Director of Public Prosecutions v Nguyen
[2024] VCC 105
•14 February 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01406
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NAM THANH NGUYEN |
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JUDGE: | HER HONOUR JUDGE HARPER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 February 2024 | |
DATE OF SENTENCE: | 14 February 2024 | |
CASE MAY BE CITED AS: | DPP v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 105 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Intentionally cause serious injury in circumstances of gross violence
Legislation Cited: Sentencing Act 1991
Cases Cited:Weatherburn v The King [2023 VSCA 283, Van Kempen v The King [2023] VSCA 26
Sentence: TES 8 years 4 months, NPP 5 years 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. McCarthy | Ms A. Hogan, Solicitor for Public Prosecutions |
| For the Accused | Ms A. Burnnard | Victoria Legal Aid |
HER HONOUR:
1Nam Thanh Nguyen, you have pleaded guilty before me to one charge of intentionally causing serious injury in circumstances of gross violence, the maximum penalty for which is 20 years' imprisonment.
Circumstances of the offending
2The offending was comprehensively outlined in the Amended Summary of Prosecution Opening for Plea, dated 2 February 2024, Exhibit A. I will summarise those facts here.
3On 1 May 2022, you were moving into a share house located in St Albans, leased by Mr Thi Pham. Mr Chinh Huynh and Mr Van Nguyen were already living at the house.
4
At about 6 pm, you were having dinner at the share house with Mr Hyunh and
Mr Van Nguyen. Mr Huynh had two glasses of wine and Mr Van Nguyen had two small beers. You also drank beer.
5You and Mr Huynh began to argue. The argument continued after dinner and then moved to the garage that had been converted to Mr Huynh’s bedroom.
6
The following offending was captured on CCTV in the house and garage,
Exhibits E and F.
7At 20:20:24 pm Mr Huynh walked towards the garage gate holding an imitation firearm and a physical altercation ensued. Mr Huynh had you on your knees and struck you three times to the upper body and head with the imitation firearm.
8At 20:24:07 pm you got up and Mr Huynh walked towards the back door. You followed him, holding an object in your hand. You left the garage via the gate before Mr Huynh returned holding a builder's level. He swung the object and gestured in your direction.
9Some 25 minutes later at 20:49 pm, Mr Huynh returned to the garage then tried to close the gate as you forced your way through. Twenty-four seconds later, you were standing over Mr Huynh holding a crowbar in two hands as he sat on the ground holding a hand up to protect himself.
10You hit Mr Huynh with the crowbar, with force, three times. The third blow connected with his head and he fell unconscious to the ground. Still holding the crowbar in two hands, you then proceeded to strike your victim a further 24 times to the head and body as he lay incapacitated on the ground.
11At 20:50:10 pm you entered the house through the back door, leaving your victim on the ground in the garage. Twenty seconds later you returned and struck Mr Huynh a further six times to the head and body with the crowbar, this time holding it in a stabbing motion.
12You then swung the crowbar a further two times to Mr Huynh’s head and body before using a stabbing motion to connect with him a further two times while holding the crowbar in one hand. Your victim remained unconscious on the ground.
13You exited the garage at 20:51:27 pm. At 20:55:04 pm you returned to your victim and struck him a further seven times, five of which involved a single-handed stabbing motion. You exited the garage before returning to your victim and leaving the garage at 20:56:26 pm.
14You struck Mr Huynh a total of 44 times with the crowbar. He lay unconscious for 41 of those blows.
15Witnesses overheard arguing and moaning and called Triple 0 at 9.01 pm.
16At 3.53 pm on 2 May 2022, police observed you park outside the house and walk inside. Inside your vehicle police located a metal bar and clothing with visible blood stains. A search of your previous address revealed items including a black crowbar.
17As a result of your assault on him, Mr Huynh suffered facial lacerations and bruising, loss of teeth and jaw fractures, eye bulging, skull fractures, bleeding on the brain, a spinal fracture, a fractured sternum and ribs and bilateral lung collapse. He was operated on and placed in an induced coma with mechanical ventilation for 14 days.
18Dr Jason Schreiber of the Victorian Institute of Forensic Medicine concluded that multiple blows and significant force was required to inflict the injury combination.
19As a result of the incident, you were also injured. You suffered lacerations, abrasions, bruises and a lasting traumatic brain injury.
20You were interviewed by police on 2 May 2022 and stated:
(a) The victim is bigger than you, strong and fit and drank four glasses of wine and smoked Ice twice;
(b) You prevented the victim going out because he was going to cause trouble;
(c) You and the victim fought because the victim disrespected you as an older member of the Vietnamese community and was not helping with the dishes;
(d) The victim pulled a gun on you, pushed you and you fell over; and
(e) You left and went back to your previous address.
21Once you were shown the CCTV you:
(a) Identified yourself in the footage;
(b) Said the victim picked up the gun and told you 'tonight, I finish’ but fortunately the gun did not work;
(c) Denied you were very angry; and
(d) Said the lack of respect did not make you upset; and
(e) Said you did not know where the crowbar was and you did not hit the victim with it.
