R v Dao
[2008] VSC 616
•5 September 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1414 of 2007
| THE QUEEN |
| v |
| LONG DAO |
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JUDGE: | CURTAIN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 August 2008 | |
DATE OF SENTENCE: | 5 September 2008 | |
CASE MAY BE CITED AS: | R v Dao | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 616 | |
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CRIMINAL LAW - Sentence - Intentionally causing serious injury - Intentionally causing injury - Pleas of guilty
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S. Borg | Office of Public Prosecutions |
| For the Accused | Mr J. Fronistas | Revill & Papa Lawyers |
HER HONOUR:
Long Dao, you have pleaded guilty to one count of intentionally causing serious injury and one count of intentionally causing injury on Presentment No.U02075529.1. And a further count of intentionally causing serious injury on Presentment No.U02074762.1.
You have admitted 28 prior convictions from eleven court appearances.
On 2 August 2006, David and Leonnie Young, who are brother and sister, together with a friend, Anne-Marie, drove to the Footscray Shopping Centre. Whilst there you called them and arranged to meet. They believed that you owed them $250 and when you met, David Young asked for the money. You got into the Youngs' car and you all drove to the Maribyrnong river. You told the Youngs you had lost your money and you then drove to the Footscray needle exchange where you thought you had left your bag. The bag was found but there was no money.
You then asked to be driven to the Bi-Lo Supermarket so that you could borrow money from your boss. You went to the supermarket and returned with Trung Quoc Tran, also known as Ken. All five of you then drove to Newell's paddock in Footscray and there sat out on the lawn.
An argument developed over the money that you owed. You produced some drugs but David Young was adamant that he wanted the money. Their friend, Anne-Marie, walked off, and David and Leonnie Young both started to walk towards the car. You then struck Leonnie Young on the back of the head with the piece of wood. She fell to the ground and lost consciousness for a short while. This forms the subject of Count 2 on the presentment.
David Young went to help his sister. Ken grabbed him from behind, pinning his arms back, and you drew a Stanley knife from your pants and saying, “I’m going to kill you”, stabbed David Young in the chest just below the left nipple. You made a number of attempts to stab David Young while repeating that you were going to kill him. As David Young sought to fend off the attack, he was stabbed in the right arm. He was also slashed across the forehead as he bent forward. This conduct forms the basis of Count 1 on the presentment.
David Young escaped to his car. He drove off a short distance. You pursued him, brandishing a piece of wood. He then stopped the car, got out and called to his sister, who was laying on the ground but by this time had regained consciousness. She was able to get into the car and the two of them drove to the Footscray Hospital. Ms Young did not seek medical treatment, but Mr Young was treated for superficial lacerations to the left side of his chest and right forearm and a laceration to his forehead which required suturing. He was admitted to the hospital but discharged himself. Both Mr Young and his sister Leonnie reported the matter to the police two days later on 4 August.
On 15 August 2006 you were again at the Footscray shopping centre. Tran Nguyen was using the public toilets in Leeds Street. You tried to gain entry to the cubicle occupied by him and he told you to wait. This apparently angered you, but you both left the toilets without incident. Mr Nguyen went to a table in The Mall and as he sat drinking coffee, you approached him from behind and, using a machete wrapped in a cloth, struck him on the right shoulder. Mr Nguyen stood up and faced you, and you again struck him with the machete, this time to the right side of his face.
Mr Nguyen ran off, but you followed him swinging the machete and, as Mr Nguyen raised his arms to ward off the attack, you struck him with the machete on both wrists. You continued to lash out at him, and it appears that the attack only stopped when Mr Nguyen backed into and fell over a display stand outside a shop. Police were called to The Mall and you were shortly arrested nearby. A 20-centimetre black-handled knife was found in your trouser pocket, although the machete was not located. This conduct forms the basis of the count of intentionally causing serious injury.
You were assessed as unfit to be interviewed by the police and you were taken that day to the Werribee Mercy Mental Health Hospital. You were admitted, but subsequently absconded on 19 August, and you were subsequently charged with these matters on 29 August 2006 and you have been in custody since that date.
Mr Nguyen suffered a superficial three centimetre wound over the right shoulder, a deep ten centimetre wound to the right side of his face and two five centimetre lacerations to both wrists which penetrated to the bone, severing the tendons.
