Director of Public Prosecutions v Doung
[2018] VCC 1217
•7 August 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01971
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HAN DOUNG |
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JUDGE: | HER HONOUR JUDGE FOX | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 August 2018 | |
DATE OF SENTENCE: | 7 August 2018 | |
CASE MAY BE CITED AS: | DPP v Doung | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1217 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Henderson (plea & sentence) | Office of Public Prosecutions Victoria |
| For the Accused | Ms J. Clark (plea & sentence) | Matthew White & Associates |
HER HONOUR:
1 Mr Doung, you have pleaded guilty to one charge of attempted armed robbery. The maximum penalty for this charge is 20 years’ imprisonment. You have no prior convictions and at the time of the offending, you were 34 years old.
2 The offence occurred on 9 August 2017. The victim, Mr De Silva, was working alone at Plaza Cellars on Heatherton Road in Springvale South. He was preparing to close the store for the evening. At approximately 10.15pm, you entered the store wearing a cap, black clothing and a backpack. You walked past the front of the service counter and approached Mr De Silva whilst holding a kitchen knife in your left hand. You stopped approximately 1 metre from Mr De Silva, pointed the knife at his stomach and said “Give me the money”. Mr De Silva replied, “What money?”, clenched his fists and moved towards you. He yelled, “Fuck you” and continued to move towards you while you walked backwards to the front of the store, still holding the knife. Once you were both outside, Mr De Silva yelled for help and you ran from the scene.
3 Mr De Silva called 000, followed you and then got into his motor vehicle and continued to follow you whilst relaying where you were to the 000 operator. You were arrested by police in Guildford Avenue and found to be carrying a Wiltshire Staysharp knife.
4 At 4.30am on 10 August 2017, you participated in a record of interview. You made full and frank admissions to the attempted armed robbery and stated:
“My mind just went crazy I guess … I don’t know what I was doing and I'm desperate. This is my first time I ever even attempted to commit a crime. I'm just very desperate for money … I didn’t have a clear mind … I tried to get some money.”
5 You said:
“I just wanted money … I just want money to survive. I've got no money at all …”
“I don’t know why I did it but I guess I'm just so desperate, so hungry, so tired. I got nowhere to go. I just want a bit of money … “
“All I want to say is … sorry to that shop owner … I never wanted to intend to hurt him.”
6 You were charged and remanded into custody. You spent 49 days in custody before being released on bail on 26 September 2017.
7 There is no Victim Impact Statement in this matter.
8 The Crown submits that this type of offending is prevalent. The victim was a soft target, he was alone in a store at night and a knife was used. The prosecution submitted due weight must be given to general deterrence. Whilst there is no victim impact statement, it is almost certain that the victim would have been scared by what occurred.
9 The prosecution accepted that specific deterrence in your case falls somewhat into the background. The prosecutor also agreed that you had reasonable prospects of rehabilitation. The prosecution submitted that a combination imprisonment and Community Correction Order was within range. Further, the prosecution very fairly agreed that in your circumstances the 49 days you have spent in custody is sufficient to satisfy the imprisonment part of a combined sentence.
10 It was submitted on your behalf that the offending involved minimal planning and was unsophisticated or amateur. It was conceded that the victim was a soft target, and alone in a shop, and general deterrence is a relevant sentencing consideration. However, it was submitted that the offending in all the circumstances falls towards the lower end of the range for this type of offending.
11 I am told this offending occurred in a period of real difficulty for you. You had a gambling problem and had incurred significant debts because of gambling, and those debts were owed to a variety of persons and organisations. They included bank loans. You had got to the point where it was overwhelming you and you were not seeking proper help or assistance. Instead, you left your place of residence, which was with your mother, and were effectively homeless. You were sleeping rough and abusing prescription medication. You were hungry, tired, ashamed and suffering feelings of disgrace. You needed money to survive. You did not have a drug or alcohol problem and you have no history of drug or alcohol problems. The issue you have, it seems, is with gambling and associated depression.
12 It was submitted this offending occurred at a very low point in your life and brought you to the absolute lowest point as you found yourself in custody. You were held initially in police station lock up, then the Melbourne Custody Centre, the Melbourne Assessment Prison and Metropolitan Remand Centre. It was submitted that 49 days is a significant period of time for someone with no prior convictions and no experience in the criminal justice system. I am told it exposed you to a range of experiences and galvanised in you a determination never to return yourself to jail.
13 You were bailed on 26 September 2017 and have complied with your bail conditions, including not gambling and not committing any further offences. You have the support of your family, in particular your sisters, Jennifer and Michelle, and your mother.
14 I turn now to your personal circumstances.
15 You were born in Vietnam and came here in approximately 1987 aged four years old, together with your mother and your two sisters. A sister of your mother sponsored the family to get to Australia. You were educated here and attempted Year 12 but left halfway through. You have a pretty steady history of employment, mostly in sales.
16 A report of Carla Lechner dated 9 February 2018 was tendered on your behalf. Ms Lechner found you fulfil the criteria of persistent depressive disorder and have a history that suggests that at times you have suffered Major Depressive Disorder. You report a number of suicide attempts including one shortly before the commission of this offence. She found you have a pattern of gambling which is best described as binge gambling, rather than chronic gambling. She found you made no attempt to shirk responsibility or minimise the seriousness of this offence.
