Director of Public Prosecutions v Duong

[2015] VCC 601

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01311

DIRECTOR OF PUBLIC PROSECUTIONS

v

MINH DUONG

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JUDGE:	HER HONOUR JUDGE CAMPTON
WHERE HELD:	Melbourne
DATE OF HEARING:	20 March 2015
DATE OF SENTENCE:	12 May 2015
CASE MAY BE CITED AS:	DPP v Duong
MEDIUM NEUTRAL CITATION:	[2015] VCC 601

REASONS FOR SENTENCE
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Subject: Theft, Possess Drug of Dependence, Cause Injury Intentionally
Catchwords: Ice addiction - Totality
Legislation Cited:
Cases Cited:
Sentence: 3 years non-parole period of 18 months

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D. Plummer	OPP
For the Accused	Ms P. Smith	Revill & Papa Lawyers

HER HONOUR: 

Charges

1Minh Duong, you have pleaded guilty to one charge of theft, one charge of possess drug of dependence and two charges of causing injury intentionally.  The maximum sentence for theft is ten years.  For possession of drug of dependence, where the court is satisfied on the balance of probabilities that the offence was not committed for any purpose related to trafficking, it is one year or 300 penalty units, and in any other case, five years' imprisonment or 400 penalty units.  For causing injury intentionally, the maximum sentence of imprisonment is ten years.

Circumstances of Offending

2The background circumstances of your offending was set out in full in the prosecution opening.  It will suffice to summarise them as follows.

Theft of Jeep

3The complainant in this matter is Nathan Styler, who is the husband of Camille Maringas.  Ms Maringas was the owner of a 2012 Jeep Grand Cherokee.  I will refer to it from here on as the Jeep.  On 12 May 2013, the Jeep was stolen and Mr Styler and Ms Maringas reported the theft to the Melton police station.  On 21 May 2013, the Jeep was detected speeding along the Western Freeway in Melton.  You were in the Jeep together with David Moore and your co-offend John Pam Ngo.  You were arrested and taken separately to the Melton police station.  These facts relate to the charge of theft of the Jeep.

Possession of Methamphetamines

4In relation to the charge of possession of drug of dependence, on 28 May 2013, police examined the Jeep.  A crack was found on the passenger side sun visor.  The interior roof lining was pulled back and police found two plastic bags containing methamphetamine that had been hidden there by you.  The amount methamphetamine was 14.9 grams.  The estimated value of this drug was $8,000.  Given the quantity of drug found, the value of the drugs and the circumstances in which they were found, I am satisfied on the balance of probabilities that you possessed them for the purposes of trafficking, rather than personal use.

Charge 3 Causing Injury Intentionally

5The circumstances surrounding Charge 3 of causing injury intentionally are connected to your efforts to locate the drugs that you had hidden in the roof lining of the Jeep.  Mr Pam Ngo was an acquaintance of Mr Styler.  Mr Ngo informed Mr Styler about the interception the Jeep by the police and requested Mr Styler to phone him when the police returned the Jeep.

6On 3 June 2013, Mr Styler was informed by the police that the Jeep could be picked up and he gave his wife a lift so she could collect it.  Mr Styler then informed Mr Ngo that the Jeep had been returned.  Mr Ngo requested Mr Styler to collect him and to go with him to find the Jeep.  Meanwhile, the Jeep had been driven home by Mr Styler's wife.

7Mr Styler collected Mr Ngo and after they had been unsuccessful in locating the Jeep, Mr Ngo told Mr Styler to drive to Bunnings on Ballarat Road, as Mr Styler was concerned about what was going on, they picked up his cousin on the way there.  When they were parked at Bunnings, a black Holden rear hatch motor vehicle with five male occupants parked across the road.  You then arrived on a motorbike and you asked Mr Styler, "Where is it?"  He replied, "Where's what?"  And you struck him with a metal object.

8Mr Styler put his hands up to block the blows and the object cut his hands and fingers.  He was bleeding and very scared.  You repeatedly struck him with the metal object, including to the head, face, body.  You then got on the motorbike and rode away.  These facts relate to Charge 3 of causing injury intentionally.

Charge 4 Causing Injury Intentionally

9With respect to Charge 4, the second count of causing injury intentionally, you rang Mr Ngo and told him to tell Mr Styler that you wanted to meet him at the Masters car park across the road from Bunnings to apologise for what had happened.  However, when Mr Styler got there, instead of apologising, you once again repeatedly hit him with the metal object and his injuries caused numerous blood stains on the outside of the car he had been driving.

Injuries

10Mr Styler was taken the Royal Melbourne Hospital where he was treated for the following injuries:

·deep lacerations to his left hand and left middle finger, left ring finger, involving the tendons,

·a deep scalp laceration of 1 cm down to his skull,

·a full thickness laceration to his upper lip,

·a laceration to the right upper back and minor abrasions.

Surgery was performed to repair the tendons of his left hand and staples were applied to the laceration on his scalp and upper back and wire to his lip.

11On 4 June 2013, you were arrested at your home address.  During your record of interview, you admitted to stashing the drugs in the car.  You said you were owed $8,000 because you had lost the drugs to that value in the car.  You had requested Mr Ngo to take you to the Jeep so you would get the drugs back.  With respect to Mr Styler, you said you thought that he was playing games with you.  He had driven you all around, so you went to Bunnings and punched him.

12On 17 March 2015, you pleaded guilty to the charges on the indictment.

Personal Circumstances

13Your personal circumstances are that you are now 30.  You left Vietnam when you were about two years old and spent five years in a refugee camp in Malaysia.  You came to Australia when you were aged six.  From six to 13, you lived in the housing commission flats in Collingwood, where you were exposed to considerable violence and criminality.  When you were 13, you moved to Deer Park.  When you were 14, your parents separated and you were living on the streets.  You eventually found accommodation.  It is not surprising, given this history, that your education was interrupted and that you only completed one term of your Year 10.

