R v Do and Tran [2002] VSC 49

Supreme Court of Victoria|2002-03-08|Before: BONGIORNO J

Criminal law - Sentence - Intentionally cause serious injury - Young offender - 5/3; Attempted murder - Young offender - 8/6.

On 14 November last year you were each convicted by a jury of serious offences arising out of a knife attack which you perpetrated on Mr Hans Kosterman in Bourke Street on 20 November 2000. You, Tran, were convicted of attempted murder and you, Do, of intentionally causing serious injury. The attack, which involved six stab wounds to Mr Kosterman's back, left him a paraplegic with all the usual consequences that that condition produces. His injuries are permanent. He will never walk again. He suffers from migraine headaches and incontinence. He is barely sufficiently independent to live alone, a situation which, having regard to his injuries, is unlikely to change. His victim impact statement details his disabilities and the effect of them on his capacity to function as a normal human being. It makes chilling reading. His injuries are indeed catastrophic.

On the day in question Mr Kosterman had gone to the city from his then home in South Melbourne. He told the Court that he had done so to try to find his 13 year old son who had not gone to school that day and who he suspected might be involved in stealing and using the proceeds to buy heroin for his mother. Whether this explanation for his being in the city on 20 November was true or whether he was actually there to buy heroin for himself is a matter difficult to determine. On the whole his evidence was very unsatisfactory but, having regard to the large number of eye witnesses to the attack in respect of which you were convicted, this did not, in the end, matter very much at all.

You first encountered Mr Kosterman in an arcade off Bourke Street just east of Swanston Street. He said that he asked you whether you had seen his son. An altercation ensued which was broken up by the intervention of a private security guard. Whether Kosterman's account of this encounter is true or not it is clear that, for one reason or another, violence occurred between you and him such that you felt it necessary or desirable to arm yourselves with deadly weapons. This you did.

Shortly after your altercation with Mr Kosterman the two of you went to a disposals store in Russell Street where you purchased a machete and a sheath knife. It was these weapons which you used in your subsequent attack on Mr Kosterman.

Sometime after buying these weapons you again encountered Mr Kosterman; this time in Russell Place, a small street running to the south off Bourke Street just west of Russell Street. You were by then, of course, armed. He was not. Exactly what transpired between you in this encounter was also left unclear by the evidence, but no one who observed the two of you and him together said that Kosterman offered you any violence or posed any threat to you whatsoever, whether in Russell Place or after he retreated into Bourke Street.

After a verbal exchange, Kosterman left the alley in the direction of Bourke Street. He may have been running. You chased him. He turned to the west in Bourke Street and was struck on the back of the head by the machete wielded by you, Do. He went to the ground and was then stabbed six times in the back by you, Tran, before you both ran away. You, Do, were apprehended by passers-by in a car park off Russell Place and you, Tran were eventually arrested by police in another part of the city. You each subsequently lied to the police in different respects as to your involvement in this assault.

The events which I have described occurred around lunch time. There were many people in and around Bourke Street so that there were a large number of eye witnesses who were able to describe, with varying degrees of detail, your attack on Mr Kosterman. Such discrepancies as there were in their evidence are attributable to the individual capacity of each witness to observe and describe an unexpected event involving violence which probably lasted for no more than seconds. The totality of their evidence convinced the jury of your guilt of the crimes for which you are now to be sentenced.

After the attack and after you had both run away Mr Kosterman was taken to hospital where his injuries were diagnosed and he began the very long journey to such recovery as he has been able to achieve. You are each indeed extremely fortunate that you were not facing a charge of murder. Many a less vicious attack than that which you perpetrated has resulted in the death of the victim.

Whilst it is difficult to determine with any precision what actually motivated your attack on Mr Kosterman, the jury, by its verdict, was clearly satisfied that neither of you acted in self defence. This is not surprising. Kosterman was unarmed and had his back to you at the time he was attacked. The Crown Prosecutor described any suggestion that either of you acted in self-defence as "fanciful". I agree.

Each of you was dealing in heroin on the day you attacked Kosterman. Whether he was seeking to deal with you or was pursuing his son, as he assented, matters little or nothing in the overall context of this vicious and cowardly attack. Likewise, whether you were engaged in some form of retaliation for some earlier aggression by Kosterman is equally irrelevant. The law does not countenance revenge; nor should it. If Kosterman had attacked you, as you assert, your remedy lay with the proper authorities. Your drug dealing may explain why you engaged in self help rather than seek the help of police and other agencies. It does not in any way diminish the seriousness of the offences for which you are now being sentenced.

