Director of Public Prosecutions v Amy Tran (Sentence)

[2019] VSC 822

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2018 0294

DIRECTOR OF PUBLIC PROSECUTIONS

v  

AMY TRAN

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JUDGE:	Bell J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 December 2019
DATE OF SENTENCE:	13 December 2019
CASE MAY BE CITED AS:	DPP v Amy Tran (Sentence)
MEDIUM NEUTRAL CITATION:	[2019] VSC 822

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CRIMINAL LAW — sentencing — manslaughter — unprovoked attack upon elderly woman in suburban street — substantial injuries sustained by victim, who fell onto concrete driveway — early plea of guilty — accused suffering from schizophrenia — required for admission to psychiatric hospital a month earlier but could not be found — behaving strangely at the scene of the crime — Verdin’s principles engaged — community protection — just punishment for objectively serious example of crime of manslaughter — specific deterrence — Sentencing Act 1991 (Vic) s5.

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APPEARANCES:	Counsel	Solicitors
For the prosecution	Mr M Gibson QC with Mr D Glynn	Office of Public Prosecutions Victoria
For the accused	Mr G Casement	Leanne Warren & Associates

HIS HONOUR:

1. Amy Tran, you are charged with the manslaughter of Le Ngoc Le at Parkville on 5 February 2018.  You have pleaded guilty to this charge.  The events leading to Ms Le’s death occurred in St Albans, but she actually died in hospital at Parkville. 

1. In some cases, the court is given insufficient information about a victim of crime who has died.  The living victims — the family and friends of the person who has died — now usually have a strong presence and voice, but sometimes not the person themselves.  By default, the sentence becomes a memorial of the person as a victim, one who has died; not as a person, one who has lived.  The person becomes defined by their victimhood, not by their personhood.  In their capacity as victims of the crime, the family and friends of the person can only go so far in ensuring that this does not happen (and sometimes there is no friend or family to speak of the victim).  The court and those appearing before the court, especially the prosecution, have to share that responsibility. 

1. In this case the prosecution did share that responsibility.  The court was given information that enabled Ms Le to be seen as the responsible and generous person that she was.   She was an active and independent woman aged 76 years when she died.  She was born in Vietnam and came to Australia about 20 years ago with her daughter Cathy.  Her son Ken was already in Australia.  She came to be reunited with them, and so she was.  They created a small family supporting each other in a new world.  After some years, she managed to buy a house in St Albans, which is evidence of hard work and being a responsible person.  She loved her little dogs, which she walked every day.  They were with her when she died.  She studied hard to learn English and worked at a school as a school crossing supervisor, which shows how much she loved the community in which she lived and especially the children with whom she came in contact.   She was always studying and learning and was an inspiration to her children.  She was proud that she did not need their help to function independently in her new country.  She walked her cute little dogs as much for the contact that she obtained with her neighbours and friends as for the exercise that the walks gave to her pets.  It was people in her local community who came to her aid when she was attacked, in circumstances that I will now explain.

1. As described in detail in the summary of the prosecution opening on the plea (exhibit 1), the basic facts are these:

·you have been suffering from mental illness for many years;

·a psychiatrist diagnoses that you suffer from schizophrenia and heroin and methamphetamine use disorders;

·on 5 January 2018, you were assessed as requiring admission to a psychiatric hospital and placed on a temporary treatment order pending that admission, and sent home from the clinic;

·a treatment team visited you at home that day to arrange the admission, but you could not be located;

·your mental health did not improve;

·on 1 February 2018, you were observed in a pink top acting strangely in the vicinity of Ms Le’s home in St Albans;

·at that time and in that place, you bashed Ms Le severely with your own hands, causing her to fall hard onto the concrete driveway;

·as revealed in the pathologist’s report (exhibit 2) and photographs (exhibit 3), the injuries that you inflicted upon Ms Le with your own hands were substantial;

·the attack was savage but probably not sustained;

·Ms Le was attended by occupants of homes nearby, who called an ambulance, but she died of her injuries in the hospital;

·you were soon apprehended by the police and have been in remand custody for some time, where you have been given psychiatric treatment, although you remain very unwell.

