Director of Public Prosecutions v Nguyen
[2024] VCC 609
•3 May 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-01045
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHO NGUYEN |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 April 2024 |
| DATE OF SENTENCE: | 3 May 2024 |
| CASE MAY BE CITED AS: | DPP v Nguyen |
| MEDIUM NEUTRAL CITATION: | [2024] VCC 609 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Charges of reckless conduct endangering serious injury, possessing a drug of dependence and related summary offences – driving a vehicle on a highway crashing into the rear of another vehicle – offending whilst on parole – prior criminal history – early pleas of guilty – licence cancelled and disqualified for a period of 36 months.
Cases Cited: Worboyes v R [2021] VSCA 169; Bugmy v R [2013] 249 CLR 571.
Sentence:Total effective sentence of 23 months imprisonment. Non-parole period of 16 months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr C. Brydon | Office of Public Prosecutions |
| For the Accused | Mr J. Karitzis | Valos Black & Associates |
HIS HONOUR:
Introduction
1Cho Nguyen, I will sentence you to a total sentence of 23 months' imprisonment and will fix a non-parole period of 16 months' imprisonment. I will declare the 160 days of your pre-sentence detention as time served under my sentences.
2You pleaded guilty to a charge of reckless conduct endangering serious injury, two charges of possessing a drug of dependence and two related summary offences. The details of your offending appear in the 'Amended summary of prosecution opening on plea', which is Exhibit A.
Circumstances
3At about 7.41 pm on 27 January 2023, you left your home in Deer Park driving Mercedes-Benz coupe, which you recently bought. The vehicle had a windscreen dashcam. I was shown about 17 minutes of the footage.
4You drove on the Western Highway towards Bacchus Marsh. There are two lanes for vehicles travelling in your direction. For most of your trip the speed limit was 100 kph. The dashcam footage shows you driving very much faster than other vehicles. It shows you passing many other vehicles, whether on their right or left. You drove up close to a number of vehicles in an attempt to get their drivers to make way for you, which they did. At times, you are heard swearing at other drivers.
5At about 7.54 pm, you are seen driving in the right lane, near Melton. You are travelling at a speed considerably greater than 110 kph. You approached another vehicle in the same lane. You diverge into the left lane as did the other vehicle in order to avoid you. You then change into the right lane, narrowly missing the other vehicle.
6Notwithstanding this near collision, you continued at great speed. At about 8 pm, you were in the left lane, still travelling much faster than the other traffic, when you ran into the rear of a red Corolla. There was no braking before the collision or attempt to avoid the other vehicle. Shortly before this collision, it is noticeable your vehicle started to wander.
7The impact forced the other vehicle forward, the driver braked but her brakes locked and her vehicle slid into the barrier on the left, rotated and stopped facing oncoming traffic. Both vehicles were considerably damaged. You got out your vehicle and walked back to the Corolla. You asked the female driver if she was okay but did not give her your name and address. You returned to your vehicle and attempted to drive it. Owing to its damaged state, you could not. A Camry pulled up beside you. You got out and entered the Camry. One of its passengers went to your vehicle and turned off the ignition and took the keys.
8On 28 January 2023, two persons attended the Sunshine police station. One of them, Nicole Breitner, said she was driving your vehicle when the collision occurred. On the same day, you told a police officer Ms Breitner was driving your vehicle. This was a false report to police since you were the driver.
9On 21 February 2023, the police searched your home and found two containers, one with 1.5 grams of methylamphetamine and the other with 1.5 grams of heroin.
10At the times of offending, you were on parole. A condition of your parole was not to commit an offence punishable by imprisonment.
11The police interviewed you. After some falsehoods, you admitted being the driver, you had drunk two to three beers with your breakfast and you did not see the collision and suspected you had fallen asleep.
Criminal history
12Between 7 November 1996 and 26 July 2019, excluding appeals, you have appeared in a criminal court in this State and South Australia on 25 occasions and have been found guilty or convicted of 50 charges. You have been sentenced to a term of imprisonment on 10 occasions. Your longest sentence of imprisonment was imposed on 26 July 2019, when you were sentenced to 5½ years with a non-parole period of four years. I have read the sentencing remarks of the judge who sentenced you.
