Citation: Regina v Mao Vann [2004] NSWSC 988
Court: Supreme Court of New South Wales
Date: 28 October 2004
Judge(s): Dunford J
Background
The offender pleaded guilty to the murder of a 16-year-old victim and the assault of a security guard, both occurring on 8 February 2002 in the foyer of a cinema complex at Westfield Liverpool. The events arose from a dispute over a stolen mobile phone. A group of between 12 and 20 men launched a serious group assault on the victim and his companions after a phone belonging to one of their party had been taken during a movie session.
The offender retrieved a rifle from a vehicle in the car park and returned to the cinema foyer, where he fired at the victim in a public space with numerous bystanders present. The victim died as a result. The security guard, Kamal Elmasri, who had intervened to break up the assault, was also injured. The offender was arrested on 16 February 2002 and had remained in custody from that date.
An additional charge of possessing a loaded firearm in a public place arising from the same incident was not separately prosecuted but was formally taken into account under section 33 of the Crimes (Sentencing Procedure) Act 1995.
Legal Issues
- What was the appropriate head sentence for the murder, having regard to the objective gravity of the offence and all relevant subjective factors?
- Whether the offender's intent at the time of the shooting was to kill or cause grievous bodily harm, or whether the killing reflected reckless indifference to human life.
- Whether the offender's evidence at sentencing, which sought to minimise his culpability and contradicted material admitted without objection in the Crown case, should be accepted.
- Whether a linguistics expert report was of assistance in interpreting the offender's recorded police interview.
- Whether "special circumstances" existed to justify reducing the statutory ratio between non-parole period and head sentence.
Decision
Dunford J declined to accept the offender's evidence at the sentencing hearing, where that evidence contradicted material admitted without objection from the Crown. The judge identified four reasons: the Crown's witness statements and agreed facts were tendered by consent without challenge; the offender's evidence conflicted with his own spontaneous responses on the day of arrest; objective evidence, including car park footage, contradicted aspects of his account; and parts of his testimony lacked basic credibility. Spontaneous responses made on the day of arrest were considered more reliable than evidence reconstructed over two and a half years later.
A linguistics expert's report, which proposed that several of the offender's police interview answers may have borne alternative meanings, was rejected as an aid to interpretation. Dunford J observed the offender directly in the witness box and was satisfied his conversational English was fluent and responsive, making the suggested qualifications to his interview answers unconvincing.
On the question of intent, the court was satisfied the offender acted with the requisite mental state for murder, either with intent to kill or cause grievous bodily harm, or with reckless indifference to human life. General deterrence was given particular weight given the serious public danger created by carrying and discharging a loaded firearm in a crowded public space.
The court began with a sentence of 22 years and reduced it by three years to reflect the guilty plea. No special circumstances were found to justify departing from the statutory non-parole period ratio. The assault sentence was made wholly concurrent.
Orders Made
- Sentenced to imprisonment for 19 years for murder (taken to have commenced 16 February 2002, expiring 15 February 2021).
- Non-parole period fixed at 14 years and 3 months, with earliest parole eligibility on 15 May 2016.
- Sentenced to imprisonment for a fixed term of 18 months for the assault of the security guard, served concurrently from 16 February 2002.
- The charge of possessing a loaded firearm in a public place taken into account under s 33 of the Crimes (Sentencing Procedure) Act 1995.
Key Takeaways
- Where an offender at a sentencing hearing adduces evidence inconsistent with facts and witness statements admitted without objection by the defence, the court may reject that evidence in favour of the Crown material, particularly where the offender's own contemporaneous statements to police tell a different story.
- Spontaneous responses in recorded police interviews and crime-scene walk-throughs, made on the day of arrest, may be afforded greater weight than evidence given at a sentencing hearing years later.
- Expert linguistic evidence directed at reinterpreting an offender's police interview answers carries limited weight where the sentencing judge has directly observed the offender's English proficiency in the witness box and found it to be fluent and unimpaired.
- General deterrence carries particular weight in murders involving the discharge of a loaded firearm in a crowded public place, reflecting the broader community interest in preventing the use of firearms to resolve disputes.
- Under section 33 of the Crimes (Sentencing Procedure) Act 1995, a court may take a related but uncharged offence into account on sentencing, a practice confirmed as appropriate by the Court of Criminal Appeal in the Attorney General's Application (No 1 of 2002).
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1995 (NSW), s 33, s 44
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- Re Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999, No 1 of 2002 (2002) 56 NSWLR 146
- R v Falls [2004] NSWCCA 335
- R v Palu (2002) 134 A Crim R 174