R v Tu
[2009] VSC 131
•8 April 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1519 of 2007
| THE QUEEN | Plaintiff |
| v | |
| NHAN TU | Defendant |
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JUDGE: | FORREST J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 February 2009 (Plea) | |
DATE OF SENTENCE: | 8 April 2009 | |
CASE MAY BE CITED AS: | R v Tu | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 131 | |
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CRIMINAL LAW – Sentencing – Manslaughter – Plea of guilty – Actions constituting unlawful and dangerous act manslaughter.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. Brown | Office of Public Prosecutions |
| For the Accused | Mr G. Meredith | Victoria Legal Aid |
HIS HONOUR:
Introduction
Nhan Tu, you have pleaded guilty to the killing of Tommy Lee on 1 January 2007.
In August 2008 before Justice King of this court a jury was unable to reach a verdict on the charge of murder. Subsequently the Crown accepted your plea to the charge of unlawful and dangerous act manslaughter of Tommy Lee.
The facts
You are now 27 years of age and have two children, both girls, who were born to Tanya Bryan, your partner. Since 2002 you have lived with her, up until the time of the death of Tommy Lee, at your unit in Glen Waverley.
You had met Tommy Lee in 2000 and were friends since that time. In 2006 you and the deceased spent a considerable amount of time together at your unit in Glen Waverley.
Although Tanya Bryan initially resented the influence of Tommy Lee upon your family, ultimately she and Tommy Lee became close friends particularly as a result of their shared pursuit of video games. In the months prior to the death of Tommy Lee Tanya's relationship with him became intimate which caused you concern and angst.
On 20 December Tanya left the unit and spent two nights with the deceased at a motel. You were left in charge of the children and when she returned she told you that she had not been with Tommy Lee
Over the ensuing week including Christmas and leading up to the New Year, you and Tanya continued to bicker, and it is clear your relationship was on a knife edge. She discussed separation with you. There was considerable friction between you both as to any potential separation and the effect that it would have on your children. On the night before the incident you struck her with sufficient force to require her to have treatment at the Box Hill Hospital where apparently muscle damage to the neck and shoulder areas were diagnosed.
At four o'clock in the afternoon of New Year's Eve Tommy Lee drove to your house and parked in the driveway. You went to speak to the deceased and Tanya Bryan followed you out. Tanya, you and Tommy Lee engaged in discussion about Tanya and Tommy Lee's relationship. Tanya asked if she could leave with Tommy Lee and you said yes. Tanya then started to walk toward the unit to retrieve her belongings. You called Tommy Lee a "fucking dog" and said "You're wrecking my family" to which he replied "Come over here and say that." You then rushed inside the unit and retrieved a carving knife and on the way back outside you brushed past Tanya to confront Tommy Lee. I shall return in a moment to the exact circumstances of your attack, and the end result was you stabbed Tommy Lee with the carving knife to the left side of the head near his ear, causing him to slump to the ground. You then placed him on the rear seat of his car and reversed the car into the street.
You then removed your children from the house and drove away in your vehicle. You said to Tanya "Don't tell them that was me." Having dropped the children off you disposed of the carving knife and then travelled to Bendigo and subsequently to Mildura where you were arrested by police on 18 January 2007.
Tommy Lee was attended to by an ambulance crew and then conveyed to the Alfred Hospital where he died the following day.
The opinion of the pathologist, Dr Woodford, is that the cause of death was a stab wound to the left temple region, with a penetrating injury to the brain, the length of the wound track being about 90 to 100 millimetres. He estimated the degree of force required for the infliction of the stab wound to be at least severe on a scale of “mild, moderate, severe and extreme”.
Much of that which I recounted was not in dispute at the trial before Justice King, however, the mechanism by which Tommy Lee received the stab wound was the subject of hot debate. You contended, on oath, that you had slipped or stumbled as you reached Tommy Lee and that this caused the knife to strike him. In other words his death was accidental. Based upon this your counsel invited the jury to acquit you. This was one of a number of contentions put on your behalf at the trial, including that of self-defence.
On the plea it was submitted on your behalf that this explanation, that is, stumbling or tripping is consistent with your plea of guilty to manslaughter. It was said that the wielding of the knife rather than its use in close proximity to Tommy Lee was the unlawful act which led to his death, and that the blow was occasioned when you slipped or stumbled. I reject this entirely improbable suggestion. You are unable to say how or why you overbalanced or slipped. Such an account is totally inconsistent with the surrounding facts and particularly you arming yourself with a knife and rushing out to confront Tommy Lee. Whether there was a degree of pushing between the two of you prior to the infliction of a blow is, I think, of little importance.
Significantly, your account is inconsistent with the wound inflicted both in terms of the penetration of the wound and the degree of force required as deposed to by Dr Woodford.
I also reject the explanation that you armed yourself with a knife on the basis that you believed Tommy Lee had a weapon. You saw no such weapon. The suggestion it may have been the reflection of his mobile phone in his hand can be discounted as it was found in the rear of his motor vehicle.
