Director of Public Prosecutions v Thiep

[2020] VCC 2059

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01186

DIRECTOR OF PUBLIC PROSECUTIONS

v

THIEP THIEP

---

JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	10 November, 16 December 2020
DATE OF SENTENCE:	17 December 2020
CASE MAY BE CITED AS:	DPP v Thiep
MEDIUM NEUTRAL CITATION:	[2020] VCC 2059

REASONS FOR SENTENCE

---

Subject:  CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – Attempted aggravated carjacking – Common assault – Commit an indictable offence whilst on bail – Young offender – Detention

Legislation Cited: s. 321M, s79A Crimes Act 1958

Cases Cited:DPP vSmith [2020] VCC 1194 - Teryaki v The Queen [2019] VSCA 120 - The Queen v Dalgliesh [2017] 91 ALJR 1063 - Azzopardi v The Queen [2011] VSCA 372 - R v Merrett [2007] VSCA 1 - DPP vTokava [2006] VSCA 156 - R v Dixon (1975) ACTR 13 - Guo v The Queen [2020] VSCA 273

Sentence:Total effective sentence of 1 year/s detention in a Youth Justice Centre and pre-sentence detention declared at 76 days. 

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Vingerhoets (Sentence) Mr F. Cameron (Plea and Further Plea)	Office of Public Prosecutions
For the Accused	Ms A. Brennan	Victoria Legal Aid

HIS HONOUR: 

1Mr Thiep Thiep comes before the Court at the age of 18.  Ms Brennan appears on his behalf and did appear on the plea which was conducted on 10 November 2020, the adjourned date on 16 November 2020 and again today.  Mr Cameron appeared for the Director on 10 November and 16 November 2020 and Ms Vingerhoets appears today. Can I thank all parties who have been involved in this matter, in particular, the victim and Mr Thiep for participating by way of WebEx.  Without that consent and cooperation, this matter could not have been finalised.

2The indictment to which Mr Thiep has pleaded guilty, No.L11298500, concerns two charges, one of attempted aggravated carjacking which took place on 5 May 2020 in North Melbourne and related to a car owned by Mr Yurii Kalyniak who was attacked outside his address in Dryburgh Street. The attempted carjack charge is a charge under a combination of s.321M and 79A of the Crimes Act 1958.  The maximum penalty for such offence prescribed is 20 years, an indication of its inherent seriousness.

3In addition, Mr Thiep pleads guilty to an assault charge which is an offence under the common law for which, pursuant to the provisions of s.320 of the Crimes Act, a period of imprisonment of five years is prescribed as the maximum penalty. The Court, pursuant to s.145 of the Criminal Procedure Act was also asked to take into account a summary charge, which is Charge 4, that is the commission of an indictable offence while on bail. That matter related to a charge of theft of a vehicle, Mr Thiep was bailed on 14 April 2020. Pursuant to s.30B of the Bail Act, the maximum penalty for such offence is one of three months imprisonment and/or 30 penalty units. 

4The co-accused in these crimes are Aguer Goback and an unknown male who were far more concerned in this attack, in the sense that they effected it in
Dryburgh Street.  The pre-sentence detention served to date by Mr Thiep is - Ms Brennan, what is it agreed as now?

5MS BRENNAN:  Sixty-seven days.  That has not changed but there is another 63 days Renzella time relating to the Magistrates' Court proceedings that were ultimately sentenced by way of a fine instead of a term of imprisonment.  So, the pre-sentence detention only is ‑ ‑ ‑

6HIS HONOUR:  Sorry, sorry, sorry, 63 days pre-sentence detention.

7MS BRENNAN:  Sixty-seven days PSD.

8HIS HONOUR:  Sixty-seven days and you say there is some Renzella time because he was given a fine and not gaol.

9MS BRENNAN:  Yes, Your Honour.

10HIS HONOUR:  How do I know that the Magistrate did not take that into account?

