Director of Public Prosecutions v Huang

[2016] VCC 907

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00731
CR 16-01134

DIRECTOR OF PUBLIC PROSECUTIONS

v

JACK HUANG

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	30 June 2016
CASE MAY BE CITED AS:	DPP v Huang
MEDIUM NEUTRAL CITATION:	[2016] VCC 907

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper
For Offender	Mr M. Tovey QC

HIS HONOUR:

1Jack Huang, you have pleaded guilty to two indictments.  What I will call the first indictment is G10357966.  On that indictment you pleaded guilty in Charge 1 to aggravated burglary, which took place on 16 January 2016; and to Charge 2, an offence of causing injury intentionally on the same date; Charge 3, intentionally damaging or destroying property on the same date; Charge 4, to aggravated burglary on 22 January 2016; and Charge 5, causing injury intentionally on the same date.  In each case the victim of the offences of causing injury intentionally, and indeed the target of the criminal activity on both occasions, was the victim, Andrew Edward Nixon.  In addition, you pleaded guilty to a related summary offence of committing two indictable offences of aggravated burglary whilst on bail.

2In relation to the second Indictment G10357966A.1, you pleaded guilty to offences of theft, set out in Charges 1 to 8 inclusive; and in Charge 9, to an offence of handling stolen goods.  The offending conduct occurred between
31 October of last year and 24 December of last year.  In addition, you pleaded guilty to a related summary offence of stating a false name to police on |
24 December 2015 in connection with the offence the subject of Charge 9 on the second indictment. 

3You also pleaded guilty to some unrelated offences.  Those occurring on
5 December of last year involved refusing to remain for the purposes of providing a swab, essentially, to see whether you had drugs in your system during a period when you were driving a motor vehicle, and unlicensed driving, and on 9 January 2016 an offence of unlicensed driving and an offence of refusing to accompany police for the purposes of providing a similar such sample.

4You have also admitted previous court appearances and convictions, the last of which involved a court appearance at the Dandenong Magistrates' Court on 25 August of last year wherein you were convicted of a number of offences, including trafficking methylamphetamine, and you were sentenced to a
12 month community correction order with conditions which included the condition that you submit to rehabilitation, assessment and treatment for drug dependency.  It is apparent that you failed to take the opportunity that was offered to you on that occasion and you then engaged in the spree of offending conduct which is the subject of the second indictment and related offence.

5The prosecution tendered as Exhibit A the summary in relation to the first indictment along with photographs showing the injury occasioned by your victim in relation to Charges 4 and 5 on that indictment, in particular Charge 5, and those photographs are Exhibit B.  They also tendered and relied upon Exhibit C, which is the Crown opening for the offences the subject of the second indictment and the related summary offences and the unrelated summary offences to which I have referred.  I am not going to read those documents again.  I incorporate them into these reasons for sentence in their entirety. 

6Your victim, the subject of the first indictment, was offered the opportunity of providing a victim impact statement and chose not to, perhaps unsurprisingly, and it seems that no victim impact statements have been tendered in relation to the second indictment. 

7It is to be assumed that the effect on Mr Nixon, your victim, the subject of the first indictment, will be of significance.  He suffered some injuries which were by no means slight, physical injuries, and it is to be inferred that there will be an emotional overlay which he will also suffer as a result of your conduct towards him.  I am obliged to take into account the effect of your conduct upon you victims. 

8The material tendered by the prosecution, and indeed the material tendered on your behalf, which included the report from Mr Newton dated 24 June 2016, show that you come from a good family.  You have obviously had a good upbringing with opportunities.  You became involved in taking amphetamines in your late teens, around about 17, and I have no doubt that that contributed to your failing to complete Year 11 and failing to complete your education.  Nevertheless, you have shown an aptitude for work and you have pursued work with your father as a plasterer and demonstrated that you have a capacity to lead an honest life.  However, it is also abundantly clear that your drug taking took over your life and has been a blight on your life since the age of 17.  You are now aged what, 26, so the last nine years of your life have been wasted to a significant degree on your pursuit of the high that no doubt you have sought through amphetamines and, more recently, methylamphetamine.

9It is a sad fact that cases like yours come before this court on an almost daily basis.  I have no doubt that your parents and family have been tearing their hair out, so to speak, over the last nine years and watched your deterioration and you failure to take the opportunities that have come your way. 

