R v Ta Vuong
[2014] VSC 574
•13 November 2014
| IN THE SUPREME COURT OF VICTORIA | Not restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0010
| THE QUEEN |
| v |
| PAUL TA-VUONG |
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JUDGE: | EMERTON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18-22, 25-26, 28-29 August 2014, 1-5, 8-12, 15 September 2014 and 13 October 2014 |
DATE OF SENTENCE: | 13 November 2014 |
CASE MAY BE CITED AS: | R v Ta Vuong |
MEDIUM NEUTRAL CITATION: | [2014] VSC 574 |
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CRIMINAL LAW – Sentence – Murder – Killing of 12 month infant by mother’s partner –Accused maintained infant’s death accidental – Confession evidence from prison informers - Accused’s expression of remorse over accidental death irrelevant in the sentencing exercise for Murder – Sentence of 25 years’ imprisonment imposed – Non-parole period of 20 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Rochford QC | Office of Public Prosecutions |
| For the Accused | Ms F Bitcon, Solicitor | Martine Marich & Associates |
HER HONOUR:
Paul Ta-Vuong, you have been found guilty by a jury of the murder of Silas Leithhead in Richmond on 15 May 2013. Silas was the infant son of your girlfriend, Kate Leithhead, and he was entrusted to your care when you murdered him. Silas turned one in the week before his murder. He was, by all accounts, a lively and happy baby, full of the joys of life.
You and Ms Leithhead met the previous year at Odyssey House. You were both recovering heroin addicts. You formed a relationship. You left Odyssey House within six weeks of one another. You went to live with your parents in Burwood; Ms Leithhead returned to live in her Housing Commission flat in Richmond with Silas. You visited Ms Leithhead at the Richmond flat most evenings after work, returning to your parents’ house on the last tram late at night. Your practice was generally to stay over at Ms Leithhead’s flat one or two nights a week, usually on a Friday and/or a Saturday.
Your relationship with Ms Leithhead was initially a happy one. You shared thoughts of a future together and Ms Leithhead, at least, felt herself to be falling in love. Ms Leithhead told a friend that you doted on her and Silas and that she described you as ‘her angel’. SMS messages, photographs and a video shot on a mobile phone, as well as the evidence of Ms Leithhead herself, paint a picture of a happy family at this point in your relationship.
However, within two to three weeks of leaving Odyssey House and returning to the Richmond flat, Ms Leithhead had started using heroin again. At first, she kept this from you, but when you did find out – quite soon after she began using again – you suggested that you and she use together and you started to use heroin with her. It was not long before the two of you were injecting heroin together daily.
It is clear from the SMS messages, as well as from Ms Leithhead’s records of interview and your own, that this drug use had a detrimental effect on your relationship. Ms Leithhead said you were different once you started using heroin again, and that she did not feel the same way about you.
You paid for the drugs that were used by the two of you. Ms Leithhead went out to buy them because she had the drug contacts in Richmond, but the money came from your wages and from your mother. Ms Leithhead had your debit card and used it to withdraw significant amounts of cash. It would be surprising if you did not feel used by this arrangement. In addition, there was sometimes tension between you over sharing the drugs. It is plain that the drug use intruded in the relationship and made it go sour.
Whatever the tensions with Ms Leithhead, however, Silas was a positive part of the relationship. Ms Leithhead had lost custody of her four other children, but she was very strongly attached to Silas and, by all accounts, had a loving and nurturing relationship with him. Her victim impact statement speaks of the devastation she has suffered since his death. You, too, presented as caring and loving towards Silas, at least in the early part of your relationship with Ms Leithhead.
Silas was unwell in the days preceding his death. On the morning of Monday, 13 May 2013, Ms Leithhead took Silas to childcare, but when she picked him up he was very quiet and not himself at all. She took Silas to the North Richmond Community Health Centre the following afternoon, where Silas was diagnosed with gastroenteritis. A student doctor who was there on the day examined Silas. He noticed two bruises on Silas’ right temple and a small abrasion on Silas’ lip. When he examined Silas’ chest and abdomen, he noticed two or three more bruises on Silas’ right chest above his nipple line. There were no other marks on Silas’ chest and abdomen.
You stayed at Ms Leithhead’s flat on the Tuesday night. You were present at the flat throughout the day of Silas’ murder, Wednesday, 15 May 2013. Ms Leithhead’s movements that day are less certain, although it is clear that she left the flat to go to the supermarket, buy a small number of grocery items, withdraw cash and then visit her dealer to buy heroin. She also left the flat to obtain a Unisom tablet to use with the heroin.
