Director of Public Prosecutions v Nguyen

[2017] VCC 2064

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01351

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID NGUYEN

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JUDGE:	HIS HONOUR JUDGE STUART
WHERE HELD:	Melbourne
DATE OF HEARING:	15, 16, 17 & 20 March 2017
DATE OF SENTENCE:	22 March 2017
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2017] VCC 2064

EX TEMPORE REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Jassar
For the Accused	Mr M. Cahill SC with Ms D.M. Caruso

Pages 1 - 14

 

 

1HIS HONOUR:  David Nguyen, you have pleaded guilty to one charge of recklessly causing injury on indictment F13068508.1, which carries with it a maximum penalty of five years imprisonment and associated with that indictment is a summary Charge 6 of possess cartridge ammunition, which carries with it a maximum penalty of 40 penalty units.  That indictment has been referred to during the course of the plea as indictment 1.

2On indictment 2, being indictment F12706281, you have pleaded guilty to one charge of trafficking in a drug of dependence, heroin, which carries with it a maximum penalty of 15 years imprisonment.  Charge 2, possession of a drug of dependence, namely methylamphetamine, which in the circumstances I am satisfied you had for personal use, carries with it a maximum penalty of 30 penalty units or one year's imprisonment, Charge 3, that you being a prohibited person did possess a firearm, and likewise Charge 4, that you being a prohibited person on occasion other than referred to in Charge 3 did possess a firearm, which two charges carry with it a maximum penalty of 10 years imprisonment, and Charge 5, dealing with proceeds of crime, carries with it a maximum penalty of 15 years imprisonment.  In addition, you have pleaded guilty for summary Charge 8 of affixing number plates that were not the original number plates registered to that vehicle, which carries with it a maximum penalty of a fine of 10 penalty units.

3I first turn to matters relating to indictment 1, the charge of recklessly causing injury, the circumstances are set out in Exhibit 1, the summary of prosecution opening for plea.  You were born on 30 January 1993.  The complainant, was born on 1 December 1973, he being approximately 20 years your senior.  You were known to each other, having served terms of imprisonment at the same facility from 2013 to 2014.  The circumstances surrounding your imprisonment I will come to in due course.

4On Monday 29 June 2015 police executed a search warrant at an address in Springvale where they arrested a mutual associate of yourself and Vo, Hung Lam.  Mr Lam was charged and remanded in custody.  The following day Mr Vo, the complainant in this matter, attended that address again in Springvale where he took possession of a firearm, drugs and a quantity of cash belonging to Lam which the police had failed to locate in the roof cavity of the premises during their search.  Vo decided to hold onto these items on behalf of Lam until he was released from gaol. 

5Some days later, in the early hours of Saturday 4 July 2015, you called Vo stating you needed to speak to him about Lam.  The two of you agreed to meet at the Springvale address, which was then being occupied by another mutual associate Tuan Pham and his wife Truc ‘Tracey’ Pham, and a number of their children.

6At that address you told Vo that Lam owed his "brother", Nguyen, three ounces of pure heroin and one ounce of methylamphetamine, or ice, and the debt now had to be paid by Vo.  During this conversation you and Vo contacted the brother, Nguyen, on their respective mobile phones.  You left believing Vo would settle the drug debt within a few days.  However on Monday 6 July you called Vo and asked if the drugs were ready for collection.  When Vo asked you if you had spoken to his brother Nguyen you said it was no longer up to Nguyen because you were now the boss.  Vo told you that he was not going to give you the drugs and you hung up the phone. 

7The following day at approximately 4.10 pm you went to the Royal Avenue address.  The principal occupants at the time were Pham and Tracey along with two of their friends, Jayden Vo and Nhan.  Some 20 minutes later Vo, driving his silver coloured Toyota RAV4, arrived at the address.  He entered the living room and asked you what you were doing there.  There was then an argument.  Vo pulled up his shirt which showed a firearm in his belt.  You then feared that Vo would shoot you.       You pulled out a black semi-automatic Colt 45 calibre handgun from the front of your pants and fired a shot that struck Vo and you then fled the scene.  That Colt 45 handgun was seized by police some 20 days later on 27 July in circumstances which I will come to.  As a result of the shooting Vo sustained a single ‘through and through’ shotgun wound to his left knee which then penetrated his right ankle.  Thus the charge, Charge 1, causing injury recklessly.

