R v Vu

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2018 0081

THE QUEEN

v

HUNG ANH VU

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 November 2018
DATE OF SENTENCE:	26 November 2018
CASE MAY BE CITED AS:	R v Vu
MEDIUM NEUTRAL CITATION:	[2018] VSC 732

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CRIMINAL LAW – Sentence – Manslaughter and recklessly causing serious injury – Stabbing of partner and her husband in circumstances of infidelity – Partner suffered serious injury, and her husband died – Previous offer to plead guilty to manslaughter – Extent of discount to be allowed on account of that – Plea offer not an indication of remorse or other subjective criteria in the circumstances – Serious example of crime of manslaughter – Mid-range example of recklessly causing serious injury – Total effective sentence of 15 years – Non-parole period of 11 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr K Doyle	Mr J Cain, Solicitor for Public Prosecutions
For the Accused	Mr S Bayles	Stary Norton Halphen

HIS HONOUR:

Introduction

Hung Anh Vu, following a trial which occupied two weeks of Court time, and following three days of deliberations, you were found guilty by a jury on 18 October 2018 of the manslaughter of Hung Viet Nguyen (‘Viet’) and recklessly causing serious injury to Laura Chan (‘Laura’). The crimes took place on 5 August 2017.

The maximum penalty for manslaughter is imprisonment for 20 years. The maximum penalty for recklessly causing serious injury is imprisonment for 15 years.

Background

Your killing of Viet and causing of serious injury to Laura took place in the context of their having carried out a relationship behind your back, and your becoming angry and resentful upon finding out about that fact.

At the time of the events, you were living in a relationship with Laura at 10 McGregor Court in Sunshine West. Also living at the premises and present on the evening of the offending were the two sons you had with Laura, Kevin, aged 15, and William, aged 13.

During a period of time during which you were serving a sentence in NSW for drug trafficking, which had you away from Laura and your two children for some years, Laura commenced a relationship with Viet. He moved in with her and the children at McGregor Court. They even took the step of getting married in September 2015, an event which was kept from you and from all but their closest friends.

Upon your release from prison in late August 2016, you returned home to live with Laura and your children at the McGregor Court property. Viet moved out before your return and for the last year of his life, he lived a short distance away, maintaining his relationship with Laura behind your back. In that time, he had been introduced to you by Laura as a friend, and he became a friend and work colleague to you as well.

Evidence indicated that in the months leading up to 5 August 2017, you had started to hear talk about the possibility of a relationship between Laura and Viet. You had even confronted Laura about this, but she had denied the truth of the rumours. Your relationship with Laura was not going well. On her evidence in the trial, it seems you had been sleeping in separate rooms for much of the time since your release from prison. She stated there were frequent disagreements between the two of you, and said that the two of you had not spoken for a few weeks leading up to 5 August 2017.

Lead-up events on 5 August 2017

As it turned out, on the day of the killing of Viet, it was confirmed to you by your mother and your sons that there was, indeed, a relationship going on between Laura and Viet. You found out that the relationship had been going on for some time, and that Viet had occupied your place in the family home for much of the time you had spent in custody in NSW.

On your arrival home from your visit to your mother, you telephoned Viet and invited him around to your home that evening. Another thing you did was to remove a hunting knife from a drawer in the kitchen, and then hide it under a cushion on a chair at the dining room table. Subsequent examination of the knife showed the blade to be slightly in excess of 16 cm in length. You told the police you hid the knife intending to use it to confront Viet and Laura. I am satisfied that in the hours leading up to the stabbing of Viet and Laura, you intended at least to confront them over the affair, and to use the knife you had hidden in pursuit of that aim to confront them.

A friend of yours named Hai Minh Nguyen (‘Minh’) gave evidence that he received a telephone call from you on the afternoon of Saturday 5 August 2017. You told him of your concerns that your partner was involved with another man. You told Minh you intended to confront the two about the relationship. You sounded very sad during the call. Minh was concerned about you, and invited you to come to join him at a barbecue being held in Keysborough. You said you would come but wanted to speak to Laura first. So concerned was Minh about your demeanour and your stated intention to confront Laura and Viet that he telephoned his brother, Nam, and told him to go and pick you up. He also telephoned your daughter Kim Nguyen and told her of his concerns. He then drove over from Keysborough to Sunshine West to see you.

As it turned out, a group of your friends, including Minh, congregated at the house in Sunshine West. You were seen to be in a sad and down state, and you consumed a number of glasses of Hennessey Cognac. There was differing evidence as to the extent to which you may have been affected by alcohol during the evening. Your daughter Kim said in evidence that you were drunk and sad. Laura also said you were drunk. You said in the interview that whilst you had had a number of drinks and were somewhat affected, you did not feel drunk.[1] I am satisfied that you were affected to an extent by the alcohol you had consumed.
[1]Interview at Q 427.

At some stage during the evening, Laura arrived home and having greeted people in the kitchen/living area, she went to her bedroom. Either before or after the arrival home of Laura, Viet also attended at the house. Not long after this, you went into Laura’s room and asked her to come out into the other room and talk with you. She refused to do so and you commenced to drag her out of the bedroom. She asked to be able to get dressed. You left her in the room and she locked the door.

You returned to the living room and asked the others present in the room, with the exception of Viet, to go outside, so you could talk to Viet and Laura. All the others went outside and waited near the front door. You then went to Laura’s bedroom and kicked the locked door open, damaging the lock, before entering the room. You grabbed her arm and forced her out into the living area. You made her sit on one side of the dining table, alongside Viet, facing the sliding door which led outside. You took up a position sitting on the other side of the table, facing them. Your sons were present in their bedrooms at the rear of the house.

