Regina v Nguyen

[2002] NSWSC 536

CITATION:	REGINA v. NGUYEN [2002] NSWSC 536
CURRENT JURISDICTION:	Criminal
FILE NUMBER(S):	SC No. 70018 of 2002
HEARING DATE(S):	23/05/2002; 14/06/2002
JUDGMENT DATE:	14 June 2002
PARTIES :	REGINA v. NGUYEN, Minh Hau
JUDGMENT OF:	Greg James J at 1

COUNSEL :	Crown: P. Conlon Off: A. Haesler/J. Weir
SOLICITORS:	Crown: S.E. O'Connor Off: P. Murphy
CATCHWORDS:	Criminal law - sentence - manslaughter - malicious wounding - excessive self-defence against robbers - offender on parole - possession of unregistered firearm dealt with on Form 1 requires more than minimial regard - prospects for rehabilitation - appropriateness of backdate - special circumstances - 50% non-parole period - application of Regina v. Pearce.
LEGISLATION CITED:	Crimes Act 1900 Home Invasion (Occupants Protection) Act 1998 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Previtera (1997) 94 A. Crim. R. 76 Pearce (1998) 194 CLR 610
DECISION:	Count 1 - A sentence of seven years imprisonment to commence 16.5.01 and to expire 15.5.08. There should be a non-parole period of three and a half years to commence 16.5.01 and to expire 15.11.04. Count 2 - A fixed term of imprisonment to date from 16.5.01 of three years. Count 3 - A fixed term of imprisonment of two years. Count 4 - A fixed term of imprisonment of two years. On Counts 3 and 4, the fixed term is to commence on 16.5.01 and are to be served wholly concurrently with the non-parole period imposed on Count 1.

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

GREG JAMES, J.

FRIDAY 14 JUNE 2002

No. 70018 of 2002

REGINA v. MINH HAU NGUYEN

SENTENCE

1 HIS HONOUR: The offender Minh Hau Nguyen has pleaded guilty before me to the manslaughter of Sok Cheat Hem on 10 February 2001 at Erskine Park. He has also pleaded guilty to the malicious wounding with intent to do grievous bodily harm of Tautai Fuimaono at that place and at that time, and two charges of maliciously discharging a pistol with intent to do grievous bodily harm to Lue Lanosga and Danilo Lareza respectively. In addition, he has sought that I take into account on sentencing for the crime of manslaughter, an offence of possess unregistered firearm, the firearm in question being the pistol with which he shot Sok Cheat Hem and Tautai Fuimaono and which he discharged with intent to do grievous bodily harm to Mr. Lanosga and Mr. Lareza.

2 That last offence, I am informed, is punishable by a maximum, in these circumstances, of two years imprisonment. The crime of manslaughter is punishable by a maximum of 25 years imprisonment. The crime of maliciously wound with intent to cause grievous bodily harm is punishable by a maximum of 25 years imprisonment. That crime may be committed in a number of ways: by maliciously wounding with intent, or maliciously shooting at with intent. The remaining offences are crimes under s.33A of the Crimes Act 1900, and are punishable by a maximum, in each case, of 14 years imprisonment.

3 Upon arraignment before me, the offender indicated his willingness to plead guilty to the manslaughter of Mr. Hem while pleading not guilty to the original charge of murder. That plea was accepted by the Crown Prosecutor in full discharge of the offender’s liability on that count in the indictment. Further, he indicated today that he wished me to take into account the matter to which I have referred on the Form 1 and I am satisfied that it is appropriate for me to take that matter into account and I do so.

