Director of Public Prosecutions v Vuong & Hua
[2024] VCC 130
•20 February 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted |
Case No. CR-23-00714
CR-23-00715
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VICTOR VUONG and LILY HUA |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 October 2023, 15 December 2023 | |
DATE OF SENTENCE: | 20 February 2024 | |
CASE MAY BE CITED AS: | DPP v Vuong & Hua | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 130 | |
REASONS FOR SENTENCE
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Subject:SENTENCE -CRIMINAL LAW
Legislation Cited: Sentencing Act 1991 (Vic)
Sentence: Vuong – 18 month Community Corrections Order with conditions including 150 hours of community work; 6AAA declaration – I would have imposed a sentence of 2 years imprisonment with an order for parole eligibility.
Hua – 12 month Community Corrections Order with conditions including 80 hours of community work; 6AAA declaration – I would have imposed a sentence of imprisonment with parole eligibility.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Dickens | Office of Public Prosecutions |
| for Offender Vuong For Offender Hua | Ms N. Menegas Ms M. Sargent | Theo Magazis & Associates Janice Quan & Associates |
HER HONOUR:
Introduction
1Victor Vuong, you have pleaded guilty to one charge of aggravated burglary, involving an offensive weapon, which carries a maximum penalty of 25 years’ imprisonment or 3,000 penalty units; and one charge of causing injury intentionally, which carries a maximum penalty of 10 years’ imprisonment or 1,200 penalty units.
2Lily Hua, you have pleaded guilty to one charge of aggravated burglary, with person present, which carries a maximum penalty of 25 years’ imprisonment or 3,000 penalty units; and one charge of common law assault, which carries a maximum penalty of five years’ imprisonment or 600 penalty units. The circumstances in which you came to commit those offences are set out in the summary of prosecution opening for plea dated 12 September 2023 (Exhibit A). The prosecution also relied on plea submissions dated 14 December 2023 (Exhibit B).
3In addition to matters developed in oral argument, Mr Vuong, your counsel relied on:
· defence submissions on sentence dated 13 December 2023 with chronology (Exhibit 1);
· psychological report of Dr Paul Grech dated 12 October 2023 (Exhibit 2);
· counselling report of Hien Bui dated 13 October 2023 (Exhibit 3);
· letter of Dr Cung Tran dated 5 October 2023 (Exhibit 4);
· psychosocial report of Hien Bui dated 13 October 2023 (Exhibit 5);
· psychological report of Dr Paul Grech dated 12 October 2023 (Exhibit 6);
· medication letter of Dr Cung Tran dated 5 October 2023 (Exhibit 7);
· psychological report of Gina Cidoni dated 11 December 2023 (Exhibit 8);
· bundle of character references (Exhibit 9).
4Since the conclusion of the plea in mitigation of penalty I have received community correction order assessment outcome report dated 8 January 2024 with attached mental health advice and response service report, which I will now receive and mark into evidence as Exhibit 16.
5Lily Hua, in addition to matters developed in oral argument your counsel relied on:
· outline of submissions dated 13 October 2023 (Exhibit 10);
· psychological report of Dr Paul Grech dated 12 October 2023 (Exhibit 11);
· updated clinical psychological report dated 31 October 2023 (Exhibit 12);
· medical letter of Dr Cung Tran dated 28 September 2023 (Exhibit 13);
· bundle of character references (Exhibit 14);
· bundle of temple photos (Exhibit 15).
6Since the conclusion of the plea in mitigation of penalty, I have received community correction order assessment outcome report dated 8 January 2024 with attached mental health advice and response service letter, which I now receive and mark as Exhibit 17.
7And I have also received employment letter from Fresh X Produce dated 16 October 2023 and payslip, which I now receive and mark as Exhibit 18.
8I have had careful regard to all exhibited documents, as well as to the matters addressed in the oral plea in mitigation of penalty in respect of each of you.