8It is appropriate for me to turn to the statement of Tuan Pham, who is a witness to this shooting, that statement becoming Exhibit DN5.  In that statement Mr Pham sets out those circumstances, and I quote "Phuong" in reference to Phuong Vo, the complainant:

"Phuong pulled up his shirt and showed David a gun.  Phuong had a gun in the belt a revolver dark grey in colour. 

When David see that he stand up and he put his hand inside his shirt at the front.  I stay in the middle of the two of them.  I stopped Phuong and said, 'You stupid or what, why you ask him like that for?' 

I held David arm for him not pull out a weapon.  I told David to sit down on a chair and he did and Phuong still stand up and he keep look at David and David said, 'Can you stop it I don't want any trouble.' 

Phuong said, 'Come on me and you have only way to sort out is one person die and one walk away.' 

David said, 'I don't want it that way, I want to be good friend.' 

Phuong said, 'No if you be a man we go on now.' 

"Phuong put his hand in his shirt and tried to pull out the gun and when David saw him do that he hit my hand free of his hand as I still had hold of his arm.  When he did that David, he pull out a gun and shoot him. 

David had a square shaped gun, it looked like a stapler there, I am not sure about it. 

David stood up and shot Phuong.  He stood up load up the gun by pulling it back and shoot him in the leg. 

This was in the lounge room. 

"After that I heard the noise and that's it.  When the noise everyone ran outside and left.  Only me Phuong and Thien were left there. 

About, under 10 minutes after he get hurt he tried to check his leg, I couldn't see any mark or blood on the top of his body.  Phuong check his leg and said he got me I been shot.  Me and Thien carry him back to the sofa for him to sit down.  He pulled up his jeans and I see blood coming down his leg."

9The complainant Vo was conveyed by ambulance to the Dandenong Hospital where he underwent surgery and was treated for injuries including a compound fracture to his right tibia and a fractured left ankle.  When Vo was arrested he made a statement suggesting that the circumstances of the shooting were entirely different and that he was shot in the street by a person who had alighted from a car.

10It is plain from the circumstances that I have articulated that this is very serious offending of its kind, that both you and Mr Vo were armed with handguns and that you under some provocation shot Vo in the circumstances I have described is most disturbing behaviour.  That it has as its setting trafficking in drugs is unsurprising, but likewise disturbing.

11It is fortunate that Mr Vo appears not to have suffered any permanent injury.  I have seen him in court and he walks with a normal gait and there is no suggestion that there are any residual problems associated with the wounds.  Indeed the material before me suggests that within a short period of time Mr Vo had resumed his drug trafficking activities and associated criminal conduct as discovered by the police during the course of a search of his premises.  During the course of a search of your bedroom at the premises, two shotgun cartridges were found and this related to summary Charge 6. 

12It has been submitted to me that the late plea of guilty by you was made in circumstances where the prosecution case was a weak one.  I accept that submission.  I do not need to articulate the reasons why I view the prosecution case against you as being weak.  They are manifest in the transcripts of the previous hearings of this matter before me and during the course of the plea conducted yesterday.  Thus aspects of the principles articulated in Phillips v R [2012] 37 VR 594 are enlivened.

13In the judgment of Maxwell P, at paragraph 20, his Honour observes: 

"The strength of the Crown case bears on the chances of the offender being convicted.  According to our perception of utility, it avails society for the offender to be convicted.  It is, therefore, in the interests of society to afford a greater discount on sentence if the Crown case is weak than where it is strong.  That reality should be reflected in the sentence.  It accords with the principle that a sentencing judge assess the discount to be allowed for a plea of guilty and make plain what has led her or him to that conclusion.”

