Director of Public Prosecutions v Ngo, Heng
[2013] VCC 558
•16 April 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HENG NGO |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 April 2013 | |
DATE OF SENTENCE: | 16 April 2013 | |
CASE MAY BE CITED AS: | DPP v Ngo, Heng | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 558 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms D. Manova | Office of Public Prosecutions |
| For the Accused | Mr C. Mandy |
HIS HONOUR:
1 Heng Ngo you have pleaded guilty to one count of intentionally causing injury. That crime carries a maximum penalty of ten years imprisonment. You pleaded guilty to a settled presentment which in my view can be regarded as being at a reasonably early time. I have some doubt as whether there is really much remorse as you have very little recollection I accept, of the incident.
2 The fact of the matter is though that there must be a significant benefit for the utilitarian purposes of such a plea of guilty. It saved the public obviously the cost of a trial and the victim, the trauma of giving evidence.
3 You are now 38 years of age. You have an extensive criminal history, though as your counsel pointed out, one has to be very careful with these criminal history reports as they often double up and refer to appeals and the like. Be that as it may, you have a very significant number of prior convictions for mainly dishonesty, drug use and trafficking.
4 Back in the early 90s you do have two or three prior convictions for violence the circumstances of which I am unaware and I have no doubt you have no memory. Subsequent to that you also have from what I can work out, one or two convictions for assaulting police which would appear to be in circumstances when you were in custody. It is not a prolific history of violence but is of I suppose, some significance in the overall scheme of things.
5
The circumstances of the offending were that a Mr Chan Tin Nguyen owed money to a Mr Vu. Mr Vu asked Mr Nguyen over for dinner. Mr Vu went; you were in the house and were asleep on a mattress. How you came to be in that position I have no idea. In any event, when Mr Nguyen attended at the house he met Mr Vu, who I am yet to sentence, and Mr Vu showed you to him in the position that you were on the mattress. This was in a room in the house where Mr Vu went and punched you on the knee and said to you, "Show him the stuff from the house." I have no understanding of what that is supposed to mean but I assume it is in the depositions somewhere. You woke up and
Mr Vu went to close the door to what is described as the playroom.
6 Mr Vu then stood facing the room with his back to the door, reached behind his back and pulled out a knife. You also pulled out a knife. There was something of a scuffle and Mr Vu grabbed Mr Nguyen's mobile phone and smashed it. You are not charged with any of that conduct. Mr Nguyen, then somewhat understandably, began running towards the door, pushing the two of you out of the way. It was at that point in time that the offending for which I am to sentence you, took place.
7 As Mr Nguyen ran towards the door he saw Mr Vu stand to his left. Mr Vu yelled out to him, "You mother fucker, you deserve to die." When Mr Nguyen arrived at the door he could not open it. As he struggled with it he was stabbed in the left shoulder and he saw Mr Vu standing close to him with a knife in his hands. He then pushed Vu aside and ran towards the back door. As he tried to open the back door you kicked the door shut. You and Vu then both began stabbing him in the arm and head. He somehow managed to get the door open and ran outside. You chased him to the gate. He was taken to hospital.
8 The injuries which could be viewed as having been caused by you alone or in concert; it makes little difference in this situation, were a number of incised wounds being to the mid-cervical C5-6 region, left ear lobe, left occiput, left scapular, three to the left arm and one to the left hand. I have seen and taken into account the photographs of those injuries which were taken shortly afterwards. When interviewed b y police you agreed that you had been at the house but effectively denied stabbing anybody. There is no victim impact statement.
9 Normally offences of intentionally causing injury are dealt with in the Magistrates' Court. However, because of the other matters surrounding this, it is being dealt with in the County Court. The use of a weapon aggravates the situation and the offending has to be regarded as serious. It calls for the application of general and I think in your case, specific deterrence as well as denunciation and of course, an appropriate punishment.
10 I think an active custodial sentence is inevitable and indeed you have now served 424 days in relation to this matter. There is a further 79 days which you have served in relation to another matter and I take that into account in a Renzella global sort of way.
11 I now turn to matters personal to you to determine the length of that sentence. Your history was contained in a psychological report which is Exhibit 1, which I have read overnight and which your counsel referred to. It is clear that you have intellectual and cognitive deficit. Whether that occurred as a result of an incident in a refugee camp, or whether it is simply the result of 20 years of polysubstance abuse, I do not know. To be using as long as you have and that is borne out by the length of your criminal history, and having used as you indicated to your counsel, inhalents in your teenage years, the situation in which you now find yourself is neither uncommon nor surprising. Be that as it may, it does not give rise in my view to attract the principles in Verdins.
12 You came to Australia with your family at the age of eight, as refugees. You came from camps in Thailand and I have heard on many occasions the environment which they involved and the things that you would have, as a small child, witnessed. You have little education, you endeavoured to learn to speak English and you are probably now at very early secondary school level. You commenced using as I have indicated, 20 years ago.
