Director of Public Prosecutions v Luu
[2016] VCC 726
•18 May 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-01707
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THAI LUU |
---
JUDGE: | Maidment | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Wednesday 18 May 2016 | |
DATE OF SENTENCE: | ||
CASE MAY BE CITED AS: | DPP v Luu | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 726 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr J. McWilliams | |
| of Public Prosecutions | ||
| For the Accused | Ms N. Karapanagiotidis |
HIS HONOUR:
1 Thai Tam Luu, on 22 April of this year, you pleaded guilty to Charge 1 on the indictment alleging that you intentionally caused serious injury to Lucas Sprague. On 9 July 2015 and today you have pleaded guilty to an amended Charge 2 that on the same occasion you stole $10 in cash belonging to that same victim.
2 You have admitted a substantial criminal history involving a number of court appearances and convictions going back to the 1990s although I note that in the main those offences involve charges relating to dishonesty rather than violence and you do not have a history of violent offending.
3 The prosecution on that occasion tendered and read to the court a Crown opening for plea hearing which was marked Exhibit A. I incorporate that document into these reasons for sentence in its entirety and I don’t propose to read it again.
4 The prosecution also provided me with a DVD of the CCTV footage taken from a camera placed facing north along LaTrobe Place towards Little Bourke Street. That camera was able to record the incident which gave rise to these offences. That CCTV footage was played in court and the DVD marked Exhibit B.
5 The prosecution opening and the CCTV footage provides clear evidence that at about 4:45 pm on the 9th of July of last year you and Mr Sprague were engaged in an altercation of some kind during which you pushed Mr Sprague, he fell on the ground, you then kicked him to the head, apparently rendering him unconscious and you continued with the assault upon him by stomping on his head a number of times.
6 It seems that there were three forceful stomps to the face, the last of which involved you bracing yourself against a wall and delivering the final stomp to the face in that fashion and with such force as to cause you to lose your balance and stumble. You then went through Mr Sprague’s pockets and stole a $10 note from him. You walked away, you were arrested not long afterwards and you were found not fit to be interviewed because you were apparently intoxicated. You were breathalysed later that day at 10:45 or 9:45 pm, or thereabouts and found to have a blood alcohol reading of .09.
7 Mr Sprague was taken to the Royal Melbourne Hospital where he remained for 11 days receiving intensive care treatment before he was discharged on the 20th July of last year. He received multiple facial and cranial fractures, multiple fractures to the nasal bone, a depressed facial fracture, a skull fracture in the area of the left ear, fractures to the bone around the left eye, fracture of the left cheek bone, fracture of the left side of the jaw, skull fracture to the right, side rear, fractures to the skull on the right-hand side forehead, and side of the head. He also suffered a related right side front intracranial haemorrhage. He underwent surgery on the 12th of July where metal plates and screws were inserted to assist in resolving the facial fractures he had sustained.
8 The opinion of the doctor from the Victorian Institute of Forensic Medicine is included in the brief and that was incorporated into the prosecution opening. The conclusion of that doctor was that it was probable Mr Sprague would have died if there had not been rapid assistance and medical intervention.
9 The offending was characterised by the prosecution as serious and grave. That is in relation to the charge of intentionally causing serious injury in circumstances of gross violence and it was submitted by the prosecution that I was bound by section 10 of the Sentencing Act to impose a sentence which involved a mandatory non-parole period of at least four years.
10 It was submitted by the defence that I should find, pursuant to section 10A, subsection 2(c)(i), that at the time of the commission of the offence, you had impaired mental functioning that was causally linked to the commission of the offence and substantially reduced your moral culpability. It was submitted that upon that finding, that section 10(1) did not apply so as to require me to impose a term of imprisonment and fix a non-parole period of not less than four years.
11 Evidence was called on your behalf from Dr Danny Sullivan, a Consultant Psychiatrist. A report prepared by him, dated 20 April of this year, was tendered by him and he attested to the opinions that he expressed in that report. Relevantly, Dr Sullivan opined that you suffered from paranoid schizophrenia, that was a mental illness within the Mental Health Act 2014, Victoria, and that mental illness was causally linked to the commission of the offence of intentionally causing serious injury in circumstances of gross violence.
12 Dr Sullivan noted, in the course of his report, and indeed, in the course of his evidence that you were clearly affected by alcohol and had been a chronic alcoholic for many years and that alcohol would have further disinhibited you and exacerbated the symptoms of paranoid schizophrenia. He also noted that you may have a personality disorder, although he was not able conclusively determine that to be the case.
