Director of Public Prosecutions v Le

[2022] VCC 667

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01855

DIRECTOR OF PUBLIC PROSECUTIONS

v

TU ANH LE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	12 May 2022
DATE OF SENTENCE:	12 May 2022
CASE MAY BE CITED AS:	DPP v Le
MEDIUM NEUTRAL CITATION:	[2022] VCC 667

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Hancock
For the Accused	Mr P. Dunn QC

HIS HONOUR:

1Tu Anh Le, you have pleaded guilty to one charge of causing injury recklessly, one charge of possessing a handgun, one charge of possessing a silencer and two charges of theft.  Those crimes carry maximum penalties of five years, four years, 10 years and 10 years respectively.

2You also pleaded guilty on the same indictment to one count of possessing a drug of dependence, namely cannabis, of a very small quantity.  I will convict and discharge on that count.

3There is also one uplifted matter of possession of a weapon, and I will be giving a short concurrent gaol sentence on that.

4You are now 45 years of age and the offending occurred some years ago.  There has clearly been a delay because of COVID.  I accept that you have pleaded guilty via settled indictment and must get the benefit of that.  I think remorse would be fairly problematic in this situation, but you certainly get the utilitarian benefit of that plea of guilty, particularly in these times of COVID and bearing in mind the decision in Worboyes.  There is also a circumstance where a trial could have been conducted on the basis of identification, you may have had some chance, but, sensibly, you have pleaded guilty and you have furthered the course of justice effectively, in doing so.

5A summary of the offending is that you had known a Mr Minh Liu in prison.  You had been in gaol yourself for a number of years and eventually ran into Mr Minh Liu again.  I am simply going to operate off the Crown opening and your counsel has put other matters on your behalf which I am taking into account because there is no real argument about the appropriate disposition.  Ultimately, I do not see why I should be making any findings where I do not really know what happened at all.

6But, in any event, you, having met Mr Liu, needed money and he had loaned you a thousand dollars.  In response, you and Mr Liu went and visited a man called Mr Chiang on one occasion and then again on another.

7On the second occasion you were in a vehicle with your co-accused, Mr Liu, and you picked up Mr Chiang, the victim in this matter.  He was taken to another house which has not been identified by the victim.  The victim was unable to remember the address of the house or describe it in any way.  It would appear to be somewhere past Sunshine.

8He walked into the house with the two of you and apparently there were about seven or eight other people in there talking in Vietnamese.  You and Mr Liu began assaulting the victim and he was punched and slapped, which is part of Charge 1, causing injury recklessly.

9You left the room briefly before returning with a gun and it is clearly, in my view, a sawn-off .22; it could not have been a shotgun.  You put two bullets into the gun, put a silencer on it and then handed the gun to Mr Liu.  Mr Liu then taunted and threatened the victim, making comments like, “Do you want to die?”, et cetera.  That gives rise to Charges 2 and 3, possession of a firearm. 

10It is a situation where I cannot sentence you on matters that I am not sure of.  The only thing I can find beyond reasonable doubt here is that a gun was given by you to Mr Liu.  Where that gun came from, I have no idea.  Whether it was already in the house, I have no idea.  Accordingly, the possession of that gun, and of the silencer and the loading of the gun, must have all occurred within a very short period of time.  In any way, you must have had a rough idea of what Mr Liu was going to do or may well do.

11Mr Liu pointed the gun at Mr Chiang's left thigh and pulled the trigger.  A single bullet entered his thigh and exited through the back of his left leg. I have seen photographs of that wound.  He was then struck with the gun by Mr Liu.  That is also part of the charge of causing injury recklessly, that being the gunshot wound to the leg.

12Later on, when assessed by Dr Parker, the injuries included bruising to the left temple side of the head, abrasions to the top of the head, bruising to the anterior neck, swelling underneath the chin and, of course, the gunshot wound.

13Mr Chiang remained in the house for a number of hours after the shooting and, apparently, you put a dressing on his leg and gave him water.  You took his mobile phone and, ultimately, he was driven to a hospital by others and left there. 

14That is a very truncated description of what took place and as I have indicated during the course of the plea, that is about the basics and all I could really operate on.  I have got no idea what this was really all about and I can only sentence you on what is actually before me.

