Director of Public Prosecutions v Nguyen, Jimmy Lee & Osmond, James Bryce
[2013] VCC 498
•15 April 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
Case No. CR-12-02143
CR-13-00113
CR-13-00573
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JIMMY LEE NGUYEN JAMES BRYCE OSMOND |
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JUDGE: | Her Honour Judge Cotterell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 April 2013 | |
DATE OF SENTENCE: | 15 April 2013 | |
CASE MAY BE CITED AS: | DPP v Nguyen, Jimmy Lee & Osmond, James Bryce | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 498 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms C. Parkes | Office of Public Prosecutions |
| For the Accused | Mr G.Chisolm for Nguyen Ms E. McKinnon for Osmond | Slades & Parsons for Nguyen C Marshall & Associates for Osmond |
HER HONOUR:
1 James Bryce Osmond, you have pleaded guilty before me to four charges of theft, the maximum penalty for those offences is ten years imprisonment. You have also pleaded guilty to;
- one charge of being a prohibited person in possession of an imitation firearm, the maximum penalty for that offence is ten years imprisonment;
- three charges of armed robbery, the maximum penalties for those offences is 25 years imprisonment;
- one charge of attempted theft, the maximum penalty for which is five years imprisonment;
- one charge of damaging property, the maximum penalty for which is ten years imprisonment;
- two charges of attempted armed robbery, the maximum penalty for which is 20 years imprisonment and finally;
- two charges of common law assault, the maximum penalty for that offence being five years imprisonment.
2
Jimmy Lee Nguyen, you have pleaded guilty before me to two charges of armed robbery, one charge of theft and one charge of attempted armed robbery. The matter was opened by the prosecutor and a summary of the prosecution opening was tendered as Exhibit A on the plea, and a copy of that opening is attached to this sentence. The majority of these offences occurred between 24 June 2012 and 29 June 2012, with one additional charge on
15 July 2012.
3 The offending is extremely serious given the violence involved and the use of an imitation firearm which was accurate enough to convince your victims that it was real. The seriousness of the armed robberies and attempted armed robberies is also reflected in the penalties which Parliament has seen fit to impose for offending of this type.
4 Jimmy Lee Nguyen, you were involved in fewer offences, the armed robberies, one theft and one attempted armed robbery, during which you played a lesser role, in that you were not in possession of the firearm. I accept, however, that you were acting freely and voluntarily and I do not believe you acted out of any fear from Mr Osmond as I do not have any proper evidence of that fact.
5 During your pleas it was suggested by you, Osmond, that the imitation firearm was obtained from the home of Jimmy Lee Nguyen. This was denied during the plea hearing by a representative on behalf of Mr Nguyen. It is a matter which arose during the plea hearing and there is no evidence before me in any of the material to indicate from where that firearm was obtained. Certainly during the offences, when it was used, it was always in the possession of you, Osmond. I make no finding as to where it originated.
6 You, Nguyen, have a complicated set of circumstances due to your overlapping offending. You appeared before me in October 2012 and were sentenced to a community corrections order in relation to one charge of common law assault. The breach proceedings in relation to that community corrections order were listed before me on the morning before your plea hearing came on. The community corrections order was to last for nine months and you failed to even attend on the first day and, in fact, you made no attempt whatsoever to comply with that order. My only option will be to cancel that order and to re-sentence you in relation to that offence. It is a pity that you did not take the opportunity offered to you by that order and instead of beginning your rehabilitation, which was intended to assist, you offended again.
7 On 16 January 2013 you were arrested and remanded in relation to a burglary and theft. You are to appear for a contest mention for that matter on 18 April. You have also served one month imprisonment for driving matters and theft committed in 2012. You then had your bail revoked in relation to this offending on 12 February 2013, meaning that you have 63 days pre-sentence detention which I will deal with at the end of these sentencing remarks.