In the meantime, your friends and daughter who were outside had heard the sound of the bedroom door being kicked in. Minh and others tried to get in the front door but found it was locked. They then went around to the sliding door facing into the living area where you and the others were seated. Minh found this door, too, was locked. He knocked, but you did not let him in. He detected the atmosphere inside the room was tense. He decided to gain entry to the house by another route, and, having gone further to the back, was able to get inside through a small gap in Kevin’s bedroom window. He went quickly through into the kitchen and sat next to you on the same side of the table.

The two stabbings

Minh noticed there was a good deal of tension when he arrived in the kitchen. He told you to relax, but that was the last thing on your mind. You asked Viet and Laura what was going on, and according to Minh, they both denied anything was going on.[2] Things very quickly got very heated, with you yelling at Viet and Laura. You did not accept the denials and persisted in the questioning, at some point apparently saying, ‘Just tell me the truth. I just want to know the truth.’ Minh continued to try to calm you down, reminding you that your children were present in the house.
[2]According to Laura, she did not say anything in response to the questioning. Viet was the one who denied the allegations.

You stood up and so did Minh. He told you to calm down again and that just seemed to make you more angry. You told him to shut up. He grabbed hold of you, again urging you to calm down. There was a brief struggle between you and Minh and you pushed him away, causing him to move back a bit. He could see your hands at this time and he saw no knife in them. The overall evidence, however, would indicate that you must have had the knife in your possession, either in your hand or secreted on your person, when you stood up from the seated position at the table.

According to Minh, you then moved past him towards the kitchen area. It was at this point that Minh saw the knife in your hand. He grabbed you again, this time by the arm or shoulder. He again told you to relax but you told him to ‘Fuck off’. You struggled with him and broke free, before he grabbed you again from behind, with his front facing your back. At this point, Laura and Viet were still seated on the other side of the table, with Viet closest to the kitchen and Laura on the other side of him. You were between Minh and the others, and Minh claimed he could not see what was taking place, his view being obstructed by your body. He said he could see your hands and those of Viet, and now, could not remember seeing the knife. Viet was still partially seated. He could not remember noticing Laura.

On the account of Minh, things suddenly went quiet, and everyone sat down. Shortly after this, he could hear the noise of someone, who must have been Viet, ‘chucking up a bit’. Then he saw an expanding area of blood on Viet’s shirt.

As can be seen from the account related thus far, Minh did not see the stab wounds inflicted upon either of your victims. Indeed, he claimed he did not observe any event which could have been either of the stabbing incidents, although he was standing very close by when both victims were stabbed. This seems most surprising. Imperfect and incomplete though his account may be, however, it was considerably more plausible than that of Laura Chan.

There were many unsatisfactory aspects to Laura’s evidence. Not only did she not see a knife and not see either Viet or herself get stabbed by you, she did not even recall Minh being in the room. In any event, on her account, after you became upset while questioning her and Viet, to the extent of having something she described as a ‘tantrum’, she saw you reach for something from the bottom drawer in the kitchen. Although she did not see what it was, she said she called out, ‘No, no, no’, and then ran over and tried to grab the thing from your hand. She then described the positions and movements of herself and you, and the position of Viet at the table, which provided no explanation for the infliction of the two stab wounds which were, undeniably, inflicted by you right in front of her.

Laura described the events as follows:

I remember putting my hand and try to grab things off him, and I remember when I put in there was like – there was other hands and I remember there was hands everywhere, we were kind of like pull it off him, and I don’t know in a few seconds, at that time I feel like there was a prick, but I didn’t know until later on, when I realised I was stabbed, at that time kind of like pulling in, I can feel the prick but I didn’t know what’s going on.[3]

[3]Trial 269.

Laura indicated after this she was aware of Viet bleeding, and she described the efforts which were then made to care for him.

Two other eye witnesses, namely Kim Nguyen, your daughter, who rushed into the house shortly after Minh and got a glimpse of things taking place in the kitchen, and Minh’s brother Nam, who was standing outside the sliding door throughout the proceedings, were in a position where they should have been able to observe the stabbing motions you must have carried out which led to the stab wounds to each of your victims. Their evidence was of no more assistance in revealing the exact circumstances of the two stabbings.

In short, of the four eye witnesses in a position, on the face of it, to see you stab your two victims, not one of them claimed to have seen any such thing. The evidence was very unsatisfactory. I make it clear I do not hold that fact against you, but it does limit my ability to make specific findings of fact about the precise mechanics of the stabbings.

Aftermath of the stabbings

The evidence revealed that shortly after being stabbed, Viet collapsed, and he ended up on the floor being attended to by you and your daughter. Emergency services were called and you and Kim made extensive efforts to provide CPR to Viet, to no avail.

The knife you had used to stab Viet and Laura was, for some reason, removed by Nam from the kitchen bench where you had placed it and taken to another location from where it was later recovered by the police.

At some point during the time when you and your daughter were caring for Viet, you grabbed another knife and held it against your chest, as if intending to stab yourself. You were dissuaded from doing so, if it was ever your intention, by your daughter and Laura.

Police attendance, your early statements, and the police interview

Police and ambulance officers attended promptly. It was confirmed that Viet was deceased.

You were spoken to by two different policemen in the immediate aftermath of your crimes. One of them was Senior Constable William Calleja who spoke to you in the front yard of the property. He asked you to say what had happened, and you said, ‘He did suicide’. Shortly after this, you spoke to Senior Sergeant Papadopoulos, who also asked you what had happened. You told him that your friend and your wife were having an affair, and that both of them had stabbed themselves out of shame.

By the time you were being interviewed by the police the day after these events, the dishonest and implausible account you had given of your victims having stabbed themselves had been replaced by another dishonest and implausible account that you had stabbed each of them by mistake. You claimed that you had stabbed Viet as a result of an accidental mechanism when you sought to free your hand holding the knife from the grip of Minh, your hand and arm flew backwards, and the knife must have come into entirely accidental contact with the chest of Viet. You claimed you were not aware of this at the time. Then, you claimed that in identical circumstances to those that led to your stabbing Viet by mistake, you also stabbed Laura by mistake.

