Regina v Phong Ngoc Pham; Regina v Vu Ngoc Pham; Regina v Minh Hoang Nguyen

[2002] NSWSC 1261

CITATION:	Regina v Phong Ngoc Pham; Regina v Vu Ngoc Pham; Regina v Minh Hoang Nguyen [2002] NSWSC 1261
FILE NUMBER(S):	SC 70096/00; 70218/01; 70109/01
HEARING DATE(S):	13 May 2002 to 26 June 2002
JUDGMENT DATE:	13 January 2003
PARTIES :	Regina Phong Ngoc Pham Vu Ngoc Pham Minh Hoang Nguyen
JUDGMENT OF:	Sully J at 1

COUNSEL :	J. Kiely SC - Crown G. Turnbull - Phong Ngoc Pham I. McClintock - Vu Ngoc Pham A. Martin - Minh Hoang Nguyen
SOLICITORS:	S. E. O'Connor - Crown Ross Hill & Assoc. - Phong Ngoc Pham Galloways - Vu Ngoc Pham Voros Lawyers - Minh Hoang Nguyen
LEGISLATION CITED:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure ) Act 1999 (NSW)
CASES CITED:	Robert Theo Sievers, unreported, 18.12.02
DECISION:	Phong Ngoc Pham - Imprisonment for 16 years with non-parole period of 11 years; Vu Ngoc Pham - Imprisonment for 20 years with non-parole period of 14 years; Minh Hoang Nguyen - Imprisonment for 17 years 38 weeks with non-parole period of 11 years 38 weeks

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

SULLY J

Monday 13 January 2003

70096/00 – REGINA v PHONG NGOC PHAM
70218/01 – REGINA v VU NGOC PHAM
70109/01 – REGINA v MINH HOANG NGUYEN

ON SENTENCE

1 HIS HONOUR: Before the Court for sentence are three prisoners: Phong Ngoc Pham, Vu Ngoc Pham and Minh Hoang Nguyen. When referring to them by name I shall use, respectively, the form: Phong Pham, Vu Pham and Minh Nguyen.

2 On 13 May 2002 the three prisoners were arraigned in this Court upon an indictment charging each of them with the murder, on or about 31 July 1996 at Fairfield, of one Thanh Chi Ly. The indictment charged additionally that each of Vu Pham and Minh Nguyen had unlawfully imprisoned, on 31 July 1996 at Fairfield, one Phuong Vu Lam.

3 Each prisoner pleaded not guilty to the charge or charges thus preferred against him. All three prisoners were thereupon tried jointly by a jury. The trial continued until 26 June 2002, on which day the jury found each prisoner guilty of murder as charged; and, at the direction of the Court, found each of Vu Pham and Minh Nguyen not guilty of the charge of unlawful imprisonment.

4 I formally recorded a conviction for murder in the case of each prisoner, and stood over until 28 June all further proceedings on sentence. On 28 June some materials relevant to sentence were tendered, and all further proceedings on sentence were stood over until 4 October. The need to obtain proper pre-sentence reports led to that further hearing being adjourned to 25 October. On that day the hearings respecting Vu Pham and Minh Nguyen were completed; but the hearing respecting Phong Pham was not completed until 22 November.

FACTS COMMON TO ALL THREE PRISONERS

5 Shortly before midnight on 31 July 1996 six young men drove in a motor vehicle to an oval, known as Endeavour Oval, at Fairfield. Three of the six were the present prisoners. A further two were the victims named in the indictment: Thanh Chi Ly and Phuong Vu Lam. The sixth was one Thuc Ngoc Tran, about whom there will be much said in these remarks on sentence, and to whom I shall refer simply as Tran.

6 Upon arrival at the oval, the six young men separated into two groups. Phong Pham, Vu Pham and Phuong Vu Lam remained in the vehicle. Minh Nguyen, Tran and Thanh Chi Ly walked onto the oval to a spot not far removed from, and partly obscured by, a shed. At that spot Tran shot Thanh Chi Ly to death.

7 Post-mortem examination disclosed four gunshot wounds to the body. Two of them were perforating wounds: that is to say, wounds having both identifiable entry and exit points on the body; and the other two were penetrating wounds: that is to say, wounds having an identifiable entry point, but no identifiable exit point, on the body.

8 Of the two penetrating wounds, one was a head wound. Its entry point was at the right eyebrow. Its path was from front to back, from right to left, and downwards. Its range is classified in the post-mortem report as intermediate. The second penetrating wound, also, was a head wound. Its entry point was at the mid-line of the rear of the head. Its path was back to front, horizontal, and right to left. Its range was classified as distant.

9 Of the two perforating wounds, the first was a facial wound. Its entry point was the left side of the nose. Its exit point was the right side of the face. Its path was downwards from left to right. It, too, was classified as having been occasioned from an intermediate range.

10 The second perforating wound was a wound to the right ring finger of the right hand. The entry point was the back of that finger. Its track was through the finger. The range was classified as intermediate. The post-mortem report says of this particular wound that it was consistent with a defence-type wound.

11 Three spent bullets were recovered from the crime scene. All three were .32 calibre lead bullets. Forensic ballistic testing established that the three bullets had been discharged from the same barrel attached to an unknown firearm. No murder weapon has ever been recovered.

12 Extensive police investigations were carried out in 1996, but without yielding evidence sufficient to charge any person with the shooting of Thanh Chi Ly. Some four years later additional information came into the hands of the police. That information led, among other things, to the arrest on 5 October 2000 of Tran. That arrest triggered in its turn further police activity, the end result of which was, relevantly, the charging of Tran and of the present prisoners with the murder of Thanh Chi Ly.

13 Tran pleaded guilty to the murder of Thanh Chi Ly, and gave evidence against the prisoners at their trial. His evidence at trial was fundamental to the Crown case against each prisoner. It is no less fundamental to the finding by the Court of facts in connection with the framing of appropriate sentences.

14 None of the prisoners gave evidence, either before the jury, or in the proceedings on sentence. This makes it necessary for present purposes to look carefully at the evidence given at trial by, in particular, Tran.

THE EVIDENCE OF TRAN

15 Tran was formally arraigned before me on 26 April 2002. He was charged with, and pleaded guilty to, both the murder of Thanh Chi Ly and the unlawful imprisonment of Phuong Vu Lam.

16 Tran was professionally represented throughout. It was indicated that he was prepared to give evidence for the Crown at the forthcoming trial of the present prisoners; and sentence proceedings were thereupon commenced. In due course, and on 3 May 2002, Tran was sentenced. For the murder of Thanh Chi Ly he was sentenced to imprisonment for 14 years with a non-parole period of 9 years. For the unlawful imprisonment of Phuong Vu Lam he was sentenced to imprisonment for a fixed term of 2 years. The two sentences were ordered to be served concurrently.

17 The version of events which I accepted as the factual foundation for the sentencing of Tran is most conveniently explained for present purposes by quoting it verbatim from the Remarks on Sentence:

“The prisoner was born on 5 May 1980 in Vietnam. At the instance of his mother, who wanted a better life for him than he could expect to have in Vietnam, he came to Australia in 1993. He travelled with a maternal uncle, and the uncle's wife and children. The party travelled via Malaysia and Indonesia, spending about 3 years in a refugee camp in Indonesia. In Australia the prisoner attended school at Cabramatta High School for about a year. There he made the acquaintance of Ngoc Phong Pham who was somewhat older, and who was a year or two ahead of the prisoner at school.

After about six or seven months of living with his uncle and the uncle's family, the prisoner spent a few months living with an older cousin; and he then went back to Vietnam in order to visit his parents. He stayed in Vietnam for about six months.

