Director of Public Prosecutions v Nguyen

[2018] VCC 1266

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02497

DIRECTOR OF PUBLIC PROSECUTIONS

v

KIEN NGUYEN

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	1 August 2018
DATE OF SENTENCE:	13 August 2018
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2018] VCC 1266

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Pleas of guilty – Common law assaults – Threat to kill – Possess unregistered Category A Long Arm – Delay – Long history drug addiction

Sentence:Convicted and sentenced to 2 years’ imprisonment (aggregate term) one year of which is suspended for an operational period of 3 years – s.6AAA Sentencing Act 1991 declaration – Ancillary Order Forfeiture Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Batten	Solicitor of Public Prosecutions
For the Accused	Ms N. Karapanagiotidis (Plea) Mr D. Care (Sentence)	James Dowsley & Associates

HER HONOUR: 

1Kien Nguyen, you have pleaded guilty to the following offences:  Two charges of common law assault - this offence has a maximum penalty of five years' imprisonment; one charge of threat to kill - the offence of threat to kill has a maximum penalty of ten years' imprisonment; one charge of possession of an unregistered Category A Long Arm, which has a maximum penalty of 120 penalty units or two years' imprisonment.

2I must take into account the maximum penalties when sentencing you, as these reflect the seriousness with which Parliament regards each of the offences.  The factual basis on which I sentence you is as follows.

3At about 1.00am on Sunday 22 April 2012 the victims, Mr Dynon and
Ms Capadonna, were sitting on their front porch at their home in Mulgrave.  They were both affected by alcohol.  You and your co-offender, whose identity is unknown to police, appeared.  The victims did not know who you were.  You were holding a handgun, which you pointed at Mr Dynon's head.  This gives rise to Charge 1, common law assault. 

4Your co-offender was carrying a sawn-off shotgun, which he pointed at
Ms Capadonna's head, saying, "Get inside, bitch."  This gives rise to Charge 2, common law assault, and you have pleaded guilty to this conduct on the basis that you were acting jointly with your co-offender.

5You then shouted at Mr Dynon, "Get the fuck inside or I'll fucking kill you."  This gives rise to Charge 3, threat to kill.  Mr Dynon told you that he had nothing and to take his phone.  Mr Dynon then jumped towards you and pushed you off the porch onto the ground, punching you in the body and head.  Your co-offender then approached you and Mr Dynon.  Ms Capadonna then threw an empty vodka bottle at you, striking you in the head, causing a severe gash, which then bled profusely.  Ms Capadonna then ran through the house and hid on the garage roof.  Mr Dynon ran to his neighbour's place in search of help and your co-offender chased after him.  He banged on his neighbour's door, screaming for help.  His neighbour, Mr Russell, then returned to Mr Dynon's house and you and your co-offender started to run away.  However, they caught up with you.  Mr Dynon tackled you and started to punch you again.  Mr Dynon told Mr Russell to hold you while he chased after your co-offender.  He began punching your co-offender in the face, then the co-offender struck Mr Dynon with force to the back of the head with his gun, which dazed Mr Dynon.  You managed to break free from Mr Russell, and you and your co-offender then ran to a car that was parked outside Mr Dynon's house.  The car engine was still running.  You and your co-offender got into the car and sped off.

6Police attended and took swabs of what appeared to be blood from Mr Dynon's hand and also from the scene.  During this search, police found a sawn-off shotgun under a step leading to the porch.  Ms Capadonna confirmed that this was a weapon which had been pointed at her.  An expert later identified this weapon as being a 12 gauge VG Bentley double-barrelled shotgun.  It was in working order, however I am not told that it was loaded, so I have assumed that it was not.  The serial numbers had been ground off and the barrels and buttstock had been sawn off, reducing the overall length to 457 millimetres.  This gives rise to Charge 4, and you have pleaded guilty to this offence on the basis that you were complicit in the possession of this unregistered Category A Long Arm.  The handgun that you had used was not found. 

7By way of context information only, I was told that in the course of the incident, Mr Dynon suffered two fractured toes, a swollen foot and cuts and grazes to his legs.  He also suffered a three centimetre U-shaped laceration over the centre of the skull which was caused by your co-offender.  This was repaired at the Monash Medical Centre with seven staples. 

8Mr Dynon's phone was taken by you or your co-offender and was not recovered.  Again, this was led by way of context information only. 

9On 24 April 2012 police executed a search warrant in respect of unrelated matters at an address in Glen Waverley.  You were there and had a bloodstained bandage wrapped around your head and a cut lip.  You were photographed and conceded to providing a forensic sample in relation to other matters.  You were considered to be a suspect in respect to the matters before me at this time. 

10Photo boards were shown to the witnesses on 24 and 25 April, but these produced inconclusive results.  You were not interviewed or charged at this time. 