Objective gravity
22This is a serious example of a very serious offence. While you had been attacked with an imitation firearm, your reaction truly beggars belief. You struck your victim with the crowbar three times and after he fell to the ground unconscious, you struck him a further 41 times, each blow delivered with significant force.
23I have seen footage of your offending. It makes for disturbing viewing. Mr. Huynh is fortunate to be alive and to have sustained no significant long-term injuries.
24While you were seriously injured by your victim preceding your attack on him, I consider your offending to be at the high level of seriousness.
Plea of guilty
25You formally entered a plea of guilty in the Magistrates' Court in August 2022 and you were arraigned in this court in June 2023. I consider your plea to have been entered at the earliest stage and it has significant utilitarian benefit. You have saved the court and the community the time and expense of running a trial and spared the witnesses the ordeal of giving evidence. In those circumstances, you have facilitated the administration of justice and you are entitled to a benefit for that.
26The utilitarian benefit of your plea is enhanced by the fact that the Worboyes [2021] VSCA 169 considerations are engaged as your plea was entered during the Covid-19 pandemic. This results in a more pronounced amelioration of sentence than at other times.
Victim impact statement
27I received a victim impact statement from your victim, Mr Chinh Huynh. He has little recollection of the incident and states that he forgives you for what you have done. Mr Huynh’s position is significant, given the severity of your assault upon him.
Personal circumstances
28You are now 67 years of age, having been born in Vietnam in March 1956. You were 66 years old at the time of the offending.
29You are the third youngest in a large Catholic family, born in Long Khanh in Vietnam.
30You excelled at school, completing Year 12, and were encouraged to join the priesthood. You studied theology and philosophy for four years but did not complete your training due to the rise of communism in Vietnam. You then completed teacher training and worked as a teacher and school principal.
31Your family encouraged you to leave Vietnam after your brother died in custody.
32In 1981 you left Vietnam, spending three months in Indonesia before coming to Australia.
33While in Indonesia you met the woman who would become your wife. She later visited you in Australia and you were married in 1983. You have two children, a son, now 35, and a daughter, now 28, who has two children of her own.
34After a brief period in Sydney, you came to Melbourne and worked in various unskilled roles. Between 1989 and 2017 you worked for a furniture business where you were promoted to foreman.
35In 2017 you suffered a knee injury which led to your resignation from the furniture business and the onset of depression. You were treated with antidepressants from this time.
36By 2018 you had separated from your wife. You signed over the family home and your superannuation to her and returned to Vietnam, however your mother and sisters were critical of these financial decisions and sent you back to Australia.
37You resided in Cairnlea for a time but your children did not want you living alone so you moved in with your former wife in Kealba, where you lived separated under the one roof. Your family moved to Perth and you planned to move into the house where the offending occurred.
38In April 2022, prior to the offending, you were detained under the Mental Health Act 2014 at Sunshine Hospital after threatening harm to yourself and your family in an angry and distressed state. You were discharged the following day with a referral which you did not follow up.
39I received several reports, one from forensic psychiatrist Dr Clare McInerney, Exhibit 2, and two from Ms Jane Lofthouse, neuropsychologist, Exhibits 3 and 4.
40Dr McInerney found you do not and have not had any psychotic or mood disorder, however you do have depressive type adjustment symptoms to do with your current circumstances.
41She notes your traumatic brain injury and found that it could have had acute effects at the time of the offending, but this is difficult to determine so long after the relevant time.
42Dr McInerney raised the possibility of frontotemporal dementia, however this was later excluded by an MRI, as referred to in the reports of Ms Lofthouse.
43In her reports, Ms Lofthouse found evidence of a traumatic brain injury arising from the assault on you by Mr Huynh prior to your offending. The bleeding and midline shift to your brain was not discovered until 21 June 2022. Consequently, you have an intellectual impairment that is permanent in nature and will continue to have an effect on your function into the future.
44I will return to Ms Lofthouse’s evidence shortly.
Sentencing factors and considerations
45Mr Nguyen, this was disgusting behaviour. To viciously attack another person, with a weapon, while he is unconscious, for a sustained period, and to walk away for five minutes before resuming that attack is horrific. I accept that he hit you first but that is absolutely no excuse for your conduct. It was brutal and it was vicious.
46Intentionally causing serious injury in circumstances of gross violence is a Category 1 offence, meaning I must impose a custodial order pursuant to s5(2G) of the Sentencing Act 1991.
47Pursuant to s10(1) of the Act, I must impose a mandatory minimum non-parole period of four years' imprisonment, unless I find that special reasons within the meaning of s10A of the Act exist.
48Under s11(3) of the Act, the non-parole period must be at least six months less than the term of the sentence.
