Director of Public Prosecutions v Le

[2019] VCC 780

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-00157

DIRECTOR OF PUBLIC PROSECUTIONS

v

WILLIAM LE

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JUDGE:	HER HONOUR JUDGE BRIMER
WHERE HELD:	Melbourne
DATE OF HEARING:	17 May 2019
DATE OF SENTENCE:	29 May 2019
CASE MAY BE CITED AS:	DPP v LE
MEDIUM NEUTRAL CITATION:	[2019] VCC 780

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence-attempted armed robbery & commit indictable offence whilst on bail-youthful first offender-rehabilitation-current sentencing practices

Legislation Cited:  Sentencing Act 1991, section 44

Cases Cited:R v. Mills [1998] 4 VR 235-

DPP v. Dalgleish (a pseudonym) [2017] HCA 41;

[2017] 349 ALR 37

Sentence:15 months’ imprisonment and Community Correction Order made for two years with conditions to commence upon release from prison

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Sargent (plea) Ms A. Birkin (sentence)	Office of Public Prosecutions Victoria
For the Accused	Mr C. Nikakis (plea) Mr P. Tomlinson (sentence)	Haines & Polites

HER HONOUR:

Introduction

1William Le, you pleaded guilty to an indictment containing one charge of attempted armed robbery. The maximum penalty for the offence is 20 years’ imprisonment. You have also pleaded guilty to one charge of committing the indictable offence of armed robbery whilst on bail. This offence was uplifted to this court pursuant to s.145 of the Criminal Procedure Act 2009. The maximum penalty for that offence is 30 penalty units or three months’ imprisonment.

2The circumstances in which you came to commit this offence are set out in the Summary of Prosecution opening dated 24 April 2019, which was read into evidence on your plea.  I have had regard to that opening when determining the appropriate sentence in your case.

3In addition to making oral submissions, your counsel, Mr Nikakis, relied on written Defence Submissions on Plea dated 14 May 2019.  I have also had regard to these submissions in formulating my reasons for sentence.

Circumstances of the offending

4Between 11.30 pm on Saturday 4 August and 4:00 am on 5 August 2018, you came to police attention twice in the Richmond area.  You were seen to be
drug-affected by police officers, although less so on the second occasion.  At 4:15 am Protective Services Offices escorted you onto a Glen Waverley bound train.

5CCTV footage of the offending was obtained and played, by consent, during the prosecution opening.  You arrived at Holmesglen Railway Station at approximately 4:48 am and left via the down ramp into the underground subway beneath the platforms.  At approximately 4:52 am, the victim, Martha Enriquez Obdando arrived at the station and noticed you standing near the entrance appearing to be talking or yelling out, not really making any sense.  You followed the victim up the ramp from the underground subway, paused and pulled the cords from your hooded jumper tighter, causing the hood to constrict.  You then tied the strings around your head, causing the hood to obscure your face.  You then approached the victim, who was sitting in the waiting room between  platforms one and two.

6You turned your back to the victim whilst standing about 3 metres away.  Whilst facing away from the victim you appeared to fiddle or get something from your crotch area.  You removed an object from your crotch area and turned back towards the victim, entered the waiting room and pointed the object towards her.

7You said, 'Give me your money'.  The victim later stated to police that she saw a knife in one of your hands, a partial blade approximately 10 cm long which looked to be silver-coloured metal and could have been a flick knife.  She responded, 'No, leave me alone' and left the waiting room to get away from you.  You said, 'I was joking, come back here let’s talk'.  At 4:56 am, you left the station via the ramp.

Investigation, arrest and interview

8The victim reported the offending to police on 7 August 2018.  Police viewed the CCTV footage from the station and followed your movements back to Richmond Railway Station earlier that morning, where you were spoken to by police.  The members identified you.  At the time of offending, you were on bail for unrelated matters.

9On Saturday 1 September 2018, you were arrested by police members and interviewed at 10:16 pm.  You made largely no comment; however, you did deny owning a red hooded jumper as worn during the commission of the offence.  You also stated that you had no recollection of what had occurred on that day.

Effect on the victim

10The victim declined to make a victim impact statement, however, she said in her statement that, 'I was thinking this is a nightmare.  I was really scared.'

Plea of guilty

11You were committed to this court at a committal case conference on 24 January 2019.  You pleaded guilty and the matter proceeded by way of straight hand-up brief.  It is agreed that you pleaded guilty at an early stage.  I accept and take into account that you pleaded guilty at an early stage, which is indicative of remorse, and that your plea of guilty has facilitated the course of justice by preventing community expense and the need for witnesses to come and give evidence in a trial of your matter.

Pre-Sentence Detention

12You were charged and remanded on 1 September 2018 and granted bail on
9 October 2018.  You failed to appear at the Committal Case Conference on
27 November 2018 and a Bench warrant was issued.  Following arrest at your home address on 9 January 2019, you were presented to the Melbourne Magistrates' Court and made no application for bail.  You have 178 days of
pre-sentence detention as of today.

