Director of Public Prosecutions v Doan
[2019] VCC 319
•15 March 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No.CR-18-02275
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| QUAN TRUNG DOAN |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 March 2019 | |
DATE OF SENTENCE: | 15 March 2019 | |
CASE MAY BE CITED AS: | DPP v Doan | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 319 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Criminal Procedure Act 2009; Sentencing Act 1991; Crimes Act 1958
Cases Cited:R v Mills (1998) 4 VR 235; R v Connolly [2004] VCSA 24; DPP v Lawrence [2004] 10 VR 125; R v Tran (2002) 4 VR 457
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M Casey | Solicitor for the Director of Public Prosecutions |
| For the Accused | Ms B Franjic (Plea) Mr P McClure (Sentence) | Balmer & Associates |
HER HONOUR:
1 Quan Trung Doan, you have pleaded guilty to one charge of aggravated burglary, and two charges of causing injury recklessly on Indictment J11146626. The maximum penalty applicable to aggravated burglary is 25 years’ imprisonment and to causing injury recklessly, five years’ imprisonment. The victims of your offending relevant to Charges 2 and 3 were Hoang Phan (Charge 2) and Phong Nguyen (Charge 3).
2 You also agreed, pursuant to s145 and s242 of the Criminal Procedure Act 2009, to a summary charge being dealt with by me and have pleaded guilty to summary Charge 6, unlawful assault. That involved victim Brodie Higgans. The maximum penalty applicable to that offence is 15 penalty units or imprisonment for three months.
3 Your offending relevant to the charges before me occurred on 3 May 2018. These crimes arise out of events which took place on that date between you and the respective victims of your offending. It is not necessary for me to recount in great detail the facts of this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious and disturbing and your behaviour obviously unacceptable.
4 I turn to an agreed summary of the prosecution opening.
5 At the time of this offending you were 22 years of age, you are 23 at sentence. The victim, Hoang Phan, was 26 years of age at the time; Phong Nguyen, 18.
6 At the time of this offending, you and Tien Lam (Tien) had been in a de facto relationship for approximately 11 months, living at 3 Hugh Street, Footscray. You were having relationship issues. The victim Hoang was friends with Tien through his ex-girlfriend. At the time of the offence, Tien was visiting Hoang at his home address in Hawthorn where he lived with victim Phong and four others. Victim Brodie was a concerned neighbour.
7 I turn specifically to your offending. At 10.45 pm on Wednesday, 2 May 2018, Tien went to see Hoang at his home address at Hawthorn as she was having trouble with her boyfriend, that is, you. Hoang collected Tien from her home and Tien went into Hoang’s bedroom where they watched a movie and discussed the problems she was having with you.
8 Also present inside that house was Hoang, Phong, Yen Nguyen, Nguyen (Nguyen), Ai Vo and Tra Nguyen.
9 At approximately 11.00 pm, you rang Tien asking where she was so that you could pick her up. She told you she was at Hoang’s house and sent the address to you by text. She told Hoang that you sounded angry that she was at his house.
10 At approximately midnight you arrived at the Hawthorn address, rang Tien and told her you were out the front. Tien took her belongings, left the house and met you outside on the driveway, while Hoang stayed inside the house. Tien began to walk away from the house down the driveway but you were banging on the front door, saying, “Where’s Hoang?”
11 A short time later you began to kick the front door of the house and demanded to speak to him. You continued kicking the front door until you kicked it hard enough to force it off its hinges, causing the door to fall to the ground.
12 You entered the house armed with a number of small knives and a belt which you wrapped around your hand – Charge 1, aggravated burglary.
13 You entered the kitchen where Ai was standing and angrily demanded of Ai, “Where’s Hoang?” Ai could see that you had a knife in one hand and a black belt in the other. Ai could see more knives in a sleeve on your body. Ai was terrified and as a result did not reply.
14 You left the kitchen and Ai ran to her bedroom which she shared with Tra and kept her door open a bit to hear what unfolded.
15 Phong was in his room at the time and heard you kicking the front door. He opened his bedroom door to see what was happening and was confronted by you aggressively asking him, “Are you Hoang?” Phong said, “No”. You then closed Phong’s bedroom door.
