Director of Public Prosecutions v Nguyen

[2016] VCC 43

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00061

DIRECTOR OF PUBLIC PROSECUTIONS

v

TRUC NGUYEN

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	28 January 2016
DATE OF SENTENCE:	3 February 2016
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2016] VCC 43

REASONS FOR SENTENCE
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Subject: Criminal law – plea- sentence
Catchwords: Armed robbery -
Legislation Cited:
Cases Cited:
Sentence: CCO for 5 years with conditions.

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr M. Fisher	OPP
For the Accused	Mr J. Saunders	Anh Nguyen

HER HONOUR:

1       Truc Ly Nguyen, you have pleaded guilty to one charge of armed robbery.  The maximum penalty for this offence is 25 years' imprisonment.

2       The circumstances of your offending are set out fully in the summary of prosecution opening, which was tendered as Exhibit 1 on the plea, and I sentence you on the basis of the facts set out in that document.  I will briefly summarise your offending.

3       You were 37 years old when you committed the offence.  You developed a friendship with the victim, then 62 years old, who owned a jewellery shop, and had a sexual relationship with him.  He loaned you money on occasions.  From May 2014 you took food and drink to the shop to share with him a few times per week.

4       On 16 July 2014, at about 6 pm, you went to the shop with some noodles.  The victim closed the safe but did not lock it.  He let you in.  You sat at the back of the shop where you talked and shared the noodles.  You then engaged in sexual intercourse.  While this was occurring you produced a syringe and forced it into his arm, telling him it was for his health.  The victim does not recall anything more.  At 1 am he was in a drowsy state when his daughter saw him at the shop.  He woke up at 5.30 am and was unable to remember what happened, or the visit from his daughter.  The safe was locked and he was unable to check its contents.  He noticed that his iPhone and safe keys were missing.  He tried to check the CCTV footage of the previous night but found that the hard drive had been disconnected and the footage deleted.  Police and paramedics were called.  He was taken to be medically examined, and toxicology analysis revealed that his body contained a number of medications:  Temazapam, Diazepam, Oxazepam, morphine and codeine.

5       Prior to your attending the jewellery store the safe contained between $30,000 and $70,000 in cash, over $200,000 of jewellery belonging to the victim’s customers and a tray of gold bracelets worth around $50,000.  More than $50,000 worth of jewellery and about $80,000 in cash remain outstanding.

6       When police executed a search warrant at your address at 4 pm on 17 July 2014 they found the keys to the store and the safe, a number of bags containing jewellery that had been inside the safe (with a total value of approximately $268,000), a Nokia mobile phone, four USB sticks and assorted bags containing receipts for a total value of $23,000 of jewellery that was missing, as well as a hooded jumper you wore during your offending.

7       You were arrested and taken to the police station where you participated in a formal record of interview during which you made numerous admissions including: that you committed the offence because you owed $40,000 to two unknown females whom you had met at the casino, and they planned the offending with you; they provided you with an unknown drug in a canister which they said would put the victim to sleep;  after you had sex with the victim you administered the drug, and when he was in a deep sleep you opened the safe and put items into bags you found in the shop; you cut a cord on the CCTV equipment; you dropped a bag on the way out of the shop; you met with the two females after committing the offence and gave them $40,000 in cash.  You told police you committed the offence because you had been threatened and pressured to repay the money.

8       The CCTV footage recovered from that night shows the events that occurred in the back of the shop as described above.

9       There was no victim impact statement filed by the victim.  You were charged and remanded on 17 July 2014 and were released on bail on 24 July 2014.  There are eight days pre-sentence detention, not including today.  Your bail conditions included participation in the CISP program, and a number of progress reports concerning that participation were handed up by your counsel.  The committal proceeded by way of straight hand up brief and you entered a plea of guilty to one charge of robbery.  On 1 October 2015 you pleaded guilty to the current indictment, containing one charge of armed robbery.

10     Your personal circumstances were set out in the forensic psychological report of Patrick Newton, dated 26 January 2016, which was tendered on your behalf and referred to in the submissions made by your counsel.  These may be briefly summarised as follows.

