Regina v Khanh Hung Vu

[2005] NSWSC 271

CITATION:	Regina v Khanh Hung Vu [2005] NSWSC 271
HEARING DATE(S):	24 November 2004 - 1 December 2004, 11 March 2005
JUDGMENT DATE :	1 April 2005
JUDGMENT OF:	Barr J at 1
DECISION:	The offender is sentenced to imprisonment for a period of eighteen years. A non-parole period of thirteen years and six months is fixed commencing on 23 July 2003 and expiring on 22 January 2017 and a balance of the term of four years and six months expiring on 22 July 2021.

PARTIES:	Regina, Khanh Hung Vu
FILE NUMBER(S):	SC 2004/30
COUNSEL:	J Dwyer L Flannery
SOLICITORS:	S Kavanagh Legal Aid Commission of New South Wales

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GRAHAM BARR J

1 APRIL 2005

2004/30 REGINA v KHANH HUNG VU

SENTENCE

1 HIS HONOUR: On 31 March 2004 the offender, Khanh Hung Vu, was committed for trial on a charge that on 1 December 2003 at Sydney he murdered Yong Ling. At the commencement of his trial he pleaded not guilty of the murder of the deceased but guilty of her manslaughter. The Crown did not accept the plea in discharge of the indictment and the trial proceeded. On 1 December 2004, part way through the trial, the offender asked to be arraigned again and changed his plea to guilty.

2 The deceased, Yong Ling, came from a Chinese family and grew up in Sarawak. She settled in Australia in about 1990. She married a Chinese man, but the relationship ended in fact when he took their infant child and returned permanently to China. The deceased met the offender in about 2000 when she was living and working in Campsie. They began to live together and on 3 June 2001 the deceased gave birth to their child, Joseph. The deceased was still married, so she and the offender did not marry.

3 The offender began to act violently towards the deceased. In September 2002 she reported to the police that he had hit her many times. The police had to be called a number of times to the unit where the couple were living. The deceased became afraid of the offender and obtained an Apprehended Violence Order which restrained him from going to the place where she and the child were living. He disobeyed the order and repeatedly went to the deceased’s home. He assaulted her a number of times.

4 One such occasion was on 1 June 2003. The deceased was at home with their child and the offender went to the unit. He told the deceased that he wanted her to let him live with her and not to tell the police about it. She refused. He punched her several times in the face, causing swelling and bruising. She had to be taken to hospital for treatment.

5 On the evening of 16 June 2003 the offender knocked on the deceased’s door but she would not open it and told him to go away. The unit was situated not very far above street level and access could be gained from the street by climbing onto a balcony which led onto a bedroom. The offender got in by that means. He told the deceased that he wanted to have sexual intercourse with her and she refused. He raped her violently in the presence of the child. She was badly hurt. The offender stayed in the unit for several hours afterwards but the deceased was afraid to call the police. After the offender left she reported the matter to her neighbours, who helped her and took her to hospital. There were plain, fresh and telling injuries to her sexual parts. The police were informed and took photographs of the deceased’s face. Those photographs show the bruising caused by the attack made earlier in the same month.

6 The deceased found herself unable to look after the child properly and handed him over to the Department of Community Services, I think for a limited time. On 20 June 2003 the offender again went to her unit. She explained to him that the child was with the department and telephoned the department so that the offender could speak to an officer. She was afraid to ring the police and hoped that the officer would. Fortunately the officer did, and the police went to the unit and took the offender away.

7 The deceased was afraid to live any longer at the premises and arranged for her neighbours to take over the remainder of her lease. She was due to move out on 23 July 2003 but decided to stay one more day. The neighbours had already moved in. The offender arrived unannounced as before and entered the unit via the balcony and the bedroom. He told the deceased to come into the bedroom to listen to him. He took her out of the presence of the neighbours and into the bedroom. He took her onto the balcony and gave her a savage beating with his fists. As she lay helpless on the floor the offender swore and kicked her repeatedly in the leg. He left her unconscious, lying face down on the balcony. There was blood coming from her nose, her ears and her mouth. Ambulance officers were called and had to remove a tooth from her airways to enable her to breathe. They could not feel her blood pressure. They took her to hospital.