Circumstances of your offending
9Ms Hua, you are the aunt of the primary victim, Ngoc Hua. Others present in the house at the time of each of your aggravated burglaries were her husband, Phu Nguyen, and their two children who were then aged 12 and 13. At the time of your offending, Ms Hua, you had been estranged from the victim for approximately six years.
10As background to your offending, on 21 August 2022, the victim Ngoc Hua, and you Lily Hua, saw each other for the first time in about six years when you both attended a mutual family member's home to visit a sick family member. Apparently, the victim declined to hug you, Ms Hua, on account of an historical issue, which led to an altercation between you at this address. You found this humiliating, upsetting and eventually enraging.
11Between 21 and 22 August 2022, you, Ms Hua, began sending text messages to the victim in an attempt to threaten and intimidate her. You also telephoned her three times on 22 August 2022, however, she did not answer these calls.
12On the day of your offending, 22 August 2022, at approximately 4.30 pm, the two of you, Mr Vuong and Ms Hua, attended the victim’s home at an address in William Street, St Albans with a speaker and microphone. You, Ms Hua, stood outside the house and began to shame your niece using the speaker and microphone, speaking the Vietnamese language.
13Your victim, Ngoc Hua, filmed you, Ms Hua, on her mobile phone as you were shouting into the microphone paired to a loudspeaker so that the street could hear your accusations. After about four or five minutes of this, you, Ms Hua, began filming on your own mobile phone and approached the victim moving from the end of the driveway towards the front porch area where she was standing. About halfway towards the door you began to run towards her.
14Your victim, Ngoc Hua, tried to retreat inside her home but she was caught by you, Ms Hua, who entered the house. This is the offending referable to your charge of aggravated burglary with a person present. Ms Hua, you then hit your victim with the microphone and continued to assail her into the front hallway of her home, which is the offending referable to your second charge of common law assault.
15Ms Hua, you were closely followed by you, Mr Vuong, who entered behind your wife and at the time you had in your possession a claw hammer in your right hand. This is the offending referable to your charge of aggravated burglary, and at the time you had with you the offensive weapon being the hammer. Here I interpolate that it is not alleged that you, Ms Hua, had knowledge of you, Mr Vuong, being in possession of the claw hammer on entry to the house nor your intention to use it.
16You, Mr Vuong, raised the claw hammer above your head and your victim feared that she was about to be hit and raised her arm to defend herself. You, Mr Vuong, struck the victim to her head with the claw hammer, then kicked her to her chest causing her substantial general pain to her body and lacerations to her head, which is the offending referable to your second charge of intentionally causing injury.
17The victim’s husband, Phu Nguyen, managed to restrain each of you and shepherded you up the front hallway of the premises, out the front door and onto the front porch. You, Ms Hua, then broke free of Mr Nguyen’s grip and re-entered the address to continue to assault your victim with the microphone. The victim’s son, then aged only 13, was able to grab onto you, Ms Hua, in a bear hug and he wrestled the microphone from you.
18The two of you then retreated to your vehicle and left.
Investigation and interview
19Your victim’s young son contacted Triple 0 to seek assistance. A number of police members attended at the scene and the microphone and claw hammer were located, seized, and secured into police custody.
20Your victim was then conveyed to the Sunshine Hospital and was treated for her injuries.
21On 26 August 2022 police executed a search warrant at your address and you were each arrested and a telephone interpreter was used while police informed you of your right to silence, and other rights, and the explanation of the search warrant. You were then interviewed by police.
Effect on the victims
22In this case I have not been provided with victim impact statements, but as I have said, as a result of your offending against her, Mr Vuong, the victim sustained lacerations to her head and general pain to her body. Moreover, in respect of each of you, I infer and take into account that this was a distressing, frightening, and traumatic event for each of your victim’s family, occurring as it did in their private home.
