R v Tuan Trong Manh
[2007] VSC 136
•4 May 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1420 of 2007
| THE QUEEN |
| v |
| TUAN TRONG MANH |
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JUDGE: | CURTAIN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 March 2007 | |
DATE OF SENTENCE: | 4 May 2007 | |
CASE MAY BE CITED AS: | The Queen v Tuan Trong Manh | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 136 | |
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Criminal law – Sentence – Intentionally Cause Serious Injury.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr S. Cooper | Office Public Prosecutions |
| For the Accused | Mr S. Johns | Victoria Legal Aid |
HER HONOUR:
Tuan Trong Manh you have pleaded guilty to one count of intentionally causing serious injury. No prior convictions are alleged against you.
In April 2006 you were working as pea picker on farms in the Wonthaggi area. You were living at a rented house in Hunter Street, Wonthaggi, with two other workers, the victim in this matter, Hoa Ngoc Nguyen, and Anh Tuyet Truong. The house was rented by one Van Le Nguyen who had arranged work and accommodation for you and other seasonal workers in the local area.
The weather on 20 April 2006 was inclement and work ceased at 1pm and you, and the victim Nguyen, and Anh Truong returned to the house in Hunter Street. At a later point that afternoon Van Le Nguyen came to give the three of you your wages, which ranged between $200 to $350, the higher amount being owed to Anh Truong. The three of you then settled the household expenses between you and an argument ensued between you and Nguyen about monies owing. Anh Truong intervened and the matter was not further pursued.
You then rang Van Le Nguyen and asked him to pick you up from Hunter Street, which he did, and you joined other workers at a local gaming venue and remained there until sometime after 6.45pm. During that time it appears that you lost your wages playing the poker machines and borrowed money from your associates. You later recouped your losses, or at least $216 worth of them, and left the club in the company of Van Le Nguyen, and others, who dropped you back at Hunter Street. When you got out of the car it appears that you showed no signs of being affected by alcohol and you did not appear to be otherwise distraught or upset.
You then joined Anh Truong and Nguyen for dinner and at the conclusion of which Anh Truong left the two of you to clean up, as she had cooked the meal. As Anh Truong went to the bathroom she saw Nguyen, in the kitchen, already tidying up and you taking dishes into the kitchen. Whilst in the bathroom, and as she was undressing, Anh Truong heard the sound of dishes falling to the floor and of Mr Nguyen screaming out as if in pain or fear. Anh Truong, frightened, ran out of the bathroom in an undressed state and across the road to the home of a neighbour - Mrs Ware. As Anh Truong could not speak English she could not be understood by Mrs Ware and Mrs Ware preferred to await the arrival of her husband, but in the meantime she rang 000.
When Mr Ware came home Anh Truong took him back to the house and the front door, which Anh Truong had closed behind her, was now open. Anh Truong entered and saw Mr Nguyen lying on his back on the floor in the kitchen with his face covered in blood and his eyes closed. She attempted to speak to him but he did not respond. She, fearing that you were still inside the house, quickly took Nguyen’s mobile phones and rang an associate for assistance and unsuccessfully tried to ring you.
Police attended the house at 7.58pm and there observed Mr Nguyen lying on the floor in a pool of blood with what appeared to be extensive head injuries. A rock was found within half a metre of Mr Nguyen who was mumbling and moving slightly. No one else was in the house.
Mr Nguyen was conveyed by ambulance to the Wonthaggi hospital, where he was placed under the care of Dr Hackett. Dr Hackett noted that he had multiple lacerations to his face and scalp and that his face was very swollen and deformed from the injuries, he was unable to open his eyes and was making grunting noises. Clinically he was observed to have facial fractures with an unstable maxilla and orbital margins. By reason of unstable fractures, a potential bone injury and possible basal skull injury, he was intubated and was subsequently transferred by road to the Alfred Trauma Centre. He was there attended to by Dr Mujic and urgently taken into the operating theatre where a craniotomy was performed. In that operation the bleeding was controlled, fragments of bone were removed from brain tissue, and Mr Nguyen’s left orbit and left side of the face were partially reconstructed using multiple plates and screws. Evidence of severe cranial base fracture crossing the optic nerve was noted. Following surgery Mr Nguyen was transferred to the intensive care unit, placed in a coma and put on life support to assist in his breathing.
It is not known where you went in the immediate aftermath of the attack. You did however contact Anh Truong who asked you why you had fought with Mr Nguyen and you denied you had assaulted him and claimed someone else had entered from the backdoor and caused the injuries. You were informed that Mr Nguyen would identify you when he regained consciousness and you were asked why it was that you had fled the scene and not attempted to take Mr Nguyen to hospital. You claimed that you were scared and that you had gone to Anh Truong’s room but as you could not find her you fled.
Subsequent to this, in the early hours of Friday 21 April, you attended Mr Van Le Nguyen’s home at 67 Broome Crescent, Wonthaggi. You asked Mr Nguyen for help which he declined. At this point the police had arrived at Mr Nguyen’s home and he told them that you were present and you were subsequently arrested and conveyed to the Wonthaggi police station. Your clothing which was covered with blood and other items were seized by the police.
