Director of Public Prosecutions v Van Tran, Thanh
[2012] VCC 1976
•30 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01808
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THANH VAN TRAN |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 November 2012 | |
DATE OF SENTENCE: | 30 November 2012 | |
CASE MAY BE CITED AS: | DPP v Van Tran, Thanh | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1976 | |
REASONS FOR SENTENCE
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Subject: Plea - sentencing
Catchwords: Recklessly cause serious injury, criminal damage
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence: Total effective sentence 37 months, 18 months non-parole.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms F. Holmes | Office of Public Prosecutions |
| For the Accused | Mr M. Regan | Victoria Legal Aid |
HIS HONOUR:
1 Thanh Van Tran, you have pleaded guilty to one charge of recklessly cause serious injury and one charge of criminal damage. Recklessly cause serious injury carries a maximum penalty of 15 years' imprisonment, and criminal damage a maximum penalty of 10 years' imprisonment.
2 You are presently 39 years of age, having been born on 21 April 1973, and you were that age when this offending occurred around five months ago.
3 You have an extensive criminal history, about which I will go into more detail later.
4 The victim, Bo Tran, is your nephew. At the time of the offending you were living with Bo Tran, who was then aged 24, as well as with his mother and younger brother.
5 You were employed as a labourer/painter and employed as a full-time contractor. In around May 2012 you started taking your nephew to work sites with you.
6 Between 10 and 12 July 2012 you engaged in a series of three particular assaults against Bo Tran, resulting in significant injuries. The assaults also were in the context of other repeated incidents of less serious assaulting. This conduct is represented by Charge 1, recklessly cause serious injury.
7 The assaults included slaps with open hands, punching with closed fists, kicking and assaults with building tools, including an extendable painter's pole.
8 The injuries suffered by the victim as a result of the assaults by you included bruising to both arms, to both legs and to his chest and torso area. It was subsequently discovered that he had a fractured right thumb, a fractured right hand and a ‘cauliflower ear’ requiring draining. Internal injuries were less obvious. The victim spent several days in Intensive Care at the Alfred Hospital as a result of doctors' concerns that he was suffering from organ failure as a result of his injuries.
9 On the morning of 12 July 2012, after being assaulted by you on the previous day, Bo Tran told his mother that he had been assaulted. His mother tried to run away from you. You then became worried that she would call the police, and both she and her son retreated to her bedroom. You damaged two interior doors of their house trying to get to the victim and his mother. This conduct is represented by Charge 2, criminal damage.
10 On Friday, 13 July 2012 you were arrested and interviewed, and during the interview you stated the following:
· that the victim had been making poor choices in relation to his finances and drug associations;
· that you had decided to take the victim to work with you to attempt to keep him clean from drugs;
· that for various reasons the victim would make mistakes or perform poorly and that would result in you hitting him at work sites;
· that you were acting out of love, not anger, and were frustrated at the victim but not angry;
· that you would use your hands to slap and punch the victim to the face, head and chest area;
· that you also used a paint roller to strike the victim to the legs;
· that the victim would ask you to stop and would try to cover and tense himself when being struck;
· that you had tried to help the victim but that you had gone about it the wrong way and had gone too far;
· that you did not intend to cause the victim injuries.
11 I now turn to your personal circumstances.
12 As I noted earlier, you are aged 39 years and you have an extensive criminal history which commenced with an appearance at the Heidelberg Magistrates' Court in December 1991 for car theft and driving offences when you were aged 18. You were placed on a Community-based Order, which you subsequently breached. You have since appeared several times at various Magistrates' Courts and twice at the County Court on drug, driving, dishonesty and violence offences. You were again placed on a Community-based Order in March 1999, which again you breached.
13 You were gaoled in September 1997 for nine months on drug charges, including trafficking in heroin. From 2004 there has been a disturbing repetition of violent crimes against family members, including kidnapping, threats of serious injury, intentionally causing injury and recklessly causing injury which involved a multiple stabbing. You have received gaol terms for these and other offences in 2004, 2006 and 2008. Your earlier history is more suggestive of serious drug use.
14 You were born in Vietnam and migrated to Australia with your parents in 1978 when you were five. Your mother and father are both deceased, and you have grown apart from your brothers, particularly your older brother, but remain close to your sisters Tuyet, the victim's mother, and his aunt Be.
15 Your father was very violent to both your mother, you and your siblings, and also sexually abusive to you. You performed quite well at school but remained isolated from other students. At 15 you were suicidal. You began using cannabis and heroin by age 16. By the end of high school you were a loner, with few friends, and left in Year 11. Your left home at 17, moved in with a friend, and your drug use, being mainly heroin, escalated.
16
You were involved with gangs in the late 1980s and went to gaol for the first time in 1993. Upon your release your mother took you to Vietnam and a marriage was arranged. You were together for three and a half years until your wife left. There were no children.
17 In the late 1990s you had an altercation with your father, began to use drugs and offend again, and ended up back in prison. Your mother died whilst you were in custody.
