Director of Public Prosecutions v Nuanh

[2024] VCC 1227

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No.
CR-24-00282
CR-24-00486

DIRECTOR OF PUBLIC PROSECUTIONS

v

Blessing NUANH

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JUDGE:	Holding
WHERE HELD:	Melbourne
DATE OF HEARING:	23 April 2024
DATE OF SENTENCE:	14 August 2024
CASE MAY BE CITED AS:	DPP v Nuanh
MEDIUM NEUTRAL CITATION:	[2024] VCC 1227

REASONS FOR SENTENCE
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Subject:- CRIMINAL LAW -

Catchwords:              Plea of guilty – young offender - armed robbery – causing injury recklessly – possession of a drug of dependence – commit indictable offence while on bail – prison offence – assault of an emergency worker - Verdins principles – burdensome conditions of imprisonment - Community Corrections Order.

Legislation Cited:      Crimes Act 1958 (Vic); Drugs, Poisons and Controlled Substances Act 1981 (Vic); Sentencing Act 1991 (Vic).

Cases Cited:Boulton v The Queen [2014] VSCA 342; R v Stevens [2009] VSCA 81. R v Verdins [2007] VSCA 62.

Sentence:                  total effective sentence of 12 months’ imprisonment and a Community Corrections Order of 15 months’ duration.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms H. Baxter	Abbey Hogan, Solicitor for Public Prosecutions
For the Accused	Ms J. Clark	Greg Thomas Barrister & Solicitor

HIS HONOUR:

1Blessing Nuanh you have pleaded guilty to the following offences in two separate indictments:

·Armed robbery contrary to section 75A of the Crimes Act 1958 which carries a maximum penalty of 25 years;

·Possession of a drug of dependence contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981 which carries a maximum penalty of 5 penalty units;

·Causing injury recklessly contrary to s 18 of the Crimes Act 1958 which carries a maximum penalty of 5 years’ imprisonment.

2You have also pleaded guilty to the summary charge of committing an indictable offence, namely armed robbery, whilst on bail.

3The circumstances of your offending are detailed in two separate prosecution openings. I was informed these openings accurately detail the circumstances of your offending.

Circumstances of Recklessly Causing Injury

4I will first summarise the circumstances of your charge of causing injury recklessly. This offence occurred on 7 July 2023 when you were in custody at the Melbourne Assessment Prison. The victim, Mr Clayton, was a prison officer employed by Corrections Victoria and was working at that prison on that day.

5You had been escorted to a ‘audio visual room’ to attend ‘tele-court’ for a bail application listed that morning. You were handcuffed and seated, and the victim sat on a seat behind you. Three other prison officers were also seated in the room.

6At the end of the bail application, you were told that you were not going to be released from custody. You stood up and started yelling at the victim; complaining that you had never breached your bail or parole. The victim understandably responded, ‘it’s not up to us’.

7You managed to slip your right hand out of the handcuffs and walk towards the victim. You wrapped the free handcuff around the knuckles of your left hand and used it in a way that is commonly referred to as a “knuckle duster” and said to the victim ‘what, what let’s go cunt’. You then started punching the victim multiple times to his face and upper body area.

8An alarm was activated, and you were restrained by three other prison officers who took you to the ground. You continued to resist, and 8 other prison officers were required to subdue you.

9The victim sought medical attention within the prison before attending at St Vincents hospital. In addition to bleeding profusely he suffered the following injuries:

·5cm laceration on his left cheek requiring stitches;

·1.5cm cut to his ear requiring stitches;

·3cm laceration to his ear requiring treatment by the use of medical glue.

10As a result of the above injuries, a course of antibiotics was administered to the victim.

11You were later granted bail and released from custody on 31 October 2023.

12You were not interviewed in relation to the above offending. Tendered on your plea hearing were a number of reports from medical professionals. A psychiatrist, Dr Deacon assessed you in January 2024, when you had been returned to custody. He assessed you at that time concerning whether you were fit to stand trial. He assessed you again in March 2024. In relation to the above offending, you told Dr Deacon that you felt angry that you had not been granted bail and this was in the context of feeling as though you were being disrespected by the prison staff. You said that prior to this incident you had been spoken to disrespectfully by prison staff, had your canteen given away, and prison staff had failed to give your mother your car keys despite a consent form being signed to allow this.[1]

[1] Report of Dr Deacon dated 28 March 2024 at pp.4 – 5.

Circumstances of Armed Robbery and Possession of Cannabis

13Approximately a month after your release from custody you committed the offence of armed robbery. At the time you were on one bail for the offending outlined above and on bail for other offending committed between 14 May 2023 and 10 June 2023.