16 Phong waited in his room in shock for a few seconds before reopening his bedroom door and noticing the front door lying on the floor.
17 Yen and Nguyen were in Yen’s room studying when they heard you banging on the front door. Yeng could hear you asking, “Are you Hoang?” Yen and Nguyen left the bedroom to see what was happening.
18 They saw you holding a black belt and a small knife with two other knives attached to you. You asked Nguyen if he was Hoang and Nguyen shook his head.
19 Tra heard the noise and came out of her bedroom. She saw you holding a black belt and a small knife. Phong told her to go back into her room.
20 Hoang came out of his bedroom and saw the front door lying on the ground. He saw you with a black coloured belt wrapped around your hand standing next to Nguyen. Hoang told you he was Hoang.
21 Nguyen said, “Be careful, he’s got a knife”. Hoang saw the knife.
22 Hoang grabbed you by the hand that was holding the knife to stop you from stabbing him. You started to punch him to the body and face with the hand holding the belt. You were whipping Hoang with the belt causing Hoang to sustain multiple bruises and abrasions to his back and shoulders (part of Charge 2).
23 Phong and Nguyen tried to stop you from assaulting Hoang by grabbing your hands. Phong then realised you had a knife. Phong said to you, “Calm down bro, we need to talk.” Nguyen was saying, “Hey Dude, keep calm.”
24 You, Hoang, Phong and Nguyen struggled for control of the knife. As a result, Phong sustained a small laceration to the right palm near his ring finger and to the left palm below his thumb, both of those caused by your knife (Charge 3). Photos were tendered of Phong’s injuries.
25 Hoang sustained a small laceration to the left side of his neck and a cut to his right hand, also caused by your knife (part of Charge 2). Nguyen was not injured. Photographs were tendered of Hoang’s injuries.
26 Tien entered the house and also tried to get you to stop. She saw you holding a black belt and a small knife.
27 Eventually the parties separated. You said to Tien, “Are you sleeping with him?” and then said to Hoang, “Do you know that Tien has a boyfriend or not? Why do you still go out with Tien?” At that point, Hoang realised you were Tien’s boyfriend. You then said randomly, “Do you know our parents are divorced?”
28 Tien tried to get you to leave the house with her. You verbally abused her saying, “Hey bitch, where are you going?” before both you and Tien left the house.
29 You and Tien walked down the driveway in Kinkora Road towards your car. Tien tripped over and fell to the ground. You grabbed her by the arm to help her up and walked her back to the car.
30 Brodie Higgans (Brodie) was standing in Kinkora Road when he noticed Tien lying on the road with you standing over her. Brodie believed you had assaulted her and as a result went to her aid. A conversation then occurred between Brodie and you (paragraph 29 of the prosecution opening). Following that conversation you moved towards Brodie and pulled a knife out from your right-hand hip area (Charge 6, unlawful assault).
31 Tien got back to her feet and walked towards your car. You followed her and escorted her into the car with your arm around her neck in a “choke hold” way. Before you got into the car, you said to Brodie, “I know where you live.”
32 You and Tien drove off. Brodie called 000.
33 Turning to the injuries sustained by Hoang, he sustained multiple injuries including those set out within paragraph 33 of the prosecution opening. He was referred to the Royal Melbourne Hospital to assess his injuries, in particular the neck wound, and to dress various other injuries and consider tetanus vaccinations.
34 Forensic medical officer, Dr Manolis, opined that the bruising and abrasions were likely to heal rapidly with no anticipated long term sequelae. However, the incisional wounds may result in scar tissue causing cosmetic changes but not affecting the function of the hand or movement of the neck.
35 I was advised that there were no ongoing sequelae to the injuries sustained by both victims.
36 It was at approximately 12.40 am on 3 May 2018 Brodie contacted 000 and reported a potential kidnapping as Brodie believed Tien had been taken against her will. Brodie provided the registration number of your vehicle. Police at 12.45 am arrived at the Hawthorn address and began investigating the suspected kidnapping of Tien.
37 At approximately 1.30 am, Ai, Phong, Yen, Nguyen and Tra attended Camberwell Police Station to report the aggravated burglary at Hawthorn. Hoang did not go with them as there were only five seats in the car and his hand was bleeding. Phong’s injuries, as I said, were photographed by police.
