DPP v Quach

[2007] VSC 504

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1431 of 2007

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

PHONG GIA QUACH

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JUDGE:	Teague J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 and 20 November 2007
DATE OF SENTENCE:	6 December 2007
CASE MAY BE CITED AS:	DPP v Quach
MEDIUM NEUTRAL CITATION:	[2007] VSC 504

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Criminal law – Sentencing – Manslaughter - Killing of 3 year-old girl by partner of mother – 11 years imprisonment – 8 years non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G. Horgan	Office of Public Prosecutions
For the Accused	Mr R. Richter	Clarebrough Pica

HIS HONOUR:

1. Phong Gia Quach, you have pleaded guilty to manslaughter arising from your having caused the death of Liliana Lam on Thursday 3 May 2006.  Liliana was then 3 years of age, coming up to 4.  She was born on 29 June 2002.  She was the daughter of Dieu Lam, to whom I will refer after this as Liliana’s mother.  Liliana died on 3 May from internal bleeding.  That bleeding followed, although not immediately, your having caused internal injuries to her late on Tuesday the 1^st of May by pushing her against a bathroom basin and against the bathroom floor. 

1. In May 2006, there were a number of other family members living in the house where Liliana was being raised.  You were sharing a bedroom with Liliana’s mother.  Liliana shared a bedroom with her aunt, who was then aged 18 and a student.  When Liliana’s aunt was not at school, she acted as Liliana’s main carer.

1. A significant part of the reason why Liliana’s aunt was called on to do much of the caring was that Liliana’s mother chose to engage in the use of illegal drugs.  So did you.  Both of you had become quite heavy users of heroin.  Before May 2006, you made the sensible choice to take steps to address that addiction.  Regrettably, those steps led to your developing a liking for other illegal drugs.  As at 1 May 2006, you were coming off “ice”, a form of amphetamine.

1. As to what happened on the night of 1 May, we have your account to the police to add to the forensic picture that emerges from the evidence of Dr Dodd, who carried out the autopsy.  Dr Dodd found on autopsy that Liliana had suffered acute internal blood loss that was the immediate cause of death. Other findings included a laceration of a thickened and fibrotic mesentery and blunt force trauma to the abdomen. It was not your pushing actions that were the immediate cause of the acute blood loss.  But they were an essential although less immediate cause of death.

1. On what you said to the police, you had from time to time played a role in the care of Liliana.  Caring for her also included disciplining her.  Your perception of what was appropriate by way of discipline, as by pushing, was not guided by any training.  You denied to the police that you had assaulted Liliana other than by pushing.  You told the police that you had started to use pushing Liliana into the basin or against the floor as a form of discipline 2 to 3 months before May 2006.  In the weeks up to May, you had done the pushing 10 to 15 times. 

1. On the Tuesday night, Liliana was ill and vomiting.  You asked her to vomit into a bucket that was on hand. She did not do as you asked.  She vomited onto herself.  You took her to the bathroom to clean her up.  There, she was not making it easy for you to wash her.  She was drowsy.  You told the police that, three times as you were holding her, she dropped her head and in doing so sustained some bruising to her head. Her actions caused you to become angry with her.  As you had done in the past, but with greater effort this time, you pushed her into the basin with your body for about 5 seconds.  Shortly after that, she vomited again, this time on her clean clothes.  That caused you to get angry again.  You pushed her against the floor 3 or 4 times.  You used your whole body weight.  You stopped pushing after 5 seconds when you saw that she had difficulty breathing.  You told the police that you believed that pushing would scare her, and would be a bit painful for her, but would not cause her serious injury.

1. I am troubled as to one aspect of what you told the police as to why you had started to use pushing into the basin or against the floor as a form of discipline. You said that you had been accused by Liliana’s grandparents of assaulting her and your reaction was to think that if you were going to be accused of it, you might as well do it.  Your immaturity is reflected in that answer and in others that suggest that sustained pressure could be seen as an acceptable means of disciplining a child. The evidence is almost all to the effect that Liliana showed by her actions that she was scared of you.  Her aunt’s perspective was somewhat more favourable than that of her grandparents. But her memory was of Liliana being scared of you for a long time. 

1. I have read the two victim impact statements that were filed after the hearing of the plea.  I have been informed that no further hearing has been required to canvass their contents.  The two statements were prepared by each of Liliana’s mother and aunt.  They both detail important aspects of their feelings of loss at the death of Liliana.  They are full of heartfelt reflections on so many aspects of what joy Liliana gave to her mother and aunt and what despair and guilt and other adverse consequences have followed her death.

1. You are now 23 years of age having been born in February 1984.  Details of your background are set out in the reports of the psychologist, Patrick Newton, who saw you last month.  In short, you were born in Australia of parents who came from Vietnam.  Your mother died when you were aged two. Some four years later, your father remarried.  Thereafter, you were raised by him and a supportive stepmother.  Your schooling was normal until, in the later secondary years, you fell in with the wrong crowd.  You then started on the downward spiral into illegal drug use.  Initially it was cannabis and later heroin.  To your credit, you turned to a buprenorphine program with the aim of addressing the heroin addiction.  However, that led to your use of amphetamines and ice.  You chose to get involved in the illegal drug scene and to remain there.  Those choices led to a deterioration in your health, to mood swings and to a reduced capacity to make other sensible decisions.

1. Liliana, the 3 year old that you killed, was defenceless in your hands.  The indications are that she was a normal child, an endearing one, rather than a difficult one.  However, when you perceived that she was disobeying you, you got angry with her.  You decided to take out that anger by using forceful sustained compression.  You did not choose to use brutal acts like punching. Nevertheless, you did choose to use brute force.  Of course, there is a difference, but it is not a really substantial one.  From the perspective of leaving signs, it is perhaps more insidious.  Compression is less likely to leave tell-tale bruising than other forms of assault.  It is troubling that you had chosen to act in that way several times and with increasing force.  There have been several recent denunciations by the courts of men physically maltreating children in their care.  There has been a stressing of the importance of making known the need to deter other fathers and stepfathers from abusing their position of power and trust towards small children.  The unintended killing of small children in these circumstances is a product of the children being small and powerless and their fathers or father figures being big and powerful.

1. There are a number of mitigating factors operating in your favour.  You are young.  You have pleaded guilty.  You offered to do so at a very early stage.  You have no prior convictions. You have from an early stage both accepted responsibility and co-operated with the authorities.  You have expressed, and have demonstrated, remorse.  You were suffering depression at the time of these events.  You continue to so suffer.  Indeed, you continue to need monitoring for self-harm.  The sentence that you serve will be the harder given that mainstream prisoners tend to treat badly those who have treated young children badly.  There are signs, apart from your having no other convictions, of your rehabilitation prospects being at least reasonably good.  You are of at least average intelligence.  You want to engage in appropriate courses in prison.

1. I declare that there are 581 days of pre-sentence detention.  I direct that that be entered in the court records.  There being no opposition to my doing so, I have signed the retention and disposal orders placed before me on the plea.  I have looked at recent decisions where the reasons for imposing a long period of imprisonment for offences of this kind have been closely reviewed.  I have then made the appropriate adjustments.  I impose a sentence of eleven years imprisonment.  I fix a non-parole period of eight years.

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CERTIFICATE

I certify that this and the 3 preceding pages are a true copy of the reasons for Sentence of Teague J of the Supreme Court of Victoria delivered on 6 December 2007.

DATED this 6th day of December 2007.

Associate