R v Tran [2008] VSCA 80

Court of Appeal (Vic)|2008-05-23|Before: BUCHANAN and ASHLEY JJA and FORREST AJA

CRIMINAL LAW - Appeal against total effective sentence of 21 years' imprisonment with non-parole period of 16 years for offences of murder and two counts of intentionally causing serious injury - Whether applicant's mental condition reduced moral culpability for offending - Whether sufficient weight given to mental condition of applicant in reduction of moral culpability - Whether sentence manifestly excessive - Appeal allowed - Appellant re-sentenced to total effective sentence of 18 years and six months' imprisonment with non-parole period of 14 years.

**1 While anyone who deliberately takes the life of another commits a most serious crime, the circumstances in which this murder was committed, the applicant's mental state and antecedents in my view render the sentence passed below manifestly excessive.

2 This is, I think, a difficult case. In part the difficulty arises from the same circumstances - the sudden frenzy of the attacks, their devastating consequences, the innocence of the victims and their relationship with the applicant - simultaneously exemplifying the horror of the crime and the powerful forces acting upon the applicant's mind. I consider that the sentencing judge failed to accord due weight to the latter and the consequences, which affected particularly general and specific deterrence.

3 I would re-sentence the applicant as Ashley JA proposes.**

4 The Applicant, Nhat Anh Tran, pleaded guilty to the following offences, each of which was committed on 18 December 2004:

Murder, 1 count (count 1);[1]
Intentionally causing serious injury, 2 counts (counts 2 and 3).[2]

5 On 16 October 2006, after an earlier plea, he was sentenced on count 1 to 18 years' imprisonment, on count 2 to 4 years' imprisonment and on count 3 to 2 years' imprisonment. The learned judge cumulated two years of the sentence on count 2 and 1 year of the sentence on count 3 on the sentence imposed on count 1. The total effective sentence was thus 21 years. His Honour fixed a non-parole period of 16 years. He made a declaration in respect of pre-sentence detention.[3]

6 Now the applicant seeks leave to appeal against sentence.[4] His full statement of grounds reads as follows:

The learned sentencing judge failed to give sufficient weight to the appellant's plea of guilty.
The learned sentencing judge failed to give sufficient weight to the appellant's mental illness in so far as it was relevant to:

(b) the moderation of the principles of general and specific deterrence;

The learned sentencing judge failed to give sufficient weight to the emotional stress of the appellant at the time of the offence.
The total effective sentence, individual sentences and the non-parole period are manifestly excessive.

7 All grounds were pursued. But counsel for the applicant made it plain in argument that the substance of the matter, stated as a proposition, came down to this: That the individual sentences, the total effective sentence, and the non-parole period could not have sufficiently taken the applicant's moral culpability into account, and must have under weighed the other matters which went in mitigation, because such sentences and the non-parole period were respectively manifestly excessive. Put another way, the sentences were manifestly excessive, and the explanation lay in the faulty application of the sentencing considerations which I have just mentioned.

8 The learned sentencing judge described the circumstances leading up to and culminating in the stabbings as follows:

You have pleaded guilty to the murder of your daughter, Thuy Sen Tran. You stabbed her fatally. You have also pleaded guilty to two counts of intentionally causing serious injury. You caused serious injury to your wife, Mui Thi Phan by stabbing her. You caused serious injury to your daughter's friend, Luan Tran by stabbing him. Each of the three victims was stabbed by you at about the same time with the same knife.

On 18 December 2004, you were residing along with the three victims at a house in Carlton Street, Braybrook. Also residing there were the three other children of yourself and Mui Thi Phan. At that time, and for a considerable time previously, relations between you and other members of the family had been strained. For a period of two years between the years 2000 and 2002, you had been excluded from living with the family. During that period, your wife, Mui Thi Phan had obtained an Intervention Order against you based on your ill treatment of her. In time, she relented, and let you rejoin the family. You then had the benefit of the company of your children. However, you had little say in the running of the family. Your wife managed the family finances. Both your wife and daughter worked and provided the income to sustain the family. You had lost your employment. You managed to get by financially on some regular benefit payments. Your wife, who kept her financial affairs separate, suspected that, at times, you took money from her purse. Until the morning of 18 December 2004, she chose not to confront you as to her suspicions in the presence of other family members.

In the period leading up to December 2004, your older daughter, Thuy Sen Tran was engaged in study, in work and in travel. She trained and worked as a pharmacy assistant and as a social worker. Through a cousin, she had come to know and like Luan Tran. Like Thuy Sen Tran, Luan Tran had been born in Vietnam. He had moved with his parents to the United States. Thuy Sen Tran had visited Luan Tran in the United States. They had plans to marry and reside in the United States. Your wife prevailed on Thuy Sen Tran to return to Melbourne. After she returned, she arranged for Luan Tran to come to stay with your family here for a time. It was late in November 2004, that Luan Tran came here. He resided in the family home at Braybrook. Because of the lack of room with a household of seven, he slept in the lounge room. You were troubled by the sleeping arrangements and by the circumstances in which Luan Tran had come into the family home. You had had no say in what was arranged as to the visit and as to where Luan Tran slept. According to Vietnamese traditions, prior to his staying with the family, there would have been an arrangement made between you and the father of Luan Tran.

