Director of Public Prosecutions v Nguyen

[2014] VCC 1693

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00575

DIRECTOR OF PUBLIC PROSECUTIONS

v

VAN QUE NGUYEN

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	6 October 2014
DATE OF SENTENCE:	6 October 2014
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2014] VCC 1693

REASONS FOR SENTENCE
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms. D. Hogan
For the Accused	Ms. M.E. Casey

HIS HONOUR:

1Van Que Nguyen, you have pleaded guilty to an indictment charging you with recklessly causing serious injury on 9 September 2013, and you have admitted to a number of prior convictions and court appearances going back to 1994.  Mostly those are offences which seem to me to be consistent with your lifestyle as a drug addict, addicted to heroin and in more recent years, ice.  You have a prior conviction for recklessly causing injury back in March of 2000, although I understand that that was an assault upon your then-wife, rather than some random attack on a member of the community.  You also have a prior conviction for armed robbery in September of 2004, and a conviction for possessing a controlled weapon without excuse in March of 2008, although the fine for that matter was relatively modest.

2The offence of armed robbery in 2004 did involve your use of a knife, albeit that you did not use it to cause injury in that particular case.  The prosecution has relied upon a summary of prosecution opening which is Exhibit A on the plea hearing.  It was read this morning, and I am not going to read it again.  Suffice to say that it seems you became involved in an argument with a man in the street.  The reasons behind the argument perhaps matter less than your response to it.  It seems that after the first stage of the argument, you armed yourself with a knife, and then when you became involved in the second stage of the argument, you attacked your victim with the knife, causing a deep laceration to his left arm, which required surgery and hospitalisation for three or four days. 

3The prosecution also provided me with a victim impact statement which is Exhibit B and at some length, the victim sets out there, the ongoing physical and emotional effects of your offending upon him and it seems likely that he will continue to have physical detriments arising from the injury that you inflicted upon him, as well as ongoing psychological detriments.  I have to take that into account in imposing sentence upon you.

4Your counsel provided me with a number of documents, a brief outline of submissions together with a chronology which is Exhibit 1; a report from Mr. Geoffrey Cummins, Psychologist, which is Exhibit 2, and that was dated 19 September, 2014, and a report dated 29 June, 2014, from a psychiatrist who was engaged to assess the question of whether you had a defence of mental impairment.

5I was also provided with a number of certificates which you have gathered during the period since you were placed on remand in custody in relation to these matters.  I note that you have been in custody for all but about a week of the period since your arrest for these matters shortly after the offence, and apart from a period of two weeks during which you were serving a term of imprisonment for another matter, you have accumulated a total of 370 days of pre-sentence detention.

6The reports upon you set out a deal of your background history, including the fact that at the age of 18 you fled Vietnam on a boat for Malaysia.  You spent six years in a refugee camp.  You married there and had the first of four children with your wife whilst you were in Malaysia.  Eventually you came to Australia, arriving in 1988.  You spent five years in Perth attempting to earn a living growing tomatoes and strawberries, unsuccessfully, it seems.  You then went to Sydney where you obtained some work, and where you had three further children.  You came to Melbourne in 1996 and your wife followed you shortly afterwards. 

7The first of your convictions was in Perth in 1994.   It seems that you became involved in drugs, in particular, heroin from the mid to late 1990s and by 1999-2000, you were a heroin addict and that seems to have dogged you throughout your life since then.  It no doubt led to the break-up of your marriage and you finally divorced your wife in 2005. 

8I am led to believe that you have had little work in recent years, and that you are living on social security benefits; that you have been living in a Ministry of Housing boarding house and apart from contact with your three adult daughters and your son, you lead a lonely life.  You apparently have no friends, and you show every sign, according to Mr Cummins' analyses, of being attached to a drug-using lifestyle.  Mr Cummins' opinion was that that was so to a point where he formed the opinion that your current motivation for becoming drug-free was low.  He assessed your prospects of rehabilitation as "regrettably" very guarded.

9You have been given opportunities by the courts to rehabilitate yourself through Community Correction Orders, and the most recent of those was the order imposed on 28 May, 2012.  It is alleged you breached that order I should say, and you are due to be dealt with for the breach of that order. 