14The victim of your armed robbery offending, Mr Ngo, runs a farming business and told police he had received $14,000 from his wife before travelling to the Sunshine Market place on the morning of 30 November 2023.

15Between 1:00 pm and 1.15 pm this day, Mr Ngo attended two banks and withdrew $4,000 cash. He told police he placed this money with the $14,000 cash into his satchel.

16CCTV cameras in the area depict Mr Ngo entering a male toilet block with you entering the same toilet block approximately 30 seconds later.

17When Mr Ngo left the toilet block you followed him to a Commonwealth Bank Branch and sat outside and watched Mr Ngo who went inside the bank for a short time. When the victim left the branch you followed him as he went towards his vehicle. The victim noticed you approaching him from behind and noticed you were holding a black handled knife.

18You pointed the knife towards the victim’s stomach and said, ‘I want to take the bag’ referring to the victim’s satchel. The victim moved to avoid you, tripped, and fell backwards. As he did so, his bag fell to the ground and you picked it up and ran away. The victim attempted to follow you and saw you drop the knife on the ground.

19The victim alleges that the bag stolen contained the following property:

·$4,000 in cash withdrawn from the ATM that day;

·A further $14,000 the victim had received from his wife earlier that day;

·2 x Suncorp business cards;

·A CBA bank card, NAB bank card and Bendigo Bank card;

·A cheque for $13,437.

20The victim called 000 and shortly after his interaction with you, police attended. The knife was recovered and given to the police. Approximately half an hour after the robbery another person in the vicinity was found to be in possession of the bag. He told police he found the bag in bushland near the railway station. That person was later charged with handling stolen goods. Located in the bag was the victim’s bank cards as well as cheques, but there was no cash.

21Police identified you from CCTV footage and on 1 December 2023 you were arrested at a house in the suburb of Hillside. You unsuccessfully attempted to flee when police attended. When arrested you were found in possession of 4 grams of cannabis which is the subject matter of Charge 2 on Indictment No: P12544502.

22When you were interviewed by police you denied that you had committed the armed robbery.

23In relation to your offending on 30 November 2023, you told Dr Deacon an account of your offending that suggested the offending was unplanned and opportunistic. You said that you felt the victim was following you at the time and you did not know if he had cash in his possession.[2]

[2] Report of Dr Deacon dated 28 March 2024 at p.5.

24During the plea hearing the prosecutor indicated that bank records confirmed the withdrawal of $4000 cash, but it could not be said the evidence established beyond reasonable doubt the precise amount of cash in the bag. The prosecutor did not press that you should be sentenced on the basis that there was initially $14000 in the bag.

Personal Circumstances

25I turn now to your personal circumstances which are outlined in your counsel’s written Plea Submissions dated 18 April 2024,[3] a Neuropsychological Report prepared by Linda Borg dated 1 March 2019[4] and two Psychiatric Reports prepared by Dr Adam Deacon dated 19 January 2024 and 28 March 2024.[5]

[3] Exhibit 1.

[4] Exhibit 3.

[5] Exhibit 2.

26Your date of birth is 8 August 2003, so you were 19 years old, soon to turn 20 when you offended against Mr Clayton. You were 20 years old when you committed the armed robbery.

27You were born in Guinea to Liberian parents and migrated to Australia with your family when you were an infant. In 2007 your parents separated and you now have limited contact with your father due to him living in Sydney. In relation to your childhood, you have denied a history of abuse or trauma, although, in 2019 you told Ms Borg that you were subjected to physical discipline which you regarded as appropriate. Prior to being detained in custody you lived with your mother and two younger sisters.

28In terms of your educational and vocational background, you initially attended Melton Secondary College before being expelled. You then attended Kurunjang Secondary School and later a community school where you completed Year 10 VCAL. You previously told Ms Borg that you had difficulties with reading and mathematics. However, you have said that you have a greater aptitude for perceptual or hands-on abilities. Following school, you worked as a labourer for 6 months before commencing a bricklaying apprenticeship. You told Dr Deacon that you had difficulties completing your apprenticeship due to issues with your employer maintaining sufficient work.

