Director of Public Prosecutions v Nguyen

[2013] VCC 317

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION Revised
Not Restricted
Suitable for Publication

Case No. CR-12-01496

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN NGUYEN

---

JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Melbourne
DATE OF HEARING:	8 March 2013
DATE OF SENTENCE:	18 March 2013
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2013] VCC 317

REASONS FOR SENTENCE
---

Subject:Criminal law

Catchwords:             Sentence – armed robbery (one charge); theft (two charges); attempt to obtain property by deception (one charge); and possessing a drug of dependence (one charge)

Legislation Cited:     Crimes Act 1958; Drugs, Poisons and Controlled Substances Act 1981; Sentencing Act 1991

Cases Cited:R v Mills [1998] 4 VR 235; Azzopardi v R [2011] VSCA 372

Sentence:                 

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Ms S. Coombes	Office of Public Prosecutions
For the Accused	Ms P. Murphy	Victoria Legal Aid

HIS HONOUR:

1       John Nguyen, you have pleaded guilty to the following charges:

(a)Charge 1 – that you at Deer Park, Victoria, between 1 January 2012 and 13 April 2012, stole a black Armani wallet belonging to a person unknown.

(b)Charge 2 – that you at Deer Park, Victoria, on 12 April 2012, stole a white Nissan Navara utility, registration B117VV belonging to Brett Allen.

(c)Charge 3 – that you at Melbourne, Victoria, on 13 April 2012. robbed Xavier Rigney of certain property, namely a brown Oroton satchel, an Apple iPad 2, BlackBerry PlayBook tablet, BlackBerry Touch mobile phone, black Oroton wallet, bottle of Hugo Boss aftershave, money and various identification cards, and at the time had with you an offensive weapon, namely a meat cleaver.

(d)Charge 4 – that you at Camberwell, Victoria, on 13 April 2012, did attempt to dishonestly obtain from Kmart Australia Limited goods to the value of $77.75 with the intention of permanently depriving the said Kmart Australia Limited of the said goods, namely by falsely representing that all details contained on the American Express credit card were true and correct.

(e)Charge 5 – that you at Camberwell, Victoria, on 13 April 2012, possessed a small quantity of a drug of dependence, namely Cannabis L.

2 Charges 1 and 2, relating to theft, are contrary to s.74(1) of the Crimes Act 1958 and carry a maximum penalty of 10 years' imprisonment in relation to each charge.

3 Charge 3, relating to armed robbery, is contrary to s.75A of the Crimes Act 1958 and carries a maximum penalty of 25 years' imprisonment.

4 Charge 4, relating to obtaining property by deception, is contrary to ss.81 and 321M of the Crimes Act 1958 and carries a maximum penalty of 5 years' imprisonment.

5 Charge 5, relating to possessing a drug of dependence, is contrary to s.73 of the Drugs, Poisons and Controlled Substances Act 1981 and carries a maximum penalty of five penalty units.

6       The prosecution has prepared a written summary of the circumstances leading up to and surrounding the offending.  Such summary has been marked as an exhibit and has been accepted by you and your counsel as an appropriate representation of the offending.  In particular, it is agreed:

(a)On Friday, 13 April 2012, at approximately 12.25 am, the victim, Xavier Rigney, was walking north along Elizabeth Street in the Melbourne CBD, and after crossing Little Bourke Street he felt someone pulling the satchel that he was carrying.  The victim turned around and saw you and describes you wearing a black jumper with a hood and baggy pants.

You yelled at the victim "Give me your bag or I’m going to stab you".  At the time you had a knife in your hand, and the victim described it as being approximately 20–30 centimetres in length.  When the victim saw the knife he let go of his satchel, and you took it and ran away.

The satchel taken by you contained various items including a BlackBerry PlayBook, an Apple iPad 2, a BlackBerry mobile phone, an umbrella, a bottle of fragrance, a pair of sunglasses, and the wallet of the victim, which contained $110 and his identification.

(b)At approximately 7.45 am on 13 April 2012, police attended 3/65 Mailey Street, Sunshine, and found you asleep in the residence.  At that time police observed a meat cleaver on the table near you, together with a Melbourne Airport identification card bearing the name of Xavier Rigney, together with other items stolen from Rigney.

You were asked to empty your pockets, which revealed a black Armani wallet, which had a price label attached.  In early 2012, you had removed such wallet from an unlocked vehicle in Deer Park.

(c)You informed the police that you had driven to the city in a white Nissan utility, and police enquires revealed that it had a New South Wales registration plate and had been listed as stolen.

