R v Nguyen [2003] VSC 62

Supreme Court of Victoria|2003-03-13|Before: WARREN J.

Nanh Thanh Nguyen, you have been found guilty by a jury of the crime of manslaughter. The verdict of the jury was an alternative verdict after the jury at your trial had found you not guilty of the charge on the presentment of murder. The maximum penalty for the crime of manslaughter is 20 years' imprisonment.

Your actions resulted in the death of your victim, Thanh Lan Vo, a 19 year old man of Vietnamese background, on 1 July 2001. At the time of the incident you were 17. You are now 19.

There were a series of unfortunate historic events that preceded the death of Vo.

Some time in the year 2000, very foolish but angry and aggressive conversations occurred between you and Vo on a mobile telephone whereby you spoke to one another by accident when Vo answered someone else's telephone. Threats were exchanged whereby you both threatened to "chop" one another. There is no doubt these threats were started by Vo but returned by you. Nonetheless, the telephone exchange triggered bad feelings by you towards Vo and it seems by him towards you.

However, there was no rational basis to these mutual bad feelings. In late 2000 you were sent to a juvenile justice centre in relation to certain charges. By coincidence, there, at the same time, Thanh Lan Vo was also in custody, although in a different section from you. In the centre, Vo made threats to you and, for some inexplicable reason, he falsely accused you of raping his younger sister. There is no doubt that the allegation was entirely false. Vo's sisters did not even know you or of you. In the juvenile justice centre Vo made trouble for you, tried to start a fight, spread his false allegation among other inmates and encouraged those inmates, in turn, to further threaten you. However, nothing eventuated and you were not physically harmed in the centre. The conduct of Vo was inexplicable and can only be traced back to the heated mobile phone conversations that occurred earlier in 2000 and possibly jealousy over your girlfriend. I accept that in all likelihood you were intimidated, even frightened, by what occurred at the juvenile justice centre.

You were released from custody in February 2001 and did not see Vo or speak about him until unfortunate events happened on 1 July 2001.

On that day, you saw Vo by chance at Springvale Shopping Centre. You were waiting with a friend when Vo happened to walk by. It seems he did not see you. Instead of ignoring him you called out to Vo, started a fight in which punches were thrown and from which Vo ran away threatening to come back with a knife and get you, "to chop you". Instead of immediately leaving the area, going home, seeking help, you went and immediately purchased your own weapons from a nearby shop. They of themselves were frightening weapons: a large barbecue fork with long tines and a large kitchen knife. You told your companion at the time that they were for protection. I do not accept that was their sole purpose. You opened your newly acquired weapons immediately and placed them on your clothing ready for a fight if it occurred. You then walked about and around Springvale Shopping Centre looking for another friend you had arranged to meet. I accept that was partly your purpose. However, you made no attempt to get away from the area. I am satisfied that you were also partly looking for or, at least, watching out for Vo.

It happened that you came upon him just inside the rear entrance to an arcade in the Springvale Shopping Centre. At that point it was a little after 5.00 p.m. on a Sunday afternoon. The arcade and shops were busy and many people were about shopping at the various fresh food shops, attending hairdressers and the like. Immediately upon seeing you Vo produced a meat cleaver and raised it above his head in a threatening manner. At that point you were still close to the exit but made no attempt to get away. The circumstances of the confrontation frightened your companion. He stood back, mostly, ready to escape. You did not.

When confronted by Vo in the arcade you produced your weapons and raised them ready for the attack and moved towards Vo. Thereafter, events happened very quickly. You and Vo circled one another both swearing and making threats. Your manner was so threatening towards Vo that he commenced to back away from you, still with the meat cleaver raised, down the arcade moving some metres, passing about four shop fronts heading towards the Springvale Road entrance to the arcade. Each time Vo moved away you moved in towards him. The events in the arcade were witnessed by many eyewitnesses being the shoppers and traders who had been going about their business. Almost universally they described your movements, actions, words and demeanour such that it is clear that you were the aggressor and a very angry one at that. You later told friends, and eventually the police, that you "went crazy", "went schizo".