You are 39 years old. You were born in Vietnam and came to Australia in 1990 as a refugee, having spent a number of years in a refugee camp in the Philippines. You lived in Adelaide with your brother who had sponsored you to Australia. When that brother moved to Melbourne you remained in Adelaide and began using illicit drugs.
In the year 2000 you came to Melbourne and obtained limited work fruit picking. Your drug use escalated and you began using heroin, ice, amphetamines and a drug knows as G or GK. As your drug use escalated your condition deteriorated and in July 2001 you were admitted to the Dandenong Hospital with a drug induced psychosis. Upon your release you lived with your sister in Springvale but it is said that you were still able to access drugs.
You commenced your criminal offending in Victoria in October 2000. Most of your prior convictions are drug-related. None of them are for violence and your dispositions have included three sentences of imprisonment actually to be served, the longest of which was 12 months imposed in March 2004.
Upon your release from prison you were supported by your sister and her husband but eventually they were no longer able to tolerate your activities and you moved to the Sunshine area. Your brother continued to assist you with accommodation and provided a modest car for you which was able to provide some stability but your continued drug use caused you to lose your flat, your car and the support of your brother. So it was that in August 2006 you were effectively living on the streets and taking a daily cocktail of drugs which included methadone.
Your counsel submitted that it was in these circumstances that you met David and Leonnie Young and that they were supplying you with drugs and on occasions you would all use drugs together. Indeed, it was put on your behalf that on 2 August, you, the Youngs and Ken had been involved in using drugs. Between 2 August and 15 August you remained living on the streets. On 15 August, you were not well and when later assessed by Dr Buck, the forensic medical officer, he considered the possibility that you were that day suffering from an induced psychosis.
The offence of intentionally causing serious injury carries a maximum penalty of 20 years’ imprisonment and the offence of intentionally causing injury carries a maximum penalty of ten years' imprisonment.
The attack upon Mr Nguyen was a very serious assault. He has not submitted a Victim Impact Statement. Nonetheless, he was admitted to hospital under the care of the Trauma Unit. He underwent surgery which involved the placement of three screws and a plaster back-slab in place for six weeks. It must have been a very frightening experience for him and the injuries sustained no doubt would have caused considerable pain and suffering.
Two Victim Impact Statements were tendered on behalf of Mr Young as Exhibit B. The consequences of your conduct continued to adversely impact upon him. He continues to relive the incident and bears the physical scars of the assault. Ms Young also submitted a Victim Impact Statement, tendered as Exhibit C. She did not seek medical treatment at the time of the assault, and has sadly been involved in a number of incidents and assaults, both before and since August 2006. She suffers from epilepsy and has had episodes of loss of consciousness in the past. Her Victim Impact Statement is to be read in the context of her medical history as referred to in the various reports tendered as Exhibit 3.
The reports by Dr Shannon Reid, consultant psychiatrist with Forensicare, and Dr Jager, forensic scientist, were tendered on your behalf as Exhibits 5 and 6 respectively. Dr Jager is of the opinion that at the time of the offences you suffered from polysubstance dependence and a psychotic disorder associated with either intoxication or withdrawal from illicit substances. He noted that when you were assessed at the Werribee Mercy Psychiatric Unit at the Werribee Mercy Hospital on 16 August 2006, you were an involuntary patient under the Mental Health Act. You were "quite unwell for the first two days of admission", and you had severe drug withdrawal symptoms. You described to him hearing voices.
Dr Jager has concluded that you currently do not have a psychotic disorder, although you are still polysubstance dependent, and that you have done long-term physical damage to your brain as a result of your drug use. It is a cause of your poor memory, although he expects that there will be some recovery in this regard.
Dr Reid in his report concluded that although the presence of an underlying disorder cannot be discounted, there is no strong evidence that you have an enduring psychotic disorder, such as schizophrenia. Dr Reid opined that there was a high probability that soon after your apprehension you were affected by the acute effects of illicit substances. He relied upon your fluctuating conscious state and disordered conduct to support his opinion.