You are to be sentenced for very serious crimes which this community cannot and must not tolerate.

Chuyen Hong Do you were born in Vietnam on 28 December 1980. You are accordingly now 21 years of age.

In the course of a plea made by Mr Lynch on your behalf your mother, with tears in her eyes, recounted the valiant and heroic efforts she made to bring you to this country as a nine year old boy.

Your father died in 1987 leaving you and your mother alone. Late that year with 70 other people in a six metre boat you and she left Vietnam headed for Australia. You spent two years with her in a refugee camp in the southern Philippines before arriving in Australia in 1989. Even by that stage you had shown some promise as a student. Exhibits tendered on the plea attest to your development even in the surroundings of a refugee camp.

Upon arrival in Australia your mother worked at two jobs whilst you completed you primary and early secondary education. You demonstrated the potential to achieve at a high level by being selected to attend Melbourne High School from year nine onwards. She said you hoped to study aeronautical engineering.

It was probably whilst you were a student at Melbourne High School that you came into contact with available addictive drugs for the first time. I hasten to add, however, that there was no evidence before me that any drugs which you acquired at that time were acquired whilst at school. Indeed, your mother believed that your fall into the drug culture occurred because of the long distance you travelled to and from school each day and the fact that in that year, and more particularly, the following year, whilst you attempted a course at RMIT University, you spent a lot of idle time in the city area. However, it seems that by the time you studied the VCE in 1998 you may well have been on the way to acquiring a heroin habit. The TER ranking which you obtained in that year of 87.65 would appear to have been below your capacity, having regard to your earlier demonstrated potential.

In 1999 you commenced study at RMIT University but dropped out - probably because of your then established drug habit if not addiction.

Upon hearing of your drug problem your mother began to apply the same dedication she had applied to establishing the two of you in Australia to ridding you of this dreadful scourge. She took you back to Vietnam to remove you from the influences which she believed were causing your downfall in this country, she then arranged for you to work on a farm at Robinvale, she arranged for you to be treated with the drug Naltrexone and, shortly before the event which gave rise to your present incarceration, she assisted you with a home based detoxification program run by the Open Family Foundation; an organisation well known and very skilled in the treatment of drug addiction particularly among young people.

But, notwithstanding your mother's efforts, at the time of this offence you were still using heroin and dealing in it on the streets in the central business district of Melbourne - particularly in the Bourke and Russell Street areas.

Your mother's husband, Mr Glenn Burns, gave evidence before me, particularly as to his observations of you after you were arrested for this offence and then after you were bailed in early 2001. He considered that when you were first arrested you were still under the influence of drugs but by the time you were bailed you were significantly different. He says after your release from gaol your friends changed and you no longer associated with those involved in the drug trade. You got employment in a noodle shop and began seeing Dr Christopher Wong, a psychologist who gave you counselling over a significant period of last year, during which period you returned negative urine samples on virtually all occasions on which you were tested.

Dr Wong, in association with Mr Hieu Thi Nguyen of the Brosnan Centre both gave evidence before me to the effect that you were a much improved person, certainly in relation to drug taking, by the time you stood trial late last year. Mr Nguyen in particular said that you learnt a really good lesson in prison. I hope he is right.

Much of the plea made by Mr Lynch on your behalf concentrated, as might be expected, upon your drug problem and the prospects of your overcoming it. But you are not before this Court for drug trafficking, drug possession or self administration although, on your own admissions, you might well have been. I must sentence you for your part in a serious and vicious assault with a fearsome weapon upon an unarmed man. Your drug involvement may partially explain the circumstances which lead to your being where you are now. It does not excuse it.

The jury acquitted you of any murderous intent in respect of your attack on Mr Kosterman. The prosecutor submitted that it would be proper to sentence you on the basis that you were an aider and abetter of Vuong Van Tran in his attack upon Mr Kosterman but that your intention was to cause serious injury, not to kill. It is not suggested that the actual blow struck by you led to the victim's paraplegia. There was, however, ample independent evidence implicating you to the extent asserted by the prosecutor in the blows struck by Vuong Van Tran. Accordingly, the basis upon which you will be sentenced will be that you took part in the attack on Mr Kosterman with the intention of causing him serious injury but not with the intention of killing him.

