Director of Public Prosecutions v Brittain and Nguyen
[2018] VCC 1746
•24/10/2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-18-01962
CR-18-01963
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL BRITTAIN & ANDY NGUYEN |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17/10/20118 | |
DATE OF SENTENCE: | 24/10/2018 | |
CASE MAY BE CITED AS: | DPP v Brittain & Nguyen | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1746 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – burglary and theft charges, attempted theft and attempted burglary and related summary charges – co-accused entered plea of guilty at earliest possibly stage and gave an undertaking ot assist the authorities – disparity of sentence – terms of imprisonment imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms H. Bate | John Cain, Solicitor for Public Prosecutions |
| For the Accused Brittain | Mr J. Miller | James Dowsley and Associates |
| For the Accused Nguyen | Mr M. Reardon | Victoria Legal Aid |
HER HONOUR:
1 Daniel Brittain and Andy Nguyen, you have both pleaded guilty to six burglary charges (Charges 2, 4, 6, 10, 12, 15), seven theft charges (3, 5, 7, 11, 13, 17 and 19), two attempted theft charges (16 & 18), one attempted burglary charge (14) in which charges you were both co-accused.
2 In addition, Daniel Brittain, you have pleaded guilty to three theft charges (Charges 23, 24, 25) and a related summary charge of driving whilst disqualified (Summary Charge 7).
3 In addition, Andy Nguyen, you have pleaded guilty to two theft charges (Charges 1 and 9), a burglary charge (8), two making or using a false document charges (Charges 20, 22), one negligently deal with proceeds of crime charge (Charge 21), and you have pleaded guilty to related summary charges, namely two charges of possess a prohibited weapon (Summary Charges 20 & 26) and one charge of possess a controlled weapon (Summary Charge 38).
4 The charges are serious and that is reflected in the maximum penalties prescribed by law and they are as follows:
· In relation to theft, burglary, and make false document – level 5 imprisonment, 10 years maximum;
· attempted burglary, attempted theft, negligently deal with proceeds of crime – level 6 imprisonment, 5 years maximum;
· possess prohibited weapon – 240 penalty units or two years’ imprisonment;
· possess controlled weapon – 120 penalty units or one year imprisonment;
· drive whilst disqualified for first offence – 30 penalty units or 4 months’ imprisonment; for subsequent offence – 240 penalty units or 2 years’ imprisonment.
5 Daniel Brittain, you have admitted a prior criminal history that is of some concern. You have four previous court appearances. Your history spans the period from 9 January 2015 until 23 October 2017. You have relevant prior criminal convictions recorded for dishonesty offences including theft, knowingly deal with the proceeds of crime, armed robbery, dishonestly assist in the retention of stolen goods, go equipped to steal, bail offences, drug offences and various driving offences. It is an aggravating feature of the present offending that you have committed these offences in contravention of two Community Correction Orders.
6 On 1 February 2017 at Dandenong Magistrates’ Court, you were convicted of a number of charges and placed on a Community Correction Order for 12 months with special conditions attached in relation to undergoing treatment and rehabilitation including testing for drug abuse and dependency, mental health assessment, offender behaviour programs as directed, being subject to a curfew and being required to live at your mother’s residence.
7 On 7 April 2017 at the Melbourne County Court, you were convicted of armed robbery and theft of a motor vehicle, following which you were placed on a Community Correction Order for four years with special conditions that you perform 200 hours of unpaid community work over 18 months, undergo supervision and treatment for drug addiction and also judicial monitoring, curfew and residence requirements.
8 Andy Nguyen, you too have admitted a prior criminal history that spans the period from 19 August 2011 to 22 April 2016. There are attendances in the Dandenong Children’s Court namely three attendances in 2011 and 2012 where findings of guilt were made in relation to charges of theft of a motor vehicle, going equipped to steal, theft from a motor vehicle, unlicensed driving, drive motor vehicle without permit, theft from shop, recklessly cause injury – for which you were dealt with by way of a number of dispositions including a without conviction good behaviour bond, probation and without conviction fines.
