Director of Public Prosecutions v Nguyen

[2023] VCC 437

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

General List

Case No. CR-19-01195
AP-23-0152

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRIS NGUYEN

---

JUDGE:	HIS HONOUR JUDGE DEMPSEY
WHERE HELD:	Melbourne
DATE OF HEARING:	9 & 17 March 2023
DATE OF SENTENCE:	17 March 2023
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2023] VCC 437

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW - Sentence

Catchwords:          Recklessly cause serious injury, prison stabbing, no VIS, substantial delay, late plea of guilty during pandemic, parity, totality, matters on indictment heard along with sentence appeal from Magistrates’ Court which involved driving and dishonesty matters.

Legislation Cited:                Sentencing Act 1991 (Vic), Crimes Act 1958 (Vic), Criminal Procedure Act 2009 (Vic), Road Safety Act 1986 (Vic).

Cases Cited:Ashe v The Queen [2010] VSCA 119, DPP v Truong [2022] VCC 994, Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41, Worboyes v The Queen [2021] VSCA 169, Boulton v The Queen (2014) VR 308, R v Novakovic (2007) 17 VR 21.

Sentence:  Total Effective Sentence of 12 months to be followed by 12-month CCO with conditions upon release. PSD of 266 days.

S.6AAA Sentencing Act declaration: but for plea of guilty on indictment 3 years with NPP of 2 years, on appeal matter 10 months.

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Ms F Martin	Office of Public Prosecutions
For the Accused	Mr S Kenny	Angus Cameron Lawyers

HIS HONOUR:

Introduction

1I am called upon to sentence Chris NGUYEN, in relation to two matters:

(a)   the first is a particularly nasty assault in company where a prisoner was seriously injured in 2018 that is before me on indictment; and

(b)   the second is an appeal against a sentence[1] imposed in the Magistrates' Court, where he received a sentence of 6 months' imprisonment for offences committed at large whilst awaiting trial for the matter on the indictment. 

[1]Section254 Criminal Procedure Act 2009

2For the totality of this offending, he will be sentenced to a combination sentence involving a term of imprisonment (that will be served beyond today's date of sentence), followed by a Community Corrections Order (CCO) upon his release.

INDICTMENT C1812304

Background

3Nguyen was born in August 1985 and at the time of the offending was 33 years of age.

4His co-accused Cu Truong was 37 years old.

5The co-accused Ben Henderson had since passed away since the incident occurred.

6The victim, Dragon Domazet was 50 years old.

7The incident took place at the Metropolitan Remand Centre ('MRC'), in Ravenhall.

8One of the units at the MRC is named Attwood. At the time of the allegations the accused Truong and Nguyen and the victim Domazet were all incarcerated in the Attwood Unit. Ben Henderson likewise was an inmate of that Unit.

9Truong and Nguyen were allocated cell 45 with Henderson, which was located on the upper tier, 'A' side of Atwood.

10Domazet was allocated cell 51, on the same tier and side of the Attwood Unit.

Offending

11Just prior to 9.18 am on 2 May 2018, Truong and Nguyen were in cell 45 with Henderson, and Domazet in cell 51.

12Truong, Nguyen and Henderson all left cell 45 and walked around the stair corner to cell 51 where Domazet was standing with his back to the three of them. Just prior to getting to cell 51, Nguyen and Truong started running.

13As Nguyen entered the cell, Nguyen raised his hand above his head bringing it down hard stabbing Domazet in the back using what is known as a 'shiv' that was made from a broken toilet brush.

14Domazet immediately turned to fight off both Nguyen and Truong. They were trying to force Domazet further into his cell, whilst he was trying to push them back out. Domazet was able to force his way out of the cell, however the frenzied attack by Nguyen and Truong continued, with Nguyen stabbing Domazet a further three times in the back.

15At the conclusion of the attack, Domazet walked back to the cell 51 while Henderson, Truong and Nguyen walked back to cell 45. Domazet then changed his t-shirt and left the cell walking outside to the yard as did Nguyen and Truong. A short time later Henderson left cell 45 where he walked to cell 66, where he hid the shiv under the toilet rim and a piece of cloth that had been soaked in a bucket under the bench. Both the shiv and cloth were recovered by prison staff later that morning.

