Director of Public Prosecutions v Nguyen
[2023] VCC 1998
•26 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBROURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR-23-00273 (Nguyen)
CR-23-00276 (Moeai)
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PHUONG NGUYEN |
| and ALOESE MOEAI |
---
JUDGE: | HER HONOUR JUDGE CANNON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 September 2023 |
DATE OF SENTENCE: | 26 October 2023 |
CASE MAY BE CITED AS: | DPP v Nguyen & Anor |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1998 |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: SENTENCE – PLEAS OF GUILTY - Co-offenders with different roles in offending but providing armed support to one another – Isolated and menaced unarmed victim with lethal weapons for prolonged period – Victim slashed (Nguyen) and punched (both offenders) – Sustained long-term scarring - Parity – Nguyen more serious role overall – Moeai attended to assist (active role in Armed robbery)
NGUYEN – Intentionally cause injury – Armed robbery – False imprisonment – Use false document – Negligently deal with proceeds of crime – Make threat to kill – Possess drug of dependence (2) – Summary offence possess ammunition with permit or licence – Substantial criminal history – No previous violent offending – Escalation in offending History of drug abuse – Dysfunctional and deprived childhood and background.
MOEAI - Intentionally cause injury – Armed robbery – False imprisonment – Possess drug of dependence - Summary offences commit indictable offence whilst on bail and possess ammunition – No prior convictions – history of drug abuse – Expert opinion – Mental illness not present – Offending related to drug abuse and association with drug-abusing peers.
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited: Bugmy v The Queen [2013] HCA 37
Sentence:NGUYEN – Convicted and sentenced to Total Effective Sentence of 4 years and 6 months’ imprisonment with a non-parole period of 34months’ imprisonment – Fine $500 (Summary Charge 19) - Pre-sentence of 429 days’ imprisonment declared as having already been served as part of the sentence imposed – s.6AAA Sentencing Act 1991 (Vic) declaration – Ancillary order Forfeiture and Disposal
MOEAI - Convicted and sentenced to Total Effective Sentence of 3 years and 6 months’ imprisonment with a non-parole period of 14 months’ imprisonment – Fine $500 (Summary Charge 20) - Pre-sentence of 215 days’ imprisonment declared as having already been served as part of the sentence imposed – s.6AAA Sentencing Act 1991 (Vic) declaration – Ancillary order Disposal.
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms N. Deltondo | Solicitor for Public Prosecutions |
For the Accused Nguyen | Mr J. Portelli | GL Lawyers |
For the Accused Moeai | Ms N. Simpson | SPA Lawyers |
HER HONOUR:1.Phoung Nguyen and Aloese Moeai, each of you has pleaded guilty to one charge of intentionally causing injury, one charge of armed robbery and one charge of false imprisonment. Additionally you, Phuong Nguyen, have pleaded guilty to one charge of using a false document, one charge of negligently dealing with proceeds of crime, one charge of making threat to kill and two charges of possession of a drug of dependence. You have also pleaded guilty to the summary charge of possessing ammunition without a licence or permit.
2.You Aloese Moeai, have also pleaded guilty to a further charge on the indictment being a charge of possession of a drug of dependence and to a summary charge of committing an indictable offence whilst on bail and also a summary charge of possessing ammunition.
3.The maximum penalties are as follows. Armed robbery has a maximum penalty of 25 years’ imprisonment. Using a false document, causing injury intentionally and false imprisonment each have maximum penalties of 10 years’ imprisonment. Make threat to kill has a maximum penalty of 15 years’ imprisonment. Negligently dealing with proceeds of crime has a maximum penalty of five years’ imprisonment. Possession of a drug of dependence has a maximum penalty of three months’ imprisonment, as it is accepted by the Crown that you were in possession of the relevant drugs for a purpose not relating to trafficking. Possession of cartridge ammunition has a maximum penalty of 40 penalty units and committing an indictable offence whilst on bail has a maximum penalty of three months’ imprisonment.
4.In sentencing each of you, I must have regard to the maximum penalties which apply to the offences that you have committed as these reflect the seriousness with which parliament regards the offences. Also armed robbery is a category 2 offence under the Sentencing Act 1991 which in each of your cases requires a term of imprisonment to be imposed.
5.Ms Deltondo for the prosecution opened the matter in accordance with the summary of prosecution opening dated 8 August 2023. By way of overview, I was told that on 13 June 2022 the victim, Rocky Novello, was assaulted and slashed with a knife at an apartment in Lygon Street, Carlton. You both attended the apartment where you confronted the victim and accused him of robbing an ex-girlfriend of yours, Mr Nguyen. You punched the victim and you, Mr Nguyen, slashed his face with a knife.
6.You, Mr Moeai, pointed a gun to the victim's face on at least one occasion and you each proceeded to rob him of his phone, demanded that he give you money and find a particular ring that you were apparently looking for. You told him that he would not leave the apartment alive. He was escorted from the apartment by each of you where he was able to escape to another level and approached a friend who contacted the police.
