Director of Public Prosecutions v Le and Vo
[2014] VCC 1103
•25 June 2014
| IN THE COUNTY COURT OF VICTORIA\ | Revised Not Restricted Suitable for Publication |
CR -14-00095
CR -14-00096
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THIEN LE ROSE VO |
---
| JUDGE: | HER HONOUR JUDGE DAVIS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 June 2014 |
| DATE OF SENTENCE: | 25 June 2014 |
| CASE MAY BE CITED AS: | DPP v Le & Vo |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 1103 |
REASONS FOR SENTENCE
---Subject: Criminal – plea – sentence
Catchwords: Aggravated burglary - armed robbery – making threats to kill – intentionally cause injury – intentionally cause serious injury – unlawful assault – youthful offender – parity
Legislation Cited: Crimes Act1958 (Vic) – Sentencing Act 1991 (Vic)
Sentence: Ms Vo – 18months in Youth Justice Detention
Mr Le – Total Effective Sentence of 9 years and 3 months with non- parole period of 6 years---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J McWilliams | OPP |
| For Accused Le | Mr Kaufman | |
| For Accused Vo | Mr T Huynh | VLA |
HER HONOUR:
1Thien Van Le and Rose Vo, you have each pleaded guilty to one charge of aggravated burglary, contrary to s.77(1)(a) of the Crimes Act 1958; and one charge of armed robbery, contrary to s.75(a)(1) of the Crimes Act 1958. The maximum penalty for each of these crimes is 25 years imprisonment.
2In addition, you, Mr Le, have pleaded guilty to one charge of intentionally cause serious injury, which carries a maximum penalty of 20 years imprisonment; one charge of intentionally cause injury, which carries a maximum penalty of ten years imprisonment; one charge of making threats to kill, which carries a maximum penalty of ten years imprisonment; and two related summary charges, that is two charges of unlawful assault with a weapon, summary Charges 11 and 13. I note that a summary Charge 15 of use prohibited weapon without exemption or approval, was originally uplifted and transferred, but is struck out now because s 5(1)(e) of the Controlled Weapons Act was repealed in 2012.
3The facts in this case were set out in the agreed prosecution summary, which was Exhibit 1 on the plea, and I sentence you both on the basis of the facts contained in that summary, along with the additional matters mentioned by counsel during the course of their submissions, including the additional submissions made today.
4At the time of the offending on 28 October 2013, you, Mr Le, were 23 years old and you, Ms Vo, were 18 years old. You had been in a relationship for one month before you, Mr Le, moved in with Ms Vo and her family in 2013. You, Ms Vo, had been school friends with the complainant, Mi Bui, in 2009, and had regularly been to her house, where she lived with her parents and younger brother, aged 12 and sister aged five. You knew that there was a safe in that house, containing cash and valuables. You fell out with Ms Bui after 2009 and stopped seeing her or visiting her home.
5About four weeks before the commission of these offences, you, Mr Le, no longer had the use of a friend's car and discussed with Ms Vo that you wanted to get money to buy a car. At that time, you, Ms Vo, were working and earning about $1600 a fortnight. You, Mr Le, were also working and earning an income.
6You, Ms Vo, suggested going to Ms Bui's house to obtain the money needed for the purchase of the car. According to what you told Ms Ascher, a senior court advice officer at Youth Justice, you made the suggestion because you believed that nobody would be home and to deflect Mr Le's proposal that you rob a milk bar. About two weeks before the offending, you drove together to Ms Bui's house and watched it, in order to confirm that she was still living there.
7At about 1 pm on Monday 28 October 2013, you drove to Ms Bui's home with the intention of stealing money. You, Ms Vo, indicated that you were both planning to break in and steal the cash and valuables in the house, and that if anyone was at home, you would both threaten the occupants and take the money.
8You, Mr Le, were armed with a taser and a machete, which you had sharpened in the days prior to the offending. You, Ms Vo, wore a scarf and gloves when you attended the property. You, Mr Le, wore a balaclava. You both scaled the two metre fence which surrounded the house. You found an open window, which was to Ms Bui's bedroom. You, Mr Le, entered the house through this window, taking with you the taser and the machete. This is the subject of Charge 1.
9When you entered through the window, Mr Le, Ms Bui was asleep on the bed and woke to see you in her bedroom. You, Mr Le, activated the taser several times while demanding that Bui hand over money from the safe. This is the subject of summary Charge 11, common law assault.
