Director of Public Prosecutions v Bounyavieng
[2018] VCC 388
•22 March 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.CR-15-00052
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ONCHANH BOUNYAVIENG |
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JUDGE: | Grant | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 November 2017, 22 January 2018 | |
DATE OF SENTENCE: | 22 March 2018 | |
CASE MAY BE CITED AS: | DPP v Bounyavieng | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 388 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E. Hill | OPP |
| For the Accused | Mr J. Van Arkadie | VALS |
HIS HONOUR:
1 Onchanh Bounyavieng, you have pleaded guilty on indictment to one charge of armed robbery and one charge of theft. Armed robbery has a maximum penalty of 25 years' imprisonment and theft, a maximum of ten years' imprisonment.
2 You have also pleaded guilty to two related summary offences of use a drug of dependence and unlicensed driving and one unrelated summary offence of breaching a suspended sentence.
3 Your offending can be briefly summarized.
4 On 9 December 2012, you were apprehended for an offence of unlicensed driving. The charge was heard at the Ringwood Magistrates’ Court on 2 July 2013 and you were convicted and released on a community based order (CBO). On 16 January 2014, you appeared at the Dandenong Magistrates’ Court on a charge of contravening that community based order. You were convicted and fined $500 on the breach and the order was cancelled. You were then sentenced on the original offence to four months' imprisonment. The sentence was suspended with an operational period of two years. I note that you were sentenced to the maximum imprisonment term available for that offence, even though you had pleaded guilty. The commission of the two offences on the current indictment and the two related summary offences, breached the suspended sentence.
5
On 15 July 2014, you were living at 55 Fitzgerald Road, Hallam, with your parents and your brother. At around 3 pm, you rang your brother and asked him to come home because you needed to see him. When your brother returned home, you demanded the keys to his car. Your demand was refused. You started screaming and yelling that you were hanging out for drugs and that you wanted to get heroin. You then armed yourself with
a kitchen knife and held it towards the victim, repeating your demand for the car keys. The victim was scared and threw his keys on the bench. You took the keys and drove away in his car. You were an unlicensed driver at that time. When interviewed by the police on 18 July 2015, you admitted using heroin three days earlier. You also admitted the armed robbery and the car theft, saying that you had not had your methadone for three days and you were using heroin “full on.”
6
You have committed a serious breach of the law. You confronted your brother with a knife and stole his car. The experience was a distressing one for your brother, who, whilst familiar with your past criminal behaviour, had never seen you behave like this before. This was a significant escalation in your offending. Whilst I accept that the offending was not well planned in any real sense; that the knife was a blunt one; and that your brother has adopted
a very forgiving attitude towards you, your behaviour is nonetheless of sufficient seriousness to require me to give proper weight to the principles of general deterrence, just punishment and denunciation.
7 You have a poor criminal history. Admittedly, you have no history for offences of violence. However, you have been a persistent offender, with multiple appearances in the Magistrates’ Court. The offending has involved motor vehicle breaches, drug offences and dishonesty. Various orders have been made, including community corrections orders and suspended sentences of imprisonment. Invariably, they have been breached. This means that specific deterrence and protection of the community are also relevant sentencing considerations.
8 I now move to matters relevant to your background.
9 You are 47 years old. You were born and raised in a rural village in Southern Laos. Your mother largely raised you. Your father spent long periods away from home, fighting the communist regime. Your early family life was marked by extreme poverty. You had no formal schooling. When you were nine years old, your family fled to the Thai border to escape persecution. On the journey to the border, the convoy was attacked by Government forces and your older brother, Van, was killed. The family spent two very difficult years in a refugee camp on the Thai border. The camp was overcrowded, there was little sanitation and there was a disconcerting level of violence from the military authorities.
10 In 1993 when you were 12 years old, the family moved to Melbourne under the United Nations refugee program. You spent 12 months studying English, before enrolling in Footscray High School in Year 9. You only completed one year of schooling.
