R v Nguyen [2011] VSC 632

Supreme Court of Victoria|2011-12-08|Before: LASRY J

CRIMINAL LAW - Sentence - Attempted Murder - Stabbing of lover - Issue at trial had been intent to kill - Whether adjustment disorder with depressed mood diminishes moral culpability - Whether general deterrence should be sensibly moderated.

1 Trinh Nguyen, on 17 October 2011 you were found guilty by a majority of a jury of the attempted murder of Bao Van Vo, a man with whom you had been having a relationship since 2008. It is now my responsibility to sentence you for that offence. The maximum penalty for attempted murder is 25 years imprisonment.

2 You attempted to murder Bao Vo on 1 March 2010 after he had gone to your premises at Springvale following your request to him to do so some days earlier. His evidence, which the jury obviously accepted, was that he went to your house at 8.00am on that day and waited for a period of time for you to come back to the house. There was then some discussion between you about the state of your relationship and Bao Vo told you he did not want a sexual relationship with you anymore and that you and he should just be friends. He said he urged you to go back to your former partner. Clearly you were very distressed by this.

3 After the discussion, at Bao Vo's instigation, you and he went to your bedroom where you had sex. After that had finished, Bao Vo said you got out of bed first whilst he remained there. He claimed that after you got dressed and left the immediate bedroom area, you said to him, "Why don't you get up and go and wash yourself?".

4 Mr Vo then got up and went into the en suite bathroom and began to wash himself. After he'd washed his hands he said he heard a blow to the side of his body. He turned and saw you were there and saying "I kill you". You stabbed him for the first time with a knife you had obtained from the kitchen. He said he put his arm up to stop the attack and saw the knife and also saw that he was bleeding and said to you "Why did you do this to me?" You said "If I don't kill you, then you could still desert me".

5 The handle of the knife which you were holding was in a plastic bag and you were using both hands to stab him.

6 In an effort to stop the attack he shut the door to the en suite bathroom and as he began to bleed heavily he yelled "help me" and asked you to call him an ambulance but you did not do so. There was some further conversation between the two of you with you still holding the knife and he again asked why you'd done it and you said if you didn't kill him he would leave you anyway.

7 Bao Vo requested his clothing and said that he wanted to have a shower and wash the blood off himself, so you passed him his clothing. While he was standing in the shower you opened the door and stabbed him to the left side of the body twice. The fact that you took a second opportunity to stab Bao Vo increases the seriousness of this offence.

8 Bao Vo said that he resorted to reminding you of your religious beliefs and the fact that you are a Catholic in order to get you to stop stabbing him. As he did that you dropped the knife and began to cry. Mr Williams relied on that as a display of remorse and an acceptance by you that you had done the wrong thing and I accept that is so. Bao Vo then pushed you out of the room and locked the door and got dressed. He picked up the knife and pushed it under the bed and then he went out of the premises through the front door. When he got outside he collapsed and was ultimately attended to by an ambulance and members of the police force. Whatever regrets you were feeling, you did not offer assistance to Bao Vo at any stage.

9 The medical evidence on your trial indicates that apart from a laceration to Bao Vo's arm and body, your stabbing of him directly wounded his liver. Dr Aitken was the surgeon who treated Bao Vo and repaired the liver by the application of sutures. At your trial he also gave evidence about the other wounds on Bao Vo's body. There is a substantial surgical wound down the front of Bao Vo's body which was the result of the surgery carried out by Dr Aitken.

10 For a couple of days Bao Vo was in intensive care in hospital. However, apart from the scarring (which is significant) he has made a full recovery from his injuries.

11 You never denied that you had stabbed Bao Vo. You pleaded guilty to the second count on the indictment alleging that you had intentionally caused Bao Vo serious injury. However, you denied that you had an intention to kill Bao Vo at the time that you stabbed him. The jury's verdict clearly indicates that they were satisfied beyond reasonable doubt that you did, in fact, have that intention.

12 Whilst you had told Dr Nguyen on 22 February 2010 that you wanted to kill Bao Vo, I do not sentence you on the basis that between then and 1 March 2010 you spent any time planning to do so. As the prosecutor argued, it was something you had been thinking about for some time but it is obvious that there was no degree of planning for this incident because it occurred in your home in the presence of your daughter, although she did not actually see the stabbing.

13 I accept that the background to this incident is unfortunate. You were clearly upset by the fact that your relationship with this man was coming to an end, at his instigation, and it is obvious that you felt that you had been used by him whilst he maintained other relationships.

