Director of Public Prosecutions v Tran

[2023] VCC 637

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 22-01835

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHILLIP TRAN

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	28 February 2023, 18 April 2023
DATE OF SENTENCE:	27 April 2023
CASE MAY BE CITED AS:	DPP v Tran
MEDIUM NEUTRAL CITATION:	[2023] VCC 637

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Charge of causing injury intentionally – stabbing of tattoo artist causing injury to hand – early plea of guilty -  diagnosis of autism spectrum disorder – consideration of possible mental impairment – positive prospects of rehabilitation – Verdins principles one and five applicable

Legislation Cited:           Sentencing Act 1991

Cases Cited:                  Worboyes v R [2021] VSCA 169; R v Verdins (2007) 16 VR 269

Sentence:24 months imprisonment. Non-parole period of 16 months imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Profitt	Office of Public Prosecutions
The Accused was not represented

HIS HONOUR:

1Phillip Phuoc Tran, I will sentence you to 24 months' imprisonment. I will set a non-parole period of 16 months' imprisonment. I will declare the 343 days of your pre-sentence as time served under my sentence.

2You pleaded guilty to a charge of causing injury intentionally. This offence carries a maximum penalty of 10 years' imprisonment.

3Exhibit A is a document entitled 'Prosecution opening upon plea'. It purports to set out the circumstances of your offending. You agree with its contents. The circumstances can be stated briefly. 

Circumstances 

4On 17 May 2022, by appointment, you attended the premises of a tattooist. One of its employees, Louis Stephenson, tattooed your upper left arm with a tattoo chosen by you. At your request, he shaded the tattoo. You left the premise after paying for the service.

5The next day, you returned to those premises. You walked up to Mr Stephenson, produced a lock-knife and thrust it into his body. You caused two cuts to his right hand and severed several tendons. This constitutes the charge of intentionally causing injury. You thrust the knife 2 or 3 more times, but Mr Stephenson blocked these thrusts. After Mr Stephenson said 'Mate, what are you doing? I’ve got kids', you stopped and left the premises.

6Mr Stephenson was taken to hospital by ambulance. He was operated upon to re-attach the tendons and blood vessels in his hand.

7After some investigation, and the execution of a search warrant, you were arrested on 19 May 2022. Owing to your behaviour, you were not interviewed. 

Victim impact statement

8On 15 February 2023, Mr Stephenson made a statement about the impact of your offence upon him. After months of treatment, he has returned to his occupation as a tattooist. However, he has not returned to his pre-injury condition. He suffers from the pins and needles sensation, numbness, restricted movements and discomfort. He has an ugly scar which can be seen easily. Having to explain how he obtained the scar brings back unwanted memories of what you did.

9His partner and two children have so reacted to what you did, they left to live interstate. He will join them in time. It represents a huge upheaval for him and his family.

Criminal history

10You have no criminal history.

Personal 

11You are 32. You were born in Sunshine. Your parents are Vietnamese. They came to Australia in the 1980s. You had an older sister, three years your senior. Your father worked as a butcher and your mother as a tailor. Despite describing your relationship with your parents and sister as not being close, you remained living with your mother until 18 months' ago. Your sister died about two years ago.

12You have had one significant relationship with a woman. It lasted about 3 years between 2013 and 2016. You have no wish to resume contact with her.

13Despite your difficulties in secondary school, you completed Year 12 even though your marks were not good. Nevertheless, you went to university to study photography but dropped out, feeling you did not fit in with the other students.

14For five years, you worked consistently as a labourer and forklift driver. You ceased working after entering a romantic relationship. For the last 10 years, you have been unemployed.

15Between 15 and 18, you started drinking alcohol. Normally, you drink little but after being depressed, you can drink heavily. You used cannabis in secondary school but stopped when you obtained employment. You used cocaine recreationally. You have not used illicit drugs since your early 20s.

16Upon your release from custody you want to live with your mother and she is prepared to have you live with her.

Psychologist

17I referred you to Forensicare for a psychological report. Kate McGregor is a clinical and forensic psychologist. She interviewed you on three occasions between 24 March and 4 April 2023 and reported[1].

[1] Report dated 12 April 2023.

18To Dr McGregor, your history and presentation was most consistent with autism spectrum disorder. She described the diagnosis as provisional. A definite diagnosis required testing which was beyond the scope of her assessment of you. 

19Relying to an extent on your mother, Dr McGregor traced your early development leading to your early sense of social isolation and failure. However, you reversed this in your early adulthood when you worked consistently and obtained a few select friends. But this level broke down during your intimate relationship because as Dr McGregor said[2]:

…it appears that the emotional and interpersonal demands of the relationship exceeded his ability to cope, resulting in him becoming overwhelmed and withdrawing from work and friends.

[2] At [39].

