IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Criminal Division
S ECR 2023 0100
S ECR 2023 0103 

THE DIRECTOR OF PUBLIC PROSECUTIONS	Crown	
		
v 		
		
TONG VUONG	Accused	
		
and		
		
YU YING JUAN		

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JUDGE:	Champion J	
WHERE HELD:	Melbourne	
DATES OF HEARING:	9 & 15 October 2024	
DATE OF SENTENCE:	20 December 2024	
CASE MAY BE CITED AS:	DPP v Vuong	
MEDIUM NEUTRAL CITATION:	[2024] VSC 821	

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CRIMINAL LAW — Sentence — Co‑accused — Charges of manslaughter on a complicity basis — Deceased stabbed five times — Co‑accused did not stab deceased — Witness admitted in the course of trial to having stabbed deceased — Jury returned guilty verdict — Visa status complications for co-accused — Verdins enlivened — General deterrence — Denunciation — Just punishment — Specific deterrence — Rehabilitation — Lower to mid‑range seriousness for manslaughter.

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APPEARANCES:
	Counsel	Solicitors	
For the Crown	D Hannan
N Simpson	Office of Public Prosecutions	
			
For Accused Vuong	J McQuillan	Marshall Jovanovska Ralph Criminal Lawyers	
			
For Accused Juan	J Desmond	Giorgianni & Liang Lawyers	

HIS HONOUR:
Introduction
1	Tong Vuong and Yu Ying Juan, on 26 April 2024, following a 25‑day trial, you were found guilty by a jury of the manslaughter of Dai Hai Lam (‘Mr Lam’) on 7 July 2022.
2	The maximum penalty for the crime of manslaughter at the time of your offending was, and still remains, 25 years’ imprisonment.
Background
3	The deceased man, Mr Lam, was born in Vietnam on 1 September 1972 and was 49 years old at the time of his death.  He was the third child of Phuoc Dai Lam and Thi Dung Tran, and had two older siblings, Thuy Duong Dai Lam (Sandra) and Hoang Dai Lam (Michael), and two younger siblings, Dai Ha Lam‑Molnar (Cindy) and Hanh Dai Lam (Jenny).  
4	In January 1983, when Mr Lam was 10 years old, he and his family fled Vietnam by boat and sailed for 10 nights to Malaysia, where they remained in a refugee camp for six months before arriving in Australia on 11 July of that year.  The family settled in Sydney.  
5	In 1988, at the age of 16, Mr Lam left school and commenced working at his parents’ clothing factory, which they had purchased and operated in the early years following their arrival in Australia.  Mr Lam worked at the factory for some time, however, following the sudden death of his father in 1995, declined into involvement with drugs and crime.  
6	In February 1998, following a period of imprisonment, Mr Lam moved to Melbourne to live with his sister in an attempt to remove himself from negative associations in New South Wales.  While living in Melbourne, Mr Lam had four children, Jason, Vanessa, Tiana, and Thomas.  Although Mr Lam enjoyed some periods of stability, a fire in 2002 which destroyed his family home, was the catalyst of a further decline, and he recommenced engaging in drug use and criminal activity.  
7	Despite moving back in with his mother in the months prior to his death and attempting to improve his life, his family noticed a change for the worse in his behaviour, as he became more isolated and secretive.  
Circumstances of the offending
8	Shortly before midnight on 6 July 2022, Mr Lam was attacked and stabbed multiple times inside a unit on Margrave Street, St Albans.  In the course of the attack, at least one person, perhaps more, stabbed Mr Lam five times.  As a result, he suffered a severed femoral artery, and experienced blood loss at a rapid rate.  Expert forensic evidence established that he would have expected to die within approximately three minutes.  
9	Shortly after Mr Lam was attacked, he was dragged from the unit and left on a front nature strip where, if he was not already deceased, he died shortly thereafter.  
10	The lead‑up to these events appears to have started about one week prior.  The prosecution case at trial was that Leanne Craig, a woman involved in the selling and trafficking of drugs, arranged the sale of a large amount of heroin, reportedly worth about $70,000, to you, Juan.  It is alleged that Mr Lam delivered the drugs to you in exchange for money.  Soon after the delivery, a number of people ‘ran‑through’ your house at Thomastown, and performed what was described as a ‘drug rip’, meaning that the heroin was stolen from you.  During these events, violence was used against you, and you apparently suffered a black eye.  Shortly afterwards, suspicions were raised regarding who had committed the robbery, with Nicholas Peng (‘Peng’), an associate of yours, identified as a major suspect.  
11	At a subsequent meeting involving both of you, Vuong and Juan, Peng, and others, accusations were made and threats were levelled, in the presence of weapons, at Peng.  Despite these accusations, it appears that Peng was able to convince people that he was not responsible and, throughout the days that followed, the pair of you considered who was involved.  By 6 July, the focus turned to Mr Lam as the person responsible for the ‘drug rip’.  
12	On 6 July, the same night as Mr Lam’s death, a number of people assembled at 9 Palm Street, Thomastown.  This group included the both of you, Peng, and some others, with CCTV vision showing five people to be present.  The group travelled to the unit in Margrave Street, St Albans.  At trial, there was controversy regarding who was present when certain events occurred, and as to which people participated in and carried out various actions, in particular the attack on Mr Lam.  
13	The principal prosecution witness who was present for the events on 6 July was Peng, who gave an account in evidence regarding what happened.  Ultimately, in its closing address, the prosecution conceded that Peng demonstrated himself at times to be ‘dishonest, unreliable and unsatisfactory in many respects’.  It was also conceded that, at one stage during his evidence, and whilst in the presence of the jury, Peng admitted to having ‘shanked’ Mr Lam.  Peng agreed that he admitted this fact to a number of people in a video recording taken on 12 July.  A number of times during his evidence before the jury, Peng was granted certificates pursuant to section 128 of the Evidence Act 2008 (Vic).
14	Despite the unsatisfactory nature of Peng’s evidence, and numerous significant inconsistencies, the prosecution ultimately argued that his evidence was not fatal to the Crown case, and was capable of acceptance in important respects.  The prosecution referred to Peng’s assertion that he made admissions regarding his past conduct during evidence as he had previously and continued to feel intimidated even throughout the court proceedings.  The prosecution argued that the matters impacting Peng’s reliability and credibility, including his inconsistent evidence, were all matters for the jury’s consideration.
