Director of Public Prosecutions v Huynh
[2010] VSC 37
•19 February 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1627 of 2009
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MINH BAO HUYNH |
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JUDGE: | CURTAIN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 February 2010 | |
DATE OF SENTENCE: | 19 February 2010 | |
CASE MAY BE CITED AS: | DPP v Huynh | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 37 | |
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Catchwords: Plea of guilty – Intentionally causing serious injury – First offence – Domestic violence – Intellectual disability – Application of Verdins principle.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M. Schwartz | Office of Public Prosecutions |
| For the Accused | Mr G.F. Meredith | Victoria Legal Aid |
HER HONOUR:
Bao Minh Huynh, you have pleaded guilty to one count of intentionally causing serious injury. No prior convictions are alleged against you. The victim of your offending conduct is your wife, Houng Thi Nguyen.
You and she came to Australia in June 2008 on tourist visas which have since expired. You lived with your wife’s aunt and uncle who owned two seafood shops in Springvale. You worked out the back in one shop and your wife, behind the counter in the other.
In that way, in November 2008, your wife came to meet a customer named Jozeef. Although Ms Nguyen was unable to speak English, they nonetheless exchanged telephone numbers and via a telephone call from a friend of Ms Nguyen who lived in Perth, it was eventually agreed that they would meet. On the morning of 4 November 2008, your suspicions being aroused, you asked your wife for the mobile phone which you and she shared. She gave you the phone but then borrowed her niece's phone and later that morning, rang her friend in Perth and asked her to call Jozeef. Eventually, arrangements were made for the two of them to meet at a restaurant on the corner of Windsor Avenue and Buckingham Avenue in Springvale later that morning.
Ms Nguyen, who by then was at work, returned home to change and then went to the restaurant to await Jozeef. After a number of calls between the two of them, Ms Nguyen asked the restaurant manager to ring Jozeef and direct him to the restaurant, which he did. Jozeef then picked up Ms Nguyen outside the restaurant at 11 o'clock and eventually drove her to his house in Springvale.
In the meantime, you had discovered Jozeef's incoming phone calls to your wife’s phone and you made three short calls to that number. You also ascertained, from a woman at the restaurant, that your wife had left in the company of a male. You went to your wife’s uncle, Tran, and told him of your suspicions. Tran, at your request, called Jozeef and there were number of calls between the two of them and Tran ordered Jozeef to return your wife because she was married and that if he did not return her, Tran would report the matter to the police. Ms Nguyen also spoke to Mr Tran on the phone.
At some point, you armed yourself with a knife, which you later admitted you took from Tran’s seafood shop. You then went looking for your wife and you were observed to be grumpy and upset. By this time Jozeef became concerned about the situation and drove with your wife to the Springvale Police Station, but when the car pulled up Ms Nguyen ran off and then Jozeef then drove off, although he shortly returned to the police station where he met Tran, who had also arrived at the police station and the two of them argued about what had occurred.
In the meantime your wife had rung you and you told her that you were looking for her and she told you where she was. Eventually the two of you met up in the vicinity of the Tien Dat Restaurant where your wife had been earlier that morning.
The two of you then walked down Buckingham Avenue and nothing was said between you, but as you walked, you produced a knife from your right pocket, the blade of the knife protruding from your right hand. You then stabbed backwards into your wife's chest, asking where the man had taken her, and you continued to stab her in the abdomen and chest area. Ms Nguyen tried to block the knife with her left hand, but the stabbing continued. She pleaded with you to stop, as she said she had done nothing wrong. Your wife was screaming. She collapsed to the ground and you fled the scene. Witnesses came to her aid and she was subsequently conveyed to the Alfred Hospital where she underwent emergency surgery and subsequent surgery in the days ahead.