You were alone in the flat minding Silas during these brief absences and you seriously assaulted him during one or both of them before putting him down in his cot, most likely around mid-day. Silas was either dead or dying from the injuries he had sustained at your hands when you wrapped him up and placed him in his cot, ostensibly for his nap.
Ms Leithhead returned from acquiring the heroin and/or the Unisom and went straight to the bedroom to mix it up. She injected the heroin mixture before you did, Silas having by then been placed by you in his cot. The two of you then spent several hours either sleeping or doing very little in the flat under the effects of the drugs you had taken. It was almost 5.00pm before Ms Leithhead realised that Silas had slept for much longer than usual and went to check on him. She found him still wrapped up on his back in the centre of the cot. Silas could not be roused and was stone cold. In fact, he was dead.
The paramedics who attended the flat observed extensive bruising on Silas’ torso, along with bruising on his head. The police were called. You told the ambulance officer who first inquired that the bruises on Silas’ torso were the result of playing ‘aeroplanes’, and that they had been there for a few weeks. You said the same thing to one of the police officers.
You told a variety of different stories as to how Silas may have been injured to both the ambulance paramedics and the police. You told one of the police officers who attended the flat, Constable Gaffney, that you fell while holding Silas and you re-enacted that fall for him. You said that before putting Silas to bed, you went into the bathroom to wipe his face and bent down to pick up a towel from the bathroom floor, tripped over it and fell. Silas hit his head on the bathroom floor. He cried briefly but seemed okay so you put him to bed. In a further account given on the night in question, you said that Silas hit his head on the tiles and the carpet.
The injuries suffered by Silas were severe. He suffered skull fractures over the back, sides and the base of his head, particularly on the left side. A CT scan displays a major fracture running from the left side of the head near the temple towards the back of the head, spreading down to the floor of the skull and another major fracture running across the back of the head to the right side of the head. The fractures meet and branch at a number of points. Not surprisingly, Silas suffered significant brain injury which was the cause of his death.
In addition to the skull fractures and the brain injury, Silas had bruises on his face and around his head, and a large number of bruises on the front of his torso, described by the experts as ‘punctate’ bruising. He had a lacerated liver and broken ribs.
While you have accepted responsibility for Silas’ death, you contended and continue to contend that it was as a result of the accident you described to the police. Your counsel submitted to the jury that the Crown could not exclude the possibility that Silas’ injuries were the result of a complex fall that involved Silas hitting his head on the ground, possibly more than once, and your falling on top of Silas. The jury plainly rejected the possibility of such an accident.
The extent of your moral culpability must be considered in the sentencing process. In finding you guilty of murder, the jury found that you did a deliberate act or deliberate acts that caused Silas’ death with the intention to kill him or cause him really serious injury, or with the knowledge that your act or acts would probably result in his death or really serious injury to him.
Your counsel pressed upon the Court that it should conclude that you ‘snapped’ as a result of the pressure of looking after a sick child and threw Silas once only hard to the ground on the bathroom floor. He submitted that the best explanation for the liver laceration, the rib injuries and the bruising is that you then fell on top of Silas.
In other words, it was submitted on your behalf that a single violent act perpetrated on the spur of the moment along with an accidental act caused Silas’ death and that your culpability should be assessed on that basis.
Such a finding would require me to reject the evidence given by witnesses referred to as ‘Witness A’ and ‘Witness B’ of a confession made by you that you threw Silas to the ground up to five times because you were angry or frustrated with his mother.
Witnesses A and B were with you in the Melbourne Custody Centre when you were first charged with Silas’ murder. Both initially threatened and harassed you as a ‘baby killer’. However, Witness A knew you, Ms Leithhead and Silas from Odyssey House. While in the exercise yard, he approached your cell door to talk to you. There is CCTV footage from the first full day of your incarceration showing Witness A talking to you through the holes in your cell door on two separate occasions. The same footage shows Witness B also speaking to you through the door, both with and without Witness A. At one stage, you take a blanket off your bed and throw it on the floor before stepping onto it and then off it.
Witness A and Witness B gave evidence that you confessed to deliberately throwing Silas on the ground up to five times. Witness B’s evidence was that he saw you grab hold of a blanket, raise it above your head and throw it onto the floor, saying ‘That’s what I did with the baby’. Witness A also said that he saw you standing up and as if holding a baby making a sort of motion like a dropping motion. He gave evidence that you might have even picked up a blanket or something or thrown something on the ground to show him.
