Director of Public Prosecutions v Nguyen
[2016] VCC 1440
•29 September 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-16-01075
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VAN HOA NGUYEN |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 September 2016 | |
DATE OF SENTENCE: | 29 September 2016 | |
CASE MAY BE CITED AS: | DPP v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1440 | |
REASONS FOR SENTENCE
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Subject:Criminal law - Sentencing – intentionally causing serious injury – stab wound – immediate custodial sentence imposed
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecution | Y. Hardjadibrata | John Cain, Solicitor for Office Public Prosecutions |
| For the Accused (Plea) | J. Munster (Plea) | Victoria Legal Aid |
| T. Dunsford (Sentence) |
HER HONOUR:
1 Van Nguyen, you have pleaded guilty before me to one charge of causing serious injury intentionally.
2 You have no prior criminal record.
3 The charge is serious as is evidenced by the maximum penalty that is prescribed by our Parliament, being Level 3, 20 years' imprisonment.
4 The charge relates to a stabbing that occurred on 20 December 2015. The victim, Vladimir Orellana, was visiting a neighbouring property on the date of the incident. You lived at 19 Montasell Avenue, Deer Park with your daughter, Yen Nguyen, and your niece, Hang Nguyen.
5 Mr Orellana was visiting and staying overnight with his grandfather at the house next door, namely 20 Montasell Avenue.
6 On that night, 20 December 2015, you had attended a wedding and had consumed an amount of alcohol at the reception. You returned to your home at about 11.30 pm.
7 Mr Orellana had arrived earlier and had parked his vehicle in the street outside his address. He had gone to bed and at around 11.30 pm, he was woken when he heard a thud outside the front of the house that sounded like two cars colliding. He got out of bed and went into the street to investigate.
8 He recognised your Toyota Camry reversing. He saw it hit the rear door on the right side of his vehicle. Your car had tinted windows so he moved towards your window and gestured with his hands, he said, “Hey, you've hit my door”. You were struggling to move and straighten your car and appeared to be intoxicated and did not seem to realise what was going on.
9 Mr Orellana then heard another car horn sound. The vehicle was approaching him. He spoke to the female driver, another neighbour, who was trying to manoeuvre her vehicle through the street. He told her that you had hit his car and asked her to take some photographs, which she did, on her mobile phone. You then got out of the car, walked around the back of it and went into your house. Mr Orellana then went back into his house to put on more clothes as he was only wearing a singlet and some shorts. He returned with a mobile phone and began taking his own photos.
10 Meanwhile, you returned to your home, banged on the front door and rang the front door bell. Your niece, Hang, opened the door. You told her that you wanted to get a knife. You appeared angry and upset. You told her that you had hit someone’s car and needed a knife.
11 She saw you get a knife from the kitchen. She tried to talk with you and stop you but you brushed her aside. She went to the front porch where she observed you approaching Mr Orellana with the knife. You took a swing at him and stabbed him in the eye with the knife. There was no yelling or fighting prior to the stabbing. Mr Orellana felt numbness to the left side of his face and neck. He could not see out of his left eye.
12 After being stabbed, he then grabbed you and struggled with you, forcing you onto the ground. He cried out for help. Neighbours, who had heard the screaming, ran into the street and eventually the police were notified. They arrived at the scene at around 11.53 pm.
13 Police arrested you and charged you in respect to the stabbing. You were taken to the police station and an interview was conducted with the assistance of a Vietnamese interpreter.
14 You told police that you were 45, you had no visa and were unlawfully in Australia. You made some admissions concerning the offending. You told police that you had been at a wedding reception and had driven home and when you were trying to park your car, you got into an argument with a neighbour, who said that you touched his car as you were reversing. The neighbour kept taking photos on his mobile phone, you got angry and ran into your house and got a small knife from the drawer in the kitchen to threaten him but got so angry and frustrated that you believed you had hit him lightly once with the knife and he started to bleed. You told police you did not purposefully hit him in the eye and you only knew that you hit him after you were told.
15 You were charged and from that date you have been remanded in custody.
16 Meanwhile, Mr Orellana was taken by ambulance to the Royal Melbourne Hospital where he was treated for his injuries.
17 Physical examination revealed that he suffered two lacerations to the left upper chest wall; one superficial laceration on the right arm; and a full thickness vertical laceration extending 5 centimetres long over the eye, penetrating the upper and lower eyelids, the sclera (white of the eye), and globe with uveal and vitreous loss.
18 He was taken into surgery to treat the laceration of the eyeball and ophthalmic surgery was undertaken that took over three hours. Mr Orellana remained in hospital for three days. He eventually required three further surgical operations to the left eye.