14 On 22 February 2010, eight days before this offence was committed, you went to see your doctor, Dr Nguyen, in a very upset state. He described you as being in tears and desperate, and you told him that you wished to kill your partner rather than have to share his love for you with anyone else. As a result of what Dr Nguyen observed about you on that day, he prescribed Diazepam in the hope of calming you down, and made an appointment for you to see a Mr Lee who is a psychiatrist.

15 In his evidence, when cross-examined by your counsel, Bao Vo effectively agreed that he was maintaining separate relationships with you and with other women and that, as he put it, he was just "trying you out". Although you lent Bao Vo money of an amount somewhere between $1,000 and $2,000, the relationship was otherwise exclusively a sexual relationship.

16 During the plea, the prosecutor tendered a victim impact statement signed by Bao Vo. That statement demonstrates that he was traumatised by the injuries you inflicted on him and that the effect on him is likely to continue for some considerable time. He describes having nightmares and it is not surprising that he has been traumatised by your attack on him.

17 He has permanent scarring on his body which, although originally the result of unrelated surgery in 1998, now includes the surgical scarring from the treatment of his injuries and will be a permanent reminder of your attempt to murder him. I have taken his statement into account in deciding what sentence I will impose on you.

18 You were born the youngest of 10 children on 5 November 1975 in Vietnam and you are therefore now 36 years old. Your family in Vietnam was poor and you received a minimal education. I am told that it finished at the equivalent of grade four which I assume is when you were about 9 or 10 years of age. That has meant that your opportunity to participate in the workforce and pursue any kind of career, in Vietnam or Australia, is and was very limited. In addition, and for reasons which are not entirely clear, in the history that you gave to Dr Sullivan you described your experience of suffering as a child from severe illness resulting in what you now believe was surgery on your brain, which left you in hospital for several months. While I cannot rely on your description of the nature or consequences of that experience on you, I accept that you had medical treatment during your childhood that was quite traumatic for you.

19 Your childhood relationship with your parents was difficult and your mother died in 1994. You came to Australia in 1995 when you were 20 years old, sponsored by your father who now lives in Perth and is aged in his 80s. Unsurprisingly, you arrived in Australia unable to speak English and I am told that the language remains an obstacle - you can barely speak it now. In addition, perhaps as a result of your background, your intellectual ability is assessed as being in the borderline range.

20 Having come to Australia, you met your ex-husband Hung Nguyen in Perth and commenced a relationship with him. You later moved to Melbourne together. You had three children from that relationship but it ended in difficult circumstances with him apparently having a problem with alcohol not long before the birth of your third child. Your children, who are aged 13, 11 and 6 years, are living with your former partner's family and your contact with them is limited. I accept that your separation from them because of this offence is a very substantial punishment for you.

21 You met the victim of this offence after he answered an advertisement that you placed in a Vietnamese language newspaper. As I understand it, the relationship lasted for about two years, until March 2010, but about half way through that time you discovered that there were other women in Bao Vo's life and that at some stage while he was seeing you, he had married another woman.

22 I have no doubt that this relationship was difficult for you, with conflict and dissatisfaction on your part because you wanted a committed relationship and he was not prepared to make that commitment. I also do not doubt that you felt used both because of the sexual nature of the relationship and the fact that you had provided loans to Bao Vo which were never likely to be repaid. That is, of course, some explanation for what you did but in no way a justification for it.

23 You are a person without prior convictions for violence or anything else and, until you committed this offence, you were entitled to be regarded as a person of good character. That is a significant matter to be taken into account.

24 It is clear from the evidence of Dr Nguyen, to which I have already referred, that you had been suffering from depression in the weeks leading up to this offence. In his evidence during your trial, Dr Nguyen said that he saw you on 16 February 2010 and described you at that time as being in good spirits, but by your next visit on 22 February 2010 you reported significant difficulties sleeping and you were upset to the point where he wondered whether he should contact the police or the Crisis Assessment and Treatment Team. Ultimately, after consulting with Dr Lee, Dr Nguyen prescribed medication for you.

25 Mr Williams of counsel tendered three further medical reports relevant to your circumstances and mental state on your behalf during the plea. They are from Dr Mark Ryan, Associate Professor Brewer and Dr Danny Sullivan. The reports suggest regular untreated depression. Dr Sullivan said you suffered from what he described as a "clinically significant mood disturbance" and an "adjustment disorder with depressed mood", which in turn caused your emotional distress as a result of the failure of the relationship with Bao Vo, which he told you about on the day you stabbed him.

