Director of Public Prosecutions v Lieu
[2016] VCC 157
•19 February 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-15-00767
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AU TU LIEU |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18 February 2016 |
| DATE OF SENTENCE: | 19 February 2016 |
| CASE MAY BE CITED AS: | DPP v Lieu |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 157 |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Conduct endangering life
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence: 18 months’ imprisonment and 24-month CCO
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E.H. Ruddle | Office of Public Prosecutions |
| For the Offender | Mr D.A.J. Gray | Chris McLennan Lawyers |
HIS HONOUR:
1Au Tu Lieu, you have pleaded guilty to one charge of conduct endangering life. This means that you have pleaded guilty to, without lawful excuse, recklessly engaging in conduct that places or may place another person in danger of death.
2The offence carries a maximum penalty of ten years' imprisonment.
3You are currently 45 years of age, having been born on 10 January 1971, and you were aged 42 when this offending occurred in May 2013.
4On or about 19 May 2014 you and the victim in this matter, Mr Dec Chu, were both living at a house in Leoni Street, Heathmont, which I will refer to as "the house." The house was rented by another person who lived there with a number of people, and other people would stay from time to time. You and
Mr Chu had each been staying a couple of days at that date.5You and Mr Chu had attended high school together. You were both illicit drug-users and had known each other in the drug scene for a number of years.
6Earlier that morning you had accused Mr Chu of stealing something, believed to be some heroin that you had been looking for earlier that day.
7Later that morning, you and the victim were in the kitchen of the house and were overheard to be scuffling or fighting - there were sounds in the room. Mr Chu was sitting at the kitchen table when he felt some liquid on his face and top. He very quickly realised that the liquid was petrol, or something of that type, and then felt that it was alight.
8It was alleged by the Crown that your reckless conduct is the act of throwing of petrol on Mr Chu in the vicinity of lit cigarettes. The petrol thrown by you ignited. Soon after Mr Chu was alight, you walked calmly from the kitchen and got into your car. You were not seen to assist Mr Chu or call for help. Others in the house came to his aid and called for an ambulance.
9As a result of your conduct, Mr Chu suffered burns to his skin and airways, including full thickness burns to 16% of his body. He required multiple operations to debride and graft his injuries and spent over a month in hospital. It seems that he will have ongoing scarring and pain as a result of the injuries.
10You turned yourself in to police later that day and were interviewed. You indicated that Mr Chu had tried to drink the petrol (not realising it was petrol) and when you tried to knock it out of his hands it was set alight.
11You were remanded in custody on 19 May 2014 and granted bail on 15 December 2015.
12I now turn to your personal circumstances.
13As I noted earlier, you are now aged 45 years, you were 42 at the time of the offending, and you do have an extensive criminal history.
14Your criminal record commences in the Ringwood Magistrates' Court when, in 1990 at the age of 19 you were put on a community-based order and an adjourned undertaking, both for 12 months, for drug and weapons offences. I note that the community-based order was cancelled for breach in September 1992 and replaced with a fine.
15In May 1992 you appeared at the Heidelberg Magistrates' Court on drug and receiving stolen goods charges and were given three months' imprisonment to be served by way of an intensive corrections order.
16Some six weeks later in that same court you were convicted and fined for drug offences.
17In September 1992 your driver's licence was cancelled for one month for driving whilst disqualified.
18In August 1993, at the age of 22, you were sentenced to 12 months' imprisonment, three months being suspended for 24 months, on trafficking amphetamine and heroin charges.
19In July 1996 you were convicted and fined $500 or $600 for weapons and drug charges, and in October 1996 the fine was cancelled and you were put on another community-based order for these charges and a trafficking offence, on the breach of which you duly appeared nine months later, to have the community-based order cancelled and replaced by an overall fine of some $1,600.
20Five months later you were convicted of several dishonesty offences and given a four-month wholly suspended gaol term and a 12-month community-based order, on the breach of which you duly appeared some ten months later, to have the community-based order cancelled and replaced by an overall fine of some $900.
21In April 1998 you were gaoled for 14 days wholly suspended for 18 months, and your driver's licence was cancelled for four months for unlicensed driving.
22After a court-free period of nearly three years, you appeared again at Ringwood Magistrates' Court on drug and receiving stolen goods charges, for which you received yet another community-based order, this time for six months and with a number of testing and treatment conditions. You appeared at that court again for the breach of this order some eight months later, when the order was cancelled and you were fined $500.
