Director of Public Prosecutions v Nguyen

[2014] VCC 1308

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01021

DIRECTOR OF PUBLIC PROSECUTIONS

v

RICHARD HUNG NGUYEN

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	14 August 2014
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2014] VCC 1308

REASONS FOR SENTENCE
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr L. Exell
For the Accused	Mr D. Sala

HIS HONOUR:

1Richard Hung Nguyen, you have pleaded guilty to one count of arson and one count of intentionally damaging property.

2A summary of the prosecution opening may not in fact have been filed but it can be tendered now as Exhibit C.  It will be retained on the court file for future reference.

3Briefly stated when you were 18 years of age, in company of a number of others towards the end of 2012, more precisely on 22 October of that year, you went to the school that you were either at or had just left prior to the conclusion formally of Year 12, but having completed the exams, you participated in what was said to be by way of explanation either 'muck up' activities or some sort of punishing expedition in order to damage the school.  This included a significant amount of graffiting and the setting of a fire which caused well over $130,000 worth of damage.  The graffiti was offensive and childish and caused costs of $2800 to remove.

4You were disguised wearing a mask which you later discarded.  The damage caused by the fire can be clearly seen in the photographs which were tendered as Exhibit A, two booklets of photos, and a warrant which was later executed on your premises revealed certain conversations which were by computer, with others involved in it and leading up to the offences, which was indicative of how well it was planned and premeditated.

5The fire caused a significant disruption and cost to the school.  Potential for damage and injury was high, as it always is with a fire.  In doing so you disregarded the safety of others, the integrity of the school as a safe place for children, teachers, and for an environment of learning.  When the police interviewed you, you made no comment.  You did not cooperate with the police in that sense.

6You were not charged until December of 2013 and you then entered at your earliest opportunity a plea of guilty once the matter, having been listed in the Magistrates' Court, was then taken onto the committal stream because of the amounts involved.

7Such offences are not only dangerous in themselves and for the community but such offences as performed against a school are fundamentally to be denounced by the court as destructive of important fundamental institutions in our community where children are entitled to feel safe.

8No doubt the costs of repairs and the disruption caused to the school at a crucial time of the year was significant.  Your efforts in this sense were particularly stupid.  The court must denounce such behaviour whenever it occurs and it must send a message to anyone who decides to be involved in such criminality that they will be found and that they will be punished.

9I take your plea into account and it will result in a discount in your sentence.  Without a plea I would have had no hesitation in sending you to gaol irrespective of how old you were.  You are a youthful offender and that by law means that I must consider your rehabilitation as being primary in these circumstances.  The court can only hope that by extending some leniency you will continue to take the opportunity to plan and work for a good life ahead rather than one where you are continuously coming back to court and going to gaol on a regular basis.  If that is what you want your life to be then there will always be courts, judges, magistrates and police officers ready to send you to gaol if you behave in such stupid and criminal ways.  If that is how you want to spend the next 20 or 30 years of your life, wasted in that way, that is your choice.

10Certainly the taking of amphetamines from such a young age in the company of other fools is exactly what is required for you to make those choices.  Amphetamines are a very dangerous drug that deals very badly with your health and your brain.  If you are intent on frying it from time to time well that is your own business, there will always be a gaol cell ready just for you Mr Nguyen if you choose to do that in the future.

11I have to take this youthfulness into account and therefore my disposition will not be one of gaol, but I want you to understand very well that even though I am giving you an opportunity to avoid gaol this is not a 'get out of jail free card' because the only option that you have left the court is to impose very heavy obligations on you, and I will explain them to you in a minute.

12I have also taken into account the principle of parity in your case.  Parity is an important principle in sentencing because where a number of people are involved there should not be a sense of grievance, one from the other, about one person having been punished more than another, or less for that matter, and I know that there are some differences between you and your co-offenders who have already been dealt with.

13I must take the principle of parity into account and so, for example, the hours of work which at least one of them has been required to undertake will be the same as yours, that is, despite the fact that you have a prior for a rather unpleasant assault.  I know that it stemmed from insults being given to a member of your family, which are in no circumstances ever acceptable, at the same time it is never acceptable to become a vigilante in that way.

14People of your age always seem to think that you are going to get away with everything and invariably you do not.  One way or another things catch up with you, usually because you are in the company of other stupid people, so maybe get rid of the stupid people that you hang around with or did in the past. That would be a good idea.

