Director of Public Prosecutions v Ho
[2012] VCC 1088
•20 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS | |
| v | |
| DAVID HO | Case No. CR-11-00720 |
| KIET MACH | Case No. CR-11-00721 |
| GARY NGUYEN | Case No. CR-11-00722 |
| STEVEN PHAM | Case No. CR-11-00724 |
| THOMAS LE | Case No. CR-11-00725 |
| ROGER TRAN | Case No. CR-11-00726 |
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JUDGE: | HIS HONOUR JUDGE HOWARD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 and 15 May 2012 | |
DATE OF SENTENCE: | 20 July 2012 | |
CASE MAY BE CITED AS: | DPP v Ho and Ors | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1088 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – sentence – gang attack – pleas of guilty to various offences of affray and intentionally causing injury – youthful offenders – signs of rehabilitation – importance of general deterrence – contest settled on restricted factual basis for sentence – prosecution approach differs from earlier cases of co-offenders – CCO for all, some to serve short terms of imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr P Triandos | Office of Public Prosecutions |
| For the Offender Ho | Mr M Thomas (plea) Mr J Mortley (sentence) | Revill Papa |
| For the Offender Mach | Mr P Casey (plea) Mr C McLennan (sentence) | Chris McLennan & Co. |
| Fro the Offender Nguyen | Ms N Warda | Serratore Legal |
| For the Offender Pham | Mr A Halphen (plea) Mr B Grimshaw (sentence) | Matthew White & Associates |
| For the Offender Le | Mr M Goldberg | Robert Stary Lawyers |
| For the Offender Tran | Mr A McLennan (plea) Mr Lowy (sentence) | Victoria Legal Aid |
HIS HONOUR:
1 David Ho, Kiet Mach, Gary Nguyen, Steven Pham, Thomas Le and Roger Tran, you are to be sentenced for offences arising from a violent gang fight in the CBD in April 2010. There were other offenders, some of whom have been sentenced already. You have all pleaded guilty to one count of affray, for which the maximum penalty is five years’ imprisonment, and you, Le, Mach and Nguyen, have pleaded guilty to intentionally causing injury, the maximum being 10 years’ imprisonment.
Circumstances of offending
2 You were all about to stand trial but negotiated a settlement with the prosecution. An agreed opening as to the circumstances of your offending was settled and this is the basis on which the pleas have been entered by you and accepted by the prosecution. The opening was read out in court.
3 At the relevant time, you were all members of “Brothers for Life”, a gang from the western suburbs of Melbourne. The victims were members of the “Springy Boys”, a gang from the eastern suburbs. In February or March 2010, members of the two gangs fought at a nightclub in Prahran (the earlier fight). I do not conclude that any of you were involved in that incident.
4 In the early hours of 3 April 2010, members of the Springy Boys were at a bar at Southbank. So too, were members of your gang, including you, Pham, Tran and Le. You, Pham, sent a text to Nguyen who was with other gang members at a party in Sunshine. You told him that you would call if you saw members of the other gang. You did in fact see a person whom you believed had assaulted one of your associates in the earlier fight so you sent another text to Nguyen telling him to bring associates to Southbank so that you could fight with the other gang as pay-back.
5 In due course a large group came from the party including you, Mach, Ho and Nguyen. Eventually, there were gathered together about twenty members from your gang, some of whom had armed themselves with metal poles, bats and knuckle dusters. Police later found the knuckle dusters and thirteen metal poles. About 2:50 am your group ambushed the Springy Boys as they were walking along Riverside Quay. There were members of the public nearby. The other gang tried to run away but they were subjected to a fearsome attack. One of them, Daniel Gomez was struck to the head with a pole. You, Nguyen, grabbed Gomez and dragged him to the ground, causing him pain to his body (Nguyen – charge 2). Other members of your group used the poles to hit Gomez whilst he was on the ground. Two of them stomped on his face. You, Le, kicked him while he was on the ground causing pain to his body (Le - charge 2).
6 Two members of the other gang tried to protect Gomez but they were struck to the body by members of your gang using poles. Anthony Tran, a friend of Gomez, ran back to help him. You, Nguyen, grabbed Tran, dragged him to the ground and stomped on him approximately six times causing pain to his body (Nguyen – charge 3). Other members of your group hit Tran with poles and kicked him while he was on the ground. Whilst he was trying to get away, one of your co-offenders, David Dang, whom I have already sentenced, struck him with a metal pole. You, Mach, were one of those who kicked Tran while he was on the ground causing him pain (Mach – charge 2). Eventually Tran managed to free himself, run back to his friends and call an ambulance.
7 Meanwhile, one of the other gang members remonstrated with your gang, and someone from your group said the beating was revenge for the earlier fight.
8 All of you have pleaded guilty to an affray on the basis that you were all present intending to and supporting the fight, knowing that some of your associates were armed, but the prosecution did not attribute any particular conduct to you, other than for the specific injury charges (All offenders - charge 1).
Victim impact
9 Each of the victims were taken to hospital. The injuries sustained by Gomez included a traumatic extradural haematoma and subdural haemorrhage. He suffered a small subarachnoid haemorrhage, fractured skull, lacerations to his scalp and ear, fractured finger and multiple lacerations to his hands. An emergency craniotomy was performed. He required a tracheotomy. He remained in hospital for almost four weeks before being discharged for rehabilitation, which took a further two weeks.
10 Apparently, Gomez made a significant recovery and it was made clear in the previous cases I have dealt with that there have been only minor ongoing physical effects for him. However, his victim impact statement discloses he suffered worry being in the city and lacks trust in others. He failed to finish Year 12 as a result of the attack and had other complications in his life. His single mother speaks eloquently in her statement of the ongoing stress of having to cope with the thought that her only child might die, and of the major life change in the family brought about. There can be no doubt that Gomez was subjected to a shocking enduring physical and psychological trauma.
11 Anthony Tran suffered lacerations to his head, to his right eye border and eyebrow and to his left arm. He had abrasions to the side of his abdomen. His lacerations were sutured and he was discharged from hospital on the night. In his victim impact statement, he spoke of the physical and psychological scarring which he experienced as a result of the incident and the fact that his parents were deeply affected by what had happened to him.
