Director of Public Prosecutions v Nguyen
[2015] VCC 1783
•4 December 2015
| Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 14-02156
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSEPH NGUYEN |
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| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 November 2015 |
| DATE OF SENTENCE: | 4 December 2015 |
| CASE MAY BE CITED AS: | DPP v Nguyen |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1783 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr L. Crosbie | |
| For the Accused | Mr M. Goldberg |
HIS HONOUR:
1Joseph Nguyen, on 7 June 2015, you pleaded guilty to the following charges before Judge Hannan in this court:
2Charge 1: Affray, which has a maximum penalty of five years' imprisonment;
3Charge 2: Recklessly cause serious injury to Binh Phan, which has a maximum penalty of 15 years' imprisonment;
4Charge 3: Recklessly cause injury to Phong Ho, which has a maximum penalty of five years' imprisonment;
5Charge 4: Aggravated burglary which has a maximum penalty of 25 years' imprisonment;
6Charge 5: Criminal damage which has a maximum penalty of 10 years' imprisonment.
7On your behalf, a plea was put before me on 20 November 2015. I turn to the circumstances of the offending.
CIRCUMSTANCES OF OFFENDING
8The full circumstances of the events, giving rise to these offences, were set out in the prosecution opening for the plea dated 23 February 2015. That was Exhibit A on the plea. I will not repeat that document in detail in this sentence, but have taken the agreed summary as an accurate statement of your involvement in each of the offences.
9The offending occurs in two separate events at the same house. You and your brother had been invited to an 18th birthday party for Binh Phan at his family home. Your brother Anthony was making trouble at the party and was asked to leave. You took Anthony from the party back to your mother's home. Anthony rang your younger brother Michael and told me that he had been attacked by 15 males. This was not true and you knew it was not true.
10Michael attended the home and armed himself with a machete and arranged for his friend Robert and others to join in a raid on Binh Phan’s house.
11You drove Michael and others to the house. When you arrived at the Phan house, you and others got out of the cars and approached. Binh Phan, who lived at the home and his friends, met you outside the house. There was punching, kicking and fighting by all of you. This is the charge of affray.
12You admitted to police that you had thrown one punch at one of the combatants during this fight. It was clear from the summary that your group, including your brother's Michael and Anthony, came off second best in this incident.
13The second incident took place at the same house approximately one hour later. The aggravating features in these offences is that it is driven by a misplaced sentiment of revenge and retribution out of loyalty to your brothers Michael and Anthony and ill-advised encouragement from your mother.
14You returned to the Phan house. Your co-accused's had armed themselves with weapons including a machete, samurai swords, meat cleaver and knives.
15What followed can only be described as mayhem. Your group were confronted by Binh Phan and his supporters. The fighting continued from outside the house to the inside of the house. Your brother Michael was the main offender. He struck Binh Phan with a machete. As an offender acting in concert, this is the charge of recklessly cause serious injury to Binh Phan which is Charge 2.
16Michael also slashed Phong Ho with a machete. This is Charge 3 of recklessly cause injury to Phong Ho where you are acting in concert.
17The remaining charges of aggravated burglary, Charge 4 and Charge 5, the criminal damage charge, you are a principle offender as you entered the house and with others, damaged the contents and property itself including the family Tarago.
18The prosecution summary has your role in these offences as one of the lesser participants in all of these charges or offences and I take into account that your brothers Michael and Anthony really led the charge. Nevertheless you were there and were assisting by your presence. These attacks were extraordinary in their ferocity and damage caused to both persons and property.
IMPACT ON VICTIMS
19The impact on your victims. There were two victim impact statements filed on behalf of Binh Phan. They were dated 20 September 2011 and
14 September 2015 respectively.20In the first victim impact statement, Binh Phan sets out his anger at the impact on his birthday celebrations and the family not feeling safe into the future. He describes, "Life is like living in a prison".
21Binh Phan sets out the scarring and wounds caused by the physical assaults on him during these events. His shoulder movement is restricted as a result of the injuries.
22In his second victim impact statement, Binh Phan sets out the additional psychological impact on him, with symptoms of insomnia and nightmares. He has required the assistance of a psychiatrist. The physical injuries remain a restriction to him. He states in his victim impact statement, he just wants to move on with his life.