38 Police then went to the Hawthorn address and located Hoang in his bedroom with the cut to his neck and hand and abrasions to his body and an ambulance was called.
39 At 10.45 am, Hoang attended the Victorian Institute of Forensic Medicine for his injuries to be examined. The injuries to his back and shoulders were consistent with having been caused by a belt buckle and the injury to the neck consistent with the tip of a knife blade.
40 Checks of your vehicle registration led police to an address in Footscray and at about 4.10 am they attended that address and you answered the door. Tien was found inside your home, unharmed.
41 You were arrested and taken to Box Hill Police Station for interview. In that interview you minimised your involvement blaming your girlfriend and the victims for creating the situation, claiming you were acting in self-defence.
42 You told police that when you came home, your girlfriend was not there and you texted her and asked where she was. You said you knew she was doing something wrong. You went over to the address and you were, “Why are you staying with him overnight?” And she said, “You don’t really care about me.” “Stuff like that” you said. Further details of your answers are contained within the prosecution opening [paragraph 47].
43 You said someone tried to close the door, you tried to push it and just ran into it because someone was pushing from behind. You admitted that when you entered you were angry and upset that Tien was there and wanted to confront Hoang about why he would invite Tien over when he knew that she had a boyfriend. You said you got angry with Hoang and swung a belt to try to hurt him.
44 You admitted you had a belt in your jacket pocket but minimised why you had it. You denied being armed with a knife, although you said you did scream out, “Don’t get close to me, I have a weapon. ... I have a knife, don’t get close to me.” You claimed you only had a belt.
45 In relation to the confrontation with the neighbour Brodie and telling him that you had a knife, you denied you had a knife, claiming it was a car key.
46 You acknowledged the way you handled things was “terrible”. In relation to your reasons for your offending aggravated burglary, “I wanted to go in and ask him – talk to him.” Recklessly causing injury, the belt, Charge 2, “… when he pushed me he seem – started to get aggressive and angry so just in case he start hitting me so I wrap the belt just to, you know for him not to hit me. … I just have to do to defend myself …”
47 As conceded by your counsel you minimised your involvement in this offending. You were displaying little, if any, remorse at that time. I note you made admissions to police at least in relation to your presence.
48 You do not have any prior court appearances, subsequent or pending.
49 You have pleaded guilty to these charges and you are entitled to have that fact taken into account in your favour and I do so. The community has by your pleas of guilty been spared the time and cost of a trial and witnesses have been spared the need to give evidence upon your trial. I also accept, consistent with the chronology before me, you indicated your intention to plead guilty at a relatively early stage.
50 You were charged on 3 May 2018 and remanded in custody. There was a committal mention on 24 July 2018 and the matter was listed for a committal hearing on 7 November 2018. At that hearing the matter settled with no witnesses being cross-examined.
51 Your pleas of guilty and timing of them are relevant in mitigation of your sentence.
52 There are no number of victim impact statements before me. The victims have been given the opportunity, however declined.
53 You have spent one day in custody by way of pre‑sentence detention, being 3 May 2018.
54 Your counsel, Ms Franjic, provided a written outline of submissions for your plea hearing and addressed them during the course of it.
55 You were born in Ho Chi Minh City in Vietnam in 1993 and came to Australia with your mother when you were 11 years of age. Your older sister came out some years prior.
56 You got your first job at KFC in 2011, and continued to work there until 2015.
57 You completed Year 12 at Sunshine Secondary College and in that same year, 2013, became an Australian citizen.
58 In 2014, you commenced a Bachelor of Human Resources Management at Victoria University of Technology and completed one and a half years of that course.
59 In 2016, you completed a Certificate III in Commercial Cookery at William Angliss Institute.
60 In late 2016, your grandfather passed away and in mid-2017 your grandmother passed away. Your parents divorced and I am aware of that occurring at the time of this offending.
61 Regarding your offending behaviour, in particular it was conceded by your counsel that Charge 1 was particularly serious. It is.
