Regina v Nguyen (No 2)

[2009] NSWSC 1120

CITATION:	Regina v Nguyen (No 2) [2009] NSWSC 1120
HEARING DATE(S):	09/10/2009
JUDGMENT DATE :	6 November 2009
JUDGMENT OF:	Hoeben J
DECISION:	For the manslaughter of Joshua Bui sentenced to imprisonment with a non-parole period of 3 years commencing 19 February 2008 and expiring 18 February 2011 with a balance of term of 2 years expiring 18 February 2013. For the manslaughter of Jade Bui sentenced to imprisonment with a non-parole period of 3 years commencing 19 February 2009 and expiring 18 February 2012 with a balance of term of 2 years expiring 18 February 2014.
CATCHWORDS:	CRIMINAL LAW - Sentence - manslaughter - finding of substantial impairment after trial - gravely affected by depression - general and specific deterrence - denunciation - need for custodial sentence.
LEGISLATION CITED:	Crimes Act 1900 Mental Health (Forensic Provisions) Act 1990
CATEGORY:	Sentence
CASES CITED:	Pearce v The Queen (1998) 194 CLR 610 R v Engert (1995) 84 A Crim R 67 Regina v Georgina Marie Hill (1981) 3 A Crim R 397 R v Letteri, NSWCCA, 18 March 1992, unreported, per Badgery-Parker J R v Nguyen [2009] NSWSC 918 R v Scognamiglio (1991) 56 A Crim R 81
PARTIES:	Regina Truong Thi Nguyen
FILE NUMBER(S):	SC 2008/19053001
COUNSEL:	Ms M Cunneen SC - Crown Mr RC Pontello - Offender
SOLICITORS:	Solicitor for Public Prosecutions - Crown Solicitor for Legal Aid Commission of NSW - Offender

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Friday 6 November 2009

2008/19053001 – REGINA v Truong Thi NGUYEN (No 2)

SENTENCE

1 HIS HONOUR: On 10 September 2009 the offender was convicted of two counts of manslaughter, pursuant to s 23A of the Crimes Act 1900, i.e. in respect of each of the deceased, the offender made out a defence of substantial impairment by abnormality of the mind. The deceased were her children, Joshua (5) and Jade (3). The verdict was arrived at after a three-day trial before myself as the tribunal of fact (Regina v Nguyen [2009] NSWSC 918). These remarks on sentence should be read with that judgment.

2 The issue before the Court was whether the offender had established that she was suffering from a mental illness as that is understood in s 38 of the Mental Health (Forensic Provisions) Act 1990 in respect of each count (for which the offender was contending) or whether she had made out a defence of substantial impairment by abnormality of the mind under s 23A of the Crimes Act (for which the Crown was contending).

3 It was accepted on behalf of the offender that because the matter proceeded to trial, she was not entitled to a discount for a plea of guilty. Nevertheless, it should be noted that considerable agreement had been reached between the offender and the Crown, which significantly narrowed the issues to be decided. This enabled the matter to be completed expeditiously with a commensurate saving of time and resources.

4 I do not propose to set out the factual background in great detail. This has already been done in the earlier judgment.

5 The offender was born in June 1978 and is of Vietnamese origin. Her early years appear to have been unexceptional and she was part of a loving and supportive family. She and her two sisters were reasonably close.

6 She met her husband in 1998 and married later that year. Because her parents did not approve of her husband, a formal wedding did not take place until 2001. At the time the offender met her husband she was studying at the University of Western Sydney. After the marriage, she ceased those studies and commenced fulltime employment.

7 The offender’s first child, Joshua, was born in March 2003. Joshua was a difficult baby and required a lot of attention. The offender felt that she received little support from her husband in relation to Joshua. Her second child, Jade, was born in 2005. Once again the offender felt that her husband did not provide much support for her after Jade was born.

8 After the birth of Jade, the offender remained at home looking after both children while her husband went to work. The offender said that she was happy being a mother but at times felt that she was not coping because of the demands of looking after the two children and because she was receiving little assistance from her husband. When she told her husband about her difficulty, he said that she complained too much.

