Director of Public Prosecutions v Nguyen
[2022] VCC 477
•7 April 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-21-01700
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANTHONY NGUYEN |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 7 April 2022 | |
CASE MAY BE CITED AS: | DPP v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 477 | |
REASONS FOR SENTENCE
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Catchwords: Pervert the course of justice – plea of guilty – no priors –rehabilitation – community correction order – fine
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. McCarthy | Ms M. Koufidis |
| For the Accused | Mr J. Karitzis | Mr S. Hum |
HIS HONOUR:
1 In this matter Mr Nguyen came before the Court by way of plea on 1 April 2022. Mr Nguyen was 29 at the time of this offending and he is now 33, having been born in May 1988.
2 Mr Karitzis appears on his behalf, Mr McCarthy appeared on behalf of the Director and appears again today.
3 Insofar as the indictment is concerned it has one charge only and that is a charge according to common law of pervert the course of justice. That charge pursuant to the provisions of the Crimes Act carries a maximum penalty of 25 years and 3,000 penalty units.
4 The crime concerns the fact that on 31 August 2017, which was the particular date, Mr Nguyen entered a plea on behalf of his brother Luke to offending which had taken place earlier. His brother, being born in January 1991. That offending, in fact, occurred on 13 March 2017 when Mr Anthony Nguyen was stopped on the Sunraysia Highway. He returned a positive drug test to MDMA.
5 Mr Nguyen gave to the police his brother's name and address. If that was not bad enough, he then on 31 August 2017, went to Court to answer the charge, and continued the pretence and was present when his brother, as a result of such pretence, was fined $1,000 and had his licence cancelled and disqualified for four months.
6
The fine was subsequently paid by Mr Nguyen and so it laid until 21 April 2019 when indeed his brother Luke was apprehended for another matter. Upon being checked it was found he had no licence. Thereafter on contact with the accused, Anthony, Anthony was not only remorseful but admitted his behaviour. He attended at the police station for record of interview on
7 September 2019, and ultimately was charged 504 days later with this offending, that is on 2 February 2021.
7 I am not too certain what the reason for such delay was, however steps were being taken by the officers, and appropriately, to ensure that the conviction recorded against the brother was struck from the record and any orders insofar as his licence were deleted.
8 Insofar as the facts of this matter, they were accepted by Mr Karitzis as detailed in Exhibit A, which is the summary prepared by the prosecutor and it was agreed that they are the facts upon which I am to sentence Mr Nguyen.
9 Given the manner in which this Court must analyse those actions, as one can see in the indictment, the offence of intent to pervert the course of justice relates to a series of acts and then ultimately the attendance at the Melbourne Magistrates' Court.
10 Analysing those matters as I must, one can only deem that offending as objectively serious. Such charge involves more than one act, and as the authorities refer, strikes at the heart of the criminal justice system.
11 In this regard, I refer to the case that was handed to me at the plea of DPP v Pullen [2020] VCC 31. In that particular case, point was made of the curial context, which applies here. The circumstances, of course, were in that case quite different, lasted a lot longer and were done for particular impact.
12 As I have said, clearly on any standard, this criminality is objectively serious. Subjectively, it is hard to believe. Indeed, the word stupidity arises when I consider the matter. Initially I thought such acts were done somehow to protect Mr Nguyen's licence. I thought he must have priors that meant if he got caught a second time, he was going to be subject to a longer sentence. However, he does not have any relevant priors.
13 The proposition put by his counsel was that apparently when apprehended he was scared of being disclosed to his family as a drug partaker and therefore started the pretence. As I said, this pretence, given that he lived at the home of his parents where the notices were going to be sent, must have left him in circumstances where he had to intercept any notice, but at any rate there we are.
14 It was apparently for that reason why he used his brother's licence when apprehended at the scene, assumed his brother's name at that apprehension and why subsequently when he went to Court on 31 August 2017, he not only posed as his brother when the case was called, but pleaded to the case as being his brother, and subsequently paid the fine.
15 Again, I ask the question to what benefit, this is why I use the word, stupidity, because in the end there was no benefit to him at all, although ultimately because statutory times for charging him for the actual offence, driving while affected by methamphetamine, passed and in those circumstances he has not at any stage been charged or convicted with driving under the influence, that is because the statutory period had elapsed. However, that clearly could not have been a purpose at the time that this offending took place.
16 As I say, apart from using the word, stupidity, I, in considering this matter, wonder whether there was some misunderstanding of the law, something to do with his background and being a member of a family who has immigrated to this country. It is certainly not consistent with his life prior to that time.
17 I note in particular the apology sent to the Court, Exhibit 2, and the reference to his remorse by his counsel, which I accept. I also notice the strong family support which he has in regard to all the references that have been tendered and referred to, and in particular, the further reference, Exhibit 5B, which has been tendered this morning.
