Director of Public Prosecutions v Mai

[2016] VCC 1378

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-01196

DIRECTOR OF PUBLIC PROSECUTIONS

v

LONG THE MAI

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	14 September 2016
DATE OF SENTENCE:	14 September 2016
CASE MAY BE CITED AS:	DPP v Mai
MEDIUM NEUTRAL CITATION:	[2016] VCC 1378

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 D. Hannan, Ms B. Yildiz	OPP
For the Accused	Mr N. Leslie	WINSTAN LAWYERS

HIS HONOUR:

1Long The Mai, you pleaded guilty to the following charges on Indictment G10954463. 

2Charge 1, aggravated burglary.  This offence has a maximum penalty of 25 years' imprisonment. 

3Charge 2, recklessly causing serious injury to Brian Toohey.  This offence has a maximum penalty of 15 years' imprisonment.

BACKGROUND TO THE OFFENDING

4You were married to Phuong Dao in Vietnam in 2003.  There are two children of that marriage.  In 2011 you were separated from Ms Dao.  After the separation you kept in contact with Ms Dao and regularly had access with your two children. 

5In 2013 Ms Dao commenced a relationship with Brian Toohey, who is the victim of your offending. In that year Mr Toohey and Ms Dao purchased a house in Taylors Lakes. Ms Dao and the children lived in that house.  Sometimes Mr Toohey would stay at the house but he remained living at his Brunswick apartment, Number 5/76 Brunswick Road in Brunswick, as his principal address.

6In May 2014 Ms Dao and Mr Toohey married.  During this period there were amicable arrangements between yourself, Mr Toohey and Ms Dao for you to regularly see your children and on occasion look after them at the Taylors Lakes house.

7On Friday 8 August 2014 at 9.30 am you telephoned Ms Dao and asked to come around and see the children sometime after work that day.  Ms Dao called you at 10.13 pm asking your whereabouts as you had not arrived at the house.  She had already put the children to bed.

8Ms Dao left the house about five minutes before you arrived, but rang shortly after leaving the house to confirm that you had arrived at the house at Taylors Lakes.  She drove straight to Mr Toohey's apartment in Brunswick, intent on staying the night, knowing that you were looking after the children.  This was not an unusual occurrence.

CIRCUMSTANCES OF OFFENDING

Charge 1- Aggravated Burglary

9At about 1 am on 9 August 2014 Mr Toohey woke up to use the bathroom.  He noticed that the light was on in the lounge room. That light was never used.  He suspected someone was in the apartment.  He returned to the bedroom to tell Ms Dao of his suspicions. It was then that you appeared in the bedroom doorway and announced your appearance by saying, "I'm here."  You had come through the unlocked front door of the unit unannounced.  That is the aggravated burglary charge.

Charge 2- Recklessly Causing Serious Injury

10You yelled at Ms Dao, accusing her of leaving the kids at home alone so that she could come over to her husband's house.  You held a boning knife in your hand and you were waving it around erratically whilst yelling and screaming.

11Mr Toohey told you to keep calm and told you to get out.  He held his hands in the air, motioning to you to leave through the door.  Mr Toohey grabbed a doona for some type of protection, thinking that he might be able to cover the knife safely.  As he moved closer you continued to wave the knife around in a threatening manner. Mr Toohey then realised that he had been stabbed in the right arm.  The blood loss was immediate and substantial. 

12You then retreated to the lounge room before Mr Toohey shouted that he needed an ambulance.  You have then grabbed a belt and wrapped it around Mr Toohey's arm in an attempt to stem the blood loss.

13The 000 operator advised against that method and towels were used instead before the ambulance arrived.  Mr Toohey was taken straight to St Vincent's Hospital to receive treatment to the large laceration to his right arm.  He underwent surgery the same night or early morning, repairing the wound, the artery and the damaged tendons in his arm.  He was discharged without complication the next day.

14On the day of the offences you fled the scene of the crime prior to the police and the ambulance arriving at the Brunswick apartment.  You made no contact with Ms Dao or her children until March 2016.  The reason for your contact with Ms Dao was to see your children.  You refused to tell her where you were living or working.

15An arrangement was made with Ms Dao to access the children at Hoskins Reserve in Coburg.  The police were notified.  On 8 April 2016 you were arrested by the police at Hoskins Reserve in Coburg.  You exercised your right to silence in the record of interview.  You were bailed on 22 April 2016 and therefore have spent 15 days in pre-sentence detention.

YOUR PERSONAL CIRCUMSTANCES

16You turn 37 years old next week.  You were born in Vietnam and remain a Vietnamese national.  Your parents and two brothers reside in Hung Yen Province in Vietnam.  You were educated to Year 12 and completed a Diploma of Geography in the year 2000.  You worked professionally in Vietnam for ten years.  You then came to Australia in January of 2011 with your first wife and two children.

17You were originally married to Ms Dao in Vietnam in 2003.  Your first child, Trang, was born in July 2004.  Your daughter was diagnosed with Turner's Syndrome when she was three years old.  She is now 12 years old.  Your second daughter was born in August 2010, shortly before you came to Australia.  She is now six years old.  The two girls live with Ms Dao.

18Since your offending in this case you have met your current wife, Chui Li Huang.  You were married on 20 March 2016, some two to three weeks before your arrest for these offences.  You have one child of that relationship, a son, Leonard, who was born on 17 May 2016.