11MS BRENNAN:  I only have my instructor's, who appeared on the plea, notes saying that Magistrate Masood determined that the consolidation that I showed Your Honour the sheet for yesterday ‑ ‑ ‑

12HIS HONOUR:  Yes.

13MS BRENNAN:  ‑ ‑ ‑ did not warrant a term of imprisonment.  She did say she would potentially have dealt with it by way of a Corrections order, but at the time the plea was heard in the Magistrates' Court she was aware of this matter and that it would resolve in all likelihood by either a term of detention or a Corrections order.

14HIS HONOUR:  Ms Vingerhoets, do you accept that I need to take that into account, the Renzella period?

15MS VINGERHOETS:  Yes, Your Honour ‑ ‑ ‑

16HIS HONOUR:  Thank you, that is all I need.

17MS VINGERHOETS:  ‑ ‑ ‑ and the pre-sentence detention for this matter is agreed.

18HIS HONOUR:  Thank you.  As I said earlier to Ms Brennan, Mr Thiep's priors are not dramatic, the only significant matter is one of robbery and car theft which was dealt with in the Children's Court on 8 April 2020 when Mr Thiep got an adjourned good behaviour bond. 

19It is important in regard to Mr Thiep’s sentence to understand the role that he played, albeit his plea. As I perceive it from the summary in Exhibit A, which was accepted by Ms Brennan as the facts upon which I am to sentence her client, and her submissions made during the plea and accepted by the prosecution,  Mr Thiep himself was not involved, that is physically involved with the car or the victim, until that car came to Canning Street.  I am not precisely sure what had happened prior to that date.  Clearly Mr Thiep was indirectly involved because when the co-accused and unknown male went to Dryburgh Street, to see the victim, they had left Mr Thiep in Canning Street and gone on to effect the so called transaction with the victim, which led to this attempted offence.

20As I understand the position, it is put by the prosecution, and accepted by
Ms Brennan, that though Mr Thiep was aware of the plan generally to obtain the car illegally, he was not aware of any plan to commit serious assaults and or cause serious injury to the victim.  As I said, Mr Thiep did not become directly involved in this criminality until the car arrived in Canning Street. Insofar as Exhibit A is concerned, that involvement was summarised and accepted as follows.  If I read from [19]:

'The victim attempted to remove the male from the driver's seat. Goback ran to the driver's side of the victim’s vehicle.  Thiep ran to the passenger side of the vehicle and grabbed hold of the victim'.

21At [20]:

'The unknown male exited the driver's seat and stood next to the vehicle while the victim remained in the car.  He then punched the victim in the face four or five times with his right fist. Goback ran back over to the passenger seat and leaned into the vehicle'.

22At [21]:

'Thiep punched the victim with his left first from the front passenger side window’ (the charge of common assault involves only that one punch).

23At [22]:

'Realising the victim was now inside the car alone and would not permit them to take the vehicle, the three men then left the scene…'

24At [23]:

‘…the victim was then transported to The Royal Melbourne Hospital where he had surgery to repair a number of fractures of his right cheekbone, caused by the flurry of punches he received from the unknown male.  He also had surgery for a cut lip, with screws and platers inserted into his cheekbone to align his eye socket correctly.’

25It is accepted that the fractures and the serious injuries were not as a result of the common assault committed by Mr Thiep. Therefore the photos and materials in the depositions as to the injuries do not relate to the common assault charge, but generally to Charge 1 in the sense of him being complicit in that charge.

26Mr Thiep was at the time on bail, therefore as a result, s.16(3C) of the Sentencing Act applies, that is, unless otherwise directed, all sentences must be cumulative.  The victim impact statement was tendered and read to the Court and I want to thank Mr Kalyniak for such statement.  There seemed to me nothing exaggerated about the statement.  I am certain most people, had they gone through such an experience, especially a severe assault, and whereby the car was being driven while he was on the bonnet, would have undergone and suffered the same nervous reaction.

