Director of Public Prosecutions v Nguyen
[2017] VCC 1937
•1 December 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-16-01689
Indictment No. C1610516.2
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PHI NGUYEN |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 September 2017 | |
DATE OF SENTENCE: | 1 December 2017 | |
CASE MAY BE CITED AS: | DPP v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1937 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – SENTENCE
Catchwords: False imprisonment, Making a threat to kill, Reckless conduct endangering life, Prohibited person in possession of a firearm
Legislation Cited: Crimes Act 1958
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr A Grant | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Ms E Murphy | Martine Marich & Associates |
1 Phi Nguyen, you have pleaded guilty to an indictment containing four charges – one charge of false imprisonment contrary to common law, one charge of making a threat to kill[1], one charge of reckless conduct endangering life[2] and one charge of prohibited person in possession of a firearm.[3]
[1] Contrary to s 20 Crimes Act 1958
[2] Contrary to s 22 Crimes Act 1958
[3] Contrary to s 5(1) Firearms Act 1986
2 The maximum penalty for false imprisonment contrary to common law is 10 years’ imprisonment.[4] The maximum penalty for making a threat to kill is 10 years’ imprisonment.[5] The maximum penalty for reckless conduct endangering life is 10 years’ imprisonment.[6] The maximum penalty for prohibited person in possession of a firearm is 1200 penalty units or 10 years’ imprisonment.[7]
[4] Pursuant to s 320 Crimes Act 1958
[5] Pursuant to s 20 Crimes Act 1958
[6] Pursuant to s 22 Crimes Act 1958
[7] Pursuant to s 5(1) Firearms Act 1986. At the time of the offending a penalty unit was equivalent to
3 The prosecution have filed a summary of prosecution opening on plea dated 6 September 2017, which I am told by your counsel I can treat as a statement of agreed facts.[8]
The facts
[8] Exhibit P1
4 The offences occurred at apartment 1105 on the 11th floor of Albert Tower at 38 Albert Road South Melbourne, where you resided. At the time of the offending, you were unemployed.
5 The victim, Quan Lin (“Lin”), was known to you, as you had had some limited dealings with him in the past. Danillo Markovic (“Markovic”), Jared Mostert (“Mostert”) and some other people were also present at your apartment when the offences occurred.
6 During late December 2015, you contacted Lin. You asked if he knew anyone who could urgently obtain "Special K” (Ketamine) for your girlfriend, Tsz Ki Kala Hong (“Hong”). Lin told you that he knew someone and he contacted them. They knew you, and that unknown person contacted you to arrange the purchase of the drugs.
7 Later that day, the unknown person contacted Lin and arranged for him to deliver the "Special K" to you. Lin collected a clear package which he believed contained "Special K". The arrangement was for him to give the drugs to you and you would pay him $3,500.00
8 After collecting the package, Lin attended at your apartment and spoke to you. You told him that you did not have any money to pay for the drugs at that time, so Lin agreed to pay for the drugs and you agreed to repay Lin.
9 About 3 or 4 days later, Lin re-attended at your apartment[9] and you gave him $1,000.00 cash as part repayment.
[9]A plan, incorporating photographs of the inside and outside of the apartment, were tendered as exhibit P2
10 At about 9.30 pm on 8 January 2016, Lin returned to your apartment where you agreed that Lin would return on 10 January 2016, at which time you would pay him the outstanding $2,500.00 in full.
11 Between 4.00 pm and 4.30 pm on 10 January 2016, Lin contacted you and arranged to attend to collect the money that you owed him. Lin then caught a taxi to Albert Tower and at about 4.35 pm you let him into the living room area. At that time the following people were also in the living area:
(1) Mostert
(2)Hong, a 23 year-old Hong Kong national who was residing in Australia on a student visa at Unit 325, 35 Malcolm Street South Yarra. Ms Hong was in a relationship with you.
(3)Vipevinee Singprom (“Singprom”), a 29 year-old Thai national who was residing in Australia on a student visa at 12 Greenwich Crescent Bundoora. Ms Singprom was in a relationship with Mostert.
12 You asked Lin to sit on the couch and Hong and Singprom left the room and went into two separate bedrooms. You and Mostert joined Lin on the couch.
