Director of Public Prosecutions v Thuc
[2018] VCC 509
•21 March 2018
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.16-02288
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AWANG THUC |
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JUDGE: | HIS HONOUR JUDGE BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 21 March 2018 | |
CASE MAY BE CITED AS: | DPP v Thuc | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 509 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms T. Crvenkovic | |
| For the Accused | Ms S. Gaunt |
HIS HONOUR:
1 Awang Thuc, you are to be sentenced for one charge of recklessly causing injury and one charge of armed robbery. Respective maximum sentences are 10 and 25 years' imprisonment.
2 You pleaded guilty before me on 18 October 2017. When interviewed by police on 9 August 2016 you denied the offending. In December of that year committal went by way of hand-up brief and you entered pleas of not guilty. Over the next several months there was inquiry as to whether you were fit to stand trial under the relevant provisions of that Act. There were several psychiatric examinations and at one point the agreed opinion was that you were not then so fit. That was in April 2017. Ultimately both defence and prosecution-briefed psychiatrists reported you to be fit to stand trial. The trial was listed before me to begin on 17 October. That indictment alleged charges of intentionally or recklessly causing injury, and three charges of armed robbery. After a number of mention hearings this plea indictment was filed over and as stated, you pleaded guilty to these two offences.
3 You receive the benefit of your plea of guilty and the level of cooperation that brief history of the proceedings suggests. As to the timing of your plea I bear in mind that delay part related to inquiry of your mental state and that you have pleaded guilty to resolve the position. Your plea has expressed remorse.
4 At your plea hearing, which ran on 23 October 2017 and 28 February 2018, Ms Thomas for the Crown tendered a written Crown opening and CCTV footage of the armed robbery. That was played in the court. She also tendered stills from that footage.
5 Mr Barker, for you, tendered a large number of psychiatric and mental health reports, with dates ranging from October 2014 to October 2017. He also provided an extensive written outline of plea submissions; and earlier County Court sentences of you by Judge Punshon in March 2015 and Judge Hannan in March 2016.
6 On 23 October I requested a pre sentence report, intellectual disability assessment statement and, if relevant, a plan of available services under Disability Client Services of the Department of Mental Health and Human Services, all pursuant to s.80(3) of the Sentencing Act. I adjourned the matter for further plea. As a consequence I have received a letter of the Department of Health and Human Services dated 19 January 2018 stating that you do not meet criteria for intellectual disability, as defined in the relevant legislation.
7 On the return date of the plea hearing, 28 February, the parties relied upon earlier materials and submissions. I adjourned again for sentence.
8 The circumstances of your offending are set out in the tendered Crown opening which is Exhibit A. My own summary may be short.
9 You committed an armed robbery at the McDonald's store in Derrimut Village Shopping Centre on 7 August 2016. The time was about 8.30 pm. You wore gloves, a dark hoodie and were partially disguised by a bandanna. You carried a knife. You grabbed attendant, Robert Nguyen, by the shirt and punched him to the head. He fell.
10 Paragraph 6 of the Crown opening states as to his injury.
"The force of the punch knocked Nguyen down and he hit his head on the corner of a trolley as he fell to the floor. Nguyen did not recall being punched when he regained consciousness. He had pain to his left cheek and jawbone, a headache and felt dazed and dizzy."
11 Paragraph 9 states further.
"Nguyen treated his injury with ice at the store. At about 10.15 pm Nguyen attended at the Emergency Department at Sunshine Hospital. He reported about a minute of anterograde amnesia. He had tenderness to his jaw and a mild global headache which improved with Paracetamol. The impression was a mild concussion. He was provided with a medical certificate for two days."
12 You demanded of other staff the till to be opened. Ultimately you were given and stole about $155 in notes. You left. Soon after a police officer recognised your build and mannerisms on the CCTV footage. You live nearby. You were arrested and charged on 9 August. The clothing and bandana worn by you were found at your home, together with the money stolen. A distinctive part of the CCTV viewed is that you are seen during the robbery to back away from a female member of staff who was yelling at you.
13 No victim impact statement has been tendered.
14 You are aged 21 years and await this sentence in remand custody. That is now approximately 19 months. You were born in the Sudan and your childhood suffered the dangerous and damaging circumstances of the civil war there. At nine years your mother, you and two sisters went to Egypt. Your father and another sister have remained in the Sudan. One of your older sisters has died. Your part of the family settled here, in the Sunshine area. In Australia you completed Year 9; but had to repeat Year 10. There was bullying and racism at school. In 2013 you were expelled. You have never held paid employment. Your mother works in catering. Your sisters are older than you. They both work. No one else in the family has been in trouble with police. Your family is strongly supportive and you can live at home when released from prison.
