R v Tran
[2012] VCC 297
•9 March 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
CR-11-08140
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TUAN MING TRAN |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 March 2012 | |
DATE OF SENTENCE: | 9 March 2012 | |
CASE MAY BE CITED AS: | R v Tran | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 297 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Causing serious injury intentionally – Alcohol consumption – Older first time prisoner
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N. Batten (Plea) Ms B. Yildiz (Sentence) | Mr C. Hyland, Solicitor for Public Prosecutions |
| For the Accused | Mr P. Tiwana (Plea) Mr J. Dowsley (Sentence) | James Dowsley & Associates |
HER HONOUR:
1 Tuan Ming Tran, you have pleaded guilty to one charge of causing serious injury intentionally, which carries a maximum penalty of 20 years imprisonment. Your offending was opened by Mr Batten for the Crown as follows. In the afternoon of Saturday 9 July 2011, you were at the home of Kon Tran at 99/108 Elizabeth Street, Richmond. Other friends of yours were also there, being Kon Tran, Tan Chow Nguyen and Van Chook Nguyen. You were playing cards and drinking alcohol, as you had done on many occasions before this. You had all known each other for many years. Tan Nguyen considered you a good friend and had known you for about ten years. You talked and played cards until early on Sunday morning.
2 Van Chook Nguyen left at about 5 am. You and the others continued talking and drinking Victorian Bitter beer and had some food. Tan Nguyen told you that he had heard that you had lost your job at the chicken factory. You became upset and accused Nguyen of making this up. Mr Nguyen said that you had been stealing chickens, which was a claim that he admitted in his police statement he had made up. He said that he thought that this was just a joke on his part and he was teasing you. You said that you would be very hurt if other people thought this about you and told Mr Nguyen not to make up such things. Mr Nguyen apologised and he stopped teasing you. You appeared to be happy with this and you and the others continued to socialise.
3 At about 7 am Mr Nguyen told you that he had heard that you had a girlfriend living at 110 Elizabeth Street. You again accused Mr Nguyen of making up stories and again became very upset. Mr Nguyen denied making this up and there were heated words exchanged between you. You went to the kitchen and found a knife in the drawer. You continued to accuse Mr Nguyen of making up a story about the girlfriend, which Mr Nguyen denied. You returned to the room holding the knife in your left hand and sat back down next to Mr Nguyen. You then proceeded to stab him in the right side of his back. Mr Nguyen felt some pain but he did not realise he had been stabbed until he saw the knife in your hand. He yelled out to Kon Tran that you had stabbed him. Kon Tran yelled at you and tried to push you away. Mr Nguyen stood up and again denied making up the story. You again stabbed Mr Nguyen, this time on the right side of his stomach. Kon Tran continued pushing you away and Mr Nguyen removed the knife from his stomach, where it was lodged, and tried to cover the wound. He noticed blood and felt some pain but initially not a lot.
4 Kon Tran pushed you out of the unit, berating you. You left, saying to Mr Nguyen as you went, "From now on you shouldn’t make up stories." The knife was of a type used to bone chickens and had a very sharp point. It was photographed by police subsequently and the photo booklet, which includes its image, was tendered on the plea.
5 Kon Tran and his girlfriend, Frankie Long, who had been asleep in the home at the time that you committed this offence, assisted Mr Nguyen by calling an ambulance and took him in the lift to the ground floor of the building. On the way Mr Nguyen was able to walk but the pain became very bad and he became light-headed. On the ground floor he lay down and feared that he might die. Security guards came to his assistance and at about 7.50 am police and an ambulance arrived. Ambulance officer Glenys Winter observed a two centimetre open puncture wound to the right posterior upper chest and a second wound to the right hypogastric region of the abdomen. There was minimal blood loss. She observed that Mr Nguyen smelt heavily of alcohol. He was taken to the Alfred Hospital and operated on by Dr Tuk Yong.
