R v Tran
[2011] VSC 473
•23 September 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2010 1607
| THE QUEEN |
| V |
| TUAN VAN TRAN |
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JUDGE: | T FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 August 2011 | |
DATE OF SENTENCE: | 23 September 2011 | |
CASE MAY BE CITED AS: | R v Tran | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 473 | |
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CRIMINAL LAW – Sentence – Murder – Defensive homicide plea rejected by jury – Prior convictions – General deterrence a relevant factor – 20 years imprisonment with minimum term of 16 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Andrew Tinney SC | Solicitor for Public Prosecutions |
| For Tran | Mr P Chadwick SC Ms S McCrickard | Victoria Legal Aid |
HIS HONOUR:
On 8 November 2008 Nguyen Van Nguyen’s body was found in long grass adjacent to Boundary Road, Tarneit. It had been there since the afternoon of 5 November 2008.
On that day Nguyen, a drug dealer, attended at your home at Unit 5, 22-24 Stawell Street, Werribee. You had known Nguyen for some time. He was an associate of your then de facto partner, Minh Nguyen.
It is apparent from the evidence led at the trial that Nguyen regarded you as a bad debtor. On the Sunday prior to his death Nguyen announced an intention to recover moneys he considered that you owed him. Accounts of the precise conversation vary but I accept that Nguyen was angry for at least part of this conversation and set down the following Wednesday (5 November) as the date to follow up on this issue. He enquired of his friends as to whether any would drive him to Werribee but no assistance was forthcoming.
You lived at number 5, 22-24 Stawell Street, Werribee with your then partner, Minh Hai Nguyen and her children. You are the father to the youngest two. Both you and Minh have been drug users for many years. You have financed your heroin and methamphetamine (ice) habit from trafficking in those substances. At the time that you killed Nguyen you owed him for drugs that he had advanced to you on credit. You maintained to him that these drugs had been stolen from you by an unscrupulous customer. Nguyen expressed frank disbelief at this assertion during the Sunday night conversation that I mentioned a moment ago.
Against this background, Nguyen arrived at your home on 5 November during the afternoon. He had telephoned earlier announcing his intention to visit. I accept that Nguyen went to your house for the sole purpose of retrieving his drug debt. I also accept that Nguyen had a prior history of drug debt enforcement of a particularly vicious character.
You ushered him into the garage which adjoins your unit and is accessible from the interior of the unit. He greeted Minh as he walked past a bedroom. She was watching television with the children and she maintains she heard and saw nothing of the events that then unfolded.
There is no narrative account of what occurred thereafter in the garage. I am prepared to accept that Nguyen was the initial aggressor. A broken broomstick was subsequently seen by Minh who also observed a raised red weal on your back which I consider is consistent with your being struck with the broomstick. Given that Nguyen, on any view, had attended at your house to enforce a drug debt, and given Nguyen’s demonstrated propensity to use violence when enforcing those debts, I consider it likely that he struck the first blow. Your response, however, was to embark upon a murderous assault on Nguyen. By the verdict, the jury have found that you did not believe you were in danger of death or really serious injury at the time you committed the acts which caused death.
The forensic evidence obtained from the partially cleaned garage floor bespeak of a violent episode. Blood droplets from Nguyen were found in all areas of the garage. Outside near the barbecue area, away from the street, a large pool of blood was observed by Minh. You admitted to Minh that you used a pair of scissors during this attack, and the injuries observed by the pathologist are, in part, consistent with the use of scissors. Dr Dodd observed piercing type injuries to the inner canthus of both the left and right eyes. Numerous other piercing injuries or incised defects were observed, including six full thickness defects in the left forehead/temporal area and in the area anterior to the left ear. A defensive-type linear incised defect was observed in the web space of the left hand.
In addition to the various injuries that were consistent with the use of scissors, Dr Dodd observed a small fracture of the left rib, No.10, and other bruises and lacerations. It is clear that if you were responding to an attack your response was not only grossly disproportionate but also unaccompanied by any genuine belief hat it was necessary to do what you did in self-defence.
I am unable to conclude from the available evidence that your intention was to kill Nguyen. The cause of his death was "complications arising from perforating injuries to the head". Dr Dodd, when pressed, was of the view that the injury that caused death was the penetrating injury to the left canthus, causing significant internal bleeding over time and which led to the deceased suffering asphyxiation. It seems clear the deceased’s chances of survival would have been improved had he been taken to hospital immediately. This finding is one factor, amongst many, that I consider relevant to my assessment of your criminal culpability.
Whilst Nguyen was alive, you persuaded him to get into his car and you drove off ostensibly in search of medical treatment. You telephoned Minh seeking directions. Some time later, you returned to your home where Minh spoke to both you and Nguyen. You told her that Nguyen was in the car and that he (Nguyen) had hit you first. Minh told you to take Nguyen to the hospital and gave you directions to the Werribee Mercy Hospital, a bare few kilometres away.
You left the house again with Nguyen and about an hour later you returned home alone. During this hour Nguyen died and you left his body, as described earlier, in Tarneit.
I do not accept that you made a genuine attempt to obtain medical treatment for Nguyen. I do accept that on the first occasion when you left your house with Nguyen you at least contemplated obtaining such treatment, as I consider that no other sensible interpretation can be placed on the telephone call you made to Minh and to which I have already referred.
As I have already observed, you then returned home and received explicit instructions from Minh as to the location of the Werribee Mercy Hospital. You told her it was OK and that you remembered the hospital.[1] This hospital is 4.9 kilometres from your home and on your normal route to Footscray via the Princes Highway.[2]
[1]T 338.
[2]T 613.
