Director of Public Prosecutions v Matthew Nguyen

[2020] VCC 630

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

Revised

Not Restricted

Suitable for Publication

GENERAL LIST

CR-19-02219

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW NGUYEN

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JUDGE:	HER HONOUR JUDGE HASSAN
WHERE HELD:	Melbourne
DATE OF HEARING:	26 March and 30 April 2020
DATE OF SENTENCE:	18 May 2020
CASE MAY BE CITED AS:	DPP v Matthew Nguyen
MEDIUM NEUTRAL CITATION:	[2019] VCC 630

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Sentence — armed robbery — commit indictable offence while on bail — plea of guilty — offence committed in company — no prior convictions — adjustment disorder — post-traumatic stress disorder — time in custody more burdensome — imprisonment risks adversely affecting mental health — general deterrence — denunciation — prospect of rehabilitation — subject to substantially and materially greater than the ordinary burden or risks of imprisonment

Legislation Cited:     Sentencing Act 1991 (Vic)

Cases Cited:            R v Verdins (2007) 16 VR 269

Sentence:Total effective sentence of 25 days imprisonment and community correction order of 2 years

Section 6AAA declaration: 8 months in a youth justice detention centre

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R Hartshorne	Solicitor for the Office of Public Prosecutions
For the Accused	Mr D Swan	Victoria Legal Aid

HER HONOUR:

1Matthew Nguyen, you have pleaded guilty to a charge of armed robbery (charge 1), for which the maximum penalty is a term of imprisonment of 25 years. You have also pleaded guilty to a summary charge of commit an indictable offence while on bail, for which the maximum penalty is three months’ imprisonment.

2I intend to treat the fact of you being on bail when you committed charge 1 as an aggravating circumstance of that charge and therefore, to avoid double punishment, on the charge of committing an offence while on bail, you are convicted and discharged.

3You were born on 25 June 2000. You are presently 19 and were 19 when you committed the offences for which you fall to be sentenced.

4You have no prior convictions.

5The offence of armed robbery, when it is committed in company, is a category 2 offence pursuant to s 3(1) of the Sentencing Act 1991 (Vic) and therefore, pursuant to s 5(2H) of that Act, the Court must impose a sentence of imprisonment (other than a combined sentence of imprisonment and a community correction order under s 44) unless a special reason exists under ss 5(2H)(a)–(e) of the Act.

6Tendered on the plea as exhibit 1 was an amended ‘Summary of Prosecution Opening’ dated 27 February 2020.

7In brief, the circumstances of your offending were as follows.

8At around 2:40pm on 16 August 2019, the victim, Albert Yohanes, was outside Melbourne Central on La Trobe Street having a cigarette when he was approached by you and your two co-accused, David Nguyen and Dylan Nguyen.

9David Nguyen asked Mr Yohanes for money and when he said he had none, David Nguyen pulled out a knife and held it to Mr Yohanes’ upper body.

10You moved closer to Mr Yohanes and put your hands in his jacket and removed his portable phone charger.

11You had positioned yourself throughout the incident blocking the laneway so that Mr Yohanes could not escape, but after you removed his phone charger, he pushed passed you and left the scene.

12Your co-accused left the scene and followed Mr Yohanes and, observing him on the phone to police, returned his phone charger to him.

13You and your co-accused caught a taxi from the scene and were identified from CCTV footage obtained from the taxi company.

14You were arrested and participated in a record of interview on 12 September 2019, in which you stated, ‘I already know the allegations and I would like to proceed with a no-comment case but all I would like to say is on the day I was on Xanax and didn’t know that David had a weapon and it wasn’t a planned thing and it was on the spot’.

15You were charged on 12 September 2019 and were remanded. You were granted bail on 7 October 2019, and you have therefore served 25 days of pre-sentence detention.

16You pleaded guilty on 7 November 2019 at a committal case conference. This is a plea at the earliest opportunity. It has saved the cost of a trial and has utilitarian value. By virtue of your plea, you accept full criminal responsibility for your actions. I also accept that your plea is indicative of remorse.

17Your co-accused, Dylan Nguyen, has been committed to stand trial in this Court. Your co-accused, David Nguyen, had pleaded guilty and has been dealt with in the Children’s Court for this incident and a number of other armed robberies in which he was involved, and for which he received an adjourned undertaking without conviction.

18In these circumstances, considerations of parity do not arise in sentencing you.