4 The matter has proceeded before me upon the basis of the Crown tendering a short recital of the facts and in addition an extensive volume of materials to corroborate the account contained in that document. That recital of facts may be summarised as follows. On the evening of Saturday 10 February 2001, the accused was at the home of friends in St. Clair. His host left the premises, leaving the accused and other persons playing computer games in a rear room. The deceased and the victims of the other three charges, with other friends that afternoon, conspired to rob those premises. They had apparently formed the view that money or drugs might have been able to be obtained. Mr. Fuimaono was apparently a leading proponent of the proposal to rob. It is common ground he is a large man. After the conspiracy had been formed those victims and others making up a force of about eight persons, arrived by car in the vicinity of the premises. They were armed with clubs made from a supermarket trolley handle, a steering Club lock and an iron bar. The deceased and Fuimaono went to the back of the premises to attract the attention of those inside. A request was made for the householder. The purpose of this attendance on the house was apparently to estimate the number of people who were inside the house and might resist the robbery. There were nominated drivers determined on for the evening’s enterprise. They waited with the vehicles while some six of the robbers attended on the premises. Fuimaono knocked on the door and the robbers burst into the room. At that point the offender jumped to his feet. Although the statement of facts records that there apparently was some very brief conversation (the precise nature of this is unknown) following which the accused discharged two shots from a hand gun, I was informed from the bar table by the offender's counsel that the offender produced the hand gun before the very brief conversation. It is common ground that there is no evidence to establish the nature of the very brief conversation, or who spoke and what they might have said. However, it is very clear that shortly after realising that the robbers had burst in and were armed, the accused discharged two shots from a hand gun he had with him, that hand gun being a nine millimetre self loading Chinese pistol which had a 15 shot magazine and which is the pistol referred to in the offence to be taken into account.

5 The first shots apparently struck Sok Hem, killing him almost instantly from a wound to his aorta. The second shot, or thereabouts, struck Fuimaono in the lower abdomen loin area. At this point those other robbers in the premises decamped towards the cars. The accused pursued them firing shots. At some point in this latter part of the exercise two of the persons who entered the vehicles fleeing, were struck, one in the wrist and another on the back of the hand. I am informed by the Crown Prosecutor that only minor wounds were thereby occasioned. The cars sped off.

6 The accused returned to the premises, threw the gun onto the roof of the house and spoke to his friends telling them to blame the use of the gun on the robbers on the basis that the robbers had brought the gun to the premises. This project was unsuccessful. It came to light that it was the accused who was armed with the hand gun and had fired it.

7 The gun was later located on the roof of the premises and seven live rounds were found to be contained in the magazine. Five cartridge cases and one live round were found on the roadway adjacent to where the cars were parked. The serial number of the hand gun had been obliterated.

8 The evidence of the project to rob the premises was corroborated by the admissions of the surviving victims, and certain of the persons who came to the premises, in particular Tautai Fuimaono, Lue Lanosga, Francis Lanosga, Danilo Lareza and Theodoric Templonuevo, have been dealt with for their part in that venture. Keith Delrio and Thomas Ho are apparently still to be dealt with.

9 In the statement of facts provided to me by the Crown, there is extracted a portion of the interview with Mr. Lanosga. He refers to the plan as being for five of them to go into the house and steal the drugs and money; that one of the robbers was “gunna smack” the first guy he saw inside the room. It was apparently accepted that so acting would hurt that person severely.

10 At the scene, the offender gave an account to the police which accorded, except in one respect, with the evidence that has subsequently come to light. He referred to two persons coming in, one of the persons in the room being pushed aside and one of the intruders having a metal bar. He refers to hearing the gun go off after a fight and attributing the gun to one of the intruders in particular Mr. Hem. That statement was of course a lie. Mr. Hem died from the single gunshot wound inflicting the damage to the aorta to which I have referred. Patently the shot that was fired at him was fired at his body. Mr. Tautai Fuimaono sustained a single gunshot wound also to his body in the area to which I have referred. The damage occasioned by that wound required a laparotomy to be performed. There was a multiple perforation of the small intestine and mid transverse colon. He underwent surgery which repaired the damage.

11 The offender has a prior record. That record includes matters in 1994 in the Children’s Court for goods in custody and shoplifting in respect of which he received a recognisance. In addition, he was convicted on a charge of armed robbery with wounding pursuant to s.98 of the Crimes Act 1900 on 12 May 1997, and sentenced that day by Judge Graham in the District Court. He had pleaded guilty to the charge and his Honour had taken into account when sentencing on that charge, matters on a Form 1 of making a false instrument, possessing false implements, custody of an offensive weapon and stealing a motor vehicle. A further crime of assault with intent to rob being armed was included on a committal for sentence document. Those matters resulted in sentences in the ultimate imposed by the Court of Criminal Appeal following a Crown appeal whereby in relation to the matter on indictment and the matters on the Form 1 the offender was sentenced to three years and six months penal servitude by way of minimum term with an additional term of three years and six months. For the matter on the committal for sentence document, a fixed term of three years and six months penal servitude was imposed. It was concurrent with the sentence imposed on the matter on the indictment.

