Director of Public Prosecutions v Le

[2024] VCC 280

IN THE COUNTY COURT OF VICTORIA

Revised
(Not) Restricted

Suitable for Publication

AT MELBOURNE CRIMINAL JURISDICTION

CR 23-00751

DIRECTOR OF PUBLIC PROSECUTIONS

v

WILLIAM LE

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JUDGE:	KARAPANAGIOTIDIS
WHEREHELD:	Melbourne
DATEOFHEARING:	8 March 2024
DATEOFSENTENCE:	13 March 2024
CASEMAYBECITEDAS:	DPP v Le
MEDIUMNEUTRALCITATION:	[2024] VCC 280

REASONS FOR SENTENCE

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Subject:  Criminal law – sentencing

Catchwords:  Robbery – possess drug of dependence – summary charge – possess a controlled weapon without lawful excuse.

Legislation Cited: ss 5, 6AAA, 18, 40 of the Sentencing Act 1991 (Vic). Cases Cited: Boulton v The Queen [2014] VSCA 342.

Sentence:Imprisonment for a period of 79 days, community corrections order of 15 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Tan	Office of Public Prosecutions
FortheAccused	Mr M. Kozlowski	Papa Hughes Lawyers

VICTORIAN GOVERNMENT REPORTING SERVICE 235535

HER HONOUR:

1William Le, you have pleaded guilty to one charge of Robbery and one charge of Possess a Drug of Dependence.

2You have also agreed to this Court hearing, and have pleaded guilty, to the summary charge of possessing a controlled weapon without lawful excuse.

Circumstances of the offending

3The full circumstances of your offending are outlined in a document entitled, 'Agreed summary of sentence indication for William Le', dated 13 November 2023, which was marked as Exhibit A at the plea hearing. This constitutes the factual basis upon which I sentence you.

4You were born in February 1998, and at the time of the incident you were 24 years old. There are two co-accused to your offending, Ashrit Saeed, aged 45 years old at the time of the incidents, and Faruk Cansiz, aged 41 years old. The victim is Anastasios Patroungas, who was 32 years old at the time of the incident.

5The prosecution summary contains background to the offending, including reference to an alleged incident on 12 November 2022, where you were present. In very brief summary, on that occasion you were in the company of Mr Saeed and attended with him at various locations, including at 154 Victoria Street, where you were approached by Adam Yelland, Mr Patroungas and Chelsea Campbell.

6You, Mr Saeed and Mr Yelland got into a car together where you remained for some five minutes before Mr Yelland quickly exited the vehicle and you and Mr Saeed unsuccessfully attempted to grab him to keep him inside the vehicle. You and Mr Saeed then exited the vehicle and approached Mr Yelland and a scuffle ensued during which time Mr Yelland was stabbed to the back of the left arm. Mr Saeed is charged in relation to this incident, but you are not.

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Mr Patroungas apparently witnessed the incident, along with others, and called Triple 0.

7On Monday 14th November 2022, the date of your offending, at approximately

4.25 pm, Mr Patroungas was in the vicinity of Victoria Street and Lennox Street in Richmond. You and Mr Saeed were also in the vicinity. Mr Saeed saw Mr Patroungas and approached him. Mr Saeed put his left arm around Mr Patroungas' shoulder and brandished a knife in his right hand, and said, 'Come around the corner or I’m going to put a fucking hole in you'.

8Mr Patroungas recognized Mr Saeed immediately as the male who stabbed Yelland two days before on 12 November 2022. Mr Saeed escorted Mr Patroungas into Lennox Street threatening him by brandishing the knife in his right hand. Whilst this took place, you also appeared and caught up with Mr Saeed and Mr Patroungas. You walked alongside them along Lennox Street. Mr Patroungas saw you and recognised you as ‘Will’.

9As you and Mr Saeed were escorting Mr Patroungas along Lennox Street, Mr Cansiz came from the other direction on an electric scooter and joined the group. You and Mr Saeed continued to escort Mr Patroungas along Lennox Street whilst Mr Cansiz followed behind you and into an unnamed laneway opposite Little Butler Street in Richmond. Throughout this process Mr Saeed kept the knife in his hand, holding it towards Mr Patroungas.

