R v Nguyen - [2011] VSC 632

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 55 of 2011

THE QUEEN

TRINH NGUYEN

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 November 2011
DATE OF SENTENCE:	8 December 2011
CASE MAY BE CITED AS:	R v Nguyen
MEDIUM NEUTRAL CITATION:	[2011] VSC 632

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CRIMINAL LAW – Sentence – Attempted Murder – Stabbing of lover – Issue at trial had been intent to kill – Whether adjustment disorder with depressed mood diminishes moral culpability – Whether general deterrence should be sensibly moderated.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms. M. Williams SC	Office of Public Prosecutions
For the Accused	Mr. J. Williams with Ms. M. Casey	Victoria Legal Aid

HIS HONOUR:

Trinh Nguyen, on 17 October 2011 you were found guilty by a majority of a jury of the attempted murder of Bao Van Vo, a man with whom you had been having a relationship since 2008. It is now my responsibility to sentence you for that offence. The maximum penalty for attempted murder is 25 years imprisonment.

Outline of facts

You attempted to murder Bao Vo on 1 March 2010 after he had gone to your premises at Springvale following your request to him to do so some days earlier. His evidence, which the jury obviously accepted, was that he went to your house at 8.00am on that day and waited for a period of time for you to come back to the house. There was then some discussion between you about the state of your relationship and Bao Vo told you he did not want a sexual relationship with you anymore and that you and he should just be friends. He said he urged you to go back to your former partner. Clearly you were very distressed by this.

After the discussion, at Bao Vo’s instigation, you and he went to your bedroom where you had sex. After that had finished, Bao Vo said you got out of bed first whilst he remained there. He claimed that after you got dressed and left the immediate bedroom area, you said to him, “Why don’t you get up and go and wash yourself?”.

Mr Vo then got up and went into the en suite bathroom and began to wash himself. After he’d washed his hands he said he heard a blow to the side of his body. He turned and saw you were there and saying “I kill you”. You stabbed him for the first time with a knife you had obtained from the kitchen. He said he put his arm up to stop the attack and saw the knife and also saw that he was bleeding and said to you “Why did you do this to me?” You said “If I don’t kill you, then you could still desert me”.

The handle of the knife which you were holding was in a plastic bag and you were using both hands to stab him.

In an effort to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Nguyen

Details

AGLC: R v Nguyen [2011] VSC 632
Case: [2011] VSC 632
Decision Date: 8 December 2011

CaseChat Overview and Summary

In the case of R v Nguyen, the defendant was convicted of the attempted murder of his former lover, whom he stabbed multiple times. The case was heard in the Supreme Court of Victoria. The crux of the dispute was whether the defendant's adjustment disorder with depressed mood, which had been diagnosed by a psychiatrist, should be considered in mitigating his moral culpability and whether the sentence should incorporate a consideration of general deterrence.

The court had to decide whether the defendant's mental health condition should be a factor in assessing his culpability and if it warranted a reduction in the severity of the sentence. Additionally, the court considered whether the principle of general deterrence, which aims to discourage similar crimes by others, should be sensibly moderated in light of the defendant's mental health circumstances. The court examined the balance between the need for punishment and the principles of justice and rehabilitation in sentencing.

The court concluded that while the defendant's mental health condition was a mitigating factor, it did not absolve him of moral responsibility for his actions. The court held that the diagnosis of an adjustment disorder with depressed mood did not significantly diminish his culpability, and therefore, the sentence should not be reduced substantially on this basis. However, the court did consider the need for general deterrence and decided that a moderate reduction in the sentence was appropriate, taking into account the defendant's mental health and the need for rehabilitation. The court ultimately sentenced the defendant to a term of imprisonment, reflecting a balanced approach between punishment and the need to address the defendant's mental health issues.

Orders