I accept that Vo threatened you by his presence and the holding of the meat cleaver above your head at some points in the encounter. But at all times you remained the aggressor. You initiated the first contact with Vo a little earlier in time near the car park, you initiated the first fight that followed, you did not take the opportunity to leave the area, you subsequently armed yourself and when you encountered Vo I am satisfied you were determined to finish things between you and him once and for all.

Thus you maintained your attack on Vo when confronted by him in the arcade. You pursued him some distance down the arcade. Not once did a witness tell of seeing him move towards you, only of you moving towards him. You ignored the caution uttered by a passer-by. You disregarded everything except your attack on Vo. You forced him to back up and away from you until he was pinned up against the counter of the music shop where he could move no further.

You stabbed Vo vigorously, a total of 14 times. At least three of the stabbings were viciously inflicted, two to the back of Vo that penetrated the left lung and the spleen, the other to the neck that cut the left internal jugular vein and common carotid artery. A number of the eyewitnesses described the volume of blood lost by Vo and his collapse to the ground. There was no evidence of Vo stabbing you or hitting you with the meat cleaver save for a small cut on your hand. It was suggested that the cut occurred in your defending yourself, in holding Vo at bay. The jury at your trial rejected your defence of justification, acting in self-defence. I am satisfied that you were not attacked or had to stave Vo off. Rather, he was trying to move away from you and you constantly moved in on Vo.

Vo died almost immediately. Upon examination at post mortem the deceased was found to have died from acute blood loss and cardiogenic shock and multiple incised injuries. The post mortem and the evidence of Dr Dodd at the trial demonstrate the degree and extent of your attack on the deceased.

There was evidence from the toxicologist, Professor Olaf Drummer, of the presence of morphine in the blood and urine analysis of the deceased. The expert opinion of Professor Drummer was that some time before his death the deceased took heroin. I accept the evidence of Professor Drummer that in all likelihood the intake of heroin occurred, some hours before the death of the deceased. The presence of heroin and the possible impact on the mood and behaviour of the deceased was relied upon in your defence to support justification, acting in self-defence. Clearly, that was rejected by the jury. To some extent it was also relied upon with respect to the defence of provocation, that is, that it was partly the heroin induced behaviour of the deceased at the time that provoked you in all the circumstances. I accept the evidence of the eye witnesses that at all times you were the aggressor. A number of witnesses described your demeanour as one of anger whilst that of Vo was repeatedly described as one of fear.

The jury considered the alternative verdict of manslaughter based either on provocation or alternatively arising from a dangerous and unlawful act.

I turn then to the circumstances of the provocation itself. Certainly, the conduct and demeanour of Vo particularly in raising a weapon of the type of a meat cleaver and holding it above your head was provocative. In the circumstances you were provoked and lost self-control. It seems you had had enough and wanted to finish him in an angry rush. The time between the provocation by Vo and your loss of self-control was quick, but not simultaneous. You made no effort to withdraw or retreat. Once provoked, the degree of violence you demonstrated was vicious and repeated: a total of 14 stab wounds including the fatal stabbings to the neck and back of Vo. You did not stop until Vo slid to the ground bleeding profusely. Witnesses were affected by the amount of blood.

You stood over the deceased looking at him for a moment or two and then left very quickly. You fled from the area, hiding your weapons along the way and eventually went to stay with your younger friends with whom you hid from the police for five days.

I am satisfied that the overwhelming evidence supports a finding of manslaughter arising from provocation. This was the position urged by the Crown and it was not seriously resisted in any way on your behalf. The extent of your attack did not constitute manslaughter arising from a dangerous and unlawful act. Arising from the vicious and repeated attack on the deceased I regard your acts and eventual killing of Vo as constituting manslaughter arising from provocation and being an act of manslaughter of serious degree.

