Director of Public Prosecutions v Giang
[2011] VCC 377
•30 March 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-00057
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TIEN GIANG |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 March 2011 | |
DATE OF SENTENCE: | 30 March 2011 | |
CASE MAY BE CITED AS: | DPP v. Giang | |
MEDIUM NEUTRAL CITATION: | [2011] VCC 377 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty – Armed robbery – False imprisonment – Relevant criminal record – Long history of drug abuse – Prisoner suffers from depression and anxiety but no Verdins considerations
Cases:R v Verdins (2007) 16 VR 269
Sentence: Total Effective Sentence of 3 years and six months’ imprisonment with a non-parole period of two years’ imprisonment – s.6AAA Sentencing Act 1991 – Pre-sentence detention of 165 days declared as having been already served - Ancillary order made – Disposal order
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Ms E. Piper (Plea) Ms L Stevenson (Sentence) | Solicitor for Public Prosecutions |
| For the Accused | Ms C Hanson (Plea) Mr A Maloney (Sentence) | VLA |
HER HONOUR:
1 Tien Giang you have pleaded guilty to one charge of armed robbery and one charge of false imprisonment, both committed on 16 October 2010. The maximum penalty for armed robbery is 25 years' imprisonment and the maximum penalty for false imprisonment is 10 years.
2 The circumstances of your offending was opened as follows. At the time of these offences you were 26 years old. On Saturday 16 October 2010, at about 8.15 in the morning, you left your home in Harold Road, Springvale South, after arguing with your partner. Upon leaving the house you took with you a scarf, rubber gloves and a kitchen knife. You walked to the milk bar in Harold Road, Springvale South, and observed the victim, 53 year old Christine Saunders, arrive at the milk bar and park her car. You watched her enter the milk bar and then return to her car.
3 As Ms Saunders was about to drive away she heard the rear driver's side passenger door of her car slam shut. She turned around to see you sitting in the back seat of her car. You were wearing a hoodie and had a scarf wrapped around your face. You were not wearing the rubber gloves.
4 In relation to the charge of armed robbery, the following facts were opened by the Crown. You waved a knife at the victim and said "Give me your money". Ms Saunders did not hear you and asked you to repeat what you had said. You again demanded that she give you her money.
5 The victim said "Yes, you can have my money" and handed you a five dollar note from her purse. You then became annoyed and said repeatedly "Is that all you've got?" You then leaned over the victim's shoulder to check her purse and she told you that you could have her purse and handed this to you.
6 Rather than having the decency at that point to leave the car and leave the victim in peace, you then chose to embark upon the following conduct, which gives rise to the offence of false imprisonment. You told the victim to drive and she did so in a state of fear which you later told the police you were aware of. She began driving along Harold Road and you told her to turn right at Leopold Avenue and then left into Mackay Street. You then directed the victim to drive into a car park at Alex Wilkie Reserve near Springvale Road but subsequently told her to drive out of the car park.
7 As she drove out of the car park you told her to pull over. The victim pulled the car over and you then got out of the car and said "Sorry about that, lady, I didn't mean it". You then fled into Alex Wilkie Reserve.
8 The victim waited until you were out of sight before driving home and calling a friend who called the police, as the victim was too afraid and shaken to do this herself.
9 At about 8.30 am police patrolling the area observed you walking along Athol Road, Springvale. They approached you and questioned you in relation to the offences. You admitted that you had robbed the victim and that you were still in possession of the knife.
10 A photograph of that knife was produced upon the hearing of the plea and tendered as an exhibit. That is, the photograph was tendered as an exhibit.
11 You were arrested and taken to Springvale Police Station where you were interviewed. In your interview with the police you made full admissions to the offences including that you had been home arguing with your partner when you decided to rob someone; that you took the knife, scarf and rubber gloves from your home and walked to the milk bar, and that the victim was scared during your offending.
