Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: TRAN, Hoai Vinh v R [2011] NSWCCA 116
• Hearing dates: 21 February 2011
• Decision date: 19 May 2011
• Before: Whealy JA at [1], Hidden J at [2] & Johnson J at [43]

Decision

Leave to appeal granted, appeal allowed, sentence passed by Mathews AJ quashed. Applicant re-sentenced to imprisonment for 24 years, comprising a non-parole period of 18 years, commencing 7 November 2007 and expiring 6 November 2025, and a balance of term of 6 years, commencing 7 November 2025 and expiring 6 November 2031.

• Catchwords: CRIMINAL LAW - application for leave to appeal against sentence - murder - sentencing judge found offence in middle range of objective seriousness - error in finding as aggravating factor that offence committed in company - consideration of objective gravity on re-sentence - finding that offence below mid-range
• Legislation Cited: Crimes (Sentencing Procedure) Act 1999; Crimes Act 1900
• Cases Cited: R v Tran [1999] NSWCCA 109; R v Button & Griffen [2002] NSWCCA 159, 54 NSWLR 455; Huntingdon v Regina [2007] NSWCCA 196; R v Sullivan [2010] NSWSC 755; Apps v R [2006] NSWCCA 290; Yun v R [2008] NSWCCA 114, 185 A Crim R 58; Nguyen v R [2007] NSWCCA 363, 180 A Crim R 267; Versluys v R [2008] NSWCCA 76; Collon v R [2009] NSWCCA 187; R v Nelson (NSWCCA, 25 June 1996, unreported); R v Hillsley [2006] NSWCCA 312; 164 A Crim R 252
• Category: Principal judgment
• Parties: Hoai Vinh Tran (applicant); Regina (respondent)
• Representation: Counsel; B Rigg (applicant); J Pickering (respondent); Solicitors; Peter O'Brien - O'Brien Solicitors (applicant); S Kavanagh - Solicitor for Public Prosecutions (respondent)
• File Number(s): 2009/2118

Decision under appeal

• Citation: R v Tran [2009] NSWSC 1437
• Date of Decision: 2009-12-18 00:00:00
• Before: Mathews AJ
• File Number(s): 2009/2118

Judgment

1 WHEALY JA: I agree with Hidden J and the orders he proposes. I also agree with the additional observations made by Johnson J in his judgment.

2 HIDDEN J: After a trial before Mathews AJ and a jury, the applicant, Hoai Vinh Tran, was found guilty of murder. A co-accused, Cheltona Im, was acquitted. Mathews AJ sentenced the applicant to imprisonment for 26 years, commencing on the date of his arrest, 7 November 2007, comprising a non-parole period of 20 years and a balance of term of 6 years. He seeks leave to appeal against that sentence.

Facts

3 In her remarks on sentence her Honour arrived at findings of fact after a careful examination of the evidence in the trial. The deceased, Peter Dang, had been the proprietor of a caf and a brothel in premises at Yagoona. He had been known to the applicant and his family for some time. He owed the applicant's aunt a considerable sum of money, and he also owed a lesser amount to the applicant's mother. The applicant had been trying to contact the deceased by phone about these debts, but the deceased did not return his calls.

4 In the afternoon of 8 May 2006, the applicant recruited Mr Im to drive him to the deceased's premises. Unknown to Mr Im, he was armed with a knife. Her Honour found that he did not plan to stab the deceased, but he did intend to assault him to extract the money from him. He had the knife, as her Honour put it, "to frighten the deceased and to have it available if the situation called for it". Her Honour also found that he took Mr Im with him "as a form of support".

5 As to the events leading to the fatal stabbing of the deceased at his premises, her Honour concluded that the applicant had initiated the violence by assaulting the deceased. Immediately after entering the caf, he punched the deceased and demanded money. However, the deceased retaliated, attempting to fight back. Most likely, it was at this stage that the applicant stabbed the deceased to the chest, inflicting three wounds later observed at a post mortem examination. These wounds were the cause of death.