On the morning of 18 December 2004, your wife went shopping with three of your children and with Luan Tran. When she went to pay for her first proposed purchase, she found that there was no money in her purse. Her immediate reaction was to conclude that you had taken her money. She returned to the Braybrook house. There, she accused you of taking all of the money from her purse. There followed a heated exchange of words between you and your wife. Because you had operated a tape recorder as you were speaking, I have been able to listen to the record of that exchange. It occurred in front of four others. There was not only your daughter Thuy Sen Tran, but also Luan Tran and your two youngest children. Amongst other things, your wife called you a water buffalo. In the Vietnamese culture, that is an insult indicating stupidity. Initially you chose to respond only with angry words. Then, your wife returned to accusing you of being a thief. You then made the impulsive but very foolish decision to take a knife from a drawer in the kitchen.

On seeing you take out the knife, your wife and daughter and Luan Tran moved out of the house into the rear yard. They ran across the yard to a gate leading onto the street. You went after them. There was trouble opening and getting out the gate. At or near the gate, you inflicted the first stab wounds. Luan Tran was the first victim. He was stabbed as he tried to prevent you stabbing your wife. You then succeeded in stabbing your wife to the left arm and to her back. You believed then that you had killed her. Your daughter was the first to get out of the gate. She ran down the street. You ran after her. Luan Tran ran after you. As your daughter ran, she fell. That brought her onto her hands and knees. At that time, you stabbed her in the back. Luan Tran caught up to you and struggled with you. In that struggle, you stabbed him to his right hand. That was the last use that you made of the knife. Shortly after that, you hailed a car and asked to be taken to the police station. There you surrendered the knife and were taken into custody. The wounds that you inflicted to each of Mui Thi Phan and Luan Tran were serious. The wounds that you inflicted to Thuy Sen Tran were so serious as to cause her death, a senseless and tragic death.

9 Counsel for the applicant did not suggest that the description was inaccurate; but he submitted that it understated, adversely to his client, features of the relationship between the various parties.

10 His Honour said this about the applicant's personal circumstances, in a description the accuracy of which is not challenged:

You are 51 years of age. You were born in Hue in central Vietnam in October 1955. You have a number of brothers and sisters. At least one brother lives in Melbourne. You worked as a nurse in Vietnam. You married Mui Thi Phan in 1978. Thuy Sen Tran was born in 1979. A son was born in 1982. In that same year, you left Vietnam. After some time in a refugee camp in Hong Kong, you came to Australia in 1985. Your wife and the two children joined you here in 1990. Later a second son and daughter were born. For some years until 2001, you worked for the Ford Motor Company.

11 To this may be added the fact that the applicant was without prior convictions.

Sentencing consideration. The analysis of the learned sentencing judge

12 The analysis by the sentencing judge of pertinent sentencing considerations needs to be set out. Thus:

General deterrence must play a major part in my fixing the sentence for these three crimes and particularly the murder of your daughter. The community would expect severe punishment to be meted out to a father who cannot control his anger in a family confrontation, but takes up a knife to attack three family members, and kills one who was innocent of any provocative conduct. Having said that, there cannot be the highest level of seriousness attaching where the acts were impulsive rather than pre-meditated. While I readily accept that the legal requirements of provocation would not have been satisfied, you were subjected by your wife to considerable provocation at a time of considerable vulnerability. Against a background of circumstances creating low self-esteem, you were subjected to significant emotional stress. A number of factors had contributed to you being at the critical time in a state of low self-esteem. You had no job. Your wife and daughter were working. You were at your wife's call as to living with the family. You had no say in any of the arrangements as to Luan Tran. I must too, and do, allow for the added impact of Vietnamese cultural factors amplifying the effect of matters going to loss of face and respect. Further, there was more than low self-esteem. I accept the evidence of your having suffered symptoms of depression warranting medical attention prior to your committing these offences. A sensible moderation of the allowance for general deterrence is thus warranted.

I note a series of mitigating factors otherwise. You deserve a significant discount for pleading guilty to these charges. You made the choice to bypass a committal hearing, thereby saving your family members the trauma of being examined in court altogether. You have no prior convictions. You acted responsibly in going to the police and then substantially co-operating with them. Your prospects of rehabilitation are very good. You have shown remorse, particularly for the killing of your daughter. You will find prison particularly onerous and for more than one reason. You are likely to be so haunted by the memory of having killed your daughter so senselessly as to want to continue not to remember. Dr Sullivan puts to that the diagnosis of depressive pseudodementia. Further, you are likely to have lost forever the company of your wife and three other children.