Upon his return to Australia, he found that his uncle had moved interstate with his family. The prisoner, then aged about 15 years, was thus effectively homeless. He was taken in for a couple of months by the family of a school friend, and he got a factory job. He then drifted, unfortunately, into bad company. He began to use prohibited drugs. He left his job and the friend's home, and drifted for a time as, put simply and colloquially, a street kid.

In that unpromising context he met again, and was taken up by, Ngoc Phong Pham, who took him into his, Pham's own home. By that time the prisoner had joined a gang of youths called the Madonna Boys. This gang operated, broadly speaking, as two affiliated groups, one centred on Cabramatta, the other on Bankstown. Ngoc Phong Pham was associated with the Cabramatta group; and Hoang Minh Nguyen was, effectively, the controller of the Bankstown group.

While the prisoner lived with Phong Pham, he was drawn by Phong Pham into a life of serious crime involving heroin-trafficking; serious larcenies; and intimidation accompanied on occasion by physical violence. According to the prisoner, he was effectively exploited and manipulated by Phong Pham.

After a few months, the prisoner moved out of Phong Pham's home, and went to stay with a friend, and the friend's family, at Bankstown. There he came under the influence of Minh Nguyen. According to the prisoner, he was effectively exploited and manipulated by Minh Nguyen in essentially the same way as had been his experience with Phong Pham.

Prior to 31 July 1996 the prisoner had seen the victim Ly in conversation with Phong Pham, but had not been party to the conversation, and had no other knowledge of, or acquaintance with, Ly.

According to the prisoner, he was approached by Phong Pham about two weeks before the murder of Ly. He was told that Phong Pham and his brother wanted him, the prisoner, to kill Ly. The prisoner refused, telling Phong Pham that he did not want to become involved with the latter's problems with Ly.

Somewhat later, Phong Pham again approached the prisoner in the same way as previously. Again, the prisoner refused.

On yet a third occasion, the prisoner was approached by Phong Pham. The prisoner was then in the gang orbit of Minh Nguyen; and, in addition to his sense of vulnerability in that regard, he was pressured strongly by Phong Pham. The prisoner, in his evidence, describes that pressure in this way:

“Q. You say that Phong Pham put pressure on you?
A. Yep.
Q. What do you mean by that?
A. I mean like he put the pressure on me. He has come to me a couple of times and he say listen, I have to do it. I don't have any choice at all. First I listen to what he say, and secondly if I wasn't do it on that night, I don't know what is going to happen to me, to my future. Then he told me, "Listen, if you don't do it, you are going down". So after that I just say, "I don't know, I don't know".................." [T 28(44)-(54)]
The foregoing developments came to a head on the evening of 31 July 1996. According to the prisoner, he and Minh Nguyen went together to Phong Pham's house at the invitation of Phong Pham. Phong Pham took the prisoner into his bedroom and again solicited him to kill the victim Ly. The prisoner refused. Phong Pham persisted, threatening the prisoner in these words:
“Listen, either way you are going to do it you know. Or I not going to guarantee for you or for yourself in the future.”

In addition to these threats, Phong Pham said something to the effect that his wife was a couple of months pregnant, and that if Ly were not killed, he, Phong Pham and his family were at risk " or something like that ".

Eventually, the prisoner yielded to these approaches by Phong Pham. Thereupon, he, Phong Pham and Minh Nguyen drove to Vu Pham's house. In the car with them were the victim Ly, and the man Phong Vu Lam, the victim named in the second count of the indictment.

The two men, Ly and Lam, had gone to Phong Pham's home, according to a statement made by Lam on 19 September 2000, because Ly had been induced to go there in order to look at a car stereo, presumably with a view to Ly's purchase of that item. Ly had invited Lam, who was a good friend, to go with him.

What happened upon their arrival at Phong Pham's home is described by Lam as follows:

“When we arrived at the house Thanh parked the car in the driveway. Thanh told me to wait in the car. I said I would come in with him, but Thanh told me to wait. Thanh got out of the car and I waited in the passengers seat. Thanh walked towards the house and entered a gate through the brown aluminium fence at the front of the house that leads towards the garage area.
Thanh was inside for about 30 seconds or a minute when Pham Phong opened the same gate that Thanh had gone through. I remember Phong was wearing dark clothes but I don't remember exactly what. When I saw Phong at the gate I got out of the car and walked towards him. I walked through the gate. The front roller door to the garage was closed but a side door was open and a light was on inside the garage. I walked to the door and looked inside, Phong was standing next to me but had not said anything to me up until that time. Inside the garage I saw a male person I know as Minh inside the garage. Minh was holding onto Thanh by the t-shirt. I saw another male that I know as Thuc standing in the garage just to the right of the door that I was standing at. I thought something was wrong. I started to step backwards out of the door but Thuc put his right arm around my shoulders and pulled me into the garage. I knew Minh and Thuc both by name. I had seen them on six or seven occasions before. Each time I saw them was at Phong's house. I knew they were friends of Phong's. Phong said "Let's get into the car". At that time I was not worried because I did not know what was happening and I knew that everyone was friends.
Phong walked out towards the driveway to where the car was parked. Phong walked out first Thanh followed him. Minh followed Thanh I walked behind Minh and Thuc walked behind me. Everyone walked out freely at that time, no-one was being pushed or forced.”

When the five men arrived at Vu Pham's house, the latter joined them in the vehicle. The vehicle was driven to Endeavour Oval. Upon arrival at the oval, the prisoner, Minh Nguyen, and the victim Ly got out of the car and walked on to the oval. The other three passengers, Vu Pham, Phong Pham and Lam, remained in the vehicle.

According to the prisoner, Phong Pham, immediately before Minh Nguyen, the prisoner and Ly got out of the car, " ..............just put his arm over me, as I remember he just said, `just go outside and do it '.. According to the prisoner, Ly was taken by him and Minh Nguyen on to the oval; and there the prisoner shot Ly to death, inflicting all of the gunshot wounds that I have earlier described.

The version given by Lam in his statement fleshes out, as follows, the foregoing bare description of the killing:

“Vu was wearing a navy or dark blue polo shirt and long pants. Vu walked towards the car and opened the front passengers side and got in. Phong said to Vu, "There is a problem." Vu said to Phong, "You can't avoid it, you have to do it". Phong said nothing. At this stage there was 6 people in the car.
The car then drove off with all of us in it. We went in a new direction not the way we came. We were in the Bonnyrigg area but I am not sure whereabouts. Phong asked Vu, "Where are we going?" Vu replied "You just drive". Thanh started begging Vu. He started to cry and say, "Forgive me, whatever I owed you I already paid." Vu said to Thanh, "That is not enough." During this time Thanh was still crying. Vu said to Thanh, "I do not want to talk to you anymore." We then crossed the Cumberland Highway heading towards Fairfield. Phong said to Vu, "Let's stop the car I want to discuss something with you." Vu said, "If you have started you'd better finish it." The car did not stop and continued towards Fairfield. We approached a red light which was near a Seven-Eleven store. Phong made a right hand turn and travelled down that road. I saw a park on the right hand side of the road. I know the park but I don't know the name of the park. It is right on the border of Canley Vale and Fairfield. Vu then said, "Finish it up right here." I saw that there was a driveway at the park near the toilet block. Phong parked the car in the carpark near the toilet block. Phong then reversed back out onto the road and parked on the street facing in the direction we had just come from towards the traffic lights. It was late at night and there was no person in the park that I could see. There was no cars parked in the carpark or near the park.
Vu said, "Let's get out of the car." Vu got out from the front passengers seat then lifted it forward to allow us out of the back seat. Minh got out then Thanh. Thanh was crying as he got out of the car. Phong said to me, "You stay here." Thuc climbed over me and got out the passengers side as well. Vu then put the seat back and sat in the front passengers seat. At that stage Phong was in the front drivers seat, Vu was in the front passengers seat and I was in the back by myself. The three outside the car were talking loudly. I could hear them clearly because the passengers window was halfway down. The three outside the car was Thanh, Minh and Thuc, they were about one to one and a half metres from the car. Minh or Thuc said, "We only want to talk. Don't run. You don't have to worry." Thanh didn't say anything. I could see that he was shaking. The three of them then walked towards the toilet block at the park out of my sight.
About one minute later I heard three to four loud bangs coming from the direction I last saw Thanh, Minh and Thuc walk towards. The bangs were evenly spaced about a few seconds apart. No one in the car said anything when this happened. I then saw Minh and Thuc running back towards the car. I didn't see anything in any of their hands. I didn't see any blood on them. Vu opened the front passengers door and leaned forward. Minh was the first to get into the back seat with me and Thuc followed. I was behind the driver then Minh was in the middle and Thuc was behind the passengers seat. At that time I thought that what happened was very serious, but half of me was thinking it must be a joke we are all good friends.”

