R v Tran
[2005] VSC 220
•24 June 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1529 of 2003
| THE QUEEN |
| v |
| THAO THI TRAN |
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JUDGE: | KAYE J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 17 June 2005 | |
DATE OF SENTENCE: | 24 June 2005 | |
CASE MAY BE CITED AS: | R v Thao Thi Tran | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 220 | |
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CRIMINAL LAW – Sentence – Manslaughter – Provocation – Fear of deceased – Previous violence by deceased to prisoner - Exceptional circumstances – Plight of three children aged 9, 7 and 5 – Sentence wholly suspended.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms G. Cannon | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr A. Shwartz | Lewenberg & Lewenberg |
HIS HONOUR:
Thao Thi Tran, you have been found guilty by the jury empanelled upon your trial in this court of one count of the manslaughter of Chung Manh Tran on 4 November 2003. The jury acquitted you of the count of murder of Chung Manh Tran.
I shall first summarise the circumstances relating to the charge on which you have been found guilty, and make findings of fact in relation to them. I shall then consider matters relating to your background and personal circumstances.
You met the deceased in late 1997. In March 1998 the deceased and you underwent a form of marriage ceremony. At that stage you had two young sons, one aged approximately three years and one aged a few months, from an earlier marriage. You subsequently had a third child, a daughter, Claudia, from your relationship with Chung. Claudia was five years of age at the time of the offence.
A number of witnesses, including yourself, gave evidence at your trial as to the relationship between yourself and the deceased man, Chung, since your marriage. It is not necessary for me to recite that evidence in detail. However, that evidence does satisfy me that for some years before November 2003 you had a troubled relationship with your husband. The relationship was a tense one, and, on a number of occasions, Chung was violent towards you, particularly when he had been drinking alcohol. Arguments between the two of you deteriorated to the point where Chung would strike you with his hand or his fist. On one such occasion, after Chung had struck you so hard as to give you a black eye, you held a knife and threatened to take your own life, in order to deter him from inflicting further violence on you. On that occasion your young niece telephoned her grandmother in order that she might intervene. On another occasion, in the New Year of 2001/2002, an argument erupted between the two of you when you visited the city, in the course of which Chung struck you. As a result the police were called.
In November 2003 Chung and you, and your three children, were living in Housing Commission flats at Unit 39, 120 Racecourse Road, Flemington. 4 November 2003 was Melbourne Cup Day and neither you nor your husband were working. In the middle of the day you went to the birthday party of a friend. You left the three children in the care of Chung. It is clear that Chung was not content with that arrangement. He was unhappy that you had left him on his day off. He took the children to the beach in the afternoon. When he returned he consumed two cans of beer. He then went to dinner with a friend at a nearby unit. There he drank another four cans of beer. His anger with you was rising. After consuming the beer, he telephoned you, verbally abused you, and ordered you to come home. His friend, who was concerned about him, counselled him to calm down and put his temper aside. Chung returned home at approximately 7.30 p.m. There he made another telephone call, although it is not clear to whom that call was made. When the telephone call was finished, he threw the home telephone into the children’s bedroom in anger.
You returned home at about 8.30 p.m. By then Chung’s anger was at boiling point. As soon as you got home, his temper erupted, and he attacked you. You were subjected to a brutal and cruel beating. You tried to escape, and went into the corridor of the flats towards the lifts. Chung pursued you and pulled you back towards your unit. He was still striking you. Two neighbours, Ms Hayete Seyd and Mr Mohammed Youssouf, intervened and prevented him from striking you further. Despite their intervention he still remained aggressive towards you, and according to Ms Seyd, tried to strike you, but punched his fist into the wall instead.
Ms Seyd and Mr Youssouf are both to be commended for their courageous intervention, and for their responsible and selfless conduct on that evening.
As a result of your beating at the hands of the deceased, you sustained a blood nose. The medical evidence suggests that you suffered at least three significant blows to your head, namely to the nose, to the right eye, and to the right forehead. You also sustained other bruises particularly to your right upper arm and to your shoulder. Some of your injuries indicate that you had attempted to defend yourself by protecting your head with your arms.
