DPP v Vo
[2008] VSC 49
•27 February 2008
| IN THE SUPREME COURT OF VICTORIA | Not restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1461 of 2007
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KHANH VO |
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JUDGE: | Bell J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 9 January 2008 | |
DATE OF SENTENCE: | 27 February 2008 | |
CASE MAY BE CITED AS: | DPP v Vo | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 49 | |
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Criminal Law – sentencing – manslaughter by unlawful and dangerous act – stabbing in restaurant – unprovoked – unpremeditated – general deterrence – first offender – strong personal remorse – plea of guilty – without that plea, prosecution case very doubtful – strong prospects of rehabilitation – husband and father of two young children – one child very ill – impact of child-refugee experiences – sentence of imprisonment for seven years with non-parole period of four years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P Jones | Ms A Cannon, Solicitor for Public Prosecutions |
| For the accused | Mr I Hill QC with Mr D Hallowes | James Dowsley and Associates |
HIS HONOUR:
Khanh Vo, you have pleaded guilty to committing the crime of manslaughter upon Anh Dung Nguyen at Prahran in Victoria on 17 April 2006.
The maximum penalty for manslaughter is imprisonment for 20 years. Because it involves the destruction of human life, manslaughter is regarded as a crime of most serious gravity.
The circumstances I will now describe reveal you stabbed the deceased three times in the course of a fight at your restaurant, causing him severe injuries, which led to his death. In doing so, you committed the crime of manslaughter by unlawful and dangerous act.
On Sunday 16 April 2006, you played soccer during the day with your friends at an oval in Richmond. After the game, at around 6 pm or 7 pm, you and some of your friends went to the Bon Mua Restaurant and Karaoke Bar in Richmond, of which you were both the co-owner and chef. That restaurant is also known as the Four Seasons or the Nha Hong. On that evening you were working in the kitchen preparing meals and also sitting down at a table with your friends at the rear of the restaurant, when you got the chance. You consumed alcohol during the course of the evening.
Also working in the restaurant was your wife, Vy Huynh. She co-owned the restaurant with you. Vy was looking after the restaurant’s customers while you were in charge of the kitchen. On the night in question, Vy was managing the wait staff and attending to customers. It was a busy night at the restaurant, with a steady stream of customers and many tables filled. The karaoke was playing music loudly and patrons were getting up to sing.
The deceased had been at the Crown Casino with a group of friends. Some of this group, including the deceased, had gathered at a friend’s home in Richmond earlier that day to socialise and drink. At some time before 10:30 pm, the group left the casino to go to your restaurant for supper. The deceased and about nine male friends arrived at around 11 pm. They were seated at a large round table towards the front of the restaurant. Once they were seated, Vy went over to them to take their order. They ordered seafood and a round of beers. It appeared that the deceased was not happy with Vy’s service, complaining about how long it took for the food to arrive. Witnesses observed that the deceased was abrupt and rude towards Vy. There is evidence he banged his fist on the table.
Following this exchange, Vy went over to you, where you were seated with your own friends, and complained about the deceased’s behaviour towards her. You told her not to worry because the man was drunk. But you were concerned about his behaviour. You recognised the deceased from a previous occasion at the restaurant, when he had said he would go home and get a gun and shoot somebody, if they caused him any trouble.
At some point following this series of events, at around 11:30 pm, there was an argument between the deceased and some of your friends. As a result, they asked for their meal to be packaged so they could leave.
Soon thereafter, a fight started in the restaurant between your group of friends and those of the deceased. The people involved were punching and kicking one another, and bottles were broken. Witnesses saw the deceased surrounded by a number of men, being punched and kicked on the ground. In the commotion you left your table, went to the kitchen and collected a short-handled, short-bladed paring knife, one you would normally use to cut fruit. It was very sharp. You returned to the restaurant with this knife to find the accused in a standing position. You swung at him, stabbing him three times in the left side of his torso. The deceased fell to the floor.
Two or three of the deceased’s friends helped him to his feet, but he again fell to the floor. Some witnesses saw the deceased bleeding from his head as well as from his left side. His friends got him out of the restaurant and into a small laneway next door. Once in the laneway, one of them called for the police and an ambulance. The deceased was taken to the Alfred Hospital.
You stayed in the restaurant and cleared away some of the tables and the broken glass. You were at the restaurant when the police arrived. After giving your name and details to the police, you were about to leave when a police officer stopped you and detained you for questioning. You were taken to the Fitzroy police station and later the St Kilda police station for interviewing.
