Director of Public Prosecutions v Luu
[2021] VCC 1144
•13 August 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-01854
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MINH LUU |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9 August 2021 |
| DATE OF SENTENCE: | 13 August 2021 |
| CASE MAY BE CITED AS: | DPP v LUU |
| MEDIUM NEUTRAL CITATION: | [2021] VCC 1144 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: One charge intentionally causing injury; one charge prohibited person possessing a firearm; one charge prohibited person possessing a silencer; silencer aggravating factor; serious example of the offence of intentionally causing injury.
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Royer v The State of Western Australia [2009] WASCA 139.
Sentence:Total Effective Sentence of five years and six months’ imprisonment. Non-parole period of three years and seven months’ imprisonment.
S6AAA Declaration: seven years and two months’ imprisonment with a non-parole period of four years and eight months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Devlin | Office of Public Prosecutions |
| For the Accused | Mr N. Brown | Nelson Brown Legal |
HIS HONOUR:
Introduction
1Mr Luu, you have pleaded guilty to a charge of intentionally causing injury, a charge of being a prohibited person possessing a firearm and a charge of being a prohibited person possessing a silencer.
2The maximum penalties for these charges are respectively 10 years’ imprisonment, 10 years’ imprisonment and eight years’ imprisonment.
Circumstances
3On Sunday, 11 August 2019 at 8.06 pm, you rang Harry Chieng and asked him to come outside his house as you were outside. He came outside and met you and another male whom the prosecution allege is Tu Anh Le. At your request, Mr Chieng got into his car and it was driven away by you. You drove to a house after passing the Sunshine shopping centre, the whereabouts was unknown to Mr Chieng.
4You entered the house with Mr Chieng and Mr Le. There were seven or eight persons present, two of whom were women. All were unknown to Mr Chieng.
5You sat Mr Chieng down on a couch in the lounge room. You told him that he had something which must be returned to him. If not returned, then you told him he would have to pay you $70,000.
6You and Mr Le started to assault Mr Chieng by punching and slapping him. These actions are part of charge 1, intentionally causing injury.
7Mr Le left the room and when he returned he had a gun, 40 to 50 centimetres long. He put two bullets into the gun and put a silencer on it, before handing the gun to you.
8You and Mr Le taunted and threatened Mr Chieng, making comments like: 'Do you want to die. I can help you.'. Mr Le said words to the effect 'buy your coffin'.
9These circumstances constitute Charges 2 and 3: a prohibited person possessing a firearm and a prohibited person possessing a silencer.
10You then pointed the gun at Mr Chieng’s left thigh and pulled the trigger. The gun fired and a single round entered his left thigh and exited through the back of the leg. You then struck Mr Chieng with the gun.
11These acts are also part of Charge 1.
12You then used the gun to strike Mr Chieng in the face and made comments to the effect: 'You’re lucky I didn’t kill you today'.
13A later medical examination revealed that apart from the gunshot wound,
Mr Chieng had suffered the following injuries:· Significant bruising to the left temple and side of the head and around the eyes and around the nose;
· Abrasion to the top of the head;
· Bruising to the anterior or front of the neck and swelling underneath the chin and in front of the ear’s region on the right.
14You and Mr Le kept Mr Chieng in the house for a number of hours after the shooting. You dressed his wound and gave him water.
15Mr Chieng asked you and Mr Le to take him to hospital. He was put into a car by two other men and driven to the vicinity of St Vincent’s Hospital. During the course of driving, Mr Chieng was given a mobile phone and he contacted his wife. She was waiting at hospital when Mr Chieng arrived.
16Mr Chieng was admitted to hospital and discharged from hospital on Tuesday, 13 August.
17On 13 November 2019 at about 7 pm, you were arrested by the police. You were interviewed but made a 'no comment' record of interview. You declined to participate in an identification parade. But you gave the police the number of your mobile phone.
18At the time of the offending, you were not licensed to possess a firearm.
Criminal history
19Between 22 September 2000 and 29 November 2017 and excluding appeals, you have appeared in a court on ten occasions and convicted or found guilty of 65 charges.
20Within those appearances are:
(a) on 16 April 2018, the Supreme Court re-sentenced you to 31 months’ imprisonment with a non-parole period of 24 months’ imprisonment on 21 charges including two charges of trafficking methylamphetamine and a charge of trafficking heroin. The re-sentencing arose out the cancellation of a community corrections order by this court in November 2017. By the time of the Supreme Court’s re-sentencing, you had spent 613 days in detention or about 20 months.
