R v Nguyen

[2007] VSC 204

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1521 of 2006

THE QUEEN

v

BA NGHIA NGUYEN

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JUDGE:	CURTAIN J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 May, 2007
DATE OF SENTENCE:	13 June, 2007
CASE MAY BE CITED AS:	R v Ba Nguyen
MEDIUM NEUTRAL CITATION:	[2007] VSC 204

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Criminal Law – Sentence – intentionally cause serious injury.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr Beale	Office of Public Prosecutions
For the Accused	Mr Desmond	Victoria Legal Aid

HER HONOUR:

1. Ba Nguyen you have pleaded guilty to one count of intentionally causing serious injury.  No prior convictions are alleged against you. 

1. On 9 January 2006 at 4pm or 5pm in the afternoon Hung Danh Vu went to the Nicholson Street Mall in Footscray.  Mr Vu knew you and your older brother Nhi Anh Nguyen Pham (also known as Leon) from previous dealings.  Mr Vu was seated at a table in the mall having a bowl of soup.  He saw you and your brother walk past him and 10 minutes later the two of you returned.  You approached Mr Vu and tried to start an argument with him and at that point your brother grabbed Mr Vu around the neck and stabbed him.  The Crown alleges that you then attacked Mr Vu, also stabbing him.  He fell to the ground and it is alleged that you stabbed him in the thigh before you and your brother ran off.  When you were interviewed by the  police  on 12 January 2006 you told them that you had punched Mr Vu three times.  You denied stabbing him and said you did not have any weapons with you that night, that you were not sure if your brother had stabbed Mr Vu and when asked if your brother had any knives with him that night you said, “ Not that I know of”. 

1. Mr Vu was subsequently taken to the Royal Melbourne Hospital where he presented with hypotension and multiple stab wounds, one to the left chest wall, three to the posterior chest wall and one to the left thigh.  Dr Hanan at the committal clarified that two back wounds were in the mid-line of the clavicle in the area of the scapula, one wound was to the mid-lower back to the right of the spine, there was one wound to the lower left chest near the ninth rib and a further wound on the upper left thigh.  Mr Vu under went emergency surgery and was subsequently discharged from hospital on 17 January 2006.  In evidence before the court, when asked how the stabbing had affected him, he said that he had developed a shock mentality and at night he gets very frightened when he hears noises, he is still suffering from pain from the injuries and the operation and he is still taking pain killers, his freedom of movement has been affected, his leg is still very weak and he still feels pain in his trunk.

1. The Crown contends that you and your brother were acting in concert in inflicting the stab wounds on Mr Vu, thereby causing him serious injury.  Your brother Nhi Anh Nguyen Pham pleaded guilty to intentionally causing serious injury before his Honour Judge Smallwood in the County Court on 23 January this year.  At the plea in mitigation your brother maintained that he inflicted all the stab wounds upon Mr Vu. 

1. By reason of your plea of guilty you are taken to have admitted each of the elements of the offence of intentionally causing serious injury but you maintain that your involvement only consisted of punching Mr Vu.

1. Mr Vu therefore gave evidence on the plea. He maintained that your brother Leon had grabbed him around the neck and stabbed him whilst he was grappling with him and you then lunged forward and attacked him.  He also says that he saw you with the knife which he described as a shiny white thing and that when he fell to the ground you said to him words to the effect, “Were you going to run away?” and then he felt a stab wound to the leg and saw you standing nearby and then the two of you ran off.

1. Various inconsistencies were put to Mr Vu in cross-examination in particular about whether he saw you with a knife and when he had first said that he did.  Mr Vu was adamant that he was not punched by you at any stage.  Whilst there may have been some confusion in the evidence as to who inflicted what wounds, and in particular, the wound to the left chest which the Crown contends was inflicted by Mr Pham,  nonetheless Mr Vu was adamant that he was attacked by you and your brother, that he was stabbed by both of you and in particular he had a clear recollection of you stabbing him in the leg. 

1. You gave evidence on the plea and stated that you had punched Mr Vu four times.  You admitted you had lied to the police in the record of interview when you said that you did not know if your brother had any knives with him that night and that your brother Leon did not do anything.  You lied, you said, because you were worried and scared but otherwise your answers in the record of interview, you said, were true.  In evidence you admitted kicking or tripping Mr Vu and that he fell to the ground and that you realised that you had cut your finger after you had punched Mr Vu on the last occasion. 

1. In light of your admitted lie to the police, which you maintained throughout the interview, I do not accept on the balance of probabilities your assertion that you only punched the victim three times, as you said in your interview, or four times as you said in court, is the truth.  Indeed, in light of Mr Vu’s firm stance that he was not punched by you, I reject your evidence on this point beyond reasonable doubt.  I am satisfied beyond reasonable doubt that Mr Vu was stabbed by both you and your brother, although it is not possible to say with precision who inflicted each of the stab wounds except for the wound on the thigh which I am satisfied you did inflict. 