7.At the time of the offending you, Mr Nguyen, were 40 years old and you are now 41. You Mr Moeai, were 29 years old and you are now 30. The victim, Rocky Novella, was 29 at the time of the offending and he is now 30.
8.On 10 June 2022, Rocky Novella went to the home of his friend Tony Russo at an apartment in Lygon Street, Carlton. When he arrived Russo and his housemate, Beau Sheil and another female known as Shelley were present. Mr Novello remained at the house for the next two nights.
9.On 12 June 2022 you, Phuong Nguyen, were captured on CCTV arriving at the apartment block where the victim was residing at that time. At 7.10pm you were visible on CCTV on level 3 of the building. Shortly after this, you were captured on CCTV on the ground floor of an internal stairwell at the south end of the building. At 7.15pm you, Mr Nguyen, opened the external door of the stairwell and allowed Mr Moeai to enter the building. You, Mr Moeai, were seen wearing a black puffer jacket with a particular motif on it, black tracksuit pants and a red cap with a particular motif on it.
10.Shortly after 7.15pm each of you arrived at Mr Russo's apartment. At this time the victim and Mr Russo Sheil and Shelley were present. One of them opened the door to you and allowed you into the apartment. You,
Mr Nguyen, asked if Mr Novello was there. Mr Novello overheard this and was surprised as he was not aware that you would attend Russo's address.
Mr Novello recognised you, Mr Nguyen, as you had associated with each other in the past.11.You, Mr Moeai, were carrying a sawn-off shotgun over your shoulder. To witnesses it looked like a single barrel shotgun with a hammer at the back and was arms length with black tape around the stock. The prosecution are not able to say whether the weapon was loaded at that time. Each of you approached the victim. You, Mr Nguyen, confronted Mr Novello and accused him of robbing your ex-girlfriend. You asked him why he robbed her and who else was involved. Mr Novello denied robbing her and told you he had no idea what you were talking about.
12.Whilst the victim was in the kitchen area each of you punched him to the head numerous times, giving rise in part to Charge 2, causing injury intentionally. Whilst this occurred Russo and Sheils stayed in the lounge room. You,
Mr Moeai, took the gun from your shoulder and pointed it at
Mr Novello. Both of you took the victim's Samsung phone which had a pink backing on it, taking it from the victim's pocket. This gives rise to Charge 3, armed robbery.13.You, Mr Nguyen, pulled a knife from your waist. You told Mr Novello that the knife had a Japanese steel blade. While the knife was in your hand
Mr Novello was told to, 'Hand over the stuff.' This conduct is part of the conduct relied on in respect of the armed robbery, Charge 3.14.Both of you also took the victim’s Tommy Hilfiger sports bag containing clothes, an Acer laptop and the victim's wallet containing cash. You,
Mr Moeai, pointed the front of the shotgun towards the victim. It was apparent from the victim's evidence at the committal hearing that on at least one of these occasions you, Mr Moeai, were pointing the gun at his face.15.Whilst in the hallway you, Mr Nguyen, slashed Mr Novello with the knife twice to his face. This is part of the conduct giving rise to Charge 2, causing injury intentionally, which is a charge that has been admitted by both of you. You,
Mr Nguyen, cut the victim's face at the top of his nose near his eye and to the left cheek. The victim put his hand to his face and noticed he was bleeding heavily. You, Mr Nguyen, then took photos of the victim's face with your phone at 7.47pm.16.At 8.07pm you, Mr Nguyen, sent the photo of Mr Novello's face with the injuries on it to a contact in your phone named Son Dylz, D-y-l-z. You,
Mr Nguyen, then told the victim that he was not going to leave the house alive, giving rise in part to Charge 5, make threat to kill, which is a rolled-up charge alleged against you alone, Mr Nguyen. At some point in time, you also told
Mr Moeai to click the hammer back on the shotgun and you forced the victim to move into the bedroom.17.The prosecution was not able to say whether you, Mr Moeai, complied with
Mr Nguyen's instruction in relation to the clicking of the hammer of the gun, so I do not sentence on the basis that this occurred. You, Mr Nguyen, demanded money and told the victim that you had heard that his ex-partner,
Suprapon Veniaparin, had money and would pay the victim money via Pay ID. Each of you told the victim to get Ms Veniaparin to send money by cardless cash, giving him the phone number ending in 535 to call her.18.These circumstances are relied on by the Crown as part of the context in which the armed robbery offending occurred. Mr Novello quickly texted Veniaparin the following messages at 7.56pm, "Call the police to', giving the address in Lygon Street. 'I am in bad danger. ASAP. Hurry up, I have a gun to my (head) ASAP please. I need money. I'm going to get killed if I don't have money."
Mr Novello also called Veniaparin to request that she send him money. She asked him how much and he said $500, however she said she only had $100.19.Call records show that he called her at 7.58, 8.07, 8.20 and 8.22pm.