49It was submitted by Ms Burnnard, on your behalf, that special reasons are made out pursuant to s10A(2)(c)(i), s10A(2)(c)(ii) and s10A(2)(e) of the Act, which require that:
10A(2)
(c) the offender proves on the balance of probabilities that—
(i) subject to sub-s(2A), at the time of the commission of the offence, he or she had impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces the offender's culpability; or
(ii) he or she has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment; or
(e) there are substantial and compelling circumstances that are exceptional and rare and that justify doing so.
50I heard oral evidence from Ms Lofthouse. She found that you suffered a traumatic brain injury as a result of the attack upon you by Mr Huynh with the imitation firearm. This injury, she opined, would have rendered you confused and disinhibited and impacted your decision making abilities at the time of your offending, some 30 minutes after you were yourself struck.
51While she was of the view that it was likely to have had some effect, she also said she could not quantify to what extent you were affected. Whatever this effect, she stated, it did not explain the viciousness of the attack.
52Ms Lofthouse gave further evidence that alcohol and anger were both also likely contributors to the offending, as was your adjustment disorder, none of which can be separated out from the traumatic brain injury. These factors similarly did not explain the viciousness of the attack.
53Ms Lofthouse conceded that the onset of symptoms of a traumatic brain injury may not be immediate and may worsen over time. This is likely to be the case where you did not receive treatment or have surgery for some time after the attack on you.
54As Ms Lofthouse said, you were assessed as fit for interview the day after the incident and the GP you saw did not in fact recognise that you had a brain injury. Without acknowledgement of your traumatic brain injury at this time, it is difficult, if not impossible, to state what the effect of that injury was at the time of the offending.
55In circumstances where the effect of your injury at the time of the offending cannot be quantified, I am not satisfied that you had impaired mental functioning that is causally linked to the commission of the offence. As Ms Lofthouse stated, this cannot be separated from other factors and does not explain the vicious nature of the assault.
56I accept that you do now suffer the ongoing effects of your brain injury and may require some additional supports in custody but I am not satisfied that your presently impaired mental functioning would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.
57Further I do not find that there are substantial and compelling circumstances that are exceptional and rare in your case.
58I therefore do not find that special reasons exist pursuant to s10A(2) of the Act.
59I do however accept that Verdins principles have some application in your case.
60As to limbs 1, 3 and 4, I moderate your moral culpability, general and specific deterrence to a modest extent by virtue of your impaired mental functioning. I accept that there was some effect of the traumatic brain injury at the time of the offending, however as stated before, I cannot be satisfied as to the extent of that effect.
61Although somewhat moderated, these principles nevertheless retain some relevance given the ferocity and viciousness of your attack on your victim and the need to deter both you and members of the public from carrying out such assaults.
62As to limb 5, I accept that the sentence will weigh more heavily on you than it would on a prisoner without a traumatic brain injury.
63You have no criminal history, thus this is your first time in custody. I also note you are isolated in custody by virtue of having no contact with friends or family.
64It was submitted by both parties that there are no truly comparable cases to the present facts. I agree. I note I have considered cases such as Weatherburn v The King [2023] VSCA 283 and Van Kempen v The King [2023] VSCA 26 but did not gain great assistance given the disparities in the factual and personal circumstances involved.
65While moderated, general and specific deterrence both have a role to play in the sentencing exercise. Others must be deterred from acting in such a violent manner by the sentence I impose. While you have no criminal record, it must also be made clear to you that such behaviour is unacceptable. Just punishment and denunciation are also relevant considerations given the seriousness of your offending, as is community protection.
66While the violence inflicted on your victim in your offending is largely inexplicable, given your age and absence of prior matters, I consider your prospects of rehabilitation to be reasonable in all the circumstances.
Disposition
67Mr Nguyen, would you please stand?
68On Charge 1, intentionally causing serious injury in circumstances of gross violence, you are sentenced to eight years and four months' imprisonment. I direct that you serve a minimum non-parole period of five years and six months, before being eligible for release on parole. I declare that pursuant to s18 of the Sentencing Act [1991], you have served 653 days by way of presentence detention, excluding today.
69Pursuant to s6AAA of the Sentencing Act [1991], I declare that had you not pleaded guilty, the sentence I would have imposed would have been 10 years, six months' imprisonment, with a non-parole period of seven years. I grant the forfeiture application made by the prosecution. You may be seated, Mr Nguyen. Is there anything else from either party?
70MR McCARTHY: Your Honour, there was a discussion about the forfeiture order this morning.
71HER HONOUR: Yes.
72MR McCARTHY: There's an agreed position.
73HER HONOUR: Yes.
74MR McCARTHY: The Crown are content to remove the mobile phone on the particulars of the order and I think an amended order's been sent through to Your Honour's clerk.
75HER HONOUR: Thank you. I'll sign that in chambers and have it sent to the parties. Is there anything else from either party?
76COUNSEL: No, Your Honour.
77HER HONOUR: We'll have the draft reasons sent by email, so that you can have them discussed by the interpreter with Mr Nguyen as soon as possible.
78MS BURNNARD: Very grateful for that.
79HER HONOUR: Thank you. You can remove Mr Nguyen. Thank you.
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