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Supreme Court 9 December 2022

R v Tran (No 3)

[2022] NSWSC 1661

Homicide
CRIMINAL LAW SENTENCE DECEASED FORMER WIFE’S NEW PARTNER INTENTION TO KILL ELDERLY OFFENDER SURVIVED KHMER ROUGE REGIME

Citation: R v Tran (No 3) [2022] NSWSC 1661
Court: Supreme Court of New South Wales
Date: 9 December 2022
Judge: Button J

Background

The offender, a 75-year-old man of Cambodian-Chinese background, was charged with murdering his former wife's new partner in Cabramatta on the evening of 14 March 2019. The offender had been parked outside the family home, where his former wife and two adult children lived, with binoculars in the cabin and an axe in the boot of his car. When the deceased emerged from the home carrying a metal ladder, the offender drove his car directly at him, then retrieved the axe and delivered multiple fatal blows to the deceased's head.

At trial, the offender entered a plea of guilty to manslaughter, which the Crown did not accept. The only live issue for the jury was whether the partial defence of substantial impairment by abnormality of mind had been established on the balance of probabilities. On 11 October 2022, the jury returned a verdict of guilty of murder. Sentencing proceedings followed on 25 November 2022.

The offender had no prior criminal record. He had survived the Khmer Rouge regime and years of forced labour in Cambodia before eventually settling in Australia. At the time of the offence, he was living in isolated and lonely circumstances following his separation from the family home.

  • Whether the partial defence of substantial impairment had been established on the balance of probabilities.
  • The objective gravity of the murder, and where it fell within the spectrum of such offending.
  • Whether any utilitarian discount should be applied given the plea and the nature of the trial.
  • The weight to be given to subjective mitigating features, including the offender's age, mental health diagnoses (major depression and PTSD), background trauma, and lack of prior offending.
  • Whether a finding of special circumstances warranting a reduction in the non-parole period was appropriate.
  • The appropriate sentence, having regard to the standard non-parole period of 20 years for murder in the relevant circumstances.

Decision

Button J assessed the objective gravity of the murder as extremely grave. The offender had deliberately run down the deceased in a public place, then calmly retrieved an axe and hacked him to death as he lay defenceless on the ground. His Honour was satisfied that the offender intended to kill the deceased from at least the moment he engaged the ignition. While Button J declined to find beyond reasonable doubt that a settled intention to kill existed before that moment, the brutality, premeditation in bringing the axe, and the targeted nature of the attack all weighed heavily against the offender.

No utilitarian discount was available because the offender had contested the murder verdict at trial. His Honour did, however, give some credit for the focused way the trial was conducted and for the offender's cooperation in being assessed by a Crown psychiatrist. Button J acknowledged the offender's extraordinary background, including years living under the Khmer Rouge regime as a forced labourer with an explicit fear of death, and his subsequent diagnoses of major depression and PTSD. These features were recognised as mitigating factors, though they did not establish the partial defence.

The offender expressed no remorse. His Honour noted that the final moments of the deceased would have been excruciating and terrifying, and acknowledged the severe distress the killing would have caused to the deceased's partner and others close to him. Button J also observed that the offender's advanced age meant the sentence would, in all likelihood, result in his dying in custody or being released in a state of enfeeblement, but characterised this as an inevitable consequence of the offending.

No finding of special circumstances was made. A parole period of five years was considered sufficient, and the offender's senior counsel had not sought such a finding. The non-parole period of 15 years, backdated to the date of arrest, meant the offender would be aged 90 years and 10 months before first becoming eligible for parole.

Orders Made

  • The offender was convicted of murder.
  • Sentenced to a non-parole period of 15 years, commencing 14 March 2019 and expiring 13 March 2034.
  • Followed by a parole period of 5 years, commencing 14 March 2034 and expiring 13 March 2039.
  • First eligible date for release to parole: 13 March 2034.
  • No finding of special circumstances.

Key Takeaways

  • Button J confirmed that facts adverse to an offender at sentencing in a criminal trial must be proven beyond reasonable doubt, while mitigating features need only be established on the balance of probabilities.
  • A jury's rejection of the partial defence of substantial impairment on the balance of probabilities was treated as conclusive; the sentencing court did not revisit the issue independently.
  • Where a trial was conducted in a focused and narrow way due to the admitted nature of homicide, some sentencing credit was available even in the absence of a utilitarian discount from a plea of guilty.
  • Advanced age and a background of serious historical trauma, including survival of the Khmer Rouge regime, were recognised as mitigating factors but did not displace the objective gravity of a premeditated and brutal killing.
  • The absence of expressed remorse was noted as an adverse factor, while the Crimes (High Risk Offenders) Act 2006 (NSW) was flagged as potentially applicable to the offender upon approaching release.

Legislation and Cases Referenced

Legislation:
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases:
- No cases were cited in the portions of the judgment provided.