13 Mr Mandy pointed out to me that upon your release you will go to your parents in Springvale. They are currently looking after a 32 year old daughter and a 28 year old son with Downs Syndrome. In his usual frank way Mr Mandy pointed out, they may be getting a little tired of your conduct and they have not been visiting you in gaol. You do have a seven year old son who you have instructed, you were seeing on a very regular basis up until your imprisonment.
14 The criminal history indicates that there have been many interventions of a community nature over the years. There have been breaches of Community-based dispositions as well as breaches of suspended sentences. It has really reached a point now where you have had over a year in gaol; you should be clean and it is really up to you. I have heard, and listen carefully, the arguments put by the Crown that this is a situation where supervision as is indicated by the clinical report, would be desirable. However, in all the circumstances I do not think that the head sentence can be inflated to accommodate it. It cannot be inflated to accommodate that and I think that you just have to take your chances. It is up to you.
15 You having had all these treatments over the years would be well aware, if you can remember, what is available to you in terms of rehabilitation. As I say, I think it is simply up to you.
16 Sentencing in these circumstances is a somewhat depressing experience for all concerned. Be that as it may I cannot give you more than the crime deserves and I think that 14 months active custody is sufficient if not ample, for what you did. The prospects of your rehabilitation are totally in your hands. The risk of your re-offending I think has to be very significant, but again, I cannot impose a sentence to cover for that.
17 Taking all those matters into account as best I can, on the charge of intentionally causing injury you are sentenced to be imprisoned for 18 months. I probably should do it in terms of days. What is 18 months in days?
18 MR MANDY: If you call six months 180 days, then there is 365 days. I make it 545.
19 HIS HONOUR: Are you all right with that?
20 MS MANOVA: Yes.
21 HIS HONOUR: Yes so that leaves four months. That is right. I sentenced you to be imprisoned for a period of 545 days and I direct that all but 424 days of that be reckoned as having served pursuant to this sentence. Accordingly, you are eligible for release - the period of time that is suspended is suspended for a period of six months.
22 MR MANDY: So 121 days Your Honour.
23
HIS HONOUR: Yes that is my calculation. You can explain that to him
Mr Mandy. Explain to him that he will need to go downstairs and be processed. He cannot walk out of the dock. Are there any other orders I have to make?
24 MS MANOVA: Yes Your Honour does need to explain to him in terms of the suspended sentence.
25 HIS HONOUR: I do not think that is right. Someone said that to me the other day. I think that is a Commonwealth concept. I certainly have to explain it for a wholly suspended, but I think for a partially suspended I do not. Look it up and tell me if I am wrong. You can sit down Mr Ngo. I think that is a Commonwealth concept. Under the Commonwealth Crimes Act you do. You have to explain whatever they call those things.
26 MR MANDY: Recognisance.
27 HIS HONOUR: Recognisance, yes.
28 MS MANOVA: Section 27(4), "A court proposing to make an order suspending a sentence of imprisonment must before making the order, explain or cause to be explained to the offender in language likely to be understood by him or her, (a) the purpose and effect of the proposed order; and (b) the consequences that may flow if he or she commits, whether in or outside of Victoria another offence punishable by imprisonment."
29 HIS HONOUR: Yes. A suspended sentence. That is why I have always taken the view that it was only a wholly suspended sentence you did that. I am not suspending the sentence, I am only suspending a part of it.
30 MS MANOVA: "An order suspending a sentence of imprisonment."
31 HIS HONOUR: Yes I am not.
32 MS MANOVA: It does not say whole or part.
33 HIS HONOUR: No it does not but I have always worked on the basis it is the only the whole ones that I do and no one has every whinged about it.
34 MS MANOVA: I am not sure that is right. It certainly does not distinguish between them, whereas in other portions of the section it does.
35 HIS HONOUR: But I am not suspending a sentence of imprisonment.
36 MS MANOVA: I would have thought, it is a part suspension, that is still a suspended sentence.
37 HIS HONOUR: I am not saying it is not. I am not suspending a sentence. I am suspending part of one. You bet get a constitutional lawyer I think. I will do it anyway just in case.
38 Stand up please. What I am doing is I am suspending part of the sentence which means that you will get released today but downstairs. What you have to understand is that it is the balance. 121 days is suspended for six months. If you commit an offence punishable by imprisonment, and that can be anything; fail to appear, drunk and disorderly, then you breach it and you get brought back. If you are brought back before me for violence, you will do the rest. Your starting point is going to be 121 days.
39 MR MANDY: I will reinforce on that..
40 HIS HONOUR: I am sure you will. He has had a few before, he should have a rough idea what they mean. Thank you. Thanks Ms Manova.
41 MS MANOVA: Thank you Your Honour.
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