Director of Public Prosecutions v Eam
[2016] VCC 1923
•20 December 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-01900
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID EAM |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 December 2016 | |
DATE OF SENTENCE: | 20 December 2016 | |
CASE MAY BE CITED AS: | DPP v Eam | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1923 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Armed Robbery; Causing Serious Injury Intentionally
Legislation Cited: Sentencing Act 1991
Sentence: Total effective sentence: 7 years’ imprisonment. Non-parole period: 4 years’ imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Sim | Solicitor for Office of Public Prosecutions |
| For the Accused | Ms T. Hartnett | Galbally O’Bryan |
HIS HONOUR:
1 David Eam, on 13 December 2016 you pleaded guilty to Indictment G12223883 containing five charges, being four charges of armed robbery and one charge of causing serious injury intentionally. The maximum penalty for armed robbery is 25 years’ imprisonment, whilst the maximum penalty for causing serious injury intentionally is 20 years’ imprisonment. You have no prior convictions.
2 Tendered as Exhibit A on the plea was the prosecution opening on plea. Ren Caixan is the owner of the Jells Park milk bar. On 22 April 2016 she was in the back of her shop with her two children when at about 6pm her son heard a person at the front of the milk bar yelling out to put all the money in the bag. He looked at the monitor of the CCTV camera for the milk bar. He, together with his mother, went into the store and saw you standing on a counter. You were wearing a black jacket with a hoodie and glasses on your face. You were also wearing gloves. You were armed with what appeared to be a Taser and what appeared to be another electronic weapon.
3 On seeing Ms Ren and her son you pointed the Taser at them. You demanded cigarettes and money, and continued to point the Taser at your victims to ensure that they complied with your demands. You stole cigarettes worth about $1500 and cash amounting to about $500. Thereafter you stormed out of the milk bar. As you did so a customer walked in and noticed you leaving the shop and he gave a description of you to police.
4 Tendered as Exhibit B is a DVD containing the closed-circuit television footage from the security camera located within the milk bar, it records your offending conduct.
5 In respect to Charge 2, Junyan Wen is the owner of a milk bar located in Thompson Street, Glen Waverley. At about 6pm on 25 April 2016 you entered her shop and when Ms Wen came from the rear of the shop you confronted her, demanding “Give me all the money. Your money, your bag”. Ms Wen ran out through the back of the shop to a neighbouring shop to seek help. Before that occurred, you can be seen on Exhibit C, a DVD of closed-circuit television footage from the milk bar, standing on a counter and menacing your victim. A customer from a nearby shop saw you leave the milk bar and saw you run to a black Audi sedan and enter the front passenger seat of that car. The car bore no number plates. You stole approximately $300 to $400 in cash, and cigarettes estimated to be valued at $1,000.
6 In respect of Charge 3, Chunyan Zeng is the owner of a milk bar in Glen Waverley. On 26 May 2016 Ms Zeng was working behind the counter. You entered the shop shortly prior to 6pm and placed a bag on the counter and said “Put all the money into the bag.” You pointed two Tasers in Ms Zeng’s direction. You stole cigarettes valued at about $1,000 as well as about $600 cash.
7 Exhibit D on the plea is a DVD of CCTV footage from this milk bar. You pointed the Taser at your victim and menaced your victim to do as you demanded.
8 In respect to Charges 4 and 5, Ms Zhan Peng and her husband, Yong Jin He, owned a milk bar and residence in Burwood East. On 11 June 2016 at about 5.10pm, Mr He left the milk bar to collect the couple’s two daughters while Ms Peng remained in the shop. Shortly thereafter you entered the shop wearing a grey and white striped top, wearing snow goggles, and holding a Taser.
9 Ms Peng picked up a club lock to protect herself. There was a scuffle over the club lock and you seized the club lock from her and then struck Ms Peng a number of times to her body and head, knocking her to the floor. Ms Peng got to her knees. You then violently struck her about the head with the club lock several more times while Ms Peng attempted to ward off your blows with her hands and arms. During this attack you dropped your Taser. Ms Peng once again got to her feet and feebly attempted to swing the club lock at you. Shortly thereafter you grabbed Ms Peng in a headlock and punched her a number of times to the head. Ms Peng again stumbled and fled from you, covered in blood. You then collected the Taser and went behind the counter and removed a quantity of cash from the cash register along with cigarettes.
10 Sometime later Mr He and his two daughters returned to the milk bar to find Ms Peng covered in blood and seriously injured. Ms Peng was transported to the Royal Melbourne Hospital by ambulance, where she remained until she was discharged on 20 June 2016 for future surgery and outpatient follow-up.