At 8.25pm Mr Novello sent her a text message with the address of the apartment. Mr Novello also called his older brother asking him for money and told him he was in a bit of trouble. His older brother told him he could not give him money and to wait a couple of days.20.After some time in the apartment with each of you, you Mr Nguyen, asked
Mr Novello about a ring. Mr Novello did not know what you were talking about, however he convinced you to permit him to go to the second level of the building to find this. You, Mr Nguyen, told Mr Novello that if he ran you would shoot him from behind and that you would get a clean-up crew to the apartment in five minutes. This gives rise to Charge 4, false imprisonment, and Charge 5, in part of make threat to kill. The latter charge being a rolled-up charge alleged against you alone, Mr Nguyen.21.Each of you then escorted the victim out of the apartment. The victim quickly ran down the stairs ahead of each of you to level 7. He entered a lift and went to level 3. Each of you walked downstairs via a stairwell at 9.10pm, exiting the premises at the north end of the building. Meanwhile, Veniaparin had called the police for help. Mr Novello saw a friend of his in the building on level 3. She gave him her mobile phone and he called Veniaparin to ask to come pick him up.
22.Police overhead the conversation that ensued between Mr Novello and Veniaparin where Mr Novello said, "I just ran away. In somebody's house at the moment but my face is all sliced. At the flats. When you're out the front call me and I'll come out the front."
23.At 9.25pm you, Mr Nguyen, sent a message to a contact saying, "I dogged scar him", and a further message, "Delete msg please." At 10.46pm police left Veniaparin's address with her and accompanied her to the address in Carlton. Mr Novello waited in the apartment of his friend and at 10.54pm the victim Veniaparin a message asking how far she was from VicRoads. Eventually at some time shortly after 11.38pm police in company with Veniaparin met with the victim. Photos were taken of the victim's injuries, and he was transported to the Royal Melbourne Hospital.
24.On 13 June 2022 at 4.20am Mr Novello was admitted for treatment. Further photos were taken of his injuries. Dr Jason Schreiber, forensic physician, Victorian Institute of Forensic Medicine, later reviewed records from the
Royal Melbourne Hospital in relation to the injuries sustained by the victim.25.The records showed the following;
(a) Three open wounds to the left face not actively bleeding which required plastic and reconstructive surgery, eye specialist, ophthalmologist examination and repair in operating theatres on 13 June 2022. The victim was provided with antibiotic medication and post-operative plan with a plastic surgeon to follow up for removal of sutures;
(b) One wound over the bridge of the victim's nose close to the inner medial border of the left eye and left tear canal injuries;
(c) Two wounds to the left cheek, the lower one superficial and the other quite deep;
(d) Acute displaced nasal fracture with the nose being displaced to the right;
(e) Jaw pain, neck spine tenderness;
(f) Possible concussion.
26.Dr Schreiber was of the opinion that there was evidence of blunt trauma to the head and face as well as incisions to the nose, inner eye aspect and cheek. Further, he said the injuries could have occurred in a setting of assault with punching to the nose and using a sharp implement to the nose and medial eye and cheek aspects. A complex tear canal injuries and incisions required surgical repair. There would be facial scars with cosmetic implications. The injuries were non-life threatening. There was a future risk of bone fracture not healing, post-concussion symptoms and ongoing pain.
27.On 13 June 2022 you, Mr Nguyen, sent the photo of the victim's injuries to a contact called John saying that 'He', that is John, 'should see what he looks like now'. At 7.22pm you sent a message to a contact Lisa where you said, 'Should see what big boy Rocky looks like now'. The person known as Lisa asked you to send a photo and you did so and at 7.43pm you said, 'LOL should see what his face looks like now'.
28.You, Mr Nguyen, were arrested at 3.00am on 14 June 2022. You were at
Crown Casino at the time. When asked for identification you produced a false identification, but police were able to identify you due to distinctive tattoos on your arm.29.After you were taken to the police station you were found to be in possession of $12,310.80 which gives rise to Charge 6; negligently dealing with proceeds of crime. You were also found with four $25 Crown Casino chips, however this was not the subject of any charge. Also, you were in possession of a fraudulent New South Wales driver's licence in the name of another person with your image on the licence. This was used to obtain a rental agreement for a property in Southbank on 8 December 2021. This conduct gives rise to Charge 1; use false document.
30.A search warrant was obtained for the address at Clarke Street, Southbank which was subsequently executed. You, Mr Moeai, were arrested there and a small quantity of Cannabis L was seized, giving rise to Charge 9 against you; possession of a drug of dependence. At the time of the offending for which I now sentence you, Mr Moeai, were on bail for possession of a drug of dependence, non-prohibited person possessing imitation firearm and unlicensed driving. You had been bailed in respect of this alleged offending on 28 March 2022 to the Melbourne Magistrates' Court on 22 August 2022.
31.The learned prosecutor informed me as to various details of the police investigation which I will not repeat for the purposes of sentencing you. However, at the search of the Clarke Street, Southbank property police found the following items.
a) Single barrel shotgun;
(b) 25 rounds of shotgun ammunition;
(c) Red bandana matching that worn by you, Mr Moeai, during the commission of the offending to which I have previously referred;
(d) One snap seal bag containing methamphetamine, giving rise to Charge 7 against you, Mr Nguyen;
(e) Three clear vials containing 1,4-Butanediol, giving rise to Charge 8 alleged against you, Mr Nguyen. One container with clear lid containing 1,4 Butanediol, also giving rise to Charge 8 against you, Mr Nguyen. And, as I have said, one small bag of Cannabis L, which gives rise to Charge 9 against you, Mr Moeai.