16The above conduct constitutes the charge to which Mr Nguyen has pleaded to. The maximum penalty for that offence, being recklessly causing serious injury, is 15 years' imprisonment.

Investigation

17Prison staff became aware of the incident and all prisoners were locked down in the Attwood Unit. Domazet was taken to a holding cell, and then attended to by medical staff before being transported to the Royal Melbourne Hospital.

18Domazet received the following injuries:

(a)   A punctured lung that required emergency treatment to reinflate the lung to prevent a life-threatening condition known as a tension pneumothorax.

(b)   A penetrative wound that nicked the right kidney resulting in continued blood loss which required a procedure to stop the bleeding.

(c)   One stab wound to the back.

(d)   One further stab wound to the neck.

19No victim impact statements are relied upon. To the knowledge of the Crown, the victim recovered fully from his injuries, though self-evidently he was seriously injured at the time and must have suffered as a result of both those injuries, physically and emotionally.

APPEAL AP-23-0152

20While at large, awaiting trial in the above matters, Nguyen committed the offences on three following occasions. [2]

[2]        Exhibit D- Chart of Offences and Penalties.

Informant MORETON

21On Saturday 11 September 2021, just before 6.00 am he drove a Silver Toyota Camry in Rowell Place and collided with a stationary black Volkswagen Amarok. He continued to drive onto Perceval Crescent, Taylors Lakes and collided with a stationary silver Holden Utility registration and a stationary Hyundai Forester that in turn rear shunted into a stationary grey Holden Cruze.(Charge 1 on Appeal Notice careless driving).

22Police arrived and described a description of the accused leaving the area on foot. He had made no attempt to report the damage he caused to the other vehicles to Police (Charge 3 on Appeal fail to report).

23The accused was arrested 15 minutes later and interviewed. He was unlicensed. (Charge 2 on Appeal driving unlicensed).

24He stated he had turned the corner too quick, hit other cars at approximately 60-70 kmph, and then ran off as he was scared. He gave no other reason for leaving the scene and not exchanging details.

25He believed he had fallen asleep at the wheel having taken a sleeping pill earlier that morning.

26Nguyen claimed he thought he had a current license following a recent suspension, but could not produce any paperwork to confirm that he had a current license.

27On Monday 7 February 2022 the accused voluntarily attended Keilor Downs police station for further interview where he confirmed he was driving the Silver Camry Toyota somewhere between Keilor Downs and Watergardens Shopping Centre and recalled the collision. He recalled that they had hired the Silver Toyota Camry from a rental car company on Ballarat Road in Footscray a few days before the incident.

Informant EDMONDS

28On Friday 22 April 2022 at about 2 am the accused was the driver of a BMW Coupe Sedan which was silver, observed to be missing the front bumper, front registration plate and driver's side headlights. Enquires through the Vic Roads Database revealed that vehicle registration had expired on 1 February 2022 (Charge 7 – use unregistered motor vehicle).

29The accused was intercepted by Police on Kingsbury Drive, Bundoora and interviewed.

30He gave his correct name and date of birth. Enquiries through the Vic Roads Database indicated he held a full driver's license which was suspended on 20 November 2021 due to excessive speed Traffic Infringement Notice (Charge 6 -drive disqualified).

31He was summonsed in relation to driving whilst authorization was suspended and driving an unregistered motor vehicle.

32The BMW was impounded due to the accused driving whilst suspended, and presumably because it was both damaged and unroadworthy state. (Charge 8 – use unroadworthy motor vehicle)

33The accused at that time was released pending summons.

34He stated he was unlicensed due to demerit points. He knew the registration of the vehicle was expired and he was driving it to a location he could get it towed from the next day.

35The accused stated the damage to the vehicle was caused from a crash he had had a few days prior with a pole.

Informant MOORE

36At 3.25 pm on 7 of June 2022 he attended the victim's residential premises in Wollert. He rang the doorbell, waited for a minute then jumped the side fence. He used an unknown tool to smash the rear sliding glass door and gained entry to the home (Charge 9 – burglary) He then stole an Omega watch valued at $600 and approximately $100 worth of collector's edition $2 coins. He left via the front door at 3.38 pm carrying a red bag belonging to the victim (charge of theft).

37At 3.42 pm the accused called 13cabs and booked a taxi. He was picked up at 3.50 pm about 1 kilometer from the burglary in Wollert by taxi driver Gurvinder Sandhu.