10You were given a pretty good opportunity back in August of last year to turn things around. It is to your credit, perhaps, that you frankly admitted to |
Mr Newton that you really did not want to address your drug dependency and you preferred the life that you were leading, namely engaging in heavy ice habit.  It may be that you were, to some extent, influenced by your relationship with Ms El, who was also involved in ice.  I have no doubt that many of your friends were also involved in the taking of ice and you became enmeshed in that lifestyle.  However, it is really no excuse, is it, for finding yourself in a situation where you are going out committing the relatively petty criminal offences that are set out in the second indictment; a series of thefts of mobile telephones, of answering advertisements and posing as a genuine purchaser and then running off with mobile phones that were offered for sale, also, it seems gathering other stolen goods for the purposes of feeding your ever increasingly expensive ice habit. 

11You did spend some time in custody.  When you came out, you found you girlfriend had gone off with your mate. It may be that had you not been back on the ice again, you would have been able to cope with that, but you clearly were not and you engaged in the offences of aggravated burglary with a view, it seems to me, to carrying out the assaults upon Mr Nixon out of jealousy or anger or any number of other emotions that spurred you on, no doubt heavily fuelled by ice. 

12It is well recognised that people do behave in a manner that is out of character when they are high on ice.  They do not fear the consequences.  They do not have the capacity to assess the consequences rationally, either for themselves or for their victims, and frequently people who are not violent by nature do behave in a violent manner and you, yourself behaved in a violent manner on these occasions.  Your record does not suggest that you are a naturally violent person.  However, as I say, people who are heavily addicted to ice do behave in a manner that is out of character.

13So it is that you eventually were caught by police.  That did not deter you.  You continued with your offending conduct until eventually you were kept in custody as a result of your second offence of aggravated burglary.  There is nothing terribly sophisticated about your offending conduct.  You were almost bound to be caught, just as you have been caught on a number of other occasions, as set out in your criminal record. You do not have much of a regard for the law, but that again is typical of people who are heavily addicted to ice.

14You have no respect for the motoring laws or the danger that you put people in by driving in circumstances where you are affected by ice.  I am not sentencing you for that, but that is the fact of the matter. I think that there are some signs emerging from the report of Mr Newton that suggest that you have now reached a point where you are prepared to accept responsibility for your actions.  You made no bones about your criminality to Mr Newton, did not seek to minimise your offending conduct, and there are signs, it seems to me, of a person who, in the cold light of day and having got yourself free of ice for a significant period of time, the most significant period of time, for many years, I have no doubt, you were able to view your conduct in a more sensible and rational light, and you have, it seems, fully accepted your criminal responsibility.

15I accept that you are remorseful now. I think that is reflected in your pleas of guilty to these offences and you get full credit, not just for the remorse that you have shown, but also the utilitarian benefits of the pleas of guilty which you indicated at an early stage.

16Your prior convictions are serious enough, but these offences of aggravated burglary represent a very significant increase in the degree of seriousness of your offending conduct. 

17Your counsel has accepted appropriately, as I am sure you do, that you leave me no alternative other than to impose a substantial term of imprisonment.

18It is, as the prosecution pointed out, necessary for a court to denounce conduct of this nature, to punish you adequately for your offending and to deter you from committing further offences of this kind, but perhaps most importantly of all, to deter others from engaging in conduct of this kind, and it is necessary, therefore, to mark the seriousness of the offences with suitable terms of imprisonment.

19I need to balance those sentencing considerations against the need to facilitate your rehabilitation as much as I reasonably can.  I have to be guarded still as to what your prospects are because you have had opportunities from the courts in the past and have failed to take them.  I am inclined to think that this sustained period of incarceration has given you better opportunity to assess your future and my inclination is to think that you are now better equipped to deal with your addiction and to get yourself off this deep-seated ice habit.  If you do take your opportunities whilst serving your sentence to deal with your ice habit, then I would regard your prospects of rehabilitation as good.

20Your family is here and I have no doubt that they will support you when you come out and offer you employment.  Your cousin spoke eloquently, and I have no doubt that he too will do his best to support you when you come out.  I suspect that you will, if you do beat the ice habit, put all this behind you and that you will settle down to a regular working practice and lead a decent, honest life.  So I rate your prospects of rehabilitation in the longer term as good provided you take this opportunity of dealing with your ice habit. 

21You will need some support once you get out, and your counsel has again, I think, very properly suggested that a longer than usual non-parole period in your case is appropriate and you need to use that for the further support that you will need to continue your rehabilitation, continue your dealing with the deep-seated drug habit once you are back in the community and are exposed to the temptations which you have failed to resist up to now.  So I do think that a longer than usual non-parole period is appropriate in your case.

22Doing my best to balance those sentencing considerations, I am now ready to impose sentence upon you.

23Would you please stand?

