The Queen v Phan [2019] VSC 153

2 The maximum penalty for manslaughter is 20 years' imprisonment.

3 The Salvation Army operates the Flagstaff Crisis Accommodation Centre in West Melbourne. The Centre never closes and supplies accommodation, meals and welfare supports, including district nursing, GP visits, a homeless outreach psychiatric service and a disability homeless outreach service, for 64 men.[1]

4 In February 2018, you and Rodney Ballis were two of those men. You had each faced significant hardship in your life.

5 Mr Ballis endured the death of his two children, one from sudden infant death syndrome aged three months, and the other stillborn at six months' gestation. His drug use had led to estrangement from his family, particularly after his mother's death in 2003. At the time of his death, aged 43 years, he had last met his sisters five years earlier.

6 You, also aged 43 years at the time of your offending, had arrived in Australia as a refugee when four years old. Your family was fractured, but your real hardship has been your schizophrenia. Like Mr Ballis, you had turned to illicit drug use. You, too, were largely estranged from your family.

7 The value of the services offered by the Salvation Army to the vulnerable in our society cannot be overstated.

8 In the very early hours of 16 February 2018 you were in North Melbourne with a friend, using cannabis and, unsuccessfully, searching for more. You returned to the Flagstaff Crisis Accommodation Centre and met an associate, to whom you had earlier agreed to sell cannabis. She observed you to be belligerent and unlike yourself.

9 Your presentation was perhaps unsurprising given that you had, about a week prior to the offence, totally ceased taking your anti-psychotic medication.[2] At the same you continued to take a variety of illicit drugs, including 'ice' or methylamphetamine on a daily basis. You later told Dr Anthony Cidoni, who prepared two psychiatric reports on your behalf, that you had taken both cannabis and about 0.2 to 0.3 grams of methylamphetamine on 16 February 2018, and that you had last used heroin three days prior to that.

10 Meanwhile, Mr Ballis had spent the early hours of 16 February with his friend, Mr Roper, also a resident of the Flagstaff Centre, and a man dependent upon a wheelchair for mobility. Given the demeanour of Mr Ballis at that time, Mr Roper suspected that he may have taken methylamphetamine.

11 Shortly before 7.00am you, having not slept, entered the communal dining room, prepared breakfast and sat at one of the round tables. You were close to the kitchen bench of breakfast items with your back towards that bench. This, and what subsequently happened in the dining room, was captured by CCTV footage, which I have watched.

12 Shortly after you sat down, Mr Ballis and Mr Roper, the former pushing the latter's wheelchair, came in and went to the kitchen bench. As they prepared breakfast, another resident came in and also attended to the food items. You remained sitting with your back to the others.

13 Mr Ballis prepared a bowl of cereal and milk. As he carried it behind you towards another table, some of the contents were spilt. Mr Ballis began to wipe the floor. Another resident, Mr Martin, entered the room. As Mr Ballis continued to clean the floor, you turned in your chair and a short verbal exchange occurred between you. You threw some of the contents of your own bowl towards Mr Ballis and Mr Martin.[3] Mr Ballis returned his attention to the floor. You then had a verbal exchange with Mr Martin. You picked up your own breakfast bowl and walked towards the exit. Mr Martin followed you. You paused briefly at the door and the exchange continued before you left the room.

14 Mr Martin returned to the kitchen bench and he and Mr Ballis spoke to each other. Mr Ballis can be seen shrugging his shoulders. Mr Martin left the dining room. Mr Ballis finished cleaning the floor and then sat at a table with Mr Roper and another resident. Shortly thereafter Mr Ballis pushed Mr Roper's wheelchair from the room. Mr Roper carried the breakfast dishes. They went to the communal courtyard, where they sat together.

15 In the interim you had returned to your room, where you remained for about 12 minutes. When you emerged, you were carrying a knife about 30cm in length and a metal rod about 40cm in length, described as a 'lightsaber' you had made.

16 Your movements after you had armed yourself and left your room are captured by the CCTV footage. You went first into the dining room. You appeared to be ranting and brandishing your weapons. You then walked several times through the courtyard in the same manner. You appeared very agitated and walked in a very odd manner.

17 That impression is fortified by a recording made by you on your mobile phone at this time. That recording lasts six minutes and 34 seconds. It begins with you apparently speaking to yourself as you walk about the Flagstaff Centre. You said:

I'll see who ... I wanna see where this cunt is, I will find out where he is ... today is a fuckin' happy day, if I don't kill this cunt, then fuckin' ... threaten to bash me, to kill me, I'm ... fuckin' ... I'm gunna kill this cunt ...

