Director of Public Prosecutions v Nguyen
[2018] VCC 280
•13 March 2018
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR -17-00329
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VAN NGUYEN |
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JUDGE: | HER HONOUR JUDGE HANNAN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 13 March 2018 |
CASE MAY BE CITED AS: | DPP v Nguyen |
MEDIUM NEUTRAL CITATION: | [2018] VCC 280 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr. G. Hayward | |
For the Accused | Mr. D. McGlone |
HER HONOUR:
1Van Tung Nguyen, you have pleaded guilty to one charge of riot. The maximum penalty for that offence is ten years' imprisonment.
2The circumstances of your offending are set out in the prosecution opening exhibited upon your plea. That document contains the agreed factual basis upon which you have pleaded.
3In essence, you were at all relevant times, a prisoner at the Metropolitan Remand Centre, MRC, also known as Ravenhall. The offending which brings you before this court occurred on 30 June 2015, on which date, several hundred prisoners were involved in a riot, described as the largest in Victoria's Correctional history.
4The genesis of the riot was, what is broadly described, as a no-smoking policy due to commence in all Victorian prisons on 1 July 2015. There had been ongoing, but until that date peaceful, protests by prisoners in relation to the ban who sought that it be suspended, amended, reversed or delayed.
5At about 11.40 am on 30 June, about 120 prisoners congregated in Areas 1, 2 and 3 near the intersection of the three yards. The prisoners were chanting the words "We want Ox" which is a reference to a brand of tobacco. Various prisoners began kicking, pushing and pulling on the fences separating the three yards. The fences were ultimately breached and prisoners started moving through the holes which had been created. A number of prisoners congregated on the Area 2 basketball court.
6At this time, prison management directed all staff to withdraw from the yards and the majority of the staff evacuated to the gatehouse. At about 12.15 pm there were a number of prisoners congregated on the Area 3 basketball court, where a number of them began to use items of clothing to disguise their appearance, before advancing on the central movement control, or CMC, where they forced the door, gaining entry and damaging the interior.
7Following that, several of the prisoners made their way towards the Health Centre where the canteen is located and forced entry. A number of prisoners also breached the southern door leading to the gatehouse.
8By this stage, a Code Grey had been called and police had been contacted. A number of prisoners involved in the riot had armed themselves with makeshift weapons, and advanced upon the gatehouse causing staff to withdraw inside. Rocks were at times thrown at retreating prison officers.
9After exiting the CMC, prisoners forced their way into the canteen which was looted. A number of prisoners then walked back to the CMC and returned to Area 3 carrying the proceeds of looting the canteen.
10
It was at this point that prison officers were able to return to the CMC and
re-secure the structure. At about 12.41, various prisoners realised that this was occurring and a second attack occurred in relation to that building during which time various items were thrown at prison staff. The attack was repelled using tear gas. The majority of prisoners then withdrew to the Area 2 yard.
11Following that, a number of accommodation an non-accommodation units were broken into using makeshift weapons to smash windows and damage fixtures and fittings. This included disabling security cameras in which you were involved, the use of firehoses to flood areas, and the burning of items, both inside and outside the units, together with the use of prison vehicles to cause damage to buildings and other structures.
12At about 4.31, the CMC was attacked, rocks were thrown and vehicles were used. The gate eventually gave way and prisoners ran into the building where they taunted and threatened prison officers, who were separated by a fence. Two vehicles were driven inside the building. Prison officers deployed tear gas and they were able to advance and re-take the building.
13The riot had essentially concluded by 11 pm. Numerous prisoners surrendered and were taken into custody throughout the night. The Department of Justice incurred some $12.1m in costs and $6.89m in repairs and maintenance at MRC.
14Part B of the prosecution opening details your specific involvement, rather than the riot as a whole. I do not propose to recite that part in full, but in summary.
15Your involvement commenced at about midday when you were one of the prisoners who breached the fence from Area 1 and accessed Area 2. You gathered with fellow prisoners on the basketball court before you proceeded to the outdoor shelters in Area 3. You clapped, hugged other prisoners and high-fived, all indications of your support for what was occurring.
