Director of Public Prosecutions v Nguyen
[2020] VCC 1764
•5 November 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-20-00249
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| QUOC-YUONG NGUYEN |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 October 2020 | |
DATE OF SENTENCE: | 5 November 2020 | |
CASE MAY BE CITED AS: | DPP v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1764 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M. Zammit | Office of Public Prosecutions |
| For the Accused | Ms C. Foot | Emma Turnbull Lawyers |
HER HONOUR:
1 Quoc-Yuong Nguyen, you have pleaded guilty before me to one charge of burglary, 10 charges of theft, one charge of possessing a drug of dependence and one charge of handling stolen goods. The facts underlying your offending are as follows.
2 Overall, this relates to a break-in by several persons, including yourself, at TOYLEX R Us, a car yard location at 100 Castro Way in Derrimut. You entered these premises on five occasions between 28-29 September 2019. On one of those occasions you went into the warehouse of the business which results in the burglary charge. You stole a total of nine cars and one roof-rack from the premises. This includes vehicles stolen by other associates you were with at the time.
3 TOYLEX R Us is a authorised Toyota wrecker who purchases damaged cars from salvage auctions, removing parts compatible for Toyota and Lexus motor vehicle before selling them to customers. At the time of the offending there were about 200 cars in the varying conditions stored both inside and outside the warehouse.
4 At about midday on 27 September, which was the AFL Grand Final public holiday, in 2019, Nua Yeld who is the manager of the business, went to the warehouse to ensure everything was fine. He stayed there about 15 minutes and secured the address, then left. At about 6.18 am the following morning you and a co-accused Alim Kufali drove up to a rear gate of the premises in a Volkswagen ute; you were in the passenger side. Kufali cut the chain securing the gate with bolt cutters. You got out of the car and opened the gate and this allowed Kufali to drive in. After the car was driven up a dirt road you both got out of the car and you found a large black metal roof rack which you carried and placed in the utility. This underlies Charge 2 on the indictment, theft of a black metal roof rack. You, at that stage, left the premises.
5 You returned a short time later at about 10 o'clock. The gate was now open. I should add that most of this was captured on CCTV security footage. You inspected a number of cars. A short time later Mr Kufali drove a blue 2008 Lexus sedan out of the premises, you getting into the passenger seat of that car. Those actions underly Charge 3 on the indictment, theft of the Lexus which is valued at $20,000.
6 At about 8.34 that night the two of your returned in the utility, along with an unidentified woman. You went to a Toyota SUV and tampered with the engine, then returned to look under the bonnet and removed the car's battery. You and Mr Kufali continued to inspect a number of other cars before looking at a grey Camry sedan. You opened the door, did something to the engine, looked at the open boot, then got into the driver's seat and turned the light on but you were unable to move the car. Meanwhile, Mr Kufali had successfully jimmied open a door to the warehouse, which he entered, and that underlies Charge 1 on the indictment of burglary.
7
He opened the roller door, granting access to the warehouse, and a short time later he successfully started a red 2008 Outlander Quad Bike which he rode out of the premises shortly followed by the utility. That offending underlies
Charge 4, theft of the Quad Bike valued at $4000.
8 About four hours later Kufali came back, along with an unidentified male who had been seen earlier driving the blue stolen Lexus. The unidentified male then stole and drove away in a silver Toyota Camry sedan and Kufali drove away in the blue Lexus. The two men returned to the premises on another six separate occasions between 12.28 am and 2.19 am where two further cars were stolen.
9 You returned to the premises in the company of Kufali, the unidentified male and the unidentified woman at 5.50 am on 29 September. The four of you then drove the stolen silver Camry to the premises. You were riding in that car and that underlies Charge 5 on the indictment, theft of the silver Toyota Camry valued at $15,000.