1. As is to be expected, Ms Le’s death has had a profound impact upon her children.  The court has victim impact statements from her son Ken Nguyen and daughter Thy Cat (Cathy) Trinh.  These are heartfelt and moving tributes to a loving and generous mother who is with them no longer.  The court accepts that the impact of this crime has been very great and is experienced by them every minute of every day.  Their contribution to the sentencing process will be reflected in the sentence.

1. I accept the submissions of the prosecution, which were not disputed by the defence, that this is an objectively serious example of the crime of manslaughter.  The features of the came that make it serious are:

·the attack was savage;

·the attack was unprovoked;

·substantial injuries were sustained by Ms Le;

·the attack occurred in broad daylight in a suburban street;

·Ms Le was a vulnerable person having regard to her age — she was really defenceless in the face of your aggression;

·Ms Le was killed.

1. By committing this crime, you have taken from Ms Le the most precious and valuable thing that she possessed, the right to life.  The court absolutely condemns and denunciates what you have done and acknowledges the grievous consequences that have been and will be experienced by Ms Le’s family.

1. While this was an unprovoked attack, I do not want anybody to think that it was a random one.  From the circumstances that are known, it seems probable that you were reacting to the way that other people were reacting to  your strange behaviour on the day and in the place concerned.   In no way does this blame Ms Le or anyone else for what happened, for this is entirely your responsibility.  Nor does it aggravate the offending.  It simply helps us to understand what was probably behind a senseless crime that resulted in the senseless death of a defenceless elderly woman.

1. As an aggravating consideration, the court takes account of the fact that the crime was committed in broad daylight in a suburban street.  This is not to suggest that crimes of this nature are prevalent.  In fact, it is very rare for people to be attacked like this near their own home.  People are generally safe and personally secure in the community in which they live.  Furthermore, in my experience, people with mental illness are more likely to be victims of crime than perpetrators of crime, and I have never seen a case in which a woman has behaved in the way that you did that day.  But when a crime of violence is committed in broad daylight in a suburban neighbourhood, ordinary people living peaceful lives feel extremely threatened, both for themselves and their neighbours, their friends and their family.  The crime undermines their sense of safety and personal  security.  That is was happened in this case, and this is one of the reasons why yours is a serious example of the crime of manslaughter.

1. Therefore, but for a number of unusually weighty mitigating circumstances, you would have faced a sentence of imprisonment of the order of ten years or so. 

1. The first of these considerations is your plea of guilty.  This plea was entered very soon after I delivered two substantial rulings on the admissibility of evidence.  Those rulings contain further information about the circumstances of the offending and the course of the trial, and I will publish them today along with this sentence.[1]  I do not think that you could have obtained informed legal advice and sensibly decided whether to elect to plead guilty to any crime before those rulings were given.  When this is taken into account, you entered a plea of guilty to the charge of manslaughter at an early stage, although not at the earliest stage.  This saved the court, the community and especially potential witnesses the cost, inconvenience and trauma of a trial, and is evidence of personal remorse.  Remorse is also shown in your psychiatrist’s report.  Taking into account your chronic mental illness and its impact upon your thinking, I think the remorse you have demonstrated is significant and sincere.

   [1]DPP v Tran (Ruling No 1: unrecorded interview) [2019] VSC 823 (13 December 2019) (Bell J); DPP v Tran (Ruling No 2: dying declaration) [2019] VSC 824 (13 December 2019) (Bell J).

1. The second of the weighty mitigating circumstances is your mental illness, which has a direct relationship with the offending.  As your counsel submitted, this illness impacted upon your behaviour before, during and after the circumstances in which the crime took place.  You were to be admitted to a psychiatric hospital a month earlier but could not be found and became virtually homeless.  Your behaviour at the time of the offending was so strange that someone actually telephoned that hospital to see whether you had escaped.  According to well–established principles, your moral responsibility for the offending is thereby reduced and you are not to be regarded as a proper vehicle for general deterrence to the usual degree.

