Regina v Ngoc

[1999] NSWSC 1102

CITATION:	REGINA v. NGOC [1999] NSWSC 1102
CURRENT JURISDICTION:	Criminal
FILE NUMBER(S):	No. 70018 of 1999
HEARING DATE(S):	11 November 1999
JUDGMENT DATE:	11 November 1999
PARTIES :	REGINA v. NGOC Dang
JUDGMENT OF:	Greg James J at 1

COUNSEL :	Crown: W. Robinson, SC. Prisoner: S. Norrish, QC./G. Galluzzo
SOLICITORS:	Crown: S.E. O'Connor Prisoner: McLaughlin & Riordan
CATCHWORDS:	Criminal law - sentencing - murder - maliciously inflict grievous bodily harm - plea of guilty
ACTS CITED:	Crimes Act 1900 Drugs (Misuse and Trafficking) Act 1985 Sentencing Act 1989 Sentencing (General Regulation) 1996
CASES CITED:	Bugmy v. The Queen (1990) 169 CLR 525
DECISION:	Sentenced to penal servitude for 16 years - minimum term of 12 years on murder charge - on malicious injury charge sentenced to a fixed term of three years - to be served concurrently

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

No. 70018 of 1999

GREG JAMES, J.

THURSDAY 11 NOVEMBER 1999

REGINA v. NGOC Dang

SENTENCE

1 HIS HONOUR: The prisoner Ngoc Dang pleaded guilty before Barr, J. on 10 September 1999 to the offences set out in two counts in the indictment that had been presented against him that day. Those offences were: one count of murder of Van Hong Ly; and one count of maliciously wounding Tu Phu Le at Cabramatta, both on 25 April 1998. His Honour convicted the prisoner of each offence. 2 The matter came before me today for the imposition of sentence. On the sentencing proceedings the Crown tendered, and read aloud, short facts on sentence, which, I was informed were facts with which the prisoner agreed, as summarising the content of the various statements provided to the Crown on the circumstances in which the offences had come to be committed. 3 The deceased, Van Hong Ly, had been at the Mekong Club, Cabramatta on the evening of Friday, 24 April. He had worn a red baseball cap which from time to time he was asked by security staff of the Club to remove. At one stage of the evening he was seated at a table in the Club with the prisoner and another person. About 11.00 pm he was seen to hit the prisoner, who fell backwards and hit the back of his head on a table. The deceased picked the prisoner up by his hair, helping him into a chair and gave him a drink. 4 About 1.00 am on the morning of Saturday 25 April 1998, the deceased left the Club with Tu Phu Le. There had been some discussion of an acrimonious kind between them, Tu Phu Le telling the deceased that he should not have fought with the prisoner because the prisoner was older than the deceased. This discussion had continued to the point where outside the Club on the footpath, the deceased and Tu Phu Le were pushing at each other. 5 After a few moments the prisoner, having left the Club, rushed up to the deceased and Tu Phu Le holding a pistol which he deliberately fired at the deceased, killing him. One eye witness said that the prisoner said at the time of his killing the deceased said, "Fuck your mum. You want to play with me?". 6 A number of shots were fired, apparently four shots. Three of those shots seem to have hit the deceased. One shot hit Tu Phu Le causing a gutter injury to his head. The prisoner left the scene with the gun. 7 Tu Phu Le was admitted to hospital and, in the confusion, those who took him to the hospital were apparently arrested by the police. 8 The cause of death for the deceased was given as a gunshot wound to the head. The examiner observed three separate gunshot wounds, two to the head and one to the neck. 9 The prisoner apparently went to Melbourne. His sister said that he had come to her house in July 1998, stayed briefly and left his car in her garage. 10 A first instance warrant was issued for his arrest and upon him being notified of the police interest in him, he attended the Cabramatta Police Station on 4 November 1998 in company with his solicitor and surrendered himself. He has been in custody, bail refused, since that day. 11 The murder weapon has not been found. 12 Since he has been in custody referable only to these offences, the sentence that I will pass should date from that day. 13 It is apparent that the offence of murder was committed by his deliberate killing of his victim. The offence of malicious wounding was occasioned by his recklessness in firing a shot not intended to injure the victim. 14 It was common ground, so I was informed by both the learned Crown Prosecutor and the learned counsel for the defence, that at the time of the commission of these crimes the prisoner was intoxicated to an extent expressed by an eye witness to be "middle drunk". I take that description to be moderately, if not severely affected. 15 The objective facts of this crime show that the prisoner, albeit he might have been provoked to some extent by the actions of the deceased inside the Club and his anger aroused, as was submitted to me, by the actions of the deceased to Mr. Le, nonetheless had almost no cause of any reasonable kind to act in the way that he did. What he did was savage and apparently senseless. 16 There is, so I am told, nothing in his prior background and record which would suggest that such actions were in character. He was born on 24 October 1957 in Saigon and is now aged 42. He was one of a large number of children in his family which was poor, and from which the children went to work at an early age. After the fall of Saigon, having worked on a collective farm for a time, he escaped Vietnam and transited through a refugee camp in Malaya, coming to Australia as a refugee. He has become a citizen of this country and has been joined here by his family, in particular by his brother with whom he lived for some time prior to his marriage. 