Director of Public Prosecutions v Nguyen
[2018] VCC 1468
•17 September 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01138
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANNY NGUYEN |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 September 2018 | |
DATE OF SENTENCE: | 17 September 2018 | |
CASE MAY BE CITED AS: | DPP v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1468 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL - SENTENCING
Catchwords: Multiple charges of theft and burglary – commercial premises – trafficking a drug of dependence and attempted burglary – immediate term of imprisonment imposed
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms H. Bate | John Cain, Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr T. Danos | Tony Danos Solicitors |
HER HONOUR:
1 Danny Nguyen, you have pleaded guilty to seven charges of theft, six charges of burglary, two charges of trafficking in a drug of dependence and one charge of attempted burglary.
2 In addition, you admitted your prior criminal history. You have a limited criminal history but it is relevant because you do have prior court appearance in respect to dishonesty offences, driving offences, a weapons charge and drug-related offending and fail to answer bail.
3 The prior criminal history spans the period from 2 November 2012, to 11 October 2016, and there are some four court appearances.
4 On 2 November 2012, you were dealt with at Dandenong Children's Court for theft of a motor vehicle, theft from a motor vehicle and theft and placed on a good behaviour bond.
5 On 9 August 2013, you were dealt with at Dandenong Children's Court for attempted theft of a motor vehicle and without conviction, you were fined.
6 On 31 July 2014, at Dandenong Magistrates' Court you were convicted and fined in respect to a driving and a weapons charge and on 11 October 2016, at Dandenong Magistrates' Court, in respect to possession of methylamphetamine and fail to answer bail, without conviction you were placed on an adjourned undertaking.
7 The charges the subject of the indictment are serious and that is reflected in the maximum penalties prescribed by Parliament and they are: for burglary and theft, 10 years’ imprisonment; for attempted burglary, 5 years’ imprisonment; trafficking in a drug of dependence, 15 years’ imprisonment.
8 The offending the subject of the indictment spans a period from 8 January 2018 to 31 January 2018. During which time you were part of a syndicate, involved in a series of burglaries and associated thefts from various Australia Post business hubs; commercial premises known as Inventory Placement; and an attempted burglary of D J City, Oakleigh; with an associated theft of a motor vehicle.
9 I will now sentence you on the basis of the summary of the prosecution opening that was read at the plea hearing. There is no objection taken to that opening.
10 At the time of the offending you were twenty-three. You were living at home with your parents in Springvale. You were the holder of a suspended P2 probationary driver’s licence.
11 The other two co-accused who have been charged are your cousin, Andy Nguyen, also aged 23, and Daniel Brittain, aged 25. The two co-accused are contesting these charges.
12 A contested committal hearing is listed for 24 September 2018. A fourth person known to police is believed to have been involved in the offending, however, that person has not been charged.
13 At the time of the plea hearing, you gave sworn evidence and have given an undertaking to give evidence against the two co-accused at their contested committal hearing.
14 A less severe sentence will be imposed upon you than would otherwise have been because of that undertaking that you have given to the Court to assist, after sentencing, law enforcement authorities in the prosecution of the offences against the co-accused.
15 Pursuant to s5(2AB) of the Sentencing Act 1991, I announce that your sentence will be reduced because of the undertaking and I direct that that fact be noted in the records of the Court.
16 A copy of the transcript of the evidence given by you will be placed on the Court record.
Circumstances of the Offending
17 Theft of the vehicle, Charge 1.
18 This relates to a Honda Accord motor vehicle that was stolen from a residential address in Bentleigh on 29 December 2017. It is not alleged by the prosecution that you were directly involved in the theft of a motor vehicle. Rather, the theft is put on the basis of your own admission contained in your record of interview, that you believed the vehicle to be stolen when you used it in the commission of the offending the subject of the charges on the indictment between 8 January 2018 and 31 January 2018.