Ms Seyd, who was concerned about you, took you to her own unit in order to help you clean yourself up. She wanted you to telephone the police, but you declined. Instead you wished to return to the unit to your children. Ms Seyd first checked that your husband was not home. When she ascertained that he was not there, she then accompanied you back to your unit.
There you commenced to clean yourself up in the bathroom. However, your attention was drawn to something which the deceased had done in the loungeroom. You went into that room and observed that Chung had smashed the shrine which you had there for your late mother. You are of the Buddhist faith, and that shrine was sacred to you. The action of the deceased in desecrating that shrine was deeply hurtful to you. As a result you reacted with rage. Ms Seyd’s evidence makes it clear that you lost control of yourself, so much so that she was justifiably afraid for her own safety, and she left your unit.
In your anger you attempted to smash the television set with a chair. When you were not successful in that endeavour, you then slashed Chung’s hi-fi speakers with a knife. The deceased was a hi-fi enthusiast, and the speakers were his pride and joy. In your evidence you said that you wished to show him how hurtful he had been to you, by damaging something which was of equal value to him. That may be so. However, I do not accept your evidence that you were then in control of your emotions. The description given by Ms Seyd in her evidence belies any suggestion that you had any remnant of control over your emotions, and in particular over your rage. Indeed your very actions of wantonly slashing the speakers were of themselves eloquent testimony of the anger which you then harboured towards the deceased.
In the meantime the deceased, who had been elsewhere, was seen by Ms Seyd to be approaching your unit. Again, to her great credit, she intercepted Chung, took him into her own unit, and treated his hand, which he had hurt when he hit the wall. She advised him not to go home. The deceased apparently agreed with that advice and said he would go to his mother’s apartment, which was in the same block of units. Unfortunately, you then telephoned the deceased and told him to return to the unit.
In your evidence you said that you telephoned the deceased because you intended to tell him that you wished to terminate your relationship with him. Whatever you said to the deceased you asked him to come home. If you had any grip on your emotions at that stage you would have realised what would ensue upon his return home. At your trial the Crown argued that the telephone call made by you to the deceased was evidence that you had regained your self-control. I do not accept that submission. Rather, I consider your action in telephoning your husband to be the action of a woman still boiling over with anger which had been sparked by the desecration by the deceased of your late mother’s shrine, that anger no doubt being exacerbated by the vicious beating to which you had been subjected a short time earlier.
In any event, Chung proceeded home. What then occurred was the subject of some debate. Your evidence was that when Chung saw what had happened to his speakers he exploded in rage and smashed other furniture. He then turned on you. You fled to the door. Chung pursued. You grabbed a knife which happened to be on a shelf near the door. You then turned towards Chung and threatened your own life with the knife. He continued to advance. You then pushed the knife in Chung’s direction. He then fell. You stated that you did not intend to strike him with the knife or to kill him or cause him really serious injury. You said that you were acting in self-defence.
The pathologist’s evidence was that Chung had suffered five stab wounds. He suffered two to the elbow region, both of which penetrated to a depth of about eight centimetres. He suffered a third stab wound to his left forearm. The fourth wound, which was the fatal wound, was an incised wound to the left chest which passed into the chest cavity, passed through the edge of the left lung, and injured the left ventricle of the heart. The fifth wound was an incised wound to the right chin of the deceased. Chung died either as a result of internal bleeding caused by the stab to the chest, or alternatively as a result of the direct injury to his heart.
At trial your primary argument was that you did not intend to kill or cause really serious injury to Chung, and that you were acting in self-defence. The Crown’s central submission was that you were not acting in self-defence, but rather that you were exacting revenge on Chung for the desecration by him of your mother’s shrine. The Crown submitted that at the very least you intended to cause him really serious injury. Although the issue of provocation was not raised on your behalf, it was clearly open on the evidence. Accordingly I left that issue to the jury. The Crown argued that you were no longer out of control when you stabbed Chung.
