and Tony Nguyen v The Queen
[2015] VSCA 63
•15 April 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2015 0005 | |
| TONY NGUYEN | Applicant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | REDLICH, BEACH and KYROU JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 April 2015 | |
DATE OF JUDGMENT: | 15 April 2015 | |
MEDIUM NEUTRAL CITATION: | [2015] VSCA 63 | |
JUDGMENT APPEALED FROM: | DPP v Nguyen (Unreported, County Court of Victoria, Judge Tinney, 31 October 2014) | |
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CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Extortion accompanied by threat to inflict injury – Theft – Meaning of ‘appropriates’ in ss 72 and 73(4) of the Crimes Act 1958 – Owner compelled to write out false receipt for payment to purchase motor car – No assumption of owner’s rights – Sentence of 3 years’ imprisonment with non-parole period of 2 years – Double punishment – Whether sentence subjected applicant to double punishment – No double punishment – No error – Applicant with bad criminal history – No different sentence should be imposed – Application for leave to appeal against sentence refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Kassimatis | Valos Black & Associates |
| For the Respondent | Ms F L Dalziel | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
REDLICH JA
BEACH JA
KYROU JA:
Introduction
On 24 October 2014, the applicant pleaded guilty in the County Court to one charge of extortion with threat to inflict injury contrary to s 27 of the Crimes Act 1958 and two charges of theft contrary to s 74 of that Act. On 31 October 2014, the applicant was sentenced as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Extortion accompanied by threat to inflict injury [Crimes Act 1958 (Vic) s 27] 15 years [Crimes Act 1958 (Vic) s 27] 2 years, 9 months Base 2 Theft (Motor Vehicle) [Crimes Act 1958 (Vic) s 74] 10 years [Crimes Act 1958 (Vic) s 74] 9 months 2 months 3 Theft (CCTV Unit and $600 cash) 10 years 6 months 1 month Total Effective Sentence: 3 years Non-Parole Period: 2 years Pre-sentence Detention Declared: 472 days 6AAA Statement: 5 years with NPP of 3 years, 6 months
The applicant seeks leave to appeal against his sentence on the following ground:
In all the circumstances:
(a) the sentences imposed upon the applicant on charges 1 and 2;
(b) the order for cumulation made on charge 2; and
(c) the non-parole period fixed
subjected the applicant impermissibly to double punishment.[1]
[1]In the applicant’s notice of application for leave to appeal against sentence, there were originally two proposed grounds of appeal. However, proposed ground 1 was abandoned by the applicant shortly before the hearing in this Court.
The charges as particularised in the indictment
In the indictment, charge 1 was particularised as follows:
On 17 August 2013 [the applicant] made a demand of [the complainant] namely that he sign over the ownership of his 2002 black Holden Monaro coupe … to Eric Aranda [a co-accused] with a threat to inflict injury to [the complainant] if he did not agree to sign over the motor vehicle.
Charge 2 was particularised as the theft of the motor vehicle on 17 August 2013, and charge 3 was particularised as the theft of a CCTV DVR unit and $600 belonging to the complainant.
Circumstances of the offending
The complainant and Aranda had known each other prior to the offending as the complainant had purchased drugs off Aranda. At a contested committal, the complainant admitted that he owed Aranda thousands of dollars, and they had come to an agreement that the complainant would ‘work off’ his debt by doing mechanical work on Aranda’s car without payment. This work was to be performed at the complainant’s workplace, a motor repair factory run by the complainant and his family.
After the complainant had worked on Aranda’s car for some time, the complainant and his family became concerned that the car might be stolen. They decided that the complainant could not afford to be accused of stealing a car or of being involved in any criminal activity (modifying a stolen car), as the complainant was, at that time, on bail in relation to other criminal charges.
In the days leading up to 17 August 2013, the complainant was asked by his family to move the car on to the nature strip outside the factory and not to keep the car inside the factory or on its land. The complainant contacted Aranda on a number of occasions to advise him that his car was not going to be locked up any more, but was instead sitting on the nature strip outside the front of the factory. After a few days, the car was stolen from outside the front of the factory. Both Aranda and the complainant thought that the other had ‘stolen’ the car.
While these events were unfolding, intercepted telephone calls between the applicant and Aranda revealed that the applicant (who had recently been released from custody) was pursuing outstanding debts owed to him; that Aranda owed the applicant money; and that Aranda wanted to get money from the complainant so as to pay the applicant.
In the written summary of the prosecution opening (the contents of which were agreed between the parties), the actual offending on 17 August 2013 was described in the following terms:
At 9:30 am on 17 August 2013 the applicant together with Aranda and two other men went to the workplace of the complainant – a factory where the complainant was working as a mechanic. Also at the factory that morning was a friend of the complainant.