12 The other victims I have mentioned received various injuries such as gashes to the head and significant bruising.
13 Each of you should feel a great deal of shame and disgrace for what you did individually, or what your gang did collectively, to each of these victims.
Co-offenders
14 There were four other co-offenders who have already been sentenced. I must distinguish the sentences of 2 years detention in a Youth Justice Centre imposed by me against each of David Dang[1] and David Tran[2] in that those offenders pleaded guilty to intentionally causing serious injury to Gomez and intentionally causing injury to Tran. These two men hit Gomez to the body with a metal pole and Dang struck Tran with the pole when he was trying to escape and Tran chased him with his pole. Significantly, in both cases the prosecution attributed, and the offenders accepted, responsibility for causing all of the injuries suffered by those victims which I have outlined. There is no parity issue with these two sentences.
[1]Sentenced on 18 April 2011.
[2]Sentenced on 18 November 2011.
15 It is conceded that the co-offender, Kenny Do, who received a fine of $2,500 for affray, was dealt with in error at the Magistrates’ Court and should have been dealt with in this Court. The fourth co-offender, Peter Tran, was only 17 and dealt with in the Children’s Court, for intentionally causing serious injury to Gomez and intentionally causing injury to Tran. He was released on a Youth Supervision Order without conviction, but obviously, the sentencing regime in that Court cannot be compared with that in this Court.
David Ho
16 There are a number of common mitigating circumstances. Before turning to them, I shall deal with your individual backgrounds and personal and mitigating circumstances. First, to you Mr Ho. You are now twenty three years and eight months and were approximately twenty one and a half at the time of offending. I have had the advantage of a psychological report of Warren Simmons dated 9 May 2012.
17 Your parents and two older siblings came to Australia from Vietnam in 1979. You were born here and describe your early childhood in positive terms. Your parents worked very hard to make a success of their lives in their new country and as a teenager you assisted them in their business of sewing and packing clothing from home or did other part time work in Year 11.
18 You completed Year 12 as an above average student with an interest in graphic communications. But you wanted a break from studies so you worked at various factories and call centres from 17 to 20. Eventually, you injured your back and could not work. You decided to better yourself academically. In mid 2011 you commenced an Advanced Diploma in interactive digital media at Victoria University. You have now completed your first year in that course. You received two very favourable references from your teachers who say you are an excellent student and an example to others whom you are always willing to assist. You have a bright future in the industry and intend to complete further studies in digital media.
19 You do not have any alcohol or drug issues. You are not on any medication. There are no mental health concerns. You are close to your parents and one of your siblings. Your father now works in a restaurant in Adelaide and you live with your mother in what I gather is a stable environment. You are presently single but have had two significant relationships.
20 Regrettably, you have been found guilty of possessing a dangerous article and controlled and prohibited weapons in December 2009, for which you were fined without conviction by the Magistrates’ Court. It is most troubling that within four months of that court case you were involved in a such a serious gang attack. However, to your credit, you have not been charged with any other offences since this offending.
21 The psychologist’s opinion was that you present overall as a shy and retiring young man and that there are no present suggestions of anti-social personality traits or a tendency in that direction. He says that you mistook the true nature of aggressive gang membership. The expert recommended general counselling focussing on areas such as assertiveness training and confidence building. He was impressed by your desire to establish a career in media and the fact that you appear quite focussed on not becoming involved in further criminal activity.
22 You are to be dealt with for the affray only. You came to the city knowing there was to be a fight and that some of your associates had weapons. Your counsel emphasised there was no evidence you were armed with any weapons or that you directly assaulted anyone; and that the CCTV footage shows that you were not present at the time the assault upon Gomez commenced. I accept that you played a lesser role in that sense. But you were older than a number of the other offenders and your offending occurred a very short time after you had been before a court for possessing weapons and had received lenient treatment.
23 You were arrested on 9 April 2010. You made a no comment interview. You contested your committal in May 2011, although I should note you were then charged with intentionally causing serious injury. You entered a late plea in April this year.
24 In addition to the common features, the mitigating circumstances are that you come from a good hardworking family with whom you are close, you achieved well at school and worked fully and productively thereafter. Since the offending you have pursued further studies and have a bright future ahead of you. You have demonstrated maturity and rehabilitation in the meantime, including staying out of trouble.
25 Your counsel submitted the appropriate disposition was a Community Corrections Order (CCO). This was supported by the prosecution. If gaol were to be imposed, the prosecution submitted that any sentence should be wholly suspended.
Kiet Mach
26 Turning to your position Mr Mach, you are twenty and a half and were eighteen years and three months at the time of offending. You were born in Australia and are the youngest of four children. You live with an older brother and your mother. Your mother and girlfriend supported you in Court. Your father came to Australia from Vietnam in 1986. The following year he brought the rest of your family here and you were born five years later. Unfortunately, in 1997 when you were five, your parents split up. Your father was a gambler and into drugs and your mother was left to bring up the four children. She must have struggled very hard to do so. It is not clear what sort of contact you had with your father thereafter, but I was told that you last saw him about six months ago, which was against your mother’s wishes.
27 You seemed to have a reasonably good schooling experience until you were about sixteen, in Year Ten. As described by your counsel, you were not listening, immature and engaging in poor behaviour. Gang activity started based on friendships you had established at school. You completed your VCE but had a low score.
28 In July 2009 you were found guilty in the Children’s Court of recklessly causing injury. You were on a train with a friend who got into a fight and you assisted him. Without conviction you were released on a good behaviour bond for twelve months which was to expire in July 2010. Accordingly, your commission of these offences constitute a breach of that bond imposed nine months earlier, which is an aggravating feature.
29 In early 2010 you commenced a course in electro-technology at the Sunshine TAFE. You dropped out from this course in September that year after you had been charged in relation to this matter.
30 You have been in a long term relationship with your girlfriend for about three years. She supported you in Court. Your counsel emphasised that since your arrest on these matters you have slowly matured. Your mother and girlfriend say you are no longer so stubborn and angry; you discuss your problems and lead a far more stable life. You have no alcohol or drug problems. You have not been charged with any offences since this incident and have had no further trouble in your life.
31 You have just successfully done the first semester of a two year course in electrical engineering at RMIT. You live at home and receive a Youth Allowance of $265 net per fortnight.