Personal Circumstances

13You were born in February 1998 and are 21 years old, 20 at the time of the offence.  You grew up in Richmond and are the second oldest of five siblings.  You went to University High School, whilst living in Parkville with your aunt.  During your early childhood, both of your parents owned and ran a restaurant called 'Vietnamese Noodle House'.  They worked long hours and were absent for long periods of time.  You were taken care of by other members of the family during that time.  After completing Year 11 you worked for your parents in the family business earning approximately $140.00 per week.  You were introduced to the use of 'Ice' when you were 17 years old and have used cannabis and heroin.

14At the time of this offence you were living with your mother in Chadstone.

Prior Criminal history

15You have no criminal history prior to this offending, however, at the time of this offending you were charged with a number of unrelated offences.  These matters are listed for a consolidated plea hearing in the Magistrates’ Court on 4 June 2019.

Objective gravity of the offence of attempted armed robbery

16The offence of attempted armed robbery is a serious offence as reflected by its maximum penalty of 20 years’ imprisonment.

17Ms Sargent, on behalf of the Crown, submitted that the nature of your offending in these particular circumstances was serious having regard to the vulnerability of the victim; she was alone at 5 am and the episode would have been very frightening. 

18Mr Nikakis submitted that the attempted armed robbery was all but a split second, with no injury or attempt to injure.  You tried to converse with the victim after she got up and walked away from you.

19Whilst I accept that the offending on this occasion appears to be opportunistic, in my view, the seriousness of the offending is marked by your praying on a vulnerable woman alone on the station platform waiting for a train to go to work.  You used what was described as a knife approximately 10 cm long which looked to be silver-coloured metal and could have been a flick knife (although I have taken care to avoid double punishment for this factor, given that it amounts to an element of the offence itself) to reinforce your demand for money.

Relevant Sentencing Principles and Current sentencing practices

20I accept the prosecution submission that the gravity of the offence of attempted armed robbery, particularly on a vulnerable person in these circumstances requires a conclusion that general deterrence is a significant sentencing consideration.  The offending has the capacity to undermine the sense of personal security that members of the community have.

21However, given your youth, 20 years old at the time of the offence, now 21, I have had regard to and placed significant weight on rehabilitation as the primary sentencing consideration in accordance with the principles set out in R v Mills [1998] 4 VR 235; that is, in the case of a youthful first offender, rehabilitation is usually far more important than general deterrence and that such an offender ought not be sent to an adult prison if that can be avoided.

22I have had regard to the need for specific deterrence.  At the time of this offence you had no prior convictions, albeit you were charged with a number of unrelated matters to which I have previously referred.  You failed to appear at the Committal Case Conference on 27 November 2018 and a Bench warrant was issued.  On the evening before this offence was committed, you were in breach of the curfew conditions. 

23During the course of the plea, Mr Riordan, Senior Court Advice Officer, Youth Justice, gave evidence of the contact he has had with you since April 2018, at the time you were assessed for a supervised bail program.  In summary, you were to report once a week starting in April 2018.  You failed to appear more than you attended.  Mr Riordan considered that your difficulties were because from the time you were released from custody, you began using and as such, intervention was directed to addressing your heroin use, rather than connection to other services.  Mr Riordan referred to your partner at the time, also a drug user and between whom he considered existed an unhealthy co-dependency.  You were placed on bail in relation to the attempted armed robbery in October 2018, and again, your attendance was sporadic.

24Mr Riordan said that when he first had contact with you, you had been using heroin for approximately three years.  You tried hard at the beginning but believed your habit of smoking heroin was manageable.  He considered that, at that stage you didn’t take your situation seriously as your dug habit was so entrenched.  Mr Riordan considered that upon release from prison you would need to be monitored.

25I am obliged to have regard to current sentencing practices in determining the sentence, though I note the guidance of the High Court in DPP v Dalgleish
(a pseudonym) [2017] HCA 41 or [2017] 349 ALR 37, that current sentencing practices are one of the many factors that must be taken into account in sentencing.

26I have had regard to the Sentencing Advisory Council sentencing statistics for attempted armed robbery (2013-2018) for offenders aged 20 to 24.  A term of imprisonment was imposed in 53.1% of cases, and a CCO in 40.6% of cases.  In respect of the length of a term of imprisonment, 32.4% were between 1 and 2 years and 29.4% up to 1 year.  Where a CCO was imposed, 50% were for a period between two to three years and 19.2% were for a period between one and two years. Of course, every case is different, and the court must have regard to the individual circumstances of each case.  In respect of this case, that includes the particular circumstances of this offending, your personal circumstances, and the relevant sentencing principles that arise for consideration.  This is what I have done.

Sentencing Submissions

27Mr Nikakis submitted on your behalf that you ought be assessed for a CCO.  The sentencing range is between an immediate custodial sentence, whether it be a straight sentence or with a non-parole period, in addition to a CCO.  Alternatively, Mr Nikakis submitted that I should place you on a lengthy CCO with supervision and monitoring.  He urged the court to take into account your background, that you have remained drug-free since being in custody, you have completed an OH&S course, and attended Church services on a regular occasion whilst in custody.  Your partner at the time of the offending has not had any contact with you.  You have received visits from your mother.