10Mr Saeed said, 'You’re a fucking dog, you guys called the cops the other day, give me everything you’ve got, and you said, 'Hand everything over'. You then moved behind Mr Patroungas and placed him in a chokehold. Mr Saeed used the knife to cut the straps of Mr Patroungas' black Adidas shoulder bag. Whilst in the process of cutting off Mr Patroungas' bag, Mr Saeed caused lacerations to Mr Patroungas' chest and hands. Whilst this was taking place, Mr Cansiz walked out to Lennox Street and down the street before returning to assist you and Mr Saeed by pushing Mr Patroungas further into the alley.

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way away from the main street

11Eventually Mr Saeed cut the bag loose from Mr Patroungas, which contained various belongings as outlined in the opening, took it and passed it to Mr Cansiz. You along with Mr Saeed and Mr Cansiz then started walking south on Lennox Street and Mr Patroungas followed you for a short time as he wanted to get his belongings back, until Mr Saeed threatened him.

12Police were in the vicinity at the time and Mr Patroungas pointed you out. Police then chased you, and you were observed during the course of that chase throwing small bags in the bushes. They followed you into the MOH building and then detained you. They retrieved the bag you had thrown, and you were arrested for possessing a drug of dependence namely heroin, which is the basis of Charge 2.

13At this point police were unaware of the earlier offending. A search was conducted on you which located a silver Leatherman knife in your front left pocket, which is the basis of the summary offence.

14You were conveyed to the Melbourne West Police Station where you were interviewed. Your co-accused managed to evade apprehension at the time but were arrested soon after. Mr Patroungas received multiple lacerations to his hands, arms and torso. He refused to be assessed by paramedics, but photographs were taken of the lacerations to his hands.

15At a previous case conference hearing the court also had the benefit of watching the available CCTV footage which captures some of the incident that day.

Gravity of offending

16The charge of robbery is a serious offence, Mr Le, as indicated by the maximum penalty. Also, there are other features of this offending which make it serious and your moral culpability high, including that: you were in company

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at the time; the offending occurred in public; and you were an active participant in what occurred, including by placing the victim in a chokehold and restraining him while your co-accused obtained his bag. As the prosecution submit you were in very close proximity throughout the lead-up and commission of the robbery. Of course, given the charge you face, the prosecution accept that you were not aware and/or complicit in your co- accused use or possession of the knife or in the injuries inflicted, and you are not to be sentenced with respect to those matters, or on that basis.

17In terms of the earlier incident on 12 November 2022, the prosecution make the point that you were present during the incident and aware of the altercation that had occurred. While that may be so, you were not charged in respect of the alleged incident and therefore are not to be sentenced for it. Also, while I accept that during the offending Mr Saeed said, 'You’re a fucking dog, you guys called the cops the other day’, which is a likely reference to the

12 November incident, I am unable to find that what occurred on 14 November was retaliatory on your part or that you were so motivated.

18In respect of the drug matter I proceed on the basis it is agreed that it was a small quantity, and the weapon located on you was unrelated to the robbery offence (or the offending against Mr Patroungas).

19Your offending occurred in the context of poly substance misuse, including heroin and methamphetamine, which of course though does not excuse your conduct.

20You have 79 days on remand in respect of this matter.

Plea of guilty

21You, Mr Le, entered a plea of guilty after accepting a sentence indication on 5 February 2024 and you were arraigned on 9 February 2024.1

1 It is noted that the accused was re-arraigned on 8 March 2024 when the two indictments were joined as one.

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22While your plea was not entered at the earliest opportunity and there was a committal hearing, it does entitle you to an important sentencing discount. Your plea of guilty represents an acceptance of responsibility and a willingness to facilitate the course of justice. Also, your plea has important utilitarian benefit and the principles in Worboyes continue to have some application. As for remorse, I note here that it is of some concern that in your recent corrections assessment you appeared to deflect from your criminal offending.

23Both prosecution and counsel at the plea hearing relied on their earlier submissions, oral and in writing, that were advanced at the sentence indication hearing2. I have taken all these matters into account.

