Director of Public Prosecutions v Nguyen

[2020] VCC 489

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-00850

DIRECTOR OF PUBLIC PROSECUTIONS

v

VU SI NGUYEN

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	17 April 2020
DATE OF SENTENCE:	23 April 2020
CASE MAY BE CITED AS:	DPP v NGUYEN
MEDIUM NEUTRAL CITATION:	[2020] VCC 489

REASONS FOR SENTENCE
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Subject:  Criminal Law

Catchwords:            Armed robbery; possess prohibited weapon without exemption; possess controlled weapon without excuse; possess cartridge ammunition without a licence; deal property suspected to be the proceeds of crime; possess imitation firearm

Legislation Cited:     Sentencing Act 1991 (Vic)
Cases Cited:            Brown v The Queen [2020] VSCA 60
Sentence:                TES of 32 months with a non-parole period of 22 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Pirrie	Office Of Public Prosecutions
For the Offender	Mr J. Van Arkadie	Victoria Legal Aid

HER HONOUR:

1Vu Si Nguyen, you have pleaded guilty on indictment, to a single charge of armed robbery, which occurred on 16 March 2017.  You have also pleaded guilty to a number of related summary offences, which include possess prohibited weapon without exemption (referring to two crossbows and three nunchaku), possess controlled weapon without excuse (a small bat with screws), possess cartridge ammunition without a licence, deal property suspected to be the proceeds of crime and the possession of two imitation firearms.

2In sentencing you for these crimes I must have regard to the maximum sentences for each of the offences that you have committed.  Armed robbery carries a maximum of 25 years imprisonment; possess imitation firearm, possess prohibited weapon without exemption, and deal property suspected to be the proceeds of crime each carry a maximum penalty of two years imprisonment; possess prohibited weapon without excuse carries a maximum penalty of one year imprisonment; and possess cartridge ammunition carries a maximum penalty of 40 penalty units.

3The circumstances of your offending are set out in a document entitled “Summary of Prosecution Opening for Plea” dated 7 April 2020.  It is a detailed document and represents an acceptance by you of all the elements of the offences to which you have pleaded guilty and the factual basis on which I am to sentence. 

4In short compass, at approximately 9.35 pm on Thursday 16 March 2017, Ms Amelia Mitchell finished work at the Muffin Break Cafe which she owned and operated within the Brimbank Shopping Centre.  She concealed cash from the till (approximately $1,300) inside a green Coles bag which she placed in a shopping trolley, and left the shopping centre, making her way towards her vehicle, which was parked in the shopping centre underground carpark.

5As Ms Mitchell arrived at her vehicle, she heard a noise behind her, turned and was confronted by you on a bicycle.  You were disguised by use of a mask and a hoodie-type jumper.  You dropped the bicycle and approached Ms Mitchell on foot saying “Where's the money?  Where's the money?”  You then reached inside the pocket of your jumper and produced a firearm, pointing it at
Ms Mitchell and saying “Give me your bag or I'll shoot you.  Where's the money?”  Whilst this firearm was an imitation, this fact would not have been known to Ms Mitchell.  Your use of this item was designed to intimidate and instil fear.  Indeed, she dropped her mobile phone and backed away from you.  You snatched her handbag and the green Coles bag from the trolley.  You also stole Ms Mitchell's mobile phone from the ground before getting back on your bicycle and attempting to leave.  Instead, you crashed into a nearby pole, causing you to fall to the ground, drop the firearm and Ms Mitchell's phone.  You then got back on your bicycle and fled the scene, leaving the firearm and
Ms Mitchell's phone behind. 

6Investigators arrived a short time later.  They located and seized Ms Mitchell's phone and the firearm.  In addition to Ms Mitchell, two witnesses had observed the armed robbery. 

