Director of Public Prosecutions v Nguyen

[2024] VCC 475

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR -23-01310

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON NGUYEN

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	13 February 2024
DATE OF SENTENCE:	16 April 2024
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2024] VCC 475

REASONS FOR SENTENCE

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Subject:              Criminal Law. Sentence upon plea of guilty.

Catchwords:       Armed robbery - Obtaining property by deception – Vulnerable victim –

Early plea of guilty – Evidence of remorse - Absence of prior criminal

history - No history of drug abuse – Gambling addiction – Good prospects

of rehabilitation.

Legislation Cited:

Cases Cited:       Luchian v The Queen [2019] VSCA 145; Worboyes v The Queen [2021]

VSCA 169; The Queen v Grossi [2008] 23 VR 500.

Sentence:           Community corrections order for 3 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Coombes	Ms A. Moretti
For the Offender	Mr J. Rabl

HIS HONOUR: 

1Jason Nguyen, you have pleaded guilty to one charge of armed robbery and one of obtaining property by deception, a rolled-up charge.

2The circumstances of your offending were summarised in a document tendered upon the plea by the prosecution and I will briefly describe them.

3You were 23 years of age at the time of the offending and resided in Pascoe Vale.  Your victim in this matter, Xin Chu, was 29 years of age at the time of the offence and was not known to you prior to the offending.

4On 28 January 2023 at approximately 2.49 pm, Chu attended at QV shopping centre located at the corner of Lonsdale and Swanston Streets in Melbourne.  She was driving a grey BMW, drove into the basement, Level 3, and reversed into a parking space close to the escalator entrance of QV shopping centre.

5As she opened the driver's side door of her vehicle she was approached by you.  She attempted to close the driver's side door and hide inside the vehicle, but you prevented her from doing so by grabbing a hold of the door.  You were very close to her at this time.

6You produced a knife from your right pocket and held the knife in your right hand next to your right hip with the blade unfolded and pointing towards the ground.  The knife remained in this position throughout.  You extended your left hand towards her and asked her to give you her money.  She told you that she did not have any money on her.  Then in fear for her own safety she reached into her centre console and produced her purse.  She gave you approximately three $50 notes but you made further demands on her bank card and her personal identification number, which she gave you.

7You also demanded that she provide her mobile number and as she handed you her phone she observed you were no longer holding her driver's side door and she immediately slammed the door shut and locked her vehicle.  She attempted to flee but a short distance away she was blocked by another vehicle.  The driver of that vehicle saw that Chu was hysterically crying and hyperventilating and she approached her.  She asked for help and Triple 0 was contacted.  The police soon attended the basement level of the QV shopping centre.

8While speaking with Chu the ringtone of her stolen mobile could be heard.  She walked in the direction of the ringtone and located her phone on top of a bonnet of a vehicle parked close by. 

9She then accompanied investigators to Melbourne West police station and while at the station she identified two unauthorised withdrawals from her bank account made shortly after the incident; a withdrawal for $1,000 at 2.56 pm from Lonsdale Street and a withdrawal for $1,000 at 3.03 pm from an ATM at the Melbourne Central shopping centre.

10Investigators collected CCTV footage relating to the incident and you are depicted on that footage at the QV shopping centre prior to and after the armed robbery.  You are also depicted on CCTV footage at the Melbourne Central shopping centre after the offending.  You are further depicted on CCTV footage at the Commonwealth Bank located at the Melbourne Central shopping centre, as well as being depicted on Melbourne Safe City Camera footage shortly after leaving Melbourne Central shopping centre.

11On 13 January 2023, at approximately 7.12 am, a number of police officers attended at your home address to execute a search warrant.  You were located inside your bedroom and you were arrested.  A search of the address located a card in the name of Chu inside your wallet, $620 inside your wallet, a folding knife inside your bedroom, as well as other items. 

12You were taken to the Melbourne West police station for interview during which you provided police with information about your involvement in the armed robbery.  You stated that you had gone to QV parking without thinking, you had seen someone pulling in and for some reason you just decided to rob them and when the person came out of the car you just asked them to give you their cash.  You admitted to taking the bank card and when questioned as to your reasons for demanding and taking the mobile phone you said:

'I just didn't want her calling anyone at the time so I did what I – m'mm, so I – what I did was I asked for the phone and just placed it on top of the car.  I knew that if I did or if she did then I wouldn't have gotten caught – I would have gotten caught.'

13You confirmed that the knife located and seized by police at your address was the knife you used during the robbery.  When questioned as to your reason for possessing it, you said:  'I just kind of have it on me for self-defence.'

14When questioned as to the two $1,000 withdrawals, you admitted doing so and when questioned about the $620 located at your address you said the money was the remaining amount taken from Chu.  When questioned as to what had happened to the remaining money taken from her bank account you said you paid off registration on your car and had spent it on normal expenses, that is, 'things like petrol, groceries and stuff.'  You added that you deposited an unknown amount of the stolen money into your own bank account.  You also confirmed that you were the male depicted on CCTV footage.

