Director of Public Prosecutions v Nguyen

[2023] VCC 1171

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

Case No. CR-19-01718

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANH THAI NGUYEN

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	6 February 2023 and 26 April 2023
DATE OF SENTENCE:	8 June 2023
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2023] VCC 1171

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence – Trial – Findings of guilt – Recklessly exposing emergency worker to risk by driving (1) – Reckless conduct endangering life (6) – Directed acquittal on charge of destroy property – Relevant criminal history particularly relating to driving offences – Long history of drug abuse - Offending not planned or organised but reactive to police attention – Maintains he was not the driver of the car  - Delay  - Forensicare psychiatric report prepared after remand in custody – Insufficient evidence to conclude diagnosis of chronic and enduring psychiatric illness – Experiencing dreams/nightmares whilst in custody – Condition managed with medication – No impairment of mental functioning relevant to sentencing purposes

Legislation Cited:      Road Safety Act 1986 (Vic)

Sentence:                  Convicted and sentenced to Total Effective Sentence 7 years’ imprisonment with non-parole period of 5 years’ imprisonment – 418 days’ pre-sentence detention declared as having already been served as part of the sentence imposed – Ancillary orders Licence cancellation and disqualification

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr Z. Petric	Solicitor for Public Prosecutions
For the Accused	Mr C. Oldham	Slades & Parsons Lawyers

HER HONOUR:

1Anh Thai Nguyen, after running a trial where the principal issue was identity, you were found guilty of one charge of recklessly exposing an emergency worker to risk by driving, and six charges of reckless conduct endangering life.  In relation to Charge 8, destroying property, I directed an acquittal in relation to this charge at an earlier stage of the trial.

2The maximum penalty for each of the offences of which you were found guilty is 10 years’ imprisonment.  In sentencing you I must have regard to the maximum penalties, as these reflect the seriousness with which Parliament regards the offences.

3Charge 1 is deemed a serious motor vehicle offence, and therefore your licence must be cancelled and you must be disqualified from applying for another licence for a period of two years.

4The prosecution provided a summary of the factual basis upon which you ought be sentenced.  Your counsel indicated that the summary was in keeping with the jury's verdict, and I agree.

5Therefore, the factual basis upon which you are to be sentenced is as follows:

6After you were intercepted by police who were on mobile bicycle traffic patrol duties, you evaded them and were subsequently found travelling eastbound on the footpath of Olympic Boulevard towards the corner of Punt Road in the area of the Swan Street Bridge/Richmond Station, to which I shall refer as ‘the intersection’.

7You were observed by a witness, Trent Little, to be travelling at an inappropriate speed, and it was estimated by a Ryan Urquhart and Jordan Hilton-Taylor that you were travelling at about 50 to 60 kilometres per hour.

8At the time, Olympic Boulevard, including its footpath, was under construction with a worksite that was constantly changing.  There were about 30 to 40 people scattered at the location on the day of your offending.

9In relation to Charge 1, whilst evading police and being pursued by Leading Senior Constable Lawther, you approached the intersection.  Ms Lawther located you at the intersection.  At this time, you conducted a three-point turn, due to barricades obstructing your entry into it.  After completing the turn, you continued to evade police, accelerating towards Leading Senior Constable Lawther, and causing her to dismount her bike and jump out of the way; in doing so, she pushed her bike towards your car to protect herself.  You continued to drive in an erratic manner, and you accelerated past Leading Senior Constable Lawther onto Olympic Boulevard in a westerly direction.

10The basis for Charges 2, 3 and 4 involve three school students.  Milla Burgemeestre, who was 16 years old at the time, was walking along the northern footpath of Olympic Boulevard towards the intersection with her schoolfriends, Emily Gordon and Scarlett Wihongi.  They were coming back from a music festival.  They were walking towards Punt Road and heard lots of screaming and commotion to ‘get out of the way’.  Ms Burgemeestre recalls feeling her life flash before her eyes, and thought she was going to die, thinking the car was going to hit her if she did not move out of the way.  Your car was travelling towards the three students on the footpath on the wrong side of the road, about 20 metres away, and appeared to be accelerating as it came towards them.  Emily Gordon heard both a tradesman and a police officer telling her to move out of the way.  She saw your car drive towards her and the other girls.  As it did so, the girls ran towards the fence along the railway station.  Scarlett Wihongi was told to move and get out of the way, and ran behind a tree next to a fence near the station, about 20 metres from you.

