Director of Public Prosecutions v Diep
[2016] VCC 1979
•16 December 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No.CR-16-01033
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PHI LONG DIEP |
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JUDGE: | HER HONOUR JUDGE LEWITAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 December 2016 | |
DATE OF SENTENCE: | 16 December 2016 | |
CASE MAY BE CITED AS: | DPP v Diep | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1979 | |
REASONS FOR SENTENCE
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Subject: Recklessly causing serious injury
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | T Saville | John Cain Solicitor for Public Prosecutions |
| For the Accused | Ms McGrath | Victorian Legal Aid |
HER HONOUR:
1 You, Phi Long Diep, have pleaded guilty before me to one charge of recklessly causing serious injury. The maximum penalty for this offence is 15 years' imprisonment.
2 On 22 June 2015 at approximately 9 am you asked your mother for $20 so that you could go to the chemist to purchase your methadone. Your mother asked you why you were going so early on this occasion. You begged your mother for the money and she gave it to you. You left the house.
3 The complainant was 58 years old at the time of the offence and a full time carer for his parents. Prior to 10 am the complainant left home to go to the shops to purchase bread rolls for his family. The weather was cold and as the complainant was walking in Lennox Street Richmond, he had the hood of his jacket over his head. He was not taking notice of who was around him. He saw you walking towards him in the opposite direction.
4 Without saying a word, you approached the complainant, took a knife out of your jacket and stabbed the complainant to the abdomen area. The complainant collapsed to the ground. The knife was approximately 20-25 centimetres long with a blade that was approximately ten centimetres long.
5 You attempted to stab the complainant a second time to the chest while he was on the ground. The complainant used his feet to push you away from him. The complainant yelled “Someone’s trying to kill me. Please help, please help”, “I don’t know who you are” and, “Why are you trying to kill me?”.
6 Your mother heard a loud scream outside her unit. She ran to the window and looked outside. She saw you assaulting the complainant on the footpath near a fence and car parking spots. She observed you hitting the complainant while holding something and she heard the complainant screaming.
7 Wilson Security guards Mesfin Genet and Amandeep Cheema also heard screaming and shouting coming from Lennox Street. They observed you with a knife in your right hand standing over the complainant. They also observed you thrusting the knife towards the complainant and the complainant using his feet to try to kick you away. Amandeep Cheema called 000 to report the matter and request assistance.
8 Mesfin Genet yelled out, “Stop. Stop. The Police are coming”. You looked up when you heard them yelling at you. The complainant also yelled out, “Police coming. Police coming”.
9 Nick Haralampidis was visiting 21 Lennox Street at the time and observed the incident from the balcony. He describes the knife as a large kitchen knife with a black handle.
10 You then ran from the scene. Department of Health and Human Services CCTV depicts you leaving the area along Williams Court with a knife in your hand and then out along the Cooke Court pathway.
11 At approximately 10 am an ambulance arrived and transported the complainant to the Alfred Hospital. As a result of being assaulted by you the complainant sustained the following injuries: abdominal entry wound; five small bowel lacerations; multiple lacerations to the base of the small bowel mesentery; laceration to the descending mesocolon; small laceration to the upper pole of the left kidney resulting in left retroperitoneal haematoma; lacerations to the front and back of the left thigh and lacerations to the outside of the lower left leg.
12 The complainant required stitches to his legs and surgery on two occasions to manage the injuries which were considered to be life-threatening. The complainant was required to be fed intravenously until 1 July 2015 and was discharged from hospital on 5 July 2015.
13 You attended the Richmond Police Station at 10.00 am and said to police, “I have stabbed people”. You removed the black handled knife from your clothing and placed it on the counter. Police seized the knife and asked you, “What’s going on?”. You replied, “I stabbed people, I’ll stab more people, I don’t want to go home”. Police then arrested you in the foyer of the Richmond Police Station. You participated in a record of interview with an independent third party present. You made admissions to the offence.
14 The facts in this case are very serious. The aggravating aspects include the use of a knife on a defenceless victim.
15 There is a victim impact statement in this matter. The complainant said that he has a long scar on his belly and leg and that he feels pain when he is eating. He is depressed, stressed and has nightmares. He lost his job after you committed this offence and cannot return to work because of the ongoing pain. He does not have any money to pay his medical treatment bills and expenses. Your counsel conceded that your conduct has had a significant effect on the victim. I accept that the victim suffered considerably in the manner described in his statement.
