Director of Public Prosecutions v Nguyen

[2023] VCC 807

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-01937

DIRECTOR OF PUBLIC PROSECUTIONS

v

TONY NGUYEN

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	16 May 2023
DATE OF SENTENCE:	18 May 2023
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2023] VCC 807

REASONS FOR SENTENCE

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Subject:                    Criminal law Sentence

Catchwords:             Attempted armed robbery – Plea of guilty

Legislation Cited:     Sentencing Act 1991

Sentence:Total effective sentence of 9 months’ imprisonment in combination with a 15-month Community Corrections Order.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Sevdalis	Office of Public Prosecutions
For the Accused	Mr R. Backwell	Theo Magazis & Associates

HIS HONOUR:

1Tony Nguyen, you pleaded guilty before me to a charge of attempted armed robbery, committed on 14 January 2022.  At the time you were 25.  The maximum penalty for attempted armed robbery is 20 years' imprisonment.

2The facts of the matter are set out in Exhibit A, the summary of prosecution opening which forms part of these reasons for sentence. 

Circumstances of Offending

3In brief terms, you were at a BP service station just after midnight on 14 January.  You were getting some petrol.  You were with your girlfriend at the time.  Your victim, Mr Tran, left his vehicle to pre-pay for his fuel. 

4As he walked to the station shop he came up to you and said, 'Your high‑beams are on' and you said, 'What the fuck are you going to do about it?' and kept swearing and said, 'What the fuck are you staring at?' and you yelled at him and the BP shop attendant.  Your victim returned to his car, and as he was filling his car with fuel at the bowser, you approached him and kept saying, 'Why'd you stare at me?' 

5Your victim told you that he did not want any trouble and continued to fill up his car with fuel.  You then came closer to him, standing beside him with your right hand in your pocket and your victim saw the outline of a knife.  You said: 'Give me your wallet, money and phone or I'll fucking stab you.' 

6Your victim became fearful and thought that he was going to be hurt and his items were going to be stolen.  He punched you and threw you to the ground.  In doing so the knife fell from your pocket.  It was a silver flick knife approximately 26 centimetres long.  The fight continued.  Eventually others came and intervened.  You went back to your vehicle and started to fill it with fuel.  Your victim went home and reported the matter to the police.

7At the time of this offence, you were on a community corrections order, 15-month community corrections order, ordered on 8 February 2021 with conditions of supervision, drug treatment and rehabilitation.  This order had been confirmed at the Dandenong Magistrates' Court on 4 May, 2021, following contravention proceedings. 

8A victim impact was filed and read in open court.  The impacts upon your victim have been significant.  I take those matters into account. 

9Upon your arrest, you were remanded in custody on 19 April, 2022.  On 21 November you were sentenced to a term of imprisonment of eight months which lapsed on 18 February 2023, and you have been in custody for that entire period of time.  In relation to this matter, as of today, there are 280 days of pre-sentence detention available to you. 

10In relation to the circumstances of the offending, submissions were made on your behalf that whilst conceding the serious aspects of the offending and of the offence, the submission was that it was towards the lower-end when considering the offending was not over a prolonged period of time, it was spontaneous, unsophisticated, did not involve any degree of pre-planning, the weapon was not produced or pointed at the victim, and you were promptly over-powered by him. 

Personal Circumstances

11I was told about your personal circumstances.  You grew up in the Fitzroy area, attended Fitzroy Primary School and then Coomoora and Keysborough Secondary College until Year 10.  Your father worked in a bakery, your mother was a stay-at-home mum.  You have one older brother, 31 years of age, two sisters, 21 and 11.  You have a sister studying at Monash University.

12You have had some difficulties with your parents, no doubt due to your lifestyle and your drug-use issues.  You clearly have a vulnerability to drug use and your criminal history depicts someone who has been given opportunities on community corrections orders, with a view to addressing your drug-abuse issues, and clearly those orders have failed to work.

13In relation to drug history, I was told you commenced smoking cannabis at 15 years of age and then moved on to MDMA, speed and ice.  By the age of 22, ice had become a real problem for you. 

14Relationship stresses and breakups have also been an issue that have increased drug-use I was told.  When you had not been using drugs, however you have been able to hold positions of employment, working in warehousing, doing container unloading.  You also worked for Telstra installing cablings. 