1. Having made those remarks, I want to make clear that the court sees you as a person who is entitled to individual respect and justice like anyone else.  I do not see you as a lady in a pink top who behaves strangely for all to see and I do not want this sentence by default to define you as such in the public eye.  Such behaviour was obviously a product of ill-health and there is much more to know about you as a whole person than that.

1. Amy Tran, you are only 32 years of age.  You came from Vietnam when you were eight years of age and grew up in the St Albans and Kensington area.  Your parents separated when you were two years of age.  Your father was a factory worker and your mother worked in the home.  You were subjected to abuse at the hands of both of your parents.  You got to year ten at school, then left.  Many facing the challenges that you have faced never got that far at school.  You have done some hospitality and telemarketing work, as much as you could.  You have a son born to an abusive relationship who is being raised by the father’s family.  Associated with your chronic mental illness, you have a long -term drug addiction.  I note that, in the period leading up to the offending, you were virtually homeless.  In remand custody, you are gainfully employed.

1. The prosecution submitted that the sentencing principle of community protection is a significant sentencing consideration and I will take it appropriately into account.  In doing so, I want to make clear that I am not suggesting that you as a person with mental illness are more likely to engage in criminal offending than somebody else.  I am not suggesting that people with mental illness are generally more likely to engage in criminal offending than everybody else.  To stigmatize you and other people with mental illness in that broad-brush manner in the sentencing process would be discriminatory and the prosecution did not put its submission in this way.  Community protection is a relevant sentencing consideration because the community naturally expect to be protected from crimes of violence of the kind that you committed, and the law of sentencing has a role in bringing that about.  Specific deterrence is relevant in a similar way.

1. For the record, I note that you have been psychiatrically assessed to determine whether you have the defence of mental impairment available.  Following that assessment, you did not claim that defence.

1. You have a long criminal history, mainly for offences that are related to your drug-addiction.  While there is a conviction for crimes of violence in 2014, there is nothing to compare with what you are here charged.  You do not have a violent disposition.

1. The Victorian community has a strong interest in both an effective mental health system and an effective legal system.  There is a complex relationship between the two which is being examined by the Royal Commission into the Victorian Mental Health System.   There are features of the facts and circumstance of the present case that provide some insight into aspects of that relationship.  Without pointing the finger of blame at anybody, the accused is a person who suffers from chronic schizophrenia and needs medical treatment for her mental ill-health.  Ms Le was an elderly woman who was entitled to protection from people who might do her harm, for whatever reason.  The accused was assessed as requiring admission to a psychiatric hospital just four weeks before she killed Ms Le, but when the treatment team arrived at her home that day, she could not be located.  The accused was still chronically unwell and indeed was behaving strangely at the time that she committed the crime.  Her behaviour was so strange that someone actually telephoned the local psychiatric hospital to see whether she was an escapee.  We may as a community have something important to learn from what occurred from a systemic point of view and therefore I will refer this sentence to the Royal Commission.   None of this affects the sentence that is to be imposed in this case in any way.

1. To return to that sentence, the crime that you committed is a serious example of manslaughter.  Just punishment for a crime having this objective gravity is an important sentencing consideration.   But your plea of guilty and your mental illness call for a sentence that must be appropriately less than what would otherwise be imposed.

1. In all of the circumstances, for the manslaughter of Le Ngoc Le at Parkville on 5 February 2018, you are sentenced to be imprisoned for a period of seven years.  I fix four years and six months as the period of imprisonment after which you will be eligible for parole. 

1. But for your plea of guilty, I declare that I would have imposed a sentence of imprisonment of nine years with a non–parole period of six years and six months.

1. I will issue the ancillary orders that have been sought.  Your pre–sentence detention up to and including today is 678 days.