15In any event, police became involved.  You had driven the victim's vehicle and you were seen at a service station, taking it through a carwash.  Mr Dunn tells me that was to keep it “spic and span” in his submissions.  My suspicion is fingerprints, but, in any event, no fingerprints were found on the car.

16Sometime later, a couple of months, police raided you and you were found in possession of that very small amount of Cannabis that I have referred to above and in your own motor vehicle a knife was found.  That gives rise to the summary charge of possessing a controlled weapon. 

17There are various other matters that you have not been charged for.  I do not think I need to go through all the forensics involved and, really, what you have come down to be sentenced for, you do have very significant prior convictions for and I will come to those again when I go through Mr Dunn's submissions on your behalf.

18This offending has to be regarded as serious. Whenever there is a gun and a silencer involved, it is serious, in my view.  Of course, the application of general, and in your situation, probably specific deterrents must also denounce the use of the firearm and taking everything into account, an appropriate punishment.

19I had read to me, by the learned Prosecutor, the Victim Impact Statement of Mr Chiang, which describes the pain, the fear and the ongoing psychological damage that this offending has caused and I, of course, take that into account in this sentencing process.

20Your co-accused received a significant sentence and, having looked at that, it is clear that the charges were different and the circumstances were different.  So it seems to me, and there is no argument from the Crown, that parity plays no real part at all in this sentencing process.

21That being so, the submission on your behalf was that a prison sentence and a Community Corrections Order were open.  The Crown do not disavow that proposition. 

22Importantly, after being arrested for this matter, because of your priors, I suspect, you were in custody for a period of 447 days.  I take into account that a significant part of that period of time in gaol would have been done under COVID circumstances and I am not to speculate on what benefit you may have got from that, in terms of management time, but I am sure there would have been some.

23Importantly, again, as I understand the situation since you have been released on bail, and it has been quite stringent bail (there has been a curfew, reporting just by phone), but you have obeyed that bail, there has been no offending since and that gives me hope that you have, to a large extent, rehabilitated, and this is just a one‑off from a person who had been addicted to Heroin for a long time, spent a long time in gaol and fell in with an old consort.

24A very helpful chronology was given to me by your counsel, Mr Dunn, and he elaborated on that, orally.  I will make the Crown's Submissions Exhibit B.

25EXHIBIT B - Crown submissions.

26The circumstances of your background are, and I will do this in fairly brief summary, that you were born in Vietnam, in Saigon.  Your family came to Australia as refugees and your father, indeed, died whilst you were in custody, from what I can work out, at the age of 98.

27There were six siblings.  You came here, to Collingwood.  You went to Collingwood Tech, lived in the high-rise flats in Collingwood and then when you were about 18 years old, the family moved to St Albans, where you had some difficulties.  But you ended up completing Year 12 in Sunshine High School.  After that, you worked as a roofer, and you started a roofing business with another person.

28By the age of 18, unfortunately, you had commenced using Heroin, chasing the dragons, as Mr Dunn put it to me.  But, a year after that, you had been in a relationship with a young Spanish girl, I am told, and have a daughter who has come to Court with you today.  I know, at this stage, it is clear that throughout this process you have always had good family support.  Your partner is still with you, your sister is here and your daughter has come along, all to support you.

29At the age of 21 you were using heroin on weekends, and you commenced working in a factory in Richmond.  It was a Dye factory and when that factory closed down, you started using Heroin more heavily.  That led to a separation from your partner and then the trouble really began.

30For about 12 months or so after that, as I understand it, you worked in a factory, or various factories and lived with your mother in St Albans.  You were using heroin again, as I understand it, and around 2003 and by 2004, you were in serious bother.

31In using heroin, your offending escalated dramatically.  You were doing armed robberies on 7‑Elevens and you were trafficking in drugs and, ultimately, in 2005, you were given a sentence of 10 years, with a minimum term of six years, for all that offending.  After that, you have spent something in the order of a decade in prison.

32In February of 2006, you received six months concurrent.  Indeed, it was during the course of that sentence that you met Mr Minh Liu, your co‑accused here.  You were let out of prison and on parole for four years and had very little hope, I suspect, from that period on.  That was in 2012.