13 Lin asked you about the money he had come to collect. You replied that you did not have any money, however a "boy" was bringing it over. While you waited, you, Lin and Mostert smoked cigarettes and drugs using a glass pipe. Between 5.30 pm and 6.00 pm, Lin made a call from his mobile phone to arrange to meet a friend for dinner at 6.30 pm. You and Mostert were present when Lin had that conversation.
14 About 5 minutes later the doorbell sounded and you answered the door. Markovic, who was 18 years of age and unemployed and known as Danny, entered the apartment. Markovic was carrying a black Gucci "bum bag". After saying hello to everyone in the living room, you took Markovic into the master bedroom where Hong had gone. Christopher Flynn arrived a short time later.
15 You and Markovic were in the bedroom for about 3 minutes before Markovic came out of the bedroom and walked towards Lin holding a large black coloured knife approximately 24 cm in length. Markovic removed the knife from its sheath.
16 You followed directly behind Markovic. You were carrying a double barrel over and under sawn-off shotgun,[10] which you pointed directly at Lin. You came to within a metre of Lin and pointed the shotgun at his chest. You told Markovic to find some rope to tie Lin up. This gives rise to charge 4 - prohibited person in possession of a firearm.
[10] Two photographs of the shot gun were tendered as exhibit P3
17 Markovic went outside onto the balcony and came back with white coloured 3 mm rope that was about 10 metres in length. He then used the rope to tie Lin's wrists up to his elbows in front of his body before covering the rope with black electrical tape. You then tied the rope around Lin's knees and ankles and again covered it in the black electrical tape. That is the commencement of the charge of false imprisonment, which goes over many hours.
18 You then placed the sawn-off shotgun on a coffee table pointing in the direction of Lin, before you taped Lin's mouth, which you closed using clear adhesive tape and wrapped it around Lin's head several times.
19 While he was being tied up, Lin asked why you were doing this to a friend. Markovic replied that Lin had robbed one of his "delivery boys" and stolen 1 kilogram of "ice" the previous Friday.
20 Mostert then left the lounge area and went into the bedroom occupied by Singprom and Hong.
21 Markovic picked up Lin and carried him into the bathroom. Markovic left the bathroom door open and went into the master bedroom.
22 About 5 minutes later, you and Hong walked past Lin and laughed at him before leaving the apartment by the front door. CCTV footage captured you and Hong entering the lift and exiting at level 5 where you had parked your vehicle. You both then drove away from the complex.
23 Soon after you left, Markovic went into the bathroom and picked Lin up and carried him back into the lounge room and placed him on a couch. Markovic picked up the shotgun, which was on the coffee table and pointed it at Lin. He instructed Lin not to move. Markovic was holding the knife in his other hand at that time.
24 While Lin was sitting on the couch, Singprom came out of the bedroom and saw that he was tied up. She asked if he was comfortable, but he could not reply as the tape was covering his mouth. She gave him a glass of water with a straw and tried to move the tape from his mouth so that he could drink it. Markovic stopped her and Mostert, who had come back into the lounge room by this stage, told her not to move the tape.
25 At about that time, Lin asked to use his phone. Markovic told him he wasn't allowed to touch his phone which was on the coffee table.
26 At about 8.08 pm, you and Hong returned to the apartment with another male and female who were holding hands (“the Asian couple”). You spoke to Hong in Cantonese and asked why they had someone tied up in their apartment. Hong ignored the question. You then directed Markovic in English to take Lin back into the bathroom, as there was no need for him to be comfortable. Markovic picked up Lin and put him back into the bathroom. The door was only partly open, so he could hear but not see what was happening in the lounge room.
27 At about 9.22 pm, CCTV captured Yaxuan Wang (“Wang”) entering the apartment. Wang was a 22 year-old Chinese national who was the holder of a student visa and in a relationship with Markovic.
28 Lin was in the bathroom for about 45 minutes before the Asian couple said goodbye and left the apartment. Soon after, Markovic returned to the bathroom and carried Lin back to the couch. Lin observed Wang on the couch with a brownish Chihuahua dog. Wang appeared to be shocked when she saw Lin. She had a conversation with you. You directed her to go into the bedroom.
29 When you were sitting next to Lin, you took the shotgun from Markovic and pointed it towards Lin. The barrel was about 2 metres from Lin at that time. You told Lin that you were not joking, and that you were going to kill him. That gives rise to charge 2 – making a threat to kill. You were yelling and swearing at Lin. Markovic was standing nearby. You pointed the loaded shotgun in the direction of Lin. One shot was discharged from the shot gun. The prosecution does not allege that this shot was fired intentionally. Lin moved to his left and avoided being struck by the blast. The couch cushion to Lin's right was ripped apart as a result of the discharge (charge 3 – reckless conduct endangering life).