6 Her Honour also concluded that at this stage Mr Im became involved in the altercation, trying to separate the other two men. There was then a confrontation between the deceased and Mr Im, during which the applicant stabbed the deceased four times in the back. These wounds were much less serious than the three frontal wounds, and could not themselves have been fatal.

7 Her Honour observed that whether this was "the precise scenario" could not be known. However, she found two things clearly established by the evidence: first, that the stabbing of the deceased was preceded by a fight between him and the applicant and, second, that it was the applicant who had initiated that fight.

8 Immediately after the stabbing, the applicant took Mr Dang's wallet and he and Mr Im left the scene. In the wallet was $250, which the two of them later spent playing poker machines and buying heroin. The applicant was not arrested until 7 November 2007, there being insufficient evidence to implicate him until a friend of his provided information to police in July 2007. When interviewed by police that month, he denied having been to the deceased's premises on the day in question. When interviewed further following his arrest, the effect of what he said was that he had gone to the premises with Mr Im but it was Mr Im who stabbed the deceased. That was his case at the trial.

9 Her Honour appears to have dealt with the applicant on the basis that he intended to inflict grievous bodily harm, not to kill. She recorded a submission to that effect by his counsel and continued:

"In one sense that might be right. I very much doubt whether the offender at the time actually adverted to the probable consequences of his actions. Had he done so, however, he must have realised that the infliction of the three deep chest wounds carried, at the very least, a significant threat to life."

That passage also appears to reject a finding of reckless indifference to human life, which had been left to the jury. However that may be, it is clear, and was accepted by the parties in this Court, that her Honour did not find an intention to kill.

10 Turning to aggravating and mitigating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999, her Honour found as an aggravating factor that the offence was committed in company: subs (2)(e). As a mitigating factor she found that the offence was not part of a planned or organised criminal activity: subs (3)(b). However, she noted that that mitigating factor was "tempered" by a degree of planning, in that the applicant took the knife with him to the premises, concealing it from Mr Im.

11 Her Honour expressed the view that, if the applicant had gone to the caf "with the positive intention of using the knife to seriously injure or to kill the deceased", she would have regarded the offence as being above the mid-range of objective seriousness. The fact that he did not have "a prior positive intention to stab the deceased", she found, ameliorated the seriousness of the offence. On the other hand, she noted not only that the applicant "deliberately initiated the fist fight with the deceased in an endeavour to extract money from him", but also that "it took only relatively minor resistance from the deceased to spur the offender into using the knife, with devastating consequences."

12 Having regard to all relevant matters, her Honour concluded that the offence fell "generally within the middle range of seriousness for murder." The 20 year non-parole period which she set is the standard non-parole period for murder, and she found no reason to depart from it.

Subjective Case

13 The applicant was 26 years old at the time of the offence and 30 at the time of sentence. He is now 31. He had been in custody in respect of this matter since his arrest on 7 November 2007, and her Honour backdated the sentence to that day.

14 He has a lengthy criminal history, commencing in 1996, when he was 16 years old, and extending over the following 10 years. It records convictions (or findings of guilt) mainly for drug offences, offences of dishonesty and driving offences. There is one conviction for assault, imposed in a Local Court in 2001. In 1998 he was given the benefit of a recognisance for armed robbery but, following a successful Crown appeal in the following year, he was sentenced to imprisonment for 3 years with a non-parole period of 2 years: R v Tran [1999] NSWCCA 109. On several occasions thereafter he was sentenced to lesser terms of imprisonment for the assault, and for supplying prohibited drugs, offences of dishonesty and some driving offences.

15 He was born in Australia, the son of Vietnamese refugees. His parents separated when he was an infant, and for the next few years his mother brought him up. She then remarried, and had two daughters. The applicant's stepfather treated him badly, apparently resenting his presence in the home, and on occasions inflicted violence on him. The situation became so bad that his mother sent him to a country boarding school in year 10 to get him away from his stepfather. In the event, he left school before finishing year 12. His mother and stepfather divorced in 2000.

16 Unfortunately, from the age of 15 he embarked upon an escalating pattern of drug abuse, which continued until well after the murder. Her Honour saw his difficult childhood and youth, largely caused "by his domineering and aggressive stepfather", as one of the major causes of his taking to illicit drugs at an early age.

