Director of Public Prosecutions v Nguyen

[2017] VCC 2010

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -17-00374

DIRECTOR OF PUBLIC PROSECUTIONS

v

YEN NGOC NGUYEN

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JUDGE:	HIS HONOUR JUDGE DYER
WHERE HELD:	Melbourne
DATE OF HEARING:	10 April 2017, 15, 29 & 31 August 2017, 17 October 2017, 21 November 2017 & 19 December 2017
DATE OF SENTENCE:	22 December 2017
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2017] VCC 2010

REASONS FOR SENTENCE
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Subject:  Criminal law

Catchwords:  Firearms; conduct endangering persons; conduct endangering life

Legislation Cited:                   Crimes Act 1958
Cases Cited:  R v Verdins [2007] VSCA 102
Sentence:  Four years and six months imprisonment with two year
  minimum

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Tinney SC	Director of Public Prosecutions
For the Accused	Mr C. Dane QC with Mr P. Casey	Luat Lawyers

Pages 1 - 8

 

 

HIS HONOUR: 

1On 10 April 2017, you, Yen Ngoc Nguyen, pleaded guilty to an indictment containing three charges. The first charge is possession of an unregistered handgun, contrary to s.7B(1) of the Firearms Act 1996. The maximum penalty provided for this offences is 600 penalty units or seven years' imprisonment. Charge 2 is reckless conduct endangering persons contrary to s.23 of the Crimes Act1958. The maximum penalty for this offence is five years' imprisonment. Charge 3 is reckless conduct endangering life, contrary to s.22 of the Crimes Act 1958. The maximum penalty for this offence is ten years' imprisonment.

2The circumstances of your offending are described in the prosecution plea opening dated 4 April 2017.[1]

[1]Exhibit C

3In short compass, your offending occurred on 26 October 2016 at your home in Keysborough where you were living with your six year old daughter, and your estranged partner, Peter Tran.

4Early in the morning while you were upstairs in the master bedroom of those premises with your daughter, police attended as a result of a raid involving the suspicion of drug trafficking activities being carried out from the premises.  In the course of this raid and whilst your estranged husband was being arrested by the police in the garage area, you took a loaded 0.22 handgun from the bedside table and fired a shot upwards through the closed door area of the premises, while members of the police force climbing the stairs and attempting to identify themselves.

5Following this shot, two police officers attempted to retreat down the stairs and fell backwards onto a landing.  You then left the bedroom area, leant over the balustrade of the top of the stairs, pointed the gun at the direction of the police officers and fired a second shot.

6The second shot was fired from a distance of approximately four metres from the two police officers on the stairs.  The police returned fire and again proceeded back up the stairs to find you still holding your firearm.  After a short delay, when called upon to drop your weapon, you finally complied and were handcuffed and arrested.  At this point, police became aware that your young daughter was in the bedroom.

7The shots fired by you caused considerable distress to the two police officers in the immediate position of harm and understandable alarm and distress to a number of other police officers who were involved in this raid.

8No police officer should be put at risk of personal harm because of actions such as you took on this day.  I have carefully read the nine victim impact statements from police officers, and particularly those from Sergeant Lawrence McCaughey and Detective Senior Constable Adam Tavinor who were the two police on the stairs at the time you fired the two shots in their direction.  The victim impact statements have all been tendered in evidence.[2]

[2]Exhibit B

9I would comment at this stage on the extreme professionalism showed by all the police, but particularly Sergeant McCaughey and Detective Senior Constable Tavinor.

10The premises where your offending occurred were well known to the police who had previously visited there on 7 July 2016, when your estranged partner, Tran, was arrested and charged with drug offences.  The attendance occurred after reports had been made by at least one neighbour about the premises being used for drug trafficking with numerous people attending the house, especially in the evenings, and over weekends.