11 Dr Richard Huggins described Ms Peng’s injuries on physical examination as significant swelling and bruising to the middle and upper areas of the face, a transverse laceration over the left cheek, a stellate laceration to the upper lip extending up towards the left side of her nose, a mobile maxilla or upper jaw. Depression of a facial projection over her right cheekbone, a significant malocclusion, that is a misaligned jaw bone. A missing tooth, an open skull fracture and a right ring finger distal phalangeal avulsion fracture. Consistent with CT and MRI examinations of her, Ms Peng was diagnosed as having a Le Fort 1 fracture involving the palate, a right orbital floor fracture and a right zygomaticomaxillary complex fracture with comminuted arch fractures.
12 On 24 June 2016 Ms Peng underwent open reduction and internal fixation of her facial fractures under general anaesthetic. She was discharged home the following day with post-operative review scheduled for 30 June 2016.
13 In addition, Ms Peng was required to undergo two surgical procedures on her finger and may require further surgery in that respect. She will require further surgery in respect to the lacerations she suffered to her face and there is likely to be a need for surgery to her right jaw.
14 On 12 August 2016 police executed a search warrant at your home in Wantirna South and you were arrested. You were subsequently interviewed under caution. Initially you made “no comment” answers to questions asked of you by the investigators but after a suspension of the interview, during which you were assessed by a forensic medical officer and found fit to be interviewed, the interview continued. You made admissions in respect of your conduct. You told police that the Taser and the other device were imitations and simply displayed coloured lights. The devices were not recovered by the police.
15 You were remanded in custody and as at the date of your plea had spent 123 days on remand.
16 Tendered as Exhibit F were the Victim Impact Statements of Ren Caixia (Charge 1), Chunyan Zeng (Charge 2), and Zhan Ting Peng (Charges 4 and 5).
17 Ms Ren wrote about being very scared during the course of the armed robbery, particularly as her children were present at the back of the shop at the time. As at the date of the Victim Impact Statement she remained afraid every time the doorbell to her shop rings. She has installed an alarm and security measures in order to give her some peace of mind, but these do not really make her feel safe. She has improved over the last six months but it is plain that your conduct affected her and continues to affect her profoundly.
18 Ms Zeng wrote about her fear during the course of the armed robbery and subsequently questioned why it was her who was the subject of your crime, particularly as she believed, until this incident, that Australia was meant to be a safe place. She wrote that she was unsettled and nervy for quite a few weeks. She has reduced the opening hours of her business, now closing at 6pm rather than 9pm. She wrote that she is too scared to keep her shop open past 6.30 because that is about the time of day when the armed robbery occurred.
19 Ms Peng and her husband could no longer continue with their business as a result of your conduct. Ms Peng feels timid, withdrawn, and fearful about being left alone. She wrote that she has lost her health and she is seriously suffering from physical, mental and psychological trauma, that she is unable to shake off her fear and that she is scared of strangers and suffers from insomnia and depression and is undergoing counselling. She is apprehensive that as her children witnessed her in a bloodied and injured state that they will be left with a psychological shadow over their future development. She wrote that her facial disfigurement has broken her confidence and courage to live in the future.
20 The DVD footage of each of the four armed robberies demonstrates vividly how menacingly you conducted yourself. You controlled the situation in each instance by the threat of force. You did this by pointing your Taser at your victims and directing them to do as you wanted. You stood on counters and yelled at your victims whilst you directed them to comply with your demands. In respect to your assault on Ms Peng, you bludgeoned her repeatedly with a club lock. Despite this, Ms Peng struggled to her feet on more than one occasion, endeavouring to see you off her premises. In each instance your offending is a serious example of the offences of armed robbery and causing serious injury intentionally.
21 You attacked soft targets, being milk bars. In each instance the milk bars were staffed by women. In some cases children were present in the shop or the residence at the rear of the shop. Your victims were entitled to feel safe in their shops and residences. The milk bars were some distance from your home. You removed the registration plates from your car. You changed your disguises. On at least one occasion you had a getaway driver. Your offending was premeditated.
22 What is concerning about this offending is that it was committed by a young man aged 19½ years who was without prior conviction, and a young man who comes from a home where he is loved and has been supported all his life.
23 Tendered as Exhibit 1 was a folder containing defence submissions, a report from Patrick Newton, psychologist, dated 6 December 2016, a number of certificates and results of urine analyses, and a character reference from your mother, father and sister.