8 You were however on trial bail in relation to the matter for which I sentenced you in October 2012 when you committed these offences. Further, as I understand it, this offending breaches an undertaking imposed in 2012.
9 As I indicated, you clearly played a lesser role in the offending. You were present during the first robbery and observed that Osmond had a firearm with him. You were not charged with that offence but in full knowledge of his use of the firearm. You went on to participate in a further two armed robberies and a further attempted armed robbery. It was also submitted on your behalf that on being arrested, you cooperated totally with the informant, that you identified your co-offender, you made a sworn statement and you gave an undertaking that you would give evidence as to the facts detailed in that statement were the matter to go to trial.
10 It is clear that you are entitled to a discount for that cooperation and the fact that you were prepared to give evidence although in the event you are not required to do so as Osmond has also pleaded guilty. You are further entitled to a substantial discount for your early plea of guilty. I now turn to matters personal to you.
11 A psychological report authored by Carla Lechner dated 20 March 2013 was tendered as Exhibit 1N. The report sets out your background. You are the second of four children in a dysfunctional family environment. You were also bullied at school and exhibited symptoms strongly suggestive of ADHD. Despite the difficulties in the context of your mother's own disorder, you managed to complete Year 12 and embarked on tertiary studies. However, around that time, the family underwent great upheaval as your parents separated, your mother attempted suicide and you and your older brother left home.
12 Your involvement with extremely negative peers and drug use around that time resulted in you being allegedly kidnapped and tortured at one stage over a period of days. You developed the symptoms of acute post traumatic stress disorder which your psychologist diagnosed as occurring also after an incident of unspecified sexual abuse in Vietnam by an older cousin. So you have two sources of the post traumatic stress disorder with which you have been diagnosed. All your offending occurred in the context of your drug use. You used the drug Ice to block out symptoms of that disorder.
13 You expressed regret and shame for your actions to your psychologist and she also indicates that you are finding it difficult to cope in custody, experiencing nightmares and flashbacks. Your diagnosis is that you have both post traumatic stress disorder, as I indicated, and also depression. Attended as Exhibit 4N is a letter signed by your mother, your father and two brothers, who also paint a picture of your difficult childhood and the effect of your parents separation on the family. They indicate that you began using drugs in the context of that separation and a very serious car accident where you and your brother were seriously injured. They indicate in that letter that you have changed your attitude towards life since your incarceration. They state that you have taken steps to resume your study while in the prison system and that you will be fully supported when you are released and they will assist you to obtain counselling, employment and to resume your studies.
14 Written submissions by your counsel on your behalf were tendered as Exhibit 1N on the plea. In those submissions counsel submitted that had your plea been heard earlier, when it was originally booked in in February 2013, you would have had the opportunity to be sentenced to a Youth Detention Order. However, I am not sure how that can really be taken into account in sentencing you, other than to note that that was unfortunate.
15 Further, given that you have had an enforced detoxification period since January 2013, you will be in a position to undergo a community corrections order. It is submitted that your prospects of rehabilitation, your plea of guilty, your sworn statement, your particular role in the offending, are all supportive of you receiving a further opportunity at a community corrections order, rather than serving an immediate term of imprisonment. Unfortunately I cannot accept those submissions.
16 I further note, tendered as Exhibit 3N were a bundle of documents which included certificates confirming that you have undertaken studies while in custody, including an accountancy diploma in preparation for going onto and completing an accountancy degree when you are released. I have taken all those matters into consideration. They are matters that you will eventually have the opportunity to put into effect. I also take into account the other general sentencing principles included in s.5 of the Sentencing Act which I will refer to later
17
I now turn to you, James Bryce Osmond. Your role in this offending, as I indicated, was more significant than that of your co-accused. You have a criminal history which began with burglaries and thefts and other dishonesty offences, and some driving offences, and which were dealt with in the Children's Court by way of a without conviction supervision order in 2007. However, you graduated to the adult jurisdiction and in 2009 you received your first sentence of youth detention with a total effective sentence of 12 months for offences against the Road Safety Act, threats to kill, injury, other assaults, burglary, theft and criminal damage. On that same day of
26 March 2009you also received a sentence in the Children's Court for offences which included burglary, theft, attempted burglary, theft of a motor vehicle, for which you received a sentence of 8 months youth detention. Although not specified, I assume that the various sentences imposed in the jurisdictions were to be served concurrently.
