Director of Public Prosecutions v Tang
[2018] VCC 1814
•21 November 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR 18-01259
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TUAN TANG |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 November 2018 | |
DATE OF SENTENCE: | 21 November 2018 | |
CASE MAY BE CITED AS: | DPP v Tang | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1814 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – aggravated burglary – theft – prior criminal history – plea of guilty entered at an early stage – aggregate term of imprisonment imposed
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Buckland | John Cain, solicitor, for Office of Public Prosecutions |
| For the Accused | Mr J. Miller | Haines & Polites |
HER HONOUR:
1 Tuan Tang, you have pleaded guilty to one charge of aggravated burglary and two charges of theft.
2 The offending is serious and that is reflected in the maximum penalty prescribed by law, and that is as follows:
aggravated burglary ― 25 years’ imprisonment; and
theft ― ten years’ imprisonment.
3
In addition, you admitted your prior criminal history. It spans the period from
26 August 1993 until 17 September 2013. There are 11 court appearances and you have multiple convictions recorded in relation to drugs, firearms and driving offences, and a conviction in respect to recklessly causing injury.
4 There are subsequent convictions. On 26 August 2016, you were sentenced by His Honour Judge Gucciardo, in this court for offending that occurred in the period from 17 October 2014 to 1 July 2015 and you were convicted of one charge of reckless conduct endangering serious injury, dangerous or negligent driving whilst being pursued by police, four rolled-up charges of possessing a firearm whilst being a prohibited person, and possession of a drug of dependence, cannabis L, for which you were convicted and sentenced to a term of three years’ imprisonment with a non-parole period of two years’ imprisonment fixed and pre-sentence detention of 422 days was declared.
5 I shall proceed to sentence you on the basis of the summary of the prosecution opening in respect to the current charges. The prosecution opening was read the plea hearing and is marked Exhibit 1.
6 You were one of five men who attended a property in St Albans in the afternoon of 8 May 2015 and committed an aggravated burglary, following which a large amount of property was stolen, including $5,000 cash, numerous designer handbags, a home security hard drive and monitor, various bottles of alcohol, a quantity of designer jewellery and sunglasses, two Apple desktop computers, an Apple iPad, an Apple laptop, house and vehicle keys. Having completed the aggravated burglary, you then left the premises, in company with the other male offenders in the victim’s vehicle, a 2007 model Mercedes Benz C180 that had been parked in the driveway.
7 The aggravated burglary is put on the basis that you entered as a trespasser, the residential premises belonging to the victim. At the time, you had an offensive weapon, namely a Taser and a handgun and that a person was present in the building and that you knew that a person was present or was reckless as to the person present.
8 The victim in the matter, Trisha Vu, resided at the premises with her husband and two young children, a five-year-old boy and a five-month-old daughter. She was leaving home at about 2.35 pm to attend the local post office before collecting her eldest child from school. She had her baby in her arms, and as she left the garage of the property, she saw you standing at her front door. You are not known to the victim. She noted what you were wearing, namely a white jumper, black motorbike-style pants, black leather gloves and a black cap. You were carrying a box in your hand and a silver iPad. You said to her, “You’ve got a delivery” as you stepped towards her, motioning to the box.
9 As she reached out for the box, you pulled back and told her that she had to sign for it. You then asked her to get a pen. As she walked towards the door of her home to retrieve a pen, you asked her if there was anyone else home. She then turned back towards you and saw that you were pointing a gun towards her. The gun is described as being a single-barrel handgun, about 25 to 30 centimetres in length, stainless steel with a small handle that fitted into your hand. You asked, “Who else is in the house?” and she replied that she was home alone.
10 You then stepped out of the garage and waved your left hand in the air, appearing to communicate with somebody. A dark-coloured Toyota Camry then pulled up at the front of the premises, allowing three other males to exit the vehicle before the driver drove off. You and the three others then entered the premises via the internal garage door. One of the other males was in possession of a small handgun and the other had a Taser in his possession. The third male was unarmed. The victim thought she recognised one of the males, being the one with the Taser, as Tang Hoang, who was known to her through a friend. He was later charged but acquitted, following trial, of all charges.