11In October 2012, DNA analysis indicated that your DNA matched a blood swab taken on 22 April, but police were unable to find you at the time and a forensic sample later had to be destroyed as you had not been charged within the prescribed period.

12On 21 March 2016 police executed a search warrant in relation to unrelated matters at an address in Bendigo and you were arrested and interviewed in respect to the matters now before me.  You made a "No Comment" record of interview and refused to provide a DNA sample.  You were remanded in custody in relation to other matters.  However, on 18 April 2016 a magistrate ordered you to provide a DNA sample, and your DNA matched the DNA on the swab taken from Mr Dynon's hand.  You were then charged in respect to the matters now before me.

13Mr Nguyen, I regard your offending as most serious and deserving of a punishment which is just in all of the circumstances and your conduct must be strongly denounced.  You accosted two people at their home in the early hours of the morning, people who you did not know, and threatened them in the most frightening of ways.  I regard the common law assaults as most serious examples of this offence.  While it appears that neither of the weapons were loaded, the victims were not to know this.  Further, your threats to kill would have had very real and terrifying meaning as far as the victims were concerned, as you and your co-offender had the ostensible means to carry out the threats.  While it is true that you were eventually overrun by the victims and came off second best, I have little doubt that your initial confrontation had a profoundly frightening impact on each of the victims.  There are no victim impact statements.  However, it does not take any imagination to reach such a conclusion.  There was no impairment of mental function which is linked to your offending.  I find that your moral culpability is high. 

14As at the time of the offending for which I now sentence you, you had a fairly modest criminal history, all matters having been heard in the Magistrates' Court.

15Your prior matters are as follows.  On 8 August 2000 you were dealt with for possessing a regulated weapon and assault with a weapon.  You were convicted and fined an aggregate of $300.  On 11 July 2001 you were convicted and fined an aggregate of $300 for possessing a controlled weapon and possessing a dangerous article.  On 20 November 2002 you were dealt with for two charges of failing to answer bail, theft of a motor vehicle, unlicensed driving, traffic ecstasy, possess ecstasy and possess property being proceeds of crime.  You received a 12 month good behaviour bond without conviction.  As your counsel pointed out, it was then about ten years before you committed the offences for which I now sentence you.  You were 29 years old when you committed the offences which are now before me, and you are now 36. 

16You are presently undergoing sentence in respect of a number of subsequent offences including trafficking and cultivation of cannabis and possession of an offensive weapon and ammunition.  On 4 October 2017 you were convicted of these offences and others, receiving a total effective sentence of 16 months' imprisonment with a non-parole period of seven months’ imprisonment.  Pre-sentence detention was declared in respect of these matters, as I understand the situation, in circumstances where you were on remand from 21 March 2016 until bail was granted on 1 June 2016.  Your non-parole period expired on
24 January this year, and the head sentence expires on 27 October 2018. 

17Totality is a consideration in your case, which means that I am most mindful of the fact that you have already been in gaol for a fairly substantial period, albeit for other matters.

18I was told that you have a further outstanding matter which involves you being found in possession of a meat cleaver and small quantities of cannabis and methamphetamine when your car was intercepted by police in April 2017.  You intend to plead guilty to the relevant charges, and the plea is listed on 20 August 2018.

19I understand that, when bailed in 2016, you were required to observe fairly stringent conditions, including daily reporting, and you were subjected to random urine screens.  You were able to cease methamphetamine use, which was something that was a significant problem for you, but you continued to use cannabis.  I take these matters into account in your favour, but I am also mindful of the fact that you subsequently re-offended. 

20I allow for a significant discount in the sentence that you would otherwise receive because of your early plea of guilty, as you have saved the witnesses, especially the victims, the time and trouble of contested proceedings and you have saved the community the time and expense of these. 

21I understand that you have had a change in legal representation and that a further statement had to be obtained which enabled the matter to resolve without a charge of armed robbery which originally had been alleged, so it is in this context that the matter resolved in a timely fashion once police caught up with you. 

22There has been a significant delay in this matter from the time of the offending.  Your counsel said that it would have been quite easy for police to have found you if they wanted to, as you were working intermittently and still lived in the Sunshine area and used your own details to collect Centrelink payments from time to time. 

23The prosecution were not able to discover much more than what was put before me as to what had caused such a delay.  I must say that it would be most surprising if police had not bothered to try to catch up with you sooner than they did in view of the most serious nature of the offending.  In any event, I do not make a finding which is adverse to you in respect of the delay. 