In the circumstances in which this trial was fought, the jury verdict means that the jury were satisfied beyond reasonable doubt that the explanation you gave to the police was false. This is hardly surprising.

Autopsy upon Viet

Dr Gregory Young carried out an autopsy on the body of Viet on 6 August 2017. The single stab wound which caused the death was oriented on the 3 o’clock to 9 o’clock plane on the right side of the chest. The wound was squared off at the 9 o’clock end and sharp at the other end, indicating a single sided blade had penetrated the chest. There was an abrasion around the entry wound, which could have been caused by the hilt of the knife contacting the skin at the time of the wound. The wound tract proceeded from front to back, right to left, and from up to down into the body. The efforts of the pathologist to determine a maximum depth of the wound tract led to a figure of 18 cm, but that figure was heavily qualified by the expert. The knife travelled through skin, the underlying subcutaneous tissue, the right pectoralis muscle, the second intercostal space, into the pericardial sac, and then into the aorta, also penetrating the right lobe of the lung. The cause of death was a stab wound to the chest, and death would have occurred very quickly. Taking into account the fact that the pectoralis muscle had been penetrated, the force involved in the stab wound would have been at least moderate, on a four-level scale.

There was extensive cross-examination of the expert on the question of the depth of the stab wound. In his closing address, Mr Doyle for the prosecution argued that when the jury looked at all of the material pointing to the depth of the wound, they should be satisfied that this was a very deep wound with a significant percentage of the blade having entered the body of the deceased.

In order to reach their verdict on Charge 1 on the indictment, and the alternative offence of manslaughter, the jury would not have needed to form any concluded view on the issue of the depth of the stab wound. Nor would I need to reach any view on the matter in order to sentence you. Having said that, I am satisfied beyond reasonable doubt that this must, indeed, have been a very deep wound. Such a conclusion is the only reasonable conclusion to be reached on the overall material. Insofar as Dr Young made concessions pointing to the possibility of a relatively shallow wound, I consider these to have been overly conservative, and I rule out as a reasonable possibility that anything other than a very deep wound could have caused all the injuries to Viet in this case.

Medical treatment of Laura Chan

Laura Chan was taken by ambulance to Royal Melbourne Hospital, where she was treated initially in the Emergency Department, was admitted under the care of the trauma team, and then spent 4 days as an in-patient being treated for her wound. The medical records were considered and interpreted by Dr Joanne Parkin, a forensic physician. Dr Parkin indicated that Laura had a stab wound to the same part of the chest as the wound to Viet. She was short of breath in the Emergency Department and scans revealed bleeding from the right internal thoracic artery, one of the main arteries coming from the aorta. There was damage to the wall of that artery. There was also damage to a smaller artery in the subcutaneous fat, just under the skin. In respect of the damage to the internal thoracic artery, a decision was made that surgical intervention may not be required. In the end, it would seem this damage must have repaired itself.

Also revealed by scans was a small right haemothorax in the extra-pleural space of the right lung. There was air in the space around the lung as well, which was later identified to be a pneumothorax. The right lung of Laura was partially collapsed.

Dr Parkin identified the concerns that would have been felt by those who had the task of caring for Laura in the hospital. Haemothoraces and pneumothoraces are worrying because of the possibility they may develop into something known as a tension pneumothorax, a dangerous condition which if left untreated, would quickly lead to death.

The medical notes indicate that to avoid the prospect of such an outcome, doctors inserted a right intercostal catheter or chest tube to drain the fluid and air. This procedure is not one to be undertaken lightly, coming with its own risks. The catheter was installed at 1.30 am on 6 August 2017, and then removed 12 hours later, it being the preferred practice for such tubes to remain in place for as short a period as possible. However, in Laura’s case, when the first catheter was removed, a pneumothorax was detected in a follow-up X-ray. This necessitated the insertion of a second catheter. This occurred at 8.45 pm on 6 August 2017. This catheter was removed just after midday on 8 August 2017. Follow up observations in hospital until Laura was discharged, and then on review of her in the Trauma Clinic after her discharge, indicated that there was no remaining pneumothorax. Furthermore, all wounds she had, including at the sites of the catheter insertions, had healed well.

There was a live issue in the trial whether or not the injury sustained by Laura was serious, in light of the definition of ‘serious injury’.[4] It was asserted by the prosecution that the injury sustained by Laura endangered her life, and was also substantial and protracted. On your behalf, it was asserted that her injury was not serious on either score. The jury verdict on Charge 4 shows that the jury were satisfied beyond reasonable doubt that this was, indeed, a serious injury.
[4]Crimes Act 1958, s 15.

Sentencing facts in light of the verdicts

I have already mentioned the unsatisfactory nature of the eye witness evidence in this case. The shortcomings of that evidence, however, do not prevent me from being able to come to some clear conclusions as to your commission of these offences. Some of these matters clearly flow from the jury verdicts. Some do not. All are consistent, however, with the jury verdicts. I am satisfied beyond reasonable doubt of all of these things:

i. Your stabbing of both victims occurred in the context of your growing anger and resentment towards them both as a result of the affair they had carried on behind your back, which was confirmed to you on the day of the events.

ii. You decided you would confront them both, and lured Viet to your home for that purpose.

iii. You hid the hunting knife in a location where you would be able to easily access it during the course of the intended confrontation. You told police you hid the knife where you did for the purpose of using it to scare Viet and Laura. Therefore, on your own admission, it is apparent that your reason for secreting the knife was to use it for an illegal purpose in the course of the proposed confrontation.

iv. You physically forced Laura to come out from her bedroom to the dining table, intent on confronting her with your suspicions.

v. The action of Viet in denying the affair made you become even more angry. However, all the steps you had taken before those denials show the substantial level of anger you already felt towards them both.

vi. Your stabbing of both victims occurred in circumstances where Minh was using all available means, including physical force, in order to try to prevent you from carrying out these attacks. You entirely refused to see reason, or to control your emotions.

vii. Neither of your victims presented any sort of physical threat to you.

viii. Each stabbing was inflicted by you by a deliberate action to thrust the knife into the chest of the victims. The fact of the chest containing crucial bodily structures was perfectly clear to you.

ix. The two stabbings followed very closely upon each other. I am satisfied that you stabbed Viet first, and then Laura.

x. The stab wound to the chest of Viet was a very deep one.

xi. The stab wound to the chest of Laura, while not as deep, was still sufficient to penetrate her chest and damage an important artery. As a result, she suffered serious injury. I am satisfied that this injury was serious on both criteria set out in s 15 of the Crimes Act 1958.