15	In its closing address, the prosecution summarised its case for the jury, and argued that the charge of manslaughter had been proven on a complicity basis, with the two of you involving yourselves in the commission of manslaughter by an unlawful and dangerous act.  However, the Crown did not elect to nominate who stabbed Mr Lam.  The case put by the prosecution was that, ‘the principal offender, a stabber, committed the stabbing that caused the death of Mr Lam, and that the act of stabbing, or the attacking with a sharp knife, was conscious, it was voluntary and deliberate and that the attack, the stabbing with a knife, was unlawful and it was objectively dangerous.  It caused, and had a real appreciable risk of causing serious injury’.  In putting the case on this basis, the prosecution conceded that the jury may ‘legitimately have a doubt about who it was that inflicted the fatal wound, or any of the stabs’.
16	Despite concluding as such, the prosecution put to the jury that you, Juan, involved yourself in the commission of this unlawful attack involving blades, knives, and sharp instruments, by assisting or encouraging those within the St Albans address who possessed those weapons.  The jury were told that you did this by brandishing a taser, which was later found at the scene, whilst others were holding sharp instruments.  The prosecution also argued that the jury could accept Peng’s evidence that, during the confrontation in the unit, you, Vuong, held a bladed weapon, and at one point you had Mr Lam pushed up against a wall.  It was further put by the prosecution that the jury could accept that the confrontation with Mr Lam involved accusations with respect to the ‘drug rip’, and that the accusations became physical, involving scuffling, and grappling.  In these respects, the prosecution case was that you were both complicit and actively participated in the events, however, neither of you physically stabbed Mr Lam.  
17	After the attack, Mr Lam was dragged out of the apartment and placed on the nature strip.  At one point, you, Juan, got into and started your car in preparation for leaving the scene.  You desisted from moving the car because the police had arrived and were by then checking Mr Lam’s body.  Meanwhile, you, Vuong, were making frantic efforts to clean up the scene, and at one point retreated to a bedroom and hid under a bed, where you were later found by police.  
18	Upon their arrival at approximately midnight on 7 July, police and emergency services performed CPR on Mr Lam, however, after approximately 30 minutes, resuscitation efforts ceased, and it was confirmed that Mr Lam had died.  A police investigation then commenced which revealed a blood trail leading to the back door of Vuong’s unit.  In addition to you, Vuong, being located in the bedroom, police also located various other items inside the unit, including a samurai sword, a black and orange handled knife, a white handled kitchen knife, and a nail gun.  
19	An autopsy performed on the body of Mr Lam revealed the cause of death to be a stab wound of between 110 and 120 millimetres in depth in Mr Lam’s thigh, which caused an incomplete transection of the left femoral artery with an associated haemorrhage into adjacent tissues.  The forensic pathologist also located four other stab wounds of various depths around the hip and buttock areas, as well as areas of bruising to the upper body.  
Arrest and interview
Tong Vuong
20	Tong Vuong, you were arrested and taken to the Sunshine police station on 7 July 2022, the same morning as the offending, after you had been located by police hiding under a bed in the rear bedroom of your unit.  In your record of interview, you gave police a false account of the events, in which you blamed the conduct resulting in Mr Lam’s death on a fictional character.  The prosecution put to the jury that these responses in your record of interview are indicative of a guilty mind.  At the conclusion of the interview, you were charged with Mr Lam’s murder and remanded in custody.  
21	The following day, on 9 July 2022, you indicated that you wanted to speak to investigators again and provide a more truthful account of what had occurred on the evening of Mr Lam’s death.  Homicide Squad investigators, with the assistance of a Vietnamese interpreter, attended the Melbourne Assessment Prison on 15 July 2022, and obtained a written statement from you.  
22	In this subsequent statement, you explained that you were present during the assault on Mr Lam, who had attended your apartment with the two men, Peng and another man named ‘Jackson’.  You detailed how Mr Lam, Jackson and Peng became involved in a physical altercation, during which you noticed blood gushing from Mr Lam.  You said that Jackson and Peng then carried Mr Lam from the unit, while you stayed to clean up.
23	I note that you maintain your innocence of the matters before the Court.  
Yu Ying Juan
24	You initially spoke to police after they arrived at the scene, and gave a short, and false, explanation of what had occurred.  At this stage, police regarded you as a potential witness.  
25	Later, on 18 July 2022, Homicide Squad investigators executed search warrants at your Thomastown address and you were then arrested by police.  You did not participate in a record of interview, however, were charged with Mr Lam’s murder and remanded in custody.  You have also maintained your innocence of the charge you have been found guilty of committing.  
Procedural history
26	Following your respective remands into custody, the matter proceeded to trial in this Court.  Preliminary arguments took place on 18 and 19 March 2024, and the trial commenced on 20 March 2024.  
27	On 26 April 2024, the jury returned a verdict of guilty with respect to the charge of manslaughter against you both.  The matter proceeded to a plea, which was heard on 9 and 15 October 2024.  A number of documents were filed and submissions made on your behalf, which I will address below.
Victim impact statements
28	The Court has received a number of victim impact statements from those closest to Mr Lam, each of which I have read carefully and considered.
Cindy Dai Ha Lam‑Molnar
29	Mr Lam’s sister, Cindy, describes in her victim impact statement the profound impact that Mr Lam’s death has had on her and her family’s lives.  Ms Lam‑Molnar explains that her brother was a beloved member of the family whose presence brought joy, love, and unity to their lives, and that his loss has had an extensive emotional toll.  Ms Lam‑Molnar details her personal struggles following the death of her brother, and expresses her hope to find some peace at the conclusion of the legal proceedings.
Thuy Duong Dai Lam
30	Thuy Duong, who was Mr Lam’s eldest sister, describes the close and supportive relationship she and her brother shared, and details the heartbreak she endures via the knowledge that she could not assist Mr Lam in his time of need.  Ms Lam expresses immense sadness due to the loss of her brother, which is felt by her and by her children, Mr Lam’s nieces and nephews, with whom he had a close relationship.
Hanh Dai Lam
31	Mr Lam’s youngest sister, Hanh Dai Lam, describes her brother as a superhero, and her protector, confidant, and dearest friend, whose vibrant personality filled the family home with light.  Ms Lam explains the heartbreak and shock evoked by Mr Lam’s passing, heightened by the loss of the plans the pair had for the future.  She details the profound sadness that the loss of her brother has caused, which she notes will linger for a long time.  
