Director of Public Prosecutions v Arnold

[2019] VCC 2210

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02357

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTWANY ARNOLD

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JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 December 2019
CASE MAY BE CITED AS:	DPP v Arnold
MEDIUM NEUTRAL CITATION:	[2019] VCC 2210

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. D. Plummer	Office of Public Prosecutions
For the Accused	Mr. S. Anger	C Marshall & Associates

HIS HONOUR: 

1Antwany Arnold, you have been found guilty by a jury of the offences of intentionally causing injury, affray and theft.  The circumstances of your offending were as follows.

2On 25 December 2015 at approximately 4.45pm, you and your son boarded a metropolitan train at Balaclava Railway Station, with the intention of locating the complainant, one Tye Campbell, on board.  You and your son entered onto the Balaclava Station platform together, then immediately split, you heading to your right towards the southern end of the platform, he turning to his left and heading towards the northern end of the platform.  You both boarded the first train that came through that station. 

3CCTV footage showed that whilst on the train, you walked up and down through carriages. You were looking for the complainant, who you believed was on the train. 

4As the train continued to stop at railway stations whilst heading towards the city, you looked out in order to confirm that the complainant had not left the train.  Shortly before the train pulled into Richmond Station, the complainant observed you and attempted to move carriages, putting more distance between himself and you. 

5As he walked down the aisle, your son jumped out in front of him.  The complainant attempted to push past your son.  Your son then commenced to assault the complainant by punching him repeatedly.  You were able to observe this occurring through the glass door separating the carriage you were in and the adjacent carriage where your son and the complainant were located.

6You ran through the connecting doors and joined in the affray.  You struck the complainant in and around the top and back of his head, repeatedly with a small plastic and metal speaker that you had produced from your pocket. 

7At one point, the complainant fell whilst trying to protect himself from your attack.  He called for help.  Some commuters on the train moved away in fear that they would be injured.  At one point, the complainant fell onto two witnesses, sitting on nearby seats.  The complainant's blood fell onto their clothes.  They gave evidence at the trial that they were in fear for their safety. 

8You continued to strike the complainant as he fell onto the seats.  You called to the complainant, 'You're dead cunt' as you were hitting him.  You also yelled out, presumably by way of some explanation for other passengers on the train, words to the effect that the complainant had touched your daughter. 

9This conduct by you constitutes the offence of intentionally causing injury, Charge 1, and the offence of affray, Charge 3.

10When the train arrived at Richmond Station, you and your son alighted from it.  Your son had picked up the complainant's backpack and took it with him as he left the train.

11Further CCTV footage showed you and your son exiting the train and leaving the station.  At one point, while still some distance from your home in Richmond, you took possession of the complainant's bag and started to go through its contents.  You emptied them out. You told police that you had destroyed various bankcards and thrown out other items.  You then discarded the backpack and continued home.  That conduct constitutes the offence of theft, Charge 4.

12The complainant was conveyed to St Vincent's Hospital by ambulance for treatment.  He had received, as a consequence of the attack, four large deep lacerations to his head, which had resulted in the loss of a good deal of blood, and which required a CT scan and stitches.

13Photographs of his injuries were tendered.  They showed deep wounds to the top of his head.  No victim impact statement was tendered.

14You were arrested the following day in Richmond.  You advised police as to where you had discarded the complainant's bag and took police to that location.  You made admissions to police that you had hit the complainant three times and stopped after you saw blood.

15Having viewed the CC television coverage of the event, I am satisfied that you struck the complainant on or in the region of his head on numerous occasions, and considerably more than three. 

16You have a number of relevant and disturbing prior convictions, between July 2008 and October 2015.  They consist of offences of making a threat to inflict a serious injury, entering a private place without authority or excuse, two offences of recklessly causing injury, behaving in a riotous manner in a public place, five counts of contravening a Family violence intervention order, and possessing a prohibited weapon without excuse. 

17Further, I note that since the events for which I am to sentence you, you have been convicted of one count of possessing a prohibited weapon without exemption or approval; one count of committing an indictable offence whilst on bail and one count of resisting police.  Whilst those post-event convictions are not prior convictions, they are, nevertheless, relevant to my consideration of your prospects for rehabilitation.