15The victim of this armed robbery has provided a victim impact statement which I take into account.  Ms Chu writes that she is nervous in public and frightened when alighting car parks.  She has lost her sense of independence and the offence has brought about changes to her lifestyle.  She has become hypervigilant and installed security systems for her protection.  She avoids the central business district and often asks her husband and friends to accompany her for her shopping, especially when needing to park her car.

16Armed robbery is an inherently forceful act which puts the victim in fear, and this is particularly so here where the female victim was alone in a close-off carpark confronted by an offender effectively disguised and armed with a knife.  She was a vulnerable person and the absence of other aggravating factors does not necessarily diminish the seriousness of the offence.

17I note that the presence of a beanie and a Covid mask, which at the time can be seen to be the exception rather than the rule in the crowd, as can be seen of the CCTV footage, was worn by you and indicates a level of pre-planning.

18In the interview you admitted your 'partial disguise', even if it was in fact effectively fulsome.  The offence was said to be essentially a spur of the moment offence, but I do not accept this description.  Even if there was a certain spontaneity in the choice of victim and place and time, that does not detract from the fact that the armed robbery was so properly described because you were armed.  The possession of the knife, which you describe for purposes of self-defence, a matter I shall come to in a moment, even if understood generally is motivated by some negative past experience of violence, nevertheless, was produced by you at a crucial part of the offending, even if apparently withdrawn at a point in time.

19These factors pertaining to disguise and the use of a weapon and the background motivating need to obtain funds make the offence properly being described as serious. 

20I accept the exchange between you and the victim was brief and the level of aggression was of a low range, a low quality.

21These matters qualify your offence towards the lower end of the range of seriousness for armed robbery, somewhat similar to that dealt with by the Court of Appeal in Luchian v The Queen [2019] VSCA 145.

22However, the impact on the victim can objectively be concluded to have been substantial fear and alarm.  These kind of armed robberies in isolated places upon vulnerable people are all too frequent and they leave the community in consternation and fearful apprehension.  They must be denounced and deterred by appropriate punishment.

23I take your plea into account.  It has a utilitarian value of having avoided a criminal trial.  It was made at the earliest opportunity and is accompanied by sincere remorse on your part.  It is a plea made with reasonable expectation of a term of imprisonment at a time, when although most diminished, the pandemic is still at large in the community which would make reclusion in a closed prison environment still exposed to the risk of infection and consequent restrictions.  Pursuant to Worboyes I take that into account.  Your plea will diminish your sentence.

24I take your personal circumstances into account. 

25Your parents came to Australia from Vietnam.  You were born in Melbourne where you then had two older brothers and two younger sisters.  Your family is in Pascoe Vale but has run a family 120-acre farm in Geelong where vegetables are grown.  The family endeavoured to build the farm into a successful agricultural business.  Your involvement in the business began towards the end of 2022, just before these offences, but your aspiration is to manage the farm your father having reached retirement age.  Your older brother now also has been involved in the business of the farm.

26You completed your VCE and went on to RMIT with school friends.  You obtained a diploma in business management and applied marketing over some four years in 2018.  Although this would enable you to apply this knowledge to the business of the farm, you acknowledge that your grades were poor and you were disappointed in your effort.  However, you had a strong work history throughout high school and at the time of the offences you were employed at the Exhibition Centre in Melbourne.

27The family environment was supportive and close.  You have no history of drug abuse and do not have a prior criminal history of any kind.

28At the start of 2023 you began a relationship which I was told is ongoing, though your partner lived in Canberra at the time of the plea.

29You suffer from severe eczema now for a long period of time, a condition which has heavily affected your mood, particularly when stress entails a flare-up of this skin condition.

30When you were about 19 years old you were robbed by several men at the Pascoe Vale train station.  You were injured and taken to hospital for treatment. 

31Writing about this matter to the court in a letter your father notes that this event shook your self-confidence and you became fearful to go out alone.

32Although disingenuous, your explanation about the possession of the knife for self-protection as you travelled by train to the city on the day of the offending is connected to this assault upon you.

33A psychological assessment was conducted by Ms Alison Mynard and she wrote a report for the court dated 7 November 2023. 

34The writer noted that your insight into your offending was moderate to high, probably assisted by your engagement with Court Integrated Services Program workers, CISP, over the six-month period preceding her assessment.  She opined you were highly remorseful, and she commented on your steps to re-engage with the family business and seek treatment and rehabilitation for the central issue in your background, a gambling addiction.

35This subject was extensively canvassed in Ms Mynard's report and on the plea at paragraphs 24 to 33 of the report.  I will summarise these salient factors.

36You were first exposed to gambling in a social context with friends and escalated in private gambling without your friends' or family's awareness.  You now understand that your addiction began early on, being preoccupied with your next gambling opportunity.  By age 19 you were regularly at the Casino using online betting services as well.  The habit escalated in 2022.

37Being employed in customer service at the Exhibition Centre you would attend at Crown Casino both before and after work.  Your parents would assist you financially in the past but you would gamble and spend that money in that way.  At the Casino you were 'in your own world, often wearing a face mask and ear plugs.'  You reduced your savings to nothing.

