Director of Public Prosecutions v Nguyen

[2019] VCC 1167

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 18-01569

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHO NGUYEN

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Bendigo
DATE OF HEARING:	24 July 2019
DATE OF SENTENCE:	26 July 2019
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2019] VCC 1167

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:                  5 years 6 months’ imprisonment, non-parole period of 4 years

s 6AAA: 7 years 6 months’ imprisonment, non-parole period of 5 years 6 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Ms I. Moffattt
For the Accused	Mr A. Dickenson	Mr M. Admadzay

HIS HONOUR

1CHO VAN NGUYEN You have pleaded guilty to:

·           one charge of recklessly cause serious injury

·           1 charge of common law assault; and

·           1 charge of possess methyl amphetamine; and

·           1 charge of possess heroin

2The circumstances of your offending are set out in the amended summary of prosecution opening [exhibit A]. They are agreed facts.

3In November 2017 you were living with your girlfriend, Madeline Campbell, at Sunshine North.

4On 28 November 2017, around 2.30 am, you drove with Ms Campbell to Bendigo to visit friends living at Churchill Avenue, Flora Hill.

5Around 5.30 a.m., you were arguing with Campbell in the street at Churchill Avenue. She ran to one of the houses in that street and got inside through an unlocked front door to get away from you. You followed her.

6Seven students were living in the house.

7You were shouting; Ms Campbell was crying. Jye Moffatt heard the noise and got up to investigate. So did Mitchell Edwards, who heard you shout to Ms Campbell, “Stop. Get back here.” When they got to the lounge room, they saw you, holding a metal bar in each hand, yelling abuse at Ms Campbell.

8Mr Moffatt, who was holding a baseball bat, asked you what you were doing in the house and asked you to leave. You became extremely aggressive towards him. Mr Edwards went back to his room to get his phone to call emergency services.

9In an attempt to defuse your anger, Mr Moffatt lowered the baseball bat to the floor to indicate to you he was not threatening you and only wanted you to leave the house. You lunged at him and struck him to his head with the metal bar in your right hand, and to the face with the metal bar in your left. He suffered a laceration to the back of his head, broken front teeth and a cut lip, as well as fractures to his left elbow and left and right fingers, and abrasions to his right hand and back (charge 1 – recklessly cause serious injury)

10When he ran away from you, you followed him and continued to strike him to his face, arms and back. He got back to his room and, when he tried to close the door, and was screaming for help, you forced it open and hit him again.

11I have seen photographs of Mr Moffatt’s injuries which were tendered as [exhibit B] on the plea. Several of them appear to be defensive type injuries.

12Nicholas Potter saw you hitting Jye Moffatt and, when he confronted you, you turned away from Mr Moffatt and struck Potter to the head with a metal bar. The blow dazed him and he backed away from you. The blow shook and shocked him and caused a lump to his head (charge 2 – common law assault).

13Joel Swatton confronted you, grabbed 1 of the metal bars from you and told you to leave. He led you out of the house. You did not resist him.

14Police arrived shortly after, as you were walking along the footpath. You still had 1 of the metal bars in your right hand. You dropped it and surrendered to police who arrested you.

15You had 6.0 g of methamphetamine in a small zip lock bag and $3524 in cash. In your car police found another 3 bags which contained 8.7 g of methyl amphetamine (charge 3 – possess a drug of dependence) and 2 small foils containing 1 g of heroin (charge 4 – possess a drug of dependence).

16You had another foil, which contained 0.5 g of heroin, in your pants pocket.

17When police arrested you, you made some admissions of your offending.

18You were charged with a number of offences and remanded in custody.

19I have read the victim impact statements of Jye Moffatt [exhibit C], the victim of charge one, and Nicholas Potter [exhibit D] the victim of charge 2.

20Mr Moffatt said he was in fear for his life when you attacked him and the pain you inflicted was the worst he has ever suffered. In addition to his physical injuries he has suffered heightened anxiety.

21He was a TAFE student but discontinued his studies because of the increased anxiety your crime caused him. He has needed psychological counselling which is ongoing.

22Mr Potter said he has been traumatised by what happened. He was fearful, had trouble sleeping and lost time from his studies and work. He said he has needed psychological counselling, too, “to get . . . back on track”.