10Ms Bui's young brother walked into the bedroom and Ms Bui reached out to shield him from you, Mr Le, as you were brandishing the machete. You lashed out with the machete and cut Ms Bui's hand. This is the subject of summary Charge 13, common law assault.
11Her brother ran from the room to get his mother. You, Me Le, then attacked Ms Bui with the taser, tasering her to the left side of her body, causing her to fall backwards onto her bed. This is the subject of Charge 3.
12Mr Le then ran to the master bedroom, where Ms Bui's mother and younger siblings were sheltering. You, Ms Vo, were outside the house near the window and could hear the taser being activated and Ms Bui screaming. After the taser sound stopped, you entered the house through Ms Bui's bedroom window. Once inside her bedroom, which she had left, you could hear Mr Le shouting from the master bedroom and you took items from Ms Bui's room, including an Apple computer, keyboard and a Louis Vuitton handbag.
13
Mr Le was in the master bedroom shouting at Mrs Nguyen in front of her two young children, demanding that she open the safe. She did so and you,
Mr Le, removed $6,100 in cash from the safe. This is the subject of Charge 5.
14You, Mr Le, then threatened to return and kill Mrs Nguyen and her family, if she contacted police. This is the subject of Charge 4.
15Ms Bui had managed to get out of the house and alerted a next door neighbour, Chandra Segran. She and Mr Segran had returned to the front of Ms Bui's house when you, Ms Vo, came out the front door. They grabbed you in an effort to detain you. Your scarf came loose and Ms Bui recognised you.
16Mr Le came out and demanded that Mr Segran let you go and ran towards him with the machete raised above his head. You, Mr Le, struck Mr Segran to the right side of his head, slicing off a piece of his scalp. He fell to the ground. While he was on the ground, you, Mr Le, stood over him and continued to attack him with the machete, striking him a further four to five times to the body and arms. The attack punctured Mr Segran's lung, lacerated his intestine and caused significant loss of blood from various lacerations to the upper body. This is the subject of Charge 2.
17Mr Segran managed to take hold of a golf club which he had brought to the house and left nearby and swung it in your direction, Mr Le, striking the taser which you were holding and causing it to fall to the ground and break. In the course of attacking Mr Segran, you, Mr Le, noticed that you had cut your own hand and were bleeding. You and Ms Vo then went to your car and left the area. You drove to a nearby shopping centre, where you bought first aid items and a new jumper for Mr Le. You disposed of Mr Le's blood stained jumper in a rubbish bin at the shopping centre. You then drove home and hid the money and machete in Ms Vo's bedroom.
18
You, Mr Le, went out again, while you, Ms Vo, stayed home. After receiving information from Ms Bui and her family, police attended at your address,
Ms Vo, and arrested you. Mr Le returned home shortly after and was arrested. A search was conducted and the money and machete were located in your bedroom. You were both interviewed and made admissions to the offending.
19Mr Segran was transported to the Royal Melbourne Hospital in a critical condition. He received surgical treatment for the lacerations to his scalp, hands, arms, but the stab wounds to the chest and lower abdomen, which involved associated puncture of the lung and piercing of the intestine. He remained in hospital for eight days. Ms Bui was tasered near her ribs and suffered a laceration to her hand, when trying to shield her young brother from Mr Le's machete.
20Ms Bui, her brother David Cong and Mr Segran provided victim impact statements which were tendered on the plea as part of Exhibit 2. The victims did not request that their statements be read out in open court, but I have read their statements thoroughly. Ms Bui stated that as a result of your offending, she worries about someone coming through her window. She is upset that her five year old sister is now so afraid about sleeping and wakes up to small sounds at night and cries out for their mother. Ms Bui found it very difficult to concentrate on her studies and failed two subjects at university, which will need to be repeated. This will cost her money and will delay completion of her degree by another semester. She is also very upset at the injuries suffered by Mr Segran.
21David Cong said he required psychological counselling after the offending. He feels scared and always locks the doors in the house.
