Citation: R v Hoang Huy Nguyen; R v Minh Duc Luong [2011] NSWSC 562
Court: Supreme Court of New South Wales
Date: 10 June 2011
Judge(s): McCallum J
Background
Two men were sentenced for the murders of two victims stabbed outside a bar in Bankstown on the evening of 1 February 2009. Both victims died after being stabbed in the heart during a confrontation involving four men, including the two offenders. The other two participants, known only as "Tommy" and "Zeng," had left Australia and were not before the courts.
The first offender was convicted after a jury trial concluded in November 2010. The second offender pleaded guilty to both murders on the day the trial was due to commence. The prosecution proceeded on the basis of a joint criminal enterprise: all four men shared a common purpose to kill or inflict grievous bodily harm on each victim, and the evidence did not reveal which individual had inflicted the fatal wound in either case.
The background to the killings involved an earlier incident the same evening, in which the first offender was confronted, struck, and chased by a group that included one of the men later killed. The Crown's primary case was that, over the following two hours, the first offender gathered a group, obtained knives, and organised a reprisal attack.
Legal Issues
- Whether the offences fell within the middle range of objective seriousness, engaging the standard non-parole period of 20 years prescribed for murder under the Crimes (Sentencing Procedure) Act 1999
- Whether there were reasons to depart from the standard non-parole period for either offender
- How the principle of totality should apply when sentencing each offender for two separate murders
- What weight to give to disputed facts, including the degree of planning involved and the first offender's state of mind at the time
- What discount, if any, was warranted for the second offender's guilty pleas
Decision
McCallum J declined to impose life sentences, accepting that neither offender's culpability reached the threshold required by section 61(1) of the Crimes (Sentencing Procedure) Act 1999. The court found that the offences did fall within the middle range of objective seriousness, such that the standard non-parole period of 20 years was the relevant benchmark for each murder considered individually.
However, the court identified reasons to depart downward from that benchmark for both offenders. For the first offender (convicted after trial), those reasons included findings that he had planned the offences while in a genuinely fearful state of mind following the earlier attack, his prospects of rehabilitation, the accumulating effect of consecutive sentences, and the additional hardship of serving a sentence in an English-speaking country. For the second offender (who pleaded guilty), the reasons for departure were his pleas of guilty, his youth, the impact of accumulation, and the same language-related hardship.
The court applied the totality principle to structure partially consecutive sentences that avoided both double punishment and undue leniency. The sentences were staggered so that the non-parole period for the second murder commenced partway through the balance of term for the first, rather than running entirely concurrently or entirely consecutively. This produced total non-parole periods of 22.5 years (first offender) and 21 years (second offender).
On the approach to standard non-parole periods, the court followed R v Way and Markarian v R, emphasising that the standard non-parole period must not be treated as a starting point that dominates the remainder of the sentencing exercise. The proper task is to weigh all relevant factors holistically and arrive at an appropriate sentence.
Orders Made
Hoang Huy Nguyen (convicted after trial):
- For the murder of Brian Bao Dung Huynh: non-parole period of 18 years commencing 13 October 2009, expiring 12 October 2027; balance of term of 7.5 years expiring 12 April 2035
- For the murder of Phuc Uy Nguyen: non-parole period of 18 years commencing 13 April 2014, expiring 12 April 2032; balance of term of 7.5 years expiring 12 October 2039
- Earliest parole eligibility: 12 April 2032
Minh Duc Luong (pleaded guilty):
- For the murder of Brian Bao Dung Huynh: non-parole period of 17 years commencing 13 October 2009, expiring 12 October 2026; balance of term of 7 years expiring 12 October 2033
- For the murder of Phuc Uy Nguyen: non-parole period of 17 years commencing 13 October 2013, expiring 12 October 2030; balance of term of 7 years expiring 12 October 2037
- Earliest parole eligibility: 12 October 2030
Key Takeaways
- A guilty plea to murder constitutes sufficient reason, on its own, to depart from the standard non-parole period of 20 years, as the Crown itself acknowledged in these proceedings.
- Under the approach confirmed in R v Way and Markarian v R, the standard non-parole period functions as a legislative benchmark rather than a starting point; sentencing courts must weigh all relevant factors and resist allowing the benchmark to dominate the exercise.
- Where an offender is sentenced for multiple murders, the totality principle requires careful structuring of consecutive sentences to ensure the aggregate term is not disproportionate, while still reflecting the gravity of each offence individually.
- A fearful state of mind at the time of planning, arising from a genuine and serious provocation earlier the same evening, can constitute a mitigating factor even in a premeditated killing, though it does not reduce the objective seriousness of the offences themselves.
- Disputed facts at sentencing are governed by established principles from R v Olbrich: facts adverse to the offender must be proved beyond reasonable doubt, while facts favourable to the offender need only be established on the balance of probabilities.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 19A (maximum sentence for murder)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A (standard non-parole period for murder: 20 years); s 61(1) (mandatory life sentence threshold)
Cases:
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- R v Way [2004] NSWCCA 131
- R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
- R v Thomson; R v Houlton [2000] NSWCCA 309
- R v Doff [2005] NSWCCA 119
- R v Jin [2011] NSWSC 169