Your background

You were born in Vietnam in 1971 and are now aged 47. You are the youngest of three children, and were born during the Vietnam war. Your family was from the Hai Phong Province near Hanoi in North Vietnam. Your mother was an electrician and your father a truck driver in Vietnam. During the war, they were required to work in the war effort and as a result, you and your siblings were sent away to live in the country with distant family members and volunteers, away from the bombings of Hanoi and surrounding areas. These were times of hardship and deprivation. There was limited food and limited schooling for children. Yours was not a normal childhood.

The period after the war was a time of recriminations and reprisals. Your father was caught trying to make arrangements for the family to leave the country. He was imprisoned for 3 to 4 years during which time he had no contact with the family. Circumstances were very difficult for the family during those years.

Your father was released from prison when you were 10, and not long after that, the family was able to flee Vietnam by boat. The family spent 4 to 5 years in a refugee camp in Hong Kong. Eventually, when you were 15 years old, you arrived in Australia with your family. You settled in Adelaide where you commenced English language courses and schooling. The family later moved to Melbourne where you completed your schooling at Maribyrnong High School to the Year 11 level.

When you left school you commenced working in the textile industry, machine-sewing garments.

You married at a young age and you and your wife had three children together. You worked hard in the textile industry for several years, but it was hard physical work with long hours. At the encouragement of your then wife, you found work as an apprenticed mechanic. You left this then worked as an air conditioning fitter with Melbourne City Toyota and then Le Mans Toyota. Eventually you were promoted into a sales role. You did well and remained there until 2013.

In the meantime, you had separated from your wife and commenced a relationship with Laura Chan in the early-2000s. You have sons aged 14 and 16 to that relationship.

2013 was the year in which you were imprisoned in New South Wales for serious drug offending.

Your offers to plead guilty and the issue of remorse

One of the central matters relied upon on your behalf by Mr Bayles on the plea hearing was the fact that you had, in the past, offered to plead guilty to the crime of manslaughter of Viet, that is, the crime of which you were found guilty by the jury. I was informed that an offer was made on your behalf that you would plead guilty to manslaughter before the committal hearing, and the offer was renewed in writing between the time of the committal hearing and the trial. The offer was made on the basis of an unlawful and dangerous act manslaughter, that is, the type of crime of which you were found guilty by the jury. At all material times, the offer was rejected by the prosecution. As a result, no discussions were ever entered into with a view to an agreement being reached in respect of the charges you faced concerning Laura Chan.

It was the submission of Mr Bayles on the plea that you are entitled to a significant discount in sentence for your previous offer to plead guilty to manslaughter. He submitted, in particular, that the discount you should receive by virtue of your offer to plead guilty in connection with the utilitarian value of a plea of guilty should be, as he put it, ‘at its highest in this case’. His submission was that your conduct in connection with this trial should not lead to any reduction in the allowance to be made to you for the utilitarian benefit of your offer to plead guilty. That conduct included your pleading not guilty to murder and not entering a plea of guilty to manslaughter, and conducting the trial in pursuit of a complete acquittal, in which the defence on which you relied involved a complete denial of wrongdoing.

In addition to entitling you to a reduction for the utilitarian benefit, Mr Bayles submitted that your offer to plead guilty was indicative of your remorse, and other matters which could be described as subjective criteria.

The law dictates that had you pleaded guilty to the crime of manslaughter when arraigned on the charge of murder, I would have been required to take the fact of that plea of guilty and the stage at which you indicated an intention to enter that plea into account in sentencing you.[5] The authorities make it clear that in almost all cases, a plea of guilty is a matter which goes in mitigation of sentence.
[5]Sentencing Act 1991, s 5(2)(e).

You did not plead guilty on arraignment, but you did offer to plead guilty at an earlier time, as I have detailed. The authorities, again, dictate that in most cases, such an offer will be a matter which will lead to a reduction in sentence.

For some years, it has been the law that a distinction is to be drawn between the discount to be allowed to a person for the utilitarian, pragmatic benefits of a plea of guilty, known as the objective criteria, and the discount to be allowed for remorse, willingness to facilitate the course of justice, and acceptance of responsibility, known as the subjective criteria.[6] A discount for the utilitarian benefit of the plea will almost always be allowed. As for the question of whether remorse, a willingness to facilitate the course of justice and an acceptance of responsibility should be inferred from the plea, that will be a question for the sentencing judge to decide.
[6]Phillips v The Queen (2012) 37 VR 594 [36] (Redlich JA and Curtain AJA.).

The principles are essentially the same when a plea of guilty has been offered, but not accepted.

As I have already mentioned, in this case, Mr Bayles asserts that you should receive a significant discount in sentence on account of your previous offer to plead guilty to manslaughter, which discount should contain components not only for the utilitarian benefits of the plea offer, but also for the subjective criteria which should be inferred from it.