11Leading Senior Constable Lawther observed that the footpath divided into two, and she saw the three schoolgirls on the left-hand side, looking east.  She saw you driving erratically and at a speed where you would not be able to avoid a collision if a pedestrian came out, estimating your speed to be about 40 kilometres per hour.  Ms Lawther observed that you were only a couple of metres away from the girls.  She also observed that they were screaming, and she yelled to them to get out of the way.

12The police statements of each of the victims was read into the transcript so that their evidence was accepted without any cross-examination.

13In relation to Charges 5, 6 and 7, the factual basis is as follows:

14Paul Carpenter was working with his apprentice son, Daniel Carpenter, as cable jointers.  They were working in a service pit within the median strip, between two pavements, on the northern side of Olympic Boulevard.  Paul Carpenter observed you do a U‑turn, then drive back down the same footpath.  You sped past him whilst he was still in the confines of the service pit, which had no tape or barrier around it, and he recalled people telling him to move back and get out of the way as your car drove towards him in the pit.  Daniel Carpenter was near his father on the footpath adjacent to their work truck.  Daniel Carpenter observed you travel at a fast rate of speed on the footpath towards the truck, and was forced to jump into the back tray of his truck to avoid being hit.  Daniel Carpenter yelled out to his father to get out of the way.

15Vince Ferragine was working with Paul and Daniel Carpenter, and he was tasked to look after them, as a traffic controller.  He recalls a police officer yelling at him to get out of the way, which he did.  As soon as he did so, your car flew right past him.

16Brendan Crother was working with Paul, Daniel and Vince.  He was on the back of the work truck and saw you drive towards them, coming within a metre of them.  He said you were driving at a reasonable speed, and described it as enough to seriously hurt someone.  He also indicated that whilst he felt safe on the back of the truck, those on the ground were not safe.

17Charge 5 relates to Vince Ferragine, Charge 6 relates to Paul Carpenter, and Charge 7 relates to Daniel Carpenter.

18Mr Nguyen, your offending is most serious and deserving of a punishment which is just in all of the circumstances.  Your conduct must be firmly denounced.

19You drove in a most outrageous manner on the day in question, terrorising the victims, who were entitled to go about their daily business without you behaving in a most dangerous and threatening manner.  They were especially vulnerable to harm caused by you, as you were in a car and they were not, being pedestrians, workers in the area, or the police officer who was on a bike. They were also on a footpath area where they were entitled to feel safe from vehicles.  Whilst there are no victim impact statements, it is apparent from the evidence at trial that the school girls, in particular, were especially distressed by your offending, and it was also apparent that the other victims were negatively affected by your actions.

20Ms Lawther is to be congratulated on her bravery and selflessness in trying to stop you and warning others to get out of your way, exposing herself to danger in order to do so. I have little doubt that this incident has also had a toll on her.

21Whilst defence raised concerns in relation to your mental health at the time of the plea hearing, the Forensicare report obtained indicates that there is no impairment of mental function that you may have been suffering at the time or presently suffer which would give rise to a reduction in your moral culpability or moderation of any other relevant sentencing factors.  I regard your moral culpability as high.

22In sentencing you, I must factor in your criminal history, which is a rather concerning one, as is your history for driving offences recorded by the Road Safety Authority.

23Your criminal history commences in 1994 when you were granted a 'without conviction' adjournment in respect of possession of an unknown drug of dependence, possessing a restricted substance, and attempting to use heroin.

24On 18 September 1995, you were again dealt with by way of 'without conviction' adjournment for criminal damage, intentionally or recklessly causing injury, and make false report to police.

25In 1997 you received a three-month suspended sentence in respect of trafficking heroin and failing to answer bail.

26In 2001 you were convicted and fined $2,000 in respect of possessing heroin and using heroin.

27In 2002 you were sentenced to four months' imprisonment which was wholly suspended for 18 months in relation to attempted theft.