17 During an earlier period of imprisonment in 2006, he came into contact with Dr Bruce Westmore, forensic psychiatrist. Dr Westmore thought that he was of high average intelligence. He diagnosed him as suffering from drug induced schizophrenia, a condition which could be controlled by medication. Dr Westmore reported that his mental illness was relatively unstable and that further psychotic episodes could not be excluded if there was poor compliance with a regime of medication, a return to abuse of illicit drugs, or exposure to significant psychological stress.

18 Her Honour noted that there was nothing to suggest that his mental condition had any causal connection to the murder, and was of the view that his mental health was not such as to render him an inappropriate vehicle for general deterrence. She found him not to be remorseful, in the light of his behaviour after the murder. She noted that immediately after the stabbing he took Mr Dang's wallet and he and Mr Im spent the money that was in it, despite the fact that his stated reason for going to the deceased's caf was to recover money owing to his mother and his aunt. Moreover, both prior to and at his trial he sought to shift the blame for the stabbing onto Mr Im, who was innocent.

19 Her Honour found that it was "not possible to say that he has good prospects of rehabilitation or that he is unlikely to re-offend." Nevertheless, she noted that he had "the intellectual capacity to lead a constructive and purposeful life." She saw his inability to do so in his life thus far to be "plainly the product of his drug taking." She recognised the benefit of a lengthy period of parole eligibility, but declined to find special circumstances because the application of the statutory proportion between sentence and non-parole period to the sentence she proposed would provide that opportunity.

The application

20 Neither the Crown prosecutor in this Court nor counsel for the applicant, Ms Rigg, had appeared before Mathews AJ. Ms Rigg argued the application on two grounds:

(1) Her Honour erred in finding that the offence was aggravated because it was committed in company.

(3) It was not open to her Honour to assess the offence as falling within the middle range of objective seriousness.

Aggravating factor

21 Before her Honour it was contended by the Crown, and accepted by defence counsel, that the offence was aggravated by its having been committed by the applicant in the company of Mr Im. Her Honour was not referred to relevant authority which establishes that for an offence to be committed in company the offenders must share a common criminal purpose. So much is apparent from this Court's examination of the offence of aggravated sexual assault under s 61J of the Crimes Act 1900, where the circumstance of aggravation alleged was that the offender was in the company of another person or persons, in R v Button & Griffen [2002] NSWCCA 159, 54 NSWLR 455: see the judgment of Kirby J, with whom Heydon JA and Greg James J agreed, especially at [120]. His Honour's analysis was applied to s 21A(2)(e) of the Crimes (Sentencing Procedure) Act in Huntingdon v Regina [2007] NSWCCA 196: per Hislop J, with whom Giles JA and James J agreed, at [9] ff.

22 While Mr Im was present when the applicant stabbed the deceased, he was in no way complicit in that act. This follows from his acquittal by the jury, from which it must be concluded that Mr Im's physical involvement in the incident was to separate the applicant and the deceased and was not part of a joint criminal enterprise with the applicant to attack the deceased. As noted above, this was her Honour's conclusion in determining the facts for the purpose of sentence. The Crown prosecutor in this Court conceded that this ground is made out.

23 That said, Ms Rigg for her part acknowledged that the applicant's purpose in having Mr Im with him must have been to add greater weight to his demands upon the deceased, and may well have increased the fear the deceased experienced in the course of the applicant's attack. As I have said, her Honour found that the applicant had Mr Im with him as a form of support. Ms Rigg also conceded another factor aggravating the offence to which her Honour did not refer, that is, the use of a weapon: s 21A(2)(c). However, the Crown prosecutor acknowledged the significance which her Honour obviously placed upon the fact that the applicant had taken a knife with him to the premises and had resort to it after only a brief encounter with the deceased.