About a month prior to the killing the prisoner had bought the murder weapon from some unnamed person in a car park at Bankstown. He had done so, he said, because he felt the need to have that sort of protection " because when I got out of Cabramatta, between Madonna Boy and the 5T gangs, they don't get along ". According to the prisoner, he took this weapon with him when he drove to Phong Pham's home on the evening of 31 July 1996. He says that he left the weapon in the car before entering Phong Pham's home; but that before leaving that address to travel, in another car, to the oval, he retrieved the weapon and thereafter kept it on his person until after the shooting, when he threw the weapon away somewhere in the Merrylands area.

After the murder of Ly, the prisoner continued his association with the Madonna Boys until 3 December 1996 when he was arrested in connection with a matter unrelated to the shooting. He remained in custody until he was released sometime in 1997. Upon his release he went back to Bankstown where he was welcomed by the members of the gang, and invited to resume his activities with the gang. He refused, having had, as he says he told them, enough.

Shortly thereafter he was seriously assaulted by a group of Asian youths. According to the police and hospital records forming part of Exhibit C3 on sentence, the attack occurred in the Viet Hoa Plaza at Cabramatta at about 2.30pm on 20 October 1997. The prisoner suffered severe lacerations to his head; his general condition being noted in the police report as " serious but not life threatening ". The prisoner was so traumatised by the attack that on 24 October he walked out of the hospital to which he had been admitted on 20 October.

Of this incident the prisoner said in his evidence:

“Q. Did you stay in hospital?

A. No, I took off.
Q. You took off?
A. Yes.
Q. Why did you do that?
A. Because friend of mine, they come in hospital and visit me, and he told me that they still looking for me.
Q. Who did you believe they to be?
A. There is only two reasons. Either way the boy from Bankstown, or either way, because during the period of time I was inside, a few people come see me, and they ask me what happened to Thanh Chi Ly and I told them, one of them. Then there is only two reasons that I think I got stabbed in Cabramatta. The first reason is I didn't join back the gang member. The second reason is because I tell somebody about what happened on that night." [T33 (26)-(44]

After leaving hospital the prisoner went to his girl friend's house, where he remained until he had made a complete recovery. His girl friend became pregnant to him. He agreed thereupon with her and with her family that he and she would move interstate, which they did. Thereafter he made a life for himself and his de-facto wife, and in due course for their daughter. So things continued until his arrest in October 2000, since when he has been in witness protection custody in this State.”

18 It will be at once apparent to anyone who reads the discussion between Bench and Bar at Tran’s sentencing proceedings, that I had an instinctive, but nevertheless a very real, sense of disquiet about a simple accepting of the foregoing factual narrative, depending as it necessarily did upon the word of Tran himself. It seemed to me then that, as I put the point, there was something “too pat”, something almost glib, about the picture that had been put before the Court in connection with the true power relationships that had existed between and among the present prisoners and Tran.

19 That same record will show that there was a deal of discussion as to whether, in the particular case, the appropriate procedure might not be to stand over the actual sentencing of Tran until after the sentencing of such of the present prisoners, if any, who might eventually have to be sentenced.

20 In the end, I came to the conclusion that it would be better to adhere to the normal practice, and to sentence Tran before he gave his evidence. I so concluded, in significant part, because I felt that it would not be fair to Tran to expose him to cross-examination by three experienced Barristers in a way which must be expected to have an impact upon his own sentence, he not then having any professional advice, representation, or other proper protection.

21 At the joint trial of the present prisoners, Tran was cross-examined extensively by all defence Counsel. His credit was attacked both generally and in particular respects. During the course of their submissions on sentence, Counsel for the prisoners submitted that I should be very loath to accept Tran as to any matter of fact which was in dispute, and as to which there was no corroboration of Tran’s own evidence.

22 I do not believe that a proper assessment of Tran’s evidence can be predicated upon that bald proposition. The difficulty of making such an assessment lies in the indisputable fact that Tran’s evidence cannot be dismissed as a simple and total fabrication. The contrary was not asserted, indeed, by any of the three defence cases at trial. All to the contrary, all three defence cases did not question various significant parts of Tran’s evidence. It was not disputed, albeit for obvious reasons, that Tran had been, indeed, the actual killer, as he himself had asserted in his evidence. Nor was it ever disputed that all three of the prisoners had driven, together with Tran, Ly and Lam, to the scene of the shooting; or that the six men had separated, prior to the shooting, into two groups as described by Tran in his evidence.

23 It is, of course, impossible to know in any precise way how the jury dealt with Tran’s evidence. If it be assumed that the jury acted reasonably and in accordance with the directions given to them during the course of the summing-up, then I do not think that it is a reasonable possibility that the jury rejected the substance of Tran’s evidence, but nonetheless found that the three prisoners were guilty beyond reasonable doubt. It seems to me, rather, that the reasonable inference to be drawn from the verdicts is that the jury accepted the substance of Tran’s evidence. I, too, accept the substance of his evidence; although, as will appear presently, I do not accept beyond reasonable doubt every particular detail of the evidence.

24 Because of the need to ensure that the separate case of each prisoner is considered properly, and upon the basis only of the evidence that is strictly relevant to that separate case, I do not propose to dissect at this point in the present remarks, the detail of Tran’s evidence, spanning as that evidence does the separate cases of all three prisoners. It is, I think, more useful to discuss separately, and to explain, the conclusions to which I have come concerning the role of each individual prisoner in the murder of Thanh Chi Ly; explaining in that context what use I have made of the evidence of Tran.

25 Any analysis of the respective roles of the prisoners must take account of the evidence at trial of Phuong Vu Lam, Thanh Chi Ly’s friend; and of Cuong Dang, a friend of Phong Pham. The evidence of those two witnesses, like the evidence of Tran, spans all of the cases of the three prisoners, but the evidence is sufficiently contained as to make it convenient to look at it at this point in the present Remarks on Sentence.

THE EVIDENCE OF CUONG DANG

26 Mr. Dang was a friend of Phong Pham from their school days. He lived with Phong Pham at various addresses; and was living with him on 31 July 1996.

27 According to Mr. Dang, Tran and Minh Nguyen arrived at Phong Pham’s house at some time after dark on that day. The three men repaired to “one of Phong…(Pham’s)…rooms”, and had there a private discussion. Mr. Dang gave evidence that he had overheard part of that discussion, and that what he thus overheard had something to do with guns. In my opinion, this part of Mr. Dang’s evidence was so imprecise and tentative that it would not be safe to rely upon it in aid of a finding that the private discussion did in fact have to do with guns; still less that it had to do with some weapon(s) that might be used that very evening against Thanh Chi Ly.