Ms Nguyen, as a result of your attack, suffered at least six stab wounds: two to her lower abdomen, one in the right upper abdomen, two to the right chest wall and one to the lower abdomen. These wounds resulted in a number of internal injuries: seven small bowel tears, a small laceration to the liver, a laceration to the iliac artery and an irregular defect to the abdominal wall, all of which were likely to have proved fatal if surgery had not intervened. Ms Nguyen also suffered a laceration to her middle finger, sustained no doubt as she tried to defend herself from your attack.
Very shortly after having run off, you rang Tran and told him you had killed your wife. During the course of the afternoon, there were further calls between you and Tran, and you asked him whether your wife had died.
At 5.13 that afternoon, you called another uncle of your wife, Quong Nguyen, and asked him to come and get you near the Crown Casino, which he did. He then drove you to a house in Spotswood and you told him you had stabbed your wife because you were angry, and you did not know how many times you had stabbed her. You were crying as you said this.
The police arrested you the next day at the house where Mr Nguyen had taken you. You were interviewed by the police, and you told them that when the woman from the restaurant told you that your wife had gone with another man, it made you feel both “sad and crazy mad”. You admitted that you had gone looking for your wife in the vicinity of the Tien Dat Restaurant, and that you had a knife with you at the time.
You admitted taking the knife from Tran’s fish shop but gave conflicting accounts as to why. You admitted initially it was because you were angry and upset over the fact that your wife was with another man, and then at another occasion you said it was because you were working with fish at the time and simply put the knife in your pocket because you were in a hurry.
In the record of interview, you denied producing the knife or stabbing your wife and causing her injuries, but you admitted fleeing the scene and leaving your wife behind screaming. You also denied making the admissions to Tran and to Quang Nguyen. The knife used in the attack was never located, although Tran noticed that one of his knives which he described as being eight centimetres long was missing from his shop.
You are 32 years old. You and Miss Nguyen married in the year 2000. You have a son aged nine and a six year old daughter whom you adopted when you found her abandoned in a marketplace. You were born in the south of Vietnam in the province of Camaul in the town of Kien Giang. You are an only child and you and your mother were deserted by your father. Your mother worked as a labourer in the paddy fields and your education was disrupted as your mother moved around in pursuit of work. You spent four years at school and at an early age you left to work initially as a farm labourer and then to engage in other largely unskilled menial jobs.
You have lived in small rural communities and have worked on a floating market, in a factory making fertiliser and cultivating a prawn farm. It is said to have been, and I accept, a very poor and hard existence necessitating from time to time that you and your wife would leave your children with their grandmother and go in search of work.
It was in these circumstances that you both came to Australia on tourist visas to look for work leaving your two children behind. You worked here fruit picking and then went to live and work for your wife's aunt and uncle in their fish shops in Springvale. It is submitted that in these circumstances you were dependent upon your wife, both emotionally and practically as she was the one who would handle the finances and the like. Your wife had a job which involved customer contact and in these circumstances she met Jozeef. It was submitted that you were suspicious that there may have been some liaison between the two, that this may have led to Jozeef’s sponsorship of your wife and her leaving you and you felt threatened by this. Indeed, you told the police in the record of interview that you asked your wife why she had left you to go with that guy and you claim she had said “she doesn’t want to live with me any more. She wants to say goodbye to me and she wanted to go with that boy”.
A number of reports were tendered in evidence on your behalf. They include a report of Dr Danny Sullivan, consultant psychiatrist, dated 16 March 2009 tendered as Exhibit 1; a psychological evaluation by Mr Simon Kennedy, clinical and forensic psychologist, dated 15 April 2009 and tendered as Exhibit 2, and tendered as Exhibit 3 the neuropsychological report of Associate Producer Warwick Brewer dated 25 January 2010.
Associate Professor Brewer also gave evidence on your behalf. Associate Professor Brewer agreed with the assessment of Mr Kennedy that your level of functioning is in the moderate range of intellectual disability where 99 per cent of the population would have a higher IQ score. In his opinion your full scale IQ score was in the range of 59 to 67 which must be said to be low. You gave Associate Professor Brewer a history of having been involved a motor cycle accident some five, six or seven years ago when you lost consciousness and that, together with the scar on the left side of the frontal lobe, indicated to him that you had suffered a mild to moderate closed head injury and in his opinion there was significant evidence to suggest an exacerbation of your pre-existing vulnerability for dis-inhibited angry behaviour which may be associated with that injury.