12 When asked about your actions by the police you said that they were stupid and "I shouldn't have done it". Your reason for committing the armed robbery was given as your drug habit, an addiction to heroin and the stress at home. Your reason for the false imprisonment was that you wanted to get away from the area and because you were robbing the victim.
13 When asked about your drug use you said that you were using a couple of points per day, which was costing you about $100 to $150. And when asked if there was anything else you wanted to say, you said "No, sorry, I admit to all of it".
14 The circumstances of your offending are most serious. An aggravating feature of your offending is that there was a level of premeditation in that you took a knife from home, having made the decision at that stage to commit, to quote you, "a robbery". You then walked to the milk bar where you surveyed the victim from the point when she left her car and waited for her until she returned before you entered the car to commit the armed robbery. In addition you chose a soft, vulnerable target, a 53 year old woman who was completely defenceless.
15 As I have previously said, rather than having some sense of decency, or an awakening of conscience at that point after you had committed the armed robbery, you then chose to further terrorise the victim by subjecting her to the false imprisonment that then ensued.
16 The victim was doing no more than going about her daily business and she was entitled to feel safe in attending a local milk bar and driving her car.
17 In terms of what you told Mr Cummins, a psychologist, about your intention in taking the knife from home, that whilst contemplation of suicide might have been one of your motives, somehow upon reflection, this does not detract from the motivation that you indicated to the police that you took the knife with a view to rob someone. If you had mixed motives in relation to taking the knife, including contemplation of suicide, one would have expected that you would have conveyed this to the police when you were interviewed.
18 I must say that I am rather dubious about the subsequent explanation to Mr Cummins, which bears the hallmarks of attempting to put yourself in a better light. This aspect of Mr Cummins' report concerns me a little in terms of your willingness to accept full responsibility for what you have done, and the seriousness of your offending. However, I do accept that Mr Cummins' remarks in this respect appear to be based on your hopes to be expeditiously released from gaol rather than any realistic expectation in that regard.
19 The fact that you apologised to the victim upon departing the car, made full and frank admissions to the police who stopped you in Athol Road and in the record of interview, as well as your early pleas of guilty, all indicate to me that you have genuine remorse in relation to your actions and take responsibility for them.
20 As you would expect, the impact of offending upon the victim has been profound. Unbeknown to you she had struggled to regain self-confidence over a period of 16 years following a massive stroke. In her victim impact statement she says that she found that her self-confidence was destroyed in a matter of minutes because of what you did to her on 16 October 2010. She now feels vulnerable, apprehensive and, to quote her, "a soft touch" when in public, and looks over her shoulder and is mistrustful and wary of strangers. She said that it is only through the support of friends and family that her life has not changed greatly, saying that her initial response to your actions was to live as a recluse.
21 Your criminal history is not overly lengthy, but it is serious enough. On 16 December 2006 at the Dandenong Magistrates' Court you were convicted and placed on a nine month community-based order in relation to charges of trafficking heroin and possessing and using heroin. You were ordered to undergo assessment and treatment for drug addiction amongst other things, and it would appear that you completed that community-based order successfully.
22 On 26 April 2007 at the Dandenong Magistrates' Court you were convicted in relation to one charge of theft and one charge of using heroin, and sentenced to an aggregate term of three months' imprisonment which was wholly suspended for a period of 12 months.
23 I was told that the theft concerned you stealing a laptop for the purposes of making money to fund your heroin addiction. Your counsel told me that you had commenced using cannabis when a teenager, then at the age of 15 years you dabbled in heroin, which you smoked. This grew into an addiction and by the time that you were 20 years old you were using heroin intravenously.
24 Your parents separated when you were in your late teens. By that, your counsel told me, she meant that you were 19 or 20 years old when this happened. She said that your father ran a panel beating business and was initially most supportive of you in relation to your drug problem. He arranged for you to have a Naltrexone implant and to receive drug rehabilitation treatment, and also arranged for you to undergo an apprenticeship as a panel beater. You did not complete your apprenticeship however and have no other formal training.