10 The four of you then went into the warehouse - and this underlies the charge of burglary against you on the indictment - and started and moved several cars before a red 2015 Toyota Camry sedan, a red 2009 Lexus coupe, a white 2013 Toyota coupe, and a white 2000 Toyota Kluger wagon were stolen and driven out of the premises by you and the other offenders. You were driving the white 2013 Toyota coupe. This underlies Charges 6, 7, 8, and 9 on the indictment. The cars were worth $15,000, $20,000, $15,000 and $35,000 respectively.
11
You then, with the unidentified male, returned to the premises in the stolen red Camry about six minutes later. Kufali then stole a white 2014 Lexus sedan and the other man stole a black Toyota Camry sedan. This underlies Charge 10 on the indictment, theft of the black Toyota Camry valued at $25,000, and
Charge 11, theft of the white Lexus valued at $35,000. You left the address driving the previously stolen Toyota Camry. At 8.10 am Kufali was driven to the premises by an unknown person and stole another car, that being a 2011 HiLux, and leaving the premises at 8.14 am.
12 Mr Yeld attended later that day and discovered the burglary and theft and he contacted police. There was an investigation by police. Ultimately, it was discovered that the Volkswagen driven by Mr Kufali when the two of you first went there belonged to his father and your DNA was located on a straw found in a McDonald's cup in the front of that car.
13 On 2 October 2019 US employees who were driving in the Deer Park area saw one of the cars that had been stolen parked outside an address with three men standing near the car. The men then drove off in that car. The employees then followed them and police were called. The employees continued to follow the car until it stopped. Someone got out and one of the employees Mr Ishakor, believed he recognised one of the men from the CCTV footage from the car yard. Police soon after attended the scene and arrested the two men; one of those two men was you.
14 During a search of the car police found a Dettol container which had a clear liquid later found to be GHB. Your possession of that item underlies Charge 12 on the indictment, possession of a drug of dependence.
15 You were taken to the Sunshine Police Station where a record of interview was held. Essentially you made denials and said on the night of the burglary you were with your girlfriend watching the Grand Final. You were then placed in custody and a search warrant was executed on your home where police located clothing matching the clothing worn by one of the men involved in the burglary and they also found four pairs of new ASICS runners. These shoes had been stolen from commercial premises on 21 September. Your possession of those items underlies Charge 13 on the indictment, handling stolen goods. You again participated in a record of interview and told police that a friend had given you the four boxes of ASICS, which you thought at the time might be stolen.
16 The maximum penalty for burglary is 10 years imprisonment, the maximum penalty for theft is 10 years imprisonment, the maximum penalty of a drug of dependence is one-year imprisonment or 30 penalty units, the maximum penalty for handling stolen goods is 15 years imprisonment.
17
You were remanded in custody but was subsequently granted bail on
28 October. However, you were arrested again for offending which occurred on 10 December 2019 relating to a residential burglary. You were sentenced to a term of imprisonment and you completed that term on 6 June 2020.
18
I received victim impact statements from Nua Yeld, Yosem Yaled and
Basim Isak. All of them are owners or co-owners of the business. They all described the enormous distress that they experienced when they discovered what had been done to their business and the items that had been taken. The total value of the items taken was something in the realm of $180,000. In addition to their distress over the business, they suffered financial harm in that, whilst they have been insured, until the matters were finally settled, the insurance companies have indicated that they are not prepared to cover the losses suffered by the business. The business has had to continue with that loss on its books for the time being. This has been extremely hard on the business and extremely hard on the employees for whom Mr Yeld and Mr Yaled and Mr Isak clearly feel a great deal of responsibility.
19 I now turn to your personal circumstances. You are 35 years of age; you are the second of two children born to parents who immigrated here from - three children born to your parents who immigrated here from Vietnam before you were born. You have an older brother who works in IT at a legal firm, your younger brother is a social worker. Your father works as a repair man and your mother operates an alteration sewing business from her home. None of your family have ever been in trouble with police. Essentially, you have enjoyed, as I understand it, a happy and untraumatic childhood. You had some difficulty, however, learning to read and write. Ultimately, you completed Year 12 and Caroline Chisholm College.
