State of NSW v Vu (Final) [2021] NSWSC 1282

Supreme Court New South Wales

Medium Neutral Citation: State of NSW v Vu (Final) [2021] NSWSC 1282 Hearing dates: 27 September 2021 Date of orders: 12 October 2021 Decision date: 12 October 2021 Jurisdiction: Common Law Before: Bellew J Decision: (1) Pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), the defendant is subject to an Extended Supervision Order for a period of 18 months commencing 12 October 2021. (2) I direct the defendant, for the period of the Extended Supervision Order in (1) above, to comply with the conditions set out in the Schedule annexed to this judgment. Catchwords: HIGH RISK OFFENDER – No issue as to the making of an extended supervision order – Issues as to some conditions – No point of principle Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) Cases Cited: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 New South Wales v Pearson (Final) [2021] NSWSC 775 State of New South Wales v Vu (Preliminary) [2021] NSWSC 902 Category: Principal judgment Parties: State of New South Wales – Plaintiff Hung Khawh Vu – Defendant Representation: Counsel: K Heath – Plaintiff J Wilcox – Defendant

Solicitors: NSW Crown Solicitor's Office– Plaintiff Legal Aid of NSW – Defendant File Number(s): 2021/164958 Publication restriction: Nil

Judgment 1. By a summons filed on 7 June 2021 the State of New South Wales (the plaintiff) seeks orders that: 1. pursuant to ss 5B and 9(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act), the defendant be the subject of an extended supervision order (the ESO) for a period of 18 months; and 2. pursuant to s 11 of the Act, the defendant be directed to comply with a number of conditions for the period of the ESO. 1. On 21 July 2021 I made an interim supervision order in respect of the defendant. [1] I also made orders appointing two psychiatrists to examine the defendant and provide reports. In that regard I have now received reports from Dr Rodriguez and Dr Singh. 2. Counsel for the defendant conceded that all of the statutory prerequisites for the making of an ESO set out in s 5B of the Act were satisfied. Counsel also conceded that it would be open to me to be satisfied that an ESO should be made. Counsel's principal focus at the hearing was directed towards a number of the conditions sought by the plaintiff. In that regard, I heard oral evidence from both Dr Rodriguez and Dr Singh. 3. Needless to say, despite the position taken by counsel for the defendant, I must nevertheless be satisfied that it remains a matter for me to determine whether an ESO should be made. 4. On the whole of the evidence, I have come to the view that an ESO should be made for a period of 18 months. Given counsel's concessions, my reasons can be shorter than might otherwise have been necessary, and I have set them out by reference to the helpful written submissions provided by both counsel. 5. In order to make an ESO, I must be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if he is not kept under supervision. The term "high degree of probability" indicates a standard which is higher than the civil standard, but less than the criminal standard. [2] The term "unacceptable risk" is to be given its ordinary everyday meaning, bearing in mind that the primary purpose of the Act is to ensure the safety and protection of the community. Pursuant to s 9(2), the safety of the community must be the paramount consideration in making that determination. I have had regard to the mandatory considerations set out in s 9(3) of the Act, along with any other matter(s) that I consider relevant. 6. The defendant is 53 years of age and was born in Vietnam. He came to Sydney as a refugee 1986 at the age of 20. His criminal history contains two convictions for violent offences. 7. The first offence occurred on 20 June 1997, at which time the defendant and the victim were employed in the same factory. A fellow worker had told the defendant that the victim had been spreading rumours about his (i.e. the defendant's) character. The defendant then confronted the victim and asked for an apology. An argument ensued, following which the defendant went to another part of the factory, picked up a meat cleaver and concealed it in his trousers. He then returned to the victim and, without warning, lifted the meat cleaver and struck the victim twice to the head. The victim sustained lacerations to the head and chin requiring suturing. The defendant was sentenced to periodic detention for a period of 12 months in respect of this offending, and successfully completed that order. 