Your behaviour afterwards also militates against the possibility that this was either an accident or merely occurred because of some unwise wielding of the knife accompanied by a stumble or fall. It is consistent, I think, with you appreciating that you had deliberately inflicted harm upon Tommy Lee and then, as a token effort towards his well being, placed him in his motor vehicle and decamped until apprehended by the police. The note that you left with your mother, which included the words: 'I will be locked up for a very long time -" hardly sits comfortably with an accident or an account of a slipping incident.
Moreover, the slipping explanation is inconsistent with your plea of guilty to manslaughter by an unlawful and dangerous act. The dangerous and unlawful act was the intentional blow to Tommy Lee's head with a knife. It is in my view not to the point that the Crown at your trial invited the jury to consider the alternative scenario postulated by your counsel. The issue is whether the facts support such a contention. They do not.
In reaching this conclusion I put to one side the evidence of Ms Barker, the witness who observed the events outside your unit from across the road in the living room of her house. There was significant inconsistencies in her evidence as demonstrated by your counsel's address to the jury at your trial. Rather, your version is simply incompatible with the other established facts that I have set out. The likelihood that you slipped or stumbled prior to inflicting a severe and direct blow to Tommy Lee's head after rushing to your unit to arm yourself is, in my view, remote and can be discounted. I am satisfied beyond reasonable doubt that what occurred, consistent with your plea of guilty, is that with one deliberate blow you stabbed Tommy Lee to the head; given the Crown's acceptance of your plea of guilty to the charge of manslaughter, you did not intend to kill, or really seriously injure Tommy Lee.
The victim and victim impact
Tommy Lee was 31 years old at the time of his death. He had fled from Vietnam with his mother when he was eight years old, and at the time of his death, was still living with his loving and devoted parents in Wheelers Hill. He was the youngest of eight children and had lived all his life with his family. He was regarded by his mother as being very special because of the support he had provided her when in Vietnam and separated from her husband.
The death of Tommy Lee has had a profound and devastating effect on his family. Dien Thi Le, his mother, in her victim impact statement says as follows:
“At the hospital I became aware just how serious things were. My son lost consciousness, I would talk to him and he could not respond. I nearly collapsed myself, the nurses had to support me. I have never cried so much ever before. Even now the grief I feel is as strong as that day in the hospital. I miss him so much. … Tommy Lee's death was a big loss to our family, I had cared for him since he was a young baby. I feel like half of me has already died. I feel down and physically I get quite sick since his death. I experience headaches which cannot be explained by my doctor. I have had many scans. I never sleep through the night. I would never sleep for more than three hours a night. I do not want to take sleeping tablets. I have also noticed that I have lost a lot of weight since Tommy Lee's death.”
Tommy Lee's father, Giap Nguyen says as follows:
“On the second day in the hospital the doctor explained that Tommy Lee's health was not going to improve. At this point I lost all hope. They explained that they would have to turn off the machines that were keeping my son alive. The pain in my heart was unbearable. I have eight children in Australia and we always enjoyed spending time together and the time was very happy and valued by everyone. Tommy Lee lived with myself and my wife before this incident. After his death there was such sadness, both myself and my wife have had many sleepless nights, we lost our appetites and I have constant flashbacks of Tommy Lee lying there in the hospital. There is not one day when I do not think about how or why this happened to my son, I think of the pain he must have suffered. … On the rare occasion that we hold a party now, it is not the same, we are aware that Tommy Lee is not with us and this brings sadness. Having lost my son is like losing a part of my body. The experience of attending court hearings was very difficult, as is writing this victim impact statement because I have to relive the terrible details of what happened to my son and also to be reminded of the pain and loss me and my family have suffered and we will continue to experience for the rest of our lives.”
The victim impact statements of Tommy Lee's siblings reveal similar effects upon them. For instance, his sister, Thao Nguyen says:
“To this day I still feel the guilt for not taking him away on holiday with us during the time of the incident. My look on life and the future is one full of worries and concern as I have a child of my own. … There will always be a large hole that is missing from our family lives. The nightmares of what happened to my brother never seems to go away and the feeling of insecurity, my safety, my family's safety and my child's safety will always be of concern and worries knowing that the offender knows where my family and my parents live.”
All these statements demonstrate the devastating consequences of your actions on that afternoon.
Background
You were born on 23 July 1981 in Vietnam. You are now 27 years of age. You also left Vietnam with your mother when you were six years old and spent a considerable time in a refugee camp in Thailand and then arrived in Australia at the age of eight. You were raised in Australia by your mother and stepfather, although it seems to have been an unhappy relationship. You left home at the age of 15 and left school in year 10.
You have, from your teens, been a user of drugs, and have only engaged spasmodically in employment. As I have said, at the time of this offence you were living with your partner, Tanya Bryan, and have been together for approximately five years with your two young children being brought up by you both.
You have had problems with chronic drug use from an early age. Notwithstanding this you are a keen tennis player with apparent ability.
You have worked intermittently in the years prior to this offence. You have also spent time in gaol and in fact met the deceased at Dhurringal Prison. You last worked, it would seem, approximately six months prior to this offence as a telemarketer. You did provide care and support for your two children when out of work.
