DPP v Nguyen [2024] VSC 99

3 During the time that you were living together, your relationship appeared to have its ups and downs. For much of that time, you were friendly and socialised together. However, there was also some conflict between you, which was mostly verbal.

4 You had a strained relationship with another resident of the rooming house, a man called Jake. In the period between 22 November and 1 December 2021, you made several reports to police and hospital staff about assaults by Jake, and sought treatment for injuries he had inflicted upon you. The police took photos of the injuries.

5 You moved out of the rooming house sometime in the week before this incident. On Sunday 5 December 2021, you checked into a motel in Reservoir and booked a room for 7 nights.

6 On six separate occasions the following morning, you went to a Thomastown store which sold work and safety gear. You bought various items, mainly clothing and boots. Both of the staff who dealt with you at the store said your breath smelt strongly of alcohol. They described your behaviour as erratic; you were changing rapidly between being overly friendly and then somewhat aggressive (although not physically violent). At one point you took a small knife out of your pocket, but did not use it in an aggressive or threatening manner.

7 During that same morning, Mr McDougall went to a shopping centre, where he bought a 10 pack of premixed alcoholic drinks. He started drinking them on the way back to the rooming house.

8 Telephone records show a number of SMS and voice calls between you and Mr McDougall during the morning and early afternoon of 6 December. Around 2:55pm, Mr McDougall arrived at your room, which was on the upper floor of the two‑storey motel.

9 You left the motel together just after 3pm, and went to a nearby service station and kebab shop. About half an hour later, you both returned to the motel, carrying your purchases. CCTV footage from various locations showed that you appeared to be on good terms at that time.

10 At some stage between 4 and 4:30pm, other motel occupants and visitors heard shouting, and noises consistent with a struggle, coming from your room.

11 Around 4:30pm, Mr McDougall left your room and collapsed on the landing just outside the unit. You followed closely behind and stood over him for a short time. Mr McDougall then got up, held onto the balcony railings, and moved towards the stairs. He managed to walk down a few stairs before he fell down. He hit his head on the railing as he fell, and did not get up again. You stayed on the top floor, leaning over the railing and speaking to Mr McDougall.

12 A number of bystanders called 000. Paramedics arrived a short time later and tried, unsuccessfully, to resuscitate Mr McDougall. A subsequent autopsy revealed that the cause of death was a stab wound to the left leg, with a stab wound to the right leg and a slash to the left thigh having also contributed to his death. Mr McDougall also had some recent and old bruising, abrasions, and two other incised injuries that did not contribute to his death.

13 You were arrested and taken by ambulance to hospital, complaining of pain to your ribs, wrist and chest. Extensive bruising and swelling were observed, but scans and X‑rays showed no underlying injuries. Although I accept that you may have sustained some minor injuries to your lower abdomen and right knee in the altercation with Mr McDougall, the majority of your bruising and swelling appears to have been sustained prior to this incident (presumably in the earlier assaults by Jake).

14 The police began to interview you after you were discharged from hospital the following day. You told them you didn't remember much of what happened. You said that you remembered that Mr McDougall had flipped the table over and come towards you, that he had punched you and "smacked" you in the jaw, and that you had tried to defend yourself. The police paused the interview shortly after it began, to conduct further investigations. You were found unfit for subsequent interview, due to your mental state, and no more detailed interview was ever conducted with you.

15 It is difficult to piece together exactly what happened in the room between you and Mr McDougall. When you returned to the room with the takeaway food, you both seemed to be in good spirits. Within the next half hour, there was a verbal and physical dispute between the two of you, which ultimately resulted in Mr McDougall's death. What caused the fight, and precisely who did what in the motel room, are unknown.

16 When police arrived, they found a coffee table and chair overturned, food spilled on the floor, and a significant amount of blood in the room, leading to the door.

