DPP v Nguyen [2004] VSC 280

Before proceeding to sentence I pronounce two formal orders. First, pursuant to s.464ZFB(1) Crimes Act 1958, I order that the forensic sample and any related material and information obtained pursuant to the informed consent given by the accused on 26 February 2003 as to samples be retained for placement on the data base. Next, pursuant to s.78(1) Confiscation Act 1997 I direct that the property referred to in the schedule to the Order that I have signed be forfeited. Those Orders are made and signed, and they will be provided to the parties.

2. Mr Nguyen, you have pleaded guilty to the manslaughter on 23 February 2003 at Abbotsford of Mr Hector Nocera. You killed Mr Nocera by stabbing him once in the back with a large knife on the public street in broad daylight. Mr Nocera died within an hour. You fled the scene.

5. The courts rightly regard the carrying and especially the use of knives in public places as very serious.

8. At the time of his premature death Mr Nocera was 32 years of age, having been born in Melbourne on 13 December 1970. You were 38 years of age, having been born in Saigon on 10 May 1964.

11. The circumstances of the crime to which you have pleaded guilty were as follows. On Sunday 23 February 2003 at about 11 a.m. the deceased and Ms Sheree Tennant caught a train from Reservoir to North Richmond. On the train they met two friends known only as Justin and Sophie. At approximately 12.18 p.m. on Sunday, just after noon, the four of them alighted at the North Richmond Railway Station. They remained together and then Justin and Sophie left. At about lunchtime on that Sunday you Mr Nguyen drove a white Toyota Camry sedan to Richmond, parking it in Nicholson Street, running north of Victoria Street Abbotsford. You met up with your stepdaughter, Kathy Nguyen in Victoria Street. You were wearing a black-coloured baseball cap with an emblem on it and you were carrying a black bag over your shoulder. A little over two hours later, just before 2.56 p.m., the deceased and Ms Tennant attended a block of flats at 106 Elizabeth Street Richmond. They caught a lift to the seventeenth floor where they argued with an unknown Asian couple. A short time later, security guards from Citywatch Security attended and asked them to leave. The deceased and Ms Tennant then proceeded to the corner of Lennox and Victoria Streets. You were already at that location with Ms Nguyen and another woman, Marijana Paric. Ms Paric knew you and your step daughter. To her knowledge, you were almost a daily visitor to Richmond and had been selling drugs at a low level in that area for about four months. Ms Nguyen later told investigating officers that you used heroin yourself and sold it to people on the streets. The deceased approached Ms Paric and threatened to hurt her if she did not give him money. He aggressively put his hand around her throat. She fled to a nearby hotel to escape from him. He chased her to the hotel, but, once she entered the hotel, doubtless with other patrons within it, the deceased did not pursue her into the hotel but returned to the corner of Lennox and Victoria Streets. The deceased then approached you and Kathy Nguyen. He commenced talking to you about drugs and saying that he had "got ripped". He commenced abusing you and arguing with you, wanting to get drugs on credit.

14. I am satisfied that throughout this episode the deceased's behaviour from the time he went to the seventeenth floor until the time when he was unlawfully stabbed by you was violent, threatening and overbearing, including to a female. The deceased had a history of violence, but that was not known to you. The deceased was, in fact, carrying a knife in his trouser belt, but that also was not known to you.

17. As I say, the deceased commenced arguing with you and abusing you. You then went to your vehicle which was in the immediate vicinity and removed from it your black bag within which was a large knife. You returned and you and the deceased continued to argue. The deceased then turned his back. You removed a knife from the black shoulder bag that you then had and you stabbed the deceased once to his upper right back, causing him to fall to the ground then and there. You and Ms Nguyen then ran to your vehicle in an attempt to escape. You were chased by Ms Tennant who was in possession of a small kitchen knife that she had obtained from the deceased following the stabbing. That knife had been hidden in the waist band of the deceased's jeans by him, but he had not produced it either to Ms Paric or to you or Ms Nguyen prior to the stabbing.