32	In summary, the victim impact statements confirm that Mr Lam was a much loved family member who will be sorely missed.  
Personal circumstances
Tong Vuong
33	Tong Vuong, you were born in Vietnam on 29 September 1988 and you are now 36 years old.  You grew up in Saigon with your family, which consists of your parents and one younger brother.  You describe your family as ‘middle‑class’.  
34	As a young child, you developed normally in a generally happy and stable environment, however you suffered from severe gastro‑intestinal issues which resulted in frequent hospitalisations.  Your care needs were such that you were sent to live with your paternal grandparents, and you remained in their care until their passing, at which time you moved in with your uncle before returning to your parents at the age of 12.  You remain on good terms with your family.  
35	With regard to your education, you attended local schools in Vietnam.  You were an average, normal student, who acquired functional Vietnamese literacy and numeracy skills without undue difficulty, and progressed through each school year without the need to repeat.  You completed the equivalent of Year 12 in Vietnam, and experienced no significant academic, behavioural, disciplinary, or social issues throughout your time at school.
36	Following the completion of your schooling, you worked in your family’s grocery business for approximately six years before moving to Australia on a student visa in 2012.  On arrival in Australia, you studied hotel management, however, you discontinued these studies for the purpose of engaging in paid work.  You worked predominantly as a kitchen‑hand, however, became unemployed during the coronavirus pandemic, and were subsequently unable to regain employment.
37	Following the discontinuation of your studies, your initial student visa lapsed.  You subsequently applied for a partner visa, as you were involved in a personal relationship at the time, however, this was revoked when your relationship broke down.  With the assistance of a migration agent, you had obtained a protection visa which was cancelled upon your arrest with respect to the present matter.
38	You have had two significant personal relationships, however, each has been problematic and unstable.  You have no children.  Your second relationship of about six months’ duration was with Yu Yi Juan, and this had ended before your arrest with respect to the present matter.  
39	You have reported a limited experience of psychological problems, the nature and impacts of which I will discuss shortly.  
40	You commenced using methamphetamine in 2017 at the recommendation of a friend who believed it would assist with alleviating symptoms of depression which you were experiencing at that time.  Your drug use escalated rapidly after this initial use, to the extent that you were using methamphetamine on a daily basis in increasing quantities up to between 1 to 2 grams each day.  This was the nature of your drug use as at the time of your arrest, and you could likely have been described as substance dependent.  You did not seek drug treatment during this time, however, have done so more recently.  It is evident that your drug use created a pathway to involvement in criminal offending.
41	In addition to methamphetamine, you have had experiences with cannabis, ketamine, and other substances, however, have done so on an opportunistic basis and have no reported dependence on these substances.
42	You have no previously recorded criminal history.  I will say more about the impact of your previous drug use later.  
Yu Ying Juan
43	Yu Ying Juan, you were born on 28 September 1976 and are now 48 years of age.  You were born and raised in the Bac Lieu province in Vietnam, where your parents worked on rice farms.  You have one younger brother and one older sister.  Despite your family being quite poor, you had a stable and loving childhood.
44	With respect to your education, you attended secondary school in Vietnam and studied business management at university for three of the required four years.  You performed well academically, maintained good attendance, and had no behavioural issues throughout your schooling.  
45	Your first position of paid employment was as a factory worker in Taiwan.  You later operated a Vietnamese takeaway business for three years.
46	You experienced good health during your childhood, suffering no serious illnesses or injuries.  In adulthood, you have experienced low blood pressure, and have had a plate inserted in your shoulder following a motor vehicle accident in 2012.  
47	In 1996, at the age of 21, you married a Taiwanese man who was introduced to you by a distant cousin.  Together, you moved to Taiwan and had a son in May 1997.  Your relationship with your husband was then stable, however, you grew apart over time, and in 2011 you divorced.  Following the divorce, you continued to live independently in Taiwan for about five years.  Your son remained living with his father, as mandated by Taiwanese law, however you maintained regular contact with him and were able to visit him without opposition from his father.  
48	In 2016, you moved to Australia and commenced a relationship with Chi Thanh Nguyen.  While in Australia, you attempted to engage in an accounting degree, however, this was disrupted by the coronavirus pandemic.  You worked as a care‑giver for the elderly for 12 months, however, stopped working to care for Thanh and his mother, both of whom suffered from mental illness.  In your current prison setting, you do cleaning work.  
49	You commenced using methamphetamine in 2019 after being introduced to the drug by your partner, Thanh.  You smoked methamphetamine approximately three times per week up until your arrest.  You also used ecstasy on an occasional basis, however, use of this substance was less frequent than that of methamphetamine.  The nature and extent of your drug use is indicative of a significant period of drug involvement.  
50	In your adulthood you have experienced some significant mental health challenges, the impacts of which I will discuss later.  
51	You have no prior criminal convictions.
52	As with Tong Vuong, I note that you maintain your innocence of the matters before the Court.  
The parties’ submissions
Submissions for Vuong
Circumstances and objective gravity of the offending
53	Your counsel submitted that the role you played in the offending is what is at the heart of this matter.  It is pointed out that the prosecution concedes that it is not known who, or how many people, in fact stabbed Mr Lam, and it is submitted by counsel on your behalf that there can be no finding that you or Juan had done so.  Your counsel further submits that, at its highest, your role must be limited to assisting or encouraging the commission of the offence by assaulting, grappling or scuffling with Mr Lam, pushing him against a wall, and holding a samurai sword at him, as is the way the prosecution case was put in closing.  
54	In light of the evidence of Peng, which I have discussed above and will touch on further, counsel submits that there is some doubt regarding the extent to which your role in the offending, as put forward by the Crown, can be relied upon, even at its highest as detailed above.  It is for this reason that your counsel contends that your offending is within the lower to middle range of manslaughter offences, which is a variable offence, with each case turning on its own facts. 
Psychological report
55	With respect to the state of your mental health, the Court received a report from clinical and forensic psychologist, Mr Patrick Newton, dated 12 August 2024.  
56	Significantly, Mr Newton is of the opinion that you are neither paranoid nor delusional, nor is there any indication of psychotic thought processes.  You appear to be of average intelligence, and there is no evidence of intellectual impairment.  Given that you deny the offending behaviour, Mr Newton states that he could not discuss with you any potential effects of psychological issues on your offending behaviour.  