9 There are two appearances in the Magistrates' Court jurisdiction. On 22 February 2016, you were dealt with at the Dandenong Magistrates’ Court and that concerned a large consolidation of matters. Those charges related to drug trafficking in relation to trafficking methylamphetamine, ecstasy, cannabis and amphetamines, possession of the same drugs, possession of a controlled weapon without excuse, possession of a prohibited weapon without exemption, driving whilst authorisation suspended, using unregistered motor vehicle on a highway, fraudulently alter registration label without authority, theft of a motor vehicle, committing an indictable offence whilst on bail, driving in breach of licence condition, fail to answer bail, contravening a conduct condition of bail, deal property suspected proceeds of crime, exceed speed – and in relation to those matters you were convicted and placed on a 12-month Community Correction Order subject to supervision and special conditions in relation to treatment and rehabilitation for drug use including testing and also offender behaviour programs.
10 On 22 April 2016, you were dealt with at the Dandenong Magistrates’ Court in respect to a contravention of that Community Correction Order as well as a fail to answer bail charge, and in addition there was also fresh offending. That dealt with drug offences, theft of a motor vehicle, dishonesty offences, possession of prohibitive weapon without exemption, drive whilst disqualified, possess cannabis.
11 On that occasion you were convicted and sentenced to a term of imprisonment of 90 days and convicted and discharged in respect to the possess cannabis charge. In respect to the breach of the Community Correction Order, the original order was varied and you were placed on a Community Correction Order for another 12 months on the same terms commencing on 27 June 2016.
12 I shall proceed to sentence you both on the basis of the summary of the prosecution opening that was read at the plea hearing and is tendered as an exhibit, Exhibit 1.
13 Daniel Brittain, you were 25 years at the time of the offending. You are currently 25. Andy Nguyen, you were 23 and you are currently 23.
14 The crimes arise out of a series of events that occurred over the period from 8 January 2018 until 31 January 2018.
15 There were other co-offenders involved in the offending, one of whom, Danny Nguyen, was sentenced by this court on 17 September 2018. He was sentenced in relation to seven theft charges, six burglary charges, two charges of trafficking in a drug of dependence and one charge of attempted burglary and that represents the bulk of the offending in respect to your indictments although you both have extra charges.
16 Daniel Brittain, you have three extra charges of theft and one summary charge of drive whilst disqualified.
17 Andy Nguyen, you have two extra charges of theft, one extra charge of burglary, two extra charges of make false document, one extra charge of negligently dealing with proceeds of crime and also three summary charges being two possession of a prohibited weapon without exemption and one possession of a controlled weapon.
18 Danny Nguyen was sentenced on 17 September 2018 to a total effective sentence of five years and six months’ imprisonment with a non-parole period of two years and six months.
19 He entered a plea of guilty at the earliest possible stage. He made full and frank admissions to police upon his arrest and in addition to the admissions made in his formal record of interview, he also made a statement implicating both of you in the offending, and gave an undertaking to the court pursuant to s.5(2A) of the Sentencing Act 1991 that he would give evidence consistent with the admissions and the statement made to police.
20 He was due to give evidence at the committal hearing that was listed as a contest in respect to both of your matters.
21 At that hearing, he was not required to give evidence because the matter resolved and you both agreed to enter pleas of guilty in respect to the charged offences.
22 The fact that he was prepared to give evidence to assist the prosecution in relation to both of your matters was an important mitigating factor in his sentence. The quality of the information that he provided was significant. He confirmed your involvement in this series of offending.
23 The information was considered to be of great value to the prosecution and therefore he obtained a sentencing discount consistent with s.5(2B) of the Sentencing Act.
24 I turn now to the circumstances of your offending.
25 Mr Nguyen, between 8 January 2018 and 31 January 2018, you are charged with stealing a Honda Jazz (Charge 1 – theft) which was then utilised by you and your co-offenders in the execution of burglaries on series of commercial premises.
26 The first burglary took place at the Braeside Australia Post on 8 January 2018 in the early hours of that date about 3.40 am. Daniel Brittain, Andy Nguyen and Danny Nguyen and a fourth male wearing distinctive white overalls and utilising hand tools gained access to the building and proceeded into the parcel storage area of that facility where a large number of letters and parcels were then stolen. They were loaded into two vehicles including the Honda Jazz (Charges 2-3 Brittain & Andy Nguyen).