Prior convictions
In the period of eight years you have been before the courts on 11 separate occasions, and have served periods of detention in a Youth Training Centre, as well as periods of incarceration including 12 months' imprisonment imposed in May of 2002. You have been convicted of a number of drug offences including trafficking in heroin, and being in possession of heroin. You have, amongst a wide range of convictions, been convicted of charges of theft, unlawful assault, assault with a weapon, burglary, possession of property being the proceeds of crime, handling stolen goods, and assault between the period November 2000 and October 2006.
It seems clear that your prior convictions and periods of imprisonment are related to your use of and trafficking in drugs.
At the time of the subject offence you were waiting an appeal against your conviction in the Magistrates' Court at Dandenong on 23 October 2006 on charges of theft, assault with a weapon and possession of heroin, for which you were sentenced to three months' imprisonment. That appeal was subsequently abandoned.
Plea of guilty
You have since shortly after the committal hearing indicated you were prepared to plead guilty to the charge of manslaughter. The Crown would not accept this plea until the jury disagreed at your trial. That plea needs to be counted in your favour as it has now saved the community the considerable expense for a further trial.
Psychological issues
A report has been prepared by Carla Lechner, clinical and forensic psychologist, who interviewed you on 28 June 2009. She concluded that you evidenced symptoms of a mild to moderate depression, but these were not at a clinical level. I am not satisfied that you have any relevant psychological condition which should ameliorate the appropriate sentencing considerations.
Remorse
You have told the consultant psychologist, Carla Lechner, that you regret and are ashamed of your involvement in this crime. Your plea of guilty also counts in that regard as demonstrating remorse.
Nature and gravity of the offence
Arming yourself with a knife and then attacking the deceased, was a dangerous and foolhardy reaction which ultimately resulted in the death of a young man who had once been your friend. This was a serious case of homicide.
Responsibility and culpability
I accept that in the week leading up to the incident you were under considerable stress. You were at times looking after the children on your own while Tanya was with the deceased. Your action seems, I think, to be one of rage at both the actions of your partner and Tommy Lee at a time when your relationship with Tanya was disintegrating. However, your actions after the attack on the deceased showed little responsibility. You did nothing to assist him, and rather relied upon others to help him while you endeavoured to make good your escape. Notwithstanding your apparent rage and the lack of any premeditation of your actions, your culpability and responsibility for Tommy Lee's death must be a significant factor in the imposition of a sentence.
Maximum penalty
The maximum penalty for the crime of manslaughter is 20 years' imprisonment. I have had regard, as I am required to by the Sentencing Act to current sentencing practices in relation to this offence.
Rehabilitation
The psychological report of Carla Lechner states that there is no reason at least intellectually why you cannot engage in productive work and contribute to society in the future. However, your prior convictions are disquieting and indicate, notwithstanding periods of imprisonment, an escalation in offending rather than appreciation that such offending will not be tolerated. It is to be hoped that a period of imprisonment, and more particularly a period of parole when you are released, will enable you to receive counselling and assistance to prevent a return to your drug addiction and for you to become a productive member of society and enjoy a life with your children.
One thing that I am certain of is that you do care for your children, and that factor alone, perhaps above everything else, may be the key to your rehabilitation.
Conclusion
Nhan Tu, you took the life of a former friend in circumstances in which you bear a significant degree of culpability and responsibility. The sentence to be imposed upon you must express the denunciation by the community of your actions as well as provide adequate general and specific deterrence.
The punishment must be just and proportionate given that your crime has terminated a young man's life and has produced devastating effects upon his family as I have set out. There is a clear need of a sentence to reflect specific deterrence. Your long list of prior convictions, including those of assault with a weapon, demonstrate the need for such a component. This is particularly so when at the time of this offence you were on bail awaiting an appeal to the County Court for several offences committed only a couple of months before the subject offence. As against that, I have to give appropriate weight to your plea of guilty, your relative youth, and the fact that you will be separated from your children, and have been separated from your children for some time.
Balancing the competing considerations I have endeavoured to set out, I have determined that you should be sentenced to a term of imprisonment of ten years. I am conscious of the recommendations of Ms Lechner in relation to a non-parole period so that you will have a reasonable period of parole and support provided whilst on parole. I fix a period of eight years as the appropriate non-parole period.
I am hopeful, rather than confident of your prospects once you are released from gaol, and I accept that you will benefit from a reasonable period of parole.
Sentence
Nhan Tu, you have pleaded guilty to the manslaughter of Tommy Lee of which I now convict you. I sentence you for that offence to imprisonment of ten years and set a non-parole period of eight years beginning this day.
I declare the period to be reckoned as already served under the sentence I have imposed on you is 721 days, and I direct that there be noted in the court's records the fact that the declaration has been made in these details.
For the purpose of s.6AAA of the Sentencing Act I state that but for the plea of guilty I would have imposed a period of imprisonment of 12 years with a non-parole period of ten years.
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