9 By 2007 the relationship between the offender and her husband had deteriorated. He used to sleep in a separate bed and used to go out on his own at night and would not tell the offender where he was going. In January/February 2008 the offender’s husband began to go out at night more frequently and the offender suspected that he was seeing another woman.

10 It was at about this time that the offender found it more difficult to cope. She was having difficulty sleeping, she lacked energy and she had little appetite. She lost weight. She used to cry frequently. She had to force herself to do things. Nevertheless, she was able to look after the children and attend to her housework.

11 During the first half of February 2008 a number of events occurred which confirmed for the offender that her husband was seeing another woman. On the weekend before the death of the children, the offender obtained a voice-activated tape recorder and placed it in her husband’s car. When she retrieved the tape recorder from the car, the offender believed she could hear her husband talking and laughing with another woman.

12 The offender became upset and on the evening of Sunday, 17 February confronted her husband who was lying on his bed. She accused him of being unfaithful to her. She was so upset that she broke some of their wedding photographs. Her husband responded by telling her that their relationship was over and that he was going to see her parents and tell them.

13 The other events of that Sunday night are difficult to determine since the offender gave slightly different versions to the psychiatrists who examined her. What is clear, however, is that at some point there was a physical confrontation between the offender and her husband in the course of which she pushed him and he slapped her with some considerable force. A childcare worker observed a cut on the offender’s cheek the following morning.

14 The offender did not sleep that night. She felt that her husband had abandoned her. She did not know what to do or how to get out of the problem.

15 On Monday, 18 February the offender took Jade to day care and Joshua to school. During the afternoon she contacted her brother-in-law and asked him to help her follow her husband that evening. She wanted to confront the woman and her husband together. Her brother-in-law agreed to help her. On the way home, she stopped at the supermarket and bought some rat poison.

16 That evening her husband returned from work at 6pm and took a shower. While he was in the shower, the offender took her children and met with her brother-in-law who was waiting outside. When her husband drove off, they followed. After about ten minutes they lost sight of his vehicle. After unsuccessfully searching for the vehicle for some time, they returned home.

17 Because the offender did not give evidence, the only evidence which the Court has about her state of mind at this time comes from the histories which she gave to psychiatrists who examined her and from three letters which she left. The histories given to the psychiatrists are generally consistent, although they do differ as to detail and as to the precise sequence of events.

18 On the morning of Tuesday, 19 February the offender spoke to her husband again and told him that she did not want to end the relationship. He replied that he was sorry for the children but had to leave as he said he did not want her any more. The offender asked him how long the affair had been going on to which he replied that she did not need to know. When the offender asked him if he still loved her, he did not answer and walked out of the room and left for work.

19 The offender said that her husband was a very determined man and after that conversation she was certain that he had made up his mind to leave. After he went to work that day she thought, “I don’t want this life” and said that she decided to commit suicide.

20 Sometime later that morning she decided that she had to kill her children as well. She divided the rat poison she had purchased the day before into three and mixed it up in a blender with sugar and water. She thought that this might make it easier for the children to swallow. The following description of what then happened was recorded by Dr Allnutt in his report of 17 August 2009:

“She gave Joshua the poison and told him “it is just a little bit of hurt and we are out of this world, mummy will be there”; Joshua refused to take it, she put him down to sleep.
Jade woke up and she put a pillow on Jade’s face, she was not sure how long for, all she was thinking was “just die”, “it is too painful to live”; Jade stopped breathing; she stated “I told her I’d be there for her”; she put Jade back to bed.
Joshua woke up, she covered his nose with her hand and he stopped breathing; she told him “just a little bit of hurt and it be over”.
She put both of them in the bed and took the poison herself and then laid down beside them;”

21 The precise cause of the children’s death could not be ascertained as a result of the post mortem. It was accepted that the most likely cause in each case was asphyxiation (i.e. suffocation).