57	Mr Newton’s conclusions are relied upon by your counsel for various purposes.  In addition to detailing a comprehensive history of your family, education, employment, drug use, and other matters forming part of your life to this point, counsel also highlights that the report contains some evidence of your insight into your drug use and ongoing commitment to addressing this issue.  Mr Newton concludes that your drug use was of sufficient intensity to meet the criteria for methamphetamine dependence from which you were suffering at a moderate to severe level at the time of the offending.  It is noted that this issue is in remission now that you are in a controlled environment.  
58	In his report, Mr Newton notes that whilst your recovery is still in its early stages, your intention to pursue positive change ‘appear[s] genuine’, and could, if you persist with your recovery, provide a foundation for further treatment.  It is submitted by your counsel that Mr Newton’s assessment of your commitment to recovery as ‘genuine’ is a matter of some weight given Mr Newton’s extensive experience and ability to identify the extent to which a person is truly engaging with a recovery pathway. 
59	A second matter of significance stemming from the report, as highlighted by your counsel, is Mr Newton’s observations with respect to your experience in prison as a person of a non‑English speaking and cultural minority background.  Given that you speak somewhat limited English, you have experienced increased isolation as there are few other Vietnamese‑speaking inmates in your section of the prison, and you are not able to communicate with your family as you would otherwise be able to if you were not incarcerated.  Mr Newton reports that you have intense worries regarding your family in Vietnam.
60	It is Mr Newton’s opinion that, despite the context of your normal personality adjustment, your non‑English speaking and cultural minority background are ‘major vulnerabilit[ies]’ for you as a prisoner, which have increased your isolation and decreased your access to supports and relevant professional treatment.  Given these views, counsel on your behalf contends that your experience in incarceration has and will continue to be more burdensome and onerous than that of other prisoners.
61	The final matter stemming from Mr Newton’s report to which your counsel draws the Court’s attention is your categorisation as a ‘moderate’ risk of violent recidivism, which would be increased if you revert to illicit drug use, or become associated with dysfunctional peer groups.  Mr Newton is of the opinion that, provided you actively engage in comprehensive drug‑related treatment, violence reduction programs, and anxiety‑related counselling, your long‑term rehabilitative prognosis is positive.  
62	Initially, it was submitted on your behalf that limb five of Verdins is enlivened, in that your mental health issues and vulnerabilities would make your time spent in custody more burdensome.  However, counsel has not pursued the application of Verdins, and instead refers only to your vulnerabilities in the context I have referred to above.  
Risk of deportation
63	A further matter raised in mitigation on your behalf is the risk of deportation you face should you be sentenced to a term of imprisonment of greater than 12 months.  You are not an Australian citizen.  As detailed above, whilst you arrived in Australia on a student visa, this was cancelled when you ceased your studies.  You were then in this country on a partner visa, however, your relationship broke down and cancellation of this visa followed.  You were then subsequently placed on a protection visa, however, this has also been cancelled.  
64	Counsel on your behalf notes that you have been in Australia for over a decade and intend to continue to build a life here, despite the difficulties you have faced as a consequence of your heavy drug use.  It is pointed out that the Migration Act 1958 (Cth) mandates visa cancellation should you be sentenced to greater than 12 months imprisonment, subject to being able to satisfy the Minister that there is a reason to revoke the cancellation decision.  Your counsel contends that the ongoing risk of deportation is a relevant consideration that should be taken into account in your favour.  
65	I am only prepared to accept, based on the material before me, that your status in this context is unclear.  It appears that your visa was cancelled upon your arrest for this offending, and therefore the length of any sentence imposed may have no effect on your status as an unlawful non‑citizen, nor result in a visa cancellation.  Whilst a sentence of 12 months or more does give the Minister grounds to reject your application for a visa, such a sentence does not, in and of itself, mandate rejection.  The Minister can deport you as an unlawful non‑citizen, however only if your visa has been cancelled, which it appears to have been, and where you have not made a valid application for a substantive visa that can be granted.  There is no evidence before the Court that you have made a subsequent visa application since the cancellation of your last visa, nor that you intend to do as such.  In all the circumstances, I will acknowledge that that you endure some uncertainty in this regard, and I consider this a factor that weighs in your favour.  
66	This factor was argued by counsel to have a two‑fold mitigatory effect.  Firstly, your potential future deportation can be considered an extra‑curial form of punishment and, secondly, your time in custody has been, and will continue to be, more burdensome than it is for others due to the anxiety caused by the prospect of future deportation.
Prior criminal history
67	Counsel on your behalf identified your lack of prior criminal history as a significant matter, especially your lack of any prior violent offending for which you are now before the Court. 
Prospects of rehabilitation
68	Counsel puts forward a number of factors which, when considered cumulatively, are capable of suggesting that your prospects of rehabilitation are good.  These factors include:
(a)	the absence of prior criminal history and pending matters; 
(b)	your violent offending was out of character;
(c)	your maintenance of regular employment throughout your life both in Vietnam and during your early years in Australia;
(d)	the additionally burdensome experience of custody due to the anxiety caused by the prospect of deportation;
(e)	your expressed willingness to continue to engage in rehabilitative treatment; and
(f)	the assessment by Mr Newton that you are in the ‘moderate’ risk range for violent reoffending.
Sentencing disposition
69	Counsel on your behalf ultimately submits that, in all of the circumstances, a period of imprisonment with a longer than usual parole period is an appropriate sentencing disposition, and would adequately satisfy all relevant sentencing considerations in this case.
Submissions for Juan
Circumstances and gravity of the offending
70	Your counsel refer to a number of matters which are relevant to the Court’s analysis of the circumstances and gravity of your offending in this matter.  It is accepted that you knew Mr Lam, that he was overpowered during the events in the St Albans unit at which the offending occurred, and that the offending was committed in the company of others.  
71	However, it remains disputed whether Mr Lam was lured to the St Albans property, and it is the Crown’s position that he was so lured.  Your counsel submits that, should the Court accept the prosecution’s position, the weight of the evidence is not capable of establishing that you played any part in that process, rather, this was the conduct of Peng, Booth, and Craig.  Reference is made to the prosecution’s opening at trial, in which it is put that your involvement in the offending was on the basis of an agreement, assistance and encouragement.  Your counsel draws the Court’s attention to the fact that, in contrast to the opening, the Crown closed the matter to the jury by making reference to assistance or encouragement only.  As such, it is submitted on your behalf that the Court cannot be satisfied beyond reasonable doubt that you stabbed the deceased, were in possession of a knife, or involved in any agreement to assault Mr Lam.  
