Director of Public Prosecutions v Luu, Dat Tan
[2014] VCC 647
•20 May 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-00028
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Dat Tan LUU |
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JUDGE: | CHIEF JUDGE ROZENES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 May 2014 | |
DATE OF SENTENCE: | 20 May 2014 | |
CASE MAY BE CITED AS: | DPP v LUU, Dat Tan | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 647 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – recklessly causing serious injury – prohibited person possess firearm – possess drug of dependence (methylamphetamine) – drug deal – use of a weapon (knife) – prior criminal history – serious offence – imprisonment appropriate
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E Millar | OPP |
| For the Accused | Mr C Farrington | Turnbull Lawyers |
HIS HONOUR:
1 Dat Tan Luu, you have pleaded guilty to one charge of recklessly causing serious injury, one charge of prohibited person possessing a firearm and one charge of possession of a drug of dependence, being methylamphetamine. You have also pleaded guilty to two related summary charges that were uplifted to be dealt with on this plea: one charge of possessing a prohibited weapon and one charge of possessing cartridge ammunition. The substantive offending occurred on 1 September 2013 and the summary charges arise from a search by Victoria Police on your premises on 2 September 2013. You admitted 29 prior convictions, arising from 16 court appearances, the first being on 17 February 2000 and the last on 10 August 2012.
2 Charge 1, recklessly causing serious injury, carries a maximum penalty of 15 years’ imprisonment. Charge 2, prohibited person in possession of a firearm, carries a maximum penalty of 10 years’ imprisonment or a fine of 1,200 penalty units. Charge 3, possession of a drug of dependence (methylamphetamine), carries a maximum penalty of 1 year imprisonment or a fine of 30 penalty units or both. In relation to Charge 3, Ms Millar for the Crown submitted I should be satisfied that your possession of methylamphetamine was for a purpose related to trafficking and, for that reason, apply the higher maximum penalty prescribed by the legislation, being a maximum of 5 years’ imprisonment or a fine of 400 penalty units, or both. I will address this matter in due course. Of the summary charges to which you pleaded guilty, the charge of possessing a prohibited weapon carries a maximum penalty of 2 years’ imprisonment or a fine of 240 penalty units; and the charge of possessing cartridge ammunition a fine of up to 40 penalty units. The facts of the case were opened by Ms Millar and are contained in Prosecution Opening, Exhibit A in these proceedings. Over the course of the plea, Ms Millar also tendered a bundle of photographs of the injuries to the victim, Exhibit B, a bundle of photographs of weapons seized from your house, Exhibit C, and a Victim Impact Statement, Exhibit D.
3 There is a degree of uncertainty about the facts that give rise to the first charge. According to Exhibit A, at about 12:30PM you were in your parked car in Stawell Street, Richmond, with your girlfriend in the front passenger seat. When the victim walked past your car you asked him for money and, as the victim was gathering together some coins to give you, you reached out and grabbed his wallet. He tried to grab it back, at which point you produced a 30-centimetre-long knife. The victim stepped back and you got out of the car and told the victim to “fuck off”. The victim said “Give me my wallet back, you can have the money”. You proceeded to stab the victim twice, causing a 1.5 centimetre wound to his left shoulder and a 12 centimetre laceration to his left bicep, down to the bone. This forms the basis of Charge 1. You got back into your car and drove off, throwing the wallet out of the window as you did so. Witnesses called emergency services who attended to the victim and took him to hospital where he underwent surgery for his injuries. You were later identified by the victim from a photo board. A search of your premises the day after the stabbing located a sawn-off shotgun; a large number of other weapons including samurai swords, tomahawks and ornamental knives; and a box of ammunition. A total of 274.6 grams of white powder and a crystal substance, found in various containers around the house, was also seized and tested and was revealed to be methylamphetamine with a purity of less than 1%. You were arrested and interviewed by police following the search on 2 September 2013.
4 A number of witnesses gave somewhat different versions of what they saw, as did you in the course of your record of interview. It is difficult to reconcile these versions. On one account there was a scuffle on the footpath before the victim was forced into your car, and then assaulted with the knife in the back seat. In your record of interview you said that you had purchased drugs from the victim earlier that day and, not satisfied with their quality, you returned to the scene where you attempted to obtain a refund or replacement drugs. He got into your car and following an argument you produced a knife and chased the victim out of your car onto the footpath where you stabbed him. You said that he had produced a box-cutter in the car and that the knife was only in your car because you were endeavouring to sell it. You said that you did not intend to stab the victim. The victim said nothing to the effect that he was dealing drugs. In the end, after discussion with counsel I feel reasonably comfortable with the view that you had gone to remonstrate with the victim – who was a drug dealer and who had supplied inferior quality drugs to you earlier that day – and a confrontation occurred during which you produced the knife, waved it around and then stabbed the victim in the left shoulder and sliced his left bicep. I accept that in stabbing the victim you acted consciously but without consideration for the outcome of your actions. No question of self-defence arises.