27 Shortly thereafter on the same morning, the four offenders attended Australia Post Business Hub Burwood, where again you gained entry and stole a large amount of letters and parcels which were subsequently loaded into the same stolen vehicles. (Charges 4 & 5 for Brittain & Andy Nguyen).
28 Four days later on Friday, 12 January 2018 at 3.00 am, the two of you in company with Danny Nguyen and another male attended Australia Post Business Hub Braeside. Again utilising hand tools, you smashed your way into the office before accessing the parcel storeroom and then removed a large quantity of letters and parcels that were loaded into stolen vehicles (Charges 6 & 7 for Brittain & Andy Nguyen).
29 On Thursday, 18 January 2018 at approximately 3.00 am, the Australia Post Business Hub Burwood was again accessed by you, Andy Nguyen and three other males following which a large quantity of letters, parcels, a laptop and key tags belonging to postie motorcycles were removed, and on that occasion the CCTV DVR unit was removed from the premises (Charges 8 & 9 Andy Nguyen).
30 On the same day at 5.00 am, four offenders including Brittain, Danny Nguyen and Andy Nguyen attended XM2, 8 Park Road, Oakleigh, where the group gained access to those premises. Significant damage was caused estimated to be $2,552.75 (uncharged act) and $158,000 worth of drones and other products were loaded into stolen vehicles and removed from those premises (Charges 10 & 11 Brittain & Andy Nguyen).
31 On Wednesday, 24 January 2018 at 4.35 am, four offenders attended Australia Post Clayton South. Danny Nguyen remained in the vehicle on that occasion whilst Brittain and Andy Nguyen and another entered the premises and accessed the parcel storage area where a large quantity of parcels and letters were stolen (Charges 12 &13 Brittain & Andy Nguyen).
32 Between 30 January and 31 January 2018, police began a surveillance operation.
33 Daniel Brittain, you were seen driving a vehicle to Fabian Court, Keysborough, where you entered 39 Chapel Road. At the time your licence had been cancelled and you were disqualified from driving (Summary Charge 7 Brittain).
34 You were then seen getting into the driver’s seat of a 1997 Volkswagen transporter van with another male. Andy Nguyen, you were observed getting into a Honda Jazz (and driving) with Danny Nguyen and another male. You then arrived at an address where Daniel Brittain, you were observed removing a tandem trailer and hooking it up to the Volkswagen transporter van and driving it away (Charge 24 – theft - Brittain).
35 Andy Nguyen, at 3.50 am that morning you were seen driving the Honda Jazz. Daniel Brittain, you were seen driving the Volkswagen transporter van with different number plates being stolen number plates TZU 700 (Charge 25- theft - Brittain), with the trailer to DJ City at 39 Regent Street, Oakleigh. Daniel Brittain, you reversed back at a fast rate of speed towards the front door of those premises in an attempt to gain entry, but failed. The trailer ended up hitting one of the bollards at the front door causing it to become detached. You then drove off at a fast speed with Andy Nguyen following behind in his vehicle. The tandem trailer was left at the scene. (Charge 14- attempted theft Brittain & Andy Nguyen)
36 On 31 January 2018 at approximately 4.15 am, Daniel Brittain and Andy Nguyen together with some other males attended Inventory Placement in Oakleigh South. There, you gained access to that building. Whilst inside, Daniel Brittain, you stole multiple boxes of various confectionery items and a petty cash tin with an approximate value of $100. The vehicle then left that premises (Charge 15- burglary Brittain & Andy Nguyen, Charge 23 Brittain).
37 Andy Nguyen, the taking of the confectionery is an uncharged act in respect to your matter and you are not to be sentenced for that act.
38 At 4.35 am on 31 January 2018, Andy Nguyen, you drove the Honda Jazz to Carinish Road, Oakleigh South, where you attended a Kia ute and smashed that window to gain entry. The ignition barrel was tampered with and damaged. (Charge 16 - Attempted theft – Brittain & Andy Nguyen). At the time Mr Brittain was in company with you and that relates to both you and Mr Brittain.
39 You then attended another vehicle, a Suzuki Ignis, which was parked nearby and stole registration numberplates, 1IK 1IB (Charge 17 – Brittain & Andy Nguyen).
