DPP v Nguyen
[2000] VSC 110
•20 March 2000
| SUPREME COURT OF VICTORIA | |
| CRIMINAL DIVISION | Not Restricted |
No. 1467 of 1999
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SON KY NGUYEN |
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JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATE OF SENTENCE: | 20 March 2000 | |
CASE MAY BE CITED AS: | DPP v Son Ky Nguyen | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 110 | |
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CRIMINAL LAW - Sentencing - Intentionally causing serious injury - Paranoid schizophrenic - Cannabis abuse - Considerations applicable.
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APPEARANCES: | Counsel | Solicitors |
For the Prosecution | Mr J. Leckie | Director of Public Prosecutions |
| For the Accused | Mr H.T. Mason | Victoria Legal Aid |
HIS HONOUR:
Mr Nguyen, you have pleaded guilty before me to intentionally causing serious injury to your father, Son Anh Nguyen, at Springvale on Friday, 18 December 1998. At the time of the offence you were 21 years of age, having been born on 13 September 1977, and you are now 22 years of age. You and your father had resided at a unit at 64 Regent Avenue, Springvale for some four years, you and he having at different times come to Australia in circumstances to which I shall return to in a few minutes.
Your father had observed that some two years prior to the offence you had commenced using marijuana on a regular basis and that for some six months prior to the offence you had commenced to use it heavily. In October 1998 your father rightly had a stern talk with you about your abuse of marijuana and he told you that if you would not give it up he, the father, would leave the flat and leave you to fend on your own. Your father indeed had been supporting you. You did not give up marijuana. Your father, in concern, smashed one of your bongs during his stern talking with you but you went out and brought home another one. You commenced to resent your father.
You were the subject unfortunately of a mental illness, schizophrenia, which was brought to the fore by your abuse of cannabis. It is a not infrequent situation that a person has a mental illness, namely schizophrenia, either paranoid or otherwise, and which is brought to the fore by significant cannabis abuse: see the material I cited in M (1996) 88 A.Crim.R. 387 at 391. That happened in your case.
The day before the offence you, as a consequence of your illness, decided you would kill your father when he returned home the next morning, your father being an overnight shift worker. To that end you took a piece of blue nylon rope and cut it appropriately for use in strangulation. You also took a small pocket knife and placed it ready to be used the next day. You went to bed and to sleep.
At about 7.00 a.m. on the Friday morning, 18 December 1998, your father came home from shift work. He knocked on the door to be let in. You got out of bed and let him in. There was only one bedroom in the house with two separate beds. You used to sleep in one and your father in the other. You went back to bed and to sleep. Your father went into the kitchen, had a shower and ultimately went to bed and fell asleep.
At about 9.30 a.m. that Friday morning you woke up. You went outside and had a cigarette. You came back inside and then you attacked your sleeping father. He was at that time still in his own bed. You struck a blow to your father's head. You put a pillow over his head and sought to suffocate him. You then took the knife and commenced attacking your father with it. First, you struck your father on the left side of his throat. Next, you struck your father to his forehead, just above his right eye. Your father of course had been awoken by this attack and attempted to fend off the blows. You then took the rope and attempted to strangle your father with it. The struggle continued between you both. In the struggle your father got out of bed and one of the windows in the room was smashed. You took a lamp from the table and struck your father with it and as your father sought to leave the premises in self defence, you sought to hit him with a broken piece of the lamp. Your father fortunately was able to escape and went across the road where he collapsed. Neighbours saw him and police and ambulance were immediately called. They arrived very shortly thereafter. You took your father's vehicle intending to run him over but instead drove away.
Your father was taken to the Monash Medical Centre where he received treatment for his wounds The reports of Dr Evelyn Wong and of Dr Graham Thompson set out the injuries inflicted on your father as, indeed, the photographs graphically demonstrate, notably the injury just above your father's right eye - fortunately for him the knife did not enter his eye but into his forehead just above the eye - and also notably the wound to the left side of the neck which was a shallow wound and fortunately did not cut any vital organ, those organs being in the immediate vicinity of the wound. It is thus evident that the attack upon your father was a very serious one indeed and it is greatly fortunate that your father was not much more seriously hurt than he was.
In fact you returned to the premises at Flat 4, 64 Regent Avenue, Springvale and on the Monday morning 21 December 1998 the police attended and you were there. You had not attempted to escape nor did you attempt to hide your identity from investigating officers. On the contrary you assisted them in their enquiries once they arrived, including taking them to where the knife was which you had used in the attack. You did not seek to hide the knife but rather showed the police where it was.
The police interviewed you and I have studied that interview. It is plain that you were in a state of mental illness to a degree at the time. You were ultimately charged with attempted murder. Given your mental condition at the time the prosecution has, properly in my view, accepted a plea of intentionally causing serious injury and the charge of attempted murder has been withdrawn. I, of course, sentence you for the crime to which you have pleaded guilty, namely intentionally causing serious injury.