30 After hearing the blast, Mostert, Singprom, Hong and Wang came into the lounge room. They were panicking and wanted to leave. Mostert told them that it would be too suspicious if everyone left at once.
31 Shortly after the sawn-off shotgun discharged, Markovic untied Lin in case someone came into the apartment.
32 You directed Markovic to put away the shotgun. Markovic put the shotgun into a cardboard box and walked out of the apartment.
33 CCTV captured Markovic leaving the building at 10.50 pm carrying a large cardboard box, believed to contain the shotgun and the hunting knife.
34 You then directed Markovic to take Lin downstairs to the car. Markovic took Lin to your car on level 5 and after a short time you directed Markovic to return Lin to the apartment. Markovic took him back to your apartment and again tied his hands and legs.
35 Markovic then attended at the home of Cassandra Bernadas (“Bernadas”), who was Flynn’s girlfriend, where the box containing the shotgun was hidden in the main bedroom.
36 At about 00.07 am, that is, 7 minutes after midnight, Markovic was captured on CCTV returning to the apartment. Once he re-entered the apartment, you directed Markovic to return Lin to the bathroom.
37 You and Hong then went to sleep, while Markovic, Mostert, Singprom and Wang were in the other bedroom talking. Lin remained awake and unsuccessfully attempted to remove the ropes and tape around his wrists and ankles.
38 At about 6.00 am, you, Mostert and Singprom left the apartment and went to Coles in South Melbourne, where you purchased groceries before returning to the apartment at 7.15 am.
39 Lin remained in the bathroom until about 9.02 am, at which time he was placed back into the lounge. Wang and Hong were present in the living area. After a period of time, Markovic carried him back into the bathroom and removed the tape from his mouth. You then entered the bathroom and demanded that cash or "ice" be delivered directly to you.
40 At about 9.30 am on 11 January 2016, you and Hong left the apartment and, a short time later, Lin was able to remove the tape from his face. He began biting at the tape securing the rope around his wrists. Eventually, he was able to free his hands and then remove the binding from his legs.
41 Singprom was asleep on the couch. Lin walked quietly into the lounge room and slid open the unlocked glass door to the balcony. He flipped himself over the 11th floor balcony and held onto the side, before sliding down and jumping a short distance down onto the balcony beneath. The relationship between the two balconies is shown in two photographs contained within exhibit P2. These vividly demonstrate that the manoeuvre undertaken by Lin in an effort to escape you and your co-offenders put his life at extreme risk and demonstrates further the great fear he must have been in at that time to contemplate undertaking such action.
42 Singprom woke and saw Lin flip himself over the balcony. Singprom screamed: "He's jumped over the balcony", thereby waking you, Hong, Markovic, Wang and Mostert.[11]
[11] .
43 Lin entered apartment 1005 through the unlocked balcony door, removed a set of keys from the kitchen bench and exited the apartment using the front door. He then walked down the fire escape to the ground floor, as he was in fear of those who had imprisoned him. When he reached the foyer, Lin observed you, Markovic, Mostert, Hong, Wang and Singprom waiting for him. He then walked back up the fire escape, but was unable to enter any level until he reached the 22nd floor. He then began to knock on doors and called for help.
44 While Lin was on the 22nd floor, Fabio Douek (“Douek”), a resident of that floor, exited the lift and spoke to Lin. Douek noticed that Lin’s wrists were red. Douek gave Lin his mobile phone. Lin called triple zero twice and asked the police to attend. Douek then called the building manager and asked him to come and speak to them.
45 Lin and Douek went to the foyer and waited for the police to attend with the building manager. While they were waiting you came out of the lift and Lin, in fear of his life, immediately ran from the foyer and onto Albert Road. Lin then ran to the St Kilda Road Police Station, which was about a block from Albert Tower and reported the incident to police.
46 Investigators attended at Albert Tower and reviewed the CCTV footage to confirm Lin's account of what had taken place. They then established a crime scene at the entrance to your apartment.
47 A short time later, you and Hong attended the 11th floor and attempted to enter the apartment. Both of you were arrested and taken to the St Kilda Police Station.