28 I have no such reservation about Mr. Dang’s evidence that Phong Pham asked him to telephone Thanh Chi Ly, and to invite him to come to Phong Pham’s former house, upon the pretext that Phong Pham wanted to sell him a car stereo system; that he, Dang, did that, making the call from a public telephone; that Thanh Chi Ly came, in reponse to that telephone call, as soon as 10 to 15 minutes after the call had been made; that Thanh Chi Ly was then accompanied by Phuong Vu Lam; and that thereupon:

“(Thanh Chi Ly) and (Phuong Vu Lam) got out from the car and walk up to (Phong Pham), and I just saw (Phong Pham) grab (Thanh Chi Ly) and walked to Thanh Chi’s car, and (Tran) and (Minh Nguyen) come, and 3 of them is holding, I can’t remember who is holding Thanh Ly, but I remember someone holding him, push him into the car. … … … … …(T)hey drive off, I don’t know nothing after that.” [T 473].

29 According to Mr. Dang, Phong Pham drove the departing vehicle; and Tran, Minh Nguyen, Thanh Chi Ly and Phuong Vu Lam were all passengers, although he, Dang, could not see their exact positions. Mr. Dang then returned to Phong Pham’s then current home. Later that night, Phong Pham, Tran and Minh Nguyen returned, seemingly in high spirits. Mr. Dang, who was in his own bedroom, gave evidence that he had overheard fragments of conversation among the three men; but, once again, the evidence was so tentative that it would be unsafe to rely upon its detail, save to accept, as I think can be done with a proper confidence, that the conversation was neither one-sided nor subdued, and that it touched upon there having been a shooting some time earlier. The only shooting that could realistically have been the subject of that conversation was that of Thanh Chi Ly.

30 Mr. Dang was cross-examined extensively. The cross-examination occupies better than 50 transcript pages, and it cannot be summarised in a couple of sentences. The cross-examination did establish that Mr. Dang had some criminal antecedents; that his initial contact with the investigating police might have been motivated by a calculation that such an approach might well be turned to his own advantage in connection with matters then pending against him; and that there were some discrepancies between his evidence at trial and his pre-trial statements to the police.

31 I have not overlooked these aspects of the cross-examination; but I think that the substance of Mr. Dang’s version, as I have earlier summarised it, is credible and reliable.

THE EVIDENCE OF PHUONG VU LAM: (HEREINAFTER VU LAM)

32 Vu Lam, too, knew Phong Pham from their school days. He, Vu Lam, was a very close friend of Thanh Chi Ly.

33 Late in the evening of 31 July 1996 Vu Lam received a telephone call from Thanh Chi Ly. Shortly thereafter, Thanh Chi Ly picked him up from his home, and they drove together to premises in Cumberland Highway in Fairfield or Canley Heights. Thanh Chi Ly told Vu Lam that they were going to look at a stereo system. Thanh Chi Ly drove.

34 Upon arrival, the car was parked in the driveway. Thanh Chi Ly got out and walked through a gate giving access to the driveway and to a nearby, and detached, garage. Vu Lam remained in the car.

35 A short time later, Phong Pham appeared at the gate. He and Vu Lam did not say anything to each other, but they walked together to, and into, the garage. Present in the garage were Thanh Chi Ly, Tran and Minh Nguyen. Minh Nguyen was holding Thanh Chi Ly by the latter’s shirt. Vu Lam stepped back as though to leave the garage, but Tran stopped him.

36 The next thing that happened was that Phong Pham said: “Get in the car”. This appeared to Vu Lam to have been said as a general, rather than as a particular, directive. The group of young men then walked to Thanh Chi Ly’s car. Phong Pham told Thanh Chi Ly to give him the keys to the car, and Thanh Chi Ly did so. Tran, Vu Lam, Thanh Chi Ly and Minh Nguyen, in that order, got into the back seat of the vehicle, and Phong Pham drove.

37 The vehicle drove to Bonnyrigg, and to the vicinity of Vu Pham’s then home. During that journey Thanh Chi Ly asked Phong Pham: “What happened?” and Phong Pham replied: “You know what happened”. Phong Pham asked Vu Lam why he had come with Thanh Chi Ly, and Vu Pham said that the reason had been that Phong Pham had rung him. Phong Pham responded that in fact it had been Tran who had phoned.

38 Upon arrival at Bonnyrigg, Phong Pham stopped the car and suggested that Vu Lam should be let go. Tran replied, however: “Bring him along”.

39 The vehicle then reversed, made a U-turn, and pulled up outside Vu Pham’s home. After a short interval Vu Pham came out, got into the front passenger seat of the car, and the following conversation ensued:

Phong Pham: “We got a problem”
Vu Pham: “I can’t avoid it. We have to do”

40 The vehicle was then driven off, and the following occurred:

“CROWN PROSECUTOR: Q. As the car left you said started to commence to drive down the road, what's the next thing that happened after that?
A. The car drive down for a bit. Then he just say, "Where do we drive to?”

Q. Who said, "Where do we drive"?
A. Phong.
Q. Did anybody say anything to that?
A. Vu said, "Just drive.”
Q. What's the next thing that happened after that?
A. Thanh Ly went begging Vu. Thanh Ly begging Vu forgiving.
Q. When you say begging Vu to forgive him, do you remember what was being said?
A. Say, "Everything I owe you I have repaid already.”
Q. Did Vu say anything to that?
A. Say, "Not enough".
Q. What happened after that?
A. Vu said, "I don't want to talk to you any more.”
Q. Did Ly say anything to that, Thanh Chi Ly say anything to that?
A. No.
Q. Was Thanh Chi Ly doing anything at this stage?
A. He crying.
Q. What's the next thing that happened?
A. Next thing drive down town past the Cumberland Highway and Phong said he want to pull over.
Q. Who did he say that to?
A. To Vu.
Q. Did Vu say anything to that?
A. Say, "We have to do what we have to do".
Q. Did the car pull over?
A. No.
Q. What's the next thing that happened, was anything else said after that?
A. They turning at red light.
Q. What happened then?
A. He drive to a park.”

41 The park was Endeavour Oval. Upon arrival there, Thanh Chi Ly, -“he still crying” in Vu Lam’s words, - Tran and Minh Nguyen left the vehicle and walked off towards the toilet block/change room building on the oval. Before they did that, and while they were standing near the car, Vu Lam heard either Tran or Minh Nguyen, he could not say which of them, tell Thanh Chi Ly not to be scared, that they only wanted to talk.

42 The three men passed out of sight beyond the building; and shortly thereafter Vu Lam heard: “three or four shot, loud bang”. Tran and Minh Nguyen ran back to, and re-entered the back seat of, the car, which drove off. Minh Nguyen said: “If you clear the grass you have to clear from the roots as well”; and Phong Pham said: ”No”.

43 The vehicle was driven to Phong Pham’s then home. Tran and Minh Nguyen wanted to leave. Phong Pham told them to take Thanh Chi Ly’s car, and they did so. Phong Pham, Vu Pham and Vu Lam remained. Phong Pham said: “I want to make a call”, and Vu Pham replied: “They are going to trap you”. Vu Pham thereupon took from Phong Pham the mobile phone with which Phong Pham had been proposing to make that call.

44 Thereafter, Phong Pham told Vu Pham to drive Vu Lam home, and Vu Pham did so. As they drew near to Vu Lam’s home, Vu Pham said to him: “If you are going to tell your parents, girlfriend or friends there is someone going to be revenge for them”. Vu Lam made no answer.

45 Vu Lam, too, was extensively cross-examined. All sorts of adverse allegations and speculative hypotheses were put to him; including the hypothesis that he himself had, as it was put, “set up” Thanh Chi Ly. It seems to me, however, that at the end of the forensic day, the substance of Vu Lam’s version of events remains unshaken. His version is, in my opinion, substantially credible and reliable.