7On 3 April 2017, a member of the public, Mr Eugene Didius, went to the Keilor Downs police station with a black and yellow Victoria's Secret brand bag he had found hidden under a shrub in the front yard of his premises, which was about 500 metres from the shopping centre.  This bag contained a set of keys and reading glasses belonging to Ms Mitchell which she later identified as hers.  It also contained a white skull mask with a black hood, which she confirmed to police was not hers.  This mask was sent to the Victoria Police Forensic Services Department for analysis.  That analysis identified you as the sole contributor to the DNA located on the inside of the mask.  The imitation firearm was also examined, with DNA linking the firearm to you. 

8On 13 July 2017, you were located by police passed out in the driver's seat of your car.  The police located a number of items, including a notebook detailing “Potential grabs”, with the first target being “Muffin Break”.  The import of this was not recognised at that time.

9On 15 October 2018 at approximately 9.56 am, investigators executed a search warrant at your residence.  You were arrested and the following items, which are the subject of the related summary offences,  were located and seized from your bedroom:

·two imitation firearms (related summary charge 8);

·one wooden club with screws protruding (related summary charge 5);

·three nunchakus (related summary charge 3);

·one black bumbag containing three passports belonging to named others that had been stolen at some point in 2018 by an unidentified offender (related summary charge 7);

·two homemade crossbows (related summary charge 3); and

·assorted firearm ammunition (related summary charge 6).

10You were taken to the Sunshine police station, where, as is your right, you made a “no comment” record of interview.  You were subsequently charged with the matters that are now before me. 

11Taking into account the note containing “potential grabs” which referenced Muffin Break, your use of disguise, possession and use of an imitation pistol, getaway bike and the words which you uttered to Ms Mitchell, there simply has to have been a degree of planning by you to commit this armed robbery.  Whilst I am unable to determine exactly how much planning, this does, in my view, elevate the seriousness of this offence, however poorly executed your escape. 

12There is no victim impact statement, however I accept that your actions must have placed Ms Mitchell in fear.  Your offending occurred in what was, and probably still is, her daily working environment, one in which she is entitled to feel safe.  You took hard-earned daily takings from a small business owner.  She was a soft target of which you took great advantage. 

13What appears to have led you to this behaviour was your longstanding drug addiction, which, if your criminal history is anything to go by, has blighted your life and led you to blight the lives of others, which doubtless includes your family members as well as the community upon whom you have offended. 

14You clearly also fall to be sentenced for the cache of weapons located by police at your premises at the time of their search in October of 2018.  I am told that these were essentially a collection you had made, some items of which were on display.  I was genuinely concerned about that range of items, particularly the imitation firearms, and raised these concerns with your counsel.  Whilst you used an imitation firearm in the armed robbery, such use was 19 months prior to these weapons being located by police and that fact, and their general location shown to me in photographs tendered, leads me to form the view that these items were not in your possession for criminal purposes and that finding must impact on the sentence to be imposed in your favour.  Nevertheless, there still needs to be a degree of deterrence, both general and specific, from collecting such items.

15You have clearly entered a plea of guilty.  The Sentencing Act obliges me to take into account the stage at which you entered such a plea.  I note that immediately prior to what was to be your trial there was legal argument in relation to a threshold issue, the DNA on the firearm.  Once that issue was determined in the Crown's favour, you instructed your counsel that you would plead guilty to the charge of armed robbery.  The summary charges were never in dispute.  In my view, this plea still has utilitarian value.  I note the immediate victim of your offending, Ms Mitchell, has never been cross-examined.  In my view, there is limited scope to accept there has been remorse shown by you, but nevertheless I find it is still in existence.  These factors will all be taken into account in your favour. 

16Your personal circumstances include your parents coming from Vietnam to Australia in 1979, the year of your birth.  Your parents initially lived in Adelaide, South Australia, before moving to Melbourne when you were aged about eight.  Your mother managed the household and raised you and your two siblings.  Your father worked as a factory hand until his retirement.  Each of your brothers have families of their own.  Your older brother, Van, lives in Hillside with his wife and two young sons.  Your younger brother, Binh, lives in St Albans with his wife and young son.