32.Also found was a small black machete in a sheath which was the knife used during the commission of the offence, this being accepted by Mr Portelli on your behalf, Mr Nguyen. The police found the Tommy Hilfiger sports bag, Samsung mobile phone, mobile phone with pink back belonging to the victim and your red cap with that particular motif, Mr Moeai, were also found. Police also seized items of your clothing.
33.Drug analysis indicated that a plastic bag containing white crystals .5, I think gram net quantity, was 83 per cent methamphetamine. I will revise that aspect in my remarks. The total net quantity of .5 gram methamphetamine and 45.5 gram of 1,4 Butanediol was the outcome of relevant analysis.
34.At the plea hearing, I was told that the ammunition found did fit the shotgun that was found at the premises, and the shotgun was loaded at the time it was seized, however the prosecution cannot say it was loaded at the time of the offending, assuming in any event that this was the weapon used on the night in question. However, I do not sentence either of you on the basis that the firearm you took on that occasion was loaded. I am unable to make a finding in relation to this, as the prosecution was unable to say whether it was loaded at the time of the offending.
35.On 14 June 2022 you, Mr Nguyen, took part in a record of interview with police. You admitted to attending premises to visit a friend called Dylan. You said you left with Dylan and Dylan's son, then partied for the rest of the evening. You denied any involvement in the offending and denied that money in your possession, being the $12,310.00, were the proceeds of crime. You said you had withdrawn $8,000 from super and won the rest gambling. In short, you lied to police.
36.You, Mr Moeai, admitted to living with Nguyen two to three times each week. You denied having a key to his apartment. You admitted to driving Nguyen to the premises and attending the apartment building for protection, you said. Initially you denied entering the apartment, but you then admitted to entering it and having the shotgun in a Woolworths bag. You denied pulling it out of the bag. You denied assaulting the victim or knowing he was going to be assaulted. You denied knowing of a drug of dependence, although you admitted to being in possession of cannabis.
37.As at the plea hearing date you had been in custody for 377 days, Mr Nguyen, whilst you, Mr Moeai, had pre-sentence detention at that time of 163 days.
38.Mr Nguyen and Mr Moeai, your offending is most serious and calls for a punishment which is just in all the relevant circumstances. Your conduct must be appropriately denounced.
39.You entered premises occupied by the victim providing armed support to one another and you effectively terrorised the victim over a two-hour period. You isolated the victim away from the other occupants of the house and you menaced him with the use of a shotgun and a knife, which you, Mr Nguyen, then used to slash his face after each of you had punched him to the head numerous times.
40.I regard the armed robbery and the offence of intentionally causing injury are serious examples of these offences in circumstances where each of you possessed most frightening lethal weapons, which in your case, Mr Nguyen, you used on the victim, with your facilitation and support, Mr Moeai. The attack was brazen and thuggish and committed in circumstances where the victim was unable to defend himself.
41.Further, I accept that there was a level of premeditation to your offending albeit somewhat crude. Also, the offending occurred over a fairly prolonged period. Also, the nature of the injury caused by the knife was an especially nasty one, with long term scarring for the victim, as I understand the situation.
42.It appears that your offending, Mr Nguyen, was motivated by a belief that the victim had robbed your ex-girlfriend. I was told by the prosecution there was no evidence which supported this, however even if this had occurred, you had absolutely no entitlement to take matters into your own hands.
43.You, Mr Moeai, were in attendance as backup or, as you said, protection for
Mr Nguyen who was the principal player in the offending. However, in relation to the armed robbery, you pointed the firearm at the victim twice. On at least one of these occasions, you pointed the firearm at the victim's face, which I regard as a particularly serious aspect of your offending.44.Mr Nguyen, the threats to kill rolled up into Charge 5 were also particularly nasty. In circumstances where each of you had carried lethal weapons and shown a preparedness to use violence, which would have certainly made the threats which you uttered extremely realistic from the victim's point of view.
45.No victim impact statement was provided however I have viewed the photographs of the victim's face which makes for quite distressing viewing and there are the distressed text messages referred to in the opening. It takes no imagination to know that the impact upon the victim physically has been quite profound and long-lasting, and it is evident from the victim's utterances during the offending that he was in a good deal of fear from both of you.
46.You, Mr Nguyen, have shown a particular lack of insight and remorse in circumstances where you photographed the dreadful injury you had inflicted, then shared the photo with friends, bragging about what you had done and indicating you were amused by it. This reflects a callus disposition on your part, at least at that time.
47.I will now turn to your individual situations. You, Mr Nguyen, have a fairly substantial criminal history which commenced in 2001 with the offence of trafficking heroin, as well as use amphetamine, failing to answer bail, possess prescribed weapon without exemption.