11 Once you entered the house, you told the victim to sit on the couch in the lounge room. When she refused to sit, the co-accused, who was holding the Taser, was standing a meter away and that person activated the Taser. The victim observed the lights flashing and heard the sound of a loud electric shock. Due to fear of being harmed, she then sat on the couch and placed her handbag by her side. She sat holding the baby on her lap.
12 A fifth unknown male then entered the house via the internal garage door and he is believed to be the driver of the Toyota Camry. He was unarmed and stood in the doorway.
13 Thereafter, you and the other males searched the home for anything valuable and took the items that have been previously described. At the time, you were all communicating in Vietnamese. Finally, one of the males instructed the others to leave and you all exited the premises.
14 As you left, you stole the Mercedes Benz that was parked in the driveway of the premises.
15 The victim alerted her husband as to what had occurred and police were called and attended. There they collected various items.
16 Subsequent analysis of a wrapping from a Paddle Pop ice cream inside the house, rubber gloves in the garage, and an ice cream stick found provided extremely strong support for the proposition that you contributed to the DNA that was found on the Paddle Pop stick.
17 On 27 November 2017, the victim identified you from a photo board containing 12 photographic images of male persons including your image.
18 Thereafter, police lawfully obtained a disc containing telephone calls made by you whilst in custody and those calls contained conversations relating to the present charges and/or implied admissions made by you.
19
You were then charged on 22 January 2018 and your matter proceeded. It was listed for committal and evidence was given at a contested committal on
15 June 2018, following which you were committed for trial in this court.
20 At a further final directions hearing, you entered a plea of guilty to the charges on the plea indictment.
21 Your actions have had severe consequences. Ms Vu read her victim impact statement that she declared on 11 October 2018 at the plea hearing. In it, she describes how her life has been forever changed following the events of that afternoon. She lives in ongoing and constant fear and no longer feels safe in her own home. Her life is not the same. She takes anti-anxiety medication and is hypersensitive to any noises. She is constantly on guard and suffers flashbacks of the incident. She has lost weight and her personality has changed from being outgoing and a friendly one to one of being very suspicious of people. She is less trusting of strangers. She suffered the loss of many sentimental items and had to relocate at great personal cost.
22 General deterrence, specific deterrence, protection of the community and denunciation are all significant matters in this sentencing exercise.
23 You are a person who has a substantial and disturbing prior criminal history. The current offending occurred in the period during which the offending for which you received a sentence from His Honour Judge Gucciardo occurred. That too involved serious offending. In summary, you were the subject of a targeted police operation commencing in December 2014. Police identified you as the manufacturer and supplier of homemade pen pistol-type firearms. The target of the investigation was focussed on the trafficking of illicit substances and firearms. At that time, you were living with an aunt in Braybrook and were in a relationship with your long-term girlfriend Helen, who is living in Sunshine with her mother and your young son. The full particulars of the offending are set out in the sentencing remarks.
24 Because of these pending matters, you are unable to qualify for parole and you therefore served the head sentence imposed by His Honour Judge Gucciardo. I have taken that into account.
25 Personal circumstances. You are now aged 42. You are a person of Vietnamese background. You came to Australia when you were aged eight, in the company of your aunt, after having spent a year in a refugee camp in Malaysia.
26 You are an Australian citizen. Your mother was sponsored to travel to Australia when you were aged 12. You have a difficult relationship with her but remain close to your aunt.
27 You had difficulties at school and passed Year 10 on the second attempt. You have a somewhat limited employment history having undertaken some work as a casual labourer, working in a warehouse, and as a picture framer.
28 In mitigation, Mr Miller highlighted a number of factors which I accept. Firstly, he highlighted your plea of guilty. I accept that there is real utility in the plea, notwithstanding it was entered at a late stage of the proceedings. You avoided the necessity and inconvenience of a trial being conducted. Importantly, Ms Vu has been spared the trauma of having to give evidence and be cross-examined. You have therefore facilitated justice and your sentence will be discounted accordingly.
29 I have had regard to the delay in the proceedings. This offending occurred towards the latter part of the period that is reflected in the offending for which you received the sentence from His Honour Judge Gucciardo. Had it been the subject of charges at the time, it could have been dealt with and therefore you lost the opportunity of some concurrency and the prospect of being paroled. And that has been taken into account.