32 As to the offending, you not only agreed to travel to the CBD to back up other gang members in a planned fight, knowing that others in your group were armed with weapons, but you are responsible for active involvement in causing injury to Mr Tran.
33 You were arrested on 15 June 2010. You told police you were involved in the incident as payback for the earlier fight. You said that you didn’t use a weapon but were aware that others in your group were carrying poles and you said that you ran at the victims with the intent of hitting and hurting them. You refused to provide the names of co-offenders. You also conducted a contested committal in May 2011 but you were also then charged with intentionally causing serious injury. In a July 2011 defence response you admitted to an unarmed assault on a person with a knife and offered to plead guilty to the present charges. In those circumstances, I will not treat your pleas in March this year as being late.
34 In addition to the common features, the mitigating circumstances are that you are the product of a broken home but you come from a family presided over by a good hardworking mother with whom you are close, you achieved reasonably well at school but that fell away when you were in Year 10 when gang activity started. You then pursued studies which ceased with the offending. Since then you have matured, developed insight for your wrongdoing and stayed out of trouble.
35 Your counsel submitted that you should be released on a CCO which submission the prosecution conceded was within range.
Gary Nguyen
36 Next, to you Mr Nguyen. You are now twenty two and were almost twenty at the time of offending. I have the assistance of a psychological report of Warren Simmons dated 11 February 2011 and, to her credit, a comprehensive and helpful written outline of submissions prepared by your counsel.[3]
[3]Unfortunately, the submission wrongly states that the offender was pleading guilty to two charges of intentionally causing serious injury to Gomez and Tran.
37 You are Vietnamese and have an older brother. When you were about two your parents separated and you and your brother remained living with your father while your mother moved to Sydney. Your mother re-partnered and you have two further half-brothers. In spite of that family dislocation, you report a peaceful, happy and positive childhood including being cared for by your paternal grandparents. Indeed you were supported in Court by your grandfather and other family members.
38 Tragically, when you were about eleven, your mother died from bowel cancer when she was only in her thirties. Not surprisingly, this had a profound effect upon you, particularly as you had maintained a close and loving relationship with her after she had left the home. Your father then undertook studies and became a member of the Australian Federal Police. He moved to Canberra and you remained living with your paternal grandparents. Your father re-partnered and you now have a four year old half-sister.
39 At primary school you were an excellent high-achieving student. However, following your mother’s death and the onset of adolescence, you began performing poorly at school and acting out. You commenced smoking cannabis, truanting and gang associations. In spite of these challenges you did manage to complete Year Twelve. The following year you commenced a three year Advanced Diploma of Engineering in robotics and mechatronics at Swinburne TAFE. However, you were seriously abusing illicit substances, developed a significant cannabis addiction and had difficulty concentrating on your studies. Part way through 2009 you ceased attending classes. This led to dabbling in other illicit substances and to serious binge drinking. In spite of all these difficulties you had established and maintained a fruitful and positive four year relationship with a young lady.
40 Following your arrest on the present matters, your life was in crisis. You foolishly became a crop sitter for the cultivation of a commercial quantity of cannabis for which you were arrested on 30 May 2010. Your co-offender was Thomas Le. You claim that you were motivated to commit this crime to raise money to pay legal debts concerning the present matter. You were arrested and held in custody on the drug matter for 132 days. This was the first time you had been in custody and I accept it was a salutary experience for you. Whilst on remand you successfully undertook a number of drug, harm reduction and employment related courses and various certificates of satisfactory completion of these courses were provided to me. Apparently you have not used any drugs since your release from custody, which was in about October 2010, and alcohol abuse is no longer an issue for you. Although I have not been provided with any drug screens, you have not been charged with committing any offences since your arrest in May 2010.
41 The psychological report, which was prepared for your appearance on the drug matter in March 2011 indicates that you are a person of average intelligence. Significantly, the psychologist said that the loss of your mother, occurring as it did in your later primary school years, may have contributed to your sense of disengagement and a lack of direction during your later years. The expert also said that there did not appear to be any significant anti-social personality traits and, combined with your experience in custody, it was likely that there would be a decrease in any further offending.
42 On 15 March 2011 you were sentenced in this Court on the drug matter to two years’ imprisonment, to serve 132 days, ie time served, and the balance to be suspended until 14 March 2013. Hence, you are presently on that suspended sentence. I have had the opportunity to read the Judge’s sentencing remarks. One hundred and thirty two plants with a wet weight of approximately seventy four kilograms was seized. There was a sophisticated hydroponic set-up although neither you nor Le were involved in that. You apparently had been sitting the crop for about a month and were to receive a few thousand dollars each. Significantly, the offence, which carried a maximum penalty of twenty five years’ imprisonment, was committed whilst you were on bail in relation to this matter. Her Honour noted that your involvement in the drug offence was “a naïve attempt to extricate yourself from what you saw as a circumstance you could not discuss with your family”, that is, the debt you had concerning the current offending. You were apparently unaware you could apply for legal aid, not having had any other contact with the criminal justice system. Her Honour was prepared to accept that this was perhaps your state of mind.
43 Her Honour said that she thought your prospects for rehabilitation were good, having regard to your plea, age, lack of prior history, willingness to engage in rehabilitation and the fact that you had not been in any trouble since that offending. Whilst general deterrence was of significance in that case, her Honour accepted that rehabilitation had to be given significant weight.
44 Whilst you were in custody awaiting the resolution of the drug matter, your partner terminated your relationship after four years and you remain single today. Whilst you were awaiting sentence for that matter and to the present, you have not worked and are on a Newstart Allowance. However, you did, whilst on bail, successfully complete a certificate in hospitality in December last year and you have worked casually as a waiter in a restaurant.
45 Early this year you decided to resume your previous studies at Swinburne TAFE. Documents I received indicated you had re-enrolled but your counsel explained you were unable to meet the financial obligations of the course and you had enrolled too late to obtain a student loan. It became clear you had failed to make the loan application by 9 March 2012 for no good reason. In these circumstances, I queried the degree of commitment you had to undertaking the course again and, having conferred with you, your counsel indicated that she would not take this submission any further. Since early this year you have been unemployed and living at home with your grandparents.
