Director of Public Prosecutions v Nguyen
[2013] VCC 1396
•16 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00758
CR-12-00759
CR-12-00760
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HANH NGUYEN, PAUL TRAN and VU DANG TRAN |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 16 September 2013 | |
CASE MAY BE CITED AS: | DPP v Nguyen & Ors | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1396 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms C. Lee | Office of Public Prosecutions |
| For the Accused Nguyen and P Tran For the Accused V. Tran | Mr C. Nikakis Mr B. Johnston |
HIS HONOUR:
1 You can all stay seated. Vu Dang Tran, Nok Hanh Nguyen and Paul Tran, you have all pleaded guilty to one charge of affray. That crime carries a maximum penalty of five years' imprisonment. The offending occurred on New Year' Day in 2010. You are 40, 38 and 26 years of age respectively. You, Vu Dang Tran, have no prior convictions or findings of guilt. You, Paul Tran, and Nok Hanh Nguyen, do have prior matters, but they are either of antiquity or of no relevance. Accordingly, I treat each of you as having no prior convictions in any way pertinent to this particular matter.
2 You pleaded guilty to a settled indictment. There is a long history involved in the matter, which is understandable when one hears the circumstances of the offending. I regard a situation such as this, where for something in the order of three years you stood charged with intentionally causing serious injury, that your plea to resolve the matter should be regarded as being at an early reasonable opportunity. I accept also in a situation such as this, with people with effectively no prior convictions, that there is an appropriate element of remorse. These trials can be difficult to contain when they run, and you must also get the utilitarian benefit of that plea of guilty. It has been resolved, if I may say so, in a very sensible way by all parties.
3 The delay is of real significant; that is a long delay. There is no blame to be attributed to anybody, but authority is clear that justice must be done as soon as reasonably possible. If unavoidable situations such as this occur, then there must be an observable moderation of the penalty that is imposed.
4 The circumstances of the offending are that on New Year's Day in 2010, you three became involved in a violent altercation with one Mr Kim, and one Ani Nguyen, who was then 16 years of age. There had been apparently a lunch in Victoria Street. There had been some six months earlier a dispute between you, Vu, and Mr Kim. I note with some interest, I have not been told the nature of all that. As is often the case in these circumstances, I doubt that anyone other than you lot really knows. Be that as it may, Mr Kim notice you Hanh Nguyen looking at him. You recognised him. You were in a shop and came out with your two co-accused. Over the next minute and a half or so each of you was involved in weapons, being a metal stick, a piece of wood, you, Mr Vu, initially threw a beer bottle. I will deal with that further when I come to talk to the injuries in a moment. It was a display of violence which must have been terrifying to those who were watching it. Ani Nguyen fell to the ground unconscious, having been hit over the head. Mr Kim received broken bones and required surgery to his arm. The two male members of your group received stab wounds involving lung damage. How that occurred is somewhat problematical, but the odds are very high, I would have thought, that they were wounds inflicted by at least one of the ultimate complainants.
5 The matter was captured to a certain extent on CCTV, and there has been no reason to show me that. As I say, there is no real rhyme or reason put forward as to how this all came about or what it is about. What is of significance is though that the three of you have no priors for violence, and certainly, I am told in respect of you, Mr Vu, nothing subsequent.
6 This is a serious example of an affray. You are not to be punished for other crimes, but as a consequence of the affray, and this is what people were watching, which is basically the reason you are sentenced, Ani Nguyen received a skull fracture and traumatic brain injury. Clearly he was taken to hospital in a bad way. Mr Kim received a fracture to the left ulna which was operated on, and also a scalp laceration.
7 You two received, that is apart from the lady, received stab wounds. Each, as I said, involved damage to the lung and each could be fairly described as a serious injury. The seriousness of the injuries that the four of you received is an indication as to the ferocity, if I could put it that way, of the fight.
8 I have no real material as to ongoing sequelae and because I am not sentencing for any injury charge, I do not need to know it. The fact remains that it is a serious example of affray; people were seriously hurt and the law cannot condone such conduct.
9 There is a victim impact statement from the man who received the head injury, and I have read that and take it into account in this particular situation. Obviously it requires general and specific deterrence, and it is also a circumstance that requires, in my view, a proper approach towards denunciation.