I move next to your personal circumstances. You were born in Ho Chi Minh City, Vietnam on 12 October 1983 and you were your parents' only child. Your mother abandoned you when you were about three and left for the United States. You were raised by your father. You and your father and grandfather left Vietnam as "boat people" when you were four. You ended up in a refugee camp in Malaysia for about a year. I have been told little of that period. You arrived in Australia when you were about five and a half, speaking no English and came to live in Springvale. You did well initially. You attended Springvale Primary School and learned to speak English. You attended local secondary schools and progressed. Unfortunately, at Year 9 level, you transferred secondary schools and it seems you fell into poor company, commenced drug experimentation, including heroin, and left school without finishing the year. You were then about 15. Your father by this time was in an established relationship with the person you now regard as your stepmother. They have a child and have provided you with a family home. However, after leaving school you left the family home at Springvale and lived with friends. Unfortunately, you lacked the guidance and assistance of mature aged persons. You appear from then on to have lived with friends about the same age.

Offences were committed relating to drug trafficking and other matters leading you to the Children's Court and eventually the Magistrates' Court. You appeared at the Children's Court at Dandenong on 12 May 2000 on two charges of trafficking heroin, two charges of being in possession of money being the proceeds of crime, driving in a dangerous manner, being an unlicensed driver, failing to answer bail and theft. You were placed on probation for 12 months. You breached the probation and on 15 December 2000 you were sentenced at the Dandenong Children's Court to detention in a youth training centre for four months on each charge to be served concurrently. On 14 July 2000 you appeared at the Children's Court at Dandenong on charges of trafficking in heroin and being in possession of money being the proceeds of crime. You were placed on probation for three months. This probation was breached, also, and hence on 15 December 2000 you were sentenced to be detained in a youth training centre for two months on each charge to be served concurrently. On 9 November 2000 you were convicted at the Magistrates' Court at Dandenong on charges of trafficking in heroin, using heroin, being an unlicensed driver and being in possession of a regulated weapon. You were sentenced to be detained in a youth training centre for six months on each charge to be served concurrently. Eventually the sentence on the fourth charge, being in possession of a regulated weapon, was varied on appeal and you were convicted and discharged. I was informed that the weapon that was the subject of the latter charge consisted of a pocket knife.

The previous charges are not very relevant to the present in that they mostly related to driving and drug trafficking matters. Significantly, none of your prior history involved offences of violence. Ultimately your court appearances led you to the Eastern Hill Juvenile Justice Centre in November 2000. In custody you received counselling and psychological assistance. You were released on parole in February 2001 after serving about four months. During parole you did not pursue any further education or employment. It is unclear as to whether the Youth Parole Board gave you much assistance in that regard. It seems you were under the supervision of the Youth Parole Board for about three months. Initially you saw the Board three times a week and then after a fortnight, two nights a week. The Board assisted you in attempting to obtain your learner's driving permit. You attempted to participate in a TAFE computer course but that was interrupted by your charge in this case. In any event, nothing much seems to have happened in your life between February and July 2001 before the encounter with Vo on 1 July 2001. You were not charged with any offence between your release in February 2001 and the events in July 2001.

When arrested by the police you were co-operative and gave a full explanation of the events relating to Vo including the earlier history between the two of you and the circumstances of the stabbing.

A psychologist's report has been provided by Mr Ian Joblin. Whilst he has set out a detailed personal history he appears to have struggled to find a great deal as to your remorse for your acts and your desires and intentions for rehabilitation. Mr Joblin did not give evidence. His report was tendered. Mr Joblin seemed to rely upon your age, both at the time of the offence and now, as your greatest indicator of prospects of rehabilitation. I accept that is so. Mr Joblin considered that your prognosis depends on total abstinence from drug use and stability in your domestic situation. He also considered that you need to be employed. He expressed the opinion that all these factors must be present in order for you to have what he described as "an optimistic prognosis". Mr Joblin expressed the concern that the longer you remain in the antisocial environment of the gaol situation the more you will be exposed to factors that jeopardise your prospects. He considered, therefore, that you would benefit considerably from parole.

