Director of Public Prosecutions v Pham
[2019] VCC 1262
•14 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01748
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KIET PHAM |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 17 July 2019 | |
DATE OF SENTENCE: | 14 August 2019 | |
CASE MAY BE CITED AS: | DPP v Pham | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1262 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: One charge of armed robbery and one charge of causing injury intentionally – 19 year old offender with limited criminal history – premeditated crime with offender and co-offender both armed with knives and both stabbed victim after he had got into a car with them.
Legislation Cited: Sentencing Act 1991
Cases Cited: R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
Sentence: Total effective sentence four years and eight months’ imprisonment – non-parole period two years and four months’ – pursuant to s6AAA Sentencing Act 1991, six and a half years’ imprisonment with non-parole period of four and a half years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J Singh | Office of Public Prosecutions |
| For the Offender | Mr L Barker | Theo Magazis & Associates |
HER HONOUR:
1 Kiet Pham, you have pleaded guilty to one charge of armed robbery, which carries a maximum penalty of 25 years’ imprisonment, and one charge of intentionally causing injury, which carries a maximum penalty of 10 years’ imprisonment.
2 The circumstances of your offending are summarised in the Summary of Prosecution Opening (Exhibit “A”). You and your victim had met over the internet in December 2017. It would appear from your communications that you had a mutual interest in purchasing cannabis. You had never met face to face, but on 2 February 2018, your victim had offered to source 2 pounds of cannabis to sell to you, albeit that that transaction did not take place. On the following day, 3 February 2018, you sent messages to each other via Facebook and it was agreed that your victim would purchase cannabis from you. You agreed to supply the victim with 2 pounds of cannabis for $5,900, and arranged to meet him at an address in Sunshine North. You advised him to let you know when he was 15 minutes away and told him that your cousin would be in the back seat so that your victim could sit in the front. You advised him that you would be in a black Honda Jazz vehicle. You had earlier borrowed this vehicle from another friend.
3 The victim was waiting at the appointed place when you came along driving the Honda vehicle, with your co-accused, Truong, in the back seat. As soon as your victim got into the front passenger seat, a knife was held to his throat and you and your co-accused told him to not move and give you his money.
4 Your victim refused. You had a large kitchen knife with a timber handle and a blade approximately 7 centimetres in length, which you then used to stab your victim in his right thigh, causing a deep wound of 4-6 centimetres. You then began to drive, as Truong grabbed the victim in a headlock and pulled him into the back seat. Truong was also armed with a kitchen knife with a timber handle and a blade approximately 10 centimetres in length. He stabbed the victim to his left arm and twice to the left leg, resulting in a deep stab wound to the thigh and a large laceration to the calf. This is the conduct comprising Charge 2, intentionally causing injury.
5 The victim began to feel faint as a result of the wounds and dropped the $5,900 purchase money for the cannabis onto the floor of the back seat. You and your co-accused stole that amount of cash, as well as the victim’s gold iPhone 6 and his wallet containing several cards. This is the conduct comprising Charge 1, armed robbery.
6 You then dumped the victim on the roadside and left him in his wounded state. He managed to seek assistance from a nearby residence and rang 000. Police attended and found the victim sitting in a large pool of blood and rang the ambulance, as he was starting to lose feeling in his legs. He appeared very pale and continued to bleed heavily from his left thigh.
7 The victim was taken to the Royal Melbourne Hospital where the following injuries were noted: a 5 centimetres left mid-forearm open wound; a 4 centimetres left outer thigh open wound with muscle on view; a 6 centimetres right outer thigh open wound, with muscle on view; a 6 centimetres deep left outer calf open wound, and redness around the front of the neck. He required treatment by way of suturing to close the wounds, CT scan imaging involving radiation exposure, and medication which included prescription painkillers and antibiotics, a tetanus vaccination booster and intravenous fluids.
8 Following investigation, on 6 February 2018, police executed a search warrant at the home of yourself and, also, your co-accused, Truong. A pair of black Converse shoes with what appeared to be blood on the soles, and a gold iPhone 6, both of which belonged to the victim, were found at Truong’s house. You were arrested and interviewed. You made a “no comment” record of interview, which is your legal entitlement.
9 You declined to cooperate with the police, who then had DNA investigations conducted upon a jacket seized from Truong. This provided evidence linking the victim and Truong with the jacket. There was also DNA on the Converse shoes, which provided strong evidence that the victim was a contributor to the blood on the shoes and, also to blood present in the footwell of the Honda Jazz motor vehicle.
