Director of Public Prosecutions v Tran
[2023] VCC 50
•27 January 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR 22-01688
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HUU LOC TRAN |
---
JUDGE: | HER HONOUR JUDGE GWYNN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 December 2023 & 27 January 2023 | |
DATE OF SENTENCE: | 27 January 2023 | |
CASE MAY BE CITED AS: | DPP v Tran | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 50 | |
REASONS FOR SENTENCE
---
Subject:Criminal law
Catchwords: Threaten to inflict serious, threaten to damage property, common law assault, family violence, petrol
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:DPP v Gaby [2020] VCC 752, DPP v Rutherford [2017] VCC 1874, Mercer (a pseudonym) v The Queen (2015) VSCA 257
Sentence: Term of imprisonment of 18 months duration, two year community correction order and a fine of $1750
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms.K. Crennan | Office of Public Prosecutions |
| For the Accused | Ms.K. Ballard | McNally & Gleeson Lawyers |
HER HONOUR:
Huu Loc Tran, you have pleaded guilty on indictment to charges of make threat to inflict serious injury, make threat to damage property and common assault. Each of these offences took place on 19 April 2022.
In sentencing you for your crimes, I am obliged to consider the maximum penalty for the offences you have committed. The maximum penalty for each charge is one of five years imprisonment. These maximum penalties reflect the seriousness with which Parliament regards each of these offences.
The circumstances of your offending were set out in a document entitled ‘Further Amended Summary of Prosecution Opening for Plea’ dated 25 November 2022. This is an agreed document and represents your acceptance of the elements of the offences to which you have pleaded guilty as well as the factual basis on which I am to sentence.
I have had recourse to that document in full and it was just read to the court, but in short compass the direct victims of your offending were your partner of some 10 years or more, Hang Doan and your son, Tommy Tran. Tommy was 14 years of age at the time of the offending. Your 11 year old son, Michael was also present.
Earlier in the evening of 19 April 2022, you and Ms Doan had argued over money.
At a later stage you asked Ms Doan to go to the shop to buy cigarettes for you and she did so. Ms Doan returned home at approximately 8:03 PM at which time you were sitting at the kitchen table across from your sons, Tommy and Michael. Ms Doan placed the cigarettes on the table and went outside and sat in the car.
A short while later Tommy came outside and said that you had told him to come and get Ms Doan.
When she went back inside you and the children were sitting at the kitchen table. Ms Doan told you that she did not want to speak with you and no longer wanted to control the finances.
You pulled a red jerry can from under the kitchen chair that you were sitting on and said, 'Stay here, I want to burn this house.'
10.You then removed the lid from the jerry can and quickly poured petrol onto Ms Doan. Ms Doan attempted to stop you from pouring petrol onto the floor. You picked up a lighter from the kitchen table and Ms Doan grabbed you and tried to take the lighter away from you. These facts all form the basis for charges 1 and 2, that is, make threat to damage property and make threat to inflict serious injury.
11.You dropped the lighter and Ms Doan put it in her pocket. You shoved her causing her to fall over a dining room chair.
12.Your son, Tommy, then intervened and tried to hold you. You grabbed him around the neck and shoulder area, ripping his T-shirt and inflicting scratch marks. These facts form the basis for charge 3, common law assault.
13.Tommy told his mother to run out the back door which Michael was holding open by this point in time. All three of them then fled from the house.
14.You left the house via the front door and ran down the street in the same direction as Ms Doan and your two sons.
15.A neighbour intervened and, after speaking with Tommy and Ms Doan about what had happened, walked over to you and spoke with you. Ms Doan and the two children then left the area. You returned home before attending at Ms Doan’s sister's address.
16.Your behaviour after the immediacy of the offences is also set out in the Crown summary and it would appear that for some time on 19 April 2022 you maintained your anger with Ms Doan and were trying to find her. Your apparent rage took some time to quell.
17.Tommy called ‘Triple 0’ saying that he was in a park with his mother and brother and that you had poured petrol 'all over us' and threatened to 'burn the house down'.
18.You were located by police at the family home on 19 April 2022, cleaning up. You were arrested at this time.
19.When interviewed by police, you gave 'no comment' answers to the questions asked of you, as is your right.
Offence gravity and victim impact
20.This is obviously serious offending and somewhat unexplained.
