Regina v Phan

[2000] NSWSC 426

CITATION:	Regina v PHAN [2000] NSWSC 426
CURRENT JURISDICTION:	Criminal
FILE NUMBER(S):	SC 70090/98
HEARING DATE(S):	6/3/2000 - 28/3/2000
JUDGMENT DATE:	26 May 2000
PARTIES :	Regina Vinh Ngoc PHAN
JUDGMENT OF:	Sully J

COUNSEL :	M. L. Barr - Crown B. Glennon - Accused
SOLICITORS:	Public Prosecutions - Crown Van Houten - Accused
DECISION:	Sentence of imprisonment for a term of 14 years with a non-parole period of 10-1/2 years.

SUPREME COURT OF
NEW SOUTH WALES
CRIMINAL DIVISION

SULLY J

Friday 26 May 2000

70090/98 - REGINA v Vinh Ngoc PHAN

ON SENTENCE

1   HIS HONOUR: On Monday 6 March 2000 the prisoner, Mr. Vinh Ngoc Phan, was indicted in this Court. He was charged with having murdered, on 11 July 1997 at Smithfield one Zi Quiang Jin. He pleaded not guilty, and was put accordingly upon his trial by jury. On 28 March the jury returned a verdict of guilty as charged. The prisoner was thereupon convicted formally, and was remanded in custody until 28 April, on which day the Court took some brief evidence, and heard submissions, on sentence. The prisoner was then further remanded in custody to a date to be fixed. He stands today for sentence. 2   The relevant objective facts are as follows. 3   During the evening of 11 July 1997 the victim was shot to death in a back alley at Smithfield. He was seated at the time in the driver’s seat of a motor vehicle, his seat belt being then secured in place across his body. 4   Three particular gun shot wounds were found on his body. 5   The first wound was, in effect, a gun shot wound to the left side of the victim’s head. This shot penetrated the soft tissues of the left cheek; and came to a halt in the bone of the side of the skull, but protruding in part into the cranial cavity housing the brain. 6   The second wound was, in effect, a gun shot wound to the upper part of the back of the victim’s neck. The entry wound had characteristics such as to justify the drawing of an inference that at the time of the firing of the relevant shot the muzzle from which the shot was fired was in actual contact with the victim’s skin. This shot travelled, in effect, through the victim’s throat, emerging on the upper right forward side of the neck just below the jaw bone. The trajectory of the bullet was horizontal; from left to right; and with about 60 degrees of angle from back to front. 7   The third wound was a gunshot wound to the upper central left back of the victim. This bullet passed into the soft tissue of the back; caused spinal damage; shattered one of the chest vertebrae; damaged the first and second ribs and the underlying spinal cord; and passed through the plural cavity causing haemorrhage. Thereafter it passed through the victim’s chest cavity damaging the lung and fracturing the left collarbone. It damaged the carotid artery; passed out of the body just above the sternal notch; and thereafter entered and damaged the victim’s right wrist. The relevant trajectory into and through the back was from back to front; slightly to the right; and at an angle of about 45 degrees downwards. 8   It is not possible to say in what order the wounds were inflicted. No weapon was recovered. The bullet causing the first wound was recovered; that causing the second wound was not recovered; and fragments of that causing the third wound, as above described, were recovered. 9   It is, as well, not possible to plot, so to speak, the precise sequence of the body movements of the victim, or of any other person present at, and immediately before, the firing of the shots. 10   The prisoner did not give evidence at trial. He put, by his counsel, to the jury that he adhered to the version given by him to the investigating police in the last in sequence of a number of recorded interviews. That version is as follows:

“On that afternoon I can’t recall the date exactly, I came to a friend’s place. His name is Bao. He lives in Fairfield. I went there to sing karaoke and have a few drinks and it was, what time I can’t recall exactly, but it was getting dark. My friend I referred before, Bao, asked me go out with him. I ask him where we headed. What, what for. He said ‘Just go for a ride, just go around’. And he drove to the shop. I can’t recall the name of the shop. He parked the car there near the shop. He and I walked towards near the shop. I ask him ‘What are we doing’, he said ‘To meet friend’. And I don’t know the friend he intended to meet. I waited there a little. There was a car pulled up. Bao, my friend, asked me to jump into that car. I opened the door. I got into the back of that car. I took notice, but not very. I didn’t have a clear vision that the driver of that vehicle was a - was black hair. When Bao and I got into that vehicle, the driver took us round, around the shop. They argue near the shop over something I, I, I didn’t know. They argue and nearly become a fight. I was afraid. As the vehicle slowing down, I open the door and I wanted to jump out of the car. But I heard a bang, and at that point I became unconscious. I had a mark over here like a bullet that went through. I didn’t know where I was at the time. I became unconscious and I didn’t know anything (unintelligible material) me.”
“I woke up in the morning. I found myself at my friend’s place the, friend I refer to name Van. I woke up at his house. I then asked my friend to take me to the doctor. We went to the doctor at Mount Pritchard. That is it.”

