R v To

[2001] VSC 257

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1402 of 2001

THE QUEEN

v

VAN HOANG TO

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JUDGE:	Teague J
WHERE HELD:	Melbourne
DATE OF HEARING:	12-18 July 2001
DATE OF SENTENCE:	24 July 2001
CASE MAY BE CITED AS:	R v Van Hoang To
MEDIUM NEUTRAL CITATION:	[2001] VSC 257

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Criminal Law – Sentence – Attempted Murder – Stabbed wife in back – Breach of Intervention Order – Sentence of 7 years, minimum of 5 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. G. Horgan	Office of Public Prosecutions
For the Accused	Mr. J. Kaufman	Victorian Legal Aid

HIS HONOUR:

1. Van Hoang To.  You have been convicted by a jury of the attempted murder of Loc Thi Duong on 16 October 2000.  Loc Thi Duong is your wife, For many years, the two of you lived together in a flat in Highett St Richmond.  You lived there with your five children, including daughters Tran and Jenny. 

1. In about January 1998, there was a parting.  It came about because of your violence towards your wife. The violence also led to her obtaining an intervention order against you.  On some occasions after the order was made, she showed you compassion.  She allowed you to return to the flat.  But even then, you hit her and made threats to her, and she was obliged to contact the police. 

1. Twice last year, you were taken to court, and convicted of offences including breaches of the intervention order.  Despite those convictions, you would still come often to the flat, demanding to be let in.  You would say to your wife that if she would not let you in, you would kill her.  You accused her of sleeping around and neglecting the children.

1. On the morning of 16 October of last year, she left her flat to walk with your daughter Jenny to school.  She exited the ground floor door to the flats building.  She walked down a path towards Highett St.  As always, she was concerned about you and what you might do.  She saw you walking towards her.  You called out to her that you wanted to talk.  She kept walking.  You called out again.  She then stopped.  You and she argued.  You said that you would stab and kill her.  She turned her back on you to run towards Highett St.  You stabbed her in the back.  You kept saying to her: “I will stab you to death”.  To try to stop that happening, she held your hand with the knife in it.  There was a struggle as you tried to stab her again and she tried to stop you.  She called for help.  Your daughter Tran ran down from the flat and pushed you off your wife. You walked off taking the knife with you.  It was not recovered later.  Your wife was treated at St Vincent’s Hospital for the stab wound in her back that had been inflicted by you.  The wound would have been fatal if it had not been treated.

1. You were interviewed by the police later that day.  Your answers included many things that I do not accept as correct.  They included your denial that you continued to go to your wife’s flat.  And your claim that your meeting your wife was accidental.  And your claim that the knife dropped from your tracksuit and was picked up by your wife

1. Attempted murder is a serious crime.  The jury has found on ample material that you had the intention to kill your wife.  Further, there are aggravating considerations.  I am satisfied that your use of the knife was premeditated.  Moreover, you were acting in flagrant breach of a court order.

1. You have maintained, in recounting what occurred, an unreal position.  It is that you did not intend any harm to your wife.  And that you did not harm her.  And that you would not harm her because, if she was harmed, there would be no-one to look after your children whom you love.  There can be no remorse in the face of such a non-acceptance of reality.

1. There are mitigating considerations.  You have no criminal history save as to incidents involving your wife.  As to those, you have convictions in February and September 2000 from two court appearances on 5 counts of breaching the terms of an intervention order, and one of intentionally causing serious injury and one of recklessly causing serious injury.

1. There are no victim impact statements filed with the court.

1. You are 42 years of age, having been born in June 1959 near Saigon.  You came to Australia in 1984.  You suffer from epilepsy and from depression, and are taking anti-epileptic and anti-depressant medication.  I have read what has been written about you by the psychiatrist Dr Mark Taylor.  It is not greatly informative, save in confirming the difficulties in communicating with you.

1. I declare that you have spent 281 days in prison up to today 24 July 2001.  I direct that that declaration be noted in the records of the court.  I impose on you a sentence of 7 years imprisonment.  I fix a non-parole period of 5 years.