19No victim impact statement has been tendered, but this must have been a frightening experience for Mr Yohanes, who was a foreign student living in Melbourne and who has now returned to Indonesia.

20I turn now to your personal circumstances.

21Your parents are Vietnamese. You were born in Australia. You are the middle child of a siblingship of three. You have an older sister and a younger brother.

22Your childhood was stable and happy. Your parents were hardworking people. Your father was a factory worker and your mother was a homemaker. Your father was a stern disciplinarian who physically disciplined all of his children, but there was no abuse in the home.

23You completed primary school at Keysborough and began secondary school at Copperfield Secondary College, but in year 8 you transferred to the Suzanne Corey High School, a selective-entry government school for high academic achievers, where you remained, completing your VCE in 2018.

24Unfortunately, you experienced bullying during your time at Suzanne Corey High School. It seems one student in particular bullied you, and you face a pending assault charge in relation to that student.

25A letter was tendered from Andrew Le, a former student wellbeing counsellor at the school. Mr Le says that you had behavioural issues throughout your time at the school. He says that he saw you and your parents on a number of occasions. Mr Le says that he quickly realised that your maladaptive behaviour was due to dysfunction in the family home.

26The dysfunction referred to by Mr Le was the breakdown of your parents’ marriage in acrimonious circumstances. Your parents began arguing about your father’s excessive gambling and the financial hardship the family was enduring. Your father then began to accuse your mother of having an affair because he found some of his condoms missing.

27Your parents separated in early 2018. Your father moved out of the family home and you have had no contact with your father since he left. Police became involved and there is a family violence intervention order to protect you, your mother and your siblings against your father.

28You met with and spoke to psychologist Gina Cidoni on 25 February 2020. Ms Cidoni prepared a report and a short addendum report, and also gave evidence at your plea.

29You told Ms Cidoni that you were shocked and devastated by your parents’ separation and the breakdown of your family. You told her that you blamed yourself because you had a taken some of your father’s condoms. You said you tried to tell your father during a terrible argument he was having with your mother, but he would not listen.

30You told Ms Cidoni that only around one month after your parents’ separation, your father started a new relationship. This upset you, your mother and your siblings, but you told Ms Cidoni that the family home is now a more peaceful place without your father.

31Returning to your education, after obtaining your VCE, you commenced tertiary studies, beginning a degree in business (economics and finance) at RMIT University at the beginning of 2019. You have completed term one. You hope to resume tertiary study and go on to become an accountant. You are keen to be able to support your mother. When you were interviewed by Ms Paula Astilean, a court advice worker, for a report I sought to address your suitability for a youth justice centre order, you told Ms Astilean that when your parents’ divorce is finalised, you will have the family home put in your name and you will pay the mortgage in order to assist your mother and your siblings. Your concern for your mother and your family and your desire to provide for them is admirable and bodes well for your rehabilitation.

32In addition to the breakdown of your parents’ marriage, you suffered a second traumatic incident which has adversely affected you.

33On 9 August 2019, you presented to the Sunshine Hospital Emergency Department with a stab wound to your right thigh.

34This occurred when a group of three males attempted to steal your bag. You resisted and were stabbed in the thigh. You did not report the matter to police.

35This incident occurred only seven days before the offending for which you now fall to be sentenced.

36Ms Cidoni, who in addition to meeting and speaking with you, also conducted psychological testing upon you, gives the opinion that you meet a dual diagnosis of adjustment disorder and post-traumatic stress disorder (‘PTSD’).

37The adjustment disorder is a consequence of family breakdown, and the PTSD may have some connection to the bullying you had experienced at school but is most particularly attributable to the stabbing in August 2019.

38Ms Cidoni gave evidence that young males, such as you, who have experienced violence and suffer consequential PTSD, often in response try to show strength and adopt the persona of the tough or indestructible male in order to cope. Ms Cidoni gives the opinion that your offending is a manifestation of precisely this kind of externalised coping behaviour.

39You also told Ms Cidoni that you had been binge drinking and smoking cannabis daily during the offending period. I have previously referred to your record of interview with police, in which you told police that you had also taken Xanax prior to the offending.

40On the basis of Ms Cidoni’s evidence, your counsel Mr Swan argued that Verdins principles 4, 5 and 6 were enlivened.[1] That is, your mental health difficulties reduce your moral culpability for the offending and would render your time in custody more difficult for you than for a prisoner in robust mental health, and the experience of imprisonment risks adversely affecting your mental health.