18 You then received a good behaviour bond in Melbourne for other matters and on 28 July 2009, at the Melbourne Magistrates' Court, you received an aggregate term of adult imprisonment which was wholly suspended for a period of 18 months for a series of offences which included burglaries, thefts and other property charges. On 15 April 2010, from the Melbourne Magistrates' Court again, you received an aggregate sentence of eight months imprisonment which was also wholly suspended, this time for a period of two years, for aggravated burglary, burglary, theft and various Road Safety Act offences. At the same time a suspended sentence from 28 July 2009 was restored and you were ordered to serve six months of which you had already served some part.
19 Then on 15 July, from the Heidelberg Magistrates' Court, you received an aggregate term of imprisonment for 22 months for thefts, other dishonesty offences, burglary, offences against the Road Safety Act and regulations and the sentence of eight months I just referred to, was restored, the one you received on 15 April. That was cumulative on the other sentences imposed.
20 You were released on 26 April 2012 on parole and the first charge which brings you before the court occurred on 19 June 2012 and on 20 June your parole was cancelled. You were arrested on 18 July 2012 at which time you owed some 11 months and 17 days to the Parole Board. As I understand it, that is the sentence which keeps you in custody at the moment and you would be eligible for release on 3 July but for these offences. On 27 October 2011 you also received a sentence of six months which was to be served concurrently with that 22 months term of imprisonment for other offences against the Road Safety Act and dishonesty.
21
Tendered as Exhibit 1O was a psychological report authored by
Michael Bilyk which provided me with some details of your background and perhaps some explanation for the difficulties that you have endured in your life up until now.
22 You are now aged 22. You are the product of a deprived and dysfunctional upbringing having had no contact with your father since the age of six and having been raised by a mother involved in drugs, alcohol and prostitution. Her neglect was such that you identify with your oldest brother as a parental figure rather than your own mother. You learnt to steal early in the context of stealing for food to eat and had a complete lack of guidance, support and boundaries. I understand that your two older brothers are also serving sentences in the prison system at this time.
23 You have had a long term partner and you have a nine year old daughter from that relationship. It appears that you attribute your acknowledged binge on Ice which resulted in the offending which brings you before the court, to difficulties you had with your partner's alleged infidelity. You also have a six year old daughter to another woman and you have no contact with that daughter or her mother at this time.
24 You were diagnosed with attention deficit hyperactivity disorder as a child and you received some counselling but you do not remember any medical treatment. Your involvement with drugs and alcohol is long term. You began at the age of 12 or 13 and that clearly explains the criminal history that I have described. You have frequently experienced feelings of isolation and rejection; that is the description of your state when you went on the Ice binge over the conflict with your partner. However, in consultation with your psychologist, you were able to identify the deleterious effects that your behaviour might have had on an individual suffering the sort of behaviour which you indulged in over that period of time. You were able to empathise with your victims and understand that they would have been terrified and shocked and you indicated shame when referring to those matters, and also remorse.
25 You were assessed by your psychologist as having a moderate risk of general violence and medium high risk range of re-offending which arises clearly from your background and is also linked to your chronic substance abuse and associated behaviours. Mr Bilyk also indicates that as you are relatively young, you have not yet experienced longer term intervention which might assist you. Your prospects for rehabilitation due to your age and insight that you have in relation to your victims, and your identification of shame and remorse, mean that your prospects for rehabilitation would appear to be sound if you were given the capacity to address your offending appropriately.
