Director of Public Prosecutions v Nguyen
[2014] VCC 2268
•31 October 2014
| Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-14-00657
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TONY NGUYEN |
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| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 31 October 2014 |
| CASE MAY BE CITED AS: | DPP v Nguyen |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 2268 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Accused | Mr P. Guggenheimer | |
| For the Department of Human Services | Mr N. Smith |
HIS HONOUR:
1Tony Nguyen, you have pleaded guilty to one charge of extortion with threat to inflict serious injury and two charges of theft. The extortion has a 15 year maximum term of imprisonment whilst the theft charges each carry a 10 year maximum term of imprisonment. You admitted a criminal history which your counsel correctly concedes is very much relevant to my task.
Facts
2The details of your offending are set out in Exhibit A, the written summary of prosecution opening dated 20 October 2014. Your counsel told me that this was an agreed statement. I incorporate it into these reasons for sentence; it will be available for inspection on the court file. In those circumstances I see no need at all to fully restate the facts. I will still say something.
3Your victim, Robert Braczkowski, owed some money to your co-accused, Eric Aranda. I interpose, Aranda has been charged with offences but is yet to be dealt with. He is going to trial. Returning to the facts, Mr Braczkowski was working off the debt owed to Aranda by doing work on a car that Aranda had brought to the Braczkowski family motor repair business. It would seem that whilst Braczkowski owed money to Aranda, Aranda owed money to you. The genesis of each debt is far from clear to me. Braczkowski was receiving pressure from his family to move the car from the premises. He was not able to store the car for any longer at the business and warned Aranda that it needed to be collected and told him on multiple occasions that it needed to be collected and told him on multiple occasions that it would be parked on the nature strip and should be collected forthwith. The car disappeared from the nature strip and Aranda felt aggrieved. As you had the outstanding debt owed to you by Aranda you were also disappointed that the property had been lost as it impacted on the prospects of timely repayment by Aranda of his debt to you.
4I am not at all satisfied of your instructions as to the manner of the debt or its quantum or how it was incurred. However, that is unimportant. The victim did not owe you anything. Intercepted calls between you and Aranda indicate that you were pursuing outstanding debts as you had recently been released from prison. Aranda owed you money and Aranda wanted to get money from Braczkowski to pay you (see paragraph 9 of the agreed summary.)
5As the summary discloses, you, Aranda and two other men attended upon the business on the morning of 17 August 2013. There, you involved yourself in this extortion. You were very much a lead player. You ‘claimed’ a black Monaro, one belonging to your victim, saying "This one's gone" and tapping your hand on the car. Neither you nor Aranda had any interest in or right to that car. When your victim said "no" you then said "Do you want to play this the hard way or the easy way?" You and your named co-accused, Aranda, positioned yourself between your victim and the exit after you had claimed the Monaro. Given the unmistakable menace in the words combined with the presence of the four of you, your victim “chose the easy way”. The fact is he was presented with no choice at all. He was forced by you to complete and sign a fake receipt for the car, one that you ultimately told the police about in defence of any suggestion of impropriety. The extortion charge relates to that demand of Braczkowski to sign over ownership of the Monaro with the threat to inflict serious injury if he did not agree to do so. A tow truck was arranged and the car was in this way stolen. This took a substantial period of time, hours, not minutes. So too was $600 cash stolen from the filing cabinet by one of your number. You removed the digital recording unit receiving the footage from CCTV cameras and gave it to Aranda. It was given to Richardson with instructions from you to erase the footage. Your hope here was that given the menacing features of the visit, it would remain unreported. Here you made a miscalculation. Despite the fear instilled by the visit, your victim reported the event to the police and the car that had been towed to premises at your own instructions was then located by the police two days later. You were by that stage taking steps to deliver it back from whence it came. You were not returning the car as some indication of regret or contrition but because ‘the cat was out of the bag’ and the line of least resistance was to return the car and then pretend to be a bona fide person innocently caught up in this transaction. You claimed in your interview that the moment you learnt the car was stolen you returned it. This was nonsense as you had stolen it yourself, as you well knew and know.
6You were arrested and interviewed on 30 August 2013 and made some admissions to presence but fudged the truth in very many other areas, leaving out your role in the theft and any aspect of extortion. This was undoubtedly serious criminal conduct by a man with a highly relevant criminal history.
VICTIM IMPACT
7Your victim has not made a victim impact statement. That was his right. However, the offence of extortion was designed to scare him. I have no doubt at all that he was frightened on the occasion of your attendance.