22Chandra Segran said that his period at hospital was the darkest period of his life. He was unable to work for 30 days after the aggravated burglary and his wife also had to take off time from work to care for him. Neither of them was able to earn money during that time. He had to pay some medical expenses. He was a keen gardener, but due to his injuries, is no longer able to do the gardening, lift heavy objects or operate heavy machinery. He has permanent scars which remind him about the offending and his emotional distress. Before the offences he used to leave his front door open, he now constantly worries about his family's safety and checks everything. He finds it harder to trust people and views the world in a negative light.
23In relation to the charges of aggravated burglary and armed robbery, the prosecution submitted that the offending of each of you was serious and significant. Counsel for the prosecution submitted that the offending was not committed out of any desperate need for money, as you were both earning incomes at the time, nor was it for any other urgent need. Rather it was for the purpose of buying a car. Further, the offending was not spontaneous, but was planned weeks before it occurred, with you, Mr Le, saying you wanted money to buy a car, and you, Ms Vo, volunteering that the money could be obtained from Ms Bui's residence, both of you going to Ms Bui's house to ascertain that she still lived there, both of you planning to enter the home, armed with a taser and a machete, with the intention of stealing money and with the intention of threatening anyone present in the home; with Mr Le sharpening the machete in the days before the offending, having planned the offending, you disguised yourselves and with Mr Le carrying a taser and a machete, you each entered the house where children were present, through a bedroom window, for the purpose of stealing money.
24You, Ms Vo, were aware of the taser being activated in Ms Bui's bedroom and while Mr Le moved into another room to continue terrorising other family members, you entered Ms Bui's bedroom and stole items.
25The prosecution submitted that the plan to steal from Ms Bui's home were suggested by you, Ms Vo, and furthered by you, Mr Le, and that you had equal roles in the offending. You both knew what you were going to do when you went to the home and you went armed to carry out your plan.
26In general terms, the prosecution submitted the principle of parity should apply to the sentence given to each of your for these offences and there was no need to differentiate between your roles. However, the prosecution conceded that some moderation should apply to your sentence, Ms Vo, in the light of your youth, the clear evidence of your remorse and the evidence of your prospects of rehabilitation.
27
In the circumstances, the prosecution submitted that it was appropriate that you, Mr Le, receive a heavier sentence, that is a longer term of imprisonment than you, Ms Vo. However the prosecution submitted that in your case,
Ms Vo, a Community Corrections Order would be inadequate punishment and that an immediate custodial sentence was called for in your case as well.
Ms Vo
28Ms Vo, I turn to the submissions made by your counsel on the plea. At the plea hearing, your counsel submitted that there was enough disparity between your circumstances and your roles, for you to be assessed for suitability for the imposition of a Community Corrections Order, and I ordered that you be so assessed.
29Given the seriousness of your offending, the prosecution's submission that only an immediately custodial sentence was appropriate in your case and your age, I also considered it appropriate to have you assed for the suitability for detention in a youth justice centre.
30I received a report, dated 20 May 2014, by a Richard Temple Camp from Corrections Victoria, indicating that you have been assessed as suitable for a Community Corrections Order. I also received a report, dated 20 June 2014, from Ms Ascher, indicating that you have been assessed as suitable for detention in a youth justice centre.
31In her report, Ms Ascher noted that once Mr Le introduced you to drugs and came to live with you, you started taking time off work at his suggestion and your life spiralled downwards. You were surprised to find people present in the house at the time of the offending, but had no control of events that took place once you entered the house, that Mr Le took control and you followed his instructions. You have ceased contact with Mr Le, rekindled relationships with your past positive peer group and shown a very positive response to supervision with Youth Justice. You have responded well to all the programs offered to you. You have abstained from drugs, shown empathy for your victims and remorse and shame for the impact the offending has had on your family. You have performed very well on supervised bail.
32Ms Ascher felt that your prospects for rehabilitation are very good, that you would be impressionable in any custodial environment, particularly in the adult penal system, and noted that Mr Cummins reported you to be psychologically vulnerable. She concluded that any custodial sentence would be better served in youth detention.
33At the plea hearing you were supported in court by your mother, one of your sisters and another friend. Ms Donna Ascher of Youth Justice who authored the supervised bail process report, dated 16 May 2014, which was Exhibit B on the plea, gave evidence. In addition to that report, your counsel tendered a bundle of documents, including a psychological report of Mr Jeffrey Cummins, dated 7 May 2014; a YSAS report of Catherine Elliott, dated 6 January 2013; a Youth Justice assessment report of Catherine Elliott, dated 13 November 2013; a reference from Phuc Nguyen, dated 13 May 2014, who supervised your community service at a Buddhist temple when you were at school; and a letter from a close friend, Kim Doh, dated 15 May 2014. Both Mr Nguyen and Ms Doh indicate that you are a hardworking, kind and respectable young woman, who was very remorseful about your offending.
