The State of Western Australia v Truong
[2024] WASC 500
•23 DECEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: THE STATE OF WESTERN AUSTRALIA -v- TRUONG [2024] WASC 500
CORAM: LEMONIS J
HEARD: 9 DECEMBER 2024
DELIVERED : 9 DECEMBER 2024
PUBLISHED : 23 DECEMBER 2024
FILE NO/S: INS 391 of 2016
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
VIET KY TRUONG
Accused
Catchwords:
Criminal law - mental impairment - attempted unlawful killing and aggravated unlawful wounding - transitional provisions - custody order made under now repealed Criminal Law (Mentally Impaired Accused) Act 1996 (WA) - application for limiting term to be set under Criminal Law (Mental Impairment) Act 2023 (WA)
Legislation:
Criminal Code
Criminal Law (Mental Impairment) Act 2023 (WA)
Sentencing Act 1995 (WA)
Result:
Limiting term set
Category: B
Representation:
Counsel:
| Applicant | : | AJ Finn |
| Accused | : | K Farley SC |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Accused | : | Legal Aid WA |
Case(s) referred to in decision(s):
The State of Western Australia v Chokolich [2024] WASC 346.
The State of Western Australia v Smith [2024] WASC 361.
The State of Western Australia v Truong [2017] WASC 289.
LEMONIS J:
These reasons concern an application made by the Director of Public Prosecutions for Western Australia (Director) pursuant to the Criminal Law (Mental Impairment) Act 2023 (the new Act). The new Act commenced on 1 September 2024.
The respondent, Mr Truong, was charged on an indictment dated 22 February 2017 with two offences. First, that on 30 May 2016, he attempted to unlawfully kill his then wife, Ms Thuc Trinh. This is an offence against s 283(1) of the Criminal Code for which the maximum penalty is life imprisonment.
Second, that he unlawfully wounded his daughter, in circumstances of aggravation. This is an offence against s 301(1) of the Criminal Code for which the maximum penalty is 7 years imprisonment. The circumstance of aggravation was that they were in a family relationship.
On 27 September 2017, Hall J (as his Honour then was) found under s 9 of the Criminal Law (Mentally Impaired Accused) Act 1996 (the repealed Act) that Mr Truong was not mentally fit to stand trial and would not become mentally fit to stand trial within six months.[1] The evidence before his Honour demonstrated that Mr Truong had a neurodegenerative disorder, which was further complicated by psychotic beliefs.[2]
[1] The State of Western Australia v Truong [2017] WASC 289 [29].
[2] Truong [18] - [28].
Given that the charged offences were punishable by imprisonment, it was open to Hall J to make a custody order in respect of Mr Truong. His Honour did so on 27 September 2017 (the custody order). It is now necessary under the new Act to set what is called a 'limiting term' in respect of the custody order. I imposed the limiting term on 9 December 2024 and made initial remarks then explaining the basis for the term set. These reasons incorporate and expand upon those remarks.
By way of further background, on 29 November 2022, the Governor made a conditional release order in respect of Mr Truong, which took effect on 5 December 2022. The conditional release order was made under s 35(2) of the repealed Act. The conditional release order permitted the release of Mr Truong from custody on conditions that included that he reside at a specified psychiatric hostel.
Pursuant to s 257(3) and (4) of the new Act, the release order had effect according to its terms on and after 1 September 2024 as a leave of absence order under s 73(1)(b) of the new Act.
On 3 October 2024, the Mental Impairment Review Tribunal (the Tribunal) replaced that leave of absence order with a new leave of absence order. The new leave of absence order provides that Mr Truong is to be absent from custody on condition that, amongst other matters, he reside at an address approved by his supervising officer. The approved address is a residential care facility for people with mental impairments.
The application of the new Act to these circumstances
The custody order is an existing custody order under the new Act, it being in effect immediately before 1 September 2024. It has effect as if it were a custody order made under pt 5 of the new Act. [3]
[3] Section 254(1) and (2) of the new Act.
Pursuant to s 261(1) of the new Act, as soon as practicable after 1 September 2024, the Director must apply to this court, being the court that made the existing custody order, for the court to set a limiting term for the order.
The Director has now made that application.
Section 50(2) of the new Act describes a limiting term as:
If a court makes a custody order, the court must set a limiting term for the order, being the best estimate of the term of imprisonment or term of detention that the court would, in all the circumstances, have imposed if —
(a)the court were sentencing the person for the offence; and
(b) any mental impairment of the person were not taken into account.
