DPP v Tran [2014] VSC 223

2 At about 8.30 on the morning of Saturday, 28 July 2012, you attended at 41 Kingdom Avenue, Kings Park, together with your friend, Tuan Le.

3 You had gone to the house to confront one of the occupants, Hoang Tran, an associate of yours, about threats you understood he had made against your younger brother. You had taken a knife with you, for the purpose of scaring Mr Tran.

4 Also present at the house at the time were Hoang Tran's sister, Thuy Tran, her three year old child, and a friend, Justin Younes. Mr Younes was a stranger to you.

5 While Mr Tran and Mr Younes were sitting in the lounge, at the back of the property, they saw you walking around the boundary of the property. You knocked on the front door. As Mr Younes opened it, he saw you there, with a balaclava covering your face. A struggle ensued between the two of you, during which you produced the knife and stabbed him three times (to his left forearm, his back and the right side of his head). The stab to his head fractured Mr Younes' skull and penetrated his brain. He remained upright, but was bleeding profusely.

6 Mr Younes has a poor recollection of the attack. He remembered trying to close the front door when he saw you there wearing a balaclava. He vaguely remembered being struck in the head within 5 to 10 seconds of opening the front door, but could not recall anything else that happened between you. He recalled feeling thirsty and trying to drink water at the kitchen sink, and then being in hospital. There were no witnesses to the stabbings.

7 Hearing the commotion, Mr and Ms Tran approached the front door. You removed your balaclava, and stayed there for about 10 minutes after the stabbings, speaking to Mr Tran about your dispute with him. You and Mr Le then left the property.

8 Paramedics found Mr Younes seated in a chair and conscious. He was taken to hospital, where he underwent brain surgery. He was placed on life support and was initially not expected to live. He remained on life support for one week, and in intensive care for 10 days. He then spent a further seven weeks in the neurosurgery ward at the Royal Melbourne Hospital.

9 Mr Younes chose not to make a victim impact statement, and there is no material before the court as to his current medical condition.

10 Police seized CCTV footage from the property, which assisted in identifying the car driven by you that day. During monitored telephone calls, you admitted to stabbing the victim. You also said you had disposed of the knife. At one stage, you said you believed the victim had died.

11 On 27 August 2012, you were arrested and interviewed. During your record of interview, you initially denied any knowledge of the incident or being present at the house. Eventually, you admitted to stabbing Mr Younes, although you said you could not remember how many times you had done so.

12 During your record of interview, in answer to specific police questions about drug usage, you told police you had taken two Xanax tablets and heroin, apparently on the night before the offending. However, it is not clear from your record of interview whether you were affected by those drugs, or they played any role in your offending. At one stage in your interview, you did refer to being "blurry" (Q1100), but that seemed to be a reference to your memory of what your friend Tuan had done that day, rather than a reference to your mental state during the incident.

13 However, Dr Kevin Ong, a forensic psychiatrist who interviewed you in relation to this matter, said you told him you had been up the night before the incident, smoking ice and heroin, as well as taking Xanax. You acknowledged to Dr Ong that the disinhibiting effects of amphetamines and benzodiazepines would have contributed to your actions on the day. Indeed, he regards that disinhibition as the single largest contributor to your offending behaviour that day.

14 The maximum penalty for intentionally causing serious injury is 20 years' imprisonment.

15 This is a serious example of the offence. You went to somebody's home, disguised, and in company with another, carrying a knife which you intended to use to scare one of the people at the house. I accept that, prior to entering the house, you had not formed any intent to use the knife to injure anybody. Nevertheless, you quickly resorted to using it, more than once, on an unarmed stranger, when a struggle arose. At least one of the injuries you caused was potentially life-threatening. You were, as your counsel described it, "the author of the confrontation by presenting yourself at the house in the way you did."

16 At the initial hearing of the plea, in February of this year, a report was tendered from Ms Alison Mynard, a clinical psychologist. The report had a number of deficiencies: in some places it was vague or ambiguous; at times, it contained bald conclusions or expressions of opinion, without any underlying factual foundation being given.

17 The oral evidence given by Ms Mynard did not remedy most of those deficiencies. I expressed serious reservations about whether I could rely on some of her professional opinions. Your counsel sought, and I granted, an adjournment to enable the preparation of a further report as to your mental state.

18 A subsequent report was prepared by an experienced forensic psychiatrist, Dr Kevin Ong. I accept the matters and opinions contained in Dr Ong's report.

19 You were born in December 1975 and are now 38 years old. You and your four sisters and three brothers lived with your parents in a small village in Vietnam, where your father worked as a fisherman. You grew up in the aftermath of the Vietnam War, and life in the village was tough. Food was scarce. You recall soldiers coming into your village and stealing things. You saw soldiers assault and shoot people.