14In the joint judgment of Redlich JA and Curtain AJA their Honours helpfully distil their conclusions at paragraph 36 in saying:

"For the reasons which hereafter appear, the following are the relevant matters which should inform the determination of the extent of the discount to be given for a plea of guilty: 

1.  A discount for the utilitarian benefit of the plea must always be allowed on the sentence to be imposed, save for the exceptional category of case.

2.  The exceptional case arises where the gravity of the offending conduct is of such an order that no discount from the maximum sentence is appropriate.

3.  The strength of the Crown case is irrelevant to the discount to be allowed for the utilitarian benefit of the plea as it does not bear upon the objective benefits of the plea.

4.  A greater discount for the utilitarian benefit may be justified where the plea involves very considerable savings of costs to the community or where some other very significant benefit can be seen to flow from the plea. 

5.  It is always a question for the sentencing judge whether remorse, a willingness to facilitate the course of justice and an acceptance of responsibility are to be inferred from a plea of guilty.

6.  Where there is evidence or a submission accepted by the sentencing judge as to the unqualified existence of these subjective criteria, they should be fully reflected in the discount.

7.  The utilitarian benefits which flow from the plea may also inform the extent of the discount to be allowed for the offender’s willingness to facilitate the course of justice.

8.  The weakness of the Crown case, if apparent, may also inform the extent of the offender’s willingness to facilitate the course of justice. 

9.  The sentencing judge will not need to separately deal with the objective criteria of the utilitarian benefit of the plea and the subjective criteria, unless there is reason to conclude that less than the full discount should be allowed for the subjective criteria.

10.  The strength of the Crown case can only support an inference that these subjective criteria played little or no, role in the decision to plead guilty where the state of the contextual evidence on the plea permits such a conclusion.

15.Many of those ten matters are apposite to this case, in particular items (7) and (8).

16I am satisfied that this plea of guilty demonstrates acceptance of the responsibility by Mr Nguyen for what he did and a willingness to facilitate the course of justice.  The utility of the plea is reflected in the fact that, in my view, this matter had it gone to trial would have occupied something in the order or two to three weeks of court time.  It is, as their Honours have said, essential that the sentence reflect these matters.

17I now turn to the circumstances surrounding indictment 2.  Twenty days after the events of indictment 1, on 27 July of 2015, you were observed by uniformed police officers in the driver's seat of an Audi A5 bearing a registration plate 1CB 3PG parked in the car park at the rear of a property on Napier Street in Fitzroy.  Upon police arrival you exited the vehicle and attempted to walk away, however you were stopped and questioned.  You then voluntarily produced a silver case containing two plastic ziplock bags which contained a quantity of heroin and methylamphetamine.  Other heroin was later on discovered during the course of the search, which I will come to.

18The methylamphetamine, which is the subject of Charge 2, weighed .2 of a gram, and in the circumstances I am satisfied that it was for your personal use and thus the lower penalty that I have averted to is apposite in this case.  The heroin in the other ziplock back was .1 of a gram and it is part of the heroin that is the subject of Charge 1.

19You were arrested and during the further search you were found to be in possession of $395 in cash, a Samsung Galaxy Notebook mobile phone and an Apple iPhone 5.  The police then conducted a search of the Audi A5 and located within it on the ground in the immediate vicinity of the driver's door a loaded homemade .32 calibre handgun.  That is the subject of Charge 3, prohibited person in possession of a firearm, and a loaded black coloured semi-automatic Colt 45 calibre handgun which is the subject of Charge 4, also a charge of prohibited person in possession of a firearm.

20Through your counsel you have admitted that both of these firearms were yours, and indeed that the Colt 45 calibre handgun was the handgun which you used to shoot Mr Vo on 7 July.  In addition, police officers discovered $3,980 in cash under the front driver's seat, which through your counsel you acknowledge was yours.