10 You are presently aged 21 years, having been born on 27 July 1999. You were 19 years old at the time of offending. Your co-accused, Truong, was born on 16 July 2001, and was aged 16 at the time of offending. Truong entered a plea of guilty at the Sunshine Children’s Court on 19 March 2019. He was sentenced to a 12 month Youth Attendance Order with special conditions to engage in offence specific treatment, mental health counselling and to engage with an education or employment service provider.
11 You come before the court with two prior court appearances. On 20 March 2017, you appeared at Melbourne Children’s Court charged with theft from a shop and going equipped to steal. Without conviction, you were given a Good Behaviour Bond for a period of 12 months. On 24 July 2017, you appeared at Sunshine Magistrates’ Court on a charge of robbery. Without conviction, you were placed on a Community Correction Order for 12 months. It is an aggravating feature of the offending for which I must sentence you that it occurred whilst you were already on a Community Correction Order.
12 It is apparent from a report tendered as Exhibit “B” at the plea hearing, that your performance on the Community Correction Order was unsatisfactory. Apart from attending appointments with your supervisor, you failed to engage with any other programs, and failed to perform any of the 80 hours of unpaid community work, which was part of the order. You are to face a contravention hearing in relation to that Community Correction Order in the Magistrates’ Court.
13 The court was told that you also have a plea hearing listed at Sunshine Magistrates’ Court on 8 August 2019. The offending, which involves possessing a weapon (a knife), is summarised in Exhibit “C”. On 8 November 2017, police approached a stationary vehicle in which you were sitting in the driver’s seat. They found a green handled kitchen knife in a sheath in the centre console of the vehicle, within easy reach of the driver. This offending was committed prior in time to the offences for which I must sentence you.
14 In a plea on your behalf, Mr Barker emphasised that you were only 19 years old at the time of these offences and had a disadvantaged background. Your father was a violent alcoholic, who was said to have been verbally abusive to you and your mother and often absent from home. You have always been close to your mother. However, she was charged with tax offences relating to a labour hire business which she operated and, from October 2016 to August 2018, she was imprisoned for 22 months.
15 Mr Barker stated that your prior offending, and the current offending, occurred during the time that your mother was in prison. During that time, you father moved back to the family home, and you were anxious and depressed and your drug use increased. Mr Barker said that this was a very stressful period for you, and you were significantly affected by illicit drugs at the time of offending. He stated that you had been a reasonably good student at school, but after your mother was prosecuted for her criminal offending, your family could no longer afford to send you to Caroline Chisholm College in Braybrook, where you had been at school from Years 7 to 10. You were moved to St Albans Secondary College, where you were first introduced to cannabis by a school friend. You initially failed Year 11, but successfully completed it when you undertook it a second time at RMIT. You then enrolled to study for Year 12 in 2018, but before commencing the course you committed these offences for which I must sentence you and were remanded in custody.
16 Mr Barker stated that, from age 16, you had become reliant upon cannabis and were ultimately using up to 3 grams a day. You also used other substances such as cocaine and ecstasy from time to time. He stated that you were mixing in a negative and antisocial peer group. You told the forensic psychologist, Mr Ian MacKinnnon, who provided two reports (Exhibit “5”), that you had smoked six bongs of cannabis prior to committing the offences.
17 Tendered on your behalf were a number of references from family members and a friend (Exhibit “4”). They refer to you as being an intelligent, hardworking and loving boy. In particular, they state that you have shown care for your younger two sisters and experienced a difficult period trying to look after them once your mother was put in custody. This time coincided with you having to re-engage with your father, with whom you had a poor relationship. A couple of the references mention that you express regret for your actions and are ready to change. I do note that some references contain some inappropriate statements. In particular, the reference of Tina Pham states:
“Kiet has expressed many time to his family and peers he was oblivious to the intentions of robbery his friend was having. Kiet was only informed he was to drive for a delivery of drugs”. (sic)
This is something which I completely disregard as traversing the plea. I also disregard the inappropriate comment of your mother that she strongly believes 17 months in custody is more than enough and a lesser sentence is most appropriate in this situation.
18 Your counsel conceded that, in the light of Mr MacKinnon’s reports, it would be difficult to make a link between your offending and any mental health condition that you suffer. I consider this an appropriate concession by Mr Barker as Mr MacKinnon noted, when he first saw you, that your anxiety and distress were a direct response to your remand and legal predicament, and your anxiety did not appear to be symptomatic to the point of being a clinically significant Anxiety Disorder. He thought that you probably had suffered a Substance Abuse Disorder and become somewhat disconnected from the wider community and “dropped out”, and began smoking in excess of six bongs of cannabis daily after your mother was imprisoned.