About an hour later you returned home saying Nguyen was dead, you had become lost and after he had died you had left his body near a freeway. I do not accept that you became lost on this second occasion. I consider that either you procrastinated seeking this treatment out of fear for your own position, or that Nguyen died before you reached the hospital. I am not satisfied beyond reasonable doubt that your failure to seek this treatment for Nguyen was wilful and I do not propose to treat it as an aggravating feature to your offending. On the other hand, I am not satisfied on balance that you did genuinely try to seek treatment for Nguyen and I do not propose to treat this as a mitigating feature either.
I propose to sentence you on the following factual basis:
· The deceased came to your house seeking to enforce a drug related debt.
· The first application of force was committed by the deceased by striking you on the back with a broomstick breaking the wooden handle in the process.
· Your response to this force was grossly disproportionate. You had no belief that you were in danger of death or really serious injury. You stabbed the deceased repeatedly with scissors and also caused other injuries including a small fracture of a rib.
· I accept that your actions were spontaneous and that your intention was to cause the deceased really serious injury at the time that you inflicted the act that subsequently caused death.
I am unable to detect any remorse from your subsequent conduct. You abandoned Nguyen’s body, and decamped to Robinvale for a short time. When interviewed by police you denied all knowledge of Nguyen’s death. Your counsel invited me to infer some remorse from your plea before the jury of not guilty to murder but guilty to defensive homicide. I am unable to detect remorse from this. An offer to plead guilty to defensive homicide was only forthcoming after Minh made her statement to police implicating you. This was more than two years after you killed Nguyen. Your plea of not guilty to murder but guilty to defensive homicide carried with it however some utilitarian value. The trial became, in effect, a one-issue trial and was conducted efficiently resulting, I consider, in some saving to the community in court resources. I shall take modest account of this in your favour.
Ms McCrickard on your behalf outlined your personal circumstances. You are still relatively young at 36. You were born in Soc Trang, Vietnam in the southern region of the Mekong Delta. Your father died when you were an infant and you then lived with your grandparents in the fishing village of Dai Ang.
Your grandparents provided much care but little supervision and you attended school intermittently to our equivalent of Year 8 level.
In 1992, when you were about 16, your grandparents migrated to Australia with you and your younger brother, with whom you had a close relationship. By this stage of your life you had developed a taste for alcohol.
After your grandfather’s death you came into conflict with your uncle in whose house you had been residing. You and your brother lived with your older sister, whom I understand had migrated to Australia separately to you and your brother. You were using cannabis regularly by this time and this rapidly progressed to regular heroin use. Your sister, unsurprisingly, ejected you and your brother and thereafter you lived a transient lifestyle, sleeping where you could find temporary accommodation or sleeping “rough”. Tragically, your brother did not survive this lifestyle and died at 25. Your drug use increased and you took to dealing in heroin and ice.
Your prior convictions reflect your then lifestyle. In 2001, you were convicted of three counts of Armed Robbery and one count of Recklessly Causing Injury. You were sentenced to an effective term of four years’ imprisonment with a minimum term of 2 ½ years. These offences involved the use of a knife in robberies upon taxi drivers and assume some significance in sentencing you for the current offence.
I have read the Victim Impact Statement of Nguyen Vang Cong. He describes a certainty that he will be haunted forever by the pain you have caused him and his family. His son took a similar path in life to you. Notwithstanding the choices that the deceased made, you have caused them, that is, the deceased's family, to suffer greatly. I am obliged to and I do take this into account.
You may have some insight into the pain the Nguyen family are experiencing. This plea was adjourned to enable your solicitors to have you examined and reported upon by a psychiatrist. Dr Sullivan’s report was tendered at your plea hearing and Mr Tinney did not require him to be present for cross-examination. Dr Sullivan’s opinion is that you present with mild severity symptoms of an adjustment disorder with depressed mood, or alternatively, a chronic dysthymic disorder. You have reported to him that your history of depression became more pronounced after the death of your younger brother. Although there does not appear to be any link between your depression and your offending, Dr Sullivan is of the view that you have no obvious personality disorder and that you have sound intellectual functioning. This together with a limited, if serious, criminal history persuades me that your prospects for rehabilitation are reasonable. As a result of your actions you have almost certainly lost your relationship with Minh and I doubt that there is any realistic prospect of you having any contact with your two young children.
Since your arrest you have remained in custody. For reasons that are no fault of yours or your practitioners, you were in custody for well over two years before your trial commenced. I consider this delay to be unacceptable, and this is a factor that operates to mitigate the sentence I am about to impose. Whilst in custody, I am told you were involved in an altercation with another inmate in which you used a knife and for which you received a short term of imprisonment. I do not take into account this subsequent conviction as a factor relevant to the term of imprisonment I must impose. The practical effect of the altercation however is that you have served the larger proportion of your time in custody to date in a protection unit. Your counsel put that in fact you found this a less stressful and more potentially productive environment than the mainstream unit in which you were imprisoned previously.
The community expects that people convicted of this serious criminal offence are denounced and punished, and part of the sentence I am to impose will reflect those expectations. The aspect of general deterrence must be given weight. Those who use sharp weapons to prevail in physical confrontations must understand that they will be held to account for their actions. Given your prior convictions, I consider the aspect of specific deterrence must also assume some weight in the sentencing process. I take into account the fact that I consider that you did not intend to kill Nguyen Van Nguyen and that your actions were, I consider, spontaneous, and in the context of a fight that you did not start. Balancing these factors as best I can, I sentence you as follows. Stand up please, Mr Tran.
On the count of murder, you are convicted and sentenced to 20 years’ imprisonment. I order that you serve 16 years’ imprisonment before becoming eligible for parole. I declare that 915 days, including today, have been served by way of pre-sentence detention.
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