DPP v Nguyen
[2000] VSC 194
•9 May 2000
| SUPREME COURT OF VICTORIA |
CRIMINAL JURISDICTION
No. 1602 of 1998
| THE DIRECTOR OF PUBLIC PROSECUTION |
| v |
| CANH XUAN NGUYEN |
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JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATE OF SENTENCE: | 9 May 2000 | |
CASE MAY BE CITED AS: | DPP v Canh Xuan Nguyen | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 194 | |
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Criminal Law – Sentencing – Intentionally causing serious injury – Damage to property – Accused to give evidence for prosecution – Undertaking – s.5(2AB) Sentencing Act 1991 – Considerations applicable.
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APPEARANCES: | Counsel | Solicitors |
For the DPP | Mr J.D. McArdle, QC | OPP |
| For the Accused | Mr B. Stafford | Victoria Legal Aid |
HIS HONOUR:
Mr Canh Nguyen, you have pleaded guilty before me to one charge of intentionally causing serious injury to Binh Xuan Phan, and one charge of damaging his motor vehicle at North Melbourne on 1 March 1998.
The history of the matter briefly is this. A number of friends and acquaintances had the habit of meeting together in the suburbs of Melbourne and in late 1997 an incident occurred which caused offence or was taken to have caused offence. As a consequence a number of foolish actions of an escalating sort occurred between a number of the friends and acquaintances in that group. On Saturday night, 28 February 1998, you and others were attending a Vietnamese wedding and had consumed an amount of alcohol and you and they in two vehicles left the wedding at about 12.30 a.m. On the Sunday morning, 1 March 1998, having decided to attend at the premises of the victim, Binh Xuan Phan, at Canning Street, North Melbourne, you and a group of men there attended. The victim and his wife resided at 76 Canning Street, North Melbourne in an upstairs flat. His Toyota vehicle was parked at ground level. The vehicle was damaged, the tyres were slashed and other damage was done to the vehicle and two persons in the group went upstairs and commenced banging on the door of the flat of the victim. He and his wife were inside. Ultimately and understandably the victim came out with a towel rail, being a metal towel rail, for self protection. He went downstairs, whereupon after a fight between him and the men, he was set upon and ultimately was stabbed at least three times by you when he had been overpowered by the other men. The wife bravely then came down and all of you ran away. The victim was taken immediately to hospital where he was operated on for at least three stab wounds to which I shall return.
You and one other were promptly arrested and on 2 March you were charged, having been interviewed, with attempted murder. You were the subject of a committal proceedings along with other accused - to whom I shall shortly turn - and you were committed in September 1998 on that and other charges. Last year in this court on three occasions the matter came on for trial of you and the other two persons on the charge of attempted murder and other charges. By reason of difficulties with an overloaded list in the court, on each occasion the trial was not able to proceed through no fault of yours.
Ultimately on 1 March this year the matter came on before me. You pleaded guilty to intentionally causing serious injury, I having permitted a presentment to be filed with that charge on it rather than the attempted murder charge which was not proceeded with - correctly in my view.
Mr Nguyen, you are now 29 years of age having been born on 3 April 1971 in Hue, Vietnam. You are the child of parents who are still alive and in Vietnam. You come from a family of fishers who placed great value upon education, and rightly so. At the age of 16 in Hue you were studying at equivalent of year 11 successfully and working part-time to assist the family fishing. On an occasion when you were 16, you were unexpectedly the subject of removal when you were fishing and against your will placed in a refugee camp in Hong Kong. You there were held for two and a half years, working in that refugee camp and subject to the extreme dislocation such a situation would be to a 16 year old person taken from the family and his home and culture. After two and a half years you were sent to Australia and you arrived here at 19 and a half years of age.
You have been in Australia a commendable student. At Maribyrnong Secondary College you completed HSC. You commenced a maths/science course at RMIT and you are to be commended for the efforts you have made consistent with your family's value in education. Your maths/science course was disrupted by this proceeding and although you have just reapplied to and recommenced the course this semester, inevitably it will be disrupted yet again.
You have a couple of minor prior convictions which are of no consequence in this proceeding.