40 At 4.54 am, police observed the Honda Jazz and the Volkswagen transporter van parked next to each other at a nearby factory at the Hallmark Business Park. At that location, you gained access to a Mitsubishi express van owned by somebody who worked at the business park. Two drive shafts, a brake calliper and a dash camera were stolen from the Mitsubishi express van (Charges 18 & 19 attempted theft and theft – Brittain & Andy Nguyen)
41 Thereafter, at about 5.40 am on 31 January 2018, police attended 39 Chapel Road, Keysborough where you were both arrested as well as Danny Nguyen.
42 When executing the search warrant, a number of items were located and seized. Included was the black extendable baton (Summary Charge 20 - possess prohibited weapon – Andy Nguyen), an ANZ card in the name of Nikolai Sokolov (Charge 21 - negligently deal with proceeds of crime – Andy Nguyen), a blank defaced Victorian Driver’s Licence (Charge 20 - making a false document – Andy Nguyen), a set of knuckledusters (Summary Charge 26 –possess prohibited weapon – Andy Nguyen), four printed Victorian numberplates (Charge 22 – making a false document – Andy Nguyen), as well as other property that has been identified as belonging to XM2 and Australia Post. When searching the Honda Jazz, police located a wooden handled pocketknife (Summary Charge 38 – possess controlled weapon – Andy Nguyen).
43 Other items that are the subject of charges were also located in the Volkswagen transporter van.
44 A mobile phone that was seized from Andy Nguyen was analysed by police and found to contain various downloaded instructions relating to drones, a photo of an extendable baton, photos of Australia Post parcels, photo and video of CCTV from Australia Post Burwood from 18 January 2018.
45 Following your arrest you were both formally interviewed.
46 Daniel Brittain, you told police that you had attended 39 Chapel Road, Keysborough on 31 January 2018 to get “some stuff”. You were with a friend who drove and parked in a nearby street, and that between 2.30 am and 3.00 am you drove the Volkswagen and followed the Honda Jazz to an industrial area and committed the burglary. You said you were wearing a balaclava that you had been provided with. You reversed the vehicle with the trailer attached and hit a pole, and then left the trailer there.
47 Andy Nguyen, you made a “no comment” record of interview. You denied any involvement with any of the offending and said that you had the obtained the Honda Jazz through a mate.
48 Ultimately you have both admitted your guilt with respect to this offending. Both of you indicated your willingness to plead guilty at the committal hearing on 24 September 2018 before any witnesses were called and cross-examined.
49 There have been no victim impact statements filed. Nevertheless having regard to the nature of the offending and the period over which it was conducted, various people such as the owner of the Honda Jazz sedan, the owners and occupants of the other vehicles that were interfered with and had property stolen from, as well as the owners and occupiers of the various buildings that were burgled and had items stolen, as well as the intended recipients of the parcels and letters that were stolen, would have suffered disruption and inconvenience as a consequence of your criminal acts.
50 The offending is serious involving as it does systematic, organised and pre-planned activity committed in company of others involving as it did attendances at various commercial premises that had been targeted by your group and on each occasion you were equipped with the necessary tools to gain entry.
51 In sentencing you there is a need to emphasise general and specific deterrence, to provide for just punishment, and to provide for the protection of the community.
52 On behalf of the community I formally denounce your offending.
53 I have had regard to the personal histories and backgrounds of you both.
54 Daniel Brittain, you are the middle of three siblings. You have an older sister and a younger sister. There is also a step-brother from your father’s previous marriage.
55 At the time of the offending, you were living with your mother, Jodie, in Rowville and you are in relationship with Brittany Kandetzki whom you have known for some three years approximately.
56 Your parents’ relationship broke down when you were about the age of 15. Your father, Darren, and his new partner were in court to support you, as well as your mother and your girlfriend, your sister, Chloe, and her partner.
57 You are a man of Indigenous background through your father's heritage. You identify as Indigenous. Following the breakdown of your parents' relationship, you were cared for by your mother primarily. You grew up in the south-eastern metropolitan area and attended primary school and secondary school in that area.
58 The context of your parents’ relationship breakdown was a traumatic one and there were allegations of violence and abuse by your father towards your mother. A 15-year intervention order was made against your father.
59 You have a very limited work history. You left school after completing part of Year 10 and worked for McDonald’s for two years.
60 You have had an ongoing problem with the drug ice from time to time since your late teen years.
61 You left Victoria at some stage and went to live in Tasmania where you worked in civil construction at a Huon Valley timber mill. During that time you were able to stop using ice.