You gave a history to Associate Professor Brewer of an angry temper made worse by alcohol - which was not a factor here - and worse after the head injury, that on this occasion, you were overcome by anger and did not know what had come over you and that you were not familiar with being that out of control with your temper.
You also gave Associate Professor Brewer a history of epilepsy when younger and in that context, he opined that given your low intellect, exacerbated by the impact of untreated epilepsy and later head injury, it was reasonable to suggest that your capacity “to exercise appropriate judgment is reduced generally and particularly at the time of offending”, and Associate Professor Brewer agreed that your ability to exercise appropriate judgment was considerably less than the average member of the population and that you had an impaired capacity to control impulses, particularly anger, and a diminished capacity to make calm and rational choices or to think clearly and inhibit emotional responses. Again, in his opinion, you operate at a very simple, basic level.
Associate Professor Brewer also gave evidence that when he saw you, you were distressed and appeared remorseful.
Mr Kennedy observed you to be of simple demeanour and in his opinion, your problem solving would be hampered by your intellectual disability and you would need to rely on others in a variety of different areas in your life, thus providing some support for the dependency upon your wife and in his opinion, you would be vulnerable in the prison population because of your intellectual disability.
Dr Sullivan, in his report, said that at the time he saw you, you were depressed and you reported a diagnosis of tuberculosis (which was not otherwise reported). You presented to him, in March 2009, with depressive symptoms. There was no indication, however, of bipolar affective disorder or of psychotic illness, nor was there any indication of a personality disorder or other significant diagnosis.
You are presently held in remand, working in the kitchen, and it is said that memory lapses affect the way you work. It appears that you are accommodated with other Vietnamese prisoners and the highlight of your week is being able to cook Vietnamese food. Otherwise, there is little which relieves the rigours of prison life. You have not received any visits from anyone, including your wife, although she has sent you one letter indicating that she will make an offering to Buddha which you have taken as an indication of her forgiveness. Your children remain in Vietnam, where they are now living with an aunt in Saigon.
I turn now to the circumstances of the offence. The maximum penalty for the crime of intentionally causing serious injury is 20 years’ imprisonment. Clearly, Parliament regards this as a serious offence. The injuries suffered by your wife include not only the six stab wounds and the laceration to her finger but the significant internal injuries which were regarded to be life threatening and the pain and suffering which she must have endured, not only during the attack upon her but as a result of the operations she endured so that these injuries, in combination, are properly to be regarded as very serious injuries indeed.
A victim impact statement tendered on behalf of your wife speaks of the consequences of your actions to her. She still suffers pain and has been left with significant scarring, in particular as a result of the surgery which is confirmed by the photographs tendered in evidence.
On any view of your conduct, you acted out of anger, even acknowledging that your ability to control your impulses, in particular anger, is limited and that you had not apparently experienced anger to that degree previously.
Although you gave conflicting accounts as to why you had the knife with you, and your counsel submitted it was perhaps because you did not know what might confront you, you nonetheless had a knife in your possession and you went to meet your wife, taking the knife with you and at the time you met your wife, neither she nor anyone else posed a threat to you. By your own admission you were angry, you had been looking for your wife, and you found her, and then, having found her, you stabbed her multiple times. In those circumstances, I am satisfied that you did not have the knife with you for an innocent purpose.
Further, you must have known that you had at least seriously injured your wife because you asked Tran if she had died, and it was in these circumstances that you ran off without rendering your wife any assistance and leaving her lying in the street seriously injured and effectively abandoned to the care of strangers.
