Director of Public Prosecutions v Nguyen

[2023] VCC 1458

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-02315

DIRECTOR OF PUBLIC PROSECUTIONS

v

CAO THIEN NGUYEN

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	19 April 2023
DATE OF SENTENCE:	4 May 2023
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2023] VCC 1458

REASONS FOR SENTENCE

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Subject:  Armed robbery in company (category 2).

Catchwords:             Guilty plea – early plea – young offender – limited criminal history.

Legislation Cited:    

Cases Cited:R v Steelie Morgan [2010] VSCA 14; Bugmy v R (2013) 249 CLR 571; R v Mills (1988) 4 VR 235; R v McKee (2003) 138 A Crim R 88; DPP v Perry (2016) 50 VR 686; Lord v The Queen [2018] VSCA 52; Azzopardi v R (2011) 35 VR 43; DPP v Paul Milson [2019] VSCA 55; Worboyes v The Queen [2021] VSCA 169

Sentence:Two years’ imprisonment, non-parole period of one year

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Stevic	Office of Public Prosecutions
For the Accused	Ms M. Shanahan	Slades & Parsons

HIS HONOUR:

1Cao Thien Nguyen, you have pleaded guilty to one charge of armed robbery.

2The maximum penalty for the offence is 25 years' imprisonment.

Circumstances of offending[1]

[1] The circumstances are set out in the Summary of Prosecution Opening dated 05 April 2023 (Exhibit A).

3On 24 June 2022, you phoned Nhan Thai, who was selling alcohol online and ordered a $250 bottle of whisky.  You arranged to meet him at an address at Albanvale.

4He drove there with a friend.  When they arrived, you were standing in the driveway of a house.  He got out of the car and spoke to you about the whisky purchase.  At the same time, two co-offenders, wearing balaclavas and carrying machetes, ran from nearby Diamond Avenue Reserve towards you.

5Thai got a golf club from the boot of his car to defend himself.  The two
co-offenders slashed the golf club with their machetes.  You got into the car and released the boot lever.  You, with your co-offenders, took the whisky bottle from the boot.

6As the three of you ran off, one of your co-offenders smashed the car's windscreen with a machete.

Arrest and remand

7Police arrested you on 20 July 2022 at your home.

8They had identified you as a suspect because you had used your phone number when you ordered the whisky from Thai, and you had left a fingerprint inside the car when you opened its boot.

9At interview, you denied any knowledge of the robbery.

10You were charged with armed robbery and other offences and remanded in custody.

11At a committal mention, you pleaded guilty to the charge on the indictment.

Criminal history

12You have admitted one prior court appearance.

13On 22 June 2022, at Melbourne Children's Court, on a charge of violent disorder, you were released on a good behaviour bond without conviction.

Personal circumstances

14You were born in March 2003.  You were 19 years old when you offended.

15Your personal circumstances are set out in the psychological report of Carla Lechner who assessed you on 31 March 2023.[2]

[2] Exhibit 3 (‘Exhibit 3’): Psychological Report of Carla Lechner dated 31 March 2023 with Addendum dated 18 April 2023.

16You were born in Vietnam.  You have an older sister.

17You told Ms Lechner, when you were an infant, your father, who was a heroin addict, died following an overdose.

18You mother re-partnered with another heroin addict, Suw.  You said he was physically and verbally abusive, and your mother was also, to a lesser degree.

19You described yourself as a 'black sheep' and 'troublemaker' at primary school.

20Eventually, your mother left Suw and met another man, Dung, who sponsored your mother, sister and you to Australia when you were eight years old.

21You lived in the St Albans area and attended local schools.  You said Dung was largely absent and 'always working' and the marriage only lasted two to three years.

22You told Ms Lechner you were bullied at primary school because of your lack of English and had no friends.  You said your secondary schooling was 'better' because you made friends and enjoyed maths.  You said by Year 9, you stopped trying at school because your family stopped caring about how you were going.  You did a number of pre-apprenticeship courses and, in 2021, started a plumbing apprenticeship.  That employment was brief.  You said you did some casual warehouse work for one to two months before you were arrested.

23In 2020, you were involved in an altercation which resulted in a fatal stabbing.  You were charged with murder and spent a month in juvenile remand custody.

24On 19 November 2020, you were released on intensive bail.[3]

[3] Exhibit 2: Intensive Bail Progress Report dated 2 June 2022.

25Eventually, you pleaded guilty to a charge of violent disorder and were sentenced on 22 June 2022.

26Your compliance with bail had been impressive.  You had no further police involvement, you attended 96 per cent of your scheduled appointments, you completed several psychosocial programs, and you were active in furthering your education and securing employment.[4]

[4] Ibid, p 3.