I must impose three sentences but allow for partial concurrency and partial cumulation. There was but a little difference in time and place that separated the three stabbings. I must allow for the principle of totality. I do regard the stabbing of your wife as significantly more serious than that of Luan Tran.

**13 I should now state my own analysis of matters which properly went into the sentencing synthesis.

14 There is no gainsaying the intrinsically serious nature of the offences. A short-lived but violent attack left one person dead and two others injured. In part the attack took place in a public street, into which the victims had fled. The person whom the deceased killed - his oldest daughter - was innocent of any immediate conduct as might have given rise to the applicant's frenzied outburst. At least one of the blows to the deceased victim was inflicted with such force as to justify a conclusion, to the criminal standard, of an intention to kill rather than an intention to do really serious injury. Further, the victim impact statements show eloquently the very considerable emotional impact of the killing of a thoroughly worthwhile person upon the siblings and mother of the victim; an impact which was continuing at time of sentence. In the event, just punishment and denunciation were important sentencing considerations.

15 On the other hand, a considerable number of circumstances tended in favour of mitigation of sentence.

16 First, the offences were impulsive, not pre-planned. Their impulsivity was reflected in the short period of time - about a minute - within which the attack commenced and concluded.

17 Second, at time of offending the applicant was under considerable emotional pressure, which had built up over a number of years. It had its roots in Vietnamese culture. For several reasons, the applicant's position in the family had been reduced from one of pre-eminence to one of unimportance.

18 Third, whether in response to the circumstances which gave rise to the emotional pressure, or in response to the emotional pressure itself, the applicant became depressed to the point that medical intervention was in train at the time of his offending.

19 Fourth, the consultant psychiatrist Dr Danny Sullivan gave evidence that 'frequently depressed people are more prone to losing their temper'. The applicant informed a psychiatric nurse who examined him on 21 December 2004 that he had a 'hot temper' and that he had been told this by his doctors. But that is not to suggest that his 'hot temper' was unrelated to his depression. A causal link was discernible between the applicant's pre-offending mental state and the outburst of anger which precipitated the commission of the offences.

20 Fifth, there was an immediate precipitant for the applicant offending as he did. Against the background of family alienation, in front of his children and Luan Tran, his wife repeatedly accused him of theft. She also used a Vietnamese epithet which connoted that he was stupid.

21 Sixth, immediately after committing the offences, the applicant went to the police and admitted - though he did make unwarranted attempts to suggest that he had been subjected to more provocative conduct than had been the case - what he had done.

22 Seventh, the applicant pleaded guilty at the very earliest time possible.

23 Eighth, there was good evidence, which the judge accepted, that the applicant was remorseful for killing his daughter.

24 Ninth, the learned sentencing judge was satisfied that the applicant's prospects of rehabilitation were good. That conclusion, by reference to a number of the circumstances to which I have referred, was well-justified.

25 Tenth, subsequent to his offending, and apparently in part at least in response to it, the applicant developed a depressive pseudodementia. That was the diagnosis of Dr Sullivan, which was not put in dispute on the plea. It main effect was disorganisation of the applicant's thinking and impairment of his short term memory. Medication, the doctor opined, would likely improve the condition The applicant reported to Dr Sullivan at consultation in October 2006 that he got on well with other prisoners but tended to keep to himself. Bearing in mind the fact that he spoke little English, and the impact of the pseudodementia, the applicant's reported relative isolation in prison was explicable, and such as to make his incarceration more burdensome. That relative isolation was likely to continue even if the pseudodementia improved with treatment.**

26 In submissions in reply, the prosecutor conceded that 'perhaps specific deterrence would have much less of a significance in your Honour's sentencing synthesis'; that general deterrence should play 'some significant role' but 'a lessened one by reason of [the applicant's post-offence] mental illness'; and that for several reasons imprisonment would be more burdensome for the applicant than for others. Those concessions were in my opinion well-justified. This is not to say that I agree with the rationale which was advanced in each instance.

**27 The plea was conducted and sentence was passed before this Court published its reasons for judgment in R v Verdins.[5] In respect of the impact of mental illness on the sentencing process, the law remained as stated in R v Tsiaras.[6] The prosecutor's cross-examination of Dr Sullivan concerning the applicant's pre-offence mental condition was conditioned by Tsiaras; as was his submission that the applicant had possibly been suffering from 'some minor mental problems ... not sufficient to raise it anywhere near a Tsiaras ... situation'.

28 There could be no doubt that the principles described in Verdins were engaged. There was persuasive evidence that the applicant had been diagnosed with depression not long before he committed the offences. He was being treated with what Dr Sullivan characterised as 'an old-fashioned antidepressant'. He had been referred for specialist consultation. In his report dated 2 December 2005, Dr Sullivan opined that, before he offended, the applicant had been suffering from' a major depressive disorder, mild - moderate in severity'. Despite cross-examination of Dr Sullivan, the learned sentencing judge was in my opinion well-justified in concluding that the applicant had been suffering from 'symptoms of depression warranting medical attention prior to [his] committing [the] offences'.