26 You are now detoxified from the substance usage and it is clear that when you are released you will need to have the opportunity to undertake the relevant psychological treatment in order to achieve a non-offending lifestyle. Return to the community will be difficult as you are, as I understand it, without support and I note that you have had no one present in court to support you during your plea and sentence. But hopefully when you are released, you will be in a position to be thinking more clearly, as I am sure you are at the moment, and I hope that you will remember what has been said about you and there are positive things in your life that you can take advantage of. However, no one can make you do that. It is up to you to establish some sort of determined attitude towards getting yourself out of the terrible mess that you currently find yourself in.
27 I am now going to turn to the other matter I referred to which I am required to take into account in regard to each of you in assessing what sentence is appropriate. I take into account general deterrence, that is that others in the community be deterred from engaging in violence and robbing innocent people at the point of a firearm albeit imitation. I am also required to take into account specific deterrence and I do so in relation to each of you. You both have criminal histories involving your reliance on, and use of, illicit drugs. You have both had experiences with the law which should have deterred you from continuing along that path of drug use and crime, and thus far neither of you have responded.
28 Any sentence that I impose must act to deter each of you from offending in this way again. You must understand that if you do continue to offend like this, you will be serving longer and longer terms of imprisonment. I further denounce your conduct on behalf of the community as I am required to do. Your spree of offending involving carjacking and robbery with the use of a firearm would be abhorrent to any member of this community. You inflicted terror on your various victims and it is behaviour which will not be tolerated.
29 I then turn to the matters put in mitigation for each of you. You are of course still very young men and in sentencing you I have to bear in mind that each of you will be released following any sentence I impose and will have to be reintegrated into the community. Therefore my aim is not to impose a sentence which will be crushing but one which will take advantage of the situation you currently find yourselves in of being abstinent from any drug use, and in a position to acknowledge your offending and to think about a future.
30 I have also taken into consideration the principles in relation to cumulation, concurrency and totality in the sentences I am to impose. Because of your youth, your rehabilitation must be a major consideration in any sentence that I impose and to a certain extent prevail over the need to deter others. I also take into account the principle of parity, that is like punishment should be imposed for the same type of offending. That principle is modified by the different roles that each of you played in the offending and the number of charges each of you face, and your histories.
31 Having considered all those matters, and having weighed the mitigating factors against the matters I have referred to, I have concluded the only appropriate sentence for each of you is a term of imprisonment to be served immediately. It is the seriousness of the offending, and the nature of the offences, which means that if you do have any aim to rehabilitate yourselves you are going to have to maintain that sense of purpose until you are actually released.
32 In sentencing you, Nguyen, I take into account the fact that you are in custody at the moment, having applied to have your bail revoked and so have remained in custody in relation to this matter following the completion of a one month term of imprisonment which was, as I understand it, your first time in custody. I accept this may be an excellent time for you to reconsider your life in light of that experience but the seriousness of the offending, as I just said, is such that you will not have that opportunity to test your resolve and rehabilitation until you complete the sentence that I am going to impose. I am also going to deal with you in relation to the breach of the community corrections order.
33 That said, Mr Osmond would you stand please? I will sentence you first. Taking Charge 3 as the base sentence, which is armed robbery, you are convicted and sentenced to three years imprisonment.
34 On Charge 1 you are convicted and sentenced to four months imprisonment, one month of that is to be served cumulatively.
35 On Charge 2 you are convicted and sentenced to eight months imprisonment, one month of that is to be served cumulatively.
36 On Charge 4 you are convicted and sentenced to 12 months imprisonment, four months of that is to be served cumulatively.
37 On Charge 5 you are convicted and sentenced to four months imprisonment.
38 On Charge 6 you are convicted and sentenced to three years imprisonment, six months of that is to be served cumulatively on the base sentence and other sentences.
39 On Charge 7 you are convicted and sentenced to three years imprisonment, six months of that is to be served cumulatively.