(b) on 20 August 2007, this court sentenced you to 42 months’ imprisonment with a non-parole period of 24 months’ imprisonment for three charges of trafficking a drug of dependence and a charge of possessing a drug of dependence.
Victim impact statement
21Mr Chieng made a statement on 24 June 2021. Although the incident occurred in 2019, he was unable to work for a year. In that time, he relied upon his wife financially. Somehow his inability to work caused her to seek bankruptcy.
22The incident has affected him physically for he feels soreness if he stands too long. It has affected him mentally for he does not want to go out of his home or see too many people. He has trouble sleeping when advised about the progress of this case. He has started obtaining psychological counselling.
Guilty pleas
23You were arrested and charged on 13 November 2019. There followed a contested committal hearing over three days, concluding on 21 December 2020. There were two directions hearing and a case conference before you pleaded guilty to these charges on 25 June 2021. These charges were among a larger number of charges on which you were committed for trial.
24Contrary to your counsel’s submission, your pleas of guilty were not entered at an early opportunity. In terms of timing, they were entered at the midpoint of the process, starting with your charging and concluding with a theoretical trial.
25Your pleas of guilty are evidence of your remorse.
26All pleas of guilty have what is called a 'utilitarian' benefit by facilitating the administration of justice. That is, you have brought these charges against you to an end sooner than would have been the case if there had been a trial by jury. It saves the State from the expense of a trial. You have also relieved the 34 prosecution witnesses from the need to give evidence at a trial. No doubt, the giving of evidence by them, and to a lesser extent, the police members, would be an arduous task.
27During the current pandemic, there is another significant aspect of a plea of guilty, which was expressed by the Court of Appeal recently in Worboyes v R[1]:
‘As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.’
[1] [2021] VSCA 169 at [35].
Pre-sentence Detention
28You were arrested on 13 November 2019 and remanded into custody. There are 535 days of pre-sentence detention (excluding today) after deducting 104 days of detention attributed to sentences of imprisonment imposed in the Magistrates’ Court.
Personal
29You are 39. You are single. You were in a relationship in your early 20s. You have no dependents.
30You were born in Australia to Chinese-Vietnamese parents. Your family fled to Australia as refugees from the war in Vietnam.
31Your family initially lived in Queensland before moving to Victoria in 1991. In Melbourne, your parents ran a takeaway business.
32When you were 17, your parents discovered you were using drugs and sent you to live with relatives in Vietnam.
33Years ago, you worked at times in your parents’ business. However, you have not had steady employment and have relied on Centrelink payments.
34You started using cannabis at 14 and heroin at 16. You stopped using heroin, but started using methylamphetamine and GHB. You started using methylamphetamine from about 2015 and continued to do so until your arrest on these charges except, presumably, during periods of imprisonment. You smoked methylamphetamines with others, using up to half a gram a day.
35While in prison, you have assisted others to integrate into prison life.
References
Tu Dinh Luu
36Tu Dinh Luu is your father. He says you are a good member of your family and of your community. He feels your offending is due to the bad company you kept. He believes you truly regret your offending and strive to be law abiding in the future.
Quyen Tuong Luu
37Quyen Tuong Luu is an older brother. He speaks of your help to him, your family and members of your community. He believes you truly regret all your wrongful acts in the past and will strive to make amends.
Kumica Truong
38Kumica Truong is a friend of more than ten years. Although she knew of your previous criminal behaviour through drugs but was shocked to learn about your violence.
39She knows you as a kind and generous person. You have shown your remorse through regretting and accepting responsibility for your actions.
40She is fully supportive of you.
Anna Tang
41Anna Tang was once your girlfriend. She has known you for more than twenty years. She is surprised that you were involved in an act of violence: to her, that is not in your nature. She points to the chance she received after her imprisonment and the absence of such a chance for you.
Your letter
42I have read your letter of apology to Mr Chieng and his wife over your actions. Among other things, you said:
'I do not know what got a hold of me that day. It was impulsive and didn’t [think] my actions through and their consequences and would never do anything to harm anyone again'.
Discussion
43Each of the purposes for which sentences may be imposed is relevant in your case.
44There is a need to punish you to the extent and in a manner which is just in all the circumstances. There is a need to deter you and other persons from committing these or other offences of a similar character. There is a need to manifest denunciation for the conduct you have engaged in. There is a need to protect the community from you. There is also a need to establish conditions that facilitate your rehabilitation.