8 When she arrived at hospital the deceased was unconscious and bleeding from various parts of the head. She was in severe hypovolaemic shock. CT scans showed multiple fractures. There was a fracture of the frontal bone and the frontal sinuses. There was a longitudinal fracture within the right petrous temporal bone. There were fractures of the nasal bones and the ethmoids bilaterally. There were fractures involving the anterior, lateral and medial walls of the maxillary antra. Fracture lines were reported extending to the bases of the pterygoids. There were fractures involving the zygomatic arches bilaterally. There were fractures involving the medial orbital and lateral orbital walls. There were fractures involving the right side of the body of the mandible as well as both mandibular heads.

9 The deceased remained in the Intensive Care Unit of the hospital for more than four months. On 26 November she was removed to a nursing home, but four days afterwards she had to be returned to hospital with overwhelming sepsis. She died on 1 December 2003. According to the post mortem report there were complex cerebral changes, directly and indirectly consequent on blunt force head injury and hypoxic and ischaemic damage resulting from blood loss and hypotension at the time of injury. There was left retinal ischaemia, perhaps due to retinal artery damage associated with basal skull and orbital fractures.

10 The offender was born on 1 March 1968 in Vietnam and grew up in that country. He worked with his father as a carpenter. An elder sister settled in Australia and sponsored him as an immigrant to this country in 1988. He worked in factories and drove vehicles. He had relations with women before he met the deceased, one in Vietnam, which lasted about a year, and one in Australia, which lasted one or two years.

11 The offender was examined by Dr Westmore, psychiatrist, and his report was tendered on sentence. Dr Westmore saw no evidence of any psychiatric illness or significant personality disorder. The offender gave him an account of his relations with the deceased and counsel put the account before the Court without objection as evidence of the facts asserted. After the offender met the deceased in 2000 they began living together and after four or five months the deceased became pregnant with their son. After the birth of the child, the deceased showed signs of depression. She drank alcohol to excess. She had no respect for the offender and took his money. There were court proceedings between them in 2002 and they separated. The offender went to live with his mother. The deceased cut her wrists and wanted to kill the child as well, so the offender resumed living with her and the child. Things did not improve. She made him crazy.

12 This account was, perforce, repeated uncritically by Dr Westmore and the offender did not give evidence. The Court might therefore have had difficulty in accepting it at face value. However, there is support for some parts of the story in a number of hospital records. In 1991 the deceased was taken to hospital by the police after slashing her wrists. She gave an account of having been raped by a number of men some three years earlier and of having had an abortion. She had evidently been taking drugs for some time.

13 In September and November 1994 she was admitted to Rozelle Hospital following an overdose of drugs. Her discharge summary recorded a long-standing history of significant alcohol abuse. She reported having been treated at several different hospitals for several different complaints, but she could not give further details. She reported having been injured in a fall from a train. Adjustment disorder and depressed mood were diagnosed. She was discharged. Not long afterwards she was re-admitted, reporting hearing voices which told her to kill herself.

14 In 1996 she became distressed when it seemed that her husband was about to leave Australia and take away their son. She attempted suicide and was taken to hospital. She was diagnosed as a mentally disordered person.

15 In 1998 she sought help from a mental health unit for excessive consumption of alcohol. She had apparently recently returned from a stay in Malaysia, where she had sought psychiatric help.

16 In April 2000 she was noted to be a suicide risk, to be depressed and to be suffering from confusion of thought.

17 It thus appears that, though there is no reason to believe that there was any fault on her part, the deceased was not an altogether easy person to live with, and I accept that her behaviour as she grappled with her mental problems, adversely affected as she must have been by her use of alcohol and other drugs, was exasperating for the offender.