18 You were in another relationship for five to six years and have a son. Unfortunately that relationship became turbulent, you were involved in violent offending, including the kidnapping of your son, and again were sentenced to prison. During that period you began, and subsequently left, a methadone program. You now have no contact with your son other than sending birthday and Christmas cards, but have indicated a desire to redevelop that relationship.
19 Subsequent to your release you worked hard for a time as a painter's assistant and saved for a holiday in Thailand. On your return you became depressed and began using amphetamines again. You moved in with your sister, the mother of the victim, and the current offences were committed in that time.
20 You have been in custody since your arrest and have the support of your two sisters, who have visited you, a friend from the church and a former employer who is prepared to re-employee you on your release.
21
A report from Ms Pamela Matthews, forensic psychologist, was received on your plea. You have been diagnosed as having a long-term history of dysthymic mood disorder, which is a depressed mood, more days than not for at least two years. You also have a long history of substance dependence, supervening your depressed mood in the context of your traumatic early life experiences. You presented as very remorseful to your counsellor, taking clear responsibility for your actions. Ms Matthews considers that you require specific long-term intervention, both in counselling and pharmacology, for your substance abuse and rehabilitation.
22 The offences you have committed are serious. They represent repeated physical assaults over a sustained period to your relative, a nephew. Notwithstanding your stated good intentions, they were committed in an entirely misplaced context of discipline by you as a male family elder. Your victim clearly would have endured substantial pain and was seriously hurt, requiring intensive hospital care. It appears that because of your position in the family your assaults were stoically received by the victim.
23 Given your background record of offending, involving now a series of violent acts against family members in the past decade, all of which have resulted in sentence of imprisonment, principles of specific deterrence as well as general deterrence remain necessary for emphasis.
24 In mitigation I accept fundamentally that you suffer from a complex psychological profile that means you struggle to control your violent outbursts in the context of intermittent drug addiction, but with corresponding self-admonishment, regret and remorse. I accept Ms Matthews' opinion that it is probable that your early childhood development has influenced your psychological condition and subsequent drug use. You have to wrestle with significant and compelling negative and harmful emotional responses.
25 In summary, I also take into account the matters urged upon me by your counsel, Mr Regan, including the following:
· Your plea of guilty and the early stage at which it was entered
· Your realistic admissions and co-operation with the police investigation
· That you have battled with a longstanding drug problem
· You are remorseful, genuinely self admonishing, and have not sought to excuse your conduct
· You have the continuing support of your family
· You have received and continue to receive the counselling of your friend Mr Goode
· You had taken the initiative of finding and engaging in employment and have gained the respect of your employer.
26 I have considered carefully the authorities and statistical summary provided by Mr Regan. These aspects, of course, have to be considered in the context of the particular circumstances of this case.
27 The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of any victim. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
28 Your counsel has realistically acknowledged that a sentence of imprisonment with a minimum term before eligibility for parole is the only appropriate sentence for the purposes for which the sentence is imposed.
29 In my view the sentencing range submitted by the prosecution is entirely appropriate to the circumstances of your case and strikes a compassionate balance accepting your difficult past and the other mitigating matters.
30 The photographic evidence shows considerable damage to doors, and this was occasioned in circumstances of fear held by family members because of your inflamed emotions at the time.
31 Mr Tran, could you please now stand?
32 On Charge 1 of recklessly cause serious injury, you are convicted and sentenced to three years' imprisonment.
33 On Charge 2 of criminal damage, you are convicted and sentenced to three months' imprisonment.
34 Charge 1 is the base sentence.
35 I direct that one month of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1.
36 The total effective sentence is 37 months' imprisonment.
37 I direct that you serve a minimum period of 18 months' imprisonment before being eligible for parole.
38
Mr Tran, I cannot direct, but strongly advise, that you seek and undertake any therapeutic program available in custody directed to your underlying drug and psychological issues. One such program may be the Violence Intervention Program. I have some confidence that, with the continued assistance of
Mr Goode and your family, you will undertake this and other important courses. The particular period I have allowed between your eligibility for parole and the full term of your imprisonment is designed to allow for your further reformative therapy upon your release, whilst under supervision of parole.
39 Pursuant to section 18(4) of the Sentencing Act 1991, I declare that the period of 140 days, not including today, be reckoned as time already served under this sentence, and I direct that the fact of this declaration and its details be noted in the record of the court.
40 Pursuant to section 6AAA of the Sentencing Act, but for your plea of guilty the total effective sentence that would have been imposed is four years' imprisonment, with a minimum period of two and a half years to be served before eligibility for parole. You may be seated, Mr Tran.
41 Are there any other matters, Mr Regan?
42 MR REGAN: Nothing from the defence point of view, Your Honour.
43 HIS HONOUR: All clear?
44 MR REGAN: May it please the court.
45 HIS HONOUR: Thank you. I will just wait. Make it 10.45 for the appeal. Thanks very much Ms Holmes, Mr Regan.
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