16It was at this point you attempted to disguise yourself by wrapping clothing around your head. You then joined a group of prisoners advancing towards the CMC to attack the gates. It is clear that you were an enthusiastic participant in the crowd, moving towards the front of the group, pushing the raceway fence, fist-pumping and clapping your hands.
17Once the gate was forced open, you were amongst a group of prisoners who entered the CMC. CCTV shows footage of you inside the centre while other prisoners are throwing chairs.
18You had then attempted to force open a gate separating the CMC from the gatehouse, but you were unsuccessful. You subsequently exited the CMC and observed a group of armed prisoners who had chased retreating prison officers. You approached them and appeared to celebrate by clapping your hands again before you opened a fire hose cabinet and sprayed it into the air.
19Throughout the afternoon, you damaged and destroyed a number of different CCTV cameras across the prison. Using poles, mops, brooms and other objects, you struck eight different cameras and destroyed seven of them. You jumped on carts, chairs and ladders in order to reach the various cameras to prevent them from recording further unlawful activities.
20At approximately 1.14 pm, you entered an office behind the officers' post and exited some time later wearing rubber gloves. You wore these gloves for the remainder of the afternoon in order to prevent leaving physical evidence of your involvement in the riot.
21By 2.26 you had located a BA mask, which was placed over your face, presumably to avoid the effects of tear gas being deployed by officers to try to quell the riot.
22At 3.10 pm, you were observed at a trailer filled with rocks in the Area 3 yard. You participated in breaking rocks into smaller pieces which were later thrown at prison officers by others.
23At 3.40 pm, you were seen inside the Area 3 yard. You were wearing a gas mask over your face and you used a fire hose to spray water in the yard. The final piece of footage of you was at 4.43 pm, when you were in the Area 3 yard still wearing gloves. A prisoner nearby was holding a fire hose.
24As regards offence seriousness. Riot is, by its' nature, a serious offence. By your plea, you admit that you and others were engaged in assembly, intending to assist each other, in this case, to cause fear, alarm and damage at MRC by the use of force if necessary.
25The level of threat, violence and damage is relevant to proper assessment of offence seriousness and that assessment is not to be made in relation to your own actions in isolation.
26This riot occurred in a custodial setting and there are strong public policy imperatives in maintaining order in such facilities. General deterrence is properly given significant weight in the sentence I will impose this day.
27Globally, this was a serious example of this offence, having regard to the level of threat and violence and the fear created, the scale of destruction, the setting and the fact that you acted against law enforcement personnel seeking to discharge their duties and functions, its duration, the number of persons involved, and the fact that you played an ongoing role over several hours.
28I accept that you were not engaged in planning or organisation of the riot, nor were you directing others what to do, but you were, in my view, from an early stage, as I have previously described you, as an enthusiastic participant. You were actively involved over three and a half hours approximately. You breached fences, entered the CMC, you were at stages disguised, you wore rubber gloves to try to avoid detection, you used stolen BA equipment to prevent tear gas from being affected, you assisted in breaking rocks which were later thrown at guards by others, but most significantly, you damaged seven security cameras and attempted to damage another one with the clear intention of inhibiting the ability of authorities to investigate serious criminal offending by you and others. You intended to participate in a riot, you were not simply a follower. You were intent of causing destruction and alarm and you are to be sentenced on that basis.
29I have received a folder of victim impact statements from various members of staff, which has been exhibited upon your plea. What is clear is that this offending had both acute and long-term consequences upon many of the victims who describe being terrified, traumatised, frightened. Many have sought professional assistance, others have ongoing physical symptoms which have rippled throughout their lives in terms of both their work and their personal lives.
30Many of the victims seem to continue to suffer flashbacks, the sequelae of your offending has been enduring. It is to be hoped that time will assist them to return to their normal routine.
31You have admitted the contents of a criminal record dating back to January of 1988. On 24 January that year you were convicted of assault and resisting police. You were fined in relation to those matters. On 9 April 1990, you were convicted of matters of violence, intentionally or recklessly causing injury. You were sentenced to be imprisoned for three months. That sentence was wholly suspended for 12 months.
