The Queen v Raimundo [2015] VSC 550

2 For the reasons I will now give, I intend to sentence you to be imprisoned for nine (9) years, and to fix a period of six (6) years before which you are not to be considered eligible for release on parole. Pursuant to s 6AAA of the Sentencing Act 1991, I declare that, but for your plea of guilty, I would have imprisoned you for 12 years, and fixed a non-parole period of nine (9) years.

3 At the time that you fatally stabbed him, Hieu Van Nguyen was aged 18 years.

4 You were aged 24, and occupied a house in Alfrieda Street, St Albans. A party was held at those premises from the evening of Friday, 10 May 2013, into the early hours of the next day. Illicit drugs - cannabis, heroin and ice - were consumed in considerable quantities. Hieu Van Nguyen was present at various times from the Friday night into the Saturday morning.

5 Shortly after 5.00 am on Saturday, 11 May 2013, the deceased and a number of others were present in the lounge room under the influence of drugs and alcohol. Mr Nguyen was sitting in front of a couch talking when you came into the room angry. You approached Mr Nguyen and kicked him. You then pushed Mr Nguyen onto his back, and struck towards his head several times with a large champagne bottle, calling him a 'fucking idiot'.

6 You then said to Kether Mazzaro, 'we are going to teach him a lesson - you hold him'. Mazzaro grabbed Mr Nguyen from behind and held him by the shoulders. You then approached and stabbed Mr Nguyen once in the chest above the right nipple. He then dropped to the floor.

7 Mr Nguyen asked you to take him to hospital, and said he would not tell anyone who had stabbed him. You ignored his pleas, however, and stripped him naked. He was then placed on a chair while you and Mazzaro cleaned up the blood. You then carried Mr Nguyen out of the house and put him into the back of a Honda vehicle that belonged to your girlfriend. You left the premises at about 5.23 am, with you driving.

8 At about 5.30 am, you then stopped the vehicle outside number 7 Majorca Street, south of the Emergency Department of the Sunshine Hospital which is located on the opposite side of the road. You and Mazzaro pushed Mr Nguyen out of the car, leaving him naked on the nature strip. You then drove away. Mr Nguyen's body was found by an employee of the Sunshine Hospital at about 5.55 am. As I observed when sentencing Mr Mazzaro, your treatment of Mr Nguyen in his last moments was callous; and you deprived him of dignity in death.

9 Mr Nguyen died as a result of the single stab wound to his chest that you inflicted. The prosecution now accepts, however, that you had neither the intention to kill Mr Nguyen nor to cause him really serious injury. You are thus guilty of manslaughter, not murder. I must sentence you accordingly. The species of manslaughter to which you have pleaded guilty is manslaughter by unlawful and dangerous act. By your plea you have acknowledged that you had no lawful excuse - such as self-defence - for doing what you did. Moreover, your plea is an admission that a reasonable person in your position would have realised that, by stabbing him, you were exposing Mr Nguyen to an appreciable risk of serious injury.

10 Your counsel submitted that your actions were impulsive and unplanned, and occurred against a background of substance abuse by those at your premises. I think that is a fair description. But I am also of the view that your actions were motivated by anger and vindictiveness, and a desire to punish Mr Nguyen for (as you thought) having stolen your heroin. For a variety of reasons that I need not recapitulate, the prosecution put your offence as being at the 'higher end' of such offences. In my view, that is an apt categorisation (although, it must be said, it does not fall within the worst category of cases).

11 I received a victim impact statement from Mr Anh Thi Luu, Mr Nguyen's brother-in-law. He spoke of the devastating effect that Mr Nguyen's death has had upon his mother, his brother and his sister. As I observed when sentencing Mr Mazzaro, it makes for sad reading. I take it into account as showing the deleterious impact of your offence on each of these victims.

12 I also received a number of documents tendered by your counsel in support of the plea made on your behalf. Thus I have read and taken into account testimonials provided by your parents, Ricardo and Omega Raimundo, Noel Pico and Emily Saygnabouth. Ms Saygnabouth, your partner, described your relationship; spoke of the effect that the death of you first child had upon you; described your commitment to your current child; and outlined your descent into anti-social and reckless behaviour. She also spoke eloquently of your good qualities, and of her hopes for your joint future.

13 Your counsel also tendered a report of a neuropsychologist, Ms Jane Lofthouse, dated 23 February 2012. She was of the view that you may have suffered a moderate level of brain injury as a result of the 2006 assault. Her report also contained helpful observations about your intelligence and your history. Beyond these matters, however, it revealed little of relevance to the sentence I must impose upon you.[1]

14 Your counsel also provided police statements relating to the assaults on you, and a variety of certificates evidencing your scholastic achievements and training. So far as relevant, I have taken account of the contents of those documents. The very strong impression I gained from these materials is that your life went off the rails following the serious assault on you in 2006; and that, despite intermittent attempts to live a decent life in the years since, you have continued to relapse into illicit drug use, and, with it, anti-social and criminal behaviour.

15 Your counsel also tendered a bundle of certificates and other documents evidencing the courses that you have completed whilst in custody, showing that you have spent your time in custody productively. Thus you have completed courses relating to the treatment of drug and alcohol abuse, anger and conflict management, 'life' and communication skills (and similar), and have successfully completed programs relating to trade skills, such as welding.