18 Before he met the deceased he was employed at a clothing factory. A fellow worker told him that another man was spreading rumours about his character. The offender approached the man and asked for an apology. An argument started and the offender drew out a meat cleaver that he had concealed in his clothes. He struck the man twice with the cleaver before another employee restrained him. The man sustained lacerations to the head and chin. He was taken to hospital and twenty-six sutures were inserted. The offender told the police that the man had previously struck him with his hand and that he had armed himself with the cleaver because he knew that he could not otherwise beat him.

19 I do not think that the offender went to the deceased’s home with the express intention of injuring her, but he must have known that if he went there violence would probably follow. He was well aware from his recent confrontations that he was likely to lose his temper. He knew that if he did so he would not stop short of beating up the deceased. The way in which he entered the deceased’s premises shows that he did not expect her to let him in. He must have known that there would be some kind of difficulty.

20 There was no intent to kill, but the vicious and sustained attack proves beyond reasonable doubt that the offender was intent on doing the deceased grievous bodily harm.

21 His criminality is aggravated by two features. The first is that when he launched his fatal attack he was at conditional liberty and bound by the terms of an apprehended violence order not to approach the deceased.

22 The second is that this was not his first attack on the deceased, but the latest in a number of vicious assaults. His previous conviction for a serious assault and his prior attacks on the deceased show that he readily resorts to violence in order to solve his problems and that when roused he is prepared to inflict very serious injury. They disentitle him to leniency.

23 The offender has asked me to take into account in sentencing him of three of the matters I have mentioned. They comprise the assault on the deceased of 1 June 2003 and the breaches of the Apprehended Violence Order on that day and on 20 June 2003. I take them into account. Insofar as I have regarded them as aggravating features I have not counted them twice in determining the sentence.

24 I have paid regard to the offender’s plea of guilty. I do not regard it as any evidence of contrition. He does not say that he is sorry for what he has done and I do not think that he is. His initial plea of guilty of manslaughter may be taken as some indication of a preparedness to narrow the issues at trial. The plea of guilty of murder came at the beginning of the third day of the trial, which would otherwise have concluded in a further three days. One of the witnesses who had given evidence was the sister of the deceased, Ms Marlina Ling Hie. She had had to travel from Malaysia for the purpose. Altogether, ten lay witnesses had already given evidence. The plea of guilty of murder effected a saving of perhaps three days of court time and the initial plea may also have effected a shortening of the trial. In the circumstances the pleas did have a utilitarian value but I assess it as modest. I have accordingly made a modest allowance in the sentence.

25 The Crown submitted that there was some evidence of premeditation. Ms Flannery, for the offender, submitted that the attack was not planned and that that mitigated the offender’s criminality. I reject both submissions. I have said that the offender went to the deceased’s premises without any intent to attack, but he knew that he should not be there and, I think, knew that he was liable to lose control and resort to violence, as he had done several times in the recent past.

26 The offender’s readiness to confront people when things do not go his way and his willingness to resort to violence are matters of concern. However, I must sentence to him to a substantial non-parole period, and the evidence does not enable me to say whether he is likely, at the conclusion of that period of time, to offend again when returned to parole. I cannot conclude that he is such a risk to society that he should be denied parole. His prospects of rehabilitation are equally difficult to assess. They do not look encouraging at the moment but time may soften him.

27 The standard non-parole period for the offence of murder is twenty years. However, as the parties are agreed, it will not apply in the present case, not least because the offender has pleaded guilty and because he did not intend to kill the deceased.

28 The circumstances do not justify imposing a parole period which exceeds one third of the non-parole period.

29 I sentence the offender to imprisonment for eighteen years. I set a non-parole period of thirteen years and six months commencing on 23 July 2003 and expiring on 22 January 2017 and a balance of the term of four years and six months expiring on 22 July 2021. The offender will be eligible for release on parole on 22 January 2017.

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