R v Nguyen

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No.0109 of 2012

THE QUEEN

MICHELLE NGUYEN

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JUDGE:	KING J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 February 2013
DATE OF SENTENCE:	12 February 2013
CASE MAY BE CITED AS:	R v Nguyen
MEDIUM NEUTRAL CITATION:	[2013] VSC 46

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Plea of guilty manslaughter – unlawful and dangerous act – death of young child left in closed car on warm day – single mother, two young children – partner in custody -
poly substance abuse – alcohol - suicidal ideation.

Sentence: 4 years imprisonment - minimum 9 months imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M Rochford S.C.	Office of Public Prosecution
For the Accused	Mr S Holt Ms P Murphy	Victoria Legal Aid

HER HONOUR:

1. Michelle Nguyen you have pleaded guilty to one count of manslaughter of Thy Tran at Glenroy on 5 November 2011. The maximum penalty for such an offence is 20 years imprisonment. You have no prior convictions and there are no matters of any relevance subsequent to this offending.
2. You have pleaded guilty to the offence of manslaughter of your child Thy, as a manslaughter by unlawful and dangerous act. The unlawful act upon which the Crown relied was that of leaving a child unattended pursuant to s 494 of the Children Youth and Families Act 2005. The dangerousness upon which the Crown relied was that a reasonable person in your position would consider the act created an appreciable risk of at least serious injury to the child.
3. The circumstances of this offence are tragic for all parties concerned; for you, your extended family, your family, the community and, of course, your little daughter, Thy. At the time of this offending you were 20 years of age and you were a single parent to your two daughters, Thao and Thy.
4. You were the sole parent as your partner Thanh Vu Tran had been sentenced to a period of imprisonment for drug trafficking. During your relationship he has been in and out of the prison system, and is 12 years older than you.
5. Prior to Thanh being imprisoned, you, Thanh and your two children had been living with his parents, but in approximately August of 2011, you were all asked to leave your parent-in-law’s house as there were two younger children in the family who were studying for exams; one was doing VCE and the other university exams. Vieu Do, your partner’s mother, although supportive of you, felt that the two young children were a major distraction to those who were trying to study for their exams. As a result, you and your partner left, ultimately you went to stay with your mother whilst your partner was imprisoned. Your relationship with your mother was equally, unfortunately, a most dysfunctional relationship.
6. Your mother, Yen Ngo, had a partner by the name of Ferdie Manabat with whom she had lived for a significant time and together they had another child, your half‑sister. As indicated, it was not a happy relationship between all of you and eventually at the end of October you had an argument with your mother and you left the home with your two children. Although there was some dispute about these matters, I have no reason not to accept that you lived in your car for a period of two to three days and then moved in with a person by the name of Michelle Russo, whom you had met relatively recently. You moved into Ms Russo’s premises in Glenroy approximately a week before Thy’s death.
7. On 5 November 2011 at approximately 11.30am, you took both of your daughters for a drive with the intention of getting them to sleep, as you informed the police this was the only way you were able to get them to sleep at that time. The house of Michelle Russo, where you were residing, in terms of accommodation, had only a mattress on the floor to accommodate you and your daughters. At the time you took them for a drive it was a fine sunny day and you had the air-conditioner on in the motor vehicle. You returned to the house in Glenroy, parked in the driveway, Thao awoke and you took her out of the car and into the house. Thy was asleep in the car in her car seat. The door to the vehicle was left open whilst you took Thao inside. You settled Thao to sleep on the mattress, you informed the police, and then after a short time – some five minutes or so of settling Thao – you went back outside you say to check on Thy. She was still asleep, so you decided to not wake her, and you shut the car door. At that time all of the windows in the motor vehicle were closed. You told the police officers in the interview that it was your practice and habit to ensure that the windows were down when you left the child in the car on a normal basis. Unfortunately, you did not check that on this day.
