Regina v Tran

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

1 HER HONOUR: On 8 September 1999 the prisoner, Son Thai Tran, was arraigned upon an indictment charging him with two counts: (i) the murder of Sanh Thi Nguyen at Yagoona on 21 April 1998 and (ii) the malicious wounding of Minh Trang Pham on the same date. He entered pleas of not guilty to both counts and a jury was duly empanelled. On 29 September 1999 the jury returned verdicts convicting the prisoner of manslaughter on the first count and of the offence charged in the second count. 2 At about 5 am on 21 April 1998 the prisoner broke into the home of his estranged wife, Minh Tran Pham, at unit 2/123 Dutton Street, Yagoona. He smashed the window to the main bedroom where his wife, mother-in-law and son were sleeping. At the time his mother-in-law, the deceased, was attempting to make contact with the police by telephone. The prisoner took hold of the telephone. The deceased ran from the room. Shortly thereafter the prisoner followed her into the hallway of the house and stabbed her repeatedly with a broken pair of scissors. During the course of the assault upon the deceased the prisoner's wife attempted to intervene. In the course of so doing she sustained a stab wound to the back of her left shoulder. The deceased managed to walk back to the main bedroom where she collapsed and died. 3 Following the stabbing the prisoner took his wife and young son into the bathroom adjacent to the main bedroom. He bound their wrists and ankles. He tied his wife to the toilet and placed the boy in the shower recess. The prisoner put his jacket over the boy's head to prevent him seeing the body of the deceased. After a little time the prisoner untied his wife and attempted to dress her wound. Thereafter he re-tied her wrists. 4 He remained in the house for about 12 hours following the killing. During this time he was in a state of considerable distress. He appears to have entertained thoughts of killing himself and possibly his wife. He wrote out a list of his possessions with a view to giving them to his son. 5 Ultimately, his wife suggested that she would tell the police that the family had been the victim of a home invasion; intruders had broken into the house and killed her mother. She suggested that the prisoner might obliterate the traces of his presence by wiping surfaces to remove fingerprints. He did this and in the late afternoon of 21 April he left the home. 6 The wife and son broke free of their restraints and sought assistance from neighbours. 7 The wife was admitted to Bankstown Hospital for treatment for her injuries. She initially gave the investigating police an account that three men had invaded the home and stabbed her mother. 8 On 23 April 1998 Mrs Pham supplied the police with a statement nominating her husband as the killer. The prisoner was arrested on that day and agreed to be interviewed by the police. In the course of that interview the prisoner denied knowledge of the killing of his mother-in-law and supplied an alibi. It is to be noted that the prisoner had made no attempt to persuade any person to support him in his alibi. It was easily disproved. 9 The deceased sustained twenty-five wounds to her body. Of these four were potentially lethal. 10 The prisoner had consumed a substantial quantity of full strength beer prior to attending at the Dutton Street premises in the early hours of the morning of 21 April. Intoxication as bearing on the formation of the intent for murder was left to the jury. Provocation and the partial defence of substantial impairment by abnormality of mind were also left. Mr Ierace SC, who appears for the prisoner, submits that I would sentence the prisoner upon the basis that his partial defence of substantial impairment was made out. The Crown agrees, having regard to the way the evidence unfolded, that this is the appropriate course. I consider it is. 11 Before turning to the medical evidence bearing on the prisoner's mental state at the time of the killing, it is appropriate to refer to the facts of this somewhat unusual case in a little more detail. 12 The prisoner was born in South Vietnam. He is aged 37 years. He was 14 years old when the government of North Vietnam came to power in South Vietnam. After he left school, in 1979, he was placed in a labour camp. He remained in that camp for more than five years. During this period of imprisonment he made an escape attempt. He was caught and placed in solitary confinement where he was kept for a number of months in a darkened room with his legs chained. 13 The prisoner was released from the labour camp around 1984 or 85. While he was at liberty he met and married his wife, Minh Tran Pham. She was then aged 19. Following his marriage the prisoner was re-arrested after an unsuccessful attempt to leave Vietnam. He spent a further year in custody on this occasion. His wife was pregnant with their child. 