It follows that your offending involving as it does the multiple stabbing of your wife done in anger, resulting in serious injury, occurring in a public place in circumstances where she posed no physical threat to you and where the circumstances which had given rise to your temper had passed, places this offence towards the high end of offences of this kind.
I accept that by reason of your limited education and your low intellect, you were dependent upon your wife both emotionally and in practical terms and that you considered the prospect of her leaving with the other man a threat to your marriage. But that of course in no way excuses or mitigates your conduct, although it goes some way towards explaining it.
I accept that by reason of your low level of functioning you suffer an impaired mental function. Although I accept also that it cannot be said to what degree your mental impairment contributed to your offending conduct. Nonetheless the Crown concedes that the principles of Verdins are here applicable so as to reduce your moral culpability and cause to be sensibly moderated the weight to be given to specific and general deterrence and I proceed on that basis. Although such moderation is to be tempered as there is no suggestion that you did not appreciate the wrongfulness of your conduct. You admitted as much to Dr Sullivan and so much is apparent from your conversations with Mr Tran and Mr Nguyen. Nor can it be said that your low level of functioning was such that it prevented you from decamping the scene, absenting yourself for some five hours, and eventually making your way to the vicinity of Crown Casino, and then making contact with Mr Nguyen.
In sentencing you, I take into account your plea of guilty. You were originally charged with attempted murder and the alternative offence of intentionally causing serious injury and at the committal offered to plead to recklessly causing serious injury. The offer to plead to the present offence was made and accepted on 30 November 2009.
In these circumstances I give you a discount for your plea and take into account that by reason of that plea you have saved the community the cost of a trial and your wife the ordeal of one, and that by reason of such plea you have facilitated the administration of justice.
I take into account also that you have no prior convictions either here or in Vietnam so that at the age of 32 you will be serving a sentence of imprisonment for the first time and a significant one at that.
I take into account also that you are a family man and that by reason of the sentence to be imposed upon you, you will be separated from your children for a number of years. I take into account also that you regret your conduct and that you are genuinely remorseful and distressed by it.
I take into account also that you were tearful at the time you spoke with Mr Nguyen and that this was indicative of the acknowledgement of wrongfulness on your part and of remorse but it must be said that that remorse was not evident at the time you participated in the interview with police when you were not entirely frank with them and indeed, you denied that you had stabbed your wife. Nonetheless, I accept that you are genuinely now remorseful for your conduct and so much is apparent by your demeanour before the Court.
Although it is not entirely clear whether your marriage has survived your conduct, you will, in any event, be separated from your wife and you have no connection with any family members in Australia apart from your wife's family
I take into account also therefore that the hardship of prison life will not be ameliorated by prison visits and I take into account that by reason of your low level of functioning you may be vulnerable in the prison population and that prison life will be rendered more difficult because you do not, at least for the present, speak English. I take into account also the hardship of your earlier life in Vietnam.
I take into account also that your prospects for rehabilitation may be said to be favourable. I say this because at the age of 32 despite your limited ability to control your anger, this is your first offence and you are not likely, therefore, to re-offend in the future, particularly if you receive the support of Disability Services while imprisoned.
Against these matters stand the nature and gravity of the offence here committed. This is a serious example of a serious offence. It involves the infliction of serious violence upon your wife which is a gross breach of the trust which reposes between husband and wife. I take into account also the need to pass a sentence which will act in denunciation of your conduct and serve to punish you and also give due weight to special and general deterrence.
Although such considerations are to be sensibly moderated, nonetheless, the sentence imposed must signal to the community that acts of violence, including domestic violence, are not tolerated and warrant condign punishment.
Accordingly, taking into account all of these matters, and taking into account all matters which go in your favour, you are convicted and sentenced to seven years’ imprisonment with a non-parole period of five years and I declare that you have already served by way of pre-sentence detention a period of 470 days.
But for your plea of guilty pursuant to s 6AAA of the Sentencing Act, I would have sentenced you to nine years with a non-parole period of seven years, mindful, of course, that the principles of Verdins’ case would still apply in the sentencing process.
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