Director of Public Prosecutions v Nguyen

[2022] VCC 99

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
 Not Restricted
Suitable for Publication

Case No. CR-21-01488

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARTIN DAI NGUYEN

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JUDGE:	HER HONOUR JUDGE ELLIS
WHERE HELD:	Melbourne
DATE OF HEARING:	7 February 2022
DATE OF SENTENCE:	9 February 2022
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2022] VCC 99

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Plea of guilty- one charge of blackmail- 30 years old- rehabilitation- substance abuse issues- circumstances of COVID-19 pandemic.

Legislation Cited:      Crimes Act 1958; Sentencing Act 1991;

Cases Cited:Worboyes v R [2021] VSCA 169;

Sentence:                  Community Correction Order for a period of 18 months. Supervision, unpaid community work and drug and alcohol assessment conditions. S 6AAA a term of imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms H. Edwards	Office of Public Prosecutions
For the Accused	Mr A. Kimmins	Phillips Crawford Lawyers

HER HONOUR:

1Martin Dai Nguyen you have pleaded guilty to one charge of blackmail contrary to s87(1) of the Crimes Act 1958, which carries a maximum penalty of 15 years' imprisonment.

2The circumstances of your offending are set out in a Summary of Prosecution Opening which was Exhibit A on your plea hearing.  The victim in this matter is Fen Sung[1], a woman with whom you were in a relationship from October 2020; and shortly after you met, she moved into your apartment.

[1]A pseudonym.

3During your relationship with Ms Sung, you recorded photographs and videos of the two of you engaging in sexual acts (that is the recordings).  Ms Sung was of the belief that you had deleted them.  Unbeknownst to Ms Sung, however the recordings were saved on your iCloud account.

4Your relationship with Ms Sung was initially a positive one.  Over time tension developed within the relationship, and you became increasingly upset that Ms Sung wanted to spend time with her Vietnamese friends.  You were struggling to manage your issues of trust.  Ms Sung felt that your behaviour was controlling.  The relationship came to an end on 16 April 2021, following an argument whereby she wanted to go out with her friends.  I should say I do not take that into account as an aggravating feature, it is not an element of the offending but it does provide the context for this offending.

5The following day, 17 April 2021 you began messaging Ms Sung via text message Facebook Messenger and Instagram.  You demanded that she return a camera box, apartment keys, some earrings and a Louis Vuitton handbag that you had given her during the relationship.  You demanded that she pay you $1,250.  You concluded your message with the following,

'Lmk how soon you can organise this before I ruin your career here in aus with some cute videos;)'

6Ms Sung understood this to be a reference to the recordings made of the two of you engaged in sexual activity.  You told Ms Sung to return the property and to make payment sought by midnight or the videos would be ‘leaked’.

7You then sent Ms Sung a series of text messages, Facebook messages and Instagram messages demanding money and property.  These messages included the following;

·        'And if I don’t get my money back I’ll ruin your life forever';

·        'I want the min cash of $1.25k and the stuff if not I’ll leak and ruin you';

·        'Now let me show you what you took for granted.  I’ll show you wat it’s like when I don’t fucking love you.  I want my belongings back tonight or I’ll leak';

·        'Once the videos leak it will be more challenging for you to ever probably climb your way up in finance world.  It will forever be on the internet.  And I’ll make sure the SEOs are done in a way when people search any relevance to you they will find it.  That I promise you Fen';

·        'Hey, I’m leaking the videos now'; and

·        'Now you doing this just showed me I really can’t trust you to peacefully negotiate with me'.  This message was followed by an attachment of one of the recordings.

8You sent to Ms Sung a screenshot of a draft Facebook message.  In this draft message you threatened to attach the recordings and send them to the victim’s mother.  Ms Sung called her mother and told her to block you from Facebook so that you could not contact her.  You then sent Ms Sung a message thread in which you threatened to send her a message from another account and that her mother would get the video first if you did not hear back from Ms. Sung.  You threatened to then send the recordings to her father.

9Ms Sung was frightened by the text messages and at 6 pm on the same day, 17 April 2021 she attended West Melbourne Police Station to report the threats.  Later that evening, police attended at your apartment building, and at 11.15 pm intercepted you in your car at the entry to the building’s garage.  You were arrested and your mobile phone was seized.