Upon arrival at the factory the applicant spoke to the complainant, tapping his hand on the complainant’s black Monaro and said ‘this one’s gone’ when the complainant said ‘No’ to the applicant – the applicant replied ‘Do you want to play this the hard way or the easy way?’
All of the men followed the complainant up inside the factory. The applicant and Aranda positioned themselves between the complainant [and the complainant’s friend] and the exit – detaining [them] both … inside the factory.
The applicant led the complainant into the office looking for registration paperwork relating to the car. Here he forced the complainant to complete and sign a fake receipt for his car for $10,000 (theft of MV):
CHARGE 1 – EXTORTION WITH THREAT TO INFLICT INJURY
Aranda then left the factory to arrange for a tow truck to remove the complainant’s car, which was achieved later that day. The applicant remained at the factory for a number of hours until the complainant’s car was placed onto the back of a tow truck and taken away.
CHARGE 2 – THEFT OF MOTOR VEHICLE
One of the men took $600 of the complainant’s cash from a filing cabinet. The applicant removed the Digital Video Recorder (DVR) that was recording CCTV footage inside the factory (arguably capturing the applicant committing the offences alleged) and gave it to Aranda when he returned with the tow truck to take the complainant’s car from the factory. Aranda later took the stolen DVR unit to another co-accused to have the CCTV footage wiped.
CHARGE 3 – THEFT OF CCTV DVR UNIT AND $600
When the tow truck arrived hours later the complainant was captured on CCTV footage helping to load his car onto the tow truck, and watching it get driven out of sight.
The judge’s reasons for sentence
The judge commenced his reasons for sentence by noting that the written summary of the prosecution opening was an agreed statement. The judge said that he incorporated that document into his reasons for sentence and, in the circumstances, saw no need to fully restate the facts. That said, the judge described the offending on 17 August 2013 as follows:
As the summary discloses, you, Aranda and two other men attended upon the business on the morning of 17 August 2013. There, you involved yourself in this extortion. You were very much a lead player. You ‘claimed’ a black Monaro, one belonging to your victim, saying ‘This one’s gone’ and tapping your hand on the car. Neither you nor Aranda had any interest in or right to that car. When your victim said ‘no’ you then said ‘Do you want to play this the hard way or the easy way?’ You and your named co-accused, Aranda, positioned yourself between your victim and the exit after you had claimed the Monaro. Given the unmistakable menace in the words combined with the presence of the four of you, your victim ‘chose the easy way’. The fact is he was presented with no choice at all. He was forced by you to complete and sign a fake receipt for the car, one that you ultimately told the police about in defence of any suggestion of impropriety. The extortion charge relates to that demand of the complainant to sign over ownership of the Monaro with the threat to inflict serious injury if he did not agree to do so. A tow truck was arranged and the car was in this way stolen. This took a substantial period of time, hours, not minutes. So too was $600 cash stolen from the filing cabinet by one of your number. You removed the digital recording unit receiving the footage from CCTV cameras and gave it to Aranda. It was given to Richardson with instructions from you to erase the footage. Your hope here was that given the menacing features of the visit, it would remain unreported. Here you made a miscalculation. Despite the fear instilled by the visit, your victim reported the event to the police and the car that had been towed to premises at your own instructions was then located by the police two days later. You were by that stage taking steps to deliver it back from whence it came. You were not returning the car as some indication of regret or contrition but because ‘the cat was out of the bag’ and the line of least resistance was to return the car and then pretend to be a bona fide person innocently caught up in this transaction. You claimed in your interview that the moment you learnt the car was stolen you returned it. This was nonsense as you had stolen it yourself, as you well knew and know.[2]
[2]DPP v Nguyen (Unreported, County Court of Victoria, Judge Tinney, 31 October 2014) (‘Reasons’) [5].
In respect of the applicant’s background the judge said:
I see no need to work my way through your personal background in these reasons; I have no reason not to accept the personal family background placed before me by your counsel. There is nothing in your family background which explains this offending. You come from a good family. You have sisters who are law-abiding. You are not and have not been law-abiding for many years now. You are evidently of quite high intelligence. You are 37 years old. I note that your counsel tendered the reasons for sentence of Judge Taft relating to sentences imposed in this court in March of 2011. At that time a report from Mr Cummins made comment as to your high intelligence. Your counsel adopted that suggestion and conceded that there were no psychological issues at work here. He informed me that you passed Year 12 at Mazenod College and success came your way possibly too early and too easily with the success of a nightclub run from 1995 through to about 2003.[3]
[3]Reasons [9].