Impaired mental functioning at the time of the offending may reduce the offender's moral culpability if it had the effect of -

(a) impairing the offender's ability to exercise appropriate judgment;

(b) impairing the offender's ability to make calm and rational choices, or to think clearly;

(d) impairing the offender's ability to appreciate the wrongfulness of the conduct;

(f) contributing (causally) to the commission of the offence.

As we have said, this is not to be taken as an exhaustive list.

**30 The learned sentencing judge treated the applicant's 'symptoms of depression' as bearing upon moderation of general deterrence as a sentencing consideration. He had earlier said that general deterrence 'must play a major part' in fixing sentence. He said nothing about the applicant's mental state in the context of assessment of moral culpability.

31 Whilst sentencing is not a mechanistic exercise of ticking or crossing boxes,[8] and whilst it cannot be said, only because a judge does not mention some matter, that he or she did not consider it, I think it is likely - because of Tsiaras - that his Honour did not squarely address the existence and significance of a relationship between the applicant's mental state and his criminal conduct for the purposes of assessment of his moral culpability. Had he done so, I think he would have concluded, as I do, that the applicant's moral culpability was to an extent reduced - it being probable that the applicant's angry outburst was caused or contributed to by his depressive illness, which made him more prone to such an outburst. Such conclusion would have been relevant to considerations of just punishment and denunciation.[9]**

**32 The prosecutor submitted that the applicant's impulsive criminal acts were committed whilst he was under significant emotional stress, possibly suffering minor mental problems, and 'also the effect on him of the provocation, which came from his wife, it's important to note, and yet it's the daughter who's ... died'. These considerations, he submitted, made it difficult to strike an appropriate balance between denunciation and deterrence.

33 As I understand it, the prosecutor did not there submit that the provocative conduct of the applicant's wife - I use 'provocative' now and hereafter in a popular rather than a legal sense -was irrelevant to the sentence passed on the murder count. Rather, I understand counsel to have submitted that any mitigating impact it might have must be the less in the case of the applicant's murder of his daughter.

34 The learned judge accepted that whilst 'the legal requirements of provocation would not have been satisfied', the applicant had been 'subjected by [his] wife to considerable provocation at a time of considerable vulnerability'. It is clear that his Honour then treated such provocation as bearing upon moderation of general deterrence as a sentencing consideration.

35 In this Court, however, counsel for the Crown by his written submissions raised what he said was 'a threshold question': 'to what extent may the provocative acts of a person other than the deceased be relied upon in mitigation?' He did so by referring to a series of cases in which the question was whether the legal defence of provocation was available in particular circumstances. He cited, particularly, R v Kenney[10] and R v Gardner.[11] Orally, he indicated that he was 'flagging' the issue - because provocation, being no longer a defence to murder,[12] may now be raised as a sentencing consideration. He did not make a clear submission as to what answer should be given to the 'threshold question'.

36 Counsel further submitted that if the wife's provocative words or conduct were able to be relied upon by the applicant, then there was 'insufficient nexus to give them any weight as a mitigating factor'.

37 In the context of provocation as a partial defence to murder, authorities do suggest, though subject to certain qualifications, that the provocation must emanate from the victim.[13] But there is a question whether restrictions on the conduct which could constitute a partial defence to a charge of murder must necessarily apply in a sentencing context. The present case is but one illustration of circumstances which might arise, and which would need to be discretely considered. The provocative conduct of the applicant's wife was relied upon to partly explain - but not excuse[14] - the applicant's sudden outburst of violence, which was inflicted indiscriminately upon both the author of the conduct and a related but innocent third party.

38 I think that it is not possible, having regard to the incomplete manner in which the point was argued, to answer the 'threshold question'. In the present case, I think that nothing is lost by not doing so. The learned sentencing judge identified the wife's provocative conduct simply as the immediate temporal trigger for the applicant's violent outburst, the substantial reasons for which lay in deeply rooted emotional stress and consequential vulnerability.[15] His Honour's approach was unremarkable. The provocative conduct, as he approached it, seems to me to have had little if any impact upon the sentence which he imposed. For that reason, nothing need be said about the Crown's submission as to weight.

39 I add only this. The defence of provocation was statutorily abolished in Tasmania in 2003. There is already some jurisprudence in that State[16] upon the place of provocation as a sentencing consideration. It might be a useful starting-point if and when the 'threshold question' does fall for determination.**

Sentencing statistics relied upon by the Crown

**40 Counsel for the Crown submitted that the individual sentences imposed upon counts 2 and 3 were well within range. In respect of count 1, he referred to sentencing statistics for the period 2001/02 - 2005/06. He submitted that it was relevant that -

• Terms of imprisonment ranged from 13 years to life.

• The most common length of imprisonment was 18 years.

• The average term of imprisonment ranged, in the different years, from 18 years and 3 months to 19 years and 3 months.

