R v Xe Van Pham [2004] VSC 271

Supreme Court of Victoria|2004-08-06|Before: TEAGUE J

Criminal Law - Sentencing - 2 Counts of Intentionally causing serious injury - Stabbing in anger of former partner and her 6 year-old son - Effective sentence of 10 years - Non-parole period of 7 years.

Xe Van Pham, in what follows, I will use the Australian rather than the Vietnamese order of names. You have been found guilty by a jury of two offences, both of intentionally causing serious injury. The offences arose out of your having stabbed two victims at Springvale South on 10 April 2003. The victims were Thu Tran and Simon Tran.

Before I state my findings as to the events of that day, and as to the events of preceding months, I would note that my findings must reflect the evidence which justified the two guilty verdicts. They must also reflect the jury verdicts of not guilty of attempted murder and burglary. My findings will also reflect my taking an adverse view as to your credibility. I have considered the accounts given by you to the police and to Dr Jager and to Mr Joblin, to whom I will later refer. In many respects those accounts differ from the accounts given on oath before me by Thu Tran and Simon Tran. In almost every respect where they differ, I have preferred their account to yours. I was more than satisfied as to their credibility. In other respects your accounts differ from evidence available from other sources. Your accounts include many inconsistencies, implausible propositions and self-serving claims. There were also significant omissions.

In February 2001, Thu Tran was living with her two children in the Springvale house that she had bought, taking out a mortgage. The two children were Simon, born in January 1997, and Tina, born in January 1999. To help meet the mortgage payments, she advertised for a boarder. You answered the advertisement. When Thu Tran said that she was willing to accept you, you moved in with your daughter, Joanne. In the ensuing weeks a close relationship developed between you and Thu Tran. You would have preferred that that close relationship continue. However, about two months after you moved in, Thu Tran, while remaining friendly, chose to distance herself from you. Although you moved out, you continued to visit her over the next 18 months.

During that 18 months, you made two visits to Vietnam. In Vietnam, you married Thu Tran's sister Chi Tran. There are marked differences in the accounts before me, even in your own accounts, as to how that came about. I need not go into the differences. I am well satisfied that there was a level of deceit on your part. In October 2002, Chi Tran came to Australia. She and Thu Tran then became more fully aware of your deceit. In the ensuing six months, they made it clear that they wanted to distance themselves from you. But you were not willing to do as they preferred. You harassed them in a number of ways. In January 2003, Thu Tran obtained a Court order, an intervention order against you. You knew well that you were forbidden by the court to come near her. You chose to ignore that order. Up until 10 April 2003, you continued to harass her.

On 10 April 2003, Thu Tran had as a boarder in her house a young woman named Tram Nguyen. Tram Nguyen left for work each week morning at around 6.15 a.m. It was a time when Thu Tran and her two children were still sleeping. Tram Nguyen had a routine, which included warming her car's engine before she left. On the morning of 10 April, you drove to the home of Thu Tran. You had in your track suit pocket a knife. Your plan was not then to use it. But you were a man accustomed to using knives, and you had one on hand. You waited until Tram Nguyen went out to warm the engine of her car. As Tram Nguyen went to re-enter the house, you came up to her at the front door. You said to her that you wanted to talk with Thu Tran. Tram Nguyen knew of the intervention order against you. She tried to prevent you entering. You pushed her to one side and went into the house.

You went to the bedroom of Thu Tran, where she had been sleeping with her two children. She was awakened by your exchange with Tram Nguyen. You told her that you wanted to talk with her. She told you that she did not want to talk with you. She asked you to leave. She and you walked towards the front door. Simon Tran came to the bedroom door and watched the two of you. Thu Tran again told you to leave. You became angry towards her. You pulled the knife from your pocket. You attacked her with the knife in your hand. You stabbed her repeatedly. You struck her eight times or thereabouts.

Simon Tran saw the attack and the knife. He screamed at you. He ran to protect his mother. He raised his arm to shield her. You struck him on the arm with your knife. You cut his arm to the bone. You struck him again. In all, you inflicted three cuts. His hand was nearly severed. Simon Tran showed extraordinary bravery in the face of your vicious attack. It is not often that a six year old can be seen to have saved the life of his mother. He deserves the highest commendation for his bravery.