27There was no suggestion from Ms Brennan of any exaggeration.  As a result Mr Kalyniak stopped work because of his health conditions, he lost income, he lost his phone which apparently was stolen at the same time.  Mr Kalyniak had plans to start his work as a hydraulic engineer, but that came to an end.  There is, as I said, no exaggeration as I see it and it is to be hoped that he does, as anticipated on his last page, recover the health that has been denied him by this attack.  I thank Mr Kalyniak for his words and for coming before the Court to provide such.  As I say, his reaction in my view is totally understandable.

28The prosecutor handed to me two cases which relate to sentences for attempted aggravated carjacking, the first of which was DPP vSmith [2020] VCC 1194 in which I was the sentencing Judge. The particular charge in that matter was in the context of drugs, the perpetrator had no priors for violence, but was much older than Mr Thiep, being 24.

29Teryaki v The Queen [2019] VSCA 120, concerned much more serious offending. The attempt was one of a number of charges, which included the more serious charge of aggravated carjacking. The person involved had a severe mental impairment. The offences were part of a crime binge over some 30 hours, and the sentence was reduced on appeal.

30As to the sentence to be pronounced today, of course all such cases can be taken into account by the Court as guideposts.  What I have to do is deliver a just and individualised sentence upon the facts as they relate to Mr Thiep, as set out by the High Court in The Queen v Dalgliesh [2017] 91 ALJR 1063, [1075].

31The matters that I am about to refer to relate particularly to the principles where one is sentencing a person of a young age.  They are matters which I would ask the victim to listen to closely.  The principle when you have a young person before you with limited priors, is that the community generally, and the Courts, take quite a different attitude than to a more seasoned criminal, if I put it that way. 

32The first matter I want to refer to is Azzopardi v The Queen [2011] VSCA 372 insofar as sentencing of young persons is concerned. In particular, I refer to [34] where the Court stated:

'Firstly, young offenders being immature are therefore more prone to
ill-considered or rash decisions'.

33At [35]:

'Secondly, courts recognise the potential for young offenders to be redeemed and rehabilitated.  This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of antisocial behaviour. 

'No doubt because of this potential, it has been stated that the rehabilitation of young offenders “is one of the great objectives of the criminal law”.  The added emphasis for the purposes of sentencing on realisation of a young offenders potential to be rehabilitated is further justified because of the community's interest in such rehabilitation'.

34And the third fundamental principle is set out at [36] where it is stated as follows:

'Thirdly, Courts sentencing young offenders are cognisant that the effect of incarceration in an adult prison on a young offender will more likely impair rather than improve the offender's prospects of successful rehabilitation'.

35The importance of rehabilitation has been stressed, in particular by the current President.  I refer to R v Merrett [2007] VSCA 1, [49] where the President said:

'…the sentencing court looks to the future as well as to the past.  There is a very great benefit to the community at large, as well as to individuals themselves and their immediate families, if future criminal activity can be avoided.  It is important that this court by its own sentencing decisions recognise and reward efforts at rehabilitation.  Just as we should support trial judges who do so. It is important to reinforce in the public mind, the very considerable public interest and the rehabilitation of offenders. The preoccupation with retribution which characterises much of the public comment on sentencing is understandable, but it focuses on only one part of what the sentencing Court does'.

36In DPP vTokava [2006] VSCA 156, the President further said in regard to this difficult issue for a sentencing Court, [21]:

'A sentencing judge should be astute to investigate whether a
non-custodial disposition is to be preferred, even in a case of a serious offence, if in the long term the community's interests will be best served by that course'.

37The President also referred to a case often referred to in these matters, R v Dixon (1975) ACTR 13. At [24] the President said:

'It would be unreal and artificial for sentencing Courts to ignore the evidence about the antisocial effects of time spent in gaol'. 