41 Counsel then submitted that, although the figures were but 'a crude description' of sentences imposed, they did 'set parameters in which to consider any given sentence'. Here, the sentence imposed on count 1 was 'less than the average for any given year.. and equal to the median'.**

The application should be granted and the appeal allowed

**42 In my respectful opinion, the sentence which the learned judge imposed on count 1 and the total effective sentence was in each instance outside the permissible limits of the sentencing discretion. I would grant the application and allow the appeal. I would re-sentence the applicant to 16 years and 6 month's imprisonment on count 1, confirm the sentences imposed on counts 2 and 3, and cumulate 1 year of each of the sentences imposed on counts 2 and 3 on the sentence imposed on count 1, this yielding a total effective sentence of 18 years and 6 months' imprisonment. I would fix a non-parole period of 14 years, and make an appropriate declaration in respect of pre-sentence detention. My reasons are as follows.

43 The learned judge explained in his sentencing remarks why the murder of Thuy Sen Tran, intrinsically, was not at the highest level of seriousness. Moreover, there were multiple and powerful considerations which went in mitigation. I have set them out.

44 His Honour specifically identified almost all of the mitigating factors in his careful sentencing remarks. He did not mention specific deterrence; but I assume he took the view that it had little part to play in the applicant's case. Neither did he say anything about the impact of the applicant's pre-offence mental illness upon his moral culpability for the offending. The reason why he did not do so is readily understandable. Nonetheless, it suggests to me that his Honour did not bring the illness into the sentencing synthesis in a way which Verdins authorises.

45 This does not mean, of itself, that there was necessarily a fault in the sentence which was passed. But then consider the lengthy catalogue of circumstances which went in mitigation. The matters raised bore upon just punishment, denunciation, general deterrence, specific deterrence, prospect of rehabilitation and what would be the particularly burdensome nature of the applicant's incarceration. Again, the fact and impact of the very early plea of guilty needed to be allowed for, as did the applicant's remorse over the killing of his daughter.

46 In all, whilst every murder is a most serious crime, the circumstances suggest to me that one should have expected a sentence well towards the lower end of the range. But it is at least clear, given all the dangers of reliance on sentencing statistics as other than a rough guide, that the sentence in this case was at once the median sentence and most common sentence over a 5 year period. This provides support for a conclusion that the sentence was manifestly excessive, and - although it is not necessary to give an explanation how it came about - that the pre-Verdins landscape provides the explanation.

47 It is with those considerations in mind that I would re-sentence the applicant to 16 years and 6 month's imprisonment on count 1. For anyone who might be disposed to say that there is not much difference between 16 years and 6 months' imprisonment and 18 years' imprisonment, and that the substitution of one for the other would be just 'tinkering', I think it is well to reflect upon how much is done by most people in one day, one week, or one month of their lives, let alone how much in one year, or a year and a half.

48 I turn to the sentences passed on counts 2 and 3.

49 The applicant stabbed Miu Phan, his wife, in the left flank and on the back of the left wrist. The injury to the flank required sutures. The injury to the wrist required tendon repair under general anaesthetic. Mrs Phan made good physical recovery, but said in a victim impact statement that she continued to suffer back and left wrist pain.

50 The applicant inflicted wounds to Luan Tran's hands. There was a superficial laceration to the index and middle fingers of his right hand; and a wound to the left hand which required surgical repair of tendons, arteries and nerves. Initially, the victim was hospitalised for two days. Later he returned to the United States, where he sought treatment from a local practitioner. According to the Crown opening, he was left with incomplete use and sensory impairment of his left hand.

51 The learned judge concluded that the offence constituted by the applicant's stabbing of his wife was 'significantly more serious' than his stabbing of Luan Tran. I do not understand why that should be so. Luan Tan, an innocent bystander, was twice attacked as he attempted to prevent an attack upon the Thuy Sen Tran. He suffered, it seems, continuing physical sequelae of the attack, such as affected his working ability. The wounds suffered by Mrs Phan, whose immediately provocative behaviour had sparked the applicant's violence, seem on the other hand to have been well-repaired - notwithstanding that she complained of some continuing symptoms.**

**52 I am inclined to think that the sentences imposed upon counts 2 and 3 should have been the same; and that each should have been a sentence of 2 years' imprisonment. But I need not reach a final conclusion about that matter because I think it is at least clear, particularly considering totality, that only one year of each sentence should be cumulated on the sentence imposed on count 1. So it is that I have arrived at a total effective sentence of 18 years and 6 months' imprisonment.

53 Having regard to the various sentencing considerations, including the applicant's good prospects for rehabilitation, and having regard also to the applicant's age, I think that the learned sentencing judge fixed, considered as a percentage of the total effective sentence, a quite high non-parole period. Given that re-sentencing is, on the view I take, required, there is no obligation to fix to a non-parole period of equivalent dimension. All in all, however, I think that anything less than 14 years would be too short a non-parole period.**

**54 I have had the benefit of reading the reasons for judgment of Ashley JA. I gratefully accept his Honour's analysis of the facts and the issues on the application. Unfortunately I am unable to agree with the disposition of the application as his Honour proposes.

