Director of Public Prosecutions v Nguyen

[2016] VCC 1489

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01132

DIRECTOR OF PUBLIC PROSECUTIONS

v

TONY VAN NGUYEN

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	7 October 2016
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2016] VCC 1489

REASONS FOR SENTENCE
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Subject:
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Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Ballek
For the Accused	Ms T. Hartnett

HER HONOUR:

1Tony van Nguyen, you have pleaded guilty to one count of armed robbery and one count of causing injury intentionally.  The maximum penalties for these offences are 25 years and ten years, respectively.

2On Saturday 26 March you went to a milk bar in Noble Park.  Mr Andrew Harrick, age 63, was working in the shop alone, and was out the back.  He saw you come in the shop.  You were wearing a baseball cap, sunglasses and a dark hoodie top.  You asked him for some cigarettes, he went towards the cabinet where they were locked away, and you went around the counter and pulled out a 30 cm knife.  You put your arm around his neck and held the knife to his throat. 

3A struggle ensued, and you stabbed him about ten times to his legs, hands and ear.  You then pushed him to the floor and demanded his wallet.  You opened the cash register and took out notes and coins, taking about $200.  CCTV footage was taken of you in the shop, and the struggle.  This was shown in the course of the plea, Exhibit B. 

4It is apparent that this was a vicious attack by you, and unnecessary in terms of what you were trying to achieve, namely getting money for heroin.  Your resort to actual violence in these circumstances was inexcusable.

5You cap and sunglasses fell off during the course the struggle and your sunglasses were on the floor in the shop.  Your face could be identified from the CCTV footage.

6Mr Harrick called his brother, who arrived about ten minutes later.  He was taken by ambulance to hospital.  He had a number of small puncture wounds to his legs, hands and ear.  He had cuts to his mouth and swelling and tenderness in other areas.

7On 2 April 2016, police sought assistance through Crimestoppers.  They received information that you were the offender.  On Monday 4 April, police executed a search warrant at your premises, and though you were not there, located some of the clothes and shoes you were wearing, as seen on the CCTV.

8On Tuesday 5 April, you were arrested at Monash Medical Centre, Clayton, having been admitted there the day before after a drug overdose.  You were interviewed by police and made full admissions.  You said you and a friend had taken some prescription sleeping pills.  You went with the friend to the milk bar.  You did not have any money and planned to rob the shop, though your friend was not aware of your plan.  You told him to park a short distance from the shop.

9You maintained that when you were struggling with the shop attendant that you did not realise the knife was in the hand you were punching him with.  You said you both fell to the ground in the scuffle.  You said you went to your friend's car and told him to take you to the bank so as to pretend to him that you could access some money.  You then scored some heroin, which you both injected when you were in the car.

10You said you felt bad for the victim, and that you could not believe that you did it, but you were having withdrawals from heroin and needed to score.  You said you had recently taken sleeping pills and a big shot of heroin, because you wanted to kill yourself over this incident, and that you thought you had killed the shop attendant.  You have been in custody since your arrest on 5 April. 

11Mr Harrick provided a victim impact statement to the court (Exhibit C), the contents of which were read out in court.  Unsurprisingly, your offending has had a significant impact on his daily functioning, with him suffering anxiousness and fear, and concern about engaging in the normal activities that he used to enjoy with his family, particularly his grandchildren.

12He eloquently states:

"I feel that the attack on me is not over, neither will it end.  My body still aches, my mind is a mess.  My finances are zero, and most of all I no longer trust.  Life without trust and security is a very dark place."

13You are currently aged 31.  You came to Melbourne from Queensland with your family when you were very young.  You grew up in Springvale with your parents, older brother and younger sister.  None of your family members have had issues with drugs or the criminal law.  Both your parents were hardworking and were both consistently employed in unskilled jobs.  You completed Year 10 at school.

14Your life changed when your mother became ill and subsequently died of cancer.  During her illness and for a period after her death, your counsel described your life as "going off the rails".  This is consistent with your criminal history involving drug and related dishonesty offences, particularly during 2004.  You were using heroin at this time, a significant stress on you and your family.  Additionally, you were prescribed antidepressants.

15You moved to Queensland to get away from this drug scene, and worked various unskilled jobs.  Your employment was described by your counsel at this time as "transient".  You were on methadone in Queensland.

16You returned to Melbourne in about 2011 and lived with your family.  By this stage your father had remarried.  I understand that you lived in a house at the front of the property with your siblings, and that your father and stepmother were in another residence at the back of the same property.