28On 18 July 2003 you were dealt with for attempting to commit an indictable offence, going equipped to steal or cheat, and driving without P‑plates displayed.  In relation to the first two mentioned offences, you were sentenced to an aggregate term of 14 days' imprisonment.  You were fined in relation to the driving offence, and your licence was suspended for two months.  On that day you were also dealt with for breaching the suspended sentence to which I have previously referred.  The suspended term of four months was wholly restored, such that you were required to serve four months' imprisonment.

29On 5 September 2003 you were convicted of driving whilst disqualified, handling stolen goods, and possessing property being proceeds of crime, as well as possessing a drug of dependence.  In relation to the first three offences to which I have referred, you received a total effective sentence of six months' imprisonment, four months of which was to be served.  You were convicted and fined in relation to the drug possession charges.

30On 16 September 2003 you were convicted of trafficking heroin, possessing heroin, possessing money being proceeds of crime, selling a controlled substance without a licence, and possessing a restricted substance.  You were convicted and sentenced to a total effective sentence of 18 months' imprisonment which was partially suspended, such that you were required to serve 12 months.  The operational period was two years.

31On 3 September 2007 you were convicted and sentenced to 90 days' imprisonment for a shop theft.  The sentence was partially suspended, such that you were required to serve four days during an operational period of six months.  The four days being reckoned as already served.

32On 24 June 2009 you were convicted of three charges of drive whilst authorisation suspended, failing to answer bail, theft, shop theft, dealing with property suspected to be proceeds of crime, exceeding the speed limit of 40 kilometres per hour, two charges of using unregistered motor vehicle on a highway, fraudulently using a registration label or number plate, and possession of a drug of dependence being a prescription drug.  Overall, you were sentenced to two months' imprisonment in combination with a 12‑month community corrections order which required you to undertake treatment for alcohol and drug addiction, and medical, psychological and psychiatric assessment and treatment as directed by the regional manager.  You were also required to be under the supervision of Community Corrections for 12 months.  On that day you were also dealt with for breaching the suspended sentence imposed in September 2007, and a term of 86 days' imprisonment was restored, and you were required to serve this term concurrently with the two months imposed in relation to the other matters to which I have just referred.

33On 2 September 2009 you were convicted of driving whilst your authorisation was suspended and unlicensed driving.  You were sentenced to two months' imprisonment which was wholly suspended for an operational period of 12 months.  Your licence was cancelled, and you were disqualified from driving for two months, and you were also fined.

34On 21 October 2009 you successfully appealed sentences imposed in relation to matters dealt with in the Magistrates' Court on 24 June 2009.  You were sentenced to a 12-month community corrections order with unpaid community work as well as the treatment conditions previously imposed.  You were fined in relation to the traffic matters and drug possession charges.  You were also successful in your appeal against restoration of a term of imprisonment in relation to the shop theft charge, and the suspended sentence imposed on 3 September 2007 was further suspended for 12 months.

35On 23 June 2010 you were convicted of driving whilst suspended, using heroin, and careless driving.  In relation to the first mentioned offence, you were sentenced to two months' imprisonment which was wholly suspended for 24 months, and you were fined $500 in aggregate which related to the other two charges.

36On 8 November 2012 you were convicted of two charges of driving whilst authorisation was suspended, and you were sentenced to four months' imprisonment which was wholly suspended for 18 months.

37On 2 April 2013 you were convicted of one charge of driving whilst authorisation suspended, and sentenced to one month's imprisonment which was wholly suspended for 12 months.

38On 23 March 2015 you were convicted of two charges of driving whilst suspended, and one charge of using an unregistered motor vehicle.  You were sentenced to a 15‑month community corrections order with supervision, and you were required to undertake an offending behaviour program.

39On 10 December 2015 you were dealt with for contravening a suspended sentence order of 2 April 2013 in relation to driving whilst authorisation suspended.  The contravention was proven, and no further order was made due to you establishing exceptional circumstances which included sustained commitment to adherence to a community corrections order.

