AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Supreme Court 3 April 2020

R v Feroz; R v Ho; R v Hoang; R v Nguyen; R v Trinh

[2020] NSWSC 341

HomicideDrugs
CRIMINAL LAW SENTENCING MURDER AND MANSLAUGHTER SENSELESS KILLING OVER DRUG DEBT A LITTLE BIT OF MONEY SENTENCING AFTER TRIAL

Citation: R v Feroz; R v Ho; R v Hoang; R v Nguyen; R v Trinh [2020] NSWSC 341
Court: Supreme Court of New South Wales
Date: 3 April 2020
Judge: Hamill J

Background

On 6 December 2015, Tu Luong was stabbed to death on a street in Villawood. The killing arose from a dispute over a $4,000 drug debt: Mr Luong had received methamphetamine ("ice") from one of the offenders on credit and had then disappeared without paying for it. Over the following 24 hours, several of the offenders communicated with each other to locate Mr Luong, and ultimately two cars converged on a street in Villawood in what the court found was a prearranged confrontation.

Six men were charged with murder. At trial, one accused was directed to be acquitted after the prosecution closed its case. A jury convicted two of the remaining five men of murder and three of manslaughter. The five convicted men then appeared before Hamill J for sentencing.

The central sentencing challenge was assessing the individual culpability of each offender within what had been a joint criminal enterprise, where the violence escalated rapidly, only one offender produced and used a knife, and the others participated to varying degrees and with varying levels of knowledge.

  • How to assess the objective seriousness of each offender's conduct within a joint criminal enterprise that escalated unexpectedly at the scene
  • Whether, and to what extent, the fact that some offenders did not know a knife would be used mitigated their individual criminality
  • How to apply the parity principle across five offenders who received different verdicts and whose roles differed materially
  • What weight to give to motive, prior criminal history, personal circumstances, and prospects of rehabilitation for each offender
  • Whether the stated motive (recovery of a drug debt) was the true motive, or whether a suggested "love triangle" explanation was credible

Decision

Hamill J found that the killing was the product of a prearranged confrontation to recover a small drug debt, and rejected as implausible any suggestion that romantic jealousy was the true motive. The court was satisfied beyond reasonable doubt that the two cars arriving simultaneously at the scene was not coincidental, and that Mr Trinh's apparent surprise at Mr Ho's arrival was not genuine.

The court drew careful distinctions between the five offenders. Tony Ho and Jason Hoang were convicted of murder. Mr Ho struck Mr Luong with an iron bar on approximately three occasions, including after he knew Mr Hoang had used a knife, and the court rejected his claim that he was unaware a knife had been deployed during the attack. Mr Hoang produced the knife and inflicted the fatal stab wound, though Mr Ho had told him to put it away. The remaining three offenders, convicted of manslaughter, had participated in the joint enterprise knowing unlawful violence would occur but without knowledge that a knife would be used.

Among the three manslaughter offenders, the court also drew further distinctions. Abdul Feroz struck Mr Luong once or twice with a curtain rod, though the pathologist found those blows caused no significant injury. Vuong Nguyen assisted in accessing Mr Luong in the car but did not personally strike him and appeared confused and erratic at the scene. Minh Duc Trinh played a coordination role in luring Mr Luong to the meeting place and pointing him out to the others, but was not shown to have personally committed acts of violence. The court weighed each offender's role, personal circumstances, time already served in custody, and prospects of rehabilitation in arriving at individual sentences.

On parity, the court was mindful that the sentences for the manslaughter offenders had to reflect their materially lesser culpability compared to the two murder offenders, while remaining proportionate to the gravity of a killing, however it occurred.

Orders Made

  • Tony Ho (murder): sentenced to a non-parole period of 20 years commencing 6 December 2015, with a balance of term of 6 years and 8 months (total head sentence of 26 years and 8 months).
  • Jason Hoang (murder): sentenced to a non-parole period of 19 years commencing 6 December 2015, with a balance of term of 6 years and 4 months (total head sentence of 25 years and 4 months).
  • Abdul Feroz (manslaughter): sentenced to a non-parole period of 4 years and 6 months commencing 6 December 2015, with a balance of term of 1 year and 6 months (total head sentence of 6 years).
  • Vuong Nguyen (manslaughter): sentenced to a non-parole period of 4 years commencing on a date set by the court, with a balance of term of 1 year and 4 months.
  • Minh Duc Trinh (manslaughter): sentenced to a non-parole period of 6 years and 9 months commencing 15 June 2016, with a balance of term of 2 years and 3 months expiring 14 June 2025.
  • All three manslaughter offenders were warned, pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006, that the Act applies to the offence of manslaughter by unlawful and dangerous act.

Key Takeaways

  • Within a joint criminal enterprise, a sentencing court must assess each participant's individual culpability by reference to their specific acts, their knowledge of the means of violence likely to be used, and the role they actually played, rather than treating all participants identically.

  • Where an enterprise escalates at the scene in a way some participants did not foresee (here, the production and use of a knife), that lack of foresight can support a manslaughter rather than murder verdict and affects the objective seriousness of the offence at sentencing.

  • A finding that a participant did not personally commit acts of violence does not necessarily insulate them from criminal liability: the court held that Nguyen's role in facilitating access to the victim was sufficient to sustain the manslaughter conviction.

  • The parity principle required the Supreme Court to ensure that sentences for the manslaughter offenders reflected their materially lesser culpability compared to the murder offenders, while still recognising that all five had participated in a fatal joint enterprise.

  • Motive is a relevant sentencing consideration: the court found that the killing was motivated by recovery of a modest drug debt, characterising it as a senseless act, and expressly rejected an alternative "love triangle" explanation as an implausible attempt to reframe the offending.

Legislation and Cases Referenced

Legislation
- Crime (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22A
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
- Firearms Act 1996 (NSW), ss 7A(1), 36(1), 39(1), 65(3)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases
- Ghamraoui v R [2009] NSWCCA 111
- Magro v R [2020] NSWCCA 25
- Merrick v R [2017] NSWCCA 264
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- R v Cardoso [2003] NSWCCA 15; (2003) 137 A Crim R 535
- R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1
- R v LK [2019] NSWSC 605
- R v Merrick (No 5) [2016] NSWSC 661
- R v Oinonen [1999] NSWCCA 310
- R v Pham; R v Nguyen; R v Trinh [2019] NSWSC 1539
- R v Sumpton (No. 4) [2015] NSWSC 684
- Tabbah v R [2019] NSWCCA 324
- Todd v R [1982] 2 NSWLR 517