Dr Reid relied upon the discharge summary relating to your admission at the Werribee Mercy Psychiatric Unit which he said was indicative of the development of a drug induced psychosis, but that this may be related to the residual acute effects of substance abuse or its withdrawal.
Consistently then, the discharge summary listed a diagnosis of drug induced psychosis, with a secondary diagnosis of drug withdrawal. He noted that there were no prominent psychiatric symptoms upon your reception into prison, and no specific anti-psychotic treatment has been required.
A report by Michael Crewdson, psychologist, was tendered in evidence as Exhibit 1, confirms your personal history. He assessed you as having an IQ of 80, which he said is in the lower regions of the normal range; that you suffer an underlying depressive disorder and anxiety, and although in his opinion there are no indications of major psychological illness, you nonetheless have a significant degree of psychological dysfunction and disorder. Your time in custody, however, appears to have broken what he described as an increasing spiral of deterioration.
In these circumstances, your counsel has submitted that the principles of Verdins’[1] and Tsiaras’[2] cases apply, not only to the offence committed on 15 August, but also to the offences committed on 2 August, given that the events are 13 days apart and occurred in circumstances where you were engaged in heavy polysubstance abuse.
[1]R v Verdins; R v Buckley; R v Vo [2007] 16 VR 269
[2]R v Tsiaras [1996] 1 VR 398
Counsel for the Crown submitted that the application of the Verdins principle to the offences committed on 2 August is less clear but that there should be some application of those principles, in all likelihood, to the offences committed on that date as well as to the offence committed on 15 August. I propose to proceed on that basis.
Accordingly, the sentence I propose to impose will take into account that your moral culpability in respect of the offence on 15 August, and to a lesser extent the offences of 2 August, is reduced, and that considerations of specific and general deterrence may be sensibly moderated in the sentencing process. I also take into account your pleas of guilty, that by pleading guilty you have saved the community the cost of at least two trials, and by pleading guilty you have obviated the need for the victims to be called as witnesses, which was a source of great anxiety to both Mr and Ms Young as attested to in their respective victim impact statements.
Your counsel has submitted that your circumstances call for leniency, relying in support of his submission on the fact that it is the first time that you have been before the courts for crimes of violence, that you now realise that you must stop using drugs, that your condition has improved while you have been in custody, and that you have the continued support of your sister and brother.
In sentencing you, I take into account the nature and gravity of each of the offences here committed, the need to pass a sentence which will act in denunciation of your conduct, give due weight to the considerations of specific and general deterrence, which are nonetheless to be sensibly moderated, and take into account your reduced moral culpability in respect of your offending in respect of 15 August offence and less so in respect of the offences committed on 2 August. I take into account all matters which go in your favour and give you a discount for your pleas of guilty.
Accordingly, in respect of Presentment No. U02075529.1, you are convicted and sentenced as follows: Count 1, intentionally causing serious injury, two years’ imprisonment. Count 2, intentionally causing injury, three months’ imprisonment. Although there were two victims, the offences on this occasion occurred in the one episode and Ms Young’s injuries appear to be confined to a period of unconsciousness. Therefore, I do not propose to make orders for cumulation. Accordingly, by operation of law, Count 2 will be served concurrently with the sentence imposed in respect of Count 1.
In respect of Presentment No. U02074762.1, you are convicted and sentenced in respect of intentionally causing serious injury to four years' imprisonment. I order that one year of the sentence imposed in respect of Presentment No. U02075529.1 be served cumulatively with the sentence imposed in respect of Presentment No. U02074762.1, that is, five years’ imprisonment.
In order to enhance your prospects for rehabilitation so as to provide you with sufficient structure and support in your life upon your release, I propose to order that you serve a non-parole period of three years, and I declare that you have already served by way of pre-sentence detention a period of 735 days.
Pursuant to s.6AAA of the Sentencing Act, I am obliged to state the sentence I would have passed had you not pleaded guilty. It is a difficult task because your pleas of guilty are but one factor to be taken into account, and irrespective of your pleas, considerations which mitigate the sentence to be imposed are here applicable. Accordingly, doing the best I can, pursuant to s.6AAA(2) of the Sentencing Act, I declare that the total effective sentence of imprisonment I would have imposed but for your pleas of guilty is six years’ imprisonment with a non-parole period of four years.
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