Where's that cunt? Where is he? Where's that cunt with the where's the fuckin' fuckin' proud, loud mouth cunt don't worry about this one I'm not gunna fuckin' stop, just call the police, 'cause this cunt's going to die, where the cunt with the orange? This is not my knife, where the cunt with the orange shirt? Where is he?

18 It is accepted between the parties, and is clear from the CCTV footage, that Mr Ballis had not been wearing an orange shirt. Rather, Mr Martin had been wearing a tee-shirt with a small orange motif on the breast.

19 At that point in the recording, a male voice can be heard advising you not to make trouble. You continued to move while saying:

No, no, where is that cunt with the orange shirt? He doesn't wanna believe. I'll I'm gunna fuckin' kill him. I'm gunna stab him to death and he threatened to kill my family ... where is he? Today - I - I it's my knife, don't worry man, just - where is he?

20 At about that time you came upon Mr Ballis, who was standing by a table in the courtyard with Mr Roper. Another resident was also seated at the table. You approached Mr Ballis from behind with both the knife and the metal rod in your hands and threatened him. You then squared off against each other. You adopted a pose reminiscent of a fencer, pointing the knife towards Mr Ballis and shuffling towards him. Mr Ballis defended himself by executing what have been termed 'roundhouse' kicks. That caused you to move backwards, but you continued to threaten Mr Ballis with the weapons. You then fell on your back into a garden bed.

21 What happened next is not visible on the CCTV footage, but Mr Ballis leaned over you and, as you started to get up, you stabbed him to the abdomen. The recording from your mobile phone reveals the sound of scuffling and an intermittent verbal interaction between you. Mr Ballis can then be heard gasping. You then said 'you fuckin' cunt, I told you. I knew it, and you go and bleed to death ... ha ha ha ...'.

22 Mr Ballis can then be heard asking 'what the fuck happened?' You said 'hey ... is he it's self-defence do you understand? ... he won't die ... fuckin'.

23 Mr Ballis, experiencing significant blood loss, walked to the foyer of the Flagstaff Centre. There he was attended to and comforted by Salvation Army staff prior to the arrival of police and paramedics. By the time they did arrive, Mr Ballis was lying inert on the floor. He was taken to the Royal Melbourne Hospital and declared dead at 8.16am.

24 Meanwhile you again returned to your room. You sent the recording that you had just made on your mobile phone to 15 of your Facebook friends via Facebook Messenger. You then sent the following text message to 20 recipients in your phone contacts list: "I will be going away after they all racist gang up on me and I had to defend myself".

25 Next, over the following half hour, you made three further, separate recordings on your mobile phone. Your statements in those recordings are disjointed and range over topics such as murder, being arrested by the Special Operations Group, racism, various conspiracy theories, the management of the Flagstaff Centre, the Chinese New Year, multiculturalism, your childhood, and the Prime Minister.

26 Police officers from the Critical Incident Response Team co-ordinated an arrest plan. After negotiation, you exited your room and threw your mobile phone to the floor. The metal rod and the knife sharpener matching the knife used by you were found in your room.

27 When arrested and taken into custody you presented in an agitated manner, muttering to yourself.

28 I have received and considered victim impact statements from the two sisters of Mr Ballis.

29 Ms Sheryl Ballis speaks of the contraction of her life to a routine of work and home. Her sadness at her brother's death has made her retreat socially. She has trouble with becoming emotional at work and is haunted by the feeling that as his 'big sister' she should have looked after Mr Ballis more. She will never again get to hear him say 'Hi sis, how are you?'.

30 Ms Lisa Ballis expresses a loss of faith in the human race as a result of the 'murder' of her brother and the processes that have followed. I apprehend that sentiment to mean a disappointment in the legal resolution of this matter. I have no doubt that that sentiment springs from a deep well spring of love for her brother, notwithstanding their estrangement.

31 By your plea to manslaughter, you accept that you killed Mr Ballis and had no lawful justification for doing so. And, by acceptance of that plea, the Crown accept that at the time you stabbed Mr Ballis you had no intention to kill or do really serious injury.

32 Although that resolution is a matter for the Director of Public Prosecutions and not this Court, in the circumstances of this case, that resolution is, in my view, appropriate.