46 As to your offending, you are to be dealt with not only for the affray but the additional two charges of intentionally causing injury, hence you had an active involvement in causing injury to Gomez and Tran, although you had no weapons. Of course, you played an active role in the set-up of the conflict. You messaged with Pham and organised the group to come into the CBD for the planned fight, knowing that others in your group were armed with weapons. Having arrived, you further liaised with Pham so that the two groups on your side could meet up and prepare for the attack.
47 You were arrested on 26 April 2010 and made a no comment interview. You conducted a contested committal in May last year having been charged with intentionally causing serious injury. In defence responses filed in July last year and March this year you denied any complicity concerning the offences against Gomez and Tran, but you did offer to plead guilty to affray. You entered late pleas in March this year.
48 In addition to the common features, the mitigating circumstances are that you are the product of a dislocated family environment. Nevertheless you had a positive and happy childhood and have maintained close family relationships. Significantly you lost your mother at an early age and that had a devastating impact upon you. You developed problematic drug and alcohol issues. However, you do not have any anti-social personality disorders and I accept that there has been a significant degree of maturation whilst you were in prison and since your release in 2010.
49 I accept that the lengthy period of time you spent in custody is likely to have deterred you from further offending. You have no prior convictions and have had no subsequent offending since May 2010. I also agree with your counsel’s submission that the totality and Renzella principles apply in your favour as, in truth, both the drug matter and this offending should have been heard at the same time and a combined sentence would have put you in a more favourable position. Additionally, for the next nine months you will be under a suspended sentence, knowing that if you break the law it is highly likely that you would be returned to prison.
50 Your counsel submitted that I should release you on a CCO, alternatively that any term of imprisonment should be wholly suspended, or that I should adopt both submissions. The prosecution argued that you should be sentenced to immediate custody of three to six months, the balance to be suspended. Of course, you are now too old to be sentenced to detention in a Youth Justice Centre.
Steven Pham
51 I will now turn to your background and personal circumstances and other matters, Mr Pham. You are almost twenty one and were eighteen years and eight months at the time of offending. You have two older sisters. Your parents came to Australia from Vietnam in the late 1980s. You were born here. Apparently, you had an uneventful childhood but unfortunately in your mid-teens your parents’ marriage split up and you remained with your mother and had the absence of an adequate male role model at a sensitive time in your development.
52 Nevertheless, you achieved well at school. I have received a glowing report from your former deputy principal which indicates that up to Year Eleven you demonstrated a willingness to work to your fullest potential in all aspects of school life and understood your overall responsibilities to your academic studies and personal growth. You are described as a highly loyal and honest young man. Unfortunately you dropped out of Year Twelve due to attendance issues and did not complete that level. Notwithstanding, your teacher said that you maintained contact with him. He stated that when you seriously focus on harnessing a greater self-belief and a clear purpose or passion, he has every confidence that you will be very successful in life.
53 I have also received a reference from your sister which indicates that following your offending, you obtained employment with Toll Logistics for six months and also at a call centre for the same period. Additionally, this year you have completed a six week course at Victoria University studying to become a real estate representative. Apparently, you are preparing to do a six month pre-apprenticeship electrician’s course at Victoria University. Your sister states that you are making progression in your career and are attempting to rectify any wrongdoings from the past. She speaks of your kindness, dependability and commitment to the family, especially towards your mother.
54 You have no prior convictions and have not been in any trouble since this offending. You are to be only dealt with for the affray, but of course you were at the nightclub, you identified the opposing gang members and played a role in the decision to fight with them. You sent the texts to Nguyen so that he could bring backup to the CBD, and, once you met up with the others, you knew that some of your associates were armed and all were intending to fight.
55 You were arrested on 9 April 2010 and, to your credit, made admissions to police and a later statement identifying participants. You also identified yourself in the CCTV footage. You were not charged until September 2010. Later, following breach of bail, you spent three days in custody which, I have no doubt, brought home to you how unpleasant it would be to spend time in prison or detention. Your counsel said this scared the life out of you.
56 You conducted a contested committal in May last year when you were charged with intentionally causing serious injury. You filed a defence response in July last year denying offences against Gomez and Tran and offering to plead guilty to affray, which you did in March this year. In those circumstances, I would not say you entered a late plea. In your case there are three days’ pre-sentence detention.
57 In addition to the common features, the mitigating circumstances in your favour are that you come from a good family, you suffered the difficulties of your parents’ marriage separation, you achieved well at school, you have no prior or subsequent convictions, you have worked productively and have shown significant maturation since the offending including undertaking a course to better your life. You are a family orientated person and have the support of your family in this difficult situation. Your counsel submitted the appropriate disposition was a CCO, which was supported by the prosecution.
Thomas Le
58 Next, I turn to you Mr Le. You have just turned 25 and were almost 23 at the time of offending. You are the eldest of all the offenders. I have had the assistance of a psychological report from Dr B Davis dated 10 February 2011. This was prepared for the drug matter involving your co‑offender Nguyen, which I have just described.
59 Your parents came to Australia from Vietnam. You have an older brother and younger sister. You were born in Brisbane but settled permanently in Melbourne when you were around eight. You report a very positive relationship with your parents as a child. Your older brother has had a lot of drug problems and is in custody at the moment. You have had a very close supportive relationship with your sister. With your parents you used to visit your brother in prison when you were about 15 or 16, and there was a good deal of emotional distress in doing so.
60 You had language difficulties at school, but nevertheless you completed year 12. You commenced a TAFE course in computer science but found that difficult. Then followed a 16‑week electrical pre‑apprenticeship program. You could not find work in that field so went to work in a factory as a machine operator for two years. After that you worked in a grocer shop. You had no work at the time of offending.
61 You have had serious alcohol and cannabis abuse issues since you were a teenager. These problems became worse after you left school when you began using amphetamines and ecstasy. Apparently you would vomit most nights that you went out, but you did not seek any treatment for these problems because you did not want your parents to find out about them. You also developed a serious gambling problem. You ran up gambling debts totalling approximately $20–25,000 to associates, and resorted to the drug offending as a means to meet a bank loan you had taken out to repay this money.