17 Having obtained initially other employment, he obtained employment with Streets Icecream being retrenched from that employment in September 1997 and living off the lump sum retrenchment moneys paid to him. He had married in 1993 and has two children; one born in 1994; one in 1996. 18 For 13 years prior to his marriage he had lived with brothers and sisters at Bossley Park. Subsequent to his retrenchment he has been unemployed and he has spent most of his time at the Mekong Club drinking and gambling. It was urged upon me that I should accept that he had an alcohol problem. 19 He had been, on the night in question, at the Club drinking for a lengthy period of time, that period being interrupted only by a short journey to his home for a meal. He had known the deceased, to what extent I am not informed, prior to the killing. 20 I am told that he has informed members of his family that he regrets his conduct and the shame that he has brought on his family; that he has severed all contact with his wife and children because of the shame that he feels; that in custody he has taken the view that he is at risk from associates of the deceased who are in custody and hence has, at least for the time being, caused himself to be placed in protective custody. 21 It was conceded that it was anger and intoxication that underlay his criminality that night. 22 An explanation has been given to me as to where the gun came from. I have been told that he had purchased the firearm two months before the killing for protection for himself and his family, the family having been threatened, and that there were drug dealers in the vicinity. He had found it necessary in his view, for his protection from whoever might be threatening him, to carry that gun, loaded apparently, with him at all times, including in the Mekong Club. 23 This explanation does not sit well with the suggestion that he is not a person of violent character. Persons not of a violent character usually resort to the authorities when threatened, rather than arming themselves with loaded firearms even on social occasions. 24 It is accepted that the plea and the surrender have great pragmatic value in avoiding an exacerbation of grief to the family of the deceased and cost to the community. It is clear that there is, accepted in the plea, in the circumstances of his surrender and the expressions that he made, a degree of contrition, particularly in the sense of sorrow for his crime and a clear intent to conform to what community standards might expect of a person in his circumstances. Albeit that he did not surrender himself for some six months after the shooting, it has nonetheless been conceded by the Crown that his actions in so pleading and in so surrendering should be treated as though he were to be afforded the maximum value for a plea of guilty when applying the principles expressed in s.439 of the Crimes Act (1900). 25 I accept the submission made that the plea and the circumstances of the surrender should receive that value, particularly for the pragmatic value to be attached to such conduct. That value, when taken in conjunction with the prisoner's otherwise blameless life in Australia and diligent work record, affords a circumstance of the greatest assistance to the prisoner but, nonetheless, it cannot be given such weight as to produce a sentence unduly disproportionate to the gravity of the crimes he has committed. 26 The culpability attached to a killing, albeit in hot blood and under some degree of intoxication, even if occasioned by reason of some element of provocation, is great. I cannot accept, however, that the plea is to be taken to be worth as much as it was suggested it might be when in submissions it was put to me that up to 30% should be allowed for it. Indeed, in my view in this case in particular, it is not necessary to quantify the plea and thereby assess its value discretely from the other circumstances of the case. 27 It was submitted to me that bearing in mind that the plea was offered at the first opportunity and that the malicious wounding was reckless, that crime added little to the totality of elements such that needed separate and particular evaluation on sentence, having been committed almost, as it were, incidentally to the prisoner's actions which resulted in the death of the deceased. So much might be accepted as far as the factual content of the submission goes, but it is necessary that regard be had to it as a separate offence, albeit in the circumstances it is entirely appropriate that I use my discretion to impose sentences which are to be concurrent. Further, since the minimum term of the total sentence I am minded to impose for the more serious crime will exceed the maximum for the crime of malicious wounding (which is seven years), I intend to impose a sentence for that crime by way of a fixed term. 28 Turning to the more serious offence. The maximum penalty prescribed by s.19A for the crime of murder in this state is life imprisonment. That sentence of life imprisonment, however, is reserved by s.431B for offences of extreme gravity as defined by that section. Otherwise the penalty is at large. Other offences in this State are punishable by up to a maximum of 25 years. In the case of murder and certain offences under the Drugs (Misuse and Trafficking) Act (1985), however, that maximum does not apply. 29 Having said that, it is to be accepted that I should be guided in the imposition of sentence not only by the particular facts and the objective culpability of the crime, but also the mitigatory matters arising from the personal circumstances of the prisoner and that range of sentences approved on appeal in the Court of Criminal Appeal and passed by sentencing judges for this crime generally. 