17 Two small knives were found in the room. The handles of both knives contained DNA which matched you and Mr McDougall, so the two of you must have held both knives at some stage. When and in what circumstances you both held the knives is unknown. Only one of the knives had blood on the blade; that matched Mr McDougall, and appears to be the weapon that you used to stab him.

18 In the immediate aftermath of the incident, while you and Mr McDougall were outside the room, several bystanders heard you saying that Mr McDougall had attacked you first, which is consistent with what you told the police. However, you also told police who attended at the scene that Mr McDougall had dislocated your jaw, that you had not touched Mr McDougall at all, and that Mr McDougall must have accidentally fallen on the knife; all of those things were clearly untrue.

19 Others at the motel heard you accusing Mr McDougall of having stolen your shoes. Mr McDougall was wearing work boots at the time of his death, which he had not been wearing when he entered the motel. It is possible that the work boots he was wearing were ones you had bought earlier that day, and the fight started because he had taken them without your permission.

20 You had both consumed significant amounts of alcohol that day, and Mr McDougall also had methamphetamine ("ice") and cannabis in his system. You both had a history of being emotionally volatile. However, the extent to which substances may have affected your respective behaviour that day, or your subsequent memory, is unclear.

21 Irrespective of who or what started the fight, or how it progressed, by the time you stabbed Mr McDougall you definitely had the upper hand. Although you may have sustained some injuries in the fight, they were relatively minor. The majority of your injuries observed by hospital staff had been caused before that date. In contrast, Mr McDougall suffered a number of serious stab wounds to his legs, as well as bruises and abrasions. Whatever Mr McDougall may have said or done to you, your response was a complete overreaction.

22 That said, I accept that your offending was spontaneous and occurred over a relatively short period of time, in the context of an argument between two friends that had escalated into a physical altercation.

23 Before I consider your personal circumstances, I want to say something about the effect your actions have had on others.

24 Mr McDougall was 44 when he died. Very moving victim impact statements were filed by his mother, younger sister and daughter. It is clear that he was greatly loved by them, and they are all suffering in various ways from his death. They miss him every day, especially at family events and celebrations. I will not say anything further about the contents of their victim impact statements, as they did not wish them to be read in open court; however, I have read and had regard to them all.

25 I turn to consider your personal circumstances. You were born in Vietnam in May 1977 and are now 46 years old. You were 44 at the time of this offence.

26 When you were 4 years old, you came to Australia as a refugee with your parents and younger sisters. Your primary school years were largely spent in Melbourne, before your family moved to Sydney for a few years in the early 1990s.

27 You finished school in Melbourne during year 11. Your father was a strict disciplinarian, who would regularly assault you as a child. By your teenage years, you had become rebellious and oppositional. You had problems with truancy, fighting and substance abuse. You left the family home when you were about 16, and were homeless for some time.

28 You have longstanding issues with drug and alcohol abuse. It seems that you have often used alcohol and other drugs to alleviate distress and anxiety. You started drinking alcohol when you were about 15. During your mid-teens, you started using cannabis, heroin, ice and amphetamine ("speed"). You also abused benzodiazepines. At some stage, you undertook treatment at Odyssey House, and spent a short period of time on a methadone program. However, it is clear that you have outstanding treatment needs in relation to severe alcohol disorder, which is currently in remission in the controlled prison environment.

29 Unsurprisingly, your substance abuse led you into criminal offending. Your first convictions, when you were 20, were for drug-related offending. Between then and 2011, when you were 34, you were convicted on multiple occasions - mostly for drug and driving offences. You have been sentenced to several periods of imprisonment (the longest of which was for 8 months, when you were in your early 20s), and punished for non-compliance with community-based orders. You have also received a couple of convictions for possessing regulated weapons and making threats to kill, as well as two assault charges; I do not know the circumstances of those violence offences, however the sentences imposed were relatively minor. Between 2011 and 2020, you did not engage in any criminal behaviour.