19 His left eye injury has been described as severe and permanent. Dr Mei Hong Tan opines that there is a high chance that he will continue to lose the remaining vision in his left eye, despite best medical efforts and the surgeries that have been undertaken.
20 The impact of your offending has been devastating for Mr Orellana, as is evidenced by the contents of his Victim Impact Statement.
21 Previously, he enjoyed being healthy. Eye health was something of particular interest to him as he is a graphic designer. He always loved driving and noticing trees and other things in his peripheral vision. However, the ability to do that has now been taken away. He says, after four operations to the left eye, that the eye has been retained but his healthy eyesight has been removed.
22 He worries about people perceiving him as having a deformed eye. He is constantly having to explain to people what has happened.
23 He has trouble sleeping. He is fearful of members of your ethnic community and worries about retribution for reporting this crime. He is very anxious in public and is hyper-vigilant whenever he is at home and fears something like this may happen again.
24 In addition to the loss of vision in the eye, he has been psychologically affected as a consequence of the crime. He is traumatised and responds to trigger points that frequently make him re-experience the crime. He is now considered to be legally blind.
25 The physical effect of the crime has been difficult. He has had four operations, each with difficult recoveries. He has not been able to drive following the operations and his independence has been lost and he is increasingly reliant on others.
26 He must constantly care for his eye and remember to clean and reapply ointment throughout the day. He has not been able to play soccer since the crime. He also finds playing table tennis difficult because of the effect on his depth perception. Contact sport is no longer possible. Whenever he runs he feels pounding in the left eye. All of this has impacted greatly on his ability to undertake any physical activity. He is now only working part-time, averaging four to six hours per week and as a consequence, he suffers ongoing financial loss. He is still uncertain as to the need for future medical treatment.
27 The fourth medical procedure was a skin graft to the eyelid to replace the lost skin from his eyelid and to help him open his eye. He does not yet know the outcome from this procedure.
28 Mr Nguyen, this is a serious example of a serious offence. There are aggravating features to your offending; namely, that because of your inability to control your anger, you deliberately armed yourself with a knife which you then used to inflict injury upon the victim. This was an unprovoked attack and your actions require condemnation on behalf of the community and is deserving of stern punishment.
29 I have taken into account the matters put in mitigation. You are 46 and prior to this incident, you were a person who was otherwise of good character. I have already noted you have no prior criminal history.
30
You entered a plea of guilty to the charge after the matter resolved at a contested committal hearing on 21 June 2016, without the need for
Mr Orellana to be cross-examined. The matter then proceeded by way of a straight hand-up brief.
31 By your plea, you acknowledge what you did was wrong and you also acknowledge that the offending has had a devastating impact upon the victim.
32 You have expressed remorse to the police and your family members. I accept that there is real utility in your plea and your sentence will be discounted accordingly. Further, the plea is an indication that you are genuinely remorseful. I also accept you have facilitated justice.
33 You have been in custody, on remand, for 283 days. In custody you are socially, linguistically and culturally isolated. Your English is poor and you have difficulty communicating with guards and other inmates who cannot speak Vietnamese.
34 I accept that your imprisonment has been difficult and more burdensome because of your status as a non-English speaking foreign national.
35 You have also been in custody following the prison riots that took place in July 2015. Conditions have been, thereafter, more onerous and that would have increased your isolation whilst you have been custody. I have taken that into account.
36 You do have some limited contact with a brother, who is in Australia and also your daughter. You have had some very limited telephone contact with your wife, son and parents who live in Vietnam.
37 You are a Vietnamese national. You were born and raised in a very small fishing village in the Hai Phong Province on the north coast of Vietnam. You have two brothers who live in Melbourne and a sister who lives in Vietnam. Your wife lives in Vietnam with your elderly parents and teenage son, Chung.
38 In 2008, you were sponsored to come to Australia. You were on a tourist visa. You have overstayed that visa. Initially, you came to attend the World Catholic Conference in Sydney. Since that time, you have remained in Australia and worked as a seasonal picker and/or builders labourer within the Vietnamese community.
39 In terms of your background, you are a person who has very limited formal education, having only attended school in Vietnam for about one or two years and then leaving school when you were only eleven. You worked as a fisherman for about 12 years up until the time of your marriage. You were married at age twenty-four, but because of your wife’s concerns about your safety, you stopped working as a fisherman and worked as a builders labourer.
40 Whilst in Australia, you remitted money back to your family in Vietnam. You also worked in a voluntary capacity for a local Catholic Church in Sunshine.
41 Ironically, about ten or 20 years ago in Vietnam, the period is not known, you too suffered at the hands of an unknown assailant when you were hit over the head with a brick. You required hospitalisation for a few months. It is unclear as to the nature of the head injury you suffered or its consequences. You have never had any treatment in Australia for any medical conditions as you were not eligible for Medicare and you are unable to afford a private doctor.
