Director of Public Prosecutions v Ly

[2017] VCC 339

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 16-02014

DIRECTOR OF PUBLIC PROSECUTIONS

v

TOMMY LY

RUBEN LOPEZ

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	30 March 2017
CASE MAY BE CITED AS:	DPP v Ly
MEDIUM NEUTRAL CITATION:	[2017] VCC 339

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Livitsanos
For Accused Ly	Mr C. Nikakis
For Accused Lopez	Mr H. Cooper

Pages 1 - 13

 

 

HIS HONOUR: 

1Tommy Ly, you pleaded to a number of charges on an indictment - potentially causing serious injury and intentionally cause injury, being a prohibited person in possession of a firearm and possess a drug of dependence. 

2Ruben Lopez, you have pleaded guilty to two charges of assisting an offender. 

3In September 2016, I sentenced Johnny Huyhn, your co-accused in the events which are the foundation for these offences.  I shall return to considerations which pertain to his sentence later. 

4The circumstances of the offending were summarised in the summary of prosecution opening which was exhibited and will be on the court file.  For purposes of this sentence, it is sufficient to state that on 26 November 2015, the Anastasiou brothers, Evangelos and Conn, went to an address in Sunshine - your home, Mr Ly.  They entered and went into the garage where the two of you were present with Hyun along with another man, Nilo.  You all sat in the garage for a while, talking.  It is clear from all the material that you, Ly and Huyhn knew what was to follow. 

5When Evangelos Anastasiou stood up and turned his back, you, Mr Ly, shot him in the back with a homemade shotgun, Charge 1.  He fell to the floor in great pain and could not move.  After this shooting, you, Mr Ly, together with Huyhn, punched and kicked him to the face and body area as he lay injured on the floor.  You were using a set of knuckle dusters, Charge 2. 

6Two of you, Mr Ly and Huyhn, then proceeded to interrogate him, accusing him of working for organised crime figures and police.  While you were questioning him, you, Mr Ly, held a knife to his throat and threatened to use a blow torch to burn his leg.  You then poured methylated spirits onto his legs and you threatened to light it. 

7Anastasiou, injured as he was, pleaded with each of the three of you to be able to leave and seek medical attention.  You, Mr Ly, filmed the part of the interrogation using Huyhn’s mobile phone.  In the recording, the Anastasiou brothers can be heard pleading with you, Mr Ly, to appease you. 

8Apart from the homemade shotgun, two other firearms were on the table in the garage.  You, Mr Ly, picked up one of them and told Nilo to clean up the blood.  This he did under duress from you because of the gun, Charge 3. 

9Huyhn also picked up one of the hand guns and pointed it at the feet of Evangelos Anastasiou and threatened to shoot him.  You, Ruben Lopez, at some stage took the keys from Anastasiou and drove his car out for a while.  When you returned, you took documents and some possessions and went back to the garage.  That is part of your Charges 5 and 6. 

10The details from those documents were copied by all three of you and the Anastasious were told that if they reported these events to the police, you would kill their family because you now knew where they lived. 

11One of you took also a mobile phone or a wallet.  You, Mr Lopez, again searched the vehicle before returning to the premises.  Just after the man, Nilo, left in his own vehicle, you, Mr Ly, walked out of the address holding a gun, got into Anastasiou's car, reversed it into the garage.  Evangelos Anastasiou was placed in the back of the car and allowed to drive away.  Huyhn gave him three Oxycontin tablets for his pain. 

12The Anastasiou brothers drove for the Western General Hospital and on arrival, Evangelos was unconscious and transported to the Royal Melbourne Hospital for surgery.  A number of pellets were left in place but the impact of the shot, however, had fractured his vertebrae and ribs.  He suffered ongoing pain and complications as a consequence of these injuries. 

13His brother, Con, sustained facial injuries including swelling and bruising to his nose, a laceration to the top of his head, scratches and lacerations to his back, arms and knees.  He had been injured soon after his brother's shooting when he thought to intervene and was in turn attacked himself.

14Mr Ly, you were arrested on 27 November 2015.  You told the police during your record of interview that Evangelos had treated you poorly and had not shown you any respect.  You admitted to the possession of the handmade gun but made no comment to all other questions.  At your premises, police located two handguns, bloodied clothing, an ecstasy pill, a quantity of methylamphetamine and a phone. 

15Firearm parts, live ammunition, spent ammunition, a knuckle duster, a knife, a bloodstained oxy torch were found in the garage to your home which had blood on the floor and damage consistent with shooting having taken place. 