17You do describe your family in positive terms and instruct that you have had a good relationship with each of them.  In fact, prior to your remand on these matters, you were residing with your parents in Kings Park and indeed hope to return to their care upon your eventual release.  I am told they remain supportive of you and the only real area of conflict is their concern about your continued drug use. 

18You completed a Year 12 education and thereafter pursued TAFE studies, completing a Certificate II in hospitality.  You then studied as a kitchen attendant and obtained your licence in operating a forklift.  You have primarily had work as a forklift driver but have been unemployed for at least the last three years.  Upon your release, you hope to obtain work in the construction industry and to complete outstanding aspects of a civil construction course which you had previously commenced. 

19You do not experience any major health issues other than, axiomatically, your use and abuse of drugs.  You commenced smoking cigarettes around 13 years of age and were introduced to heroin when 15.  You have had an ongoing battle with that drug since that time.  At the time of your offending you were unemployed, arguing with family and had again resorted to heroin abuse.  This merely sets the context for your offending, which is probably the most serious represented in your criminal history, or at least close to it.

20In terms of that history, you have some 19 prior court appearances spanning the years 1997 until 2018, representing a 21-year history of offending.  You first appeared at Broadmeadows Magistrates' Court on 9 May 1997 in relation to charges of trafficking, possessing and using heroin, at which time you were convicted and sentenced to three months imprisonment, wholly suspended for a period of 24 months, together with what was then called a community-based order.  The community-based order was subsequently breached, as was the suspended sentence.  These breaches were dealt with at the Magistrates' Court on 31 August 1998, together with further charges of trafficking and possessing drugs.  You were placed at a Youth Training Centre. 

21Your criminal history continues, largely in relation to drug-based offending in terms of trafficking and possession of drugs, as well as dishonesty-based offences associated with that use.  You have what I observe to be a limited history for violence.  You have received a range of sentencing dispositions including supervisory orders and terms of imprisonment which, in the main, have offered little sanction or deterrence. 

22However, on 15 February 2008, you appeared in the Melbourne County Court in relation to charges of trafficking in heroin and were convicted and sentenced to four years imprisonment, with a minimum of two years and six months before being eligible for parole.  This term of imprisonment must have had some impact because your next court appearance was not until seven years later at the Sunshine Magistrates' Court on 22 September 2015, when you appeared in relation to charges of possessing heroin and failing to answer bail and received a community corrections order. 

23You next appeared at the Sunshine Magistrates' Court on 10 February 2017 in relation to a range of driving and dishonesty offences and breach of the previously imposed community corrections order, at which time you received another community corrections order and the previous order was confirmed.  These orders were also breached and you were dealt with at the Sunshine Magistrates' Court on 28 February 2018 in relation to those contraventions, together with charges of possessing ammunition, possessing a dangerous article, failing to stop on police direction and failing to answer bail, at which time you were fined. 

24This chronology confirms that at the time of committing the armed robbery on 16 March 2017, you were the subject of two community corrections orders which had been imposed upon you on 10 February 2017.  Your offending in breach of these orders is an aggravating circumstance. 

25It would appear that following your release from the sentence of imprisonment in 2008, you were able to maintain a relatively stable lifestyle by keeping your drug use to a minimum, finding employment and avoiding socialising with negative peers.  Indeed that compliance with the community's expectation is reflected in what I see as a significant gap in your offending history.

26You have sought to use your time wisely whilst in custody.  One urine screen has been tendered on your behalf.  In addition, you have completed a 24-hour Drug Treatment Program, a six-hour Alcohol and Drug and Stress Program, an “Adapt” program, a “Take Stock A” and a “Take Stock B” program, a “Healthy Living” program and a “Family, Friends and Community” program.  In addition, you have completed a course in participating in workplace safety arrangements which has facilitated your ability to work in the prison environment.  These particular programs have been undertaken by you as self-improvement and to assist the transition back into community life.  They were undertaken prior to your decision to plead guilty and demonstrate a desire by you to make positive change.

