Director of Public Prosecutions v Tang

[2024] VCC 165

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-00522

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHUN TANG

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	23 February 2024
DATE OF SENTENCE:	23 February 2024
CASE MAY BE CITED AS:	DPP v Tang
MEDIUM NEUTRAL CITATION:	[2024] VCC 165

REASONS FOR SENTENCE

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Subject:             CRIMINAL LAW

Catchwords:     Recklessly causing injury – schizophrenia – fitness to plead – excessive self defence

Sentence:         6 months imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Guesdon	Office of Public Prosecutions
For the Accused	Ms J. Munster	Victorian Legal Aid

HIS HONOUR:

1Mr Tang, you have pleaded guilty to one charge of recklessly causing injury, maximum penalty five years' imprisonment.  You have also admitted prior convictions.  The circumstances of the offence were set out in the prosecution opening which was read in open court this morning and which I incorporate by reference.  I am able to deal with this matter expeditiously due to the comprehensive submissions by both parties and the consensus as to the appropriate manner in which it is to be dealt with.

2The complainant in this matter, Mr Truong, was a friend of a person with whom you were living in Ardeer. Mr Truong came to visit on 14 January 2022. During the visit a dispute arose between you and him.  You had made a comment to him and in response he had kicked your knee.  In response you grabbed a paring knife and stabbed him in the upper abdomen.  You immediately regretted your action and called Triple 0, asking for the police and an ambulance. 

3The complainant in the matter, Mr Truong, did not wish to co-operate with the police, but was taken to hospital where his wound was sutured.  There is no Victim Impact Statement.

4The police attended and in the early hours of the morning you participated in a record of interview through a Vietnamese interpreter, where you claimed that he had hit you with a belt and you had used the knife because you were fearful.  You were remanded after the interview and have remained in custody since that time.

5When you went into custody, your mental health deteriorated and you required close monitoring. The progress of your condition is set out in an earlier report from Dr Owen dated 16 July 2023.  Prior to this offending you had in fact been under the treatment of a private psychiatrist, Dr Kwong.  It seems that whilst you were in custody, your condition of schizophrenia became unstable and this contributed to the considerable delay in having this matter finally resolved.  The full chronology is set out in the prosecution opening.

6After you were originally charged, the matter was to proceed in the summary jurisdiction of the Magistrates' Court.  At the time the plea was due to be heard, the magistrate formed the view that you were unfit to plead.  The matter was then referred to this court and was subject to an unfitness to plead hearing.  That led to your referral to Thomas Embling Hospital. Earlier this month your medication regime had stabilised your condition and you were found such that the Thomas Embling could no longer offer you services and you were referred back to prison.  You then were in a position to instruct your counsel to enter a plea which occurred this morning. You had been anxious for many months to have this matter resolved and to plead guilty to the charge. 

Seriousness of the offence and moral culpability

7A plea in this matter was entered on the basis of excessive self-defence.  You had been assaulted by the complainant and you responded excessively by stabbing him and pleaded guilty to recklessly causing him injury.  Clearly, to lunge at any person with a knife is reckless conduct and likely to cause injury.  In this case it appears that the injury was not of long-term significance or life-threatening, but your conduct could have resulted in a much worse injury. You bear significant culpability for your conduct given that you have two prior convictions on charges of intentionally causing injury that were dealt with by Her Honour Judge Quin some years ago.  On the other hand, and relevant to your culpability, is that there was some provocation by the complainant in that he kicked you.

8The offence here is clearly on the lower end of the scale of injury offences and I note that it was to be dealt with summarily originally.

Personal circumstances

9Your personal circumstances are set out in the comprehensive plea submission which I incorporate by reference.  It is unnecessary for me to elaborate on them in detail, but I note that you had a long history of psychiatric illness.  Although on the medical material it appears have you received a long-acting depot injection on the day of this offending, it is not clear on the material before me whether there is to be any reduction in your moral culpability due to your condition at the time and I do not find that there was.  However, it is clear that you have a long history of psychiatric illness, namely schizophrenia and other conditions, that is referred to in the various medical reports that were before me on the fitness to plea hearings.  They are also referred to in the earlier sentencing reasons of Judge Quin. 

10On the basis of the prior history, you are not a person who is to be a vehicle for general deterrence.  Specific deterrence has some relevance, however, in sentencing. 

Sentencing disposition

11You are entitled to a discount in this matter for your plea of guilty.  It was an early plea of guilty which was to be dealt with in the Magistrates' Court and you made admissions in the record of interview.  As I have indicated, this is an offence in the lower order of injury offences and would otherwise have been dealt with before the Magistrates' Court.  Further, you have suffered significant punishment already due to the fact that the resolution of this matter has been delayed by your long-standing psychiatric condition becoming unstable right from the time you entered custody and that led ultimately to the need for a transfer to Thomas Embling Hospital in August last year and then a return to custody and then finally be coming before this court this day.

12You have been in custody for some 770 days.  Periods of this was during the COVID pandemic which makes custody more onerous.  Further, you had this period of six months in Thomas Embling from August 2023 to February this year.  Clearly, the 770 days is a very significant period of pre-sentence detention.

13In determining the disposition of this matter, I have noted the earlier report from Forensicare.  I further note that as Forensicare seek to stabilise your condition, they have been making appropriate transition arrangements.  These are set out in the assessment order, Exhibit 3, and also the report from Forensicare dated 22 February 2024, Exhibit 2, and the report from the Mental Health Advice & Response Service of this court of the same day.

14I convict you and sentence you to six months' imprisonment for the offence.  I declare that you have served 770 days’ imprisonment.  I declare that had you not pleaded guilty, I would have imposed a sentence of imprisonment of nine months.

15Mr Tang, you are receiving very good assistance in looking after your condition in the mental health system in this State.  I commend the authorities for what they have been able to do for you while you have been in custody.  I also commend them for the proactive action they have taken to ensure that upon your release from custody you are assessed so that the community can be confident that when it is determined that you are able to be returned to the community then appropriate supports will be in place to ensure compliance with your medication regime.  I would urge you to continue to co-operate with your medical advisers so that your long-standing mental health issues can be addressed and so that the community will be fully protected.

16Mr Tang, I have sentenced you to imprisonment of six months.  I've declared that you've already done it, done the six months, but Community Mental Health have determined that you need to go to the Sunshine Mental Health facility to be assessed for your condition.  You've got various conditions, so you'll be taken there now and you'll be assessed by a psychiatrist and matters will proceed, but you won't need to come back to this court or go back to Ravenhall.

17I want to thank Ms Munster for her assistance, and ask her to explain what's happened again and Ms Guesdon for her assistance in this matter, including the unfitness to plead proceedings and I want to thank the interpreter for her assistance and going out to Thomas Embling and sticking with Mr Tang over the period.  Adjourn the court sine die.

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