DPP v Le

[2000] VSC 348

SUPREME COURT OF VICTORIA
CRIMINAL JURISDICTION	Not Restricted

No. 1535 of 1999

THE DIRECTOR OF PUBLIC PROSECUTIONS

v.

TONY LE

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 August 2000
DATE OF JUDGMENT:	17 August 2000
CASE MAY BE CITED AS:	DPP v Tony Le
MEDIUM NEUTRAL CITATION:	[2000] VSC 348

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Criminal law - Sentencing - Causing serious injury intentionally, burglary and theft - Late plea after vigorous denial - Considerations applicable.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr S.M. Cooper	OPP
For the Accused	Mr M.P. Bourke	Victoria Legal Aid

HIS HONOUR:

1. Mr Le, you have pleaded guilty before me to three counts, one of burglary, one of intentionally causing serious injury and one of theft, all of which occurred on 19 November 1998 at Deer Park.  You had been arraigned before me also on a count of attempted murder arising out of the same circumstances, which count was not proceeded with by the prosecution.  You were also arraigned before me on a count of attempting to pervert the course of justice by a letter you wrote on 8 July 1999 directed at the victims of the crime.  Again, that matter was not proceeded with by the prosecution.  I put that matter completely aside, and I have ordered that it be permanently stayed.  Thus, you come before me for sentence for the three counts I have stated.  They all arose on 19 November 1998 in the home of Mrs Biet Pham in Stevenston Street, Deer Park. 

1. At the time of the offences Mrs Pham was 44 years of age, having been born on 2 May 1954, and is now 46 years of age.  You were at the time 30 years of age, having been born on 13 February 1968, and are now 32 years of age.

1. On 19 November 1998, Mrs Pham was in her home, working and listening to the SBS radio program broadcast in Vietnamese.  Your wife came to the premises and invited Mrs Pham to go shopping with her at Big W in Sunshine.  Mrs Pham innocently accepted the invitation and went to Sunshine with your wife to do shopping.  Unknown to Mrs Pham, you then unlawfully entered her premises at Stevenston Street, Deer Park, and commenced to search through them.

1. Mrs Pham returned home at about 12.30 lunch-time.  She came inside the house.  You were in the house.  She went into the kitchen, put down her purchases and was about to go into her bedroom when she saw a man in the premises, whose head was covered with grey fabric.  It had two holes cut into the front of it around the eyes.  She immediately sought to walk out of the rear door.  You, who were the person with the hood, said nothing, but as she sought to leave, you grabbed her from behind around the neck and pushed her to the ground.  You knew her, as she was a family friend.  She did not know your identity, because of your silence and your hood.  She started to scream and to yell.  You kicked her many times to her upper body.  You then took a meat cleaver, which was in the kitchen - you had not brought a weapon with you - and commenced to hit her around the head with it.  That happened a number of times and she commenced bleeding from the head.  The brave and intelligent woman then lay still on the ground, pretending to be dead.  In her words in her statement of 23 November 1999, "I then lay still on the ground and played dead."  When she was thus lying on the floor, apparently dead from your attack with the meat cleaver, you then commenced to search through the house, yet again going back into her bedroom.  When you were thus in the front section of the house, the brave and intelligent woman stood up and ran out the back of the house.  You then ran after her, caught her, punched her, knocked her to the ground, dragged her back inside and again assaulted her and hit her with the meat cleaver.  The victim did not fight back and again "played dead".  In her statement she said, "I then played dead again in the kitchen, and I think this person thought that I was really dead.  He appeared very calm and was not in a rush."   You then, with the apparently dead woman on the floor, continued about your business of searching through the house.  She could hear noises coming from her bedroom.  You then came back into the kitchen with a pair of pliers, lifted up the arm of the apparently dead woman, and cut a diamond bangle from her wrist with the pliers.  You then took a bracelet from her right wrist and two rings from her finger on her left hand which was limp, she being apparently dead.  You then forced a necklace from her neck, breaking it as you did.  You then walked "casually", to use the word in the statement of Mrs Pham, out the rear door.  After you had gone, she got up, fled next door and was removed by ambulance to the Western District Hospital. 

1. Most fortunately, the physical injuries sustained by Mrs Pham were not as substantial as they might have been.  She suffered two head lacerations, both approximately five centimetres long, one vertically over the forehead and the other transversely over the scalp, swelling and bruising over the left cheek, left shoulder and upper left chest, and a fracture of the left 6th rib,  revealed in an x-ray in the Radiology Department at the hospital.  The two lacerations of her head were sutured with five and four sutures respectively.  Having been admitted on 19 November 1998, at 1.35 p.m., Mrs Pham was discharged home on 21 November 1998.

1. Although Mrs Pham's physical injuries were not as substantial as they well might have been, she has suffered substantial and continuing psychological injury, that is, fear, trauma and emotional injury, which needs no imagination to understand.

