Director of Public Prosecutions v Pham-Ngo

[2015] VCC 1011

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01310

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN PHAM-NGO

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JUDGE:	HER HONOUR JUDGE CAMPTON
WHERE HELD:	Melbourne
DATE OF HEARING:	10 July 2015 & 17 July 2015
DATE OF SENTENCE:	23 July 2015
CASE MAY BE CITED AS:	DPP v Pham-Ngo
MEDIUM NEUTRAL CITATION:	[2015] VCC 1011

REASONS FOR SENTENCE
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Subject:  Theft; false imprisonment; causing serious injury recklessly
Catchwords:  Methamphetamine use
Legislation Cited:
Cases Cited:
Sentence:  19 months and 81 days imprisonment with 12 month CCO

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr D. Plummer
For the Accused	Mr S. Norton

HER HONOUR: 

Offences

1John Pham-Ngo, you pleaded guilty to one charge of theft, one charge of false imprisonment and one charge of causing serious injury recklessly.  The maximum sentence for theft and false imprisonment is a term of imprisonment of ten years, for causing serious injury recklessly, it is a term of 15 years' imprisonment.

Circumstances of offending

Theft

2The circumstances of your offending are set out in full in the prosecution opening.  In summary, the charge of theft relates to the theft of a Jeep Grand Cherokee on 12 May 2013.  This Jeep belonged to Camille Mangus, the wife of Nathan Styler, the victim in this matter.  At the time of the theft, Mr Styler was an acquaintance of yours and of your co-offender, Minh Dong.  On 12 May 2013, Mr Styler gave the keys to the Jeep to a man called Kenny to move from a driveway, however Kenny drove away in the Jeep and did not return it.

3On 21 May 2013, the police intercepted the Jeep speeding along the Western Freeway in Melton.  David Moore was driving and you and Dong were passengers in the Jeep.  A vehicle check revealed that it was stolen, you were all arrested and taken separately to the Melton police station.  On 28 May 2013, police examined the Jeep and found two plastic bags containing methamphetamine in the interior roof lining. 

False imprisonment & causing serious injury recklessly

4The charge of false imprisonment and of causing serious injury recklessly, essentially, relates to your assistance to Ming Dong, who was endeavouring to locate the drugs which had been hidden in the interior roof lining of the car.  Mr Styler became aware that you had been using the stolen Jeep and he agreed to phone you when the police returned the Jeep.  Mr Styler and his wife collected the Jeep from the Melton police station on 3 June 2013.  Mr Styler's wife took the Jeep and Mr Styler went home in a hire car his wife had been given.

5When he got home, he rang you to tell you that the police had returned the Jeep.  You told Mr Styler to pick you up in St Albans.  He picked you up in the hire car and you drove around looking for the Jeep.  You told him to drive to the Bunnings store at Caroline Springs where Minh Dong turned up on a motorbike.  Minh Dong informed Mr Styler that he had been to his house and searched the Jeep for his gear but that it was not there.  He then assaulted Mr Styler with a metal object.  He assaulted Mr Styler a second time when you told him to return to the Masters car park across the road from Bunnings on the basis that he wanted to apologise to Mr Styler.

6After this incident, Minh Dong pushed Mr Styler into the back seat of the hire car.  You then drove the car back to Dong's premises in Pinrush Road Brookfield.  You entered the premises followed by Mr Styler, who was forced to go inside by Dong.  You, Minh and Huk Le, who had been living at the premises in Pinrush Road, sorted band aids at the kitchen bench.  The band aids were then taken into the garage and Mr Styler was told to sit on the floor in the garage.

7Dong and Le went outside, while you kept watch over Mr Styler for about half hour.  This action of yours is the basis of the charge of false imprisonment.

8The charge of serious injury recklessly relates to you assisting Dong with what happened next.  You brought a small kitchen table into the garage.  Dong then told Mr Styler to pick a finger, but he refused.  Mr Styler heard footsteps coming towards the garage, after Minh had called out the names Huk and Long.  He put his little right finger on table and turned his head.  There was a loud bang on the table and then a second bang.  Mr Styler saw that Minh was holding a machete with a curved tip and that his right little finger was dangling.