[1]R v Verdins (2007) 16 VR 269 (‘Verdins’).

41I accept the applicability of Verdins principles 5 and 6 in respect of the effects of imprisonment upon you, and I will discuss this more fully later in these reasons when I consider s 5(2H) of the Sentencing Act 1991 (Vic) and its application to you. For now, however, I reject the applicability of Verdins principle 4 to reduce your moral culpability.

42Ms Cidoni gave the opinion that

Mr Nguyen’s impaired mental state, combined with his immaturity and impressionability affected his capacity to understand the wrongfulness of his actions, to think clearly and make calm reasoned decisions and appropriate judgments, and it interfered with his control over his emotions and faculties where there is a causal link to his offending.

43However, she goes on to say,

He was binge drinking and smoking cannabis daily in the offending period [and] that would have encouraged disinhibition and further interfered with his decision-making, assessment and judgement when he involved himself in the offending.

44In her evidence at the plea, Ms Cidoni acknowledged that your mental health issues and substance abuse could not be disentangled. Cannabis consumption exacerbates the symptoms of both adjustment disorder and PTSD, and Ms Cidoni said that she could not say with any certainty what role drug consumption played in your offending beyond, again, acknowledging its disinhibiting effect and its impairment of judgment.

45I consider that, given the likely effects of your consumption of cannabis, alcohol and Xanax, the requisite causal connection between your offending and your mental health cannot be established and I consider that your self-induced intoxication must have contributed significantly to what occurred.

46I turn now to the gravity of your offending.

47Armed robbery is invariably a serious offence. The maximum penalty is 25 years’ imprisonment.

48Your offending is aggravated by being committed in company and by the fact that you were on bail at the time. However, I accept your counsel’s submission that, notwithstanding these aggravating features, your offending is at the lesser end of objective gravity. The prosecution also did not refute this characterisation. I accept it was opportunistic, unsophisticated offending.

49I also accept that you were unaware that David Nguyen had a knife until he produced it. However, consistent with your plea of guilty, you took the phone charger from Mr Yohanes at the time when you were aware your co-accused was threatening him with the knife.

50I turn now to relevant sentencing principles.

51In addition to specifying matters to which I must have regard in arriving at an appropriate sentence, the Sentencing Act 1991 (Vic) prescribes the purposes, indeed, the only purposes for which a sentence may be imposed. These are just punishment, deterrence, rehabilitation, denunciation, and protection of the community.

52General deterrence and denunciation are the primary sentencing considerations here. Armed robberies on defenceless individuals such as Mr Yohanes are common and are regarded as an easy means to gain cash or personal property. The message must be sent to others who would behave as you did that such behaviour is unacceptable.

53I do not regard specific deterrence as having any role to play, given your lack of prior convictions.

54I regard your prospects of rehabilitation as excellent, given your youth, your intelligence, your good relationship with your mother and your siblings, and the efforts you have made to address your drug and alcohol problems thus far, which have included participation in the Adolescent Community Programme following a referral from the Youth Community and Law Programme.

55You have been seeing alcohol and other drugs (‘AOD’) counsellor Beverly Grech, who states that, as at April 2020, you have completed five out of 10 set counselling sessions with her. She states that you are progressing well.

56You are also having anger management counselling with Ms Naomi Ngondu at the Countering Anger and Learning Moderation programme, and Ms Ngondu reports that you are engaging and doing well.

57You are working in a chocolate factory. You were previously working at a cheese factory and you have a demonstrated good work ethic, having worked during your studies.

58I now turn to what has been the focus of the plea, and that is whether I must, in accordance with Sentencing Act 1991 (Vic) s 5(2H), sentence you to a term of imprisonment, which includes a period of detention in youth justice, or whether an exception exists in your case.

59Your counsel argues the exception that applies in your case is ‘the offender has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment’.[2]

[2]Sentencing Act 1991 (Vic) s 5(2H)(c)(ii).

60Your counsel relies upon the dual diagnosis of Ms Cidoni in the context of the present restrictions on treatment in the prison setting brought about by the COVID-19 pandemic.

61I begin by returning to the consideration of Verdins principles 5 and 6 in your case.

62On the basis of Ms Cidoni’s evidence, I accept that, given your dual diagnosis of adjustment disorder and PTSD, imprisonment will be a greater burden on you than a prisoner in robust mental health and that the experience of custody may result in a deterioration in your mental health.