Pleas of guilty and timing
23You were each charged following your arrest and the matter proceeded through the committal stream of the Magistrates Court. On 8 March 2023, at committal mention, each of your matters was listed for committal hearing to proceed on 5 May 2023. However, on 28 April 2023, you, Ms Hua, resolved your matter by indicating your intention to plead guilty to the proceeding charges and on 3 May 2023, you, Mr Vuong, indicated your intention to do the same. On 5 May 2023 you entered those pleas of guilty before the Magistrates Court and the matter was committed on your pleas to this court.
24I take into account in mitigation of sentence your pleas, which were entered at a point close to the earliest opportunity for you to enter those pleas, and also that you entered those pleas at a point which saved the witnesses the stress and inconvenience ever of needing to give evidence against you, and also saved the court and the community the time and expense of a trial on this indictment.
25Each of these pleas is significant in its own right but they are also of special significance in the era in which those pleas were entered where the effects of the Covid-19 pandemic continued to linger upon the listing of trials. They were of significant utilitarian benefit and I mitigate sentence on that basis. I also mitigate sentence on the basis of the remorse that each of you has experienced in connection with this matter, reflected by those pleas and also expressed to your family, friends, and team of doctors and counsellors.
Personal circumstances
26Mr Vuong, you are now aged 55 years of age. At the time of your offending, you had no prior convictions and were otherwise a person of good character, which I take into account in significant mitigation of penalty.
27You were born in Saigon, South Vietnam, during the Vietnam war. You were one of 11 children born to your parents. I am sorry to say that you experienced a difficult childhood living under poor conditions. When you were aged eight your father was imprisoned for five years and you lost two brothers to Dengue fever when you were a child.
28You were educated to Grade 5, then, as the first son of the family, you were expected to work to support your family and you commenced work at the age of 10. At the age of 19 you arrived in Australia by boat and then you spent 15 months in a refugee camp before the Christian Relief Agency sponsored you, and you are now a proud Australian citizen.
29On your arrival in Australia, you spoke no English and you started living in the commission flats and undertook factory work.
30Ms Hua, you are now 57 years old, and like your husband you have no prior convictions and were otherwise of good character at the time of your offending, which I also take into account in significant mitigation of penalty.
31You were born in a fishing village in Vietnam, the sixth child in a sibship of eight. Your family could not afford to educate you and so at an early age you learned to mend fishing nets and did chores to assist the family.
32You arrived in Australia as a refugee in 1990.
33At this point you met one another, when you, Mr Vuong, were aged 21, and you, Ms Hua, were of a similar age. You settled into a rental property in Preston and after five years you purchased your own home in St Albans where you remain.
34You share a daughter aged 36 who is married and living independently, and a son aged 22 who lives with you. You have a close circle of family and friends who continue to support you.
35Ms Hua, your English is very limited but that has not prevented a career of hard work as a cleaner, a seamstress in factories, and in restaurants. You currently work in a factory as a vegetable picker. You also donate to the temple and regularly volunteer at the temple.
36Mr Vuong, you are also a hard worker and in 2012 to 2013 you borrowed money against the family home and you purchased a Volvo truck for $125,000, and you have worked full-time as a truck driver ever since. You both support family in Vietnam, and Mr Vuong I am told that you regard yourself as having been blessed in coming to Australia.
37Mr Vuong, I have received your medical records and I understand that in 2013 you were diagnosed with Hepatitis B and you have previously experienced anaemia and shingles. In 2018 you were diagnosed with Type 2 diabetes and in 2019 with hypercholesterolemia. You experience significant anxiety, and you are currently treated with Aropax and you have also sought counselling for your condition, which I commend you for. Your counsellor, Mr Hien Bui, informs me that you arrive at your appointments early, you appear to him to be sad and worried, you are very cooperative in every session and to him you show honest signs of remorse for your offending.
38You were also assessed by Dr Paul Grech in the lead up to this hearing and Dr Grech notes a history of depression and reports as well that you are adhering to your prescribed medications and you have engaged well with Mr Bui. You expressed your remorse to Dr Grech and he considers you to be utterly ashamed and highly remorseful. Dr Grech has assessed you as being at low risk of reoffending.
