Director of Public Prosecutions v Le
[2018] VSC 576
•3 October 2018 (First Revision on 7 November 2018)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0335
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| NGHI THANH LE | Accused |
---
JUDGE: | EMERTON JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 September 2018 |
DATE OF SENTENCE: | 3 October 2018 (First Revision on 7 November 2018) |
CASE MAY BE CITED AS: | DPP v Le |
MEDIUM NEUTRAL CITATION: | [2018] VSC 576 |
---
CRIMINAL LAW – Sentence – Fourteen counts of Reckless Conduct Endangering Life – Possess a Firearm whilst Prohibited – Prisoner fired at least five shots at 14 police officers attempting to forcibly enter his house before dawn – Prisoner did not know intruders were police officers – No aggravation – Guilty plea – Limited prior criminal history – Reasonable prospects of rehabilitation – Sentence of imprisonment – Base sentence of three years imprisonment on first count of Reckless Conduct Endangering Life with three months cumulation for each of nine further counts – Total effective sentence of five years and three months.
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M Mahady | Office of Public Prosecutions |
| For the Accused | Mr J Hannebery | Haines & Polites |
HER HONOUR:
Nghi Thanh Le, you have pleaded guilty to 14 charges of Conduct Endangering Life contrary to s 22 of the Crimes Act 1958 and one charge of Possessing a Firearm Whilst Prohibited contrary to s 5(1) of the Firearms Act 1996.
The charges against you arise from a single incident.
Circumstances of offending
Very early on the morning of 27 February 2017, members of the Clandestine Laboratory Squad of Victoria Police endeavoured to execute a warrant issued pursuant to the Drugs, Poisons and Controlled Substances Act1981 at a house owned and occupied by you at 70 Levenia Street, Sunshine.
The police members in question first assembled at the Brimbank Shopping Centre to confirm the position of each member of the entry team and their ‘order in the stack’, that is, the order in which they would approach the property, the duties assigned to each member, and the position each would take up outside the house. The police members were dressed in Clandestine Laboratory Squad overalls displaying the Victoria Police logo, bulletproof vests, helmets and gas masks. They carried .40 calibre Smith and Wesson handguns.
In the order in the stack, the police members were Detective Senior Constable Glenn Kroezen, Detective Senior Constable Peter Clarke, Detective Senior Constable David Kerr, Detective Senior Constable Brendan Riddell, Detective Sergeant Michael Kugler, Detective Senior Constable Jeremy Renfrey, Detective Sergeant David Measham, Detective Senior Constable Damien Dean, Detective Senior Constable Grant Farley, Detective Sergeant Craig Poynder, Detective Senior Constable Natasha Lonsdale, Detective Senior Constable Joshua Down, Acting Sergeant Damien Simmons and Senior Constable Matthew Bettiol.
Each of Charges 1 to 14 relates to conduct endangering the life of one of these police members.
Having determined who would do what, the police members proceeded to the property, parked their vehicles nearby and approached the house on foot in single file, climbing over a small dividing fence into the front yard of the house. From there, most of the members moved onto the front porch that ran the length of the front of the house. The porch was initially in darkness, but as the first members approached the front door of the house, which was centrally located, the porch light came on. Members started to yell, ‘Police, police, don’t move’. A police vehicle was brought in and parked across the driveway, with its red and blue lights flashing and its siren activated.
Police members immediately took steps to gain entry to the house through the front door and through a window to the left of the front door. The front wire security door and the main door itself had been reinforced and the window was covered by a metal shutter.
Members Clarke and Kerr attempted to force entry at the front door using a hux and a ram to remove the wire security door. They forced the security door open and Kerr began hitting the main door, which was reinforced with metal panels on the inside. While Kerr was hitting the door, he heard muffled gun shots from inside the house and saw fragments coming from the door. He felt something hit him on the right side of the jaw. He dropped the ram and yelled at Clarke that someone was shooting at them. They retreated.
At the window, Measham and Farley had begun to remove the metal shutter that protected the window. The frame of the shutter gave way and the bottom half of the shutter was removed exposing half of the window. The right side of the sliding window was already open.