20 After surviving a terrible tropical storm in 1985, your family fled the area. Several of your cousins, and many other villagers, were killed during the storm.

21 In the rush to board a boat to leave Vietnam, your mother and one of your sisters were left behind. After a month at sea, during a voyage in which some of the passengers died of starvation or sickness, you, your father and other siblings eventually arrived in Hong Kong. You were placed in a refugee camp, where you lived from the ages of 10 to 15. Your mother and sister joined the rest of the family, several years after you arrived in the refugee camp.

22 The refugee camp was a violent and frightening place to grow up. There was ongoing conflict between northern and southern Vietnamese sympathisers. You regularly witnessed violence between other camp residents, including the use of weapons. You and other children would fight over food.

23 Ms Mynard reports that you told her of an occasion in the camp when your head was bashed on concrete and you passed out for a while. On the other hand, Dr Ong says you told him you were never the subject of a serious assault in the camp. It is not necessary to resolve that factual dispute, as there is no doubt that the violence you saw being inflicted on others throughout your childhood was of such a nature as to potentially cause post-traumatic stress disorder.

24 You and your family were eventually granted refugee status and moved to Australia when you were 15. You experienced some problems at school, due to your English language skills. You also engaged in truancy and were involved in fights with other students. However, you did manage to complete your VCE.

25 Things seems to have really started to fall apart after you left school. Within a few years of leaving school, you had begun using illegal drugs, beginning with cannabis (on which you became dependent), and were, in your own words, hanging around with the wrong crowd. Your first appearance before the courts was when you were 19.

26 By around the age of 27, you began smoking heroin and using methamphetamine (ice); you were soon using both on a daily basis. You were on a methadone program for about three years, but continued to use heroin and Xanax intermittently prior to your current incarceration. It seems that you have bought Xanax off friends, rather than being prescribed it yourself. You have ceased using methadone while in custody. You have also occasionally used other drugs, such as cocaine and ecstasy. Much of your past offending (particularly the various property offences) is probably referable to your need to support your various addictions.

27 When you appeared before the County Court in June 2004, Judge Barnett was informed that you had attended two drug courses while on remand and were "now drug free". However, it is clear from what you told Ms Mynard and Dr Ong that you have continued to abuse drugs since then, notwithstanding completion of the methadone program. Furthermore, next week, you are to be dealt with in another court for possessing amphetamine.

28 You have an intermittent employment history, with periods of work interspersed with periods of unemployment. You have had a variety of skilled and unskilled jobs, including in construction, as a delivery driver and courier, and for at least 18 months prior to your current incarceration in pool installation.

29 For about 6 years, you were married to a women with whom you had twin daughters, who are now 12 years old. You have not seen them since they were about 4 years old, and were taken to live with their maternal grandparents in Singapore. Your ex-wife has recently returned to Australia, and you are hopeful of resuming some sort of relationship with the twins.

30 You have been in your current relationship for about 6 years. You have two young boys with your current partner, who appears to still be supportive of you.

31 As far as your mental state is concerned, there is evidence that your terrible childhood experiences in Vietnam and the refugee camp have caused you to suffer from symptoms of post-traumatic stress disorder, and have led to you having a profound distrust of others. Those symptoms include nightmares, and anxiety and hypervigilance in stressful situations. It seems that they have made you more likely to misconstrue situations. Ms Mynard also said that you become easily angered, especially when someone insults you. It seems that your substance abuse has been, at least in part, an attempt to block out your past experiences.

32 You have never been treated for these symptoms, or for any other mental illness.

33 Although your reactions to certain situations may be explained by difficult childhood experiences, I am not persuaded that your reaction to the confrontation with Mr Younes was affected by any PTSD symptoms. Ms Mynard said it was "possible" that you were triggered into a PTSD state when you felt you were under threat. However, Dr Ong said that even if you were experiencing any PTSD symptoms at the time, they would not have made you disinhibited, or have affected your ability to understand the wrongfulness of your actions. And your counsel expressly disavowed any suggestion that your moral culpability was reduced by reason of any PTSD symptoms.

34 Your counsel also accepted that Verdins principles would not operate so as to reduce the need for general or specific deterrence in this case.

35 However, I accept Dr Ong's opinion (rather than Ms Maynard's opinion) that the symptoms of your PTSD (particularly your hypervigilance and a degree of paranoia) may make imprisonment more onerous for you than for a prisoner without those symptoms. You reported to him that your previous experiences in prison have been tough, in part because they brought back memories of your childhood.

36 You were originally charged with aggravated burglary, the attempted murder of Mr Younes, and intentionally and/or recklessly causing serious injury to Mr Younes. The trial of those charges was due to commence on 11 November 2013. A few days before then, the court was informed that you would plead guilty to the single charge of intentionally causing serious injury, and the other charges would be dropped.