23In the period from February 2002 to April 2013 you appeared at various Magistrates' Courts on five occasions, usually for drug and driving offences, for which you were variously fined, and you had your licence yet again cancelled.
24In August 2009, however, you appeared at this court on a charge of trafficking in methylamphetamine, for which you received an 18-month term of imprisonment, wholly suspended for a period of two years.
25You were born in Vietnam in January 1971 and completed Year 12 at Swinburne Technical College. As your history in the courts suggests, you soon developed a severe drug addiction. Attempts to break this addiction have been made and failed.
26You have now spent some 19 months in pre-trial custody and assert that you remained drug-free during that custody and that you have also remained drug-free since being released on bail just before Christmas. This is supported by the evidence that has been given by your brother-in-law and one of your brothers, in particular, as to how you have changed both in your appearance and your attitude.
27Conduct endangering life is justly regarded as serious offending and such is reflected in part in the penalty imposed by Parliament. The seriousness of the particular context of this offending is reflected in the probability of endangering life by your act of throwing petrol in the particular circumstances.
28Whilst your crime is not of actually causing the injury, the suffering of the victim from burning cannot be ignored. It is the kind of consequence that may result that informs the existence of such a charge as this. The victim has endured successive operations, has permanent scarring, has suffered acute pain and continues to suffer pain. The only explanation for your acts is your possible state of mind following illicit drug ingestion. It is not an excuse. The public cannot be expected to be tolerant of offenders who voluntarily consume
mind-altering or affecting substances.29Your acts were further aggravated by you walking away. It shows an attitude of indifference to a ghastly situation.
30In mitigation, I have taken into account the matters submitted by your counsel, including:
· Your plea of guilty. Whilst entered at a late stage, it nonetheless has spared the community the expense and uncertainty of a trial and has spared witnesses the inconvenience and anxiety of giving further evidence. In the context of an arguably contestable trial, I accept it also betokens some remorse.
· Your efforts in remaining drug-free whilst in prison and whilst on bail.
· That despite many years of engagement in serious drug culture, you have no prior convictions in adult courts for offences of violence.
· The time that you have already spent - nearly 19 months - in adult remand custody.
· The continuing, impressive and understanding support that you have from your family.
31The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific to you and general in order to deter others from engaging in similar behaviour), rehabilitation, denunciation and the protection of the public. There is also an element of a sense of retribution involved in punishment - victims are entitled to feel that justice has been done.
32In sentencing, I must have regard to a range of matters, such as the seriousness of the offence, your culpability for it, your personal circumstances and those of any victims. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
33Over the years, courts of law have afforded you many opportunities to rehabilitate yourself. You have reoffended, and this time in a very serious way. I remain guarded concerning your prospects of rehabilitation, but your recent history and the continuing support and engagement that you have had with your family suggests to me that, with encouragement also from the court and Corrections, there is some hope that you can manage to stay drug-free and out of further trouble. It is also highly relevant, in my view, that you have spent the time that you have, some 19 months, in pre-sentence custody already.
34In light of these matters, I have requested an assessment and report as to your suitability for a community correction order as an appropriate mixed sentencing option.
35I have received that report and it is positive as to your suitability. In light of your circumstances, it is recommended that you be supervised and that you participate in programs directed towards dealing with your drug abuse.
36In light of the evidence before me and your vulnerability to regress into addiction, I propose to also impose a judicial monitoring condition. That means you will come back before me at various intervals and I will make assessments of your progress and any issues that may develop. That is designed not only to help and encourage you with the programs that you are going to be offered, but also to make sure that you are getting the sort of programs that are intended to be provided by Community Corrections.
37I have not imposed any unpaid community work conditions. The intent of the conditions I have ordered is to give support to your drug rehabilitation whilst, at the same time, giving you the best opportunity to engage in regular paid employment which, amongst other benefits, may allow you to develop some self-respect.
38Mr Lieu, could you please now stand?
39On Charge 1 of conduct endangering life, you are convicted and sentenced to 18 months' imprisonment. The sentence starts today.
40As to the term of imprisonment, you were remanded on 19 May 2014 and granted bail on 14 December 2015. So, pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 574 days - which represents one year, six months and 25 days - be reckoned as time already served under this sentence, and I direct that the fact of this declaration and its details be noted in the records of the court.