11Further, on 13 October 2016, an aggravated burglary at the premises was reported to police.  On that occasion, you had run from the house and gone to the home of a neighbour asking for him to call the police as there were intruders present.  On that occasion, you reported that you had been upstairs checking on your daughter when you heard a noise coming from downstairs that sounded like someone being beaten up.  You had gone downstairs in the garage and seen five to six men beating up Tran.  The faces of the men were covered by shirts and masks.  Some of the men had been holding weapons such as a knife and a garden spade.

12When the men saw you, one of them told you to keep your mouth shut.  He threatened to kill Tran, yourself and your child if you made a noise.  Sadly, these are the circumstances that surround the evil business of drug trafficking in which you, in my view, were clearly involved.

13In the course of these events, these men took your phone, your computer and some cash that was next to the bed.  They were in your house for some 15 minutes. 

14On the day of your arrest in relation to the present matters, when you were interviewed by police, you attempted to explain your actions by describing the shooting as an accident and claiming that you had been awoken by what you believe sounded like, "the last time that the robber got into my house."  You further stated in the same interview:

"I didn't mean to aim at anyone.  I didn't want to kill anyone or hurt anyone.
All I wanted to do was make some noise and scare them off so they can run away.  I just tried to make them run away." 

15Frankly, this explanation leaves me puzzled as to why a second shot was fired in the direction of the police.

16In the initial plea hearing before me on 10 April 2017, Mr Casey, who then appeared alone, urged me to impose a non-custodial sentence upon you.  He tendered into evidence two psychological reports from Mr David Ball, dated 4 April 2017 and 2 December 2016.[3]  He further tendered Forensicare reports from Dr Barnes, dated 23 January 2017[4] and Dr Sinha, dated 17 February 2017.[5]  Mr Casey submitted that you behaved recklessly but not out of any malevolence, but rather because of trauma, fear and terror.  He submitted that the principles in the case of Verdins[6] were applicable.  His submission was directed towards the ultimate sentencing disposition and Mr Casey urged me to impose a community corrections order or similar sentence upon you, taking into account that you have served a significant period of time in pre-sentence detention since your arrest on the day of your offending.

[3]Exhibit 2

[4]Exhibit 3

[5]Exhibit 4

[6][2007] VSCA 102

17I was directed to the contents of the psychiatric and psychological reports in the course of the plea both in terms of the initial principles of Verdins and also in terms of the impact that your incarceration had upon your mental state since October 2016.  Mr Casey submitted that your admission to the Thomas Embling Hospital during the early stages of your incarceration was indicative of some very significant mental trauma which was ultimately fortified by the material contained in those medical reports.

18Mr Casey also submitted that a relevant factor was the timing of the raid, the visibility inside the house, and those matters should be taken into account in support of your stated confusion as to precisely who was in your house on that morning and the purpose of the entry.

19In light of the submissions that were then made, I sought an independent psychiatric assessment from Forensicare.  Dr Carolyn Simms ultimately prepared three reports dated 14 August 2017, 25 August 2017 and 9 October 2017[7] which were tendered in evidence.  Dr Simms gave evidence before me on 19 October 2017 and was cross-examined by Mr Dane QC, who then appeared with Mr Casey on your behalf, and also by Mr Tinney SC on behalf of the DPP.

[7]Exhibits D, E & F respectively

20In light of the evidence given by her before me on 19 October, together with the contents of her three reports, I am satisfied that you were suffering from some degree of depression at the time of your offending, although that depression, in my assessment, did not impair your mental functioning to the extent necessary to engage at least the first four principles of Verdins. 

21Nevertheless, I am satisfied that the overall circumstances preceding your offending, including the earlier intrusion by robbers on 13 September 2016, the obvious difficulty of you continuing to reside under the one roof with your apparently estranged husband, your concern about your own daughter and your safety, potentially impacted on your unwise decision to have in your possession and unregistered handgun, leading to the commission of the offences which are the subject of this indictment.