16You, Mr Lopez, were arrested in early December.  A further search some days later at your address, Mr Ly, found a homemade sawn off shotgun hidden in the roof.  That is a part of Charge 3.  A computer hard drive was seized from that address with footage contained at that address.  Obtained from that address, I should say.  Footage which had been deleted was retrieved. 

17Investigations revealed that you, Mr Lopez, had sent texts to Huyhn in which you emphasised the importance of wiping clean the hard drive in Mr Ly's place.  You accompanied these messages with online articles and videos in relation to the shooting.  It is part of 5 and 6.  The video recording made with Mr Huyhn’s phone shows you, Mr Lopez, sitting in the garage at the time of the interrogation of Mr Anastasiou. 

18There is no victim impact statement from either victim but I can reasonably infer from the material and the circumstances that this was an event which would have caused the Anastasiou brothers, particularly Evangelos, substantial trauma and distress. 

19The injuries which he in particular suffered - this is Evangelos - often have long-term sequelae.  The infliction of injury in these circumstances was clearly premeditated and planned in advance by you, Mr Ly, and Mr Huyhn in company.  It was carried out with dangerous offensive weapons including firearms which were discharged to cause serious injury with potential for catastrophic and lethal, indeed possibly fatal, consequences in what, in effect, was a planned ambush on the victim who was then further assaulted when incapacitated. 

20The objective gravity of this offence and the moral culpability which accompanies it are high.  The assault on Conn Anastasiou is also serious, committed to further intimidate, injure and accompanied by violence - the violence already meted out to him and to his injured brother, and assault committed to prevent him from interfering with the proceedings and from assisting his brother.  I consider this assault upon him to be a serious example of this offence also. 

21Intentionally causing serious injury carries a seven-year maximum while intentionally cause injury has a ten-year maximum. 

22Where such offences are committed in a premeditated fashion, the community rightly looks to the court for punishment and for sentences which deter those who are like-minded to behave in this way.  The possession and use of firearms in the infliction of serious injury, the commission of criminal activity causes the community consternation and the prevalence of such criminality calls for community protection, the denunciation of such conduct and the application of the principle of general deterrence to justly punish under the circumstances. 

23The context of this criminality is somewhat shrouded although it is clear that this was some sort of reckoning within the drug world, the regulation of relationships aimed at making an example of the Anastasious and the demonstration of displeasure at some perceived slight.  Clearly, it is the hallmark of criminally corrupted values when an offender in your position, Mr Ly, speaks of seeking to enforce "respect" by violence. 

24The offence of assisting an offender carries a maximum of five years.  In my view, your offending, Mr Lopez, is in a wholly different category from that of
Mr Huyhn and Mr Ly.  However, it is also clear that your minimal participation was nevertheless active and willing.  There is no suggestion you did this out of fear, rather by misguided and a rather pathetic attempt to ingratiate yourself with Ly and Hyun. 

25You assisted with your presence, acquiescence and in the gathering of useful information which could be used to enforce the threat of violence and retaliation, and in endeavouring to ensure that evidence was destroyed to hamper the interests of justice.  This behaviour is not only as cowardly as Mr Ly's and
Mr Huyhn’s but motivated by corruption and loyalty, morally reprehensible and spineless.

26However, the low level of assistance must be recognised and properly addressed in the sentence and also in view of the fact that it was you who provided information to the police about the location of the shotgun. 

27I take each of your pleas of guilty into account.  They were relatively early pleas and will accord a discount on a sentence imposed on each of you.  I have found little indicators of remorse which would lead me to conclude each of you as remorseful.  However, I accept that your plea is some evidence of it.  I will deal with each of your personal circumstances separately and I will return to this aspect later. 

28Mr Ly, firstly, there is the matter of your prior history.  It commences in 2014 when aged 23 with driving and dishonesty offences for which you were placed on a community corrections order.  Those offences included a number of offences involving the possession of prohibited weapons.  In 2015, you were convicted and fined for each of possession of methylamphetamine and a controlled weapon and you were placed on a Commonwealth recognisance in March 2015 when convicted of using a carriage service to menace. 

29You breached that recognisance by this offending and you also breached another community corrections order which had been imposed only four months earlier for a number of offences and that earlier community corrections order of 2014 had been varied to perform 225 hours and be subject to a number of conditions to assist with your rehabilitation. 

30It is clear from this record that at that point, the actions of the court were unsuccessful in any rehabilitation or deterrent.  The likely cause of this is your ice use and involvement with the drugs.  It was submitted on your behalf that you had been using ice constantly for a week prior to the offences and this abuse had been ongoing for some time. 

31Such use although capable of explaining in part your behaviour does not provide for an excuse or any amelioration of the sentence.  Your offending was targeted and planned.  As a user of ice, your own experience of its effects would have been well known to you and in this sense, it can only be said to have fuelled your intent. 