6 An abdominal incision was required which revealed two small bowel stab wounds. Removal of parts of the bowel and colon and rejoinder of segments were required as well as forty-two stitches. I was told by the learned prosecutor that the doctors' statement in relation to the injuries which appeared at p.64 of the materials was adopted as part of the opening and the doctors' statement expands somewhat upon the medical evidence which is referred to in the typed outline. I take the doctor's statement into account as part of the Crown opening.
7 You were arrested at about 9.45 am at your home near 110 Elizabeth St. You were taken to Richmond police station and interviewed at 12.35 pm with the help of a Vietnamese interpreter. You were then remanded in custody. In your record of interview you admitted stabbing Mr Nguyen earlier that day. You said that you had responded to Mr Nguyen's false allegations about chicken stealing by saying to Mr Nguyen that this was a serious matter not to be joked about and that such stories could damage your reputation. You said that the accusation of being in a relationship concerning a married woman was false and was damaging to your honour and was insulting. You said that you had been really drunk, very angry, lost your judgement and had done the wrong thing.
8 You pleaded guilty at the committal mention on 5 September 2011 and the matter proceeded by way of hand-up brief. Notwithstanding that there was a level of provocation in Mr Nguyen's remarks to you, your reaction to this was completely disproportionate and extremely violent. You stabbed your friend not once but a second time and in the knowledge that you had done this, you then saw fit to further reprimand him for making his provocative remarks. However, I accept that very soon after this you felt deep and genuine remorse and it appears to me that you encapsulated the situation with precision and honesty when you told the police that you had been really drunk, very angry, lost your judgement and had done the wrong thing.
9 Notwithstanding your accurate insight, objectively your offending is most serious. However, in terms of your moral culpability I do take into account the fact that your offending was provoked by the unfortunate comments made by the complainant, Mr Nguyen. The offending would have been all the more serious if you acted as you did without any provocation.
10 Mr Nguyen made a victim impact statement and he asked that parts of it be read aloud at the plea hearing. In his victim impact statement Mr Nguyen said that since this incident he has become very scared and obsessive and he is afraid that anything might happen to him. He has become distrustful of people, even his friends. He is so stressed that he cannot sleep at night and he said that this affects his wife. He has had to move to sleep on the couch in the living room because of this. He said that after the surgery, which he underwent for the injuries that you caused him, his wounds were still quite painful and he had to take painkillers every day. He has had to walk slowly and cannot do anything strenuously. He said he cannot carry anything heavy and cannot do what he referred to as "home work." He also has lost his appetite and cannot eat as well as he did before. He cannot play with his children or take them out to the park or shopping as he did before. He also fears that the wounds have affected his liver. In this last respect there is no evidence to suggest that this has in fact occurred and I do not factor this in as a medical possibility. He has also suffered serious impact to his financial situation, as he had just become employed prior to the incident. He says that he has lost his job as a result of your offending and is now no longer able to work to support himself or his family. He is now receiving unemployment benefits.
11 I should qualify what was put in the victim impact statement in that these were the effects upon the victim as at September last year when he made the victim impact statement. I was told by the learned prosecutor that some of these matters have resolved in terms of the physical complaints. However, the emotional and psychological difficulties as well as the financial difficulties persist, as I understand his position.
12 Mr Tran, these are the very real consequences of your actions. In order to ensure that you do not repeat such offending, you must take these matters on board and decide never again to react as you did that day.
13 By way of background I was told the following things about you. You were born on 20 January 1960 in a small town in Vietnam. You are the oldest of nine children. One younger sister lives in Melbourne but all other siblings live in Vietnam. Your family was poor. Your father supported the family by performing manual labour type work in a factory which made picks. You and your siblings would also work in this factory. You left school in 1976, having completed the equivalent of Year 9. You were a very close knit family and were especially close to your maternal grandmother.