32On 23 July 1991, you were convicted of possession of heroin. You were convicted and sentenced to be imprisoned for 18 months byy this court. You appealed that sentence and that appeal was dismissed in September of 1991. You were released from custody in January of 1992. On 5 August 1992, you were convicted of a minor gaming offence and fined. On 30 August 1993, you were convicted of being a prohibited person in possession of a firearm. You were convicted and sentenced to be imprisoned for four months and that sentence was wholly suspended for two years. You were fined in relation to other charges.
33On 15 December 1995, you were convicted and fined in relation to possession and use of heroin. On 26 March 1997, you were convicted in this court of trafficking a drug of dependence. You were sentenced to be imprisoned for 15 months. That sentence was suspended for two years and you were directed to undergo treatment at Odyssey House as an inpatient for 15 months, together with other conditions.
34On 27 May 1997, you were convicted in this court of trafficking heroin and attempting to traffic a drug of dependence. You were sentenced to be imprisoned for a total of 45 months with a non-parole period of 15 months.
35On 8 October 2004, you were convicted in this court of trafficking amphetamines and possession of heroin. You were sentenced to be imprisoned for 18 months with a non-parole period of two months.
36I have additionally been informed of a subsequent matter. At this court on 26 May 2016, you were convicted of trafficking in a commercial quantity of methamphetamine, possessing an unregistered hand gun, and possessing an unregistered long-arm, together with a number of summary offences.
37You were sentenced to be imprisoned for five years and one month, with a non-parole period of three years and five months. 497 days were reckoned as served.
38I have been informed that your non-parole period will expire on 15 June of this year, and it will thus be necessary given that you currently are undergoing a sentence with a parole period, for me to set a new single non-parole period as part of the sentencing process.
39As regards your personal history. You were born in Saigon on 29 January 1968. You are now aged 50 years. You are one of a sib-ship of six. Your family in Vietnam conducted a bakery. During the war, your father was a soldier working for the American military. This ultimately resulted in the family having to flee Vietnam. You fled with your mother and three sisters by boat to Malaysia. From this point you were sponsored by your uncle who had a jewellery business in Victoria Street. You arrived in Australia on 14 July 1981.
40You secured Ministry of Housing accommodation in Richmond, and a year later, the family was able to sponsor your father, paternal grandmother, sister and younger brother to join you in this country.
41Upon arrival, your parents were not able to reform their marital relationship and separated after approximately a year. You completed Years 7 to 10 at Richmond High School. You then attended Collingwood Technical School where you attempted Year 11, but you left school without completing that year.
42After leaving school, you worked in a variety of unskilled jobs including in factories, hospitality, transport and your uncle's and brother's businesses. You are the only member of your family to have been in trouble with the police. Your parents had good work histories and are now retired. Your brothers and sisters are all in gainful employment. You instruct that you remain close to your family, despite their distress as to what you have put them through as a result of your drug addiction and offending history.
43In 1992, your younger sister mysteriously vanished. There has been no explanation as to her disappearance and none has been discovered in the intervening years. This has understandably been a source of significant distress within the family.
44I note that you maintain the ongoing support of your family, many of whom have attended court upon your plea.
45Your mother suffers from a disease of the spine and I accept that your inability to assist her in the coming years, will increase the burden of imprisonment for you.
46As regards your substance abuse history, you instruct that upon your arrival in Australia, you commenced drinking heavily to deal with the memories of what you had seen in Vietnam. It was a short period of time until this unfortunately escalated in the use of a variety of illicit substances.
47You instruct that by the time you were 18, you had an entrenched heroin addiction. Your criminal history largely parallels your history of substance abuse.
48Following a number of unsuccessful attempts at drug detoxification and rehabilitation, in 2005, your family financed you having a Naltrexone implant. While this assisted and dealt with what had been a serious heroin addiction, you unfortunately increased your methamphetamine use which you had been using recreationally since 2000, but this it seems, spiralled out of control following your cessation of the use of heroin.
49I note, of course, that drug use played no role in the offending for which you are to be sentenced by this court.
50You married in 1999 and you have one child who is now 17. You separated in 2001. Despite obtaining court orders upon separation for fortnightly access, you instruct that your ex-wife has not allowed you to see your child and that you have no relationship.
