R v Tu
[2011] VSC 554
•26 October 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. SCR 0193 of 2010
| THE QUEEN |
| v |
| CAM LINH TU |
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JUDGE: | CURTAIN J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | Trial dates: 8 - 10, 15-19, 22-26, 29 August 2011 | |
DATE OF SENTENCE: | 26 October 2011 | |
CASE MAY BE CITED AS: | R v Tu | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 554 | |
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Catchwords: Murder – Guilty by jury verdict – Argument escalated to physical violence – Victim strangled to death - Spontaneous conduct – Separate Indictment - Obtaining Property by Deception x 2 – guilty plea – Offences occurred day after the murder – Obtaining funds from the sale of the deceased’s jewellery - False accounts provided to police – No prior criminal history – Good character and favourable prospects for rehabilitation – TES: 19 years imprisonment with a non-parole period of 15 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Brown | Office of Public Prosecutions |
| For the Accused | Mr S Johns | Chris McLennan & Co |
HER HONOUR:
Cam Linh Tu, you have been found guilty by jury verdict of the crime of murder and you have pleaded guilty to two counts of obtaining property by deception. No prior convictions are alleged against you.
In October/November 2009, you met the deceased Dung Tran at Crown Casino; you became friends and it appears that you socialised together at the Casino. On 24 April 2010, you and Dung Tran had arranged to go out that night to the Casino. Dung Tran apparently had second thoughts about going because she was tired, and at about 6.00pm she rang you to cancel the evening; but that call was not answered, and you later called Dung Tran back, asking for directions to her house. It was arranged that she would meet you at the Caltex Service Station on the corner of Heatherton and Chandler Roads, Noble Park and, to this end, Vivian Tran, the deceased’s daughter, dropped her at the petrol station between 6:15pm and 6:30pm. She saw her mother get into a white Ford Laser motor vehicle, and that was the last time Dung Tran was seen alive.
It is not known what transpired between you and Dung Tran once she got into that car, but Vivian Tran rang her mother at 6:53pm and had a brief conversation with her, and Dung Tran rang Vivian at 8:18pm. On both occasions, Dung Tran sounded normal. She also spoke with Thi Huyen Anh Nguyen, asking her what time the Casino closed, although she sounded pressed and the call ended quickly. Trinh Thi My Nguyen, Dung Tran’s employer, spoke with her about working on the Monday holiday, and she agreed to do so; her tone sounded normal in that conversation. That call took place at 9.01pm, so by all accounts, until 9.01pm, you and Dung Tran passed the time in convivial companionship. By 11.00pm, you had returned home and there spoke with your niece. By then, you had murdered Dung Tran and dumped her body on a grass verge at the Sandown Park Greyhound Tabaret car-park, where her body was located the following morning by the grounds manager.
Dung Tran’s body, apart from her clothing which had been disturbed, was completely without identification. Consequently, the Age newspaper on-line reported that an unidentified body of a female aged between 30 and 40 had been found at that location. As the nominated age did not fit Dung Tran, her family were not immediately alerted, and as it was not unusual for Dung Tran to stay with a friend near the Casino after a night out, her children were not then concerned about her absence. Of course, as the hours went by and inquiries failed to locate Dung Tran, the family became increasingly concerned and subsequently, Vivian Tran, on viewing an on-line photograph, identified the clothing on the body as the same as that which her mother had worn when she had dropped her off at the Caltex Service Station. It was only a matter of time before the police were able to verify you as the person in whose company Dung Tran had been that night. By then, you had cut your hair and sold two diamonds from Ms Tran’s gold ring and pendant as well as a gold bangle which Dung Tran had been wearing on that night. You also then travelled to Sydney, purchased a return ticket to Ho Chi Minh City and a visa and then flew there, arriving on 28 April 2010.
You had gone to Vietnam without telling your son or niece that you were going, and you arrived there without telling your family. You stayed some 4 or 5 days with family and, during that time, you were told that the police in Victoria wanted to speak with you. You told your sister that you had been involved in a scuffle with the deceased and two other women, and that it appeared that someone had died, and that one of the women went to the US and the other to Canada. You also told your family that you had come home because you had heard that your mother was ill.
Upon your return to Australia on 6 May, you repeated and maintained that lie in a record of interview conducted by officers of the Victorian Homicide Squad when they spoke to you at a police station in Kogarah, New South Wales. At the conclusion of that interview, you travelled with the two detectives to Victoria and you were collected by your son from the St Kilda Road Police Complex that night and returned there the next day to participate in a field interview. On this occasion, over many hours you repeated the lie that two women were responsible for killing Dung Tran. In fact, you contrived an elaborate and skilful web of lies, accompanied by detailed descriptions of what each person did and said to Dung Tran in the course of the struggle between them and Dung Tran, where each of them were standing and grappling with the deceased. You also gave detailed accounts of the appearance of each of the assailants and took the police on a drive to various locations where you said you had met up with the two women and where the attack occurred. It was a totally credible, plausible account, and three days later you admitted to the police that in all relevant respects it was all lies; there were no other persons involved in the death of Dung Tran.