20 You then undertook an Advanced Diploma in Accountancy, a TAFE course, at the Victoria University but were unable to find employment in this occupation. You then worked for Toyota for three years in adjusting seats, then went on to work in various other industries. You worked as a courier, as a labourer, at times you worked as a carpenter. You formed and you had a couple of relationships along the way. You have a nine-year-old daughter Chelsea who lives with family friends, her mother having been incarcerated, but I understand you keep good contact with her.
21 Your main problem, Mr Nguyen, has been a drug addiction which began probably in your late teens but which certainly became entrenched in your 20s. Until you were 25 you were addicted to heroin. You then switched over to ice use and you have remained addicted to ice and were addicted to ice at the time that this offending occurred. Indeed, my understanding is that you engaged in this offending because of the need to fund your drug habit. In recent years you had also taken up regular use of GHB.
22 You have maintained the support of your family. It is your plan to live with your parents in Derrimut once you leave gaol and that is a strong protective factor in your case. It was submitted to me by your counsel that I should deal with you by way of a term of imprisonment combined with a community corrections order. I indicated, and I am still of the view, that this is not a sufficiently stern response to the offending you engaged in. This was major serious commercial offending, it was repeated over and over and over, it was highly organised, it resulted in the loss of a fleet of cars. The offending was simply too serious for me to consider dealing with you in any way other than by a term of imprisonment.
23 For someone who has got such a long history of drug use, you do not have a particularly extensive prior criminal history. That began in 2010 when you were placed on a good behaviour bond for theft. You were fined for possession of heroin and ice in 2015. You were placed on a combination 75-day sentence combined with a community corrections order in 2017 for theft of motor vehicle, committing an indictable offence on bail, trafficking ice, butanediol, and possessing a number of drugs, including a GHB. Again, in April 2018 you were fined for theft of a motor vehicle and dealing with property suspected of being the proceeds of crime. It was partly because, as I understood it, you attended the car yard premises five times, compared to Mr Kufali's 13 attendances, together with your relatively confined criminal history, as I understood your counsel to make that submission.
24 I also received a report from psychologist Pamela Matthews. Essentially, she diagnosed you as suffering a stimulant use disorder and a depressive disorder likely of some years standing. However, she certainly did not proffer an opinion that there was any causation between these conditions and the offending, nor did she indicate that the conditions you suffer would likely make service of a term of imprisonment more difficult than another prisoner. Ultimately, it was noted that you have never been treated for drug addiction. In 2018 you had the opportunity to attend Odyssey House but you did not. You have essentially told your counsel that you believe your offending was because of your drug habit and because you had started hanging out with the wrong crowd.
25
At the age of 35, the excuse of hanging out with the wrong crowd not only has no legs, if I can put it that, it is just simply not an excuse at all, you are not a
16-year-old, Mr Nguyen, you are 35, but also demonstrates to this court an inability by you to take responsibility for the very serious offending you engaged on this occasion. At the age of 35 you are more than mature enough, one would hope, to say, 'No, no, this is too heavy, I'm not getting involved,' but you did. If you were 16 and said you were in with the wrong crown, yes, that's an excuse that would be taken into account because of your age. However, when you are still saying that when you are 35, all that shows is an immaturity on your part and an inability to say, 'I am responsible for what I do.' It seems that, even when speaking to Ms Matthews, you were not particularly motivated to seek out treatment for your drug use, although you said you would use services if they were given to you.
26 Overall, it just seems, ever since your late teens, you have just continued using drugs, switching one drug for another, and life has simply not changed for you very much until you got engaged in this criminal enterprise. I understand that the period you have spent in custody is the longest time that you have remained free of drug use. Given that you were bailed in relation to this offending but then re-arrested in relation to a burglary for which you were found guilty and further sentenced which apparently took place whilst you were on bail, given your attitude to your continued drug use, it can only be said that your prospects of rehabilitation are guarded at best. In other words, Mr Nguyen, unless you do something about drugs, my opinion is that you will offend again, you will end up before the courts again.