42 Your counsel said that you suffer ongoing headaches, dizziness, blurred vision and some memory loss. No evidence was put before the Court about your ongoing medical issues.
43 You have always had long-term problems associated with heavy drinking, both here in Australia and previously in Vietnam. You first started drinking when you were a fisherman, spending long periods of time out at sea and drinking became a way of life to cope with your harsh lifestyle.
44 The context of this particular offending was that you had been drinking at the wedding reception, both beer and red wine to excess, and you lost control because of your anger following your verbal altercation with the neighbour. You now accept that matters escalated out of control when you went into the house to collect the knife and then you stabbed your victim.
45 I assess your crime as being a serious example of this sort of serious offence. I consider that it falls within the mid-range of seriousness. You armed yourself with the knife because of your anger. I accept that it was not a pre-planned attack. I further accept that the attack was only of relatively short duration, albeit the consequences of your actions have been very serious to the victim.
46 I consider that you have good prospects of rehabilitation. In custody, you have reflected on your offending; you acknowledge it was serious and wrong and deserving of punishment. It is anticipated that you will be removed from Australia following the completion of your sentence. You are anxious to get home to Vietnam to be with your family. You did not have any realistic expectation of remaining in Australia because you were an illegal non-citizen at the time of the offending, so the principles of Guden v R[1] do not apply.
[1] [2010] VSCA 196.
47 I have had regard to the reference material tendered at the plea. I accept, other than this incident, you are a person who is well regarded and highly considered by family members and in your community. Yen, your daughter, in her letter addressed to the Court, confirms that you are very upset about what you have done and that you very much want to apologise to the victim for the harm that you have caused. She confirmed that you helped many people over the years and you have done voluntary work at Catholic churches in your free time and you are very highly regarded. Overall, I consider that your rehabilitation prospects are reasonable.
48 In sentencing you, the Court must emphasise general and specific deterrence and also, on behalf of the community, formally denounce your behaviour. The Court must impose just punishment. Having regard to your post-offence conduct and the fact that you have insight into the effect of your offending and understand that it was wrong, and you wish to make a full apology to the victim, I consider the need to emphasise specific deterrence is not as great as it would be otherwise.
49 Ultimately, you must be punished for the particular circumstances of your offending. I have had regard to the sentencing statistics provided in Sentencing Snapshot No.187 from the Sentencing Advisory Council which reflects a period of 2010/11 to 2014/15. I have had regard to the various cases that were provided to me during the plea hearing.
50 The formal Court orders, in respect to the one charge of intentionally cause serious injury, is you are convicted and sentenced to five years' imprisonment. I fix a non-parole period of three years' imprisonment.
51 I make the following declaration of pre-sentence detention. I declare that you have spent 283 days in pre-sentence detention and direct that that be entered into the records of the Court.
52 I make the disposal order sought in respect to the knife. I make the order in respect to the taking of the forensic sample. I make that order, having regard to the seriousness of the offending and I consider that it is in the interest of the community to make that order. I note through counsel that you have consented to the making of those two orders.
53 Madam Interpreter, can you please inform Mr Nguyen, the forensic order means that he will have to undergo a procedure for the taking of a scraping from the mouth using a cotton bud. Mr Nguyen will be provided with the cotton bud and he will have to place that inside his mouth and rub it on the inside cheek and then provide that to the authorities. If, at the time, he does not consent to the taking of the mouth scraping under supervision by an authorised member of the police force, then the sample can be taken by blood sample and police may use reasonable force to enable that procedure to be conducted.
54 Finally, I make the follow declaration pursuant to s.6AAA of the Sentencing Act 1991. But for your plea of guilty, I would have imposed a term of imprisonment of seven years’, to serve five years' imprisonment. I think that covers everything.
55 MR HARDJADIBRATA: Yes, Your Honour, if I could hand up the draft disposal order and the forensic sample order.
56 HER HONOUR: All right. It is the 29th today, is it not? Is there only the one? No, there is more. Disposal orders. There is a disposal, it is - and I will just sign these. These are all for in custody, are they not? Ms Dunsford, did you want to have a chance of speaking with Mr Nguyen with the interpreter here in court?
57 MS DUNSFORD: It is really a matter for the Court. I was going to ask the interpreter to attend at the cells with me but if the Court has capacity for me to approach Mr Nguyen for five or ten minutes- - -
58 HER HONOUR: Yes, that would be - I think that is easier of the interpreter, is it not?
59 MS DUNSFORD: I believe it is yes, she is certainly indicating it is.
60 HER HONOUR: Yes, all right, I will leave the Bench and that can be done.
61 MS DUNSFORD: As Your Honour pleases, I am grateful.
62 HER HONOUR: All right, thank you.
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