R v Xe Van Pham [2005] VSCA 57

6. The following description of the background and circumstances relating to the commission of the appellant's offences has been prepared from the summary of evidence, with which the Court has been provided, and the remarks of the learned sentencing judge when handing down sentence upon him.

9. The appellant met his two victims, Thu Thi Tran and her four year old son, Simon Tran, in February 2001, when he moved into their home in Springvale as a boarder. Within a matter of weeks Thu Tran and the appellant developed what is described in the material as a "close relationship". However, about two months later, Thu Tran effectively withdrew from it and the appellant moved out of the house. Nevertheless, they maintained an association and he continued to visit her over the next 18 months.

12. During that period, the appellant married Thu Tran's sister, Chi Tran, in Vietnam. She then came to Australia in October 2002. For some reason, but presumably after they had compared their respective experiences with him, the two women formed the view that the appellant had acted deceitfully in his relationships with them and shortly afterwards made it clear that they wanted nothing to do with him. The appellant refused to accept this situation and commenced to harass the two women in a number of ways.

15. In January 2003, and as a consequence of the harassment, Thu Tran obtained an intervention order covering herself and her two children. Under the terms of the order the appellant was prohibited from approaching, telephoning or contacting any of them save in the company of a police officer, or to come knowingly within 100 metres of any premises in which they might be living or working except under the same condition. It appears, however, that the appellant paid little or no regard to this order as the harassment continued up to the time of the commission of the offences on 10 April 2003.

18. On that day, Thu Tran had living in her home as a border a young woman named Tram Nguyen. It was the practice of Tram Nguyen to warm her car engine before driving to work at about 6.15 a.m., and she had left the house to do so on this morning. As she was about to re-enter the house, the appellant approached her and told her that he wanted to talk with Thu Tran. Tram Nguyen was aware of the intervention order and attempted to prevent him from entering, but he pushed her to one side and went into the house and into the bedroom in which Thu Tran had been sleeping with her two children, Simon who was aged six years, and Tina who was two years' old. He told Thu Tran that he wanted to talk to her. She requested him to leave. When this request was repeated the appellant became angry and took a knife from his pocket. He attacked Thu Tran savagely and stabbed her approximately eight times in her face, mouth, chest and neck. Simon Tran saw what was happening and bravely ran to protect his mother, raising his arm to shield her. The appellant struck him on the arm with his knife, cutting through to the bone. He struck the boy again. In all, he inflicted three cuts, almost severing the child's hand and leaving him with a severe disability that he will carry for the rest of his life.

21. Whether the appellant deliberately struck at the young boy or the injuries were sustained as he endeavoured to stab Thu Tran was in issue at the trial. Accordingly, the jury was provided with appropriate instructions in relation to each of these possibilities. Specifically, they were directed that if the appellant unintentionally caused serious injury to Simon Tran in the course of an attack upon his mother perpetrated with the intention of causing serious injury to her, then the appellant could be convicted of intentionally causing injury to the child through the application of the principle of transferred malice. Of course, the jury was also instructed that if they found that the appellant had deliberately stabbed Simon with a reckless intention, then the mental element of the offence would be satisfied.

24. Although, in argument before us, the contention was advanced that the learned sentencing judge was obliged to impose sentence on the foundation that the appellant did not deliberately stab the child, as the inference of deliberate infliction was not open on the evidence before him, there has been no application for leave to appeal against conviction, nor do any of the grounds set out in the appellant's Notice of Grounds of Appeal against sentence raise this issue. I will return to this aspect.

27. The appellant then left the house taking the knife with him. He subsequently threw it into a rubbish bin near his home. When interviewed by the police, he was cooperative to a limited extent, but as the sentencing judge found -

"gave them a story with a lot of lies and a lot of spin. ...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 a villain, that she set you up, that you had no knife, that you had not even seen Simon, et cetera, et cetera".[1]

31. After hearing a plea in mitigation of penalty, the learned sentencing judge imposed, on 6 August 2004, a sentence of imprisonment of seven years on each count directing that four years of that imposed on count 4 be served concurrently with the sentence imposed on count 3. This created an effective sentence of ten years' imprisonment in respect of which a non-parole period of seven years was fixed.

34. His Honour further declared that the appellant had been sentenced on count 4 as a serious violent offender and directed that this be noted in the records of the Court.

38. The notice containing the appellant's complaints as initially lodged set out four grounds. These were subsequently expanded to five in a document headed "Full Statement of Grounds" filed on 24 December 2004. However, at the commencement of the hearing, counsel for the appellant effectively condensed them to a single contention, namely, that the sentencing discretion had miscarried in this case as the judge was required to sentence the appellant on the basis that the verdict on count 4 rested not upon a finding by the jury of the deliberate infliction of serious injury to the victim but upon their application of the instructions of the trial judge concerning the concept of transferred malice. Counsel asserted that this distinction was important as the intentional causing of harm to a child trying to protect his mother would almost inevitably be regarded as deserving of greater punishment than the production of non-intentional harm where the malice was still directed against a person who might be described as the primary victim. Accepting that the individual sentences handed down for each offence fell within the range of those available to a sentencing judge in the circumstances, counsel argued that the major consequence of the imposition of a sentence on count 4, resting upon a finding of guilt by way of transferred malice, is that a far greater degree of concurrency than that directed by the sentencing judge was required.