10Your counsel took some care in presenting a balanced series of submissions on your behalf.   She rightly pointed out that the offending was largely spontaneous, save that it was pre-meditated, at least in the sense that you armed yourself with a knife, between the first component of the argument with your victim, and the second.  She argued that it was your response to conduct in the nature of provocation in that you were involved in an argument with someone that you believed was a total stranger, where you were unable to understand through your lack of knowledge of the English language, what was being said to you.   She pointed out, as is clearly the case, that your attack upon your victim involved one stab wound to the left arm, and that following that, you left immediately.  Clearly, it is not the prosecution case that the consequences of our action were unintended, although clearly they were reckless as you have pleaded guilty to the offence on the indictment. 

11It was submitted that your continued use of drugs, particularly heroin and ice, has been largely the result of your being at a low ebb emotionally, and becoming affected by the various sad events that have occurred in your life, including in more recent years, the death of two of your siblings in Vietnam.  You have, it seems, been able to complete a Naltrexone treatment program which enabled you to become drug-free.   But because of your somewhat depressed emotional state you reverted to your drug use, and no doubt, your drug use has made it difficult for you to comply with terms of Community Correction Orders and the like, in the past. 

12You pleaded guilty at an early opportunity.   I note that there was natural delay in that process because of the need to investigate the possibility of a mental impairment defence.   It is conceded by the prosecution that I should treat your plea of guilty as at an early plea.   I propose to give you full benefit for your plea of guilty.  It has resulted in benefits to the community, saving of cost, saving of the inconvenience of a trial to all of the witnesses and in particular, sparing the victim the necessity of attending court and giving evidence.  It is also an indicator of your acceptance of responsibility, willingness to facilitate the course of justice, and is consistent with remorse. 

13There has been a delay in the finalisation of this matter, by reason of the matters I have already referred to, and you have spent over a year in custody as a remand prisoner.  The consequence of that has been that you have had much more limited access to rehabilitative programs than if you had been a sentenced prisoner.  That is unfortunate for a person with the drug issues that you have, and it is a pity that you were not able to get full access to the rehabilitative programs that are available through the prison system for those serving sentences of imprisonment.  There is no doubt that for a person with limited language skills, you will have found serving a term of imprisonment or being on remand, harder than for somebody with a good command of the English language.  I am told that you are presently sharing a cell with somebody who speaks Vietnamese, which will have made your life a little more pleasant.   But there can be no guarantee that that will continue, having regard to the fact that once I have imposed sentence, you will be a convicted prisoner and serving a term of imprisonment and may be housed elsewhere. 

14I am required to express the denunciation of this court of conduct of this kind, to punish you adequately for your offending conduct, to deter you from further criminal offending, although I accept that your record does not suggest that you have a particular propensity towards violence.   Importantly, it is necessary that I impose a sentence that pays proper regard to deterring others from committing offences of this kind.  At the same time, I am required to ensure that I impose a sentence that is no more than is necessary to achieve the sentencing objectives, and that is proportionate to the nature of your offending, and that is not in the nature of a crushing sentence.  All of that also has to be balanced against the need to facilitate your rehabilitation as far as I reasonably can. 

15Your counsel submitted that taking all those factors into account, the sentencing objectives could be met by imposing a sentence that effectively was no more than the time you have already served in custody, along with a further Community Correction Order designed to provide you with supports within the community and rehabilitative programs as well as incorporating such further punishment by way of community work as might be necessary, in order to meet the other sentencing considerations.

16Your counsel pointed out that you have been disadvantaged by being a remand prisoner for that length of time, and that you were now in a position where, if you were to be sentenced to term of imprisonment with a non-parole period, your release on parole might be delayed, by the need for you to complete certain programs before obtaining parole, and that a fairer and more just outcome could be achieved by combining a term of imprisonment with a Community Correction Order and effectively, substituting the Community Correction Order for the kind of programs that might be made available to you once you obtain parole. 