37 You are entitled to a discount on the sentence to be imposed upon you in recognition of your plea, and its utilitarian value. Your plea has facilitated the course of justice. The community has, by your plea, been spared the time and cost of a trial that was not without its difficulties in terms of some of the prosecution witnesses.

38 Apart from any remorse implicit in your plea of guilty, there is also some (albeit somewhat limited) evidence of actual remorse. Ms Mynard's report expressed her opinion that you "appeared genuinely remorseful" for your actions, and "understood and accepted" the consequences of them. However, when she came to give evidence in court, it became apparent that Ms Mynard had only a limited comprehension of the concept of remorse; furthermore, she was unable to identify anything you had said or done upon which she had expressed that opinion.

39 Dr Ong's report said that you had only limited insight, and gave "some limited expressions of remorse in regards to the current offence, though had a tendency to externalise blame in regards to the contribution of the victim to [your] actions". That is consistent with the way in which you behaved in the latter part of the record of interview (after you eventually acknowledged your involvement in the attack), where you repeatedly blamed the victim.

40 There is a need for general deterrence in this case. People must be deterred from carrying dangerous weapons such as knives, which can so easily be used with lethal consequences if an unexpected situation arises. That is particularly so in the case of people who have voluntarily consumed substances which have a disinhibiting effect on their behaviour.

41 You have a long criminal history, commencing in October 1995, when you were 19 years old, including a number of prior convictions for offences of violence.

42 In March 1996, you were convicted of affray. The circumstances of that offending were that a friend of yours was involved in a fight with members of a rival soccer team. Your friend contacted you and some other friends, and a group of you went to the venue, armed with weapons including samurai swords, and joined in the fight.

43 That was the first time you had been in prison; apparently you spent 6 months on remand in Pentridge, awaiting trial.

44 In November 1999, you were convicted of unlawful assault and criminal damage. The circumstances of that offending are not known to the court. The following year, you were dealt with for breaching in some way the community based order, which you had received in respect of the 1999 convictions.

45 In February 2004, you were sentenced to a short term of imprisonment, for possessing stolen property and driving while disqualified.

46 In June 2004, you were convicted of 7 offences, including armed robbery, common law assault, various drug offences (including having in your possession a traffickable quantity of heroin, and possession of amphetamines and morphine), and a firearms offence. The most serious of those charges arose out of an incident in which you, your brother Huy Tran, and two friends, took samurai swords to a pre-arranged meeting with the victim, to discuss an alleged drug debt and a dispute over a phone. You and your friends participated in an unprovoked attack on the victim and his car, using various weapons.

47 For all of those offences, you were sentenced to a total effective sentence of 3 years, 5 months, with a non-parole period of 20 months. You did not offend during the completion of your parole period.

48 In August 2010, you were convicted of further firearms offences, as well as dealing with suspected proceeds of crime.

49 I turn to consider your prospects for rehabilitation and questions of specific deterrence.

50 You have some prospects of rehabilitation. There have been periods of your life when you have been in gainful employment and/or long term relationships, have not offended and have attempted to address your addictions.

51 Certificates were produced showing that, whilst in custody, you have completed two programs or courses in harm reduction and workplace safety, although I am unaware of the content or length of those programs or courses. You have described yourself as bored in prison, and have not been motivated to work or do further study during the period of almost 2 years that you have been on remand for these offences.

52 You have never undergone counselling for your PTSD symptoms. I accept that both you and the community would benefit from your engaging in treatment for those symptoms. Although there is evidence that you may be able to receive some treatment for your PTSD symptoms whilst in custody, I accept that one on one counselling would more readily be available in a non-custodial environment.

53 That said, I also agree with Dr Ong that your risk of reoffending is closely connected to your ceasing to use illegal drugs. If you wish to stay out of prison in the future, you will need to take serious steps to address your drug abuse problems, through appropriate treatment and counselling.

54 The non-parole period which I propose to set would provide ample opportunity for you to undertake suitable treatment and counselling, if you are motivated to do so.

55 Given your prior criminal history (particularly your propensity to carry dangerous weapons, in company with others, and to use them if you perceive the situation requires it), there is still a need for specific deterrence in this case.

56 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 intentionally causing serious injury, I sentence you to imprisonment of 6 years. I fix a period of 4 years as the period you must serve before becoming eligible for parole.

57 I declare, pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have sentenced you to 8 years' imprisonment, with a minimum non-parole period of 6 years.

58 Further, I declare that the period to be reckoned as already served under this sentence is 632 days, inclusive of today's date. I direct that there be noted in the records of the court the fact that such declaration was made and its details.

59 I have already made forensic sample and disposal orders.