22 When the poison she had consumed did not appear to be working, the offender took a blade and cut her wrists and waited but nothing happened. She cut herself again and still nothing happened. She then tried to hang herself by putting a loop of rope around a door bar. When she placed her weight on the door bar, it broke. She then consumed all the tablets she could find in the house and lay between the children. She started vomiting. She went back to lie between her children and could not recall what happened thereafter.

23 The offender’s husband arrived from work at about 6.15pm. He noticed a trail of blood droplets on the kitchen floor leading to the master bedroom. Inside the master bedroom he saw the offender lying on the bed motionless with the children on either side of her. All three were partially covered by a doona.

24 When ambulance officers arrived, they were unable to revive the children. The offender was observed to be conscious but not responsive. She was observed to have lacerations to both wrists and both inner elbows. She was taken to Liverpool Hospital and has remained in custody at Silverwater Women’s Prison under psychiatric supervision since that date. She has been diagnosed as suffering from a severe depression. In approximately May 2009 the other inmates learned of what she had done and as a result of threats, she was placed in protective custody where she has continued to date.

25 Three handwritten letters were located in a top drawer of a bedside table by the side of the bed in the master bedroom. One letter was written in English as follows:

“19/2/08
To whom it may concern
I Nguyen, Thi Truong. I am going and taking my kids with me. However, all my life is a drama. My husband created it and now he made me miserable.
If I and my kids are going the only thing I want from his share from being a wife for many years – is every cost of my funeral and my kids. This is my only wish.
However I want my parents and family in charge of the funeral.
Thankyou. I only want to go peacefully.
Thankyou again.
Thi Truong Nguyen.”

26 The second letter written in Vietnamese was as follows:

“Dad and mum
This is the result of me not listening to you, I don’t want to die and leave my children lonely in this life but the reality is I do not want to bring them into this life and then have to take their lives away by my own hands, but dear parents I cannot live in this life. If I continue living perhaps until certain days I can not control myself and I have to pour everything to my two children and they are the ones who have to suffer. Please forgive me. Don’t be sad because of me lets treat this as a way to release me and my children. I know mum has suffered a lot. I’m sorry mummy, don’t think this is a big loss because I am a stubborn daughter. Just think this a life path.
Signed daughter of dad and mum
Younger sister of my sister
Older sister of my younger brother and sister
Please bury my children and myself close to each other, do not cremate.”

27 A third letter, also written in Vietnamese was as follows:

“Darling
You have taken me into this life today and you yourself have taken away my life. I only wish to have a lover who truly loves me, think of me and concern about me, understand me a little bit. But eventually it has never been fulfilled. Probably it’s my destiny, being husband and wife for a number of years [you have been so cruel to me] [you have treated me badly while I have sacrificed all just for you]. Whatever I have done was for you because of that, how frustrated I have been suffered! Probably, I might not control myself one day. This is the result of what is happening today because of your coolness to me. If you didn’t love me why did you live with me. I don’t want to take away my children’s lives and I also don’t want them to live lonely by themselves. Do you know that they have been sad and cried do you know why, because they are not close to their father who used to love them. Life without love (unable to be translated) I have to go away because I don’t want to witness the situation in which my husband betrayed me for living with another person. I take away my own life so I don’t want to witness the situation in which my children live lonely by themselves and the situation which my husband who is in love with another person. I have been given two wonderful children by God. I don’t want to take away their lives because I am the one who have brought them into this life. However what is this life. Living without love, to me life is just only selfishness and betrayal. Let my children and myself leave in peace. This is the last words of a person who in fact is a wife but not a wife.
Truong.”

28 In March and June 2008 the offender saw a psychiatrist, Dr Nielssen. When he asked her why she had killed her children, she said:

“She did not believe her husband loved the children and that she did not want to leave them behind without her. … She denied killing the children as a way of expressing her anger towards her husband and said that she did not believe he loved the children as much as she did.”

