R v Pham
[2006] VSC 498
•15 December 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1495 of 2006
| THE QUEEN |
| V |
| MY NGOC PHAM |
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JUDGE: | BYRNE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 December 2006 | |
DATE OF SENTENCE: | 15 December 2006 | |
CASE MAY BE CITED AS: | R v My Ngoc Pham | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 498 | |
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CRIMINAL LAW – Sentence – Intentionally causing serious injury
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T Gyorffy | Solicitor for Public Prosecutions |
| For the Accused | Ms S Smith | Legal Aid Victoria |
HIS HONOUR:
My Ngoc Pham, you have pleaded guilty to the crime of intentionally causing serious injury to Harry Luu, also known as Trung Luu, on Tuesday 16 March 2006. This is, obviously enough, a very serious offence, and one for which the law prescribes a maximum penalty of 20 years imprisonment.
The circumstances of the crime are as follows. Mr Luu was not a friend but an acquaintance of yours for about two years. Some 11 days before the offence you and he had been engaged in a scuffle at a city disco, as a result of which you suffered the loss of a tooth and he received a cut above the left eye. The incident was trivial; as you recount it, he asked you to buy a drink in terms which you considered disrespectful of your dignity. You and he were described at the time as being drunk. Apart from this, there was no animosity between you and him and a few days afterwards you and he agreed to forget the incident.
Against this background, on 14 March in the early afternoon you went to the May Hong Pool Hall. At the time you were carrying a silver kitchen knife with a blade of about 85mm in length. Sometime later Mr Luu arrived and sat at a table. You approached the seated man from behind, grabbed him by the neck and stabbed him twice, once in the right chest and second in the middle of the abdomen. This assault took place in the presence of a number of people, one of whom called the police.
You were duly arrested and questioned. In the course of your interview you said that you carried the knife for fear that Mr Luu would attack you and that you stabbed him because he walked close to you and surprised you.
It cannot be doubted that this was a most cowardly and unprovoked attack upon an unarmed man. There are no mitigating circumstances attending it. You were indeed fortunate that your victim did not die.
On your behalf I was pressed with the fact that you have no relevant prior criminal history and that you very early indicated that you would plead guilty to the present charge.
You were born in Vietnam on 5 March 1971 so that, at the date of the crime, you were just 35 years of age. You spent your early years in war torn Vietnam, attending school until age 14. You fled to Thailand where you spent a year or so in a refugee camp in difficult circumstances, as I was told, including cruel treatment.
In the meantime, your father had migrated to Australia and you joined him and your mother here in 1988, at age 17 years.
Notwithstanding your youth on arrival in Australia, and the fact that you have lived in this country for 18 years, it seems that you have remained locked in the Vietnamese community and you speak little, if any, English. You have been in employment or business more or less continuously since your arrival and have been twice married. By the first marriage you have two children now aged 10 and eight years. This marriage ended in 1999 at which time you were afflicted with drug and alcohol abuse. With some encouragement from your parents, you returned to Vietnam where you met your present wife. By her you have had one child, now three years. By the time of the crime, this marriage, too, seems to have been facing difficulties and, about February of this year, you moved out of your parent’s home where you and your family were living. The impression of your parents was that you were using drugs, drinking heavily, often absent from home and keeping bad company. In the histories taken by the consultant psychologist, Pamela Matthews, and by the psychiatrist, Dr Danny Sullivan, you deny any drug usage since 2005.
Wherever the truth may lie, there is no suggestion that your conduct on 14 March of this year was in any way a consequence of any use of drugs or alcohol. Nor was it induced or encouraged by any bad company.
Indeed, your behaviour on that day appears to have been most bizarre. I have examined carefully the psychological and psychiatric assessments obtained by your lawyers. They shed little light upon the likely cause of this behaviour. Dr Sullivan finds “no clear indication of mood disturbance, psychotic illness, acquired brain injury or intellectual disability”. He reports no indication of substance abuse or mental illness.
Ms Matthews reports that you had a perception, albeit unjustified, that Mr Luu had stood over you and humiliated you in the disco incident some 11 days before the crime. She observed that a disproportionate response to this, such as your conduct, would normally have some emotional basis but she found it difficult to explore this since you are “cognitive limited and lacking in insight”. This is compounded by communication difficulties and the possibility of cultural differences.
She did note, however, that you had had conflict with your wife and that you had been involved in two other incidents about the same time which suggested an inappropriate response by you to perceived hostility on the part of your victims. Dr Sullivan generally agrees with her assessments.
In summary, I am unable to make any finding that your conduct was the consequence of any mental condition or disability. There is certainly nothing to warrant my concluding that you are an inappropriate vehicle for general deterrence.
I will not deal in any detail with each of the purposes for which sentences may be imposed in accordance with s. 5 of the Sentencing Act 1991 and the matters which I am directed to have regard to. Some I have already dealt with.
I have read with care Mr Luu’s victim impact statement. It is apparent from this that, notwithstanding that he had made a good physical recovery, he has suffered financial loss. He has nevertheless, continuing abdominal pain and an unsightly scar with 34 stitches. His ability to obtain work, he says, is now limited and he suffers emotional trauma and a diminution in his confidence and self-worth. You, for your part, display no remorse for the harm you have done to him.
You have pleaded guilty at an early stage and I take this into account in your favour.
The fact remains that you went to the pool hall on that day armed with a knife. This alone is reprehensible behaviour which the community cannot and will not tolerate. You then committed a very dangerous, unprovoked and cowardly attack upon your victim. The sentence which I impose must reflect the disapproval of the community of this behaviour and it must serve to deter others from doing as you did. It must also serve as a public denunciation of your conduct. I am mindful of your good criminal record. On your behalf, it was put that you are a candidate for rehabilitation. I accept this to be the case and reflect it in the lengthy parole component of your sentence. In the circumstances, I consider that the appropriate sentence for your crime is imprisonment for a term of six years. I fix three years as the period in which you are not eligible for parole.
Both the psychiatrist and the psychologist have suggested that you undergo drug and alcohol counselling and violence reduction programme. I recommend to the prison authorities that these suggestions be implemented.
As requested by the prosecution and consented to on your behalf, I will make a forfeiture and disposal order with respect to the knife and a retention order pursuant to s. 464ZF of the Crimes Act.
I declare, pursuant to s. 18(4) of the Sentencing Act, 277 days is the period to be reckoned as already served under the sentence which I impose and I direct that there be noted in the records of the Court the fact of this declaration and its details.
I declare, pursuant to s.18(4) of the Sentencing Act 277 days as the period to be reckoned as already served under the sentence which I impose and I direct that it be noted in the records of the court the fact of this declaration and its details.
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