11     You are the youngest of four children, and were born in a rural village in South Vietnam.  Your parents had a small landholding, grew fruit and vegetables and sold them at the local market.  Your childhood was unhappy and your father would drink and shout at the family.  You left school in Year 9 at age 14.  You can read and write in Vietnamese.  After leaving school you worked full time as a seamstress and in a factory, and married your ex-husband, who came from the same village but had lived in Australia.  He sponsored your migration to Australia in late 1998.  You did piecework here in the garment industry until it was no longer available.  You had your first daughter, Tammy, in 2002.  While you were pregnant with your second daughter, Anna, your ex-husband had an affair with another woman, and you separated before Anna was born.  Tammy remained with her father and you see her on weekends.  After the separation you moved into shared accommodation and supported yourself and Anna on Centrelink payments.

12     Since 2012 you have been in an on and off relationship with a man, Cuong Chau.  When you met him you were involved with another man.  You had your third daughter, Tiffany, on 5 December 2013.  While Cuong does not fully accept that he is her father he pays half of your rent on the flat in which you reside with your two younger daughters.  You continue to live on Centrelink benefits.  You have three credit card debts totalling $22,500 and you are only servicing one of these debts.  You have very limited English and are socially isolated.  You have no family in Australia.  The only people you associated with were your ex-husband’s family and friends and they no longer associate with you.

13     You have no prior convictions either here or in Vietnam.

14     Mr Newton reported that you developed significant depressive symptoms from about 2007 after your marriage broke down.  You began to gamble as a way of distracting yourself from your distress and loneliness.  At first you gambled with your own income, then accumulated significant credit card debts.  You then borrowed from loan sharks and had accumulated a $40,000 debt.  You were pressured to commit offences in order to fund the repayment.  You ceased gambling before your arrest and have participated in counselling in relation to gambling as part of your CISP program.  You expressed remorse to him for your conduct, were ashamed of yourself and were distressed at the impact of your behaviour on your relationship with your children.  Mr Newton diagnosed a Gambling Disorder which has been in remission for the past 18 months, and an Adjustment Disorder with Depressed Mood.  He felt that there was a genuine risk that your mental state could deteriorate in the period after sentencing, and that you would be at some risk for impulsive acts of self-harm if imprisoned.  He recommended that you be monitored by a mental health professional during the early stage of any time in custody.  He felt that you need treatment for your depressive symptoms with medication and with counselling with a Vietnamese speaking clinician.  He felt that you needed a lengthy period of supervision to help you abstain from gambling.

15     Your counsel raised a number of matters in mitigation.  You have no prior convictions.  Your plea of guilty has substantial utilitarian benefit, demonstrates a willingness to facilitate the course of justice, provides some evidence of remorse, demonstrates your acceptance of responsibility, and therefore should attract a substantial discount.  Your plea should be treated as having been entered at a relatively early stage because you made full and frank admissions in your record of interview; no witnesses were called at committal, where the Crown refused to accept a plea to robbery.  There were discussions about whether the syringe was an offensive weapon in the context of a charge of armed robbery and the matter resolved at the final directions hearing.  In relation to remorse, it was submitted that you showed remorse in your record of interview when you said you knew that what you did was wrong and prayed for the victim to be safe; that you expressed remorse to Mr Newton; and that you demonstrated remorse by your plea of guilty.  In relation to the reason for your offending, your counsel relied on the gambling addiction that arose in the context of your depression after your marriage break up.

16     Based on Mr Newton’s report it was submitted that the fifth and sixth limbs of Verdins are enlivened.  That is, that a sentence of imprisonment will weigh more heavily on you than on a prisoner of normal health, and that there is a serious risk of imprisonment having a significant adverse effect on your mental health.

17     In relation to your prospects of rehabilitation it was submitted that your gambling addiction arose in the context of mental illness and social isolation, and that this addiction resulted in the commission of the offence.  Since then, however, you have ceased gambling, had yourself voluntarily excluded from the casino, and have undertaken gambling related counselling in the CISP program.  In these circumstances, given your prior good character it was submitted that your prospects of rehabilitation are good.