10You participated in a record of interview where you made a number of admissions.  You explained to police that you had taken some cocaine because you were upset with what happened with Ms Sung and you had been emotional.  You told police in effect, that you had no intention of doing what you threatened to do.  With respect to the draft message that you threatened to send to Ms Sung’s mother, you told police that you never had any intentions to actually do it, stating 'I gave her that belief if she was not gonna pay my money.'  You told police that your intention was to bluff to really get her attention, as you wanted to sort things out and get the items you sought.  You have not spent any time in custody.

11No victim impact statement has been prepared in this matter.

Procedural history

12You were charged on 18 April 2021 and you pleaded guilty at a committal case conference on 12 July 2021.  Your plea hearing took place on Monday, 7 February 2022.  Your plea is therefore at the earliest opportunity.

Criminal history

13You have admitted one prior criminal matter from 19 January 2011 where you were dealt with at the Melbourne Magistrates’ Court for a charge of recklessly causing injury.  This related to a physical fight that ensued following an altercation involving a friend at TAFE.  You reportedly stepped in and threw a punch at another individual who produced a knife.  That person was also charged in relation to this event.  You were fined $500 without conviction.

Personal circumstances

14You are now aged 30 years old.  You were 29 at the time of the offending.  You were born in 1991 in HUE, Vietnam.

15You emigrated to Australia when you were 13 months old.  Your father had entered Australia as a refugee and you, along with your mother reunited with your father 11 months later.  You have four younger siblings.  Your parents worked long hours as dressmakers throughout your childhood.  You were often expected to step in and assist in the dressmaking from the age of 13 years.  Your parents could not speak English and you were not schooled in Vietnamese.  As a consequence you had a limited relationship with your parents.

16As your parents were often working, you assumed the role of primary carer of your siblings and have been described by psychologist Luke Armstrong as having been parentified.  You reported to Mr Armstrong that despite your parents working long hours, they would also often engage in weekly alcohol fuelled nights and gambled substantial amounts of their income.  You reported laying awake with your siblings until the early hours of the morning waiting for them to come home.  In the last few years, your relationship with your parents has improved.

17You completed year 12 at Coomera secondary College and achieved modest grades.  You attended at TAFE and at one point commenced a Bachelors degree in electrical engineering, which you did not complete.  You have worked continuously since leaving school, principally in sales roles.  A business that you developed was impacted by the global pandemic and caused you significant financial stress.  You are now working in a salaried position in recruitment and you work full time.  You have indicated that as a result of publicity surrounding this matter, you are concerned that your position at work may be in jeopardy.

18You have described that your parents were heavy drinkers.  You were introduced to alcohol by your family when you were 12 years old and began binge drinking when you were 14.  You began using cannabis at the age of 21 and within 12 months, you were using cannabis daily.  Your report that growing up you were surrounded by gang-related violence and drug taking.  You began using cocaine after the breakdown of a long-term relationship when you were 25.  Since you were arrested, you have consumed only a moderate amount of alcohol on one occasion and used cannabis twice.  You have otherwise been abstinent.

19A psychological report from Mr Luke Armstrong was tendered on your plea.  You do not have any diagnosis of any psychiatric disorder.  Mr Armstrong was of the view that your cannabis use was entwined with some underlying mental health issues.  You described a sense of isolation and loneliness when not in a relationship.  Mr Armstrong considers that you do have some distortions in personality; specifically features of a personality that struggles in tolerating perceived rejection and/or perceived abandonment, feelings of discomfort when alone and that you have a tendency to replace relationships quickly to avoid a sense of isolation.

20No doubt these feelings had a role to play in your relationship with Ms Sung and the insecurities that permeated that relationship.  In Mr Armstrong’s view you present with features of a Dependent Personality Disorder.  You also fulfil the criterion for Cannabis Use Disorder.  Indeed, your drug use is said to have played a considerable role in your behaviour on 17 April 2021.  You underwent a drug urine screen on 18 April 2021 in which cannabinoids and cocaine were detected in your system.

21You have recently commenced treatment with a consultant psychologist, Joyce Ma who specialises in alcohol and drug problems, so as to assist you in addressing your underlying psychological issues which are said to have contributed to this offending.  You have seen Ms Ma on two occasions.  She reports that you appear motivated to engage in these sessions.