Mr Doyle for the prosecution, on the other hand, submitted that you should receive some discount for the utilitarian aspects of the offer, but that your plea offer did not bespeak ‘remorse, genuine contrition, acceptance of responsibility and willingness to facilitate the course of justice.’[7]
[7]This phrase used by Mr Doyle was from Ciantar & Rose v The Queen [2010] VSCA 313 [31] (Nettle and Bongiorno JJA).

I have been referred to a number of decisions on the question of the extent to which I should take into account, in your favour, your offer to plead guilty to manslaughter.[8] I have taken each of the decisions into account, as well as the submissions made by both sides during the plea.
[8]R v Cardoso [2003] NSWCCA 15; DPP v Pennisi [2009] VSCA 322; Sherna v The Queen (2011) 32 VR 668; R v Lai [2015] VSC 346.

There is no question that you are entitled to a reduction in sentence on account of the utilitarian benefits attaching to the plea offer you made. Had your offer been accepted, no trial would have been necessary, and there would have been the corresponding saving of time, resources and emotional energy expended in the trial.

Furthermore, I accept that there should be no diminution in the reduction you receive for the utilitarian benefit due to the fact that in the end, you did not plead guilty to manslaughter in front of the jury, and indeed, conducted your trial on the basis that you were not guilty of any crime.

That is not to say that you are entitled to a significant discount in sentence due to your plea offer. In my view, in the overall circumstances of this case, the reduction in sentence to which you are entitled is quite modest.

In order to determine the extent to which, if at all, your offer to plead guilty would evidence remorse or any of the other subjective aspects of a plea, I have looked at the entirety of the circumstances, before, at the time of, and after the plea offer.

One aspect of those circumstances is that immediately after your stabbing of the two victims, you asked for 000 to be called, and then took part in drawn-out endeavours to provide CPR to Viet, in combination with your daughter. It was put on your behalf that these efforts showed your care and concern for Viet, and were indicative of your remorse for having stabbed him.

A number of aspects of your later conduct point against that proposition. Within minutes of the arrival of the police, and close to the time that it was confirmed Viet was deceased, you lied to police on two separate occasions about what had happened to him. You asserted that he had stabbed himself.

In the interview that occurred the next day, you told a different lie about what had happened to lead to his death. You claimed that you had stabbed him by mistake.

In spite of the plea offer which was made on your behalf before and after the committal hearing, by the time the trial had arrived, you persisted in the defence which you had set up during the interview. In the trial, you relied on the asserted truthfulness of the dishonest account you had given in the interview. You pleaded not guilty to murder, and conducted your defence principally on the basis that you were not criminally responsible for the death of Viet.

In these circumstances, your conduct in the immediate aftermath of the stabbing of Viet might be seen to take on a different hue. If you really were remorseful for your actions, why did you lie to the police in the immediate aftermath and in your interview? Why did you persist in the interview lie during your trial?

As for your offer to plead guilty, of course there will be situations in which such an offer, although rejected, will itself be indicative of remorse. In my view, that is not the case here. The offer made on your behalf needs to be assessed in the context of the surrounding circumstances, which were known to you. You knew you had stabbed Viet to death with a knife. You knew this had taken place in the presence of a number of eye witnesses who may be in a position to implicate you. You knew you had used a knife which you had admitted to the police had been secreted by you for use in a planned confrontation of Viet and Laura. You knew you had lured Viet to your home prior to the stabbing. You knew those who were present would be in a position to confirm your obvious anger towards Viet and Laura immediately before the stabbings. You knew you had told two different sets of lies to the police about how Viet came to be stabbed. These and other matters make it clear that the evidence against you was powerful, and you well knew this.

The law does not permit me to take the strength of the prosecution case into account in arriving at the discount you should receive for the utilitarian benefit of your rejected plea offer.[9] I do not do so. But the position of the subjective criteria is different. The apparent strength of the prosecution case is relevant to an assessment of those matters.
[9]Phillips v The Queen (2012) 37 VR 594 [64].

Knowing, as you did, the strength of the prosecution case against you, and the risk that you would be found guilty of murder, it is hardly surprising that you authorised an offer on your behalf to plead guilty to the lesser crime of manslaughter. It was a rational and pragmatic step, but to my mind, when all of the surrounding circumstances are considered, there was nothing about that step which was indicative of your feeling remorseful, or of your being willing to facilitate the course of justice and to accept responsibility for your actions. As your conduct in the trial showed, far from being willing to accept responsibility for your actions, you sought to avoid responsibility.

Counsel on your behalf submitted that once you were in the adversarial situation of the trial which you faced, there were strategic and forensic decisions made on your behalf which should not obscure the fact that your offer to plead guilty could evidence remorse and the other subjective aspects. I do not agree.

Whilst of course I in no way hold against you the fact that you exercised your right to plead not guilty and have a defence run on your behalf, as the prosecutor submitted, what you did in running the trial was to put your weight behind the version of events you had given in the interview. This was no mere strategic decision. This was you saying that you did not deliberately stab Viet, and seeking to be absolved of criminal blame for your criminal conduct.

In all of the circumstances, I believe there is no real evidence of remorse in this case. I say this in spite of the fact that in the bundle of personal reference tendered on your behalf as Exhibit 2 on the plea, four of the five authors, including, remarkably, Laura Chan, spoke of your remorse. I do not accept this material in support of a finding of remorse. The overall, credible evidence, points to a different conclusion. That is not to say that I have not had regard to the contents of those references more generally in speaking about your character.

Furthermore, I do not believe your previous offer to plead guilty evidenced your accepting responsibility for your conduct or a willingness to facilitate the course of justice. As a result, the only discount to which you are entitled is that flowing from the utilitarian value of your plea offer. I take that into account in your favour in sentencing you on the charge of manslaughter.