23You told police your girlfriend and you had “had a bit of an argument in the car”, she got out and walked off.

24Your counsel, Mr Dickenson, told me the argument occurred after a minor car accident. Police photos of your car, following your arrest near it, show damage to the left rear door and wheel arch.

25You said, when you followed her, she went into someone’s house. You said you went up to the door, knocked, and 2 blokes came out. You said you told them that your “missus” was pregnant and upset and you were only asking her to come with you. You said, “a third bloke (came) from nowhere with a baseball bat”. He said, “She’s not going with you” and started swinging the bat. You said you “clipped him” with a “baton – or little stick… about 2 to 3 times”. You said “3 of us wrestled and that’s it… And then I got out – my (missus was) gone, so I walked outside.”

26I accept you went into the house to get your girlfriend. However, the rest of your explanation was false. As you now acknowledge, by your acceptance of the summary of facts, when you entered the house, you were armed with 2 pieces of a metal bar (photos of it were tendered as exhibit E) and, using them, you attacked Mr Moffatt and Mr Potter. Neither of them did anything to provoke you. Your assault on Mr Moffatt, who only wanted you to leave, was particularly vicious.

27Revealingly, you said to police, “… At the end of the day I’m a very violent person”.

28You have admitted 21 criminal convictions between 1996 and 2010. Relevantly,

·on 30 August 2002, in the County Court at Melbourne, you were convicted of intentionally cause serious injury and aggravated burglary (person present) and sentenced to 3 years imprisonment with a non-parole period of 21 months; and

·on 12 July 2007, in the Magistrates’ Court at Melbourne, you were convicted of trafficking and sentenced to 6 months imprisonment; and

·on 30 April 2010, in the County Court at Melbourne, you were convicted of intentionally cause serious injury and armed robbery and sentenced to 8 years 3 months imprisonment with a non-parole period of 6 years.

29I have read His Honour, Judge MP Bourke’s Reasons for imposition of the 8 years and 3 months' term of imprisonment.

30On 25 March 2009, an employee at a DVD store in Victoria Street, Richmond, accused your then girlfriend of stealing DVD’s. Three days later the two of you returned to Victoria Street where, after you both purchased knives, you went into the store and you “mounted a vicious knife attack upon (the employee)… You slashed and stabbed him. There were at least 4 to 5 strikes. He (ran) to the bakery next door (where) he collapsed… and was taken to hospital”.

31After attacking that man you moved to the front of the store where you girlfriend had produced a knife and demanded cash from another employee. The prosecution put the armed robbery count against you on the basis that you aided and abetted your girlfriend and formed the intention to participate in the armed robbery just before she made the demand.

32On the charge of intentionally causing serious injury you fell to be sentenced as a serious, violent offender. His Honour sentenced you to 7½ years’ imprisonment on that count.

33On the previous night and day of offending you had been using heroin and methyl amphetamine.

34His Honour noted you have had a very difficult background. When you were very young, 2 years old, you came from Vietnam to Australia, with your family, as a refugee. You left school, and home, early and have a limited work history. Your father was mentally ill and badly violent within the home. You have had a long history of drug addiction.

35His Honour had received a report of Dr Carla Lechner who wrote of your depression and “unresolved past trauma” in respect of your father’s violence.

36Your personal circumstances are set out in the psychological report of Tim Watson Munro who interviewed you on 5 July 2019 which was [Exhibit 1].

37You were born on 30 October 1977 and are 41 years old.

38When you were 2 years old, your parents, 2 older siblings and you came to Australia from Vietnam as refugees. You lived in Adelaide until you were 11 when the family moved to Melbourne. You told Mr Watson Munro your father was violent. You said he was diagnosed with schizophrenia and was a heavy drinker. Your parents separated when you were 13.

39Against a difficult family background you struggled at school and attended 4 different high schools where, to protect your Vietnamese friends and yourself from bullying, you often got into schoolyard fights. You left school in year 10 and started using and selling drugs. When you were 18 you got a job in a bakery which lasted for about 18 months. Over the ensuing years you have worked as a cook, but not for lengthy periods, and obtained certificates 1, 2 and 3 in hospitality. When in jail you have typically worked as a prison cook.