21.I accept that, in terms of the offences for which you fall to be sentenced, there was limited planning and that your actions would appear to be out of character- nevertheless your offending has clearly occurred in a domestic violence context. General deterrence is a primary sentencing objective.
22.The Court of Appeal said in Mercer (a pseudonym) v The Queen (2015) VSCA 257:
'This Court has said on many occasions that domestic violence will not be tolerated, and that general deterrence is a very important sentencing principle in the sentencing disposition which must be, and must be seen to be, condemned by the courts. To borrow from what this Court said recently in Filiz v The Queen, offending of this nature is too often perpetrated by men whose response to conflict with a partner is one of violent rage. Such a response is utterly unacceptable. This Court has made it clear, and will continue to make it plain, that offending of this kind will attract serious consequences.'
23.The circumstances in which charge 1 and 2 occurred were inherently dangerous and your conveyed threats were made very real given the pouring of petrol onto Ms Doan, the proximity and availability of a lighter and your words, all of which elevate the seriousness of these two offences. Their actions, that is, the reactions of Ms Doan and your two sons in response to your threat serve to highlight how real they perceived your threats to be.
24.Your moral culpability appears high.
25.The assault on your son has occurred when he was trying to protect his mother, his brother and himself from what he feared you might do. By virtue of that fact and his young age, he was vulnerable in those circumstances. Whilst your violence was also a reaction by you and the physical impact on your son fortunately relatively minor, it is a shameful incident. Your actions were appalling.
26.Obviously, the offending has occurred in the family home, an environment in which Ms Doan and your two children were entitled to feel safe and secure.
27.Whilst no victim impact statements have been provided I have little doubt that Ms Doan and your two children would have been simply terrified.
28.I accept that the threat to inflict serious injury and threat to damage property have relatively low maximum penalties and rely on the same facts and the same moment in time. This must also be reflected in the penalty to be imposed.
Plea of guilty
29.You have pleaded guilty. The Sentencing Act obliges me to take into account the stage at which you entered your guilty plea.
30.These matters were in fact listed for a contested plea hearing on 25 November 2022. The only area of dispute was whether or not you had poured petrol on Ms Doan. She had resiled from that position in her evidence at committal. After discussions with the parties the charges were instead listed for an application for sentence indication which was held on 14 December 2022.
31.Sentence indication is a process which permits a judicial officer to give a defendant a general indication of the sentence that would likely be imposed if the defendant pleaded guilty at that stage of the proceedings. A sentence indication process can resolve some concerns about the likely sentence that may be causing a defendant to defer entering a guilty plea or electing to proceed to trial.
32.Your application for a sentence indication was granted.
33.Available to me at that time was:
a)The Crown opening I heard today;
b)Your criminal history, which was admitted;
c)Written submissions on your behalf;
d)A letter from your employer;
e)Confirmation of courses and rehabilitative courses completed whilst you have been on remand and your work timetable; and
f)Two sentences of the County Court for offending which involved the use or threat to use petrol in a domestic setting, those being DPP v Gaby [2020] VCC 752 and DPP v Rutherford [2017] VCC 1874. I have had recourse to each of those decisions.
34.Section 44 of the Sentencing Act states that when “sentencing an offender in respect of one, or more than one offence, a court may make a community corrections order in addition to imposing a term of imprisonment only if the sum of all the terms of imprisonment to be served (after deduction of any period of custody that under s18 is reckoned to be a period of imprisonment) is one year or less”.
35.The sentence indication given was that, should you determine to plead guilty to the three charges on the indictment, the court would likely impose a combination sentence, that is a term of imprisonment in combination with a community corrections order. It was also indicated that the term of imprisonment to be imposed would exceed the available pre-sentence detention.
36.That sentence indication given was accepted by you and the matter has proceeded as a plea hearing before me today, 27 January 2023.
37.That time period was to allow time for an assessment to be undertaken as to your suitability for a community based order given the sentence indication given.
38.I accept that, in your plea, there is clear value in saving the community the expense of contested proceedings, even if only contested in terms of discrete facts. This is an important factor as your decision to plead guilty without contesting any facts has saved the witnesses, in this case close family members, from the trauma of having to give evidence, to be cross-examined and to relive what would clearly be distressing events.
39.Your decision to plead guilty in the context of the COVID-19 pandemic does have additional utilitarian value. It does provide certainty and finality to all parties in circumstances where the court's operations have been disrupted by the pandemic.