62 According to the psychologist you met the diagnostic criteria for a co‑morbid diagnosis of alcohol dependence, cannabis dependence and pathological gambling. However, you do not have any mental-health concerns.
63 Following your arrest in May 2010 for the drug offence you were remanded in custody and completed a number of courses in drug and alcohol minimisation and occupational activities. I received a number of certificates confirming this.
64 You remained in custody from the time of your arrest on the drug matter, when you were on bail for the present matters, until you were sentenced in March last year. During this period on remand you remained abstinent from drugs and returned clean urine screens. You assisted your rehabilitation by participating in the programs I have mentioned.
65 In her sentencing remarks, the judge relied upon the opinion of the psychologist that the combined effect of your youth, willingness to engage in treatment, supportive family, and capacity to reflect and learn, were all protective factors. Moreover, that you would have benefited from further education regarding substance dependence and pathological gambling and assistance with structuring your time and finding an apprenticeship. Her Honour was satisfied you had good prospects of rehabilitation, having regard to your plea, age, lack of prior history, willingness to engage in rehabilitation, and the fact that you have been in no further trouble since the drug offending. The judge was satisfied that your early plea reflected genuine remorse and contrition, and gave great emphasis to the fact that you were a youthful first offender.
66 Weighing up all those matters and the importance of general deterrence and the serious offending, you were sentenced to two years’ imprisonment with a direction that 14 months of that sentence be suspended for two years. Given the pre-sentence detention you were released at the end of March 2011 and are presently on that suspended sentence until March 2013.
67 Since your release from prison, your rehabilitation has continued. You have not been charged with any further offences. You were supported in court by your sister, who provided a glowing reference as well. She spoke of your dependability as a family member and the absence of any violent tendencies. She has often socialised with you and your group of friends. Since your release from prison she says you have been trying to build a better future for yourself. You completed a 26‑week pre-apprenticeship course and obtained a certificate in building and construction from Victoria University. You used your carpentry skills to assist around the house. You have returned to live with the family, and apparently have not been involved in taking any illicit drugs. You are waiting for any work opportunity which comes your way.
68 I also received a reference from one of your long-term friends. She spoke of your commitment and respect for family and of the significant deterrent effect you had being in prison for the first time. She spoke of your maturation since your release, noting that you had kept a low profile and stayed out of trouble. Like your sister, she notes that you are extremely remorseful for your conduct.
69 As to your offending, you were at the nightclub when the opposing gang members were identified. You joined in the decision to fight with them in retaliation for the earlier incident. Before doing so you knew that others in your group were armed. You were not only involved in the affray but actively involved in causing injury to Gomez by kicking him while he was on the ground.
70 You were arrested on 9 April 2010 and made a no comment interview. You conducted a contested committal in May last year and as with others, were then charged with intentionally causing serious injury. You entered a late plea in March this year.
71 In addition to the common features, the mitigating circumstances in your favour are that you come from a good family background, you have no prior convictions and no subsequent convictions since the drug matter in May 2010. You achieved well at school and in your work. You were beset by a serious alcohol, drug, and gambling addiction, which no doubt played a significant role in your offending, including for the drug matter. You have strong family connections and the support of your family members. You have demonstrated significant rehabilitative tendencies whilst in prison and since your release. You are moving in the right direction.
72 I am also satisfied that, as with Nguyen, had both this matter and the drug matter been dealt with at the same time the Renzella and totality principles would have led to a more favourable position for you. Of course, you are on a suspended sentence until March next year.
73 Your counsel submitted that you should be released on CCO or that any gaol imposed should be wholly suspended. The prosecution submitted that there should be immediate custody in the range of 3–6 months, the balance to be suspended.
Roger Tran
74 Finally, I turn to you Mr Tran. You are now almost 21, and were 18 years and 7 months at the time of offending. I have had the assistance of - a psychological report from Ian Joblin dated 24 May 2010, which relates to a prior gang attack for which you are presently serving a term of detention in a youth justice centre; a DHS progress report from one of your managers at Malmsbury YJC dated 11 May 2012; and a comprehensive and helpful written submission provided by your counsel. I have now received a brief report as to your continuing suitability for YJC.
75 You were born in Melbourne and raised in the western suburbs. You have an older sister. Your mother is Chinese and your father Vietnamese. He came to Australia in 1984 as a refugee from the war. He spent two years in a refugee camp in Indonesia before his arrival in Australia. Regrettably, your parents’ marriage broke down when you were two, and they separated. Your mother left the home and ultimately repartnered. You had little contact with her thereafter. Your father has never repartnered. Your father spoke very little English. You were initially raised by your paternal grandparents but did not feel close to them or your father. Your paternal grandfather suffered from dementia and was cared for by your father. Your childhood was characterised by a lack of emotional intimacy and, as I have said, distance from your mother. The alienation you felt from your parents made your life difficult, and explained in part your willingness to embrace gang associations.
76 You had no significant difficulties at school and completed Year 12. You then enrolled at Victoria University and completed the first year of a business degree in 2010. You worked part-time at a takeaway shop and as a labourer with a construction company.
77 You have toyed with alcohol and cannabis but not in a way which created a significant problem for you. The essential problem for you was the sense of alienation you felt at home and your strong adherence to gang culture and values. This had horrific consequences in June 2009 when you became involved in a gang fight in the CBD. A young man who had nothing to do with the fight, who was in the wrong place at the wrong time, was attacked by you in company with others. You picked up a knife that was on the ground and stabbed him four times in the abdomen, puncturing his lung in the process. You could easily have killed him. After the stabbing, the victim was also struck over the head with a bottle and kicked and punched several times by your co‑offenders. You ran away. When the victim was taken to hospital his blood pressure was so low it was unrecordable, but fortunately he was stabilised. He remained in hospital for six days. One of your co‑offenders was David Dang, whom I have already mentioned as having been sentenced to detention in a YJC for his involvement in the present matter.
78 In February 2010 you were identified as a person of interest in relation to the stabbing. You were interviewed by police on 1 April 2010 and admitted that you had committed the offence. This was but two days before you committed the affray. Ultimately you pleaded guilty to the offence of intentionally causing serious injury and were sentenced in this Court on 23 September 2011 to detention in a YJC for three years.