72	The absence of your involvement in the physical conduct comprising the offending, or the planning which occurred prior, is heightened, according to counsel, upon consideration of the evidence of Peng, who gave evidence at trial that there was no agreement to assault or kill Mr Lam before he was stabbed.  
73	As to what you actively did during the alleged offending, counsel again draws the Court’s attention to the evidence of Peng, who testified that you were ‘just standing around’ and did not say anything during the physical assault of Mr Lam.  Counsel further highlights that, in the prosecution’s closing address, the only reference to your involvement in the physical assault is by way of encouragement, which, according to the prosecution, you performed by standing nearby with a taser.
74	Ultimately, your counsel submits that, of all the participants in this offending, your involvement is at the lowest end.  As I have referred to above, it is argued that, in determining your role in these events, the Court cannot be satisfied beyond reasonable doubt that you stabbed Mr Lam, or that you possessed a knife at any relevant stage, and in that sense, your role was a limited one.
75	Additional matters acknowledged by counsel include the fact that the offending was not predatory or persistent, a weapon was used, however, not by you, and that there were five stab wounds suffered by Mr Lam.  
Personal circumstances
76	Counsel has identified your personal circumstances as a fundamental sentencing consideration overlapping with the circumstances of the offending in this instance.  Counsel submit that these personal circumstances are relevant to the matters of rehabilitation, deterrence, protection of the community, and the degree of leniency or severity called for in this matter. 
77	Counsel refer to the reports of psychologist, Dr Gina Cidoni, dated 11 July and 3 October 2024, which were tendered at the plea and detail extensively your personal background, much of which I have referred to above and need not repeat.  
Psychiatric issues
78	Based on your self‑reported history, psychometric testing, and evaluation findings, Dr Cidoni diagnoses you with Major Depressive Disorder, Generalised Anxiety Disorder, and Methamphetamine Use Disorder.  Whilst each of these disorders are of a long‑standing and chronic nature, Dr Cidoni notes that the Methamphetamine Use Disorder is now in remission given that you are remanded in custody and have refrained from drug use.  In Dr Cidoni’s opinion, these conditions ‘likely’ had a ‘profound’ impact on your mental capacity at the time of the offending, and impaired your judgement, heightened your impulsivity, and distorted your perceptions of reality with the effect of potentially influencing your behaviour.  
79	These conclusions by Dr Cidoni, and significantly the causal link drawn by Dr Cidoni between the diagnosed conditions and your offending, are submitted by counsel to have relevance in mitigation.  Counsel contends that, although your mental illnesses are not such that you were unable to appreciate the wrongfulness of the offending, this does not preclude them from playing a real part in your offending behaviour and, as such, forming a compelling factor in the sentencing calculus.  Furthermore, Dr Cidoni is of the opinion that these conditions have worsened during your time in prison.  Ultimately, it is submitted that each of these matters mandate the imposition of a sentencing discount.  
80	Given the matters raised in Dr Cidoni’s report discussed above, counsel submit that limbs one, three, four, and five of Verdins are each enlivened in this matter and thus the Court should:
(a)	consider reducing the moral culpability of your offending as opposed to your legal responsibility, and as such lessen the significance of denunciation as a sentencing consideration; 
(b)	modify the weight given to general and specific deterrence; and
(c)	conclude that prison will likely be more onerous for you by reason of your mental health.
Rehabilitation
81	Counsel submits that your prospects of rehabilitation are reasonable to good given that the offending conduct was out of character, you have no violent criminal history, and pose little risk to the community upon release as the offending was victim focussed.  Additionally, the Court’s attention is drawn to a number of reports and certificates which indicate that you have used your time on remand in a positive way.  
82	With respect to your mental health, Dr Cidoni notes that you have received minimal psychological treatment to this point, and that a treatment plan should prioritise therapy sessions and substance abuse treatment to address depression and anxiety issues, and enhance motivations for change and relapse prevention strategies.  
83	There was some conjecture with respect to the application of Verdins to your circumstances and, consequently, the Court heard oral evidence from Dr Cidoni.  During Dr Cidoni’s evidence, reference was made to her finding that you suffered from Methamphetamine Use Disorder (now in early remission), Major Depressive Disorder, and Generalised Anxiety Disorder which, in combination, likely had a profound impact on your mental capacity at the time of the offending.  It was noted that, in a subsequent comment in the report, Dr Cidoni observed that these conditions, ‘may’ have impaired your judgement.  Clarification was sought with respect to the use of ‘likely’ and ‘may’, and Dr Cidoni, in effect, gave evidence that she intended these words to mean the same thing.  Dr Cidoni explained that the Methamphetamine Use Disorder was the ‘major contributor’ to your offending behaviour, and that the symptoms of Major Depressive Disorder and Generalised Anxiety Disorder can be exacerbated by drug use.  Ultimately, Dr Cidoni opined that the Methamphetamine Use Disorder was the major contributing factor to your offending.  
84	Cross‑examined, Dr Cidoni confirmed that the tests which she applied to you related to your current circumstances and relied on your self‑reporting, as opposed to past clinical observations and historical medical documents.  Dr Cidoni opined that Major Depressive Disorder is generally a chronic condition and in your case tied to long‑standing experiences or life events which occurred prior to your incarceration, some of which I have referred to above.  Dr Cidoni referred to Justice Health records which establish that, since being in custody, you have been treated for depression and prescribed anti‑depressants, and recorded one self‑harm event.  However, the records did not indicate that you were treated for depression before going into custody, and Dr Cidoni confirmed that she had not received any documents relating to your physical and mental health prior to her assessment of you, nor did she have any knowledge of such matters.  
85	Ultimately, Dr Cidoni sought to affirm her opinion that the three conditions with which she diagnosed you had a profound impact on your mental capacity at the time of your offending, with the major factor being the Methamphetamine Use Disorder.  Dr Cidoni affirmed her belief that these conditions likely existed before, and were either exacerbated or caused by your regular stimulant drug use.  In cross‑examination, Dr Cidoni agreed that it is difficult to untangle the disorders from which you suffer and the extent to which they each contributed to your behaviour, however, maintained that the Methamphetamine Use Disorder was the most prominent in this regard.  It was also conceded that there is some doubt as to whether you were suffering from any depressive or anxiety‑based disorders at the time of your offending, given that you were assessed more than 12 months following the event.  
