with the deceased person for the rest of their own life.

33. Here, however, I accept that the circumstances are a little different. As senior counsel submitted to the jury, the offender had lost everything many times in his life. He had endured a life that featured great deprivation on many occasions; indeed, for a time, gross inhumanity. The loss of family life in late 2018 and early 2019 was, I accept, yet another loss, one which the offender by then was incapable of bearing. As well as that, seeing the ladder carried by the deceased played its part, I find on balance, in the commission of the offence, in that I believe it constituted in the mind of the offender a symbol of his romantic and domestic rejection and replacement.

34. All of those factors – a life marred by extraordinary deprivation and disruption, two psychiatric conditions, and the role that those three factors played as context for the emotions underpinning the offence itself – do nothing to excuse what occurred on that evening. But they do go some way to explaining it, and in my opinion they do so in a mitigating way, by reducing the moral culpability of the offender to some degree.

35. Furthermore, the offender possesses no criminal record whatsoever in this country, and I infer that he was a law-abiding person in Cambodia, Vietnam, Thailand and anywhere else before he came to live in Australia. He deserves credit for that, and this offence of the utmost violence must be thought of as being completely out of character. It also plays a role, of course, in my assessment of his prospects of rehabilitation.

36. Turning to that topic, I believe that the offender has done and will do his best to use his time in custody quietly and constructively. He is in reasonably good health as I understand it for a man of his age and experiences, and I infer in particular that he is not a smoker. He does, however, suffer from diabetes, a condition that I believe will be able to be reasonably well-controlled in custody by way of a modified diet.

37. In short, if the offender reaches a point in his life where he becomes eligible for release to parole, I believe that his prospects of rehabilitation and refraining from offending on conditional liberty would be excellent.

38. To be weighed against all of those positive aspects is the fact that the offender has expressed no remorse whatsoever for what he has done. That is despite the fact that quite some time had past between the return of the verdict and the hearing of the proceedings on sentence. It is noteworthy that he has not even seen fit to express remorse for the unquestionable suffering that he has visited upon his former wife, and also upon his beloved daughter, who was in the habit of referring to the deceased as “Uncle”. Although certainly distressed in his recorded interview with police, and not forgetting that he pleaded guilty to manslaughter, in the circumstances I do not regard those matters as discharging the onus regarding remorse called for by way of the relevant legislation.

39. All of that is not, of course, to regard his silence on this matter as an aggravating feature, or to hold it against him in any other way. It is simply to note that, even years later, Mr Tran has said and done nothing to suggest that he is remorseful for the enormity of his criminal act, or that he has any insight into the unquestionable harm that it has done, directly and indirectly. In short: I accept that he must now regret his act of the grossest violence, but I regard that regret as very largely self-centred.

40. The unavoidable reality is that, in order to reflect the gravity of the actions of the offender; to respect the dignity of the life of the deceased; to denounce publicly and solemnly this kind of conduct; and to do one’s best to deter others who find themselves in the position of the offender from acting as he did, it is necessary for me to impose a sentence of imprisonment that will almost certainly lead to the offender either dying in gaol, or being released in a state of enfeeblement. But that is the inevitable consequence of what Mr Tran has done, and the stage of his life at which he has done it.

Other considerations

41. Separately, as I remarked in the proceedings on sentence, the trial focused by necessity on the state of mind of the offender, bearing in mind that homicide was admitted, and the question was merely whether the true verdict was murder or manslaughter. That means that almost nothing was heard of the life of the deceased during the trial, although, of course, in reality, the whole reason for a trial being conducted was his tragic death. Nor was I provided with any victim impact statement from any person during the proceedings on sentence.

42. Even so, one must infer that the final ordeal of the deceased must have been excruciatingly painful and terrifying, although mercifully short. And one can also infer that the loss to the former wife of the offender of the man with whom she was shortly to commence a new romantic life in such circumstances has been exceptionally distressing. I express my condolences to any who have suffered as a result of this offence, and my hope that the conclusion of the proceedings will bring some closure to them.

Aspects of sentence

43. In short, I shall shortly impose a head sentence of imprisonment for 20 years. A full backdate will be provided to the date of arrest. There will be no finding of special circumstances, because I believe that a period on parole of five years is sufficient, and senior counsel did not contend for such a finding in any event. The result is that the offender must serve a mandatory minimum period of incarceration for 15 years before it is possible that he may be released to parole, at which stage he will be aged 90 years and 10 months.

43. Finally, I shall rely upon senior counsel for the offender to explain to him the possible application of the Crimes (High Risk Offenders) Act 2006 (NSW).

Imposition of sentence

45. Thanh Tran, you are convicted of the offence of murder.

46. I sentence you to a non-parole period of 15 years, to commence on 14 March 2019, and to expire on 13 March 2034.

47. That will be followed by a parole period of 5 years, to commence on 14 March 2034, and to expire on 13 March 2039.

48. The first date upon which the offender may be eligible for possible release to parole is 13 March 2034.

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Decision last updated: 09 December 2022