On your plea your counsel, Mr Shwartz, has contended that the jury’s verdict is that you were guilty of manslaughter on the basis of an unlawful and dangerous act. In other words he has submitted that the jury were not satisfied that you intended to kill or cause really serious injury to Chung, but that in stabbing Chung you committed an unlawful and dangerous act. Further, it was submitted on your behalf, that on the facts of the case, you were acting in self-defence, albeit that the jury was satisfied beyond reasonable doubt that you did not believe on reasonable grounds that it was necessary in self-defence to do what you did.
On the other hand, the Crown’s submission on your plea was that the jury’s verdict was explicable on the basis that the jury were satisfied beyond reasonable doubt that you intended to kill or cause really serious injury to the deceased, and that you were not acting in self‑defence. However, the jury was not satisfied beyond reasonable doubt that you were not provoked at the time of the killing.
Having had the opportunity to observe you in the witness box, and having reviewed the whole of the evidence, I am satisfied that the Crown’s contentions are correct, and that the verdict is to be explained on the basis that the jury were not satisfied beyond reasonable doubt that you were not provoked. The fact is that you stabbed the deceased five times with a sharp knife. Those actions are actions of a person who did intend, at least, to cause really serious injury to the person stabbed. Further, it is clear to me that at the time that you slashed Chung’s speakers, and at the time at which you telephoned him to come home, you did not have any control over your temper. It is, I consider, most improbable, if not inconceivable, that your seething emotions waned at all pending the return of your husband. Had they done so, you would have had the good sense to get out of his way before he returned.
I am satisfied, beyond reasonable doubt, that at the time your husband came back to your unit you were still very angry with him. It is also clear that your husband was equally, if not more, angry with you, when he observed what you had done to his hi‑fi speakers. The evidence establishes that, at that stage, he smashed more furniture in your loungeroom. He had already been very angry with you that night, and no doubt, when he had observed what you had done to his beloved speakers, his temper erupted again. Thus at the fatal time at which you stabbed the deceased, you were both confronting each other, and neither of you were in control of your emotions. It is in that context that you inflicted the fatal wounds on your husband.
Accordingly I consider that the verdict of the jury, acquitting you of murder, and finding you guilty of manslaughter, was on the basis that the jury was satisfied that you did intend either to kill or to cause really serious injury to your husband, and that you were not acting reasonably in self-defence, but that the Crown had not proven beyond reasonable doubt that you were not provoked. Indeed, I am satisfied that you were acting out of a loss of self-control caused by the grave provocation to which you had been subjected. By its verdict the jury accepted that an ordinary person might, in the same set of circumstances, have reacted in the same manner in which you did.
On the other hand, I do accept that you were, at the critical time, in fear for your own safety. Just a short time earlier when you arrived home, the deceased had already lost control of his temper, and been violent to you in the manner which I have already described. When he returned to the flat, and found that you had damaged his speakers, he was so angry that he proceeded to smash more furniture. When you spoke to the police you described how he was enraged with you when he returned to the flat. The verdict of the jury means that it was satisfied beyond reasonable doubt that you were not acting reasonably in self-defence. However that verdict does not preclude me from accepting, as I do, that shortly before the incident you were in fear of the deceased, and that your actions were motivated by a combination of your anger towards him and your genuine fear of him.
The crime of manslaughter is a serious offence, involving the unlawful taking of the life of another. The sentence to be imposed by the Court must constitute an adequate denunciation of the offence, so as to uphold the value which the community attaches to the sanctity of each human life.
I have read the joint victim impact statement signed by the deceased’s parents, sisters and brothers. That statement describes the substantial and enduring pain and distress which the unlawful killing by you of your husband has caused to those who loved him very much. The victim impact statements are a specific reminder that, as a result of your actions, not only have you taken your husband’s life, but in addition you have occasioned considerable grief and anguish to others.