40In addition, allowing for some duplication, you have numerous road traffic offences as set out in the Road Safety Act certificate.  These include a number of speeding offences, other instances of careless driving, unlicensed driving, and driving whilst authorisation suspended, with the most recent of the last-mentioned offence being in September 2019, and before this, August 2019.

41Your criminal history gives me serious cause for concern when assessing your prospects of rehabilitation.  The offending for which I now sentence you marks a serious escalation in your criminal behaviour, much of which relates to driving.

42In sentencing you, I take into account the matters relied on by your counsel, which included the fact that you were remanded on 15 November 2022, which means that you have already been in custody for a substantial period.

43You are now 48 years old, and were 43 at the time of the offending.

44You were born in Vietnam in 1975 and arrived in Australia in about 1989.  You are an Australian citizen.

45In terms of your education, you left school before completing Year 11.  You then completed a carpentry course, and you have worked as a carpenter with your brother.  You also worked as a baker from 1996 to 2018, and at one time you owned a bakery.

46At about the time of the offending for which I now sentence you, you were working as a handyman and/or shopfitter.  I was told that you had derived income from Centrelink benefits when not employed or when contract work was not available.

47In your counsel's written submissions, he indicated that you were single.  This appears to be in contrast to what you told Dr Trainor, consultant psychiatrist, who examined you via videolink on 3 March this year with the help of an interpreter.  You were interviewed on this occasion due to concerns in relation to your mental health.  However, the report from Forensicare dated 24 March 2023 indicated that there was insufficient evidence to conclude that you had a chronic and enduring psychotic illness such as schizophrenia, and that most likely you had experienced stress-related psychotic symptoms secondary to incarceration which had improved with anti-psychotic medication.  There was no evidence of a mood disorder.  Dr Trainor also said it was difficult to comment with any degree of certainty about whether you were mentally unwell at the time of the offending, as you provided no details of the offending at interview.  Of course, this is consistent with your stance that you were not the driver of the car, which you have maintained.  However, Dr Trainor said there was no evidence which suggested that before the offending you had a history of major mental illness, and nothing to suggest you were mentally unwell during your incarceration after the offending.  Dr Trainor said that it was therefore more likely than not that mental illness did not influence your offending in any way.

48He said that it was likely that you were using substances around the time of the offending, as you used these chronically, based on the history you provided at interview.  He said that substance use may have increased the likelihood that you would offend by way of impairing your judgment and increasing disinhibition and impulsivity.

49He said that you have a long history of substance use, predominantly heroin, but also methamphetamine in the last few years.  You showed little insight into your substance abuse or use issues.  He said that you met the criteria for opioid-use disorder in early remission in a controlled environment, and stimulant-use disorder in early remission in a controlled environment.

50Therefore, at the time of the offending there is nothing which would reduce your moral culpability, as I have previously indicated, and further, you suffer from no impairment of mental function which would warrant reduction of other sentencing considerations such as specific and general deterrence.

51Your counsel clarified that you had an ongoing relationship with the mother of your children which was of a complex nature.  However, your common bond involved the children, and you have been active in their lives.

52I was told that whilst on remand you had been receiving visits until up to a month before the plea hearing, as I understand it.  However, I was told at that time you no longer receive visits from your former partner and children.

53Your counsel told me at the plea hearing that you were travelling fairly well whilst in custody and you were in a management unit.  He was instructed that you had completed a number of courses.  However, he was unable to provide any documentation in relation to these.

54In sentencing you, I allow for the fact that time in gaol will be harder for you since your family stopped visiting you, and that your concern for your children's welfare will make time in gaol harder than would otherwise be the case.

55You had been experiencing issues with dreams or nightmares and perhaps some signs of psychosis whilst in custody, which led to obtaining the Forensicare report.  However, as I previously indicated, any symptoms are now being managed with medication and there is no impairment of mental function which is relevant for the purposes of sentencing.

56In sentencing you, I factor in that there has been a substantial delay in this matter, notwithstanding that pleas of guilty from you might well have reduced such delay.  However, the fact of the matter is that you had the anxiety of these matters hanging over your head for a significant period, bearing in mind that the offences occurred in March of 2019 and we have had the pandemic intervening, where trials could not be heard for a significant period.  Further delay was caused by defence counsel contracting COVID‑19 before the first listing date for your trial. I have also factored in that during the time that you have been incarcerated, there have been various restrictions imposed by virtue of the COVID-19 pandemic which has made, and may well make time harder for you, depending on the restrictions from time to time.