34I note that you were arrested on 28 October 2013, and you made full admissions when interviewed, complied with all your bail conditions when bailed on 1 November 2013, and pleaded guilty at the earliest opportunity, that is at the committal mention on 21 January 2014. You have spent four days on remand and this is the first and only time you have been in custody. You have no prior convictions and there are no pending or subsequent matters.
35During your time on bail you have addressed your issues with Ms Ascher, worked to revive family relationships and old friendships, participated in drug and alcohol counselling, obtained a real estate basic certificate, reconnected with your community, done some voluntary work and spoken openly about the offending and the impact it has had on you.
36I turn briefly to your personal circumstances. You were born on 2 May 1990 and are now 19. You are the eldest of four girls and live with your mother and sisters. Your parents separated about eight years ago, due to your father's alcoholism, but he still lives nearby. You completed Year 10 at school and obtained a number of prizes. You started a hair and beauty course, but did not complete it. You obtained a Certificate 11 in retail in 2012. You also recently completed a five day basic certificate, qualifying you for entrance into the real estate industry. In spite of the impact of your offending on your prospects of working in this industry, you hope to do so. You have an excellent work history and worked on the assembly line at Toyota for a few months, before your release on bail. More recently you worked for two weeks selling door to door, without generating any income. You were very close to your mother, until your offending and have now reconciled with her, with the assistance of Youth Justice. I note that your mother was recently retrenched from Toyota.
37
It appears from what is reported by Ms Elliott and Ms Ascher, that although
Mr Le introduced you to speed and ice, and you had taken drugs in the days before the offending, you, Ms Vo, were not substance affected at the time of your offending and have abstained from using drugs since the offending occurred.
38In her first report, Ms Elliott indicated that you actively engaged in all treatment sessions and that it was agreed that treatment was no longer required and you were focussed on obtaining employment in the real estate industry.
39She reported that at the time you met, you were working nightshift at Toyota with your mother on the production line, earning $1600 a fortnight, while Mr Le was working two jobs. After Mr Le came to live with you, you both started taking days off work. You told her that after first trying ice, your drug use escalated and that you had been on a three day ice bender, leading up to the commission of the offences. You told her that Mr Le bragged about getting away with criminal offending in the past; that Mr Le wanted to rob a milk bar, but that you tried to distract him from this plan, and that you told him about the presence of a safe at Ms Bui's house; that you believed Mr Le when he told you that there would be nobody home; that you were surprised to find people present when you and Mr Le entered the home; and that from this time on, you had no control over events and Mr Le took control of the situation and you followed his instructions.
40Ms Ascher reported that during the counselling sessions, you realised that your relationship with Mr Le had resulted in you compromising your own values and morals and you developed insight into the lasting impact of your offending on the victims, your family and yourself. You attended drug and alcohol counselling and have completed a five day real estate course, as I have mentioned.
41Your relationship with your mother has improved with the assistance of a Vietnamese interpreter, Mr Nguyen, from the Sunshine Magistrates' Court.
42You had successfully done some voluntary work, three days a week in the hair salon, in return for some hairdressing training, and since April this year, have been working marketing products door to door, although you have not been earning an income.
43Ms Ascher felt that you have accepted responsibility for your actions and have made a concerted effort to fully use the opportunities given to you during the supervised bail period. She noted that you have an impressive work history for such a young person, having started working part-time while in Year 10; that you received a number of certificates at school for achievements in reading, art, English and student leadership; and that you have completed certificates in retail and agent's representative. She felt that you are a young person with significant potential and commitment to reaching your full potential.
44Ms Ascher concluded that you have clearly demonstrated your ability to comply with the supervisory court order. She concluded, "A custodial sentence would have a crushing effect on the significant inroads she has achieved to date, in an attempt to redeem herself. She is a young person with no prior criminal history, who appears to have been impressionable and easily influenced by an older person. This highlights that if Rose were exposed to more (indistinct) criminals within a prison setting, that this would have a harmful effect on her future prospects. The writer has serious concerns that an adult prison sentence would expose Rose to detrimental influences and adversely affect her ongoing rehabilitation.”