62 You returned to live in Melbourne in 2015 and tragically following a traumatic breakdown in your relationship with your then girlfriend at that time, you resorted to using ice again. Your ice use escalated such that you began to associate with negative peers and, in that context you became involved in the serious criminal offending that resulted in your conviction for armed robbery that occurred on 18 August 2016 in company with two others.
63 I have had regard to Judge Pullen's sentencing remarks of 7 April 2017 that sets out in full detail the circumstances of the offending.
64 In brief, you drove with two others to a venue where an armed robbery took place and thereafter you drove them away from the scene. You were paid a nominal sum for your participation.
65 At that time when you were arrested, you made full admissions and implicated your co-accused. You gave an undertaking to the court to give evidence against them which you did at a committal hearing. That process weighed heavily upon you. You were to give evidence at the trial, however you were informed the matter resolved and therefore you were not required to give evidence.
66 One consequence of your cooperation in the past with the authorities has been that you are being held in protection and you remain fearful of people associated with your former co-accused.
67 On 24 July 2017, three months after the imposition of the Community Correction Order imposed by Judge Pullen, you were involved in a very serious single vehicle collision whilst riding your motorbike. You sustained multiple injuries including head injury, thoracic and lumbar spine fractures, renal infarct, clavicle injury, haematomas, lung laceration, kidney injury which required a laparotomy and splenectomy.
68 You were discharged from the Alfred Hospital on 29 August 2017. You were offered inpatient rehabilitation but declined to stay in hospital opting for rehabilitation twice per week at home.
69 You have really struggled following that accident and the injuries suffered, and have had adjustment issues.
70 I have had regard to the reports of Dr Karen Scally, forensic and clinical neuropsychologist, who provided both a neuropsychological report as well as a psychological report.
71 She had access to a report of a CT of the brain taken on the day of your admission to hospital on 24 July 2017. No further imaging was considered. Her results were consistent with an acquired brain injury of mixed cause, namely the combined influence of mild traumatic brain injury and significant substance abuse with additional contribution of previously undiagnosed verbal learning difficulties.
72 She considered that there may be an additional contribution of significant mood disturbance to you a current picture. She said that it may be possible for there to be improvement in your cognitive functioning with ongoing drug abstinence and the alleviation of your significant symptoms of mood disturbance.
73 You are now 12 months post-injury, and whilst most significant neural recovery occurs in the first three months, smaller improvements can be made for up to two years. She said it is however likely that some of your deficits in memory and executive functioning are permanent and will cause ongoing difficulty with your ability to acquire new knowledge, self-regulate your behaviour and function independently.
74 She recommended review by medical staff to assess whether you have post-traumatic stress disorder (PTSD) given the findings you displayed when she examined you of significant mood disturbance, poor appetite and sleep patterns, significant depression, and anxiety and stress symptoms.
75 Upon your return to the community, she says that you will require highly structured supports and she recommends drug and alcohol counselling, psychological treatment so that they can target your depression and anxiety conditions and also to help you to self-regulate. She says you will need substantial ongoing support to comply with any community disposition and to avoid you relapsing into substance abuse with associated criminal activity.
76 It is imperative, she said, that you stop using substances so as to protect your brain from further injury, and she recommends that you be linked in with drug and alcohol services immediately on your release.
77 In psychological assessment she says there is an immediate risk of reoffending and again she recommends drug and alcohol counselling, psychological treatment, and also assistance with maintaining stable accommodation and employment in the future to reduce your risk of re-offending.
78 Given your acquired brain injury, she recommends an assessment by an occupational therapist to help you with suitable employment and also to assess your independent living skills.
79 She said that you do appear to be coping well presently in custody and you were responding well to the structured and predictable environment. You are currently working in the prison setting.
80 A copy of her reports together with the recommendations will be provided to the correctional authorities so that they can be considered for any plans that may be enacted while you are in custody and also upon your eventual release.
81 Mr Miller submitted that there are a number of mitigating factors which I accept.
82 You are, at 25 years of age, still a relatively youthful offender and rehabilitation is still an important part of your sentence.