For the purposes of determining the 'best estimate', s 50(3) provides that the court must assume that:
(a)the person had pleaded guilty to the charge at the earliest opportunity; and
(b) there is no other option but to impose a term of imprisonment or term of detention.
I take the reference to the 'earliest opportunity' to mean the first reasonable opportunity as referred to in s 9AA of the Sentencing Act 1995 (WA), which deals with the available discounts on sentence as a result of a plea of guilty.
The application of the new Act to an existing custody order was considered by Quinlan CJ in The State of Western Australia v Chokolich.[4]
[4] The State of Western Australia v Chokolich [2024] WASC 346 (Chokolich).
His Honour set out in detail the procedure and principles applicable to an application under s 261, which I gratefully and respectfully adopt. In summary, his Honour said:
1.Section 50 requires the court to undertake a hypothetical sentencing exercise, based upon the various assumptions provided for in the section.[5] The court is required to determine the best estimate of the term of imprisonment as if the court were in fact sentencing the person based on the specified assumptions.[6]
2.The procedure to be adopted on an application under s 261 should follow, as far as is practicable, the procedure and legal principles applicable to a sentencing hearing in this court, with the necessary modifications.[7]
3.One of the necessary modifications is that it is not necessary for the person to plead to the charge. Rather, the court must assume that the person has pleaded guilty at the earliest opportunity.[8]
4.The balance of the process is to be conducted in accordance with the Sentencing Act and the ordinary legal principles applicable to sentencing.[9]
5.The prosecutor must state aloud the material facts for the purposes of the hypothetical sentencing exercise. The court may receive further material for the purposes of that sentencing exercise. [10]
6.The court must find the facts of the offence charged and, in doing so, the court 'may inform itself in any way it thinks fit'.[11]
7.It is open to the person to contest the facts of the offences, however the person cannot do so in a manner that would traverse the assumed plea of guilty.[12]
8.Where facts relevant to the hypothetical sentence remain in dispute, the disputed factual issues are to be determined in accordance with the usual principles. Thus, in relation to facts which aggravate the seriousness of the offending, the State must prove those facts beyond reasonable doubt. In relation to facts which are mitigatory, the person must prove those facts on the balance of probabilities.[13]
9.The best estimate of the sentence that would have been imposed is the sentence the court would have imposed by applying the Sentencing Act, in particular s 6, in light of ordinary sentencing principles. Thus, the best estimate will take into account the seriousness of the offence, having regard to the statutory maximum penalty, the circumstances of the commission of the offence, including the vulnerability of any victim, any aggravating factors and any mitigating factors.[14]
[5] Chokolich [49].
[6] Chokolich [61].
[7] Chokolich [50].
[8] Chokolich [51].
[9] Chokolich [51].
[10] Chokolich [54].
[11] Chokolich [53].
[12] Chokolich [55].
[13] Chokolich [57] - [58].
[14] Chokolich [62] - [65].
Pursuant to s 264 of the new Act, when setting a limiting term on an application under s 261, the court may order that the limiting term is taken to have commenced prior to the day on which it was imposed, after taking into account time that the person has already spent in custody in relation to the offences the subject of the custody order. This has been calculated here by reference to the term of the custody order and the time that Mr Truong was in custody prior to the custody order being imposed. The State accepts that the court may order the limiting term to commence on 21 June 2016.
Intention and mental impairment
In Chokolich, Quinlan CJ observed there may be a certain artificiality in making findings of fact, for example in relation to the person's intention in committing the acts constituting the offence, where their mental state was affected by their mental impairment.[15]
[15] Chokolich [67].
However, his Honour also observed that:[16]
Nevertheless, the court setting the limiting term must do the best it can in the circumstances. The court's task is, after all, to arrive at a 'best estimate' in relation to certain assumptions that may operate in tension. It may be, for example, that, notwithstanding the assumption that the accused has pleaded guilty to the charge, the court must arrive at the 'best estimate' without making a particular finding in relation to the mental element of the offence. Of course, in such a case, the court must nevertheless arrive at the best estimate on the assumption that the person is guilty of the offence charge[d].
[16] Chokolich [68].
In this respect, the assumed plea of guilty must carry with it an acceptance of the requisite elements that constitute the offence. One of the elements of the offence of attempted murder is that Mr Truong did the acts attributed to him with the intention of killing Ms Trinh. Thus, by reason of the assumed plea of guilty, Mr Truong is assumed to have that intent.[17]
[17] Chokolich [72].