25 Your work over the years has comprised unskilled labour such as fruit picking. You have been battling your drug addiction for a number of years and have undergone three episodes of residential detoxification via the First Step program in East St Kilda. You have been a regular user of heroin, often on a daily basis, since you were a teenager.
26 Between approximately 2001 and 2003 you managed to get yourself off heroin. You then returned to using it as a result of peer group pressure however, I was told. Your drug addiction is linked to your prior offences and to the offending on this day. You committed these offences in circumstances, that is, the offences for which I sentence you, you committed those offences in circumstances where you were hanging out for heroin and it would appear that your drug use has often impacted badly on your relationship with Ms Dan.
27 You are indeed fortunate that she remains supportive of you notwithstanding that it would appear that your heroin habit in the past has meant that on occasions you have deprived your family of income because of it. Notwithstanding this, I was told that when you are with your family you are of great assistance to Ms Dan as a hands-on father.
28 I take this into account in your favour, although I cannot ignore the fact that your drug addiction has also negatively impacted upon your family as you would expect.
29 You are very close to your four year old daughter and speak with her every day. You also have a one year old son and it is your earnest wish to reunite with your family and move away from the Springvale area in order to stay away from the influences that would see you using drugs again.
30 In the past you have had periods where you have tried the methadone program, the most recent being 2010, only months before you committed these offences. You chose to cease the methadone treatment and again return to heroin however. In this regard, I note that you have been able to access heroin from friends and associates without necessarily paying for it on occasion.
31 In 2010, before the offending, you left Melbourne and went to South Australia, where your mother lived, in order to find work and get away from the drug crowd. Unfortunately, you had a relapse in the middle of that year and returned to live with your partner and children, but also you returned to the drug scene.
32 Whilst in gaol you initially took medication for depression which was due to the fact of your incarceration and being parted from your family. You are no longer receiving medication and are finding imprisonment most difficult.
33 I take into account that this is you first period of incarceration, as I do all the matters to which I have just referred. I was told by your counsel that you are now in a much clearer frame of mind, that you are working in textiles and clothing whilst in prison. You have put on a great deal of weight whilst in gaol due to the fact that you are drug free, and I note in Mr Cummins' report that you are not an identified drug user whilst in custody.
34 You are on a waiting list for drug and alcohol courses and I was also told that you very much look forward to the weekly visits from your family and have taken on board the way in which you must conduct yourself when you are released from gaol.
35 On your behalf, the report to which I have previously referred, of Jeffrey Cummins, psychologist, was tendered. The report refers to your childhood history and the loving environment in which you were raised, together with the dreadful impact that your parents' separation had upon you when you were about 20 years old.
36 This is echoed in the character reference of Ty Dan, dated 11 March 2011. It would appear to me however that by the time of the separation you were already addicted to heroin, which really is a factor in your offending on this occasion as well as in the past.
37 Your counsel quite properly conceded that there was nothing in the report of Mr Cummins which would lessen your moral culpability; nor warrant moderation of the principles of specific or general deterrence. Mr Cummins is of the view that your prognosis is very much linked to whether or not you are able to remain drug free, as you have done in the past, on a long term basis.
38 Mr Cummins was of the view that at the time of your offending you were suffering from opiate dependency and also from chronic adjustment disorder, with mixed disturbance of emotions and conduct, which was triggered by your chronic heroin usage.
39 Insofar as Mr Cummins is of the view that your offending on this occasion was a cry for help, I reject this notion. Your clear motivation was to obtain money in order to obtain heroin, which is evident from what you told the police. Whilst an attempt on your life might have been a cry for help there is no evidence that this is what you attempted to do on that occasion, save, perhaps, that you had a thought in this regard as you left the house. Although, as I have said, you did tell the police that you left the house with the knife intending to commit a "robbery".