THE ROLE OF PHONG PHAM

46 Phong Pham, alone among the prisoners, took part in an electronically recorded interview with investigating police officers. It is useful to begin the assessment of Phong Pham’s role by considering what he himself had to say on that topic when he was interviewed.

47 The interview itself was extensive. Its transcript runs to 698 questions, including formal questions. It took place in two lengthy segments, one on 20 July 2000, and the other on the following day. The broad thrust of Phong Pham’s version is as follows.

48 Phong Pham was aware that his brother, Vu Pham, was associated with Thanh Chi Ly in heroin trafficking; and that Thanh Chi Ly had, in effect, double-crossed Vu Pham in connection with certain drug-trafficking transactions. Phong Pham himself had been doing various unlawful things for Thanh Chi Ly, such as stealing cars and car parts.

49 All of the foregoing activities were taking place in a context of gang-related violence. Phong Pham was involved in a gang-related shooting of another person; and was himself the victim of a shooting. Phong Pham and his brother received information to the effect that Thanh Chi Ly had informed against him, Phong Pham, to the 5T gang in connection with the incident in which Phong Pham had been the shooter. This set in train events which were described as follows by Phong Pham:

“And I was mad and I tell Thuc about it and Thuc was mad too and how between Thuc and Thamh Chi before they got a fight, how Thamh Chi picking on him and hitting him and he was mad about Thamh Chi too. And he asked me, What you do about him? And I don’t know. And for the safety, for my brother, for me and he say, Yeah. We hope that Thamh Chi die so, you know, he don’t tell people to get us. And Thuc, he was, he were listen to us. Once he came down with, once he came down with me and he bring one of the gun down to get Thamh Chi and wish it on him and we organise how to get him. Actually we’re not organised but we had to see him so we can get him and then I tell my godbrother, Coung Dang, to ring Thamh up, tell him to come out and tell him that I got the system for him ‘cause he want a Honda Prelude system. And I just tell him like that, he got the Honda Prelude system. And he came out.”

50 Thanh Chi Ly, when he arrived, was accompanied unexpectedly by Vu Lam, a friend of Phong Pham. Thanh Chi Ly went alone into the arranged meeting place, “and we put a gun on him ready. And we tell him, Stay here, stay. Don’t move”. Vu Lam was then noticed, sitting in Thanh Chi Ly’s car. Phong Pham challenged Vu Lam about the latter’s association with Thanh Chi Ly; and Tran said that they would have to kill not only Thanh Chi Ly, but Vu Lam as well. This threw Phong Pham off balance, because he saw no need to harm Vu Lam at all. So he and Tran took Thanh Chi Ly and Vu Lam to Bonnyrigg to Vu Pham’s home; and so, eventually, to Endeavour Oval where Thanh Chi Ly was shot to death.

51 Various aspects of the foregoing summarised version were re-visited as the interview progressed at its second session; but certain things remained constant: first, that Phong Pham’s original idea was that Thanh Chi Ly should be killed; secondly, that he actively sought gang assistance to that end; thirdly, that he was thrown off-balance by the appearance on the scene of Vu Lam; fourthly, that he did thereafter whatever he could do to save Vu Lam from harm; fifthly, that he did nothing to save, or to attempt to save, Thanh Chi Ly from being killed, although he knew that the others, and Tran in particular, were intent on killing Thanh Chi Ly; and sixthly, that he did nothing to disassociate himself from the murderous enterprise that he himself had originated.

52 At the trial an attempt was made, unsuccessfully, to have the record of this interview with Phong Pham excluded from evidence. An edited version of the interview having been admitted, various submissions, some of them quite extraordinarily colourful, were made to the effect that the events as narrated by Phong Pham ought to be regarded as the ravings of a person who was so obviously dysfunctional as to be wholly unreliable.

53 It seems to me that the reasonable inference is that the jury did not so dismiss Phong Pham’s admissions to the police; and I, as fact finder in connection with sentence, certainly do not so dismiss them. When all appropriate allowances have been made for language difficulties and for emotional stress, the end impression that I take away from the video and the transcript of the interview is best expressed in the words of the well-known aphorism that a guilty conscience needs no accusing.

54 When there is added in the relevant parts of the evidence of Cuong Dang and of Vu Lam, then I am satisfied beyond reasonable doubt that Phong Pham instigated the events that culminated in the murder of Thanh Chi Ly; that he took thereafter an active role in the unfolding of those events; and that, insofar as he developed any qualms or mental reservations about events as they unfolded, the qualms and reservations were abstract rather than serious and practical.

55 Phong Pham is justly to be dealt with, in my opinion, as having been from first to last a principal mover in the murder of Thanh Chi Ly.

THE ROLE OF VU PHAM

56 Because Vu Pham did not give evidence, either at trial or on sentence, and because there is no recorded interview in evidence, the definition now of his role in the murder of Thanh Chi Ly depends, essentially, upon the evidence of Vu Lam and of Tran.

57 Some propositions can be established at once, if only because they are not really in dispute. First, Vu Pham joined up, at his home at Bonnyrigg, with Phong Pham, Minh Nguyen, Tran, Thanh Chi Ly and Vu Lam. Secondly, he accompanied them thereafter until Thanh Chi Ly had been murdered, and the other four remaining men, other than himself, had gone their separate ways.

58 Two further and important questions thereupon arise: first, to what extent, if at all, was Vu Pham involved in any pre-planning of the murder before he was picked up at his house on the night of the murder?; and secondly, what actual part did he play in the unfolding of events after he had been so picked up?.

59 Part of Tran’s version of events alleges that Vu Pham, as well as Phong Pham, importuned him to kill Thanh Chi Ly. So far as Phong Pham is concerned, this part of Tran’s evidence does not stand quite alone, inasmuch as Phong Pham admits in his interview to having approached Tran in connection with his, Phong Pham’s, then intention to obtain a weapon with which to kill Thanh Chi Ly. In Vu Pham’s case, however, there is no comparable admission; and there is no other evidence to corroborate Tran.

60 In those circumstances, I am not prepared to act on Tran’s uncorroborated allegation. Integral to that allegation, - as, indeed, to the whole of his allegations concerning his dealings with, in particular, the Pham brothers, - is the proposition that Tran was, in effect, a pawn in the hands of two powerful gang figures. The entirety of the evidence at trial and at Tran’s pre-trial sentence proceedings leaves me uneasy about that simple proposition. That is, I acknowledge, as much a matter of impression, even to some extent of instinct, as it is a matter of rigorous logical analysis of the evidence; but I am unconvinced that Tran’s standing in Vietnamese gang affairs was as limited as he was at pains to suggest. Tran and the present prisoners have, after all, a lot in common. They have been brought up in a hard school. From what I have seen and heard of them, I judge all of them to be, as might be expected, tough-minded, street-smart, and wholly capable of being, to quote a celebrated description, economical with the truth whenever that course might be thought to offer a safe haven in a present storm. In such a context, I cannot accept beyond reasonable doubt that Tran was simply overborne by others more powerful, to do what he did.

61 Vu Pham’s role after he was picked up at Bonnyrigg can be assessed in a way that does not depend upon the uncorroborated evidence of Tran. If the substance of Vu Lam’s evidence be accepted, - and, as earlier explained, I do in fact accept it, - then Vu Pham played, post-Bonnyrigg, a role extending far beyond the role of honest broker; or “circuit breaker”, as the trial submissions contended.

62 Tran was closely cross-examined at trial by Vu Pham’s counsel. It was put to Tran, - and, of course, upon instructions, - that Tran had been, as at 31 July 1996, a highly-placed member of a particular, and largely Vietnamese, gang. It was not sought to demonstrate that Vu Pham had been unaware at that time of that fact, assuming it to have been the fact.