21Under the front passenger seat was a ziplock bag containing a number of small bags and the contents of the bags are summarised as follows:  Plastic bag containing a foil packet containing .6 grams of a substance containing heroin, being 41 per cent pure and a plastic bag containing 12.2 grams of a substance containing heroin 6 per cent purity.  As to that plastic bag, DNA testing revealed that it did belong to Nguyen Tran who has been referred to earlier during the course of my sentencing remarks, and is referred to as brother Nguyen in the summary.   In addition, police found another plastic bag containing 9.2 grams containing heroin at 42 per cent purity and a plastic bag containing .03 grams of a substance containing methylamphetamine, a further plastic bag containing .3 grams of a substance containing methylamphetamine, and a plastic bag containing .4 grams of a substance containing methylamphetamine.  The total amount of substances containing heroin seized by police was 22.1 grams, a trafficable quantity is 3 grams.  The total amount of substance containing methylamphetamine seized by police was .9 grams, again, a trafficable quantity is 3 grams. 

22The total cash seized amounted to $4,375 and that is reflected in Charge 5, knowingly dealing with proceeds of crime.  Upon closer inspection of the Audi sedan police established that the number plate was a false one, thus the summary Charge 8 of affixing false number plates.

23You come before me with prior convictions arising from your appearances at the Dandenong Magistrates' Court on 30 April 2012 where you were sentenced in relation to trafficking methylamphetamine, use methylamphetamine and dealing with properties suspected of being proceeds of crime as a 19 year old and sentenced to an aggregate fine with conviction of $2,500.  Seven months later, on 8 November 2012, you appeared in the County Court at Melbourne charged with one count of false imprisonment, one count of intentionally causing injury and one count of burglary.  You were still 19 years of age at the time that you were sentenced.

24The sentencing judge was his Honour Judge Gamble and I have the benefit of his very thorough and helpful sentencing remarks.  Initially I was somewhat surprised by the sentence imposed, being a sentence on a 19 year old man, of three years and two months with a minimum non-parole period of two years.  That surprise soon evaporated and it is important for me to quote somewhat extensively from his Honour's sentencing remarks in order to understand the gravity of the offending for which you were dealt with on that occasion.

25You went to a house in Noble Park.  You entered the property with the intention of stealing various items and embarked on what was for a 19 year old a remarkable series of actions.  His Honour set those actions out at paragraph 6:

"Whilst you were inside, you also took steps to ensure that a number of the doors were rendered inoperable.  First, you removed the internal door handles from the front and back doors.  As a result, any person who was inside those premises was prevented from using either of those doors to exit the building.  Second, you used synthetic twine to secure the internal kitchen door, thereby preventing anyone from entering the kitchen from that hallway.  I have no doubt that you took those steps in order to prevent the female you were planning to lure to those premises from being able to leave."

26You then engaged in a series of phone calls in order to arrange for a prostitute to attend a premises opposite the premises that you had prepared.  You negotiated a price with a female and she attended the premises opposite to which you were.  That was part of your ruse and she had become suspicious.

27In paragraph 13 his Honour continues:

"Once she arrived, you took her through the front door to the entrance hallway and closed the door behind you.  She then challenged you about having given her the wrong address and she demanded an up-front payment.  You denied knowing what was happening and blamed your brother for calling her.  At that time, you told her that your name was Michael, not Andrew as previously stated.  It would appear that the complainant was suspicious about the veracity of what you were telling her, as she called the mobile number that she had previously been communicating with.  When she did so, the mobile phone that you were holding at the time began to vibrate. 

“The complainant then attempted to extricate herself from the situation in which she had unwittingly found herself.  She asked you to pay for her transport fees and indicated that she intended to leave.  You initially told her that you had $50 but then gave her only $20. 

“You then blocked her path by standing between her and the front door.  It was only then that she noticed that the internal front door handle was missing.  At that time a lady named Brigette Sangster happened to be walking past the property.  When the complainant saw her walking past, she called out the words: ‘Call the police, get me out of here’.  She then told you to open the front door.  You refused to do so.  Instead, you grabbed her around the top of her arms and dragged her into the master bedroom adjacent to the entrance hallway. 