38He was dropped at May Road, Lalor. He paid his fare of $30 using the collector edition $2 coins stolen during the burglary.

39On 19 July 2022, he was interviewed in relation to the matter.

40He made a no comment record of interview. He was bailed pending a further Court appearance.

Disposition on appeal

41Nguyen pleaded guilty and was sentenced in the Magistrate's Court to a total effective sentence of 6 months, with no pre-sentence detention reckoned as served on the 15 February 2023. He appealed that sentence, so it is presently before me.

MATTERS RELIED ON THE PLEA AND APPEAL

Matters personal to the Accused

42The accused is a 37 year old man of Vietnamese heritage. He came to Australia with his mother when he was aged about 4. His father had previously come to Australia by boat with other members of his extended family. He was raised mostly in Footscray. His father left the family when Nguyen was about 10. There has been little contact since then.

43Nguyen has two older brothers, one of whom now lives in Sydney. Another younger brother passed away approximately three years ago.

44His home environment was challenging during his childhood as there was little money in the family. Both parents worked long hours in the garment industry. After his father's departure, Nguyen's mother was the sole source of income.

45He did not do well at school and stopped attending when he was in Year 8. He stopped going to school because he was associating with negative peer groups and started using drugs. He was ultimately expelled from school because of his non-attendance.

46He started using cannabis regularly in his early teens. By the age of 14 he had started smoking heroin regularly and became addicted, commencing injecting that substance when he was still only 16. He had been addicted to heroin for most of his adult life. He has worked occasionally in unskilled jobs as one would expect from such an impoverished childhood and chaotic adolescence and adulthood.

47He has engaged in various forms of pharmaceutical treatment for his heroin addiction with limited and short-term success. He has not engaged in any long term or residential treatment in the community.

48I note from the Mental Health Community Corrections Screening Program report (MHCCSP),[3] undertaken as part of the CCO assessment, that Mr Nguyen gave a history consistent with chronic low mood and heightened anxiety over a substantial period of time, that would benefit from psychotherapy- something which he has thus far been unable to participate in throughout his life due to the chaos created by his substance abuse. He has insight into the nexus between his poor mental health, unresolved grief (which I will come to below) and substance abuse.

[3]Exhibit 5 – MHARS Report dated 10 March 2023.

49Mr Nguyen has had one significant personal relationship which commenced when he and his partner Trang were in their teens. Despite the chaos that surrounded their lives, that was a relationship that was stable and loving. Trang passed away about 4 years ago from a drug overdose. Mr Nguyen found his partner's body and believes that that overdose was deliberate in the sense that it was suicide. The grief over the passing of Trang weighs heavily upon him.

50The main remaining source of emotional support in Mr Nguyen's life is his mother. She is now 72. When he is in the community, he lives with her and hopes to be able to care for her in the future. Whilst in Vietnam he remained in regular contact with her. She returned to this State in late February 2023. 

Forensic history

51Nguyen has a long criminal history dating back 20 years to 2003. That history includes numerous prior convictions for offences of trafficking, dishonesty, and driving offences (the latter being fully before me in the form of Vic Roads prior convictions which are both persistent and alarming).

52The criminal history illuminates his moral culpability in only a limited way in relation to the prison offending but it is of greater significance in relation to the appeal.

53In the main, he has prior appearances that either directly relate to the possession of, use of or trafficking of drugs, or other acquisitive offences to fund a chronic and ongoing substance addiction issue.

54Whilst he does have prior convictions for interpersonal violence and the possession of dangerous articles, those convictions occurred years ago and are significantly less serious than the offending that is the subject of the indictment.

55He has received in the main, YJC sentences, suspended terms of imprisonment and terms of imprisonment (both with and without non parole periods). He has never been placed on a CCO either as a disposition on its own, or in combination with imprisonment This may be because of the perceived lack of prospects that he enjoyed.

56It is not unrealistic to believe though that undergoing drug treatment as part of a CCO may have a positive impact on the accused and encourage him to seek a drug free life in the future. I might add that this appears to me to be a time to seize upon his motivation to reform and care for his mother meaningfully and not suffer the same fate as his late partner.

57Relevant to the appeal are the following prior convictions:

(a)   Unlicenced driving x 6.

(b)   Careless driving.

(c)   Drive manner dangerous.