29 Dr Wilcox, psychiatrist, saw the offender on 23 February 2009. In relation to why she killed the children, she told Dr Wilcox:

“At the time she believed that her husband did not love the children because he had chosen the other woman. I observed that at this stage interview she became quite visibly upset and teary. She said that she had thought of leaving her husband and taking the children but then the children would be without their father.
…
She decided that when she died that she would also have to take the children’s lives because she could not leave her children without a father. Her whole focus was on the fact that he was leaving. She told me that she felt scared that if she left her husband and had to look after the children on her own she would not be able to control her anger and could possibly harm her children and they would suffer and she decided that if she took their life she would stop them from ever having to suffer. She seemed to be unable to comprehend that her children would have still had a father …
She denied that her actions were in any way driven by a desire to punish her husband. She again told me that she believed that she could not live without him however she could not explain why she felt she could not live without him.”

30 Dr Allnutt, psychiatrist, saw the offender on 22 and 29 July 2009 and recorded the following history:

“She began to think about killing herself and the children; she did not want her children to live without a father; she realised that she and her husband would have to separate; she said that she had seen many families break up and it was the children who had suffered; at the time she believed the children were dependent on her; if her husband went with another lady then they would not have a father; she said at the time she would not accept his going to another woman; she could not accept a husband who had betrayed her; at the time she felt that life was worthless in general because the person she trusted had betrayed her; she thought her husband did not want them (she and her children) because when she had asked him whether or not they could stay together for the sake of the children he had said no.
…
The times she gave the children the poison she was thinking “I didn’t want them to suffer, this world was lies and betrayal”. “I couldn’t think anything more”.
…
She had in the past had the experience of other families separating with ongoing conflicts between the parents; she said she did not want her children to experience that; she also thought that one day she might “get crazy” and “put anger” on the children and in this sense “they might suffer”; she thought she needed to get out of this world, she thought the only way to do this was to die; she wanted to kill her children because she did not want them to suffer; she thought at the time “life is very cruel”, she thought even though she had tried her best to be a good person and a wife, all she got was betrayal and lies; at the time she thought killing herself and the children as a way to escape from “a cruel life”; at the time she believed her children were going to have a “cruel life” because of “what I’ve been experienced”, she said that the minute her husband said “sorry for the children” and he had to get out “it makes me feel pain for the children and their loneliness”; she thought he would abandon the children because of what he had said; a few days prior he had been yelling at the children because he was going to be late which meant to her at the time that the children were not his first priority”.

Psychiatric opinion

31 The three psychiatrists, who gave evidence at trial, agreed that at the time when she killed her children, the offender was severely depressed. They agreed that the discovery of her husband’s infidelity and his decision to leave her brought about this severe depression with its consequential suicidal thoughts and other disordered reasoning.

32 All three psychiatrists agreed that the offender knew the nature and quality of the acts that she was doing. Where they differed was the extent to which she was capable of reasoning about the rightness or wrongness of her actions.

33 Dr Nielssen concluded that the offender’s thought processes were so disordered that “she was unable to reason with any sense of composure about the likely consequences of her actions and did not recognise that her actions were morally wrong as in her depressed state she believed that what she was doing was in the best interest of the children.” He characterised the level of her depression as a form of psychotic illness because of her abnormal perception of events which accompanies her severe depression.

34 At trial I rejected that opinion in favour of those of Drs Wilcox and Allnutt.

35 Dr Wilcox rejected any suggestion of a psychotic condition. Although revenge could not be totally discarded as a motive, Dr Wilcox thought that it was more probable that the offender’s actions were due to a combination of shame and despair and that she was suffering from an underlying depressive disorder which adversely affected her judgment and capacity to think rationally. Overall, however, Dr Wilcox thought that at the time she killed her children the offender did have the capacity to judge the difference between right and wrong.

36 Dr Allnutt reached a similar conclusion. He drew a distinction between a “cognitive distortion” and “distorted thought”. He said:

“A cognitively distorted thought is generally based on a sense of one's reality, but the important thing is that it is amenable to reason. People who are depressed you can reason with. They are able to see that their thoughts are, and I use this word in inverted commas, irrational. In other words, they don't accord entirely with reality but they are able to see that they don't accord. So there is not a loss or a total loss of capacity to reason.”