15
After school, in the context of antisocial peers and declining mental health, you have offended a number of times and seriously so. Your criminal record filed with the indictment states five prior court appearances between February 2015, when you were 18 and sentenced in the Children's Court, and March 2016. There are two highly relevant episodes of offending, also set out in
Mr Barker's chronology of your periods in custody. This is seen at pp.1 and 2 of his submissions outline and is also reflected in the two County Court sentences provided to me.
16 In August 2014 you were remanded on a charge of armed robbery committed at a service station. After about five months on that remand, Judge Punshon sentenced you to a Community Corrections Order. You were released. 25 days later you committed three armed robberies. They were committed over the same night or early morning. Targets were, similarly, a Coles Express and service stations. There was a younger co-offender said to be the instigator. After about one year of further remand you were sentenced by Judge Hannan to two years' Youth Justice detention. You committed the offences before me about one month after parole release on that sentence. As stated you have been on this remand for over 18 months.
17 In all you have spent the very great majority of the past three to three and a half years in custody.
18 Your criminal offending since 2014, aged 18, has occurred in the context of developing mental illness. For example in 2014 there were seven in-patient admissions to psychiatric facilities. You were placed on a Community Treatment Order under the Mental Health Act in that year. You suffer a serious psychotic illness, diagnosed, as paranoid schizophrenia or the similar condition schizoaffective disorder. Over time this has featured symptoms of florid psychosis, persecutory and paranoid thinking, suicidal ideation and thought disorder. Forensicare psychiatrist Dr Kate Roberts states, additionally, antisocial personality traits.
19 In the prison system you have had a number of periods in the psychiatric hospital, Thomas Embling. There have been often coinciding times of non-compliance with medication. Mr Barker states that this was also the case at time of this offending. You presently comply with treatment which includes monthly antipsychotic medication injection.
20 Application of the so called Verdins principles is a question clearly raised in a case like this. As suggested in earlier cases, reduction of moral culpability and the need for moderation of such sentencing purposes as deterrence are more apparent in situations where the severity of the mental illness effect comes close or closer to what is legally mental impairment. There is some consideration of this in the range of expert opinion here. I find particularly relevant the following statements of opinion.
21 Dr Kate Roberts states in part of her 8 October 2017 report:
"It remains possible that Mr Thuc was unwell at the time of the alleged offence. Recent behaviour incidents, however, also suggest that Mr Thuc behaves in an assaultative manner when not actively psychotic."
22 I note that that is not a reference to the offending before me.
23 Dr Robert states, more definitely perhaps in her earlier 26 April 2017 report:
"It is likely that Mr Thuc was unwell at the time of the alleged offence. As well as more historical assaults of a similar nature, an unprovoked assault occurred during his recent admission to Thomas Embling Hospital with
Mr Thuc presenting as behaviourally settled prior to the incident but describing what seemed to be paranoid and persecutory beliefs and misinterpretations after the fact.
That said there does not appear to be clear evidence from either my assessment of Mr Thuc or from the brief of evidence to be able to support a defence of mental impairment.
Dr Zimmerman opined in her report dated 26 July 2015 that she also felt she did not have enough evidence to support a defence of mental impairment available to him."
24 Dr Roberts refers there to a July 2015 report by Dr Nina Zimmerman. Presuming that is not an error, more recent and relevant to this offending is the opinion by Dr Zimmerman in a 21 February 2017 report.
"I have considered the availability of a mental impairment defence as set out in s.20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. There is nothing in the brief that speaks to Mr Thuc's mental state at the time of the alleged offending, such as a police interview. He would not engage in any discussion of the allegations apart from telling me that they are untrue. Given his diagnosis and current floridly psychotic state, it is likely that he was unwell at the time of the offending but I do not have sufficient grounds to support the availability of a mental impairment defence."
25 Dr Lester Walton states this in his 3 February 2016 report. (This report was made in reference to the offending for which Judge Hannan sentenced you. However I see it as having important general relevance).
"On the basis of the information I have to hand I could not state that this man has a mental state defence available to him. That said, it is well recognised that persons suffering from chronic schizophrenia, even when not in the acute phases of their illness, may exhibit limited social judgment, impulsive behaviour and may fail to adequately consider the consequences of their actions. It is probable that the psychiatric phenomena do have some relevance to Mr Thuc's offending, a proposition which has been recognised in the past."
26 I find that it is likely that you were mentally unwell at the time of this offending; that is, the offences before me. For example, this is consistent with your non-compliance with treatment, and the psychiatric opinion; although that is limited by the distance of time and in the other ways stated. There is not evidence, and I do not find, that you were in a psychotic state; but you were at least affected in the way described by Dr Walton in 2016. I find further that the principles stated in R v Verdins and like cases require that I find some reduction in your moral culpability and some significant moderation, albeit not elimination, of such sentencing purposes as deterrence. It is very apparent that imprisonment has been more difficult for you because of your illness and that will likely continue. There must be seen a risk of deterioration, at least periodic instances of that. In combination the Verdins principles have significant relevance.