1. Seven days later, on 27 November 1998, at about 1 p.m., your wife, from whom you had been separated from time to time, your three children, and another person - not yourself - went to the premises of the victim in Stevenston Street, Deer Park.  In your absence, your wife knelt down in front of the victim, placing her hands together and bowing, and saying, "Please forgive me."   She then asked her children also to bow, but the victim's husband stopped them from doing so and said, "They are children, they had nothing to do with it."  Those actions were in your absence and are hearsay to you, but they demonstrate the limited amount of the truth of this matter which has been revealed to the court by you.  There is much more to this story than you have told the court. 

1. The jewellery stolen by you, which has not been recovered, was estimated by the victim to be valued at approximately $5,000, having been purchased in Vietnam some twenty five years ago.

1. You were interviewed by investigating officers at the Sunshine CIB on 24 November 1998, where you steadfastly denied any knowledge of the crime or any presence at the scene, and again on 7 May 1999, in Fairfield, New South Wales, where, again, you denied any knowledge of the crime or any presence at the scene.  I have observed the video of that Fairfield, New South Wales, interview, and it is apparent that your denial was not merely formal but was an animated and vigorous denial, so much so that at question 200 the investigating officer said to you, "It's no use getting angry", as can be seen on the video at question 200 and in the depositions at p.331.

1. The matter then went to a three day committal at the Melbourne Magistrates' Court which was fully contested and in which the victim and members of her family were cross-examined.  The cross-examination of the victim occupies 39 pages of depositions.  Then the matter came before me for trial on 17 July 2000.  At that stage, as I say, there were the attempted murder and related theft charges arising from 19 November 1998 and the attempting to pervert the course of justice charge on 8 July 1999, which has now been stayed.  For three days proceedings occurred before me, in particular determining whether or not DNA evidence was admissible.  At the commencement of those proceedings I said to your counsel, who is an honourable counsel acting on your direct instructions, "Your client's defence, I presume, is that he was not there?" and he replied, "Yes": p.10, lines 7-9, of 17 July 2000.  After I had ruled, having considered the scientific evidence, that the DNA evidence connecting you with the offence was admissible against you, you then pleaded guilty to the three counts as to which you had said, from November 1998 to July 2000, you were not there.

1. I have had the benefit of a most comprehensive plea on your behalf by your counsel, who has honourably acted on your instructions.  You are the tenth of 11 children.  You are, as I say, now 32 years of age.  You came from Vietnam to Australia in 1989 in circumstances of very real difficulty.  In Vietnam you had lived in the same village as the victim.  That was a coastal village 100 kilometres north of Saigon.  You have widely travelled through Australia.  You have had regular employment.  You have no prior convictions - there was one minor matter of no consequence - and you are to be treated as a person with no prior  convictions and notably no prior convictions for violence.  You are married and have three children, a girl and two boys, respectively aged 10, 7 and 5.  It is an especial burden of your imprisonment that your connection with your wife and children has been severed.  I take that into account in mitigation of penalty, because that is a very real burden upon you, which I understand.  A distinguished psychologist , Mr B.J. Healey, gave evidence before me that you had remorse, and that your intelligence quotient as assessed by him was 75, being non-verbal 71 and verbal 81.  You suffer from no psychiatric illness or psychological disorder.  You do suffer, and in prison will suffer, by reason of your cultural background and your loss of family.  I take into account the circumstance that you have pleaded guilty before me, although at the 11th hour.  I take into account that your plea saved the victim the trauma of giving evidence, which is an important consideration in your favour.  You have some remorse, buried deep within you.  Nonetheless, it is limited and circumscribed by the history of the matter that I have recited - your vigorous denials over a substantial period of time, the very late plea, the circumstance that it was made after an adverse ruling on evidence, and the fact that the prosecution case was then very strong against you.

1. These crimes were disgraceful and frightening.  They also were very persistent.  True it is you brought no weapon to the scene, but you persisted in your dangerous, frightening conduct over a significant period of time, with the victim lying on the floor of her own kitchen, a place, her home, in which she is entitled to expect safety, particularly safety from her friends.

1. I take into account the matters so helpfully submitted on your behalf by your counsel. Pursuant to s.18(4) Sentencing Act 1991, I declare the period of 465 days that you have served in pre-sentence detention as served under the sentence I impose.

1. Mr Le, on Count 1, burglary, I sentence you to three years' imprisonment.  On Count 3, theft, I sentence you to one year's imprisonment.  I direct that the whole of the sentence on Count 3, one year, be concurrent with the sentence on burglary, three years, making a total of three years for those two counts, burglary and theft respectively.  On Count 2, intentionally causing serious injury, I sentence you to seven years' imprisonment.  I direct that two years of the sentence on Count 1, burglary, be cumulative upon the sentence on Count 2, intentionally causing serious injury, making a total effective sentence of nine years' imprisonment.  I direct that you serve seven years' imprisonment before you are eligible for parole.

1. The prisoner may be removed.

Sine die.

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