14You do have a Level 1 certificate in computer studies.  You have undertaken a first aid course and worked as a kitchen hand.  You have also been employed by your stepfather in his timber and flooring business, so you do have some practical skills.

15Your difficulties are largely associated with your addiction to ice.  Your use commenced when you were 22 years old and you lapsed into full addiction some years ago.  You stopped using when your fiancé was pregnant, but you then relapsed.

16Despite this background, you only have two prior convictions.  One for possessing property being the proceeds of crime and one for unlawful assembly.  You also have some subsequent matters.  On 4 December 2013, you received a Magistrates' Court sentence of 15 months with eight months suspended.  On 1 September 2014, as a result of appeal to this court, you were sentenced to 18 months' imprisonment with 281 days pre-sentence detention and with six months suspended for 12 months.  I note that the charges were false imprisonment, intentionally cause injury, recklessly cause injury and possess amphetamines.

17Since you have been in custody, however, your drug screens have been drug free.  You have undertaken a parenting course, a drug and alcohol course and a number of TAFE courses.

Mitigating Circumstances

18

The main thrust of your counsel's plea was that you had limited prior convictions.  By now, you have spent a substantial period of time in custody.  There were some 159 days pre-sentence detention in this matter alone.  On your release, it was submitted that you would have support from your fiancé and her father.  You and your fiancé have a child together, who was born on

6 July 2013, while you were in custody.  Her family continues to support you and you would be living with this family and there would be a focus on finding you work.

19It was submitted that you had been in custody for close to two years and that the availability of family support on your release meant that your prospects of rehabilitation were reasonably good.  Your counsel urged the court to consider a combination gaol sentence and community corrections order. 

20He relied on the evidence of your fiancé's father, Mr Barry, who is a Corrections Officer at Corella Place.  Mr Barry gave evidence that the plan on your release was to focus on performing community service.  You would be living in the small community of Great Western, where you would be busy building a house and undertaking community work.  Mr Barry gave evidence that you have done a couple of jobs together with him and he regarded you as meticulous in your work.  He said you are respectful towards family members and people in the community knew of your issues.

21However, when he was cross-examined, Mr Barry agreed that in late 2012, you had been bailed to reside with them in Great Western.  The bail conditions had included drug rehabilitation and a residence clause.  You breached the bail conditions and reoffended on two occasions.  It was largely for this reason that I consider that a community corrections order was not appropriate in your case.

22The prosecution's position as to sentence was that given the serious nature of your offending, a substantial time in custody was appropriate.

Sentencing Remarks

23In sentencing you, I have taken into account all the mitigating matters mentioned by your counsel, including your plea of guilty for which I have given you an appropriate discount.  The main emphasis of the plea was on your chances of rehabilitation and the principle of totality.  With respect to the prospects of rehabilitation, I accept that they are reasonable but only if you conquer your problem with drugs.  Hopefully this time when you are released from custody, you will take full advantage of the assistance that your long suffering fiancé and her family are prepared to give you.

24I am also taking totality into account in sentencing you and I will come back to this later.  Before I do this, I have to inform that your offending was very serious and that consequently both general and specific deterrence are important.  As the prosecutor pointed out at your plea hearing, your offending included a brutal, cowardly attack with a weapon on a powerless victim.  It was planned offending, which was preceded by a search for illegal drugs and an aggravating factor is that at the time of your offending, you were on bail.

25While there is no victim impact statement, I have no doubt that Mr Styler was scared during the attacks on him.  As a result of your actions, he suffered a number of injuries and had to have surgery to repair the tendons his left hand.  An aggravating feature is the fact that you lured him back to attack him on the second occasion.  You repeatedly caused injury by stabbing him with a weapon.

26Given that there was separate offending at different locations, a degree of cumulation between sentences is appropriate.  However, in sentencing you, I have also taken into account the principle of totality and the fact that you have already spent a considerable time in custody on other charges, approximately two years.

Sentence

27On the charge of theft of the Jeep, you are sentenced to eight months' imprisonment.  The charge of possess drug of dependence, you are sentenced to six months' imprisonment.  On Charge 3 of cause injury intentionally, you are sentenced to two years' imprisonment.  On Charge 4 of cause injury intentionally, you are sentenced to two years imprisonment.

28The base sentence is two years on Charge 3.  I cumulate three months of Counts 1 and 2 on Count 3.  I cumulate six months of the sentence on Count 4 on Count 3.  So the total head sentence is therefore three years.  I set a minimum non-parole period of 18 months.

6 AAA

29But for you plea of guilty, you would have been sentenced to four years and six months to serve two years and nine months.

Pre-Sentence Detention

30It is to be marked on the record that you have served 159 days' pre-sentence detention.  This sentence, I emphasise, does reflect the principle of totality.

31Is there anything else in relation to this sentence?

32MR PLUMMER:  Your Honour, there was an application for a disposal order.

33HER HONOUR:  Yes, it was not objected to and I make that order.

34MR PLUMMER:  Yes, Your Honour.  I cannot recall if I handed draft orders up last time.

35HER HONOUR:  You did, and I have signed them.

36MR PLUMMER:  Thank you, Your Honour.

37HER HONOUR:  Hopefully my associate can locate them and hand them to you.  I do not believe there was anything else in relation to this matter.  I was correct that he had spent almost two years in custody already on other matters, is that correct?

38MR PLUMMER:  Yes, Your Honour.

39HER HONOUR:  All right, thank you.

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