14 Following the prisoner's release from custody on this second occasion, he and his wife and child escaped from Vietnam on a refugee boat. They ultimately landed in Indonesia where they were detained in an immigration camp. The conditions were described as being very poor. The family remained in that camp for five years. At the end of that period they were repatriated to Vietnam. Mrs Pham gave evidence at the trial that she and the prisoner had formed a strong relationship through the hard years. 15 A year after the family returned to Vietnam they were sponsored to come to Australia by the prisoner's family. They arrived in Australia on 13 November 1996. Initially they lived in Melbourne with the prisoner's family. After about three months Mrs Pham and their son, Tu Tai Tran, left the prisoner and moved to Sydney. At the time of that move Mrs Pham had it in mind to separate from her husband. She and the child lived for a time with some relatives at Bonnyrigg. After ten days the prisoner joined them in Sydney. They reconciled and thereafter lived together as a family in Sydney. They moved to premises at 45 Harrington Street, Cabramatta. The prisoner obtained employment with Minh Diep Doan, a clothing manufacturer. He worked on a steam press ironing garments. Both the prisoner and his wife made up garments for Mr Doan at home on a piecework basis. They were a hard-working couple. 16 In late 1997 the prisoner and his wife arranged for her mother, the deceased, to come to Australia from Vietnam. 17 The deceased arrived in Australia around November 1997. She moved into the home at 45 Harrington Street, Cabramatta. 18 Mr Doan closed his factory for the Christmas holiday break. At this time the prisoner went to Melbourne to see his mother. While he was away a male boarder, Vanny So, moved into the Harrington Street premises. It is clear that Mr So's presence became a source of tension when the prisoner returned. It also appears that the deceased started, for whatever reason, to actively subvert the marriage. 19 There was evidence of a statement made to police by a woman named Hoang Hoa Pham who appears to have been on friendly terms with the deceased. On her account the deceased had complained that the prisoner did not buy her anything while the boarder, Vanny So, showered her with gifts. Ms Hoang Pham told the police, "The boarder openly took Trang and her mother out from time to time without any regard for Trang's husband". 20 About two months after the deceased arrived in Australia Mrs Pham separated from the prisoner. This was around February 1998. The prisoner moved out of home and stayed with a friend in Canley Vale. 21 Mrs Pham gave evidence that after the separation at night when her son and mother were in bed she would steal away from the home to meet her husband whom she still loved. Her husband would come to the Harrington Street house every day. On occasions he slept outside the home. She described the prisoner as repeatedly telling her that he loved her very much and was not able to live without her. Mrs Pham felt torn between her loyalty to her husband and her loyalty to her mother. She told her husband to stay where he was for the time being and that when her mother returned to Vietnam he could move into the home. In the course of giving evidence-in-chief Mrs Pham proclaimed, "My husband is the only man that I love". 22 It was Mrs Pham's evidence that on occasions when her husband would call to see her at the Harrington Street premises her mother would contact the police. The mother intercepted the prisoner's telephone calls to her. 23 On two occasions when the prisoner called to see his wife he was assaulted by the deceased. On one occasion she struck him with a hammer and on another occasion with the flat side of a meat cleaver. 24 At her mother's prompting Mrs Pham agreed to move from the Harrington Street premises. This appears to have been done with a view to breaking off contact with the prisoner. After they relocated to a townhouse in Dutton Street the deceased moved into the main bedroom with her daughter. Mrs Pham explained: "She moved to my bedroom and we stayed in one bedroom and I could not go out to meet my husband any more". 25 The deceased persuaded her daughter to apply for an apprehended violence order to prevent the prisoner calling to the home. Mrs Pham described her predicament in this way: "My mum told me to go to court to apply for the apprehended violence order so my husband would not be able to come to see me any more. I loved my mother but I also loved my husband and I was in the middle of two of them, but I loved my mother and I listened to her. Wherever she told me to go I would go." 26 On Friday, 17 April 1998 Mrs Pham obtained an apprehended violence order from the Local Court at Fairfield. After taking out the order, and before the mother's death a matter of days later, it appears that Mrs Pham again initiated contact with the prisoner. 