On your plea your counsel, Mr Shwartz, submitted that, notwithstanding the seriousness of the offence of manslaughter, I should not impose a sentence which involves your immediate return to gaol, but rather that I should impose a suspended sentence. He correctly acknowledged that ordinarily the crime of manslaughter requires the imposition of an immediate term of imprisonment. However he argued that in this case there are exceptional circumstances which make it appropriate that I not impose such a sentence. In particular he relied on four matters, namely:
(1)A number of mitigating circumstances attaching to the crime itself.
(2)Matters relating to your background.
(3)Difficulties you are experiencing in gaol.
(4)The plight of your three children should you remain in gaol.
As I have already indicated, I accept that there are a number of mitigating circumstances attaching to the offence itself. They include:
1.Before you killed your husband you were subjected to a severe degree of provocation by him. You had been subjected to a wanton and violent attack by your husband, which only terminated when two courageous neighbours intervened. The deceased then desecrated your late mother’s shrine. That shrine was your most precious object. Frustrated in his attempts to hurt you physically, he sought, instead, to inflict maximum emotional pain on you.
2.You were well and truly inflamed by the provocation proffered to you by your husband. By its verdict the jury found that an ordinary person might also have been so inflamed as to do what you did in stabbing the deceased.
3. Your husband’s attack on you that night was in the context of a relationship in which he had previously abused you and subjected you to wanton and unjustifiable violence.
4.At the time you stabbed the deceased, you were also in a state of fear. You were confronted with an angry husband who had a history of gratuitous violence to you and who had assaulted you a short time earlier.
5.I accept that you did not intend to kill your husband. Indeed, at your trial, the Crown accepted that you may have not intended to actually kill him. The jury’s verdict is consistent with a finding beyond reasonable doubt that your intention was to cause the deceased really serious injury.
6.Immediately after you had stabbed your husband you sought help. You were in a distressed state when help arrived. You were beseeching your husband not to die. When you were informed of his death you were distraught.
In addition there are a number of mitigating circumstances in relation to your background.
You are now 32 years of age, having been born in Vietnam in December 1972. You are the second youngest of a family of ten children. Your upbringing occurred in difficult circumstances. Your father was rarely home, and had a number of liaisons with other women. Your family circumstances were impoverished, both materially and emotionally.
Ultimately you came to Australia with your late mother and your brother in 1990 as a young 17 year old. Shortly after your arrival you sought to make your own way in this country. You married young, at the age of 19. Your first husband, however, was a gambler, and that caused considerable friction between you. Ultimately he left you five years later, when you were pregnant with your second child, Danny. Before Danny was born you then met the deceased. As I have stated, the deceased and you underwent a marriage ceremony but it was not registered as a valid marriage. Your marriage to the deceased produced your third child, Claudia. As he had promised, the deceased acted as a father to your two sons from your first marriage.
By this stage you were estranged from two of your three sisters who were living in Australia. Your other sister, Jenny Vo, was busy raising her own family and with her career. At the same time you were not close to your husband’s family. It is not necessary for me to canvass the reasons for this. However, the fact is that during your marriage to the deceased you were substantially isolated from other family support. That situation was exacerbated by the sad death of your mother in 1996, who was diagnosed with a terminal illness when she returned to Vietnam on holidays. She passed away without returning to Australia.
As I have found, the evidence establishes that from time to time your husband was violent to you during your marriage to him, particularly when he had been drinking alcohol. Nevertheless it appears that you both loved and cared about each other. Despite his physical abuse of you, you remained with him, because of your feelings for him, and also because you craved the security and comfort of a family environment not only for yourself but also for your young children. Having lacked such a family environment when you were young, you were determined that your children should not suffer the same fate.
The evidence, both at your trial, and also on your plea, established that you are a person of otherwise good character, with no violent disposition. You have no previous convictions. When your family circumstances have permitted, you have been employed. A testimonial from your latest employer speaks of your high level of motivation at work. Your background, which I have briefly summarised, shows that you have come from a deprived and underprivileged background, and that you have had to make your own way in life. Your children’s school principal, Ms Janine Heley, gave evidence that you are a devoted mother to your children, who are very attached to you. Before your conviction and imprisonment, the children were bright and well adjusted, which itself reflects on the quality of the upbringing which you have given to them. I also regard it as a mitigating circumstance that, notwithstanding his violence to you, you remained with your late husband. Your perseverance, as I have stated, was in no small measure a product of your desire to ensure that your children had a stable home environment in which to be raised.
