Director of Public Prosecutions v Dang

[2017] VCC 116

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01979

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARYAN DANG

---

JUDGE:	HIS HONOUR JUDGE DYER
WHERE HELD:	Melbourne
DATE OF HEARING:	20 February 2017
DATE OF SENTENCE:	21 February 2017
CASE MAY BE CITED AS:	DPP v Dang
MEDIUM NEUTRAL CITATION:	[2017] VCC 116

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms Yildiz	Director of Public Prosecutions
For the Accused	Mr C. Nikakis	Haines & Polites

HIS HONOUR: 

1Ms Dang on 20 February 2017, yesterday, you pleaded guilty to an indictment containing a single charge of recklessly causing serious injury, contrary to s.17 of the Crimes Act 1958. The maximum penalty for such an offence is 15 years' imprisonment.

2Tendered as Exhibit A and read aloud in court was the prosecution opening.  In summary form, this disclosed that you had attended the Little Red Pocket bar in Little Collins Street, Melbourne, on the evening of 30 April 2016.  You were in the company of a number of other females.

3At approximately at 11.43pm you were sitting with friends in the smoking area of that venue.  At approximately 11.44, the victim, Mr Grant, entered that smoking area with two friends.  As they entered, your group left and a friend of Mr Grant overheard a conversation about a drink being spilt.  At or about this time you re-entered the bar and picked up a champagne bottle from a nearby table.  You then went back to the smoking area where the complainant was sitting with his back to the wall smoking a cigarette.  You walked up to Mr Grant and struck him directly to the left side of the face with a bottle.  This caused him to collapse and grab the left side of his face.

4There is nothing in Exhibit A to indicate that you had any interaction or other dealings with Mr Grant before your struck him with the champagne bottle.  Nevertheless, a suggestion of some interaction was made on your behalf by
Mr Nikakis during the plea.

5However, I am troubled by the fact that the summary records that you left the venue very shortly after the incident and Mr Grant was later conveyed to hospital by his friends, where he was treated as an in-patient for two days, having sustained a broken eye-socket, and a broken cheekbone.  He also had cuts to the left side of his face and was unable for a time to open his mouth or

eat properly.  He underwent surgery on 10 May 2016, where plates and screws were inserted into his cheekbone.

6On 17 August 2016, some months later, you were arrested by police as a result of information received. I do note that you entered a plea of guilty at a stage of the committal mention in the Magistrates' Court on 9 November 2016. Your early plea of guilty entitles you to the benefit of s.6AAA of the Sentencing Act 1991.

7I accept matters put on your behalf by Mr Nikakis, that your early plea has saved the community the cost of a trial and has spared Mr Grant, and other witnesses, the ordeal of giving evidence.

8You have also admitted a prior criminal history involving a single offence of recklessly causing injury, which was dealt with in the Melbourne Magistrates' Court on 26 March 2013, approximately three years prior to the current offending.

9On that occasion, without conviction, you were ordered to be of good behaviour and to pay $300 to the court fund and to complete a positive lifestyle program with the Salvation Army within six months.

10Your counsel, Mr Nikakis, has indicated that that offence involved throwing a glass in a licensed venue which struck another patron.  Clearly it is of a similar nature to the offending to which you have pleaded guilty on this occasion.

11You are 27 years of age and you are presently employed by AGL Energy.  I note the reference tendered on your behalf from Mr Mustafa, which is part of Exhibit 1.

12Mr Mustafa was your former direct supervisor.  He notes that you have been employed by AGL for approximately three or four years and to quote from his reference, "You have demonstrated outstanding work ethics, strong self-leadership capabilities and fantastic results on a consistent basis."  The letter of reference also states that, "You were very reliable, punctual, rarely taking a day off."  Mr Mustafa has been made aware of the nature of your offending and he notes that, "This appeared completely out of character for the person who I spend eight hours a day with and I couldn't envision Maryan partaking in such a disappointing incident."

13It also notes that you participate in volunteer work for organisations including the Salvation Army, The National Breast Cancer Foundation, Sleepbus and Big Umbrella.

14A further reference on your behalf was provided by Hua Lam, who has been employed by the Department of Justice as a corrections officer for over five years.  This letter of reference is dated 11 February 2017 and also forms part of Exhibit 1.

15This reference speaks highly of your personal qualities and notes:

"In my opinion, Maryan is one of the most gifted and dedicated young person I know who pride themselves in ‘others first’ and loving person towards others and it shocks me to see she had committed the offence which she had in May 2016. 

This charge will ruin her reputation amongst her friends, family and especially her work colleague, which she has painstakingly built up over the years.  I am afraid how the outcome of this case will affect her employment at AGL, where she has built great work relationship with her colleagues and her superiors".

16Also tendered on your behalf is a report from Mr Tony Pirotta, a director and principal psychologist at Reflections Psychological Services Pty Ltd.  You were referred to him by your general practitioner in October 2016 to address your alcohol use disorder and what he describes as an adjustment disorder.