33 In any event, the reality is that the value of Mr Ballis' life is not and could never be equated with the species of criminal charge to which you have pleaded, nor with the quantum of sentence that I will impose. He died at your hand and that is a burden that his family, as well as you, must now bear. You will be punished for the manslaughter you have committed, but no punishment is capable of extinguishing the pain of his loved ones resulting from Mr Ballis' death.

34 It is necessary to say something further about your personal circumstances.

35 You were born in Vietnam on 8 February 1974. You are fourth in a sib-ship of six.

36 You came to Australia in 1978 as a refugee after spending about six months in a refugee camp in Malaysia. You arrived with your father and three older siblings. Your mother and two younger siblings remained in Vietnam. You did not see them again until 1991 upon their arrival to Australia. Unlike your father, your mother supported the Communist Party in Vietnam and was reluctant to leave.

37 Your father worked hard, both as a machine operator in a Spotswood factory and in running a sewing business from home. He died from complications of Parkinson's disease in 2005. Your mother, now aged 82, resides with your youngest sibling.

38 All of your siblings except one, your sister Lanh, reside in Melbourne. You have very little contact with them. You do enjoy weekly telephone contact with Lanh, who resides in Darwin and who travelled to Melbourne to be present at your plea hearing. In a letter tendered to the Court, she expresses the hope that you will reside with her in Darwin upon your release and, in any event, offers ongoing financial and emotional support to you.

39 You were educated to year 10 level, leaving school part way through year 11 due to the turmoil caused by your mother's arrival in Australia. To that point you had performed academically very well. You had worked, since the age of seven, in your father's sewing business and, between 1994 and 2004, worked at an hydraulics company in Footscray. During that time, in 1998, you completed an advanced certificate in sales management at Footscray TAFE. You were last employed between 2004 and 2005 as a machine operator manufacturing compact discs.

40 Since that time to the date of your remand, you received a Disability Support Pension due to your schizophrenia. That condition was diagnosed formally when you were 26 years old, but you exhibited certain symptoms well prior to that date. That condition has prevented you from having all but one intimate relationship, which spanned the years 1996 to 1999. In 2009 you were the victim of a serious assault in which you sustained broken ribs and a fractured cheek, and as a result of which you underwent a splenectomy.

41 You have been diagnosed as suffering a significant polysubstance use disorder. Indeed you have battled an addiction to multiple illicit substances since the age of 13. This is reflected in your criminal history. In the decade between 2007 and 2017 you obtained multiple convictions for possession and trafficking of, variously, cannabis, heroin and methylamphetamine, some of which resulted in custodial sentences. Additionally, in the same period, you have a number convictions for possession of both controlled and prohibited weapons. It was put on your plea, and it was not disputed by the Crown, that those matters related to small knives and multi-tools. Certainly there is nothing in your record to suggest that you had ever previously used a weapon or been guilty of violence.

42 You were undoubtedly drug affected at the time you killed Mr Ballis.

43 The major issue at the hearing of your plea was the applicability of the Verdins[4] principles to the sentencing exercise. In short, your counsel submitted that the psychotic symptoms attributable to your schizophrenia, as well as to your methylamphetamine use, were causally linked to your offending so as to engage the first four Verdins principles. In contradistinction, the Crown submitted that your mental illness played no role in your offending. It was agreed that Verdins principles five and six were applicable.

44 The reports of Dr Cidoni state that your illness was active at the time of your offending, as you had ceased your antipsychotic medication. He said your mental state at the time was 'a combination of the effects of the psychosis (delusional thinking and disorganisation) and the amphetamine use' and that this 'significantly impaired [your] ability to think rationally and act appropriately'.[5]

45 Dr Cidoni gave viva voce evidence on the plea. He said that at the time of offending you had an 18-year history of schizophrenia, with your last formal treatment in 2015. Throughout that time, even when you took your medication, you suffered residual symptoms, particularly your belief that others can read your thoughts. In short, your baseline state is not 'a state of wellness in terms of being free of symptoms'.[6] He said that your illness, longitudinally, has been very difficult to treat and you are what is termed treatment resistant.[7]

46 When asked as to the relevance of the fact that you had never previously been violent while under the influence of methylamphetamine, Dr Cidoni said that you experienced residual symptoms of your illness most days and used methylamphetamine most, if not all days, without behaving aggressively. There were, therefore, additional factors to explain your aggression on this occasion, being the further deterioration in your psychosis leading up to the offence, the altercation in the dining room which distressed you, and some significance to you that it was Chinese New Year.[8]