37 Dr Allnutt had considerable difficulty in deciding the extent to which the offender’s ability to reason clearly had been adversely affected. His conclusion was expressed as follows:

“Now, I always struggle with the issue of where one draws the line and distinguishes between disease of the mind causing the person not to know the wrongfulness of their actions, versus an abnormality of mind due to an underlying condition impacting the person's capacity to judge right from wrong. To me, it is a spectrum. I think Dr Wilcox was getting at where do we draw the line. This is very much a legal issue, a legal test. But as I said in my report if I was pressed to fall on one side or the other I would go for substantial impairment because of those reasons I have just enunciated.”

38 At trial I set out my conclusions as follows:

“68 While I am mindful of the weight given by the psychiatrists to what they have been told by the accused since the death of her children, it seems to me that the best evidence of her state of mind at the relevant time comes from the letters which she wrote.
69 The letter to her parents indicates to me a keen awareness that other persons, in particular her parents, would not approve of the action which she proposed to take. The letter to her husband, while perpetuating the distorted view that by killing her children she was acting in their best interests, is replete with recriminations directed at her husband and in it she blames him for what she is about to do, i.e. kill the children.
70 The tone and content of those letters, while clearly indicating distorted or unsound ideas concerning what was best for the children, do not indicate that she was “quite incapable of taking into account the considerations which go to make right or wrong”.”

39 By way of further explanation, I accept that the overriding intention of the offender at the time when she killed her children was, as a result of her disordered thought processes, altruistic. Nevertheless, there was an obvious element of retaliation directed at her husband for what she perceived to be his unjust treatment of her.

Consideration

40 Sentencing in cases like the present begins with the recognition that there has been a felonious taking of human life with intent to kill. The range of sentences is wide and depends to a significant degree upon the degree of impairment of the offender’s capacity and the effect it has upon the assessment of her criminal responsibility.

41 The difficulties inherent in the sentencing process in such circumstances are succinctly set out by Street CJ in Regina v Georgina Marie Hill (1981) 3 A Crim R 397 at 402:

“The circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder can vary infinitely, and it is not always easy to determine in any given case what should be done in the matter of sentence. At the start it should be recognized that the felonious taking of a human life is recognized both in the Crimes Act , 1900 and in the community at large as one of the most dreadful crimes in the criminal calendar. The Courts have, however, over the decades gradually manifested a willingness to recognize factual contexts which provide some basis for understanding the human tragedies that can lead to the taking of a life. The manifestation of this humanitarian tendency is necessarily attended by the utmost caution. It can be seen to be constantly written in the decisions of the courts and in the enactments of the legislature that the taking of a human life is a grave action calling for a correspondingly grave measure of criminal justice being meted out to the guilty party.
In a case such as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment and the interests of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life.”

42 There are a great variety of actions which may constitute manslaughter, ranging from the morally almost innocent to the seriously culpable. It is for that reason that it is almost impossible to detect any clear pattern of sentencing for the crime of manslaughter. In such a case it is necessary to respect the community interest and the need for a deterrent sentence on the one hand, but to balance against that, the particular circumstances of the case both objective and subjective.

43 A sentence can only have a deterrent effect for the community at large where the community can appreciate that there is a real degree of culpability on the part of the offender. Where the actions of the offender approach the morally innocent, little is demonstrated to the community by way of deterrence in the imposition of a sentence.

44 The authorities make it clear that when an offender is being sentenced, who was suffering from an abnormality of mind at the time of the offence, considerations of general deterrence and retribution may be less weighty than in the ordinary case – R v Engert (1995) 84 A Crim R 67 per Gleeson CJ at 71. (See also the references at that page to R v Scognamiglio (1991) 56 A Crim R 81 at 86 and R v Letteri, NSWCCA, 18 March 1992, unreported, per Badgery-Parker J).