86	It is noted that the principles of Verdins are not enlivened with respect to drug use and its effects, however, your counsel submits that, if the Court is satisfied on the balance of probabilities that your depressive and anxiety‑based disorders exacerbated your drug‑use disorder, and that the exacerbated drug‑use disorder impaired your judgement and cognitive function at the time of the offending, then Verdins has some modest application in this matter.  
Deportation
87	Your counsel submits that the risk of deportation is a relevant matter in mitigation.  You are not an Australian citizen, and as such your presence in Australia is by way of bridging visa only.  Whilst it is not submitted on what basis the sentence imposed in this matter will affect your visa status, counsel contends that the Court can consider the prospect of future deportation as an extra‑curial form of punishment, and will render your experience in incarceration more burdensome relative to others due to the anxiety caused by the prospect of deportation.  
Parsimony
88	Counsel submits that the principle of parsimony has application in this case.  Reference is made to section 5(3) of the Sentencing Act 1991 (Vic) (‘Sentencing Act’), which mandates the Court’s obligation to impose the shortest term of imprisonment consistent with the achievement of the relevant sentencing purposes.  
Sentencing disposition
89	It is counsel’s ultimate contention that, when considering the matters detailed above, you are entitled to a sentence for manslaughter which is significantly less than the average for such offending, especially given the limited extent to which you were involved in the offending conduct.  
Submissions for the prosecution
Roles in the offending
90	The prosecution case in closing the matter at trial was that you, Vuong and Juan, were complicit in the stabbing death of Mr Lam by your assistance to, and encouragement of, the unknown co‑offender who performed the stabbing. 
91	The prosecution’s submissions with respect to the factual findings upon which the sentence should be imposed are that, regarding the involvement of you, Juan, you encouraged the commission of the offending by brandishing a taser at Mr Lam whilst he was about to be, or was being, held against the loungeroom wall in the St Albans unit.  With respect to you, Vuong, the prosecution submits that you assisted or encouraged the commission of the offending by assaulting, ‘grappling’, or ‘scuffling’ with Mr Lam, pushing him against the loungeroom wall, and holding a sword at him.  
92	The prosecution argues that the jury must have accepted some of Peng’s evidence in order to find you both guilty of the offence of manslaughter.  This is put on the basis that the jury’s acceptance of your post‑offence conduct alone could not have been sufficient to establish the required assistance or encouragement to support guilty verdicts.  Accordingly, it is submitted that the Court should rely on the ability or capacity of Peng’s evidence to establish guilt to the lowest extent possible.  Thus, it is argued that a finding cannot be made to the requisite standard about who, or how many people stabbed Mr Lam.  More particularly, it is acknowledged that the Court cannot make a finding that it was either Vuong or Juan who did the stabbing.
Post‑offence conduct
93	It is contended by the prosecution that your actions, Juan, in entering your car and attempting to leave the scene of the crime prior to the police arrival, and requesting via text message that Vuong locate Mr Lam’s phone, are examples of post‑offence conduct and amount to implied admissions of involvement. 
94	With respect to you, Vuong, the same contention is put forward by the prosecution with respect your conduct in cleaning up the blood in the St Albans unit, deleting the contents of your mobile phone, hiding under the bed in an attempt to avoid police detection, communicating with Juan regarding the disposal of Mr Lam’s phone and what was occurring at the unit following the arrival of police, and the provision of false information to police in your record of interview and formal statement.  The prosecution dispute that you told Peng to call 000.
Gravity of the offending
95	The Crown submits that the offence of manslaughter, which inevitably involves the unlawful taking of a human life, is extremely serious, and it is for the Court to determine, given the vast array of circumstances in which such offending can take place, where each case falls on the spectrum of seriousness.
96	With respect to the current matter, it is the prosecution’s position that the offending is objectively serious given the degree of violence and aggression inflicted against Mr Lam.  The Crown, in this context, makes reference to the role you both played in the offending, as I have detailed above, as well as to Mr Lam’s vulnerability in attending the St Albans unit alone and his defenceless position via being both outnumbered and unarmed; the absence of assistance provided to Mr Lam by you both after he was dragged onto the front nature strip; the presence of three weapons, namely a knife, taser, and samurai sword, during the offending; and your post‑offence conduct to which I have already referred.  
Sentencing regime and principles
97	Given that manslaughter is a category two offence under the Sentencing Act, the Crown further highlights that the Court must impose a term of imprisonment unless one of the relevant exceptions apply, none of which do in this case. 
98	The Crown makes clear that the Court must have regard to the matters set out in section 5(2) of the Sentencing Act, and must not impose a sentence that is of greater severity than necessary to achieve the purposes for which the sentence is imposed.
99	The sentencing principles of general deterrence, denunciation, and just punishment are identified by the prosecution as significant matters in cases such as this.  The Crown emphasises the importance of sentences in these cases to give due recognition to the sanctity of human life, and the intolerable nature of the type of violence evident in this matter.  The Crown’s submission is that the sentence this Court imposes must reflect stringent denunciation and stern punishment. 
Maximum penalty
100	As I have already stated, the maximum penalty at the time of the offending, and which has remained since, is 25 years’ imprisonment.  As is extensively highlighted by the Crown, the 25‑year maximum reflects a recent change to the maximum penalty for manslaughter made by Parliament in July 2020.  The Court is referred to the Second Reading Speech of Minister Hennesy, which, to summarise, makes clear Parliament’s intention to convey to the public and the legal community that previous sentences with respect to manslaughter offences were inadequate, and that this offence is considered an extremely serious one. 
Matters in mitigation — Vuong
101	The prosecution submits that, despite your lack of previous criminal history, you should not be considered a person of good character given that there was evidence at trial of your involvement in drug trafficking.  The prosecution contends that no finding of remorse can be made as you have not accepted responsibility for the offending.  
102	The prosecution accepts that the risk that you may be deported is a relevant matter for the Court’s consideration, both in the context that it acts as extra‑curial punishment, and that it enhances the burdensome nature of imprisonment due to the anxiety the prospect of deportation evokes. 
103	With respect to rehabilitation, the Crown does not challenge the submission of your counsel that your prospects are good.  However, it is noted that your prospects are closely intertwined with your ability to cease drug use and association with negative social groups.
