Director of Public Prosecutions v Ho
[2024] VSC 162
•5 April 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0164
| DIRECTOR OF PUBLIC PROSECUTIONS | Prosecution |
| v | |
| THANG MINH HO | Accused |
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JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 March 2024 |
DATE OF SENTENCE: | 5 April 2024 |
CASE MAY BE CITED AS: | DPP v Ho |
MEDIUM NEUTRAL CITATION: | [2024] VSC 162 |
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CRIMINAL LAW – Sentence – Jury verdict – Manslaughter by unlawful and dangerous act – Guilty plea to charge of cultivate commercial quantity of cannabis – Accused attended cannabis factory to seek payment for work – Victim met accused at door holding knife – Accused wrested knife from victim and stabbed victim in thigh severing femoral artery – Accused in Australia on visa – Liable to be deported on completion of sentence – Difficult circumstances in custody – Delay.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr J McWilliams | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr M Turner | Rolfe Criminal Law |
HIS HONOUR:
Thang Minh Ho. You were charged on indictment with one charge of cultivating a commercial quantity of cannabis at premises in Epping and with one charge of the manslaughter of Cuong Van Le. On arraignment before the jury panel, you pleaded guilty to the charge of cultivation of a commercial quantity of cannabis. The jury, which was empanelled on your trial, convicted you on the charge of manslaughter.
Both the offences were committed by you at premises at 37 Wurundjeri Drive, Epping. In 2020, those premises had been converted into a cannabis cultivation factory. You started work at that factory in June 2020, at about the time the operation was just commencing. You assisted with establishing the plant, and, after you had done so, your role primarily involved you attending to the care of some of the cannabis plants that were grown at the factory.
The indictment charged you with being involved in the cultivation of a commercial quantity of cannabis at the premises between 1 August 2020 and 28 April 2021. You had, in fact, ceased working at the factory shortly before that date, because you considered that you had not been properly paid for the work that you had done there. After you ceased working there, you made a number of attempts to persuade the owners of the enterprise to pay you for your work. Those attempts culminated in a telephone call by you to Chuan Nguyen, a senior employee at the factory, in which you made a threat that you would destroy the factory.
On 28 April, you attended at the factory shortly after 10:35 am. In your interview with police, you said that you went there, in order to make one last attempt to be paid for the work that you performed at the factory. When you arrived, there were two employees present, namely, the victim, Cuong Le, and Hai Minh Pham. Cuong Le had been your fellow worker when you were employed at the premises, and he performed a similar role to that undertaken by you. Hai Pham occupied a higher role, being responsible for organising the set-up of the factory.
After you arrived at the premises, you knocked loudly on the front roller door. When you did so, Hai Pham went into hiding. Cuong Le walked to the glass door, which was adjacent to the roller door. He was then holding a knife that was ordinarily used to tend to the cannabis plants at the premises. When he opened the door, a physical altercation occurred between him and yourself. In the course of that altercation, Cuong Le sustained a stab wound to the upper left thigh. Almost immediately after he incurred that injury, you left the premises, taking the knife with you, and you drove away.
After you had departed, Hai Pham contacted Chuan Nguyen, and, together, they conveyed Cuong Le to the Sunshine Hospital. On his arrival, no response was detected in his pulse, breathing or respiration, and he was pronounced to be deceased.
On the following day, 29 April 2021, Dr Sarah Parsons, an experienced forensic pathologist, performed an autopsy on Cuong Le. The principal finding was of a stab wound to the left thigh, which was a through and through injury of the quadriceps muscle, and which had transected the femoral artery and vein, resulting in a substantial loss of blood. The wound tract was 9.5 centimetres in length, and it went from the back of the leg to the front of the leg. Dr Parsons concluded that the cause of death was loss of blood, resulting from the transection of the femoral artery and vein.