Detective Sergeant Kugler instructed members to enter the house through the window. As the first member, Renfrey, started to climb through the window, Kugler saw you standing in the hallway holding a handgun, aiming it towards the front door. He heard a number of loud ‘cracks’ and called out, ‘shots fired, shots fired’. Kroezen, who had been tasked to provide cover for those breaking in, also heard what sounded like gun fire and noticed that Kerr and Clarke were withdrawing from the front of the house. He pulled Renfrey back out the window. Renfrey felt a ‘really fast flick’ on the back of his vest as he retreated and Measham, who was still at the window holding the hux, felt a sharp pain to his right arm just above the elbow. Dean observed two bullet holes in the window about one metre from where he was standing on the porch. Poynder felt a knock to his left hip bone.
In response to the gunfire, Kroezen rolled in front of the window, from where he could see you in the room holding a handgun. You were moving out of the room back towards the hallway. Kroezen fired two shots at you, at which point you retreated down the hallway and out of sight.
You were able to avoid being arrested on the spot by leaving the house through the back door and scaling neighbouring fences. However, you gave yourself up to police through your lawyer at approximately 3.30pm that day. Your female friend, who had been with you at the house during the raid and had run away, came out from under the house at about 5.00pm in the presence of police.
You were interviewed by police that day. You told them that you were in the kitchen at the rear of the house when you heard some banging on the front door. You saw someone trying to break in through the window. You ran to the bedroom to get your gun and fired a few shots, ‘just in the air’. You said you ‘let one or two off’ but they [the persons trying to break in] did not hear, so you had to fire one or two more. You did not see who it was because there was a torch shining at you. You were not really aiming, just shooting. You did not want anyone to get hurt – it was more like a deterrent. You said you were not familiar with using a gun, so you did not know where you shot. There was extra ammunition in the house but you did not know where. You realised there were sirens after the shooting and you did not hear anyone yelling ‘police, police’ because an ice-making machine and a fan were running in the kitchen.
You said that when you saw someone breaking in through the front door and then through the window, you thought you heard gun shots and that someone was breaking into your house. You were scared for your life and the life of your friend and you did not want them to come in.
A search of the crime scene found five .22 calibre bullets, one just outside the front door, one on the hallway floor, one on the outside window ledge, one on the porch near the porch railing and one between the cushions of the couch in the front room. There was a bullet hole in the hallway cabinet, a bullet hole in the front door about 152 centimetres above floor level, two bullet holes in the front left window and damage to the front left window frame. One of the bullets fired towards the window had ricocheted back to lodge between the cushions on the lounge situated against the back wall of the front room.
In summary, two bullets were fired towards the front door, although only one of them hit and penetrated the door, the other hitting and passing through a cupboard that had been placed in the middle of the hallway; and at least three bullets were fired towards the window, two of which went through the window and one of which ricocheted back into the room. The bullet that penetrated the front door and the bullets that went through the window were at approximately chest height.
According to the ballistics report, the trajectory of the bullet that went through the front door was directly along the hallway, but you could have been standing at any point along the hallway, including adjacent to the door of the front room. This bullet must have hit something or someone on the outside of the front door so as to come to rest on the door step. As for the three bullets fired towards the window, you must have been standing somewhere between the doorway to the front room and the window when you fired the gun. The two bullets that passed through the window ended up on the porch floor and the windowsill respectively. According to the ballistics analysis, they must have come into contact with something or someone outside the window.
A six shot .22 calibre revolver was found hidden beneath the floor of the middle bedroom of the house. It contained six empty cartridge cases, three of which exhibited two strike impressions of similar force, indicating that pressure was applied to the trigger three more times after all six cartridges had been discharged.
Four police members sustained minor physical injuries:
(a) Kerr received a small abrasion to the right cheek that could have been caused by a projectile;
(b) Poynder reported tenderness over the left hip but showed no visible injury;
(c) Renfrey received a faint red mark (likely to be bruising) in the middle of his back; and
(d) Measham received a circular bruise just above the right elbow with a circular graze abrasion that was possibly caused by a projectile in the presence of protective clothing.