40 The circumstances of the armed robbery and false imprisonment call for a sentence which reflects just punishment, taking into account the gravity of the offending and aggravating features previously mentioned.
41 Having regard to your criminal history, which although not lengthy is of concern, and also having regard to the fact that your history and offending on this occasion are linked to drug addiction, and that at the age of 27 years you are yet to overcome your drug addiction, I am afraid that your prospects of rehabilitation are only fair at best.
42 I say this whilst being mindful of your genuine remorse in this matter and level of insight, which I do take into account in your favour. However, you have had the benefit of a number of episodes of treatment only to return to heroin, and your present offending marks an escalation in terms of the seriousness of your offending. Accordingly, I must give not insubstantial weight to the principles of specific deterrence and protection of the community.
43 Moreover, offending of this nature carries with it the need to place significant weight on general deterrence. That is, to impose a penalty which will deter others in the community from acting in the way that you have. Your conduct also calls for denunciation.
44 In your favour I take into account your early plea of guilty which has saved the witnesses in this matter, especially the victim, the time, trauma and trouble of giving evidence. I also take into account the fact that you have saved the community the expense of running a contested committal hearing and trial. You also saved the police the trouble of further investigation by your level of cooperation on the day of your arrest.
45 Although there are no considerations pursuant to R v Verdins in your case, I do take into account the fact that this is your first time in gaol, that you have been separated from your family, and I also take into account your feelings of anxiety and depression which are linked to this and the prospect of further incarceration.
46 In a general sense, I take into account the condition from which you were suffering at the time of your offending, although it has to be said that such condition was entirely self-inflicted.
47 Further, I take into account all of the matters raised in Mr Cummins' report, including your family background and level of intelligence.
48 I also accept that whilst there was a level of premeditation in terms of your offending, this was rather rudimentary and there was also some spontaneity attached to what you did as well.
49 Upon being invited to do so, the learned prosecutor submitted that an appropriate range of imprisonment for you was between three and four years head sentence, and 12 to 18 months' non-parole period.
50 I invited your counsel to make submissions in relation to the range and she was loathe to do so, save to indicate that the top end of the range for the non-parole period was too high. She submitted that it would be appropriate in your case to impose a longer than usual parole period in order for you to gain the assistance that you need concerning drug treatment and general rehabilitation to lead a crime-free existence.
51 I accept that you are still a young man, however you are at an age and stage where you must take a different path if you are to stay out of gaol in the long term, and be an appropriate father figure to your children.
52 In relation to the range of sentence proffered by the prosecution, I must say that I regard the non-parole periods in particular as quite lenient.
53 After anxious consideration of all of the relevant sentencing considerations in your case, I am afraid that I cannot accept the submissions on range insofar as they concern the non-parole period. I do not believe that this end of the range adequately allows for appropriate weight to be given to the seriousness of your offending and the principles of specific and general deterrence. But I do have some regard to the range that has been proffered by the Crown.
54 However, I will accede to your counsel's submission to some extent, that a longer period of parole be allowed than would normally be the case.
55 Would you please stand up, Mr Giang.
56 In relation to the offence of armed robbery, you are convicted and sentenced to three years' imprisonment. In relation to the offence of false imprisonment, you are convicted and sentenced to two years' imprisonment.
57 I order that six months’ imprisonment from the sentence on Charge 2 be served cumulatively with the sentence on Charge 1 such that the total effective sentence is three years and six months’ imprisonment.
58 I order that you serve 22 months' imprisonment before becoming eligible for parole.
59 If not for your pleas of guilty I would have sentenced you to five years' imprisonment with a non-parole period of three years and three months imprisonment.
60 Further, I make the disposal orders which are sought by the prosecution and not opposed by you.
61 I declare that you have already served 165 days imprisonment, which will be reckoned as served as part of this sentence.
62 Are there any other matters, counsel? Thank you, you may remove the prisoner. We'll adjourn.
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