45As to the need to deter you, your counsel submitted that less weight should be given to this purpose. This submission involves your prospects of rehabilitation. On balance, I would consider your prospects are uncertain with a tendency towards the positive. There are factors favouring a positive finding:
(a) your remorse over the commission of these offences;
(b) the continuing support of your family and your friends who are law abiding;
(c) you have remained drug free while in custody and have undertaken a short course dealing with methylamphetamine; and,
(d) the lack of violence offences in your criminal history. Although not put by your counsel in these particular terms, the lack suggests these offences are an anomaly for you.
46However, there are countervailing factors:
(a) despite remaining drug free in custody, up to the time of these offences, you were addicted to methylamphetamine, which you used at a significant level. Experience suggests that more is needed before one can be confident that you have rid yourself of the addiction;
(b) these offences occurred within months after your release from prison, after serving a lengthy sentence for drug-related crimes. The effect of that sentence did not deter you from engaging in these offences;
(c) with methylamphetamine, experience shows previously non-violent persons can become violent under the effects of methylamphetamine. I am not surprised at your offending even though your friend, Kumica Truong, is surprised at your violence.
47On balance, I would lessen this purpose of sentencing to a small degree only.
Nature and gravity of the offences
48Your counsel submitted since these offences arose out of a single event, there should be concurrency in the sentences. It is true, the offences arose out of a single event. The circumstances surrounding the first offence were somewhat protracted in that you assaulted Mr Chieng on three occasions including the firing of the gun.
49Your counsel concedes an aggravating factor is that the offences were committed in the company of others. He also concedes your use of a firearm with an attached silencer is an aggravating factor.
50In part, the second and third charges explain more fully the nature of the first charge. The offence of intentionally causing injury covers many circumstances. The injury and the surrounding circumstances might be mild. In your case, the injury was significant and the surrounding circumstances very serious in the context of the charge. This is a very serious example of the offence of intentionally causing injury.
51Your counsel submitted that the three charges arose out of the same event and I should make the sentences on Charges 2 and 3 concurrent with each other and with Charge 1. This submission relies on the one transaction rule or principle. In Fox and Frei’s Sentencing, 3rd edition, the author quotes this passage from the judgment of Owen JA in the West Australian case of
Royer v Western Australia[2]:‘At its heart, the one transaction principle recognises that, where there is an interrelationship between the legal and factual elements of two or more offences with which an offender has been charged, care needs to be taken so that the offender is not punished twice (or more often) for what is essentially the same criminality.’
[2] [2009] WASCA 139 at [22].
52Each of the charges arises out of substantially the same occurrence. Your use of the firearm and the silencer is captured in the first charge. Plainly, you needed to possess the firearm and silencer in order to use them. Legally, the only difference is your status as a prohibited person. This is an insufficient basis for me to accumulate any part of the sentences on Charges 2 and 3.
Culpability and responsibility
53Your use of a gun means the level of your culpability and responsibility is high. Although the circumstances outlined by the prosecution are vague in certain parts, nevertheless, you used the gun to enforce your demand for payment of monies and then to harm Mr Chieng.
Effect on victim
54I have already set out the effect of these offences upon Mr Chieng. Physically, it appears he has made a reasonable recovery from the injury to his thigh. The only lasting effect is his inability to stand for prolonged periods. Since it is almost two years since the offences, this disability may be expected to last into the future. The injury did prevent him working for twelve months and that had an effect on his family’s finances.
55As one would expect, the injury and the circumstances surrounding its infliction have affected Mr Chieng psychologically. He is now receiving counselling.
Current sentencing practices
56Neither counsel referred me to any sentences of Judges of this or any other Victorian court, to ascertain whether there is any current sentencing practices for these offences. That is unsurprising for the circumstances and the charges arising are an unusual combination.
Sentences
57On Charge 1, intentionally causing injury, you are sentenced to five years and six months’ imprisonment.
58On Charge 2, being a prohibited person in possession of a firearm, you are sentenced to three years’ imprisonment.
59On Charge 3, being a prohibited person in possession of a silencer, you are sentenced to two years’ imprisonment.
60The sentences on Charges 2 and 3 will be served concurrently with themselves and the sentence on Charge 1.
61The total effective sentence is five years and six months’ imprisonment and I will set a non-parole period of three years and seven months’ imprisonment.
Pre-sentence Detention
62I declare that your pre-sentence detention of 535 days is a period of imprisonment already served under the sentences. This period excludes today.
S6AAA Declaration
63If you had not pleaded guilty to these charges, I would have sentenced you to seven years and two months’ imprisonment with a non-parole period of four years and eight months’ imprisonment.
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