48.In relation to trafficking heroin you were sentenced to three months imprisonment which was wholly suspended for 12 months. You received without conviction adjournments with a requirement to accept assistance from YSAS as arranged with a particular nominated person.
49.In 2005, you were convicted of possessing amphetamine and fined $500. In August 2010 in relation to that matter you were required to perform 23 hours unpaid community work in fault of payment of the fine. In 2011, the community-based order was cancelled, and you were ordered to be imprisoned for five days.
50.On 11 October 2017 in the Magistrates' Court, you were dealt with for trafficking heroin, possessing methamphetamine, possessing cocaine, possessing MDMA and possessing heroin, as well as possessing another drug of dependence which was not named. You were also dealt with on that day for possessing a controlled weapon without excuse, being a non-prohibited person, in possession of a long arm without a licence, possessing a prohibited weapon without exemption or approval, possessing cartridge ammunition without licence or permit and acquiring a long arm without a dealer or agent.
51.You were also dealt with for failing to answer bail, committing an indictable offence whilst on bail, shortening a barrel of a long arm, dishonestly undertaking retention of stolen goods, negligently dealing with proceeds of crime, as well as some driving offences, including failing a drug blood best within three hours of driving.
52.In relation to the trafficking charge, you were sentenced to five months’ imprisonment, which was to be served in combination with a community corrections order for 12 months in respect of most of the other offences, except for the driving offences and negligently dealing with proceeds of crime.
53.On 16 January 2019, you were dealt with for theft of a motor vehicle, failing to stop motor vehicle on police direction, failing to answer bail, there were three charges of this, two charges of committing an indictable offence whilst on bail, resisting a protective services officer, prohibited person possessing a firearm, possessing a drug of dependence, possessing another drug of dependence which was not named, dealing with property suspected to be proceeds of crime, possessing a prohibited weapon without exemption or approval, possessing a controlled weapon without excuse, possessing an unregistered general category handgun.
54.You were sentenced to an aggregate term of 15 months’ imprisonment. You were also dealt with on that occasion for breaching the community corrections order previously imposed and that order was cancelled. You were sentenced to an aggregate term of six months’ imprisonment which I understand was to be served concurrently with the 15 month aggregate term.
55.On 17 November 2020, you were dealt with for trafficking methamphetamine and possessing heroin. On each charge you were convicted and sentenced to an aggregate term of six months’ imprisonment with such sentence to be served by way of a drug treatment order. Extensive conditions were set out in respect of that drug treatment order. I was told that you absconded from the drug treatment order within the first six months of it being made, and about 18 months before your arrest for the offending before me, so you did not complete that disposition.
56.You were sentenced on 22 June 2022 to 14 days, and on 14 September 2022 to 80 days' imprisonment, both in relation to the breach of the drug treatment order The prosecution could not get more information about this but submitted that, as you did not avail yourself of the drug treatment order, your prospects of rehabilitation ought be seen as guarded.
57.Your criminal history, Mr Nguyen, gives me cause for concern about your prospects of rehabilitation. You have not committed an offence of violence before, which is a matter that I have noted when sentencing you however. Having said this, the offending for which I now sentence you marks an escalation of your criminal conduct.
58.Also, your criminal history speaks struggles with drugs over the years as well as a preparedness to traffic them. You also have a history for possess weapons which is relevant to the offending before me. You have had the opportunity to address your drug issues in the past however overall it appears you have failed to do so.
59.In sentencing you, Mr Nguyen, I have taken into account your personal circumstances. You were born in East Melbourne in 1982. I was told that you have never met your biological mother and lived with your father for around two years when you were between 11 and 13 years of age. You understood that your father was incarcerated during your early childhood. You do not recall your father ever having had a job.
60.You have an older sister who is about 43 years of age. You do not have an ongoing relationship with her, however she has now written a letter to the court which supports a number of matters that were put to me previously in respect of your upbringing. I understand you spent your early childhood living with your sister, but you have not enjoyed a close relationship with each other over the years.
61.You are unable to recall much about your formative years that is positive. You instructed your counsel that you have spent your early years living in group homes with your sister, with many placements being transitional, and you moved to different homes with different families on a number of occasions. You never formed close connections or bonds with any families who were entrusted with your care, and you did not enjoy living in these homes.
62.When you were about nine you moved in with your paternal uncle. You do not recall the circumstances in which this arrangement was made. You describe the beginning of your time with your uncle as being more normal than what you had been used to, although your uncle was an alcoholic which created issues within the home.
63.When you were about 11 your father came back into your life for a fleeting period, and this proved to be problematic. You spent time living with your father over a period of two years and this time was particularly chaotic. There would be gambling within the home and police attended the property on occasion. Your father, who was an alcoholic, would often become violent. You were abandoned by your father when you were 13, as your father married a woman from overseas and moved interstate with her.
64.You instructed your counsel that you then became homeless and when you were around 14 or 15 you were charged with drug trafficking offences and sentenced to a period of custody at youth training centre in Parkville. When you were released, you were linked with YSAS who provided you with assistance in relation to securing accommodation and accessing drug treatment. You said this intervention was worthwhile and beneficial to you.