SUBMISSIONS IN MITIGATION
8Mr Guggenheimer who appeared for you raised a number of matters in mitigation, relying primarily upon:
·Your guilty plea and the relatively early stage at which it was entered;
·The presence of remorse
·He argued that you were not without some prospects of rehabilitation but the court would have to be very guarded given the offending and your past history which showed something of a pattern.
·He accepted that your criminal record was highly relevant.
·He relied upon the principle of totality and the chronology of your being held since August of 2013.
·He took me to your personal background and conceded the seriousness of the offending and the inevitability of an immediate term with a non-parole period.
CROWN SUBMISSIONS
9The Crown argued that the only available disposition was an immediate term extending beyond the pre-sentence detention period.
BACKGROUND
10I see no need to work my way through your personal background in these reasons; I have no reason not to accept the personal family background placed before me by your counsel. There is nothing in your family background which explains this offending. You come from a good family. You have sisters who are law-abiding. You are not and have not been law-abiding for many years now. You are evidently of quite high intelligence. You are 37 years old. I note that your counsel tendered the reasons for sentence of Judge Taft relating to sentences imposed in this court in March of 2011. At that time a report from Mr Cummins made comment as to your high intelligence. Your counsel adopted that suggestion and conceded that there were no psychological issues at work here. He informed me that you passed Year 12 at Mazenod College and success came your way possibly too early and too easily with the success of a nightclub run from 1995 through to about 2003.
11Your counsel spoke of the destructive spiral you entered following your association with a man named Di Cioccio. Di Cioccio was a solicitor and evidently a pretty unimpressive one given the significant jail term he ultimately received for defalcations (see Di Cioccio v The Queen [2013] VSCA 74.) It was argued that you had money tied up somehow with him and lost a lot and that much of your criminality in the past concerned your interaction with him. The fact is you had already committed a number of dishonesty offences totally unconnected to him dealt with in 1998, 2004 and 2007. However, your counsel took me to the appearances in July of 2008 and spelt out that this involved your going to Di Cioccio's home and, in connection with a claimed debt, assaulting him and stealing a car. It is obviously a highly relevant matter. Though the relationships may be very different, it is very broadly the style of standover conduct you were engaged in for which I must pass sentence. A debt or a link to a debt and an attendance to gain property.
12You backed that appearance up with stalking conduct and a threat to inflict serious injury dealt with in April of 2009. That involved you threatening serious injury to an ex-boyfriend of a girlfriend. The factual basis of the appearance before Judge Taft in March 2011 is set out in his reasons marked as Exhibit 1; a grievance against Di Cioccio. Your conduct involved an ambush with other men stepping out of a car saying "Tony wants to talk to you" followed up by a physical attack by you upon Di Cioccio and then a common assault on the de facto wife of Di Cioccio. The actual obtain property by deception had nothing to do with Di Cioccio at all but was your own conduct, diverting over $30,000 of funds away from their intended destination and using them yourself. You were bailed and then absconded on bail on someone else's passport.
13Your criminal history is highly relevant to my task. Your counsel concedes that there is a pattern of someone who engages in violence or threats when there is some grievance. Judge Taft had serious reservations about your prospects of rehabilitation, citing the potential hollowness of the claim and it appears now his concerns were very well justified (see paragraph 24 of Exhibit 1). You were released from his sentence on 2 November 2012. That is because in part at least your conduct had breached other court orders. There are also some older matters that had been dealt with. When released in November of 2012 you were still on a three year Recognisance Release Order in relation to the Commonwealth offending after serving the first six months of that Federal sentence. Yet by April of 2013 you had committed fresh offences, being possession of Anabolic steroids and morphine, ultimately dealt with in September 2013. The summary says October 2013; that is clearly wrong given the date on the court certified extract and on the prison history and the parties accept that to be the position.
14However, by 7 May 2013 you were taken back into custody, this time on charges of kidnapping, false imprisonment and cause injury charges, amongst others, and were bailed in relation to those matters on 7 August 2013. So you were on bail for those matters, matters I observe which never proceeded but that is not the point. You were on bail for serious matters at the time you committed the offences which I must deal with. You knew that and raised that in the interview as bearing upon the improbability of your having acted in the way alleged on this occasion. You were also on a Recognisance Release Order imposed at the Magistrates Court in October 2012 with three months' imprisonment over your head following your breach of an earlier bond for dishonesty offences. You were also on a Recognisance Release Order from the Commonwealth sentences imposed by Judge Taft with 12 months suspended over your head. Yet within 10 days of your release on bail, you were committing these offences. The need for specific deterrence here is large indeed. Time and time again courts have tried to deter you from offending with no success at all. As the chronology shows you have breached order after order and have continued to offend seriously. You display an attitude of wilful defiance of the law, not youthful exuberance or impulsivity. You are a man no longer with youth on your side who, for whatever reason, seems to think that you can do as you like. Your offending is quite calculated. I will try again to deter you.