30 It was submitted to me by the prisoner's counsel that an appropriate range of sentence would have as its mean in the circumstances, a total sentence in the order of 15 years but that a minimum term, applying s.5 of the Sentencing Act 1989 should be imposed in consequence of the finding of special circumstances under s.5(2) so that the additional term would be longer than one-third of the minimum term. 31 My attention was drawn to the principles enunciated by the High Court of Australia in Bugmy v. The Queen (1990) 169 CLR 525. In that decision the Court pointed out that the principles of sentencing, involving as they generally do the protection of society, general and specific deterrence, rehabilitation and retribution, weigh in the minimum term as they do in the overall sentence, but have a different significance when the separate components of the sentence are evaluated and particularly for ascertaining that period which a prisoner must serve before being permitted liberty. 32 So the prospects of rehabilitation, though not the only matter to consider, may weigh more heavily when defining the minimum term than they would when defining the total sentence. Nonetheless, when one comes to deciding whether there are special circumstances and given circumstances that might amount to special circumstances, whether an additional term should be longer than s.5(2) set, it is necessary to bear in mind that all the principles on which sentencing is based must receive due regard in the light of what was said in Bugmy (supra) when fixing the total sentence and fixing the minimum term. 33 It was urged upon me that the prisoner, being under protection at present, might well serve a sentence more onerous than might otherwise be the case. There is little reason to believe that this is not a matter that can be left safely in the hands of the prison authorities. There is no reason on what has been put to me, to expect that that condition might have to continue for any extensive period of time. 34 It was further urged that the prisoner had an alcohol problem. The Crown submitted there was nothing special about that in the context at least of this crime, and I accept the Crown submission. 35 It was put to me that the prisoner is a man of 42, with a prior blameless record, was going into custody for the first time, coming into that custody from a different cultural background to most prisoners, he being a refugee, estranged from his immediate family, albeit supported by his siblings. It was put that the sentence would inevitably be lengthy and that all of these considerations would bespeak the necessity for special assistance for a longer period of time at the conclusion of that sentence. Particularly my attention was drawn to the difficulty a person of his age would have in readjusting to society generally and obtaining employment, in particular, at the time of leaving gaol. 36 On behalf of the Crown however it was submitted that there was nothing special, in the sense of out of the ordinary, about this. I accept that those circumstances can be or could be, in an appropriate case, regarded as out of the ordinary, but that is not just what special circumstances under the section means. They mean such circumstances, out of the ordinary, as would produce a longer than usual period of by way of additional term for supervision and to serve the other purposes of an additional term, such as to provide an increased period of sanction during which the prisoner might be returned to custody, should the prisoner manifest any further anti-social behaviour. 37 The maximum period of supervision provided for by the Sentencing (General Regulation) (1996) upon the making of a parole order is three years, although the Board can extend that in an appropriate case for a further three years. 38 A paradox, of course, arises. If, as here, one is of the view that the prospects of rehabilitation seem to be high and that one is unable to say that there is, on the face of it, a real risk of further offences, particularly of the kind committed, then there seems little basis for requiring an additional term longer than the statute requires. Particularly is that the case when the sentence that one must pass, having regard to the gravity of the crime, is one where the additional term would be unlikely to exceed in length the maximum period for supervision on a normal, proportionate basis. 39 I am of the view that in the circumstances special circumstances as defined by the Act do not exist here. 40 Having heard submissions from both the Crown and the defence as to the appropriate range of sentence in the context of the prisoner's personal circumstances and as to the gravity of the crime, I have concluded that the appropriate sentence for the crime of murder is 16 years penal servitude, to date, as I have said, from 4 November 1998. That sentence to comprise a minimum term of 12 years to date from 4 November 1998 and to expire on 3 November 2010 and an additional term of four years to commence on 4 November 2010 and to expire on 3 November 2014. There will be, on the charge of malicious wounding, a concurrent sentence of a fixed term of three years, that will commence on 4 November 1998. 41 Madam interpreter have you explained what I have just said to the prisoner? 42 INTERPRETER: Yes I have interpreted everything your Honour. 43 HIS HONOUR: In that case would you rise please Mr. Ngoc. 44 I sentence you for the crime of murder to 16 years penal servitude, to comprise a minimum term of 12 years and an additional term of 4 years, to commence and expire on the dates that I have referred to. You are also sentenced to a fixed term of three years imprisonment for the offence of malicious wounding. That sentence is to be wholly concurrent with the sentence I have passed for the murder.

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Last Modified: 11/23/1999