8. The second offence was the murder of the defendant's then partner, Yong Ling. Barr J, who sentenced the defendant, outlined in his reasons for sentence that the defendant and Ms Ling had commenced a relationship in 2000, following which Ms Ling gave birth to their son in June 2001. Over a period of time, the defendant began to act violently towards Ms Ling. In September 2002, Ms Ling reported to police that the defendant had assaulted her multiple times. An apprehended violence order was issued for her protection, preventing the defendant from going to her residence. 9. On 23 July 2003, in breach of that order, the defendant arrived unannounced at Ms Ling's premises and gained entry via the balcony. Having done so, he violently assaulted Ms Ling and left her unconscious on the floor. Ms Ling was subsequently found by ambulance officers bleeding from the head, and in severe shock. She had sustained multiple fractures as a consequence of the defendant assaulting her. She remained in intensive care for a period of more than four months before losing her life. 10. The defendant originally pleaded not guilty to Ms Ling's murder, but guilty to manslaughter. He changed his plea to guilty of murder part way through his trial. 11. In sentencing the defendant, Barr J found that he had attacked Ms Ling with an intention to inflict grievous bodily harm. His Honour found no evidence of contrition, and concluded that the offending had been aggravated by the fact that it was committed in breach of the apprehended violence order put in place for Ms Ling's safety. 12. The defendant was sentenced by Barr J to 18 years imprisonment with a non-parole period of 13 years and 6 months. His non-parole period expired on 22 January 2017, and his sentence expired on 22 July 2021. 13. Notwithstanding his conviction and sentence for Ms Ling's murder, there is evidence that the defendant has demonstrated an inability to accept responsibility for that offending, and an inability to demonstrate any real insight into such offending. Notes taken at various times when the defendant was in custody indicate that he has sought to ascribe blame to Ms Ling, and has protested his innocence. 14. Dr Rodriguez noted that the defendant continued to minimise his conduct, to blame Ms Ling, and to make disparaging remarks about her. The defendant went so far as to complain that Ms Ling had brought embarrassment and shame upon himself and his family. The observations of Dr Rodriguez in this respect are generally consistent with those of Dr Singh, to whom the defendant recounted a history of his offending towards Ms Ling in terms which were fundamentally at odds with, and which seriously understated, his conduct. 15. There was a further incident in custody on 23 January 2016 when the defendant struck another inmate to the face with a guitar. Although the defendant was charged by police, that charge was later withdrawn and dismissed before the Local Court. However, the defendant pleaded guilty to an internal disciplinary offence, saying that in acting as he did he had "taught [the victim] a lesson". 16. From about 2012, whilst in custody, the defendant commenced to accrue a number of misconduct charges, a majority of which involved allegations of violence. That said, the vast majority of these offences occurred prior to the time at which the defendant came to be managed for his mental health. The circumstances in which that management arose require some elucidation. 17. Before being sentenced by Barr J, the defendant had been assessed by Dr Westmore, psychiatrist, who could find no evidence of psychiatric illness or personality disorder. However, in the context of the accumulation of the misconduct charges to which I referred earlier, the defendant was observed to be expressing thought processes of concern. As a consequence, he was referred for a psychiatric assessment. 18. That assessment was carried out by Dr Dayalan on 30 January 2017. Dr Dayalan concluded that the defendant suffered from a chronic psychotic illness, most likely to be schizophrenia. That diagnosis has since been confirmed by both Dr Rodriguez and Dr Singh. The defendant has denied experiencing psychotic symptoms at the time of murdering Ms Ling. However, Dr Rodriguez expressed the view that at the time of that offending, it was possible that the defendant was experiencing a prodromal phase of psychotic illness. 19. Following the diagnosis of Dr Dayalan, the defendant's condition was managed in custody in terms which are summarised in a report of Dr Elliott of 27 June 2019. Dr Elliott was strident in his opinion that it was essential that the defendant remain on antipsychotic medication indefinitely, in circumstances where he considered that the defendant was at a high risk of non-compliance with treatment in the community. Dr Elliott expressed concern as to the defendant's view that he considered antipsychotic treatment to be unnecessary. Dr Elliott's observations were consistent with those of Dr Anderson who, in a report of 12 June 2020, made reference to the fact that the defendant did not perceive that he had a mental illness, and questioned the need for medication in the long term. 20. Both Dr Rodriguez and Dr Singh have confirmed the presence of ongoing psychotic symptoms. A report of Dr Tanveer also made reference to the defendant displaying auditory hallucinations and delusional thoughts. 