16 As has been pointed out by your counsel, there are however some mitigating factors. You have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial. Witnesses have been spared the ordeal of giving evidence upon your trial. Further, I take into account in your favour your intention to plead guilty to this charge at the earliest opportunity after being assessed as fit to do so. The plea was entered on 21 November 2016.
17 You told your counsel to tell me that you are “very, very sorry”. In the circumstances I accept that your plea indicates remorse for your actions.
18 I have been told something of your personal history and your circumstances. You were born in Ho Chi Minh City, Vietnam on 2 May 1967 and are now 49 years old. You are the sixth of eight siblings. You have four brothers and three sisters. Two of your brothers died as a result of heroin use.
19 Your parents operated a butcher shop in Vietnam. When you were ten years old your father fled to Australia as a refugee and you remained in Vietnam with your mother and siblings.
20 You attended school until year nine and left school due to ongoing respiratory health problems caused by asthma. You assisted your mother and your siblings in running the family business, the butcher shop. When you were 21 years old, you emigrated to Australia with your mother and siblings.
21 You undertook English language classes and gained employment at General Motors Holden at Fisherman’s Bend where you remained for two years. You have never been in a long term relationship. You have never married and you do not have children.
22 You have been unable to gain employment after leaving General Motors Holden and have experienced periods of homelessness and significant periods of incarceration.
23 You have had a longstanding history of heroin dependence, with periods of voluntary and involuntary abstinence. In the year before this offending, in the ten months when you were in the community, you were engaged in the methadone program in an attempt to shake your dependence. You were taking methadone and you continue to take methadone at 40 milligrams per day.
24 Your family lived and continue to live in Richmond. Your parents were in court to support you. They are now in receipt of the pension. You were living with your parents in Richmond at the time of the offending.
25 You were remanded in custody on 22 June 2015. You were transferred to the Acute Assessment Unit of the Melbourne Assessment Prison as you were displaying psychotic symptoms. Your mental health at the time was deteriorating. On 27 August you were sectioned under the Mental Health Care Act as you were deemed psychotic. However you were never transferred to Thomas Embling because you started to take Paliperidone which is an antipsychotic monthly Depo injection. You were subsequently de-certified. You have continued to take that medication in custody. You are not taking any heroin in custody.
26 You have admitted before me to prior convictions. There are over 70 convictions, involving 30 court appearances between 1995 and 2010. Your counsel conceded that you have a prior criminal history dating back 20 years which includes relevant prior offending. Your counsel submitted that most of your criminal history involved non-violent, property-related offending committed in the context of a previous long-standing heroin addiction.
27 However the nature of some of those prior convictions, in particular the convictions for recklessly cause injury and assault with weapon on 8 June 2010 and the two charges of attempted armed robbery on 19 January 2009 are such that they are highly relevant to my task of sentencing you today.
28 Evidence has been led on your behalf. Three reports by Dr Zimmerman dated 23 October 2015 (Dr Zimmerman’s first report), 28 January 2016 (Dr Zimmerman’s second report) and 13 November 2016 (Dr Zimmerman’s third report) have been tendered.
29 It was not until 2013 that you were diagnosed with schizophrenia and anti-social personality disorder.
30 Your counsel submitted that your offending is directly attributable to your current paranoid schizophrenia and your psychosis at the time of offending. You are now accepting antipsychotic medication and have been doing that for 15 months on a voluntary basis whilst in custody. You instruct that it makes you feel better and you further instruct that you will continue to take that medication when you are released from custody. In her third report Dr Zimmerman noted that your paranoid schizophrenia is now in remission.[1]
[1] Exhibit 1.
31 The prosecutor submitted that you have been in custody for some 500 days and have been treated whilst in custody. It is only in recent times that you are considered to be in remission by Dr Zimmerman. The prosecutor submitted that there is a potential continuing risk associated with your ongoing psychiatric condition, particularly in light of your history and the reported failure to accept your condition. In paragraph 13 of her third report Dr Zimmerman noted:
Mr Diep informed me that he did not have and had never had a psychiatric illness. He stated that he had been admitted to a psychiatric unit over 10 years ago because he had been ringing the police repeatedly. When asked why he had been doing this, he said that he was telling them to arrest various people. He said that, after admitting him, the staff realised that there was nothing wrong with him and he was released. When challenged on this, he agreed that they had told him that he had schizophrenia and had put him on medication. However, he does not accept this diagnosis but said that he would take medication if he were ordered to do so. He denied any history of self harm (despite a documented serious episode when he slashed his throat spontaneously at the dinner table). (emphasis mine).