5 Mr Farrington appeared for you and told me something of your personal history. You were aged 34 years of age at the time of the offending and are now aged 35. You were born in Vietnam and your mother died when you were aged 2. Your father abandoned you soon after her death, moving to Australia. You were raised by your grandparents in a small village in Vietnam, for a long time thinking they were your parents. You have always felt a sense of abandonment as a result of your father leaving you to go to Australia. However, at the age of 12 your father sponsored your immigration to Australia and you moved here to live with your father in Oakleigh. Your father remarried and you did not have a good relationship with your stepmother. At the time, your father was working night duty and, I was told, that if you did anything wrong your stepmother would tell your father and he would physically punish you. Sadly, your grandfather, with whom you were close, committed suicide by immolation in 2003 and your grandmother passed away in 2004. You experienced difficulties at school, and were the subject of racial slurs and bullying. Though you did befriend a small group of Asian students around your age who were also the subject of bullying. You were educated to a Year 8 level, leaving school at 14 and running away from home to live on the streets. Here you began to associate with negative peer groups and use illicit drugs. You had been smoking marijuana from the age of 12 but progressing to full-time heroin use via the practice of smoking ‘snow cones’ or marijuana sprinkled with heroin.
6 You commenced a relationship with your current partner about four years ago. Things were going well until mid-2013 when your father experienced marital difficulties, your partner became pregnant, and the small business your partner owned was struggling financially. Prior to this time you had engaged successfully in parole and were not using illicit substances and, despite your limited employment history, had obtained work as a chef and a labourer. However, the combination of stressors that I have just mentioned led you to resume your drug use and things quickly deteriorated, culminating in the offending before me. At the time of the present offending, in addition to using heroin you were also using methylamphetamine or ‘ice’. Mr Farrington told me that your partner remains supportive of you and the child you have together has attended visits with you at the prison.
7 In addition to written submissions of your counsel, I was provided with an old psychological report by Dr Aaron Cunningham, Forensic Psychologist, dated 9 December 2011, Exhibit 1. While the report is old, it does make some relevant observations, namely: that you present as a moderate risk of reoffending; you had a degree of instability in your upbringing and were a frequent user of illicit drugs, particularly heroin; and that you do not suffer from any diagnosable mental illness.
8 It was submitted by Mr Farrington that I should not place much weight on the Victim Impact Statement, Exhibit D in the proceedings, given the victim’s lengthy history of weapons, drugs and dishonesty offences and the fact that the Victim Impact Statement is at odds with the medical evidence provided in the brief of evidence. While the victim could certainly be described as an unsavoury type, whether or not he is a drug dealer who was supplying drugs to you is irrelevant. Despite his ‘profession’, he did not deserve to be assaulted by you in the way that he was. .
9 On your behalf, Mr Farrington submitted that I take into account the following matters by way of mitigation:
(a) You pleaded guilty at the earliest possible opportunity, at a committal mention on 10 January 2014, which spares the victim from giving evidence and demonstrates your remorse;
(b) You have been a long-term user of heroin and were also using ice at the time of committing these offences;
(c) You have been in custody since your arrest on 2 September 2013 and have made an application for bail;
(d) You have had a disadvantaged upbringing which is explanatory, if not causative, of the offending and/or your drug addiction; and
(e) That the principle of totality dictates that the sentence imposed should be ‘just and appropriate’ in relation to the whole of the offending.
10 Mr Farrington also urged me to consider the pronouncements of the Court of Appeal in DPP v Terricks; DPP v Marks; DPP v Stewart (2009) 24 VR 457 as to the effect that a personal history of hardship, deprivation and violence is relevant to sentencing and might be explanatory, if not causative, of offending and/or drug addiction. The court went on to say that where an offender has prior convictions, as you do, such that considerations of specific and general deterrence and community protection become increasingly important, the significance of personal circumstances correspondingly decreases.