Psychological opinions

27You told Ms Lechner your 'normal' is being sad.[5]

[5] Ibid, p 4.

28You said since childhood and through adolescence, without a father and with an unsupportive mother, you have felt a failure and a misfit.  You also said witnessing a fatal stabbing had deeply affected you.

29When Ms Lechner asked you about your offending, you acknowledged your wrongdoing.  You said:

It was a poor decision ... my friends wanted to rob this guy and I just wanted to be cool ... I called this guy up and was going along with it ... my friend smashed his car and we ran off.[6]

[6] Exhibit 3, p5.

30You said you had no intention of hurting your victim.  You conceded he would not have known that and would have been 'terrified'.[7]  You admitted your behaviour was 'shameful'.[8]

[7] Ibid.

[8] Ibid, p 6.

31Ms Lechner wrote:

In the absence of a positive male role model, Mr Nguyen has found it particularly difficult to negotiate the tasks usually attendant to the adolescent phase of development such as identity formation, establishing a sense of belonging and of future direction.  He ... is highly reliant on external sources of affirmation to feel worthwhile.[9]

[9] Ibid, p 5.

32In her opinion, you are socially and emotionally immature.[10]  She continued:

He has the cognitive ability to engage in reflective and consequential thinking but is easily overwhelmed by social and emotional factors that underpinned his judgment and decision-making.  Mr Nguyen's need for peer acceptance, approval and inclusion overrides all other considerations.[11]

[10] Ibid, p 3.

[11] Ibid.

33Ms Lechner assessed you for psychological distress and trauma.

34Testing indicated long-term symptoms of complex PTSD which, in her opinion, are due to your exposure to complex developmental trauma.[12]

[12] Ibid, p 4.

35In her opinion, your post-trauma symptoms are likely to be aggravated in the prison environment[13] and your imprisonment is likely to be more burdensome than for a person without your mental health problems.[14]

[13] Exhibit 3, Addendum dated 18 April 2023, para (iii).

[14] Ibid, para (iv).

36After your arrest, you were remanded at Melbourne Assessment Prison before you were transferred to the Metropolitan Remand Centre and then Fulham Correctional Centre where you have worked as a cleaning billet and completed food handling programs.

37Your sister, with her husband and a younger brother, supported you in court.

38Ms Shanahan, who appeared on your behalf, told me you are facing a charge of aggravated home invasion as a result of an incident which occurred on 18 June 2022.  There are four juvenile co-accused.  There is a committal hearing in the proceedings against you later this month.

Defence submissions

39In written and oral submissions, Ms Shanahan acknowledged your offending was inherently serious.[15]

[15] Exhibit 1: Defence Outline of Plea Submissions dated 17 April 2023.

40She submitted while there was a degree of planning to your crime, it was relatively short, lasting minutes, and considering you used your phone to contact Thai and made no attempt to disguise yourself, your participation was unsophisticated.

41In mitigation of your penalty, she relied on:

(a)your early guilty plea;

(b)your remorse;

(c)your psychological conditions to engage Verdins principles 5 and 6;[16]

(d)your youth – you are a young offender;[17] and

(e)your traumatic and dysfunctional childhood[18]

[16]R v Steelie Morgan [2010] VSCA 14.

[17]R v Mills (1998) 4 VR 235, 241; Azzopardi v R (2011) 35 VR 43.

[18]Bugmy v R (2013) 249 CLR 571, [44].

to moderate your moral culpability.

42She submitted

(a)your limited criminal record;

(b)your supportive family; and

(c)work history

are protective factors for your rehabilitation.

43While acknowledging a prison sentence is inevitable,[19] she submitted the mitigating factors should moderate your sentence to a term which does not exceed the time you have spent in custody.

[19] Armed robbery committed in company is a category 2 offence.

Prosecution submissions

44Ms Stevic, who appeared for the prosecution, in written[20] and oral submissions, submitted your offending is a serious example of the crime, considering:

(a)there was a degree of planning;

(b)you lured the victim to a place near a reserve at night where the
co-offenders would make a surprise attack; and

(c)your two co-offenders were both armed with machetes and used them.

[20] Exhibit B: Prosecution Submissions dated 18 April 2023.

45She fairly acknowledged your early guilty plea:

(a)has high utilitarian value, greater during the public health pandemic; and

(b)is evidence of your remorse.

46She accepted Ms Lechner's opinions enliven Verdins limbs 5 and 6.

47She submitted the consequences of your childhood trauma, as Ms Lechner assessed them, are a relevant circumstance but not to a degree which would warrant a reduction in your moral culpability

48She submitted the importance of rehabilitation in sentencing a young offender, as you are, must be balanced against the seriousness of the crime you have committed.[21]

[21]Azzopardi v R (2011) 35 VR 43; DPP v Paul Milson [2019] VSCA 55, [71].