In respect of the charge of recklessly causing serious injury, there were no discussions between your legal representatives and the Crown, and no offer was put. That is because the Crown rebuffed your approach in respect of the manslaughter. It may be that had that offer been accepted, discussions might have led to resolution of the charges in respect of Laura Chan. That is speculative, however, and no reduction in sentence can be allowed in respect of the sentence on the charge of recklessly causing serious injury on account of your offer to plead guilty to manslaughter.

Background to the offences

Your attacks upon the two victims did not happen out of the blue. They occurred in the context of the relationship they were having behind your back, your having found out about that relationship, and the powerful anger and resentment that arose due to that knowledge.

Mr Bayles stopped short of submitting that the facts of the infidelity of your partner and the duplicity of Viet were mitigating circumstances. He did submit, however, that these were important matters of background. There was a lengthy history leading to a build-up of tension and increasing despondency and sadness in you. He submitted that this despondency went beyond a simple reaction to the fact of your wife having an affair. Mr Bayles urged me to apply a level of understanding of what he described as the complex nature of what was going on for you. He submitted that what occurred that night ‘really represented…a kind of breakdown of rational and normal and proper thought processes and reactions and behaviours’.[10]
[10]Plea 68.

In that regard, however, Mr Bayles made it clear he was not submitting that at the time of the two stabbings, you were not in a position to make rational decisions and know what was right and what was wrong. I note that no psychological or psychiatric material has been tendered on your behalf. There is nothing to indicate you did not have a full appreciation of the seriousness of your offending at the time you carried it out.

In sentencing you, of course I take into account the circumstances in which your offending occurred. Those circumstances include the fact that your partner and a person who you took to be your friend had been engaging in an affair behind your back, you had had suspicions for a time and those suspicions were confirmed on the day of the crimes, and the news was very upsetting for you. You were sad and despondent. The offending happened in that context.

As I pointed out to Mr Bayles during the plea, however, it is not unusual for interpersonal relationships to create challenges and sadness and frustration. It was perhaps understandable that you wanted to confront Laura and Viet. However, to decide to confront them with a knife was a step much further than that, and to go to the extent of stabbing them both with the knife was a very extreme response even to that level of sadness and frustration and disappointment.

The seriousness of the manslaughter

One of the matters to which I am required to have regard in passing sentence upon you is the nature and gravity of the offences of which you have been found guilty.[11] Mr Bayles submitted that the offence of manslaughter should be viewed as being no higher than mid-range. Mr Doyle, on the other hand, submitted that for the reasons he outlined, this should be viewed as being a crime at the upper end of the range of seriousness.
[11]Sentencing Act 1991, s 5(2)(c).

In my view, a consideration of all of the circumstances of your crime of manslaughter would make it clear that this crime is a very serious example of the crime of manslaughter and should be viewed as being in the upper range of seriousness. Those circumstances include a number of the matters mentioned in paragraph 40 of these reasons. To those, I add the following matters:
i.There was some degree of planning of the confrontation during which the crime was committed;
ii.You made the others present at the house go outside before the confrontation;
iii.Your conduct in overcoming the attempts by Minh to restrain you, in which you physically shrugged him off not once but twice, showed your great level of persistence and determination in carrying out the stabbings;
iv.The stabbings were carried out due to anger, which you seemingly made no effort to control;
v.The weapon you used to carry out the stabbings was a very dangerous one;
vi.The stabbings took place in a house in which your two children with Laura were present;
vii.You stabbed two people, not just one;
viii.At the time you stabbed Viet, he presented no physical threat to you at all. In fact, the evidence would suggest he was almost certainly seated at the table when you stabbed him;
ix.There was a very high level of danger associated with your action in stabbing Viet deep to the central chest area;
x.The jury verdict on the charge of recklessly causing serious injury to Laura shows that shortly after stabbing Viet to the chest, you stabbed Laura to the chest, realising that serious injury would probably be caused to her. You must have had such a realisation at least at the time of stabbing Viet.
The seriousness of the recklessly causing serious injury charge

As for the crime of recklessly causing serious injury, the starting position of Mr Bayles was that this was an example of that offence which ‘could not be said to be much higher than a low end example of the offence.’[12] In justification for that position, Mr Bayles submitted that a crucial part of assessing the relative seriousness of any instance of the offence is an assessment of where the serious injury sits in the range of possible injuries. On that score, he emphasised the fact that in this case, Laura Chan sustained no permanent, ongoing impairment. On the submission of counsel, hers was a shallow wound from which she made a full recovery.
[12]Plea 94.

As the discussion proceeded, however, and having been challenged about a number of aggravating features of your crime against Laura, Mr Bayles accepted that the crime was some distance away from the lowest end of the scale of seriousness.

I believe that Mr Bayles was right to make that concession. A consideration of the features of this crime against Laura Chan make it clear that it was a serious example of that crime, notwithstanding the fact that Laura ended up making a full recovery from her injury. I point to many of the matters mentioned in respect of the charge of manslaughter. In addition, of particular relevance where the seriousness of this crime is concerned is the fact that the person you stabbed was your partner, and, of course, the mother of your two children. Sad and angry though you may have been about her conduct, to attack her in that fashion was a breach of trust. You were meant to be her protector, not someone who would seriously attack her. You stabbed her with that hunting knife to the central chest area shortly after you had inflicted the fatal injury upon Viet. And you did so while your children were in another part of the house, and apparently able to hear much of what was going on.

It was a very serious and dangerous step to take to stab Laura Chan in the chest. It had the effect of damaging an important artery in her chest and leading to her being hospitalised for four days. She received important medical treatment, which reduced the risk that the haemothorax and pneumothorax she sustained might develop into what could have been a fatal condition. You are very fortunate that Laura received a high level of medical care, and that she has made a full recovery. That does not change the fact, however, that she did sustain serious injury caused by your assault upon her, and that your actions led to her life being endangered.

As was recently stated by the Court of Appeal in DPP v McKay,[13]

Recklessly causing serious injury using a knife is an inherently grave offence. In combination with alcohol the consequences can be life threatening, as was the case here.[14]

[13][2018] VSCA 292 (Beach and Hargrave JJA and Almond AJA).