38In addition, referred to during the hearing was a more recent decision by the Court of Appeal in Guo v The Queen [2020] VSCA 273. Again, by coincidence I was the sentencing Judge. This was a matter that involved aggravated burglary committed by a young person who was 20 at the time of sentence. Mr Guo was sentenced by me to a period of 12 months' detention in a youth justice centre. The Court said at [29]:

'Ultimately we concluded in light of the applicant's prospects of rehabilitation and notwithstanding the seriousness of his offending, a sentence involving his further confinement was not called for.  As to that we consider the observations of Sir John Young in Chmil bear repetition:

‘I think it should be remembered that in the long run, the community is better served and better protected if a young offender is rehabilitated and led away from a life of crime than if after a short or long gaol sentence, imposed to satisfy a public clamour for retribution, he is taught the ways of the criminal'.

39All of those references are obviously particularly important in this sentence.  I note that yesterday, the learned prosecutor maintained the submission, as put originally, that given the seriousness of these crimes, it was not appropriate for the Court to pass a sentence which involved either no detention or no imprisonment. 

40We also had the benefit of the tendering yesterday of the Youth Justice assessment report, Exhibit E.  I thank, Mr Ormesher a report such as that is of great assistance to the Court.  I note in particular the references to the family constellation and the circumstances referred to by counsel, on behalf of Mr Thiep, as to his education.

41Mr Thiep has obviously, if he had the opportunity and desire to go to school, the intelligence to not only complete an education but to obtain good employment.  Mr Ormesher concluded as follows:

'Thiep appears before the Court for serious matters, but with no prior history of custodial sentences or sentence orders supervised by the Secretary. Thiep appears to take responsibility for his offending and has displayed remorse for his actions.  He demonstrated a good level of insight into the impact of his offending and the effects it's had on the victim, the community and his family.

'Thiep acknowledged his association with negative peers is problematic and he was able to link this to his offending behaviour and is accepting of the consequences of his offending.  Thiep is an 18 year old who presents at the lower age range… and is vulnerable in this sense'.

42Mr Ormesher goes on to talk about Mr Thiep’s background and immigration.  Mr Ormesher concludes that not only was Mr Thiep suitable for a Youth Justice Centre order but had strong prospects for rehabilitation.  We also had tendered yesterday the community correction order, Exhibit D.  That report found Mr Thiep unsuitable for a community correction order.  That of course does not determine the matter.  As I indicated yesterday, it was my view, despite the submissions made by the prosecution, that it was appropriate for a community correction order to be passed on the basis of the principles that I have detailed.

43Given that, I asked Ms Brennan to be adamant with Mr Thiep, given the commentary in the community correction report, and the reasons expressed for his unsuitability, that I wanted Mr Thiep to fully understand what a community correction order meant and the obligations that would thereby be imposed upon him.  I indicated that he would be supervised, that it would be for a period of two years, that it would involve 100 hours work of community work, that there would be drug, alcohol and mental health conditions including random sampling and a condition to help prevent further offending.

44I asked Ms Brennan to explain clearly to her client so that he understood the obligations. I strongly indicated to Ms Brennan that she should tell her client the consequences if there was the slightest breach in the order and should Mr Thiep feel that he could not comply with the conditions, then he should say so.  That is exactly what has happened. Despite the submission of Ms Brennan, and perhaps following her clarification of my comments, this morning Mr Thiep has come before the Court and said he does not wish to seek a community correction order and would not consent to same, because his view is that the conditions would be too onerous and he does not want to be involved in such an order.

45Given the circumstances, it seems to me therefore there is no alternative but to impose an order pursuant to s.32A.  Given the determination of suitability, and the comments that I have referred to, I intend to impose an aggregate sentence of detention for all charges of 12 months.

46MS BRENNAN:  I have got the pre-sentence detention number around the wrong way.  I said 67 but I meant 76, I am sorry.  I am not sure if Ms Vingerhoets still agrees but ‑ ‑ ‑

47HIS HONOUR:  Can I indicate that that sentence of 12 months, pursuant to s.32A is made taking into account the Renzella figure of 63 days.