17When you came back to Melbourne you relapsed into heroin use, though you were soon placed on methadone with an increased dosage, and also antidepressants.  You were employed full-time for a period of about three to four years, working with a produce company in Springvale, however this employment ceased due to a downturn in business.  You then obtained temporary work through an agency, carrying out various unskilled tasks.  Your work or employment leading up to this offending was sporadic.

18I was informed by your counsel that you relapsed into heroin use about three to four weeks before this offending.  No significant event caused your relapse, other than the lack of full-time employment and income, and an unwillingness to reveal these issues with family members, who undoubtedly would have assisted you, particularly in the provision of funds for methadone.  Your situation had clearly deteriorated by the time of this offending. 

19As previously referred to, you have a number of prior convictions for drug and dishonesty offences in both this State, during 2004-2005, and similar offending in Queensland in 2008.  This offending is clearly a step up in seriousness.  It is the first time that you have been in adult custody.

20You have pleaded guilty at the earliest opportunity.  The utilitarian value of the plea is significant.  You have saved the community the cost of a trial and avoided the need for witnesses, particularly Mr Harrick, to give evidence at trial.

21You were candid and frank in your interview with police.  You expressed remorse for your actions, and I accept that you are remorseful.

22At the time of this offending, you were suffering from withdrawal symptoms of heroin.  Soon after, you took heroin and antidepressants in a suicide attempt, leading to your admission at Monash Medical Centre.  This action was also consistent with your remorse.

23I was informed by your counsel that you are currently at Barwon, and that you work in the bistro there, a facility for staff at the prison.  Physically your appearance has improved since you have been in custody, with significant weight gain, and you have indicated that you are drug-free.  The latter is consistent with the position of responsibility that you have been given within the prison.

24You continue to have family support with regular visits from your father and sister.  Your brother, when he is not working overseas, also visits.  You have had a reasonably good work history, and it is apparent that you are capable of being hardworking member of the community.

25Your counsel submitted that this out of control behaviour with your offending was inconsistent with your current presentation, and that shown to police in the interview.  Hopefully your viewing of the CCTV footage and remorse will dissuade you from heroin use in the future.

26I accept that your rehabilitation prospects are good, however much will depend on your ability to function in the community without relapse to heroin, and with support and possibly treatment and counselling for both your drug and personal issues.

27There were some aggravating features of this offending.  You took the knife from your house and had a disguise.  There was a level of planning involved.  This was a particularly vicious and gratuitous attack on an elderly, vulnerable member of the community going about his business.  The milk bar was a soft target.  The effect on Mr Harrick has been significant.

28Your counsel appropriately conceded that a term of imprisonment was the only disposition available in accordance with relevant sentencing principles.  Principles of general deterrence, denunciation and specific deterrence are all relevant to the sentencing exercise.  The sentence imposed must reflect the gravity of the offence and the offending conduct, but have regard also to the matters personal to you and other mitigating circumstances, including your plea and remorse.

29By the sentence imposed, this court must seek to deter others who are minded to engage in violence in order to steal from a small business to satisfy a drug habit from doing so.  This is particularly so where it involves a soft target and actual injury is inflicted, and where, as in this case, such violence was unnecessary.

30If and when those who engage in such conduct are caught, serious consequences in the form of a custodial sentence can be expected.  The community justifiably expects the court to treat those who engage in this kind of conduct with stern punishment.

31Could you stand up please, Mr Nguyen?

32In respect of Count 1, armed robbery, you are convicted and sentenced to a period of four years' imprisonment.

33In respect of Count 2, intentionally cause injury, you are convicted and sentenced to a period of two years' imprisonment.

34One year of the sentence imposed on Count 2 will be cumulative on the sentence imposed on Count 1, leaving a total effective sentence of five years.  I propose to impose a non-parole period of three years. 

35I declare pursuant to s.6AAA of the Sentencing Act if you had not pleaded guilty to this matter I would have imposed a sentence of six and a half years with a non-parole period of four and a half years. 

36I previously made the disposal order, and I will make an order pursuant to s.464ZF of the Crimes Act.  Pursuant to that provision, I order that you undergo a forensic procedure for the taking of a scraping from the mouth until a sample of sufficient standard is obtained for the placement on a database.  I must inform you that, if at the time of request you do not consent to the taking of a mouth scraping under the supervision of a police officer, then the sample will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted.  Are there any other matters?  PSD, how long is that, please?

37MR BALLEK:  185 days, Your Honour.

38HER HONOUR:  I declare 185 days presentence detention, and I will just sign these orders.  Thank you.  9.30 Monday, thanks.

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