13 The effect of his report and of his evidence was that, although alcohol and possibly personality disorder may have played some part in causing you to behave in the way that you did on 9 July of last year, the significant causal link was associated with your mental illness, that is, paranoid schizophrenia.
14 Dr Sullivan, in his report and in his evidence, noted that paranoid schizophrenia is associated with inherent disturbances of mental functioning in relation to judgment, insight, ability to plan or organise and as to unkempt appearance and communication. He opined that you could have misconstrued the conduct of your victim as threatening and that these inherent factors were a chronic part of your functioning.
15 During cross-examination, on behalf of the Crown, he noted that you showed indifference, that you were seemingly unconcerned about the effect of your behaviour during the course of interview and, indeed, during the examination by Dr Sullivan and Dr Sullivan was satisfied that your behaviour on this occasion was more related to schizophrenia than personality and he noted that the indifference was consistent with schizophrenia rather than alcohol.
16 He noted also that had there been history of violence arising from alcohol on previous occasions, that might have altered the situation. But absent such a history, Dr Sullivan regarded paranoid schizophrenia as more probable as a significant causal factor than either alcohol or personality disorder.
17 In those circumstances, I am persuaded that, at the time of the commission of the offence, you had impaired mental functioning that was causally linked to the commission of the offence and substantially reduces your moral culpability for the offending. In those circumstances, I accept that a special reason exists within the meaning of section 10 and 10A of the Sentencing Act and in those circumstances, that I am not obliged or that section 10 subsection 1 does not operate to require me to impose a non-parole period not less than 4 years.
18 The report of Dr Sullivan was also useful in that it maps something of your background and it seems your life has dogged essentially by mental illness and substance abuse. There have been a number of criminal offences in your past and you have come to the attention of mental health practitioners on a number of occasions over the years.
19 Most of your prison sentences have been of relatively short duration but this is the ninth time apparently that you have been in prison. It seems that you have been inclined not to take medication for your paranoid schizophrenia and were unmedicated at the time of the offending conduct.
20 It was submitted on your behalf that I should apply each of the so-called Verdins principles 1 to 5 inclusive, in reducing the sentence that I would otherwise have regarded as appropriate in your case. I do accede to that submission. It seems to me that the evidence of Dr Sullivan supports that contention.
21 I am required to take into account your guilty plea and the discount that arises from the utilitarian value of that plea. It is difficult to find any remorse in view of Dr Sullivan’s report. But that is possibly less significant having regard to the mental illness that was affecting your conduct at the time and, it seems, continues to affect your conduct and attitude towards your offending.
22 I am required to punish you. You have pleaded guilty to this offence. It involves an intent to cause serious injury and you must have appreciated that your victim was incapacitated at the time that you delivered the various blows to his head after the initial kick which rendered him unconscious.
23 That the prosecution categorisation of the offending is serious and grave. It carries considerable weight in determining the appropriate punishment. The level of denunciation that the court needs to express, the need to protect the community, and although your moral culpability is reduced significantly as a result of your mental impairment or mental impairments, nevertheless, your culpability remains significant.
24 I cannot do other than regard your prospects of rehabilitation as poor, although you don’t have a history of violence. Your conduct, on this occasion, gives rise to real concerns that you may offend again in similar circumstances in the future, particularly if you continue to be unwilling to abide by any treatment that is offered to you in the community.
25 Dr Sullivan speaks of the need to consider how to manage your situation at the conclusion of your sentence and that remains to be dealt with at some time in the future. It is not something that I can predict or dwell upon at this stage in the sentencing process.
26 There is no victim impact statement in this case, but the nature of the injuries are such that they will have had a significant psychological effect upon your victim and I need to take that into account as well as the injuries themselves, although inflicted on somebody who already had, apparently, an acquired brain injury. I have no information as to the degree of his recovery or the long-term consequences, either physical or emotional, upon him.
27 I am now ready to impose sentence upon you, doing the best I can to balance all of those considerations and noting that you are to be sentenced for a very serious example of intentionally causing serious injury upon an incapacitated man.
28 On Charge 1, I convict you and sentence you to imprisonment for a period of 5 years and 6 months.
29 On Charge 2, I convict you and sentence you to imprisonment for a period of 1 month.
30 Those sentences will run concurrently. The total effective sentence is therefore 5 years and 6 months’ imprisonment and I order that you serve a period of 3 years and 8 months before you become eligible for parole.
31 But for your pleas of guilty, I would have sentenced you to imprisonment for a period of 7 years with a non-parole period of 4 years and 8 months.
32 I declare 313 days’ pre-sentence detention as time to be reckoned as served on the sentence that I have imposed and I direct that that be noted in the records of the court.
- - -
0
0
0