(d)You were arrested and conveyed to the Melbourne West Police Station where you were interviewed, and some of your comments were: "I just went up to him and grabbed his bag.  When he refused to give it up, I pulled out a knife and he gave it up and I ran back to the car."

(e)You told the police that the knife used was a butcher knife like a meat cleaver.

(f)You informed the police that you committed the armed robbery because you had no option, and stated "I had to pay someone some money by a certain time or things could happen to my family."

(g)After committing the armed robbery, you ran into a car that was driven by a friend and you knew that car to be stolen.

(h)Before committing the armed robbery, you had attended the Crown Casino, and stated "I was walking around, just sussing out everyone, everything.  Trying to find a way to make, you know, money."

(i)You gave the BlackBerry tablet that you stole to a friend.

(j)You stole the wallet found in a pocket of the car in Deer Park that had been left unlocked some weeks ago.

(k)Your reason for committing the armed robbery was "'cause I needed money 'cause I owed money because of drugs."

(l)In relation to the vehicle, you stated "I didn’t steal it.  I was there when it was stolen."

7       When the record of interview was completed, you were transported to the Melbourne Custody Centre and on being searched by staff at that centre, there was located a small bag containing cannabis in your front right pocket.

8       On 24 April 2012, police attended the Kmart store located in Camberwell in relation to an attempted use of the victim’s credit card and police obtained CCTV footage from the store which depicted you attending the store carrying a satchel that matched the description of the victim’s satchel.  The footage depicted you using a self-checkout machine at the store and scanning a number of items.  It then showed you leaving the store without those items. The transaction which you attempted to complete at the Kmart store was in the amount of $77.75.

9       The prosecution also tendered a victim impact statement completed by Xavier Rigney, where, in answer to whether he suffered emotional trauma as a result of your offending, and other relevant information, he stated:

"I am still too scared to go into the city at night on my own. I have to be collected/picked up. I am just too scared to go anywhere after dark on my own."

10      At the time of the offending you were 22 years of age and were initially remanded from 13 April 2012 to 26 June 2012 (a period of 75 days) and thereafter bailed; but did not appear at the plea hearing of this matter on 17 October 2012.  A warrant was issued for your arrest and, after being apprehended, you have been in remand since 17 December 2012 to date (a period of 81 days).

11      Before me, you gave sworn evidence and were cross-examined by counsel for the prosecution. In particular you gave the following evidence:

·    You commenced using illicit drugs at the age of 14 or 15, at which time you used cannabis, and by the age of 18 you were using heroin. You commenced to use "ice" to assist getting off heroin.

·    You had been using ice at the time of the offence.

·    Your parents own a bakery in Sunshine and you have two younger sisters aged 13 and 8.

·    You attended school to Year 12, after which you obtained a position at Victoria University to pursue a TAFE-like course in "Financial Services". You left that course and then worked at an Aldi supermarket for a period of time.

·    Prior to the offending, you had established a relationship with Lena Tran, from which a daughter was born in March 2011.

·    In 2011, you told the court you were becoming out of control through the use of drugs and gambling, which initially commenced as a matter of recreational activity but later became, what you perceived, a source of money, hopefully, to buy/purchase illicit drugs.

·    Leading up to the armed robbery, you were having great difficulty controlling your drug habit and gambling and perceived that you needed to obtain money quickly in order to pay off your drug debts. You did have the perception that people in your family may have been hurt.

·    You feel guilty about the injury you caused to the victim and also the distress that you have caused your family as a result of your offending and drug habit.

·    You intend to send a letter to the victim and have confirmed that such a course is appropriate with your counsel. The letter reads:

"I am sorry for what I have done and put you through. I was on drugs and had many problems. That isn’t excuse for my action. I should not done what I did. I was wrong. I know that now. Being locked up, I have been able to get off drugs and I’ve had time to think everything through and I truly feel guilty of what I have done. You didn’t deserve to be put through that situation. No one does. If I could take anything back I would take that back but I can’t. So I hope this letter of my apology help you move on and understand that I was under bad influence and I really do wish I never done what I did. I hope I didn’t put you through too much trauma. Sincerely, John Nguyen."

·    You blame yourself for getting into the position you were in at the time of the offending.

·    When you were initially released on bail your partner, Lena Tran, left you and took your daughter with her, explaining that she "couldn’t take it any more" in relation to your debts and drug use.

·    You gave sworn evidence that you failed to appear on 7 October 2012 because you did not want to go to prison before re‑establishing a relationship with your daughter.

·    Since being arrested and remanded again in December 2012, your mother has established a relationship with your former partner and they see your daughter.  You believe there is some possibility of forming a relationship again with your daughter on your release.  In particular, you gave evidence that you now realise if your life does not change you will not see your daughter again.