32 Dr Zimmerman also noted in paragraph 43 of her third report that “He has no insight into his mental illness and is keen to provide an account of himself that precludes any view of him or his behaviour that might be attributable to mental illness”.
33 In paragraph 49 of her first report Dr Zimmerman stated that:
"Whether in custody or in the community, the best chance of reducing the risk of future offending and of improving your quality of life depends on [your] remaining engaged with mental health care".[2]
[2] Exhibit 1.
34 In my view the chances of your rehabilitation depend upon whether you continue to take your medication and whether you remain engaged with mental health care. I accept your counsel’s submission that in fixing an appropriate sentence I must seek to maximise such chances of your rehabilitation as there may be.
35 However, as well as those matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence , which is of considerable importance in a case such as this. I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.
R v Verdins[3] (Verdins)
[3] [2007] VSCA 102
36 In Verdins the Court of Appeal stated that impaired mental functioning is relevant to sentencing in at least six ways.
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
37 Dr Zimmerman considers that you suffer from paranoid schizophrenia and that your account of what occurred during the offending was so lacking in detail that it was difficult for her to assess that you knew the nature and quality of the offending. She reports that you were aware that you had stabbed a man and she was satisfied that you knew the nature of the act, however Dr Zimmerman opined that your ability to reason with a moderate degree of sense and composure as to the wrongfulness of that act has been impaired by the fact that you were acutely psychotic at the time and you were hearing derogatory hallucinations regarding your parents, that you believed were emanating from the victim. Yes?
38 INTERPRETER: Your Honour, the accused would like to have a couple of minutes to go to the toilet.
39 HER HONOUR: Yes, very well. Yes, thank you.
40 Your counsel submitted that your behaviour when you attended the police station shortly after you committed the offences also demonstrates your psychosis at the time. Immediately after the offending you attended the Richmond police station and gave the knife to the police and said, “I’ve stabbed people”. You were interviewed by police in the presence of an independent third person. Your responses to questions were of a manner that was confused, contradictory and paranoid.
41 I am satisfied that Dr Zimmerman’s diagnosis that you were suffering from schizophrenia[4] and your acute psychotic symptoms reduce the moral culpability of your offending conduct and that the first four principles stated in Verdins apply. Accordingly both general and specific deterrence should be moderated.
[4] Paragraph 42, Dr Zimmerman’s third report.
42 In relation to the fifth limb of Verdins, your counsel submitted that your Justice Health records indicate that you also suffer from an acquired brain injury[5] and, as such, your memory is severely impaired and your ability to follow simple directions is also impaired.
[5] See Dr Zimmerman’s first report, exhibit 1.
43 In paragraph 49 of Dr Zimmerman’s first report[6] Dr Zimmerman stated:
"…any custodial sentence would weigh more heavily on Mr Diep as a result of his psychotic illness. Antipsychotic treatment cannot be enforced in the custodial setting although it is positive that he is currently accepting treatment despite his reservations. He is vulnerable to abuse from others within prison because of his psychotic behaviours such as masturbating in public and yelling out overnight. Whether in custody or in the community, the best chance of reducing the risk of future offending and of improving Mr Diep’s quality of life depends on him remaining engaged with mental health care".
[6] Exhibit 1.
44 I am satisfied that a sentence of imprisonment will weigh more heavily on you than it would on a person in normal health.
45 The prosecutor agreed that the first five principles of Verdins apply.
46 Your counsel conceded that there was no evidence that there was a serious risk of imprisonment having a significant adverse effect on your mental health.
Submissions on sentence
47 Your counsel submitted that the offending was unplanned and occurred while you were suffering from psychosis and from persecutory and auditory hallucinations. You were not medicated and at the time appeared to be resistant to medication. You told Dr Zimmerman that you were not using heroin at the time of the offending.[7]
[7] Dr Zimmerman’s third report, exhibit 1.
48 Your counsel submitted that the offending was a single incident of short duration. There was no attempt at disguise and your post-offence conduct was mitigatory.