12 The facts of those offences are chilling. The matter involved in the committal for sentence document involved the offender seizing a victim from behind near a hotel at night holding a machete to his neck while uttering the words, “Do you want to die or else give me your wallet”. There was a struggle. The victim suffered minor cuts but his cries for help resulted in the offender being arrested. He gave as his reason for the commission of this offence the need to raise money to pay a fine arising out of a public transport infringement notice. The matters on the Form 1 were apparently committed whilst the respondent was on bail for that offence.

13 In company with four other young males, the offender sought to rob the Chinese Acupuncture Centre in Burwood. The manager had a substance sprayed in his face. The offender, with four others, entered the premises and assaulted the unfortunate victim with knives. He sustained injuries and cuts to his legs, arms, back, stomach and head. He anticipated he would be beheaded. His hands and ankles were tied together and his left hand was pulled from under his body, money was taken from him. He was gagged apparently with a towel. He was threatened with injury to himself and his daughters if he reported the matter to the police. The injury threatened to him was that he would be put to death. He has been affected in his ability to continue his profession, which required a physical ability, which has been affected as a consequence of his injuries. The female receptionist at the premises was also sprayed, tied up and threatened with a knife.

14 When the offender was arrested he was found in possession of a knife. In addition he had been sentenced on 3 December 1996, to a fixed term of three months on a charge of steal a motor vehicle and fined for being an unlicensed driver. It appears also that on 25 November 1997, he was sentenced to a fixed term of imprisonment of six months for possession of a prohibited drug.

15 That record is one of some considerable criminality. I particularly have regard to it in the light of the material provided to me in Exhibit 1 setting out the offender’s subjective circumstances.

16 He was born in Vietnam on 15 November 1977. His parents fled from that country when he was three years old, spending three months in a camp in Thailand and then coming to Australia. The unchallenged subjective material is that he received a strictly disciplined childhood and was required to take responsibility for the other children. He apparently did well at school, including doing well at a selective high school until at about the age of 15 he began to rebel and drifted into contact with gangs engaged in criminal activity. His behaviour deteriorated. He became, in his own words, arrogant and in due course was suspended from school. He continued his association with criminal gangs and ended up in gaol. These are the matters to which he has adverted in his own statement to the court concerning his objective circumstances. He also refers to some change when he first left gaol in that he determined to become a mature aged student and was accepted to the University of New South Wales but had to withdraw because of financial problems. He tried to make his way in the commercial world setting up a logistics company, but that fell apart when the events giving rise to the offences occurred and his circumstances now are such that he is no longer at the university.

17 He has referred to his family feeling deep shame associated with their son being involved in such criminal activity. He has referred to a willingness whilst in custody to apply his undoubted intelligence and skills usefully. He has expressed his contrition and said:-

“I bore no animosity to those who invaded the homes. I was scared and frightened and believed what I did was necessary. I accept I went too far and must be punished for what has happened. I sincerely regret the death of Mr Hem.”

18 In argument, I referred to the absence of formal victims' impact statements on the sentencing proceedings. It is, however, notwithstanding their absence, necessary, according to usual common law principles, to have regard to the harm caused by the criminal conduct for which an offender is being sentenced when it comes to determining that element of a sentence which is denunciatory and punitive of the offender. But, I have regard to the principles in Regina v. Previtera (1997) 94 A. Crim. R. 76 the necessity in a case of homicide not to consider the particular life taken as of greater value than any other.

19 Submissions have been made to me by the learned Crown Prosecutor concerning the appropriate range of sentence. In particular, he draws my attention to the mass of authority in this and other courts that the crime of manslaughter can take so many forms and embrace such a wide range of culpability that it is normally of the greatest difficulty to fix an appropriate tariff within which to place a sentence. The plea however here is accepted on the basis of the excessive use of force in defence of self and others against threatened serious crimes. That means that although serious, the offence is not of the gravest.