40 On Charge 8 you are convicted and sentenced to 12 months imprisonment, three months of that is to be served cumulatively.
41 On Charge 9 you are convicted and sentenced to 12 months imprisonment, three months of that is to be served cumulatively.
42 On Charge 10 you are convicted and sentenced to two years imprisonment, six months of that is to be served cumulatively.
43 On Charge 11 you are convicted and sentenced to nine months imprisonment.
44 On Charge 12 you are convicted and sentenced to nine months imprisonment.
45 On Charge 13 you are convicted and sentenced to 12 months imprisonment, three months of that is to be served cumulatively.
46 On Charge 14 you are convicted and sentenced to two years imprisonment, five months of that is to be served cumulatively.
47 That is a total effective sentence of six years and two months imprisonment and I order that you serve four years before being eligible for parole. I have taken into account you will not commence that sentence until July as you are still serving the parole period in relation to the previous sentence.
48 Pursuant to s.6AAA, but for your plea of guilty, the sentence I would have otherwise imposed is seven years, nine months imprisonment with a minimum non-parole period of five years and six months.
49 Did you understand that sentence?
50 PRISONER: Yes.
51 HER HONOUR: In relation to the armed robberies, you got three years on each one but only six months after the first one. I am sure your counsel will explain all that to you carefully. Thank you. I intend also to make the forfeiture orders.
52 MS PARKES: Your Honour, there's just the order in relation to Mr Osmond's licence pursuant to s.89(4).
53 HER HONOUR: I also have to make an order in relation to your licence and I will cancel your licence and disqualify you. It is probably already cancelled, is it? I will disqualify you for a period of four years.
54 Mr Nguyen, could you please stand? I am simply going to sentence you now in relation to the offences to which you pleaded guilty. Taking Charge 6 as the base sentence, you are convicted and sentenced to three years imprisonment.
55 On Charge 7 you are convicted and sentenced to three years imprisonment, six months of that is to be served cumulatively.
56 On Charge 9 you are convicted and sentenced to 12 months imprisonment, three months of that is to be served cumulatively.
57 On Charge 10 you are convicted and sentenced to two years imprisonment, six months of that is to be served cumulatively.
58 That gives a total effective sentence of four years and three months imprisonment and I order that you serve a minimum period of 20 months before being eligible for parole. I declare that your 63 days of pre-sentence detention be deemed time served and that that be entered in the records of the court.
59 Pursuant to s.6AAA, but for your plea of guilty, the sentence I would have otherwise imposed is five years and eight months imprisonment with a minimum non-parole of 30 months.
60 Those are the orders. Also, in relation to the breach of the community corrections order, I find the breach proved. I order that the order be cancelled and I then convict and fine you $1,200 with no stay.
61 HER HONOUR: I made the forfeiture and disposal orders which I have brought with me. They are signed. The disposal orders relate to an imitation firearm, Nokia telephone, black balaclava, blue and red coloured Melbourne Football Club jacket as set out in the schedule. Is there anything else?
62 MS PARKES: An order in relation to Mr Nguyen's licences.
63 MR CHISHOLM: Your Honour, Mr Nguyen still has his licence, it's just that it is suspended from 5 February to 5 May. So it has not been cancelled.
64 HER HONOUR: Right. I think I'm now to cancel it.
65 MR CHISHOLM: Yes.
66 HER HONOUR: Do you want to make any submissions in relation to the disqualification period?
67 MR CHISHOLM: Your Honour, I note that the non-parole period, in effect, is about 18 months from today.
68 HER HONOUR: Yes. I will make it 18 months. The licence orders we will attach to each of the offences involving theft of a motor vehicle, in relation to each accused but they will be served concurrently. I understand these are difficult matters for the family as well. One can only do what one believes is appropriate and I hope, Mr Nguyen, that you are able to keep that resolve up and do something when you are let out. Thank you.
(See Crown Opening attached)
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