“Whilst she was kneeling on the floor of that room, you used both of your fists to punch her to the face and head area.  You told her that you had a mental problem.  She tried to negotiate with you in an effort to persuade you to let her leave.  She told you the following: ‘You have to calm down, just let me go, I can give you money’.  But you chose to ignore her worried entreaties.  You chose to respond with further aggression by pushing her towards the bed.  Whilst she was bent over the bed, you grabbed her from behind and grabbed her around the mouth with both of your hands.  Unsurprisingly, she thought she was going to die.  You then pushed her to the floor.  You held her head down with one of your hands and placed your other hand around her throat.  After pushing down on her throat with some force, you then punched her to the head and body, and kicked her approximately 5-6 times to her legs and stomach.

"When the complainant finally managed to get to her feet, she saw that you were holding tape, a portion of which had been unwound from the roll.  She fought past you and screamed for help.  You were concerned about your mobile phone; you asked her where it was and she replied that it was in the bedroom. 

“As you walked towards the bedroom, the complainant went to the front door.  She effected her escape by punching the glass near the front door entry and then squeezing through the broken glass panel.  As she did so, she injured her foot when she stepped on some of the broken glass.  On leaving, she immediately complained to the passer-by, Ms Sangster, who then assisted her to call the police."

28During the course of His Honour's sentencing remarks his Honour observed that the false imprisonment was clearly premeditated, that the offence was an ongoing one and only brought to an end by the courageous actions of the complainant herself.

29His Honour, at paragraphs 49 and 50, observed:

"General deterrence and denunciation are obviously very important sentencing considerations in this case.  Our courts must seek to protect its vulnerable members through the imposition of appropriately stern punishments whenever the gravity of the offending warrants it.  This is such a case. 

Given the nature and seriousness of your offending, and the lack of any plausible explanation for it, at least in so far as the offences against Ms Lee are concerned, specific deterrence and protection of the community assume some significance in your case."

30Later his Honour concluded that your prospects of rehabilitation are properly to be described as fair.  On the charge of burglary you were sentenced to nine months’ imprisonment.  On the charge of false imprisonment two and a half years’ imprisonment.  On the charge of intentionally causing injury 18 months’ imprisonment.  After making appropriate orders for cumulation the total sentence his Honour imposed was three years and two months with a non-parole period of two years.

31I emphasise that you are not in any way to be punished again for that activity.  You have already received your punishment for it.  In the event you were not released on parole, serving the full three years and two months of imprisonment and being released on 21 April 2015.  This offending on indictment 1 occurred on 7 July 2015 and on indictment 2, 27 July 2015.  Thus, within approximately two and a half months of being released from prison in relation to most serious offences you have offended again in a most serious way.

32I have already dealt with your plea of guilty on indictment 1 to the charge of recklessly causing injury to Mr Vo.  In relation to indictment 2 your pleas of guilty were entered in all the circumstances at the earliest reasonable date.  The utility of those pleas must be reflected in the sentence that I impose, I am satisfied that it shows some responsibility that you have taken for your conduct.

33Your personal circumstances were set out extensively in his Honour Judge Gamble's sentencing remarks, and I intend to but briefly refer to them.  You are now a 24 year old man.  You have been in custody since your date of arrest on 27 July 2015, approximately 20 months, not knowing your fate in the meantime.  Upon your release from imprisonment you were still drug addicted.  You had during that period of imprisonment management issues.  Mr Cahill has pointed out that those issues have since been resolved by you and as I understand it you have not had any management issues during this second period of imprisonment and you are not addicted to drugs at all, though you are receiving medication by way of methadone.  Exhibit DN4 sets out a series of negative results for drugs dating back to 14 August last year.

34Born in Springvale, you are the eldest of three children.  Your mother has been present during the plea hearing, is present today, and is supportive of you.  You were born with a cleft lip and palate for which you were subject to something in the order of 20 to 21 operations up until the age of 13 or 14 in endeavours to correct the deformity.  This substantially disrupted your schooling.  You were bullied during your childhood and teen years due to your appearance.  You had in the end a limited education, attending Wellington Secondary College until about halfway through your Year 9 where you then attended but two months of Year 10 at the same college.  You studied hospitality at the Chisholm TAFE for about 18 months but were not able to pass the theory components. 