30 The explanation for the delay in the laying of these charges was that it related to the need for ongoing investigations. You have been in custody on remand from 2 July 2015. You sentenced on 26 August 2016. On 29 June 2018, you completed the sentence and thereafter, you have been remanded in custody on these matters and pre-sentence detention will be declared.
31 Following the imposition of the sentence, you settled well in custody and you have been undertaken programs and completed courses as well as some work as a billet.
32 You have utilised your time well, undertaking courses aimed at addressing your drug past which is the factor that has been the dominant feature of your offending in the past. You completed a 44 hour closed semi-intensive drug and alcohol treatment program provided by Caraniche, the 12-hour substance use program provided by Uniting Care, the Indo-Chinese Relapse Prevention program provided by Uniting Care, and the RRH program provided by Caraniche. That involves a program directed at harm reduction. You are working as a billet in your unit at Barwon Prison, and you have been undertaking that role for about a year.
33 Your past criminal history in large part reflects the dominance of drugs in your life. You have been a heroin user since your mid to late teens. You have never had any inpatient rehabilitation in the past. The context to the current offending, as well as much of the past offending, relates to you mixing in the criminal milieu and associating with other drug users.
34 Through your plea of guilty, you have taken full responsibility for your actions. The victim impact statement had been read to you and your counsel told the court that you accept responsibility for what went on in the house on that occasion.
35 I consider that the plea of guilty and your subsequent conduct means that you have demonstrated a degree of remorse for your offending.
36 Given that you are now taking steps to address your drug addiction that does mean that your prospects for rehabilitation are enhanced. However, I am guarded somewhat about your prospects given that your drug use has been so entrenched. In order to further enhance any prospects for rehabilitation in the future, you will have to remain abstinent from drugs and accept supports when you are eventually released back into the community.
37 Mr Tang, this is a very serious example of aggravated burglary and theft. It was a serious home invasion committed in broad daylight in company with four other males. The offending was brazen, targeted, planned and organised. Two of your co-offenders were armed, one with a Taser, one with a firearm - and you were armed with a firearm. The Taser was employed to instil fear into the victim to make her comply with requests. You played a central role in the execution of this offending. You gained entry to the property on behalf of the others and property of significant value was stolen.
38 It is apparent that the victim, Ms Vu, was severely traumatised by the offending and the effects are long-lasting
39 Any person living in a civilised society ought reasonably expect that they will not be subject to invasion of their homes and such threats of violence. It is a fundamental right that Ms Vu should be and feel safe and secure in her own home. Your collective actions were a gross violation of her rights. Your actions are deserving of stern punishment and on behalf of the community, I formally denounce your behaviour.
40 In sentencing you, I must emphasise general deterrence. Obviously, in fixing an appropriate sentence, I must have regard to all of the circumstances and principles relevant to the particular offending and also your individual circumstances. I am strongly of the view that there is a need for condign punishment to be imposed in respect of the circumstances of this matter in order to ensure the protection of the community and just punishment.
41 I will now announce the formal orders. You can now stand, Mr Tang.
42 The formal court orders are:
43 In respect to the charge of aggravated burglary, you will be convicted and sentenced to six years’ imprisonment.
44 And in respect to the two charges of theft, I consider an aggregate sentence is appropriate as each of those offences formed part of a series of offending of the same or similar character. What that means is one sentence will be imposed for Charges 2 and 3. You will be convicted and sentenced to an aggregate term of imprisonment of two years' imprisonment in respect to those charges.
45 I direct that one year of that sentence be cumulative upon the sentence imposed on Charge 1, making a total effective sentence of seven years' imprisonment and I fix a non-parole period of five years.
46 I make the following declaration pursuant to s.6AAA. But for your plea of guilty, I would have imposed a term of imprisonment of nine years to serve seven years’ imprisonment.
47 I make the following declaration of pre-sentence detention. I declare that you have spent 145 days in custody and direct that that be entered into the records of this court. That completes the sentence.
48 COUNSEL: As Your Honour pleases.
49 HER HONOUR: Thank you. We can adjourn.
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