29You have appeared a number of times in the Children’s Court, for such offences as Burglary, attempted robbery, affray, criminal damage, assault, threaten to assault an emergency worker, various dishonesty offences and armed robbery. Initially you were sentenced to non-custodial dispositions but in March 2019 the Children’s Court imposed a sentence of 12 months’ detention in respect offending that included an armed robbery charge. Unfortunately, you continued to offend and were sentenced for further charges of armed robbery in 2020 and 2021 along with other offences. You were sentenced to further periods of detention. Your criminal history indicates there has been ongoing concern regarding your mental health and cognitive issues. Your most recent prior court proceeding relating to the offence (amongst others) of assaulting an emergency worker on duty imposed a condition on you to comply with all lawful directions of a Mental Health Service in relation to psychiatric treatment and counselling. Whilst you were detained in 2019, you were referred to Ms Borg for psychological assessment after concerns were raised regarding underlying cognitive issues.

30According to Ms Borg’s 2019 report, following cognitive assessments, you were diagnosed  as having a mild developmental language disorder.[6] However, Ms Borg ultimately concluded that your neuropsychological profile ‘is not reflective of a mild developmental language disorder but rather due to a specific working memory impairment’.[7] Ms Borg went on to state that ‘when the working memory system fails, this can lead to inattention and disruptive behaviour – with the result being slowed rates of educational progress, particularly in secondary school’[8].

[6] Exhibit 3 [8] – [9].

[7] Exhibit 3, [41].

[8] Exhibit 3, [41].

31Dr Deacon states that you have a complex mental health history.[9] You had experienced considerable anxiety, mistrust and possible paranoia.

[9] See: Report of Dr Deacon dated 19 January 2024 at p.5 [1] and Report of Dr Deacon dated 28 March 2024 at p.6 [1].

32You told Dr Deacon that you began “hearing voices” at age 15 and you linked the onset of voices to behaviour changes, including “going crazy…going onto the streets” and engaging in criminal conduct from age 16. You were first informed that you had been diagnosed with schizophrenia at age 19. Dr Deacon details an ‘Orygen’ report dated 24 June 2022 which refers to you being ‘referred to the Early Psychosis Program (EPPIC) in September 2020 (aged 17) where [you] were managed for a first episode [of] psychosis’.[10] According to Dr Deacon, your diagnosis of schizophrenia and cannabis-use disorder appears to have been confirmed around 2021 to 2022.

[10] Report of Dr Deacon dated 28 March 2024 at p.3.

33You reported to Dr Deacon that you have benefited from prescribed antipsychotic medication, including initially depot medication. You said that you have been able to function well when medicated and this led to you being able to work in labouring and furniture removal before being in custody.

34During your time in custody, you have continued to take prescribed antipsychotic medication, paliperidone. You have been taking 6mg of this medication a day, however, you have reported that you are “working towards getting off medication”[11] with your treating clinicians. You also suggested to Dr Deacon that your diagnosis had recently been reviewed and was considered to be bipolar disorder rather than schizophrenia.

[11] Report of Dr Deacon dated 28 March 2024 at p.3.

35In terms of your current circumstances, you told Dr Deacon that as of 28 March 2024, you were being detained in a management unit where you have not been able to engage with other prisoners or prison programs. Whilst you were not coping particularly well in the management unit, you denied having any mental health issues at this time.

36In his initial report of 19 January 2024, Dr Deacon stated:

Mr Nuanh is a 20-year-old man with a complex mental health history. He first developed over(t) signs of mental illness in his mid-adolescence. He has required consistent psychiatric management since, both in the community and custody. His most likely diagnosis is schizophrenia. His presentations over time have been difficult to interpret due to accompanying personality traits that appear to surface, particularly in stressful contexts (including being in custody). He has a propensity towards becoming badly mistrusting, suspicious, paranoid, irritable, uncooperative and hostile in manner. He has been thoroughly psychiatrically assessed during this period in custody; ultimately leading to the conclusion that he had relapsed into a psychotic state in/around September/October 2023. He has since been prescribed oral antipsychotic medication. His presentation appears to have varied and fluctuated since, leading to further conjecture and uncertainty regarding relative contribution, and likely intersecting impacts, of a primary psychotic disorder and underlying personality vulnerabilities.[12]

[12] Report of Dr Deacon dated 19 January 2024 at p.5 [1].

37In his more recent report, Dr Deacon stated that he could not find that there was a causal connection between your mental health conditions and your offending, both in relation to the assault upon Mr Clayton and the commission of the armed robbery.[13]

[13] See: Report of Dr Deacon dated 28 March 2024 at p.6 [2]-[3].

Objective Gravity of your Offending

38Mr Nuanh, your offending is very serious. Armed robbery is regarded so seriously by parliament that it has a maximum penalty of 25 years’ imprisonment. That type of maximum penalty only attaches to the most serious offences. You have previously been sentenced for armed robbery a number of times in the Children’s Court. In that court different sentencing considerations apply. You are now in an adult court and some of the most important sentencing principles in relation to this type of offending are deterrence, just punishment, and protection of the community. It is not uncommon for adult offenders to receive sentences of some years for stealing from people while threatening them with a knife.