18 I notice the excellent steps he has taken in regard to his employment, both before this offending and since, and the fact that there are no effective priors at all in regard to criminal offending, albeit that he does have some priors for driving offences.
19
Tendered as Exhibit 1, on his behalf, was a report of the psychologist,
Ian Mackinnon. It is noted at the time, which is obvious from the interception, that he was indulging in methamphetamine. The explanation given to Mr Mackinnon was one of panic and, I suppose, what one reads from that is that once he had made the panicked decision he was on a roll and decided to maintain it by going to Court.
20
I note in the report of Mr Mackinnon his comments at p6, that in his opinion
Mr Nguyen's PSAD, that is polysubstance abuse disorder, primarily involving both LSD and MDMA, made a significant contribution to his offending by degrading his ability to reason and make sound judgment, weakening his capacity for consequential thinking, and fuelling cognitive perceptual distortion.
21 While I accept that totally, it is not put and nor do I take it as a Verdins principle 1, 2, 3, but when one analyses his life prior to this time, it seems to me that that makes logical sense, of what I have described as quite stupid behaviour.
22 I also note what I have already referred to on p6, the reference to Mr Nguyen recalling that he had panicked when first apprehended by the police and then did not know how to approach his dilemma in an appropriate way, therefore getting himself into further trouble.
23 I note at p8 of Mr Mackinnon’s report the following statements:
'In this context, in my opinion, Mr Nguyen does not now need assistance to rehabilitate himself. Mr Nguyen appears to have put behind him a tumultuous period in his life, a period he now decries and feels shame and guilt over. In my opinion Mr Nguyen's future prospects appear to be very favourable and he now presents with a low risk of offending.'
24 Insofar as the plea was concerned, Mr Karitzis stressed the issue of remorse, the remorse demonstrated not only by the plea here, but the ongoing steps taken to rid himself of the addiction that he had and improve his business at the same time. Mr Karitzis submitted that that was genuine remorse, not only remorse effected by way of the plea of guilty, and insofar as the plea of guilty, given these times, he relied on the principles of Worboyes insofar as the increased amelioration of sentencing which must come about from the circumstances whereby such pleas take place during these particular proceedings.
25 It is also noted that, as I have already mentioned, there was a particularly lengthy period of delay, and positively for Mr Nguyen not only has he prospered during that time, but despite the struggles he has continued with the business in the successful manner as have been set out to the Court.
26 Mr Nguyen's counsel stressed the need for this Court, given the age of his client, to take into account the issues of rehabilitation. Of course, he is not what one calls a young offender, but he comes before this Court with no priors in the sense of this type of matter or any serious criminal matter, and in that sense the principles of rehabilitation apply.
27
I refer, in particular, to the comments of the current President in
DPP v Tokava[2006] VSCA 156, [21], where the President said:
'A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in a case of a serious offence, if in the long term the community's interest will be best served by that course.'
28 I also refer to the President’s comments in R v Merrett [2007] VSCA 1, [49], where he said:
'As I said in The Queen v Tiburcy, the sentencing court looks to the future as well as to the past. There is very great benefit to the community at large, as well as to the individuals themselves and their immediate families, if future criminal activity can be avoided. It is important that this Court, by its own sentencing decisions, recognise and reward efforts at rehabilitation, just as we should support trial judges who do so. It is important to reinforce in the public mind the very considerable public interest in the rehabilitation of offenders. The preoccupation with retribution which characterises much of the public comment on sentencing is understandable, but it focuses on only one part of what the sentencing court does.'
29 The Court of Appeal considered this topic further in DPP v Millson [2019] VSCA 55, [71], when the Court of Appeal said this:
'…although it is often taken for granted that leniency extended by a judge for the purposes of rehabilitation bestows a benefit on the prisoner alone, commentary in social and news media frequently ignores the fact that the community's interest is best served if well-placed leniency in sentencing may (and often does) lead to reformation.'
30 It was on the basis of those principles that Mr Karitzis made the submission seeking a community correction order, which did not involve a period of imprisonment. His submission was, that based upon the principles set out in Boulton v R [2014] VSCA 342, this was a particularly suitable circumstance where, albeit the seriousness of the offending, the Court should consider exercising both leniency and an emphasis on rehabilitation, amongst the factors that Mr Karitzis put to the Court, and as a result I called for a report which has been tendered today.
31
I want to formally thank both of the organisations who prepared that report. Firstly, insofar as Exhibit C is concerned, I think I have already mentioned,
Ms Morphett, that report is a positive report. It described Mr Nguyen as, upon presentation, being open, honest, and forthcoming. As to the charges, he described himself as feeling embarrassed and ashamed for his actions and appeared to show remorse for those actions.