As I have said, you were charged with the offence of attempted murder on 2 March 1998, a significant time ago. Over two years you have had the oppression of that charge weighing upon you, a most serious charge, and have been brought up for trial on three occasions to face that charge. All those matters, in an eloquent and perceptive plea, Mr Stafford has relied upon on your behalf in mitigation of penalty and I agree with Mr Stafford and I take them into account. You have fulfilled all bail conditions. You have pleaded guilty to the charge of intentionally causing serious injury and I accept that for all practical purposes you have always been prepared to plead guilty to that charge - but not, of course, to a charge of attempted murder which has been withdrawn. Your plea of guilty is of significance of itself and also betokens your remorse. Further, as well as pleading guilty before me - with the consequences which the law correctly attributes to such a plea: see R v Donnelly (1998) 1 VR 645 - you have formally given an undertaking pursuant to s.5(2AB) Sentencing Act 1991 to assist the law enforcement authorities in the prosecution of the balance of these offences. Consonant with well known considerations - see R v Duncan (1998) 3 VR 208 - I take that matter into account as well, including the added burden it will involve as to the quality of your time of imprisonment. I give your plea of guilty and your preparedness to give evidence significant weight in your favour.
That undertaking to co-operate with law enforcement authorities in the prosecution of the balance of the offences arises in these circumstances. Two others were charged with offences arising out of the attack upon the victim outside his property in the early hours of Sunday, 1 March 1998. The other two accused are Hung Nguyen and Truong Mai. They were originally charged with attempted murder and that, rightly, in my view, is not being proceeded with by the prosecution. But the charges of intentionally causing serious injury and damage to the motor vehicle are continuing against those two accused as well as the alternative of recklessly causing serious injury to the victim. Each of those two accused has pleaded not guilty before me to those charges. You are prepared to give evidence for the prosecution consistently with the statement you have made on 5 May 2000 in relation to the trial of those two accused which is forthcoming and have given an undertaking to that end. I take that matter into account in that context. By reason of your plea of guilty and your preparedness to plead guilty to this charge for all practical purposes from the outset, and your undertaking to give evidence and your statement of 5 May 2000 I have significantly reduced the sentence I otherwise would have imposed upon you for the charge of intentionally causing serious injury. Further, I shall direct a longer period of parole to be available to you than otherwise I would have directed on that account.
I take into account the other matters which Mr Stafford has articulated on your behalf: your personal dislocation as he traced it, your impressive efforts to establish yourself here, and the very significant effect upon you that a sentence of imprisonment inevitably will have. The origin of this matter - as Mr Stafford has said, given its cultural overlay - was a small dispute which developed into an incident which escalated in the early hours of Sunday, 1 March, to the matter which has brought you before me. Further, the burden upon you of a lengthy history of facing a most serious charge of attempted murder, having to come to court three times prepared to face it, I take into account. And in particular, as I have said, your plea of guilty and your preparedness to give evidence are matters which have resulted in me significantly reducing the sentence otherwise I would have imposed upon you.
However, Mr Nguyen, there are a number of very serious aspects of this matter. The first is that this was an attack upon the victim outside his home - which he was entitled to regard as a place of safety - and in the dead of night. It was a frightening attack. Second, by the knocking on the door, the victim was caused to come downstairs, leaving his wife upstairs in a state of fear. Next, he was set upon by a group of men and was outnumbered and overpowered. He was then stabbed repeatedly by you while he was overpowered by the other men. And finally, the stabbing was one which was, objectively, highly dangerous. The report of Dr Iain Skinner of the Royal Melbourne Hospital, dated 3 August 1998, states that, apart from bruising and swelling, the victim had lacerations to the right forearm, left ear, left anterior chest, left abdomen and right thigh, consistent with at least three knife wounds. The victim had a collapsed lung (pneumothorax) which required a chest drain to be inserted. A laparotomy was performed and during that a laceration to the liver of the victim was found. They are serious injuries and it is fortunate that the victim is alive today. Because of the matters that I have stated, I regard this as a serious matter and the sentence must reflect that seriousness.
I direct pursuant to s.18(4) Sentencing Act 1991 that the period of nine days pre-sentence detention which you have served be reckoned as already served under the sentence and I so certify.
On Count 1, damaging the vehicle of the victim, I sentence you to six months' imprisonment. I direct that that sentence of six months be totally concurrent with the sentence to be imposed upon you on Count 2 because the matters arose at the same time with the same causal pathway and in the same context. On Count 2, intentionally causing serious injury to Binh Xuan Phan, I sentence you to five years' imprisonment. I direct that you serve a minimum term of two and a half years' imprisonment before you become eligible for parole.
The prisoner may be removed.
I will leave the bench and counsel might inform my associate about the next stage of proceedings. I will not make formal inquiries at the moment.
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