You have remained in custody since 6 July 2001, a period of some twenty months. Initially, you were located in the Melbourne Custody Centre for 30 days - an unfortunate place for a 17 year old to be. You were then transferred to the Melbourne Assessment Prison for approximately four months - again a difficult place for a person of your then age to be located. Since December 2001, a period of some 14 months, you have been held at the Port Phillip Prison in an area shared with older and possibly much more hardened criminals. Hence, you have been in custody during a very youthful period of your life, that is, between your seventeenth and nineteenth years and which time has been spent in adult prison facilities. Nonetheless, you have endeavoured to study various programmes partly in an attempt to achieve year 10 secondary school level. You have attempted to confront your apparent anger management problem by attending a course in that regard while in custody. Sadly, you have never been employed. You have instructed your counsel, Mr Rush, of your hope to find a job and other ambitions symptomatic of leading an ordinary life. Your father and your stepmother have supported you during your time in custody and throughout the trial. It seems, therefore, that family support will be available for you when you are eventually released from custody. You have also maintained contact with your girlfriend and some relatives whilst in custody.

Mr Joblin endeavoured to address your remorse for your killing of Vo. You did not demonstrate remorse after the event to your friends or the police. Rather, I consider more appropriately your concern and reaction can be attributed to your fear of the consequences of your act. However, Mr Joblin stated that you understand that you must be punished for what you have done.

I was informed that a plea of manslaughter based on provocation was offered to the Crown a few weeks before the trial but was rejected. It was submitted on your behalf that I ought treat the offer as demonstrative of your remorse. I have difficulty with that proposition. The offer seems to be attached far more to self-interest than remorse.

Nonetheless, in view of your age, at the time of the offence and now, I accept that your crime has had an impact upon you. You sat through the evidence at trial when witnesses described your actions, some in the most vivid detail. You had the opportunity to view in court the crime scene video that showed extensively and graphically the bloodied body of the deceased. I consider that the horror of what you have done is now understood. However, the full extent of your remorse is unknown.

I have considered very carefully the victim impact statements by the family of the deceased. The grief and pain your crime has brought to the family of Vo is almost unbearable for them. The grief started from the earliest moment when the mother and brother of Vo attended the shopping arcade to confirm that Vo had in fact been killed. It was his brother who went into the arcade and saw the body in what must have been the ghastly circumstances revealed in the crime scene video. The deceased's mother has lost her eldest child and his siblings have lost their older brother whom they obviously loved dearly. The victim impact statements tendered before me demonstrate the degree of suffering that the family of Vo have borne by reason of your crime.

Your crime was a serious one. Tragically, our community sees too often young men going into fights armed with dangerous weapons. Conduct such as yours should be met with appropriate deterrence through strong penalties, usually a lengthy custodial sentence. Deterrence must be demonstrated by the sentence I impose on you. Yours is a case that warrants custody in an adult prison. The Crown urged that the maximum sentence, sometimes called the head sentence, to be imposed on you reflect the gravity of your crime and recognise the element of deterrence.

Yet your youth and prior history should be allocated significant weight as mitigating factors in your sentence. It was submitted on your behalf and not resisted by the Crown that it is highly desirable that your prospects of rehabilitation be supported by the Adult Parole Board for a longer period than might ordinarily apply. This is because of your youth and the apparent lack of a mature influence on your life since about 15. To put matters plainly, your case is one that calls for a longer period of parole than might usually be the case to provide you with the opportunity to achieve rehabilitation and move on from your difficult past. It is highly desirable that you pursue educational and employment skilling opportunities.

Weighing all these matters up, I sentence you to a period of eight years' imprisonment. I direct that you serve a minimum term of five years before becoming eligible for parole. For the purposes of s.18(4) of the Sentencing Act 1991 I declare that the period of 617 days (including this day) that you have spent in custody be reckoned as time already served under the sentence I have imposed. I direct that this declaration be entered in the records of the Court. I direct that a copy of the order and these reasons be served upon you within 14 days of today.

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