40You have never married and have no children.

41In the lead up to this offending you were in a relationship with Ms Campbell. Both of you were using methamphetamine and heroin.

42On the day you offended you said you had used methamphetamine and heroin and took 1½ tablets of Rivotril which is a mildly euphoric benzodiazepine.

43It is likely your impulse control and perception were impaired. Given your long history of substance abuse and violent offending it is also likely that you knew of the risk that could happen.

44You told Mr Watson Munro you have very little memory of your offending but accept your culpability. You also expressed remorse for your actions.

45You told him you have detoxified in jail and train regularly. You are not prescribed any medication.

46On psychological testing, Mr Watson Munro assessed you as having a moderate and recurring depressive disorder. In his opinion, you need behaviour therapy, to tackle your anger and impulsiveness, and psychotherapy to deal with your anxiety and depression. He wrote, “in the absence of treatment, (your) prognosis is at best guarded and, in all likelihood, bleak.”

47You have never had any counselling or other treatment.

48Mr Dickenson submitted, to address the need for therapeutic intervention, I should impose a sentence of imprisonment in combination with a lengthy community correction order tailored with treatment conditions.

49In my opinion, such a disposition would fail to meet the objectives of sentencing including general deterrence, specific deterrence, protection of the community and just punishment.

50Mr Dickenson submitted:

·your early plea of guilty has high utilitarian value and is evidence of your acceptance of responsibility for your actions and remorse; and

·while the offence of recklessly cause serious injury is inherently serious, as the maximum penalty of 20 years imprisonment demonstrates, the injuries you caused to Mr Moffatt were a lower end example of the type. For instance, the injuries you inflicted on the shop employee in 2009, with a butcher’s knife, required surgical intervention, and were far more serious than here.

51I accept those submissions and will moderate the sentences, and non-parole period, I would otherwise impose.

52Nonetheless, as Mr Cordy, who appeared for the prosecution, submitted, there are significant aggravating features to your offending, namely:

·you went into the house;

·in a “drug crazed” state;

·with a weapon in each hand; 

And

·you used them;

·without provocation;

·to assault 2 of the occupants;

·in the early hours of the morning;

·in their home;

·where they were entitled to feel safe. 

And, after your initial attack on Mr Moffatt, you:

·continued to hit him as he retreated to his bedroom; and then

·assaulted Mr Potter when he came to assist Mr Moffatt.

53I must also take into account these matters in deciding the sentences I will impose.

54Please stand Mr Nguyen.

55By the sentence I impose, I must denounce your conduct. I must punish you and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation.

56Taking into account the circumstances of your offending and its effects, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you

57On Charge 1 intentionally cause serious injury, you are sentenced to 5 years’ imprisonment.

58On Charge 2 common law assault, you are sentenced to 18 months imprisonment. I direct 6 months of that sentence be served cumulatively on the sentence on charge 1.

59on Charge 3 possess methamphetamine, given the quantity of drug, and the cash (relevantly I was told you were not working), found on you I am not satisfied on the balance of probabilities that your possession was not for the purposes of trafficking (and your counsel did not submit otherwise) and I sentence you to 3 months imprisonment which is to be served concurrently with the sentences imposed on Charges 1 and 2.

60On Charge 3 possess heroin, the quantity found on you was consistent with personal use – I am satisfied on the balance of probabilities your possession was not for the purposes of trafficking – and I sentence you to 7 days imprisonment which is to be served concurrently with the sentences imposed on Charges 1, 2 and 3

61The total effective sentence is 5 years’ 6 months’ imprisonment and I order you serve a minimum period of 4 years before being eligible for parole.

62I declare, you have already served 605 days of the sentence by way of presentence detention. I also declare but for your guilty plea, I would have imposed a total effective sentence of 7 years 6 months imprisonment and a non-parole period of 5 years 6 months.

63With your consent, I make the two disposal orders and forfeiture order, in terms of the pro forma orders e-filed with the court. There was a summary offence which on the prosecution application I have marked “withdrawn”. You may be seated Mr Nguyen.

64Any matters arising out of the Mr Cordy?

65MR CORDY:  No, Your Honour.

66HIS HONOUR:  Thank you.

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