R v Thanh Dien Nguyen

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 224 of 1997

THE QUEEN

THANH DIEN NGUYEN

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JUDGES:	TADGELL, CHARLES and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 July 1998
DATE OF JUDGMENT:	20 July 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 5

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Criminal law - Sentence - Recklessly causing serious injury - Vicious, unexplained attack - Permanent disablement of victim - Personal circumstances of applicant - Sentence not manifestly excessive.

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APPEARANCES:

Counsel

Solicitors

For the Crown

Mr. C.G. Hillman

P.C.

Wood,

Solicitor for

Public Prosecutions

For Applicant

Mr. R. Willcox

Wilder Moses Bengasino

TADGELL, J.A.:

I shall ask Buchanan, J.A. to deliver the first judgment in this case.

BUCHANAN, J.A.:

On 7 October 1997 the applicant, who is 34 years of age, was arraigned in the County Court and pleaded not guilty to a charge of affray, a common law offence, and two sets of alternative charges of intentionally and recklessly causing serious injury to each of two individuals. On 15 October 1997 the jury returned verdicts of guilty on the counts of affray, intentionally causing serious injury to one of the persons assaulted and recklessly causing serious injury to the other victim. On 20 October 1997 the applicant was sentenced to six months' imprisonment for the offence of affray, one year's imprisonment for the offence of recklessly causing serious injury and five years' imprisonment for the offence of intentionally causing serious injury. The learned sentencing judge directed that six months of the sentence for recklessly causing serious injury be served cumulatively upon the sentence imposed for intentionally causing serious injury, making a total effective sentence of five years and six months. His Honour fixed a period of four years before the applicant was to be eligible for parole.
The only prior offences of the applicant were fines totalling $300 for removing excess and undersized abalone. The learned sentencing judge said that those convictions were irrelevant for present purposes, and I respectfully agree.
At the time of the commission of the offence of affray there was no maximum penalty prescribed. The maximum sentence for recklessly causing serious injury was 10 years' imprisonment and the maximum sentence for intentionally causing serious injury was 12-and-a-half years' imprisonment.
The applicant has sought leave to appeal on the grounds that the sentence was manifestly excessive in that the sentencing judge gave too much weight to the injuries suffered by one of the victims and, secondly, that insufficient weight was given to the applicant's prospects of rehabilitation. Counsel who appeared for the applicant abandoned the first ground of appeal.
The applicant's life has been largely a struggle against privation and hardship. By reason of the war in Vietnam the applicant did not advance beyond a grade three primary school education. He is nearly illiterate in his native tongue and wholly unable to grasp English. The applicant left Vietnam in 1982 and fled to Hong Kong. There he spent four years in a refugee camp before arriving in Australia in 1986.
The applicant fled Vietnam with the woman he married in Hong Kong. They have three young children. At the time he was sentenced the applicant lived with his family in a Housing Commission flat. The applicant has never had permanent work. He has no qualifications and has only worked intermittently in clothing factories as a presser and cutter.
The assaults occurred on 4 November 1995. The applicant, his wife and children attended a party at a Vietnamese restaurant in Abbotsford. During the party fighting broke out. The applicant was seen coming down the stairs of the restaurant with blood flowing from his face.
The assaults by the applicant took place in the street outside the restaurant. The victims were both struck on the head with either a metal bar or a steering lock.
The victim of the count on which the applicant was convicted of causing serious injury intentionally, Van Su Nguyen, suffered a fractured skull which required an emergency craniotomy to relieve a large extradural haematoma. A senior specialist in rehabilitation medicine at the Royal Talbot Rehabilitation Centre said that he suffered a significant and serious brain injury. The victim stated in his evidence that his left side was now paralysed and he could not see from his left eye or hear from the left ear. The learned sentencing judge said he was a pitiful figure as he gave evidence.
The victim of the other count, that of recklessly causing serious injury, Khoa Don Nguyen, was hit when he went to assist Van Su Nguyen. A metal bar was swung at him which he endeavoured to avoid, and he was knocked unconscious. He was taken to St Vincent's Hospital and stitches were inserted in lacerations. He was kept under observation and released the next day.