·    You were of the view that your drug use was for depression and a way to avoid problems but now realise that the drug use itself is the problem.  In particular, you have followed all avenues available to you in the prison system to overcome your drug problem and you continue to study in prison.  In this respect, there were tendered various certificates from the Kangan Institute certifying that you completed and were assessed as competent in courses involving preparation and serving of espresso coffee, participation in workplace safety arrangements and workplace hygiene procedures.

·    You are also addressing your gambling problem and are on a waiting list to see Gamblers Help.  Your mother has paid off some of your debts and you informed the court that there are no debts outstanding in relation to drug matters or any other substantial debt.

·    You have strong family support and receive calls from your family every day and indeed plans have been made for you to enter the family business on release from prison.

12      Your counsel submitted that the following matters are of importance when considering an appropriate sentence for your offending:

(a)You have no history of prior convictions for any offence (although I was informed you are waiting to be summonsed to the Magistrates' Court for determination of summary matters involving drug use in the past).

(b)Your genuine remorse and regret and, in particular, your feelings of guilt in relation to the circumstances surrounding the armed robbery.

(c)Your potential for rehabilitation and indeed your own efforts at rehabilitation through various courses that you have undergone in prison, both in relation to work training and drug/gambling abuse.

(d)Your pleas of guilty, which were at the earliest possible time, and your general cooperation with the authorities.

13      Counsel for the prosecution has submitted that it is relevant to take into account the "seriousness" of the armed robbery, involving a meat-cleaver-type knife.  Further, the victim was a "soft target" and has suffered significant consequences of experiencing the armed robbery.  Furthermore, there was an element of planning in relation to the armed robbery, and such offence should be denounced by the community and punishment reflect both general and specific deterrence.  The prosecution accepts that your youthfulness does give rise to a real prospect of rehabilitation.

14      In general terms, I accept the submissions made on your behalf by your counsel. In particular, I refer to R v Mills [1998] 4 VR 235 and also Azzopardi v R [2011] VSCA 372 and in particular paragraphs 34-36 wherein Redlich JA, delivering the judgment of the court, stated:

"There are a number of considerations which underlie the general primacy of an offender’s youth as a sentencing consideration. Firstly, young offenders being immature are therefore 'more prone to ill-considered or rash decisions'. They 'may lack the degree of insight, judgment and self-control that is possessed by an adult'. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct.

Secondly, courts 'recognise the potential for young offenders to be redeemed and rehabilitated'. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders, 'is one of the great objectives of the criminal law'. The added emphasis for the purposes of sentencing on realisation of a young offender’s potential to be rehabilitated is further justified because of the community’s interest in such rehabilitation, not only at a theoretical level, but because the effective rehabilitation of a young offender protects the community from further offending.

Thirdly, courts sentencing young offenders are cognisant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender’s prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed. Imprisonment for any substantial period carries with it the recognised risk that anti-social tendencies may be exacerbated. The likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community."

15      I consider that the foregoing considerations, stated in Azzopardi, to be significant in your circumstances, bearing in mind your age and your history of no prior convictions for any offence.

16      Furthermore, I am persuaded that you are making a genuine effort to overcome your drug and gambling habits, and have a real appreciation that if such problems are not overcome, any relationship with your daughter will be destroyed.

17      However, the offence of armed robbery is a particularly serious offence and must be denunciated.  The consequences of such offences are made plain when one reads the contents of the victim impact statement. I do accept that all the offending was brought about directly, or indirectly, by your drug use.

18      Accordingly, I sentence you as follows:

(a)      On Charges 1, 2, 3 and 4; you are convicted and sentenced to a period of imprisonment of 24 months with a non-parole period of 9 months.

(b) In relation to Charge 2; I also order pursuant to s.89(4) of the Sentencing Act that your driver’s licence be suspended for a period of six months effective from 18 June 2013.

(c)       In relation to Charge 5; you are convicted and fined an aggregate sum of $200.

(d) I order that you provide a saliva sample for DNA purposes under s.464ZF of the Crimes Act on the basis of the seriousness of the offences and the social utility of such a database.

(e)      I order that you make restitution to Xavier Rigney located at the address where you were arrested.

(f)        I order that there be disposal of the various items seized by police.

(g)      I reckon you have served 166 days of pre-sentence detention as time already served of this sentence.

(h) Save for your plea of guilty, I declare pursuant to s.6AAA of the Sentencing Act 1991 (Vic) I would have imposed a sentence of

30 months with a minimum of 15 months to serve before being eligible for parole.

- - -