48 A warrant was executed and investigators entered your apartment where they found Markovic and Wang. Both were arrested and taken to the St Kilda Police Station
49 When Markovic was searched, police located a mobile phone which contained video footage of Lin with his hands bound and his mouth taped shut. In the video footage the sawn-off shot gun is laying on the coffee table pointing at Lin.
50 The apartment was searched and photographed. Investigators found the following:
· In the bathroom, two rolled up balls of black electrical tape.
· In the living room, two bundles of white rope and a white Samsung Galaxy S6 mobile phone.
51 At 6.45 pm on 11 January 2016, Lin was examined by a forensic medical officer. The examination revealed that he had suffered the following injuries:
· A small abrasion on the right wrist on the left side of his little finger.
· Superficial redness around the right wrist.
· Swelling and redness around the side of the left wrist by the thumb.
· A superficial abrasion over the back of the left forearm.
· Redness around the left wrist.
The injuries observed were photographed.[12]
Victim Impact Statement
[12] These were not tendered at the plea hearing
52 Mr Lin prepared a victim impact statement which was tendered at the plea hearing.[13] Apart from suffering an injury to his wrist and ankle, losing money and his iPhone, and the consequent expenses involved, Mr Lin emphasised the psychological or emotional trauma this crime had caused him. He stated that he was stressed and worried, it affected his sleep and affected his ability to concentrate at work. He lost approximately 10 kilos in weight within one month of the crime.
[13] Ex P8.
53 I take this impact of your crimes on your victim very much into account.
Offence seriousness
54 I accept the Crown’s characterisation of these crimes as being “extremely serious”. Defence counsel accepted that this was “serious and lawless conduct”. Moreover, your moral culpability is high. You played the major role. You were the instigator and controller of these crimes. They occurred in your apartment, were related to your drug-dealing business and you directed your co-offenders through most of the time the victim was at your mercy. It was you who pointed the sawn-off shotgun at the victim (charge 3). When it unintentionally discharged, your threat to kill him (charge 2) very nearly came to fruition. It was a lengthy and terrifying ordeal for Mr Lin. Your motive is unclear.
55 I accept the Crown’s submissions that a number of features are present which contribute to the gravity of your offending conduct. In particular, in relation to the charge of false imprisonment (charge 1) I accept the following:
(a) The offending involved a degree of planning
(b) The offending was committed with the assistance of a number of co-accused.
(c) The complainant was physically restrained for long periods while he was held prisoner. His ordeal lasted about 15½ hours in total. During this time he was restrained, intimidated and threatened.
(d) The offending involved the use of a large knife and a sawn-off shotgun, which it transpired was loaded; although, I am unable to find, to the required standard, that this was known to you at the time you pointed the weapon at Lin.
(e) The complainant was imprisoned for an extended period of time and was clearly in fear that he would be killed.
56 Defence counsel on your behalf acknowledged that the presence of a firearm for a lengthy period of time aggravated the offending conduct and that the conduct constituting the charge of reckless conduct endangering life is “grave”. Your counsel also recognised that the offending arose in the context of a dispute over a drug debt and she acknowledged that this reflects “a lawless approach to settling disagreements”.
Prior Criminal History
57 You have an appalling prior criminal history comprising 78 prior convictions or findings of guilt arising out of seven court appearances between December 2008 and May 2014. These include: 9 charges of robbery, 1 charge of attempted robbery, 1 charge of making a threat to kill, 1 charge of reckless conduct endangering life, 2 charges of affray, 2 charges of intentionally causing injury, 4 charges of recklessly causing injury, 1 charge of contravene family violence intervention order and 1 charge of harass a witness. In the past you have received rehabilitative dispositions, which you have not taken advantage of, including a youth supervision order and a community correction order. You have previously been sentenced to a term of imprisonment and a number of youth justice centre sentences, which have obviously not deterred you from your criminal activities.
58 As you have been previously sentenced to a term of imprisonment for making a threat to kill, you fall to be sentenced as a serious violent offender for the current offence of making a threat to kill. As a result the Court must regard the protection of the community as the principal purpose for which the sentence is imposed.[14] The prosecution does not submit that the Court should impose a sentence longer than that which is proportionate to the gravity of the current offence considered in the light of its objective circumstances.[15] Moreover, the term of imprisonment I impose on you for that offence must be served cumulatively on the other sentences of imprisonment I will impose in this case, unless I otherwise direct.[16] I will be directing otherwise in order to give effect to the totality principle, which in this case requires particularly careful consideration given the risk of imposing double punishment in a case involving related and overlapping offences.