57Your counsel pointed to community corrections orders that you had undertaken in the past, and as he said, you had successfully completed these.  However, this ought be seen in the context of other court orders which were breached, and repeated offending, although I do note that between 2015 and 2019 there appears to be a gap.  Your counsel told me that you had worked as a baker between 1996 and 2018, and this might have something to do with a period during which you did not offend.

58In sentencing you, I accept that the offending was not planned or organised but rather reactive to police pulling you over. I have also factored in, in your favour, that the schoolgirls were spared the time and trauma of cross examination.

59Mr Petric, for the prosecution, pointed to some cases to assist in the assessment of current sentencing practice.  However, he said that it was very difficult to find something directly comparable to your offending.  In so far as I can, I have had regard to current sentencing practices, but also bearing in mind that this is but one sentencing consideration and not a controlling one.

60In view of the offending on this occasion, your criminal history, your drug issues, apparent lack of employment – although factoring in your capacity for employment based on the past, and limited community support, I rate your prospects of rehabilitation as being fairly poor.  In coming to this assessment, I have also factored in that you continue to deny your offending, which you are entitled to do, but it means that you have no remorse or insight in relation to it.  I must place fairly strong weight on specific deterrence and protection of the community.

61Your counsel submitted in his written submissions that a combination sentence involving imprisonment and a community correction order, or a straight sentence of imprisonment, or a head sentence with a non-parole period, were all open to me.  However, Mr Petric indicated that only a head sentence with a non-parole period would be within range. In my view, Mr Petric is correct.

62In all the relevant circumstances, I have arrived at a sentence which addresses the weight which needs to attach to the sentencing considerations to which I have referred. Strong weight in this case must attach to general deterrence in a bid to deter others from behaving as you have, and I have also attached the weight and to which I have previously referred, to other relevant sentencing considerations.  I have factored in that in respect of the victims of Charges 2 to 4, and in respect of Charges 5 to 7, the same episode of driving occurred in respect of each of these 'sets' of victims, if it can be isolated in this way to that extent, but there is a separate impact on every victim in relation to your conduct, warranting a level of cumulation. However, I have also had regard to the principle of totality in arriving at an appropriate sentence in your case.

63You are convicted of each of the offences.

64In relation to Charge 1, all drivers licences are cancelled and you are disqualified from applying for another licence for a period of two years.

65You are sentenced to the following periods of imprisonment:

66Charge 1: 4 years- this will be the base sentence.

67Charges 2, 3 and 4: 3 years 8 months in relation to each of those charges.

68Charges 5, 6 and 7: 3 years 6 months.

69I direct that 8 months from the sentences on Charges 2 to 4 inclusive and 4 months from the sentences on Charges 5 to 7 inclusive be served cumulatively with each other and the sentence on Charge 1, producing a total effective sentence of seven years' imprisonment, and I direct that you serve five years before becoming eligible for parole.

70I declare that you have already served 418 days in relation to this sentence, which will be deducted from it.

71Is there anything further, counsel, or anything to raise?

72MR OLDHAM:  Nothing further, Your Honour.

73HER HONOUR:  Mr Petric?

74MR PETRIC:  Nothing further, Your Honour, thank you.

75HER HONOUR:  Do you need me to repeat those figures?

76MR PETRIC:  Perhaps just the cumulation.

77HER HONOUR:  Yes.  So the base sentence, Charge 1, 4 years.  Then the cumulation from Charges 2, 3 and 4 will be 8 months in relation to each of those.  Then cumulation in relation to Charges 5, 6 and 7 will be 4 months in relation to each of those.

78MR PETRIC:  Yes, thank you, Your Honour.

79HER HONOUR:  All right, now Mr Oldham, did you wish to have a word with your client before we finish up or will you do that later?

80MR OLDHAM:  I'll contact him later in the week, Your Honour.

81HER HONOUR:  All right, yes, thank you.  Very well, we will now adjourn.

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