39Gina Cidoni, psychologist, also assessed you, Mr Vuong, and has told me that you would in her opinion satisfy the diagnostic criteria for major depressive disorder and post-traumatic stress disorder. You continue to have intense anxiety, emotional exhaustion, and reduced motivation. She recommends that you continue counselling in respect of these symptoms but also with a view to receiving assistance for the severe and lasting trauma that you experienced in your childhood during the war, and in your journey to Australia.
40In reading the character references provided by your loyal supporters, I am struck by their characterisation of you as a person who is ordinarily kind, compassionate and empathetic to others. To them you are a loyal and helpful friend, an active community member, a very good worker and a person who regrets his actions.
41Ms Hua, I am sorry to say that you have a complex mental health presentation, including that you attempted suicide about five years ago which led to inpatient hospital treatment, and you have experienced recurrent auditory hallucinations. I have the benefit of a number of reports prepared by experts, and Dr Grech has told me that you suffer from severe clinical depression which is exacerbated by family disharmony, and the legal ramifications of the case before me. You are at present on anti-depressant medication, namely, Lexapro and Lorazepam, and in the past you have been prescribed the anti-psychotic medication Seroquel. To Dr Grech, given your history, it was unclear why you were only prescribed a low dose of anti-depressant medication and a benzodiazepine, and to him it was unclear whether any measures were in place in relation to stabilising your mood, or treating your auditory hallucinations. To Dr Grech you require intensive psychiatric treatment and regular clinical psychological input.
42Dr Grech assessed you as a low risk of reoffending and any risk of reoffending could in his view be ameliorated by intensive psychiatric and psychological therapy, with an emphasis on mood stabilisation and anger management and control. I also have the benefit of references tendered by those who know you best who describe you as caring and affectionate, reliable, trustworthy and decent.
43Here I interpolate that the Office of Corrections agrees with Dr Grech’s assessment, that each of you is at low risk of reoffending.
44Your son, Peter Hua, wrote me a letter in support of both of you and he has told me candidly that your actions were, in his view, the result of each of your untreated mental health conditions. He knows you as kind and loving individuals and not inherently violent. He has told me that you have valiantly coped with your shared responsibility to maintain jobs, provide for the family, and create a nurturing environment for your children whilst also coping with your mental health issues.
45Your son Peter also described vividly your journey to Australia as being one of resilience, sacrifice, and the pursuit of a better life, marked by challenge in the early years after your arrival which have weighed heavily on you. You are remarkably hard workers, he says, and have achieved success. Peter has also told me of your remorse.
46Importantly, Peter has told me that since this incident you have each sought therapy to confront your past traumas and have embarked on a process designed to change your mental health for the better. He describes this offending as the “culmination of unresolved internal struggles that regrettably manifested in harmful ways”.
47In respect of each of you, I consider that your fragile mental health would mean that a sentence of imprisonment would weigh more heavily upon you than a person in full health, and I have not only mitigated sentence on that basis, but I have taken it into account in determining the type of sentence that I am obliged to impose.
Objective gravity of your offending; moral culpability
48I will begin by discussing the seriousness of your offending before turning to your motivation.
49Ms Hua, your offending is serious in that you attempted to shame and embarrass your niece by speaking into a loudspeaker outside her home. You then entered her home, which is a place where she should feel safe, and you assaulted her. Your offending menaced not only her, but her husband, and young teenage children, and I need to tell you that offending is serious and unacceptable. I understand your sense of humiliation, and distress, but this was far from acceptable behaviour on your part.
50Mr Vuong, you reacted to the situation that your wife had created, by taking a hammer, and entering the victims’ home, apparently in a mixed effort to prevent a further escalation, but your emotions were also mixed as a result of your stress and worry about the situation created by your wife. Instead of calming the situation down, as you ought to have, you escalated the matter considerably by entering the house with this weapon. And I make the same comment to you as I did to your wife which is that a person's private home is a place where they are entitled to feel safe. Once you entered the victim’s home you attacked your wife’s niece in the presence of her family, causing her injury whilst using a weapon. This is serious, violent offending, which is not in your nature and must not be repeated.
