Director of Public Prosecutions v Ngo

[2021] VCC 2128

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 21-00145 & CR-21-00146

DIRECTOR OF PUBLIC PROSECUTIONS

v

OANH NGOC NGO
HAI LAM TRAN

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	29 November 2021
DATE OF SENTENCE:	16 December 2021
CASE MAY BE CITED AS:	DPP v Ngo & Anor
MEDIUM NEUTRAL CITATION:	[2021] VCC 2128

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Aggravated burglary – causing injury intentionally – contravene a family violence intervention order – persistent contravention of a family violence protection order – some pre meditation in the offending – reasonable/positive prospects of rehabilitation

Legislation Cited:                  Sentencing Act 1991; Mental Health Act 2014
Cases Cited:  Worboyes v R [2021] VSCA 169
Sentence:  Ngo: 18 months Community Corrections Order

Tran: 470 days’ imprisonment and a 12 month Community Corrections Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Raimondo (Plea) Mr J. McCarthy (Sentence)	Office of Public Prosecutions
For Accused Ngo	Ms K. Farrell	Stary Norton Halphen
For Accused Tran	Ms S. Locke (Plea) Mr A. Shirrefs (Sentence)	Furstenberg Law

HIS HONOUR:

Introduction

1Oanh Ngoc Ngo, you have pleaded guilty to a charge of aggravated burglary and a charge of causing injury intentionally.

2Hai Lam Tran, you have also pleaded guilty to a charge of aggravated burglary and a charge of causing injury intentionally.  You have also pleaded guilty to five charges of contravening a family violence protection order, including four charges of persistent contravention of a family violence protection order.

3The maximum penalties to which you have pleaded guilty are:

(a)   aggravated burglary – 25 years' imprisonment;

(b)   causing injury intentionally – 10 years' imprisonment;

(c)   contravene a family violence intervention order – 2 years' imprisonment;

(d)   persistent contravention of a family violence protection order – 5 years' imprisonment.   

Circumstances

4Ms Ngo and Mr Tran, you were or had been in a relationship.  You separated some time before 4 September 2019.  However, you remained friends.  Ms Ngo, you believed the victim, Quang Hung Pham, had told others that you had been sleeping with him.  This was untrue and you wanted to confront Mr Pham about this falsehood.  You enlisted the aid of Mr Tran.

5At about midnight on 4 September 2019, both of you went to the house where Mr Pham lived.  You entered through an unlocked front door.  Another resident in the house directed you to his room.  You, Ms Ngo, knocked loudly.  When he opened the door, you lunged in, grabbed him in a bear hug and yelled –
'Have you ever been sleeping with me?'.  You, Mr Tran, then entered the bedroom.  You held in your right hand what has been described as a 'multi-tool'.  You usually carried this object in a pouch at your side.  One of the tools had been extracted.  You thought it was a pair of pliers.  Mr Pham thought it was a knife.  The prosecution does not allege it was a knife.  Nevertheless, you used it to stab Mr Pham in the head, causing a small cut to his scalp which bled profusely.  You tried to stab him again but missed.  All three of you fell to the ground.  On the ground, Mr Tran, you tried to stab him again but failed.  You struck him to the top of his left arm with your elbow, causing pain and bruising.  These circumstances constitute the charges of aggravated burglary and causing injury intentionally.

6Another resident heard the commotion.  He intervened, pulled both of you off Mr Pham and you fled.

7An ambulance took Mr Pham to a nearby hospital.  His scalp wound was cleaned.  No stitches were needed.  He was observed for a short while and then discharged.

8Both of you were arrested on 6 September 2019.  Both of you made admissions when interviewed by the police.

Family Violence Contraventions

9Mr Tran, you have pleaded guilty to charges relating to the contravention of a family violence intervention order.

10The first charge of contravening a family violence intervention order concerns the period between 4 and 6 September 2019 and deals with the contact between you and Ms Ngo from the time of the principal offences and your arrest on 6 September.

11The remaining charges of persistent contravention of a family violence intervention order concerns your contact with Ms Ngo by phone or in person between September and December 2019.  This occurred while you were in custody and having the incorrect belief that the order has ceased.

Personal Circumstances: Mr Tran

12Mr Tran, you are now 49.  You were born in Vietnam.  You have four siblings, three of whom live in Australia and the other, in America.

13In 1984 or 1985, your family fled Vietnam and took refuge in a camp in Malaysia.  About a year later, your family arrived in Australia.

14Your education was impaired by the conditions in Vietnam and, after your arrival in Australia, by your lack of English.  Nevertheless, you completed Year 10 and left school during Year 11.

15Your father died in 1995.  He was the driving force behind the family.  You were extremely distressed by his death.  At that stage, you were working in the family's sewing business with your father.  You ceased working and remained unemployed for several years.  You also started smoking cannabis following his death.  Afterwards, your family moved to Melbourne.