62 When assessing the objective seriousness of your offending, she urged, however, a number of matters relevant to that consideration. That your offending was of relatively short duration. That you acted alone. That your offending was impulsive and in the context of you being emotional and upset. Further, you made no attempt to disguise your appearance. That it was, she urged, “fairly spontaneous offending”, not over a number of days.
63 There was, however, an element of pre-planning to your attendance at the property as I discussed with her.
64 Ms Franjic relied upon a number of matters relevant to disposition.
65 She relied upon your plea of guilty at a relatively early stage being indicative of remorse by you as well as having utilitarian value and I have already referred to your pleas of guilty and timing of them.
66 Further, she urged, that at 23 years of age, you were a youthful offender and that the principles in R v Mills (1998) 4 VR 235 had some application. In particular in that regard that you did not have any prior court appearances and I am aware of that.
67 She urged that rehabilitation be given greater prominence when sentencing you than the court would for an older offender.
68 In that regard, I am mindful of a number of authorities which have considered the decision of R v Mills and youthful offenders. See R v Connolly,[1] DPP v Lawrence[2], and R v Tran[3]. This list is not exhaustive. I am mindful of your age, lack of prior/subsequent/pending matters and the importance of rehabilitation of young/youthful offenders.
[1][2004] VCSA 24
[2][2004] 10 VR 125
[3](2002) 4 VR 457
69 Ms Franjic also referred to your lack of prior convictions or findings of guilt and reliance upon character references which supported that offending was out of character and relied upon those as being referable to your rehabilitation prospects. Ms Franjic submitted your lack of prior offending, good work ethic, impressive work history, ongoing unwavering family support and the absence of any significant barriers to reform such as drug/alcohol addiction or mental health issues reflected good rehabilitation prospects.
70 She also referred to you not having previously served a term of imprisonment and I am also aware of that.
71 I turn to the references tendered. From Tran Doan dated 25 February 2019, I gather your only sibling. The author described seeing you at least once a week and communicating frequently through text messages, particularly after this incident happened.
72 You repeatedly said you were sorry for what had happened and you could not believe it led to where it had. You were ashamed of yourself and admitted you were selfish and did not think of the impact of your offending upon your family.
73 The author described you coming to Australia when you were 11 years of age, not having a father figure in your life and needing to adapt to the new culture. The author described you as being bullied throughout your high school years and that there were meetings with the school principal and vice principal about that. To your credit she said you did not fight back, rather remained calm when bullied.
74 You got your first job through School Work Placement in Year 10 at Coles, then obtained employment at KFC in Elizabeth Street where you were promoted to shift supervisor.
75 You completed one and a half years at Victoria University, however, realised your real passion was working in a kitchen. To that end, you began working part time in a kitchen to see if you were interested in becoming a chef. At the same time, you were working as a medical courier for aged care facilities. You took one and a half years to complete your culinary commercial cookery certificate at William Angliss, and since that time had worked in numerous small and big restaurants. Reference was made to the passing of your grandfather and grandmother and your parents filing for divorce after 32 years of marriage. Also to the difficult relationship between yourself and your biological father. You had always been reliable and trustworthy, hardworking, and never wanting to argue or fight with anyone.
76 You worked long hours, she said, in a very stressful environment but had never argued, rather were always known as a funny person. You were a caring and loving person with your family.
77 Since this offending, you had worked hard to find yourself a job as head chef in a café, taking on responsibilities by creating your own menu, recruiting staff and dealing with suppliers.
78 There was a reference from Clinton Fong dated 25 February 2019, your brother-in-law, who has known you since 2014 and would see you regularly.
79 When he saw you when you were released on 4 May from custody you knew your actions had disappointed yourself and your family. After your offending, you sought advice from a mental health counsellor and worked on staying calm and keeping your head down. You had always worked hard. In your career as a chef, he had witnessed your dedication, determination and patience to become the best chef you could.
80 You had always wanted to connect your family together with the separation of your parents being very disturbing for you. You had very little support from your father.
81 A reference from Adam Dib dated 28 February 2019, your employer at a café where you are currently head chef. You applied to be a head chef at that café approximately six months ago and said it had been a great pleasure working with such a talented and benevolent man. You had helped him start up and grow his business. You had the respect of all staff at the café. You had a friendly nature and ability to communicate effectively. You loved devising strategies that promoted the café within the local community. You showed respect and dignity to customers/staff.