45In his report, dated 7 May 2014, Mr Cummins noted that you told him you were in love with Mr Le at the time and had been living with him for over a month, prior to the offending. Mr Cummins concluded that you were relatively immature for your age. He found that you were not suffering from any mental health condition at the time of the offending, although you were very emotionally attached to Mr Le at the time.
46You worked at Toyota until you were arrested in 2013, and he noted that there was no longer any work available for you there. Once you realised the seriousness of your offending, you ceased having contact with Mr Le. You told Mr Cummins that you snorted two amounts of speed, about two nights before the offending. You told him you spent about four days on remand and during that time, thought long and hard about your offending; that you felt ashamed and embarrassed about the emotional anguish your actions and those of Mr Le would have caused the victims, and that you behaved in a cowardly fashion.
47Mr Cummins concluded that you were very remorseful about what you understand was very serious offending. He felt that you would benefit from receiving some offence specific treatment and some general psychological treatment to assist with your maturation, but that the risk of your re-offending is minimal. He felt that given your youth and immaturity, you are not psychologically well equipped to remain in an adult prison for any extended time.
48You counsel submitted that your age renders the principle of general deterrence and denunciation, less important than the principle of rehabilitation. Given your age, background, lack of prior criminal history, good work ethic, family support, behaviour while on supervised bail, and the circumstances of the offending, as well as your low risk of re-offending, as documented by Mr Cummins, your counsel submitted that specific deterrence had far less significance than it might otherwise have. In relation to community protection, your counsel submitted that there was a minimal risk of your re-offending.
49Finally he submitted that you have excellent prospects of rehabilitation, which has been demonstrated by your conduct whilst on bail, and that this sentencing consideration should be given primacy. It was submitted that the principle of just punishment could be satisfied by a high number of unpaid work hours requirement in the context of a Community Corrections Order.
50I accept the matters raised on your behalf, as outlined in the previous paragraph. While rehabilitation is the primary sentencing consideration in your case, the other relevant sentencing principles do not however cease to have any weight. The offences of aggravated burglary and armed robbery are extremely serious offences, as demonstrated by the maximum penalties applicable. Your offending is a serious example of this offending, as you chose the target; you assisted in planning the offences; you attended near the premises some week prior to committing the offences, to ensure that the family was still living there; you knew that Mr Le was taking weapons into the house with him; you had plenty of time to desist from this plan, but you persisted with it.
51This was a serious home invasion, carried out with two dangerous weapons, in the presence of children, initiated by you, against a former school friend and her family. You were involved in a joint criminal enterprise with Mr Le and were equally responsible for the armed robbery which then occurred. Your actions caused terror to the victims. I accept however that it was never your intention that anyone would be hurt and that your only intention was to obtain money.
Mr Le
52I turn to your circumstances, Mr Thien Van Le. Your counsel outlined your personal circumstances, which are referred to in the report of psychologist, Bernard Healey, dated 7 December 2013, which was Exhibit A3, and these details can be briefly summarised.
53You were born in New South Wales but moved to Melbourne with your family soon after. Your parents are both refugees from Vietnam. Your father, aged 47, works as a forklift driver at a market, and your mother, aged 45, works seven days a week at a strawberry farm. You have a brother, aged 25, who is working, and a sister aged 19 who attends university.
54You completed Year 11 at school and until the effects of your drug taking overtook you, you played tennis, rugby, soccer and cricket. You started smoking cannabis daily at age 16 and by 19, until your arrest on the present offences, you began using cocaine, speed and ice instead, sometimes daily, at other times weekly. You had a girlfriend for six years, until late 2012. You lived at home with your family up until a month before being arrested, when you lived with Ms Vo.
55Although you have worked since the age of 19, you have spent most of your earnings on drugs, and your work history has been erratic. You have had periods of unemployment, linked to drug abuse, and during those times, would help your uncle at the fruit and vegetable market. You have also had a problem with headaches. In 2011 you were injured in a motor vehicle accident. Between the ages of 17 and 19, you were treated in hospital several times for injuries resulting from physical altercations. In mid-2013, you were hospitalised briefly after going to the West Gate Bridge and considering suicide. Mr Healey noted that you are due to have surgery for cysts on the brain, although there is no medical evidence before me to this effect.