I am not satisfied beyond reasonable doubt that you confessed to Witness A and/or Witness B to deliberately throwing Silas on the ground multiple times. I have carefully studied the CCTV footage and your action of throwing the blanket to the ground and stepping on it is, in my view, ambiguous. Witness A could not have seen the blanket throwing demonstration because he was over the other side of the exercise yard, looking the other way, when you can be seen to throw a blanket on the floor of your cell. Furthermore, I find it improbable that you would have confessed to deliberately killing Silas to Witness B, as he was previously unknown to you and had threatened and harassed you only minutes earlier as a baby killer.
The evidence of injury to Silas is, in my view, a far more reliable indicator of what you did to him. According to Dr Ranson, a fracture pattern like the one on Silas’ skull could be caused by one very severe application of force or by a number of applications of significant force. However, there were bruises over different parts of Silas’ head, indicating there had been different applications of force to the head on different surfaces. Dr Ranson thought it unlikely that the bruising observed on Silas’ head was caused by one application of force because the bruises were on different parts of the head.
I accept the expert opinion of Dr Ranson. At the very least, you deliberately caused one very severe impact to Silas’ head which resulted in his skull breaking into a number of pieces. In addition, there was terrible bruising to Silas’ torso, a lacerated liver and injuries to his ribs. Having regard to the entire pattern of injury, I am satisfied beyond reasonable doubt that Silas suffered multiple violent impacts at your hands, including at least one very severe impact to his head.
I reject the proposition that the injuries to Silas’ liver and torso were caused by you falling on Silas. In the various accounts that you gave to the police as to how you fell and how Silas hit his head, you did not say that you fell on Silas. To the contrary, you told the police that you balanced yourself on the doorframe as you fell and that you did not lose your balance. The demonstration given to Constable Gaffney on the night of the murder had you falling on one knee only.
Although there are difficulties in aging bruising, the bruising to Silas’ torso is telling. Only a small number of bruises on Silas’ head and on chest were observed and recorded by the student doctor the previous day. The bruising observed on his torso after his death was far more extensive. When it was put to you in the second police interview that the bruises were fresh, you agreed that it was most likely that the bruising occurred on the Tuesday night going into Wednesday. You said you recalled an incident that might have caused the bruising and you described throwing Silas in the air and catching him. You said there were times when ‘knuckles went before the cushioning of the hands’. You said you caught Silas ‘too hard’ and he landed on your knuckles.
I find the explanation that you ‘caught’ Silas on your knuckles highly implausible. I find that you not only caused injuries to Silas’ head, but that you delivered blows and/or jabs to his body. In short, I find that you assaulted Silas in a number of ways. The assault on Silas was multi-faceted and brutal.
The deliberate infliction of injuries of this kind on a helpless baby is difficult to comprehend. Although Silas was sick on the day of his murder, there is no suggestion that he was crying uncontrollably or, indeed, crying or grizzly at all. His illness caused him to be, at worst, ‘clingy’. Otherwise, he was unusually quiet and docile. He did nothing to cause you to snap.
Furthermore, there is no evidence of any antipathy towards Silas. To the contrary, there was evidence that you interacted well with Silas and that you were fond of him. You described him to the police as ‘an easy child to manage’ and said that ‘there’s always a way to calm him down’.
In my view, the only plausible explanation for your deliberately hurting Silas is that you wished to express your anger or frustration with his mother and your shared circumstances.
According to Witness A, you told him that Ms Leithhead was leaving the flat to score drugs at various times, and this was frustrating you because she often took quite a long time to score. Your suspicions were aroused and you thought she was either ‘fucking the dealer or fucking around with the dealer’. This frustration caused you to ‘play rough’ with Silas.
Witness A also gave evidence that you complained to him more generally about Ms Leithhead, saying she was ruining your life because her own heavy drug addiction was affecting yours. You told him how much you were spending on drugs and about your need to obtain money from your mother, and you blamed Ms Leithhead for being required to leave Odyssey House.
It is unnecessary for me to determine precisely why you were angry or frustrated with Ms Leithhead. A number of reasons have been put forward, any one or more of which might have been the cause of your anger or frustration. I consider the most likely reason was that you were angry at Ms Leithhead for dragging you back into serious addiction, just at the point at which you had freed yourself from dependency on drugs. Your renewed drug use came at great cost to you both financially and psychologically and you resented her for it.
I find that you assaulted and killed Silas because you were angry or frustrated with Ms Leithhead. Silas was the innocent vehicle through which you expressed your anger or frustration and, effectively, sought to punish Ms Leithhead.
Your culpability is therefore to be assessed on the basis that you assaulted a defenceless baby entrusted to your care in a number of vicious and brutal ways in order hurt or punish his mother. Your moral culpability is very high.