The third aspect of the mitigating circumstances put forward on your plea concerned your current circumstances in gaol. After your arrest on 4 November 2003 you remained in custody until you were granted bail on 20 January 2004. You have again been in custody since your conviction on 19 April 2005. For the purposes of the plea and sentence a report was obtained from a senior community corrections officer of the Sunshine Community Correctional Services. That report discloses that imprisonment has been difficult for you in three respects. First, you are somewhat isolated. You have a limited grasp of the English language. The other Vietnamese prisoners have ostracised you because you have killed your husband. Secondly, you have been anxious and concerned about the plight of your children. Thirdly, you suffer some emotional and psychological problems. It appears that some of those problems may have preceded the killing of your husband by you, and may have been the product of the violence inflicted on you during your marriage to him. You are not coping well with imprisonment. However you have not seen a psychiatrist. It is not entirely clear why this is so.
The fourth aspect of the mitigating circumstances put forward by your counsel concerns the plight of your three young children.
Your three children, Andy, Danny and Claudia, are now respectively nine, seven and six years of age. They currently reside with your brother, Hung Nguyen, at your unit in Carlton. Hung is 28 years of age and unmarried. He commences work before 7.00 am and does not finish in time for him to pick up the children from school before 6.00 pm. Since November 2004 the three children have attended Carlton Primary School. Following your return to prison in April 2005, the school has employed, at a cost to the school budget, a child care worker to look after the children between 7.00 am and 9.00 am, thus enabling Hung to continue in his job. After school, the children then remain in the after school programme until Hung can collect them from work at 6.00 pm. Hung, alone, has the responsibility to care and provide for the children’s physical needs.
Your sister, Jenny Vo, has a family of her own and is unable to provide much by way of assistance during the week. When one of your children has been ill, she has taken time off work to care for them. However this in turn has placed a considerable strain on her own marriage. On Sundays she helps to look after the three children. She told me however that, at weekends, the children are quite bored and have little to do. Jenny Vo works long hours and has children of her own. Her capacity to provide any significant back-up to your brother is quite limited.
As I have stated, the principal of Carlton Primary School, Ms Janine Heley, gave evidence before me on your plea. Ms Heley is a very experienced school teacher and school principal. I was most impressed by her evidence and by her concern for the welfare of your three children.
Ms Heley told me that she is concerned as to the condition of each of your three children, and in particular the eldest, Andy. Since your incarceration in April 2005, Andy has undergone a considerable deterioration in his behaviour. He is a bright child, who, since April 2005, has commenced to evidence aggression and behavioural difficulties. He is unable to express his feelings, particularly when he becomes frustrated, angry or upset. In a report written by Ms Heley which is tendered as part of her evidence she stated:
“Andy presents as a very frustrated and angry child. He clenches his fists and seethes with anger if he is confronted or feels threatened. He did not present in this manner when his mother was still at home. He will not open up and talk about what has happened. He says ‘I just want to forget’…He has recently become quite ill, refuses to eat his lunch and finds dealing with other students onerous. He never smiles. He has become very protective of his siblings and spends all of his playtime supervising them and attending to issues that arise.”
Ms Heley elaborated on that aspect of her report in her evidence before me. It is not necessary to repeat that evidence in detail. Her evidence makes it clear that Andy, in particular, is at significant risk if his current circumstances continue. Andy was an eyewitness, at close quarters, to your killing of your husband. At your trial the record of interview of him, concerning the circumstances of that event, was played in evidence. He presented as a courageous little boy, who, nevertheless, had been subjected to an extraordinarily traumatic event at a very tender age. I have little doubt that his recollection of that event is adding to his problems. Ms Heley told me that he is not prepared to talk about the event, notwithstanding efforts of counsellors, recently employed by the school, to assist him.