27Your previous gaol sentence appears to have been a significant circuit-breaker.  It can only be hoped that the time you have again spent in custody on remand, the impetus for change that has represented previously, together with your approach to your remand time, presents a glimmer of aspiration by you to make positive change.  If not, your prospects for rehabilitation present as guarded. 

28The impact of the COVID-19 pandemic has also been raised on your behalf.  I have had recourse to recent decisions in terms of this pandemic and its relevance to sentencing.  In Brown v The Queen [2020] VSCA 60, Priest and Weinberg JJA considered how the pandemic might impact on sentencing. Their Honours stated:

“In the absence of any adequate material concerning the impact of the virus upon the correction system, as matters stand, and given that the situation is one that is rapidly evolving, we are hesitant to express a general statement of principle regarding how this court (and others) should deal with this crisis as regards to its effect upon relevant sentencing principles. We do accept, however, that the situation is causing additional stress and concern for prisoners and their families, as it is for every member of the community. The extent to which that may be taken into account, if at all, will be a matter to be resolved in the particular facts of any individual case.”

29Up until the COVID-19 response by the correction system you were seeing your family regularly via in person visits.  There are now no personal visits permitted.  Whilst I am told this can take place over some form of personal computer, such as a tablet, your parents are not familiar with the technology and unable to properly use it.  You are now only able to speak with them by telephone, when possible.  You are no longer able to access the courses that you were using to fill in your time and to place you in the best position for your transition from the custodial setting back into the community.  I do take these restrictions into account in a general sense. 

30The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you, I am required to have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim.  I am also required to balance the interest of the community in denouncing criminal conduct with the interest the community clearly has in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society.

31I have taken into account the relevant sentencing guidelines referred to in s.5 of the Sentencing Act where relevant to your case.  I have also taken into account current sentencing practices for the offences to which you have pleaded guilty. 

32I make the ancillary orders as sought for disposal of a number of scheduled items and forfeiture of the imitation firearms and the assorted ammunition. 

33In terms of that ammunition, for the summary offence of possess cartridge ammunition, you are convicted and discharged. 

34In relation to the remaining summary offences, I propose to impose an aggregate sentence as I am satisfied that those offences are founded on the same facts, or form, or are part of, a series of offences of the same or similar character.  In so doing, I also bear in mind the principles of totality and proportionality, which also have application to dealing with those charges in combination with the charge on the indictment.

35For the four remaining summary charges you are convicted and sentenced to 6 months imprisonment, of which 2 months are cumulative on the sentence I am about to impose for the charge of unarmed robbery. 

36In relation to the charge on the indictment of armed robbery, you are convicted and sentenced to 30 months imprisonment. 

37With the aggregate sentence imposed on the summary matters, your total effective sentence is one of 32 months. 

38556 days will be reckoned as having already been served. 

39I set a minimum period before you are eligible for parole of 22 months. 

40Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed if you had not pleaded guilty to the charges.  If not for your plea of guilty, I would have sentenced you to a total effective sentence of 3 years and 6 months, with a minimum of 2 years and 8 months before being eligible for parole.  Anything arising?

41MR VAN ARKADIE:  No, Your Honour.

42HER HONOUR:  Mr Van Arkadie, I'll stand down immediately then and just give you the chance to speak with Mr Nguyen because I understand it is very difficult to do otherwise.

43MR VAN ARKADIE:  Yes, Your Honour, I'm grateful for that opportunity ‑ ‑ ‑

44HER HONOUR:  All right, thank you.

45MR VAN ARKADIE:  ‑ ‑ ‑ that's available.

46HER HONOUR:  Thank you, I'll close the court until 10 o'clock tomorrow. 

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