20Other factors led to your further isolation, complicated by your sister's death and the decline in your mother's mental health. This has led to your increased vulnerability. This vulnerability is the background to your offending.

21Dr McGregor explained the reasons for your offending as follows[3]:

…he has sought to get a tattoo to symbolise his mistrust of women and his identification with Johnny Depp. When the tattoo did not appear as he was expecting, he has fixated on this and misattributed the intention of his victim as being to mock him. Against a background of heightened levels of stress and views of others as untrustworthy, he experienced intense feelings of anger and distress. In this context of high levels of emotional arousal, he has made the decision to seek retribution and a way of regaining a sense of dignity and overcoming feelings of humiliation.

[3] At [40].

22Whether the provisional diagnosis is correct or not, Dr McGregor believes your difficulties in social communication contributed to you incorrectly perceiving hostile intent in the tattooist and to you being excessively focussed and preoccupied with this detail. Moreover, your difficulties appreciating context and regulating your impulses affected your ability to evaluate the consequences of your actions in your state of emotional arousal or anger.

23Dr McGregor noted you have already experienced conflict in the prison, being targeted by other prisoners and engaging in fights. This has resulted in moving you to a more restrictive setting in the prison.

24Once released from prison, Dr McGregor would like a proper assessment of the disorder and, if confirmed, provide access to ongoing tailored supports. Such supports would help you understand yourself and your experiences.

25She would like a neuro-psychological assessment to understand your cognitive profile. She would also like you to receive psychological treatment targeting emotional recognition and regulation, adaptive coping skills and managing ambiguous or conflictual interpersonal situations.    

Guilty plea   

26On 10 October 2022, you indicated an intention to plead guilty to the charge. In terms of timing, it occurred early in the course of the proceeding, which started when you were charged and would end, theoretically, with the verdict of a jury. 

27The plea benefits the criminal justice system by avoiding a trial. A trial takes time and is generally costly. It saves witnesses giving evidence. That would be emotionally difficult for Mr Stephenson who would need to relive the events of 18 May 2022. At the present time, it has the enhanced benefit identified by the Court of Appeal in the case of Worboyes v R[4] where the Court said:

For these reasons, we consider that — all other things being equal — a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects.  A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time.  Although a sentencing judge need not quantify the extent of any 'discount', he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.  

[4][2021] VSCA 169 at [39].

Discussion

28Section 5(1) of the Sentencing Act 1991 ('the Sentencing Act') sets out the purposes for which sentences may be imposed:

(a)   to punish the offender to the extent and in a manner which is just in all of the circumstances;

(b)   to deter the offender or other persons from committing offences of the same or a similar character;

(c)   to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;

(d)   to manifest the denunciation of the type of conduct the offender engaged in; and,

(e)   to protect the community from the offender.

29Each of these purposes are relevant to your case.

Rehabilitation

30You undoubtedly suffer from a mental impairment. Provisionally, it is diagnosed as an autism spectrum disorder. Initially, Dr McGregor recommends proper testing to determine whether you suffer from the disorder or not. Identification will lead to proper treatment. If you do not suffer from the disorder, then other counselling would be appropriate. 

31Nevertheless, you have never been imprisoned before. Your experience of prison has been unfortunate in the way Dr McGregor describes. The fact of imprisonment should be a strong deterrent for you against further offending of this kind.

32The life you led was one of increasing isolation. It has been interrupted by the fact of imprisonment. You wish to return to live with your mother. With appropriate treatment, you may rebuild your life. I would expect such treatment would be available. Overall, your prospects of rehabilitation are positive.

33Notwithstanding that optimism, I must remember the other purposes of sentencing. My sentence should serve to discourage you and other persons from committing this offence or offences of a similar character. It must serve to denounce your offence. It should also protect the community from you. It must be just in all of the circumstances.

Verdins

34Dr McGregor implicitly raises principles one and five described in the case of R vVerdins[5]. That case explains the way courts may use a person's impaired mental functioning in sentencing. Whether you suffer from autism spectrum disorder or not, she describes symptoms of your impaired mental functioning such that those principles are raised. Principle one deals with moral culpability, while principle five with your experience of imprisonment.

[5] (2007) 16 VR 269.

35On the basis of Dr McGregor's opinion, I am satisfied both principles apply to you. Your moral culpability is reduced to a degree. Imprisonment will weigh more heavily on you than on someone in normal health. Both factors mitigate the sentence I would otherwise have imposed. 

Sentence

36On the charge of intentionally causing injury, I sentence you to 24 months' imprisonment. I will set a non-parole period of 16 months' imprisonment.

37I will declare the 343 days of your pre-sentence detention as time served under my sentences. That figure excludes today.

S 6AAA

38Absent the guilty plea, I would have sentenced you to 36 months' imprisonment.

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