In sentencing you I am required to take into account your relative youth. Indeed, that fact must be a primary consideration in determining a sentence to be imposed. Rehabilitation of someone as young as you is usually far more important than any question of general deterrence. It benefits the community as well as the offender.

Further, I am required to consider whether I could have imposed a sentence which would have avoided your being sent to an adult prison. Your counsel specifically submitted that I ought, in this case, impose a youth training centre order. That course was opposed by the prosecutor who suggested that such a disposition would involve an error of law. Having regard to the seriousness of your criminality I never regarded a youth training order as a realistic sentencing option. The maximum period for which such an order could be imposed is three years - a period which, in the circumstances of this case, would be inadequate having regard to the other matters which I must take into account in arriving at an appropriate sentence. You will be sentenced to a term of imprisonment.

It was put on your behalf that you have shown some remorse in respect of the injuries inflicted on Mr Kosterman. Dr Wong said as much in his evidence and your step-father inferred from some of your conduct since you were bailed that you are at least conscious of the damage your actions produced. On the other hand you contested your culpability in this case fully, as you were entitled to do. Any remorse on your behalf is minimal.

Although the fact of your youth and your prospects of rehabilitation must be given primary consideration I must also have regard to the other purposes for which sentences are imposed. You must be punished for the crime you have committed, you must be deterred from engaging in such conduct in the future and the Court must, by its sentence, publicly denounce such conduct as being completely unacceptable. Finally the Court must give such consideration as is appropriate to the question of protecting the community. In your particular case general deterrence must yield to your youth and the prospect of your rehabilitation and, if your rehabilitation is successful, the community will have been protected by the sentence I am about to impose.

In all the circumstances I consider it necessary to impose a significant goal sentence upon you. If, as Dr Wong, your mother and step-father and Mr Hieu Thi Nguyen would have the Court accept, you have significantly changed then it is to be hoped that you use the remainder of your time in prison as productively as possible and attempt to regain the promise which you clearly showed in your middle teenage years. The solution is in your hands. Any further conviction for violence will almost certainly result in your being sentenced as a serious violent offender with the terrible consequences such a situation would produce for you. You must resolve to bear the rigours, hardships and privations of prison without resorting to violent behaviour again, either inside or outside the prison.

Vuong Van Tran, you were born on the 1 January 1983 in Vietnam and are, accordingly, now 19 years of age. Your counsel, in the course of his plea on your behalf, detailed your early life in terms of your having left Vietnam with your parents when you were still a baby. Your family then spent some three years in a refugee camp in Malaysia until, in November 1987, you arrived in Australia, sponsored by a relative who lived in Sydney.

Between 1988 to 1990 you attended primary school in Paramatta and subsequently at Botany Park. Your family then moved to Brisbane and lived in the suburb of Indooroopilly. Your parents, as is not uncommon, worked as out-workers on very low rates of pay for up to 16 or 18 hours a day, seven days a week to try to establish the family in this country. That they, and your brother, are exemplary citizens is unchallenged.

You attended Indooroopilly High School and although you finished Year 9 in 1988 you completed only about a month of Year 10 in 1999 before leaving.

Your counsel asserts (and the Crown does not contest) that in 1999 you began to use drugs in Brisbane. In 2000 you were charged twice with trafficking in that city which led the family to decide to move to Melbourne.

After the move to Melbourne your parents continued to work at piece work. The reason they moved to Melbourne was, essentially, to remove you from the influence of those with whom you were associating in Brisbane and who, they felt, had led you into the trouble you got into there.

Your counsel says that you met Chuyen Hong Do only about a month before the event which has led to this court appearance occurred, but by then you had what appears to have been an established drug habit.

Whilst it is impossible to determine whether you were the instigator of the attack upon Mr Kosterman or whether it was originally Do's idea, there can be no doubt that the majority of his injuries, if not virtually all of them with the exception of the head injury, were inflicted by you. One witness described it as a "frenzied attack". Another thought it was like something out of a film. Yet another saw you raise the knife and plunge it into Kosterman's back "very, very quickly". From the medical evidence we now know that you stabbed Kosterman six times in the back: three times on the left side, each wound being approximately 3.5 centimetres in length; once over the midline of 4 centimetres and twice on the right side of 4 and 3.5 centimetres in length respectively. These wounds were inflicted with a hunting type knife with a blade approximately 10 centimetres long. It is only good fortune which stands between you and a sentence for having murdered Mr Kosterman.