65.In terms of your education, I was told that you attended St Joseph's College North Fitzroy, but you left school part way through Year 8. You were unmotivated at school and were truant frequently.
66.In terms of employment, I am instructed by your counsel that between 2006 and 2007 you worked as a kitchenhand. You also worked as a fruit picker at a rural farm in about 2008. You worked as a billing analyst with an energy company between 2011 and 2014. Initially you started in a door-to-door sales role, having been referred to this employer by a friend, before moving into an office-based role within the company. You left this employment due to your relapsing into drug use, having reacquainted yourself with your old peer group. You have not worked since that time.
67.I was told that you were introduced to heroin when you were about 11 years old. You instructed your counsel that you developed a dependency on the drug almost immediately. You smoked the drug on foil and have never used drugs intravenously. You used heroin sporadically from the age of 13 to 20.
68.When you were about sixteen you completed a community residential drug withdrawal program through a referral from YSAS, the program being based in Fitzroy. I was told you then attended a Self-Help Addiction Resource Centre in Glen Huntly remaining there for two or three years. You lived onsite and attended drug counselling services such as Narcotics Anonymous. You viewed this as a very positive service which enabled you to cease drug use.
69.You report that you remained abstinent from heroin for around 13 to 14 years before relapsing in 2015.
70.I have now received documentation from your legal representatives which establishes a number of the matters that were relied on by Mr Portelli for the purposes of Bugmy principles. As he said in his further written submissions, the documents from child protection dated from November 1996 to 1998 'detail a disorderly and chaotic living arrangement' that you experienced as a teenager. You were without a caregiver for lengthy periods of time and received little if any adult supervision.
71.The following extract from those records is pertinent. 'Phoung is of Vietnamese background and his father makes frequent trips back to Vietnam. His mother's whereabouts are unknown. An uncle, not really a relative, had been appointed as the guardian but did not seem to be an effective guardian for Phoung. He also had one sister, Lee. Phoung has had a history of chronic heroin use and trafficking to support this habit which has led to frequent involvement in the criminal justice system. Phoung has apparently lived on the streets when not in custody and understandably his health, and particularly having a very low weight, has resulted from this'.
72.Also, your sister wrote the following. 'Our parents separated when Viet Phoung was two years old and I was four. My mother had an affair and left my father. It was a tumultuous separation complicated by my father being incarcerated for what I believe to be attempted manslaughter. He was antagonised by my mother's partner at the time. My brother and I were left in the care of a family friend who had two tenants living with us. We were later removed from this environment and placed in an Allambie foster home for child protective reasons. We remained in Allambie until my father was released from prison and relocated. My father gained custody of my brother and I. We have been estranged from our birth mother since the separation. He predominantly raised us and remarried when Viet Phuong was 16. Our upbringing was fractured and lacked stability and safety. The ramifications of our upbringing have resulted in the need for extensive therapy for which I have received'.
73.I have taken into account the Crown's further submissions in respect of the inconsistencies, or perhaps confusion, in respect of the some of the accounts I have received about your childhood. However, on any view of things, it is evident that your upbringing has been significantly deprived and marred by drug addiction from an early age. I give full weight to your significantly deprived background. I allow for Bugmy considerations in a general way and make some reduction in your moral culpability and the weight that would otherwise attach to just punishment and general deterrence.
74.Currently you are not prescribed any medications. You indicated a willingness to receive Buprenorphine injection, which was recommended to you by nursing staff within the prison. Initially you were remanded to MRC for about three weeks. You spent your entire period in quarantine due to Covid-19 restrictions which were put in place at the time. You were then moved to Fulham Prison where you spent about a year. You were transferred to Port Phillip from Fulham where you remained on remand.
75.You presently work in the laundry, and I was told you have completed your Certificate III in Cleaning Operations. You have undertaken a number of educational and vocational courses, including OH&S Certificate, First Aid and Cooking Operations course. I was told that you are wanting to undertake a drug treatment program whilst in custody however you had been told that none is available until you are sentenced.
76.In sentencing you, Mr Nguyen, I have taken into account there was a sizeable gap in your offending between 2011 and 2016 with your criminal record in relation to the 2016 offences appearing in 2017. The gap reflects the fact that you were working as a billing analyst at the time, and that is the longest period during which you have been employed in your adult life. You were able to reduce your drug use during that period.
77.I have also borne in mind the nature of your offending between 2002 and 2011 which is at the lower end of seriousness in respect to the offences you have committed.
78.I am also mindful that you committed the offence of trafficking heroin in 2001 for which you received a three-month suspended sentence. And as I have said, it was not until 2017 you were before the courts again in relation to more serious offending, including trafficking heroin, noting the commission dates were in 2016.
79.Your counsel has submitted that in the context of your criminal record, when closely analysed, and a significant gap in relation to serious offending, the present offending ought to be seen as atypical or aberrant. You also accept that there was an escalation in offending however and that you have used weapons in the past albeit as accouchement to the drug trade as you put it. I have factored these submissions in when sentencing you.