22Since your arrest you have completed a number of programs.  You have completed the ‘Family Violence Foundations’ program facilitated by the Domestic Violence Resource Centre, Victoria and the four-session Anger Management Course run by Cognitive Principle Therapy Pty Ltd.  You have  engaged with a Men’s Behavioural Change program through Star Health and have so far attended six sessions.  A letter from Chris Mitchell from Star health was tendered on your plea in confirmation of this.  Mr. Mitchell also provided an email as to your progress noting that you had expressed a desire to gain new perspectives and do things differently in future relationships.  He reports that you appear enthusiastic and interact respectfully with facilitators.

23A considerable number of character references were tendered on your behalf.  The authors of those references are all aware that you are pleading guilty to a charge of blackmail and of the circumstances that form the basis of that charge.  Some of your referees were present for the plea hearing.  Mr Kuboszek describes your behaviour as truly out of character.  He knows you to be a very giving person with your time and resources.  You volunteer and assist others.  Ms Lam, with whom you have resided as a housemate for more than five years describes this behaviour is out of character and considers you to be a good-natured and friendly person from whom she has never witnessed any abusive or inappropriate behaviour.  You are described by Mr Sofia as compassionate and understanding, dedicated to helping your family and inspiring others.

24You have done a considerable amount of volunteer work and donated money towards various charities like Foodbank Victoria, the Country Fire Authority (and I note you received a certificate of attainment as a wildfire firefighter in October 2012); you actively assist in fundraising for Make-A-Wish Australia.  A number of certificates have been tendered on your plea in support of this.

Plea of guilty

25I take into account your plea of guilty.  This was a plea entered at the earliest opportunity, and it is of significant utilitarian value.  You have spared the community the significant expense of a trial and importantly, you have spared Ms Sung the ordeal of having to give evidence.  Your plea demonstrates a willingness to facilitate the course of justice.  It is also some evidence of remorse.

26Your plea of guilty has an additional value given that it was entered during the COVID-19 pandemic, where the court has faced a substantial backlog of trials resulting from the suspension of jury trials.  Accordingly, as the Court of Appeal articulated in Worboyes v The Queen,[2] your guilty plea is worthy of greater weight in mitigation than a similar plea entered at a time when the community and courts are not afflicted by the pandemic’s effects.  Your plea of guilty should result in a perceptible amelioration of sentence.  You are entitled to a substantial discount in sentence both for your plea of guilty itself and taking into account that this plea of guilty has occurred during the COVID-19 pandemic.

[2] [2021] VSCA 169.

27I accept that you are remorseful for your behaviour.  You have acknowledged to Mr Armstrong that you made a very serious mistake.  Recognition of the seriousness of your behaviour has motivated you to remain sober and substance free since April of last year.  You have taken many steps to improve yourself and to assist in preventing further offending behaviour in the future.  You have had to explain to friends and associates what you have done and have accepted responsibility for your behaviour.

Prospects of rehabilitation

28Mr Armstrong considers you at a low risk on the spousal assault risk assessment.  Given your limited prior criminal history, Mr Armstrong is of the view that you do not present with a repeat offender profile.

29Corrections have assessed you for suitability for a community corrections order. Ms Choucair considers that you are at low risk of general re-offending.

30You appear to have some insight into your offending, which bodes well for your prospects of rehabilitation.  I find your prospects of rehabilitation to be very good.

Nature and gravity of the offending.

31Your offending here was undoubtedly very serious.  By its very nature, blackmail is an inherently serious offence.  True it is that your offending occurred over the course of one day.  It may be that is a result of the fact that you were arrested later the same day.

32I am of the view that the offending is particularly serious as it involved a gross breach of trust placed in you by the victim during the course of your relationship.  As the prosecution points out, the recordings were captured in the context of an intimate relationship.  Ms Sung was entitled to believe they would be kept private and not to be used as a threat once the relationship turned sour.  Moreover, she believed that you had deleted them.  To have a partner with whom she had very recently ceased a relationship, threaten to publicly expose video material of the two of you engaged in sexual activity (particularly to her parents), must have been incredibly frightening and upsetting for Ms Sung.  Whether you truly did intend to send the recordings to others, your intention was to get Ms Sung’s attention so that she would respond to you in the way you desired.  You should be under no misunderstanding as to how seriously the courts view this sort of offending.  I denounce your conduct.