Matters in mitigation — Juan
104	The prosecution contends, similarly to Vuong, that whilst you do not have any prior criminal history, you also should not be considered a person of good character as there was extensive evidence led at trial with respect to your involvement in drug trafficking.  Further, the Crown observes that you have not accepted any responsibility for your offending, and thus the Court cannot make a finding with respect to the presence of remorse.  
105	Again, as with Vuong, the prosecution accepts that the risk that you may be deported is relevant both in the context of extra‑curial punishment, and enhancing the burdensome nature of imprisonment due to the anxiety which the prospect of deportation evokes. 
106	With respect to the application of Verdins, it is the Crown’s position that limbs one, three, and four are not enlivened, as there is a lack of cogent evidence regarding the causal connection between the disorders diagnosed by Dr Cidoni and the offending in this matter.  
107	Despite Dr Cidoni giving evidence that it is more probable than not that your conditions had a profound impact on your mental capacity, it is the prosecution’s submission that, as conceded by Dr Cidoni, it was your methamphetamine use which was the major contributor to your behaviour at the time of the offending.  Additionally, it is submitted that Dr Cidoni’s evidence is that there is some doubt regarding whether you suffered from the depression and anxiety disorders at the time of the offending, although it is, in her view, likely that you were suffering as such.  
108	Therefore, given the prevalent impact of your drug use, and the existence of an underlying doubt as to the disorders with which you were suffering at the time of the offending, the prosecution submits that the Court cannot find, on the balance of probabilities, that a causal connection exists between your mental state and the offending.  Your drug use is identified by Dr Cidoni as the key dictator of your impulse control, judgement, and perception of reality at the time of the offending, and the prosecution submits that drug use cannot, in and of itself, be relied upon to enliven Verdins limbs one, three, and four.  
109	The prosecution accepts, to some extent, the application of limb five of Verdins, acknowledging that your experience in prison will be more burdensome because of your depression and anxiety, albeit to a limited degree.
110	With respect to rehabilitation, the prosecution does not challenge the defence position that your prospects are ‘reasonable to good’, however, submits that the assessment of your prospects is tied to your ability to refrain from drug use, cease associations with negative social groups, and engage with mental health treatment. 
Current sentencing practices
111	Finally, the prosecution makes reference to the sentencing reasons and application of sentencing principles in various matters involving manslaughter which have been heard in this State in recent years. 
Analysis and discussion
Objective seriousness of the offending
112	Whilst it may be properly said that this particular offence of manslaughter should be regarded as a serious example for the reasons expressed above, it is important to give consideration to the nature of your roles in that offending.  With respect to both of you, your counsel submits that your offending should be regarded as being towards, or between, the low to mid‑range of manslaughter offences.  This submission requires a degree of discussion and analysis of your respective roles in the offending.
113	As to my conclusions about the events which occurred inside Vuong’s unit resulting in the death of Mr Lam, and your respective roles, I am required to make findings which are consistent with the verdicts of the jury.  The prosecution witness, Nicholas Peng, was of course the principal witness who attested to the events at the time Mr Lam was assaulted and stabbed.  Peng was, on any view, and as I have remarked, an unsatisfactory witness in many respects, however, as it was entitled to do, the jury must be taken to have accepted his evidence to a sufficient extent to be satisfied beyond reasonable doubt of your guilt. 
114	In my opinion, the following can be safely concluded.  You were both present when Mr Lam was stabbed, and you were complicit in the events which took place in that you assisted or encouraged the person who committed the stabbing.  I am unable to safely conclude who that person was, however I do find that there is no evidence, and it appears accepted, that neither of you stabbed Mr Lam, nor that you knew he would be stabbed before it happened.  I accept that at some point you, Vuong, physically scuffled with Mr Lam, and at one stage brandished a weapon, most likely a samurai sword, at him.  As for you, Juan, I am able to conclude that you were present and brandished a taser at Mr Lam.  With respect to both of you, I find that Mr Lam was lured to the unit, however, I am unable to be sure enough to conclude that this was for a purpose of physically assaulting him, despite the fact there were weapons present.  The evidence of CCTV footage of you and others, leaving to travel from Juan’s house to the St Albans unit satisfies me that there was to be a confrontation with Mr Lam regarding the alleged drug rip.  However, I am not certain enough to conclude that this confrontation was for the purpose of physically assaulting Mr Lam.  Rather, I am more inclined to conclude that the events which intended to be confrontational and intimidating got out of control, and became violent.  
115	I also conclude that, in the aftermath of the stabbing, you both had the ability to assist Mr Lam, and you each failed to do so.  This lack of action is serious and must be denounced.  
116	An assessment of the seriousness of your offending must be made in light of the above findings.  The offence of manslaughter is an objectively serious type of offending, given that the offence leads to the death of a human being, however, as has often been said, this particular offence can occur in many different circumstances.  In this case, I am satisfied that Mr Lam was lured to the unit on the expectation that he would be confronted by a number of people.  In that respect, he was outnumbered and unarmed, and was greeted with an array of weapons deployed by angry people who intended to intimidate him.  You were both part of that plan.  However, it appears that things likely got out of control and took an unexpected turn, leading to the fatal events, with Mr Lam being stabbed five times by a person unable to be identified.  As a result of my findings, consistent with the jury’s verdict, in both your cases I can only conclude that your roles in the offending sit somewhere between the lower to mid‑range of seriousness.  
117	As to your actual roles in these events, the Court’s findings are constrained by the way in which the cases against you evolved at trial and were put by the prosecution in their closing address to the jury.  The Court is unable to find that your roles extended beyond being present and encouraging by your presence, and in the ways I have set out above.  
118	As to your respective levels of moral culpability, you both acted badly towards Mr Lam.  It is clear enough from the events of the week preceding his death that you formed the opinion that he was responsible for the drug rip, and you both were incensed by what you thought he had done.  As a result, you were both involved in an arrangement to confront him, in the company of others, with weapons.  In all of the circumstances, you must have both considered the possibility that matters could get out of control, which they did.  Confronting someone with weapons, when that person is outnumbered, is a serious matter.  You are both similarly morally culpable for carrying out that plan, but again, as I have said, I am unable to conclude that either of you stabbed him, or that a physical assault was part of the arrangement.  
119	Accordingly, I will sentence both of you on the basis that your actions should be regarded as being towards the minimum required to support guilty verdicts for the offence of manslaughter, in that you were both present, and that your involvement was, as put by the Crown, one of encouragement by your presence at the events, as I have discussed.