83 The context to the offending was that you were struggling following the effects of the accident. You had feelings of lack of self-worth. You were using methamphetamines and cannabis. You committed the offending for money so that you could pay for recreational pursuits. Your life was pretty chaotic and you were familiar with the co-offenders through the drug scene.
84 Mr Miller did not seek to invoke the Verdins principles but urged the court to take into account in a general sense the difficulties that you have experienced in respect of to the acquired brain injury as elaborated by Dr Scally, and I do so.
85 He confirmed that custody meant that you have been provided a supportive and stable environment, and you are working doing light duties in the metal fabrication shop.
86 Your plans for the future are that you want to live with your girlfriend, Brittany. She remains supportive of you and is keeping in regular contact with you whilst you are in custody.
87 The progress that you made on the two Community Correction Orders was documented in a Contravention Report dated 19 March 2018 that was provided to the court at the plea hearing.
88 The conclusion states that you were attempting your first two Community Correction Orders and that your compliance with those orders had overall been less than satisfactory.
89 To your credit, I noted you did initially attend supervision appointments and you had some discussion surrounding why it was that you were offending and your risk factors but you failed to make any positive progress during the currency of the orders towards drug and alcohol treatment and also the mental health condition.
90 It is recommended that your Community Correction Orders be cancelled and that you be resentenced on the original charges.
91 In her sentencing remarks, Her Honour Judge Pullen, noted that your long-term association with sporadic use of ice coincided with the armed robbery offending and also it was in the context of a breakdown in your relationship and the fact that you were associating with negative peers and committing offences.
92 She noted that you had been referred to a counsellor at the Aboriginal Metropolitan Ice Partnership Program and that you were due to be seen for an appointment with that program on 10 April 2017.
93 That is a program that is culturally specific to Indigenous offenders and involves outreach and treatment, as well as streamlining access to more intensive services where required. It is very unfortunate that you did not take up that opportunity when it was offered and I urge you to explore the various treatment options available to Indigenous offenders whilst you are in custody to assist you to make good your expressed commitment to change.
94 Absent appropriate treatment and supports, I consider that your prospects for rehabilitation are rather guarded. Your future rehabilitation prospects are inextricably linked to you addressing your addiction to the drug ice, managing your acquired brain injury and obtaining stability in your life through stable housing and employment.
95 You have indicated through your counsel that you do wish to address your drug problem and that you do understand the link between offending and using drugs.
96 Obviously you are still relatively youthful and your rehabilitation is an important objective, but it is not the only objective. General deterrence is of particular importance in this case as well as specific deterrence and the protection of the community.
97 I have taken into account that you entered a plea of guilty following resolution of this matter at the contested committal and that the plea does have real utility notwithstanding it was entered at a later stage than that by your co-accused, Danny Nguyen. Through your pleas of guilty, you have indicated your acceptance of responsibility for your conduct. You have further spared the state the unnecessary expense and inconvenience of conducting a trial which would have inevitably have involved numerous witnesses and would have incurred unnecessary expense. You have facilitated justice and your sentence will be discounted accordingly. I accept that you now have insight into your offending and that the plea is indicative of some remorse.
98 Mr Miller sought a sentence of imprisonment with a non-parole period that would enable you to be assisted in your transition back into the community. He submitted that given your relatively young age and cognitive difficulties, that a longer than usual non-parole period was warranted.
99 Ms Bate submitted that a term of imprisonment to be immediately served was appropriate having regard to the gravity of the offending and the necessity for the court to emphasise deterrence both general and specific.
100 In all the circumstances, I do consider that a sentence of imprisonment to be immediately served is appropriate. I have had regard to the principles of parity but I consider that there are distinguishing features between your offending and that of the co-accused, Danny Nguyen, which I will comment upon shortly.
101 I now turn to Andy Nguyen and I will discuss your personal history and circumstances.
102 Andy Nguyen, you are aged 23. Before your remand, you were employed as a painter. Following your arrest, you were held in custody and released upon entering into the Court Integrated Service Program (CISP) bail on 22 June 2018.
103 You are in a relationship with Zara Ardelean, who is currently pregnant with your first child. She is due to give birth in March 2019.
104 You are one of nine half-siblings on your father’s side and three younger half-siblings on your mother's side.
105 Your biological parents separated when you were about 12 months of age. You were raised by your mother but have had regular ongoing contact with your father.