49She submitted because of the seriousness of your offending, the court ought be guarded about your prospects of rehabilitation.

50The prosecution submission was, in all the circumstances of your case, a prison term is required.

51Ms Stevic told me one of your co-offenders was apprehended but not charged; the other remains unidentified.

Consideration

52Violent theft offences are invariably a terrifying experience and threaten the community's sense of security.

53In Lord v The Queen,[22] the Court of Appeal said:

The offence of armed robbery is inherently a very serious offence ... The very high maximum is the clearest indication of how seriously the offence is to be viewed.

[22] [2018] VSCA 52, [11].

54Because you committed the armed robbery in company with others, your crime is a category 2 offence.  Accordingly, unless a statutory exception is established, I must impose a sentence of imprisonment upon you.

55There are concerning features to your offending, namely:

(a)There was a degree of planning to your offending:

(i)you targeted your victim using the pretext of a liquor purchase; and

(ii)you chose a place, in advance of the robbery, to meet him.

(b)You committed the crime in company with two co-offenders.

(c)You committed it at night.

(d)While there was no physical harm to your victim, your co-offenders used their weapons when he attempted to defend himself. And one of them gratuitously damaged his car as you left.

56The value of the property you stole was relatively low, $250.  You were not armed yourself.  Nevertheless, you were integrally involved in the planning of the robbery, and though you were less involved than your co-offenders in its execution, you assisted by opening the car's boot to steal the whisky.

57While Mr Thai did not make a victim impact statement, I have no doubt he was terrified when, with two others carrying machetes, you confronted him.

58Overall, I assess the objective gravity of your crime to be low to mid-range.

59I take into account a number of mitigating factors to moderate the sentence I will impose.

60Firstly, you are entitled to a demonstrable sentencing benefit for the high utilitarian value of your early guilty plea, which also attracts Worboyes[23] considerations.

[23]Worboyes v The Queen [2021] VSCA 169.

61Secondly, I accept your plea and its timing and your expressions of contrition to Ms Lechner show you are remorseful.

62Thirdly, I accept your childhood exposure to developmental trauma moderates your moral culpability to a modest degree.[24]  While your cognitive ability is not compromised, you have a vulnerability to peer pressure, which, I accept, influenced your decision to get involved in the commission of this crime.

[24]Bugmy v R (2013) 249 CLR 571.

63Fourthly, I accept you have post-traumatic symptoms which are likely to be aggravated in the prison environment and will make prison harder for you than for a prisoner without your mental health problems.[25]

[25]Verdins limbs 5 and 6.

64Fifthly, and perhaps most significantly,[26] you are a young offender.  While, because of the seriousness of your crime, appropriate weight must be given to general and specific deterrence, your rehabilitation remains a primary sentencing consideration.[27]

[26] Together with your guilty plea.

[27] R v Mills (1988) 4 VR; Azzopardi v R (2011) 35 VR 43, [34]-[40]; DPP v Paul Milson [2019] VSCA 55, [71].

65While it is not easy to assess your prospects, there are protective factors for your rehabilitation, namely:

(a)your youth;

(b)your remorse;

(c)your limited criminal record;[28]

(d)your solid work history; and

(e)your family support.

[28] However, you also stand charged with another serious crime.  Ms Shanahan told me that proceeding will likely proceed to trial.

66The legislature requires me to impose a prison term on you.  Ms Shanahan did not argue otherwise.

67She submitted I should impose a straight sentence, equivalent to time served, upon you.

68In my view, that type of sentence is not appropriate because:

(a)considering the seriousness of your crime, a prison term of nine months is insufficient to achieve sentencing purposes, which include general deterrence[29] and just punishment[30] as well as your rehabilitation; and

(b)a prison sentence without an opportunity for release under supervision would be detrimental to your rehabilitation.

[29]R v McKee (2003) 138 A Crim R 88, [10].

[30]DPP v Perry (2016) 50 VR 686, [155].

69Mr Nguyen, by the sentence I impose, I must denounce your conduct, punish you, and deter you and others from committing crimes of the same or similar kind.  I must also look to your rehabilitation.

70Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charge of armed robbery you are sentenced to two years' imprisonment.

71To mitigate punishment in favour of your rehabilitation, I fix a minimum
non-parole period of one year.

72I declare you have already served 288 days of your sentence by way of
pre-sentence detention.

73While there is some artificiality to the process, I declare but for your plea of guilty, I would have sentenced you three years' imprisonment and fixed a minimum non-parole period of two years.

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