39Your sentence must send a message to others who might consider committing such offending that imprisonment is the most likely sanction.

40Your offending is also aggravated by the fact that you were under a bond at the time and on bail. Your offending raises a real issue for the court, namely; what is the sentence that properly balances sentencing considerations, such as deterring you and others from this type of offending, protection of the community, and facilitating your rehabilitation.

41Your offending in striking Mr Clayton is also very serious. Our parliament has recognised that performing the jobs that emergency workers do is important, and their safety is important. They should not be assaulted, and the parliament has made it clear that where they are assaulted, the only appropriate penalty unless a ‘special reason’ exists is at least 6 months’ gaol. Further, because the offence was committed while you were in custody it is defined as a ‘prison offence’ which requires the sentence for this offence to be served cumulatively upon any other sentences imposed for other offending.

Submissions of the parties

42Your counsel, Ms Clark, has relied upon the following matters in mitigation.

43First, your plea of guilty. There is no issue between the parties that your plea of guilty was entered at earliest opportunity. You are entitled to the full utilitarian benefit of that plea. It has expedited the course of justice.

44Second, your history of mental health problems that I have detailed above. It was not put on your behalf that there was a causal connection between your mental health issues and your offending so that your moral culpability was reduced; instead, it was submitted that because of these problems your experience of gaol is more burdensome than if you did not suffer these conditions. Again, the prosecution takes no issue with this submission. That is, limb 5 of the case of Verdins[14] is applicable.

[14] R v Verdins [2007] VSCA 62.

45There was some discussion of the applicability of limb 6 of the case of Verdins. That is that there is serious risk that imprisonment will have a significantly adverse impact upon your mental health. I am not satisfied on the balance of probabilities that limb 6 of Verdins is engaged. While Dr Deacon suggests that it is possible that ‘the stress of confinement could trigger the onset of a decline in mental health in the future’,[15] the evidence in my view does not reach the threshold of satisfaction on the balance of probabilities.

[15] Report of Dr Deacon dated 28 March 2024 at p.6 [5].

46Third, your youth was emphasised. You are still a young offender, experiencing your first period of adult imprisonment. There is no dispute from the prosecution that despite the seriousness of your offending, your rehabilitation, given your young age, is an important sentencing consideration. The defence argue that while you have received medication for your mental health issues, there are limited programs in gaol that would assist in your rehabilitation. The prosecution have submitted that in all the circumstances a combination of a gaol sentence with a Community Corrections Order is a sentence that is open to the Court. The prosecutor’s written submissions conclude with the statement that a Corrections order would assist in ensuring you remain compliant with medication upon your release into the community.

47Your counsel has also relied upon the harsh conditions of your imprisonment. Your plea was originally conducted on 23 April 2024 when your counsel raised your conditions of imprisonment. It was put on that occasion that you had in effect been in 24-hour lockdown conditions since you had been remanded on 1 December 2023. I indicated concern at that hearing that it was difficult for me to assess how to have regard to those conditions of imprisonment and discussed with counsel the authority of R v Stevens[16], which suggested that little, if any weight could be attached to burdensome conditions of imprisonment if the imposition of such conditions was a consequence of the accused’s own violent behaviour towards others, or refusal to comply with the rules and regulations necessary to maintain good order in a prison. I adjourned your case as both counsel wished to explore the issue further. I also took advantage of the adjournment by ordering a pre-sentence report as to your suitability to undertake a Community Corrections Order.

[16] [2009] VSCA 81.

48When the matter came back before me on 30 July 2020 I had received the pre- sentence report and a letter dated 11 June 2024 from the Department of Justice and Community Safety that provided details of the conditions of your time on remand.[17]  

[17] Prosecution Exhibits E and F.

49In the period your case was adjourned the Court of Appeal also heard an appeal against sentence where the principles referred to above, in R v Stevens, were re-examined. In consideration of that case and particularly the comments at paragraphs [79]-[84],[18] it was agreed between the parties that it was proper for me to have regard to the more burdensome conditions of your incarceration as detailed in the letter of 11 June 2024, despite the fact that you could be viewed as having partly contributed to the imposition of those conditions through your own behaviour.

[18] See: Yat v The King [2024] VSCA 93, [79]-[84].