21. There is some degree of conflict in the evidence regarding the defendant's position as to ongoing treatment. Dr Rodriguez formed the impression that the defendant did not wish to continue psychiatric treatment, an observation which was consistent with that of Dr Elliott and Dr Anderson. However, Dr Singh reported that the defendant had said to her that he had found the support of his mental health team helpful, and that he would continue to accept treatment from them even if he was not compelled to do so. However, Dr Singh appeared to have been somewhat sceptical about these statements, expressing the view that in circumstances where the defendant was unable to articulate how medication and treatment helped him, his insight into his mental health was limited. 22. Although the defendant participated in a number of educational courses in custody, and as a consequence improved his English language skills, his engagement with other programs was mixed. He commenced the Custody Base Intensive Treatment (CUBIT) program in 2017 but was suspended from the program after a period of five months due to aggressive and intimidating behaviour. He then withdrew from the program, and took issue with the fact that he was, in fact, a sex offender. During the period in which he was a participant in the program, the defendant expressed what been described as delusional and persecutory ideas. He also expressed strongly held cultural views about hierarchy and traditional gender roles. He was assessed in the course of that treatment as being at an above average level of risk. 23. The defendant was released on parole on 16 September 2020. Generally speaking, his response to supervision has been positive. He is in receipt of a Disability Support Pension on account of his mental illness, and lives independently. His elderly mother and his family are based in Sydney. Whilst he has denied an intention to enter a new relationship, there is some evidence of an attempt to do so. 24. In a risk assessment report, Mr Ardasinski, Psychologist, concluded that the defendant fell into the medium risk category for violent offending, but in the high risk category of repeat of domestic violence if he were to enter a new intimate relationship. Mr Ardasinski identified the defendant's mental health as a factor which increased his vulnerability, and which necessarily had to be taken into account in assessing his risk. 25. Dr Rodriguez concluded that the defendant fell into the high risk category in terms of future violent offending. He also concluded that the defendant manifested a number of high risk factors for intimate partner violence. In terms of sexual re-offending, Dr Rodriguez assessed the defendant as falling at a low level. The ultimate opinion expressed by Dr Rodriguez was that the defendant was at an increased risk of committing a further serious offence in light of a series of factors including his history of serious violence, violent attitudes, inflexible views towards women, a major mental illness, and limited insight into his offending. 26. Dr Singh concluded that the defendant had a moderate degree of historical risk factors, and that he presented with a moderate risk of further violence if he resided in the community without supervision and support. However, she acknowledged that his risk of intimate partner violence qould be higher in the event that he formed a new intimate relationship. 27. Having taken into account all of these factors, I am satisfied that the defendant poses an unacceptable risk of committing another serious offence if an ESO is not made. In reaching that view, I have had regard to all of the mandatory factors in s 9(3) of the Act, and have had particular regard to the opinions of Mr Ardasinski, Dr Rodriguez and Dr Singh to which I have referred. Bearing in mind that conclusion, and also bearing in mind that the safety of the community is the paramount consideration, I am satisfied that I should exercise the discretion to make the ESO sought. 28. In reaching those conclusions, I have taken into account the fact that the defendant is a diagnosed schizophrenic which, in the opinion of Dr Singh, is a factor which increases his risk of violent re-offending. Further, whilst there is evidence that the defendant has generally complied with his supervision to date, there is also a history of his having a lack of insight into his offending, a tendency to blame Ms Ling, and an expressed self-belief that he does not require treatment. In these circumstances, I am satisfied that an ESO is required to manage the defendant's general risk in the community.