R v Vu
[2018] ACTSC 359
•14 December 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Vu |
Citation: | [2018] ACTSC 359 |
Hearing Dates: | 31 August 2018; 14 December 2018 |
DecisionDate: | 14 December 2018 |
Before: | Loukas-Karlsson J |
Decision: | See [57]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – intentional wounding – plea of guilty – low range objective seriousness – no criminal history – low risk of re-offending – intensive corrections order |
Legislation Cited: | Crimes Act 1900 (ACT) s 21 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 11, 33 |
Cases Cited: | Hili v the Queen [2010] HCA 45; 242 CLR 520 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Vimahi v the Queen [2018] ACTCA 18 |
Parties: | The Queen (Crown) Tung Lam Vu (Offender) |
Representation: | Counsel Mr P Dixon (Crown) Mr K Archer (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Defendant) | |
File Numbers: | SCC 224 of 2017; SCC 225 of 2017 |
Loukas-Karlsson J
Introduction
On 18 July 2018, Tung Lam Vu (the offender) pleaded guilty to an offence of intentionally wounding contrary to s 21 of the Crimes Act 1900 (ACT). The maximum penalty for this offence is five years' imprisonment.
Agreed Facts
The agreed facts are set out in the statement of facts which forms part of Exhibit 1, being the Crown tender bundle.
On 13 November 2016, a person named Mr Van Dung Dong sent Mr Minh Van Trong Hoang a text message to arrange a meeting for 4:30pm the following day at the rear of the Vinton Bakery at the Calwell Shopping Centre, where the complainant was working. He wished to discuss the dispute between himself, the complainant, and the offender. At approximately 4:30pm on 13 November 2016, the complainant drove his car to the Calwell Shopping Centre and parked in the car park. The complainant got out of his car and at the time was carrying a fishing knife in his pants. The meeting was captured on CCTV.
The complainant’s brother, Vu Hoang, also drove to the Calwell Shopping Centre and parked his car in the access road car park across from the Vinton Bakery rear door. The complainant met his brother on the access road where they had a quick chat before the complainant walked to the rear entry stairway for Vinton Bakery. Mr Hoang returned to his car and sat in the driver’s seat with the door open.
At this time, Mr Dong drove his car away from the Vinton Bakery. He got out of his car and walked about 50 metres to the Vinton Bakery steps and sat down on them. At about 4:40pm that day, the offender drove his white van along the access road and parked near the Woolworths bay. Directly adjacent to the Vinton Bakery steps. The offender got out of his car and walked around to the bottom of the steps to meet with the complainant and Mr Dong. The three started to discuss the dispute. The complainant, who was standing at the top of the stairs punched the offender several times in the head. His punches connected on two occasion. The offender was pushed backwards from the blows. The complainant placed the offender in a headlock and they wrestled for a few seconds.
Mr Hoang ran over to the group and, with the help of Mr Dong, the offender and the complainant were separated. Mr Dong led the complainant away from the steps and across the access road to the car park. The complainant’s hands were empty. Mr Hoang followed Mr Dong and his brother and the offender watched them walk away. At that time, there was approximately 30 metres distance between the offender and complainant.
The offender walked to the left side of his van and opened the sliding door and leant into the back of the van. The offender left his car and is seen on CCTV footage to have passed an item from his left hand to his right hand which he put into his jacket pocket. That item was a knife. The offender then put a cigarette in his mouth and walked toward the group on the other side of the car park. The offender then returned to his van to light his cigarette. He then slowly walked back towards the group.
As the offender walked over to the group, the complainant was standing beside his car with Mr Dong and his brother. The complainant turned to face the offender at some distance. They yelled at each other. The complainant then rushed toward the offender. The offender had his right hand in his pocket. Mr Dong grabbed the complainant’s white chef jacket as he ran past him. The complainant twisted out his jacket and, at the same time, the offender moved forward towards him. The offender removed his hand from his pocket and was holding a knife in his right hand.
Mr Dong attempted to intervene as the complainant retreated sideways. The offender closed the distance between himself and the complainant and after he cocked his right arm several times, made a forward thrust at the complainant. Mr Dong stepped between the two men. The complainant retreated beside another car. The complainant then ran around the car, back to where the offender was. At this stage he also held a knife in his right hand. Mr Hoang stood in front of the complainant as he tried to run at the offender.
10. The complainant side stepped past his brother and he closed the remaining metres to the offender as the offender stood his ground. The offender was holding a knife in his right hand. He thrust his right hand forward and stabbed the complainant on the left side of his chest. It is at this point that the complainant was wounded. The complainant was also trying to swing his arms toward the offender. Mr Hoang and Mr Dong grabbed the complainant and restrained him as he struggled toward the offender. The offender stood watching the complainant as he was restrained and held up by the other two men. The offender had a drag of his cigarette and walked across the access road returning to his van. The offender then drove away.