Subsequently in a third record of interview, you admitted that you killed Dung Tran, but said that she had started the assault and that you killed her without intention and that you acted in self-defence.
As to how the dynamics between you and Dung Tran escalated to the point where physical violence occurred culminating in your strangling Dung Tran to death is not clear on the evidence. Certainly at 9.01 pm Ms Tran had sounded unconcerned on the telephone. You contend that Ms Tran owed you money and had your Centrelink card which you wanted back. The witness Xe Thi Tran gave evidence that she twice overhead conversations between you and Dung Tran, one where it was you who was asking Dung Tran for money, and the other where Dung Tran was asking you for repayment. This evidence, together with the implausibly of the arrangements for repayment that you said were in place and the fact that you took Dung Tran’s jewellery immediately after killing her and sold it, satisfies me that it was you who owed Ms Dung Tran money. However, irrespective as to whom the money was owed, it does seem most likely that the argument was about outstanding moneys. The Crown contend, and I accept, that your answers in the third record of interview, taken together with the medical and forensic evidence, consistently with the way in which the matter was presented to the jury, bespeaks circumstances from which an intention to kill can be and was inferred and I proceed on that basis. Further, to that end the jury by reason of the verdict must have been satisfied beyond reasonable doubt that you did not act in self defence. However I accept that you strangled Ms Tran to death in circumstances which were neither planned nor premeditated and which must have arisen from a spontaneous escalation of a verbal argument into a deadly physical one where you grabbed and then held Ms Tran around the neck till the point where she died. You then stuffed her nostrils with tissues so as to avoid an evidentiary trail, rearranged her clothing and took her jewellery from her body, and then, having left her body laying out in the car park, you took her wallet and shoes and threw them away.
Dung Tran was 53 years old. She was the mother of four children; Anthony aged 33, Hanh aged 31, Vivian aged 25 and Linda aged 14. Ms Tran came to Australia with her then husband in 1995 when Anthony and Hanh were seven and five respectively. Vivian was born not long after. Ms Tran separated from her husband in 1998 because he had been a heavy gambler and had been physically abusive. Linda was born of a later relationship which had ended many years prior to her death. Ms Tran had worked as a seamstress at the Eastland and Brandon Park Shopping Centres, and by all accounts she had been a hard working woman who brought up her four children single-handedly. She had been a loving and caring mother and grandmother.
Victim Impact Statements made by Chau Nguyen, her daughter-in-law, Hanh Truong, her son, Min Joo Lee, her daughter-in-law and her daughters, Vivian Tran and Linda Lam, were tendered in evidence. Ms Chau Nguyen read her statement to the Court. Each of the Victim Impact Statements speak eloquently and poignantly of the loss and the sadness suffered as a result of their mother’s untimely and tragic death at your hands.
The maximum penalty for the crime of murder is life imprisonment, and the maximum penalty for the offence of obtaining property by deception is ten years’ imprisonment. The crime of murder is the most serious offence on the criminal calendar but here, because your offending was not premeditated and appears to have been spontaneous conduct, most likely committed in anger and without the use of any weaponry or the like, it is not as grave an instance of the offence as others which come before the Court. But that is not to diminish the nature and gravity of the offence here committed. After you murdered Dung Tran, you failed to notify the police or emergency services; indeed, you abandoned her body and you took her jewellery and sold it to obtain funds to enable you to travel to Vietnam, and when spoken to by the police upon your return, on two occasions you put forward a totally false account, and although these particular features are not to be regarded as circumstances of aggravation they nonetheless are indicative of a lack of remorse on your part and a high degree of self-interest in the immediate aftermath of Dung Tran’s death.
Mr Johns, who appeared on your behalf, submitted that you are sorry for your actions and you acknowledge the impact upon the victim and her family. In the report of Mr Bernard Healey dated 17 September 2011 and tendered on the plea as Exhibit 1, Mr Healey had also noted your marked distress and guilt over what had occurred and your acknowledgment that through your actions, you had taken another person’s life. He described you as remaining emotionally labile and tearful over the whole scenario, expressing your sadness over the death of Dung Tran. Mr Healey reported that you remain devastated over what he described as “the tragedy”. Mr Healey reported that he assessed your IQ as in the low to mid 80s and personality testing indicated that you suffer depression and anxiety.