11   The verdict of the jury entails that the jury did not consider this version to be a reasonable possibility. That is my own view. 12   It is not possible to say whether the verdict of the jury entails that the jury was satisfied beyond reasonable doubt that the prisoner fired some one or more of the three shots which inflicted the principal wounds earlier herein described, and that he was, therefore, liable as a principal in the first degree; or whether the jury found the prisoner guilty upon the basis that the jury was satisfied beyond reasonable doubt that he was properly to be regarded as having been a principal in the second degree. Both alternatives were put at trial by the Crown; and both were left to the jury. I think, however, that the way in which the latter alternative was both put to the jury, and left to the jury, justifies the view that the jury found the prisoner guilty upon the basis of a satisfaction beyond reasonable doubt that he had fired at least the shot which had caused the third of the particular wounds earlier herein described. 13   I am myself so satisfied. 14   At the proceedings on sentence the prisoner adhered to a simple denial of any involvement in the actual shooting of the victim; and he adhered also to the substance of the version given to the investigating police and earlier herein quoted. There is no evidence of any prior acquaintance of the prisoner and the victim. There is no evidence of any particular motive for the prisoner’s having shot the victim. 15   These considerations do not enable the Court to say usefully anything more about the relevant objective facts than that the shooting in question was a serious example of the most serious criminal offence known to the law. The gravity with which the community regards the crime of murder is clearly manifested in the provision made by the Parliament for a maximum penalty of imprisonment for the term of the offender’s natural life. 16   There are, of course, other relevant matters, personal and particular to the prisoner. They can be summarised as follows:

[1] The prisoner is a young, unmarried man now aged a few days over 21 years. He was aged 18 years and some 2 months at the date of the shooting. In the case of a crime as serious as that of murder there are recognised limits of the weight to be given to the bare fact of youth; but it is, nevertheless, a factor to be given some genuine consideration in the prisoner’s favour.

[2] The prisoner has some criminal antecedents; but I accept the submission, in which the Crown has acquiesced, that they are of no great moment for present purposes.

[3] The prisoner was born in Vietnam. He is one of five children. Until he was aged a little more than 2 years, he lived in Vietnam with his family. When he was that age, his father had to leave Vietnam as a political refugee, leaving behind his wife and family. The prisoner’s parents were reunited in Hong Kong, where they lived for some 9 years as refugees before coming to Australia. During those years the prisoner was in the care of his maternal grandmother. There is not a great deal of evidence about this phase of the prisoner’s life; but I think it to be a fair inference that the prisoner had a fairly austere domestic environment, and very little in the way of education, or of structured social development.

[4] There is some evidence dealing with the prisoner’s personal circumstances since his own arrival in this country at the age of about 13 years; but there is not much of it. The prisoner has had some schooling here. He has acquired some capacity to function in the English language; but, as best I can judge, it is a fairly limited capacity; and this limitation is itself a factor that is likely to make any imprisonment more arduous, at least for a time, than might otherwise have been the case. The prisoner has no particular vocational skills. He has had very little paid employment, supporting himself by social welfare allowances. The pre-sentence report, Exhibit B on sentence, says that he has “spent most of his time at home with his family or playing competition soccer” .

[5] The prisoner’s father gave some brief evidence on sentence. It establishes that the prisoner has been, albeit within the limited parameters earlier described, a dutiful son.

[6] The prisoner has had past ill health, but his present health appears to be normal good health.

17   I have not found it at all an easy task to balance properly the foregoing objective and subjective matters. I have not heard at all from the prisoner at any stage of the proceedings, whether before or after verdict; and so I have not had the benefit, however limited, of that opportunity to form a view about the prisoner. He is not entitled to any specific consideration, either by reason of having pleaded guilty, or by reason of having shown, in any other way, remorse for the crime of which he has been found guilty. 18   In the result, I must do what I can to strike a just balance between an obviously serious objective case, and an obvious but limited subjective case. It scarcely needs to be said that society expects, and needs, to be protected against violent crime of the kind now relevant. 19   I can see no way of avoiding properly the imposition of a substantial sentence of imprisonment, although I would not consider that this case calls for the imposition of a literal life sentence; and the Crown very frankly accepted that latter proposition when invited to put a submission upon the point. 20   I have come to the conclusion that the head sentence should be one of 14 years with a non-parole period of 10-1/2 years. I have considered the statutory requirements as to the prima facie relationship between head sentence and non-parole period. The apportionment which I propose reflects two considerations: first, that in my opinion a sentence actually to be served of less than 10-1/2 years would not reflect the proper balance of the objective and subjective factors earlier herein discussed; and secondly, that a greater period than 3-1/2 years is not shown by any evidence to be inadequate for the prisoner’s restoration to mainstream community life after the completion of the non-parole period. 21   The date of the proposed sentence must take account of pre-trial custody of 54 days, (which I will treat as 8 weeks); and of unbroken custody from 27 March last until today, which period I will treat as 9 weeks. 22   In the result, the head sentence will be 14 years reduced by 17 weeks to equal 13 years and 35 weeks commencing today. The non-parole period of 10-1/2 years will be reduced similarly by 17 weeks so as to equal 10 years and 9 weeks commencing today. 23   Vin Ngoc Phan:

For the crime of murder of which you have been convicted you are sentenced to imprisonment for a term of 13 years and 35 weeks, commencing today. Your non-parole period will be 10 years and 9 weeks, commencing today.

24   I make the following recommendations:

[1] that the prisoner be classified urgently and to the end of minimising his contact with hardened criminals;

[2] that the prisoner be afforded, to the maximum extent compatible with necessary prison discipline, the following opportunities:

(a) to become proficient in the English language;

(b) to acquire some practical vocational skill(s);
(c) to have some proper contact with fellow prisoners whose language he can understand;

(d) to have continuing contact with his family;

(e) to benefit from the Young Offenders Programme or some comparable and appropriate rehabilitation programme.

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Last Modified: 09/25/2000