8. You went back inside the house and started watching television. A short time later, you apparently fell asleep. Thy was still in the motor vehicle, it was approximately 28 degrees Celsius outside and the car was in the unshaded driveway. You woke at about 2pm, went out to the car and found Thy not breathing and unresponsive. You carried her inside, alerted your friend Michelle Russo who then rang triple 000, there were directions given about performing cardio pulmonary resuscitation – but unfortunately all attempts failed. The ambulance attended, found Thy was not breathing, did not have a pulse and was hot to the touch. As a result, one of the ambulance officers took the body temperature of Thy and found it to be 41.5 degrees Celsius.
9. When the police initially spoke to you, you gave them a false account, stating that the child was on the mattress inside the bedroom with Thao, and that when you went to check on her you found her face down and not breathing and called the emergency services as a result of that. I attach no great weight to the fact that you lied to the police at that time, as there is no doubt you would have been in a situation of panic, but it does, in my view, accord with the other material which indicates that you were aware of the dangerousness of leaving the child, Thy, in the motor vehicle and that you knew it was both dangerous and wrong to do so.
10. You admitted to the police shortly after they found contradicting material to what you had initially told them, you told them the truth of what in fact had occurred on that day, which you later confirmed in a record of interview. A post mortem was conducted on the child, Thy, and it was found that she had died as a result of hypothermia caused by being left in the car cabin on a hot day.
11. Tests were subsequently conducted on the same vehicle in the same driveway which demonstrated that for a maximum temperature outside of 28.2 degrees the temperature inside the car cabin was 47.9 degrees Celsius. A clear demonstration of the problem of leaving children in a vehicle, particularly as children are unable to regulate their temperature like an adult.
12. The situation that aggravates what you did on this occasion was your specific knowledge of the potential dangerousness, together with your habit of leaving the child, Thy, in the car between August and November. The occasions have been listed in the Crown opening and they are as follows:
(a)On a date between 1 August 2011 and 31 October 2011, Ferdie Manabat saw you arrive home, go upstairs to your bedroom, and approximately 10 minutes later he heard a baby crying outside the premises, he went outside and found the deceased, Thy, in a locked car with the window half down. He took the child inside and told you how he had read in the paper a few days before about a baby that had passed away after being left in a motor vehicle. He said in his statement that you seemed to listen to him when he told you this.
Your counsel on your behalf indicated that you do not remember hearing him tell you that.
(b)Between 1 August 2011 and 31 October 2011, being the times you were residing at your mother’s home, the Crown submitted that there were a number of times when you would leave the deceased in the car to sleep and the neighbours would complain to your mother, Yen Ngo, about the baby crying whilst in the car parked in the driveway. Yen Ngo said she would tell you to take Thy inside but that you would say you didn’t want to because she was sleeping. Yen Ngo told you to just get the deceased out of the car and put her to bed, that it wasn’t that hard.
(c)In mid-October 2011, you met Michelle Russo for the first time at the house of a person known as Lam. You were inside the house for approximately 30 minutes at which point you and Ms Russo arranged to go somewhere in your car. When Ms Russo got inside the car she then realised that Thy had been left out in the car all of the time that you were inside.
After you left your mother’s premises, and went to stay with Michelle Russo, the following incidents occurred:
(d)Friday, 4 November 2011, during the day, you visited your mother, Yen Ngo, and Ferdie Manabat. When you arrived you went up to your bedroom without saying anything. Yen Ngo asked Thao, your oldest child who was aged approximately 3, where Thy was and Thao showed her that Thy was still in the car. She went outside, observed that it was hot in the car and brought Thy inside.
(e)On the same day at approximately 10pm, Semih Salman visited Michelle Russo at her Glenroy house. He met you and became aware that at some point you’d gone for a drive with your two children. When you returned Mr Salman noticed that you came inside and that the eldest of your two children was standing outside the closed front door and crying. When the eldest child, Thao, was let into the premises, Mr Salman asked where the youngest child Thy was and was told that she was in the car sleeping. He said to you, you had better not forget her. He then left the house a short time later.