You have pleaded guilty to fourteen counts of recklessly endangering life, each charge referable to the life of one of the fourteen police members who approached the house on the morning in question with the intention of gaining entry. Kerr and Clarke were exposed to the first shots fired and were directly in the line of fire outside the front door. The members on the porch in front of the window were Kroezen, Renfrey, Riddell, Measham, Dean, Farley, Down and Poynder. Members Kugler and Lonsdale were slightly to one side. Kugler was giving orders; Lonsdale was at the bottom of the porch steps preparing to move up to gain entry. Members Simmons and Bettiol were positioned near the boundary fence.
You have also pleaded guilty to possessing a firearm while prohibited. You were a prohibited person because you were convicted and fined $800 on 24 February 2017 for possessing a drug of dependence, which is an indictable offence.
Gravity of the offending
Conduct endangering life
Charges 1 to 14 are serious examples of the offence of reckless conduct endangering life. You discharged a handgun repeatedly in the direction of persons you thought were trying to enter your house. You fired at least five shots. You did not simply fire at the ceiling or into the walls. At least three of the bullets that you fired passed through objects close to police members. It was a matter of good fortune that no-one was hit in the chest or head and that none of the physical injuries suffered by the four officers were serious.
However, I accept that there was little in the way of premeditation. The period between your becoming aware of the presence of banging and commotion at the front of the house and discharging the firearm was probably no more than a few seconds, that is, about as long as it took you to retrieve the gun from the second bedroom and run to the hallway. Your offending was carried out over an equally short period of time. You emptied the barrel and ran. There is no evidence of any attempt by you to reload the firearm.
The first 14 Charges therefore relate to a single incident of relatively short duration with five shots fired in rapid succession endangering the lives of 14 people.
The handgun that you discharged was a small calibre firearm. You fired it from inside premises that were heavily fortified, with metal panels covering the inside of the front door and metal shutters covering the front windows, and there were obstacles in the house between you and some of the police members in question. Your offending did not involve the use of a powerful weapon in circumstances where you had clean lines of sight towards any of the police members. However, discharging the handgun in the manner described was clearly capable of causing death, as is acknowledged by your plea.
Your counsel submitted, and I accept, that not all of the police officers were exposed to the same level of risk of death. Those at the front door and those in front of the window on the porch were placed at greater risk of death than those who were waiting on the side or remained on the boundary of the property. Nonetheless, I consider that all 14 of the offences are serious examples of the offence of reckless conduct endangering life.
Firearm offence
I consider the firearm offence to be a reasonably serious example of the offence in question, even though you had only become a prohibited person three days earlier as a result of your conviction for an indictable offence. You had a handgun in the house, it was loaded, and you were willing to and did use it, on the most favourable version of events for you, against a group of people you could not identify.
Aggravation
The prosecution submits that you knew the persons attempting to gain entry to the house were police members and that this is an aggravating feature of the offending in Charges 1 to 14. As the police members attempted entry to the house, a police vehicle was parked across the driveway with its red and blue lights flashing and its siren activated. As the attempt at entry began, a number of police members shouted repeatedly, ‘police, police, don’t move’.
In your record of interview, you denied hearing the warning or recognising the persons attempting to enter as police members. You said that you did not know they were police officers until after you had finished shooting. You thought that they were people breaking into the house who might harm you and your friend.
In order for aggravating circumstances to be established, the Court must be satisfied beyond reasonable doubt that you were aware that the persons seeking to gain entry to the house were police officers. Having regard to your statements that you were unaware at the time that police members were involved, evidence capable of excluding as a reasonable possibility that your state of mind was as you described is required. The test is a subjective one. In this context, I take into account that you said in your police interview that you had consumed drugs.
Given the speed at which events unfolded and were concluded, the relevant time for assessing your state of mind is when you started shooting. You were at the back of the house in the kitchen when you first became aware of banging at the front of the house. You ran to find the gun in a bedroom. Your first shots were fired from the hallway towards the front door, which was completely covered with metal sheeting. You could not see the officers on the other side of the door. They could not see you. One of them heard gun shots which he described as ‘muffled’. At the same time, the police officers were using heavy implements to break down window shutters. You fired three shots towards the window in quick succession. The ambient noise was apparently such that the police member who was trying to get through the window was oblivious to your shots. You also said that you were blinded by a bright light shining in at you, which I take to be a police torch. This would have impeded your view of those seeking to enter.