Counsel for the applicant in the course of the plea before the learned sentencing judge was not able to throw any light on the reason for the attack. He said:
"Now, nobody has given, in my submission, any explanation at all, or
even a solid base for speculation, as to why all this happened."
In those circumstances there are no mitigating circumstances attending the assaults themselves. The assaults were apparently completely unprovoked, and were vicious attacks on defenceless men. Those who witnessed the assaults described them as forceful, repeated blows aimed at victims struggling to rise and being beaten down to the ground. One witness said:
"Clubbing something, bringing up and like striking something behind the front of the car ... with all proper full force...I don't shock quite easily, I tell you what, I was a bit distressed ... "
Another said:
"They were striking him from above, raising the bars above their heads and striking down with a motion. It appeared to be unprovoked. (The man was struck) at least 15 or 20 times ... to the head or the upper body ... I hadn't seen anything that brutal before."
Yet another witness said:
"He hit him ... He fell ... Got back up again and was hit again ... He struck him while he was on the ground about three times ... I thought the man had been killed."
Other witnesses gave similar descriptions of the ferocity of the attack. In the course of the plea the applicant's counsel described the attack on Van Su Nguyen as "murderous".
In Economedes (1996) 58 A.Crim.R. 466, at p.468, Crockett, J. said of an appeal against a sentence for assault that left the victim with severe brain damage:
"There is, of course, no doubt that the consequences to a victim are relevant considerations. As the learned authors R.G. Fox and A. Freiberg in Sentencing - State and Federal Law in Victoria have said (at p.456):
'The age, conduct, character, antecedents and status of the victim of a crime, as well as the effect of the crime on the victim, are relevant to the exercise of the sentencing discretion. Most of the cases from which principles can be deduced, concern sexual offences, but the principles are by no means limited to such crimes.'
The authority cited in support of the proposition is a decision of this Court in Webb [1971] VR 147. There is, however, somewhat more modern authority for the same proposition, also to be found in a judgment of this Court. It is Mallinder (1986) 23 A Crim R 179 at 180, where Murray J observed:
'The consequences of a criminal act very often play a big part
in determining a sentence.'"
It cannot be said that the consequences of the attack were not readily foreseeable. The weapons used and the force with which they were applied would in the normal course of events lead to injuries of the severity of those which were in fact sustained.
Even allowing for the lack of relevant prior convictions, the difficult life endured by the applicant, the fact that he is a good husband and father and popular in his own community, in my view the sentence is not excessive. Vicious and unprovoked attacks that only fall short of murder by good fortune, not any forbearance on the part of the attacker, merit a substantial sentence to deter those who might be tempted to emulate the applicant's conduct and to deter the applicant himself.
Counsel for the applicant confined his attention to the minimum term of four years before the applicant would be eligible for parole. It was submitted that a longer period than 18 months should have been allowed. However, any longer period than two years would be most unusual. The applicant has demonstrated no remorse. The only basis for saying that the applicant is likely to be readily rehabilitated is his lack of relevant prior convictions and his popularity in his local community. In my opinion the applicant's prospects of rehabilitation should not outweigh the gravity of the offences themselves. Achieving deterrence should not be imperilled by fixing an unusually short minimum term, and that would be required if the existing minimum term were to be further reduced.
In my opinion the application should be dismissed.

TADGELL, J.A.:

I agree. The applicant's two offences, of causing serious injury to two other men, and in one case doing it intentionally, were shocking, wicked and cruel. So far as appears, the applicant is without remorse. The courts must send a message to the community - the Vietnamese community and the community at large - that conduct of this kind is intolerable in any decent society.
I have been unable to detect any error in the judge's sentence and I agree, therefore, that the application for leave to appeal against the sentence must fail.

CHARLES, J.A.:

I also agree.

TADGELL, J.A.:

The application is dismissed.

[1998] VSCA 5

20 July 1998