(f)On Saturday, 5 November 2011, at approximately 12.30am, that is in the early hours of the morning, a neighbour of Michelle Russo in Glenroy, Robert Tauafao, came outside his house and noticed that the boot of the car in Ms Russo’s driveway was open, he knocked on the door and spoke to Ms Russo, together they walked to the vehicle and heard the deceased Thy crying inside the car. Ms Russo then took her into the house.
(g)On Saturday, 5 November 2011, this is the day on which the child died, between 12am and 5am in the morning, Samson Gabiarah was at Michelle Russo’s house in Glenroy, during this time period he noticed that you took the two children for a drive a number of times and on each occasion would leave the children in the car outside and then bring them inside when they woke up. The child Thy, as I indicated died on that day at 11.30am when you did exactly the same thing again, but this time during daylight hours .
13. This knowledge that you possessed of the potential risk of leaving a child in the car, was demonstrated by a number of the occasions to which I have referred, where different people had reminded you about not forgetting your children in the car, and particularly Thy. She had been found hot, distressed and crying on previous occasions after having been left in the car. Whilst it may not have been you who recovered the child from the car on each of those occasions, it was you who was caring for her and it is reasonable to infer that you would have become aware of her state after she was brought into the house on those different occasions.
14. That this was a dangerous practice, an inherently dangerous practice, is demonstrated by the death of Thy, that you were aware of that inherent dangerousness, is demonstrated by these occasions and conversations that occurred with you and other people who became aware of your practice of leaving the children, but in particular Thy, restrained in the motor vehicle.
15. This offence is not an offence of being a bad mother, it is an offence related to your duty of care for your child and your duty to ensure that your actions did not place her in danger of serious injury or death. Thus, your actions must have been both unlawful, which they were, in that it is illegal to leave a child unattended, and also objectively dangerous in the sense that a person in your position, that is, a person who had been repeatedly alerted to the situation that a young child should not be left in a motor vehicle, with at least one specific reference to the serious harm that may flow to the child, a parent in that position would be aware of an appreciable risk of at least serious injury.
16. It cannot be stressed enough that young children are vulnerable, incapable little beings, who are entirely dependent upon their carers, such as their parents, grandparents, siblings, baby sitters, all of those people, for their well‑being. They are unable to feed themselves, clean themselves, or help themselves in any significant way. Thy was unable to remove herself from the restraints that held her in the child seat, and remove herself from that hot environment, or even regulate her own temperature. You were Thy’s mother and she was totally dependent upon you for her safety and protection, a matter of which you were well aware. Parenting is not an easy task, but if a person decides to take upon that task, with it comes the duty to care for that totally dependent human being.
17. It is totally accepted by me that you did not intend to or even wish to harm your child, and it is, as I said earlier, a tragedy. But it was an entirely preventable tragedy and the fact that it was preventable has some relevance to the issue of both personal and general deterrence, to which I shall shortly refer.
18. Your personal circumstances are also relevant to this matter. Your parents are Vietnamese and you were born in Australia when your mother was aged 14. You have one younger sister aged 4 who is your half-sister as a result of your mother’s relationship with Ferdie Manabat. Your parents separated when you were aged 11, both your mother and your father were heroin users.
19. Your family, in terms of your parents, were violent to each other and sometimes towards you. The only positive parenting you have known has been the care of your maternal grandparents. They were supportive and positive influences in your life. Despite your mother being incarcerated at different times, there was no intervention by any welfare authorities in your life.
20. You attended Kings Park Primary School and then Marian College in Sunshine West until the end of Year 10. Upon leaving school you commenced a hairdressing course at Victoria University of Technology in Lonsdale Street, but became involved in a relationship with Thanh Vu Tran who, as I indicated, was 12 years older than you and with extensive prior convictions once again for heroin usage and trafficking.