11
Your parents were hard-working people. They worked as factory hands at
a tiling company and you went to work with them after leaving school. You worked for five years before leaving your employment when you were 21 years old.
12 You had begun associating with young men from the Vietnamese community in Springvale and you started using heroin with these men. Within a short time, you developed an addiction and it is that addiction that has governed your life ever since. At the time of your current offending, you were using heroin heavily.
13 I now move to the matters in mitigation.
14 This was not an early plea of guilty. Initially, you did not accept responsibility for what you had done. Indeed, your brother was required to give evidence at the preliminary hearing. However, that has changed and you now accept full responsibility for your criminal behaviour. I accept that you are now very remorseful. In addition, your plea has saved the victims from the trauma of giving evidence at trial and saved the community the cost and expense associated with a criminal trial. You will be given credit for all these matters.
15
There has been a lengthy delay in the resolution of this matter. As your counsel has quite properly recognised, this is, to some extent, a double-edged sword. Much of the reason for the delay lies with you. As I will explain in more detail shortly, His Honour Judge Maidment adjourned your case on
a number of occasions to allow you to attend a residential treatment facility to address your drug addiction. Notwithstanding these opportunities, you never completed such a program. This is concerning. On the other hand, whilst you have not been able to complete a residential drug program, you have remained offence-free since 15 July 2014. Given your previous history, this is commendable.
16 I do not intend to go through every court date since you were first charged, however I do intend to refer to some of the more important dates.
17 You were bailed to appear at a filing hearing at the Melbourne Magistrates’ Court on 22 July 2014.
18
You ran a contested committal on 13 January 2015, where the victim was
cross-examined.
19 At the initial directions hearing in this court on 14 January 2015, the matter was listed for a three day trial.
20 At the final directions hearing on 7 September 2015, you were arraigned on the indictment and entered a plea of guilty.
21
The plea hearing commenced before His Honour Judge Maidment on
17 March 2016.
22 His Honour heard submissions from your counsel that highlighted the matters that were said to mitigate penalty. These included the relatively low level of the offending; the forgiveness of your brother; a history of unaddressed trauma arising from your childhood in Laos; a long history of drug addiction that was not accompanied by any history of violent offending; strong family support; a willingness to attend to drug rehabilitation; and the potential for deportation after a sentence of imprisonment. The prosecutor, whist conceding that the offending was at the lower level for an armed robbery, submitted that your extensive criminal history and your failure to comply with court orders in the past, required an actual period of imprisonment to be imposed, in combination with a community corrections order.
23 His Honour expressed the view that this was an unusual case. He adjourned the hearing to enable the listing before him of the charge of breach of suspended sentence. He also ordered a community corrections order assessment. The assessment was favourable.
24 Judge Maidment stated that he would be impressed if, during the period of the adjournment, you entered a residential drug rehabilitation facility. He said it would significantly improve your chances of avoiding a gaol term.
25 On 26 May 2016, the unrelated summary offence of breaching a suspended sentence was listed before His Honour. The matter was further adjourned when His Honour was told that you would be admitted to the withdrawal unit at SECADA on 30 May and to Odyssey House on 6 June.
26 The hearing on 15 June 2016 was adjourned because you were in Odyssey House at that time.
27 You remained in Odyssey House until 30 June 2016, when you left because of your father’s ill-health. Your father passed away in late-August of 2016. There were further adjournments to allow you to deal with the mourning process.
28 You did not re-engage with Odyssey House until early-March 2017. This corresponded closely with the court appearance on 21 March 2017. On that date, His Honour Judge Maidment was advised that you had been deemed eligible for the SECADA detox program and that it was anticipated that you would re-enter Odyssey House on 3 April 2017. The matter was adjourned to 4 May 2017 with His Honour remarking that it was time for you to demonstrate that you were really willing to participate in a rehabilitation program and that he would be unlikely to extend leniency in the future if you failed to do so.
