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Supreme Court 16 February 2024

R v Tran

[2024] NSWSC 116

Assault & violenceHomicidePublic order & justice offences
SENTENCE MURDER STABBING TRIAL BEFORE JURY REMORSE MENTAL ILLNESS ISSUES

Citation: R v Tran [2024] NSWSC 116
Court: Supreme Court of New South Wales
Date: 16 February 2024
Judge: Lonergan J

Background

The offender was charged with three offences arising from events on 3 August 2020: breaking and entering a dwelling with intent to commit a serious indictable offence, the murder of the female victim, and assault occasioning actual bodily harm on a third party. A fourth offence, using a carriage service to menace, harass and offend the victim, was dealt with by way of a Form 166 certificate (a mechanism under the Criminal Procedure Act 1986 (NSW) that allows related offences not on the indictment to be taken into account at sentencing).

The offender and the victim had met at a massage parlour in February 2020. Their relationship was difficult to characterise simply: it combined paid arrangements with some social contact, but the offender developed an obsessive attachment. After the victim made clear she wanted to end contact, the offender engaged in a sustained pattern of unwanted communication and uninvited appearances at her home and other locations over several months.

The trial commenced on 7 November 2022 before a jury. Defence counsel opened on the basis that mental illness and substantial impairment were in issue, with the underlying facts largely not disputed. On day 10 of the trial, during the evidence of the Crown's forensic psychiatrist, the defence psychiatrist changed his opinion. The offender then entered guilty pleas to all three counts and the jury was discharged.

  • Whether the offender's culpability for murder was so extreme as to warrant a life sentence under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • How the standard non-parole period of 20 years for murder should inform, without mechanically dictate, the sentencing exercise, applying Muldrock v R
  • The appropriate weight to give to the offender's mental health condition (prodromal schizophrenia diagnosed after the offences), including its effect on moral culpability and specific deterrence
  • The degree of discount available for guilty pleas entered on day 10 of trial, after a mental illness defence had been abandoned
  • How to structure an aggregate sentence across multiple offences arising from the same episode

Decision

Lonergan J found that, while the murder was serious and motivated by obsession and jealousy, the level of culpability was not so extreme as to require a life sentence. The Crown did not submit otherwise. The court then applied the Muldrock approach, treating the standard non-parole period of 20 years and the maximum penalty as legislative guideposts rather than a starting point or endpoint, and identified all relevant factors before arriving at an appropriate sentence.

The offender's mental health attracted careful consideration. A diagnosis of prodromal schizophrenia (an early-stage condition preceding full schizophrenia) was made after the offences. The court accepted that this condition was relevant to moral culpability and to the weight given to specific and general deterrence, drawing on the principles in Director of Public Prosecutions (Cth) v De La Rosa. The court also took into account the offender's genuine remorse.

On the guilty plea discount, the court acknowledged that the pleas were entered on day 10 of the trial and only after the defence psychiatrist changed his opinion during Crown evidence. The timing meant the discount available was substantially less than would apply to an early plea, though some credit was still given.

The court imposed an aggregate sentence for the three counts on the indictment, with the Form 166 carriage service offence sentenced separately but served wholly concurrently. The sentence was backdated to account for a separate sentence already being served for possession of child abuse material and drug offences.

Orders Made

  • Count 1 (break and enter with intent): 4 years imprisonment, non-parole period of 3 years
  • Count 2 (murder): 24 years imprisonment, non-parole period of 18 years
  • Count 3 (assault occasioning actual bodily harm): 2 years imprisonment, non-parole period of 18 months
  • Form 166 offence (using carriage service to menace, harass and offend): 6 months imprisonment, served concurrently
  • Aggregate sentence: 28 years imprisonment commencing 3 February 2021, ending 2 February 2049, with a non-parole period of 21 years ending 2 February 2042
  • First eligible parole date: 2 February 2042
  • The offender was informed of the potential operation of the Crimes (High Risk Offenders) Act 2006 (NSW) at the conclusion of the sentence

Key Takeaways

  • Applying Muldrock, the Supreme Court confirmed that the 20-year standard non-parole period for murder functions as a guidepost: the sentencing exercise requires identification of all relevant factors and an assessment of their collective significance, rather than a mechanical application of the standard figure.
  • A post-offence diagnosis of prodromal schizophrenia can bear on both moral culpability and the weight given to specific and general deterrence, though its precise effect will depend on the evidence in each case, including expert psychiatric reports.
  • Guilty pleas entered mid-trial, after a contested mental illness defence was abandoned when a defence expert changed their opinion, attract only a limited discount compared with early pleas, reflecting the stage at which the proceedings were resolved.
  • Under De La Rosa, where a mental health condition reduces moral culpability, the court may moderate the emphasis placed on deterrence, though this does not eliminate its relevance.
  • The Crimes (High Risk Offenders) Act 2006 (NSW) applies to murder convictions, and sentencing courts are obliged to inform offenders that post-sentence supervision or continued detention may be sought at the expiry of the sentence if the court considers them a high-risk offender.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(a), 59(1), 111(1), 19A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 61(1), Division 1A Item 1
- Criminal Procedure Act 1986 (NSW), s 166
- Criminal Code Act 1995 (Cth), s 474.17(1)
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases:
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- Milat v R; Klein v R [2014] NSWCCA 29
- Muldrock v R (2011) 244 CLR 120; [2011] HCA 39