79 Mr Joblin’s report presented to the sentencing judge indicated that you did not demonstrate any mental health issues. His Honour was satisfied that your gang allegiance played a major part in your commission of the offence. His Honour condemned such a cowardly and serious act, however, he was satisfied it was appropriate to order your detention in a YJC. This was because of your background, education and possibility for further academic achievement, family support, your intelligence, lack of serious drug issues or personality disorders and your good prospects for rehabilitation. The disposition of YJC was supported by the prosecution.
80 As to your offending, you were at the nightclub and identified the opposing gang members and joined in the decision to fight in retaliation for the earlier incident. You knew that other members of your gang were armed before the fight started. You are to be sentenced only for the affray. You were arrested on 9 April 2010 and made a no comment interview. You conducted a contested committal in May 2011 and I note that you were not then charged with intentionally causing serious injury. You entered a late plea in April 2012.
81 Since being charged with the stabbing offence you re-established meaningful contact with your parents, continued with your schooling and completed year 12 and the initial studies I have mentioned. Since your incarceration in youth justice your rehabilitation has developed markedly. Your behaviour has been of a high standard. You were described as “an exemplary client with well-developed self management, and a high degree of compliance with YJC expectations”. You are living in a unit with minimum supervision and your behaviour has given no cause for concern. You have overcome two minor indiscretions.
82 Whilst in custody, you have regularly attended TAFE and completed courses in information technology, woodwork, engineering and electrics. You have obtained qualifications to operate a backhoe and bobcat machinery. You wish to undertake a building surveying course upon your release from custody and return to work with your cousin in the construction industry. You hope to enrol in a course in 2013 and according to the YJC report, you display a good work ethic, optimism about a future career which has been mapped out realistically and appropriate regret for your involvement in gang culture.
83 At Malmsbury, you have been referred to psychological services which you have embraced to deal with issues of past alcohol and drug abuse and self esteem issues. You completed the violence awareness program in March this year. Your participation has been described as appropriate with good interaction and leading to a mature understanding of the inappropriateness of your violent offending. You have completed a drug/alcohol/peer education program and present to new clients in the admissions welcome group.
84 You have also been involved in positive sporting programs and well supported by your parents, sister and girlfriend. You are successfully undertaking a temporary leave program and are presently considered a suitable candidate for the pre-release program. Significantly, you attended the Police Academy and spoke to new members of the police force as to the reasons why you had found yourself incarcerated. This commendable role was performed as a member of the Peer Educator Team through which you are often required to speak to students from schools about your life experience and what got you into trouble.
85 On your present sentence you will be eligible for Youth Parole on 22 October this year. Your expected release will include two months of supervised release when you will live with your father, work in your cousin’s construction business and undertake the proposed course at Victoria University.
86 In addition to the common features, the mitigating circumstances in your favour are that you are the product of a dysfunctional and dislocated family environment. You lacked an appropriate male role model. In spite of these challenges, you successfully completed Year Twelve, went on to commence a tertiary course, and worked productively from time to time. However, you succumbed to the lure of gang culture and association and that led to committing the serious stabbing offence and this affray.
87 Since your incarceration in YJC, you have matured significantly and demonstrated positive rehabilitation. I consider that both the stabbing matter and the present matter should have been dealt with at the same time, which, given the totality principle, would have led to more a favourable position for you as far as sentence was concerned, particularly as you were sentenced to the maximum period of three years’ detention in a YJC.
88 Your counsel conceded that in all the circumstances, particularly given that you are serving a sentence in a YJC, the only sensible sentencing option open was the imposition of a custodial sentence, which should be served in a YJC, but that it should constitute only a moderate increase in the detention to be served. The prosecution conceded that a YJC disposition was appropriate, something in the order of three to six months.
89 The new YJC report states you are suitable for a further YJC term and that you will remain in YJC after you turn 21.
Common mitigating circumstances
90 There are, as I have foreshadowed, a number of common mitigating circumstances, which I will address to all of you. The first is that you are all youthful offenders, or to be treated as young offenders. Either way, the Mills principles apply, such that your rehabilitation is an important objective, as this not only serves your interests but those of the community as well. Of course, these principles are of general application and each case must turn on its own facts and circumstances. Youth cannot in all cases avoid sentences of incarceration.
91 Each of you have pleaded guilty and, although some of the pleas were late, they all have an important utilitarian benefit in that there was a significant saving in time, cost and inconvenience to the community in the running of what was expected to be a three-week trial. It may have been difficult for the prosecution to prove individual conduct against you. Hence, your pleas have served the interests of justice and there should be a significant discount for that reason alone.
92 I am also satisfied that each of you now have insight into the seriousness of your conduct, the stupidity of it and that you are all remorseful and regretful for your offending. Hence, your pleas have greater significance for this reason.
93 There has been significant delay involving the offending which occurred two years and three months ago. This is all the more significant in your favour, given the rehabilitation each of you have achieved in the meantime. During this time each of you were on onerous bail conditions, including home curfews and police reporting.
94 I am also satisfied that each of you have now ceased and disavowed gang culture and activity. This is a vital step each of you have taken towards becoming better citizens and better people. For reasons I have indicated, you all have very good prospects of rehabilitation. This includes the continuing support of your family members, many of whom have attended today.
95 Next, in the cases concerning you, Mach, Nguyen and Le, I have made an adjustment for the fact that the injury charges to which you have pleaded are also embraced by the affray charges, so I need to caution myself against double punishment in that regard.
Other sentencing considerations
96 There are, of course, other important sentencing considerations. You were all involved in an appalling gang attack at night in the CBD upon outnumbered, defenceless and unsuspecting victims. It was well planned and vicious, but cowardly, and all of you were involved knowing that your associates were armed with fearsome weapons. Defence counsel variously and correctly described the offending as “animalistic”, “an ugly public incident” and a “vision of intolerable violence”.
97 Street violence is to be deplored in our community. It is prevalent activity, but none more so when it involves gang violence. Members of the public nearby were frightened, if not terrified. Yours was a serious example of the offence of affray. The principle of general deterrence is of vital importance notwithstanding the combined effect of the mitigating circumstances in favour of each of you.