29 On 4 May 2017, His Honour was told that you had been admitted to Odyssey House on 4 April and that you were still in the program. Your counsel told His Honour that it was your intention to stay in the program for as long as you could.
30
Judge Maidment said that the community would be “much better protected” if you could achieve rehabilitation. His Honour thought an adjournment of six months would be appropriate. He noted that he would be unable to continue to hear the matter because of his retirement, but that he would order
a transcript to assist the judge on the adjourned date, when there would be
a clearer picture as to whether the adjournments had been worthwhile.
31 The matter was adjourned to 10 November 2017. The matter was listed before me on that date. I was told that you had been exited from the Odyssey House program on 24 May 2017, because you kept money in the safe house, in contravention of the rules of that facility. I decided to adjourn the matter to obtain a full pre-sentence report from the Office of Corrections. Unfortunately, due to an administrative error, the request for the report was not sent to Corrections. The matter was further adjourned to today and the request made for the pre-sentence report. I now have that report and it is generally favourable. You were honest in the assessment and admitted that up until about six months ago, there had been occasional drug use. However, apart from that, you have continued to remain out of trouble; you are engaged in methadone treatment; you continue to support your mother; and you have ongoing support from your family.
32 This is not an easy sentencing exercise. You have committed serious offences and you have failed to complete the residential program that His Honour Judge Maidment quite properly believed would facilitate your rehabilitation. On the other hand, the fact that you have not been involved in any further offending for nearly four years, is highly significant. Given your criminal history, this is to your credit. This period of good behaviour speaks favourably to your prospects for rehabilitation. You have rebuilt the relationship with your brother and family and they are very supportive. Your brother, who is the victim in this matter, has taken a very forgiving attitude towards you.
33 In the end, it is the fact that you have remained offence-free for nearly four years, together with the relatively low level of this offending, that has persuaded me not to imprison you. I have concluded that the appropriate order in this case is a community corrections order (CCO) that focuses on your ongoing rehabilitation, by providing support and treatment for your drug addiction.
34
On the two charges on the indictment and the summary offence of unlicensed driving, you are convicted and placed on a community corrections order for
a period of 18 months.
35 The order will have the following conditions attached:
· You are to be under supervision;
· You are to attend assessment and treatment (including testing) for drug use or dependency;
·
You are to attend assessment and treatment (including testing) at
a residential facility for withdrawal from or rehabilitation for drug abuse and dependency;
· You are to attend mental health assessment and treatment, and
· You are to participate in any program that addresses factors relating to your offending.
36
I also direct that you be monitored by the court. You are to appear back before me at 10 am on 20 July 2018 and I request Corrections provide
a report for that hearing. You are to report to the Dandenong Office of Corrections before 4 pm on Monday 26 March.
37 On the charge of car theft and unlicensed driving, all licences are cancelled and you are disqualified from driving for three months.
38 Had you pleaded not guilty and been found guilty after trial, I would have sentenced you to nine months' imprisonment, with a 24 month CCO to follow.
39 On the charge of use drug, you are convicted and fined $200.
40 I now deal with the breach of suspended sentence. The law requires me to restore the term of imprisonment, unless there are exceptional circumstances. Such circumstances are made out in this case. First, there has been no further offending since 15 July 2014. Secondly and as a consequence, you have been placed you on a community corrections order for the breaching offences. In these circumstances, whilst I find the breach proved, I make no further order.
41 I do make the disposal order sought by the prosecution.
42 We will print up the forms and get Mr Bounyavieng to sign them.
43 He can be seated there for the moment.
44 MR VAN ARKADIE: Thank you, Your Honour. I confirm Mr Bounyavieng has signed those.
45 HIS HONOUR: Are there any other matters?
46 MS HILL: No, Your Honour.
47 MR VAN ARKADIE: No, Your Honour.
48 HIS HONOUR: Thank you both.
49 MS HILL: As Your Honour pleases.
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