51However, I must now turn to my assessment of your moral culpability, and this allows me to conduct a more nuanced analysis of the scene as you perceived it.
52Ms Hua, you perceived that your niece was blameworthy for rejecting your efforts at reconciliation at your younger sister’s house, at a time when your father’s health was rapidly declining, which caused you to feel disappointed and humiliated. In the days following you became even more passionate about your disappointment. I view this perception of your niece’s behaviour against the backdrop of your complex mental health presentation, which may have contributed to your perception and understanding of the events and which may have caused you to behave in this out-of- character way. I understand that you have respected and complied with an Intervention Order which has restricted you contacting your victims ever since your offending and I am prepared to infer that your offending was very much situationally motivated and is unlikely to recur, especially now that you are treated for your psychological condition.
53Mr Vuong, your moral culpability for your offending is also influenced by your having seen a situation instigated by your wife spiral out of your control, and so, in the context of your vulnerable mental health, you also reacted uncharacteristically for you in this very violent and intrusive way. You too have complied with the intervention order against you and I am also prepared to infer that your offending was situationally motivated.
54Your offending has caused each of you deep shame and the court process has been of strong salutary effect upon you. In light of your mature age, and your very good character leading up to this offending, and also the unfortunate triggering of each of your vulnerable mental health in the lead up to the event, I am prepared to infer that each of your prospects for rehabilitation is very good.
Purposes of sentencing, sentencing submissions and relevant sentencing principles
55In cases of this nature the need for general deterrence is high. In other words, I am required to send a message to the community generally to deter others from engaging in this type of behaviour. I also attach some weight to specific deterrence. I must denounce your behaviour and punish you for your offending.
56I am also obliged to attach weight to the sentencing purpose of rehabilitation and in each of your cases your legal representatives urged me to consider imposing community corrections orders, which allow for your continued rehabilitation for your mental health issues, and also allowing for punishment.
57Mr Vuong, you were assessed by the Office of Corrections, and they report that you engaged well throughout the assessment and were forthcoming with questions asked of you. I note that to the registered nurse who carried out the mental health advice and response service assessment, you presented with having a mild mental health problem or difficulty. You indicated your consent to such an order being made if I were willing to do so.
58Ms Hua, you were also assessed as suitable and you also presented with a mild mental health problem or difficulty, and you also indicated your consent to the imposition of such an order.
59After careful reflection, I will indicate that whilst I agree with the prosecution contention as to the characterisation of the seriousness of your offending, I am prepared to place each of you on a community correction order with appropriate conditions.
Sentence
60Mr Vuong, on your charges of aggravated burglary and intentionally causing injury, you are convicted and sentenced to a community correction order which will run for a period of 18 months from today. I order that you undertake 150 hours of unpaid community work and that you be assessed and treated for your mental health and offence-specific programs as recommended by the Office of Corrections.
61Are you prepared to agree to entering into that order?
62OFFENDER VUONG: (Through interpreter) Yes, Your Honour.
63HER HONOUR: Thank you. The order will be available for you in a moment, the terms will be explained through the interpreter and I will trouble you to sign it before you leave. You will need to attend the Office of Corrections within two business days. Thank you, so you may be seated.
64Ms Hua, you don't need to stand, that's all right.
65Ms Hua, on your offences of aggravated burglary and common assault, you are convicted and sentenced to a community correction order to run for a period of 12 months with conditions that you attend for 80 hours' community work and undertake treatment and rehabilitation for your mental health.
66Are you prepared to agree to me making that order against you?
67OFFENDER HUA: (Through interpreter) Yes, Your Honour.
68HER HONOUR: Like your husband, you will need to attend the Office of Corrections within two business days, before Thursday. The form will be available for you to sign in a few minutes. The terms will be explained to you through the interpreter.