Further, ordinarily a person's mental impairment can impact a sentence of imprisonment in many ways. For example, it may reduce the person's moral culpability or suggest that the person is not an appropriate vehicle for general deterrence. On the other hand, it may increase the need for personal deterrence. However, s 50(2)(b) makes plain that in making the 'best estimate' a court is to proceed on the basis that any mental impairment of a person is not taken into account, whatever impact that may have had on the sentencing outcome.
Totality
Where a custody order is made in respect of more than one offence, only one limiting term is to be imposed. In this respect, the limiting term is in effect the best estimate of the total effective sentence that would have been imposed and thus takes account of the principle of totality.[18]
Effect of the expiry of the limiting term on the custody order
[18] The State of Western Australia v Smith [2024] WASC 361 (Smith) [36] - [41].
The starting position under the new Act is that the expiry of the limiting term is one of the events that brings about the cessation of the custody order.[19] However, the Minister responsible for the administration of the new Act may apply for an extended custody order under pt 7 div 5 of the new Act.
[19] Section 51 of the new Act.
Further, pursuant to s 265 of the new Act, an existing custody order automatically continues to operate beyond the expiry of its limiting term where:
(a)the limiting term expires on or before the day on which the limiting term was set; or
(b)the limiting term will expire within 6 months after the day on which it is set.[20]
[20] Section 265(1) of the new Act.
In each of those scenarios, s 265 provides that where the existing custody order was made by the Supreme Court, it continues until the court makes an order discharging the person from the custody order, or makes an order under pt 7 div 5. Further, the court must adjourn the proceedings until the Minister either makes an application under pt 7 div 5 or informs the court that such an application will not be made. The parties accept that the leave of absence order continues while the custody order remains in place.
Mr Truong's legal representation
Section 266 of the new Act addresses the legal representation of a person who is subject to an existing custody order. Sections 266(2) and 266(3) provide:
(2)If the person is unable to instruct their legal practitioner, the legal practitioner may exercise an independent discretion and, in doing so, must act in a way that they reasonably believe to be in the person's best interests.
(3)If there is a question as to the extent to which the person is able to instruct a legal practitioner or is able to make admissions, the question must be determined by the court.
Ms Farley SC appeared for Mr Truong. She advised that Mr Truong was unable to instruct her in respect of the facts and that further she exercised an independent discretion in the submissions that she made.
There is no question that needs to be determined under s 266(3).
Mr Truong's inability to give instructions arises from his advanced dementia condition. This is consistent with the predicted progression of Mr Truong's dementia on the evidence that was before Hall J when his Honour imposed the custody order.
As one example, his Honour referred to the evidence of Dr Claassen, a psychiatrist. In Dr Claassen's report dated 18 September 2017, he expressed an opinion to the effect that Mr Truong was suffering from a progressive and devastating brain condition which impacted his physical and mental health to such an extent that independent living and decision-making regarding his affairs would become impossible for him in the "not-too-distant future".[21]
[21] Truong [28].
I turn now to the circumstances of each of the incidents that constitute the charged offences.
Circumstances of the charged offences
Mr Truong was 56 years of age and Ms Trinh was 60 years of age. They lived together with their children, being their daughter (KT), then 17 years of age and their son (RT), then 22 years of age. Mr Troung and Ms Trinh slept together in the same bedroom.
Mr Truong was of a moderately greater physical build than Ms Trinh.
At around 5am to 6 am on 30 May 2016, Ms Trinh woke up, got out of bed and walked towards the bedroom door. As she opened it, Mr Truong jumped out of bed, grabbed Ms Trinh and threw her back onto the bed such that she was lying on her back.
Mr Truong then got on top of Ms Trinh and started to choke her. He used one hand to squeeze her throat, the other to pinch her nose and was using a lot of force in closing her throat. Ms Trinh felt like she could not breath for about two to three minutes.
Mr Truong released his hand from Ms Trinh's nose and put a blanket over her face which smothered her. She urinated out of fear. She tried to scream out for help but could not make a loud noise in the circumstances.
KT was getting ready for school and heard her mother's muffled voice calling out for help. KT went into her parents' bedroom and saw Mr Truong trying to choke Ms Trinh. KT shouted at Mr Truong to stop and pushed him in the back, which distracted him.
Ms Trinh got off the bed and onto the floor. Mr Truong picked up a 3 kg dumbbell and struck Ms Trinh to the side of her head which resulted in her face being covered in blood. Mr Truong then struck her a second time with the dumbbell.
Mr Truong then turned and swung the dumbbell at KT, hitting her on the right side of her head and causing her to fall backwards onto the bed. This caused her instant pain and bleeding and she screamed for help.
RT was woken by his mother and sister screaming. He went into the bedroom and saw Mr Troung hit Ms Trinh with the dumbbell at least twice.