At the Wonthaggi police station you complained to the police about soreness and swelling in your left wrist and forearm. You were conveyed to the Wonthaggi hospital for treatment and you were diagnosed as suffering a broken arm which was placed in a sling. You were then taken back to the Wonthaggi police station where a record of interview was conducted, in which you admitted your activities earlier in the evening, but otherwise declined to answer the specific allegations.
Mr Nguyen’s medical file was tendered in evidence as Exhibit E. He has been diagnosed as suffering, inter alia, traumatic brain injury, various haemorrhages and contusions, a left frontal compound depressed skull fracture, multiple facial fractures requiring partial reconstruction of the left orbital roof, the left zygoma and nasal bone, loss of vision in the left eye, nerve palsy, loss of sense of smell and post-traumatic amnesia lasting eight weeks. He also suffered poor short-term memory and mobility was affected by decreased balance, vision and dizziness. He required rehabilitation at Royal Talbot and was discharged from that hospital on 16 July 2006. Upon discharge he required medication and ongoing rehabilitation. He continues to suffer from a loss of vision in his left eye and a squint which will require further surgery for correction.
A Victim Impact Statement made by Mr Nguyen and tendered in evidence as Exhibit B speaks eloquently of the consequences which he continues to suffer. He now feels that he is “a disabled man and that half his life is lost”. He is now not able to support his family as he did in the past and he regards his future as dark and that he is “now totally broke in all aspects, materially, emotionally and psychologically”. I accept that Mr Nguyen has suffered significantly from the consequences of your conduct.
You are 36 years old, married, with two children. You arrived in Australia in 2002 on a business visa with the intention of operating a small business to make money to send home to Vietnam for the support of your family. You were soon advised that there was more money to be made as a picker and thus you took up this employment in the Kurrumburra area and in Queensland. You worked long hours and turned to drinking and playing poker machines to alleviate your loneliness. For this reason it is said that you were only partially successful in sending money back to Vietnam to support your family.
A report by Mr Joblin, Forensic Psychologist, dated 23 March 2007 was tendered in evidence as Exhibit 1. In it he details your personal antecedents which I accept. You have detailed to him that the incident occurred because you understood that Mr Nguyen was denigrating you behind your back to Miss Anh Truong and that you wished to discuss this with Mr Nguyen but instead you became upset and angry and that this led to the attack. You expressed to Mr Joblin your remorse and contrition and you acknowledge the seriousness of the situation. He describes you as a person of good intellect and not psychotic.
Your conduct whilst at the Melbourne Remand Centre has been satisfactory. You have obtained an Occupational Health and Safety Certificate which has enabled you to be employed whilst in custody. You do not speak English but have been able to speak with other Vietnamese-speaking prisoners although, as I understand Mr Joblin’s remarks, you regard them in negative terms. You have not been able to engage in any educational activities or programmes and you have not received any visits whilst in custody. Telephone contact with your family in Vietnam has not been able to be achieved because they do not understand the English preamble in the telephone call and hang up. Although more recently your family have been advised, through the agency of a Vietnamese Priest, that you are in prison. I accept that your incarceration will be more burdensome to you by reason of the language difficulties and that the harshness of prison life will not be ameliorated by regular family visits. Mr Joblin reported that upon release you propose returning to Vietnam to be with your wife and children and indeed it is most likely that you will be deported upon your sentence being completed.
The maximum penalty for the crime of intentionally causing serious injury is 20 years. In sentencing you I must take into account the nature and gravity of the offence here committed and your role in it. Here you have assaulted your victim by hitting him on the head with a rock and this has caused him serious injury resulting in traumatic brain injury, surgical intervention, considerable rehabilitation and apparently lasting consequences. I accept that this was a spontaneous act on your part, but nevertheless, it was, to all intents and purposes, a totally unprovoked attack upon your co-worker because you were concerned that he was talking about you behind your back. I regard this as a vicious assault and as such your offending conduct is to be regarded as a serious example of a serious offence.
In sentencing you I must also take into account the need to pass a sentence which will act in denunciation of your conduct and serve to punish you. Further, any sentence imposed must also seek to specifically deter you from re-offending and signal to likeminded members of the community that such conduct will be met with condign punishment. You have no prior convictions and thus you are to be regarded as a person of good character and as Mr Joblin has described you, you are a man of good intellect. In these circumstances your prospects for rehabilitation are not without hope.
Accordingly, in sentencing you I take into account your plea of guilty given at the earliest opportunity and give you a discount for it. I take into account that by reason of such plea you have saved the community the expense of a trial and your victim the ordeal of one. I take into account your good character, that you have no prior convictions, that at the age of 36 you are before the courts for the first time and that this will therefore be your first period of imprisonment, and I take into account that you will be serving a significant period of imprisonment for the first time. I take into account also that imprisonment will be more burdensome to you because you do not speak English and because you will not have the benefit of familial visits because your family is in Vietnam. I take into account also that you are remorseful, contrite and acknowledge the seriousness of your offending conduct. In short, I take into account all matters which go in your favour and accordingly for the crime of intentionally causing serious injury you are convicted and sentenced to 7 years imprisonment and I order that you serve a period of 5 years before becoming eligible for parole and I declare that you have already served by way of pre-sentence detention a period of 377 days.
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