41. As I indicated in the course of discussion, there are, in my opinion, a number of obstacles lying in the path of the acceptance of this reasoning.

44. First, it involves the assertion that the learned sentencing judge did impose a sentence on the basis that the appellant deliberately stabbed the victim of count 4. I consider that this was highly unlikely for more than one reason. The sentence on count 4 does not suggest that that was the case. To stab deliberately and repeatedly, with the intention of causing serious physical injury, a small child who bravely interposed himself between a knife-wielding attacker and his mother in order to protect her would be to engage in truly reprehensible conduct of itself requiring the imposition of condign punishment. When that attack was carried out with sufficient savagery that the child's hand was almost severed and he was left permanently disabled, it would be difficult, in my opinion, to envisage circumstances in which a sentence of the order imposed here would be regarded as other than manifestly inadequate. The sentencing judge in this case has immense experience in such matters and is unlikely to have erred in this fashion.

47. Next, the interpretation of the jury verdict was the subject of submissions by counsel in the course of the plea. His Honour was clearly mindful of the need to sentence consistently with the jury verdicts as he stated at the outset of his remarks:

"[M]y 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."[2]

"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".[3]

The absence of any specific reference to the deliberate infliction of injury upon Simon Tran is certainly strongly suggestive that his Honour did not sentence on that foundation. In view of the jury verdicts in this matter, I am by no means persuaded that his Honour would not have, in any event, been entitled, consistent with those verdicts, to have sentenced on the basis of the deliberate infliction of injury upon Simon Tran.

56. Whilst, as I have indicated, in the particular circumstances of this case the attribution of criminal responsibility to the appellant on the basis of the deliberate infliction of injury upon Simon Tran could be seen to attract a higher level of culpability than the attribution of responsibility by way of the application of the principle of transferred malice, that is a finding which I consider must be confined to the particular situation, and it would not necessarily always be the case. There is no need to pursue this aspect as, whichever of the two bases available provided the foundation for the sentence imposed on Count 4, in neither case could the sentence be described as manifestly excessive, and on one view of the matter it might be regarded as unduly lenient. Nor, in my view, is there any substance in the central contention, advanced on behalf of the appellant, namely, that the sentencing judge should have directed a greater degree of concurrency in the service of the sentences imposed.

59. In this context it must be borne in mind that as the appellant was sentenced on count 4 as a serious violent offender, the provisions of the Sentencing Act were applicable in his case and the ordinary result would have been that the two sentences were to be served consecutively. However, his Honour, who was mindful of the effect of those provisions, concluded that there was no need in the assessment of appropriate sentences for the separate offences or in the determination of a proper total effective sentence and non-parole period to give other than full effect to the principles of proportionality and totality.

62. I have been unable to detect any error on this aspect, either in his sentencing remarks or which could be inferred from the sentences themselves, including the total effective sentence and the non-parole period imposed.

65. Whether the sentence imposed on count 4 was based upon a finding of fact by his Honour that the appellant deliberately stabbed the victim, or on the foundation that criminal responsibility for the injury sustained arose by way of transferred malice, the proper exercise of sentencing discretion in this case required an order that effectively cumulated part of the sentence imposed on that count upon the sentence imposed on count 3. This was necessary in order to reflect the seriousness of the two separate offences and the particular aggravating features attaching to each, some of which were common and others not.

68. As his Honour stated, he was required to sentence the appellant "for very serious examples of very serious offences". He continued -

"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".[4]

I would add, as a matter of emphasis, although his Honour specifically adverted to this feature when considering the seriousness of the appellant's conduct and the degree of criminality involved, it is particularly significant that the appellant acted in the flagrant breach of an intervention order that Thu Tran had obtained in order to protect herself and her children against the very kind of behaviour in which the appellant engaged on this occasion. She had availed herself of a process designed by parliament to provide the protection of the law to vulnerable individuals, usually, as in this case, women and children, who legitimately fear for their safety. Offenders who disregard such orders and occasion injury to persons whose personal security is intended to be guaranteed through this means must anticipate that an extremely stern view will be adopted by the courts of their conduct and, save in the most unusual circumstances, will be subject to condign punishment. This is not to disregard the emotional stress under which the offender may have acted, but to recognise the danger of violence inherent in such situations.

73. In this context it is also important to have regard to his Honour's findings concerning the effects on the victims in this case due to the appellant's behaviour. They were expressed in his remarks in the passage:

"For a moment I focus on Thu Tran and Simon Tran. I have deeply troubling evidence of the pain and 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."[5]

78. When regard is had to the circumstances surrounding the commission of this offence, the actions undertaken by the appellant, the consequences which in fact have flowed, and the principles which are applicable by this Court to such circumstances, the degree of concurrency directed by his Honour was, in my opinion, clearly within the range of dispositions available in the proper exercise of sentencing discretion.

89. I, likewise, agree and in particular I agree with what the learned presiding judge has said as to the protective significance of intervention orders and as to the exacerbating sentencing significance of breaches of intervention orders.

93. The order of the Court is that this appeal stands dismissed.