19 Although it was not argued that the principles in Verdins’ case[1] had any application in your case, I take into account as part of your circumstances generally, that you have had something of a difficult background, particularly given the relationship with your father, and that you were doing reasonably well at school until you changed schools after your mother was charged with criminal offences ultimately resulting in her incarceration. I accept that you have always had a close relationship with your mother, and that it was in the context of being without her support and you having to provide additional support to your younger siblings that your mood deteriorated, your drug use increased, and your antisocial and criminal behaviour began.
[1]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
20 Unfortunately, it seems that you became something of a law unto yourself when your mother was in prison. However, I am not impressed by mention in the references forming part of Exhibit “4”, or your own letter to the Court, Exhibit “1”, that this offending occurred because you were “hanging around with the wrong group of friends”. There is a hint of blaming others for your own conduct and I note that your co-offender was almost three years younger than you were at the time that you committed these offences. Nevertheless, you were only 19½ years old and, generally speaking, it is important in sentencing youthful offenders that the principle of rehabilitation be the predominant sentencing principle.
21 You have pleaded guilty to the offences, albeit that they are not particularly early pleas, coming, as they did a year and four months after the commission of the offences, and after you had conducted a contested committal during which your victim was cross-examined. Nevertheless, your pleas do have significant utilitarian value. You have expressed remorse in your letter to the Court handed up at the plea hearing on 17 July 2019. You expressed your sincere apology to your victim and state that what he went through no-one should have to go through. I have reservations about whether you are truly remorseful for what you have done to your victim. Indeed, in Mr MacKinnon’s most recent report, dated 1 July 2019, your expression of remorse is in terms of you realising how bad it is and wishing you could change it, and you say you are sorry for what you did, but you make no mention whatsoever of your victim, as distinct from the stress that you have caused to your family. It may be that you have had time for reflection during your time in custody and that remorse is a developing factor in someone who is still only 21 years old. Indeed, your counsel appropriately stated that he did not “overplay remorse”. Nevertheless, you are clearly entitled to a discount on the sentence which otherwise would have been imposed had it not been for your pleas of guilty.
22 Your counsel noted that you have now been in custody for 17 months, and that you had used that time to reflect on your rehabilitation and decide to do something about it. I accept that that is so. The evidence is that you have worked in various different roles whilst in custody, doing laundry work, cleaning and horticultural work. You have also engaged in a significant number of courses of a rehabilitative nature, certificates of which were tendered as Exhibits “2” and “3” respectively. These have involved courses in work readiness and life skills, good physical and mental health, education in relation to cannabis and ice, and alcohol, as well as programs at Kangan TAFE in making espresso coffee, hygienic food practices, workplace safety and controlling and managing traffic. I accept that you are sincere in wanting to rehabilitate yourself to be a useful member of the community and, as Mr MacKinnon stated, you have overcome your Substance Abuse Disorder, which primarily involved habitual use of cannabis, and have provided clean urine samples during your period on remand. He states that you do not suffer any psychological disorder. I also accept his assessment that you do not appear to possess an inherently antisocial or criminal character.
23 Mr Pham, there is no getting away from the very serious nature of this offending. I have no doubt that you were the principal architect of it. You were the one who had been communicating with your victim via social media and text messages. Your victim did not even know your co-offender in these crimes, and you were the one who made the arrangement to meet him and knew that he would be bringing $5,900 with him for the purpose of purchasing cannabis. You were the one who borrowed a vehicle from a friend for the purpose of doing so, and you were the one who told the victim that you would bring your “cousin”, your co-offender, along in the backseat of the car. You were the one who told your victim that he should sit in the front seat, knowing that both you and your co-offender were armed with knives.
24 For an unsuspecting victim to have found himself in a confined environment, a car, with not one, but two, people stabbing him, must have been truly terrifying. The fact that you were affected by cannabis is not a mitigating factor. If anything, it seems to have made you ruthless, as evidenced by you sanctioning your co-offender stabbing your victim after you had already stabbed him, and then making sure that you had possession of his money, phone and wallet and its contents and dumping him on a roadside in a wounded state, where he did not even have a telephone to get help for himself. It is fortunate that your victim was able to find someone at home at a house near where you dumped him in order to get help, otherwise the consequences of the stab wounds could have been more serious. I here note that Dr Jason Schreiber, forensic physician, provided a statement to police dated 17 May 2017. He stated:
“Sharp impacts to the limbs bear high risk of injuring major blood vessels and nerves potentially causing life-threatening blood loss or impaired limb functioning potentially compromising the subject’s work and social lives.