17I saw some force in that argument, and for that reason, I ordered a Community Correction assessment report, which was completed this afternoon noting as the assessor has done, that the Community Correction Services records indicate that you have been the subject of four orders, all of which have been breached; Parole Order between 2006 and 2007 during which you further offended, in 2007 you received a Community Based Order which was breached, and between 2009 and 2010, you were again the subject of a Parole Order and you further offended, although the Parole Board did not cancel the Order.  It has been pointed out, also, as I have already acknowledged, that it is alleged that you contravened the Community Correction Order imposed in 2012, and you are currently listed to appear at the Sunshine Magistrates' Court on 9 October of this year, for those breach proceedings.

18During the assessment, you were asked about your non-compliance with Community Corrections at Correctional Services, and you attributed it to being three appointments.  You maintained that given an opportunity of another Community Correction Order that you are determined to remain drug-free in the community, and determined to comply with all Order requirements.  Notwithstanding that, the recommendation of the officer making the assessment felt unable to recommend a further Community Correction Order at this time.

19I, of course, are not bound to accept that recommendation.   I have considered whether, notwithstanding the report did not recommend you for a Community Correction Order that I should nevertheless impose one.  I am not going to do that and it seems to me that your history of failure to comply with previous orders, parole orders, and the assessment of Mr Cummins as to your prospects of rehabilitation, combine to persuade me that it would be an order, if I was to make it, that would set you up to fail.   By breaching a Community Correction Order, you make yourself liable for a period of imprisonment of up to three months for breaching the order, as well as being liable to be re-sentenced for this matter.  Also, I think that it imposes upon a Community Correction system which is already catering for persons who have better prospects of rehabilitation, and all-in-all I am not persuaded that I should make a Community Correction Order.  

20I do not rate your chances of rehabilitation as hopeless, but I think you are going to have to change your attitude to, and resolve to devote yourself to rehabilitation in higher measure than that presently assessed by Mr Cummins, and presently demonstrated by your lack of compliance with Community Correction Orders or parole orders. 

21I asked for some assistance in identifying current sentencing practice in relation to offences involving recklessly causing serious injury, and I was provided by Ms Hoban for the prosecution, with a decision of the Court of Appeal in the case of Ashdown v R [2011] VSCA 408 which has attached to it, or annexed to it, a survey or surveys through appendices (A) to (D) inclusive, of a number of other cases in which sentences have been imposed in this State and which have come before the Court of Appeal for offences of recklessly causing serious injury, many of whom involving the use of a knife, and many of them involving pleas of guilty.

22I have taken into account that it is impossible to divine a precise equivalent in any of the cases that have been referred to in those appendices, given, particularly, the paucity of information provided in the summaries that have been provided.  However, it does seem to me to give some idea of the range of sentences by which a current sentencing practice may be divined.  I have also had regard to some of the other cases to be found in the material on the court system. 

23Doing the best I can to meet all of the sentencing objectives and imposing the least sentence I think I reasonably can, having regard to the seriousness of the offending conduct, and noting that there were some aggravating features, including the fact that you did arm yourself with a knife, and were prepared to use it in circumstances where you were not threatened by any physical harm, it would seem, on the facts as presented to me. 

24I am now ready to impose sentence upon you.  Could you stand please. 

25Van Que Nguyen, for the offence of recklessly causing serious injury, I sentence you to imprisonment for 27 months and I convict you.  I order that you serve a period of 18 months before you become eligible for parole. 

26But for your plea of guilty, I would have sentenced you to imprisonment for 36 months, and ordered you to serve a period of 24 months before becoming eligible for parole. 

27I have taken into account, in determining that sentence, the fact that you served 14 days imprisonment, effectively cumulatively upon the sentence that I have imposed, and I declare 370 days of pre-sentence detention, not including today, as time to be reckoned as served on the sentence that I impose today, and deducted administratively from the period of the sentence that you will actually have to serve, and I order that that fact be noted in the records of the court, and I make the disposal order in the terms of the draft with which I have been provided. 

28Are there any other orders. 

29MS HOGAN:  No, Your Honour.

30MS CASEY:  No, Your Honour. 

31HIS HONOUR:  All right.  Thank you.  Those disposal orders are signed in triplicate.  Thank you. 

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