56You spent 53 days in prison, prior to being released on bail on 20 December 2013, and according to instructions given to your counsel, but which are unsupported by any evidence before me, have remained drug free since then. However according to Mr Healey, you are aware that your drug addiction requires urgent attention and monitoring.
57Your counsel tendered a number of documents on your behalf. The report of Mr Healey, to which I have referred; a CISP drug and alcohol assessment report by Tom Nguyen, dated 7 January 2014, in which it was noted that you had stopped using all substances since offending, and in which it was recommended that you continue to attend a drug treatment counselling program; a CISP report, dated 20 January 2014, by Emma Robertson; a client progress report, dated 21 January 2014, by counsellor Tom Nguyen; and confirmation of your attendance at an appointment for treatment on 7 January 2014.
58Mr Healey assessed you as having a below average capacity, with a full-scale IQ of 87. He concluded that personality testing was indicative of depression, general and specific anxiety and vulnerability to substance abuse, but I am far from satisfied that his report establishes clinical diagnoses of these three conditions. He concluded that your “unprecedented offending was clearly linked to the impact of alarming stimulant abuse upon his functioning” and that at the time of the offending, you were, as you put it to him, "off your head".
59I also note the history obtained by Mr Healey at p.4 of his report, the effect that when you were involved with Ms Vo, she was addicted to ice; that you denied committing the offences of recklessly causing injury and serious injury, which are at p.3 of his report; and particularly I note the account recorded by Mr Healy at p.2 of his report in the following terms: "He entered the premises with a machete and a taser and made demands on the occupants, who handed over a sum of cash. No one in the house was directly assaulted by him, although he did utter threats that they would suffer consequences should they call police. After exiting the dwelling he discovered that Rose was being restrained by a neighbour. He went to her aid and in the process was hit with a golf club, injuring his left hand, for which he required surgery. He was also struck to the lower left back and was informed of bruising to the kidney. In response to being struck with the golf club, he lashed out with the machete, causing a gash to the head of the person who had struck him, also wounding to the abdomen."
60I note that in the report of Tom Nguyen, dated 7 January 2014, you gave the following history: "He disclosed that he was found in a robbery act by someone, then this guy attacked him. He had to defend and unfortunately he caused a heavy injury to this man. He feels really sorry of his strong action by using knife to fighting with this man (sic)”.
61Ms Robertson's CISP report noted a history you gave of abusing cocaine and methamphetamines on a monthly basis prior to your arrest and that you disclosed abuse of cocaine and methamphetamines on one occasion since your release from custody. The CISP report noted that you attended all your appointments for case management and treatment. The progress report noted that you attended three counselling sessions in January 2014, and reported that you had remained drug free during that time. You were motivated to build a new life and have family support to do so.
62Your counsel made a number of suggestions in his submissions, that when you met Ms Vo, she was addicted to ice; that you did not go to the premises to attack anyone, but only took the weapons with you to frighten people; that you were using cocaine and ice at the time of the offending; that you were severely drug affected at the time, and that it was a violent situation and happened in a frenzy, and that you were struck by Mr Segren with the golf club before you attacked him.
63
Your counsel submitted that you acted stupidly; that you wanted a car; that
Ms Vo had great influence over you. She knew where the money could be obtained and knew you were taking weapons with you, and the offending would not have occurred if she had not told you the money was available. He emphasised that you pleaded guilty at the earliest opportunity; have come out of custody a better person, free of drugs and have no prior convictions, and are a relatively young man. In the circumstances, he conceded that a term of imprisonment was inevitable, but submitted that there should be a lengthy non-parole period, and he repeated his submission today in regards to emphasising a lengthy non-parole period.
64
There is some confusion in the material before me about your drug use and in particular whether or not you were affected by the drugs during your offending. I note that you did not tell the police that this was the case. In any event, even if it was the case, it would not be a factor which would moderate your sentence. I note your counsel's assertion that you have been drug free since being released from custody, and that you have told Mr Nguyen that this was the case, although I also note Ms Robertson's report, that you told her that you had abused drugs once since being released from custody.
I received no documentary evidence, such as drug screening results to confirm the true position.