14 After the end of the Vietnam War I was told that things were becoming increasingly more difficult, owing to a financial depression and tough rule of law. Conscription in the army was on the horizon and it was thought best that you leave Vietnam. You left your country of birth in 1982 when you were 21 or 22 years old. You then spent the next two years in a refugee camp in Indonesia, where the conditions were dire. You lived in squalid conditions with no running water or electricity. You were not allowed to leave the camp but had to somehow provide your own food. As the refugee camp was close to a beach, you and the other people there were heavily reliant upon catching fish in order to eat.
15 You came to Australia in 1984 and lived in Queensland for some time. You attended English classes for a few months. I was told by your counsel that you do not speak English but you do understand some English. You worked for the council as a labourer for about two years, then moved to Melbourne in order to find more people in the community who were from your own background. You worked as a machine operator with Nylex and then you worked for Good Year in the tyre factory. You worked for Nylex for 13 years and this only came to an end when the company closed down. You then embarked on a few labouring jobs before going to a company called Nice And Fresh, which was a poultry supplier. You commenced work with them towards the end of 2005 or 2006. Your employer, Mr Ben Tree, gives a reference in wholehearted support of you and was also present at your plea. In your work with him you are required to work six days a week and you work very long hours which requires you to start the day at five o’clock in the morning.
16 You are immensely dedicated towards your family. In 1992 you went to Vietnam to get married. One year later your wife came to Australia and as a result of your marriage you have a son who is now 13 years old. After seven years you and your wife separated but you keep in touch with her. You are devoted to your family and have suffered the pain of losing your paternal grandmother in 2003 and subsequently your mother.
17 I was told that your life revolves around your work and family, however, otherwise you have very few friends. The group with whom you mixed on the occasion of your offending were your friends and you met them fairly regularly to drink, eat and play cards. You were in a fragile state on the occasion upon which you offended because a few weeks before you received news that your maternal grandmother, to whom you had been very close, had passed away. Unfortunately, you were not able to attend her funeral which was very upsetting for you. You then learned that your father had been diagnosed with liver cancer, which added to your distress. I was told by your counsel that you were very frustrated as you needed to be with your family. You had taken three weeks off work just before you committed this offence in order to go to Vietnam to be with your family, in particular to be with your father. Therefore, on the night of your offending you were in a fragile state and your drinking exacerbated your feelings.
18 I was also told that a third matter that had impacted upon you was that Ms Duyan had ended your relationship in March 2011. Your counsel said that the way in which you reacted to the victim on this occasion should be seen in the context of such fragility and that the false accusations that he was making against you caused you to snap. He acknowledged that this was also in the context of you being affected by alcohol, which has been a problem for you for a very long time.
19 I accept that this was the context in which you committed the offence. You had grown up in a culture that considered alcohol consumption as a norm. After the incident you had sought help of your own volition to deal with the problems you have had with alcohol and have attended a program on a regular basis since September of last year. Up to the time of your remand in custody you were attending the program fortnightly. You have found the sessions very helpful and have either abstained or at least drastically moderated your alcohol intake in the months since you commenced the program. You decided to take this step after seeing a psychologist in August 2011 who identified that one of the factors in your offending was alcohol intake.
20 It is very much to your credit that you have realised that alcohol has played a part in your offending and have done something about it. Although I do not accept that at this stage it can be said that you have finally dealt with your alcohol problem, the signs are very positive.
21 I take into account the fact that you are no longer able to go to Vietnam because of your offending and this is punishment in itself, although it is a necessary incident of what you yourself have done. I also take into account the fact that you have a language barrier, which will make time in custody harder for you than for those who speak and understand English, although it was conceded by your counsel that there are a number of other people in gaol who do speak your language. Still, I accept that you will experience a good deal of isolation because of this. I also take into account the fact that this is your first time in gaol, which will be more burdensome for you than for someone more accustomed to the place. I accept that despite your initial reaction to what you had done to Mr Nguyen, you have shown considerable remorse and that your early plea of guilty manifests this.