80.I was told that over the years your drug use has waxed and waned which is somewhat verified by your criminal history, as I have said. There have been lengthy periods, as I have said, where you have not used heroin, and as I understand, up until about 2017 at one stage.
81.In sentencing you, I factor in the chronology of this matter and the stage at which you first offered to plead guilty to some offences and not others. You conducted a contested committal hearing however a good deal of this was focused upon some other serious offences of which you were discharged at committal. You then offered to plead guilty to intentionally cause injury and some other charges but not armed robbery. At the time of the case conference before me there was also a kidnapping charge alleged against you. The trial indictment had been filed however a case conference was sought from an early stage.
82.In all these circumstances, I am prepared to allow for a fairly substantial discount in the sentence you would otherwise receive due to the stage at which you were either willing to plead guilty to some of the charges or you did plead guilty. Although you did not save the witnesses the time and trouble of giving evidence at the committal hearing, and you did not save the community of the time and expense of such proceeding, there were certainly justified utility in conducting such a hearing, which saw some serious charges discharged and you were prepared to plead guilty to intentionally causing injury and other offences at the committal hearing stage.
83.You were not prepared to plead guilty to the armed robbery but this changed after discussions at the case conference stage. At this stage the prosecution withdraws the kidnapping charge. Therefore, you have saved the witnesses the time and trouble of giving evidence at trial and you saved the community the time and expense of a trial in circumstances where the trial date was not imminent.
84.But as I say, in all the circumstances I have described, you are entitled to a fairly substantial discount in the sentence you would otherwise receive. Further, you are to be given a palpable discount for contributing to the reduction in the backlog of trials in this court which has been caused by the pandemic.
85.I must say I find it hard to see much in the way of remorse for your offending, Mr Nguyen, in all of the circumstances. Your counsel did not submit that you are remorseful in any insightful or genuine way. Indeed, soon after the offending, you were showing off about it and finding it amusing, which is quite disturbing.
86.I was told that whilst in custody you had been found to have used a drug on one occasion. I have not received any urine screens to indicate whether you are drug free, however understand from what your counsel has said that you are. You have told your counsel that you are motivated to avoid getting into serious trouble in the future and to rid yourself of drug addiction once and for all. I sincerely hope that you do.
87.I allow that time in custody has been harsher than it would otherwise be due to the Covid-19 restrictions that had been in place whilst you have been in jail and that this is your lengthiest time in jail. I have also factored in, as I have said, that this is your first episode of violent offending.
88.In all the relevant circumstances I assess your prospects of rehabilitation as guardedly fair. Although I had made some reduction in your moral culpability in the weight which would otherwise attach to just punishment and general deterrence due to Bugmy principles, or considerations I should say, I still find that your moral culpability is fairly high and I reduce the weight attaching to general deterrence and just punishment to a limited extent. I give fairly strong weight to just punishment and general deterrence although not at the level that I would have but for the Bugmy considerations. I give fairly strong weight to specific deterrence and protection of the community in all the relevant circumstances.
89.I now turn to your personal situation, Mr Moeai. Overall, you played a lesser role in the offending although you pointed a shotgun at the victim which is the most serious aspect of your offending. Obviously, you face fewer charges than Mr Nguyen.
90.I will return to the question of parity though, a little later on.
91.You have no prior convictions however you have subsequent matters which were committed before the offending before me as I understand this situation. You have no impairment of mental function or Bugmy considerations which would serve to reduce your moral culpability.
92.You were 28 at the time of the offending and you are now 30. Unlike Mr Nguyen, you had a positive upbringing and enjoy close relationships with your parents and extended family.
93.As at the plea hearing you were living with one of your siblings and his family. I was told that at the time of the offending you were abusing methamphetamine. You started using this when you were 22 and developed a problem with it. Your family, a very fine family I must say, helped you to stop using it and you did so for five years.
94.However, in around 2019 you lost both your grandfather and father within a month of one another, and this was a catalyst for a relapse into drug abuse. I was told that you then isolated yourself from prosocial relationships with your family and friends.
95.I was told that you have abstained from methamphetamine use since your arrest on 14 June last year and since your engagement with CISP you have also abstained from cannabis and alcohol use.
96.You continue to have the support of your extensive family, which is a matter in favour of your rehabilitation, although apparently this support was not enough to prevent you from offending in the way that you did on the occasion for which I now sentence you.
97.You work full time and have done so since being released on bail on
16 November 2022. You have engaged extremely well with CISP bail as is attested to by the CISP reports tendered on your behalf.98.I was told that you are also a volunteer worker at your church. You have done some significant work there, including giving talks to youth groups in a bid to deter members of the group from offending in the way that you have.
99.I have read the character references in support of you, and I accept you have some very positive aspects of your character which will stand you in good stead for the future. It seems to me that the offending in which you engaged during the period of your current offending and the subsequent offences which you committed before this were somewhat aberrational and committed in the context of drug abuse and mixing with bad influences.
100.The ACSO report dated 2 August 2023 indicates that you engaged well with the counselling offered between 12 May and 7 June this year and you had good insight into the need to abstain from drugs and negative peers.