41I note that since the pre-sentence detention exceeds the term of imprisonment, it is my intention by the sentence that I have imposed that
Mr Lieu not be taken into custody. The term of imprisonment has actually been served by the taking into account of the pre-sentence detention.42I direct my next comment to the custody officer. Do you understand that, sir?
43CUSTODY OFFICER: Yes.
44HIS HONOUR: Thank you.
45Furthermore, on Charge 1 of conduct endangering life, you are also ordered, with conviction, to serve a community correction order for a period of two years.
46The community correction order commences today and ends on 18 February 2018. The Corrections Centre you will attend is the Ringwood Community Correctional Service at Level 1, 2 Bond Street, Ringwood, and you must attend there within two clear working days after the commencement of the order, that is, by 4 pm next Tuesday, 23 February.
47All the mandatory terms of a community correction order apply and the additional conditions I impose are that:
· you be under the supervision of a Community Corrections officer;
· you undergo assessment and treatment, including testing for drug abuse or dependency, as directed by the Regional Manager;
· you attend court for the purposes of judicial monitoring commencing at 9.30 am on Friday 19 August 2016.
48Now I realise that you have already had the mandatory terms of the community correction order explained to you, but I will just go over them again now.
49The mandatory terms are that:
· you must not commit another offence for which you could be imprisoned during the time that the order is in force;
· you must comply with the requirements of Regulation 17 of the Sentencing Regulations 2011, which essentially sets out your obligations as to your attendance at the Community Corrections Centre, such things as not attending drug- or alcohol-affected;
· you must report to and receive visits from a Community Corrections officer;
· you must report to the Community Corrections Centre, that is, the Ringwood Centre, within two clear working days of the order starting, and as I have already indicated, that is by 4 pm next Tuesday 23 February;
· you must notify a Community Corrections officer of any change of address or employment within two clear working days after the change;
· you must not leave Victoria without first getting permission to do so from a Community Corrections officer; and
· you must obey all lawful instructions from, and directions of, Community Corrections officers. Such directions may be given either orally or in writing.
50Do you understand and agree to those conditions, Mr Lieu?
51OFFENDER: Yes, sir.
52HIS HONOUR: Now if you are ill or if there are exceptional circumstances, the order may be suspended for a period of time, and if your circumstances materially alter, you may apply for a variation or cancellation of the order. In either case, you must notify the Ringwood Community Corrections Centre, and I recommend that you obtain legal advice if any of these things happen.
53However, I must warn you, as you will be clearly aware, that if you breach any condition of this order you will be brought back to court and that will be back before me. One of the options open to me is to cancel the community correction order and re-sentence you on the original charge, and I may also deal with you separately for the breach, which is itself an offence, by sending you to prison for up to three months.
54Do you understand the consequences of breaching the community correction order?
55OFFENDER: Yes.
56HIS HONOUR: All right. I will ask you to sign the order shortly. If you would just take a seat for a moment.
57HIS HONOUR: Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, the sentence that would have been imposed is four years' imprisonment with a minimum period of three years to be served before eligibility for parole.
58At the plea hearing, the Crown sought an order for the taking of a forensic sample, and I have made that order today for the reasons noted on the order, namely, the seriousness of the offending warrants the making of the order, your prior convictions are such as to warrant the making of the order, the order was not opposed and the granting of the order is in the public interest.
59I must inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that, Mr Lieu?
60OFFENDER: Yes, sir
61At the plea hearing the Crown also sought an order for the disposal of various items connected with the commission of the offence, which you did not oppose, and I have also made that order today.
62Are there any other matters from either counsel before the community correction order is signed?
63MS RUDDLE: No, Your Honour.
64HIS HONOUR: All right. Mr Lieu may leave the dock in order to sign the community correction order. Could you come down to the Bar table, please?
65(Community correction order signed and acknowledged.)
66Mr Lieu, you will be free to go in a moment. It is extremely important that you participate appropriately in this program and get the assistance that you need when you need it. All of us in this court know how difficult it is to pull away from an addiction such as you have had, and for the period that you have had it, and it is going to be still a lot of hard work. You have the benefit of having a very, very supportive family and they are to be congratulated for the assistance they have given you. Just remember the date, 19 August. Can you make a point, Mr Gray, of making sure that Mr Lieu has written notification of that? And we will see how you are travelling in six months' time.
67Thanks, both of you, for your assistance in this matter.
68MS RUDDLE: May it please the court.
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