27 Armed robbery is a serious offence, carrying a high maximum sentence. You not only threatened but also assaulted a vulnerable man. All of the staff were vulnerable. You have highly relevant prior offences. The objectively viewed circumstances require strong emphasis upon sentencing considerations and purposes such as deterrence, both general and specific, your moral culpability, condemnation of your offending, and proportionate punishment of it. Clearly that must be a sentence of imprisonment.
28 However there are also important moderating factors, matters which go to reduce the length of that compared to what those objective circumstances would otherwise demand. These matters particularly include the following.
29 1) Your plea of guilty.
30 2) Your personal history and circumstances. Your background has been a very harmful one. I accept for example that it played an important part in your failed schooling, inability to adjust well to life in this country, decline at a young age into drug use and antisocial environment and behaviour. It does not excuse but presents to me as strong and relevant explanation. Mr Barker did not heavily emphasise your drug use. However what developed in your late schooling and after included drugs, particularly heavy use of cannabis. Dr Roberts states this to further expose you to worsening mental illness. That is not to say that your stated use of cannabis and alcohol at time of offending and its effect, if any, provides mitigation for this offending.
31 3) You are still a young man. In fact your circumstances, mainly in detention since 18, are disturbing. I must consider your youth as relevant to that decline into serious offending and the desirability, really need, to rehabilitate you. It is impossible to feel optimistic about this. However I should not utterly discount it, bearing in mind your youth, family support and the capacity of medical treatment to control your psychiatric symptoms. I have been told that you are to be sentenced in the Magistrates' Court on 16 April for offences including assault, some near the time of these offences and others whilst in custody. The application of the totality principle is a matter for the sentencing magistrate.
32 4) I also see this as a case that legitimately raises the so called discretion of mercy.
33 The question of community protection is made relevant, if you do not reform. Your mental illness and your developing antisocial disposition is a concerning combination. However I have come to the view, particularly given your age, that the community's interest is not best served by longer imprisonment. One hopes that parole will provide the opportunity for a concerted attempt to assist and support you medically and socially. I presume that both the Adult Parole Board and mental health authorities, for example by way of further involuntary treatment order, will be involved in that.
Stand up please
34 After considering what I see to be the relevant matters, I sentence you as follows.
35 On Charge 1, recklessly causing injury, you are sentenced to six months' imprisonment.
36 On Charge 2, armed robbery, you are sentenced to four years' imprisonment.
37 I direct that three months of the sentence for Charge 1 be served cumulatively on the sentence for Charge 2. That is a total effective sentence of four years and three months. I set a minimum term of two years and nine months before eligibility for parole.
38 I declare under s.18, 567 days of pre-sentence detention. That is approximately 19 months.
39 Under s.6AAA I indicate that had you not pleaded guilty, I would have imposed a sentence of six years with a minimum term of four years.
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HIS HONOUR: Are there other matters I need to deal with, forensic samples and the like.
MS CRVENKOVIC: A forfeiture order Your Honour.
HIS HONOUR: Sorry?
MS CRVENKOVIC: A forfeiture order is sought.
HIS HONOUR: A forfeiture order, yes. What's that, the knife or the clothing et cetera.
MS CRVENKOVIC: In relation to the $155.
HIS HONOUR: I see, $155 was found at his home.
MS CRVENKOVIC: I understand that that's not opposed.
MS GAUNT: That's correct Your Honour.
HIS HONOUR: All right I'll sign that. What about the clothing, was the knife not found?
MS CRVENKOVIC: I've made enquiries with the informant - - -
HIS HONOUR: Anyway that's the only application.
MS CRVENKOVIC: That's the only application Your Honour.
HIS HONOUR: Yes all right. I will sign that now. You can sit down please. I will hand that back. A forensic sample has been taken and placed in the database on a previous occasion I would have thought.
MS CRVENKOVIC: Yes Your Honour.
MS GAUNT: Yes Your Honour.
HIS HONOUR: Yes all right. I think Mr Thuc's mother is present in court, she may briefly speak to him if she wishes before he's taken into custody. It must be quick though.
MS GAUNT: Thank you Your Honour.
HIS HONOUR: Could you just supervise that, it must be quick. Mr Thuc must be taken into custody now. I think Mr Thuc needs to be taken into custody now, if you could take him into custody now, yes.
MS GAUNT: Thank you Your Honour.
HIS HONOUR: Yes thank you for your assistance.
MS GAUNT: Thank you Your Honour.
HIS HONOUR: We'll move onto the next matter.
MS CRVENKOVIC: Thank you.
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