19 Burglary and theft charges -Charges 2 and 3, 4 and 5, 6 and 7, 10 and 11.
20 They concern Australia Post business hubs located at Braeside, Burwood and Clayton South. On the dates alleged in the indictment, you, together with the co‑accused, attended those business hubs. On each occasion, you all wore distinctive white overalls and utilised hand tools to gain access into the buildings. Your group would then proceed into the parcel storage facility and a large number of letters and parcels, the exact quantity of which was unable to be verified, was then stolen.
21 On each occasion the parcels and letters would be loaded into two vehicles, one being the stolen Honda Accord, and another, a second Honda Jazz sedan.
22 Charges 8 and 9 - burglary and theft.
23 These relate to premises known as XM2 which is located in Park Road, Oakleigh. On the occasion that the burglary and theft was undertaken, your group all wore distinctive white overalls and headlamps. Hand tools were again used to gain access to the premises. Significant damage was caused to the building, estimated at $2,552.75 (uncharged act).
24 A total of $158,000 worth of drones and other products were removed from those premises and loaded into the stolen Honda Accord sedan and the Honda Jazz sedan.
25 Charges 10 and 11 – burglary and theft.
26 These charges relate to the Australia Post, Clayton South building. Your group utilised the stolen Honda Accord again to ram the front window of the premises causing damage. You remained in the vehicle whilst the other co-accused went into the parcel storage area and again a large volume of parcels and letters were stolen.
27 Eventually, your group came under the notice of the Victoria Police State Surveillance Unit who began to conduct surveillance of your group.
28 On Tuesday, 30 January 2018, the Honda Accord sedan was abandoned after it was used to ram the front window of some premises in Wellington Road, Rowville. The vehicle became stuck in the front window of those premises.
29 Police seized the vehicle and various items were located in the vehicle including: a baseball bat; sledge hammer; battery drill; glass jar containing clear liquid substance believed to be 1‑4 Butanediol; a pinch bar; glass breaker; baseball cap; metal box with numerous cards; respirator masks; used latex gloves; and eight key tags stolen from Australia Post, Burwood building; and ammunition.
30 Charge 12 - burglary at Inventory Placement, Oakleigh South.
31 This occurred at approximately 4.15am on 31 January 2018. On that occasion there were four offenders. Your group, together with another male believed to be Mikey Fares, aged 19, accessed the building by breaking a lock and door. Whilst inside, multiple boxes containing various confectionary items and a petty cash tin with approximately $100 cash was stolen.
32 Charge 15 - attempted burglary of DJ City, Oakleigh.
33 This involved your group (including Mikey Fares) attending DJ City and utilising a Volkswagen Transporter van to smash the front door of that building, attempting unsuccessfully to gain entry.
Charge 16 – theft. 34
35 This relates to your group gaining access to a 1997 Mitsubishi Express van owned by a person who worked at the Hallmark Business Park. Two drive shafts, a break calliper and a dash camera were stolen from the vehicle.
36 Police arrested you on 31 January 2018 at approximately 5.40am. They executed the warrant at 39 Chapel Road, Keysborough and a number of others were also taken into custody. Police located the Volkswagen Transporter van, Honda Jazz and a Ford Fiesta that were involved in various offences.
37 The Crown opening details comprehensively the numerous items that were recovered by the police. A large quantity of items that were seized belonged to Apptec, XM2, Australia Post and also items that were from related thefts from motor vehicles.
38 When interviewed, you were cooperative. You made admissions in respect to the commission of the Australia Post burglaries and also stealing packages over the past month. You made admissions to driving the stolen Honda Accord to the various locations and you confirmed to police that you were aware at the time the vehicle was stolen.
39 You further admitted to owning the ecstasy and methylamphetamine that was located when the police arrested you at the Keysborough house. You stated that you were planning to sell the ecstasy at an event which you did not end up going to (Charges 13 and 14, traffic methylamphetamine and traffic ecstasy).
40 You told police there were four offenders that committed the burglaries. You admitted to driving the car to the burglary at XM2 Drones and going in to steal the drones and other products. You further admitted driving the car to Inventory Placements.
41 You entered your plea of guilty following a further committal mention on 29 May 2018 and the matter then proceeded by way of a straight hand-up brief.