48MS BRENNAN:  Yes.

49HIS HONOUR:  Insofar as the pre-sentence detention is concerned, pursuant to s.35, the period of which he has served being 76 days, will be reckoned as a period of detention already served under the sentence and a declaration to that effect will be recorded in the records of this Court.

50MS BRENNAN:  Thank you, Your Honour.

51HIS HONOUR:  The provisions of s.6AAA will therefore apply.  They in fact would have applied had I proceeded to pass a two-year community correction order.  The circumstances in regard to s.6AAA are quite difficult when one is talking about a young person and serious criminality.  The principles that are most important are the principles I have referred to.

52However, all of the issues that have been put to me by counsel, being the service of such detention, while under COVID-19 conditions, the pre-sentence detention while under COVID-19 conditions, the plea of guilty itself. All of those matters have to be taken into account.  However, to try and discriminate pursuant to s.6AAA, the period which would have otherwise been passed taking account of only one factor is very difficult.

53However, doing as best I can, all I can say is that had the plea of guilty not been made Mr Thiep would not have got a period of detention of one year, but a period of detention of 18 months. 

54Ms Brennan, is there any other matters that I need to attend to?

55MS BRENNAN:  I do not believe so, Your Honour.

56HIS HONOUR:  Mr Thiep, it gives the Court no pleasure to sentence you to a period of detention, because but for the remand, you have not previously been so sentenced.  I want to tell you, you obviously have the intelligence, you have got to go and finish your education.  You have got a capacity to do well. As your parents have said to the Court, you have been with the wrong people.  Unfortunately, as of two nights ago, you were again with wrong people.  It is very important that you try to benefit from the courses provided in the Youth Justice Centre, because unfortunately you, I am sure, know a lot of people who have spent a lot of time in gaol and look like spending the rest of their lives in gaol.

57We would not want you to be like that.  Ms Brennan has been as strong as she could before the Court in putting to the Court the opportunities you have.  As I said, in support of your rehabilitation. I was prepared to give you a community correction order, but you quite forthrightly have indicated your desire not to have that. In the circumstances that does not, mean the Court is not particularly concerned about your rehabilitation.  I would ask you to make sure that you do the best you can to try and make sure that you are not before the Courts again.  So, good luck. 

58Yes, Ms Brennan, I thank you for your assistance in what no doubt has been a very difficult case for you as well.

59MS BRENNAN:  Thank you, Your Honour.

60HIS HONOUR:  Any matters that I need to clarify for you?

61MS BRENNAN:  Not for me, Your Honour.

62HIS HONOUR:  Yes ‑ ‑ ‑

63MS VINGERHOETS:  No, Your Honour.

64HIS HONOUR:  No.  Ms Vingerhoets.  Thank you all then, yes ‑ ‑ ‑

65MS VINGERHOETS:  No, Your Honour.

66HIS HONOUR:  ‑ ‑ ‑ what is the position now with - we have got Mr Ormesher, what do we do now with Mr Thiep.  Will you come and pick him up or what happens?

67MR ORMESHER:  Um, I think he just remains in - um, (indistinct words) to Malmsbury, that's my understanding.

68HIS HONOUR:  They just take him straight out do they, righto.

69MS BRENNAN:  I think so ‑ ‑ ‑

70HIS HONOUR:  All right, Mr Thiep can be taken down, thank you.  And thank you officers for being in the Court, much appreciated at this time.  Yes, Mr Thiep, good luck.  Will you go down and talk to him?

71MS BRENNAN:  I will, yes.

72HIS HONOUR:  Yes.  Thank you, Ms Brennan, not an easy representation in those circumstances, not an easy sentence I can tell you.

73MS BRENNAN:  No.  Thank you, Your Honour.

‑ ‑ ‑