47 Dr Cidoni was also asked whether your decision to cease your medication was a rational and deliberate one or the product of your psychosis. He said that you always have had a degree of denial of your illness, but that you were not able to give a 'good explanation' as to why you changed from taking the medication every three to four days to not at all. He said 'I wasn't able to get some clarity around that, there isn't any explanation for that.'[9]

48 When asked if it was possible to discern to what degree there was a connection between your offending and the psychosis arising from your schizophrenia as opposed to the impact of the methylamphetamine, Dr Cidoni stated that it was a very difficult issue. Dr Cidoni continued:

The amphetamine use itself, both the intoxication effects of the amphetamine, in terms of aggression, agitation, impulsivity, impaired judgment as well as the effects in terms of promoting the psychosis has played a role and it's difficult ... I can't put a percentage on it. But I would say, in summary ... that were it not for his illness already being relapsing in the week leading up to the offending and the distress of the incident and the context of the incident in relation to New Year's Day, I can't say that this would otherwise have occurred. I should also say ... that people with a diagnosis of schizophrenia are much more sensitive to the effects of amphetamines in terms of worsening psychosis than someone without schizophrenia. So the illness itself is a vulnerability to the effects of the substances.[10]

49 Under cross examination, Dr Cidoni was asked about your insight into the need to take your medication. Dr Cidoni said that in the past you had little insight into your illness, but in the couple of years prior to your offending you had been able to reflect more on your state of wellness. However, your insight into your main symptom, being thought broadcasting, is not as good as with respect to your other symptoms.[11] Dr Cidoni agreed that you understood that you had been prescribed medication and that you had been taking it, but said that that could be as a result of passive acceptance of treatment rather than good insight.[12]

50 Dr Cidoni agreed that you acknowledged to him the role of methylamphetamine in impairing your judgment and making you aggressive and that at the time of offending you had some understanding about the interplay between the methylamphetamine use and your illness.[13]

[Prosecutor] And you go on to say that he believes that he would normally be able to walk away from that sort of situation, but on this occasion, he did not. It comes after ... you've said that he acknowledged the role of ice. Is it fair to draw the inference that he believed that had he ... not had the ice, he would've been able to walk away? --

[Dr Cidoni] I think ... the ice is a factor. I think he sees the ice as a factor, as well as his illness. And I think that's an accurate kind of ... reading of the situation ... I guess the challenge is that the amount is the same as he would usually use, or is not significantly different than what he'd usually use, and not be aggressive. So I think that's a really difficult issue.[14]

52 Both parties referred to the authorities of Wright v The Queen[15] and DPP v Davis.[16]

53 In Wright, the Court of Appeal upheld the findings of the sentencing judge that the cause of the offending of the accused was not his underlying schizophrenia - which had been well controlled by medication - but his taking of methylamphetamine instead of his prescribed medication. Critically, he had continued the drug use even after he had realised the effects that drug had upon him.

54 In Davis, the Court of Appeal found that the 'disinhibited yet purposeful' sexual offending of the accused was 'in good part' the result of excessive alcohol consumption and not his intellectual disability.[17] The need for precision in expert opinion was emphasised.

55 On the evidence before me, I am satisfied that there was a realistic connection between the psychosis attributable to your schizophrenia and your behaviour towards Mr Ballis. I note the following:

(a) Your illness was not well-controlled even when you took the anti-psychotic medication. Your illness has been treatment resistant and was relapsing in the week prior to the offence. I am not satisfied that the level of insight you had with respect to the need to take your medication was such that you fully understood the consequences of ceasing to do so, both because of the baseline level of your (un)wellness and because of the circumstances in which you were then living.

(b) You had never before been violent whilst under the influence of methylamphetamine and were therefore not on notice as to its likely effect upon you.

(c) Notwithstanding you accept that at the time of the offending you had some understanding about the interplay between the methylamphetamine and your illness, your acknowledgment to Dr Cidoni of the role methylamphetamine played in your offending came much later, in November 2018. In all of the circumstances is not possible to fully attribute that later understanding to you ten months earlier.

(d) Your offending was not premeditated and it was triggered by a combination of unusual stressors. The CCTV footage taken and various recordings made by you on the morning of 16 February 2018 support that conclusion.

(e) While Dr Cidoni could not precisely quantify the role of your mental illness in the combined effect of your intoxication and mental impairment, his opinion of its operative effect is sufficiently well demonstrated and articulated to allow me to make this finding.