9Minh ran out and you brought in a container of ice, a towel and some bandages, which were dropped on the floor.  Someone then yelled out, "The cops are here," and everyone left the scene as they believed the police had arrived.  Mr Styler escaped and stopped a car, 000 was called and the police and ambulance attended.

The injury

10Mr Styler was taken by ambulance to the Royal Melbourne Hospital where he was treated for various injuries, including the near amputation of his little right finger.  Surgery was performed to attach his finger and to repair the tendons in his hand.  He remained in hospital until 9 June 2013.  The Royal Melbourne Hospital records confirm that as at 9 July 2013, K-wire remained in his finger, which had residual swelling and mild reddening for the skin.  However, there was no victim impact statement in this case.

Personal circumstances

11Turning to your personal circumstances, your heritage is Vietnamese.  Your parents came to Australia from Vietnam shortly before you were born on 6 March 1985.  You have five siblings, none of whom have been in trouble with the law.  Your parents separated when you were 12 years old and initially, you lived with your mum in Richmond, who sadly died when she was hit by a train in 2009.  You then lived with your father in Thomastown.

12You were educated to Year 10 level and have a limited history of employment, includes working in cafes and for a property consulting firm for approximately two years.  This limited history of employment is not surprising, given your long history of drug abuse.  You started smoking cannabis aged 14 and you have used ecstasy, speed and more recently methamphetamine.  At the time of your arrest, you were using a gram a day.

Defence submissions regarding sentence

13While your counsel conceded that your offending was of a serious nature, he submitted that the purposes of sentencing could be sufficiently achieved by a term of imprisonment, equal to time served, coupled with a community corrections order of an appropriate duration.  In support of this submission, he relied on:

·the significant utilitarian nature of your plea of guilty;

·the two year delay in the hearing of the matter;

·your lack of relevant prior criminal history, insofar as there were no priors for crimes of a violent nature;

·the principles of totality, in that you had been in custody for some 773 days since your arrest on 4 June 2013, during which time, you had served two other sentences;

·and the principle of parity and your efforts at and prospects of rehabilitation. 

The prosecution submissions

14The prosecutor submitted that general and specific deterrence, as well as denunciation for your conduct were important sentencing considerations.  However, it was not submitted that time served together with a community corrections order was outside the range of sentencing options available to this court.

Sentencing remarks

15In sentencing you, I have taken into account the principles of general and specific deterrence.  I denounce your conduct for becoming involved in this offending, which involved detaining another person against his will and inflicting injury on him.  While I accept that you were not the principal offender, and that you did not wield the machete which was used on Mr Styler's little finger, you were at the scene assisting the principal offender.

16However, I have accepted that there are a number of mitigating circumstances in this case.  Firstly, I have given you a larger than normal discount for your plea of guilty due to the significant utilitarian value of your plea of guilty. I accept that but for your plea, there was a possibility that you would not have been convicted of the charges. 

17Secondly, I have taken into account that there has been a two year delay in the hearing of this matter and that you have spent the whole period in custody.  Thirdly, I have taken into account that you have been in custody continuously for a period of 757 days.  During this time, you have suffered from stomach problems, for which you only received treatment in about March this year.

18Thirdly, I have accepted that while you have a criminal history, your priors are largely for offences involving dishonesty and possession of drugs.  Your history, at least up to this stage, does not reveal a propensity for violence.

19Fourthly, in sentencing you, I have taken into account your role in this matter and the principle of parity.  I accept that you did not actually wield the machete and that your co-offender, Minh Dong, was the principal offender.

20Finally, with respect to rehabilitation, I accept that you have made considerable efforts to use your time in custody productively.  In this respect, I note that you have completed at least eight education programs while you have been in custody.  For example, a communications skills programs, a management program and a conflict management program.  Hopefully, the efforts you have made to rehabilitate yourself continue on your release into the community.

21I accept that if you can remain drug free upon your release in the community, your prospects of rehabilitation are reasonable.  You are now 30 years old.  Old enough to know that this is probably your last chance to change your life around to do something about your drug addiction.