I find it plausible that you did not see the police uniforms. It is also a reasonable possibility that you did not hear the warning shouts in the general commotion that must have prevailed. Although it is less likely that you did not hear the police siren or notice the flashing blue and red lights in the driveway, this possibility cannot be excluded, especially given the short timeframe in which the shooting took place.
Furthermore, in light of the activities allegedly being carried out in the house, your account of who you thought was trying to break in is plausible. Although by your pleas of guilty you have eschewed self-defence as a reason for your conduct, I cannot exclude the possibility that you believed that you were firing on intruders to deter them from entering the house.
In my view, aggravating circumstances are not established to the requisite standard.
Victim Impact
A victim impact statement has been provided by Detective Senior Constable Joshua Down dated 22 August 2018.
Detective Senior Constable Down was one of the police members in front of the window. He states that he received a wound to his shin that took about six months to fully heal, but that the biggest injury that he suffered as a result of your conduct was psychological. He witnessed his colleagues being shot at, and was powerless to help them. He thought he was going to die and just had to hope that the bullets being fired at him from a short distance away were going to miss, as there was nothing he could do about them. The incident replayed in his mind, and his anxiety levels stopped him from sleeping. He found it hard to do his job, as for about a month after the incident he felt uneasy going to addresses and approaching front doors. Over the past 12 months, Detective Senior Constable Down has become withdrawn and feels much more isolated outside of work than previously. Although he loves his job, he has a young family and the danger to which he was exposed has caused him to question his career.
Personal circumstances
You are 35 years old. You are the second youngest of seven children. You were born in Vietnam and came to Australia in 1988 as a five year old with your mother and one sister. You came as refugees ahead of other members of your family, settling in Brisbane with an aunt.
Your father and other siblings arrived in Australia subsequently and you all moved to Melbourne in 1990. Your mother raised you and your six siblings with very little money. She worked washing dishes, on farms, and making clothes. Your family always struggled financially.
You attended primary school in St Albans and then went to St Albans Secondary College. In Year 11, you ran into trouble. You were having problems at home and getting into fights outside of home. You left school. Your difficulties at home were such that you were in foster care for a time. Nonetheless, you returned to school and completed your VCE in 2002.
You have what appears to be a patchy and limited employment history. I was told that you have worked for a marble design company making benchtops, in factory roles and unloading containers. However, your counsel was unable to inform me how long you held any of these jobs.
You are single and have no children. I was told that you still have a relationship with your parents and strong ties to your siblings and extended family.
No other information about your background or circumstances was provided. It is unclear to me how you have spent the bulk of your time since leaving school almost 20 years ago.
Prior history
You have a limited criminal history.
Your first offending took place when you were having problems in Year 11 and you came under the influence of older boys. It involved drugs, being in possession of the proceeds of crime and vehicle theft.
In 2010 you received a fine for obtaining financial advantage by deception and in 2014 you were convicted of cultivating cannabis for which you were placed on a Community Correction Order for 18 months. You apparently completed the Community Correction Order successfully, as there is no record of any breach.
Most recently, you were convicted in the County Court of Victoria for possessing a drug of dependence. It is that conviction that caused you to become a person who was prohibited from possessing a firearm.
None of your previous offending involved violence. You have never previously been sentenced to a term of imprisonment.
Mitigation
Plea of Guilty
You made an offer to plead guilty to the charges on the current indictment on 23 July 2018, some days after the scheduled date for the commencement of the trial. You were initially charged with more serious offences, and the Crown did not abandon these charges until after the original trial date. You had made offers on earlier occasions to plead to charges that would have covered all of the conduct that is the subject of the present indictment. At no stage have you contested the fact that you committed the acts giving rise to Charges 1 to 14.
As a result, even though there was a contested committal, I give you the full benefit your plea on the basis that it was made at the earliest opportunity.
Remorse
Your counsel submitted that your remorse can be inferred from your plea of guilty, from your early and fulsome admissions and from the fact that you handed yourself in to police on the day of your offending.
I accept that these are matters from which I can infer that you have some remorse and I do so.