63 Assuming in Vu Pham’s favour that he got into the car driven by his brother, being then wholly unaware of what was in prospect for Thanh Chi Ly, an obvious question arises: what did Vu Pham think, from what he then saw and heard, was going on? It was very late at night. His brother, whom he cannot have thought to be, so to speak, an innocent abroad, was driving a motor car not his own. Wedged into its back seat were four men, at least one of whom was, on Vu Pham’s case, a leading gangster; and another of whom , Thanh Chi Ly, was in some obvious distress.

64 The car drove off, there then being, as it would seem, no fixed destination. Both Tran and Vu Lam have Thanh Chi Ly crying during the course of the journey to Endeavour Oval, and then at the Oval. Both have Thanh Chi Ly in effect begging not to be hurt; and acknowledging his having wronged Vu Pham at some past time and in some way.

65 If one were to go no further than the foregoing summary, it would defy all common sense to suggest, let alone to accept, that Vu Pham, himself a man of the world, did not realise at once that something very serious indeed was on foot, and that it boded ill for Thanh Chi Ly. It seems to me to be neither unreasonable nor unrealistic to postulate that Vu Pham, had he been throughout no more than a “circuit breaker”, might thereupon have done or said at least something apt to defuse an obviously ugly situation. The only available evidence is, however, to the contrary.

66 If one sets Tran to one side and accepts only Vu Lam, then the interventions of Vu Pham showed not only that he well understood that something seriously threatening was then in prospect for Thanh Chi Ly; but also that he, Vu Pham, actively associated himself with that design, to the point, even, of subsequently threatening Vu Lam with reprisals if he told anyone what had been done to Thanh Chi Ly.

67 In my opinion, Vu Pham is, in practical objective terms, almost as culpable as his brother. The one difference of substance is that Phong Pham initially set the relevant events in train.

THE ROLE OF MINH NGUYEN

68 This matter is, once again, a matter concerning which there was no evidence given by the prisoner, either at his trial, or at the proceedings on sentence. It is, therefore, necessary once again to have regard to the evidence of Tran and of Vu Lam.

69 As in the case of Vu Pham, it is possible to begin the assessment of Minh Nguyen’s role by noting some matters that are in my opinion established beyond reasonable doubt.

70 It seems, thus, clear that Minh Nguyen did in fact accompany Tran to Phong Pham’s home on 31 July 1996; that he took an active part in dealing with Thanh Chi Ly in the garage; that he went thereafter as a passenger in Thanh Chi Ly’s vehicle, driven by Phong Pham, to the Endeavour Oval; and that he went out on to the oval with Tran and with Thanh Chi Ly, being present when Tran shot Thanh Chi Ly to death.

71 I am not satisfied beyond reasonable doubt that Minh Nguyen actively pre-planned the seizure and the subsequent murder of Thanh Chi Ly; but I am amply so satisfied that he was from first to last an active participant in the events that began with Thanh Chi Ly’s arrival at the garage and ended with his murder at the Endeavour Oval. What I have said earlier in connection with what I think must be supposed reasonably to have been Vu Pham’s perceptions, is equally applicable to Minh Nguyen.

72 In my opinion, Minh Nguyen is, in practical objective terms, equally culpable with Vu Pham.

OBJECTIVE CRIMINALITY: GENERALLY

73 When every forensic point has been made, and when every forensic hair has been split, the fact remains that the murder of Thanh Chi Ly was a crime of great objective wickedness. Thanh Chi Ly was lured to an assignation from which he was forcibly transported to an isolated location, at which he was put to death in a fashion that amounted to a cold-blooded execution.

74 It needs, surely, no extended emphasis that such a crime both outrages and challenges the basic concept of the rule of law. That Parliament is of that mind is evidenced by the provisions of s19A of the Crimes Act 1900 (NSW), read in conjunction with s61 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

75 Whether the indeterminate life sentence for which s19A provides is appropriate in any one or more of the present cases does not depend only upon the objective gravity of the particular murder. It depends,also, upon the proper bringing to account, in conjunction with the relevant objective criminality, of any subjective matters relevant to a mitigation of penalty.

76 Before turning to those subjective matters, I wish to say plainly that I can see in none of the three present cases, anything that might be thought apt to mitigate the objective gravity of the particular murder. In my opinion, a cold-blooded execution is, by any reasonable objective reckoning, murder of the most heinous kind.

SUBJECTIVE MATTERS: PHONG PHAM

77 These are as follows:

1. Age: Phong Pham was born on 29 August 1977. He was aged, therefore, a month short of his 19th birthday at the time of the murder of Thanh Chi Ly. He is now aged 25 years and not quite 5 months.

2. General personal history and circumstances: This is summarised clearly and helpfully by Dr. Bruce Westmore in a report dated 21 October 2002. Dr Westmore there says:


“Mr Pham is a young man of Vietnamese origin who came to Australia at the age of 13 as a refugee. He had no English language when he arrived in this country although he attended school for four years and he now has some English literacy skills.

He has a limited work history. He had two significant relationships and he has two sons from those relationships. He now has limited contact with his children.

He has smoked cannabis and heroin in the past and there is a history of at least one drug rehabilitation as a day patient.

It is probable this man has experienced a number of difficulties and hardships throughout his life, first arriving in Australia as a young refugee, then the social, cultural and language isolation he would have initially encountered and later entering a drug subculture.

The victim of what appears to have been a serious assault in the past, it is probable he suffered psychological trauma as a result of that experience although he has difficulty expressing the impact of that incident on him. His history would suggest that since he has been incarcerated he suffered a depressive illness and in addition he developed psychotic symptoms in the form of auditory hallucinations and ideas of reference.

From a psychiatric perspective, his longer term prognosis will depend greatly on his ability to cease using illicit drugs. He will need assistance when he returns to the community, particularly with employment and re-socialisation. It is probable he will have suffered a degree of institutionalisation during his period in prison.

Mr Pham is currently in a protection unit in prison, he is likely to be an at risk prisoner because of his age and ethnicity and possibly because of the nature of the offence. He will find his period of incarceration a difficult experience psychologically.”

78 That analysis is helpfully supplemented by the following observations and opinion of Miss Carlene Ryder, Psychologist, in a report prepared by her on 22 October 2002:

“Phong requires psychological counselling to stabilise his anxiety and depression, and to prevent further social isolation and deterioration. He would benefit from this increase in supportive interpersonal interaction. Phong feels that psychologists and psychiatrists don’t fully comprehend his difficulties and rebuff him. A strong therapeutic alliance is crucial, which is very difficult to foster in a correctional system that requires frequent inmate movements. After Phong is more settled, counselling could provide social skills, assertiveness training, anger management, anxiety management, and could challenge Phong’s self concept and expectations of life.
Phong admitted alcohol binge drinking as well as cannabis and heroin consumption. Considering Phong’s statement that drinking competitions acquire respect and that he smoked heroin in response to negative stimuli, it appears that Phong’s chemical abuse is a symptom of, and not a cause of, his psychological disturbance. As counselling addresses his interpersonal relating style and his self concept, Phong’s need for alcohol and other drugs may lessen. However, drug & alcohol counselling is still necessary, to assist Phong to identify appropriate patterns of alcohol consumption, and to establish and maintain alternative patterns of behaviour.
In relation to the current matter, issues of remorse could not be canvassed.
Phong requires ongoing psychiatric and psychological care, as well as ongoing risk assessment. On his release he will need intensive support and guidance to allow him to function in society.”


1. The matters canvassed in the material Ex PP3 on sentence: That material speaks for itself. I have given careful consideration to it.