82 You were worried about what this offending and appearance in court could do to your personal and professional reputation. You had expressed regret for your offending and were researching opportunities to seek counselling to understand how this violence came about.
83 In his opinion, you regretted having committed these offences, although you knew you had to be accountable for the consequences of your actions. You were concerned you had caused someone else great suffering.
84 Mr Dib was surprised to hear of your offending. It was out of character for you.
85 There was a reference from Vy Nguyen dated 5 March 2019. He has known you for the last four years through his relationship with your older sister. He described from his observations you had been extremely remorseful for your offending, guilt-ridden for the pain and suffering inflicted upon the victims.
86 Twelve months prior to this offending, your life had been an “emotional roller coaster” as he described within the reference. You had matured into a confident, caring and respectful young man in your personal and professional life. You had tried to mediate the family conflicts between your parents in an effort to keep them together. From his observations, you were chastened by your offending and had made concerted efforts to rectify your behaviour.
87 There was reference from Linda Tien dated 4 March 2019. She has known you for seven years as a close friend. You were both employed at the KFC store in Elizabeth Street. She described you as hardworking and honest. You were stressed as a result of your offending and concerned about your career and future. You regretted what you had done. That you understood your offending and that you were responsible for it. She believed you had learnt a lesson. You had never previously demonstrated any violence towards people.
88 A reference from Jenny Nguyen dated 25 February 2019, an ex-employer, who had known you since 2017 when she started her restaurant. You were her employee from day one. You were dedicated, passionate and loyal to the business. You were friendly in nature with the ability to communicate effectively when the restaurant got busy in rush hours. She had never seen you angry or out of control in an aggressive way. You were very concerned about this offending and the likely result of it. You said you regretted the incident. She could not believe you would be out of control and act in the way you did. She believed you had learned a great lesson from your experience.
89 Your counsel, Ms Franjic, relevant to sentence, conceded that general deterrence, just punishment and denunciation were highly relevant sentencing considerations in this case and she is correct. She submitted, however, that your youth and prior unblemished history meant that rehabilitation would be given some prominence in sentencing you. I agree, and I am of the opinion overall your prospects are good.
90 She submitted there was little need for specific deterrence and community protection, relying upon your lack of prior criminal offending and otherwise antisocial behaviour. In my opinion, even mindful of that, there is an element of specific deterrence applicable.
91 She submitted that totality was a relevant consideration as your offending was committed in one episode, and urged modest cumulation between the charges.
92 She conceded your offending was serious and warranted a period of imprisonment, however urged that period be structured to foster your rehabilitation at the earliest possible opportunity.
93 She urged that a community corrections order would have both a punitive and rehabilitative aspect to it.
94 There were no expert reports to address future risk, although I do note your lack of priors, anything subsequent or pending, and also your work ethic.
95 Ms Casey, who appeared on behalf of the prosecution, submitted the appropriate sentence was that an aggregate sentence could be imposed, and a combination disposition, i.e. a term of imprisonment together with a community corrections order, would be within the range of appropriate sentences for this offending.
96 When sentencing, I must consider the need for general deterrence which is of considerable importance in a case such as this.
97 In my opinion, as I have previously stated, there is an element of specific deterrence required when sentencing you, given the multiple victims of your offending.
98 I must also consider protection of members of the community from you and bear in mind the likelihood of your reoffending. This concerns me subject to you undergoing counselling to address your offending behaviour such as anger management, and/or relationship counselling if appropriate.
99 I am comforted by your lack of history involving any other violent type behaviour, or any other for that matter.
100 It is, however, of concern you let your emotions regarding your then girlfriend develop to the stage that it did. You are young and will no doubt be in other relationships in the future. You need to develop a more mature means of dealing with relationship issues, because there are always going to be some. You cannot deal with problems within your relationships by resorting to violence against anybody.
101 I am also called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
102 I arranged to have you assessed for a community corrections order and have received that report prepared by Monica Dankoff. You are suitable for an order and you consented to the order being made when spoken to by the Corrections officer. I am aware of the conditions that the author proposes of any such order, I am not bound by those suggestions.