50Your counsel submitted that your restrictions have somewhat lessened since 14 July 2024. You instructed her that you are no longer handcuffed when you leave your cell. However, it was emphasised that for the majority of your incarceration the conditions of your imprisonment have been onerous. You have had to spend almost all your time in your cell with limited contact with others and you have been subject to being handcuffed and shackled. The letter indicates you were shackled and handcuffed when allowed in the yard between early January and mid-February 2024 and for a period after that you were still handcuffed. You were gaoled at the Metropolitan Remand Centre between February and June of 2024 in management units where you were unable to access employment or education courses. Although I have indicated above that I am not satisfied that limb 6 of Verdins is established by the evidence, it is in my view relevant that a person with your mental health issues is likely to have difficulty in rehabilitating in such strict conditions of confinement. I am going to moderate your sentence in view of the conditions of your imprisonment. I accept that is the case and take that into account.

51Finally, your counsel submitted that you have family support and that the well-known case of Boulton v The Queen[19] states that Community Corrections Orders can be imposed, even for relatively serious offences. I note that your mother was video linked into the proceeding and your counsel submitted that she is concerned for your mental health while in custody and will provide you with a home to live in when you are released.

[19] Boulton v The Queen [2014] VSCA 342.

52The pre-sentence report states that you are at high risk of general re-offending; but fortunately, that you are currently complying with your medication. While it suggests you have little remorse for your behaviour and ‘heavily minimised’ your use of violence, it also states that you displayed some thoughtful reflection, and that you acknowledged you needed structure and routine. You told the assessing officers ‘I’ll try to change’. You told the assessing officer you believed you could comply with a Community Corrections Order if one was imposed. I do find that you are to some extent remorseful for your offending.

Conclusion

53Mr Nuanh, I have found this a difficult sentencing exercise. Your counsel told me during the plea hearing that your experience of adult imprisonment since your remand has been a salutary lesson for you. As I indicated during your plea hearing, I am not of the view that the offence of armed robbery, in the circumstances in which you committed that offence, in conjunction with your personal circumstances can result in a sentence that does not have some period of actual custody. I am also constrained to some extent by the fact that your assault on the prison officer must result in a sentence that is cumulative upon the sentence of imprisonment for the armed robbery. I am mindful of the principle of totality. I have applied that principle by considering what is a just and appropriate sentence in relation to the totality of your offending.

54Mr Nuanh, your offending must be denounced, and you must receive a sentence that is just in all the circumstances. While the sentence must deter you and others from such criminal conduct and promote protection of the community, I accept the prosecution submission that ultimately protection of the community may be best served by a combination of imprisonment and a Community Corrections Order.

55Balancing as best I can the various sentencing considerations and taking account of all relevant matters I have determined that you should be sentenced as follows.

56On the charge of armed robbery, you are convicted and sentenced to 6 months’ imprisonment and a Community Corrections Order of 15 months’ duration. This is the base sentence.

57On the charge of possessing of cannabis, you are convicted and discharged.

58On the of summary offence of committing an offence while on bail you are convicted and sentenced to 1 months imprisonment to be served concurrently with the sentence imposed in respect of the armed robbery and other sentences imposed this day.  

59On the other indictment, in respect of the charge of recklessly causing injury you are convicted and sentenced to 6 months imprisonment. That sentence is to be served cumulatively upon the sentence imposed in respect of the armed robbery and all other sentences imposed this day.

60That makes a total effective sentence of 12 months imprisonment. Pursuant to s 18 of the Sentencing Act 1991 (Vic), I declare that the 307 days that you have been in custody be reckoned as time already served under the sentence passed today and I direct that this be entered into the records of the court.

61In relation to the Community Corrections Order, I declare that the order commences on the day you are released from custody. You must report to the Melton Justice Service Centre at 2A Barries Road in Melton within 2 clear business days of being released.

62In addition to the core conditions, you must comply with the following special conditions:

63Section 48D(3)(a) Assessment and treatment regarding drug use;

64Section 48D(3)(b) Assessment and treatment regarding alcohol abuse or dependency;

65Section 48D(3)(e) Assessment and treatment regarding mental health;

66Section 48D(3)(f) programs that address factors related to offending behaviour;

67Section 48E Supervision; and

68Section 48K Judicial monitoring, with a condition that the first Judicial Monitoring appointment be listed at 10:00 AM in this Court on Monday 24 November 2024.

69Pursuant to S 6AAA of the Sentencing Act I declare that had you not pleaded guilty to this offence I would have sentenced you to a total effective sentence of 28 months’ imprisonment with a non- parole period of 18 months.

70I also grant the disposal order filed with the court in relation to the knife and the cannabis.