Regina v Tuan Duc Thai

[2004] NSWSC 1204

CITATION:	Regina v Tuan Duc THAI [2004] NSWSC 1204
HEARING DATE(S):	1/11/04, 13/12/04
JUDGMENT DATE:	13 December 2004
JUDGMENT OF:	Bell J at 1
DECISION:	Tuan Duc Thai convicted of the offence to which he pleaded guilty on 1/11/04; Pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 Tuan Duc Thai is to enter into a good behaviour bond for twelve months from today's date
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Thomson (2000) 49 NSWLR 383
PARTIES :	Regina Tuan Duc THAI (Accused)
FILE NUMBER(S):	SC 2003/74
COUNSEL:	L. Lungo (Crown) P. Bodor QC (Accused)
SOLICITORS:	S Kavanagh Klees & Associates (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Monday 13 December 2004

2003/74 REGINA v Tuan Duc THAI

JUDGMENT

1 BELL J: The offender, Tuan Duc Thai, appears for sentence having pleaded guilty before me to an indictment charging him that between 8 and 16 February 2002 knowing that Mao Vann had committed the offence of murder and knowing that he had information which might be of material assistance in securing the apprehension of Mao Vann for that offence, without reasonable excuse, failed to bring that attention to a member of the police force. The offence is created by s 316 of the Crimes Act 1900.

2 The facts upon which I am to sentence the offender are agreed. On the evening of Friday 8 February 2002 a sixteen year-old boy, Userph Rima, attended the Westfield Liverpool cinema with friends. Also present at the cinema and seated in front of Userph Rima was a man named Robert Ly. During the course of the movie Ly dropped his mobile telephone. He came to believe that Userph Rima had taken it. Ly left the cinema and contacted his sister, Rebecca, who later arrived at the cinema with her boyfriend, Mao Vann. Vann had obtained an SKS self-loading shortened rifle which he carried with him to the cinema.

3 Ly and Vann arrived at the cinema car park. Vann approached the entrance of the cinema from the car park carrying the rifle. He walked past the offender who was standing in the car park. The offender knew both Vann and Ly. Vann walked into the cinema area where he aimed and fired the self-loading rifle at Userph Rima. Rima was wounded in the upper chest and died shortly thereafter.

4 The offender was not present at any time inside the cinema complex.

5 Following the shooting Vann ran out to the car park, past the offender. He was still carrying the rifle. He left the area in Ly’s vehicle. The offender also left the car park shortly after in his vehicle.

6 The shooting received widespread media coverage throughout Sydney on that night and over the next few days.

7 A witness provided the police with the registration numbers of a number of vehicles that had left the car park shortly after the shooting. Further investigations led to the arrest and charging of Mao Vann for the murder of Userph Rima. Vann has since been convicted and sentenced for this offence.

8 Between the time of the shooting and the arrest of Mao Vann the offender took no steps to bring to the attention of the police the information in his possession concerning Mao Vann’s involvement in the shooting. This is the basis of his liability for the offence.

9 The offender was arrested on 18 February 2002. He was charged with murder. He was refused bail and remained in custody for a period of five months until his release on bail on 16 July 2002. His bail conditions were onerous and required him to abide by a curfew between 6:00 pm and 6:00 am and to report to police daily. He has been the subject of that bail for a period of two years and five months.

10 The agreed statement of facts details the sentences imposed in the Local Court on three co-offenders who were convicted of concealing a serious offence arising out of their failure to bring to the attention of the police their knowledge of Mao Vann’s involvement in the killing of Userph Rima. Arno Van Do pleaded guilty to the offence and was sentenced to a term of three months’ imprisonment to be served by way of periodic detention. Peter Pan pleaded guilty to the offence and was ordered to perform three hundred and fifty hours’ of community service. Khoa Nam Tran pleaded guilty to the offence and was also ordered to perform three hundred and fifty hours’ of community service.

11 The offender was just short of his twentieth birthday at the date of the offence. He had no criminal history. He appears to have been charged with two counts of possession of a prohibited drug on the day that he was arrested for the subject offence. He was placed on a s 10 bond under the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act) on 10 March 2004 in respect of one of these convictions and the second charge was dismissed under the provisions of s 10 of the Act.

12 The offender pleaded guilty to the present charge on 1 November 2004. This was the date fixed for his trial for the murder of Userph Rima. I am informed, and accept, that the Crown Prosecutor briefed in the matter first raised the possibility that the offender might plead guilty to the present indictment in substitution for the indictment that charged him with murder on 26 October 2004. I approach the matter upon the basis that he entered a plea of guilty at the first available opportunity. I have regard to the utilitarian value of the plea of guilty for the reasons explained in R v Thomson (2000) 49 NSWLR 383.