55 I am not persuaded that the impugned sentence (on the three counts an effective sentence of 21 years with 16 years fixed as the non parole period) was manifestly excessive; nor am I persuaded that in undertaking the necessary sentencing synthesis his Honour gave insufficient weight to the applicant's moral culpability.

56 Section 568(4) provides this Court with the power to quash a sentence and topass such other sentence as it thinks ought to have been passed. In R v Taylor and O'Meally,[17] Lowe and Gavan Duffy JJ said of the application of this provision:

It will not proceed by considering at once what the individual members of the bench consider an appropriate punishment. On the contrary it will look at the sentence imposed by the trial judge, and unless it appears that he has made a mistake as to the facts, or has acted on an erroneous principle of law, or has taken into account some matters which should not be taken into account, or has failed to take into account matters which should have been taken into account, or has clearly given insufficient weight, or excessive weight, to some matter taken into account, or unless the sentence is obviously - not merely arguably - too severe or too lenient, it will not interfere. To do this is substantially to apply the principles, as now settled by authority, which are proper to a review of the exercise of a judge's discretion, and therefore to apply the practice to which Hood J, refers in R v Johansen (No 2) [1917] VicLawRp 100; [1917] VLR 677 at 679. (Emphasis added)

57 It is only after error (of whatever kind) has been established, that then the court, in addition, must be of the opinion that a different sentence should have been passed. As Brooking and Hayne JJA said in R v Palmieri:[18]

In our opinion the exercise of the sentencing discretion has quite clearly miscarried by reason of the matters we have already mentioned, and it is not necessary to consider directly any of the other grounds of appeal, although it will be necessary to say something about the questions which they raise in considering whether a different sentence should have been passed. For unless we conclude that a different sentence should have been passed, we must dismiss this application.[19]

Insufficient weight given to reduced moral culpability?

58 An impairment of mental functioning, be it temporary or permanent, may be relevant to the sentencing exercise in a number of ways; in this case it was relevant to the applicant's state of mind at the time of the offending. On this appeal the focus was on the proposition that it may reduce the moral culpability of the offence as distinct from the offender's legal responsibility.[20] These principles have been explained in R v Tsiaras[21] and R v Verdins.[22] The learned sentencing judge (who has vast experience in the criminal law) sentenced the applicant subsequent to Tsiaras but prior to the decision of this court in Verdins.

Subsequent to both decisions, in R v. Howell,[23] Nettle JA said:**

The point of Verdins is that each case depends upon its own facts and in particular on the nature of the mental condition in question. ... The theory and reality upon which the intuitive synthesis approach to sentencing is built is that each case is unique ...

So it is helpful now to turn to some of the material before the sentencing judge.
On 8 December 2004, the applicant attended his local general practitioner, Dr Le. He was referred to a Dr Chan, whom he saw on 8 December; however he arranged for the applicant to see a Dr Pham, a consultant psychiatrist, on 21 January 2005. Apparently at that consultation it was noted that the applicant had three years of low mood related to family stresses. No diagnosis of depression was apparently made by any of the treating doctors, although the applicant was taking Sinequan. Dr Reid, a senior psychology registrar, reviewed the applicant several times directly after the offence. He does not appear to have made a formal diagnosis of depression. Dr Sullivan, a consultant psychiatrist, did not see the applicant until December 2005. He provided two reports and gave viva voce evidence. He was unable to say whether Sinequan was prescribed as a sedative or if a higher dose was being used by the applicant to treat depression. However he was of the opinion that there was:

A strong suggestion that Mr Tran was suffering from a mood disorder, probably a major depressive disorder mild to moderate in severity. The differential diagnosis would be adjustment disorder with depressed mood.

Dr Sullivan was also provided with material from the treating general practitioner. On the basis of his examination of this material he concluded that the applicant was suffering from a depressive illness prior to the offence. He said as follows:

I am capable of reading the doctor's writing and it would appear that there is evidence of a mild to moderate depression, on the symptoms given there.

61 On the plea before the learned sentencing judge, the following was said on his behalf in relation to the applicant's mental state at the time:

I submit that as part of the circumstances Your Honour could properly take into account, and reduce the sentence in relation to the consideration of general deterrence, or modify the sentence to some extent, by accepting that it was committed in circumstances where he was suffering depression for a period of time and that may have accounted for the way he reacted unfortunately, together with the general criticisms and cultural factors which played a part in this case.

62 In my respectful opinion, the learned sentencing judge's reasons, the relevant parts of which are reproduced by Ashley JA, demonstrate that his Honour was well aware of the applicant's personal circumstances, and particularly his depressive state in the context of his offending. Whilst it is true that the learned sentencing judge did not advert specifically to the issue of moral culpability in his reasons, he clearly took into account the personal circumstances of the applicant, including his psychological condition. In particular, his Honour adverted to the following matters:

(a) That at the time of the offence the applicant was subjected by his wife to provocation 'at a time of considerable vulnerability'.