103 Turning to sentence, there is no doubt that the objective gravity of your offending is high. The offence of aggravated burglary is a serious offence and the maximum penalty clearly reflects the Parliament’s attitude to this offending. In your case I am also particularly concerned your offending involved the use of a knife to injure two people within the house, also attending with a belt and wielding that in relation to Hoang. A knife in a scuffle or fight quite simply ‘cranks up’ the potential for offending to become extremely serious.
104 A simple stab wound can cause death. Having said that, I am mindful of the charges before me for which you are to be sentenced. That the knife injury to the neck is visible in the photographs, and it appears it was across the neck, is more good luck than good management by you that this was not more serious. You could so easily have been in the Supreme Court had the injuries been more serious.
105 I am concerned about your reason for attending and offending. You believed your girlfriend was being in some way, as I understand it, unfaithful to you with Hoang. It is of real concern that you addressed that perceived problem in the way you did.
106 Sentencing is, of course, a matter for the judge and to state that is obvious. Ultimately I must determine the appropriate sentence in any particular case, and as I said, I am well aware of the objective gravity of your offending. As far as I am concerned, you have definitely jumped in at the “deep end” as far as offending that comes before the courts.
107 I am conscious, however, that you are a person that comes to court as a youthful offender without any prior convictions or appearances and nothing subsequent or pending. This offending also had a context to it in which you were emotionally charged. However, in saying that, it is very often the case that aggravated burglary offences involve emotionally charged offenders.
108 I have given anxious consideration to the appropriate disposition in your case. Ultimately the sentence I intend to impose is one which no doubt may be regarded by others as extremely lenient. I am aware of that. It may be that the Director of Public Prosecutions say I have ‘got this wrong’. However, in all the circumstances, I have determined that taking into account the gravity of your offending and the matters personal to you in mitigation of your sentence, that it is appropriate, should you consent, that you be placed on a community corrections order. By stating that, my intention is not to also impose a term of imprisonment despite what appears to be both counsel's opinion as being appropriate.
109 For me to impose such a disposition, i.e. a Community Corrections Order, you must consent to an order in the terms that I propose. You had better listen very carefully to this, Mr Doan.
110 OFFENDER: Yes, Your Honour.
111 HER HONOUR: Really carefully, because if I see you again there are going to be big problems, for the wrong reasons. It will become apparent what I mean by that in a minute. I need to tell you about what I am proposing for you to seriously consider whether or not you consent to this order.
112 OFFENDER: Yes, Your Honour.
113 HER HONOUR: It will be with a conviction recorded and the length of the order will be four years, four years of your life from today.
114 OFFENDER: Yes, Your Honour, I - - -
115 HER HONOUR: Just listen. Your counsel will come and have a chat to you in a minute. The following core conditions apply to all community corrections orders and they apply to you.
·You must not commit, whether in or outside Victoria, during the period of that order, which is over four years, an offence punishable by imprisonment. It does not have to be another aggravated burglary or another assault charge. It can be driving whilst disqualified. That has the potential to attract a term of imprisonment. If you breach that order, if you do commit an offence in or outside Victoria, you will be back me and I have to resentence you on all these charges. We will talk about resentencing options in a minute.
·You must report to and receive visits from the Secretary to the Department of Justice, I will call them community service workers, during the period of the order, that is over four years.
·You must report to the Sunshine Community Corrections Centre at 10 Foundry Road, Sunshine within two clear days from today, that is, by 4:00 pm next Tuesday, 19 March 2019. If you do not attend there is no excuse that is acceptable. You will have breached the order as far as I am concerned and I will need to resentence you.
·You must notify the Secretary, or his or her nominee, i.e. a Corrections worker, of any change of address or employment within two working days after that change.
·You must not leave Victoria except with the permission of the Secretary to the Department of Justice, the community corrections worker. No holidays, no nothing outside Victoria without permission for the next four years until you are 27.
·You must comply with any direction given by the Secretary or the community service worker to ensure you comply with this order. So what they tell you to do you must do, otherwise you run the risk of breaching this order.
116 OFFENDER: Yes, Your Honour.
117 HER HONOUR: There are a number of other conditions which are going to be attached to this order, and they apply to you alone:
· You must perform 400 hours of unpaid community work over the four-year period. I have been told that there is no reason why you cannot perform that work and work it around your other commitments. Is that correct? Just listen. There is no reason why you cannot perform those hours, medically or any other way; is that right?