51As regards your immigration status, you are not an Australian citizen and your visa was previously cancelled in 2000 on character grounds. That matter, I was informed upon your plea, was taken all the way to the High Court and the decision was overturned.
52Despite being on firm notice that your character was an issue in terms of your visa status in this country, you engaged in this and other offending. It is likely that your visa will again be cancelled.
53I had informed that you have no remaining family members in Vietnam and that the burden of knowing you will almost inevitably be deported at the end of whatever sentence is imposed, will weigh heavily upon you. I accept that it will increase the burden of imprisonment.
54I have received a report dated 23 February 2018 from Carla Ferrari, a consultant psychologist. Ms Ferrari found evidence of a moderate mood disturbance which she said was exacerbated due to your current circumstances and may reduce slightly once the outcome of these proceedings is resolved.
55It is Ms Ferrari's opinion that you recognise the seriousness of your actions and that your profile suggests that your offending history was a result of substance abuse and the long term sequelae of being forced to flee your home country which destabilised family, social and economic structures that you had come to depend upon, and uprooted you into a foreign lifestyle in which you had to assimilate whilst also struggling to come to terms with being separated from half your immediate family.
56Ms Ferrari says that you have demonstrated an ability to disassociate from substances and organised crime and to lead a normal life for a decade. She says you displayed good insight into the link between your mental state, chronic substance abuse and use and your offending behaviour and on this basis, and other matters referred to in her report, she deemed you a moderate risk of reoffending which she said would be mitigated by participation in psychotherapy and targeted alcohol and drug counselling.
57Ms Ferrari says in her opinion you are motivated to change your behaviour and rebuild your life in the hope of spending some time with your son as he transitions into adulthood.
58Ms Ferrari says there are a number of protective factors in your profile including the fact that you are motivated as a result of feeling deep shame, guilt and embarrassment, along with remorse, for disappointing your family.
59Since you have been in custody, you have been working as a unit billet. You have completed a number of courses including in cleaning operations, food handling, English and technology.
60I take into account your plea of guilty. You are to be sentenced on the basis that while it was a late plea, you have saved the community the time and expense of a trial. I am prepared to act on the basis that your plea is demonstrative of at least some remorse, in that it indicates an acceptance of responsibility and a willingness to facilitate the course of justice.
61I think your prospects of rehabilitation are guarded unless you finally deal with the issues which have underpinned your drug use. You told Ms Ferrari that you have abstained from all substances in the year prior to her assessment of you. You admitted that you had previously used buprenorphine whilst in custody in 2015. Ms Ferrari noted that you have requested placement in a drug and alcohol program in prison, and that you have been placed on the wait list. You told Ms Ferrari that since being incarcerated, you had not had any cravings or desire to return to substance use. The real test, of course, will however come upon your eventual release from custody.
62Both general and specific deterrence must be given weight in the sentence I will impose this day. I must seek to deter not only you, but others who would engage in like conduct. The court and the community cannot tolerate this type of offending. Your sentence must manifest the community's denunciation of your conduct, and impose just punishment.
63The principles of totality and parity must be given weight in the sentence I will impose this day. While principles of parity are clear in their warrant, their application is difficult given the number of offenders and the various roles each has played, and the wide range of personal and custodial circumstances in which offenders are to be sentenced.
64Totality in your case must be given weight, and I have acted on that basis.
65On the charge of riot, you are convicted and sentenced to be imprisoned for 18 months. I direct that nine months be served cumulatively upon the sentence you are undergoing.
66I set a new single non-parole period, commencing this day, of ten months. Is there anything further I need to do.
67COUNSEL: No, Your Honour.
68MR HAYWARD: 6AAA.
69HER HONOUR: Pursuant to s.6AAA of the Sentencing Act, I direct it be noted in the records of the court, that were it not for your plea of guilty, I would have sentenced you to be in prison for 24 months with a minimum of 14 months.
70COUNSEL: As Your Honour pleases.
71MR HAYWARD: May it please the court.
72HER HONOUR: Nothing else, counsel?
73MR HAYWARD: No, Your Honour.
74COUNSEL: No, Your Honour.
75HER HONOUR: Thank you. Remove the prisoner please. Parties excused.
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