1. I am satisfied on the evidence placed before me, in particular on the undisputed evidence, that you and your co-accused were together when you started an argument with the victim and almost at the same time your co-accused grabbed him and stabbed him in the course of the assault during which the victim says both of you stabbed him and then both of you ran off together, that you were acting in concert with your co-accused and therefore you are equally liable for the crime.

1. You are 23 years old and no prior convictions are alleged against you.  You have, however, since the commission of this offence, been dealt with for, inter alia , possession, use and trafficking in heroin and failing to answer bail, which offences relate to a two week period of offending conduct in May and June 2006, when you were detected through Operation Pound which was targeting heroin dealers in the Footscray area.  On 19 December last year you were sentenced to six months imprisonment in relation to these offences and you are still serving that sentence. 

1. You were born in Australia, your widowed mother having migrated to this country with your two older half siblings.  You also have a younger sister who is the first in your family to attend university and it is said that you come from a strong supportive family.

1. You left school without completing Year 11 and apart from some casual work from time to time you have otherwise not been engaged in employment.  You do, however, hold a fork lift drivers certificate which may well be of assistance to you in the future. 

1. Since you were 15 or 16 you have been using illicit drugs and it is said that from the time you went into custody from January 2006 you were using up to half a gram of heroin per day.  In 2004 you entered into a diversion programme which involved detoxification and on a subsequent occasion you also engaged in a detoxification programme but unfortunately without success.  Your counsel submitted, however, that you have remained drug free whilst in prison and that you intend to remain so.

1. Your counsel, Mr Desmond, has submitted that you acknowledge the seriousness of your offending conduct and that you are genuinely remorseful.  This submission must be tempered by the fact that you disputed the factual basis for which the Crown contended, which necessitated the victim giving evidence.  Your counsel submitted that this was not as taxing to the victim because evidence was not given before the jury.  In my view this submission has only very limited weight as I am satisfied that Mr Vu found being challenged on his account, an affront.  He at one point declared that he was the victim and that at all times he was adamant he had been stabbed and not punched and that you had attacked him.

1. Further, by your own admission you were not truthful in your record of interview to the police so it could not be said that you made full and frank disclosure to them.  Nonetheless, I do take into account your plea of guilty and by reason of that plea the need for a trial was obviated and the victim was not subjected to a lengthy cross-examination as he may have been at trial. 

1. You counsel has submitted that there is sufficient in the circumstances before the court to warrant a disparity of sentence with that imposed upon your brother, your co-offender, who was sentenced to seven years imprisonment with a non-parole period of five years.   Your brother is eight and a half years older than you, he has at least 115 prior convictions and he entered his plea of guilty on the first day of the committal.  Whilst it cannot be said that your plea was entered at the first reasonable opportunity, you are nonetheless a much younger offender with no prior convictions and thus this is the first time you have been before the courts for offences of violence.

1. The maximum penalty for intentionally causing serious injury is 20 years imprisonment.  In sentencing you I must take into account the nature and gravity of the offence here committed and your role in it.  This offence took place in a public place and I am satisfied that it took place in daylight hours and in circumstances where the attack was totally unprovoked and unwarranted.  It involved the use of at least one knife, the victim was stabbed five times, and although I cannot say which particular injury you inflicted, I am satisfied that you did inflict the wound at the thigh, which I might say was inflicted in almost spiteful circumstances, so as to prevent the victim from running away.  It follows that this is to be regarded as a bad example of a serious offence and one from which the victim continues suffer.  Any sentence I impose must serve to punish you and act in denunciation of your conduct and must also seek to deter you from re-offending in like manner and signal to like minded members of the community that if they conduct themselves in such a way they can expect condign punishment. 

1. In sentencing you I take into account your plea of guilty and give you a discount for it.  I take into account your young age; that at the age of 23 you are before the courts for the first time for an offence of violence and that on this occasion you will be facing a significant period of imprisonment.  I take into account that you have struggled with a heroin addiction over the years that you are presently drug free and that you have no prior convictions and that by reason of your age, and your previous good character that your rehabilitation is not without prospect.  I also take into account that there are good reasons why you should get a sentence different from that imposed upon your brother.  I also take into account, in the interests of justice, that you have been serving a sentence of imprisonment since December 2006 for an unrelated offence.  In short I take into account all matters which go in your favour and accordingly for the crime of intentionally causing serious injury you are convicted and sentenced to five years imprisonment with a non-parole period of three and half years.  I declare that you have already served by way of pre-sentenced detention a period of 341 days and I order that the sentence hereby imposed be served concurrently with the sentence you are presently undergoing.

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