38Your reached the diagnostic criteria for pathological gambling disorder, meeting each of the criteria required for diagnosis where four are sufficient over a 12 month period.  (See paragraph 27 of the report). However, you have not gambled since your arrest.

39On the night of the offence you had lost gambling online $2,000 which a friend had given to you.  You lied to your family about going back to work, roaming aimlessly to clear your mind.  You report feeling suicidal and depressed, ashamed and a burden on your family.  You described empathy with the victim, together with a high level of regret and remorse.

40You reported finding the time on the Court Integrated Services Program very helpful, leading to a change of lifestyle. 

41You sought psychological treatments upon your arrest and bail but have struggled to access treatments affordably on an ongoing basis.

42Nevertheless, those who have written letters on your behalf attest to your efforts to address the underlying causes of the addiction and to fortify yourself against possible relapse and triggers.

43In December 2023 your girlfriend, Alice Youn, re-located to Melbourne. 

44You ceased employment immediately after being arrested given its proximity to the Casino.  Your gambling use disorder is now in remission, as I have said, and the offending was committed while in the throes of this condition, however, it is not in itself a factor in mitigation.  (See The Queen v Grossi [2008] 23 VR 500).

45The context provides an explanation for the conduct, excluding bravado, greed and other motives, and places your background into its proper perspective.

46Ms Mynard writes that you have moved forward, not only in growing insight into your offending and its impact, but towards family and business interests and contribution to the community.

47You are 24 years old and still young.  The CISP reports, of which there are many and regular, were tendered to the court and attest to this significant process.  In my view your proactive engagement described as 'remarkable and exceptional' is evidence of this and persuades me that specific deterrence as well as community protection is very minimally relevant in the sentence outcome.

48Clinical psychologist, Dr Arna Zapral, treated you in October 2023 with six sessions and continues monthly engagement.  She also provided a brief letter dated 8 February 2024 to confirm your engagement with these sessions.

49The CISP reports, some 32 of them, primarily authored by Ms Miller who was in court during your plea, and the final report after 13 months of engagement by Michelle Yates, confirmed positive engagement and progress.  You identified prosocial long-term goals and opportunities for personal growth.

50Ms Mynard wrote that you present as a low risk of re-offending with a positive prognosis subject to the control of gambling.

51I accept that your circumstances made the decision-making, which was compromised by your depression and anxiety, primarily related to gambling.  I also accept that the depression and anxiety, according to Ms Mynard, would increase significantly in custody with mental health deterioration.

52I am persuaded that three of the limbs of Verdins are enlivened in your case, that is Limbs 4,5 and 6.  However, I am persuaded also that the appropriate outcome of this matter is a community corrections order.  Such an order has a punitive aspect and a rehabilitative aspect.  It was also fairly conceded by the prosecution that such a disposition would be within the appropriate range.

53Given the suitability assessment from Correctional Services, your lack of criminal history, your plea, your remorse, your steps towards rehabilitation, your relative youth, your family support, this is the sentence which I intend to apply. 

54In my view your prospects for rehabilitation are good.  In reaching this conclusion I have reviewed all the abovementioned material, as well as the positive report from the Mental Health Advice and Response Service at the County Court, letters from your father, Van Cuong Nguyen, dated 17 February 2024, a letter from your brother, Dai Tien, and Alice Youn, your partner, a letter from Weifan Zhang, a friend, and a letter from Han Nguyen, a friend.

55Many people were present in court and you are fortunate that your rehabilitation will be assisted by the support of your family, partner and friends.

56You also wrote a letter in which you acknowledge responsibility, apologised to the victim and show insight into the gravity of your conduct.

57On the charge of armed robbery and obtain property by deception, you are convicted and sentenced on each and placed on a community corrections order for three years.

58You are to receive assessment and treatment for mental health and specifically for gambling addiction, as required, and to attend community-based programs to address offending behaviour including gambling and violence.

59You will perform 250 hours of unpaid community work.  Fifty hours of that community work may be credited through treatment and rehabilitation hours attendances.

60You will report to the Broadmeadows Community Corrections within two days from today.

61During that three years you are to be of good behaviour, that is, that you are not to offend again during that period of time.

62If you breach this order, Mr Nguyen, the consequences are that you would be brought back before me, and a penalty will apply for that breach.  But I can also re-sentence you on this armed robbery and if that was to take place you would probably leave the court with no real alternative but to send you to gaol.  Do you understand?

63OFFENDER: Yes.

64HIS HONOUR:  It is important that you do not disengage with Correctional Services and that you remain in contact with them during the period of your order. 

65But for your plea, I would have sentenced you to three years' imprisonment with a non-parole period of 18 months.

66There are ancillary orders for forfeiture and compensation, and I will sign those orders when they are made available to me.

67Mr Rabl, your client can come out of the dock and just sit behind you, there will be some documents that he will need to sign.

68MR RABL:  Yes, Your Honour. 

69HIS HONOUR:  Perhaps you can go through that material and explain to him his obligations.  I have a trial continuing at 10.30, I will stand down.

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