GUILTY PLEA
15You have pleaded guilty. It was not at the earliest stage but I note that there were other charges laid in the Magistrates Court which ultimately have not proceeded. Once committed to this court there were discussions to resolve the matter and it resolved swiftly. I think it is fair to treat the plea as an early one in those circumstances. Such cross‑examination as was engaged in at the committal was in the setting of very different charges and must be seen in that light. You will be given the appropriate discounts for what I will treat as an early guilty plea. There is a strong utilitarian benefit in pleading guilty. Witnesses have been spared the experience of coming to this court. The community has been spared the time and cost and effort of a contested hearing in this court. You have in those ways facilitated the course of justice. I will pass a lesser penalty because of your guilty plea and the early stage it was entered.
REMORSE
16The summary suggests that you have demonstrated remorse and that can be gleaned from your guilty plea. I make plain that it is for the court to make judgements as to the existence of remorse. Not every guilty plea is indicative of remorse; some are, some are not. This was an overwhelming case. I asked your counsel to take me to the matters supporting the presence of remorse other than the bare fact of the guilty plea. He conceded that there was very little evidence. He spoke of your finding yourself in the position of being imprisoned again and being sorry for the trouble you have caused yourself and your family but it did not go much further than that, if at all. That is not remorse, Mr Nguyen. He argued that you had at least accepted responsibility for your conduct, had pleaded guilty early and accepted now that you had acted inappropriately. This may be unduly favourable to you but I am prepared to find the existence of a degree of remorse here and I take that into account in mitigation. It is far from complete and is intermingled with a far greater focus on your own predicament than regret for the crime committed upon your victim.
REHABILITATION
17Given the nature and the chronology of past offending and the nature of this offending whilst on bail and on the two Recognisance Release Orders it is very hard to be optimistic as to your prospects of rehabilitation. Your counsel conceded the existence of a pattern of conduct and the high need for specific deterrence. He submitted that the court could only be incredibly guarded. I am certainly not prepared to find that you have no prospects of rehabilitation at all. However, the matters raised in support of those prospects before me are almost identical to the way in which they were raised before Judge Taft three and a half years ago, that is, family responsibilities and new and exciting employment opportunities in the solar energy or energy fields. Still you offend seriously. I will not write you off but I believe you have poor prospects of rehabilitation in the future. You seem, for whatever reason, committed to criminal conduct and have demonstrated a preparedness to act dishonestly and to standover people. Court orders have done nothing to impede you; not even an order suspending 12 months' imprisonment over your head.
DEAD TIME
18A number of submissions were made to me about dead time, that is, time that you had served in custody, your being held in relation to charges of kidnapping, false imprisonment and other charges which ultimately did not proceed. A closer examination of the materials cause me to raise those issues again with counsel this morning. It is fair to say that a closer examination of the records before us all show that that dead time, that is, time that you had served in relation to charges that ultimately had been withdrawn, had in fact and has in fact been previously declared by a magistrate as pre-sentence detention served by you in relation to the sentence imposed at the Magistrates Court on 18 September 2013. That 91 days was declared as PSD. So the parties speak with one voice and say now to me that there is no dead time and no Renzella issues at all in this case but accordingly an increase in the actual strict s.18 time in custody that you have spent and I accept that position, having raised my concerns.
CURRENT SENTENCING PRACTICE
19I take into account as I must current sentencing practices. I have looked at the cases in the Judicial College of Victoria Manual at 30.9.4.1, but I note that some of those cases deal with the offence of blackmail, which is a different offence, though it has of course the same maximum penalty as extortion. no amount of looking at other sentencing outcomes in other cases will provide the answer to the correct exercise of my sentencing discretion in your case. That is because each case is different. So too is every offender. The need for specific deterrence in the context of this case is plain indeed. So too is community protection from you.
OFFENCE GRAVITY
20I must pay regard to the gravity of the offence or offences before the court. This was serious offending by you, a man with a serious criminal history and a disturbing chronology over the last five years. You were acting in a brazen fashion because you thought you could. It did not spill over into actual physical violence; it did not need to. Your words and your conduct were plain enough. You did not expect that this man would resist your demand or report your extortion. You have turned up with three other men. There was the weight of numbers. Judge Taft in his sentencing remarks spoke of your preparedness to enlist others. You have issued the demand laced with the threat implied. It was not spontaneous offending and whatever may be said of the debt owed by Aranda to you, that really had nothing to do with your victim. You were behaving, yet again, like a thug, a role that you have ably undertaken in the past on more than one occasion uttering words more reminiscent of a gangster movie, "Do you want to play this the hard way or the easy way?"