10 Had it been a matter which came on for trial much earlier than it ultimately did, with injuries such as these in the event of conviction for intentionally causing serious injury, I have no doubt that your lawyers would have explained to you that you would have done years for this. However, I have to be careful that that is not what I am sentencing you for. That is if you had been convicted, of course.
11 It was conceded by the Crown that all sentencing options were open. My initial thought would have been after a delay of three and a half or so years that a community corrections order would be appropriate, but for reasons I have explained very, very briefly, I think there is no point in doing that. None of you have relevant prior convictions. Each of you is gainfully and fully employed. Each of you has a stable home environment to go back to, and I think, and from what I have been told from the Bar table, the risk of any of you reoffending would be slight, and I have no doubt that in that three and a half years rehabilitation has certainly been put into effect.
12 A CCO would create real difficulties for each of you in terms of your employment and I just do not think that it is necessarily here appropriate. The consequence of the affray and the severity of it justify in any event, in my view, a custodial sentence, albeit one that can be wholly suspended.
13 Looking at the personal circumstances of each of you, again, that can be done in short compass. You, Vu, and you, Ms Nguyen, are refugees from Vietnam. You are partners, and have been now for some four years. You, Ms Nguyen, have a total of six children, two of whom are yours, Mr Vu. You did an apprenticeship in jewellery, after having completed Year 12 at Footscray High School. You have always been employed, indeed were with the one company for some 13 years. Some time ago you ceased working with jewellery which you had your qualifications in and began working at a restaurant. You have now been there for something approaching four years. You work from 11 in the morning till 11 at night seven days a week.
14 You, Ms Nguyen, also work at that restaurant on a nightly basis, as well as looking after, certainly the youngest of your six children. I have no doubt, as was pointed out by Mr Nikakis, that your day is a full one.
15 You, Mr Tran, are working as a carpenter and are close to finishing a carpentry apprenticeship. You, on leaving school, endeavoured to work in IT for a period of time but found that you were better off working with your hands and you worked for a company known as Koa which I understand to be owned by a cousin.
16 I feel comfortable that each of you has learned a very significant lesson from this, and the fact that it has dragged on so long must have been a continual source of anxiety as to what the ultimate consequences would be. It appears to me on the information that I have been given, Mr Tran and Ms Nguyen, that you have a family who are being well educated and who should grow up to be gainful and decent citizens. I see no reason why that should be put in any jeopardy by the incarceration of either of you.
17 You, Mr Tran, are the younger brother of Mr Vu. What this has got to do with you I have got absolutely no idea, but you are in the same position, that you do work, you can continue to work, and you should be a useful and gainfully employed citizen.
18 In all those circumstances, while I do consider that a custodial sentence is an appropriate disposition in all these circumstances, I think in the interests of justice it can be wholly suspended.
19 Accordingly, and because I see no reason to distinguish between the three of you, because I do not know whose fight this really was, each of you on the charge of affray are sentenced to be imprisoned for a period of nine months, and I direct that that nine months be wholly suspended for a period of 15 months.
20 It is a difficult situation so far as s.6AAA is concerned, because had there been a trial, I have no idea what you might have been convicted of. I simply say this, that had you fought this out - I put this detail because I just get sick of doing these 6AAAs, they do not make sense - had you fought this out and been acquitted of intentionally cause serious injury and convicted of affray, you would have received a sentence of 12 months, and you would have had to do some of it. I cannot be more clear than that, I do not think, in a situation like this.
21 All right. I have made all the disposal orders, Ms Lee. Are there any other orders I need to make?
22 MS LEE: No, Your Honour.
23 HIS HONOUR: If the three of you could stand up for me, please. All right. I do not know what this was all about. The fact of the matter remains that at the end of the day the three of you were there with weapons in your hands, significant weapons, and there is a sixteen-year-old lying on the footpath who could have died. Now, I hope that the three of you just understand what the consequences of that sort of conduct can be. All right? If he had died, have a think about how long you would be doing. Years and years. You have been put on a suspended sentence of nine months for a period of 15 months. That means that if you commit an offence in the next 15 months that is punishable by imprisonment, and that can include shoplifting, then you are brought back before me, and you get re-sentenced.
24 If any of you are brought back before me for violence, even approaching this level, you will do the lot. Do we clearly understand each other? All right. Thanks for that, Ms Lee. Thanks, gentlemen.
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