101.You also entered pleas of guilty after the case conference, having conducted a contested committal hearing. However, the committal also had utility for you as you were discharged from the serious offence of home invasion. Kidnapping was withdrawn against you also at the case conference stage. I understand the armed robbery and intentionally causing injury charges were sticking points for you.
102.In all these circumstances I allow for a fairly substantial discount of the sentence that you would otherwise receive due to the stage at which you entered pleas of guilty. In doing so, you saved the witnesses the time and trouble of giving evidence at trial. You saved the community the time and expense of a trial. Although you did not make these savings at the committal stage, this was a necessary step, as in the case of Mr Nguyen, which bore some fruit for you.
103.So, in all the circumstances I allow for a fairly substantial discount.
104.I also allow for a palpable discount in your sentence as your pleas of guilty have helped to reduce the backlog in trials this court has faced due to the pandemic.
105.In your case I am satisfied from all the material before me that you are genuinely remorseful for your actions, and you have a good degree of insight into their seriousness.
106.I have taken into account the report of Dr Cunningham, psychologist, in a general way, but he found that you did not suffer from any impairment of mental function. It seems to me that your offending is largely a product of your drug abuse in the context of mixing with negative peers, having spiralled after the loss of some loved ones in your family.
107.In your case also factoring in that you had no prior convictions at the time of this offending, even though you had committed offences before this, but roughly the same time period, but factoring in all relevant circumstances, I find that your prospects of rehabilitation are very good and I place less than moderate weight on specific deterrence and protection of the community. However I must place strong weight on general deterrence in a bid to deter others from offending as you have.
108.Your conduct must be appropriately denounced, as I have said, and I must impose a punishment which is just in all the relevant circumstances.
109.In terms of parity you, Mr Nguyen, are in the more serious position overall as you played a more serious role overall, and in particular in respect to the intentionally causing injury. You were the one with the idea to commit the offences and Mr Moeai, a substantially younger man, attended to assist you. Having said this, you are both well and truly adults.
110.Having said this also you, Mr Moeai, played an active and serious role in the armed robbery. You, Mr Nguyen, also made a threat to kill, unlike Mr Moeai, and you face some additional charges although these are not of the highest order overall.
111.You, Mr Nguyen, have a concerning criminal history and your prospects of rehabilitation are not nearly as positive as Mr Moeai's. The weight that attaches to protect the community would be, I would regard as greater in your case.
112.On the other hand, I have made some, albeit limited reduction in respect of other sentencing factors such as your moral culpability and general deterrence as well as punishment in contrast to Mr Moeai's situation.
113.In sentencing each of you, I have had regard to current sentencing practice, noting that this is but one sentencing consideration and not a controlling one. I have considered our counsels' submissions in respect of sentence and those of the learned prosecutor in this matter. I think counsel for their assistance in this regard.
114.In the end I have arrived at a sentence in each of your cases that in my view appropriately address all relevant sentencing considerations.
115.Each of you are convicted of the offences in each of your cases. I will first deal with you, Mr Nguyen. I make the forfeiture and disposal orders applied for by the Crown which are not opposed by you.
116.Please stand-up sir.
117.You are sentenced to the following periods of imprisonment. Charge 1, one month; Charge 2, three years; Charge 3, three years six months which will be the base sentence; Charge 4, two years; Charge 5, two years; Charge 6, six months; Charges 7 and 8, one month’s imprisonment in relation to each of these.
118.In relation to the summary offence you are fined $500. In relation to the sentences, I have just imposed I direct that eight months from the sentence on Charge 2 and two months from the sentence on each of Charges 4 and 5, you serve cumulatively with each other and with the base sentence, producing a total effective sentence of four years, six months.
119.I direct that you serve 34 months’ imprisonment before becoming eligible for parole. I declare that you have already served 429 days. If not for your pleas of guilty, I would have sentenced you to a total effective sentence of six years imprisonment with four years by way of non-parole period. Sit down please, sir.
120.Please stand up, Mr Moeai. I make the disposal order sought by the Crown and not opposed by you. You are sentenced to the following periods of imprisonment. Charge 2, two years; Charge 3, three years which will be the base sentence; Charge 4, two years; Charge 9, one month; summary offence 15, one month; summary offence 20 you are fined $500.
121.I direct that four months from the sentence on Charge 2 and two months from the sentence on Charge 4 be served cumulatively with each other and the base sentence, producing a total effective sentence of three years six months.
122.I direct that you serve 14 months’ imprisonment before becoming eligible for parole. I declare that you have already served 215 days by way of pre-sentence detention which will be deducted from your sentence. If not for your pleas of guilty I would have imposed a sentence of five years imprisonment with three years by way of non-parole period. Take a seat please, sir.
123.HER HONOUR: Is there anything to raise?
124.MS DELTONDO: No, Your Honour.
125.MR PORTELLI: No.
126.MS SIMPSON: No, Your Honour.
127.HER HONOUR: Very well. I'll have the prisoners removed at this stage. Thank you. Yes, thanks counsel, we'll now adjourn.
- - -
0