You are 48 years old. You were born in Saigon, as it was then known. You are one of nine children, and the only one living in Australia. Your maternal and paternal grandparents migrated from China to Vietnam in the 1920s and your father, who died in 2007, drove taxis in Saigon. Your mother died last year. You grew up speaking Cantonese and attended a Cantonese-speaking school until you were 12, when the Chinese schools were shut down by the authorities. You had no further schooling. You remained at home, caring for your younger siblings. You married, and in 1989, at the age of 26, you left Vietnam with your husband and travelled as refugees to Malaysia, where you remained in a refugee camp for six or seven years. Your son, Tai, was born during this time and you and he arrived in Australia in 1995 as refugees. Your husband, in the interim, had taken up with another woman and he returned to Vietnam. The years in Malaysia were described as hard years, and when you came to Australia, you settled in the Maribyrnong/Footscray area and after a year, you moved to Springvale where your son enrolled in the local primary school. You and he became Australian citizens. You were then in receipt of a single parent pension and doing some work as a seamstress, but it was said that your principal occupation was the care of your son. You have attended the casino regularly since 1998, this being your only social outlet. Your son, Tai, completed his Year 12 studies and is currently enrolled in his third and final year in a TAFE course, studying film and television. He gave evidence on your behalf on the plea. Tai described you as a compassionate and beautiful, nurturing mother. He had never known you to be violent and he could not imagine you having killed someone. He described the whole experience as surreal. Tai stated that the traumatic experience of the incident had pained you greatly and it appears that you are very reluctant to discuss this event with him for that reason.
You are currently on remand at the Dame Phyllis Frost Centre. You are accommodated in a unit which houses 12 inmates, six of whom are Vietnamese. There are no Cantonese speakers, but you are able to communicate in Vietnamese. Your son and your niece visit you regularly and you ring your son every day. Otherwise, you have no other visitors and no contact with your family in Vietnam. It was submitted and I accept that as it has only been you and your son in this country since you arrived here in 1995, the separation from your son enforced by your incarceration will be a particular hardship for you and that you are particularly concerned as to how he will fare without your care and guidance. Mr Johns submitted that, given your background, your lack of prior convictions and the fact that you have led an unremarkable, law-abiding existence until this event, the Court can have confidence that you will not re-offend. Mr Johns described this case as the “very sad commission of the crime of murder by a woman who was otherwise a law-abiding citizen and who led an unremarkable life, caring for her son”.
In sentencing you, I take into account your age, that at the age of 48, you will be serving a significant term of imprisonment for the first time and that you have no prior convictions, and that prior to these offences, you were a person of good character and living an otherwise law-abiding life. I accept that you are remorseful and have expressed sadness at the taking of another’s life. I accept also that in that third record of interview, you did acknowledge to a degree your responsibility for having caused Dung Tran’s death, although you maintained it was occasioned without intention and as an act of self-defence. I accept also that your imprisonment will weigh heavily upon you by reason of the separation from your son and the unlikelihood of visits from your family members resident in Vietnam. In short, I take into account all matters which go in your favour.
Against these matters, however, are the nature and gravity of the offences here committed, the need to pass a sentence which will serve to punish you and act in denunciation of your conduct and the need to specifically deter you from re-offending, although that consideration may carry less weight in these circumstances. Any sentence imposed must also give due regard to considerations of general deterrence so that persons who murder will know that if they do, they can expect condign punishment. Accordingly, you are convicted and sentenced as follows.
In respect of indictment A11229718.1A, on the charge of murder, you are sentenced to 19 years’ imprisonment.
In respect of indictment number A11229718.1B, on charge 2, that of obtaining property by deception, you are sentenced to 12 months’ imprisonment. In respect of charge 3, obtaining property by deception, six months’ imprisonment.
In respect of the charges the subject of indictment number A11229718.1B, that is, the offences of obtaining property by deception, these offences occurred on the day following the murder when you sold Dung Tran’s jewellery and thereby obtained the funds which enabled you to travel to Vietnam. In sentencing you in respect of these offences I have taken into account your pleas of guilty and given you a discount for them in respect of each of those charges. I have also of course taken into account all relevant sentencing considerations in respect of those charges. As these offences occurred on the one day although they involved two separate transactions, I propose to order total concurrency as between the sentences imposed in respect of charges 2 and 3. These offences were totally discrete offences occurring in a different time and place from that of the charge of murder; nonetheless, in the circumstances of this case, having due regard to considerations of totality and proportionality, and the Crown submission that I would not be falling into error if I were to order total concurrency in respect of the sentences imposed in respect of both indictments, I am satisfied therefore that it is appropriate here for there to be total concurrency between the two indictments. Accordingly I order that the sentences imposed in respect of Indictment A11229718.1B be served concurrently with the sentence imposed in respect of Indictment number A11229718.1A that is, a total effective sentence of 19 years’ imprisonment.
Having regard to your prospects for rehabilitation, which given your age, your lack of prior criminal history and your otherwise good character must be said to be favourable, I propose to order that you serve a non-parole period of 15 years and I declare that you have already served by way of pre-sentence detention a period of 534 days.
In respect of the indictment number A11229718.1B, pursuant to s 6AAA of the Sentencing Act, were it not for your pleas of guilty, I would have sentenced you to 2 years imprisonment in respect of that indictment.
The total effective sentence is 19 years’ imprisonment with a non-parole period of 15 years of which you have already served 534 days.
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