Relevant sentencing factors

33The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community.  I am required, pursuant to the Sentencing Act 1991, to take into account various factors when formulating an appropriate sentence in your case.  These include the seriousness of the offending, your culpability, the effect of your offending on the victim and your personal circumstances.

34The sentence I pass must balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated.  I am to have regard to protection of the community.  I also have regard to principles of parsimony.

General and specific deterrence

35General deterrence is an important sentencing consideration in sentencing you for these offences.  Other members of the community must understand that blackmailing others, and in particular intimate partners with threat of exposure of recordings made in the privacy of relationships, will not be tolerated.

36You have no relevant priors, however it will be important for you to continue with treatment to address both your substance abuse issues, and their underlying causes.  In particular, your feelings of insecurity and jealousy within relationships will need to be managed by you.  You clearly have made substantial contributions to society and clearly you can continue to do a lot of good for others, but you will need to keep your emotions and your fears of abandonment in check.  To this end, the sentence impose needs to deter you from considering such offending in the future.

37Just punishment and denunciation must also be given primary consideration in my instinctive synthesis.

CCO assessment

38Your counsel has submitted that a community corrections order would be within range having regard to all of the circumstances of this case and the sentencing principles to which I must have regard.  Ms Edwards, on behalf of the prosecution submits that having regard to all relevant factors, a suitably structured community corrections order would fall just within the available range of penalties.

39Accordingly, you were assessed by Corrections and have been deemed suitable for a community corrections order with a number of conditions recommended.

40However, I am not bound by the sentencing submissions of either your counsel or by the prosecution.  In considering the appropriate sentence I have considered whether this offending in fact warranted a custodial sentence.

41Ultimately though I am of the view that this offending is serious but I agree that a CCO, a community corrections order, with suitable conditions is appropriate in this case having regard to all of the matters that I have mentioned, in particular your plea of guilty and the importance of your rehabilitation to the community, to which you have already made considerable efforts.

Sentence

42Accordingly, you will be sentenced as follows:

43On the single charge of blackmail you are convicted and placed on a community corrections order for a period of 18 months.  There will be a number of conditions, including supervision, treatment and you will need to perform unpaid community work.

44The core conditions of a community corrections order are that you must not commit any other offence punishable by imprisonment during the next 18 months.  You must comply with any and all obligations and requirements.  You must report to and receive visits from Corrections.  You must report to your nearest designated community corrections centre, which will be in Melbourne, within two clear working days from today.  You must let a Community Corrections officer know within two working days of a change of address or job.  You must not leave Victoria without first getting permission, and you must obey all lawful instructions from Corrections.  They are all the mandatory core conditions that attach to any community correction order.

45In addition to that, I am attaching a number of other conditions.

·        You are to perform 200 hours of unpaid community work

·        You are to be under the supervision of a Community Corrections officer for a period of 18 months.

·        You are to undergo treatment and rehabilitation - including testing for drug and alcohol use as directed.

·        You are to continue to participate in the Mens Behavioural Change program or equivalent as directed by Corrections.

·        I order that some of the hours of treatment and rehabilitation can be counted as hours for the purposes of the unpaid community work condition - up to 60 hours.

46Mr Nguyen, I need to ask you whether or not you agree to abide by those conditions before the order can be put in place.  Do you, firstly, understand the conditions as I have set them out?

47OFFENDER:  Absolutely, Your Honour.

48HER HONOUR:  And do you agree to abide by the conditions of the order that I have proposed?

49OFFENDER:  Yes, Your Honour.

50HER HONOUR:  All right, now if you do not comply with the community corrections order conditions, if you commit any further offences, then you will likely be breached and the matter will be brought back before me so that you can be resentenced on the charge of blackmail, and possibly for the breach itself.  So if I can just urge you to ensure that you comply with the conditions of the order so that there is no prospect of that.

s6AAA

51But for your plea of guilty, which I have said I give considerable weight, I would have sentenced to you to a term of imprisonment to be served immediately for this offending.

Ancillary order

52Finally, I make the order sought by the prosecution for forfeiture of your mobile phone, and note that you consent to the making of this order.

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