22 You are 52 years old and have no prior convictions. You have therefore shown that you are able to behave in a law abiding manner and can call in aid the fact that you have done so for many years before this incident. It is indeed a great shame that a person who has led a law abiding life for so long and worked so hard for himself and his family has found himself in this situation. I understand that you have had difficulties with alcohol consumption for a good many years. But it was only this occasion which saw you react violently as you did due to the combination of factors that I have previously referred to.
23 Since the incident you have attempted to address your alcohol issues and have shown that you are largely able to do this. You pleaded guilty at an early stage and are therefore entitled to a substantial discount in a sentence that you would otherwise receive. This is because you have saved the witnesses, particularly the victim, the time and trauma of giving evidence in contested proceedings and you have also saved the community the time and expense of running contested proceedings.
24 At the plea hearing your employer, your former partner and a good friend appeared at court in support of you and I see that you have some supporters here again today. Further, a number of references were tendered, some of which were written by the people who came to court to support you. All the references attest to the fact that you are a person of otherwise very good character and have led an otherwise very good life. At the time of this offence you had been employed as a transport driver for a company that provided poultry to restaurants and you worked tirelessly in this job. It is clear that you have always had a very strong work ethic and have behaved in a most responsible fashion in the past in terms of your work and supporting family.
25 It was submitted to me that you have dealt with your difficulties with alcohol but as I have said you still have perhaps a way to go to ensure that that is the case. However, in all of the circumstances, including the fact that you have no prior convictions and also you do have some community supports and a keen work ethic, I find that your prospects of rehabilitation are very good. There is only the need to place minimal weight on specific deterrence. But general deterrence is a different matter. I must send a clear message to others who may be tempted to behave as you have that such conduct will not be tolerated and will be met with appropriate sanction. I must also impose a sentence that denunciates your conduct and imposes a just punishment. I do not need to place any particular weight on the need to protect the community in your case.
26 I also note that psychological material was tendered on your behalf. However, they were not expressly relied upon in the course of your plea. Notwithstanding this, I take these into account but I note that there is nothing in particular that really points to any impairment of mental function, such as would reduce your moral culpability and no submissions were made in that regard by your counsel.
27 The Crown submitted that a range of between two and a half to four years as a head sentence with a non-parole period of between one and a half and three years was appropriate in your case and I was referred to four decisions of the Court of Appeal to indicate current sentencing practice. Your counsel referred me to the sentencing snapshot, relying on average figures in respect of the offence that you have committed. All of these materials are guides in relation to the appropriate sentence I ought impose and I have had regard to them. But I must impose a sentence which is fitting in all of the circumstances of your case, whilst being mindful of current sentencing practice and the maximum penalty for this offence.
28 It is indeed tragic that a man who has led an otherwise blameless life finds himself in this situation where the only option for a court is to impose a period of immediate imprisonment. But as has been properly acknowledged by your counsel, this is the only option available to me. However, as there are strong mitigating features in your case, I intend to impose a sentence which is at the bottom of the range which was submitted by the Crown. Whilst your counsel submitted that a minimal period even less than that proposed by the Crown was appropriate, I am unable to agree with such a submission in light of the weight which I must attach to all sentencing considerations and in view of the current sentencing practice and maximum penalty which applies to this most serious offence.
29 In relation to the offence of intentionally causing serious injury you are convicted and sentenced to two and a half years' imprisonment and I order that you serve one and a half years' imprisonment before becoming eligible for parole. If not for your plea of guilty I would have sentenced you to a total effective sentence of four years' imprisonment with a non-parole period of three years. I make orders for the disposal of the knife and retention of the forensic sample which has previously been obtained. Neither of these orders are opposed. I declare that you have already served ten days' imprisonment which will be counted as being part of your sentence that has already been served.
30 Are they the matters, counsel?
31 COUNSEL: Yes, Your Honour.
32 HER HONOUR: Yes, thank you, you may remove the prisoner. Thank you, Madam Interpreter.
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