30 When you were in your early 30s, your parents introduced you to the woman who you later married. Together, you had a daughter (born in 2018) and a son (born in 2020). You did not cope well with the financial pressures of raising a family, and the relationship eventually broke down. Your most recent sentence, in September 2020, was for family violence offences in relation to your wife (for which you received a sentence of imprisonment of 4 months). The two of you have now separated, and you have no contact with your children.

31 You and your wife bought a two‑bedroom unit together, which was sold after the relationship broke down.

32 Notwithstanding your history of substance abuse and criminal offending, you have a reasonably stable employment history. After leaving school, you worked for 6 years in the manufacture of leather clothing. You then drove forklifts for 3 years. For the next 16 years, you were employed in various types of factory work, eventually becoming a leading hand and managing a warehouse. You were employed until November 2021, a month before this incident.

33 For much of your life, you have experienced mood disturbances of some sort. After the breakdown of your marriage, you experienced transient suicidal ideation. After your release from custody for the family violence offending, you moved into the rooming house where you met Mr McDougall; you also started drinking excessively again.

34 You have been in custody since your arrest in December 2021. During your initial period in custody, you experienced an acute stress reaction and fluctuating moods. You were placed on psychiatric medication, and have had regular contact with prison mental health staff.

35 You have been assessed as not suffering from any psychiatric diagnosis, and not having a mental impairment defence available to you. Your intelligence is within the normal range.

36 You have recently been assessed by Dr Matthew Barth, a forensic psychologist. Dr Barth assessed you as having at least a moderate risk of violent reoffending. I agree with Dr Barth that your rehabilitation prospects are linked to your ability to engage in suitable substance abuse, psychological, and offence-specific treatment.

37 You suffer from a range of medical problems, including hepatitis, asthma, liver carcinoma and type 2 diabetes. However, it is not suggested that your health problems are not able to be adequately managed in custody, or will make your time in custody more onerous.

38 You are entitled to a discount on the sentence to be imposed upon you because of your plea of guilty. Your plea has utilitarian value and has facilitated the course of justice. The community has, by your plea, been spared the time and cost of a trial. Because of your plea, witnesses, and the family and friends of Mr McDougall, have been spared what would have been a traumatic trial for all concerned.

39 In April 2022, you were committed to stand trial for manslaughter under the fast-track process. A number of preliminary hearings were held in this court, and a possible defence of mental impairment was considered but ultimately not pursued. Your trial was subsequently fixed for hearing on 13 November 2023. Following an unsuccessful case conference in early October 2023, you subsequently sought a sentence indication. On 27 October 2023, I gave a sentence indication,[1] which you accepted shortly thereafter. In assessing the value of your plea, I have borne in mind that this is not an early plea.

40 Your counsel does not suggest that you should be entitled to an additional discount, called a Worboyes discount. That seems to be a very sensible position to take, given that the COVID‑19 pandemic-related conditions which gave rise to Worboyes discounts no longer exist.

41 Apart from any remorse which is inherent in your guilty plea, I accept that you have recently begun to demonstrate some remorse for your actions.

42 At the plea hearing,[2] the prosecution noted that you are to be sentenced as a serious violent offender. That means the court must have regard to the protection of the community as the principal sentencing purpose. However, the prosecution does not suggest that a disproportionate sentence is required to achieve that aim.

43 Balancing as best I am able the competing considerations laid down in the Sentencing Act 1991, and having regard to the matters I have just discussed, for the offence of manslaughter, I sentence you to imprisonment of 8 years. I fix a period of 5 years and 6 months as the period you must serve before you become eligible for parole.

44 Had you not pleaded guilty, I would have sentenced you to 10 years' imprisonment, with a non-parole period of 7 years.

45 Further, I declare that the period to be reckoned as already served under this sentence is 828 days, not including today's date. I direct that there be noted in the records of the court the fact that such a declaration was made and its details.

[1] I gave a sentence indication of 8 years' imprisonment, with a non-parole period of 5 years and 6 months.

[2] This was not raised at the sentence indication hearing.