32
Insofar as Exhibit D, which was the MHARS report, it is not particularly different from what Mr Mackinnon noted, although I do note on p2 that
Mr Nguyen described his mood as generally positive, denying any issues with profoundly low or labile mood. He described the last few years as stressful, stating he found it difficult to make plans and enjoy his life at times, due to the uncertainty with his legal matters, as has been clearly indicated, not only over that long period of delay did he have that hanging over him, but he has had to deal, in regard to his business, with the trials of COVID in this community and the trials of such circumstances upon his business. As I say, they were respectively tendered as Exhibits C and D.
33 Insofar as the submissions of the prosecution, they are set out in Exhibit B. I accept totally the propositions put that this offence, being not only serious, but being in a curial situation, is such that it calls for the effecting of general deterrence and denunciation.
34 It was indeed the view of the prosecution, as set out in paragraph 3 of such submission, that it would not be “in range” to pass a sentence for this case which did not involve a period of imprisonment. That is, the prosecution did not suggest that a community correction order, combined with imprisonment, would not be appropriate, but fundamentally the view of the prosecution was there must be a period of immediate imprisonment given the seriousness of this matter.
35 Between the last occasion when the plea was first heard and today, upon the new material, indication was sought as to any change in such attitude, and as has been indicated today, the proposition put by the prosecution has remained the same.
36 Given the serious nature of this crime, the decision here is obviously exquisite. This is a serious crime, I accept totally the proposition of the prosecution. However, we are dealing with a person who is now 33 years of age without any effective priors, and it has always been the view of this Court that persons who come before the Court for the first time are worthy of a sentence which has within it some leniency.
37
I accept that in the current frame of sentencing law, the propositions put by
Mr Karitzis, for all of the reasons proffered by him, that the principles of Boulton, as detailed, provide the framework to give a person an opportunity, but at the same time allow punishment to be imposed, and to the degree which hopefully would lead to no further offending.
38 As I say, Mr Karitzis and Mr McCarthy, this matter has caused me some disquiet, given the serious nature of this offending. In the end, however, I am prepared to accept the submission that you make, Mr Karitzis, that is to impose a sentence which does not involve immediate gaol. Hence I reject the submission made by the prosecution.
39 However, in addition to any community correction order, I intend to impose a fine. The fine will be substantial. That fine, that I envisage, is a fine of $10,000. The community correction order that I would impose, Mr Karitzis, is for two years.
40
The appropriate conditions will be as detailed in Exhibit D and
Mr Mackinnon's report. I think that persistence with mental health is of importance to your client. I think supervision is important. I would impose a period of work over the two years of 200 hours, and I would not accept the suggestion that any treatment undertaken should in any way reduce those hours. That is, I see the 200 hours when combined with the fine as necessary to appropriately mark the seriousness of this crime.
41 I would also be of the view that your client should undertake whatever assistance there is to ensure that he does not offend again, and of course, in particular, maintains his alleged change of life in the sense that he is no longer partaking of drugs.
42 Give that your client is not here, do you want us to put you in the lobby so you can discuss this with your client, because you will obviously have to point out to him that any breach, given the seriousness of this matter, of the CCO, would almost certainly result in an immediate gaol sentence. I would be inclined to allow a 12-month stay and also my practice is, where I impose a fine, not to refer it to the, what's it called the Costs Court, but for the matter to stay within my jurisdiction if there is any application sought. I would not be granting an extension unless substantial moneys have been paid within 12 months.
43 Does either counsel have anything else to raise about this sentence?
44 MR McCARTHY: No submissions from the prosecution, Your Honour.
45 HIS HONOUR: Thank you. Mr McCarthy.
46 MR KARITZIS: No, Your Honour, thank you.
47 HIS HONOUR: We'll have to leave to give Mr Karitzis the opportunity to talk to his client, you'll put them in the lobby, will you?
48 ASSOCIATE: I'll put everyone else in the lobby, Your Honour, and Mr Karitzis can talk - - -
49 HIS HONOUR: Right, he can talk directly to his client. I'll go and wait until you've talked to your client.
(Short adjournment.)
50 HIS HONOUR: Yes, Mr Karitzis.
51 MR KARITZIS: Thank you for that opportunity. I've explained the terms of that order and Your Honour's indication about any non-compliance, and that's understood by Mr Nguyen.
52 HIS HONOUR: Yes, because it should be very clearly understood by him that I'm not only granting leniency to him but expressing some confidence, as is expressed by Mr Mackinnon, in his continuing the rehabilitation he has effected over the last 504 days. It would be very disappointing for me if he had to come back here and I had to sentence him to a period of imprisonment, which he could be sure that that's what I would do if there are any breaches.
53 Can I also, which I should've done, make a declaration as I am required under s6AAA. The Parliament requires me to indicate the period I would have otherwise passed of gaol. It seems to me in the totality of these circumstances it is almost impossible to follow that direction. The best I can say is in these circumstances, I would not have granted a CCO and would have imposed a gaol sentence.
54 If there's no other matter, we'll adjourn sine die.
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