As I mentioned, almost immediately after the incident, you drove away from the premises in Epping. Subsequently, you learnt that Cuong Le had passed away. As a consequence, on Sunday, 2 May 2021, you called the police assistance telephone line and reported that you had been involved in an argument, in which the other man had been holding a knife, and that, by accident, the knife had struck the other man’s leg. You said that you had thought that he would be alright, and you had just learnt that he had died. You said that you would present yourself to the police station on the following Tuesday morning, and you provided the police with your telephone number and address.
On the following day, 3 May 2021, you were arrested by the informant, Detective Leading Senior Constable Hellebrand, shortly after you had attended your lawyer’s offices in Lonsdale Street, Melbourne. You were then conveyed to the Spencer Street Police Station. An interview was commenced on that day, but when you told Detective Hellebrand that you were too tired to continue, the interview was then postponed until the next day.
On the following day, you participated in an interview. In the course of the interview, you freely and frankly detailed your involvement in the cultivation of cannabis at the premises in Epping, and you made full admissions as to the role that you had undertaken in setting up the operation at those premises, and then tending to cannabis plants that were grown there.
You then described what occurred on 28 April. You explained how you had attempted to obtain payment that you considered was due to you. You said that you had attended the premises on that day, in order to make one last attempt to be paid for your work, notwithstanding that Chuan Nguyen and Hai Pham had previously forbidden you to attend there again. You said that, when you knocked on the roller door, Cuong Le came to the door, holding a knife that was of the kind that was used to cut and prune the plants. Cuong Le told you that Hai Pham had forbidden you to attend the factory, and he asked you why you were causing so much noise.
In the interview, you said that, when you saw that Cuong Le was holding a knife, you felt that there was some danger to yourself, so you put your hand on his hand, and twisted your arm downwards. At the same time, you placed your other hand near the top of his shirt, and a struggle then followed, in which Cuong Le bent down. You said that your purpose at that time was to remove the knife from Cuong Le. You said that you and Cuong Le struggled for a bit, and you thought that the knife touched your inner thigh at one stage. When that occurred, Cuong Le’s grip on the knife loosened, you got hold of it, and then you went to your car and drove away. Significantly, in your description of the incident, you did not explain how Cuong Le happened to sustain the through and through stab wound to the thigh, that was described by Dr Parsons in her evidence.
On the trial, the principal issues were whether the prosecution had proven, beyond reasonable doubt, first, that you intentionally stabbed Cuong Le in the leg, and, secondly, that in doing so, you had not acted in lawful self-defence. Thus, by its verdict, the jury was satisfied, beyond reasonable doubt, of each of those two elements.
It is necessary to make some findings concerning the manner in which Cuong Le sustained the fatal wound to his leg. Those findings must be consistent with the verdict of the jury, and based on the evidence, that was adduced in the trial.
At the trial, the prosecution did not contend, nor seek to establish, that you attended the premises at Epping on the day of the incident, with the intention of engaging in any act of violence towards the occupants of the premises. I am satisfied, on the balance of probabilities, that you went there, seeking to obtain payment of the amount, which you considered was owed to you, for the work that you had performed at the factory.
It is also clear, on the evidence, that, after you knocked on the roller door, Cuong Le opened the glass door, that was adjacent to it, holding a knife that was of the kind that was used to cut and prune cannabis plants in the premises. Almost immediately after Cuong Le opened the door, a confrontation then occurred between you and him, in the course of which you gained possession of the knife, and, having done so, you stabbed him in the rear of the thigh.
As I have noted, the jury was satisfied, beyond reasonable doubt, that, in doing so, you were not acting in lawful self-defence. That is, the jury was satisfied, beyond reasonable doubt, that you did not believe it was necessary to stab Cuong Le in order to defend yourself, or, at least, that your conduct, in stabbing Cuong Le, was not a reasonable response in the circumstances perceived by you.