18Your conviction for behaving in a riotous manner in a public place, to which I have referred, relates to an incident which occurred in the Children's Court in 2014.  You were directed to leave the court by court security staff, but refused to do so. 

19You wanted to stay at the court with your son and were not willing to leave without him.  You knew that there was a restraining order preventing you from having contact with him at that time.  You were escorted from the court physically by a number of security officers, but attempted to re-enter the court. 

20A violent fracas occurred on the footpath immediately outside the Children's Court in a public place and in full view of numerous persons, including children. 

21I regard those convictions in the main as exhibiting a trend towards violent conduct and a lack of respect for the law. 

22I should also say in relation to prior convictions, that the criminal record which was partially admitted by you at your plea hearing, refers to you by the name of Tuan Ngo, and a number of aliases, including Antwany Arnold, Ngo Tuan, and Ngo Tuan Duc.  You instructed your counsel at your plea hearing that those names were not your aliases, and in answer to a question put by me, you advised the court that you were not Ngo Tuan or Tuan Ngo and that you had never heard of such persons.

23On the basis of the material handed to me this morning, containing a number of photographs dating back several years, it appears that you do and have gone by the name of Ngo Tuan or Tuan Ngo, on a number of occasions in the past. 

24There are additional prior convictions going back to 1993 in the Children's Court under that name, Ngo Tuan, for affray, burglary and theft, intentionally causing injury and refusal or failing to state your name and address.  I accept that those prior convictions are prior convictions of yours. 

25You are aged 44 as I understand it.  At the time of your offending, in relation to these matters, you were aged 40.  I was informed by your counsel at the plea hearing, and I accept, that you were born in Singapore, that you never knew your father, you came to Australia with your mother and an extended family in 1985.  You attended primary school and secondary school in Melbourne.  It appears that your secondary school education was spent at three different schools, and that you left school after completing Year 11. 

26I was informed that you have completed a Certificate III in Appliance Electrical Technology, studied Information Technology and studied Law online without completion. 

27You have a number of trade qualifications, a forklift licence, heavy vehicle licence, traffic control and construction management qualifications. 

28You had previously participated in, but did not complete, a bricklaying apprenticeship. You later completed apprenticeships as a panel beater, as a carpenter, and as a motor mechanic. 

29Given those qualifications, that range of qualifications, it is surprising that, prior to your remand in custody, you were unemployed and in receipt of a Newstart allowance. 

30I was informed that you met and formed a relationship with a woman in 1995.  With her, you have five children.  You were in a de facto relationship with her for some 15 years, separating in 2010.  Your two eldest children then lived with you until your remand.  The others resided with their mother.

31You instructed your counsel that you had no drug or alcohol issues or mental health issues.  That is not entirely consistent with comments made by a court which sentenced you back in 1997 where you were sentenced to a community based order and directed to undergo assessment and treatment for a psychiatric condition. 

32There has been no evidence before me in relation to such matters and I disregard them in connection with your sentence.

33Your conduct on the day of your offending is largely unexplained.  It is plain to me that you had travelled to the Balaclava Station for a specific purpose, to board the train in question and to locate and assault the complainant.  I infer that you had some prior knowledge that he would be on that particular train passing through Balaclava.

34Your conduct was planned.  The only hint as to what it may have related was provided by the evidence of a witness at your trial who stated that you had called out, during the assault on the complainant, that the complainant had touched your daughter.

35There is no evidence before me of any such event occurring, no such suggestion was made by your counsel at your plea hearing. 

36I further note your assault on the complainant involved your son, who would have been aged about 16 or 17 at that time.  He was very much younger than you and likely to have been under your guidance and influence.

37I find it extraordinary that you would involve your son at his age in what was plainly illegal and violent activity. 

38I further note that your offending took place on the afternoon of Christmas Day of 2015.  There were numerous persons on that train and in the carriage where the attack occurred.  The evidence of witnesses at your trial was that they were extremely scared for their own safety as a consequence of your offending. 

39Fortunately, none of them were injured, although one or more of you or your son or the complainant fell onto them during the fracas.  They were minding their own business during the course of your offending. 