16In 2000, you married Phung and you have two children, now aged 19 and 21.  In 2004, you and Ms Phung separated.  In 2005, you married Thanh, only to separate after the birth of a child.  There are two children of that relationship, now aged 10 and 13.  In 2017, you started a relationship with Ms Ngo.

17As your criminal history suggests, you have had a serious addiction to illicit drugs.  Starting with cannabis, you moved to using ecstasy and heroin.  By about 2010, you started using amphetamines (including methamphetamines), cocaine and GHB.

18You are unemployed now.  As I said earlier, you remained unemployed for several years following the death of your father.  Since then, your employment has been patchy with stints working as a mechanic, a panel beater and in a clothing and accessories shop.  Its patchiness was due to your drug addiction.

19You suffer from chronic Hepatitis B.  Apparently, it was diagnosed in November 2019 when you were in prison.  In June 2020, you started taking anti-viral medicine.  It is likely you will need to take such medicines for the rest of your life.  Not taking the medicines will likely lead to liver cancer.  In any event,
half-yearly ultrasound imaging will be necessary to detect the early development of liver cancer.  You require regular medical attention through your general practitioner and, if necessary, through a specialised unit in a hospital.  The prognosis is uncertain.  Since your father died of liver cancer, the state of your condition is a matter of great anxiety for you.    

Personal Circumstances: Ms Ngo

20Ms Ngo, you are now 48.  You were born in Vietnam.  You are one of seven children.  When you were 9 or 10, your family fled Vietnam and reached Indonesia.  You lived there in a refugee camp.  After three years, your family came to Australia.  After two years in Perth, your family travelled to Footscray.

21Despite your lack of English, you completed Year 12 and then a degree in nursing.

22You worked as a nurse for five years.  You ceased with the birth of your first child.  The birth of your second child was traumatic for you.  You took a long time to recover.  Having done so, you resumed working as a nurse.

23You have had two relationships.  The first, with Alex, lasted 20 years.  You have two children by these men.  You had been in an 'on and off' relationship with Mr Tran, although at the time of the offences an intervention order prevented him from having any contact with you.

24More than 10 years ago, you were severely injured in an attack.  You used methamphetamines to help you cope with the effects of that assault.  Whether related to the assault or not, you suffer from a schizoaffective disorder for which you are treated.  The disorder prevents you from working and you receive a disability support pension.

25In November 2017, one of your sisters died after being shot.  Although someone has been charged with murder, the charge has not yet been determined.  Her traumatic death and its aftermath causes you distress.  The death of one of your brothers adds to your distress. 

26You live alone in a flat in Braybrook.  You maintain a good relationship with your children.  You are religious, attending church regularly.  You find solace in your religion.

Dr Kevin Ong

27Kevin Ong is a forensic psychiatrist.  On 19 August 2021, he interviewed you at the request of your solicitors.

28He accepted the established diagnosis of you suffering from a schizoaffective disorder.  Its onset was within the last decade.  When you are unwell, you suffer from depressive symptoms, persecutory delusions and visual hallucinations.  These symptoms often occur when you experience stress in your relationships and not taking your medicine.  The symptoms are perpetuated by your use of illicit substances, mainly methamphetamines.

29You told Dr Ong that you had used methamphetamines on the day of the offences.  He considered this use was likely to have a disinhibiting effect on you, increasing your irritability and impulsivity.

30Dr Ong considered you are stable at present.  He thought it was important for you to receive drug counselling to reduce and eliminate your use of methamphetamines.  Second, he considered you need ongoing treatment with anti-psychotic medicines.  If there were early signs of relapse into psychosis, he recommended a referral to a local area mental health service.  In the meanwhile, you should continue seeing your general practitioner.  He or she would refer you to that service if alerted to those early signs.

31Noting your mental health history and your earlier employment in the prison system, Dr Ong considered, if imprisoned, you would be more at risk of decompensation in your mental state than someone without your mental health issues.

Discussion

32Section 5(1) of the Sentencing Act 1991 (‘the Act’) sets out the purposes for which sentences may be imposed:

(a)   to punish an offender to the extent and in a manner which is just in all of the circumstances;

(b)   to deter an offender or other persons from committing offences of the same or a similar character;

(c)   to establish conditions within which it is considered that an offender's rehabilitation may be facilitated;

(d)   to manifest the denunciation of the type of conduct the offender engaged in;

(e)   to protect the community from the offender.

33In most cases, one or more of those purposes are relevant.  It is true in your respective cases.  

34Plainly, the purposes of deterring you and deterring others from committing these offences or similar offences are important.  As your respective counsels acknowledge, the offence of aggravated burglary, involving the use of a weapon, is a serious offence.