2. Criminal antecedents: There are several such matters recorded in the conventional police departmental print-out; but it is not at all easy to make sense of what there appears. It seems that the prisoner served in 1997 a minimum term of 6 months’ imprisonment for an assault occasioning actual bodily harm. There are no details of that offence available to this Court.

3. Contrition and remorse: The prisoner is entitled to some proper mitigation of penalty in consideration of his co-operation with the investigating police on 20 and 21 July 2000. The information then given, and the admissions then made, enabled the police to bring Thanh Chi Ly’s murderers to justice, something that they had been unable previously to achieve. There needs to be set off, as it were, the consideration that the prisoner is not entitled to the leniency that would have been attracted by a willingness to facilitate, by a plea of guilty consistent with the admissions in the recorded interview, the due course of justice.

4. The prisoner has been in custody since 5 October 2000. Any sentence now passed will be dated to commence on that day.

SUBJECTIVE MATTERS: VU PHAM

79 These are as follows:

1. Age: Vu Pham was born on 18 February 1976. He was aged, therefore, 20 years and almost 5 months at the time of the murder of Thanh Chi Ly. He is now aged 26 years and 11 months.

2. General personal history and circumstances: The only evidence about these matters is contained in a report made on 17 October 2002 by Katherine Barrier, Psychologist. The relevant parts of that report read:

“On a standardised test of intelligence, Vu tested out as in the Below Average range, in the lowest 18 per cent of the general population. There is a significant difference between his Vocabulary (verbal) and

Matrices (nonverbal) scores most likely due to his limited acquisition of English. He does have the capacity to improve his spoken and written English skills as well as undertaking vocational training which would put him in a better position to obtain permanent employment on his release.

On the personality test administered his profile evidences poor self image and esteem, a marked dependence on others and unstable mood.

From the background history given by your client it is known Vu left Vietnam at age 7 with his father and spent the following four years in difficult conditions in refuge camps in Indonesia before arriving in Australia. The family did not re-unite until the client was 15 thus for a significant part of his formative years he did not have the benefit of his mother's emotional support and guidance. It appears that for the first four years in Sydney Vu rarely saw his father either and was largely left to his own devices. However he states he was only one of the three boys, who forged a meaningful relationship with both parents, reconciled with them after absconding from home with his girlfriend and remained living with or close to them until his imprisonment three years ago. The history given was that he was not a behaviour problem at school and later obtained casual work as a process worker and presser.

Vu is now separated from his wife, a situation apparently largely due to the time he has spent on remand. He has a close attachment to his six year old daughter Mandy and harbours significant feelings of helplessness and guilt that he is not with her and that his parents have had to take over her care and support.

It is noted that Vu acknowledges problems in the past with drugs specifically heroin and he has two minor convictions for drug possession on his record. It could not be ascertained how much heroin Vu was using at the time of this offence. At this meeting he was adamant that he would not use drugs again and involvement with the Alcohol and Others Drugs services would certainly assist him in that decision.

Vu maintains innocence in relation to this offence, hence issues of remorse could not be canvassed.

On his release, his stated priorities are to gain employment in order to support himself and his daughter and to assist his parents.”
3. There is no evidence of remorse or contrition.

4. Criminal antecedents: There are three summary offences between 1995 and 1999. They are of no present moment.

5. The prisoner has been in custody since 5 October 2000. Any sentence now passed will be dated to commence on that day.

SUBJECTIVE MATTERS: MINH NGUYEN

80 These are as follows:

1. Age: Minh Nguyen was born on 11 October 1978. He was aged, therefore, 17 years and some 9 months at the date of the murder of Thanh Chi Ly. He is now aged 24 years and some 3 months.

2. General personal history and circumstances: These have to be gleaned from a series of reports constituting Exs MN 1 and MN2 on sentence. The picture thus painted is a truly appalling one. It is convenient to begin by noting some opinions expressed by Dr. T.O. Clark in August 2000. Dr Clark was there reporting in the context of the killing by Minh Nguyen of one Van Hung Tran, a matter about which it will be necessary to say later herein something more. Dr Clark says: “ This man has a chronic depression. He also has many characteristics of someone who has been traumatised, and although it is unclear how long the trauma has been going on, he fulfils most of the characteristics of a Post-Traumatic Stress Disorder .” Dr Clark explains the classical symptoms, as professionally recognised, of chronic depression, and continues: “ The depression is self-evident from his history. He has never had any systematised psychiatric intervention or consequent treatment. He has never been tried on antidepressant medication and it is remarkable that there are no psychiatric reports or comments in his prison medical record. As to his personality, he is an alone, traumatised individual. With his lack of education and what appears to have been a feral life, it would appear that this state has been going on for a long time .” Dr Clark considers and rejects any likelihood “ that he is putting on these symptoms ”, and continues: “ Thus, it is possible that he has lived as a Cabramatta ‘street kid’. He has survived as a minor, to live without being educated or cared for. There appears to have been an abject failure of parental and community caring systems in his case ”. Dr. Clark updated this assessment in a report dated 7 July 2002. It suffices to quote the following parts of Dr. Clark’s opinion: “ The depression is not as evident. He has come to some sort of compromise in his head about his future. He is no longer suicidal and talks about serving out his sentences in Vietnam. Whether this is possible is not the point; rather it shows he is actually thinking he has a future now. … … … … … …Thus, we have a man who has been damaged, brutalised and discarded by his family. He was prone to acting out his anger to an uncontrollable degree to the extent he was suicidal. Over the last two years, some sort of resolution has been reached in his mind but he is still an edgy, suspicious and brittle-natured person .” I accept this evidence. There are, as I said earlier, other reports from other psychologists. I have read and considered all of them, but I do not think that they add in any significant way to the conclusions reached by Dr. Clark.

3. There is no evidence of any contrition or remorse.

4. Criminal antecedents: These are appalling. A useful summary appears in the Remarks on Sentence of Whealy J when his Honour sentenced the prisoner for the murder, earlier herein mentioned, of Van Hung Tran:

“The criminal antecedents of the prisoner shows that he has a history of violence. Whilst still a juvenile, he was convicted on 8 December 1995 of malicious damage and assault occasioning actual bodily harm. He was put on probation for 18 months. During the period he was on probation, on 7 August 1996, he murdered one Hoang Huy Le.

Shortly before 16 September 1996, that is, within a matter of weeks after the murder, he had been involved in a violent incident at Bankstown Sports Club. During an altercation, he stabbed a woman in the chest and the left knee and kicked another woman in the stomach and she then fell down the staircase at the club. On 7 February 1997 the Children's Court at Lidcombe imposed two concurrent control orders for 12 months and 6 months effectively in relation to these offences. The prisoner was sent to the Kariong Juvenile Justice Centre.

Further difficulties arose for the prisoner in that Centre. Property was damaged and there were assaults on other inmates. These resulted in the prisoner coming before the Gosford Local Court on 27 March 1997. He was convicted of malicious wounding and assault occasioning actual bodily harm. A fixed term of six months commencing on 27 March 1997 was imposed in respect of each offence concurrently. The prisoner served these sentences at Lithgow Gaol.

The prisoner was awaiting trial in relation to the murder charge to which I have referred when the present murder occurred. He was also awaiting trial for two further offences. The first of these was the murder of a man named Truong on 21 June 1996 at Petersham. The second related to the malicious wounding of Luat Ngo on the same day at the same place.

In late 1998 the prisoner pleaded guilty to the Le murder. He also pleaded guilty to the charge of malicious wounding of Luat Ngo. He pleaded not guilty to murder but guilty to manslaughter in relation to Mr Truong. That plea was accepted by the Crown in full satisfaction of the indictment.