Personal circumstances
[14] See s 6D(a) Sentencing Act 1991
[15] See s 6D(b) Sentencing Act 1991
[16]See s 6E Sentencing Act 1991
59 You entered pleas of guilty to the charges before me at a late stage. I was told these pleas were entered following negotiations with the prosecution, which resulted in the withdrawal of a number of charges.
60 It was submitted that you are entitled to the utilitarian benefit that flows from your pleas of guilty. I fully accept that. You made an application to change you pleas to ones of not guilty, however this application ultimately was not pursued. I do not take this into account against you. At the subjective level, I accept that the pleas of guilty demonstrate your acceptance of responsibility for your offending conduct and a preparedness to facilitate the course of justice. I note that your counsel accepted that there was no evidence before me of true contrition and remorse for your crimes or their effect on your victim, Mr Lin.
61 You were 22 years’ old at the time of committing these offences[17] and you are now aged 24 years. It was submitted that your youth remains a relevant sentencing consideration and that rehabilitation should still be given appropriate weight, notwithstanding that the seriousness of the offending requires a term of imprisonment and you have an appalling prior criminal history, particularly for violent offending. I accept that your relative youthfulness plays some part in sentencing you and, in particular, I shall give greater weight to facilitating your prospects of rehabilitation than I otherwise would have.
[17] The prisoner’s date of birth is 24 March 1993
62 Your family originates from Vietnam. You are the fourth eldest in a sibship of six. Your family fled from Vietnam to Hong Kong as refugees by boat in 1989. From there your parents went to a refugee camp in the Philippines, where you were born.[18] While in the refugee camp your family was often hungry and you had to steal food to survive. Eventually, you and your family settled in Australia. Your childhood was spent in St Albans, where your family resided in a small flat. Your father left the family when you were young, and you have a very limited recollection of him.
[18]Although I note that Ms Lechner in her psychological report dated 5 May 2017 at page 3 states that you were born in Australia.
63 Your family were very poor and your mother had difficulty providing for all of the children. You have instructed your counsel that your mother was strict and physically disciplined you. You had difficulty at school. By the age of about 12, you had essentially left the family home, and were fending for yourself. You were placed in the care of the Department of Human Services and lived in a residential unit and foster care until age 17.
64 You left school at the beginning of Year 9 and commenced a mechanic’s apprenticeship at Ina Cars in St Albans. You instructed your counsel that you completed two years of that apprenticeship and have aspirations to return to it upon your release from custody.
65 Whilst in residential care, there was an incident in which you were sexually assaulted by an unknown adult male in a nearby park. You reported the matter to Keilor Downs Police Station, but you do not believe that the man was ever identified.
66 I take these circumstances of your relatively deprived background into account in your favour.
67 You have a significant drug and alcohol history and have now spent a substantial period of time on remand, since 11 January 2016.
68 You have never married and have no children. The relationship you were in at the time of the offending has ended. You told Ms Lechner, a clinical psychologist who examined you for the purposes of making a report, that you are currently in a relationship with Carla, who visits you occasionally. Since you have been on remand you have had some limited contact from your mother and are in occasional contact with your younger brother.
69 At the plea hearing, your counsel provided me with a Substance Use Program participation certificate and six negative drug screen reports, covering the period 26 January 2017 to 29 August 2017, together with academic results records from 2009 to 2017, which included some regarding your educational activities whilst you have been in custody for these offences. The Crown did not oppose me receiving these documents as an exhibit.[19] I have taken these matters into account in your favour, particularly the significant circumstance of your clear drug screens, which augers well for your chances of ultimately ridding yourself of your addiction to illicit drugs.
[19] Exhibit A3
70 Your counsel tendered on your behalf a report prepared by Carla Lechner, a clinical psychologist, dated 5 May 2017.[20]
[20]Exhibit A2
71 Ms Lechner noted your prior history of offending dating back to your adolescent years, which she stated seems to have arisen in the setting of a cannabis, alcohol and stimulant use disorder with your poly-substance use masking a range of mental health issues arising from your formative years. She also noted that you had reported that you had been the victim of physical and emotional abuse in the home, had suffered learning difficulties and that you were sexually assaulted when you were in residential care in your early teenage years.