69In each of your cases, all hours of assessment and treatment are to be credited towards your community work obligation.
70Mr Vuong, were it not for your pleas of guilty, had the matter proceeded to trial but resulted in guilty verdicts, the sentence that I would have imposed would have been two years and six months' imprisonment with an order for parole eligibility.
71Ms Hua, were it not for your pleas of guilty to the charges, had the matter proceeded to trial but resulted in guilty verdicts, I would have imposed a sentence of 18 months’ imprisonment with parole eligibility.
72Are there any ancillary orders sought?
73MS DICKENS: I'll just confirm, Your Honour.
74HER HONOUR: Disposal of the claw hammer.
75MS DICKENS: I'll just confirm, it occurs – the copy of the opening that I've got doesn't indicate so, but it occurs to me that there were items seized and generally they'd be subjected to a disposal order.
76HER HONOUR: It should be the hammer and the microphone. My associate's just mentioned that there might be a disposal order already on the system.
77MS DICKENS: Yes, I have a vague recollection that – generally I would have already given it - - -
78HER HONOUR: The microphone and the hammer, yes. I can't imagine either of you need to be heard on that.
79MS SARGENT: No, Your Honour. There was some discussion about some phones and other things but if it's just the microphone and the hammer there's obviously no issue.
80HER HONOUR: As I understand it the only order that we have is disposal. So no forfeiture – it sounds like the phones will be forfeit rather than disposal.
81MS SARGENT: Yes, Your Honour.
82HER HONOUR: And I don't - - -
83MS DICKENS: There's another large (indistinct).
84HER HONOUR: Would you mind reading out the things on that other - - -
85MS DICKENS: Yes, the microphone, claw hammer, runners, puffer jacket.
86MS SARGENT: No, I think we negotiated - - -
87MS DICKENS: That's the old one - - -
88MS SARGENT: Yes, there should just be one order with the claw hammer and the microphone, everything else that's been seized - - -
89HER HONOUR: That's fine, so it sounds like that was an earlier draft, that was superseded by the - - -
90COUNSEL: Does Your Honour need a new one, we do have - - -
91HER HONOUR: We have a later one that I can sign. Yes, that's fine. Now were there any other orders that I ought to have made that I might have overlooked?
92MS DICKENS: No.
93MS MENEGAS: No further orders, Your Honour. There's just one matter I seek amendment on or clarification - - -
94HER HONOUR: Yes, of course.
95MS MENEGAS: In respect of the claw hammer, when Your Honour referenced the objective gravity in relation to Mr Vuong, if I'm correct in taking my notes, Your Honour indicated that Mr Vuong reacted to the situation his wife had created by hastily taking an item from his car, being the claw hammer, and entering into the victim's home.
96HER HONOUR: Yes.
97MS MENEGAS: It was not the crown case that the claw hammer had been in my client's possession earlier or that it came from the car, it was the crown case – and I'm just looking at the - - -
98HER HONOUR: So in that case why don't I just make an amendment before I've signed the order by indicating – by taking 'a hammer' – 'by taking a hammer and entering the victim's home.' We can re-open the plea, if you wish, but I can indicate categorically that it wouldn't have made a difference because I had intended there to speak to the spontaneity of the moment rather than actually suggesting that that was an aggravating factor.
99MS MENEGAS: And I understand it's of little consequence, or no consequence, but I thought - - -
100HER HONOUR: Yes, I am pleased you corrected me - - -
101MS MENEGAS: I'd raise that as a matter of record.
102HER HONOUR: Any other factual corrections are always most welcome before I've signed the order. Nothing else then – okay. So I'm going to stand down for a moment so that I can sign the orders. I will just oblige counsel to wait for a moment in case there's any questions in relation to the orders – the conditions of the order, which as I have mentioned, I would prefer be explained to each accused via the interpreter before they sign. Thanks to all.
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