49 You have now voluntarily accepted medication for 15 months on a monthly basis in the prison environment.[8] Dr Zimmerman notes in her first report that you are currently accepting treatment. You say that you feel better when taking that medication. You can sleep better and eat better. You instructed your counsel that you will continue to take that medication when you are released because you know it makes you feel better.
[8] Dr Zimmerman’s first report, exhibit 1.
50 Your counsel conceded that a term of imprisonment was appropriate. She submitted that the head sentence should be moderated to take into account the application of the first five principles of Verdins as well as your early plea of guilty, your immediate assistance to authorities and your prospects of rehabilitation.
51 You were remanded on 22 June 2015 for this matter. On that date a warrant was executed in relation to a traffic heroin offence. On 13 January 2016 the Melbourne Magistrates Court convicted and sentenced you to a term of imprisonment of four months being four months from 22 June 2016. The period of presentence detention in relation to that charge was 121 days.
52 I accept your counsel’s submission that I should also take into account the time you have served in relation to the sentence imposed by the Magistrates Court on 13 January 2016 as part of the principles of totality.
53 The prosecutor referred to the Sentencing Snapshot No 188 dated June 2016 for causing serious injury recklessly. On p.4 of the snapshot the length of total effective sentenced ranged from 14 days combined with a Community Correction Order to nine years and six months. The median total effective length of imprisonment was two years and ten months and the most common total effective imprisonment length was two to less than three years. The prosecutor submitted that the sentencing snapshot also addresses non-parole periods. It states that non-parole periods range from three months to six years and six months, whilst the median length of the non-parole period was one year and six months, and the most common non-parole period was one to less than two years.
54 The prosecutor submitted that this is a serious example of recklessly cause serious injury because it occurred without cause in the middle of the morning at approximately 10 am in a public place. There was use of a weapon, namely a knife, which caused multiple injuries. The injuries have had long-lasting effects on the complainant. The prosecutor submitted that you have an extensive criminal history with relevant matters of violence.
55 The prosecutor submitted that community protection has significant importance in this matter and ought to be elevated when considering sentencing purposes. She referred to DPP v Jonathan Kemp[9]. In that case the Court of Appeal (Whelan, Santamaria and Beach JJA) stated:
There is no doubt that the considerations addressed in Verdins were applicable here for the reasons the sentencing judge gave.
But the evidence to which we have referred also indicated that the respondent’s mental illness and substance abuse represents a real risk to community safety which is unlikely to abate. Accordingly, whilst Verdins was applicable, this is one of those cases where the mental abnormalities have countervailing effects, one which tends towards a longer custodial sentence and the other towards a shorter.[10] Moral culpability is reduced but the danger to society is increased by the mental abnormalities.[11]
[9] [2015] VSCA 108
[10]Veen v The Queen [No 2] (1988) 164 CLR 465, 476-7.
[11] [2015] VSCA 108, [47], [48].
56 Your counsel sought to distinguish the facts in Kemp from the facts in this case. She submitted that you commenced voluntarily accepting antipsychotic medication for a 15 month period. And that is notwithstanding your lack of insight into your mental health. You are aware that in taking medication you feel better and therefore there is a reduced risk to the community.
57 Nevertheless this is without doubt a serious offence. Would you please stand? In all the circumstances I have no alternative to the imposition of a custodial sentence.
58 You are convicted and sentenced to a term of imprisonment of four years and six months. I direct that you serve a period of three years before being eligible for parole.
59 I make an order pursuant to s.464ZF that you provide a sample of your saliva. I am required by law to say to you that those charged with taking that sample are authorised to use such force as may be necessary to effect the taking of the sample.
60 I declare that you have served 422 days by way of presentence detention in relation to this sentence and direct that that declaration be recorded in the records of the court.
61 But for the plea of guilty I would have sentenced you to a term of imprisonment of six years with a non-parole period of four years.
62 Lastly I order that the property referred to in the schedule to the disposal order which I have signed this day, be forfeited to the State and direct that it be placed in the custody of the Chief Commissioner of Police and held by him until 28 days from this date and then destroyed.
63 You may take a seat. I have signed those orders and I will ask that you receive copies of those. Are there any further matters?
64 MR PLUMMER: No, Your Honour.
65 HER HONOUR: Please take Mr Diep into custody.
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