11. Mr Trevor Clifford was working as a cleaner at the Calwell Shopping Centre on 14 November 2016. He saw that both the complainant and the offender had knives. He contacted police via 000 from a cordless phone he borrowed from a hairdressing salon inside the shopping centre.
12. The complainant collapsed down next to his car. Mr Dong left soon after. Annika Brookyard, a pharmacist employed at Capital Chemist, and Annissa Curren, a registered nurse working at Ochre Health, provided first aid to the complainant until an ambulance arrived. The complainant was transferred to the Canberra Hospital.
13. Dr James Eldridge examined the complainant at the Canberra Hospital Emergency Department on 13 November 2016. Dr Eldridge formed the opinion that het complainant suffered a single stab wound tot eh left side of the chest which penetrated the chest wall on the right side of the chest causing bleeding most likely from the right internal mammary artery, pleural effusion from blood leaking into the pleural space, pneumothorax from air entering the pleural space and collapse in both lung bases, particularly on the right.
14. At approximately 6:00pm on 14 November 2016, the offender attended the Tuggeranong Police Station of his own accord. He participated in a record of interview with police, and an interpreter, and under caution made some admissions and denials. The offender initially denied possessing a knife, but when he was told that witnesses saw him have a knife, he agreed that he had his own knife. He said that he got the knife to scare the complainant. He said that they were slashing knives at each other and when he saw the complainant was bleeding he knew that he had stabbed him. He provided consent for police to return to his house and police obtained the knife used during the incident.
15. The offender presented himself to police at the Belconnen Police Station on 13 April 2017. He was arrested and granted police bail.
16. On 21 April 2017 the offender participated in a second record of interview with an interpreter and under caution. The offender told police that he went to meet the complainant to discuss the visa arrangement. He said the complainant asked him, “Why I um, I tell Van, ah, ah to – about him to all the people”. The offender said he told the complainant, “Yep, I said it…Dare you do anything?” After this he said the complainant attacked him and he got angry so he went back to his van to pick up a knife. The offender said the complainant withdrew a knife from his pocket and they were both angry at each other so they tried to attach one another.
17. The offender was charged with recklessly inflicting grievous bodily harm, affray, and possess an offensive weapon. On 23 August 2017 the offender entered pleas of not guilty and was committed to the Supreme Court for trial.
18. The co-offender was charge with affray, common assault and possess offensive weapon. He pleaded guilty. In relation to the affray and possess offensive weapon charges he was convicted and sentenced to a 12 month good behaviour order. He was convicted and fined $500 for the common assault.
19. Representations were made to the DPP on 5 July 2017 inviting the Director to accept a plea to an affray charge. Those representations were rejected.
20. On 28 January 2018 further representations were made on behalf of the offender offering a plea to a charge of causing grievous bodily harm contrary to section 25 of the Crimes Act 1900. Those representations were rejected. On or about 25 June 2018 further representations were made on behalf of the offender offering a plea in the same terms or a plea to an unlawful wounding charge. Those representations were accepted on an either-or basis. The facts were negotiated.
21. On 18 July 2018, the offender was arraigned and pleaded guilty to the charge currently before me for sentence.
Objective Seriousness
22. In relation to objective seriousness, counsel for the offender submitted that the offence was in the low-range of objective seriousness as the plea was entered on the basis of excessive self‑defence. The self‑defence component is obvious from the CCTV footage which I have viewed.
23. The prosecution said that the offence was in the low to medium range, but did not cavil with a low-range assessment in light of the excessive self‑defence context of the offence.
24. Exhibit 1 contained a medical expert report under the hand of Dr James Eldridge in relation to the complainant's wound. I find the offence to be of low-range objective seriousness.
Subjective circumstances
25. In evidence before me is the pre‑sentence report (PSR) prepared for the offender dated 24 August 2018.
26. The offender is married with two children of his current union. This is his second marriage.
27. He attended school in Vietnam and finished the equivalent of a Year 10 certificate. He then moved to Sydney and studied English as a second language and learned to become a baker. Since relocating to the ACT from Sydney in 2006 he has held continuous employment and currently works as a baker.
28. He and his wife have no debts other than their mortgage and general living expenses. The author of the report stated that his support networks appear to be prosocial.
29. The offender stated he has never used illicit substance and only consumes alcohol in social situations, which was corroborated by two of his peers. The author concludes that the offender has prosocial factors in his life, such as stable accommodation, employment, familial support and a close circle of friends.