40Those persons gave evidence that they were sufficiently upset by the incident that they cancelled their plans to attend a Christmas function which they were on their way to attending. 

41By way of mitigation, I take into account that you appear to have had a somewhat troubled and inadequate upbringing, in that you never knew your father. 

42Nevertheless, it appears that you came to this country and lived with your mother and an extended family for some time.  You were thus not wholly lacking in parental or familial guidance. 

43Your plea of not guilty to these offences resulted in a trial at which you were found guilty of each of the offences by a jury.

44Accordingly, you have no entitlement to any discount on a sentence which would have been the case had you pleaded guilty.  I am satisfied that you have shown no remorse for your offending whatsoever. 

45Your counsel and the prosecutor have advised me that you have served - is it still 548 days Mr Plummer and Mr Anger? 

46MR PLUMMER:  It's 556, not including today.  It was 548 up until the day prior to the plea.

47HIS HONOUR:  That was up to the plea hearing, was it?  Yes.  That sound right, Mr Anger?

48MR ANGER:  That's correct, Your Honour.

49HIS HONOUR:  556.  I accept that you have served 556 days by way of pre-sentence detention in respect of these charges, or these offences.  It was submitted by your counsel that that term, a little over 18 months, was a sufficient sentence in all the circumstances. 

50Taking into account the violent nature of your offending; the obvious nature of the injuries suffered by the complainant as depicted in the photographs tendered; the fact that the offending took place in a well-populated railway carriage causing numerous passengers to be terrified; the fact that it occurred on the afternoon of Christmas Day, a day when most people in this community would consider that they were entitled to safely ride on public transport peacefully and without disturbance; your violent prior convictions; your age and the convictions post your offending conduct, I consider that your prospects for rehabilitation are guarded at best.  Taking all those circumstances into account, I shall sentence you as follows: 

51Firstly on the charge of intentionally causing injury contrary to s.18 of the Crimes Act 1958, Charge 1, you are convicted and sentenced to a term of imprisonment of two years. This shall be the base sentence.

52On the charge of affray, Charge 3, contrary to the common law, you are convicted and sentenced to two years’ imprisonment, of which six months shall be served cumulatively to the base sentence.  I acknowledge that there was a partial overlap between Charges 1 and 3.

53On the charge of theft, contrary to s.74 of the Crimes Act, you are convicted and sentenced to a term of imprisonment of three months, which shall be served cumulatively upon the base sentence. 

54It follows that I have sentenced you to a total effective term of imprisonment of two years and nine months, and I direct that you should not be eligible for parole until you have served two years of that term. 

55I am satisfied that you have served 556 days by way of pre-sentence detention in relation to these offences, and I direct that such period be reckoned as a period of imprisonment already served by you under this sentence and I direct that this be recorded in the records of this court. 

56The prosecution seeks a disposal order in relation to two black wrist bands and a black balaclava seized from you by police.  The order is not opposed and I shall make that order. 

57Other ancillary orders, Mr Plummer? Possibly relevant in view of the fact that there's some issue about identity, a possible issue of identity?  Or if there is one on record? There is one on record. 

58MR PLUMMER:  Is that the - are you referring to the disposal order, or ‑ ‑ ‑ 

59HIS HONOUR:  I'm referring to the 464ZF order. 

60MR PLUMMER:  No order is sought.

61HIS HONOUR:  Not required here?

62MR PLUMMER:  Not required, Your Honour.

63HIS HONOUR:  Thank you. 

64MR PLUMMER:  If it's - if police don't already have a sample, they now have the power to obtain a sample themselves. 

65HIS HONOUR:  Without an order from me?  Is that some recent development?

66MR PLUMMER:  It is, yes.

67HIS HONOUR:  Yes.

68MR PLUMMER:  So no, there will be no further need for applications before the court.

69HIS HONOUR:  All right, good.  Yes, thank you. Mr Anger, Mr Plummer, anything else?

70MR ANGER:  No, Your Honour.

71MR PLUMMER:  No.

72HIS HONOUR:  Yes, thank you.  Mr Arnold can be taken downstairs. 

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