21. You became pregnant relatively quickly as you had your first child, Thao, at the age of 17; an unplanned birth. You had your second child, Thy, when you were 19. In relation to the children, both appeared to be well‑nourished and you had reported to Dr Sullivan that both children had received normal maternal child health care, attended appointments and had received their vaccinations.
22. In terms of your drug use, you have quite a significant problem despite your age. From the age of 16, you reported smoking ice or methamphetamine for a few years, using it at least once or twice a week. You reported to Dr Sullivan, clinical psychiatrist, that, from the age of 16, you also smoked heroin by, as it is referred to, ‘chasing’, which means inhaling the vapour of the heroin off foil. Within a week of commencing using heroin in that manner you were addicted and dependent on the drug.
23.        You informed Dr Sullivan you had then moved on to buprenorphine at a later stage and at the times of pregnancy, switched to methadone. The children were delivered through a specialist program at Sunshine Hospital which deals with opiate dependent mothers. After the first pregnancy you returned immediately to heroin usage. After the second pregnancy you moved on to buprenorphine but you also said that during the time that you were using buprenorphine you would sometimes deliberately miss your dose and use heroin instead, possibly once or twice a week. You also admitted that you occasionally used Xanax to help with your sleep, as you put it, ‘now and then’.
Your counsel submitted four reports:
1.1.          a report from Dr Anthony Cidoni, consultant psychiatrist, dated 20 June 2012, which appeared to have been prepared for a bail application;
2.2.          a report dated 21 January 2013, prepared by Dr Julie Janev, psychologist;
3.3.           a report from Dr Danny Sullivan, dated 30 December 2012, who is a consultant psychiatrist;
4.4.          a number of reports all of which related to you being on a pharmacotherapy program on a daily dose of 14 milligrams of Suboxone.
24. You attended with Dr Janev as a result of the intervention of the Court Integrated Support Program referred to as CISP. You were referred in May of 2012 as a result of a mental health care plan that had been drawn up and devised by CISP. You attended seven counselling sessions before you disengaged on 9 October 2012. That service diagnosed you as suffering from post traumatic stress disorder with Agoraphobia and panic symptomatology, major depression and substance dependence disorder (opioides and crystal methylamphetamine) and provisionally as suffering from a borderline personality disorder. You were described as having all of those conditions active and untreated at the time that you disengaged in October of 2012. Dr Janev said that the impression you gave was of a woman with limited family and peer support and a lack of feeling anyone genuinely cared about your welfare.
25. It is apparent that your maternal grandmother has been the only constant, as well as consistent supporting presence in your life until recently, it now appears that the paternal grandmother of your child, that is your partner’s mother, who currently has custody of your three year old daughter, Thao, is being very supportive of you and your relationship with Thao. Dr Janev’s report I found to be of little assistance in that a large part of the report was devoted to expanding upon Dr Janev’s view of what your sentence should be – a view I unfortunately do not share.
26. I do find the report of Dr Sullivan to be of more assistance. He noted that you were hospitalised at the Orygen Youth Health Psychiatric Centre as an inpatient after your child’s death. Your admission at Orygen was from 7^th to 14^th November 2011 and it was not until April of 2012 that you attended upon psychologist Dr Janev for counselling. You told Dr Sullivan you found it distressing but that you felt that you had improved despite it being distressing.
27. Dr Sullivan noted in his report that the medical records obtained from Orygen Youth Health noted that you had been admitted as a result of expressing suicidal ideation. At the time of admission to Orygen you were on 16 milligrams of Buprenorphine and you reported to them that you had ceased daily use of ice or methylamphetamine, some three weeks prior to admission. However, a drug screen on 8 November 2011 revealed the presence of both amphetamines and cannabis. Like Dr Sullivan I am unable to say if that was a result of your ingestion of drugs before or after Thy’s death or as a result of the trauma of Thy's death.
28. Dr Sullivan described you as being of low/average intellect. In terms of diagnosis he found that you had an established diagnosis of poly-substance dependence, which involved opiate dependence, methamphetamine abuse and cannabis and benzodiazepine abuse. Dr Sullivan further stated at page 5 of the report:
After developing heroin dependence she has had periods of time on Buprenorphine and methadone. She denies ongoing illicit substance use, although there is no material related to this.