13 I consider the plea also evidences the offender’s contrition. There is evidence in the report of Susan Hayes, a clinical psychologist, of the fact that the offender is truly contrite. Dr Hayes reports that during the course of her interview with the offender he was in tears when discussing the offence. Dr Hayes assessed the offender as deeply shocked by the event and as saying, “is that all that a life is worth – the price of a mobile phone?” Dr Hayes’ report and the pre-sentence report both persuade me that the offender is sorry for his failure to bring the matter to the attention of the police.

14 I note that the offender told Dr Hayes that he was worried that Mao Vann would come to his house and kill his family should he report the matter to the police. While I am prepared to accept that in the days following the shooting the offender was in a state of considerable anxiety, I do not accept that his failure to report his knowledge to the police was because of a genuinely held fear that to do so would be to expose himself or his family to risk of serious physical assault. By his plea the offender acknowledges that his failure to bring the information to the attention of the police was without reasonable excuse.

15 The offender is assessed by Dr Hayes as presenting a low risk of re-offending. This view finds strong support in the contents of the pre-sentence report. As a practical matter in assessing the likelihood of re-offending Dr Hayes observes that the offender has been at liberty in the community for two and a half years and that he has been compliant with the conditions of his bail. He is a young man who comes from a loving and supportive family. He has a history of working in various short-term jobs. He has been of considerable assistance to his mother who is in poor health. He takes her to medical appointments and acts as her interpreter. He has applied to undertake a TAFE course but the uncertainties surrounding the resolution of this case have prevented him from commencing a course.

16 I accept that the circumstances surrounding the shooting have impressed themselves upon this applicant in a salutary way and that he is unlikely to re-offend. He is a young man with good prospects of rehabilitation.

17 The offence of concealing a serious offence is one that carries a maximum penalty of imprisonment for two years. It is an offence provided in Table 1 of the Criminal Procedure Act 1986 and is to be dealt with in the Local Court unless an election is made for trial on indictment. The matter is proceeding in this Court because the offender was originally charged with the more serious offence.

18 This offender was present near the scene of the fatal shooting. He observed the man, Vann, with an object that he knew to be a weapon and he saw him enter the cinema complex. He was aware that Ms Ly’s brother was involved in some drama. He heard a bang and saw Mr Vann run out, jump into a car and drive off. He described the event as being “like a dream scene”. He told Dr Hayes that he had tried not to believe that the sound he heard was a gunshot. As he left the cinema car park he saw people running and he realised that something had happened. The following night, at the latest, he was aware that he had information that was relevant to the police investigation of the murder of a sixteen year-old boy.

19 The failure to bring to the attention of the police information that might be material in securing the apprehension of a person for an offence of murder is an objectively most serious instance of offending contrary to s 316 of the Crimes Act.

20 This offender is a young man who had not committed any criminal offence at the date of this offence. Section 5 of the Sentencing Procedure Act provides that a court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. I am not of that opinion.

21 It is necessary to have regard to the aggravating and mitigating factors to which s 21A of the Crimes (Sentencing Procedure) Act directs attention. It does not seem to me that the aggravating factors set out in subsection (2) are of application. In terms of the mitigating factors I take into account that the offence was not part of planned or organised criminal activity; that the offender does not have a record of previous convictions and is a person of good character who is unlikely to re-offend and who has good prospects of rehabilitation. I give him credit for his early plea of guilty and I take into account as a mitigating factor my acceptance that he has shown remorse for his offending.

22 Important in the exercise of the sentencing discretion in this case is the circumstance that this offender has served five months in full-time custody and that he has spent a further two years and five months subject to strict bail conditions. Those considerations, taken together with the mitigating factors to which I have referred, make it appropriate to impose a sentence of less severity than the sentence that would otherwise have been appropriate.

23 In the unusual circumstances of this case I have concluded that the appropriate sentence is to release the offender subject to an unconditional bond pursuant to s 9 of the Sentencing Procedure Act.

24 Tuan Duc Thai I convict you of the offence to which you pleaded guilty on 1 November 2004. Pursuant to s 9 of the Sentencing Procedure Act I direct that you are to enter into a good behaviour bond for a period of twelve months from today’s date.

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Last Modified: 12/17/2004