72 Formal testing of your cognitive skills indicated that you are low functioning, although it is difficult to determine if your skill deficits are due to a language-based learning difficulty or are more widespread. She strongly advised that a neuropsychological report would shed more light on this. None has been provided to me and as I understand it, none has been obtained.
73 Ms Lechner outlined your personal history and commented that you impressed as socially, emotionally and cognitively immature, with a limited capacity to reflect on the impact that your behaviour has had on yourself and others.
74 Ms Lechner noted that you stated that you had felt suicidal “but can’t remember” if you had made any attempts on your life. You also stated that you are quite paranoid, but you denied any psychiatric admissions.
75 As to your history of drug and alcohol consumption, you told Ms Lechner that you began smoking marijuana at the age of about 12 years, smoking every day with a gradual increase in your habit from 4 to 14 grams per day. You told her that “without it I get cranky”. You began abusing “ice” at age 14 years of age. You told Ms Lechner that you used “ice” “everyday … about seven grams a day”. You also told Ms Lechner that you had “tried” heroin, GHB, cocaine, LSD, ecstasy and prescription medication such as Xanax and Seroquel. You admitted to using drugs in gaol and you told Ms Lechner that “it gets me away from life”. You currently have been prescribed the anti-depressant Avanza.
76 Ms Lechner noted that you told her that before your incarceration you drank alcohol to excess; “about 2-3 bottles (of spirits) a day”.
77 Ms Lechner administered the Wechsler Abbreviated Scale of Intelligence (Second Edition) to gain an understanding of your cognitive abilities. She reported that your performance places you in the “mildly intellectually disabled” range of intelligence with approximately 99.8% of adults performing better — your full scale IQ was 57. Your Verbal Comprehension Index was 54 where 99.9% of adults would do better, and your Perceptual Reasoning Index was 65 where 99% of adults would do better.
78 With the caveat that a full neuropsychological evaluation would shed more light on this, on the basis of the results achieved from other tests conducted, Ms Lechner opined that you demonstrate limited comprehension and expressive skills. You have a concrete, rather than conceptual, thinking style, accordingly, it is likely that you interpret the world around you in a subjective manner and have difficulty in taking perspectives, other than your own.
79 Ms Lechner further concluded in her summary and opinion that your cognitive deficits and mental health issues would suggest that you are more vulnerable to perceived pressure than a person without such impediments. However, it remains her view that the extent of your cognitive limitations need to be better understood, as do the nature of the psychotic symptoms that you report.
80 Ms Lechner noted that you report symptoms of depressed mood with a score in the “extreme” range on the Beck Depression Inventory, which she opined was consistent with your presentation at interview and a diagnosis of clinical depression. However she made no formal diagnosis of depression. I might add that in the context of your upbringing, Ms Lechner also made no formal diagnosis of post-traumatic stress disorder or anything of the like. On the Beck Anxiety Inventory you reported a “severe” level of anxiety, which Ms Lechner opined was not matched by your presentation at interview. Once again, she made no formal diagnosis in relation to any level of anxiety you may be suffering. Ms Lechner also observed that your symptoms of paranoia may be drug-related.
81 Your counsel on the plea, fairly accepted that there was no formal diagnosis of mental illness in your case and that, in any event, it would be difficult, if not impossible, to disentangle questions of causation, given your lengthy and profound history of alcohol and drug abuse.
82 In these circumstances, it is unsurprising that your counsel submitted that Verdins[21] principle 5 alone was engaged in your case. I accept this, and will sentence you on the basis that by reason of you cognitive deficit and psychological profile, any sentence I impose will way more heavily on you than it would on a person who does not suffer from these conditions. Moreover, your intellectual disability is in itself relevant to the weight I give to the retributive effect of any sentence I impose upon you and the principle of general deterrence.[22] These will be moderated in your case. However, denunciation and general deterrence remain very significant sentencing considerations and specific deterrence and protection of the community are also important considerations in the sentencing mix.
[21] R v Verdins (2007) 16 VR 269
[22] Muldrock v The Queen (2011) 244 CLR 120
Mitigating Circumstances
83 In addition to everything that has been put on your behalf, I take into account the following particular circumstances in your favour:
(a) Whilst the false imprisonment extended over a substantial period of time, the victim did not suffer physical injuries beyond a number of superficial marks.