Ms Trinh ran from the bedroom to the kitchen and dining area where she sat down. Mr Truong followed her into the kitchen and took a small axe from a draw. He ran to Ms Trinh and hit her on the top of her head with the blade of the axe multiple times causing deep lacerations. She was bleeding profusely and could not see out of her left eye. Ms Trinh managed to grab the axe from Mr Truong's hands and threw it across the room.
Mr Truong then picked up a knife approximately 30 cm in length. By this time KT and RT had come into the kitchen. KT tried to leave the house via the front door. Mr Truong prevented her from doing so, closing the door while holding the knife. KT ran out the back door and shouted to the neighbours for help.
Mr Truong's focus returned to Ms Trinh, and he swung the knife down in the direction of her neck. Ms Trinh deflected the knife by using her hands. RT saw this part of the attack. Mr Truong then pushed the blade of the knife against Ms Trinh's face and it went through her lower lip and into her gum. She pushed the knife away.
Mr Truong them suddenly stopped the attack. He walked out towards the shed in the backyard. KT was still in the backyard at the time and feared for her life when she saw Mr Truong.
Mr Truong did not however do or say anything towards KT. Mr Truong went into the shed and ingested chemicals in an attempt to commit suicide. This was a serious attempt to do so and resulted in him being hospitalised for a considerable period of time.
KT ran back inside the house and locked the back door. Ms Trinh called the police, who arrived shortly thereafter and arrested Mr Truong, who was taken to hospital.
KT was taken to hospital. She sustained a 1 cm laceration to the right‑hand side of her head which exposed bone. She had three stiches to this wound.
Ms Trinh was taken to hospital, where she remained for a week. She suffered extensive injuries, being a fractured C1 vertebrae, a fractured left cheekbone and eye socket, multiple lacerations to her face and hands, two large cuts to her scalp and extensive bruising to her body. The large cuts to her head were closed by way of the use of staples. She underwent surgery on 5 June 2016 to repair the injuries to her eye socket and cheekbone.
Mr Truong's personal circumstances
In Dr Claassen's reports that were before Hall J, Dr Claassen described the difficulties that he had encountered in obtaining an accurate record of Mr Truong's personal circumstances. Presumably this arose, at least in part, because of Mr Truong's mental impairment.
It would seem that the following matters are relatively uncontroversial, which I take from Dr Claassen's reports, Ms Trinh's statement and Mr Truong's counsel's submissions.
Mr Truong is now 64 years of age. He was born in Vietnam and was one of eight children of his parents. He described his childhood as happy and normal. However, as Mr Truong's counsel submits, which I accept, that was a time of trauma in Vietnam which would have made his early life difficult.
Mr Truong attended school in Vietnam. He then went to university, however he did not complete his degree.
He moved to Australia in about 1988 when he would have been either 26 or 27 years of age. One of his brothers sponsored his move to Australia. Mr Truong moved to Perth.
Ms Trinh was born in Vietnam and she moved to Australia by herself in 1990. She and Mr Truong met in about 1991 and moved in together around 1992 or 1993 and were married shortly thereafter. Mr Truong regarded the marriage as being a happy one and denied any prior history of violence within the family. Ms Trinh described her relationship with Mr Truong as normal and also described him as a loving and good man. This is consistent with Mr Truong's counsel's submissions, which I accept, that Mr Truong was a good family man and a positive influence for his two children.
Mr Truong worked consistently in Australia in a manual labour type role, primarily in the horticultural industry and in market gardens. Ms Trinh described him as being a hard worker during his life. Unfortunately, Mr Truong lost his long-term job in about 2012, apparently because of a change in management. His employment was an important part of his identity and culture. He obtained other work over the period through to 2015 and has been unemployed since then.
Mr Truong has no prior history of criminal offending.
Mr Truong currently lives at a residential care facility for people with mental impairments. Mr Truong is fully supported and receives appropriate care in this facility.
Mr Truong has a limited understanding of the English language and required an interpreter for the hearing before me.
Seriousness of the charged offences
The charged offence of attempted murder is by its very nature a serious offence.
Mr Truong's conduct in respect of that offence had a number of aggravating features.
His conduct constituted an extreme form of domestic violence committed in the family home. His attack on Ms Trinh was forceful, persistent and gave her very little opportunity to defend herself. Mr Truong used a variety of different means and weapons in an attempt to cause serious harm to Ms Trinh. The weapons were all capable of inflicting significantly more serious injuries than Ms Trinh actually suffered.