[14]Ibid [13].

In connection with the passage above, the Court made reference to the decision of the Court in Ejupi v The Queen[15] in which Priest JA, with whom Coghlan JA agreed, stated:

As against those mitigating aspects, this was a serious example of the offence of recklessly causing serious injury. This Court has often remarked on the dangerousness of knives, given the obvious risk in their use of damage to a victim’s internal organs and blood supply and thus to life. Those who would venture forth with a knife anticipating its use to inflict injury, and those who would use knives foreseeably to inflict serious injury, need to be deterred from so doing.[16]

[15][2014] VSCA 2.

[16]Ibid [36].

In my view, your attack upon Laura was a serious one, and can be viewed as being comfortably within the mid-range of seriousness of offences of recklessly causing serious injury, if not towards the more serious end of the mid-range.

Your prior criminal history

The criminal record filed in this matter shows prior convictions arising from one appearance in the Port Adelaide Magistrates’ Court in 1990 on charges including one charge of illegal use of a motor car. You were fined on those matters.

More importantly, you were sentenced in the District Court of New South Wales for supplying a commercial quantity of a prohibited drug. You initially were sentenced to 7 years’ imprisonment with a non-parole period of 4 years 9 months. On appeal, the conviction on the charge of supplying a commercial quantity was quashed, and in its place, the charge was amended to one of supplying an indictable quantity. The sentence was reduced to 4 years 6 months’ imprisonment, with a non-parole period of 3 years 5 months.

Mr Bayles relied in your favour upon the fact that you have no convictions for offences of violence. That is certainly true, but the fact is, you cannot call in aid in sentence your previous good history, because you have been sentenced for serious drug offending.

Indeed, you were on parole for the offending at the time of the commission of the crimes before this Court. That, as Mr Bayles accepted, is an aggravating feature of your offending. On the other hand, there is at least the possibility that your parole may be breached and that you might be called upon to serve the period of time owed on that sentence, which I understand to be thirteen months. I am not permitted to speculate about whether this will actually occur, but I do take into account in your favour the degree of uncertainty and concern which that situation may create in your mind as you serve the sentence of imprisonment I will pass upon you.

Your prospects of rehabilitation

Mr Bayles submitted that in the circumstances, I should consider your prospects of rehabilitation to be good. Those circumstances included the lack of any prior convictions for violence, the fact that Laura Chan indicated you had never been violent towards her in the course of your relationship, your age, and your good work history.

Mr Doyle did not take issue with the submissions by Mr Bayles about rehabilitation, adding to the mix the submission that your offending in this case can be seen to have occurred in a particular, slightly unusual, context. He submitted I would be entitled to take the view that your prospects of rehabilitation are ‘reasonably good’.

I sentence you on the basis that I consider your prospects of rehabilitation to be at least reasonably good.

The issues of concurrency, cumulation, and totality

It is necessary in this case to impose individual sentences on each of the two offences of which you have been found guilty. In the absence of any order for cumulation, by operation of law[17] such sentences would be served concurrently.
[17]Sentencing Act 1991, s 16(1).

In his submissions to me, Mr Bayles submitted that the requirement to have regard to the principle of totality may raise the need for there to be some moderation of the individual sentences, or for there to be a degree of concurrency between the individual sentences passed.

Mr Bayles further submitted that in arriving at the appropriate degree of cumulation and concurrency, I should have regard to the fact that both stabbings took place in one sequence of events. The two events took place within moments. There was, as he submitted, ‘almost entire overlap, in terms of motivation and the factual background to the two offences.’[18] He submitted that there is an argument for a significant degree of concurrency between the sentences for the two crimes.
[18]Plea 96.

The prosecutor acknowledged that the totality principle, the common motivations for the crimes and the fact that the events occurred so close in time, as part of the one course of conduct, would mean there is a need for some concurrency between the sentences. He submitted, however, that the overall sentence must reflect the fact that there were two separate victims of the two separate acts of stabbing. He submitted that whilst there might be said to be the need for significant concurrency, so, too, was there the need for significant cumulation.

Whilst it is true that your stabbings of the two victims occurred as part of the one course of conduct, were very close in time, and were seemingly carried out for much the same motive, it cannot be forgotten that you carried out attacks upon not one but two distinct victims, each attack necessitating a decision by you to deliberately stab the particular individual, and then your action in pursuit of each decision. Furthermore, each act was, in its own right, a serious criminal offence. In those circumstances, it is clear in my mind that a significant degree of cumulation is required.

Paying regard to the totality principle, I have reviewed the total effective sentence at which I have arrived to determine whether it is just and appropriate in the overall circumstances. I have done my best to ensure that it is so.

Current sentencing practices and comparable cases

One of the matters I am required by law to take into account in arriving at a proper sentence is current sentencing practices.[19] In seeking to understand these, I have considered, amongst other things, the Sentencing Snapshots from the Sentencing Advisory Council in respect of each offence, and the helpful material contained within the Judicial College of Victoria’s Victorian Sentencing Manual, including the manslaughter and recklessly causing serious injury case collections. There is a limit to the use of statistics and sentences passed in other cases, particularly in the case of crimes such as manslaughter and recklessly causing serious injury which span such a wide breadth of criminality. Where comparable cases are concerned, it must be remembered that no sentence passed in any other case amounts to a precedent for the sentence I must pass on you. At best, sentences in so-called comparable cases may provide a general guide or impression of the appropriate range.
[19]Sentencing Act 1991, s 5(2)(b).