Victim impact statement
13There are no victim impact statements.
Personal
14You are now 47. You were born in Vietnam. Your family migrated to Australia when you were two. You lived in Adelaide before moving to Melbourne after a few years. You started primary school in Collingwood before returning to Adelaide when your father was imprisoned. You completed most of your primary school education in Adelaide.
15After your father was released from prison, your life spiralled downwards. There was considerable violence done by your father to your mother and you and your older brother. Your father suffered from schizophrenia, which was undiagnosed then. He became violent after drinking.
16Your parents separated about 20 years ago and since then, you have had no contact with your father. You have three siblings and are the second youngest. You have a good relationship with your mother and two of your siblings. Regarding the oldest sibling, you have limited contact due to that person suffering from schizophrenia and living in supported accommodation.
17You returned to Melbourne and completed Years 11 and 12. Ultimately, you stopped studying due to the difficulties you encountered at home. At school, you were bullied on racist grounds.
18After school, you attempted to complete a TAFE course but ceased due to drug use. Regarding previous employment, you completed 18 months of a baker traineeship and worked in a factory for nine months and as a plumber for six months. You were working just before your present remand as a cook and assistant plumber. In 2009, you studied Certificate 4 in youth work. However, your studies were interrupted by a lengthy term of imprisonment. You have further completed courses while in custody on this occasion.
19Currently, in custody, you are appointed in the position of an AOD Peer Educator. This role provides direct support to other prisoners around their drug and alcohol use, drawing directly upon your own lived experience of the prison system, offending, and substance use. You have been considered and ultimately appointed in this role due to your model behaviour within the prison.
20You have no children and no current partner. You had a partner but you and she separated after you were sentenced to a long term of imprisonment.
21You have a lengthy history of drug use. You started using cannabis at 11 and from 15 you were using it daily. You ceased using cannabis in 2009 due to serving a term of imprisonment. After your release from that sentence, you started using heroin and methylamphetamine. You have never been able to participate in a rehabilitation program. You are currently prescribed depot Buprenorphine and drink alcohol daily.
Psychologist
22Carla Lechner is a clinical psychologist. At the request of your solicitors, she interviewed you on 6 February 2024[1].
[1] Report dated 5 April 2024.
23She diagnosed you as suffering from three recognised psychological disorders: a stimulant use disorder; an opioid use disorder; and a complex post-traumatic stress disorder. The first was in remission because you are in prison. The second is managed with a replacement programme.
24Ms Lechner sees your post-traumatic stress disorder as a product of your exposure to what she calls 'complex developmental trauma' in your formative years. Your drug usage started when you were a teenager as a measure to block your emotional pain. Part of your drug addiction is managed through replacement. The other part is controlled simply through the unavailability of illicit drugs in prison. Your post-traumatic stress disorder is longstanding and untreated. I daresay it will be difficult to treat.
25Ms Lechner considered you are socially and emotionally immature due to the effects of what happened to you when young and the effects of imprisonment. Nevertheless, she saw signs of you learning to better identify triggers to your negative feelings and manage them in a more adaptive manner.
26Because of the symptoms of your post-traumatic stress disorder, your time in prison is accompanied by being constantly on the look-out for potential danger, conflict and aggression and I take that point into account notwithstanding that there was no direct reliance on any of the principles in Verdins' case.
Discussion
27Focussing on the main charge of reckless endangerment, I have looked at the dashcam footage on four occasions. Your driving was simply appalling. You travelled at a great speed over a considerable distance, narrowly avoiding one accident and having another. Through sheer good fortune, it appears no one was injured. You used the highway as a racetrack.
28You have a dreadful criminal history. You are not to be sentenced on your criminal history but it does indicate my sentence on that charge must operate to deter you from this type of offending where injury to others is a real possibility and to protect the community from you in that regard. Necessarily, my sentence on charge 1 should be seen as denouncing the conduct, which, as I said, was appalling. Plainly, the sentencing purpose of deterring others from engaging in same or similar conduct is important.
