Director of Public Prosecutions v Tang

[2018] VCC 1239

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 17-00024

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAY PHUONG TANG

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	6 June 2017, 8 August 2017, 2 February 2018, 19 March 2018, 27 April 2018
DATE OF SENTENCE:	14 May 2018
CASE MAY BE CITED AS:	DPP v Tang
MEDIUM NEUTRAL CITATION:	[2018] VCC 1239

REASONS FOR SENTENCE

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Subject:

Catchwords:  Intentionally causing serious injury

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Aplin	Office of Public Prosecutions
For the Accused	Mr D. Gibson	Victoria Legal Aid

HER HONOUR:

1Say Phuong Tang, you have pleaded guilty to two charges of recklessly cause serious injury. By way of background, after an investigation was held under part 2 of the Crimes (Mental Impairment and Unfitness to be Tried) Act, you were found unfit to be tried on 6 June 2017.  At that time, on the basis of the medical evidence before me, I determined that you were likely to be fit within 12 months.

2The matter was therefore adjourned, and you were remanded in custody.  As anticipated, you became fit, and you pleaded guilty to these charges when you were arraigned on 27 April 2018.  The maximum penalty for intentionally recklessly cause serious injury is 15 years.  The circumstances of your offending are set out in the prosecution opening, Exhibit A, and can be summarised as follows.

3On 19 August 2016, you were living with your brother, his wife and child, and your parents in North Melbourne.  You were in the kitchen with your sister-in-law, and you picked up a meat cleaver which was on the kitchen bench.  You then struck her with it, saying, "Chop, chop, chop, you die."  Your brother, hearing his wife's calls for help, went to the kitchen where you proceeded to attack him with the meat cleaver.  You then left the flat with the meat cleaver.  Your brother called the police.  He and his wife then collapsed, both of them were bleeding heavily.  You went to your niece's flat, and she took the meat cleaver off you, and shortly after you were arrested by police.

4Both your brother and sister have suffered serious injuries.  Ms Huang was hospitalised for over two weeks with various injuries, including two amputated fingers to her left hand, one partially amputated finger to her left hand, lacerations to her left forearm, right hand, nose, face, and head, and chipping of her ulna.  She received various treatments at the hospital for her injuries, including stitches for her lacerations and a blood transfusion for acute blood loss anaemia.  The injuries left permanent scars to her forehead, cheeks, nose, arms, and head, as well as the loss of two fingers and the tip of one finger to her left hand.

5Mr Tang was hospitalised for about three days with injuries that included damage to the nerves and tendon of the fifth finger on the right hand, lacerations to the left forearm, left hand, head, and face.  His treatment at the hospital included surgical operations on his injuries.  He has permanent scars to his mouth and forehead, and to his forearm and hand.

6I received victim impact statements from both your sister-in-law and brother and take their contents into account.  Ms Huang has suffered significantly, with embarrassing scarring to her face, and she experiences great difficulty and pain in relation to her left hand, fingers, and forearm.  She is unable to carry out her usual work duties and other daily tasks that she used to enjoy.  She suffers nightmares and has concerns regarding her young daughter, who fully understands what happened.  She is apprehensive and worried about the impact this has had on her and is scared about future contact with you.  Similar sentiments and concerns are expressed by your brother.  Both of their lives have changed dramatically.

7You were arrested on the day of this offending and remanded in custody.  Medical opinion was that this offending occurred whilst you were suffering a psychotic episode in the context of poor compliance with your medication.  You were experiencing delusional and persecutorial thoughts regarding both your sister-in-law and brother.

8There were aggravating features of your offending.  It involved two victims, one of whom was trying to assist the other.  You used a weapon:  a meat cleaver.  The injuries suffered, particularly those of your sister-in-law, were permanent, involving a loss of fingers and limited use of her left hand, as well as scarring.  The offending occurred in their flat and whilst their ten-year-old child was at home.  Your actions were unprovoked.

9Ordinarily, this offending would involve a substantial term of imprisonment.  However, I accept that your conduct was not the result of a rational decision by you to attack your family members; your conduct was bizarre.

10It is essential to have an understanding of your psychiatric history and current presentation in determining your sentence.  Various reports have been provided to me in the course of these proceedings:  reports of Associate Professor Andrew Carroll, consultant forensic psychiatrist, dated 4 April 2017 and 1 January 2018; report of Dr Anne Brennan, consultant forensic psychiatrist, dated 29 May 2017.

11In 2004, you were admitted as an involuntary patient at the Royal Melbourne Hospital and diagnosed with paranoid schizophrenia.  On release, you were medicated and treated in the community.  You were under the care of a private psychiatrist and medicated with varying dosages in the years following up until the commission of these offences.  As noted above, it is suspected that at the time, you were non-compliant with medication.  You declined psychiatric medication when you were arrested and placed in custody on 19 August 2016.