24I have also taken into account that there has been some delay from charge to finalisation of these matters and that in the interim you have had the anxiety of these matters hanging over your head.  I factor in that the offending is somewhat dated now, but it could not be said that you have used the intervening time to rehabilitate completely.  However, I do factor in that there has been a fairly substantial period from the time of the offending for which I now sentence you and your subsequent matters.  I also accept that the subsequent matters, although serious enough, and still involving your possession of a weapon, do not appear to be as serious as the 2012 matters.  I also accept that due to the timing of the plea hearing in respect of the matters before me, you have lost a degree of opportunity for some concurrency with the sentence that you are currently undergoing and to have your eligibility for parole considered in circumstances where the date with respect to your eligibility for parole arose a number of months ago.  However, I have also factored in that if these matters were dealt with at the same time, it is very doubtful that you would have been eligible for parole so soon.

25You are now 36 years old and have struggled with addiction issues for some time.  You have been able to control your addiction for various periods and to do some honest work from time to time.  Your counsel pointed out that you have not had the benefit of any rehabilitative dispositions in the past which might have assisted you in this regard.  While that is true and unfortunate, you have been an adult for some time and presumably able to seek out drug treatment, if you have wanted to, rather than being told to do this. 

26I take into account your background.  You were born in Vietnam and your parents separated when you were very young.  You are the only child of their relationship.  Your family resettled in Australia, having come here as refugees when you were eight years old.  You are now an Australian citizen.  You had little contact with your father over the years.  Sadly, he was killed in a car accident when you were about 19.  Your mother remarried in Australia and you were exposed to domesticate violence at the hands of your stepfather, who died of lung cancer when you were 12.  From the age of 12 to 18, you were mainly raised by your maternal aunt and uncle, sharing the household with your seven cousins.  Your aunt was more of a mother figure than your mother.  However, you have had limited contact with your mother over the years.  She has visited you twice whilst you have been in gaol.  Your extended family has visited you regularly and has provided you with good support.  I understand that you also have a girlfriend, who has visited you.

27You left Maribyrnong Secondary School during Year 10.  You struggled academically and experienced some racism, which is most regrettable.  You have worked in labouring and factory jobs for short periods.  When you were 26, you worked full-time for a company where you operated cranes and loaded trucks, advancing to the position of team leader. 

28As your counsel said, your life has been significantly affected by drug use and negative peer association.  When you were 19 you started to use ecstasy and cannabis on weekends.  When you were 24 you started smoking methylamphetamine which commenced when you started a relationship and escalated when your relationship collapsed.  You then experimented with other drugs including heroin.  When you were 26, you focused on stopping drug use in the context of another relationship.  The woman you were with did not use drugs, and you significantly reduced your intake for about four and a half years.  You also maintained employment during this time.  However, your girlfriend discovered that you were using drugs, albeit that this was comparatively minimal, and ended the relationship when you were 29.  Your drug use escalated once more.  You lost your job and were effectively homeless for a number of years.  You were drug-affected at the time you committed the offences which are now before me.  This heightens the dangerousness of your actions, but I do not treat this aspect as an aggravating or a mitigating factor, for that matter.  However, it seems to me that there is a link between your drug use and committing criminal offences.  I place you on notice that if you take drugs in the future and commit criminal offences, then your decision to take drugs may well be treated as an aggravating feature of any future offending. 

29You instructed your counsel that you committed the offences for which I now sentence you, as you were recruited to help collect a drug debt and were promised drugs as payment for your efforts.  Your explanation does not take away from the seriousness or wrongfulness of what you did.

30Whilst in custody, you have completed a number of programs, and I have received seven certificates which verifies this.  I was told that you have had your name down for a drug and alcohol course, but your motivation in the prison system has made it inaccessible so far.  It is also to your credit that you have worked as an induction billet, a position of trust, for several months now, which reflects that you have behaved well whilst in gaol.  I was told that you have experienced feelings of anxiety and low mood but you are managing to cope within this environment.  I also received a drug screen, dated 9 June 2018, which indicates that as at that time you were drug-free.  This is consistent with your counsel's submission that you have been drug-free since being incarcerated.

31I was told that when you are released from gaol, you are able to return to your aunt's home, where two of your cousins still live as well as your aunt and uncle.  Therefore, there will be a degree of family support and accommodation for you to look to, which are matters in your favour.  On the other hand, it appears that you have had such supports available in the past, but these did not suffice to prevent you from past offending.

32As your counsel has said, in the past the problem has been that you have been drawn to the company of drug users and drug use which has then led to offending.  On the other hand, you have shown that you are able to extract yourself from such poor influences if motivated to do so.  This is also evident from your behaviour leading up to the plea hearing in 2016 when you were able to find work, accommodation, reduce your drug use and comply with stringent bail conditions.  Ms Karapanagiotidis told me that you wish to stay out of trouble and to settle down when you are released from gaol. 