23Bon Nguyen is the mother of Binh Phan and “the lady of the house”. Her victim impact statement is dated 20 September 2011. She describes the damage to her property and the injuries to her son. She is concerned for the safety of her family. One of her younger children was very ill.
24Nam Phan is the father of Binh Phan. His victim impact statement is also dated 20 September 2011. He describes the anxiety and distress to his family. He says his son Binh has withdrawn from the family because he, Binh, thinks the assault and home invasion was his fault.
25He outlines the $12,000 worth of damage to the property and its contents as well as the car. He has had security cameras installed at his home as a result of these events.
26It is clear from the victim impact statements that the offending has had a profound and long-standing impact on the victims of your offending.
YOUR PERSONAL CIRCUMSTANCES
27I turn to your personal circumstances. You are now 25 years old. At the time of your offending, you were 20 years old. You were born in Sydney and are the second child of a sib-ship of five.
28By the time you were in early secondary school, your family moved to Brisbane. Your family life was dominated by financial pressures and disputes between your parents. There were many separations and reconciliation between your parents. Your father was a violent man. On one occasion, you and your mother and family sought safety in a refuge.
29When you were 18, your parents finally separated. You remained in the care of your father in Brisbane. Your father then returned to Vietnam to, in your words, "To start a new family" and he left you to your own devices in Brisbane with one of your brothers.
30Due to the family instability, your mother and all of the children moved to Melbourne. At the age of 19, you purchased a home to give to your mother and family somewhere to live so that they would have some stability. You remained unable to maintain the mortgage and the house was lost. You saw this as a failure on your part and you returned to Brisbane.
31You commenced your relationship with your now wife, Thao Ng Phuong. She has known you since 2005. You have a child Addison, who is now three. You married in 2012. I have heard evidence from your wife. She was a straightforward, no nonsense woman who obviously cares for you and supports you in an emotional and structured manner.
32Her family are market gardeners and you work within the family business of growing vegetables and the packing shed that they operate. Your wife said her father controlled the finances for the whole of the family. Ms Phuong stated that she had convinced you to seek treatment for your paranoia and what she described as “a breakdown”.
33You were hospitalised recently for a week due to your mental state. She stated you now have a case worker and see a psychologist.
34I was not provided with a report from your current treaters in Queensland but I accept your wife's evidence of your symptoms and your current work in her family business. She was an impressive witness who is clearly a significant person in your rehabilitation.
35Your education was limited to Year 11 in Queensland. You commenced Year 12 but were expelled from the school due to poor attendance, no doubt as a result of the lack of parental guidance at that time of your life.
36You have given Mr Newton, a psychologist whose report is dated
27 May 2015, a history of alcohol abuse from the age of 16 years. You have experimented with cannabis and other stimulants but stopped that behaviour in 2007.37In the offending in this case, alcohol abuse and drunkenness are a central part of your participation. Mr Newton has diagnosed you as suffering from an adjustment order with mixed anxiety and depressed mood.
38He says you approach the world in a concrete fashion and have limited capacity for abstract reasoning. Mr Newton assess you as of being in the low end of the average range of intelligence.
39Nevertheless, you knew your involvement in this offending was wrong and it was motivated by misguided loyalty to your younger brothers with some, ill-informed encouragement from your mother. I note your wife, in evidence, stated she tried to limit your contact with your mother because she thought it was better for you.
40Significantly, you have had these matters hanging over your head for more than four and a half years. The Crown accept that the delay has not been your fault.
41By way of criminal history, I note that you have had one appearance in the Ipswich Children's' Court on 30 November 2006 for robbery with actual violence and the sentence was without conviction, you were placed on a six month probation. You obviously kept that.
42In the times since these offences, you have been convicted at the Broadmeadows Magistrates' Court on 8 September 2014 on a charge of possessing a controlled weapon and fined $1000.
43I was told during the course of the plea that the controlled weapon in question was a credit card knife which you had purchased as a novelty present to take back to Queensland and I add this, on a plane.
44These court appearances show that you are a person who has, in the past, had an ability to get into trouble with the law. They also indicate a level of immaturity and a lack of insight in the past by you to appreciate the connections between acts and consequences.