27 Following the move to Dutton Street it also appears that Vanny So was a regular visitor. 28 On the night prior to the killing the prisoner went to the townhouse and stood outside. He overheard a telephone conversation between his wife and a friend. In that conversation he learned that his wife had been taken by Vanny So to Parramatta to file for a divorce. From things Mrs Pham said to her friend Mrs Nga in the course of that telephone call, the prisoner inferred that she had formed an intimate relationship with Vanny So. He left the premises and returned to the home of a friend where he consumed some alcohol. 29 There was a body of evidence tending to establish that in the period following his separation from his wife the prisoner had been depressed. In the past he had been a hard-working man interested in earning money. After the separation he became uninterested in work and his output at the factory dropped markedly. 30 I accept that the prisoner loved his wife and child and was devastated by the loss of them. 31 In the period immediately prior to the killing the prisoner had been living at Mr Doan's house. In early April Mr Doan left to return to Vietnam in order to marry. This left the prisoner even more isolated and conscious of his loss. 32 The prisoner described his response to hearing his wife's telephone conversation with Mrs Nga in this way: "I just felt that I fell off from the sky to a very deep pit. I was agonising." 33 After consuming more alcohol at the home of his friend Mr Lee and elsewhere the prisoner returned to the Dutton Street premises in the early hours of the morning of Tuesday, 21 April 1998. The prisoner gained entry to the garage of the premises. It was his evidence, which I accept, that he tapped on the internal wall between the garage and the main bedroom in the hope of waking his wife. He wanted to talk to her before he either left Sydney and returned to his family in Melbourne or killed himself. I accept that was his reason for returning to the Dutton Street premises. 34 The Crown advanced its case upon the basis that the prisoner had become enraged with the deceased and that he went to the Dutton Street premises that morning carrying the broken pair of scissors in order to kill her. I do not accept that view of the facts as established beyond reasonable doubt. Indeed, I do not consider it a probable view of the facts. It was clear that whilst in the garage of the premises the prisoner had free access through an open interconnecting door to the premises. The evidence showed that the deceased got up while the prisoner was in the garage and that he, having been disturbed, left the premises. The deceased was suspicious that someone was outside the premises. She picked up the phone by the window of the main bedroom to make contact with the police. It was at this time, when I accept that the prisoner had resolved to leave the premises, that he broke through the window and grabbed the phone from his mother-in-law. 35 Thereafter it was the prisoner's account that he ran into the hallway of the house in an attempt to persuade the mother-in-law not to raise the alarm. He was in breach of the apprehended violence order by his presence at the premises and knew that he would be in trouble if the police were called. He said that in the darkened hallway of the home the deceased had struck him with something which he subsequently realised to be the broken pair of scissors. He had taken hold of the scissors and did not remember the killing. 36 Medical evidence, both called in the defence and the Crown case, was to the effect that people involved in highly emotional and violent incidents of this type not uncommonly suffer amnesia for some or all of the incident. I accept, on balance, that the prisoner does not recall the detail of the killing. 37 As I have already indicated, I do not find that the prisoner came to the premises armed with the pair of broken scissors. 38 A week after the killing Mrs Pham disposed of a broken set of scissors which was recovered from the garbage bin by police. She was examined about this in some detail at the trial although it was not suggested that this was the weapon used to kill the deceased. I found her answers perplexing and I did not consider she was being completely frank in this portion of her evidence. When questioned about the instances involving her mother's assaults upon the prisoner both with the hammer and the meat clever, Mrs Pham's evidence was also somewhat unconvincing. In each instance she seemed to me to be concerned, as best she could, to protect her mother's memory. 