16 Mr Raimundo, you were born on 10 November 1988. You were aged 24 years at the time of your offending, and are now aged 26. You grew up in Taylors Lake with your parents - both of whom are of good character - and your two younger sisters. Your younger years were unremarkable, up until you were the victim of a serious assault and suffered a significant head injury. I have read that you had an aptitude for music, and indulged in 'beat boxing'. Whilst involved in that pastime in January 2006, you were assaulted with an iron bar, causing you to lose consciousness. It seems that you suffered a skull fracture as a result, but you were able to finish Year 12. In 2007, after leaving school, you worked in a steel fabrication factory. Your use of illicit drugs was particularly apparent after a further serious assault and robbery perpetrated upon you in October 2008.

17 In 2009, you commenced a TAFE course, Certificate in Technical Musical Production. It was during that year that you had your first brush with the law. You came into conflict with your family throughout 2009 and 2010, and had periods living away from home. Your second criminal offence involved a threat to cause serious injury to your sister.

18 You left your parents' home permanently in 2011, and began living with friends in a shared home. There your drug use escalated. You were not working, and you offended to support your lifestyle and drug use, attracting convictions in March 2011, and in January and April 2012. At the end of 2011 you were remanded in custody for recklessly causing injury, a so-called 'road rage' incident. One positive in that period is that you formed a relationship with your partner, who has no criminal history and does not use drugs. Sadly, however, your first child died in June 2012, and by the end of that year you had breached a community correction order imposed upon you. At the time when the present offence was committed, you were living at Alfrieda Street, whilst your partner was absent overseas with her parents.

19 In imposing sentence upon you, I have paid due regard to the principle of parity. The features that distinguish your situation from that of Mr Mazzaro were canvassed on the plea, and I need not repeat them in detail. He fell to be sentenced as an aider and abettor of your unlawful and dangerous act, and could call in aid his youth.

20 Unlike Mr Mazzaro, you do not have youth on your side, but your prior criminal history - although more prolific - does not contain serious prior violent offending of the same order as that of Mr Mazzaro (albeit, perhaps, your record is only slightly less serious). In October 2011 he was released on a youth supervision order on a charge of making a threat to kill and intentionally causing injury; and, on 2 May 2013 - a little over a week before Mr Nguyen was killed - he was convicted of recklessly causing injury and sentenced to a community correction (so that he was subject to that order when he aided and abetted the commission of your crime of manslaughter). By way of contrast, you have prior convictions for trafficking heroin; possessing methylamphetamine; dishonesty offences; damaging property; dealing with the proceeds of crime; and driving offences. Your only violence-related prior finding of guilt was for making a threat to inflict serious injury to your sister, for which you were sentenced to a community based order (which you later breached).

21 You do have, however, a serious subsequent conviction imposed in the County Court on 21 June 2013, for recklessly causing injury on 16 October 2011 (that is, some 18 months or more prior to killing Mr Nguyen with a knife). I have read the Crown Opening concerning that matter. It is disturbing that on that occasion you also resorted to the use of a knife in order to inflict injury.

22 Your prior history - embracing your prior and subsequent convictions - to some extent informs an assessment of your moral culpability for the present offence, your prospects of rehabilitation and your criminal propensities. And, self-evidently, you do not attract the leniency that a first offender might attract. Your counsel submitted that, notwithstanding your prior criminal history, you have good prospects for rehabilitation if you do not relapse into substance abuse on release from prison. Those prospects are said to be supported by your education, ability to work, supportive family, committed partner, dependent child and history of not offending prior to yourself becoming a victim of violence. As I have observed on other occasions, labels are often unhelpful in the present discourse; but overall I would regard your prospects of rehabilitation as fair. Despite the limited number of convictions disclosed in your history relating to the perpetration of actual physical violence, however, specific deterrence remains of some importance given that history. To some extent, the sentence I impose must be such as to discourage you from further unlawful violence, but I must be careful not to give this factor too much weight.

23 Originally, you were charged with murder. Following Mr Mazzaro having pleaded guilty to - and sentenced for - manslaughter, you also offered to plead guilty to manslaughter, an offer which the prosecution accepted. In those circumstances, it could not be said to be an early plea, and I do not detect in it any element of remorse for your actions. There is no doubt, however, that your plea has had a utilitarian benefit, in that the community has been spared the expense of a trial and witnesses have been spared the ordeal of giving evidence. I intend significantly to ameliorate the sentence that I would otherwise have passed because of your plea. People in your position - as I have said more than once - need to understand that a plea of guilty will result in a perceptible 'discount'. The extent of the reduction in your sentence by reason of your plea will be conspicuous from my declaration under s 6AAA of the Sentencing Act.[2]

24 General deterrence is an important consideration in the sentence I am to pass. Those minded to resort to the use of bladed weapons to pursue violent ends must know that such conduct will result in significant punishment. Further, your actions deprived Mr Nguyen of his life. Thus, just punishment and denunciation of your conduct are very important aspects that I must factor in to the sentence I must impose. I must also pay due regard to current sentencing practices. Plainly, no sentence other than a substantial period of imprisonment is appropriate.

25 Mr Raimundo, for the manslaughter of Hieu Van Nguyen, I sentence you to be imprisoned for nine years, and I fix the period of six years as the period that you must serve before being considered eligible for release on parole.

26 I declare that the period of 579 days (not including this day) be reckoned as already served pursuant to this sentence.

[1] Counsel eschewed reliance on Verdins principles: R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[2] See R v Flaherty (No 2) [2008] VSC 270; (2008) 19 VR 305; SD v The Queen (2013) 39 VR 487, 501-2 [63] (n 50).