33You were, at some stage, placed on an ICA.  You were charged with that and some very old matters, and it does not really take us much further in this process.  When you were aged 37, you were fined $1,500 in the Melbourne Magistrates Court for a charge of reckless injury, road rage.  That offence, that $1,500 fine, caused the parole board to reclaim you and you went back and did another two years in prison.

34In May 2016, you, having completed that period, you got out with another parole period, still owing 12 months. I understand that is now gone.  You lived in a rented house.  You worked as a forklift driver and it was after that, that you reconnected with Minh Liu after a random meeting.  In 2017, 2018 and 2019, you were mostly living with your partner.  You were working.  You were not in trouble, but you were paying a fairly high rent. 

35About seven or eight months before the matter for which you are before this Court, you were injured on your knee, but it was difficult circumstances with your employment and there was some delays in terms of getting surgery for that injury that you had received.

36In the end, as I understand it, you were on weekly payments of $400 and could not make ends meet and that is when you asked Mr Liu for the loan.  It is also around about that period of time that you were asked by Mr Liu to assist him, and I do not think that I need to go through all the instructions you have given your counsel about what took place at the house where the offending occurred.  I have operated off the Crown opening, which you have pleaded guilty to, and I think that is the simplest way of going about it. 

37As I have indicated, it is a serious business.  I do accept the gun was a .22.  One has to be careful not to escalate the injury because it was a firearm that was indicated during the course of the plea.  Had it been a carving knife, the consequences may have been very, very different indeed.  But be that as it may, that is what you have to be sentenced for.

38The prospects of your re‑offending, I would assess, as being medium.  Depending on the use of heroin, I suspect.  The prospects of your rehabilitation are, in fact, really, up to you.  I am told from the Bar table that you have not used heroin for a long time. 

39I notice you have been out now for 18 months, with no re‑offending that we know about.  You have got work lined up.  You have got good family support and you have got accommodation.  It is a situation that I will leave it up to you.

40The use of and possession of firearms in this sort of situation, with a silencer, is serious offending.  As indicated during the course of the Plea, it is always gaol where I am concerned.  In fact, it outweighs the injury, in my view. 

41Be all that as it may, in taking everything into account on your behalf and having heard the agreed helpful submissions of both the defence and the prosecution, it is my view that a custodial sentence is appropriate.  And it is not a custodial sentence which is enough, but it seems to me that there should be a significant fine attached on top of that, which you can work off as CCO hours if you want to.  Just to indicate that it is a serious offence indeed and is not just being swept under the carpet.

42In any event, as I think I have said, Charge 6, possession of cannabis, I will convict and discharge.  For the Summary Charge, I sentence you to seven days concurrent.  Any driver's licence held is hereby suspended for one day on Charge 5.

43On Charges 1 to 5, you are sentenced to be imprisoned for an aggregate of 447 days.  I direct that 447 days be reckoned as having been served under this sentence.

44On Charges 1 to 5, you are also convicted to an aggregate fine of $2,000.

45Pursuant to s6AAA of the Sentencing Act I say that, but for your plea of guilty I would have sentenced you to prison for a period of three years imprisonment with a minimum term of two years. I point out, as is frequently the case with these s6AAAs, there is no relationship to what would have happened if a trial had taken place, so they are meaningless. But in any event, I am supposed to do, I will say, three with a two.

46All right, I direct 447 days of Pre-Sentence Detention be reckoned as served.

47Any other orders I need to make, gents?

48MR DUNN:  Only the forfeiture and disposal orders, your Honour.

49HIS HONOUR:  Well, I will make those in absence, notionally at this stage, and when they come through I will sign them and send a copy to each of the parties and at that stage I will re‑open the order and add them to it.

50COUNSEL:  Thank you, Your Honour.

51HIS HONOUR:  Nothing else we need to?

52MR DUNN:  Nothing from our side, sir.

53HIS HONOUR:  Okay.  Thanks for that, gentlemen.  Thanks, Mr Dunn.

54MR DUNN:  My pleasure, Your Honour.

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