12You were certified as an involuntary patient under the Mental Health Act on 15 February 2017.  You continued to have periods of active psychosis between December 2016 and April 2017 and were not medicated.  It was reported by Professor Carroll in April 2017 that you currently suffer with an active untreated schizophrenic illness, and that your mental processes are disordered.  You were at that time, then, unfit to stand trial, but given your past responsiveness to anti-psychotic medication, this was not a permanent state of affairs, and if you were able to receive treatment, you would be fit to stand trial within a period of 12 months.

13Since 26 July 2017, you have been treated at Thomas Embling with injectable anti-psychotic medication.  It is reported that you have responded well to the treatment, with your psychotic symptoms no longer present.  As to your current situation, on 20 February you were moved to St Paul's Unit at Port Phillip Prison.  Your counsel submitted, and the prosecution conceded, that given your mental state at the time of the offending, the principles in Verdins were applicable; that is, that at the time of the commission of these offences, you were suffering from a mental disorder.

14It is highly likely that you had ceased your medication and that you were suffering psychotic symptoms; you have a longstanding diagnosis of paranoid schizophrenia.  I am satisfied that all of the limbs of Verdins are enlivened, that principles of specific and general deterrence should be moderated, that your moral culpability for this offending be reduced, and that you are likely to find custody more burdensome than someone without your mental illness.  You have pleaded guilty to these matters at a time when you were considered capable to do so.  I accept your guilty plea significantly facilitated the course of justice and has a utilitarian benefit.  None of your family were required to give evidence and relive this traumatic incident.  Your presentation is such that it is difficult to ascertain whether you are remorseful for your conduct.

15You are currently aged 38 and were raised in Vietnam with ten siblings.  You are the youngest child.  You had a happy and uncomplicated childhood, and your mother ran a small business.  Your family came to Australia when you were aged 12.  You struggled at school and have never mastered the English language.  You have only ever been employed short-term with labouring jobs and have not worked for the last ten years.  You have no relevant prior convictions.

16As noted by Professor Carroll, the prospects of your rehabilitation and the likelihood of you re-offending are contingent upon ongoing treatment of your illness.  He is of the view that if you are treated in a manner which ensures long-term compliance with injectable anti-psychotic medication, the risk of you re-offending will be low.  Professor Carroll expressed concern about the availability of optimal treatment for you in the community or that you would fully cooperate with rehabilitative services.  Clearly, your risk to the community is dependent on you remaining compliant with anti-psychotic medication. 

17Your counsel submitted that a term of imprisonment was warranted and referred to the time of approximately one year and nine months that you have already spent in custody.  It was submitted I should tailor a sentence that allowed for you to be released on a community correction order in the near future; alternatively, that I should impose a sentence with a non-parole period that allows for extended supervision upon reintegration into the community.  I indicated in the course of argument, the latter was the course that I proposed to adopt.  I was referred to a number of similar cases involving serious injuries perpetrated by a weapon, and where Verdins applied; however, it was conceded that none of these were such where the level of impairment or functioning was equivalent to your situation.

18Clearly, each case depends on its own circumstances, and in this instance, the personal circumstances or traits of the offender.  Community protection remains an important sentencing consideration.  This must be balanced with matters personal to you and particularly the application of Verdins.  I accept you will require close supervision in the community to ensure your compliance with anti-psychotic medication and thus reduce the risk of you reoffending.

19If you could please stand, Mr Tang.  In respect of Charge 1, recklessly cause serious injury, you are convicted and sentenced to a term of imprisonment of four years.  In respect of Charge 2, recklessly cause serious injury, you are convicted and sentenced to a term of two years.  One year of the sentence imposed on Charge 2 will be cumulative on that in respect of Charge 1, which gives a total effective sentence of five years.  I will set a non-parole period of two years.

20Pursuant to s.6AAA of the Sentencing Act, I would have imposed a sentence of seven years with a non-parole period of four years, although I note that it is not really appropriate in the circumstances of this case, in any event.  Did I make the 464 and the disposal orders?

21MS APLIN:  Previously, Your Honour.

22HER HONOUR:  I have already made them, yes.  And what is the PSD, please?

23MS APLIN:  It is 633 days not including today.

24HER HONOUR:  Okay.  And I declare pre-sentence detention of 633 days.  So, Mr Gibson, I think that leaves a bit over three months more before he is eligible for parole.

25MR GIBSON:  Yes, Your Honour, thank you, yes.

26HER HONOUR:  Okay, thank you.  Thank you, I will just stand down.

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