Your counsel submitted that the fact that you enquired of a police officer as to whether Mr Kosterman would survive in the period immediately after this attack pointed to remorse on your part. In the context in which the question was asked I am not prepared to draw that inference. It is, at least, equally consistent with your being concerned as to the consequences to you of his death from his injuries.

You have been in custody since your arrest shortly after the offence was committed and, it would seem, have used that time to some advantage on your own part. You have undertaken a drug education course and you have improved your reading and writing skills. This demonstrates, to some degree at least, a willingness to improve your position, thus aiding your chance at rehabilitation.

Although you have been in some prior trouble with the law I regard you, for sentencing purposes, as having no relevant prior convictions.

In September 2001 you were assessed by Dr Lester Walton, forensic psychiatrist, who described you as having ceased taking heroin and as considering yourself healthier than you had previously been. He thought your heroin addiction somewhat at odds with your family background which was that of the typical hardworking migrant family intent on advancement in a new country. Your avoidance of intravenous use of heroin apparently also enured to your benefit in that you have not suffered some of the complications which arise from intravenous use of the drug.

You maintained to Dr Walton that Kosterman was in fact the aggressor in your encounter with him on the day on which he was injured. I have already dealt with this earlier in this sentence. Whatever may have been the original situation in the arcade off Bourke Street, when you attacked Kosterman outside the Commonwealth Bank in Bourke Street there is no doubt whatsoever that the aggression was all yours.

Dr Walton considers that you have a favourable prognosis with respect to drug abuse and he notes that you are "aghast" that you were moved to behave with the violence you displayed. He considers your incarceration to have had a salutary effect upon you, not only in terms of effecting acute detoxification from heroin, but also in providing you with an opportunity to reflect upon your recent circumstances with some benefit. He considered you to be psychologically immature and at some risk in the adult prison system. He urged that you be considered for youth training.

Your counsel, Mr Langslow, forcefully submitted that you should be sentenced to a youth training centre and not to an adult prison. In this sentence, as it relates to Chuyen Hong Do, I have already discussed the matters I must take into account in sentencing a youthful offender. All of them apply to you equally - perhaps even more so because you are even younger than Do. However, having regard to the seriousness of the offence for which I must sentence you and for the reasons which I have already given in the case of Do, I am unable to accede to your counsel's submission. The imposition of a three year youth training centre order, which would be the maximum I could impose, would not adequately reflect the gravity of the offence you committed. You will be sentenced also to a term of imprisonment.

Having regard to your youth it may well be that the adult parole board to which you will be subject after you are sentenced will consider it appropriate that you be transferred to a youth training centre under the provisions of s 244 Children and Young Persons Act 1989. However, this is a matter for the Parole Board and not a matter upon which I should further comment.

In fixing your sentence the fact of your youth and prospects of rehabilitation must be given primary consideration, as I have already said. However, I must also have regard to the other purposes for which sentences are imposed including punishment for the crime you have committed, deterrence and public denunciation of such violent conduct. Whilst protection of the community is also one of the purposes of sentencing if, as Dr Walton predicts, you will be rehabilitated by the sentence I am about to impose on you, the community will have been protected by the sentence to be imposed.

Attempted murder is an extremely serious offence. It carries a maximum sentence of 25 years. Whilst I am mindful of your youth and the fact that prisons are themselves ugly, violent and destructive places I have no option in your case but to impose a lengthy period of imprisonment. As I did with Chuyen Hong Do I express the hope that you use the remainder of your time in prison as productively as possible so that no Court is faced in the future with having to sentence you again.

Chuyen Hong Do, it is the sentence of the Court that you be imprisoned for five years and it is further ordered that you serve a minimum of three years before being eligible for parole. I declare the period of 202 days as being the period to be reckoned as already served under that sentence and I direct that that period and the fact that this declaration was made be noted in the records of the Court.

Vuong Van Tran, it is the sentence of the Court that you be imprisoned for eight years and it is further ordered that you serve a minimum of six years before being eligible for parole. I declare the period of 473 days as being the period to be reckoned as already served under that sentence and I direct that that period and the fact that this declaration was made be noted in the records of the Court.

Young Persons Act 1989

At a glance

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Before

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Judgment (49 paragraphs)

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