28Ms Sargent on behalf of the prosecution submitted that, in order properly to give weight to the serious nature of the offending and the principles of general deterrence, a sentence of imprisonment ought be imposed.  A combination sentence is out of the range.  In reply, Mr Nikakis submitted that the prosecution submission ignores the principles in Mills' case. 

29To assist me to assess the sentencing submissions, I had an assessment for your suitability for a CCO undertaken.  Amongst other things, the writer of the assessment states that you appeared willing and able to comply with a CCO if one were imposed, but that you demonstrated limited insight into your offending behaviour.  You reported that you were under the influence of heroin at the time of offending and cannot recall your actions.  You stated that your behaviour was out of character and shared some insight into the trauma that you may have caused the victim when prompted.  The writer assessed you as suitable for a CCO, with conditions as to supervision and drug treatment.  You reported no formal diagnosis of mental health conditions, and you have never been referred to a psychologist for a mental health assessment.  As such, a mental health condition was not recommended.

Sentence

30Having carefully considered, balanced, and weighed all of the matters referred to, in particular the need to balance the sentencing considerations of punishment and general deterrence with rehabilitation, given your youth, I consider that a combination sentence best achieves that balance.  The punitive nature of the term of imprisonment, together with a lengthy CCO with unpaid community work addresses the need for general deterrence.  The imposition of conditions directed to your drug use, the context in which the offending occurred, addresses the sentencing consideration of rehabilitation and are imposed to minimise the risk of re-offending.  The protection of the community is served by your rehabilitation and the attendant reduction in recidivism.  The imposition of conditions requiring supervision and judicial supervision address compliance.

31I have had regard to s.44(1) of the Sentencing Act, which allows the court to make a combined term of imprisonment and CCO, if the term of imprisonment to be served, after deduction of any pre-sentence detention, is one year or less.

32On the count of attempted armed robbery and the count of committing the offence of attempted armed robbery whilst on bail, you are sentenced to an aggregate term of imprisonment of 15 months with conviction. I declare that there are 178 days to be reckoned as a period of imprisonment already served under the sentence pursuant to s.18(1) of the Sentencing Act and which is to be deducted administratively.

33In addition to the sentence of imprisonment, I make a community correction order of two years to commence on your release from prison.  Because you must agree before I can release you on a community correction order, I will tell you what the conditions are.  The core conditions attached to every community correction order are that you must report to and receive visits from Corrections Victoria; must notify Corrections Victoria of any change of address or employment; you must not leave Victoria without permission of Corrections Victoria and must comply with any direction given by Corrections Victoria to ensure compliance with the order.

34I will also order that you comply with other conditions during that two years:

35You are to perform 80 hours of unpaid community work.  I also order that you undergo assessment and treatment, including testing, for drug abuse or dependency.  Also, assessment and treatment, including at a residential facility, for withdrawal from or rehabilitation for drug abuse or dependency.  You are to be supervised, monitored or managed as directed by the Secretary.  I also direct that you be monitored by the court, which is called judicial monitoring.  I set a date 15 June 2020 at 9.30 am for you to come back and tell me how you are going with the order.

36Do you agree to being released on a community correction order with those conditions attached, once you have served your term of imprisonment?

37ACCUSED:  Yes.

38HER HONOUR:  If you do not complete any condition of the Community Correction Order,  you will be brought back before me to be re-sentenced, and also be dealt with for not doing what you are ordered to do under the CCO.  Do you understand what will happen if you do not complete any condition of this order?

39ACCUSED:  Yes.

40HER HONOUR:  If your circumstances change you may apply to the court for a variation or cancellation of the order.  In either case, you must notify the Community Corrections office and you should get legal advice.

Section 6AAA declaration

41Pursuant to s.6AAA of the Sentencing Act 1991 (Vic), I declare that had you pleaded not guilty to this charge and been found guilty of it, I would have sentenced to you to a term of imprisonment of 15 months, together with a CCO on the same conditions but for a period of three years to commence on your release from prison.

42Yes, you may be seated.  I understand there is a s.464AZF order that is not opposed.

43MR TOMLINSON:  Correct, Your Honour.

44MS BIRKIN:  Yes, Your Honour.

45HER HONOUR:  Mr Le, I must just inform you that an order will be made for the taking of a forensic sample, and that if at the time of the request, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample, and police may use reasonable force to enable that forensic procedure to be conducted.  Do you understand that?

46ACCUSED:  Yes.

47HER HONOUR:  I make that order.  Mr Tomlinson, would you please confirm or tell the court, Mr Le's residential address for the Community Correction order.

48MR TOMLINSON:  Yes, it'll be [OMITTED] in Chadstone.

49HER HONOUR:  Thank you.  Do let me know if you need time to explain it to Mr Le.

50MR TOMLINSON:  Thank you, Your Honour.

51HER HONOUR:  All right, thank you.  Yes, Mr Le may be removed, thank you.

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