Without medical treatment, the wounds could have sustained life-threatening infection and he may have lost a significant amount of blood.”[2]
[2]Depositions, p93
25 The premeditated nature of the offending, coupled with its cowardly nature involving two armed offenders against one unarmed victim, and the callous dumping of your wounded victim, makes your offending a serious example of each of the offences of armed robbery and intentionally causing injury. In sentencing for these offences, notwithstanding your youth, the Court must denounce your conduct and place emphasis upon general deterrence so that others will know that if they engage in such appalling antisocial conduct they will be appropriately punished. The message must be sent very plainly that the community will not tolerate the commission of violent offences by people affected by drugs, particularly where such people arm themselves with knives and use them with gratuitous violence as you did.
26 As I have mentioned previously, it is an aggravating feature of your offending that you had been placed on a Community Correction Order for a charge of robbery only a little over six months previously. Tendered as Exhibit “B” was a report from Sunshine Community Correctional Services, which noted that your compliance with the order had been irregular and that there were several periods where you were uncontactable and unresponsive to correspondence. Only three days before this offending you had been issued with a warning, indicating that, if you did not improve your compliance, then contravention proceedings would be initiated. The report concluded with the recommendation that your order be cancelled.
27 Generally speaking, like offending should be the subject of a like sentence. However, as your offender was almost three years younger than you and was dealt with in the Children’s Court it is difficult to apply parity. Apart from being younger than you, he pleaded guilty somewhat earlier than you, without having conducted a contested committal. He was dealt with in the Children’s Court, which has a completely different sentencing regime from the adult court. In any event, as I have already stated, I am satisfied beyond reasonable doubt that you were the principal organiser of this offending. The fact that your victim may have been prepared to deal with you one way or another in relation to cannabis can in no way excuse your offending. There is no evidence that your victim posed any threat to you.
28 There is no Victim Impact Statement from your victim. However, when he supplied a second statement to police, which revealed that his first statement did not accurately reflect the incident, he stated that he was scared to tell police that he was attempting to buy cannabis and was even more frightened of reporting the full incident to police due to the fear of retribution from you and your co-offender. He stated that he feared what you or your co-offender may do to him or his friends if you discovered that he had spoken to police.
29 In the circumstances, there can be no doubt that the only appropriate sentence is a term of imprisonment. In my view it needs to be a term of imprisonment with a non-parole period in order to appropriately reflect the severity of the offending. Having said that, I acknowledge that going into adult custody for the first time as a 19½ year old was a stressful experience for you, although Mr MacKinnon’s most recent report indicates that you have adapted well. Having noted the extent to which you have applied yourself to work and rehabilitative programs, and maintained abstinence in relation to illicit drugs and reflected on your offending behaviour, I consider that there is probably less need for emphasis on specific deterrence, now, than there was prior to you being remanded in custody. Provided that you remain abstinent from illicit drugs and keep clear of criminal associates and other drug users, your prospects of rehabilitation should be quite good. Your application to your education and the fact that you are supported by a number of family members who attended at the plea hearing is in your favour. Apparently, there is also a prospect that, upon your release, you may be able to undertake an apprenticeship in timber flooring with a company in which a relative works. Given your youth and what would appear to be a number of factors in favour of your rehabilitation, I consider it appropriate to set a lower than usual non-parole period.
30 On one charge of armed robbery you are convicted and sentenced to be imprisoned for a period of four years.
31 On one charge of causing injury intentionally you are convicted and sentenced to be imprisoned for a period of two years.
32 I order that eight months of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1. The total effective sentence is thus four years’ and eight months’ imprisonment.
33 I direct that you serve a period of two years’ and four months’ imprisonment before becoming eligible for parole.
34 I declare a period of pre-sentence detention of 556 days to be reckoned as time already served under the sentence imposed this day.
35 Pursuant to s6AAA of the Sentencing Act 1991, I state that, had it not been for your pleas of guilty, the total effective sentence imposed would have been six and a half years’ imprisonment with a non-parole period of four and a half years.
36 On Charge 1, pursuant to s86 of the Sentencing Act, I order that you pay compensation to the victim in the sum of $6,550. Pursuant to s33(1) of the Confiscation Act 1997, I order that one pair of Nike shoes be forfeited to the Minister.
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