At the hospital, the deceased underwent emergency surgery and was placed in intensive care. But, at 9:15 am on Monday 17 April 2006, he died from a cardiac arrest arising from a loss of blood and his injuries.
An autopsy was performed on the deceased, which found he had sustained three stab wounds to the left chest wall. All three wounds perforated the pleura, left lung and spleen. There was also an injury to his stomach and diaphragm. One of the lacerations caused an incise injury to a rib bone. The autopsy report concluded that at least moderate force would have been required to inflict these injuries.
The deceased was aged 56 years at the time of his death. He was born in Vietnam, as were you, and had lived in Australia for a number of years. He was married and had adult children. The deceased was a member of the Vietnamese community in the Richmond, Collingwood and Fitzroy areas.
The impact of the deceased’s tragic death on his family has been acute. At the hearing on sentence before me, the deceased’s son, Victor Dismas Duong, wanted me to know how much agony you had caused him and his family. Victor was not able to be at his father’s side at the hospital because he did not find out about the attack in time. In Victor’s victim impact statement, he tells me he will never have the chance to see his father again. He feels sheer desolation, grief and anger towards you. Quite understandably he seeks justice for what has happened to his father and his family. Finally, he speaks for the whole of his family when he says they shall never forget.
I will now deal with your personal circumstances.
You were born in Vietnam on 1 January 1973 and are aged 35 years. Your father was a fisherman and ran the family business; your mother performed home duties. You are the oldest son out of five children. You have an older sister Luu, and three younger siblings, Thanh, Danh and Du. When you were aged 11 years, you fled Vietnam and the governing communist regime with your family. Your older sister Luu recollects that life in Vietnam was frightening because your family ran a business and because of the power of the police. In your own words, you said “we left everything to find freedom”. Your flight by boat led you to a refugee camp in Hong Kong, where you lived for about two years. Again, your sister recounts that life in the camp was violent and dangerous, particularly for children. In 1988 you came to Australia as a refugee, obtaining citizenship in 1999. Your father passed away in 1991 when you were aged 18 years. Your sister observes that you felt your father’s death intensely but did not show your emotions. As your brothers Du and Danh have written, you took on the role and responsibility of heading the family from this early stage of your life.
You completed Year 12 at Heidelberg High School in 1993. But you struggled with the English language and did not gain entry to university, as you had hoped. In 1999 you married your wife Vy and started a family. You have two sons, Ryan, now aged seven years, and Nathan, aged two years. In 2001 you and Vy bought your own restaurant and from that time you have spent most of your time devoted to your young family and your business.
In March 2007 your son Nathan was diagnosed with Acute Lymphoblastic Leukaemia. He has undergone chemotherapy treatment at the Royal Children’s Hospital and continues to fight that disease. In letters dated 27 November and 10 December 2007, Nathan’s medical staff have described the life threatening nature of his illness and the severity of his treatment. They also stress the emotional, physical and financial strain that his care places upon your wife Vy.
Vy writes of how hard her life is without you. She cannot explain to your children why you do not come home at night and she is very worried about the impact of your offending and incarceration on your young children. At your plea hearing, your counsel told me that she has since sold your restaurant because she could no longer handle all the stresses of heading the family and looking after the business. She says you are a selfless and caring father, you have strong family values and are sometimes timid. Of course your family still have you by their side. The deceased’s family no longer have him.
Bruce Shaw is a close friend of your extended family and writes of the instrumental role you played in ensuring that your siblings received a good education, even though you could not take up that chance yourself. He believes you will have the support of your family and the Vietnamese community during and after your sentence.
Dr Kevin Duong of the Bao An Tang Chinese Medical Centre, Kim Thanh Ho, president of the Richmond Asian Business Association and Con Krisohos, writing on behalf of the North Richmond Club, attest to your good character in their dealings with you. They state you are a good father, helpful in the Vietnamese community and not known to them as a trouble maker.
A very comprehensive report dated 20 November 2007 by Dr Stephen Lee, a clinical psychologist at the Melbourne Remand Centre, has been tendered by your counsel. Dr Lee saw you on three occasions, and spoke to your sister Luu, your mother and various medical consultants, in particular Mr Guy Coffey, a clinical psychologist with expertise in the psychological effects of trauma within the Vietnamese refugee community.
These are the main points in Dr Lee’s report:
·You feel a particular responsibility for your family’s welfare, especially because of the death of your father and your Vietnamese cultural values.