(d)   Failing to report collision to police.

(e)   Drive while suspended.

(f)    Drive whilst disqualified.

(g)   No less than 35 instances of Burglary.

(h)   5 of Attempted burglary.

(i)    40 charges of theft (including numerous charges relating to the theft of a motor vehicle).

58It is an unenviable history, born of a most unfortunate background. His prospects are very guarded, but not entirely extinguished.

The Indictment Offending

Context and motivation

59Nguyen did not know his victim well. The attack was apparently preceded by an argument between them during which threats were exchanged. The 'shiv' was a broken toilet brush that had been sharpened.

60The ancillary report of Mr Warren Simmons[4] at [2] makes the broader context clearer, which has a ring of truth to it. It contextualises the offending without justifying it:

Mr Nguyen asserted that his actions were a spur of the moment decision. He had an argument with the victim the day prior, whom he claimed had wanted to fight him. This was accompanied by taunts and Mr Nguyen was called a 'dog' and a 'gook'.  He added he knew he had to act tough towards the threats due to the ethos of the custodial environment and he felt that he got caught up in it. As this occurred in front of the unit, Mr Nguyen felt humiliated as to what had occurred and been observed by others. He attempted to de-escalate the situation but it would seem that he was encouraged to retaliate. He describes his actions as 'stupid', asserting he is not normally a violent person. He added he should not have gone as far as he did, adding that it was not his intention to cause the level of injury to the victim. Nonetheless, he did accept responsibility for his actions.

[4]Exhibit 3 – Supplementary Report of Warren Simmons dated 5 March 2023.

61Later on, in the report of the Office of Corrections assessor in March 2023,[5] he confirmed similar motivations existed when committing this offence, and added he still did not intend the offending to go as far as it did and wishes he could take back his actions on that day.

[5]Exhibit 4- CCO Pre-Sentence Assessment Report dated 10 March 2023.

Offence Gravity

62It is acknowledged that because of the inherently serious nature of the offence of recklessly causing serious injury, principles of general and specific deterrence, denunciation, and just punishment must loom large in the instinctive synthesis. In assessing the seriousness of the offending, regard must be had to the objective features of the conduct, and degree of aggravation. In cases of recklessly causing serious injury, particular regard must be had to the extent to which the offender adverted to the actual consequences of his/her conduct.[6]

[6]Ashe v R [2010] VSCA 119 at [27] – [32].

63The following features are present in this case:

(a)   The injuries carried a risk to life if left untreated.

(b)   The offence was committed with a weapon.

(c)   The offence was committed in company.

64It should also be noted that:

(a)   While the injuries were caused by multiple strikes, the attack was not protracted.

(b)   There is no evidence of a particular animus nor that the complainant is a person who was afraid of Mr Nguyen or either of his co-accused, before or after the attack.

(c)   There is no evidence that the injury had left the complainant with significant, permanent disability.

65Whilst there are aggravating factors, it is submitted that the offending does not objectively fall in the most serious category for offences of this type. The Crown agrees with this assessment. Having said that, plainly it is serious enough.

66Judge Gwynn, in sentencing the co-accused Truong[7] noted this:

[14]  It is the prosecution case that you intended to cause injury to Domazet but did not anticipate that Nguyen would injure Domazet as seriously as he was. It is not sought that you bear criminal responsibility for the actual stabbing.

[15]  Nevertheless, this is obviously still serious offending. It occurred in circumstances where there were two to three persons on one, entering the victim's cell in circumstances where he had little, if any, opportunity to defend himself. Presumably this was part of the plan.

[7]DPP v Truong [2022] VCC 994.

67Her Honour’s observation in Truong's case are apposite here as well:

[18]  In terms of an assault within the prison system, a victim in the circumstances has little choice but to be where he is and has a reduced ability to protect himself. Prisoners, who largely rely on prison authorities to protect them from such violence, should be able to see the court as a form of protection against violence from their fellow prisoners in the sentences that are imposed.

[19]  General deterrence is therefore of considerable import so that others do not follow your example. This, in turn, is of assistance to the general safer management of our prison system.

68Mr Kenny rightly conceded that these above matters are proper matters for me to weigh in the balance when I am sentencing in this case.