You ceased your attack on Thu Tran and Simon Tran. You backed off. You left the house, taking your knife with you. You got into your car. You drove off. You thought only of yourself. You made no call for an ambulance. You threw the knife into a rubbish bin near your home. You took off your bloodied clothes. You left in your car for the other side of Melbourne. When the police caught up with you, you did not resist. Indeed, you co-operated with the police. But you gave them a story with a lot of lies and a lot of spin. The same sort of spin is apparent in the accounts later given to Dr Jager and Mr Joblin. The spin was calculated to portray events as if you were the main victim of events. I am repeating myself when I say that you made many claims that I do not accept. Claims that Thu Tran was the villain, that she set you up, that you had no knife, that you had not even seen Simon, etc., etc.

For a moment I focus on Thu Tran and Simon Tran. I have deeply troubling evidence of the pain and the damage and the loss suffered by them as a result of your actions. I note that Tina Tran has also suffered by the events and their aftermath. But her troubles are minor compared with those of her mother and brother. I have read carefully the recent statutory declaration made by Thu Tran and the reports of Dr Wong. Dr Wong has been counselling her and the two children. Thu Tran has had to relocate the family. She has had to sell her Springvale house. New schools have had to be found for the children. You have left Thu Tran and Simon Tran with physical scars and impairment. Their mental scars you have left them with may be as bad as the physical. They have trouble getting to sleep, with nightmares, and in other ways. Thu Tran has a profound sense of her own guilt as to Simon. She blames herself for choosing to associate with you. Her guilt is reinforced by every sighting of his arm. Despite many hours of microsurgery, Simon Tran has suffered a great loss of the use of the arm.

I am prepared to allow for there being some indications of some remorse on your part. Through your lawyers, you offered to plead guilty to the offence as to Thu Tran as to which you were found guilty and as to a lesser offence as to Simon Tran. I am troubled as to the extent of the real remorse. It is not just how you acted earlier on, in not ringing for an ambulance, and in disposing of the knife, and in making yourself scarce, and in slanting your account to the police. It is also that, on the eve of your trial, you acted in a way that suggested that your real concern was overwhelmingly for yourself. You made several calls to a sister of yours in the United States of America. You urged her, and explained how, to arrange for pressure to be applied to Thu Tran not to give evidence against you.

I turn to your background. I have read carefully the reports of Mr Joblin, the psychologist who interviewed you in July 2003, and Dr Jager, the psychiatrist who interviewed you in June 2004. Those reports contain details that I have noted and will but briefly summarise. You were born in September 1962 in Da Nang in Vietnam. After the traumatic events there in 1975, there was a major upheaval in your life given that your father was a soldier in the South Vietnamese Army. His property was forfeited. He was sent to a re-education camp. Your education was curtailed. You were sent out to work. You came to Melbourne about ten years ago via Hong Kong, the Philippines and Adelaide. The nearly twenty years in between were unsettled to say the least. You have married three times, in 1990, 1996 and 2002. The third marriage was that to Chi Tran to which I have referred earlier. Your only child, Joanne, by your first wife, now lives with her mother in Hawaii, and corresponds with you. Although your accounts are somewhat inconsistent as to the detail, it appears that both the second and third marriages were sham or contrived. For many years, you have worked at chicken and fish filleting. That is the kind of job that involves the use of knives.

You have prior convictions in the year 2000. Two are for trafficking heroin, the third for an allied offence. The sentence imposed suggests that the offences were not at the higher levels. I accept only guardedly the portrayal of the background to those convictions given by you to Dr Jager and Mr Joblin. You have no conviction for violence. But I do not proceed upon the basis that this was the first occasion of your showing violence in a domestic setting.

I allow for a number of matters in mitigation. Your background was hardly conducive to a settled lifestyle. In April 2003, you did co-operate with the police. Later, you did offer to plead guilty. Commendably, you have done courses in prison, indicative of a desire for rehabilitation. You will find a prison sentence more onerous for a number of reasons. You are not likely to see personally your daughter until she is a mature woman. I do accept that you have shown yourself to be a loving and beloved father to her.

I must sentence you for very serious examples of very serious offences. You used a knife, a weapon that your work made you accustomed to wield. You used it many times. You used it on two vulnerable people, unable to protect themselves save with their arms. They were in their own home. You entered that home by a devious stratagem and in breach of a Court order.

As is conceded that I must do, I declare that you are a serious violent offender. I direct that that status be entered in the court records. I nonetheless propose to apply the principles of proportionality and totality. On each of the two offences I impose a sentence of imprisonment of 7 years. Four years of the sentence on the second are to be served concurrently, and three years cumulatively, on the sentence on the first. The effective sentence is 10 years. I fix a non-parole period of 7 years. I declare the period of pre-sentence detention to be 485 days. I direct that that be entered in the court records.

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