18     Your counsel relied particularly on the final CISP progress report prepared by your case manager, Nicholas Morgan, dated 21 November 2014.  The report notes that you attended all your appointments with the writer and with the gambling addiction counsellor.  He reported that you have not gambled since being released from custody and referred to your self-exclusion letter to Crown Casino, which is Exhibit B.  He noted that you have attended two sessions with a Vietnamese speaking psychologist and that you were involved in volunteering at the Vietnamese Women's Association and at the Buddhist Temple in Braybrook, and I note a letter from Mr Tam So of the Quang Minh Temple, dated 18 January 2016, confirmed your attendances at the temple.  The report noted that you recently received full time custody of your two young children after a brief period of child protection involvement when you were arrested.  Under the Order, your children were required to live with your ex-mother in law.  The Department of Human Services are no longer involved.  Mr Morgan said you became emotional when discussing your children, and say that they are a big motivating factor in addressing your current issues.  You have no family support in Australia and are very concerned that you will be separated from your daughters if imprisoned.  The report concluded that you have taken full advantage of your involvement in CISP and are doing everything you can to address your behaviours and the problems which led to your offending.

19     Finally, it was submitted that third party hardship - that is, hardship to your two youngest daughters - can be regarded as a factor in mitigation, because exceptional circumstances are present in that in the event of your incarceration there would be no one to care for your middle daughter, and she would likely be taken into the care of the State.  Additionally, it was submitted, you will suffer anguish at the family hardship which will flow from your incarceration.

20     Your counsel submitted that you should be assessed for suitability for a Community Corrections Order.  The Assessment Outcome Report dated 28 January 2016 concludes that you are suitable for such an order, and recommends conditions including unpaid community work; mental health treatment; offending behaviour programs; supervision and refers to the possibility of a residual condition prohibiting you from attending gambling venues in general.

21     At the conclusion of the plea hearing the prosecutor sought instructions, and on the basis of those instructions, conceded that exceptional circumstances were made out for the purposes of establishing third party hardship, and conceded that the imposition of a community corrections order was within range given the matters put in mitigation.  However, given the seriousness of the offending and the way it was committed, it was submitted that the community corrections order should be of significant duration.  Disposal and forensic sample orders were sought by the prosecution and you consent to these being made.  I will refer to them at the end of my reasons for sentence.

22     I accept the matters put on your behalf in mitigation.  This is a very unusual case.  The offending is a serious example of armed robbery, committed against someone you knew, and who trusted you, and who had helped you financially in the past.  It was committed for financial gain; albeit to satisfy a gambling debt in circumstances where you were being pressured to repay the debt, and to offend in order to do so.  You are a person without prior convictions, relatively youthful, isolated in Australia with no family, caring on your own for your two youngest daughters in spite of having little English and no employment.  You have pleaded guilty and shown remorse for your conduct, which occurred in the context of a gambling addiction brought on by the isolation and depression you felt after your marriage broke up, and you have ceased gambling, commenced counselling and taken full advantage of the CISP program you have undertaken.  If imprisoned your middle daughter will be taken into the care of the State because there is no one available to care for her.  I accept that you currently suffer from a mental disorder requiring treatment both by way of medication and counselling with a Vietnamese speaking psychologist, and that a sentence of imprisonment will weigh more heavily on you than on a person in normal health.  I am also satisfied that there is a serious risk that imprisonment will have a significant adverse effect on your mental health.

23     I have carefully considered the principles set out in Boulton's case, and more recent decisions of the Court of Appeal.  In Boulton, the Court of Appeal stated that the availability of the Community Corrections Order dramatically changes the sentencing landscape, offering a sentencing disposition which enables all of the purposes of punishment to be served simultaneously, and which demands that the offender take personal responsibility for self-management and control, pursue treatment and rehabilitation, avoid undesirable persons and places, while allowing the offender to maintain the continuity of personal and family relationships.  Viewed in this light the Community Corrections Order offers the sentencing court the best opportunity to promote, simultaneously, the best interests of the community, and the best interests of the offender.  The fact that, prior to Boulton, an offence such as that of armed robbery would always receive a punishment of a term of imprisonment is, on the authorities, now the beginning, and not the end of the court’s consideration.  The process of deliberation to be undertaken in the light of Boulton, and the new sub-section 5(4C) of the Sentencing Act means that a sentence of imprisonment must not be imposed unless the court has paid careful attention to the purposes for which the sentence is to be imposed, and whether those purposes can be achieved by a Community Corrections Order to which one or more of the specified onerous conditions is attached.