24 In the result, it appears to me that her Honour gave the applicant's use of the knife the weight it deserved in assessing his criminality, even though she did not expressly refer to the relevant provision in s 21A. On the other hand, there is some force in the Crown prosecutor's submission that the presence of Mr Im did not play as important a role in her Honour's assessment. Nevertheless, her Honour's finding that the offence was committed in company was clearly relevant. As error in that respect has been established, it is open to this Court to intervene and, in determining whether it should do so, to make its own assessment of the objective gravity of the offence.

Objective gravity

25 That being so, it was not necessary for Ms Rigg to pursue the second ground of the application, that is, that it was not open to her Honour to assess the offence as falling within the middle range of objective seriousness. However, the Crown prosecutor submitted that we should arrive at the same assessment.

26 In written submissions, the Crown prosecutor set out a series of features of the case which, he argued, would lead us to that conclusion. Ms Rigg accepted that all of them were relevant factors, but argued that they pointed to an assessment of objective gravity below the mid-range. They were:

• the offence involved the use of a weapon (a knife);
• the applicant deliberately went to the deceased's premises armed with that knife with the intention of using it to intimidate and/or frighten the deceased if necessary as part of his plan to retrieve money;
• although the applicant did not go to the deceased's premises with the intention to use the knife in the murder of the deceased (that is it was not a premeditated murder), he did go there with the intention to intimidate the deceased to obtain money - therefore there was premeditation for a criminal offence - albeit not murder;
• the applicant started the physical violence towards the deceased deliberately in an endeavour to extract money from him;
• the applicant needed only slight resistance before producing and using the knife - showing a predisposition to use the knife as soon as he felt like it;
• the offence involved the infliction of seven stab wounds;
• the three stab wounds in the chest area were deep and inevitably carried with them a significant threat to life;
• all the stab wounds were inflicted to an unarmed man;
• there was no aspect of self defence in the use of the knife;
• there was no action that could amount to provocation by the deceased;
• the applicant committed these deliberate acts out of anger towards the deceased;
• there was no mental illness or mental health issues of the applicant that had a causal relationship with the murder;
• the applicant's behaviour after the murder was callous in leaving the deceased with no assistance having taken his wallet.

27 Ms Rigg focussed on the fact that the stabbing was not premeditated, it was a spontaneous act indicative of a loss of self control, and it was not accompanied by an intention to kill. It was not an act, as she put it, of "detached brutality". That conclusion, she said, was not inconsistent with the applicant's failure to seek assistance for the deceased, which should fairly be seen as the product of fear rather than callousness.

28 Although the second ground need not be determined, it is appropriate to make brief reference to some decisions of this Court in murder sentence cases to which were referred by counsel. The Crown prosecutor also referred us to the remarks on sentence of Fullerton J in R v Sullivan [2010] NSWSC 755, in which her Honour cited some other relevant authorities. The outcome of these cases is not material. My focus will be upon the assessment in each of them of the objective gravity of the offence.

29 In Apps v R [2006] NSWCCA 290, the offender shot the victim in circumstances which were unclear. He intended to kill him, and the sentencing judge described the shooting as a "brutal and cowardly assassination". His Honour held that the intention to kill placed the crime above the mid-range of objective seriousness. Moreover, there were other aggravating features of the offence, being the use of the weapon and the fact that the crime was committed in the victim's home. In the light of those additional features, his Honour placed the offence "well above" the mid-range. However, the offender had a mental condition causally related to the killing.

30 This Court found that his Honour had fallen into error in assessing the objective seriousness of the offence, because he regarded the intention to kill alone as sufficient to place it above mid-range and had not given consideration to the offender's mental state: see the judgment of Simpson J, with whom Hunt AJA and Whealy J agreed, at [51] - [52]. Her Honour concluded that the offence lay "at approximately the mid-range of objective gravity": [80] - [81].

31 In the course of her judgment, at [49], Simpson J said:

"Certainly, in a case of murder, the state of mind in which the offence is committed is a relevant consideration going to objective seriousness. As is well known, murder may be established by proof of an act causing death committed when the act is accompanied by any one of three states of mind: in descending levels of seriousness they are: an intention to kill, an intention to cause grievous bodily harm, or reckless indifference. I have no doubt that an intention to kill as distinct from either of the two alternatives, is a consideration tending to greater objective seriousness rather than lesser. So much is obvious. ..."