98 Having said all that, there is, however, a significant factor which restrains the exercise of my sentencing discretion. All of you were prepared to chance your arm going to trial, for most of you, on the charge of intentionally causing serious injury to Gomez. The prosecution relied for guilt on the doctrine of concert and common purpose. Once it was able to establish your individual involvement in the fighting or the affray, jury convictions were to be expected. Instead, shortly before the trial was to commence before me, the prosecution settled all of your cases by agreeing to pursue either the affray charges alone or intentionally causing injury, not serious injury, to Gomez and injury to Tran. This was on the artificial basis of “causing pain” by various conduct without even being able to explain to the Court the nature of the pain caused or even the part of the body impacted. Then the prosecution agreed that all of you should receive community dispositions, or, at worst, wholly suspended gaol sentences, other than for you, Nguyen and Le, and then in your cases, for relatively low periods of three to six months' imprisonment. In your case, Tran, the prosecution agreed to a relatively moderate increase in YJC detention.
99 You are all fortunate indeed that the prosecution agreed to the settlement of your cases in this way. In the cases of Dang and Tran whom I sentenced, the prosecution was willing to attribute responsibility for all the injuries suffered even though those two offenders did not cause them all. This was appropriate, once the doctrine of concert and common purpose applied. While all of you are responsible for the affray, and for the combined effect of the injuries suffered by the victims, no particular conduct is alleged against you other than your criminal presence and willingness to fight or encourage others to do so.
100 The prosecution adopted this approach to the settlement because it said it was unable to prove any particular person had a weapon or that any of you caused serious injury by the use of a weapon. Of course, the concert and common purpose principles meant it did not have to do this to secure convictions for intentionally causing serious injury to Gomez or intentionally causing injury to Tran.
101 Of course, I am not bound by the sentencing submission of the prosecution, although, of course, I must give such submissions full weight and respect. However, the very limited and specific conduct in relation to the injury charges against you, Mach, Nguyen and Le, meant that it would be quite unjust to attribute to you the full force of the serious injury suffered by Gomez and the injury suffered by Tran. While it is true that the full force of these injuries could be taken into account in assessing the affray charge, which all of you face, that offending did not attribute any particular contact between you and any victim, named or otherwise.
102 I would not be at all surprised if members of our community looking at this case were to be surprised, if not shocked, by this result. But in what has been described as the “highly punitive debate” about sentencing,[4] it is well to remember that the prosecution represents the community and it purports to settle cases in the interests of the community and victims.
[4]DPP v Malikovski [2010] VSCA 130, [51] per Maxwell P.
103 In all these circumstances, except for you Tran, I would propose that each of you be sentenced on the affray charge to a Community Corrections Order (CCO), requiring no treatment conditions, because none is warranted for any of you. Each order will involve community work of various different periods, depending on whether you have prior or subsequent offending and, to some extent, whether you were more or less involved in the matter, or because there was some particular aggravating feature of the offending.
104 In your cases, Mach, Nguyen and Le, your offending is made worse by the fact that you had active involvement in causing injury to one or other victim or, in your case Nguyen, to both. None of you used weapons, although each of you either kicked or stomped on a victim, which was serious conduct. I consider that each of you should be sentenced to serve a short period of imprisonment along with the CCO. In your case, Nguyen it will be slightly longer because you committed two offences of causing injury, whereas Mach and Le offended in respect of one such offence each.
105 In your case, Tran I would have been prepared to release you on a CCO, all other things being equal and having regard to the proposal to do that for all the other offenders. However, the reality is that you are presently serving the sentence of three years’ detention in YJC where you are doing well. I agree with the parties that the practical reality is that I should impose a sentence of detention in a YJC. I do not agree, however, that it should run fully concurrently with your present sentence, as to make such an order would mean that, other than being convicted, there would be no effective penalty compared with your co-offenders. On the other hand, those charged with affray only will not be in custody and you will be. They will have to do community work, but you will not. However, you may be required to engage more intensively with authorities as part of youth parole.
Explanation of community corrections order
106 Before I can release any of you on a community corrections order, I need to explain to you what that involves and I need to obtain your consent to such a disposition. If you do not give me consent, I cannot allow you to be released on the CCO.
107 In the case of all of you, the CCO will last for a period of time. For those of you who have to serve time in imprisonment, it will commence upon your release from custody. The mandatory terms that apply to all community correction orders are as follows -
(1) You must not commit another offence for which you could be imprisoned during the time that the order is in force.
(2) You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011.
(3) You must report to and receive visits from the Secretary or delegate.
(4) You must report to the Community Corrections Centre within two clear working days of the order starting or upon your release from custody.
(5) You must let a Community Corrections Officer know within two clear working days of you changing your address or job.
(6) You must not leave Victoria without first getting permission to do so from the Secretary or delegate.
(7) You must obey all lawful instructions from and directions of the Secretary or delegate.
108 Do each of you understand the mandatory terms that apply to a CCO? I will start with you, Mr Ho. Stand up, please. Do you understand the mandatory terms?
109 PRISONER HO: Yes, I understand.
110 HIS HONOUR: Mr Mach?
111 PRISONER MACH: Yes, I understand.
112 HIS HONOUR: Mr Nguyen?
113 PRISONER NGUYEN: Yes, I understand.
114 HIS HONOUR: Mr Pham?
115 PRISONER PHAM: I understand.
116 HIS HONOUR: Mr Le?
117 PRISONER LE: I understand.
118 HIS HONOUR: And Mr Tran, you stay seated there for the moment. I will, as I said, impose differing amounts of community work. Those of you who have to spend time in prison will have their work adjusted by reason of the fact that you are going to prison. Each of you will have to do community work as a punishment for involvement in this matter.
119 Other than that I do not propose to impose any other treatment programs or anything of that nature. Again, I ask you, do each of you, do you understand those requirements. Mr Ho?
120 PRISONER HO: Yes.
121 HIS HONOUR: Mr Mach?
122 PRISONER MACH: Yes.
123 HIS HONOUR: Mr Nguyen?
124 PRISONER NGUYEN: Yes.
125 HIS HONOUR: Mr Pham?
126 PRISONER PHAM: Yes.
127 HIS HONOUR: Mr Le?
128 PRISONER LE: Yes.
129 HIS HONOUR: And Mr Tran, you just sit there where you are at the moment, thank you.
130 Next, I need to tell you that if during the course of the Community Correction Order you break the law, that is, you commit any offence for which you could be imprisoned during the time that the order is in force, then that would constitute a breach of the Community Correction Order.