29. Dr Sullivan found, on his assessment, that you had symptoms consistent with a major depressive disorder of moderate severity causally associated with the death of your child and your ensuing legal problems. He did not note any significant features of post-traumatic stress disorder in addition to your depression. He said there was no indication of a psychotic illness, and no indication of cognitive impairment. In relation to the tentative diagnosis of personality disorder that had been made from Orygen and Dr Janev, he stated at page 6 of the report:
44.Mention was made of borderline personality disorder traits in the Orygen admission. Although Ms Nguyen reports deliberate self-harm, with non-suicidal intent, there are no other clear features of borderline personality disorder apparent and I would consider that her current situation, rather than underlying personality problems, accounts for her distress.
47.There is no information that Ms Nguyen was affected by substance use at the time of the death of her child, although three days later she tested positive to methamphetamine and cannabis. It cannot be determined on the information available to me whether this test result reflected substance use preceding or subsequent to the death of her child.
30. As I said, I agree, it is impossible to determine. He described you as fragile with limited coping skills and difficulty engaging with mental health professionals. He recommended that you receive ongoing counselling both in relation to your loss of your child and your substance abuse and dependence. He was also of the view that incarceration will weigh more heavily upon you as a result of the fact that you will need, in all likelihood, to be managed in the protection unit and that you could be potentially subject to significant victimisation, due to the fact that this offence relates to the death of your child.
31. This is a tragedy, as I said, in every sense of the word. You have lost your daughter, she has lost her life. None of it was intended to have occurred. You will certainly live with this for the rest of your life, but so will the grandparents and great grandparents of Thy. You will have to earn the right to have custody of your eldest child returned to you. You are most fortunate in that your partner’s parents are supportive of you, your partner and your child, Thao, but this is still a terrible thing to have occurred. Your punishment will continue probably for most of your life as you live with the knowledge of what you have done. Your failure to listen to or heed any of the warnings that you were given in relation to leaving this infant in the car will be undoubtedly something you should remember for the rest of your life. It is this failure to heed people’s advice and reminders about not leaving your child in the motor vehicle, together with other factors, that makes this a crime in which it is not possible for you to be released on a community corrections order.
32. There are many factors in relation to this matter that are mitigatory of your offending, including your plea of guilty to the offence of manslaughter by unlawful and dangerous act, the relatively early stage at which it was made; your history as a good mother, in that there were no signs of neglect or lack of care in respect of either of the children, they were of appropriate weight and development; your remorse; and the impact that the child’s death has had upon you psychologically. Further you are young and whilst your prospects of rehabilitation are not high, it is important that I maximise the opportunity for that rehabilitation to occur. I also take into account your substantially dysfunctional upbringing and family history and the almost inevitable nature of your drug addictions in light of that family history.
33. The offence itself, of course, implies no intent to harm Thy and I accept that you had no such intent. I also accept that imprisonment will be more burdensome for you as a result of your likely incarceration within the protection area of the prison. Further, you have no prior convictions and no subsequent matters of any relevance.
34. However, in this matter there are other factors that equally need to be taken into account, including both specific and general deterrence and general deterrence is, in my view, a significant factor. It must be made clear to all that this behaviour is not just unacceptable but that it is criminal and has attached to it criminal consequences so that persons will not continue, as you did, to leave children in motor vehicles despite warnings and reminders about the potential dangers. Equally, whilst you have lost a child, specific deterrence is of relevance in your case. I am also obliged to ensure that the punishment is a just and appropriate punishment for the criminality involved.
35. I remain unconvinced that you are no longer drug addicted and involved only in the use of Suboxone. You ceased counselling without any particular reason and I have nothing in the way of drug screens to indicate that you are successfully maintaining a pharmacological replacement therapy. Whilst prison does not ensure, unfortunately, that persons are no longer able to acquire illegal drugs, it certainly reduces the opportunity to do so.
36. I intend to pass a sentence that will ensure that you have the maximum possible time under supervision, with the expectation that you will be provided with the support services that you need to assist you to both become and remain drug free. The sentence therefore will have a much lower than normal minimum non-parole period to allow you to maximise your prospects of rehabilitation.
37. Accordingly, you are convicted of one charge of manslaughter and sentenced to be imprisoned for a period of four years. I direct that you are to serve a minimum of nine months imprisonment before becoming eligible for parole.
38. Pursuant to s 6AAA, I declare that the sentence I would have imposed but for your plea of guilty would have been five years six months with a minimum of three years.
39. Application for the taking of a forensic sample 464ZF(2) is granted.
40. Direct that there have been 15 (fifteen) days served in pre-sentence detention in relation to this matter and such is to be noted in the records of the court.

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[2013] VSC 46

12 February 2013