Her Honour went on to observe that an intention to kill alone could not establish that a particular murder was above the mid-range of seriousness, as it was not the only circumstance relevant to that assessment. Affirming that the state of mind in which a murder is committed is not necessarily determinative of the question, Hunt AJA added at [4] that "the standard non-parole period relates to a crime in the middle of seriousness relating to all the various states of mind which may constitute that crime."

32 In Yun v R [2008] NSWCCA 114, 185 A Crim R 58, the offender and the deceased had consumed alcohol and, while they were walking in a street, they got into an argument which developed into a fight. The offender returned to his home in anger, obtained a knife and left, telling his mother that he was going to kill the deceased. He stabbed the deceased, fatally, in the street. The trial judge expressed the view that the fact that he intended to kill the deceased placed the crime "somewhere between the mid-range of seriousness and a higher range". The Court found that his Honour had fallen into error in that approach, referring to Apps . That error and another error identified in his Honour's reasoning led the Court to re-sentence. In so doing, the Court accepted that there was "force in the Crown submission that the objective seriousness of this offence, given the applicant's intent, the use of a weapon and some level of premeditation is at the middle of the range of offences of this kind": at [34].

33 Nguyen v R [2007] NSWCCA 363, 180 A Crim R 267, was an appeal against conviction and sentence by four men found guilty of participating in a pre-meditated murder. Three of them succeeded in their appeals against conviction. It remained for the Court to consider the sentence appeal of the remaining man. Without going to the detail of the offence, it is sufficient to say that the victim was shot by that offender, who intended to kill, in what the sentencing judge described as "a cold blooded execution". The offence was committed in company, and the shooting occurred in a courtyard where a number of people were present, with disregard of the risk to others who were present and for public safety: see the leading judgment of Smart AJ at [138]. The sentencing judge found the offence to be substantially above the mid-range of objective seriousness.

34 The Court was comprised of Mason P, Adams J and Smart AJ. Smart AJ, with whom Adams J agreed but with Mason P dissenting on this point, found that the sentencing judge erred in assessing the objective gravity of the offence as he did. Smart AJ placed it in the mid-range of objective seriousness, expressing the view that an intention to kill and premeditation are "usual elements" in a murder in the mid-range: [143] - [144].

35 In these three cases the Court found error in the sentencing judge's assessment of the objective seriousness of the offence and arrived at its own assessment. In each of the remaining two cases the Court found that the sentencing judge's assessment of objective gravity was open on the evidence.

36 In Collon v R [2009] NSWCCA 187, the offender and the deceased were homeless men who were sharing accommodation provided by a charitable organisation. The killing occurred at those premises, against the background of friction between the two men over a period of about two months. The offender stabbed the deceased with two knives and a pair of scissors in a ferocious attack. The killing was spontaneous, the product of a loss of self control, but the offender intended to kill. He was intoxicated by a combination of drugs and alcohol, and there was psychiatric evidence that his mental capacity was to some extent impaired as a result of a very deprived upbringing. The sentencing judge found the seriousness of the offence to be in the mid-range. Kirby J, with whom McClellan CJ at CL and Johnson J agreed, concluded that that assessment was "plainly open": [39].

37 In Versluys v R [2008] NSWCCA 76, the Court upheld a finding that a murder accompanied by the intent to inflict grievous bodily harm fell within the mid-range of objective gravity. The offender killed his de facto wife by manual strangulation because he believed she had been unfaithful to him. About a month earlier he had held a knife to her throat and tried to strangle her for the same reason. In the interim he told her mother that she was "playing up" on him, and threatened that he would kill her if she ever did it again. In the week leading up to the killing he told an acquaintance that she had been having an affair and that he felt like strangling her. The sentencing judge found that on the occasion of the killing he "at least" intended to cause her serious bodily harm. He noted that manual strangulation was a particularly horrible way for a person to die, and that the offender had in the past threatened to do exactly what he did. He also noted a "vast physical difference" between the offender and the deceased, making the killing "a most cowardly crime".