Rehabilitation
Your counsel submitted that I should find that you have at least reasonable prospects of rehabilitation based on your plea of guilty and your remorse, your limited prior history and your family support.
You have also shown a willingness to undertake rehabilitation programs while on remand, and you have undertaken a number of such programs, including a drug and alcohol rehabilitation program.
However, you are 35 years old and do not appear to have led a mature adult life to this point in time. There is no evidence of any significant contributions made by you to the community. What assistance your family can give you to rehabilitate and reintegrate in the community was not spelled out on the plea. A large number of people described as your relatives were in court on the plea, but little or nothing was said about their place or influence in your life. Furthermore, so little was said about your employment history since leaving school many years ago that I could not assume that you have a work ethic or that employment has ever provided stability and purpose in your life.
In these circumstances, it is difficult to know what to make of your limited prior criminal history. Nonetheless, I give it some weight when considering your prospects of rehabilitation.
Having regard to all of these considerations, while I do not conclude that your prospects of rehabilitation are poor, I consider them to be just reasonable.
Other sentencing considerations
Your counsel conceded that general deterrence is an important sentencing consideration in this case. I agree. So is denunciation and punishment. Discharging a firearm in the direction of people, even if you felt under threat, is dangerous and entirely unacceptable conduct. It represents a significant threat to the safety of the community.
In your case, I consider that specific deterrence is also important. Although you do not have a lengthy criminal history, you have virtually no employment history and have had previous encounters with the law, for the most part involving drugs. There appears to be an escalation in your criminality. The Court must send a message to you as well as to others that the conduct in which you have engaged will not be tolerated.
Your breach of the Firearms Act also requires denunciation and punishment. General and specific deterrence are important considerations here too.
Sentence
I have to sentence you on 14 charges arising from a single incident, and a further charge also related to that incident. You must be sentenced on each charge. A term of imprisonment is appropriate on each charge.
The maximum sentence for reckless conduct endangering life contrary to s 22 of the Crimes Act is 10 years imprisonment. The maximum sentence for being in possession of a firearm while a prohibited person contrary to s 5(1) of the Firearms Act is 1200 penalty units or ten years’ imprisonment.
I have found the conduct on each Charges 1 to 14 to be a serious example of such conduct. The firearms charge is also serious, notwithstanding that you had only very recently become a prohibited person for the purposes of the provision.
I consider your culpability and degree of responsibility for your offending to be high.
Your counsel conceded that some cumulation of the sentences is appropriate, but submitted that the amount of cumulation on the charges of reckless conduct endangering life should reflect the different levels of risk to which the victims were subjected and that as the conduct in Charge 15 is largely subsumed in the other fourteen charges, there should be no cumulation in relation to Charge 15. He submitted that cumulation must be moderated to ensure that the total effective sentence properly reflects the degree of criminality of conduct that in substance comprises a single incident.
Having regard to the number of charges arising from the same incident, I must settle on a total effective sentence that is fair and properly reflects the gravity of your offending and your moral culpability. I accept that it is appropriate to consider the level of risk to which the individual officers were exposed when considering cumulation of sentences.
Taking into account the gravity of your offending and moral culpability, your early plea, remorse and prospects of rehabilitation, along with the need to strongly denounce and punish your conduct and for general and specific deterrence, I sentence you as follows.
On each of Charges 1 to 14, I sentence you to a term of imprisonment of three years.
On Charge 15, I sentence you to imprisonment for twelve months.
I declare that Charge 1 is the base offence. Three months of each of the sentences of imprisonment on Charges 2, 3, 4, 5, 6, 7, 9, 10, and 12 are to be cumulative on Charge 1 and on each other. The terms of imprisonment for Charges 8, 11, 13, 14 and 15 are to be served concurrently with the sentence for the base offence.
This results in a total effective sentence of five years and three months.
I order that you serve a minimum of four years before being eligible for parole.
I declare that, but for your plea of guilty, I would have sentenced you to a term of imprisonment of seven years, with a non-parole period of five years.
I declare that the period of pre-sentence detention reckoned as having been served is 583 days up to but not including today and direct that this declaration and the period be entered into the records of the Court.
0
0