69Current sentencing practices are one factor, amongst many others, that must be taken into account when I fix a just sentence.[8] Sentencing Snapshot 239 is relied on, and I have considered that statistical data to the extent that I find it assists me.

[8]Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41 at [68].

The Appeal Offending

70The offending that is the subject of the matters on appeal were committed whilst Mr Nguyen was using drugs heavily and leading a chaotic lifestyle. Whilst he was living with his mother, he was not spending a great deal of time at home. The offences of burglary and theft in particular were committed in order to fund his addiction to heroin.

71The total value of the items stolen in Charges 9 and 10 was $6,190. In Charges 9 and 10, he used rare collectable coins taken from the property to pay for the taxi ride away from the place that he had just burgled and stolen from.  

72The charges in relation to 1, 2, 3, 5 and 6 all involve multiple driving offences. In Charge 6 he made admissions that he knew he was unlicenced at the time of driving. His driving history is, as I have already said, lamentable.

MATTERS OF SENTNCING PRINCIPLE

Sentencing purposes & principles

73I have already made observations regarding the recklessly causing serious injury charge, especially in the context of a prison environment. I need not repeat them now.

General and specific deterrence

74Nguyen has a significant history of theft and burglary charges as well as a lengthy driving history and continues to reoffend in a similar matter. Orders imprisoning him and prohibiting him by law from driving a motor vehicle appear to have very limited utility in deterring him thus far.

Community protection

75The community expects their property to be safe from those such as Mr Nguyen and likewise expects a person not to be driving when they are unlicensed or otherwise suspended. Such offences put the community at risk. There are of course other ways of protecting the community than solely by removing that individual from society at large. The community may be protected in the longer term by structuring a sentence to supervise, guide and otherwise promote their reform.

Totality

76Totality is a relevant consideration given the present appeal matter is heard alongside the indictment matter.  That is, both the appeal charges and the indictment charges are being dealt with at the same time.  I will order cumulation such as I see appropriate to arrive at a just and proportionate sentence that does not infringe the principle of totality.

Plea of guilty

77This was anything but an early plea. Nonetheless, the accused should still receive a meaningful discount for his plea because of its inherent utilitarian value, and because it is reflective of a willingness to facilitate the course of justice. There is also a greater utilitarian value to his plea than there might be at other times as a result of the current pandemic.[9]

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

78Further, a plea of guilty reflects an acceptance of responsibility (finally) evidenced by Mr Nguyen for his conduct and give finality to the complainant.

79Ms Martin with typical fairness accepted that the plea as well as other matters were evidence of remorse.

Hardship in custody

80Mr Nguyen served the balance of his remand and prison time back in 2018 in management. That has continued once again now he has been incarcerated again, this time with the diminution of services and isolation that is suffered by many of those imprisoned during the pandemic. I take into account the generally punitive way in which he has served his time to date, reducing the need for me to impose a longer term of imprisonment to achieve a sentencing purpose of punishment.

Delay

81I am acutely aware that I am now called upon to sentence this offender nearly five years after the indictment offence was committed.

82The instant case has been hanging over his head in some way since he was spoken to by police on the date of the offending. This very significant delay is attributable at least to some degree to the delay in charging him not until he was released from his sentence back in 2018 (depriving him, in my view, of any real chance of partial concurrency at least had the matter been capable of being dealt with then, the Covid pandemic, and later by his failure to appear at trial. Mr Nguyen has had this case hanging over him, causing anxiety for more than four years.

83It is not possible to say that the delay was productive of real long-standing reform, but I note it was not really until early 2022 that the accused unraveled and
re-offended. His only court appearances between his release in 2019 and now (other than the appeal) was a matter in mid-2022 - a matter where the offending was so mild he was fined.

Parity

84Truong pleaded guilty to the offence of intentionally causing injury before Judge Gwynn in June of 2022. He was sentenced on a different basis to Nguyen (as I noted above) and received a term of 4 months imprisonment.

85The Crown assert that there is difference in the objective gravity of the offending of the accused vis-à-vis Truong, and the moral culpability of this accused is higher than that of Truong. Mr Kenny accepts that this is so.

86It should be noted that, not only did the co-offender resolve his matter in June 2022, but psychological material referred to on his plea indicated substantial remorse for the offending and that he had suffered anxiety compounded by his time in prison.