30. The author assessed the offender as being at a low risk of reoffending and noted that he would benefit from undertaking an intervention in relation to impulse control.
Remorse
31. The PSR author notes that he displayed insight into his offending and the impact on the victim. He indicated his willingness to engage with appropriate interventions to address his risk factors.
References
32. In evidence before me was a letter from the offender's employer in support of the offender. The writer states that they had employed the offender for five years and in that time had known the offender to be a calm, relaxed and easy-going person.
33. The writer reported the offender is a consistent, hardworking employee who approaches his work with care and diligence. The writer states that he was surprised when the offender informed him of the offences, stating it is inconsistent with the offender's nature. The writer felt the offender felt guilt and remorse for the offence. The writer also notes the offender sought a change in work hours to attend anger management classes. I take this reference into account on sentence.
Intensive Corrections Order Report
34. When this matter originally came before me on 31 August 2018, I determined that I should give serious consideration to the sentence being served by way of intensive corrections order (ICO). To that end, I referred the offender for assessment. The ICO assessment report dated 7 December 2018 includes a recommendation that the offender has been assessed as suitable for an ICO.
35. The assessment report states that the offender attended all appointments and participated well in the assessment process. It states that urinalysis testing returned negative results on two occasions he was subject to testing, which supports his claim of never having consumed illicit substances.
36. The offender indicated his willingness to comply with ICO conditions if an ICO was imposed. The report went on to deal with subjective matters, broadly in concurrence with the pre‑sentence report.
37. The offender was assessed at being at a low risk of general offending. The author states the curfew is not necessary at this time. He was assessed as being ready to undertake programs to assess his criminogenic risk factors, and whilst he has limited criminogenic risk factors, the author stated he may benefit from completing a cognitive based program to address his response to antisocial situations.
38. The offender was assessed as suitable for a community service work condition.
Criminal History
39. The offender has no criminal history, and I accept the offender is a person of prior good character.
Plea of Guilty
40. The offender entered a plea of guilty on 18 July 2018 after extensive negotiations in relation to the indictment. Accordingly, I find a discount of 20% is appropriate.
Time in custody
41. The offender has spent no time in custody referable to this offence.
Cases
42. Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this court relating to offenders who committed similar offences. The following cases from this jurisdiction provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54].
43. In relation to wounding, I was referred to the cases of McCullough v the Queen [2009] NSWCCA 94; 194 A Crim R 439 and Vimahi v the Queen [2018] ACTCA 18 by the prosecution. In relation to comparable cases, I was referred to the cases of R v Hakimi [2006] ACTSC 139 (Hakimi), R v Lowe [2015] ACTSC 116 (Lowe), R v Bao (unreported, Penfold J, 16 September 2013, SCC 52/2012) (Bao) and R v GM (unreported, Burns J, SCC 323/2011; SCC 356/ 2011) (GM).
44. In Hakimi, Burns J sentenced the offender in relation to seven charges, including two charges of intentional wounding committed against two separate victims. The offender had entered early pleas of guilty. Both the victims of intentional wounding were unknown to the offender, and appear to have been attacked at random for no apparent reason. There was evidence that the offender was experiencing major depression and was intoxicated at the time of committing the offences. The offender had a prior criminal history including convictions for driving whilst intoxicated and contravening a protection order. The offender was sentenced to a term of full-time imprisonment, of which the wounding charges comprised terms of 12 and 10 months (their lengths relative to the seriousness of the injuries caused). The aggregate term imposed for the seven offences was three years with a non-parole period of 22 months.
45. In Lowe, Walmsley AJ sentenced the offender in relation to one count of aggravated robbery and one count of intentional wounding. The offender pleaded guilty to both charges. The offender was on a good behaviour order at the time of the offences for failing to display P-plates. The offender stabbed her taxi driver twice in the arm with silver barbecue tongs. She attempted to stab the driver in the abdomen, leaving no mark, but then further stabbed him twice more on the arm leaving further puncture wounds. Walmsley AJ found that the offences were both objectively serious, and that were committed upon a vulnerable victim. The offender had a troubled background including difficulties with methamphetamine abuse. The offender was 22 years of age, made an early plea, and demonstrated significant remorse. Walmsley AJ imposed a term of imprisonment of 12 months, reduced to nine months on account of the plea, as part of an aggregate sentence of three years with an 18 month non-parole period.