63Ms Cidoni gave evidence that you were suffering high levels of depression and anxiety. She said that your distress in response to your family breakdown was ‘exceptionally high’. She said that in early 2019, when you attended the first term of university, you may have been coming to terms with your family situation and coming out of the symptoms of your adjustment disorder, but when you were stabbed in August 2019, you then went on to develop PTSD.

64In terms of your PTSD, Ms Cidoni considered you were exhibiting what she described as the classic symptoms of PTSD, which are detachment, feelings of alienation and an inability to connect with others. It was her opinion that you would be unable to cope in either an adult custodial environment or a youth justice setting. She said in youth justice you may resort to the kind of externalised coping behaviour that she regarded as part of your offending behaviour, whereas in adult custody you would become increasingly withdrawn. In either case, your symptoms would worsen, in her view.

65Ms Cidoni reiterated that your adjustment disorder and your PTSD coexisted, and although they had different origins, they had similar symptoms. She said that if left untreated, and if you were further traumatised in a prison setting, these symptoms would worsen, and you may develop a chronic mental health condition. She said that the exacerbation of both an adjustment disorder and/or PTSD can increase the risk of developing a major depressive disorder which is, in effect, when an individual stops functioning and there is no capacity for the return to work or study, or to participate in relationships. Ms Cidoni considered that you were at risk of developing a major depressive disorder if incarcerated and you were potentially also at risk of developing a conduct disorder.

66This risk is heightened in the present context of COVID-19, where there are, at present, limitations on the treatment available in a custodial setting.

67The current situation in youth detention in terms of mental health treatment is that it is approximately two weeks for a clinician to be allocated, and for offence-specific treatment, a two to three-week delay.

68On the basis of Ms Cidoni’s evidence about your mental health and its potential to deteriorate markedly in a custodial setting, with the present circumstances potentially increasing that risk, I consider that you have established, on the balance of probabilities, that you have impaired mental functioning that would result in your being subject to substantially and materially greater than the ordinary burden or risks of imprisonment. Accordingly, s 5(2H) has no application to the sentence I impose.

69I had you assessed for both a community correction order and a youth justice centre order. You were assessed as suitable for both.

70I consider, in all the circumstances and weighing all relevant sentencing considerations as best I can, that a combined sentence of imprisonment followed by a community correction order is the appropriate sentence.

71I consider that it is in your interests and the community’s interests that the Court impose a sentence that supports your ongoing rehabilitation in combination with a punitive component. I intend to impose an immediate custodial sentence equivalent of time served.

72On charge 1, you are convicted and sentenced to 25 days’ imprisonment, in combination with a community correction order to last two years with the following conditions.

73You will need to report to Sunshine Community Corrections within two days. There will be 200 hours of community work. There will be conditions that you participate in treatment for drug and alcohol use and mental health. Fifty hours of your participation in treatment may be credited as work hours for the purposes of this order.

74You will be subject to supervision by Community Corrections. Judicial monitoring will take place on 23 November 2020 at 9:15am at this Court.

75During the whole of the two years of the order, you are to report to your community corrections officer any change of address of where you live or work, and that is to be done within two clear working days of the change happening.

76Throughout the order, you are to attend supervision meetings as directed, and allow visits as directed, and you must obey all lawful instructions of community corrections officers.

77You are not to leave the state of Victoria without prior permission of a community corrections officer and, above all, you are not to commit any offences that could result in a term of imprisonment.

78If you breach the order, either by not complying with any of the conditions or by further offending, you can expect to be brought back to Court and, depending on the circumstances of the breach or how much of the order has been satisfactorily completed, you could have the order confirmed or varied or be extended in time and conditions, or it could be cancelled and you could be re-sentenced for this offence.

79Mr Nguyen, you will come back before me on 23 November 2020. So, in the present circumstances, that is an extended period. I expect on that date you will have complied with each and every requirement of this community correction order, and that does not simply mean you will not further offend, that goes without saying; you are to attend each and every appointment, do each and every thing as directed, and that includes keeping appointments, not running 20 minutes late for appointments. What happened this morning does not bode well, but I expect it not to happen in the future.

80You are not being sentenced to any further time in custody. You may feel relieved, but you have committed serious criminal offending. You wear a criminal conviction and that is a very serious matter. I expect nothing like this to happen again in the future.

81Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty, you would have been sentenced to a total effective sentence of eight months in a youth justice detention centre.

82Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served 25 days of the sentence that I have passed upon you and I direct that this be entered into the records of the Court.

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