26 I am hesitant to accept that your emotional disturbance at the time of this offence was a direct result of a clinically diagnosable disorder. However, I do accept that your emotional state at the time and in the weeks leading up to the offence was sufficient to cause you to overreact to the situation in which you found yourself, and that is a relevant and significant consideration for me in sentencing you.

27 The reports highlight a longstanding difficulty with anger management and suggest that this offence was committed when you were in highly distressed state - a condition you had been in for some weeks beforehand. You had also not been taking your medication for your diabetic condition during the weeks leading to this incident.

28 This evidence satisfies me that your highly distressed emotional state played an important part in the emotional reaction you displayed on the day that you attempted to murder Bao Vo. I am satisfied that your emotional state and the difficulties that you were experiencing in your relationship with Bao Vo had the effect of reducing your ability to exercise appropriate judgment and I think it also affected your ability to make calm and rational choices or to think clearly at the time of the confrontation with Bao Vo. When you were confronted with the reality that you would no longer have any relationship with him, let alone the kind of relationship that you had wanted, your emotional reaction produced a loss of control and affected your judgment and to some degree at least explains why you committed this offence. On that basis I have moderated the sentence I will impose on you.

29 I also consider that your mental state will make your time in prison more difficult, and there is already some evidence to support that based on the time you have been in custody to date. When you were first taken into police custody you were assessed as being unfit to be interviewed. By May 2010 your condition was such that the authorities placed you in the Marmak psychiatric unit at Dame Phyllis Frost prison and you were apparently kept in there for some four months. During that period you also, apparently, spent a short time in the A2 management unit. Your lack of conversational English and resulting difficulty in communicating except through an interpreter is another factor that is likely to make your time in custody more difficult, and I have taken these matters into account in the sentence I will impose on you.

30 Your counsel has also relied on the fact that you pleaded guilty to the alternative count on the indictment of intentionally causing serious injury. Mr Williams argued that that plea represented a willingness by you to accept some responsibility for what you had done. True as that is, you continued to deny an intention to kill Bao Vo and it was that issue on which the trial was conducted. The jury were satisfied beyond reasonable doubt that you did have that intention. Whilst I accept that you do regret your conduct, your unwillingness to accept that you had that intention detracts from the submission Mr Williams made. However, I do take into account that you accepted at all times that you stabbed Bao Vo and that you regret that happened.

31 Although progress is slow, in custody you have undertaken English classes twice a week. You attend Catholic Mass. You have also participated in several workshops in relation to cleaning, health and parenting.

32 No doubt on your release you will wish to re-establish your relationship with your children and I hope that that will provide a strong motive to avoid any repeat of this conduct. I think you do understand that you simply cannot do what you did to Bao Vo without there being very serious consequences for you and that any further offending after your release would be very serious indeed.

33 I sentence you on the basis that your prospects for rehabilitation are reasonably good. However, upon your release you will still need to seek further assistance for those issues in your life which have caused such distress and loss of control to date, particularly where those issues arise from an underlying illness such as your diabetes, or from a mood disorder if it continues to affect you at the time of your release.

34 In my opinion, you are a person who was suffering as a result of your deprived background and your strong emotional need for a committed relationship.

35 So far as the attack on Mr Vo was concerned, I have found that what you did was spontaneous to a degree but made very serious by the fact that you intended to kill him. As I described earlier, while there is evidence before me that you had considered harming Bao Vo on at least one prior occasion, as described by Dr Nguyen, I do not sentence you on the basis that the offence was premeditated. I am satisfied that you grabbed the knife spontaneously out of a feeling of emotional upset and frustration but I must sentence you on the basis that the jury have concluded that at the time you stabbed Mr Vo you were intending to kill him.

36 What you did had some connection, at least in part, with the adjustment disorder as diagnosed by Dr Sullivan. As at 1 March 2010 you were a very troubled, emotionally deprived and desperate lady and that contributed to what you did and therefore lessens your blameworthiness to some degree. That said, the jury have concluded that at the time you stabbed Vo, you intended to kill him. The offending remains very serious.

37 In all the circumstances, the sentence I will impose on you for the attempted murder of Bao Van Vo is a sentence of eight years imprisonment. I order that you serve a period of five years imprisonment before you are eligible to apply for release on parole.

38 I declare that your pre-sentence detention is 648 days including this day and I direct that that declaration be retained in the records of the Court and be reckoned as time already served.

39 I will make the disposal order under s 78 (1) of the Confiscation Act 1997 and the order for a forensic sample under s 464ZF of the Crimes Act 1958, as requested by the Crown.

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Judgment (41 paragraphs)

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