131 Also, failure to comply with the mandatory terms of the order in an administrative sense, even if you are not breaking the law, would also constitute a breach of the CCO. If that happened you could be brought back to this court and you could be punished for the offence or the offences each of you committed.
132 In addition to sentencing for the offence or the offences, the court may vary the order, confirm the order made or cancel the order and deal with you for the original offence for which the order was made, or cancel the order and make no further order.
133 Do each of you understand the consequences if you were to breach the CCO? Mr Ho?
134 PRISONER HO: I understand.
135 HIS HONOUR: Mr Mach?
136 PRISONER MACH: I understand.
137 HIS HONOUR: Mr Nguyen?
138 PRISONER NGUYEN: Yes, I understand.
139 HIS HONOUR: Mr Pham?
140 PRISONER PHAM: I understand.
141 HIS HONOUR: And Mr Le?
142 PRISONER LE: I understand.
143 HIS HONOUR: All right. Thank you. Just sit down for the moment, please, gentlemen.
Sentence - Ho
144 Mr Ho, please stand up. Do you agree to entering into a CCO as proposed?
145 PRISONER HO: I agree.
146 HIS HONOUR: You agree. Mr Prosecutor, should the CCO be signed before or after the sentences imposed?
147 MR TRIANDOS: Yes. After the sentencing, Your Honour.
148 HIS HONOUR: On the charge of affray, you are convicted and released on a Community Corrections Order for a period of two years with the sole condition of performing 200 hours' community work.
149 But for your plea of guilty I would have imposed a sentence of six months' imprisonment to be served immediately.
150 Please sit down. I will have the order provided so that you can sign it. Thank you. Mr Mortley, will you look after that with your client please? Thanks.
151 [CCO for Ho signed]
Sentence - Mach
152 Mr Mach, would you please stand up, please? On charge 2, intentionally cause injury, you are convicted and ordered to serve two months' imprisonment and on both charges 1 and 2 you are then to be released on a Community Corrections Order for a period of 15 months with the sole condition that you perform 125 hours' community work.
153 But for your pleas of guilty I would have imposed a sentence of 12 months' imprisonment to be served immediately. I will provide you with the order to be signed. Thank you. I will give you that, thanks very much Mr McLennan can you look after that, thanks?
154 Mr Mach, I am not sure I formally asked you. Do you agree to consent to the Community Correction Order proposed?
155 PRISONER MACH: Yes.
156 HIS HONOUR: You have signed that now. Thank you.
157 [CCO for Mach signed]
Sentence - Nguyen
158 Mr Nguyen, do you consent to the Community Correction Order proposed?
159 PRISONER NGUYEN: Yes, I do.
160 HIS HONOUR: Yes. On charge 2 of intentionally causing injury you are convicted and sentenced to three months' imprisonment and on charges 1, 2 and 3 you are then to be released on a Community Corrections Order for a period of 18 months with the sole condition of having to perform 150 hours' community work.
161 But for your pleas of guilty I would have imposed a sentence of 18 months' imprisonment with a minimum of 14 months. I will provide the CCO order. Thank you. If you would deal with that, please?
162 [CCO for Nguyen signed]
Sentence - Pham
163 Mr Pham, would you stand up please? Do you consent to the proposed CCO? Just speak up please?
164 PRISONER PHAM: Yes.
165 HIS HONOUR: On the charge of affray you are convicted and released on a Community Corrections Order for a period of 18 months with the sole condition that you perform 150 hours' community work.
166 But for your plea of guilty I would have imposed a sentence of four months' imprisonment. I will have the order provided to you for signature. Thank you, Mr Grimshaw.
167 [CCO for Pham signed]
Sentence - Le
168 Mr Le, would you please stand up? Do you consent to the proposed CCO?
169 PRISONER LE: Yes, I do.
170 HIS HONOUR: Yes. On charge 2, intentionally cause injury you are convicted and ordered to serve two months' imprisonment and on both charges 1 and 2 you are then to be released on a Community Corrections Order for a period of 15 months with the sole condition that you perform 125 hours' community work.
171 But for your pleas of guilty I would have imposed a sentence of 12 months' imprisonment to be served immediately. I will have the CCO provided to you. Thanks. I just need to have this printed out again. Sorry, just have a seat for the moment please would you Mr Le?
172 While that is happening, in your cases Ho, Mach and Pham, the prosecution has applied and you have agreed to the making of a retention order for forensic samples which have been previously taken from you. I am prepared to make those orders given the seriousness of the circumstances of the offending; the prior convictions which you have, Mr Ho, and the finding of guilt which you have, Mr Mach; because all of you consent to the making of the order; and because the granting of the order is in the public interest. So I hand the orders down for Mr Pham. I hand the orders down for Mr Mach. And I hand down the signed orders for Mr Ho.
173 Mr Goldberg, if you could assist with Mr Le signing that? Thank you.
174 [CCO for Le signed]
Sentence - Tran
175 Mr Tran, would you please stand up? On the charge of affray you are convicted and sentenced to three months' detention in a Youth Justice Centre. Two months of that sentence is to be served cumulatively upon your current YJC sentence.
176 But for your plea of guilty I would have sentenced you to six months' detention in a YJC. Mr Tran, please sit down.
177 MR LOWY: If it pleases the court.
178 HIS HONOUR: Thank you. I will sign that order.
179 I ask counsel generally, are there any issues arising with the mechanics of the sentences I have imposed? First, I will ask the prosecution?
180 MR TRIANDOS: I have no problem. No, Your Honour.
181 HIS HONOUR: No? Nothing gentlemen?
182 DEFENCE COUNSEL: No, Your Honour.
183 HIS HONOUR: No. Well, thank you all for your assistance. Thank you to people for sitting through what has been a lengthy sentence in certainly a hot environment and thank you for the families for supporting the offenders, as you have done so.
184 Now, Mr Mach, Mr Nguyen and Mr Le, you need to go now with the prison officers. Thank you. Adjourn till 10.30, thanks.
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