24     In this light, the sentencing court must approach the task by asking the following: Given that a Community Corrections order could be imposed for a period of years, with conditions attached which would be both punitive and rehabilitative, is there any feature of the offence, or the offender, which requires the conclusion that imprisonment, with all of its disadvantages, is the only option?

25      Whilst acknowledging that the offence committed by you is a serious example of the offence of armed robbery, in the unusual and exceptional circumstances of this case I consider that imprisonment is not the only option.  In reaching this conclusion, I take into account your prior good record, your depression and loneliness which led to your gambling addiction, the spiralling of that gambling out of control to the extent that you became indebted to loan sharks, your vulnerability in being pressured to commit offences to repay the debt, your poor English, social isolation, depression and sole responsibility for two young daughters, the fact that you have ceased gambling, undertaken counselling and voluntary work, and the anguish you feel at the prospect of your middle daughter being taken into State care if you are imprisoned.  I consider that the rehabilitation that you have undertaken so far would be seriously undermined by a term of imprisonment. I also accept that, given your current fragile emotional state, prison would weigh very heavily on you and there is a serious risk of a serious decline in your already precarious mental health.

26     In all the circumstances, weighing all the relevant sentencing considerations I consider it appropriate to sentence you to a five year Community Corrections Order.

27     Would you please stand?     On the charge of armed robbery you are convicted and sentenced to a Community Corrections Order for a period of five years with the following conditions: that you complete 300 hours of unpaid community work, that you attend for supervision, that you undergo mental health treatment and rehabilitation, and that you participate in offending behaviour programs.  I also attach a condition that you are prohibited from attending gambling venues in general.

28     In addition to the conditions I have specifically imposed, you must also abide by the terms that apply to all Community Corrections Orders.  These are: that you must not commit any other offences during the period of the order being in force - that is, five years from today - any offence for which you could be imprisoned, even if a court would choose not to impose imprisonment.  You must report to and receive visits from a Community Corrections officer.  You must report to the Community Corrections Centre at Sunshine within two clear working days, which will be 5 February 2016. 

29     Also, you must not leave Victoria without first getting permission from a Community Corrections officer, and you must inform the Community Corrections office of any change of address, where you work or live, within 48 hours of that change occuring.  Finally, you must obey all lawful instructions from, and directions of, Community Corrections officers. 

30     Do you understand the conditions I have imposed and the general terms that apply?

31     Before you consent to the making of such an order you must understand that the contravention of any condition attached to the Community Corrections Order, except for a contravention of a direction by the Secretary, is itself an offence punishable by three months' imprisonment.  Contravention of a Community Corrections Order also carries with it the prospect that you will be brought back before me and re-sentenced for the original offence.  Do you consent in these circumstances to the imposition of such an order?

32     The prosecution has sought a disposal order for the syringe cap and two syringes used in the commission of the offence.  I propose to make that order as you have not opposed it.

33     Application was also made by the prosecution for the provision of a forensic sample by taking a scraping from your mouth, or a blood sample, and I note that you have consented to that order.  Having regard to the seriousness of the circumstances of the offending I find that the granting of the order is in the public interest, and I will make it.

34     I am required to warn you that if at the time you are requested to supply a sample of your DNA by scraping from the inside of your mouth, under supervision by an authorised member of the police force, then the sample will be taken in that way.  But if, when requested by the police officer to provide the sample in that way, you either fail or refuse to provide the sample, the officer is authorised to obtain a blood sample, and to use reasonable force to obtain that blood sample.  Do you understand?  I will sign the orders.  Are there any other matters that need to be addressed?

35     MR SAUNDERS:  No, Your Honour.

36     HER HONOUR:  Non-custodial orders, don't think I need to do a s.6AAA?

37     MR FISHER:  No, I don't think you do, that's right.

38     HER HONOUR:  No?

39     MR SAUNDERS:  Not as I understand it, anyway.

40     HER HONOUR:  All right.  Ms Nguyen, I'll just invite you - perhaps you want to assist her, Mr Saunders, if you wish.

41     MR SAUNDERS:  Thank you, Your Honour.

42     HER HONOUR:  I'll just let you check the Orders before I sign them.

43     MR SAUNDERS:  Yes, Your Honour, thank you.

44     HER HONOUR:  Thank you very much.

45     MR FISHER:  Thanks.

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