32You are aged 25.  You arrived in Australia from Vietnam at age 9.  You experienced bullying and it’s consequent to stress at school and you experienced the alienating disconnection between your parents' culture and the surrounding culture. 

33You began using drugs and within that subculture gained confidence and kudos, earning a distortion of the value of respect.  When speaking to Carla Lechner, an experienced psychologist who described the offences as an attempt to redress a betrayal and demonstrated disrespect for which you wanted to intimidate the victim. 

34You are the older of two children.  You are single with no dependents.  Your parents are strict and hardworking and displeased with your academic progress.  They sent you back to Vietnam at age 14 for six months.  Whatever their intent in that, that sojourn was effectively unsupervised and counterproductive. 

35When you returned to Australia, you were soon expelled from school and that was the end of your formal education.  You remained mostly out of work.  You commenced but did not finish an apprenticeship. 

36By age 18, you had started drug use and that use increased in response to a break up of a long-term relationship subsequent to a miscarriage which was traumatic and depressing an event for you. 

37Prior to your remand, you were regularly smoking up to one and a half grams per day and would lose much sleep, often a week at a time.  Interestingly enough, you told Ms Lechner that you had found the reclusion a most salutary experience which had enabled you to remain abstinent from drug use to reconnect with your family, cut ties with former associates and attempt to gain a welding certificate in order to secure employment upon release. 

38You are the unit billet currently and are receiving family visits for which support you are grateful.  Your stimulant use disorder is therefore in remission and you have had some opportunity for insight and reflection.  You expressed regret and shame for your actions to Ms Lechner as well as some victim empathy. 

39Negative urine screens were tendered as well as certificates of participation in programs to do with drugs, managing mood and relapse prevention as well as a number of short vocational and educational courses, each of which I take into account.

40Your parents were and are in court for your plea and I consider this to be a positive factor for your future rehabilitation.  Without doubt, your history requires a degree of specific deterrence.  Your offences involving weapons and the drug association and lifestyle you have chosen are indications that such deterrence is required.

41Drug used over a period of years cannot easily be dispatched by mere enforced abstinence.  However, there are some positive aspects as outlined which mean that in the longer term of sustained abstinence, your rehabilitation prospects although guarded may be good for a person who is still 25 years of age. 

42It was submitted that this being the first time in custody, I should consider that the appropriate sentence was one which was said to bisect the sentence given to Hyun and the 6AAA sentence declared upon him which was six years with a non-parole period of four years.  It was submitted your role was similar to Huyhn’s. 

43I do not accept these submissions - neither the estimation of your role nor the convenient finding of a middle range appears to me to be the proper way I should approach this sentencing task.  I consider that yours was the leading role in this course of conduct.  Each of the others acted at your behest and at your direction.  Mr Huyhn’s sentence was significantly reduced not only by his plea but by his promise of assistance made by a sworn undertaking to the court which allowed me to further record a significant discount on his sentence. 

44Whilst I do consider that there are issues of parity to take into account, his situation is somewhat different both in role and circumstances than yours.  Your offending in my view is very grave and must be met with stern punishment.  The plea and the ameliorating factors must be given appropriate weight so as not to reach a crushing sentence but they do require a deterrent sentence.

45Ruben Lopez, you are 31 years of age.  You reside, until recently, with your parents and your partner, her daughter and your common daughter, an infant.  After some period of remand, you have been the subject of bail conditions which included a curfew and reporting. 

46At the time of the offending, you were living with your partner in separate accommodation.  She has had significantly traumatic episodes to deal with which were outlined in the report of Mr Geoffrey Cummins.  Although unrelated to you, it is clear your behaviour would have caused further stress and trauma to her and your relationship. 

47Your parents are from Chile originally and are hardworking people.  After you were bailed, you attended Mr Cummins on some five occasions for counselling but have ceased treatment due to financial difficulties. 

48When in custody, you completed some educational courses and you were regularly visited by your family.  Your schooling was unremarkable and you then entered the workforce and although you did not complete an apprenticeship which you had begun, you had done some manual labour while obtaining a security licence when aged 23. 

49For four years, you worked for Crown Casino.  But you then served nine months in relation to drug trafficking.  This brings me to your prior criminal history. 

50In April 2012, aged 27, you were placed on a community corrections order for driving offences, possession of drugs and of a precursor drug.  You managed to breach that order and you were imprisoned and fined for further offending related to drugs and weapons and dishonesty offences which was appealed and you were then imprisoned for a brief period. 

51In 2013, again on driving whilst disqualified, you were given a suspended sentence.  That was your last prior. 