45I accept that you now understand the connection between your behaviour and the consequences for you, your family and your victims. I base this conclusion on the evidence of your wife and Mr Newton's report.
SENTENCING CONSIDERATIONS
46I turn to sentencing considerations. In sentencing you, I must have regard to a range of factors, such as the seriousness of your offences and your culpability for them, your personal circumstances and those of your victims. I am required to balance those interests with the interest of the community in denouncing your criminal conduct and the interest of the community in seeking to ensure, as far as reasonably possible, that you are, as an offender, are rehabilitated and reintegrated into society.
47I am mindful of the provisions of the Sentencing Act, in particular s.5(4C) which directs a sentencing court to consider whether a community corrections order can achieve the purpose for which this sentence is to be imposed.
48I have reviewed the case of Boulton, in considering if a community corrections order would be appropriate in your case and I have had your assessed for a community corrections order and you have been assessed as being suitable.
49As part of the governing principles to be considered in sentencing you, I must also take into account current sentencing practices. That inquiry is directed particularly but not exclusively to the kinds of sentences imposed in comparable cases and the statistics for those sentences at that time.
50I have considered the statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case as indeed they are from one another.
51The final disposition of these offences has resulted in a number of court appearances. On 9 December 2014, the committal was conducted as a hand-up brief procedure. On 26 February 2015, the matters were resolved to a plea to the present charges before the court. There was subsequent legal advice to you by your lawyers at that time to change your plea. There were a number of court conducted directions hearings as a result of that advice.
52At a sentencing indication hearing on 11 June 2015 and a formal plea of guilty on 17 June, finalised these matters.
53You appeared before me initially on 24 September and sought an adjournment to obtain new solicitors at that time. In effect, you have come the full circle from your original position to plead guilty to a potential trial to a plea of guilty that you had agreed to in February 2015.
54You are entitled to a discount and consideration of your plea in your ultimate sentence even though it has the above history which I have just recited.
55As I say, you have pleaded guilty to the charge. Your plea has a utilitarian value of allowing the orderly and effective administration of justice. There is a certainty of outcome and the resolution of the substantive issues raised by your offending.
56Your plea also allows for the preservation of court and police resources to deal with other matters. Your plea vindicates public confidence in the legal process setup to protect the community in which you live.
57You have, by your plea, relieved your victims from giving evidence against you. It facilitates some closure for them. Your plea of guilty also indicates and demonstrates remorse on your part. Your plea is a clear acknowledgement by you that you accept the responsibility for your criminal behaviour on this occasion. Your plea also recognises that you are prepared to facilitate the course of justice in the community.
58You are a relatively young offender at the age of 20 when you offended and now 25 at the time of your sentence. In Mills [1994] 4 VR 235, the following three propositions were set out in a sentence of a young offender:
59(1), the youth of an offender, particularly a first time offender which you are as an adult, should be a primary consideration for a sentencing court where that matter properly arises;
60(2), that in a case of a youthful offender, rehabilitation is usually far more important than general deterrence. This is because severe punishment may in fact lead to more or further offending thus an example of individualised treatment focusing on rehabilitation is to be preferred. Rehabilitation of course benefits both the community as well as you, the offender;
61(3), a youthful offender is not to be sent to adult prison if such a disposition can be avoided, especially if you appreciate the effects of your past criminality.
62It is a basic principle of sentencing law that when a young offender is to be sentenced, the sentencing disposition should be tailored so far as possible consistently with other applicable sentencing principles to promote your rehabilitation. This serves the interest both of you, the offender and the community in which you live.
63The fact that there is delay in this case is very significant as a sentencing consideration. At the time of your offence, the disposition of a youth training centre order was open as a penalty. In fact your brother received that penalty. The delay has meant that you only have the adult range of penalties to be applied to your sentence.
64Your young age at the time of the offending and your immaturity is a relevant consideration when assessing your culpability for the offending. The delay between the offending and the present time has seen a marked and improved situation for you.
65You are a married man and have a three year old child. You work in your wife's family business as market gardeners. You have effected a substantial and proven rehabilitation.
66Under your wife's encouragement, you have sought medical assistance for your diagnosed psychological condition.
67I have previously set out the circumstances of your offending in these reasons for sentence. Your offending on this night is a serious example of those serious offences.