106 Your mother was a homemaker and your father was a plumber. He re-partnered and you have a close relationship with your step-mother.
107 There is extended family living in both Adelaide and Melbourne.
108 In the past, your father has had a problematic history of drug use, in particular heroin, and as a child and young person you were exposed to his drug use.
109 You left school partway through Year 11. You have worked in a variety of unskilled positions in take-away stores and a butcher’s shop. You worked as a machinist in a factory during 2014-2015, but ceased that job due to transport difficulties.
110 You then worked as a kitchen hand in Noble Park for less 12 months. You were unable to maintain that job because of your escalating drug use.
111 You were unemployed at the time of the offending. When you were released on CISP bail, you were successful in obtaining employment as a painter and maintained that employment up until the time of your second remand.
112 You have a long history of methylamphetamine use commencing at the age of 17. You developed an addiction to the drug reaching a point of consuming half a gram a day. You supported that addiction through drug trafficking.
113 At around age 19, when you were working in the butcher’s shop, you had a period of abstinence for about a year. You relapsed due to relationship issues and work issues. In 2015-2016, you did a three-month residential program at Windana Youth Community House and you understand the link between your methamphetamine addiction and offending.
114 Recently, you completed the CISP Program and you were discharged from that program following your committal to this court for these offences.
115 The CISP progress report details good compliance. It focused on you being motivated to understand the need to remain abstinent and to obtain employment.
116 You expressed a motivation to remain abstinent from illicit substance use.
117 You undertook a comprehensive assessment through ACSO for drug and alcohol problems as part of the program.
118 In a letter, Gabby Grande, the forensic alcohol and drug counsellor and assessor, confirms that you demonstrated appropriate motivation in the course of your treatment. You were consistent in attending your scheduled appointments and you were willingly engaged in the program and reported abstinence from methylamphetamine since January of 2018.
119 She confirms that you identified avoiding re-offending and custody, relationships with your family and partner, employment and regaining your driver’s licence as motivators to maintaining current abstinence.
120 You completed a Certificate 2 in Skills for Work and Vocational Pathways and have presented negative drug screens to the court. All of those factors combine such that I do consider that you have made real strides in addressing your underlying offending behaviour and have reasonable prospects for rehabilitation.
121 I accept also that your plea has real utility. It was entered at the committal hearing without the need for witnesses to be cross-examined. It reflects that you now take responsibility for your wrongdoing and you too have facilitated justice and your sentence will be discounted accordingly. I accept there is also some indication of remorse on your part.
122 You too are relatively youthful and the need to support your rehabilitation is important. You understand and have clear insight into the link between your using methylamphetamines and offending, and you have made real strides in dealing with your underlying addiction. You have good family support and your partner remains supportive of you.
123 On your behalf, Mr Reardon conceded that a term of imprisonment with a non-parole period was the only appropriate sentence.
124 He referred to the sentence that was imposed upon Danny Nguyen, your co-accused. He conceded that you are to be sentenced for a greater number of charges than him and that he pleaded at an earlier stage as well as he provided an undertaking to assist in the prosecution of both your case and that of Mr Brittain's. He concedes that your sentence should be greater.
125 Without detracting from those concessions, he submitted that your history is broadly similar to that of Mr Nguyen, Danny Nguyen’s, having regard to your similar age, similar prospects of rehabilitation and therefore you ought to be afforded the same benefit of the principles of totality as Mr Nguyen.
126 He emphasised that it is going to be difficult for you in custody, knowing that your partner will be having her child alone and that will cause you anxiety. He submitted it did not constitute exceptional circumstances but nonetheless I have taken into account the fact that such anxiety will make your experience in prison more burdensome.
127 You are now motivated to remaining free from drugs and wish to be able to have a meaningful relationship with your newborn child in the future.
128 You are relatively youthful, and the principles that apply to the sentencing of youthful offenders are relevant.
129 Insofar as sentencing is concerned in respect to you both, I have had regard to the principles of parity. You have both been charged with more offences than Danny Nguyen. I accept that the bulk of his criminality is reflected in the charges that you have both pleaded guilty to, but there are additional charges and also there are some distinguishing features that justify the imposition of a higher sentence for you both.