39 Mr Ierace invites me to find as a fact for the purpose of sentence that the deceased was the one armed with the broken scissor and that she struck him with it precipitating the attack. This was the accused's account in his evidence. It was not consistent with his wife's version of the fatal attack. I have not found it easy to determine this factual issue. Mrs Pham was tested at some length at trial as to whether she had been present in the hall throughout the incident. She was emphatic that she had been. On her account, although she had not seen the scissors until the three of them were back in the bedroom, she saw nothing to suggest that it was the mother who had first struck the prisoner. However, as I have indicated, I consider that Mrs Pham may be at pains to show respect for her mother's memory. I have regard to the fact that on two previous occasions the deceased had attacked the prisoner with a weapon when he came to the house. On balance I accept that it was she who first took up the scissors on this occasion. 40 Dr Lucas gave evidence that the prisoner was suffering from a major depressive episode of considerable severity at the time of the killing. He described the events preceding the killing as major psychosocial stressors. 41 Dr Carne gave evidence that the prisoner's depression, growing out of his belief that his wife was having an affair with another man and that his mother-in-law was conspiring in the breakdown of his marriage, led him to become profoundly depressed. 42 Dr Wong, who was called by the Crown in a case in reply, was of the view that there were undoubtedly stressful life circumstances prior to the killing which were capable of resulting in a severe depression. The prisoner's account given to him, and to the other psychiatrists who interviewed him, described symptoms indicative of a severe depression. Dr Wong was not disposed to accept that the prisoner's account of his symptoms was reliable. To my mind the evidence of the prisoner's wife, Mr Doan and others was strongly supportive of the prisoner's account of his symptoms. Once one accepted the reliability of the prisoner's account in this regard I did not consider Dr Wong to be greatly at odds with either Dr Carne or Dr Lucas. 43 As I have already indicated I approach the matter of sentence upon an acceptance that the prisoner's culpability was reduced to manslaughter by reason of his substantial impairment arising out of his mental condition. In a case where a verdict of manslaughter is returned on the ground of substantial impairment (formerly the partial defence of diminished responsibility) it will frequently be appropriate for the court to have regard to the risk that the prisoner's mental abnormality may lead him to kill again. In such cases considerations of the protection of society will be to the fore in the exercise of the sentencing discretion: Veen v The Queen (No 2) (1988) 164 CLR 465 at 476-477. The Crown supplied me with a schedule setting out details of a number of sentences imposed on persons convicted of manslaughter on the basis of diminished responsibility in the period 1991 to 1995. In the majority of the cases set out in that schedule real concerns were raised as to the protection of society. That is not a consideration which to my mind is raised by the evidence in this case. 44 The prisoner was subject to a remarkable combination of stressors in the period leading up to the killing. I do not find the evidence of any of the psychiatrists who were called at the trial to support a view that the prisoner's mental condition is such as to carry with it an appreciable risk that he would offend again in the future. 45 The prisoner is a person of good character. He has had a sad and difficult life. He maintained a stable relationship with his wife until shortly before the tragic event. He appears to be a loving father who sincerely cares for his son. Minh Trang Pham gave evidence at the sentence hearing. Following the death of her mother she had proceeded with her application for a divorce. It should be noted that the application was commenced at the mother's prompting prior to the killing. Mrs Pham has visited the prisoner during the trial. She has taken her son to see him. He has been in custody since his arrest on 23 April 1998. It is Mrs Pham's evidence that she will continue to see the prisoner following his release. 46 I consider the prisoner has good prospects of rehabilitation. While in custody he has undertaken adult education, successfully completing a reading and writing course. At the time of his incarceration his English was very limited. He is presently working at the Metropolitan Remand and Reception Centre in Cortex 1 (Textile Industries). He has been made what is described as an essential worker due to the competence he demonstrated as a quality control supervisor. He is currently undertaking an after-hours textile course in clothing production. He is performing to the satisfaction of his teachers. Generally he is described by the Manager of Employment and Centre Services for the Metropolitan Remand and Reception Centre as "an excellent worker who performs his duties well". 