Ms Heley told me that your second son, Danny, is also experiencing difficulties. He rarely smiles and is very withdrawn and sad. Of your three children your daughter Claudia appears, at least superficially, to be coping best. However, Danny and Claudia have both suffered recurrent illnesses. A medical report from your family’s general practitioner has been tendered in relation to each of the three children. That report shows that both Danny and Claudia have had a number of consultations with him in recent times.
Ms Heley’s evidence also referred to what is otherwise fairly obvious, that is, that your brother, and your sister Jenny Vo, are seriously stretched in trying to cope with looking after the children. Their efforts to care for your children while you have been in custody are most commendable. However, it is most doubtful whether, in the long term, they will be able to sustain those efforts.
Ordinarily, potential hardship to third parties as a result of a sentence is irrelevant to the question of what sentence is to be imposed on a person convicted of a crime. However, hardship to third parties, such as young children, may be taken into account as a mitigating circumstance where the hardship is “truly exceptional”, so that it would be an affront to common sense and human decency if the sentencing judge were to ignore it. In the present case, I consider that the plight of your three young children, and most particularly the precarious condition of your eldest son Andy, is of such a truly exceptional character. It would be an affront to common sense and human decency for a sentencing judge to ignore such a factor. This is particularly so because, as a result of your crime, your children have been already deprived of their father. At least one of them bore witness to that crime and has had to struggle on his own with coming to grips with that dreadful memory. Your late husband was the primary victim of your offence. Your three young children are the next most directly affected victims of it. In saying this I do not, at all, downplay the considerable grief and distress caused by you to the family of your late husband, who loved him very much. Nonetheless, it is your children, most of all, who have suffered as a result of your killing of your husband. It is only appropriate that I take into account any potential suffering which might be occasioned to them as a result of any sentence which I might impose upon you.
Indeed, Ms Cannon, on behalf of the Crown, accepted that this is a case in which it would be appropriate for me to take into account the plight of your three children as a mitigating circumstance. That concession, properly made by the Crown, fortifies the view that I have reached that this is a most exceptional case permitting me to take that circumstance into account as a relevant factor in mitigation of your sentence.
In those circumstances, I therefore am left with the difficult task of determining what sentence is appropriate and just to impose upon you for the unlawful killing by you of your husband. As I have already stated, it is important that any sentence be such as to constitute a public denunciation by this Court of your unlawful taking of your husband’s life, so as to ensure that the value of human life in our society is properly vindicated. I do not consider that there is any real need for specific deterrence. You are not of violent or criminal disposition. The need for general deterrence in a case such as this is limited.
On the other hand there are a number of mitigating circumstances which I have set out at length. The question is whether those circumstances, taken together, make this case so exceptional as to make it appropriate that I not impose a sentence of imprisonment which should take effect immediately upon you. As I have already set out, the mitigating circumstances in this case can be placed into four categories. The first three are extenuating circumstances relating to the offence, matters arising from your background and antecedents, and difficulties which you are experiencing in prison. Taken together, those extenuating circumstances would not be sufficient to characterise this case as exceptional. Nevertheless, collectively they would operate to significantly reduce any term of imprisonment which might otherwise be imposed upon you. It is the fourth category of circumstance – the situation of your children - which I consider combines with the other mitigating circumstances to make this an exceptional case. If not for the circumstances of the children, I would sentence you to a term of imprisonment which would be substantially reduced due to the other mitigating circumstances. However, I am persuaded that the plight of your children, and their likely fate should you remain in gaol, in combination with the other mitigating factors to which I have referred, makes it just that I take the exceptional course of imposing a suspended sentence upon you.
Mrs Tran, I therefore propose to sentence you to three years’ imprisonment, the whole of which I will suspend for a period of 36 months. You will therefore not be required to spend any time in custody, but you must not commit any further offence which is punishable by imprisonment, otherwise you may be required to serve some or all of the suspended sentence.
Order
I therefore order that you are sentenced to three years’ imprisonment, but I order that the whole of that sentence be suspended for a period of 36 months.
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