The judge then set out in some detail the applicant’s criminal history, dealing with court appearances in 1998, 2004, 2007, 2008, 2009, 2011, 2012 and 2013. This criminal history included convictions for intentionally causing injury, theft, assault, stalking, threatening to inflict serious injury, obtaining property by deception, failing to comply with various court orders, burglary, recklessly causing injury and theft of motor vehicles. The judge said:
Your criminal history is highly relevant to my task. Your counsel concedes that there is a pattern of someone who engages in violence or threats when there is some grievance.[4]
[4]Reasons [12].
The judge noted that at the time of the offending in August 2013, the applicant was on bail for other serious matters. The August 2013 offending was committed within 10 days of the applicant’s release on bail. Further, at the time of this offending, the applicant was on a recognizance release order imposed by the Magistrates Court in October 2012, with three months’ imprisonment hanging over the applicant’s head, following his breach of an earlier bond for dishonesty offences; and was also on a recognizance release order from Commonwealth sentences imposed by another County Court judge, with 12 months’ imprisonment then suspended. As the judge put it:
Time and time again courts have tried to deter you from offending with no success at all. As the chronology shows you have breached order after order and have continued to offend seriously. You display an attitude of wilful defiance of the law, not youthful exuberance or impulsivity. You are a man no longer with youth on your side who, for whatever reason, seems to think that you can do as you like. Your offending is quite calculated. I will try again to deter you.[5]
[5]Reasons [13].
The judge then dealt in some detail with the fact of the applicant’s guilty plea, the issues of remorse and rehabilitation, current sentencing practices, the gravity of the applicant’s offending, other sentencing considerations and the issue of totality. In the course of dealing with these matters, the judge noted the applicant’s counsel’s concession that there was a ‘high need for specific deterrence’.[6]
[6]Reasons [16].
Finally before imposing sentence, the judge said:
I pay regard to the overall criminality and I have taken a last look at the overall effect of the sentences to be pronounced in guarding against a crushing outcome upon you. Sending a person to prison is always of course a matter of last resort for any court. There is no other option here. Your offending is too serious.[7]
[7]Reasons [23].
The applicant’s submissions
The applicant’s argument commences by noting that in the written prosecution summary, charge 1 was initially particularised so as to include within its ambit:
Taking the complainant’s vehicle and forcing him to sign a receipt transferring ownership to Aranda.
The applicant then notes that the judge expressly incorporated into his reasons for sentence the written summary of the prosecution opening. From this, the applicant submits that ‘taken together and in their entirety, the prosecution summary and the judge’s sentencing remarks found the inference that the applicant’s punishment on charge 1 was at least in part informed by his theft of the complainant’s car and charge 2’. The applicant then concludes that he was ‘thereby and impermissibly doubly punished’.
In support of his submissions, the applicant notes that extortion (unlike blackmail) does not necessitate that an offender’s demand be made with a view to gaining something or with an intention of depriving another of something. The offence of extortion was complete once the applicant tapped his hand on the complainant’s car and said ‘This one’s gone’, accompanied by the threat ‘Do you want to play this the hard way or the easy way?’ The extortion did not extend to the actual taking of the motor vehicle.
The applicant submits that the applicant’s theft of the vehicle was complete just before, or when, ownership of the vehicle was transferred by means of the false receipt which the complainant was forced to complete and sign. This argument is premised on the proposition that, by forcing the complainant to sign a receipt for payment of a sum for the car, the applicant ‘had adversely interfered with or usurped the complainant’s rights with respect to it’. Thus it was said that the car was no longer possessed by or in the control of the complainant. We reject that submission.
The language of the applicant’s submission is drawn from the discussion of the meaning of ‘appropriates’ in s 72 and s 73(4) of the Crimes Act 1958 in R v Roffel[8] by Young CJ[9] and Crockett J.[10]
[8][1985] VR 511.
[9]Ibid 513.
[10]Ibid 518–521.
Section 72 and s 73(4) provide that the essence of appropriation is that the offender has assumed the rights of the owner. That necessarily involves the usurpation of the owner’s rights by the depriving of the owner of the property by a unilateral act.[11] As Lush J stated in Stein v Henshall,[12] ‘the assumption of the rights of an owner referred to in subs(4) involves the taking on one’s self of the right to do something which the owner has the right to do by virtue of his ownership.’[13]
[11]Ibid 518.
[12][1976] VR 612.
[13]Ibid 615.