35In relation to you, Ms Ngo, your psychological disorder is stable at present but can deteriorate in certain circumstances.  Then your condition can be sufficiently severe to require compulsory treatment under the Mental Health Act 2014. The sentencing purpose of general deterrence has much less application to you. Few persons would identify with you sufficiently to be deterred by my sentence of you.

36My sentences should nonetheless manifest a denunciation of these offences.  They should also act to protect the community from you.  Aspects of these purposes may be achieved through your respective rehabilitation.  For if you are rehabilitated, then you will not re-offend by committing these or similar offences again.

37Section 5(2) of the same Act sets out factors which I must, if they are relevant, take into account in sentencing you.

Gravity of the offences

38There was some premeditation in your offending.  You went to the victim's home to confront him.  It was not overly planned but it was not spontaneous.  The use of the tool was spontaneous, occurring after you, Mr Tran, saw Ms Ngo tussling with the victim.

39Ms Ngo, you were angry with the victim.  You wanted to confront him.  Mr Tran, you accompanied Ms Ngo to support her.  Your actions with the tool were intended to strike the victim.  

Moral culpability

40Mr Tran, there is nothing in the circumstances to reduce your blameworthiness for your actions on the night.  On the other hand, Ms Ngo, your blameworthiness is somewhat reduced by the underlying effects of your psychological disorder.  In normal circumstances, it renders you irritable and impulsive.   

Co-operation with the police

41You, Mr Tran co-operated fully with the police when interviewed.  Your denial of using a knife did not detract from the extent of your co-operation for it is accepted you did not use a knife. 

Pre-sentence detention

42Ms Ngo, you spent one day in custody before being bailed.  Mr Tran, you spent 470 days in custody before being bailed on 18 December 2020.  A good part of that time was spent in more restricted custody due to the pandemic.

Criminal histories

43Ms Ngo, between 6 October 2010 and 23 March 2017, you have been sentenced in a criminal court on seven occasions for a total of 17 charges.  The majority of the charges relate to drug offences.  You have never been sentenced to immediate imprisonment although twice you were sentenced to suspended sentences of imprisonment. There is a gap of five years between your second-last and last appearances in court.  Your last appearance was in March 2017 when, without conviction, you were placed on an adjourned undertaking for driving while suspended.

44Mr Tran, between 12 March 2002 and 16 August 2018, you have appeared in a criminal court on eight occasions and have been sentenced for 57 charges.  You have been sentenced to imprisonment on four of those occasions.  The most significant sentence was imposed in this Court for your first appearance in court.  On 12 March 2002, you were sentenced to 5 years' imprisonment with a non-parole period of 3 years for the charge of trafficking heroin.  Drug offences figure prominently in your criminal history.

Guilty pleas

45Both you pleaded guilty to these offences on the morning of the committal hearing before any evidence was given.  Prior to the committal hearing, there had been two committal case conferences.  Your pleas were not entered or indicated at the earliest reasonable opportunity.  That would have occurred at the first committal case conference.  However, they were entered at an early opportunity.

46In almost every case, a plea of guilty deserves a mitigation of the sentence which would otherwise be imposed in the absence of such a plea.  At the very least, it avoids the need for a trial.  This saves time and the expense of a trial and allows other cases to be heard earlier than would otherwise be the case.  It avoids the need for witnesses to give evidence at a trial.  Generally, this is an onerous task for witnesses and, particularly so where there is a victim of your crimes.

47Due to the restrictions caused by the pandemic, the courts have struggled to deal with criminal cases efficiently.  This has prompted the Court of Appeal in the case of Worboyes v R[1] to explain that pleas of guilty, made at this time, are worthy of even a greater discount of sentence.  It is important to quote a passage from the Court's judgment in Worboyes' case to show the emphasis placed on pleas of guilty in this time of restrictions:[2]

‘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.

[2] [2021] VSCA 169 at [35].

48I accept your respective pleas of guilty are evidence of remorse.

49Overall, your respective pleas of guilty require a very significant discount on the sentences which would otherwise have been imposed.

Prospects of rehabilitation  

50As to the prospects of rehabilitation, starting with you, Mr Tran, you were arrested on 6 September 2019 and remained in custody until 18 December 2020 when you were bailed.  You have remained on bail since then.  One of the conditions of your bail was to comply with the conditions of the
Court Integrated Services Program.  Admitted into evidence were several reports of your case manager under the program.  The final report dated
29 July 2021, summarises your progress with the program.

51Over the years, I have read many such reports.  Over a period of 33 weeks, you have performed admirably on the program – far better than most.

52You maintain a close relationship with your family.  Your relationship with your mother has markedly improved.  You now live with her and help her around the house.  Four of your children live in Melbourne and you have strived to maintain contact with them.    

53Coupled with your abstinence from using illicit drugs following your release from custody, it lends considerable support to your counsel's submission that your prospects of rehabilitation are 'positive', to use her word.  I accept that categorisation.