15The Mental Health Advice and Response Service assessed you at the same time as the community corrections order assessment and you were described as a 26 year old single , childless, unemployed, automotive mechanic and spray painter and you told the service that you were hopeful of finding employment working on cars, and that you will be eligible for Centrelink payments until you find employment.

16I accept that, that you have that in your work history and that is a goal of yours and you are more than capable of attaining that goal.  What you have got to do is get on top of the drug issues. 

Other Sentencing Considerations

17I did have you assessed because the history as told to me was suggestive of the need for some exploration of mental health issues, but I note that the conclusion of that assessment is that in any corrections order, a mental health assessment and treatment would not be necessary. 

18You stated this in the assessment.  You reported you were heavily intoxicated at the time of the offending.  You were misusing methamphetamine and GHB daily.  Your offending behaviour was secondary to your poly-substance misuse and a toxic relationship with your substance-using girlfriend. 

19You stated that you were not currently craving or experiencing any thoughts to use illicit substances and you want to focus on finding employment, regaining a driving licence and being a supportive son to your parents.  You stated you have pro-social friends and acquaintances in the community who do not use illicit substances. 

20Whilst family support was not present during your plea, I accept the history and I do not have any difficulty accepting that should you address your drug-use issues and in a sober state, no doubt your family would be very supportive of you and pleased to see you continue.  You do need supports in order to fully address your substance use issues and the mental health assessment report recommended court-mandated therapeutic programs such as substance-use counselling. 

21It is of concern to the court when one self-assesses as, having been in custody for over 12 months as you now have, and not having cravings, being able to address your drug use. 

22Clearly, given your history, it is a significant problem and one that should not be downplayed.  You will need support and you will need to engage fully and frankly and openly with those supports if it is to work. 

23I have taken into account your plea of guilty, particularly the fact of the plea of guilty during the pandemic and the facilitation of justice that is significant in that context.  I accept there is remorse in your case for your impact upon the victim.

24If you can address your drug issues, I will use that umbrella-term, it is a complex issue, a drug use issue.  To call it dependence or abuse often does not target what the real issue is. 

25Whatever the underlying issues are in your case, Mr Nguyen, you need to get to the bottom of them and work with professionals, otherwise you are going to continue finding yourself in custody.  This is the longest stretch by a significant margin of custody for you and I fully expect it has been a salutary experience and one which will provide you with motivation to engage in pro-social activities, employment, family activities, pro-social friends and working on the drug issue.

26I had you assessed for a community corrections order and you are, despite the history which was fairly pointed out by the prosecutor as to a number of occasions where community corrections orders have been imposed, only to be breached by either offending or non-compliance.  You are at a point where a combination sentence with a corrections order as part of that to address the drug issue has merit.

27I take into account the important factors of general deterrence, denunciation, protection of the community, but also your prospects of rehabilitation.  I have determined that in this particular case, weighing up all those factors, an appropriate disposition is a combination sentence.

Sentence

28The period of imprisonment is nine months and I make a declaration that you have served 280 days pre-sentence detention. 

29In combination with that period of imprisonment, I impose a community corrections order of 15 months duration with two special conditions: (1) That you be assessed for drug treatment and rehabilitation, and (2) That you be subject to supervision. 

30Pursuant to s6AAA, had you not pleaded guilty to this matter, I would have sentenced you to a head sentence of three and a half years' imprisonment with a non-parole period of two years. 

31I make the disposal order that is sought.  I will sign that now.  I think they are the only matters I need to address. 

32MR BACKWELL:  If Your Honour pleases. 

33HIS HONOUR:  All right, thank you both again for your attendance and the efficient disposal of this matter.  Mr Nguyen, you will be released today, and you will have to report for the community corrections order.  Sometimes, very rarely, people - in a very short time - just do not engage with the Corrections order and I take an extremely dim view of that.  You know what happens if you do not attend appointments.  You get breached, you come back before the judge. 

34In this case, you will be re-sentenced if you contravene this order, if you contravene it by re-offending or not doing what is required of you, you will be back before me and I will re-sentence you and it will be a fairly simple exercise from my end. 

35All right, this is your opportunity.  It is your opportunity to break this cycle of ending up where you are now, so I take it you consent to the order?  You are nodding your head.  Can I have a verbal answer.  You consent to the order?

36OFFENDER:  Yes, Your Honour. 

37HIS HONOUR:  Thank you.  All right, that will be sent to him for his signature and then it will be explained where you report once you are released.  Thanks Mr Backwell, thanks Ms Sevdalis. 

38OFFENDER:  Thank you. 

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