20. You and Ms Nguyen succeeded in fleeing the scene. That night you and her stayed in a motel in Footscray. The next day you booked into the West City Motel in Ardeer, where you stayed until you were arrested on the Wednesday 26 February 2003.

23. On that day, Wednesday 26 February, at approximately 3.20 p.m. the Camry vehicle was intercepted by police as it was leaving the West City Motel. The sole occupant and driver was Tuoi Nguyen. At approximately 3.25 p.m. investigators from the Homicide Squad executed a search warrant at Room 11 of that motel. You and Ms Kathy Nguyen were then arrested and taken to the Homicide Squad offices, where each of you were interviewed separately. Ms Nguyen was not charged with any offence. You were interviewed. You ultimately were charged at the conclusion of the interview with the murder of the deceased.

26. You admitted travelling to Richmond on the day in question, but you made a number of statements to the police which were untrue. You claimed to have met your step-daughter to help her find accommodation. You claimed that the deceased had a knife in his hand and was threatening your step-daughter. You claimed that you approached the deceased from behind and, after a struggle, grabbed the knife. You claimed that your step-daughter then took the knife from you and stabbed the deceased in the back. You denied having a black carry bag with you on the day. You said that it was your step-daughter who stabbed the deceased. Thus it is apparent that you told a number of substantial lies to the investigating police in your interview. In particular, it does you no credit, no credit at all, that you blamed your step-daughter for the stabbing. As I say, you were then charged with murder.

29. Immediately after the stabbing, bystanders attempted to administer first aid to the deceased until an ambulance arrived. He was then treated paramedically at the scene and en route to the Alfred Hospital. In the Emergency Department at that hospital he was given extensive medical treatment, but he failed to revive and he was pronounced dead at 3.55 p.m., just an hour after the stabbing.

32. A post mortem was conducted by the pathologist, Dr Malcolm Dodd. He found that the deceased's height was 160 centimetres and his weight 60 kilograms. There was no significant naturally occurring disease. The single stab wound to his back penetrated to a depth of 15 centimetres. As a result of the stabbing to the back, passing through vital organs, a large amount of blood had accumulated within the right chest cavity, and there was a collapse of the right lung. The cause of death was internal blood loss. There were no defence type injuries on the deceased and toxicological analysis detected no alcohol or illegal drugs in the blood of the deceased. A therapeutic level of Valium was detected.

35. The knife, item 21B in the police forensic records, was obtained from your bedroom at your Deer Park residence, wrapped in a shirt. In the opinion of the pathologist that knife is consistent with the internal injuries and external injury to the deceased. The blade of the knife was 150 millimetres in length and 27 millimetres in width. The knife is shown in photograph 148 and more clearly in photographs 156 to 159.

38. The deceased was a young man born in Melbourne on 13 December 1970. He was the youngest of five children born to Katarina and Guiseppe Nocera. In 1987 he commenced an apprenticeship in panel-beating and worked in that industry until about 1995. Shortly prior to his death the deceased reunited with his partner, Sheree Tennant, and they were living together in a unit in Reservoir.

41. I have read, more than once, the victim impact statements of the mother and sister of the deceased. As I said on a previous hearing and I here repeat, they are most impressive and moving statements. The family of the deceased are grievously afflicted by his loss.

44. You, Mr Nguyen, were born in Saigon on 10 May 1964. You have been living in Australia since 1988. At the time of this offence you were in a relationship with Tuoi Nguyen and residing with her and some of her children in Deer Park. Your counsel has eloquently reviewed the many difficulties you have faced over the years in Vietnam, in the Philippines and in Australia, and to which I shall return.

47. You have a very limited number of prior convictions, essentially drug-related. In the District Court at Campbelltown in New South Wales on 30 May 1997 you were convicted of supplying a prohibited drug and sentenced to be imprisoned for five years with a minimum term of three years before parole. Since this offence you were in the Melbourne Magistrates' Court convicted on 12 June 2003 with trafficking in heroin, theft, stating a false name and address and possessing heroin and sentenced to an aggregate of six months' imprisonment. You were in the Magistrates' Court at Sunshine on 13 March 2001 found guilty of unlawful assault but the matter was adjourned without conviction to 13 September 2001 upon your entering a recognisance to be of good behaviour and to pay $150 into the court fund. That last matter, at the Sunshine Magistrate's Court, was a minor matter and does not indicate in you any propensity for violence. There is, in fact, with you no history of personal violence. However, as I have said, a significant matter the court must take into account is that you were in possession of a knife and used it against the deceased in a public place, in broad daylight.