(b) There were periods of time in which he was not bound, tied or gagged.
(c) The discharge of the firearm was accidental and the reckless nature of the conduct was founded in the pointing of a loaded firearm in the direction of the victim. It was accepted by your counsel that the accompaniment of a threat to kill with this conduct would have been a frightening experience for the victim.
(d) Whilst I find you played a leading role in the offending conduct, I accept that there were periods of time throughout the incident that you were not present at the apartment.
84 It was submitted on your behalf that any level of planning was limited. I do not accept that characterisation. While it is true that the victim was present in your apartment for several hours before your co-accused arrived, and it was only at that point that the victim was physically restrained, the means of restraint were readily available to you.
85 I can at best be guarded regarding your prospects of rehabilitation given your appalling prior criminal history, failure to take advantage of rehabilitative dispositions in the past and the concerning admission you made to Ms Lechner that you “admitted to using drugs in jail”, although I also take into account on that issue, the clear drug screen which have been provided to me since the plea hearing.[23] Nonetheless, you are relatively youthful and there is still hope that you may be reclaimed from the life of crime you are currently intent upon. I will tailor the sentence I impose so as to facilitate you rehabilitation as best I can in all the circumstances of this case.
[23] Carla Lechner, Clinical Psychologist, Report dated 5 May 2017, p 5 (Ex A2)
Parity
86 I was provided by the Crown with the sentencing remarks of His Honour Judge Taft in sentencing your co-accused Danilo Markovic.[24] Markovic was only charged with the offence of false imprisonment arising out of the present offending. He entered early pleas of guilty to the charges he faced. He was 18 years’ old at the time of the offence and 19 years’ old at the time of sentence. He had no prior criminal history. He was intellectually immature at the time and his full scale IQ is only 78 and there were other mental health considerations that were relevant in his case.[25] He was sentenced on the basis he played a much lesser role in the false imprisonment than I find you did.[26] Accordingly, I find that the aggregate sentence of 2 years’ imprisonment with a 12 month non-parole period imposed by Judge Taft on the false imprisonment charge and a charge of possessing an unregistered general category hand gun,[27] is of little relevance in my sentencing you.
[24]Unreported, County Court of Victoria, Judge Taft, 3 June 2016 (Ex P5)
[25] Ibid [29]–[30], [32]
[26] Ibid [23]–[24]
[27]Which arose out of Markovic’s hiding the sawn-off shotgun at Bernadas’ house. See ibid [11] and above [36].
87 I have obtained the unrevised sentencing remarks of his Honour Judge Taft in sentencing your co-offender Flynn. In relation to the events giving rise to this case, he was only charged with false imprisonment. At the time of the offending conduct he was 20 years’ old and had no prior convictions. He entered a plea of guilty at the first available opportunity. He had been bailed to Odyssey House for treatment for drug addiction and was doing well. Judge Taft accepted that Flynn “had undertaken an extraordinary and prolonged rehabilitation” and that he “should be given the opportunity to continue with [his] recovery”.[28] It was accepted by the Crown on his plea that he played a “significantly lesser role” than you did in the false imprisonment offence and he was not present when the shotgun discharged.[29] Like the sentence imposed on Markovic, I find that the sentence of 80 days’ imprisonment[30] together with an 18 month CCO imposed on your co-offender Flynn by Judge Taft is of little relevance in sentencing you, although I do not ignore it.
[28]DPP v Christopher Flynn [2017] VCC 440 [51]
[29] Ibid [6] and [34].
[30] Which was time served and declared as PSD.
88 Finally, I was provided by the Crown with the brief sentencing remarks of His Honour Judge Maidment (as he then was) in sentencing your co-offender Jared Mostert.[31] Mostert pleaded guilty to one charge of false imprisonment arising out of the present offending. He was 27 years’ old at the time of sentence. He had relevant prior convictions, including one for a similar offence in which he played a similar role,[32] for which he received a CCO in this Court some three weeks before becoming involved in the present offending.[33] His Honour placed “considerable weight on the need to rehabilitate” him.[34] Mostert played a much lesser role in the offence than you did.[35] I regret to have to say, that I find the sentence imposed on Mostert of 91 days’ imprisonment[36] coupled with a 2 year CCO with 250 hours of unpaid community work for this offence, given his prior criminal history,[37] to be extremely lenient, and, while I do not ignore that sentence completely, I will give it little weight in determining what I consider is an appropriate sentence to impose on you on the count of false imprisonment in all the circumstances of your case.[38]
Totality
[31] [2016] VCC 2082
[32] Ibid [2]
[33] See the LEAP report of Mostert’s prior criminal history part Ex P6
[34] Ibid [11]
[35] Ibid [10] (sub scil)
[36] Which was time served and declared as PSD
[37]See the LEAP report of Mostert’s prior criminal history part Ex P6
[38]See Joseph v The Queen [2014] VSCA 343 [81] and footnote 10 (Weinberg, Priest and Santamaria JJA)
89 As I have previously mentioned, there is a significant degree of overlap factually, and to some extent, elementally, between the four charges I must sentence you for. I must be careful to avoid doubly punishing you, both in fixing the individual sentences I impose, and in my orders for cumulation.