17The report from Mr Pirotta notes that you consulted him on three occasions, being the 14 and 27 October 2016 and 12 January 2017.  Other appointments arranged were either rescheduled or cancelled by you according to Mr Pirotta's report.

18Mr Pirotta records in the body of the report a history of this incident provided by you during your second consultation on 27 October 2016.  This records the incident as follows:

"Maryan was in a nightclub.  A friend of a friend came to her and told her that a friend of hers needed help.  Maryan went and ended up getting involved in a bottle fight.  This was at about 00.00-01.00 am.  The venue was the Little Red Pocket in the City. 

Maryan was so blind drunk that she does not even remember. 

Maryan does not remember anything.  All she knows from seeing the cctv footage, is that she was bottling this guy who she did not know on the face.  She does not know what bottle it was.  The other guy ended up with a broken eye socket.  He had to have surgery to insert a cheek plate.  The bottle did not break so that there were no cuts or anything.  There was bruising."

19Mr Pirotta's report concludes with the following: 

"Ms Dang's level of engagement in my services precludes me from making any comment or providing any opinions." 

20That in substance is the material that has been put on your behalf by Mr Nikakis on the plea.

21I accept that you are a relatively young woman, now only 27 years of age and you have a good work record, and you are well regarded in relation to voluntary activities in which you engage.

22I accept that this incident occurred in circumstances where you had used alcohol to excess.  It would appear that this factor was also involved in the prior offending which you have admitted.

23Nevertheless, the type of offence committed by you involved serious injury to your victim, Mr Grant, and is the type of offence commonly described in the community as “alcohol fuelled violence”.

24The Sentencing Act provides guidelines to be taken into account in imposing an appropriate sentence.  Aside from aspects of general and specific deterrence, which are undoubtedly of considerable importance, your case demands particular denunciation of your conduct on this occasion, especially given the earlier opportunity, which a court had provided to you, to reform your anti-social and unacceptable behaviour.

25Nevertheless, your young age and the material advanced on your behalf does provide me with some confidence that rehabilitation may assist you in avoiding further alcohol abuse and reducing the prospect of further offending.  I have concluded that your prospects of rehabilitation are good.

26Your counsel has submitted that an appropriate disposition would be way of community correction order.  The Director of Public Prosecutions, through
Ms Saville yesterday, submitted that an immediate custodial sentence was the appropriate disposition and specifically did not accept that a community correction order without any term of imprisonment would be within the range of the appropriate sentences available to the court.

27I was provided yesterday by Ms Saville with a copy of a document prepared by the Sentencing Advisory Council, noting sentencing trends for recklessly causing serious injury.  This document notes that the median effective sentence for this type of offending is two years and ten months' imprisonment, with the most common total effective imprisonment length between two and three years.

28The submission advanced on behalf of the Director of Public Prosecutions is that your offending should be regarded at the higher end of this category and the sentencing options should reflect the degree of seriousness by way of length of the term of imprisonment.

29I have had you assessed for suitability for a community correction order and I note that you have been assessed as suitable.  I take the view that it is in the interest of the community as a whole to ensure that there is some assessment, monitoring and treatment provided to you in the future in relation to your abuse of alcohol, which, in my view, has been a significant factor in your offending on this occasion, and probably on the earlier occasion.

30Would you stand up now please, Ms Dang.

31I convict you on the single count of reckless cause serious injury.  I
sentence you to a term of imprisonment of 18 months and I comment that that is less than I would ordinarily oppose for similar offending in these circumstances.

32I do not propose to fix any minimum sentence and I direct that upon release from custody, you are thereafter sentenced to a community correction order for a further period of 18 months with a special condition that you perform 150 hours of unpaid community work and that you receive assessment and treatment in relation to alcohol use and abuse.

33I state that for the purpose of s.6AAA of the Sentencing Act but for your early plea of guilty, I would have sentenced you to five years' imprisonment, with a three and a half year minimum term.

34I further order, pursuant to s.464ZF of the Crimes Act 1958 that you provide a forensic sample in the manner prescribed.

35Ms Dang, I am going to have you sign the community correction order.  I appreciate the sentence I have passed is distressing for you but I reiterate that the matters that have been put on your behalf by Mr Nikakis have led me to, what I regard as a more merciful sentence than I would otherwise have imposed, even taking into account your early guilty plea.

36I have signed the community correction order.  I will note, Mr Nikakis, I remanded your client in custody yesterday so I will note there is one day of pre-sentence detention.

37MR NIKAKIS:  Yes.  Thank you, Your Honour.

38HIS HONOUR:  Ms Dang, if you would go with the corrections officer now please.  No other matters, Mr Nikakis?

39MR NIKAKIS:  No, Your Honour.

40HIS HONOUR:  Thank you for coming today Ms Yildiz.

- - -