38 His Honour characterised the objective seriousness of the offence as "well within the mid-range although at the high end of that range." He added that if the crime had been premeditated he would have placed it beyond the mid-range. The Court held that his Honour had made an appropriate determination of the seriousness of the offence. Citing the judgment of Hunt AJA in Apps at [4], McClellan CJ at CL, with whom Simpson and Price JJ agreed, observed that although "where there is an intention to kill the objective seriousness of the offence is likely to be greater, it does not follow that where the intention is confined to an intention to cause grievous bodily harm the objective seriousness will fall below the mid range": [32]. As to the lack of premeditation, his Honour said at [34]:

"It may be accepted that a murder which is not premeditated would usually be less serious than one which involves planning. However murder is a crime which can be committed under a very wide range of circumstances and the absence of premeditation does not dictate a finding that the objective seriousness of the particular offence falls below the mid range."

39 What emerges from these cases is what one would expect. Whether a killing was premeditated or, in any event, whether it was accompanied by an intention to kill are important questions in an assessment of where a murder lies in the range of objective gravity, but of themselves are not necessarily determinative. Invariably, there will be other circumstances in the particular case bearing on that assessment. In Versluys at [36], McClellan CJ at CL said:

"When assessing the objective seriousness of any offence the court is required to identify the relevant facts and form an intuitive judgment based upon the experience of the courts in sentencing for the particular offence. This is true of murder as it is of any other offence ... ."

Of course, the assessment of the objective gravity of an offence is an important aspect of any sentencing exercise, and one which requires careful consideration. For obvious reasons, this is particularly so when sentencing for offences for which a standard non-parole period is prescribed.

40 Turning, then, to the present case, the applicant had a legitimate grievance against the deceased but the way he went about addressing it involved serious criminality. He went to the deceased's premises, armed with a knife, determined to recover the money owing by intimidation or force, if necessary. His behaviour after the killing, however it might be explained, was reprehensible. It was he who initiated the violence upon his arrival at the premises, and he had resort to the knife after relatively little resistance from the deceased. Seven stab wounds were inflicted, three of them serious. All that said, however, the killing was spontaneous and the applicant did not intend to cause death. Clearly, he was in an angry state and his resort to the use of the knife is consistent with a loss of self control. In all the circumstances, I would assess the objective gravity of the offence as below the mid-range, although not far from it.

Re-sentence

41 I am satisfied that this Court should intervene and re-sentence the applicant. In so doing, it is necessary to have regard to his criminal history and personal background, which I have summarised. I would respectfully share her Honour's somewhat guarded assessment of his prospects of rehabilitation. Like her Honour, I would not find special circumstances because the application of the statutory ratio to the sentence which I propose would produce a substantial period of parole eligibility. In my view, the appropriate sentence is imprisonment for 24 years with a non-parole period of 18 years.

42 I would grant leave to appeal and allow the appeal. I would quash the sentence passed by Mathews AJ, and would re-sentence the applicant to a non-parole period of 18 years, commencing on 7 November 2007 and expiring on 6 November 2025, and a balance of term of 6 years, commencing on 7 November 2025 and expiring on 6 November 2031.

43 JOHNSON J : I agree with the orders proposed by Hidden J and with his Honour's reasons, but would add one further observation.

44 Although it will generally be the case that an intention to cause grievous bodily harm is less culpable to a greater or lesser degree than an intention to kill in a case of murder, that is not always so and there may be circumstances where an intention to inflict grievous bodily harm could reflect similar criminality to other cases involving an intention to kill: R v Nelson (NSWCCA, 25 June 1996, unreported); R v Hillsley [2006] NSWCCA 312; 164 A Crim R 252 at 258 [16].

45 These statements have been made in decisions of the Court of Criminal Appeal which predate the standard non-parole period system ( R v Nelson ) and which postdate that system ( R v Hillsley ). The statements are pertinent to the determination of objective seriousness of a crime of murder under the standard non-parole period system and, in my view, should be kept in mind in conjunction with the authorities and principles referred to in the judgment of Hidden J.

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Decision last updated: 20 May 2011