·You felt fear and anger on the night of the offence because you saw the deceased causing trouble at your restaurant and for your wife. You were primarily focussed on trying to stop the fight in order to protect your family. Your fear was of damage to your business, which would put your family’s welfare at risk.
·Your reaction to the fight was impulsive rather than pre-mediated, and the victim’s death took you by surprise.
·You likely suffer from a delayed trauma reaction to the hardship and persecution of your childhood refugee experiences.
·You have experienced significant shame, guilt and remorse for your offending because you feel that your actions have brought shame upon your family in the eyes of the Vietnamese community. You have said that “what I did was really bad”, “I did the wrong thing” and “the man is dead; I feel bad for the things I did”. Thus you have readily acknowledged your responsibility for the deceased’s death. You have expressed empathy for the deceased and his family.
·Your traumatic childhood refugee experience would likely have led you to perceive the violence in your restaurant that night to be particularly threatening, acting as a trigger to violent past memories which could have led you to over-react.
·Your failure to talk about your childhood and your inability to recall how you came to possess the knife are consistent with a person who has suffered past trauma and seeks to manage the condition by “dampening down” their tendency to hyper arousal.
·Your disrupted education, lack of fluency in English and your strained childhood likely impacted on your ability to cognitively manage effectively in threatening situations.
·A cognitive assessment shows that your problem solving skills are delayed, making you prone to poor judgment in emotionally charged situations requiring very quick responses.
·You meet most of the criteria for a diagnosis of a major depressive episode and a number of criteria for post traumatic stress disorder.
I will take Dr Lee’s report into account in your favour.
The most significant sentencing consideration in this case is that you have killed a person without provocation in a most violent manner and in the presence of other people in a public place. You stabbed the deceased not just once but three times, which is an aggravating consideration. The courts totally condemn the taking of an innocent life in all circumstances, but especially when the killing occurs in such circumstances as these. Therefore general deterrence must be a strong sentencing consideration. The sentence must be sufficient to express the court’s condemnation of your conduct and to show others who would behave in this way what the consequences will be. Therefore you will be sentenced to an immediate term of imprisonment. I accept the Director’s submission that your crime of manslaughter is one that deserves a sentence in the middle of the range for that crime.
While the crime of manslaughter that you committed was very serious, there are a number of weighty mitigating factors that I must take into account.
I have said that your crime was not committed in response to the deceased’s provocation. But neither was it committed in a premeditated way. You got the paring knife from the kitchen in the circumstances I have described. It was an unusual weapon to seize upon, which reinforces in my mind that you were behaving impulsively and opportunistically. You did not intend to kill the deceased or to cause him really serious injury but, as you accept, you were reckless and should have realised that your actions exposed him to that definite risk.
Your offer to plead guilty at an early stage is significant to a more than usual degree. It is very doubtful whether the evidence admissible against you would be sufficient to sustain a conviction. Your plea of guilty has saved the community, the witnesses and the victim’s family the trouble of a trial that might well not have succeeded. Your plea of guilty is strongly indicative of a profound sense of personal remorse. These matters should all be reflected in the sentence I impose.
You have no prior convictions and therefore appear before the court on sentence for this crime of manslaughter as a first offender. You have no disposition towards violence. Your actions on the night concerned occurred by reason of your inability to control your violent reaction to the deceased’s behaviour, which can be traced back to your own horrific experiences as a child-refugee, as Dr Lee has explained. I am quite sure you will not behave in this manner again. You represent no continuing threat to the safety of the community. Specific deterrence is, therefore, not a significant sentencing consideration. However, I repeat, getting a knife and stabbing the deceased to death is something I totally condemn.
You have a loving wife and two young children to whom you are devoted, one of whom is very ill. With their continued love and support, you have excellent prospects of rehabilitation. You are most unlikely to re-offend.
While your crime was very serious, and its impact on the family of the deceased has been very grave, as revealed by the victim impact statement of his son Victor, these strong mitigating factors make it appropriate for me to moderate the sentence to an appropriate degree, and to set a non-parole period of shorter length than would usually be the case.
Mr Vo, I ask you to stand.
Khanh Vo, in all of the circumstances, for the crime of manslaughter upon Anh Dung Nguyen at Prahran in Victoria on 17 April 2006, I sentence you to imprisonment for a period of seven years. I fix a minimum of four years before you become eligible for parole. Pursuant to s 18 of the Sentencing Act, I declare that the time that you have spent in custody in relation to these proceedings is 682 days (inclusive of today) and I direct that it be reckoned as a period of imprisonment already served under the sentence imposed.
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