(b) That the applicant was in a circumstance of low self-esteem and was subjected to 'significant emotional stress'.

(c) That the applicant was suffering from symptoms of depression warranting medical attention prior to the commission of these offences.

63 I am not persuaded that a judge of his Honour's experience accorded inadequate weight to any effect the applicant's depressed state may have had on the moral culpability of the applicant. He was clearly mindful of the applicant's depressive state and determining the effect of depression on his fit of prolonged rage was no easy task.

As Tsiaras, Verdins, and Howell make clear, it was entirely a matter for his Honour as to whether to give this consideration weight and, if so, the degree of weight relevant to the complex task of sentencing. In my view nothing in his Honour's reasons or the impugned sentence demonstrates that he was not alive to the issue, nor that he did not take it into account (as the law required) in determining the appropriate sentence.

The learned sentencing judge took into account a number of relevant mitigating factors. These were set out by him as follows:

I note a series of mitigating factors otherwise. You deserve a significant discount for pleading guilty to these charges. You made the choice to bypass a committal hearing, thereby saving your family members the trauma of being examined in court altogether. You have no prior convictions. You acted responsibly in going to the police and then substantially cooperating with them. Your prospects of rehabilitation are very good. You have shown remorse, particularly for the killing of your daughter. You will find prison particularly onerous and for more than one reason. You are likely to be so haunted by the memory of having killed your daughter so senselessly as to want to continue not to remember. Dr Sullivan puts to that the diagnosis of depressive pseudodementia. Further, you are likely to have lost forever the company of your wife and three other children.

These mitigatory considerations need, however, to be balanced against powerful factors pointing towards a significant period of imprisonment.
The nature and gravity of the offence was a significant consideration. The maximum penalty for the crime of murder is life imprisonment. Whilst I accept that the offence took place over a short period of time (probably in the region of about one minute) and that it was not the subject of any pre-planning, it needs to be viewed in context. The applicant's actions were not the subject of a momentary fit of rage, such as picking up a conveniently placed knife, which was located nearby, and instantaneously stabbing a victim. Far from that. The applicant, after the argument with his wife, left the living room, went into the kitchen and rummaged through a drawer for a knife. The deceased, her mother and the deceased's partner, Luan Tran, bolted from the house and made their way to the gates providing access to the street. Rather than desist and abandon his pursuit, the applicant followed them to that point. The deceased escaped through the gates. At that spot the applicant stabbed Luan in the hand and then stabbed his wife, Phan in her left hand and to the left side of her back. Again, rather than desist, the applicant then turned his attention to the other member of the group, the deceased, and pursued her down the street. It is clear that she had not got very far when she was attacked by the applicant, who inflicted three separate knife wounds to her back. At that time she was on her hands and knees as she had fallen over trying to avoid the applicant. The applicant then stabbed Luan, again in the hand.

**68 It can be readily accepted, as indeed the learned sentencing judge did, that the applicant's actions were the consequence of an argument which resulted in him losing his temper. That, however, in my view simply removes an aggravating circumstance: the lack of a preconceived plan. The circumstances of this offence, whilst committed in the heat of the moment, cannot be underestimated.

69 Another significant factor, I think, which needed to be carefully considered by his Honour, as it was, was the disastrous effect that the murder of the deceased had upon the deceased's family.

70 In R v Webb[24] the Full Court said:**

It is always open to a judge to have regard to the fact that no evil effect resulted from the crime to a victim. That is a common occurrence and a fact properly taken into account. But, conversely, a learned judge is equally entitled, in our view, to have regard to any detrimental, prejudicial, or deleterious effect that may have been produced on the victim by the commission of the crime.

**71 Section 5(2)(da) and (daa) of the Sentencing Act requires a Court, in sentencing an offender, to take into account both the personal circumstances and the impact of the offence on any victim.[25]

72 At the time of her death, the deceased was 25 years of age, in stable employment as a social worker and in a steady relationship with Luan Tran. She devoted much, if not all, her spare time to her siblings and mother.

73 The learned sentencing judge said this of the victim impact statements provided by the deceased's three siblings and her mother:**

The three from the surviving siblings of Thuy Sen Tran are very moving as to how they have suffered from her death. They reflect the strong and good relationship they each had with their older sister. The greatest pain and deepest sense of loss is that expressed by Mui Thi Phan. Her victim impact statement makes extremely sad reading.

**74 I agree entirely. Indeed, it is more than sad reading. The statements demonstrate the utter destruction of a family by the needless killing of a devoted and loving woman who had spent much of her life caring for others.

75 To gain some insight as to how this family has been affected, it is of assistance to repeat parts of the victim impact statement of the deceased's brother, Khoa Tran:**

My name is Khoa Tran, the brother of the victim Thuy Tran that was murdered by my brutal father two years ago. I cannot stress enough to say from the past couple of years how this incident have made a profound impact on my life, in which have affected me both emotionally and mentally.