The focus of the evidence, and the final addresses at the trial, was on that first alternative. In those circumstances, it is appropriate that you be sentenced on the basis that, after you had taken possession of the knife, and when you deliberately stabbed Cuong Le with it, you did not then believe that it was necessary to do so in order to defend yourself against Cuong Le. In that respect, it is significant that in your interview with police, you did not describe any conduct by Cuong Le, other than that he had the knife in his hand, which could have been perceived by you to have threatened your safety. Plainly, once you had taken possession of the knife, there was no need for you to stab him with it in order to protect yourself.
In reaching those conclusions, I do accept that, at the time at which Cuong Le opened the door, you did genuinely apprehend that there was some danger to you. In view of the attempts that you had made to obtain payment for your work, including the threats that you had made to destroy the factory, it is understandable that, when Cuong Le opened the door holding a knife in his hand, you would have perceived that there was a genuine threat to your safety. However, as I have noted, you did not give any description, in your interview, as to any other conduct by Cuong Le that might have constituted a threat to you. Further, the jury was clearly satisfied, beyond reasonable doubt, that, after you had gained possession of the knife, you did not then consider it necessary to stab him with it in order to defend yourself. Rather, and consistent with the verdict of the jury, you are to be sentenced on the basis that, in the brief moment after you had taken possession of the knife, and in the heat of the moment, you inflicted the stab wound to his thigh without lawful justification.
Your immediate departure from the premises, leaving Cuong Le lying wounded on the floor, does not do you any credit. However, I accept, on the balance of probabilities, that, at that time, you might not have been aware of the severity of the injury, sustained by Cuong Le. Further, I would accept that, as a result of the confrontation with him, and the circumstance that you had previously threatened to destroy the plant, you might well have felt that there would be a risk to your own safety, if you chose to remain at the premises. Those two considerations do offset the effect of what otherwise would have been an aggravating circumstance, namely, your departure from the premises, after you had wounded Cuong Le. I also note that when you subsequently learnt that Cuong Le had died, you contacted the police and reported that you had been involved in the incident that had led to his death.
The offence of manslaughter, of which you have been convicted, is a very serious criminal offence, for which, at the time of the offence, the maximum sentence was 20 years’ imprisonment. It involved you taking of the life of Cuong Le by an unlawful and dangerous act, that is, by an act that a reasonable person, in your position, would have realised would expose him to an appreciable risk of serious injury.
Like yourself, Cuong Le had also come to Australia from Vietnam. He was married, with two children, who were then respectively 11 years and 8 years of age. I have read the victim impact statement of Cuong Le’s widow, Hoang Thi Bay. It is clear from that statement that Cuong Le’s widow and his children have suffered significantly both emotionally and financially as a result of their loss.
The victim impact statement is relevant, because it is a salutary reminder of the grief and suffering that have been, and will continue to be, the consequence of the offence, which you committed. While your sentence is to be based on a rational analysis of the facts of the case, and on the application of relevant sentencing principles, it is important to keep in mind the grave effects of the offence that you have committed, and the profound and enduring sorrow and pain that has been, and will continue to be, a direct consequence of it.
In assessing the seriousness of your offending, I have accepted, on the evidence, that, when you attended the premises at Wurundjeri Drive, Epping, you did not do so for the purposes of being involved in any violent incident there. Further, I also accept that the instigating cause of the incident, in which Cuong Le sustained his fatal injury, was the circumstance that he opened the door, holding the knife, which you, understandably, considered to be a genuine threat to your own safety. I am further satisfied that you only formed the intention to stab Cuong Le with the knife, almost immediately after you had wrested possession of it from him, and that you then stabbed him, in what, clearly, was the heat of the moment. I also take into account that you stabbed Cuong Le in the thigh, which is a part of the body which a lay person would not understand to be vulnerable to a fatal injury.
As I have noted, you have also pleaded guilty to the charge of cultivating a commercial quantity of cannabis, at the premises at Wurundjeri Drive, Epping. The relevant legislation defines a commercial quantity to be 25 kilograms, or 100 plants. I understand that you pleaded guilty to the charge on the basis that you had assisted in the cultivation of at least 100 plants at the premises.