65I accept that in your case, your early plea of guilty warrants the usual discount for the utilitarian value of the plea, in saving resources and avoiding the need for witnesses to give evidence. But there is an absence before me of evidence of actual remorse, such as would warrant any further discount. On the contrary, there is some evidence in the reports that I have already quoted, that you minimised your own role, told Mr Healey that you did not assault the victims as alleged, and suggested that Mr Segren hit your first.
66You took steps to further the plans suggested by Ms Vo, to steal the money from Ms Bui's house. Given that you are some years older than her, I am not satisfied that you were influenced into the offending by Ms Vo. You wanted the money to buy the car, you both planned the aggravated burglary and armed robbery. You obtained the taser and the machete and sharpened the machete. Your actions were premeditated.
67The ordinary principles of parity which might apply in the case of co-offenders, do not apply in this case to the sentence on Charges 1 and 5. As I have already noted, Ms Vo is entitled to substantial moderation in her sentence on Charges 1 and 5, due to her early plea of guilty, the remorse she has shown, her youth and excellent prospects of rehabilitation, which are demonstrated on the material tendered on her behalf.
68In your case, Mr Le, the offending went far beyond that which was planned and executed with Ms Vo. The plan to which Ms Vo was party was that you would enter the house with weapons and use them only to threaten people, so as to enable you to steal money from the safe in the house. Your further offending on that day, Mr Le, can only be described as callous, sustained and brutal.
69Having surprised Ms Bui, who was asleep in her bed, you activated the taser and made threats to her. When her young brother ran into the room, you waved the machete in front of her and cut her hand, inflicting injury upon her. Then your behaviour escalated dramatically, in terms of its ferocity and violence. You tasered Ms Bui to her body, causing her to fall backwards on her bed. You then ran to her mother's bedroom, where the rest of the family were sheltering. You brandished the machete and the taser at Mrs Nguyen, in front of the young children and demanded that she open the safe, which she did.
70Having secured $6,100 in cash and effectively getting what you came for, your offending did not end. You threatened to return and kill her and the family if she contacted police. Once outside the house, when you had the opportunity to leave, you instead ran at the good Samaritan neighbour who had come to the house at the request of Ms Bui, and who was restraining Ms Vo, striking him in the head with a machete, slicing off a piece of his scalp and causing him to fall to the ground. What followed was a further brutal attack, as you swung a further four to five blows at his body, with the machete, while he lay on the ground, causing deep lacerations, puncturing his lung and lacerating his intestines.
71I have already outlined the impact of your offending on the victims. There are a number of aggravating features of your offending. It occurred in the presence of children; it involved at least four different victims (Mrs Nguyen, Mi Bui, David Cong and Mr Segren); it involved discrete incidents; it involved a good Samaritan, Mr Segren; the ferocity of your violence escalated during the course of your offending; your offending ended with a sustained and extremely brutal attack on a neighbour, responding to the pleas for help from Ms Bui; and finally your attack on Mr Segren continued, even after he let Ms Vo go. When he was on the ground, already wounded, you unleashed a barrage of further blows to his body with a machete.
72
You are a relatively young person, but not to be treated as a young offender.
I acknowledge the utilitarian value of your plea of guilty. On the question as to whether there is evidence of actual remorse, I note that there was material on the plea which detracts from your full acceptance of responsibility for your role and the totality of the offending, and that in particular, in relation to the offending by you alone, there is no clear material which demonstrates remorse for your actions or empathy for the victims or their suffering.
73You have a relatively long history of drug abuse and are taken to be more familiar with its effects on you as a long time user than Ms Vo. The consideration of just punishment, general and specific deterrence loom larger in your case, because they are not offset by your age, although I acknowledge the importance that you have of the fact that you have no relevant prior convictions and appear to have been free of drugs, at least for the time you have spent in custody.
Ms Vo
74Ms Vo, in all the circumstances, whilst I note that you have no prior convictions and give you full credit for you plea of guilty, expressions of remorse, the way you have conducted yourself while on bail and your excellent prospects of rehabilitation, and whilst giving full weight to the consideration to be afforded to you as a young offender, I consider that the only appropriate sentence is a custodial one. However I accept the evidence of Mr Cummins and Ms Ascher, that you are psychologically vulnerable and that it is appropriate for you to serve any custodial sentence in a Youth Justice facility.
75Ms Vo would you please stand.
On Count 1, aggravated burglary, you are convicted and sentenced to
18 months detention in a youth justice facility.