My sister was my guidance, always making sure that I make the right choice and walk with my head up high and with dignity. She is my protector always leading and supporting me in every way. Without her guidance I would probably be on the streets making a mess out of my life. ... I would never be able to forget my loving sister especially the way she had died. I can only imagine all the pain she had before her last breath, when she was stabbed four times with a knife.

Till this day I still don't understand the reason behind my father's actions and I probably never will because I can no longer face my father to ask him that question.

76 In a similar vein, his younger sister, Trang, said:

Life hasn't been the same since Thuy's death. The things that she does for the family is irreplaceable. She was a role model, someone I'll look up to every single day of my life. When me or my little brother need help we would always turn to her for help for anything weather it was with homework, school projects, or any other problems she would try to help out as best as she could, but now we have to do everything ourselves it's much harder for the both of us. ... I don't speak good Vietnamese, but my sister knew and understood what was good for me and my life. She had always done things for the family, put in money to pay the house rent, reading letters, filling in forms for certain things, if she had been here today, she would've gotten me a lot of job interviews and set a good future ahead of me and for the family. But at the moment I wouldn't know what to do or where to start of with. ... Every day I would fake a smile in the morning to make it normal and to see the family happy, but deep inside I know I'm missing one thing in my heart. At night my mum would cry herself to sleep knowing that she had lost a great daughter that she will never have again. ... Hopefully when I grow up I will grow up to be a women like her. What's done has been done and nothing could ever bring her back. ... I really miss her.

**77 The youngest brother, also made a victim impact statement to similar effect to that of his siblings.

78 I have set out these statements in detail not merely to demonstrate the senseless loss of life of the deceased but also to reflect the other side of the sentencing coin, namely that in the circumstances of this crime the law requires consideration of the devastating effect that the actions of the applicant have had upon the remaining members of the family.

79 Victim Impact Statements are a salutary reminder of the gravity of the offence. They illustrate, in detail, the real and lasting consequences of the subject offence.[26]

80 The learned sentencing judge was clearly alive to this issue.[27]

81 The learned sentencing judge was required to address a variety of sentencing considerations. These he did carefully and logically identifying all factors relevant to the imposition of the impugned sentence. His sentence, in my view, was not outside the range of sentences open to him in the exercise of his sentencing discretion.**

In my view there was no specific error on the part of the learned sentencing judge in relation to his asserted failure to give sufficient weight to any arguable diminution in the moral culpability of the applicant.
Nor am I persuaded that the impugned sentence is so manifestly excessive as to warrant appellate intervention.

**84 I should add, and it is - hopefully - apparent, that I am of the view that even if I am wrong in concluding that there was no error concerning the weight given by his Honour to the question of reduced moral culpability, I am not persuaded that a different sentence should be passed by this Court.

[1] Crimes Act 1958 (Vic), s 3, maximum penalty imprisonment for life.

[2] Crimes Act, s 16, maximum penalty 20 years' imprisonment.

[4] On 30 November 2007, Kellam JA referred the application to a court constituted by three judges.

[8] See, for instance, the observations of Nettle JA in R v Howell [2007] VSCA 119; (2007) 16 VR 349, 357 [24] and my recent comments in R v Dupuy [2008] VSCA 63, [34].

[9] R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 276, [32].

[10] [1983] VicRp 106; (1983) 2 VR 470, 472-473 (Brooking J).

[13] See, in addition to Kenney and Gardner, R v Abebe [2000] VSCA 148; (2000) 1 VR 429, 445, [53]-[55] (Charles JA), 446, [58] (Coldrey AJA); and, in other jurisdictions, R v Davies [1975] QB 691, R v Fricker (1986) 42 SASR 436, 445 (King CJ), 447- 49 (Zelling J), Jabarula v Poore & Bell [1989] NTSC 24; (1989) 68 NTR 26, Roche v The Queen [1988] WAR 278, 280 (Burt CJ) and Hart v The Queen [2003] WASCA 213, [41]-[46] (Steytler P), [161]-[162] (Pullin JA).

[14] It could not do have done so in law, and it was not argued to have had such an impact as a matter of fact.

[15] Putting aside the causal significance of the applicant's depression, which, for reasons explained, his Honour did not fully explore.

[16] Tyne v Tasmania [2005] TASSC 119.

[19] See also R v Wright; R v Gabriel [2008] VSCA 19 [46], Crimes Act 1958 s 568(4).

[20] The Verdins principles are set out by Ashley JA, [29].

[23] [2007] VSCA 119; (2007) 16 VR 349 [24], see also R v Parton [2007] VSCA 268 [9]-[15].

[25] Victim is defined by s 3 of the Sentencing Act as any person who has suffered injury, loss or damage (including grief, distress, trauma or another significant adverse effect) as a direct result of the offence.

[26] See R v Dupas [2000] VSC 356 [27].

[27] In addition there were consequences of the physical injuries to Luan and Phan which were to be considered in sentencing on the counts of intentionally causing serious injury.

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