47 In the light of Mrs Pham's evidence to which I have made reference I think the likelihood is that the prisoner will ultimately resume his family life upon release. However, this will not be an easy transition given all that has happened. 48 I accept that the killing of the deceased occurred at a time when, by reason of his major depressive condition, the prisoner's ability to control himself was substantially impaired. I accept that he has no recollection of the frenzied attack himself. I accept that he has suffered real remorse. During the course of the trial the prisoner broke down both when his wife was describing the killing and in the course of his own evidence of the events leading up to it. His distress was evident. 49 The prisoner has mounted a powerful subjective case. It is appropriate that I mitigate the sentence to take account of these matters. 50 In the light of the acceptance that the prisoner's culpability for this crime was significantly reduced by reason of his mental condition Mr Ierace submitted that I would place relatively little emphasis on considerations of general deterrence: Regina v Anderson [1981] VR 155. In Regina v Letteri (unreported, NSW CCA, 18 March 1992) the authorities were summarised thus: "The principle then is clear enough. It is correctly stated as follows - that whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap. In an extreme case, the proper application of this principle may produce the result that considerations of general deterrence are totally outweighed by other factors. In every case it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise." 51 I accept in the light of the evidence of the prisoner's impairment flowing from the major depressive episode that general deterrence should not have the weight which would otherwise be called for. 52 The sentence must nonetheless reflect that the unlawful take of a human life is always viewed as a serious matter: Regina v Macdonald (unreported, NSW CCA, 12 December 1995). 53 The malicious wounding of Minh Trang Pham was occasioned in the course of the attack upon the deceased. It is appropriate that the sentence that I impose in relation to that matter be concurrent with the sentence in respect of the manslaughter. 54 The prisoner had not lived for long in this country at the time of the commission of this offence. He had relatively few social supports available to him. He has suffered from major depression while in custody and entertained thoughts of suicide. Although he has made commendable efforts while in custody in terms of both education and employment, I consider that his readjustment into society at the completion of the custodial portion of his sentence may be difficult and that he will benefit from supervision for a relatively lengthy period. These considerations in my view constitute special circumstances within the meaning of s 5(2) of the Sentencing Act 1989 and make it appropriate that I impose an additional term that exceeds one-third of the minimum term. 55 The pressures to which the prisoner was subject in the weeks prior to the killing while he was in the throes of depression were remarkable and have led me to the view that the sentences in respect of both matters should reflect a substantial measure of leniency. 56 In sentencing the prisoner in respect of the charge of manslaughter I am asked to take into account the offence of contravening the apprehended violence order which was imposed by the Fairfield Court on 17 April 1998 and breached by the prisoner attending at the Dutton Street premises on 19 April 1998. This offence is recorded on a Form 1 pursuant to s 21 of the Criminal Procedure Act 1986. I take this matter into account. In the light of the wife's evidence that she procured the issue of the order to appease her mother while continuing herself to seek out her husband, I do not propose attaching the weight to this offence that the breach of a protective court order would ordinarily attract. 57 Son Thai Tran, in relation to the conviction for manslaughter of Sanh Thi Nguyen I sentence you to a minimum term of three years and six months penal servitude to commence on 23 April 1998 and to expire on 22 October 2001. I specify an additional term of two years and six months to commence on 23 October 2001 and to expire on 22 April 2004. 58 In relation to the conviction upon the charge of malicious wounding I sentence you to a fixed term of imprisonment of twelve months backdated to 23 April 1998. Accordingly, that sentence expired on 22 April 1999.

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