120	Further, you both took a number of steps after the stabbing of Mr Lam which were designed to conceal the crime committed and any part you played in it.  
121	As to your respective levels of moral culpability for this offending, I will act on the basis that I cannot conclude that either of you actually stabbed Mr Lam, and that you should be regarded as carrying a lesser level of culpability compared to the person who did stab Mr Lam.  You were, however, present and encouraging that person by your presence, albeit I cannot conclude that you knew that Mr Lam would be stabbed, or killed, and to that extent I cannot conclude you were aware or part of any plan to stab him.  
122	At the same time, your subsequent actions, which I have detailed, particularly in failing to seek assistance for Mr Lam, were entirely discreditable and lacked humanity.  Further, you both took steps to avoid detection of your involvement.  These matters limit the extent to which your culpability may be lessened.  
Sentencing factors and principles
Maximum penalty
123	As I have identified above, the maximum penalty for manslaughter was, at the time of the offending, and remains, 25 years’ imprisonment.  This is a matter to which regard must be had. 
124	Manslaughter is a category two offence under the Sentencing Act, and therefore the Court must impose a custodial sentence unless one of the relevant exceptions applies, which parties accept do not apply in this matter.
Sentencing considerations
125	In sentencing you both, the Court must have regard to the matters set out in section 5(2) of the Sentencing Act.  The Court must not impose a sentence that is more severe than necessary to achieve the purposes of its imposition.  
126	In assessing the appropriate sentences to be passed, I have had regard to current sentencing practices for the offence of manslaughter.  As observed many times, manslaughter can be committed in a multitude of ways and in different circumstances, making it difficult to determine with any precision what current sentencing practices are.  However, I have had regard to a number of past sentencing decisions to which counsel referred in their respective submissions.  
Seriousness of the offending
127	Nevertheless, as I have observed, the circumstances in which the offending occurred were serious, and resulted in the death of Mr Lam.  The objective evidence from the forensic pathologist establishes that Mr Lam was stabbed five times which, to some extent, must be regarded as a sustained attack, albeit it is likely that the events occurred in a short space of time.  Following the assault, Mr Lam was then dragged from the unit and taken to the front nature strip, where he was left to die.  None of those present at the scene when Mr Lam received his fatal injuries assisted him by calling for an ambulance, or medical assistance, except for Peng.
Matters in mitigation
128	With respect to mitigation, both of you have pointed to various matters for consideration.  I have taken all of these matters into account and have noted and discussed them above to various degrees.
129	With respect to you, Vuong, I have had regard to the likelihood that, given your visa status, and your expressed to desire to remain in this country, you are likely to find the serving of a sentence of imprisonment more burdensome due to the potential of deportation.  
130	With respect to you, Juan, you find yourself in the same position.  You both will live with uncertainty as to your eventual futures in this country, and accordingly these circumstances may be properly regarded as a form of extra‑curial punishment.  I have taken this matter into account.
Application of the Verdins principles to Juan
131	As discussed above, submissions were addressed to the Court, and evidence was called, with respect to the Verdins principles and whether a causal connection has been established between your mental functioning at the time of the offending, and your offending behaviour.  
132	Having considered the evidence of Dr Cidoni, and the respective submissions of the parties, I am unable to be satisfied on the balance of probabilities that there was a relevant causal connection between any of the stated disorders, and your offending.  I do not find the evidence to be sufficiently cogent to establish these matters to the required standard, this in part being due to the fact that there was no historical material to support the existence of these conditions at the time of your offending, and that the history provided to Dr Cidoni was by way of self‑report which occurred a considerable time after the offending and when you were in a custodial context.  That observed, I do accept, as it was conceded by the prosecution, that you suffer from a major depressive disorder now such that your custodial experience is likely to be more burdensome than if you were not suffering as such.  In that sense, I am satisfied that limb five of Verdins applies to you, and this will be taken into account in the assessment of the appropriate sentence to be passed.
133	As to general deterrence, denunciation and just punishment, as pointed out by the prosecution, it is important that sentences for examples of manslaughter give due recognition to the sanctity of human life, and have regard to the unacceptable type and degree of violence present in this case.  Accordingly, it is appropriate that general deterrence, denunciation, and just punishment are regarded as important factors of some significance.  
134	Specific deterrence and rehabilitation are relevant considerations with respect to you both.  Neither of you have established and formal prior histories of criminal behaviour, in particular, violent behaviour.  The evidence called at trial suggests that you have both been involved in the drug world to various degrees, and to that extent I cannot accept that either of you can be regarded as having previous good character.  Nevertheless, the evidence placed before the Court suggests that you both have reasonable prospects of rehabilitation, provided that you address a number of issues relating to drug abuse, anti‑social peers, and your mental health.  In both cases, your rehabilitation appears tied to your respective ability to cease drug use, removing negative associations, and engage with treatment.  On balance, I am of the opinion that you both have reasonable prospects for rehabilitation and, further, that specific deterrence does not need particular attention in the sentences to be passed.
135	The Court also acknowledges that your offending has had a number of wider impacts.  Not only has a man been killed and his life taken, but it is clear that Mr Lam’s family have been deeply affected by his death.
136	It is acknowledged that, having contested the charge before the Court, neither of you can rely on a discounted sentence on the basis of a guilty plea.  
137	Finally, it should be noted in respect of both of you, that you have been found guilty of the offence of manslaughter by a jury after a contested trial and, accordingly, no submissions were advanced relating to the issue of remorse.  It follows that no reduction in sentence can occur in these circumstances.
Sentences
138	Tong Vuong, having taken all of these factors into account, and weighing them, on the charge of manslaughter I sentence you to be imprisoned for 9 years.
139	Taking into account the desirability of giving you an appropriate non‑parole period, I order that you serve 6 years and 6 months’ imprisonment before being eligible for parole.  
140	Yu Ying Juan, having taken all of these factors into account, and weighing them, on the charge of manslaughter I sentence you to be imprisoned for 8 years.
141	Taking into account the desirability of giving you an appropriate non‑parole period, I order that you serve 5 years and 6 months’ imprisonment before being eligible for parole.  
Pre‑sentence detention
142	Tong Vuong, I further declare that that you have served 897 days of pre‑sentence detention, not including this day.
143	Yu Ying Juan, I further declare that that you have served 886 days of pre‑sentence detention, not including this day.
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