OFFENDER: That's right, Your Honour.
HER HONOUR:
· You will be under the supervision of a Community Corrections Officer for four years.
· You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the Regional Manager of Corrections (s48D(3)(e)). You may not need it, they will make up their mind if you do, but if they tell you you have to have a mental health assessment and have to have treatment then you have to do it.
· You must undergo programs or courses aimed at addressing factors relating to your offending as directed by the Regional Manager or community officer, and I specifically refer to Anger Management, perhaps Dealing with Grief and Loss, or relationship counselling and any other programs they consider appropriate.
You must attend for review of your progress and compliance or otherwise with the conditions of this order. That means coming back before me every six months for Judicial Monitoring; every six months for the next four years you are going to see me. I will talk about if you see me more often than that in a moment. The first Judicial Monitoring will be on 16 September 2019 at 9.30am (s48K), you have to be here. It is a condition of the order. You do not turn up, you have breached the order, you get back before me and I sentence you again.
118 I have to tell you a few other things about breaching the order. I know this goes on, but it is life.
119 I should advise you that if you contravene or breach this order, this four-year community corrections order, by committing further offences such as, I do not, anything you like, theft from a shop, then you can be charged for the breach for that offence and a sentence of imprisonment is one of the options that can be imposed for that breach. I have to say one of the options but I can assure you the options will be very narrow in your case.
120 OFFENDER: Yes, Your Honour.
121 HER HONOUR: You can also be re-sentenced for the offences that are before me. One of the options available includes a term of imprisonment. I digress and say by imposing this order I consider you have had a very good day today and I consider my sentence to be somewhat lenient, but if you come back before me for breaching this order – and this is why I want you to think seriously about it – then you will give me little option.
122 For example, if you breach this order and come back before me and say, "Oh, give me another go on a CCO", do not expect any sympathy from me, and that really in our current sentencing regime leaves it a term of imprisonment for these offences.
123 OFFENDER: Yes, Your Honour.
124 HER HONOUR: So you have got to be extra careful for the next four years. No committing any further offences that might incur a term of imprisonment, otherwise back before me, re-sentenced on these charges. You have to be extra, extra careful for four years of your life.
125 I have to also tell you if you fail to comply with any direction of the Secretary to the Department of Justice, that is a Community Corrections officer, then you can also be fined, monetary. Now are you aware of all of that?
126 OFFENDER: I am aware all of that.
127 HER HONOUR: I think, Mr McClure, you should take the opportunity to go back to see him, because I really want him to understand that my hands will be tied if he comes back having breached the next four years of his life, and that is a long time in a young man's life, I am conscious of that.
128 MR McCLURE: Yes, Your Honour.
129 HER HONOUR: I am also conscious of the fact that I am taking head on the sentencing submissions of not only the prosecution but his own counsel.
130 MR McCLURE: Yes. Thank you, Your Honour. If you would permit me that time I will speak with him.
131 HER HONOUR: Yes. I know he is probably terribly excited and he will say yes to anything, but you make sure as best you can he understands.
132 MR McCLURE: Yes, Your Honour. Thank you, Your Honour. He would consent to the order, he understands his obligations, he's willing to prioritise the order over anything else in his life for the next four years
133 HER HONOUR: If he sees me and he has not, it will not be a good day; bring his toothbrush.
134 MR McCLURE: I have told him that. Well, he's brought it today but he knows very well, it is very clear to him, any infraction in any way - - -
135 HER HONOUR: All right. Have a seat, thanks. Mr Doan, just so that we have absolutely no confusion, that is what you have told Mr McClure, but I want to hear from you. Now that you are aware of all those conditions of that order, the length of it, four years, including conditions such as 400 hours, treatment and rehabilitation programs you must attend and every other condition I read out, both the core conditions and the extra ones that apply to you, do you consent to the order being made?
136 OFFENDER: Yes. I'm fully aware that I will follow every order that you give out as well as any extra, because I understand that I need to pay for what I did last year on 3 May and I will never forget what I did and I will learn that – I will take that as a lesson for my future.