In her evidence, the informant, Detective Leading Senior Constable Hellebrand, stated that, having investigated the factory, she considered that your role, and, indeed, that of Cuong Le, was that of a low-level worker at the factory, growing plants and looking after them. Your role was inferior to that of both Hai Pham and Chuan Nguyen.
In mitigation, I accept that you only became involved in the cannabis plant after you had lost your employment as a handyman due to the COVID epidemic and you were unable to secure any other gainful work. At the time, you were alone in this country without any means of support. I also take into account that, in your interview with Detective Hellebrand, you made full and frank admissions as to your role in cultivating cannabis at the plant, and in assisting in setting up the factory for that purpose. The admissions, that you made, were sufficient, of themselves, to prove the charge against you. The admissions, and your subsequent plea of guilty, were of genuine utilitarian value, and demonstrated a willingness by you to facilitate the course of justice in respect of the illegal cannabis plant in which you had become involved.
I now turn to matters personal to you that are relevant to the determination of your sentence. In that respect, the information that has been provided to me concerning your personal circumstances is rather limited. I understand that there have been some difficulties communicating with you. Ms Cidoni, the psychologist who interviewed you, noted that you were quite guarded in disclosing information about personal aspects of your life, which, I understand, is due to both language and cultural issues that affect your communication with those who have endeavoured to assist you.
You were born in the Nghean Province in Northern Vietnam in September 1968, and you are now 55 years of age. You are the sixth of ten children of your parents. Your formal education concluded after Year 7. After leaving school, you worked with your father in a handyman and repair service for a period of six years. Following that, you engaged in importing agricultural produce from Laos to Vietnam for sale, and you then worked as a driver for a period of four years, transporting wood from Laos to Vietnam. You have previously been in a relationship with a woman who is the mother of your two children.
In 2018, you came to Australia on a tourist visa. In the following two years, you worked in the construction industry as a handyman, and you also engaged in work as a farm labourer. However, as I have mentioned, due to the onset of the COVID-19 pandemic, you had difficulty obtaining work and, as a consequence, you became engaged in the cannabis factory in Epping.
Since your arrest on 3 May 2021, you have been held in custody in the Metropolitan Remand Centre. The circumstances in which you have spent the last three years have been quite difficult for you. You have very little, if any, facility in the English language. As your family and friends are all in Vietnam, you have had no visitors. There have been few, if any, other prisoners, in the section of the Remand Centre in which you have been detained, with whom you have been able to converse in your native language.
In addition, it is apparent that you have had some health issues. In your interview with Detective Leading Senior Constable Hellebrand, you mentioned that you had suffered some brain trauma, and were due to undergo a head scan. In addition, in your adult years, you have undergone surgery for a thyroid condition in Vietnam, and currently, you require daily medication to manage the condition. I am satisfied that those health issues, which you have described, have rendered, and will continue to render, your time in custody to be more difficult for you.
Ms Cidoni interviewed you on 27 February and 5 March in the Metropolitan Remand Centre. As I have noted, during the interview, you were quite guarded, so that Ms Cidoni was unable to elicit sufficient information on which to make an appropriate assessment of your psychological condition. She did consider that there was a noticeable discrepancy between your report of any lack of symptoms, and your overall presentation to her, which suggested that you may suffer from a more complicated psychological condition, which could include depression. While that conclusion is based, again, on limited information, I am prepared to accept that you appear to suffer from some psychological issues, which would add to the difficulty that you have in serving a term of imprisonment. It is also relevant that Ms Cidoni assessed your risk of re-offending to be ‘low to medium’. The only risk factor identified by her, of substance, derived from the nature of the injury, which you caused to Cuong Le.