The applicant did not do that in compelling the complainant to prepare a false receipt for payment made for the car. Clearly that was done in anticipation of an act that would usurp the owner’s rights, namely taking possession of the car, but the receipt was nothing more than a piece of evidence that might be relied upon to support a claim with respect to the car. The receipt, though created as a result of the intimidation by the applicant, was not an act of the applicant. It did not constitute a transfer of ownership of the car or have the effect of usurping the owner’s right to possession. The signing of a receipt was not an act of appropriation by the applicant.
The applicant submits that in sentencing the applicant on charge 1, the judge impermissibly adopted an analysis — contained in the prosecution summary — which saw the applicant punished twice for the same acts. The applicant contends that the judge was not entitled to use the facts of the applicant’s guilty plea to charge 2 to inform his culpability on charge 1; alternatively, the judge was not entitled to do so without moderating the sentence on charge 1 or on charge 2 to accommodate any double punishment. Further, the applicant submits that there is nothing in the judge’s sentencing remarks, or in the individual terms of imprisonment imposed, that bespeaks of moderation in penalty to accommodate double punishment. Nor, it is said, did the judge appear to moderate the order for cumulation on the sentence imposed for charge 2 — except so far as it was necessary to accommodate the principle of totality.
Analysis
The applicant’s submissions are without merit. There is no basis for contending that the sentence imposed by the judge involved any element of double punishment. Further, having regard to the applicant’s bad prior criminal history and the objective gravity of his offending, no different sentence should now be imposed.[14]
[14]Cf ss 280(1) and 281 of the Criminal Procedure Act 2009.
The applicant’s complaints are predicated upon the proposition that the judge sentenced the applicant on charge 1 for, amongst other conduct, ‘taking the complainant’s vehicle’. The foundation of this submission is the particulars of charge 1 set out in paragraph 4 of the prosecution summary.
While it is true that the judge said that he incorporated the prosecution summary into his reasons for sentence,[15] a proper reading of the judge’s reasons shows that he incorporated the prosecution summary for the purpose of setting out the details of the applicant’s offending. The details of the applicant’s offending were agreed between the parties and, as set out in that part of the prosecution summary dealing with the actual offending,[16] with one possible exception, involve no relevant overlapping of the facts that constituted charge 1 with the facts that constituted charge 2.
[15]Reasons [2].
[16]Prosecution Summary, paragraphs 10 to 16.
The possible exception referred to in the previous paragraph relates to the words in parentheses at the end of paragraph 13 of the summary, namely ‘(theft of MV)’. That said, we do not think that a fair reading of the prosecution summary encompasses the theft of the motor vehicle in the elements of the extortion charge.
Further, and in any event, notwithstanding that the judge said that it was not necessary to fully restate the facts set out in the prosecution summary, the judge detailed the facts that constituted the three charges to which the applicant had pleaded guilty. In doing so, the judge set out the facts constituting charges 1 and 2 in a way that plainly did not involve any incorrect overlapping of the facts constituting those charges.[17] Additionally, whatever might be said about the prosecution summary (the contents of which were agreed between the parties at the time of the plea hearing), a fair reading of the judge’s reasons does not disclose any basis for the contention that the judge subjected the applicant to double punishment or that he punished the applicant for the same criminal act with respect to the two different charges being charge 1 and charge 2.
[17]Reasons [5].
To the extent that the applicant submitted that the judge punished the applicant for his actions in forcing the complainant to complete and sign the fake receipt for the car in the sentences imposed on both charge 1 and charge 2, this submission must be rejected. As the judge’s summary of the offending makes plain, the judge sentenced the applicant on charge 1 for ‘the demand of [the complainant] to sign over ownership of the Monaro with the threat to inflict serious injury if he [the complainant] did not agree to do so’.[18] On charge 2 the applicant was sentenced for the physical taking of the car.[19] The act of forcing the complainant to sign and complete a fake receipt was used by the judge as an aggravating fact in respect of the sentence on charge 1 because the applicant forced the complainant to complete and sign the receipt so that the applicant could ultimately deny ‘any sense of impropriety’.[20] Nothing in the judge’s reasons supports the suggestion that the applicant was punished twice for the same act.
[18]Ibid.
[19]Ibid.
[20]Ibid.
Finally, so far as it is submitted by the applicant that the sentences imposed, and orders for cumulation made, by the judge bespeak an element of double punishment, these submissions must also be rejected. As we have noted, this was very serious offending by an applicant with a bad criminal history. In the circumstances, the sentences on each of the charges were moderate, the order for cumulation was appropriate and the non-parole period was entirely reasonable. Even if the applicant had been able to establish some error, in our view, no different sentence should now be passed.
Conclusion
The application must be refused.
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