20 It is accepted that I should have regard to the fact that the offender was on parole for the offences in respect of which sentence was imposed by the Court of Criminal Appeal at the time of the commission of these offences. That matter aggravates the culpability of the crime of possession of the unlicensed firearm greatly, but I have regard to the fact that the Parole Board must take its own action in respect of any breach of parole. As far as the sentence for the crime of manslaughter and for the other crimes embraced in the indictment is concerned however, it would be wrong since they were not crimes of any planning or premeditation involving any deliberate infringement of parole to have too much regard for the fact that in the unforseen and unique circumstances of this case, the offender’s response to the actions of the robbers was a response which occurred whilst he was on parole.

21 The sentencing exercise here is of some difficulty as I accept the submissions put by both counsel that this matter is unique. I accept however that there is a serious degree of culpability in the offender failing to restrain himself once the immediate threat had passed and pursuing the surviving intruders, firing shots at them as they fled. On the other hand I accept that it would be unnatural to assume that the blood must cool instantly. I consider there remained some considerable element of provocation still affecting the mind of the offender at the time he fired even the last of those shots.

22 I accept also the submission of the Crown that to carry a gun will inevitably attract a risk that it will be used and the potential for deadly consequences is obvious. So that I regard the culpability of the manslaughter and the wounding charges as to some extent aggravated by resort to the use of the gun, although I accept that the exigencies of the moment were such that the offender simply resorted to what protective weapon was at hand.

23 In the submissions for Mr. Nguyen, it is pointed out that this matter falls into a legislative regime that was entirely unique in that not only did the recent amendments to the Crimes Act 1900 codifying the law of self-defence as now provided for s.418 to s.421 of that Act apply, but also the provisions of the Home Invasion (Occupants Protection) Act 1998 applied, those provisions have recently been repealed.

24 The plea by the offender of guilty to manslaughter was a plea that it is conceded was of high utilitarian value, showed contrition and should attract a substantial measure of discount having regard to s.22 of the Crimes (Sentencing Procedure) Act 1999, particularly in the context that in this legislative regime it might have been open to the offender to hold a view that he had a substantial chance of acquittal having regard to the provisions of the Home Invasion (Occupants Protection) Act 1998 if they were, as submitted, applicable.

25 The Crown concedes, as has been submitted on the offender's behalf, that he should have the value of contrition, an assessment of the utilitarian value of his pleas as very high, particularly in the context where the Crown might have had to rely on the evidence of the robbers, and that there has been shown a willingness to facilitate the processes of justice including a willingness to identify the intruders to the authorities, albeit that it was not necessary, having regard to their pleas, pleas they could hardly avoid making because of the wounds they sustained, to make use of that willingness on his part.

26 I am of the view that in those circumstances he should receive the benefit of a 25% discount on each of the sentences.

27 It is necessary for me also to have regard to the submission that he was not the aggressor, nor did he in any way precipitate the actions of the victim, he was a mere guest in the house into which the attackers came and the impulse which actuated him in the commission of these crimes was protective and responsive to the aggression and violent attack upon he and those there present. His response was however in its extent and nature unreasonable.

28 I have regard to the matters referred to in s.21A of the Crimes (Sentencing Procedure) Act 1999. Each offence charged in the indictment formed part of a course of conduct. I have regard to the personal circumstances of the victims and in particular the course that they were taking that night. I have regard to the need to deter the offender or others from committing an offence of the same or similar character. In that regard particularly I am of the view that the offence taken into account should be treated more severely than it would otherwise be even though it is being dealt with procedurally in the way in which it is. I have regard too, to the matters referred to in s.21A(2)(g), (h), (i) and (j):

"(g) the need to protect the community from the offender,
(h) the need to ensure that the offender is adequately punished for the offence,
(i) the character, antecedents, cultural background, age, means and physical or mental condition of the offender,
(j) the prospect of rehabilitation of the offender."