24On the first indictment, on Charge 1 of aggravated burglary, I sentence you to imprisonment for a period of three and a half years; on Charge 2 of causing injury intentionally, I sentence you to imprisonment for a period of 12 months; on Charge 3 of intentionally damaging property, I convict you and sentence you to imprisonment for a period of two  months; on Charge 4 of aggravated burglary, I convict you and sentence you to imprisonment for a period of four years; on Charge 5 of causing injury intentionally, I convict you and sentence you to imprisonment for a period of 16 months.

25I convict you in relation to all of those offences.  

26In relation to the summary offence of committing the indictable offences of aggravated burglary whilst on bail, I convict you and sentence you to imprisonment for a period of one month.

27In respect of the charges on the second indictment, I convict you in relation to each of the charges of theft and handling of stolen property (Charges 1 to 9), and in relation to each charge, I impose a term of imprisonment of one month.

28In relation to the related summary offence of stating a false name to police on 24 December of last year, I convict you and discharge you.  In relation to the unrelated summary offences committed on 5 December 2015 for refusing to remain, I convict you and impose a fine of $750 and disqualify you from driving or holding a licence for a period of six months.  That will run from today.  In relation to the offence of unlicensed driving on that date, I convict you and sentence you to imprisonment for a period of one month.

29On the offences committed on 9 January of this year for unlicensed driving, I convict you and sentence you to imprisonment for a period of one month; and for refusing to accompany police, I convict you and sentence you to a fine of $750 and disqualify you from driving or holding a driving licence for a period of six months.  Again, that will run from today's date.

30It is necessary for me to consider the orders for cumulation that are appropriate.  Your counsel has urged me to impose sentences that are concurrent to substantial degrees so as properly to address the principle of totality, not to impose a crushing sentence upon you and to impose an overall sentence that is proportionate and just, and again, doing the best I can to meet those objectives and to impose an overall sentence that is just and fair, I make the following orders.

31The sentence of four years upon Charge 4 on the first indictment will be the base, and in respect of the sentence on Charge 1 on the first indictment, I order that 12 months of that sentence, three months of the sentence on Charge 2 on that indictment and six months of the sentence on Charge 5, along with the one month sentence on Charge 7 of the second indictment and the one month sentence on Charge 8 of the second indictment and one month imprisonment for unlicensed driving on 9 January 2016 be served cumulatively upon one another and upon the sentence of four years that I have imposed for Charge 4 on the first indictment.

32That makes a total effective sentence of six years' imprisonment, and I order that you serve a period of three and a half years before you become eligible for parole. 

33I declare 151 days of pre-sentence detention as time to be reckoned as served on the sentences that I have imposed and deducted administratively from the sentence.  I order that that fact be noted in the records of the court.

34But for your pleas of guilty to all of these offences, I would have sentenced you to a total effective sentence of eight years' imprisonment with a non-parole period of five years and three months.

35I make the orders for disposal of property and compensation in accordance with the drafts which I have been provided, plus an order for that you provide a forensic sample.

36The order will be that you provide that forensic sample by permitting or giving a scraping from the inside of your mouth.  You will be approached whilst serving your sentence by an authorised officer to provide the sample in that way.  If you comply with the request, that is the end of the matter.  If, however, you fail or refuse to provide a sample by a scraping of the inside of your mouth when requested to do so, the officer will be authorised to take blood and may use reasonable force to obtain that sample.  I am sure that you will not put the officer to that trouble. 

37I think that is all of the orders, is it not, Mr Roper?

38MR ROPER:  Just to confirm, Your Honour, in relation to the driving matters, the six months cancellation of licence, is that in relation to the unlicensed driving and the ‑ ‑ ‑

39HIS HONOUR:  No, only in relation to the two offences for which the sentence is mandatory, that is, the refusing and the ‑ ‑ ‑

40MR ROPER:  Mandatory minimum, yes.

41HIS HONOUR:  Refusing to accompany and refusing to remain.  That will be concurrent running from today.  I am doing that to comply with the law.  Otherwise there's no point in prolonging the period of disqualification whilst he's serving sentence.

42MR ROPER:  As Your Honour pleases.

43HIS HONOUR:  Or indeed, imposing a sentence - a disqualification which makes it more difficult for him to get employment once he comes out.

44MR ROPER:  Thank you, Your Honour.

45HIS HONOUR:  A stay of 12 months on the fine?

46MR TOVEY:  Thank you, Your Honour.

47HIS HONOUR:  That will give him the opportunity of having that converted to further imprisonment, if he so desires, or paying the fine.

48MR TOVEY:  Thank you, Your Honour.

49HIS HONOUR:  Any other orders, Mr Tovey, that ‑ ‑ ‑

50MR TOVEY:  No, not that I can think of, Your Honour.

51HIS HONOUR:  No, all right.  Yes, thank you.

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