As I have noted, you came to Australia in 2018 on a tourist visa. You subsequently applied for a protection visa, and, while that application was being considered, you were granted a bridging visa. At the time of your arrest, you were due to attend an appointment on 19 May 2021 to be interviewed in respect of your application for a protection visa. It is almost certain that, as a result of your conviction in this case, the bridging visa will be cancelled, and that you will be deported from Australia at the conclusion of the sentence that I am to impose on you. I am satisfied that the circumstance, that you will be facing deportation to Vietnam at the conclusion of your sentence, will be an additional factor that will render your term of imprisonment more onerous. That is particularly so in view of the fact that, by the time that you have served your sentence, you will have been absent from Vietnam for a number of years. When you return there, you will be substantially older, and, in all probability, will have lost contact with people who you previously knew there.
In summary, the offence of manslaughter for which you have been convicted is a serious criminal offence. As I have discussed, there are a number of aspects, concerning that offence, which are relevant. You arrived at the premises in Epping unarmed, with the intention of seeking payment of money, which you considered was due to you. When Cuong Le opened the door holding a knife, I accept that you then apprehended that there was a genuine threat to your safety. I am also satisfied that you only formed an intention to stab Cuong Le immediately after you had wrested possession of the knife off him, and only a moment before you did stab him. Further, it is relevant that you stabbed him in the leg, which is a part of the anatomy which a lay person would not ordinarily understand to be vulnerable to a fatal injury. Further, it is to your credit that, when you learnt that Cuong Le had passed away, you contacted the police and offered to surrender yourself to them.
In respect of the cultivation of a commercial quantity of cannabis, as discussed, I accept that you only became involved in the enterprise in Epping as a result of pressing financial need that was due to circumstances beyond your control. I also accept that your role was that of a low level worker at the factory. You made full and candid admissions to the police about your role at the factory, and those admissions, and your guilty plea, have been of substantial utilitarian value, and demonstrated a willingness by you to facilitate the course of justice.
I further take into account, as mitigating circumstances, that you have no previous convictions. As discussed, the time which you have so far spent in custody has been difficult for you. I also take into account that there has been some delay in the disposition of this matter, which has required you to spend almost three years in the Metropolitan Remand Centre. Further, as I have noted, I take into account as a mitigating circumstance that you will be deported at the end of your sentence, which is a circumstance that will weigh heavily on you during your term of imprisonment.
In determining your sentence, it is necessary that the sentence, which I impose, be such as to adequately express the condemnation by this Court, and the community, of your conduct in respect of both of the offences for which you are to be sentenced. It is also important that the sentence be of sufficient severity to act as a general deterrent both in relation to the involvement in the cultivation of commercial quantities of prohibited substances, and also in respect of engaging in the kind of violence by which you took the life of Cuong Le. In the present case, the role of specific deterrence has little, if any, work to do, in view of the fact that it is almost certain that you will be deported at the conclusion of your sentence. In that respect, it is also relevant that I accept Ms Cidoni’s assessment that your prospects of rehabilitation are good.
Taking those matters into account, I sentence you as follows:
(1)On charge 1 — cultivation of a commercial quantity of cannabis L — I sentence you to 2 years’ imprisonment.
(2)On charge 2 — manslaughter of Cuong Van Le — I sentence you to 7 years’ imprisonment.
I direct that 4 months of the sentence on the charge of cultivation of a commercial quantity of cannabis (charge 1) be served cumulatively on your sentence on charge 2 (manslaughter). Thus, your total effective sentence is 7 years and 4 months’ imprisonment.
I direct that you serve a minimum of 5 years before you become eligible for parole.
Pursuant to s 18(4) of the Sentencing Act, I declare that the period of 1,068 days, not including today’s date, be reckoned as already served under the sentence which I impose. I shall cause a notation to be made in the records of the Court that that declaration was made.
As I have already stated, I have taken into account, in your favour, in sentencing you on charge 1, the fact that you have pleaded guilty to that charge. For the purposes of s 6AAA of the Sentencing Act, but for your plea of guilty, I would have imposed a sentence of 3 years’ imprisonment on that charge, and I would have directed that 12 months of the sentence on charge 1 be served cumulatively on the sentence on charge 2, so that your total effective sentence would have been 8 years’ imprisonment. I would have directed that you serve a minimum of 5 years and 9 months before you became eligible for parole.
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