However, there was no evidence before the jury that the assault on Silas was premeditated or that you had engaged in violent conduct towards Silas before the day of his murder. Your offending must be treated for the purposes of sentencing as an isolated event and as relatively spontaneous.
Character references provided to the Court by your mother, your sister, your maternal aunt and your cousin in the United States, speak of you as a person who loves children and is caring and nurturing towards them. Your mother, who was employed in family day care by the local council, described you as especially nice and benevolent to children. This is not easy to reconcile with the photographs of the bruised and broken body of Silas that were tendered in evidence.
You were 29 years old when you committed the offence. You had no prior convictions and, as your counsel submitted, there was nothing before the Court to suggest any proclivity towards violence, other than your drug addiction. Putting aside your drug use, you had generally led the life of a person of good character.
You were born in Australia to Vietnamese parents who came to Australia in the mid 1970s. You and your older sister were apparently raised in a stable and loving family. Your education was unexceptional and you did well at school.
In 2001, you enrolled at Deakin University to study commerce. You did not do well in your first year, which was described as a ‘low point’ because of the escalation of your heroin use, and you dropped out of university at the end of that year. You worked for a year and then went back to university in 2003, enrolling at RMIT in a bachelors’ degree in economics and finance. Again, you failed to complete this degree because of your drug use, which carried with it the need to work full-time in order to support your habit.
Your drug use is important to your personal history. You were introduced to heroin as a 13 year old, smoking it two or three times a week with older friends. Some of these older friends were dealing in heroin, and it was readily available to you. You had access to what were essentially free drugs until your late teenage years.
In Year 12 you were kept you away from your friends and the drugs by a broken ankle. You were able to concentrate on your studies and you gained entry to university. However, when you were about 19 or 20 you got back together with your old friends and started using drugs again. By this time, you had graduated from smoking heroin to injecting it. Throughout your 20s until you first went to Odyssey House in 2011, you were consuming significant amounts of heroin. Nonetheless, you were generally able to manage the financial implications of your drug addiction by working full-time and you were clever enough to get and maintain good jobs.
You have quite a good employment history, working initially with Optus in ‘phone based roles’ and then with the ANZ Bank for a period of two years as a personal banker. You then worked for AXA as a personal investment adviser for about 18 months. You worked in reasonably responsible roles, requiring a level of intelligence, ability and dedication. You managed to balance this with your drug use throughout your 20s.
The Court was told that, at the end of 2010, your aunt became aware of your drug use. Your aunt is older than you and is a qualified social worker, as well as being the senior pastor of a Christian church in Prahran. She understood the difficulties that you were confronting and intervened by helping you to secure a place at Odyssey House.
You did well at Odyssey House, taking on significant responsibilities and displaying leadership. Leadership qualities are also evident in your more recent dealings in prison. You are the representative of your prison unit in dealings with the Governor of the prison, both in a formal and informal capacity. You have taken on the care of young men coming into the unit for the first time, because you recall how difficult it was for you, particularly when withdrawing from drugs. You have chosen to work while on remand and have been allocated the more responsible tasks; you have also undertaken as many prison programs as possible and have completed them successfully.
I accept that you have demonstrated a capacity for personal integrity and leadership when not affected by drugs and this, along with your previous good character, is to your credit.
The character references provided by family members speak of you as kind, thoughtful and generous. Your aunt speaks also of the pain and remorse you have suffered since Silas’ death, and the shame that you feel in causing your parents so much anguish.
The remorse of which your aunt speaks is for accidentally causing Silas’ death. That remorse is not relevant to your sentence for murder. You display no remorse for Silas’ murder as you continue to maintain that his death was accidental. Remorse is therefore not a factor standing to your credit in the sentencing process.
As to your prospects of rehabilitation, your age, your good work record, your willingness to engage in work and rehabilitation programs in prison and the ongoing family support that you enjoy point to a capacity to rehabilitate yourself. Were it not for the fact that you continue to deny that Silas’ death was anything but an accident, I would find your prospects of rehabilitation to be good. However, your lack of insight into your offending diminishes those prospects.
The murder of Silas Leithhead was brutal. It took place while you were entrusted with his care and involved a gross breach of trust. You used this tiny, dependent and defenceless child to vent your anger towards his mother. Punishment and general deterrence are important in sentencing in this case, as is specific deterrence.
Balancing as best I can the sentencing principles set out in the Sentencing Act 1991 (Vic), I have determined that you should be imprisoned for a period of 25 years. I fix a period of 20 years before you become eligible for parole.
I declare that the period of pre-sentence detention reckoned as having been served is 532 days not including today and direct that this declaration and the period be entered into the records of the Court.
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