24 You are presently 20 years of age and are one of two children born to your parents who emigrated from Cambodia in the 1990s. You grew up in Melbourne’s south-eastern suburbs and when interviewed by Mr Newton spoke of your childhood in positive terms. As a child in primary school you were ostracised because you were the only Asian in the school. However, as your parents moved addresses, you moved schools, and ultimately at Wantirna Secondary College there were other Asian students. However, you described them to Mr Newton as “a group of Asians who weren’t very good”.
25 It was whilst at secondary school that you began to abuse drugs. You commenced to smoke cannabis when you were aged 14 years. Your abuse of that drug increased steadily over the years and at its peak you were smoking more than three grams of cannabis a day. You commenced to use methylamphetamine in a social context when you were aged about 16 years and by 2014 your use was described by Mr Newton as “particularly intense”. You used cocaine on a regular basis during 2016, as well as experimenting with ecstasy from time to time. You were under the effects of methylamphetamine and other drugs at the time that you committed the instant offences.
26 You have resided in your parents’ home, save for a period when you were sent by them to Cambodia. Your parents are hardworking, law-abiding people who have done everything in their power to support you. As your drug use increased, your parents observed what they regarded as inappropriate behaviour on your part. You would spend days alone in your bedroom and then be absent from the home for days at a time. In order to assist you with your drug problem they arranged for you to travel to Cambodia and to stay and work there with family. It was proposed that you would remain in Cambodia for 12 months, and so detoxify and return to Australia as a young man drug-free and hopefully one who would not take up with his former associates and return to the life of a poly drug abuser.
27 Your stay in Cambodia lasted only six months, owing to your mother being diagnosed with cancer. On return home you soon returned to your old ways. Your mother is in remission from her cancer.
28 Mr Newton opined that your thought processes are free from disorder, you are not psychotic and your reality-testing remains intact. Further, he did not consider that your understanding of the wrongfulness of your actions has ever been impaired and considered that you are of normal intelligence. Accordingly, you are an appropriate vehicle for the application of the sentencing principle of general deterrence.
29 In a thoughtful plea, Ms Hartnett of counsel emphasised your youth, your early plea of guilty, as well as the remorse that you have expressed to your family concerning your offending. In part this remorse was evidenced by your refusal to receive visits from your family whilst on remand because of the shame that you felt. Since that time your family have visited you on a weekly basis and you have daily telephone calls to them. It goes without saying that your family have become deeply shamed as a result of your conduct.
30 You are but 20 years of age and are a young offender. You pleaded guilty at the earliest possible opportunity and you are entitled to the benefits that flow to you from that plea, being its utilitarian value as well as it being some evidence of your remorse, of which I am satisfied, although, as noted by Mr Newton, you are immature and a full understanding of your actions and their consequences will come to you over time.
31 Whilst on remand you have been drug-free and worked and studied and intend to continue studying during the time that you will be in prison. You hope to gain educational qualifications whilst in prison in order to assist you in your rehabilitation once you are released back into the community.
32 Armed robbery is a serious offence, carrying a maximum penalty of 25 years’ imprisonment. Causing injury is also a serious offence, carrying a maximum penalty of 20 years. Each of your offences are serious examples of those crimes. Your attack on Ms Peng was as cowardly as it was vicious. The nature of your crimes are such that, in my view, rehabilitation must play a lesser role in the exercise of my sentencing discretion than it otherwise would. The principles of general deterrence, denunciation, and just punishment must come to the fore in the exercise of my sentencing discretion.
33 By these sentences I must denounce your conduct. I must punish you and deter you and others from committing crimes of the same or similar character. I must look to your rehabilitation. Taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, and endeavouring to produce sentences which reflect and promote the purposes of sentencing in a manner appropriate to you, I sentence you as follows:
34 On Charge 1: 3 years’ imprisonment;
35 On Charge 2: 3 years’ imprisonment;
36 On Charge 3: 3 years’ imprisonment;
37 On Charge 4: 3 years’ imprisonment;
38 On Charge 5: 5 years’ imprisonment.
39 I order that six months of the sentences imposed on Charges 1, 2, 3 and 4 be served cumulatively upon each other and upon the sentence imposed on Charge 5. This results in a total effective sentence of 7 years’ imprisonment. I fix a period of 4 years’ imprisonment as being the period that you must serve before you will become eligible for parole.
40 I declare that you have spent 130 days by way of pre-sentence detention, not including today.
41 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to ten years’ imprisonment with a minimum term of seven years’ imprisonment.
42 You may be seated.
43 Are there any further matters?
44 MS HARTNETT: No, sir.
45 MR SIM: No, Your Honour.
46 HIS HONOUR: I would like thank counsel for their assistance in this matter. Would you remove the prisoner please.
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