Personal circumstances

24Your background was outlined by your counsel and is also canvassed in the report of Warren Simmons of 9 December 20233. You are now 26 years of age. You were born in Melbourne and raised in Richmond. Your parents owned and operated a Vietnamese restaurant on Swanston Street, Melbourne. You have four brothers and two sisters. The eldest is 31 years of age and the youngest is approximately five. Your parents separated when you were only young.

25Growing up, because of your parents work commitments, you spent little time with them. During the week you lived at a babysitter's home and visited your parents on the weekends. This arrangement continued even after your parents separated. You did little as a family and you described to Mr Warren being physically disciplined by your father.

2 See Exhibit B and Exhibit 2.

3 Exhibit 1.

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26You attended University High School and completed Year 11 but ended up leaving in Year 12. You started associating with negative peers. You commenced smoking marijuana during this time. Through these same circles you commenced using methamphetamine. Mr Warren opines that there is no doubt that you meet the criteria for an Opiate Use Disorder although moderated by being on Buvidal.

27Throughout your childhood you worked for your father in the restaurant in Swanston Street, initially helping him for free and eventually becoming a paid employee. At 14 you obtained your first independent employment at McDonalds and worked there for some 8 to 10 months. At 16 you then obtained employment as a waiter for a Vietnamese wedding catering company, where you worked for approximately one year. Your escalating drug use and continuing association with negative peers started to disrupt other areas of your life, including your employment.

28In 2016 your father opened a new restaurant and offered you employment. You remained working there until the restaurant closed about a year later. You have not worked since around 2017 and are currently in receipt of Centrelink benefits.

29In the same year, you moved in with your mother, maternal aunt and grandmother and continue to live with them. In 2018 your father moved to Vietnam to join his new partner. As to any other relevant personal matters, you suffer from anaemia which has been an issue for about two years and a blood clot in your left leg. You are currently awaiting an appointment to get an ultrasound.

30You have a relevant prior criminal history and on 29 May 2019 you were sentenced for an attempted armed robbery and received a 15-month jail term in combination with a two-year corrections order. On 4 March 2022 you were dealt with for breaching the order and sentenced to a term of one month

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imprisonment. In respect of this offending, you instruct that you have littler recollection of it as you were significantly affected by Xanax at the time.

Prospects of rehabilitation

31The prosecution submit that your prospects of rehabilitation should be viewed as guarded and greater weight placed on deterrence and community protection. They rely on your prior criminal history; that at the age of 26 you are no longer a youthful offender, and that your drug use and serious offending has not subsided despite significant terms of imprisonment and court mandated supports.

32Your counsel submits that you have reasonable prospects of rehabilitation. He submits that while you have a relevant prior criminal history it is not an ‘overwhelming’ one. Also, you have recently participated in the CISP program and instruct that you are currently drug free. You are motivated to obtain employment or to undertake studies at TAFE in a trade course. You told the Forensicare assessor recently that you would like to complete a welding course and work in that sector.

33In all the circumstances, I consider that there is need for some caution in an assessment of your rehabilitative prospects. I accept that if you address your drug issues and remain drug free there do not appear to be any impediments to you finding work and to living a productive life. Mr Warrens considers that you would benefit from a referral for drug and alcohol counselling with a focus on increasing self-efficacy, harm minimisation and relapse prevention strategies. I note that you have never been diagnosed with a childhood behavioural or developmental disorder, or an acquired brain injury or mental illness.

34You have the ongoing support of your family. You have had a history of employment, even if somewhat erratic. You have recently demonstrated at

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least some capacity to engage with CISP and I take this into account4. Based on the CISP report of 19 December 2023 and the most recent one of 20 February 2024, it is clear that your compliance has been sporadic but the writer does note that you have, 'Demonstrated having capacity to engage with professional services independently, albeit presenting with poor planning and self-reported issues with memory.' The author expresses a concern as to your motivations and ‘treatment readiness’

35I also note that currently you are adherent with prescribed three weekly, long- acting injectable buprenorphine or Buvidal. This medication apparently assists you to not crave illicit substances and has helped your emotional state. You attend at Co-health ‘Inner Space’ in Collingwood to receive your injections.