21The theft itself (charge 2) was not insignificant. It was a car. There was an air of calculation here; the extortion, the threat, the forced creation of the fake receipt to provide protection to you if needs be then coolness in waiting at that scene for a significant period of time at the premises. Fear was your ally deliberately created by you in the setting that you brought about. When interviewed by the police you were quick to point out the existence of the receipt that was held by your solicitor as supporting your claim of acting in a bona fide matter. The theft of the recording apparatus was extremely calculated offending. I am not sentencing you for attempting to pervert the course of justice. But it is clear that the purpose of that theft was to remove the evidence of your other offending. That demonstrates your level-headedness and coolness and calculation on the day in question. This was serious offending, Mr Nguyen. You should no longer expect any leniency at all from the courts.
SENTENCING CONSIDERATIONS
22I have taken into account all of the submissions made and the exhibits tendered before me. There are of course a variety of matters which must be taken into account by the court. I must take into account the maximum penalty. I must pay regard to current sentencing practices. I must consider also your prospects of rehabilitation. As I have announced, I believe they are poor. You must be punished for your crimes justly and proportionately and this court must denounce your conduct. I must consider the protection of the community from you. That is a relevant consideration here. You must also be deterred. You must be dissuaded from ever committing such crimes as these again. That is a highly relevant consideration here. You have somehow got to get it into your head that you are not free to issue threats. That you are not free to monster others with whom you have some grievance or perceived grievance. Time and time again courts have sought to spell out that lesson with ever increasing sentences and to no avail. You must cease to act dishonestly. This court must also seek to deter others who might be minded to commit this type of serious offending. That purpose, known as general deterrence, is in my judgement a highly relevant purpose of sentencing here. Extortion is a very serious crime. It is designed to be undetected by its very nature. Threats are engaged to achieve compliance and silence. When detected, the Courts must make plain that such conduct as yours will not be tolerated and will be met with stern punishment.
TOTALITY
23I also pay regard to totality of sentence in considering the extent of cumulation imposed as between the individual sentences imposed. The offences all occurred on the one day. There was in that sense a single criminal episode but that fact does not demand total concurrency as between the sentences. The extortion was in its own right a very serious crime. The theft of the car though of course linked to the extortion was itself serious, as was the theft of the money and the recording device. I think there should be substantial concurrency though, given the close timing and the unity of purpose here.
24I pay regard to the overall criminality and I have taken a last look at the overall effect of the sentences to be pronounced in guarding against a crushing outcome upon you. Sending a person to prison is always of course a matter of last resort for any court. There is no other option here. Your offending is too serious.
SENTENCE
25On Charge 1, extortion with threat to inflict serious injury you are convicted and sentenced to two years and nine months imprisonment. That is the base sentence.
26On Charge 2, theft, you are convicted and sentenced to nine months' imprisonment.
27On Charge 3, theft, you are convicted and sentenced to six months' imprisonment. I direct that two months of the sentence imposed on Charge 2 and one month of the sentence imposed on Charge 3 is to be served cumulatively upon the base sentence and upon each other.
TOTAL EFFECTIVE SENTENCE
28This produces a total effective sentence of three years' imprisonment.
NON PAROLE PERIOD
29I fix a non-parole period of 24 months or two years.
30On the charge of theft of a motor car, that is, Charge 2, all licences and permits are cancelled and you are disqualified from driving for a period of six months. That period of disqualification will commence immediately, that is, on today's date.
SECTION 18 PRE-SENTENCE DETENTION
31I declare that you have spent a period of 427 days by way of s.18 pre-sentence detention in relation to this matter. That period is to be entered in the records of the court pursuant to Section 18 of the Sentencing Act. Had you been found guilty having run a contested hearing before a jury I would have sentenced you to a term of five years' imprisonment. I would have fixed a non-parole period of three and a half years. That statement made pursuant to Section 6AAA is to be the noted in the records of the court.
32Are there any other matters?
33COUNSEL: No, Your Honour.
34HIS HONOUR: Yes, very well. Thanks each of your for your assistance. I am sorry to have put you on the spot in terms of the PSD but none of it made any sense to me when I looked at it.
35MR GUGGENHEIMER: It's a matter we had to get right, Your Honour. Thank you, Your Honour, for Your Honour's assistance.
36HIS HONOUR: Thank you. Mr Nguyen can be removed please, thank you.
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