56 I turn to address the necessary sentencing principles.

57 Your violent behaviour has resulted in the death of another man. For that you must be punished to the extent and in a manner that is just in all the circumstances. Those circumstances include your moral culpability which, given the finding I have made with respect to the applicability of the Verdins principles, must be moderated. Your mental impairment significantly compromised your ability to think rationally and act appropriately.

58 This Court must denounce in the strongest terms the use of knives wielded in anger. All too easily can such behaviour result in death. In this case, it has caused the secondary ripple of forever changing the lives of those who loved the deceased and, indeed, you. Nonetheless, given the connection between your mental impairment and your offending, the effect of denunciation in the sentence I pass is also moderated.

59 In my view, given the severity and resistance of your schizophrenia, you are not a good vehicle for general deterrence but, although moderated, specific deterrence remains relevant. Notwithstanding your psychiatric issues, you were intoxicated by methylamphetamine and cannabis at the time of your offending.

60 As is commonly found, a factor which may moderate one sentencing consideration may increase the need for another. I consider the combination of your drug use with your schizophrenia renders the need for the sentence I pass to, in some measure, protect the community from you.

61 That combination of drug use and psychiatric illness is also critical to an assessment of your prospects for rehabilitation. The evidence is that you are presently taking antipsychotic medication. It is to be hoped that you are presently gaining a much greater insight into your illness and the fundamental importance of continuing with that regime. Dr Cidoni describes you as being accepting of treatment. In my view, the critical issue as to your rehabilitative prospects is your ability to stay away from illicit drugs; ice in particular, but all such substances. That, too, is probably dependent upon the degree of insight you manage to gain, both as to your illness and as to the true extent of the effect the methylamphetamine had on you at the time of your offending.

62 I note that you acknowledged to Dr Cidoni in November 2018 the role of ice in your offending. That acknowledgment was accompanied by an expression of remorse expressed to Dr Cidoni with the 'appropriate emotional component'[18], which gives some cautious hope for optimism. I accept that you are genuinely contrite for your actions. I further note the fact of current and offer of future support from your sister Lanh, including the desire for you to relocate to Darwin to live with her upon release.

63 In all the circumstances, I am of the view that your prospects for rehabilitation are guardedly sound.

64 I give due weight to your guilty plea. It was made well prior to trial. It involves an acceptance by you of responsibility for Mr Ballis' death and a willingness to facilitate the course of justice. It has utilitarian benefit and has spared the witnesses the ordeal of trial. It is also relevant to my finding that your expressions of remorse are genuine.

65 I take into account that given your psychiatric condition, a period of imprisonment will weigh more heavily upon you than it would on a person who does not suffer schizophrenia. In this regard, your diagnosis of post-traumatic stress disorder is also perhaps of some relevance. Additionally, although you are currently appropriately medicated, I consider that there is a risk that imprisonment will have a significant adverse effect on your mental health.

66 I also apply the principle of parsimony.[19]

67 In so far as the offence of manslaughter permits, I have had regard to current sentencing practice. [20]

69 Balancing, as best I am able, the competing considerations laid down in the Act and having regard to the matters I have just discussed, for the offence of manslaughter, I sentence you to imprisonment for eight years. You must serve a minimum of five years and six months before you are eligible for parole.

70 I declare that you have already served 354 days of that sentence by way of pre-sentence detention.

71 I am required by s 6AAA to indicate what sentence I would have imposed but for your plea of guilty. I would have imposed a sentence of 11 years with a non-parole period of nine years.

72 I also make a disposal order in the terms sought by the Crown.

[3] This is accepted between the parties, but is difficult to make out on the CCTV footage.

[4] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[5] Report of Dr Cidoni, 24 November 2018, opinion d), p 4.

[8] Plea Transcript, p 31 line 10 - p 32 line 5.

[10] Plea Transcript, p 37 line 31 - p 38 line 16.

[11] Plea Transcript, p 39 line 7 - 23.

[14] Plea Transcript p 40 line 27 p41 line 12.

[15] [2015] VSCA 333 ('Wright').

[16] [2017] VSCA 341 ('Davis').

[18] Report of Dr Cidoni, 24 November 2018, opinion f), p 5.

[19] Sentencing Act 1991, s 5(3) ('the Act').

[20] Sentencing Council, Sentencing Snapshot No. 199 - Manslaughter.