46. In Bao, the offender pleaded guilty to one count of intentional wounding. The offence was committed against the offender’s ex-partner, after the offender arrived at her home in the middle of the night to confront him about their relationship breakdown. The offender stabbed the complainant several times in the chest and back. Once the complainant managed to get the knife away from the offender, she grabbed a second knife and continued to stab her. She suffered incised wounds to her chest, back, left wrist and hand, and a partial collapse of her left lung, alongside scarring. The plea was treated as an early plea as it was offered as soon as the charge in its final form was offered on the indictment. Penfold J found that the offence was serious, as it involved multiple injuries and the use of two knives, but did not appear to be premeditated. The offender had no prior criminal history. The offender displayed remorse and apologised to the complainant. The offender had mental health difficulties, including major depression, and reported that she had been using alcohol and sleeping pills at the time of the offence. The offender was engaged to a new partner and pregnant at the time of sentencing. The offender was sentenced to 12 months imprisonment, reduced from 15 months on account of the early plea, backdated to reflect the nearly four months spent in custody, with the remainder of the sentence fully suspended upon entering into a good behaviour order.
47. In GM, the offender entered pleas of guilty to two charges of wounding, and one charge of dishonestly appropriating property. The offender was also sentenced one additional offence of intentionally inflicting grievous bodily harm, occurring on a different occasion to the wounding charges. In relation to the wounding offences, the offender stabbed one victim twice in the stomach, and then stabbed another victim on the middle of his left arm. The offender then picked up one of the victims’ phone, after he dropped it while attempting to take a photo of the offender. The offender was intoxicated at the time of the wounding offences. In relation to the additional offences, the offender punched and kicked one victim, before stabbing them 15 times. The offender was aged 16 and 17 at the time of the offences, and was born in a refugee camp in Kenya, arriving in Australia aged 13. The sentencing judge considered that the offender had reasonable prospects of rehabilitation, depending on the level of commitment to discontinue using alcohol. The offender received sentences of 2 years (reduced from 2 years and six months) for the first wounding charge, and 12 months of imprisonment (reduced from 15 months) for the second wounding, to be served concurrently. On the charge of intentionally inflicting grievous bodily harm, the offender was sentenced to six years of imprisonment (reduced from seven years and six months), to be served consecutive upon the first wounding sentence. This resulted in an aggregate sentence of 7 years of imprisonment, which was suspended after 3 years and 7 months of imprisonment. The offender also received a 12 month good behaviour order for the offence of theft.
48. I was also referred to the case of R v Doan [2000] NSWCCA 317 (Doan) by counsel for the offender, in relation to the issue of a jurisdictional maximum of a lower court. In the present case, counsel for the offender submitted that the charge could have been dealt with in the Magistrate’s Court and the maximum sentence that would have been available to the sentencing magistrate would have been two years. In Doan at [42], it Grove J considered a number of relevant authorities in relation to the issue of whether the availability of a summary jurisdiction and associated lower ceiling of penalty should be a matter of mitigation. His Honour stated, “The cases reveal that the circumstance can, rather than should, be a matter of mitigation”. I take this matter into account as a matter of mitigation.
Statutory considerations:
49. In sentencing the offender the court is required to take into account those matters under s 33 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) that are relevant, and I have referred to the relevant matters above. Of course, the court sentences in the context of the objects of the Sentencing Act in s 6, and the sentencing purposes in s 7 of the Sentencing Act.
50. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation and recognition of harm to the victim are important sentencing considerations.
51. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, it was submitted by counsel for the offender that a term of imprisonment could be served by way of ICO. The prosecution did not cavil with that proposition.
52. As with every sentencing exercise, careful attention must be paid to the maximum penalty which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
Sentence
53. It must be recognised by the court that the offence committed against the victim is serious. Both the short and long‑term consequences of being a victim of an offence of this nature must be acknowledged.
54. In coming to a sentence by way of instinctive synthesis I have taken into account all the matters discussed above, including the objective seriousness of the offence, the subjective matters, including the prior good character of the offender.
55. In my view, the recommendation in the ICO assessment report should be taken up. An ICO ought to be imposed. It must be remembered that the imposition of an ICO is not a lenient sentence. Its contents will require strict adherence, and if this is not followed, could result in a period of full‑time custody.
56. I record a conviction in relation to the offence. The appropriate sentence for the offence is one of 15 months, reduced to 12 months on account of the discount for the plea of guilty.
Orders
57. I make the following orders:
(a)In respect of the offence of intentional wounding, the offender is sentenced to a term of 12 months of imprisonment, commencing on 14 December 2018 and ending on 14 December 2019.
(b)Pursuant to s 11 of the Crimes (Sentencing) Act 2005 (ACT) the offender is to serve his sentence by way of an intensive corrections order. I impose the core conditions and I impose the following additional condition:
(i)A referral to a cognitive based program in relation to responses to antisocial situations as recommended by the author of ICO assessment report.
| I certify that the preceding fifty-seven [57] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson Associate: Date: |
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