On Count 5, armed robbery, you are convicted and sentenced to detention in a youth justice facility for 18 months.
76I note the presumption under s 33 of the Sentencing Act 1991 (Vic) that these sentences will be served concurrently.
77Pursuant to s.35(1) of the Sentencing Act1991 (Vic), I declare that a period of four days pre-sentence detention is to be reckoned as time served on the sentence that I have imposed upon you, and be deducted administratively, and I order that this be entered into the court records.
78I indicate, pursuant to s 6AAA of the Sentencing Act 1991 (Vic), that but for your plea of guilty, I would have imposed a sentence of three years detention in a youth justice facility.
79Take a seat please.
Mr Le
80Mr Le, would you please stand.
81Having weighed all the relevant sentencing factors, I consider it appropriate to impose the following sentence:
82Bearing in mind the principle of parity, as far as it goes in this case, for reasons I have already outlined.
On Charge 1, aggravated burglary, you are convicted and sentenced to a term of four years imprisonment.
On Charge 5, armed robbery, you are convicted and sentenced to a term of four years imprisonment.
83In the circumstances of this case, the most serious offending by you was the infliction of serious injury on Mr Segren.
On Charge 2, you are convicted and sentenced to six years imprisonment.
84This is the base sentence.
On Charge 3, intentionally cause injury, you are convicted and sentenced to two years imprisonment.
On Charge 4, make threats to kill, you are sentenced to two and a half years imprisonment.
On summary Charge 11, unlawful assault with a weapon, in this case a taser, you are convicted and sentenced to 12 months imprisonment.
On summary Charge 13, unlawful assault with a weapon, in this case slashing Ms Bui's hand with a machete, you are convicted and sentenced to 18 months imprisonment.
85I note that there is some overlap between summary Charge 11 and Charge 3 and I will not cumulate in relation to summary Charge 11. However the assault to Ms Bui's hand with the machete involved a different weapon and occurred in the presence of her young brother, and for this reason I consider that some cumulation is required in relation to the sentence on that charge, Charge 13.
86Having regard to the principle of totality, I do not propose to order cumulation between each of the other sentences upon the base sentence. However a significant degree of cumulation is required to reflect the number of discrete offences affecting a number of victims.
87I direct that 12 months of the sentence on Charge 1, 12 months of the sentence on Charge 5, six months of the sentence on Charge 3, six months of the sentence on Charge 4, and three months of the sentence on summary Charge 13, be served cumulatively on the base sentence.
88The total effective sentence is that of nine years and three months imprisonment, with a non-parole period of six years.
89
Pursuant to s.18(1) of the Sentencing Act1991 (Vic), I declare that a period of
53 days pre-sentence detention is to be reckoned as time served on the sentence that I have imposed on you and be deducted administratively, and I order that this be entered into the court records.
90I indicate that but for you plea of guilty, I would have sentenced you to a term of imprisonment of 12 years, with a non-parole period of nine years.
91Is there still a forensic order sought in relation to 464ZF?
92MR McWILLIAMS: Yes,
93HER HONOUR: Paragraph 2.
94MR McWILLIAMS: Your Honour, the only outstanding matters are the forensic sample applications and the - - -
95HER HONOUR: The Disposal Order.
96MR McWILLIAMS: - - - Disposal Order, as it now is.
97
HER HONOUR: So I order that, pursuant to s.464ZF(2) of the Crimes Act 1958 (Vic), that you must both undertake a forensic procedure for the taking of scrapings from the mouth. I must inform you both, that if you do not consent to this procedure - these orders are sought in relation to both, aren't they,
Mr Prosecutor? It is in relation to both, or just in relation to Mr Le.
98MR McWILLIAMS: No, both, Your Honour.
99HER HONOUR: Yes. All right.
100I must inform you both, that if you do not consent to this procedure, the sample will be taken - will be a blood sample and reasonable force may be used.
101I make this order due to the seriousness of the offending, that the order is not opposed and because the order is in the public interest.
102I also make the Disposal Orders sought in relation to Mr Le, and for the matters - the items outlined in the schedule, the dagger and the machete.
103Are there any other matters?
104MR McWILLIAMS: Nothing outstanding, thank you, Your Honour.
105MR HUYNH: No, Your Honour.
106HER HONOUR: Thank you, we'll adjourn.
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