29 In particular, I am of the view that there does appear to be prospects of rehabilitation of the offender evidenced by his plea and by the way in which he comes forward to have these matters dealt with. I accept that the offences occurred as a spur of the moment over-reaction. I accept that given what has occurred, I should not attach too much significance to the offender’s initial attempt while on parole to conceal his role in the offences and to perform acts which otherwise might have amounted to a severe perversion of the course of justice.

30 I accept he is a young man of intelligence and considerable prospects. If he would, in the time in which he will be in custody, make use of those prospects he may ensure that he receives the benefit of a parole period which may work to his advantage and to the community’s advantage should he seek to lead an honest and estimable life.

31 The submissions of both counsel require me to have regard to the decision of the High Court in Pearce v. The Queen (1998) 194 CLR 610 at 624 but it is conceded as I understand it by both submissions that having regard to this spate of criminality occurring as it did in one incident of very short compass, it is appropriate that the sentences I impose, although individually appropriate for each separate offence, should be made entirely concurrent. It was submitted by both counsel that the appropriate course was that the sentence should commence on 16 May 2001, that being the date the offender was taken into custody for these matters.

32 The Crown submits I should not find special circumstances. It is submitted on the offender’s behalf that there are special circumstances. I agree. They include the need for extensive and lengthy supervision on parole, the age of the offender, the circumstance that the offences charged in the indictment came about in a manner that was unforseen and in respect of which his response was one that was criminal because it exceeded what was reasonable in the circumstances, not because it would otherwise have been illegal. That matter does not suggest to me that he should be deprived of the expectations that a longer than usual parole period might encourage towards a lawful and rewarding life, that his intelligence and ability might allow him to achieve. Further the sentence will be partly cumulative upon his earlier lengthy sentence and I must have regard to the principle of totality, not only when imposing the head sentence but also in determining whether special circumstances exist and if they do what non parole period should be imposed.

33 As to range, after reference to numerous cases, Mr. Haesler submitted a total sentence in the range of four and a half to five and a half years with a non parole period of 50% of the term would be appropriate having regard to the unusual and special facts situation, the basis of the plea, that the offender was himself the victim of the precipitating attack, that he acted in a critical situation, as is apparently accepted by the basis on which the Crown accepted the plea, with a genuine belief that what he was doing was reasonable in the circumstances, even though that belief was not objectively reasonable, and that he was subjected to attack by persons who outnumbered those present in the house who were armed and who were apparently bigger than he was and reacted on the spur of the moment. I have regard to all of those matters, they are all of substance but I do not accept that the sentence should be as short as that suggested by Mr. Haesler. Notwithstanding all of those matters this was still a spate of crimes of considerable gravity and the offence taken into account on Form 1 is such as to deserve considerably more than merely a minimal component of the sentence to be imposed on the first count.

34 In my view the appropriate sentence to be imposed upon the first count, taking that matter into account, is a sentence of seven years imprisonment to commence on 16 May 2001 and to expire on 15 May 2008. On that sentence there should be a non- parole period of three and a half years to commence on 16 May 2001 and expire on 15 November 2004. That would permit Mr. Nguyen to be released on or after 16 November 2004. On the charge of maliciously wounding Tautai Fuimaono, I am of the view that there should be a fixed term of imprisonment to date from 16 May 2001, of three years. On count three, I am of the view that there should be a fixed term of imprisonment of two years, and on count four, a fixed term of imprisonment of two years. In each of those cases that fixed term will commence on 16 May 2001, and be served wholly concurrently with the non-parole period imposed on count one.

35 Mr. Nguyen, would you stand please. On count one, you are sentenced to seven years imprisonment to commence on 16 May 2001. On that count I impose a non-parole period of three years six months to expire on 15 November 2004. On count two, you are sentenced to imprisonment for three years to commence on 16 May 2001. That is by way of a fixed term. On counts three and four, you are sentenced to fixed terms of two years on each count, each to commence on 16 May 2001. You therefore become liable to be released from custody at the earliest on 16 November 2004. Is there any other formality under the Crimes (Sentencing Procedure) Act 1999 or otherwise that I am required to observe gentlemen?

36 COUNSEL: No your Honour.

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Last Modified: 06/21/2002