27 That being so, there are two principles that I have to apply which do not make life easy for you. The first is, I have to apply the principle of community protection. Because you have offended in this way, because it is linked to your drug use about which you have done nothing for something in the region of at least 15 years, it is my view you will offend again and the community needs to be protected from you. So that means that is one of the reasons why, in my view, a term of imprisonment is appropriate, rather than placement on a community corrections order.
28 Secondly, it is my view that specific deterrence has application in your case. What that means is, I should deal with you in a way that teaches you a lesson and which hopefully has an effect on you deciding that you are going to do something about your drug use and this sort of offending.
29 The other principles which I must take into account in a case such as this, are general deterrence, that is, imposing a sentence upon you that sends a message out into the community that anyone who engages in the sort of criminal activity you did can expect the same response, that is, a term of imprisonment. There is also just punishment and denunciation of this persistent commercial criminal activity engaged in by you.
30 I do take into account that you pleaded guilty in this matter. You are entitled to a discount because you have saved the community the time and expense of a trial and you have also saved the witnesses the trauma of having to give evidence. I note that this matter proceeded by way of a straight hand-up brief on 17 February 2020, at which time you entered a plea of not guilty. The matter was resolved on 11 September 2020. I should also note that the blue Lexus in which you and the other man were located by police was recovered. The red Lexus coupe was found in the Sunshine area after being involved in an unrelated accident. The white Toyota coupe was located on 28 October in South Melbourne and the white Lexus sedan was located in Altona North. The other cars remain unaccounted for.
31 In sentencing you, as I have said, I take into account your plea of guilty, I take into account the fact that you apparently have demonstrated some insight into your offending as according to the report by Pamela Matthews. I should add that whilst there was mention of you having difficulties learning to read and write at school, testing by Ms Matthews revealed that you have an average IQ. There is nothing getting in the way of you studying, of living a normal life and certainly there was nothing there that could be taken into account in sentencing you. I also take into account the fact that your family continues to support you. But really, there is not a lot more than that, Mr Nguyen. You have been drifting along all these years using, not taking much notice of anything else and you have got yourself involved in something big and you are now going to receive a term of imprisonment which is much greater than anything you have received before.
32
I therefore sentence you as follows. On Charge 1, burglary, you are sentenced to 12 months imprisonment. On Charge 2, theft, you are sentence to two months imprisonment. On each of Charges 3, 4, 5, 6, 7, 8, 9, 10, and 11, you are sentence to nine months imprisonment. On Charge 12, you are sentence to one-month imprisonment. On Charge 13, you are sentenced to three months imprisonment. The base sentence, or the sentence imposed on Charge 1 of
12 months, I order that three months of each of the sentences imposed on Charges 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11 be served cumulatively to the sentence imposed on Charge 1. I also order that one month of the sentence imposed on Charge 13 be served cumulatively to that sentence and all other sentences. This gives a total affective sentence of 40 months and I order that you serve two years before becoming eligible for parole.
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HER HONOUR: What is the PSD please, Madam Prosecutor?
MS ZAMMIT: Yes, Your Honour, 179 days.
HER HONOUR: I declare that 179 days have already been served by way of
pre-sentence detention. In relation to Charges 3-11, all licences are cancelled. You are disqualified from obtaining any further licence for a period of two years. Pursuant to s.6AAA, I declare that, had you not pleaded guilty, I would've sentenced you to a term of imprisonment of five-and-a-half years and ordered that you serve a minimum term of three-and-a-half years. Thank you. Is there anything else I need to attend to?
MS ZAMMIT: Your Honour, there was just the disposal sought in relation to the drugs in issue.
HER HONOUR: Yes, we'll sort those. Yes, we'll get those to you.
MS ZAMMIT: Thank you, Your Honour.
HER HONOUR: Thank you very much.
MS ZAMMIT: Thank you, Your Honour.
HER HONOUR: I thank counsel for their assistance in this matter. We will stand down to 10.30.
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