In relation to the Le murder, he was sentenced by Kirby J on 29 October 1998 to penal servitude for a period of twenty two years made up of the minimum term of sixteen years and an additional term of six years. This minimum term was to expire on 18 August 2013.

In relation to the manslaughter and malicious wounding charges, the prisoner was sentenced by Kirby J on 20 November 1998 to penal servitude for fixed terms of four years and one year respectively. These sentences were to be served concurrently with the sentence for murder.”

81 It will be observed that the murder of Thanh Chi Ly took place almost a month after the killing of Truong; and a week before the murder of Le. The subsequent murder, on 28 April 1998, of Van Hung Tran was a prison murder. The murder of Le was a particularly horrible killing. The details are set out in the Remarks on Sentence of Kirby J, and I need not repeat them. The murder of Tran, too, was a killing of great ferocity and brutality committed against the background of a very serious sexual assault of the prisoner by Van Hung Tran. The prisoner’s record marks him as a seriously troubled young man of very real ongoing potential danger to the community.

82 The prisoner is in custody serving the sentences passed upon him by, respectively, Kirby J and Whealy J. The details are:

(Kirby J): Minimum Term of 16 years commencing on 19 August 1997 and expiring on 18 August 2013; Additional Term of 6 years, commencing on 19 August 2013 and expiring on 18 August 2019.

(Whealy J): A head sentence of 18 years commencing on 19 August 2008 and expiring on 18 August 2026; a non-parole period of 9½ years commencing on 19 August 2008 and expiring on 18 February 2018. The effect overall of these sentences is that the prisoner will serve at least from 19 August 1997 to 18 February 2018, ie 20 years and 6 months, without any reference to any sentence now passed by this Court. He will serve, as well, a further 6 months, ie to 18 August 2018, for an offence of escaping from lawful custody.

SENTENCES:

83 (a) Generally:

1. I have considered all of the matters prescribed for consideration by s21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) , [“the Sentencing Procedure Act”]. I have not thought it necessary to go through those matters as through a mechanical check-list.

2. I take so strong a view about the objective culpability of the murder of Thanh Chi Ly that I have considered, separately as to each prisoner, the option of an indeterminate life sentence. It will bear repeating one last time that no civilised society can hope to survive very long as such, if it is irresolute in dealing with, relevantly, the cold-blooded execution of any person, however unsavoury his character or reprehensible his conduct.

3. In considering that option I have had regard to the considerations which I explored and explained when passing sentence in the matter of Robert Theo Sievers ; unreported, 18 December 2002. The relevant passages commence: “ As to the relevant legislation and case law … … … … “, and continue to the end of the remarks on sentence. I need not repeat them. I incorporate them, by general reference, into my present remarks.

4. I have come to the conclusion that in each of the present cases, the giving of proper weight to the respective subjective matters could not be reconciled justly with the imposition of the indeterminate life sentence.

(b) Phong Pham

84 Had it not been for the factors which I have numbered 3 and 5 in my listing of subjective matters, I would have considered a proper sentence to have been one of 24 years with a non-parole period of 18 years.

85 The proper weighting to be given to those two particular factors calls for a significant discount; but not, it must be said plainly, a series of swingeing cuts which are impeccable as forensic mathematics, but derisory as justice.

86 In my opinion justice would be both done, and seen by reasonable persons to have been done, by adjusting the suggested sentence so as to produce a head sentence of 16 years and a non-parole period of 11 years. The non-parole period makes an allowance for special circumstances, the factors 3 and 5, but especially the factor 3, justifying that further concession to the prisoner.

Phong Ngoc Pham:

87 For the murder of Thanh Chi Ly, for which you have been found guilty by the jury, and have been convicted by the Court, you are sentenced to imprisonment for 16 years. The sentence will commence on 5 October 2000, and will expire on 4 October 2016. The non-parole period will commence on 5 October 2000, and will expire on 4 October 2011, which is the earliest date upon which you will be eligible for parole.

88 I recommend that you be detained separately from Vu Pham; from Minh Nguyen; and from Thuc Tran.

(c) Vu Pham:

89 Because I have not been prepared to find beyond reasonable doubt that this prisoner actively participated in the criminal enterprise until he joined it at Bonnyrigg, I think that it is fair to take as a starting point a sentence of 20 years and a non-parole period of 15 years. The only special circumstance that I can see is that of age. It deserves, in the circumstances of this murder, only a modest recognition. A reduction from 15 years to 14 years is in my opinion just.

Vu Ngoc Pham:

90 For the murder of Thanh Chi Ly, of which you have been found guilty by the jury, and have been convicted by the Court, you are sentenced to imprisonment for 20 years with a non-parole period of 14 years. The sentence will commence on 5 October 2000, and will expire on 4 October 2020. The non-parole period will commence on 5 October 2000, and will expire on 4 October 2014, which is the earliest date upon which you will be eligible for parole.

91 I recommend that you be detained separately from Phong Pham; from Minh Nguyen; and from Thuc Tran.

92 I recommend that, insofar as might be compatible with proper prison administration and discipline, you be detained at such place(s) as will permit of the maximum practicable continuing contact between you and your daughter.

(d) Minh Nguyen:

93 Leaving aside the practical consequences of the sentences which this prisoner is currently serving, I see no real distinction between his case and that of Vu Pham. His criminal antecedents are, obviously, much worse; but so, in my opinion, are his general personal history and circumstances.

94 To impose, simply, a further and consecutive sentence of 20 years with a non-parole period of 14 years would breach the principle of totality; and also the prima facie requirement of concurrence for which s55 of the Sentencing Procedure Act provides.

95 To give effect to all of the many requirements of ss47 and 55 of the Sentencing Procedure Act is no easy matter. In my opinion a just approach is as follows:

1. As matters stand, the prisoner is subject to head sentences expiring on 18 August 2026.

2. The accompanying non-parole periods expire on 18 August 2018.

3. The prisoner has been in custody since his arrest on 5 October 2000, a period of, in round figures, 2 years 5 months. Allowance must be made for this; and that can be done by adjusting the head sentence of 20 years to 17 years 7 months; and the non-parole period of 14 years to 11 years 7 months.

4. To date the 17 years 7 months, and the 11 years 7 months, so that both commenced today would be wrong in principle. The case is one in which there should be a consecutive element in order to ensure that there is, in a real sense, additional punishment for an additional crime; and a concurrent element in order to ensure that the total time actually to be served is not an inappropriately crushing period.

5. Because the prisoner must serve, under his current sentences, a total of 21 years, there is not much margin for an overall increase to that figure. In my opinion, an overall increase of 4 years would not offend the relevant principles. That arrangement will entail a non-parole period of 11 years 38 weeks dated to expire on 18 August 2022. Such a non-parole period will commence, therefore, on 26 November 2010. The head sentence of 17 years 38 weeks will commence on the same day and expire on 18 August 2028.

Minh Hoang Nguyen:

96 For the murder of Thanh Chi Ly of which you have been found guilty by the jury, and have been convicted by the Court, you are sentenced to imprisonment for 17 years 38 weeks to commence on 27 November 2010, and to expire on 18 August 2028; with a non-parole period of 11 years 38 weeks to commence on 26 November 2010 and to expire on 18 August 2022, which will be the earliest date upon which you will be eligible for parole.

97 I recommend that you be detained separately from Phong Pham; from Vu Pham; and from Thuc Tran.

98 I recommend that copies of the reports in evidence in the present proceedings, being reports of Dr. Clark of 17 August 2000 and 7 July 2002, and of Dr. Canaris of 11 September 1999, be kept at all times with your prison file; and that all practicable steps be taken urgently to ensure that you receive appropriate psychiatric, psychological and other rehabilitative support.

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Last Modified: 02/18/2003