19When you came to Australia you were on a student visa.  I was told that you were studying a Master of Business.  For the last three years you have been working as a chicken boner for Vic Fresh Poultry in Thomastown. 

20You have no prior convictions and in the period between these offences and today have not come to the notice of police for subsequent offending.

SENTENCING CONSIDERATIONS

21The basic purpose for which a court may impose a sentence of imprisonment is just punishment, deterrence, both specific and general, rehabilitation, denunciation of your actions and the protection of the community.

22In sentencing you, I must have regard to a range of factors, such as the seriousness of your offences, your culpability for them and your personal circumstances and those of your victim.  I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, you, as an offender rehabilitated and reintegrated into society.

23You have pleaded guilty at an early stage in these proceedings.  Your plea has the utilitarian value of allowing the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.

24Your plea also allows for the preservation of court and police resources to deal with other matters.  Your plea vindicates public confidence in the legal process set up to protect the community.  You have by your plea relieved your victims from giving evidence against you.  It facilitates some closure for them as victims of your offending.

25Your plea is also a clear acknowledgment by you that you accept the responsibility for your criminal behaviour in this case.  Your plea also recognises that you are willing to facilitate the course of justice in the community.  I accept that your plea of guilty to these charges indicates and demonstrates remorse on your part.

26In your case you have demonstrated some empathy for Mr Toohey by attending to his wound and ringing 000 for the ambulance to attend at his address.  This action by you also reinforces an assessment that you have demonstrated remorse for your offending.

27The offending in this case by you is intrinsically serious.  The aggravated burglary charge occurs in a setting where you have planned the offending.  You have gone armed with a weapon of a boning knife.  You attended the Brunswick apartment armed with a boning knife and knowing that Mr Toohey and your former wife, Ms Dao, would be at the premises.  The fact that the door of the apartment was unlocked does not lessen your offending, it just means a further aggravating feature of the offence is not relevant.

28The Court of Appeal in Hogarth's case and later in Anderson's case has set out the seriousness of the offence of aggravated burglary as it relates to the confrontation aggravated burglaries and intimate relationship aggravated burglaries.

29You expected your former wife to be in the Brunswick apartment and you were seeking to have it out with her because she had left the children in the house alone before you had got to the Taylors Lakes home.

30I have applied the principles set out in Hogarth's and Anderson's case when sentencing you.  You have no prior criminal history and no subsequent offending.  I take into account these matters when assessing your prospects of rehabilitation.  I assess you as a good prospect of rehabilitation given your previous good record, your education, your display of empathy with
Mr Toohey and your family support and responsibilities here in Australia.

31I take into account the statutory declarations of Ha The Dao and Chui Li Huang, who is your wife, and the handwritten reference from Quang Cuong Bui when making this assessment.

32I accept that by your plea of guilty to the charges of recklessly causing serious injury you acknowledge that when you wounded
 Mr Toohey with the knife you were aware that he would probably suffer a serious injury.

33You were working as a chicken boner, you knew how to use a knife and the potential it had for serious injury.  You foresaw the high probability that a serious injury would result from your use of the knife on Mr Toohey.  Fortunately
Mr Toohey was able to be repaired by surgery on the night at hospital and released the next day without follow up complications.  That is probably due to good luck rather than good management on your behalf.

34In determining the seriousness of this particular offence of recklessly cause serious injury I have to consider both:

a) the degree of probability that serious injury will result; and

b) the seriousness of the probable injury foreseen. 

35I assess that the injury caused to Mr Toohey falls in the mid-range seriousness for this offence.  Whilst it had the potential to be life threatening that is not the reality in this case.

36It was told by the prosecutor that Mr Toohey was afforded the opportunity to make and file a victim impact statement.  That has not eventuated.  There was no medical reports setting out the extent of the surgery required to repair the wound to Mr Toohey.

37I am mindful that this will be your first time in custody.  I take into account that your separation from your newly born son will make your time in custody more burdensome.  In balancing that consideration I note that you “disappeared” from your daughter’s lives for 18 months, the period between your offending and your arrest.

38The principles of general deterrence, denunciation of your actions and just punishment dictate that the only proper sentence is a term of imprisonment.  Given your prior good character, remorse, display of empathy at the time of your offending, specific deterrence is not of high significance in your sentence, except in respect of fixing a non-parole period.

SENTENCE

39On Charge 1, you are convicted and sentenced to three years' imprisonment. 

40On Charge 2 you are convicted and sentenced to two years' imprisonment. 

41I direct that one year of the sentence on Charge 2 be served cumulatively on the sentence in Charge 1 and on each other. 

42That is a total effective sentence of four years' imprisonment.

43I fix a non-parole period of two and a half years. 

44I declare that you have served 15 days pre-sentence detention which is to be deducted administratively from that sentence.

45Pursuant to s.6AAA of the Sentencing Act but for your plea of guilty I would have sentenced you to seven years imprisonment with a five year non-parole period.

46The prosecution sought a forensic sample under s.464ZF, which as I understood, was consented to by you.  I will just explain that to you.  What that means is the authorities can take from you by way of a swab inside your mouth some saliva in order to obtain a DNA sample.  If you do not comply with that they can use reasonable force in order to obtain that sample.  Do you understand that?  Thank you.  I will sign the 464ZF order.

47Is there anything further I should attend to, Madam Prosecutor?

48MS YILDIZ:  No, Your Honour.

49MR LESLIE:  Nothing from this side, Your Honour.

50HIS HONOUR:  Thank you.  You can remove the prisoner, thank you.

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