As was recently stated by Justice Weinberg in the case of R v Vincec,[20] sentences for manslaughter have increased significantly in recent years. That was an application for leave to appeal against a sentence of eight years with a minimum of five years for a manslaughter brought about by the infliction of a single punch to the head. The applicant had pleaded guilty. The single ground of appeal was that the sentence and non-parole period were manifestly excessive. In refusing leave, his Honour had this to say:

Perhaps, in the past, a sentence of eight years’ imprisonment, with a non-parole period of five years, might have been considered stern for an unlawful and dangerous act manslaughter, involving a punch to the head, leading to a fall, and resulting in death.
Even so, as far back as 1991 (when, it should be noted, that the maximum penalty for manslaughter was 15 years’ imprisonment, and not 20 years as it is now), sentences of five and [a] half years’ and four and a half years’ imprisonment were increased, on appeal by the Crown, to nine years’ and eight years’ imprisonment respectively.
As the sentencing judge correctly noted, sentences for all forms of manslaughter have increased significantly in recent years. In the past few years, the sentencing statistics, produced by the Sentencing Advisory Council, show that there have been a number of sentences for manslaughter which have exceeded 10 years’ imprisonment. Those statistics indicate that there is nothing at all unusual about a head sentence of eight years for manslaughter, still less a non-parole period of five years. Indeed, the most recently available sentencing snapshot for manslaughter indicates that, the average sentence for this offence is currently between about seven years and nine years’ imprisonment.

[20][2018] VSCA 18 [56]-[58].

Whilst as I have already said, the sentences in comparable cases never amount to precedents which must be followed by subsequent sentencing Courts, it can be observed that the sentence which was subject to consideration in the case of Vincec followed a guilty plea, and was for offending considerably less serious than the crime you committed.

As long ago as 2009, Beach J[21], in a sentence later the subject of an application for leave to appeal to the Court of Appeal,[22] passed a sentence of 14 years’ imprisonment with a non-parole period of 10 years on a man who had been found guilty by a jury of the unlawful and dangerous act manslaughter of his partner. The killing was by strangulation, and on any view, it was a very serious example of the crime of manslaughter. The applicant had offered to plead guilty to manslaughter before each of the two trials he faced, a matter which was taken into account in the applicant’s favour by his Honour, but which he said would attract a discount which ‘cannot be particularly large.’
[21]As he then was.
[22]Sherna v The Queen (2011) 32 VR 668.

In considering the sentence passed by his Honour, the Court of Appeal held by majority that his Honour’s conclusion about the level of discount was correct. The Court also held that his Honour had been right to characterise the offending as being at the serious end of the range of the crime of manslaughter, and that the sentence was not outside the range of permissible sentences.[23]
[23]Sherna v The Queen (2011) 32 VR 668 (Whelan AJA, with whom Hansen JA agreed.).

Impact of your offending on its victims

In sentencing you, I am required to have regard to the impact of your offending on any victims of the offences, and also to the personal circumstances of any victims. No victim impact statements have been filed. That does not mean, of course, that these crimes did not have victims, beyond Viet whose life you unlawfully cut short, and Laura, whose life you endangered.

As a result of scope of the evidence in the trial, I know little of Viet, and the effect his sad death has had on those close to him, other than Laura Chan. I can comfortably conclude, however, that his loss has been felt far more widely than just by Laura. The loss of any human life is always a sad and serious event. That is especially so when a life has been needlessly cut short by the sort of senseless violence you engaged in here.

One of your victims, Laura Chan, somewhat surprisingly, as I have already noted, provided a personal reference in support of you. In the letter to the Court, she spoke of the grief that your actions had caused to her and the children. In reality, of course, she is a victim of each of your crimes. In respect of your killing of Viet, she was an eye witness to your brutal stabbing of the man who was, after all, her husband, and for whom she must have cared deeply. She had been with him for some years, and in a few moments of violence, you killed him in front of her very eyes. It must have been a most traumatic event for her.

No doubt, this was made all the worse for her by the fact that your dangerous action in stabbing her to the chest immediately after stabbing her husband led to her being treated for several days in hospital for the serious injury you had inflicted.

I take all of these matters into account in sentencing you.

Important sentencing considerations

In my view, the most important purposes to be served by the sentence I pass upon you are just punishment, denunciation, and general deterrence. The sentence must punish you to an extent which is just in all of the circumstances. The sentence must also manifest the denunciation by the Court of the shockingly violent conduct which you carried out. Furthermore, the sentence I pass on you must be such as to bring it home clearly to others in the community who may be minded to act with extreme violence in carrying out attacks upon partners and others, for reasons of anger, resentment and jealousy, that such behaviour will be met with strong punishment.

I agree with the submissions of Mr Bayles that specific deterrence, that is, the need to deter you from further offending, does not loom large in this case. I also agree that the prospects of your rehabilitation, which as I have said, are quite good, must also be encouraged. To that end, the non-parole period I will set will hopefully encourage you with the knowledge that you might end up being supervised in the community for a significant period of time on parole.

Sentence

Hung Anh Vu, for the manslaughter of Hung Viet Nguyen, you are sentenced to be imprisoned for a period of 12 years. This is the base sentence.

For recklessly causing serious injury to Laura Chan, you are sentenced to be imprisoned for 6 years.

I order that 3 years of the sentence on the charge of recklessly causing serious injury is to be served cumulatively upon the sentence on the charge of manslaughter.

The total effective sentence is therefore a period of 15 years’ imprisonment.

I fix a period of 11 years before which you will not be eligible to be released on parole.

I declare a period of 478 days up to and including yesterday, 25 November 2018, as being a period already served under this sentence.

I have made the forfeiture and disposal orders requested by the prosecution and consented to on your behalf by Mr Bayles.

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Citations

R v Vu [2018] VSC 732

Cases Citing This Decision

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Cases Cited

8

Statutory Material Cited

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Ilic v Tasmania [2009] TASSC 94

Phillips v The Queen [2012] VSCA 140

Ciantar v The Queen [2010] VSCA 313

[2018] VSC 732

26 November 2018