40.I do accept in the circumstances that your decision to plead guilty is an indication of your remorse.
41.These factors will all be taken into account in your favour.
Personal circumstances
42.I turn now to your personal circumstances.
43.You are now 45 years of age.
44.You have an older sister, Mai, and a younger brother, Peter. Your father fought with the American army during the Vietnam war. When the war ended your father spent time in a prison camp and life was not particularly easy for your family. Your journey to Australia was as a family and was designed to build a new life. Your family settled in Wantirna when you were aged approximately 11 years.
45.You commenced your primary school education in Year 5 at Wantirna South Primary School. This was a challenge for you because you initially did not speak English and there were no other Vietnamese children. Things did not improve greatly when you commenced your secondary school education at Wantirna Secondary College. You were not particularly academically gifted. In addition, you were one of only three Asian students and were bullied regularly for your ethnicity. Your recall being called names and to being physically beaten numerous times.
46.You left school after completing a Year 10 education and commenced your working life.
47.In your early twenties, each of your parents suicided, reportedly unable to cope with your older sister’s drug addiction. You took on the responsibility for raising your younger brother, Peter, who I am told was only 12 years of age. You now have minimal contact with your sister.
48.You have maintained regular employment, largely in differing manual labour type roles. You have been a hard worker and a provider for your family.
49.Immediately prior to your remand you were working full-time as a welder with Megabolt in Campbellfield. You were also working as a forklift driver on a contract basis and doing some home renovation work on weekends.
50.You have been in a relationship with Ms Doan for many years, having met as teenagers. She also came to Australia from Vietnam as a child. Ms Doan works in a meat processing factory. Your son, Tommy, attends Braybrook College and Michael is about to commence his secondary school education.
51.You have been told that your children have been misbehaving, isolating themselves and have lost interest in their studies. You are understandably concerned for their welfare.
52.Whilst of your own making, your period of remand has been the longest you have been separated from your family. You are concerned for your family and stressed by your inability to provide for them financially.
53.I accept that your time in custody has given you a significant period to rethink your actions of 19 April 2022 and the ramifications of them for you, Ms Doan and your sons.
Prior criminal history
54.You have a relatively limited prior criminal history.
55.On 8 September 2000 you appeared at the Ringwood Magistrates' Court in relation to a charge of driving whilst suspended. You were convicted and fined the amount of $1000.
56.Approximately eight years later, on 10 April 2008, you appeared at the Sunshine Magistrates' Court in relation to a charge of shop theft. You were placed on an adjourned undertaking for a period of six months. No conviction was recorded.
57.On 5 April 2011, you were convicted and sentenced to 15 months imprisonment by the Sunshine Magistrates' Court in relation to a charge of traffick in a drug dependence and theft. That period of imprisonment was wholly suspended for a period of two years.
58.On 7 August 2012, you appeared at the Sunshine Magistrates' Court for contravening the suspended sentence order made on 5 April 2011. That contravention was found proven and no further order made as to the suspended sentence. You also appeared on that date in relation to charges of failing to render assistance after an accident, failure to give name and address to an owner, careless driving of a motor vehicle and make false report to police. For those offences you were convicted and fined the amount of $800.
59.Until your offending of 19 April 2022, there have been no further matters, representing a period of close to 10 years without any involvement with the criminal justice system.
60.You do not appear to have a history for violence or family violence.
61.Your criminal history is relevant to the weight in the sentencing exercise to be given to specific deterrence, denunciation and protection of the community. Whilst I see the need for some weight to attach to specific deterrence and denunciation given the circumstances of your offending, your criminal history would not indicate the need for significant weight to be given to protection of the community. This view has been furthered by materials tendered on your behalf, to which I will shortly refer.
62.This history also has relevance to your prospects for rehabilitation, a subject to which I now turn.
Prospects for rehabilitation
63.I earlier described your offending as somewhat unexplained.
64.You do not appear to have a history for violence or for family violence within your relationship with Ms Doan. It is said on your behalf that you were particularly stressed at the time of your offending due to your work commitments and stretched finances. You were also drinking to excess. Whilst this offers you no excuse it does set some context for your actions and pathway for rehabilitation.
65.You do hope to repair your relationship and there has been contact between you and Ms Doan whilst you have been on remand.