17 You had one serious relationship which involved a marriage to Yen. I am told you have always lived with your mother including whilst married to Yen. Since being bailed in September 2017, you have done your best to address your problems. You are very fortunate to have the support of your mother and your two sisters. Your mother and sisters visited you whilst in custody and upon your release, your sisters have helped to clear your financial debts and you are back living with your mother.
18 You have also obtained employment working in sales selling solar panels for houses. You obtained this employment in early to mid-April 2018. You receive a basic pay plus commission and are working five or six days a week. You purchased a cheap car so you can get to work in Frankston and you are intending to repay the debt that you now owe to your sisters.
19 You have accessed some mental health treatment and support. On 15 March 2018, you were referred by your general practitioner to Dr Pinto. You went to see him and have followed up by speaking to him over the phone on approximately six occasions. You are not currently on any prescribed medication.
20 You have also accessed the Gamblers’ Help Line. You initially contacted them approximately three times after being released from custody. You were then referred to a counsellor and it appears you completed an intake form on 19 March 2018. You have attended a counsellor twice in person plus continued to seek help from the counsellor over the phone. You speak on average to a counsellor once a fortnight for up to 45 minutes at a time.
21 I am told that counselling has helped to clear your mind and reduce your urge to gamble. It has also increased your self-control. I am told you have not gambled since being released on bail and I note that a condition of your bail prohibits gambling. In addition to counselling, your sisters and mother are constantly monitoring and supporting you. You accept that you need that monitoring and you have accepted their help. Your family support you only on the basis that you do not return to gambling. Your family has provided significant help to you, not simply financially but also by way of their time and care. I am told that you understand that the only way you can repay that debt you owe to your family is to respect them and respect the help that they have given you.
22 You are now 35 and I accept that given your history, this offence is out of character. Given your lack of prior convictions and the efforts you have made since being released on bail, specific deterrence is not in my view a significant sentencing factor, however I do note that you have been assessed by Corrections as a “medium” risk of reoffending, and you definitely still have work to do to ensure that you do not return to gambling.
23 I accept that you are genuinely remorseful for your offending. Your early plea of guilty is evidence of remorse. You apologised to the victim in your record of interview, and you expressed victim empathy to Ms Lechner.
24 General deterrence is an important sentencing factor. As the prosecution observed, and I accept, this type of offending is prevalent and too often committed on soft targets who are alone and at night. The use of a knife is serious and also prevalent.
25 I accept that you have good prospects of rehabilitation. You are now employed, you have made efforts to attend counselling and you have the strong support of your family. I also accept that spending 49 days in custody would have been a sobering experience and that you are determined not to return to gaol.
26 In all the circumstances, I had you assessed for a Community Correction Order. You were assessed as suitable for such an Order.
27 The offence of attempted armed robbery carries a maximum penalty of 20 years' imprisonment. In most cases, immediate imprisonment is demanded. However in all the circumstances I am prepared to release you on a Community Corrections Order. Whilst you have served 49 days imprisonment, in my view some community work is required to give full effect to the need for just punishment, given the seriousness of your offence.
28 On the single charge of attempted armed robbery, you are convicted and sentenced to a combined term of imprisonment together with a community corrections order. Thank you, Mr Doung, stand up. You are convicted and sentenced to 49 days' imprisonment, and I declare that the 49 days you have served by way of PSD be reckoned as time served.
29 You are also convicted and sentenced to a three year community corrections order. This Order commences today. The conditions of the order are:
· that you perform 200 hours of unpaid community work,
· that you be subject to the supervision of corrections,
· that you attend for mental health treatment and rehabilitation as directed,
· that you attend for any other treatment and rehabilitation as directed, and Mr Doung, that is likely to be directed towards your gambling problem for which you definitely still need help,
· you are excluded from entering or remaining in any gaming or gambling venue for a period of two years,
· pursuant to s48CA, I determine that up to 50 hours satisfactorily undertaken for treatment or rehabilitation be credited as hour of unpaid community work.
30 I also make the Orders sought by the DPP – being the disposal order and s.464ZF order. I shall sign those in a moment.
31 And I declare that but for your plea of guilty, pursuant to s.6AAA, I would have sentence you to three years, six months' imprisonment with a non-parole period of two years.
32 Mr Doung, you come out of the dock and have seat behind your barrister. The order will be prepared. I will just leave the bench whilst the order is prepared and counsel can check it and I will sign these orders whilst I am out there.
33 (Short adjournment.)
34 HER HONOUR: I have signed a community correction order. I understand counsel checked it. It does not reference the term of imprisonment because it is really commencing today. That will obviously be reflected in the records of the court as will the 6AAA figure. I will hand that down to you, Ms Clark. Thank you.
35 Mr Doung, can you stand up please? I have made the community correction order. If you have any questions about it, you should ask your counsel before you leave court today. You should understand that this order runs for three years. If you breach this order, either by not complying with what you are meant to do, or by further offending, you will be brought back before me at this court and it is very likely, if not almost certain, that you will find yourself in custody.
36 So it is very important that you comply with this order and all that requires of you. All right? Thank you. I will give it to my associate who can make copies for the parties and I will adjourn until 10.30.
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