22Taking all these considerations into account, I had you assessed for a community corrections order and you were found suitable. I have accepted that the period of time that you have already served by way of pre-sentence detention is a sufficient term of imprisonment to give effect to the principles of just punishment, denunciation and deterrence.  I am satisfied that the community corrections order is the best option for facilitating and encouraging your future rehabilitation.

Sentence

23On Charge 3 of causing serious injury recklessly, you are sentenced to 19 months' imprisonment, which is the base sentence.  On the charge of theft, you are sentenced to eight months' imprisonment, 81 days of this sentence is cumulative on the sentence on Charge 3 of causing serious injury recklessly.  On Charge 2, false imprisonment, you are sentenced to a community corrections order for a period of 12 months.

24In relation to the community corrections order, there are a number of conditions I need to inform you about.  There are the mandatory conditions that apply to all community corrections orders.  You have been on such orders before and you know what they are.  You know that you must not commit another offence for which you could be imprisoned and you know that there are reporting obligations and that you cannot leave the state of Victoria without getting permission to do so.

25The special conditions are that you undergo assessment and treatment for drug abuse or dependency and that you must participate in programs and courses, which address matters in relation to offending and that you be under the supervision of the community corrections order.  There is no work component, as I consider that the sentence of imprisonment has satisfied that part of the order.  This order will be in place for a period of 12 months.  Your counsel now may approach you with the order and if you consent to it, you can sign it.

26I reckon 656 days as pre-sentence detention.  But for the plea of guilty, the sentence would have been four years and two months, to serve two years and eight months.  I make a disposal order in relation to the property which was obtained by the police.  In relation to s.464ZF, there has not been a previous ‑ ‑ ‑

27MR PLUMMER:  There has.  We checked that, so there is no need to make that application.

28HER HONOUR:  Yes, I was about to say I would be surprised if there was not.  Well I make the disposal order.  Now, in terms of the maths involved in the sentence, I think it should work out so that ‑ ‑ ‑

29MR NORTON:  I am just trying to find a calculator.

30HER HONOUR:  It should work out so that release is tomorrow or today.  Probably tomorrow.  That is why we made it 81 days to be cumulative on the - it is a matter of - it is not exact, but it would be a matter of a couple of days.  Does counsel want to just ‑ ‑ ‑ 

31MR NORTON:  If Your Honour will just bear with me a moment.

32HER HONOUR:  I will bear with you.  I have made the disposal order as well.  I am saying in terms of the amount of time that was cumulated, if that is incorrect, I am happy to ‑ ‑ ‑

33MR NORTON:  No, there is no issue with that, Your Honour.  What I would ask though is that the pre-sentence detention be reckoned as not including today so that it is 656.

34HER HONOUR:  Six hundred and fifty six days not including today.

35MR NORTON:  Yes, Your Honour.

36HER HONOUR:  Right.  That is what it is reckoned as.

37MR NORTON:  That may then give him the opportunity of even being released today, possibly.  Depending on what happens when they take him back and go through all the processes.

38HER HONOUR:  Yes, all right.  Well certainly, it is very close.  Make sure that you impress upon him that he does have to report within those two days and really make an effort this time to do something about his drug problem because otherwise, he will be back.

39MR NORTON:  He will be back.

40HER HONOUR:  And he has just spent a long time in prison and I am sure he does not want to go back.  I mean there will not be any courses left for him to do.  He has done them all so it will be very boring if he goes back in again.

41MR NORTON:  Your Honour, as I understand it notwithstanding the fact that there was a community corrections order made, because of the imprisonment, Your Honour has to make a 6AAA declaration.

42HER HONOUR:  Yes, I did.

43MR NORTON:  Sorry, I missed that.

44HER HONOUR:  Yes, I did.  It was four years and two months, to serve two years and eight months.

45MR NORTON:  Thank you, Your Honour.

46HER HONOUR:  Is there anything else arising out of this sentence?

47MR NORTON:  No, Your Honour.

48MR PLUMMER:  No, Your Honour.

49HER HONOUR:  Thank you.

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