130 You both have relevant prior criminal histories that I have already outlined in full.
131 Danny Nguyen was also relatively youthful. He did not have as serious prior criminal history as you both. He had findings of guilt in the Children's Court and Magistrates' Court and convictions recorded on one occasion only for relatively less serious driving offences and some weapon offences for which he received an aggregate fine of $1000.
132 Overall his offending was of lesser magnitude with respect to the current offences. He had two trafficking drug of dependence offences on his indictment but they were both categorised at the lower end of the scale and that was reflected in the sentence that was imposed for those charges.
133 He did remarkably well in terms of his rehabilitation progress whilst on bail and he was able to demonstrate abstinence, apart from a relapse that was attributable to some trauma he suffered following the tragic death of his newborn son. He had undertaken no previous terms of imprisonment and entered his plea at the earliest opportunity, was fully cooperative with the police and made fulsome admissions in his record of interview. He made a statement setting out his involvement and your involvement in these crimes. He gave an undertaking to the court to give evidence and was available to give evidence at the committal hearing. As a consequence of his cooperation he will have to spend his time in custody in protective custody. He received a significant discount in respect to his cooperation with the authorities.
134 Andy Nguyen, by contrast, you made false denials in your record of interview, and Mr Brittain, you made only limited admissions in relation to 31 January 2018.
135 I considered that Danny Nguyen had excellent prospects of rehabilitation, and had insight, and was making considerable progress in dealing with his underlying offence behaviour. Andy Nguyen, you too are making considerable progress as is evidenced by your cooperation and participation on the CISP bail program but the same findings cannot be made in respect to Mr Brittain.
136 Mr Brittain’s rehabilitation prospects can be best described as only being guarded because of his antecedents and lack of responsiveness to the two Community Correction Orders that had been imposed in relation to previous offending.
137 All in all, having regard to all the factors that I have outlined, I consider the circumstances are such that a disparity in sentence can be justified in relation to both of you, Mr Brittain, and you, Andy Nguyen.
138 Given the particular circumstances, I consider that an aggregate term of imprisonment is appropriate for the offending given that it is part of a series and a course of conduct. That means that I will impose one term of imprisonment with respect to the offending to reflect the overall criminality involved.
139 In sentencing you both, I have had regard to the principle of totality and also the need to impose just punishment.
140 I will ask that Mr Brittain and Mr Nguyen now stand and I will announce the formal court orders.
141 Daniel Brittain, on Charges 2, 3, 4, 5, 6, 7, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 23, 24, 25 as set out on the indictment and Summary Charge 7, you will be convicted and sentenced to an aggregate term of imprisonment of six years and I fix a non-parole period of four years' imprisonment.
142 I make the following declaration pursuant to s.6AAA. But for your plea of guilty, I would have imposed a term of imprisonment of eight years to serve six years non-parole period.
143 Mr Brittain, following the conviction for Summary Charge 7 (drive whilst disqualified charge ) & Charges 16 & 18 (attempted theft of a motor vehicle), any licence that you hold will be cancelled and you will be disqualified from holding a licence for a period of two years effective from today’s date.
144 Andy Nguyen, on Charges 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21, 22 as set out in the indictment and Summary Charges 20, 26 & 38 you will be convicted and sentenced to an aggregate term of five years and six months' imprisonment to serve three years non-parole period. The non-parole period is shorter than it would otherwise have been because of your efforts towards rehabilitation.
145 Section 6AAA: but for your plea of guilty I would have imposed a term of imprisonment of seven years to serve five years' imprisonment.
146 Andy Nguyen, following the conviction for Charge 1 theft of a motor vehicle and Charges 16 & 18 (attempted theft of a motor vehicle), any licence that you hold will be cancelled and you will be disqualified from holding a licence for a period of two years effective from today’s date.
147 I make the Disposal Order sought and the Forfeiture Order sought, noting both those orders are by consent.
148 I make the following declaration of pre-sentence detention.
· Daniel Brittain, you have served 265 days pre-sentence detention and that will be noted in the records of the court.
· Andy Nguyen, you have served 149 days pre-sentence detention and that will be noted in the records of the court.
149 I think that covers everything.
150 MS BATE: Yes, Your Honour.
151 HER HONOUR: Yes. All right, so Mr Brittain and Mr Nguyen can now be removed from the courtroom please. We can adjourn.
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