15I take into consideration the delay in this case even though the delay cannot be said to have been extraordinary or necessarily unwarranted because of the type of investigation, the people involved and the sort of scientific testing which was required.  It is true that you were not charged until a year later however most of that delay which involves an investigation is usually due to the very fact that you committed an offence.

16It is the other aspect of delay which I particularly take into consideration and that is the effect that that delay had on you and what you did in that time that gives me some indication of what sort of person you are, and despite the fact that it probably was not off your own bat you have been very fortunate for one, to have a supportive family, which is very important, and two, you were lucky enough to strike an employer who instead of sending you on your way actually took the time to help you out.  They must have seen something useful in you and useful to spend their energies on in order to help you to begin your rehabilitation.

17That is also a very significant fact – that they were bothered to contact an institution in order for you to go into residential rehab, and then have you back at work - offer you work - and an opportunity for training for involvement in productive activity is a very important factor which I take into account.  I have taken their letters of reference into account.

18I have taken your parents' letters of reference into account, obviously, and I have read the report from the youth supported advocacy service in Glen Iris which ran the particular program which you were part of.  That is probably not the end of your rehabilitation because once drug users have tasted drugs and something goes wrong more often than not they simply believe that going back to drugs is the answer, so you need a measure of supervision and, if required, some ongoing assessment of your potential for drug use.

19It is very important that you have your family here in court this morning and that they have been shamed by your behaviour, and I hope that your parents at least communicated that shame to you because it is not their shame, it is your shame, and I hope in some way in the next couple of years you will be able to make it up to them.  As most other families who have come from Vietnam who have had a difficult trek to this country they have contributed to this community lawfully and they deserve better from people like you.  In any event you have got the opportunity for at least rewarding them with some proper behaviour for the rest of your life.

20I appreciate that you are currently working long hours but this is what I mean by a Community Corrections Order not being a get out of gaol free card.  You have been assessed as being suitable for a Community Corrections Order and I am of the view that is the best outcome, both for you and for the community in the long term, because if you can be helped to stay off the drugs, to continue to work, hopefully to finish your apprenticeship in either being an electrician or even pursuing another career, whether that is in tattooing or whatever it is at, it has got to be better than going in and out of gaol.

21So you will get that opportunity but there is a toll to pay and that cost is the fact that there is going to be an order against you for a substantial amount of money which you will be paying for a substantial period of time, and you will be required to do a substantial amount of community work for nothing, that is part of the punishment.  You will also have to attend from time to time at appointments to meet with the correctional authorities.

22I hope you see this as a chance to prove yourself as an opportunity to avoid going to gaol because it imposes on you significant obligations Mr Nguyen.  If you do not obey those obligations, if you do not do your absolute best to fulfil the conditions of this order you will be breached on this Community Corrections Order and you will be brought back before me.  You will then be charged with breaching your order and I will sentence you for breaching the order and then I will re-sentence you for the arson and for the damage, do you understand?  I hope so.

23You are going to sign a document which says all of those things.  You are going to be on this order for two years.  If you do not finish the working hours at that time it will be up to the Correctional Services to arrange either to extend or to vary or do whatever in relation to that order.  I am also ordering that you undergo any required assessment and treatment, including testing for drug use, and you participate as seen fit by the Correctional Services in offending behaviour programs.

24You will be under supervision and the office supervising this order will be the one at 10 Foundry Road Sunshine where you will be required to report before 4 pm next Monday 18 August.  You will also be under supervision and you will be required to perform 400 hours of community work.  I will sign the disposal order.

25HIS HONOUR:   Is there a formal compensation order?

26MR EXELL:  One hundred and thirty three thousand - one hundred and thirty three and thirteen - $133,013.76.

27HIS HONOUR:  I make an order for that amount against Mr Nguyen and in favour of - who is that in favour of?

28MR EXELL:  That's in favour of ‑ ‑ ‑ 

29HIS HONOUR:  Who's that, the State?

30MR EXELL:  Keilor Downs Secondary College.

31HIS HONOUR:  Keilor Downs Secondary College.  I have already said it but I will again announce that but for Mr Nguyen's plea I would have sentenced him to eight months' imprisonment.  I have signed the Community Corrections Order and I'll make sure that a copy is handed to you Mr Sala ‑ ‑ ‑ 

32MR SALA:  Thank you Your Honour.