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Supreme Court 1 December 1999

Regina v Tran

[1999] NSWSC 1146

Assault & violenceHomicide
CRIMINAL LAW & PROCEDURE SENTENCING MANSLAUGHTER

Citation: Regina v Tran [1999] NSWSC 1146 revised - 03/12/99
Court: NSW Supreme Court (Criminal Division)
Date: 1 December 1999
Judge(s): Bell J

Background

The prisoner, a 37-year-old Vietnamese refugee, was charged with the murder of his estranged wife's mother and the malicious wounding of his wife at their home in Yagoona in the early hours of 21 April 1998. He broke into the premises and stabbed the deceased mother-in-law repeatedly with a broken pair of scissors, inflicting 25 wounds, four of which were potentially lethal. His wife was also wounded while attempting to intervene.

The prisoner's background was marked by severe hardship: years in a Vietnamese labour camp, solitary confinement in chains, a further period of imprisonment, and five years in a refugee camp in Indonesia before arriving in Australia in late 1996. The marriage deteriorated rapidly after the deceased moved into the family home in late 1997, with evidence that the mother-in-law actively undermined the relationship. By February 1998, the wife had separated from the prisoner, and he had been diagnosed with major depression in the weeks leading up to the killing.

A jury convicted the prisoner of manslaughter on the first count and malicious wounding on the second. The partial defence of substantial impairment by abnormality of mind under section 23A of the Crimes Act 1900, which reduces murder to manslaughter, was left to the jury. Both the Crown and the defence agreed at sentencing that the court should proceed on the basis that this partial defence was made out.

  • What sentence was appropriate for manslaughter where the partial defence of substantial impairment by abnormality of mind was established?
  • What weight should be given to the prisoner's personal history, mental state, and psychiatric condition at the time of the offence in mitigation?
  • Whether special circumstances existed under section 5(2) of the Sentencing Act 1989 justifying an additional term exceeding one-third of the minimum term.
  • What weight should be given to a concurrent breach of an apprehended violence order, given the circumstances in which that order was obtained?

Decision

Bell J sentenced the prisoner on the agreed basis that his partial defence of substantial impairment by abnormality of mind was made out. The court accepted the medical evidence that the prisoner was suffering from major depression at the time of the killing, and that this substantially impaired his capacity to control his actions. The extraordinary pressures bearing on the prisoner in the weeks before the offence were regarded as a significant mitigating factor.

The court found that the prisoner's traumatic personal history, including years of political imprisonment, solitary confinement, refugee detention, and the rapid disintegration of his marriage after arriving in Australia, were all relevant to the sentencing exercise. While the objective gravity of the offence remained serious, those circumstances warranted substantial leniency in the sentences imposed.

Bell J found special circumstances within the meaning of section 5(2) of the Sentencing Act 1989, justifying an additional term exceeding the standard one-third ratio. The prisoner had limited social supports in Australia, had suffered depression and suicidal ideation in custody, and was likely to face difficulty reintegrating into society. A longer supervisory period was considered appropriate to assist that reintegration.

Regarding the breach of the apprehended violence order (taken into account on a Form 1), the court assigned it reduced weight. The wife's own evidence was that she had procured the order to satisfy her mother while she herself continued to seek out the prisoner. In those circumstances, the breach did not attract the weight that contravention of a protective order would ordinarily carry.

Orders Made

  • Manslaughter conviction: minimum term of three years and six months penal servitude, commencing 23 April 1998 and expiring 22 October 2001; additional term of two years and six months, commencing 23 October 2001 and expiring 22 April 2004.
  • Malicious wounding conviction: fixed term of twelve months imprisonment, backdated to 23 April 1998 (expiring 22 April 1999), to be served concurrently.
  • Breach of apprehended violence order taken into account pursuant to section 21 of the Criminal Procedure Act 1986 (Form 1).

Key Takeaways

  • Where both parties agreed that a partial defence of substantial impairment by abnormality of mind was established, the Supreme Court proceeded on that basis at sentencing and treated it as a significant mitigating factor bearing on the overall sentence.
  • A prisoner's background of severe trauma, including political imprisonment, solitary confinement, and prolonged refugee detention, can constitute weighty mitigating circumstances in sentencing for violent offences, particularly where that history contributes to a diagnosed psychiatric condition at the time of the killing.
  • Under section 5(2) of the Sentencing Act 1989, special circumstances warranting an additional term beyond one-third of the minimum term may be found where a prisoner has limited social supports, has experienced depression and suicidal ideation in custody, and faces a difficult reintegration into the community.
  • An apprehended violence order breach recorded on a Form 1 will not necessarily attract full weight where the evidence reveals the order was obtained in circumstances that diminish its protective character.
  • The sentences for both the manslaughter and the malicious wounding were ordered to run concurrently, reflecting that the wounding arose in the same course of criminal conduct as the primary offence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 23A (substantial impairment by abnormality of mind)
- Sentencing Act 1989 (NSW), s 5(2) (special circumstances)
- Criminal Procedure Act 1986 (NSW), s 21 (Form 1 procedure)

Cases:
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Regina v Anderson [1981] VR 155
- Regina v Letteri (unreported, NSW Court of Criminal Appeal, 18 March 1992)
- Regina v Macdonald (unreported, NSW Court of Criminal Appeal, 12 December 1995)