137 HER HONOUR: Right. What happens if you come back, I will just give you a little clue, a heads up, if you come back before me for the wrong reasons. This is being recorded, and what I do when you come back for a breach is I just get Mr Butler to replay your consent and what you just said.
138 OFFENDER: Yes.
139 HER HONOUR: And thereafter I find the hearings are very short.
140 OFFENDER: Yes.
141 HER HONOUR: Have you got that?
142 OFFENDER: Yes.
143 HER HONOUR: So formal sentence. On Charges 1, 2 and 3 on Indictment No.J11146626 and Summary Charge 6, you are convicted and placed on a Community Corrections Order for four years with all the conditions to which I have just referred, and I am not going to repeat them.
144 The prosecution made application for a s464ZF forensic sample, pursuant to the Crimes Act 1958. That was not opposed by Ms Franjic on your behalf and I make the order in the terms sought so they can get a sample from you, it will be for a saliva sample and I must advise you the authorities may use reasonable force in order to obtain that sample.
145 The prosecution made application for a disposal order in relation to a number of items stated within the schedule. Your counsel, Ms Franjic, consented to the order being made and I make the order in the terms sought.
146 Pursuant to s6AAA Sentencing Act 1991, had you pleaded not guilty to these charges and been found guilty of them, I would not have imposed a community corrections order. Rather, I would have sentenced you to a term of imprisonment of six years with a non-parole period of four years.
147 Should I need to revisit this sentence, and I hope I do not, simply for ease and next time around, I declare pursuant to s18(4) Sentencing Act 1991, you have spent one day in custody by way of pre‑sentence detention and I direct that that be entered into the records of the court.
148 Normally, counsel, it is not required for a community corrections order but if I have to revisit this it saves me going through all the paperwork, it is there.
149 COUNSEL: Yes, Your Honour.
150 HER HONOUR: Mr Doan, I am going to see you in September, 9.30 on the dot.
151 OFFENDER: Yes.
152 HER HONOUR: That is not 10 o'clock, it is not 9.45, it is not 9.35. I start on time.
153 OFFENDER: Yes, Your Honour.
154 HER HONOUR: If not early, but I can never blame you if you are not here on time if we are early; all right?
155 OFFENDER: Yes.
156 HER HONOUR: I will see you in six months' time. If you are doing everything correctly, if you are doing all the right things on this order, then it will be a quick hearing. You can be in and out of the place in ten minutes provided you are here on time. Do you follow?
157 OFFENDER: Yes, Your Honour.
158 HER HONOUR: If, however, you come back before me for any breach of the order or for the wrong reasons then, as I have said, be prepared. I am giving you a chance today. It is not a repeat opportunity as far as I am concerned.
159 OFFENDER: Yes, Your Honour.
160 HER HONOUR: This is serious offending.
161 OFFENDER: I understand.
162 HER HONOUR: The other point, you are not out of the woods yet.
163 OFFENDER: No, Your Honour.
164 HER HONOUR: The Director can appeal my decision and say I am too lenient. It may happen, it may not.
165 OFFENDER: You are very kind.
166 HER HONOUR: Be aware of it. I am not kind at all; be aware of it.
167 OFFENDER: Yes.
168 HER HONOUR: Is there anything further?
169 MR McCLURE: No, thank you, Your Honour.
170 MS CASEY: Other than signing the order.
171 HER HONOUR: I have to sign this, yes, and I need the 464 paperwork. Is the 464 there somewhere? Any sign of that somewhere?
172 MS CASEY: Your Honour, I'm instructed it was E-lodged.
173 HER HONOUR: All right, I will sign it and send it. Whatever the arrangement is, my associate will get it back as soon as possible.
174 MS CASEY: Thank you, Your Honour, and we can provide a further copy.
175 HER HONOUR: Yes, I think you have to. According to my associate, we are getting a no. I am not saying it was not done, these things happen.
176 All right, Mr Doan, I do not want to see you again, except for judicial monitoring, do you follow?
177 OFFENDER: Yes, Your Honour.
178 HER HONOUR: Anything else, counsel?
179 COUNSEL: No, Your Honour.
180 HER HONOUR: Thank you both.
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