11 I was also referred to Bugmy v R (2013) 302 ALR 192, which advances the proposition that the effects of profound deprivation should be given full weight in the sentencing process. Mr Bugmy was an Aboriginal man raised in an environment of alcohol abuse and extreme violence, could not read or write and, from age 12, was regularly in custody. Whilst I intend to give some weight to your compromised upbringing you cannot in my view receive consideration in the measure proposed in Bugmy. In any event, as your counsel submitted you had over the past few years settled down, partnered, and it was only after a period of frustration at work that you returned to drug use and eventually to the present offences.
12 The possession of guns and other weapons in the context of drug use is often productive of serious criminal conduct as it was in this case and is also borne out by your prior convictions which are comprised, in the main, of serious weapons, violence, and drug offences. You have received sentences of imprisonment on some 7 occasions, the last of which was imposed in this court on 11 February 2005 when you received a sentence of 5 years 6 months with a non-parole period of 4 years for armed robbery, intentionally causing serious injury and false imprisonment. In the course of committing those offences you were armed with a samurai sword. You also received a sentence of imprisonment in January 2004 for intentionally causing serious injury and attempted armed robbery. You have prior convictions involving imprisonment for aggravated burglary. You seem to have a fascination with swords and knives. I refer to the photographs in Exhibit C. It is of consequence that on at least two occasions now you have used these types of weapons in the commission of serious offences of violence.
13 Over the years, the courts have given you many opportunities for rehabilitation including probation orders, youth attendance centre orders, youth detention centre orders, community-based orders and suspended sentences, as well as terms of imprisonment with a parole component. On a number of occasions you offended during a period of parole or shortly after your release. It follows that any assessment of your prospects for rehabilitation can only be regarded as guarded. General and specific deterrence and protection of the community must loom large in the sentencing process.
14 Returning to the issue of the drugs charge, Charge 3, that I raised at the beginning of my sentence. As noted by the prosecutor, the drugs seized were under the traffickable amount prescribed by legislation. I do not accept the prosecutor’s submission that you were in possession of drugs for a purpose related to trafficking. I arrive at this conclusion after taking into account the following factors: the purity of the drugs was less than 1%; you sought out drugs from the victim despite the fact that you had what was considered to be drugs at home; and there was no evidence of large sums of money, text messages, tick sheets or scales normally associated with drug trafficking. The higher penalties prescribed under s 73(1)(c) of the Drugs, Poisons and Controlled Substances Act1981 do not apply.
15 The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation, and protection of the community. In 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 the victim if any. 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.
16 I take into account your early plea of guilty and, as such, your sentence is a less severe one than I would have imposed had you pleaded not guilty. Your plea saves time, expense and the need for witnesses to give evidence and is reflective of remorse. I take into account that you have spent some 8 months in custody since these offences and have undergone detoxification as a result of your incarceration. I take into account, to a limited degree, your difficult upbringing and your subsequent homelessness and exposure to drug culture which created in you an addiction to illicit drugs. While you yourself made the decision to leave home, you did so at a young age and, perhaps, without the foresight that comes with age. Against this, however, is your lengthy and serious criminal history and I agree with the prosecution’s submission that whilst not life-threatening, the injuries you inflicted were in the mid-range of seriousness. Further, the offending occurred in a public place in daylight, and I accept it would have been frightening for those who witnessed it.
17 Mr Luu, please stand. You are convicted and sentenced as follows: on Charge 1, recklessly causing serious injury, to be imprisoned for 3 years and 6 months. This is the base sentence. On Charge 2, being a prohibited person in possession of a firearm, to be imprisoned for 18 months. On Charge 3, possessing a drug of dependence, to be imprisoned for 6 months and on the two related summary charges I impose an aggregate sentence of 6 months’ imprisonment.
18 I direct that 9 months of the sentence imposed on Charge 2, 3 months of the sentence imposed on Charge 3, and 3 months of the aggregate sentence imposed on the related summary offences be served cumulatively with each other and upon the sentence imposed on Charge 1, making a total effective sentence of 4 years and 9 months imprisonment. I direct that you serve a minimum of 3 years and 4 months before being eligible for parole.
19 I declare that 260 days of pre-sentence detention be reckoned as having been served under the sentence and I direct that a declaration to that effect be recorded in the records of the court.
20 Section 6AAA of the Sentencing Act requires me to state the total effective sentence and the non parole period that I would have imposed had you pleaded not guilty and been convicted. Had you been convicted after a trial, I would have sentenced you to 6 years and 3 months’ imprisonment with a non-parole period of 4 years and 9 months.
21 I make the forfeiture and disposal orders sought, by consent.
22 Anything else?
23 COUNSEL: No, Your Honour.
24 HIS HONOUR: Thank you. Remove the prisoner, please.
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