68The first incident of the affray charge was a reactionary impulse and your role was one of support for your brother.
69The second set of charges, they are Charges 2-5, were after a chance for you to desist and disassociate yourself from any further offending by simply staying at home. Instead you decided to return to the premises and engage in a frightening home invasion and wanton damage to property.
70The seriousness of the aggravated burglary charge is to be assessed by considering a number of factors as follows:
71(a), your intent when you were entering the house;
72(b), the mode of entry, that is, in this case, through the door of the patio of the house;
73(c), you were in the company of others who had weapons. You did not;
74(d), the offending was at night when people had been enjoying a party;
75(e), you knew people were in the house when you went there;
76(f), the occupants were very frightened by the whole event;
77(g), the whole incident can be properly described as mayhem.
78Whilst you are charged as a principle offender, your role is of a lesser one than your brothers, Michael and Anthony.
79On the principal of parity of sentencing, I note your brother Michael was sentenced to be detained in a youth training centre for 17 months. The charges he faced were different from the charges you have pleaded guilty to in this proceeding.
80The role he plays in the overall offending is different from your role. The prosecution of Michael was timely and the punishment was close to the time of the offending. In your case, there has been a lengthy delay between the offending and finalisation of these matters here in court. These three factors combined, dilute the relevance of parity of sentencing principle in this case.
81I have taken into account the pronouncements of the Court of Appeal in Hogarth's case and Meyers case on the principles to be applied for aggravated burglary offending. I have also taken into account what the Court of Appeal has set out in Boulton's case and in particular at paragraph 131 and I will recite it.
"It follows from what we have said, that a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offending involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment while affording the best prospects of rehabilitation".
82Your counsel appropriately conceded that these offences were serious examples of a serious offending. The prosecution submitted that in all of the circumstances of this case, a court would not fall into error if a community corrections order, either alone or in combination with a fine or a term of imprisonment was imposed for the totality of offending. Your own counsel submitted that a community corrections order was the appropriate disposition.
83The prosecutor finally submitted the sentencing principles of general deterrence, specific deterrence, denunciation, just punishment and rehabilitation are to be properly reflected in the sentence.
84On Charge 1, you are convicted and fined $3000.
85On Charges 2, 3, 4 and 5, you are convicted and ordered to serve a community corrections order for a period of two years. The conditions of the community corrections order are:
86(a), you are to perform unpaid community work of 150 hours;
87(b), that you, at the direction of the Secretary of the Department, submit yourself to alcohol treatment and assessment, mental health treatment and assessment, offender behaviour programs and supervision;
88(c), you are to report to the Sunshine Community Corrections service within 48 hours of this order.
89Can I just note there that an appointment has been made for you at 2 pm today. So you are to attend at 2 pm today.
90Finally, under s.6AAA of the Sentencing Act, but for your pleas of guilty, I would have sentenced you to a total effective sentence of three years' imprisonment with a non-parole period of two years.
91Under s.464ZF, I think the forensic sample has been retained. Is that correct?
92MR CROSBIE: Yes, Your Honour. It was taken during the course of the investigation so it is automatically obtained.
93HIS HONOUR: Thank you. So there is no other order required?
94MR CROSBIE: No ancillary orders, Your Honour.
95HIS HONOUR: Thank you. I will just have that community corrections order prepared and your counsel can assist you with understanding what it means. I have had arrangements made through Corrections, that the 150 hours will be an intensive 150 hours. I have not put it in the order. What that means is that they will try and have your time, the 150 hours, compressed so you serve it very quickly here in Victoria and then you can be transferred back to Queensland with your wife and family. Do you understand that?
96OFFENDER: I understand, Your Honour.
97HIS HONOUR: Thank you.
98MR GOLDBERG: Your Honour, in relation to the fine, would Your Honour grant a stay of some duration for the payment of it?
99HIS HONOUR: When is the harvest? Do not answer that. A stay of three months.
100MR GOLDBERG: As Your Honour pleases.
101HIS HONOUR: Mr Nguyen, you take this opportunity because that is what it is. It is an opportunity for you. Ms Phuong, thank you very much for your assistance. Thank you Mr Goldberg and Mr Crosbie.
102MR GOLDBERG: Thank you, Your Honour.
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