90 I accept that the totality principle and the need to avoid double punishment are important sentencing considerations in this case, particularly in relation to charges 2 and 4 on the indictment, which overlap to a significant extent with the conduct the subject of charge 3. Nonetheless, charges 2 and 4 involve a degree of added criminality which needs to be appropriately punished, and in relation to charge 2 you fall to be sentenced as a serious violent offender, so that the totality principle has been statutorily modified.[39]
Current Sentencing Practice
[39] See s 6E Sentencing Act 1991
91 I have given consideration to current sentencing practice for these offences in light of the recent decision of the High Court in DPP v Dalgliesh (a Pseudonym).[40] Mr Grant, who appeared to prosecute, submitted that: “A number of features of the current case are unique, and the assistance provided by sentencing statistics and the sentences imposed for offences of a similar character is necessarily limited.” Defence counsel did not argue otherwise. Nonetheless, I have tried to garner some understanding of sentencing patterns in this State for these offence.
Parsimony
[40] [2017] HCA 41
92 The Crown submitted that the principles of general deterrence, denunciation and specific deterrence must play an important role in the imposition of sentence in this case and that the offending “warrants nothing less than a condign term of imprisonment that should be served immediately”. The defence acknowledged that the offending represented “senseless and lawless conduct” and it was “objectively serious, and that general and specific deterrence are of prima facie importance”. It was conceded that “a period of imprisonment is the only appropriate disposition”.
93 In light of the seriousness of the offences, the objective gravity of the offending conduct and your role in it, your moral culpability, your appalling prior criminal history, and taking into account your personal circumstances and all relevant mitigating circumstances— particularly your plea of guilty, your relative youthfulness, both at the of time of committing the offences and today, and your intellectual disability — while giving effect to the principles of proportionality, totality, parity (to the extent it can be applied in this case) and parsimony, I am of the view that sentences of imprisonment are necessary to achieve the purposes for which these sentences are imposed, particularly the principles of denunciation, general and specific deterrence, protection of the community and just punishment and the ultimate facilitation of your prospects of rehabilitation.
Stand up Mr Nguyen
On charge 1 (False imprisonment) you are convicted and sentenced to be imprisoned for 30 months.
On charge 2 (Make threats to kill) you are convicted and sentenced to be imprisoned for 18 months.
On charge 3 (Reckless conduct endangering life) you are convicted and sentenced to be imprisoned for 42 months.
On charge 4 (Possessing a firearm whilst prohibited) you are convicted and sentenced to be imprisoned for 18 months.
The sentence of 42 months on charge 3 will be the base sentence and I order that 15 months of the sentence imposed on charge 1, 6 months of the sentence imposed on charge 2 and 9 months of the sentence imposed on charge 4 be served cumulatively on the sentence imposed on charge 3 and on each other making a total effective sentence of 72 months or 6 years’ imprisonment. I fix a minimum non-parole period of 44 months.
94 I declare pursuant to s18 of the Sentencing Act 1991 that the period you have served in custody in relation to these offences is 690 days (not including this day) which is to be reckoned as a period of imprisonment already served under the sentences I have just imposed and I direct that that declaration be entered in the records of the Court.
95 I direct that the fact I have sentenced you as a serious violent offender on charge 2 (Make threats to kill) be entered in the records of the Court.
96 I declare pursuant to s6AAA of the Sentencing Act 1991 that but for your pleas of guilty, I would have sentenced you to a total effective sentence of 7 years’ imprisonment with a non-parole period of 5 years’ imprisonment.
Remove the prisoner
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