50. I am satisfied, having reviewed the evidence, that the deceased at no time produced the knife that was on his possession. One witness (Ms Dimitriou: D.202) had seen the knife hidden under the shirt of the deceased but there is no credible evidence that you had seen it. However, I am satisfied, with the assistance of your counsel in reviewing the matters, that you were acting in fear in the complex of the whole situation you were facing in Abbotsford. The deceased had consistently acted in a threatening manner both to a woman and generally. You were in the company of your step-daughter. The deceased acted in an overbearing and threatening manner to you at the relevant times. I am satisfied that in that threatening situation you believed you and Ms Nguyen were under threat and that threat was a continuing one.

53. Had I found as a matter of fact, Mr Nguyen, that you stabbed the deceased in revenge, believing that the threat had passed, I would have imposed a far heavier sentence upon you than I, in fact, shall impose. But I am satisfied, on the contrary, that you believed the threatening situation was continuing. In fact, the deceased had a history of violence and was carrying a knife but neither of those matters was known to you. What was known to you was the threatening, overbearing manner of the deceased. An exacerbating factor, additional to the already serious factors that you were carrying a knife, used it, and used it in a public place, is that you used the knife in connection with a serious criminal offence, namely in the course of drug trafficking. However, I am not satisfied you had or used the knife as a matter of criminal enforcement. Had I found you did, the sentence I would impose would be much heavier. I do not consider that you had the knife for enforcement. I consider you had it for protection of yourself and of Ms Nguyen. Thus although you had it in connection with drug trafficking, it was for the limited purpose only of protection of you and her.

56. The drug trafficking in which you were involved was at street level and, although continuous and serious, was not of the order of substantial and sophisticated drug trafficking with its odious appurtenances. You are of course not sentenced for that offence, you not being charged with it before me. I rehearse those matters solely because they are the context in which the offence of manslaughter occurred.

59. I take into account centrally in this case your plea of guilty to the crime of manslaughter. I, further, take into account the stress upon you for a lengthy period of time of having the charge of murder hanging over you. You were charged with murder at the end of the police interview on Wednesday, 26 February 2003. You faced a committal hearing on 29 and 30 September 2003 and 24 October 2003 at the Melbourne Magistrates' Court, and were committed to this Court on the charge of murder. I further take into account, as I find, that you now have genuine remorse for your crime and that reinforces the value on sentence of your plea of guilty. That is a significant matter to be taken into account in your favour on sentence. Although you lied to investigating police in your interview on 26 February 2003 I consider that you now do have genuine remorse for your crime. Further, and importantly, I take into account that you have no history of violence.

62. 21 I take into account the psychological reports which were tendered on your behalf and, most relevantly, that of Mr Warren Simmons, psychologist, of 25 June 2004, and, historically, that of Mr Guy Coffey, psychologist of 8 July 1992. Your counsel's plea and those reports rehearse your difficult and troubled history and, in particular, the serious and frightening assaults to which you were subjected in 1991 and 1992. I note that the later psychological report, that of Mr Simmons of 24 June 2004, diagnoses that you still retain some symptoms of post traumatic stress disorder from those 1991 and 1992 assaults.

65. You have served 349 days in pre-sentence detention, that is, separate from the six months sentence you received at the Melbourne Magistrates' Court, and pursuant to the provisions of s.18(4) Sentencing Act 1991 I declare that, under the sentence I impose upon you, that period of 349 days has already been served on account of this offence of manslaughter, and I so certify.

68. Mr Nguyen, for the manslaughter of Hector Nocera, I sentence you to eight years' imprisonment. I direct that you serve a minimum period of five years' imprisonment before becoming eligible for parole.