Ms Trinh must have feared for her life. Ms Trinh suffered extensive injuries. She was hospitalised for a week following the incident and subsequently required surgery as I have described.
Mr Truong's attack on Ms Trinh was witnessed at least in part by their children. The attack caused each of Ms Trinh, KT and RT much distress. They also feared for their own safety, as well as the safety of each other. Further, such conduct is likely to have continuing adverse effects on each of them.
On the other hand, Mr Truong's conduct was not planned and appears to have been an instinctive reaction upon seeing Ms Trinh move to leave the bedroom.
In respect of the charged offence of unlawful wounding, this can be committed in a variety of different ways and have a variety of different results. The physical injury to KT was relatively moderate and she did not suffer any permanent injury. The injury was treated by the application of three stitches.
Mr Truong's conduct in respect of the charged offence against KT still has a number of aggravating features.
It was a serious form of domestic violence. KT went to her mother's aid in circumstances where she must have held great fears for her mother's safety. Mr Truong struck KT to the head with a dumbbell, which had the potential to cause far more serious injury than it in fact did. The circumstances of Mr Truong's conduct overall made KT fear for own life. I am also satisfied that Mr Truong's conduct towards KT caused her great distress and that she continues to suffer from distress and anxiety as a result on the incidents overall. This is consistent with the State's submissions that a child who witnesses violence by one parent against another will ordinarily suffer enduring psychological harm.
Matters in mitigation
Pursuant to s 50(3)(a) of the new Act, I must assume that Mr Truong pleaded guilty to both charges at the earliest opportunity. As I have said, I take this to mean the first reasonable opportunity as that phrase is used in s 9AA of the Sentencing Act. It is therefore open for me to reduce the head sentence for each offence by a 25% discount pursuant to s 9AA of the Sentencing Act. A plea of guilty in a case such as this would ordinarily carry with it significant benefits to a victim of the offence and the witnesses. Specifically, it would save Ms Trinh, KT and RT the trauma of having to relive and recount the traumatic events the subject of each charged offence. It would also save Ms Trinh the potential trauma of having to give evidence against her husband of many years, and KT and RT the potential trauma of having to give evidence against their father. It would be appropriate therefore to reduce the head sentence for each charged offence by 25% by reason of the assumed pleas of guilty.
Mr Truong is of prior good character. He also was a contributing member of the community and a positive support for his family. These are also mitigating factors.
Sentencing considerations and appropriate limiting term
The best estimate of the sentence that the court would have imposed must be commensurate with the seriousness of each charged offence. That seriousness is determined by taking into account the maximum penalty, the circumstances in which the offence was committed, including the victim's vulnerability, the aggravating factors, being the factors which increase Mr Truong's culpability for the offending conduct, and also the mitigating factors.
Mr Truong's mental impairment is not taken into account.
General deterrence and personal deterrence would have been important sentencing considerations. That is, to strongly discourage members of the community from acting in the way that Mr Truong did, and also to strongly discourage Mr Truong from acting in that way again.
As there are two offences, the best estimate of the sentence that would have been imposed requires an assessment of two matters. First, the best estimate of the term of imprisonment for each offence. Second, the best estimate of the total effective sentence, after having applied the totality principle.
I assess the best estimate of the term of imprisonment that the court would in all the circumstances have imposed as follows:
1.In respect of count 1 – a term of imprisonment of 8 years;
2.In respect of count 2 – a term of imprisonment of 1 year and 6 months.
In this case, the totality principle requires consideration of all of Mr Truong's offending as a whole, to ensure the total effective sentence bears a proper relationship to the overall criminality viewed in its entirety having regard to the circumstances of the case including Mr Truong's personal circumstances.
In my view the best estimate of the total effective sentence the court would have imposed is 8 years and 6 months. This would be achieved by ordering that the sentence on count 1 is the head sentence and the sentence on count 2 be served cumulatively and be reduced for totality purposes from 1 year and 6 months to 6 months.
For these reasons, in my view the best estimate of the term of imprisonment is a total effective sentence of 8 years and 6 months.
I therefore set the limiting term for Mr Truong's existing custody order as 8 years and 6 months.
Mr Truong has been in custody in the sense that I have already explained since 21 June 2016. In my view it is appropriate to take that time into account. Pursuant to s 264 of the new Act, I order that the limiting term is taken to have commenced on 21 June 2016.
As the limiting term will now expire within 6 months, I must adjourn the proceedings until the Minister either makes an application under pt 7 div 5, or the Minister informs the court that such an application will not be made.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OM
Associate to the Hon Justice Lemonis
23 DECEMBER 2024
0
2
3