42 It is accepted by prosecution you entered a plea of guilty at an early stage.
43 You were remanded in custody following your arrest on 31 January 2018 and on 16 February 2018 you were released on stringent Court Integrated Services program (CISP) bail conditions. Your conditional release was subject to the payment of a surety, paid by your parents, a curfew, attendance for counselling and treatment in respect to your substance abuse issues.
44 The CISP final report confirms that you displayed significant insight into the link between your drug taking and offending. You indicated a willingness to continue treatment beyond the CISP program.
45 You have a long history of recreational use of ecstasy, cannabis and GHB. You identified methamphetamine as your substance of choice. You confirmed to the CISP workers that you first commenced using that drug in 2016 and at the time of the arrest, you were smoking up to 1 gram daily.
46 As part of the CISP program, you were assessed by Monash Health Drug and Alcohol Services, Dandenong and subsequently participated in drug and alcohol counselling through that service.
47 Letters dated 31 August 2018, and 25 May 2018, authored by Ms Stasia Turnbull, confirm your participation in counselling. She described you being motivated to change and this has continued since you completed the CISP program.
48 She confirms that you have been reviewed at the drug and alcohol counselling service where they report a positive motivation on your part to remaining abstinent from methamphetamines. She described your engagement as genuine and that you were reflective during all counselling sessions. You were developing an understanding about the need to change and the impact of your past behaviour on your family and relationships. She stated that you had a positive focus concerning your young family, assisting with the family business and addressing tasks at home and distancing yourself from negative associates.
49 Tragically, in June of this year, you lost an infant son who was aged only 16 days, and that led to a period of relapse on your part. You were referred to Dr Chan, your general practitioner to resume antidepressant medication and he provide support to you for your grief. You suffered the challenges of intense grief and loss.
50 It is of note that you remained very genuinely engaged and expressed a willingness to deal with your drug addition, notwithstanding this challenging time.
51 Dr Anthony Chan, in a letter dated 31 August 2018, confirms that you were experiencing worsening anxiety and depressive symptoms following the death of the baby. He also noted that you were having severe withdrawal symptoms detoxing from the drug ice and he prescribed medication for you to deal with that problem. You were placed on a wait list to see a psychiatrist and Dr Chan expressed the opinion that a prison sentence may be detrimental to your mental health.
52 Mr Danos, on your behalf, highlighted many factors in mitigation which I accept. You are relatively youthful, having regard to being only 23. You are the third child born to your parents who are both of Vietnamese origin. Your parents came to Australia around 1998 with two older siblings, both sisters. Both parents are extremely supportive and have been present during the plea hearings.
53 You completed Year 10 but you were not academically bright and so you left school and undertook a two-year hospitality course at TAFE. You received a Certificate II in Hospitality. You worked at your sister’s bakery in the Parkmore Shopping Centre, full time for two years.
54 In 2015 your parents purchased a café in Springvale and you have worked there from time to time. However, due to your worsening drug problem, you had ceased working around the time of the offending.
55 Your parents have remained supportive of you and whilst you were on the CISP bail program, you returned to work with them.
56 Approximately five years ago, you commenced a relationship with Ms Quynh Do. There are two children born of that relationship. You have a son aged three and an infant daughter aged one-and-a-half. Because of the issues associated with your long-term drug use, you did not live with Ms Do. She lives with her mother in Doveton and cares for the two infant children. You are both working towards ultimately reconciling and for the future you want to live together as a family.
57 I accept that you do have good future prospects. Your parents have indicated that they want you to take over the conduct of their business at some stage in the future.
58 I accept that you entered a plea of guilty at an early stage and that the plea has real utility. By your plea, you spared the State the expense and inconvenience of a trial and you have facilitated justice and your sentence will be discounted accordingly.
59 I further accept that now you are genuinely remorseful in respect to this offending. I further accept through the undertaking that you have given to give sworn evidence against your co‑offenders, that you have provided significantly valuable assistance to the prosecution in the conduct of their cases. Your evidence will strengthen the Crown case against the two co-accused, identity being in issue, with respect to both their matters.