33In view of all relevant matters, including the seriousness of your offending before me, significant gaps of time in respect of your offending, the nature of your subsequent offending, your struggles with drug abuse, your early plea of guilty, your family support, limited criminal history, your good behaviour in gaol and your capacity to work, I assess your prospects of rehabilitation as being guardedly fair.  I attach fairly strong weight to specific deterrence and the need to protect the community.  I must also attach strong weight to general deterrence in a bid to deter others who are minded to behave as you have. 

34Your counsel submitted that I ought to sentence you to a wholly or, failing this, to a partially suspended sentence or a gaol term in combination with a community corrections order.  If I were of the view that none of these types of dispositions were appropriate, then I understand your counsel to be submitting that a period of imprisonment with a non-parole period kept to a minimum would be appropriate in all the circumstances.

35Mr Batten, for the prosecution, submitted that an immediate custodial sentence was the only appropriate one, but had not instructions beyond this, that is, in relation to the form that such a disposition might take.

36In the end, I have come to the view that it is not appropriate in your case to impose a wholly suspended sentence or a sentence of gaol in combination with a community corrections order.  However, I am of the view that a partially suspended sentence is appropriate.  This will be a means of ensuring that you behave yourself when released into the community. 

37Would you please stand up, Mr Nguyen?

38You are convicted of each of the offences.

39I make the forfeiture order which is sought by the Crown and not opposed by you. 

40I sentence you to an aggregate term of imprisonment of two years and I suspend one year for an operational period of three years.  I should warn you that if you reoffend during the operational period, that unless you demonstrate exceptional circumstances as to why it would be unjust to impose the additional 12 months, then that is what will occur.

41If not for your pleas of guilty, I would have sentenced you to a total effective sentence of four years' imprisonment with a non-parole period of three years. 

42There is no pre-sentence detention to be declared in relation to this matter.

Following the discussion below the transcript was amended to reflect the corrections required.

43Would you take a seat for a moment, please?

44Is there anything arising?

45MR BATTEN:  Your Honour, can I just mention a couple of matters that appear to be slips?  In relation to the information regarding non-parole earliest release date ‑ ‑ ‑

46HER HONOUR:  Yes.

47MR BATTEN:  ‑ ‑ ‑ and sentence lapse date, there was some additional information provided by Ms Karapanagiotidis following the plea hearing.  As
I noted it, in sentencing Your Honour referred to an earliest release date of
27 March of this year, and a date for the expiry of the ‑ ‑ ‑

48HER HONOUR:  Sorry, earliest release date of 27 March?  Yes, yes.

49MR BATTEN:  Yes.

50HER HONOUR:  Yes.

51MR BATTEN:  The later information correcting that from Ms Karapanagiotidis was that that had in fact been 24 January.

52HER HONOUR:  Yes.

53MR BATTEN:  And Your Honour gave a date when the total effective sentence was due to expire as 24 October, and again that date was corrected or clarified by counsel in an email following the plea hearing to be 27 October, as I have it in the email.

54HER HONOUR:  So the earliest release date was in fact 21st of ‑ ‑ ‑

55MR BATTEN:  Twenty-fourth of January.

56HER HONOUR:  Twenty-fourth of January.

57MR BATTEN:  Yes.

58HER HONOUR:  Yes, all right.

59MR BATTEN:  And the ‑ ‑ ‑

60HER HONOUR:  I will make those amendments.  I think there was some discussion and controversy over those dates at the time of the plea hearing, but I can't see that it makes a material difference to the sentence that I would impose in this matter. 

61MR BATTEN:  Yes.

62HER HONOUR:  Yes.

63MR BATTEN:  Could I also mention, when Your Honour commenced Your Honour's sentencing reasons, Your Honour referred to two charges of threat to kill.

64HER HONOUR:  Yes.

65MR BATTEN:  I think Your Honour's sentencing reflects the fact that there were - there was one charge of threat to kill, that proceeded, two charges of common law assault, one charge of threat ‑ ‑ ‑

66HER HONOUR:  I'm sorry, that was a slip.  That's quite right, there's one ‑ ‑ ‑

67MR BATTEN:  One charge of threat to kill ‑ ‑ ‑

68HER HONOUR:  Yes.

69MR BATTEN:  ‑ ‑ ‑ and one firearms offence.

70HER HONOUR:  Yes.  Well, I was very mindful of that.  It's a typographical error, and I'll amend that.  I was aware that there was only one threat to kill.

71MR BATTEN:  Yes.

72HER HONOUR:  Yes, thank you.  Is there anything further,
Mr Care?

73MR CARE:  No, Your Honour.

74HER HONOUR:  All right.  Yes.  Did you want to have a word with Mr Nguyen before he's removed?

75MR CARE:  Very briefly, Your Honour, if I could.

76HER HONOUR:  Yes.

77MR CARE:  Thank you.  Thank you, Your Honour.

78HER HONOUR:  Yes, thank you.  If you could remove Mr Nguyen, thank you.

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