45 Nevertheless, much depends on the circumstances of the individual case. The existence of the causal relationship between a mental disorder and the commission of the offence does not automatically mean that an offender will receive a lesser sentence, any more than the absence of such a causal connection produces an automatically greater sentence.

46 In this case, as the Crown pointed out, there were some aggravating features. There was an element of planning in the purchase of the rat poison, although the offender’s intention at that time might only have been restricted to taking her own life. There was the vulnerability of the victims and the serious abuse of trust which occurred when the person who was entrusted with their care, both morally and legally, took their lives.

47 On the other hand, there is the motivation for the crime which was primarily altruistic, given the offender’s disordered state of mind at the time. As Dr Allnutt pointed out, the offender’s level of depression was of such severity that looked at as part of the spectrum of mental illness, it was very much towards the serious end.

48 Taking those matters into account in assessing the objective seriousness of these offences, the fact that human life has been taken is significantly ameliorated by the impairment of the offender’s capacity to distinguish right from wrong. In those circumstances, in line with such decisions as Engert, I am of the opinion that personal deterrence has no part to play. General deterrence and retribution are still relevant because of the offender’s appreciation of the wrongness of what she was doing and the element of retaliation in her motivation. Nevertheless, those considerations also carry less weight than would otherwise be the case.

49 The offender was examined by Dr Nielssen on 8 October 2009. He concluded that she had recovered from the very severe depressive illness that was diagnosed after her admission to prison. He thought that she should remain reasonably well, provided she continued to take anti-depressant medication under the supervision of a psychiatrist for the foreseeable future. He thought the nature of the offences was such that she would never recover to her previous level of contentment and that there was a long-term risk of further episodes of depression and of suicide. He thought that the offender would not pose a risk to any member of the community and if she did form another relationship and have more children, she would be unlikely to pose a danger to those children after her experiences of what was her first episode of mental illness.

50 In the light of that material and the other psychiatric evidence, I am satisfied that the offender is genuinely remorseful and that she poses no risk to the general public and that there is no need to protect the community.

51 The offender’s subjective case is a strong one. Until these offences she was a person of good character and had no previous adverse contact with the law. Until these offences, the evidence is overwhelmingly to the effect that the offender was a caring and devoted mother.

52 Despite these positive features, I see there being no alternative to a custodial sentence. There is nothing more precious than human life and nothing more poignant than the killing of young children, particularly where the offender is the mother of those children. One cannot ignore the awareness which the offender had of the wrongness of her actions, despite the severity of her depressive illness.

53 The offender entered custody on the day of the offences, 19 February 2008. She has remained in custody for a period exceeding 20 months. The last 5 months of that custody have been more onerous because she has been held in protection. This is likely to be the situation in the future. I have taken this into account.

54 In fixing upon a sentence it is necessary that separate sentences be identified in respect of each count. In determining such sentences, I should have regard to the principle of totality, giving consideration at the same time as to whether the sentences should be concurrent or cumulative (Pearce v The Queen (1998) 194 CLR 610).

55 It is clear from the most recent report of Dr Nielssen that after she is released at the expiration of her minimum term of imprisonment, the offender will need an extended period on parole in order to assist her rehabilitation and to ensure that she does not relapse into a depressive condition. In that regard and because this has been the offender’s first period of imprisonment, I find special circumstances. The minimum and additional terms of the sentence I impose will take account of those factors and the need for post release rehabilitation and treatment.

56 Truong Thi Nguyen for the manslaughter of Joshua Bui I sentence you to imprisonment with a non-parole period of 3 years commencing 19 February 2008 and expiring 18 February 2011 with a balance of term of 2 years expiring 18 February 2013.

For the manslaughter of Jade Bui I sentence you to imprisonment with a non-parole period of 3 years commencing 19 February 2009 and expiring 18 February 2012 with a balance of term of 2 years expiring 18 February 2014.

The effect of that sentence is a period of imprisonment for 6 years with a non-parole period of 4 years.

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