60 Any gaol term will be more onerous for you given that you are likely to be held in protective custody having regard to the cooperation that you have given to the authorities and your undertaking. Your sentence will reflect that.
61 Your post-offence conduct is indicative of somebody who has begun to understand the link between their drug use and their offending and you are committed to change in the future.
62 I have had regard to your cooperation with the police, your fulsome admissions in your record of interview and the undertaking. I am satisfied that you are genuine in terms of wanting to change for the future and I have also had regard to the remarks, made by the various individuals that I have already referred to, that you have distanced yourself from negative peers. So, this is a time in your life that you are in a stage where you can commit to real change.
63 I am satisfied, having regard to all those matters and also your expressed intention to continue to receive drug treatment, that you have excellent prospects of rehabilitation and that your conduct whilst on conditional release was indicative of your good prospects for rehabilitation.
64 However, having regard to the nature of the commercial burglaries that were committed against the various commercial premises, including Australia Post, I consider that these are serious examples of the offence of both burglary and theft. Your offending was committed in company, your group was organised and systematic in being able to access the commercial buildings. You had appropriate tools to enable access. You utilised a stolen vehicle to carry off the goods that you stole and you were involved in a continuous course of conduct over the period from 8 January 2018, to 31 January 2018.
65 In sentencing you, there is a real need to emphasise both general and specific deterrence and to formally denounce your offending behaviour.
66 On your behalf, Mr Danos sought a Community Correction Order. Having regard to the grave nature of the offending, the degree of planning and sophistication and the course of conduct that occurred over the three week period by your group, I do not consider that such an order would reflect the gravity of the offending, nor would it be just punishment.
67 I propose to impose a term of imprisonment to be immediately served and will fix a non-parole period that is shorter than usual to reflect your rehabilitation prospects and level of cooperation.
68 I ask that you please stand.
69 In sentencing you, I must impose just punishment.
70 The formal court orders are as follows-: In respect to Charges 1 to 12 inclusive and Charges 15 and 16, you will be convicted and an aggregate term of imprisonment will be imposed of four years. The aggregate sentence is imposed having regard to the fact the offending was all part of the same series of offending.
71 In respect to Charges 13 and 15, they are the charges relating to trafficking in a drug of dependence on the one day, in respect to Charge 13, related to ecstasy, and in respect to Charge 14, in relation to methylamphetamine, in respect to both those charges, you will be convicted and sentenced to one year imprisonment.
72 In respect to Charge 15 and 16, they are part of the aggregate sentence, so I do not need to announce any further.
73 I make the following orders for cumulation. Three months of the sentences imposed in respect to Charges 13 and 14 will be cumulative upon each other and upon the aggregate sentence imposed. So, that makes a total effective sentence of four years and six months' imprisonment and I fix a non-parole period of two years and six months.
74 I make the following declaration of pre‑sentence detention. I declare that you have spent 29 days in pre‑sentence detention and direct that that be entered into the records of the Court.
75 I make the following s6AAA declaration. But for your plea of guilty, I would have imposed a term of imprisonment of 6 years to serve 4 years’ imprisonment.
76 Finally, I make the order made pursuant to s464ZF of the Crimes Act for the taking of a forensic sample. I noted the order was not opposed. I am satisfied in all the circumstances that the making of the Order is justified having regard to the seriousness of the circumstances of the offending and the fact that the granting of the Order is in the public interest.
77 The order requires that you have to cooperate by allowing the police to take a mouth scraping. They will provide you with a cotton bud to put inside your mouth and provided that you do that, that means that that order will be complied with. I have to tell you, if you do not comply, then reasonable force can be used to enable that forensic procedure to be conducted, including a blood test.
78 That completes this matter.
79 I have signed that order for the forensic sample.
80 I think that completes everything. There were no ancillary orders sought and an order has already been made that the transcript of the proceedings be provided to the parties. Have you received that yet?
81 MS BATE: Not yet.
82 HER HONOUR: No. Well, I'll get my associate to follow up VGRS about that. And that transcript will be kept on the court record.
83 MS BATE: As Your Honour pleases.
84 HER HONOUR: Good. Thank you. We can adjourn.
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