You have had, as your counsel in a most eloquent and comprehensive plea traced before me, a difficult and disrupted childhood. You left Vietnam in a boat at the age of 12. You went to a displaced persons camp in Indonesia, the conditions of which were extremely onerous upon you as a young boy. You were separated from your father who did not go to Indonesia and you came ultimately to Australia with your mother. You and she arrived in Australia in June 1992. Your father arrived here in November 1993. He and your mother did not live together in Australia. As I have said, you and your father commenced some four years before the attack upon him to reside at the premises at Springvale. Your mother in 1997 went to the United States to live. Your mother is prepared to return to Australia and to provide assistance to you. Her proposal has been noted with its beneficent intentions by the court.
You were educated locally in Springvale, first at the Springvale Primary School where you had little English and then at Westall Secondary College. You completed your secondary education at Westall Secondary College. You are a person of some considerable mental capacity and you did well at the school excepting one subject where you considered that you had not been properly treated by a teacher at the school. As a consequence of that consideration by you, on Friday 31 January 1997 - after you had completed your secondary education and at the commencement of the next secondary school year - you went back to Westall Secondary College and there assaulted a teacher who you considered had not properly cared for you as a teacher.
Unlike the present attack, the assault on the teacher was of a very limited type, although it was from behind. It was punching to the head a number of times of the teacher, but no weapon was used. You ran away after the assault upon the teacher. You were charged with intentionally causing injury to the teacher, and in the Magistrates' Court at Dandenong on 11 August 1997 you were placed on a community based order for 12 months and were ordered to perform 60 hours of unpaid community work over a six months period and to participate in positive lifestyles and anger management programmes and other programmes as directed. You in fact fulfilled those requirements, but towards the end of the period of your community based order you fell away from having contact with the relevant social worker, and as a consequence, on 13 July 1998, you were brought up before the Magistrates' Court at Dandenong for breach of that community based order. You were fined $500 for the original offence and $100 for the breach of the order.
It thus appears that that prior conviction of intentionally causing injury was a much less significant matter than the matter presently before me. Your breach was, although not to be underestimated, more of a formal breach than otherwise it might have been, and you fulfilled the primary requirements of that order.
I have had the benefit not only of an eloquent plea by your counsel but also of comprehensive evidence from Dr Lester Walton, a distinguished psychiatrist, and of his reports of 23 March 1999, 22 September 1999 and 8 March 2000. From Dr Walton's evidence, including his reports, it is apparent that you had a latent condition of schizophrenia, exhibited as paranoid schizophrenia at the time of the offence upon your father. You indeed at that time wrongly imagined that your father had committed an offence upon you as a little child. That paranoid schizophrenia was brought to the fore by the cannabis abuse that I have spoken of.
When you were arrested you were placed in the Acute Assessment Unit for only two days and thereafter held at the Port Phillip Prison, where you have been under psychiatric supervision. However, you have not been under any active treatment, nor any treatment by anti-psychotic drugs such as Halperidol. You have been free of cannabis abuse in the time you have been in gaol. Dr Walton has concluded that your present situation is that you have quite mild schizophrenia, there now having been a lengthy period when you have not been treated and you have not relapsed. Significantly in your case, unlike a number of other like cases, you have been cognitively intact since Dr Walton's first examination of you on 16 March 1999. Further and significantly, unlike a number of cases such as M (1996) 88 A.Crim.R. 387, you have not been the subject, as I have already said, of anti-psychotic medication. However, at the time of the offence you were suffering a mental illness - albeit short of mental impairment as contemplated by s.20 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: see also Moody (unreported, Court of Criminal Appeal, Victoria, 21 June 1978), Jolly (1994) 1 V.R. 446, Anderson v. R (1981) V.R. 155 and Veen v R. (No. 2) (1988) 164 C.L.R. 465. The circumstance that you were suffering from a mental illness at the time of the offence significantly reduces your moral culpability for the crime you committed.
I wholly agree with your counsel that this is not a case where it is appropriate to punish you in the plenary sense of a person who is not the subject of mental illness. I also wholly agree with your counsel that you are not appropriately the subject of the principle of general deterrence. That flows both from the benefit of the medical evidence which has been placed before me and well-known legal principle enunciated in Anderson v. R and Veen v. R (No. 2) already cited and R v Tsiaras (1996) 1 V.R. 398 at 400 per curiam. Accordingly, those elements of sentencing are, in the case of punishment, suitably modified, and in the case of general deterrence, put aside completely. I consider that on the one hand, this was a serious assault by a person who was cognitively intact; on the other hand, you were the subject of a mental illness. I take those considerations into account in sentencing you, as well as your plea of guilty and all the matters so eloquently urged by your counsel on your behalf. In the circumstances, I consider that a significantly longer term of parole than normally would be the case is justified in your case, and that is what I propose to order. Plainly, from the evidence of Dr Walton and from my (unscientific) observation of you, you still suffer from your mental illness albeit now in a mild form. It is essential that when you are released upon parole, you continue to desist totally from use of cannabis. No doubt the Adult Parole Board will closely monitor that matter.
You have to the present time served 456 days of pre-sentence detention and I declare pursuant to s.18(4) Sentencing Act 1991 that that period of 456 days of pre-sentence detention is already served under the sentence I impose upon you.
Mr Nguyen, for intentionally causing serious injury to your father, I sentence you to a period of five years' imprisonment. I direct that you serve a period of two years' imprisonment before you become eligible for parole.
I will leave the Bench.
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