54Ms Ngo, your counsel submitted your prospects of rehabilitation are good.  
I consider they are reasonable.  Dr Ong's assessment places significant question marks over your ability to avoid decompensation.  Nevertheless, very largely, you have not been in trouble with the law since 2012.  In any event, violence was not the kind of offending you committed in the past.  You have been on bail for a considerable time and have obeyed its conditions.  You have the support of your family.  I would not consider you religious practices as necessarily bearing on your rehabilitation.  It did not seem to prevent your offending in the first place.   

Community Correction Order Assessments

55Each of you has been assessed in respect of a Community Correction Order.

56Mr Tran, you were assessed as a medium risk of re-offending and as suitable for such an Order with the assessor making recommendations as to certain conditions.  Despite the inability of a mental health assessor to speak with you, I will adopt the recommendations, including the recommendation as to mental health.

57Ms Ngo, you were assessed as a high risk of re-offending and also assessed as suitable for a Community Correction Order.  The assessor made the same recommendations as to conditions as were made for Mr Tran.  

Sentence

58Mr Tran, I will sentence you as follows:

(a)   on Charge 2, a charge of aggravated burglary, I will sentence you to 470 days' imprisonment;

(b)   on Charge 3, a charge of intentionally causing injury to Mr Pham and on the five summary charges of contravention and persistent contravention of a family violence intervention order, subject to your consent, I will sentence you to a Community Correction Order for 12 months with these conditions:   

(i)to perform 200 hours of unpaid community work over the period of 12 months;

(ii)to undergo any assessment and treatment (including testing) for drug abuse or dependency;

(iii)to undergo any mental health assessments and treatment;

(iv)to undertake any programme that addresses factors related to your offending behaviour;

(v)be subject to being supervised, monitored and managed by the Secretary.

59In relation to the unpaid community work and the treatment and rehabilitation conditions, I will direct that all of the hours that you spend satisfactorily in relation to treatment and rehabilitation conditions, will be counted towards the hours in respect of unpaid community work.

60Ms Ngo, I will sentence you on Charge 1, a charge of aggravated burglary and on Charge 3, being a charge of intentionally causing injury to Mr Pham, with your consent, to a Community Correction Order of 18 months' duration with the same conditions attaching to Mr Tran's order except for the condition relating to unpaid community work.  Given your psychological state, I doubt you would be able to undertake unpaid community work successfully.

Pre-sentence detention

61Mr Tran, I will declare the 470 days of your pre-sentence detention as time served under my sentence today.

Section 6AAA Declaration

62Absent your pleas of guilty, Mr Tran, I would have sentenced you to a total effective sentence of 30 months' imprisonment and set a non-parole period of 20 months' imprisonment.

63For you, Ms Ngo, I would have sentenced you to an aggregate sentence of
9 months' imprisonment.

64Are there any matters that I have not addressed in these reasons, that counsel wish to raise with me?

65MR McCARTHY:  No, Your Honour.

66MS FARRELL:  No, Your Honour.

67MR SHIRREFS:  No, Your Honour.

68HIS HONOUR:  All right.  Mr Shirrefs and Ms Farrell, I need to hear that your respective clients would consent to entering into community correction orders.  Do you want a moment to obtain those instructions?

69MS FARRELL:  Yes, please, Your Honour.

70MR SHIRREFS:  Yes, Your Honour.

71HIS HONOUR:  All right.  Well, please go back to them at the - if you are able to do so, while they are in the Dock, and seek those instructions.

72MS FARRELL:  Ms Ngo consents, Your Honour.

73MR SHIRREFS:  Mr Tran consents, Your Honour.

74HIS HONOUR:  Thank you.  I'm not sure if it is necessary for me to direct, but both Ms Ngo and Mr Tran should put in their first appearance at the Sunshine Community Corrections Centre.  It has to be 48 hours, so it is tomorrow, Monday.  So, would it be Tuesday?  I think we ignore today.  So, it would be by Tuesday 21 December by 4 pm?  Does anyone wish to make any submission on that?

75MS FARRELL:  No, Your Honour.

76MR McCARTHY:  No, Your Honour.

77HIS HONOUR:  Mr McCarthy?

78MR McCARTHY:  No issues, Your Honour.

79HIS HONOUR:  All right.  Well, I direct then that they would attend at the - each of them, at the Sunshine Community Corrections Centre by 4 pm on
21 December.  They can attend before then, but they have to put in their first appearance by that time on that day.  Are there any other matters that any counsel wishes to raise?

80MS FARRELL:  No, Your Honour.

81MR McCARTHY:  No, Your Honour.

82MR SHIRREFS:  No, Your Honour.

83HIS HONOUR:  All right, well I thank you all for your assistance in this matter.  I will ask my tipstaff to adjourn the court.

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