35You commenced using cannabis and then later, at the age of 17, started using heroin and methamphetamine.  Your use escalated and you started to deal drugs in order to support your habit.  You have endeavoured to improve yourself whilst in prison by engaging in vocational programs and you acknowledge the need to remain drug-free.

36General deterrence, that is deterring others from like offending, is the principal sentencing factor in this matter.  This is particularly important in relation to you recklessly causing injury to Mr Vo by shooting him, albeit that Mr Vo was the one who was engaging in the provocative behaviour leading up to his shooting.  Deterring you from further offending and the need to impose a sentence that protects the community is amply demonstrated by the nature of the offending which is before me, by the offending for which you were dealt with by his Honour Judge Gamble and the fact that the offending that you engaged in occurred approximately two and a half months after your release from gaol, having served 38 months of imprisonment.

37If when you are released you return to drug use I have no doubt that you will continue to reoffend and at a high level, receiving longer and longer periods of imprisonment.  If you keep to your resolve of remaining drug-free and obtaining employment your prospects of rehabilitation are in my view guarded.  You are, it must be steadily borne in mind, still a young man at 24 years of age.  You must be justly punished for this offending and your conduct denounced. I have reflected considerably on the appropriate sentence in this matter and have taken into account the need to ensure that the sentences produced in total are appropriate. 

38Stand.

39On indictment 1, Charge 1, causing injury recklessly, I sentence you to be imprisoned for a period of two years and nine months.  That is the base sentence.  On the summary Charge 6 you are fined $300 and on the summary Charge 8 you are fined of $700.

40On indictment 2 on Charge 1, traffic in a drug of dependence, I sentence you to be imprisoned for a period of 15 months.  I direct that five months be served cumulatively on the base sentence.  On Charge 2, possession of a drug of dependence, I sentence you to be imprisoned for a period of one month.  There is no cumulation on that sentence.

41On Charge 3, prohibited person possessing a firearm, I sentence you to be imprisoned for 24 months, and on Charge 4, another charge of prohibited person possessing a firearm, I sentence you to be imprisoned for 24 months.  I direct that nine months of each of those sentences on Charges 3 and 4 be served cumulatively upon other sentences imposed and upon the base sentence.

42On Charge 5, knowingly dealing with proceeds of crime, I sentence you to be imprisoned for a period of 10 months and I direct that four months of that be served cumulatively upon the base sentence and other sentences. This produces a total effective sentence of five years and I set a minimum non-parole period of three and a half years. I declare that pre-sentence detention is 604 days, and pursuant to s.6AAA of the Sentencing Act I state that but for your pleas of guilty I would have imposed a sentence of seven and a half years and set a minimum non-parole period of five and a half years.  Take a seat, Mr Nguyen.

43Are there any errors that need to be addressed?

44MR CAHILL:  I have nothing.

45MR JASSAR:  I haven't checked the calculation yet, sir, but I will do that in a moment and I am sure it's correct.  There are forfeiture orders.

46HIS HONOUR:  Yes.

47MR JASSAR:  And disposal orders.  So I will just hand up the bundle of them and I will keep them in the plastic sleeve so it doesn't all go ‑ ‑ ‑ 

48MR CAHILL:  Your Honour, pardon me, it's just been pointed out to me Your Honour hasn't imposed a sentence in respect of the affixing a false number plate.

49HIS HONOUR:  Yes, the other one.  Yes, I had it down.  Summary Charge 8 fine of $700.  Total fines of $1,000.  I meant to say it, I just missed it.  Anything else, gentlemen?

50MR CAHILL:  No, thank you.

51MR JASSAR:  No, sir.

52HIS HONOUR:  Yes, thank you for your assistance and I congratulate the parties on a very sensible resolution of the trial.  Yes, you may remove Mr Nguyen, please.

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