Sentencing purposes

36The purposes, Mr Le, for which sentences may be imposed are just punishment, general deterrence, specific deterrence, rehabilitation, denunciation and protection of the community. You are not a young offender but I have also taken into account that you are still relatively youthful and that your rehabilitation, to the extent possible, should continue to be fostered.

37I take into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991, where relevant in your case. I have considered the general landscape for sentencing in charges of robbery in particular. I also take into account the maximum sentences that apply to all charges and the principles of parsimony, proportionality and totality.

38I note here that your co-accused have not yet been dealt with and both have sentence indication hearings listed before this court in the near future.

39The prosecution submit that a head sentence with a non-parole period is the appropriate disposition. Your counsel submits that a combination sentence is

4 Exhibit 3.

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appropriate. At the sentence indication hearing, I indicated to you that on a plea of guilty I would likely impose a combination sentence and one that did not see your return to custody.

40I had you assessed for a community corrections order (CCO) and you were assessed as suitable, with conditions. You engaged in a forthcoming manner and indicated a willingness to comply with such an order. It was noted that you reported having anaemia which may inhibit your ability to complete unpaid community work. It is noted that on receipt of appropriate documentation, the service is capable of allocating an appropriate community work site.

41After careful consideration of your case, Mr Le, I do consider that a combination sentence is the just and appropriate sentence in your case.

42As the court in the case of Boulton stated:

'The availability of the combination sentence option adds to the flexibility of the CCO regime. It means that, even in cases of objectively grave criminal conduct, the court may conclude that all of the purposes of the sentence can be served by a short term of imprisonment coupled with a CCO of lengthy duration, with conditions tailored to the offender's circumstances and the causes of the offending'⁵.

43In your case I have concluded that the punitive, deterrent, denunciatory and rehabilitative purposes of sentencing can be sufficiently achieved by a short term of imprisonment, coupled with an appropriately fashioned community corrections order.

Sentence

44Mr Le, if you could please stand? Synthesising all matters, you are convicted and sentenced as follows. On Charge 1 – robbery – you are convicted and sentenced to 79 days' imprisonment plus a community corrections order of 15 months.

5 Boulton v The Queen [2014] VSCA 342.

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45On Charge 2 you are convicted and sentenced to a community corrections order of 15 months. On the summary charge you are convicted and sentenced to a community corrections order of 15 months, and I order pursuant to s.40 of the Sentencing Act that that is the one order. So the end result, Mr Le, is that you are sentenced to 79 days, and a community corrections order of 15 months. Do you understand?

46The conditions of that order are as follows. Supervision, treatment in relation to drugs, programs and I am ordering that you undertake and complete 150 hours of community work, and I offset 50 hours against treatment.

47In setting the conditions of the corrections order, I have been guided by the recommendations of Corrections and Forensicare, who have not endorsed the recommendation for judicial monitoring or mental health treatment, so that has assisted me and guided me on the conditions to impose.

48Pursuant to s18 I declare that you have served 79 days' imprisonment as presentence detention. Pursuant to s6AAA I would have sentenced you had you not entered a plea of guilty to a combination sentence of some nine months' imprisonment, combined with a lengthy community corrections order. You can take a seat.

49Counsel, ancillary orders?

50MR TAN: No ancillary orders, Your Honour.

51HER HONOUR: Mr Tan, have a look at the order, it seems to reflect what I have just indicated. Counsel, I will sign this and ensure that you all have a copy, in particular Mr Le has a copy. We will make copies of the signed copies for you now and they will also be emailed to the parties.

52Mr Le, just stand up again please. Mr Le, the expectation of this court is you are on a 15 month order. You have been working with CISP for a while now and your attendance has been sporadic, you have been trying, but you have

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not consistently been attending.

53You must comply with the terms of that order. I have taken into account all relevant matters in structuring it. Do you understand? You must comply with the terms of the order. If you do not then you are at real risk of breaching it and returning back to the court where you could potentially be re-sentenced on these matters. Do you understand?

54OFFENDER: Yes, Your Honour.

55HER HONOUR: Counsel, thank you, we will adjourn.

- - -

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