Maximum penalties
29The maximum penalties for the offences are:
(a) reckless conduct endangering serious injury, five years' imprisonment;
(b) possession of a drug of dependence (heroin and cannabis), 20 penalty units or one year's imprisonment. I am not satisfied your possession was for any purposes related to trafficking in the drug;
(c) breach a prescribed condition of parole, 30 penalty units or three months' imprisonment or both;
(d) making a false report to police, 120 penalty units or one year's imprisonment.
Guilty pleas
30You indicated an intention to plead guilty on 8 December 2023. This followed a case assessment hearing the previous month and an earlier contested committal hearing. Apparently, there was a charge of attempting to pervert the course of justice which was the sticking point. That charge was withdrawn and you have pleaded guilty to a lesser summary offence of making a false report to the police. So unusually, these pleas are earlier than a simple examination of the dates of events would suggest. They are early pleas.
31There are benefits of your guilty pleas. They are an emphatic acknowledgement of your offending.
32Second, they relieve the victims and others from the need to give evidence against you in a trial. For non-police witnesses, this is not usually a difficult task.
33Third, you have assisted the criminal justice process. You have removed your case from those needing a jury trial and allowed others to move forward. This has avoided the delay and saved the time and expense of a trial. Generally, compared with a judge alone trial, jury trials are complicated matters involving 12 jurors and lasting a week or more. Avoiding all of that is a considerable benefit to the criminal justice system.
34Fourth, for completeness, the crisis addressed in Worboyes v R[2] and other cases has now disappeared. The amelioration of penalty identified in Worboyes no longer applies even though the virus can still cause some disruption to jury trials.
[2] [2021] VSCA 169.
35Overall, your guilty pleas deserve a significant discount on the sentences you would have received in their absence.
Bugmy
36The effects of your disrupted childhood are described by Ms Lechner. The principle in Bugmy v R[3] does apply to moderate your moral culpability.
[3][2013] 249 CLR 571.
Prospects of rehabilitation
37Ms Lechner considered you were showing signs of managing the events which led to drug taking and criminality. You have undertaken six courses in custody. You carry out the role of AOD Peer Educator in Port Phillip Prison. The role is described in the letter from Kate Constance of Uniting. You support other prisoners who have drug and alcohol issues.
38You are showing some maturity. However, you felt you were progressing well on parole and then offended. You suffer from a longstanding and untreated post-traumatic stress disorder. I would assess your prospects of rehabilitation as uncertain.
Current sentencing practices
39I have read the helpful summary of comparable cases in this Court and the Court of Appeal.
Disposition
40Neither time served nor a combination sentence is appropriate. The potential imprisonment component of the latter is too short in this case.
Sentence
41On Charge 1, a charge of recklessly endangering serious injury, I sentence you to 20 months' imprisonment;
42On Charge 2, a charge of possession of a drug of dependence, I sentence you to two months' imprisonment;
43On Charge 3, a charge of possession of a drug of dependence – I sentence you to one month’s imprisonment;
44On summary charge 12, a charge of breaching a prescribed condition of parole – I sentence you to one months’ imprisonment;
45On summary charge 15, a charge of making a false report to police – I sentence to 3 months’ imprisonment.
46The sentence on charge 1 is the base sentence. The sentence on summary charge 15 of making a false report is to be served cumulatively upon the base sentence. The total effective sentence is 23 months’ imprisonment. The other sentences of imprisonment are to be served concurrently. I will fix a non-parole period of 16 months’ imprisonment. I declare the 160 days of your pre-sentence detention (excluding today) as time served under my sentences.
Section 6AAA
47If you had not pleaded guilty to these charges but had been found guilty after a trial, I would have sentenced you to a total of 33 months' imprisonment with a non-parole period of 22 months' imprisonment.
Licence
48On Charge 1, any licence or permit you hold to drive a motor vehicle is cancelled and you are disqualified from obtaining a licence or permit for 36 months.
Disposal Order
49I will make the disposal order in the terms of the draft order but excluding item 3 in the schedule.
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