22I also accept as a matter of some relevance the time when the raid occurred.  I am not satisfied that the visibility in the house was impaired to such an extent as to excuse your behaviour, but I do accept that the fact that it occurred earlier in the morning while you had been in bed sleeping may have, in some ways, confused you as to the circumstances.

23I also accept that following your arrest and your initial incarceration, your mental state deteriorated, so that you were required to receive in-patient treatment, but I am mindful of the evidence given by Dr Simms to this court that the treatment provided has caused your mental functioning to improve.  I am satisfied that there is some scope to apply the fifth principle of Verdins on the basis of Dr Simms' evidence.  I am satisfied that incarceration leaves you at some risk of a further recurrence or deterioration of your mental condition.

24You are 34 years of age and you have no prior convictions.  You have pleaded guilty at an early stage and you are therefore entitled to more than simply a utilitarian benefit of that early plea of guilty.  I am also satisfied that you have shown genuine remorse and I regard your prospects of rehabilitation as good.

25On the basis largely of my recognition of the applicability of the fifth limb in Verdins, I propose to impose a head sentence with a minimum term and the minimum term will be lower than what otherwise would be the case.

26On Charge 1, possession of an unregistered handgun, you will be convicted and sentenced to a term of imprisonment of 18 months. 

27On Charge 2 of reckless conduct endangering persons, you are convicted and sentenced to a term of imprisonment of 18 months. 

28On Charge 3, conduct endangering life, you will be convicted and sentenced to a term of imprisonment of three years. 

29I direct that Charge 3 form the base sentence.  I further direct that nine months of the terms of imprisonment imposed in respect of both Charges 1 and 2 be served cumulatively upon each other and cumulatively upon the base sentence imposed on Charge 3.  The total effective sentence is therefore four years and six months.  I order to you serve a minimum of two years before becoming eligible for parole.  I further declare that you have served 422 days pre-sentence detention, not including this day and I direct that that be noted in the records of the court.

30I further declare that for the purposes of s.6AAA of the Sentencing Act, but for your plea of guilty, I would have imposed a sentence of six and a half years with a minimum of three and a half years before becoming eligible for parole.

31I will make the further orders.  There is an order under the Firearms Act, Mr Tinney.

32MR TINNEY:  Yes.

33HIS HONOUR: Pursuant to s.151 of the Firearms Act 1996, I order that the following property be forfeited to the Minister. A 0.22 long rifle calibre, Harrington and Richardson brand model top rake automatic ejecting seven shot selective double action. Five 0.22 bullets and five 0.22 fired cartridges.

34Pursuant to s.78(1) of the Confiscation Act 1997, the following items will be placed in the custody of the Chief Commissioner of Police and held by him to be tested and or analysed and then destroyed, a can of OC spray, white singlet top and a pair of black underwear.

35Do you have those additional orders?  Mr Casey, I'm going to make these secondary orders now.

36MR CASEY:  Yes.

37HIS HONOUR:  Is there any reason why Ms Nguyen should not go with the officers or would you rather me complete these orders before?

38MR CASEY:  I am happy for her to go now, Your Honour.

39HIS HONOUR:  Yes.  Thank you, Ms Nguyen, you can go with the Corrections officers.

40(Prisoner removed.)

41I have made those additional orders, Mr Tinney.

42MR TINNEY:  Yes, Your Honour, thank you.

43HIS HONOUR:  Is there anything further on behalf of the DPP?

44MR TINNEY:  No, Your Honour.

45HIS HONOUR:  Thank you.  Mr Casey?

46MR CASEY:  No, Your Honour.

47HIS HONOUR:  Mr Casey, thank you both yourself and Mr Dane for your considerable assistance.  I know it is a matter that had quite a bit of complication because of the psychiatric and indeed the other aspects of the case.  It is a difficult matter to deal with.  On the part of the DPP, Mr Tinney, would you pass on my particular comments to the bravery shown by the police on this day.  No one deserves to go to work in those circumstances.

48MR TINNEY:  Thank you, Your Honour.

49HIS HONOUR:  All right.

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