52You started using methylamphetamine at age 23 and subsequent to the death of your young daughter, your use escalated to the point that at the time of these offences you were using up to half a gram a day. 

53It is clear in Mr Cummins' report that this loss has been traumatic but has remained perhaps unresolved and has led to a depressed mood.  These events can lead to a sense of despair and futility which are fuelled by the anxiety over your remaining children.  However, these and drug taking can provide no excuse, rather a background circumstance through which to evaluate your conduct because such emotional state can impair judgment and perception. 

54Since your release, you have been working casually as an industrial painter.  Although there is the prospect of future employment, it is not crystallised as yet.  You have endeavoured to advance your financial situation by importing a driver alarm which you hope to distribute.  You do owe Corrections over 200 hours of community work.  And I take into account the fact that you have spent 82 days on remand by way of pre-sentence detention which I will note for the court's records. 

55I also take into account that you provided assistance to Mr Anastasiou. 

56Mr Cummins assesses your risk of reoffending as low.  In my view, in the absence of drugs and your association with drug users and criminals which will determine your future and prospects of rehabilitation, I consider in your case that the imposition of a sentence by way of time served and of a community corrections order deals adequately with all the relevant sentencing principles which I am to apply. 

57In my view, a community corrections order is the most appropriate vehicle to provide both general and specific deterrence, just punishment and denunciation while hopefully providing you with an opportunity - an ongoing long-term rehabilitation.  As much is conceded by the Crown, it is admitted that this is an appropriate sentence. 

58Please stand, both of you.

59Mr Lopez, on the two charges of assisting an offender, you are convicted and sentenced to 82 days' imprisonment which I declare as being served by way of pre-sentence detention and to be placed on a community corrections order for 24 months; to perform 200 hours of community work; to be supervised during that period and to undergo assessment and treatment for drug rehabilitation.  But for your plea, I would have sentenced you to nine months' imprisonment. 

60Mr Ly, On Charge 1, you are convicted and sentenced to five years' imprisonment.  On Charge 2, you are convicted and sentenced to two years' imprisonment.  On Charge 3, possessing of the firearm, you are convicted and sentenced to 18 months' imprisonment.  And on possession of a drug of dependence, Charge 4, you are convicted and sentenced to six months' imprisonment. 

61I order that six months on Count 2, four months on Count 3 and two months on Count 4 be cumulative on Count 1, making a total effective sentence of six years.  I order a non-parole period of four years.  But for your plea, I would have imposed a sentence of seven years with a non-parole period of five years. 

62I note you have served 489 days by way of pre-sentence detention, excluding today.  I have signed forfeiture and disposal orders in relation to you, Mr Ly.  I have also signed an order for the taking of a biological sample under s.464ZF which was not opposed. 

63I should inform you that a police officer will ask you for the forensic procedure to be undergone - the taking of scraping from the mouth which is not a painful procedure.  If at that time you do not consent, then the authorised officer can use reasonable force to obtain a blood sample from you.  Do you understand?  Yes.  I have signed those orders.  Are there any other orders, Mr Livitsanos?

64MR LIVITSANOS:  No, there is not, Your Honour.

65HIS HONOUR:  Mr Lopez can step out of the dock and sign the documentation required for his order. 

66I should say that the duration of the community corrections order, if I have not made it clear, is 24 months. 

67VOICE:  No, you did.

68HIS HONOUR:  I did?  Yes.  Thank you, Mr Cooper, Mr Nikakis.  You are excused. 

69COUNSEL:  Thank you, Your Honour. 

70HIS HONOUR:  I will just wait on the Bench while that documentation is ready. 

71Mr Lopez, in signing that document, you have effectively made a promise to the court that you will keep the conditions of that order.  The community corrections order will require you to attend at appointments.  You will have to report initially within two days of today to the particular correctional offices.  You will then be given a number of appointments to keep.  You will have a number of people to meet and then you will be assigned to some community work. 

72If you are not used to having a diary, I suggest you learn how to use the one on your phone because if you attend - if you fail to attend without excuse over a number of occasions, that will probably start contravention proceedings in relation to that order.  I have given you that order in order to give you a chance to move out of the sort of associations that you got involved with in the past. 

73If you breach this order, you can be reassured that you will be brought back before me and if I am told that you either have not turned up for appointments or for supervision or for work, then I can punish you and I can resentence you on these particular matters.  And at that point of time, I can reassure you that you are not going to be walking out of that door there.  You are going to be walking out of that door there.  Do you understand what I am saying to you?

74OFFENDER LOPEZ:  Yes. 

75HIS HONOUR:  Good.  Take a seat.  I have another matter at 10.30.  I will stand down.

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