87Upon further analysis of the sentence imposed on Truong, there are other reasons to distinguish him from this accused. The accused are of similar ages, and both have had their lives marred by substance abuse. True it is that Truong appears to have more of a history of violence in his past, but he was found to be someone who was more easily led. Upon his release from prison in 2020, he had not
re-offended. He resumed contact with his estranged young daughter. He had gained employment. He was drug free. His prospects at the time of sentence were 'markedly improved' given the almost unprecedent level of stability he enjoyed in his life at the time Judge Gwynn dealt with him. That, combined with his role and culpability in the present offending warranted what was seen as a four month 'short sharp sentence' that was imposed. There was little need in Truong's case for the kind of safeguards and supervision implicit in a CCO to be imposed following his release. That cannot be said for Mr Nguyen – in fact, I was invited to structure a sentence to include that kind of post release supervision.

88To the extent that both accused were complicit in being a party to assaulting the victim, there is a clear difference in their roles, actions and culpability between the two.

89This is especially so in circumstances where this accused armed himself with a makeshift weapon and then inflicted serious injury with the relevant intent in a way that his co-offender did not. Nguyen's culpability and criminality is measurably higher, and his prospects are more guarded that that of his accomplice.

90I had regard to the principles of parity and considered those aspects of the offence in common (as well as those aspects of the offender that might be in common). I have strived to impose a sentence on Nguyen that is disparate to that imposed on Truong, but not so disparate as to engender a justifiable sense of grievance.

91This disparity will manifest in both the additional time to be served in custody on the indictment offence that occurred in prison but will also be reflected in the length and conditions imposed as part of the CCO upon his release.

Risk of re-offending and prospects of reform

92Mr Nguyen has been assessed by psychologist Warren Simmons as having Opiate Use Disorder. Plainly, his rehabilitation will be contingent upon him abstaining from heroin use.[10] I have made comments regarding his guarded prospects elsewhere in these reasons.

[10]Exhibit 2 – Report of Warren Simmons dated 23 January 2023 at [24] – [27].

93It is beyond argument that a period of supervised release during which Nguyen can engage in supervision, including treatment for drug addiction and mental health will mitigate against the risk of re-offending. I propose to facilitate that by way of imposition of a combination sentence.

Ultimate sentencing submissions

94The Crown submit that the sentence involving a term of imprisonment in combination with a CCO would not fall outside the appropriate range.

95The Crown argued that consideration ought to be given to imposing a term of imprisonment greater than that which the accused has already served before he be released on a CCO. In my view, that was not an unreasonable submission, especially as Mr Kenny very sensibly did not argue for his client's immediate release.

96The Crown also legitimately argue for a custodial sentence to be imposed on the appeal matters with respect to the Informant Moore (that is Charges 9 and 10) and further submitted that there should be a degree of cumulation with the plea matter on the Appeal (CR-19-01195) and it would be open for me to order same in the circumstances. I will adopt this course.

97Mr Nguyen accepts that any sentence imposed upon him in the instant matter must include a term of imprisonment. It was powerfully submitted that having regard to the matters outlined above though, the principle of parsimony, and the guideline judgement in Boulton,[11] that a sentence which involved the imposition of a Community Corrections Order after a term of imprisonment was within range.

[11]Boulton v The Queen (2014) VR 308.

98A CCO, whether stand alone or in combination with a term of imprisonment can, in certain circumstances, be an appropriate sentence to impose even for serious offending. In my view, having regard to the principles established in Boulton, this is such a case. After careful consideration I am persuaded that a combination sentence is appropriate. This conclusion does not mean that Mr Nguyen will be released immediately.

99The Office of Corrections, though, while noting that Mr Nguyen presents a high risk of re-offending, describe a man who was polite, forthcoming, and overall, well engaged with the assessor. He appears to be motivated to take advantage of programmes and treatment designed to assist his reform and the time as I said, appears right for me to provide him with such an opportunity.

100The tenor of the reports (CCO and MHCCSP) is that they can and will implement interventions that are targeted to address substance use and mental health. It is this proposed targeted intervention that is an attractive option when sentencing. I have settled on a period of 12 months as this is an appropriate period of time to have this accused under this supervision of the Office of Corrections, who will be implementing the very conditions that I have imposed.

SENTENCE

101Having considered, balanced and weighing the various sentencing considerations raised by this case, I sentence the accused as follows:

102On Charge 1, recklessly causing injury, he will be sentenced to a term of imprisonment of 10 months combined with a community corrections order for a period of 12 months with conditions.

103On the appeal matters I set aside the order of the Magistrates' Court and impose the following sentence:

(a)   Charge 1, convicted and fined $2,000 as part of an aggregate.

(b)   Charge 2, unlicenced driving, convicted and sentenced to one month imprisonment, which is part of an aggregate.

(c)   Charge 3, Fail to report accident, one month which is part of the aggregate imposed on Charge 2.

(d)   On Charge 6, which is the drive while disqualified offence, convicted and sentenced to one month which is part of the aggregate imposed on Charge 2.

104Where the informant is Moore, Charge 9, burglary, convicted and sentenced to a six month aggregate term of imprisonment and Charge 10, is part of that aggregate term of imprisonment.

105There are no orders for cumulation with respect to the matters dealt with on the Appeal, that is to say it is my intention to impose a sentence of imprisonment of six months which is an aggregate, and the aggregate fine is $2,000 on the relevant charges which would be Charge 6, drive while suspended, the accused's driver's licence is disqualified for a period of two years effective from 15 February 2023.

106I will order two months of the sentence imposed on the Appeal matter to be served cumulatively on the 10-month term of imprisonment imposed on the indictment.  It is my intention to impose a total effective sentence of 12 months and provided that a consent is forthcoming, to a further 12-month community corrections order with conditions. 

107I will declare that a total of 266 days pre-sentence detention has already been declared as served.

108I will outline the conditions of the proposed community corrections order now and ask the accused for his consent.  Each community corrections order, including this one, contains certain conditions. They would be:

(a)   not to commit another offence punishable by imprisonment during the period of the order;

(b)   comply with any obligation or requirement prescribed by the regulations;

(c)   report to or receive visits from the Secretary during the period of the order;

(d)   report to South Morang Community Correctional Centre within two working days of the commencement of this order;

(e)   notify the Secretary of any change of address or employment within two working days after that change;

(f)    not to leave the state of Victoria, except with the permission of the Secretary; and finally

(g)   comply with any directions given by the Secretary that is necessary for the Secretary to give, in order to ensure compliance with the Order.

109Those conditions will be augmented by special conditions that I propose to impose.  The first is that the accused be:

(a)   subject to the supervision by the Office of Corrections.

(b)   he complete 60 hours of unpaid community work over the 12 month duration of the order.

(c)   he undergo assessment and treatment, including testing, for drug abuse and dependency as required.

(d)   he undergo assessment and treatment, including testing, for alcohol abuse or dependency as directed.

(e)   He must undergo programs consistent with the purpose of treatment and rehabilitation which may include, but are not limited to, employment.

(f)    he is to undergo such offender behaviour programmes as directed in order to reduce the risk of his re-offending.

(g)   In order to provide an incentive to this accused I propose to order 20 hours of treatment and rehabilitation completed by this accused to come off the 60 hours of unpaid community work that I have ordered.

(h)   Finally, I will order judicial monitoring with the first date being sometime in August.

PSD

110Pursuant to s18 of the Sentencing Act 1991, I declare the accused has served a total of 266 days by way of pre-sentence detention, not including today's date. That period will be reckoned as already having been served in satisfaction of this sentence, and that detail will be entered in the records of the court.  This represents the total amount of time the accused has spent in custody in effect for both matters before me and his Counsel agreed that the declaration that I have just made was the proper way for me to reflect this.

Section 6AAA Indication

111Pursuant to s6AAA of the Sentencing Act 1991, but for the plea of guilty, I would have imposed a term of imprisonment of three years with a non-parole period of two year on the indictment matter.

112On the appeal matter, I would have imposed a term of imprisonment of 10 months.

Ancillary Orders

113The Compensation Order that is sought in relation to Charge 10 will be made in full.

114Finally, all drivers licences and permits are disqualified and Mr Nguyen is disqualified from driving for a period of two years backdated from 15 February 2023. I understand that this means he will be performing his CCO without the convenience of being able to drive to meet appointments and engage in other activities that might require a licence. Nonetheless such a period of time is necessary in order to reflect the offenders poor history of driving, and reflects my application of the principles enunciated in R v Novakovic.[12]

[12] (2007) 17 VR 21.

- - -