66.A reference from the Operations Manager, Rohan White, confirms that you have worked with Megabolt Australia for over three years. You were offered permanent employment due to your good work ethic and dedication. You are described as showing great quality and attention to detail and having motivation and ability to learn new skills. You also work well within your team. Mr White was aware that you are in custody for serious family violence. Nevertheless, your full-time position at Megabolt remains open for you when released from custody. Mr White writes 'from a professional work-related perspective, we have not had any issues with his behaviour in the past and would not in the future.'
67.Your period on remand has been your only exposure to the custodial setting. I accept that the time to date is already capable of playing a role as both a sanction and a deterrent into the future.
68.Subsequent to your sentence indication and in advance of your plea hearing, a reference has been provided authored by your brother, Peter Tran, dated 5 January 2023. Your brother is the managing principal of a chartered accounting firm and has his own family. He is aware of your offending and has spoken to you whilst in custody. Your brother describes you as having a generous heart and to ensuring that your family’s needs were your priority. Peter Tran believes that you are remorseful for your actions, which he describes as being out of character. He states that you understand your actions have severe consequences for yourself, as well as your family, and he speaks at your distress in being absent from them and being able to provide for your family. Your brother offers you his support and accommodation for as long as may be needed with him and his family. He has been present for your plea hearing.
69.Tendered on your behalf were a number of certificates from programs which have been completed whilst in custody. These include programs in alcohol and anger management , positive parenting, communication, Take Stock A , Take Stock B, Adapt and Tuning into Respectful Relationships. These programs appear referable to the contributing circumstances to your offending and were provided at the time of your sentence indication. Updated certificates have been provided today, showing that you have continued to seek assistance and continued with your progress and desire to rehabilitate.
70.A letter authored by Karly Doyle, Forensic Alcohol and other Drugs Specialist, dated 20 January 2023 has also been tendered on your behalf subsequent to your sentence indication. At the date of her letter you had attended eight sessions with Ms Doyle. She describes you as engaging incredibly well and presenting with a positive demeanour, whilst also demonstrating insight, honesty and self-reflection. You have been welcoming of the treatment she has provided. You identified alcohol as a problem for you over some five to seven years and as a mechanism for you to 'wind down'. You presently do not wish to return to any further use of alcohol and that seems to be a useful insight. You do wish to continue treatment.
71.Your work with Ms Doyle indicates that you are capable of accessing help on your own behalf. You have also been employed in a workshop at Marngoneet Correctional Centre as a welder and undertaken a Certificate II in welding and studying information technology and supply chain management.
72.You appear to have used your time wisely whilst on remand and made efforts to further your prospects of rehabilitation.
73.Your solid work history, period of abiding by community expectations, lack of directly relevant prior criminal history, and period of remand and your use of that remand period augur well, in combination, for your future prospects.
74.There is merit in an extended period of support upon your return to the community. This presents a mechanism by which to foster your continued rehabilitation and to protect the community through that process, either through contravention proceedings should you be non-compliant, or through the treatment offered through supported programs. I have no reason to expect that you would be non-compliant.
Assessments
75.As referred to earlier, given the sentence indication given by me, I did have you assessed as to your suitability for a community corrections order.
76.Before turning to the outcome of that assessment, I also had you assessed by the Mental Health Advice and Response Service given the serious and unexplained nature of your offending. In a report dated 4 January 2023 I am told that you do not have any history of mental health assessments or treatment. You were not assessed as requiring ongoing evaluation or treatment for your mental health as a mechanism to promote your wellbeing or to reduce your future risk of offending.
77.In a report also dated 4 January 2023, you were assessed as being suitable for a community corrections order. It is recommended that, should an order be imposed, that the court consider imposing community work, treatment and rehabilitation for alcohol use, treatment and rehabilitation programs to reduce the risk of reoffending, as well as supervision by the Office of Corrections.
Sentencing
78.The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victims.
79.I am also required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, where possible, that offenders are rehabilitated and are reintegrated into society.
80.I have taken into account the relevant sentencing guidelines referred to in s5 of the Sentencing Act. I have taken into account current sentencing practices for the offences to which you have pleaded guilty and the principles of both totality and proportionality.
81.I am not satisfied that charge 3 warrants a term of imprisonment given its overall gravity, the circumstances in which it was committed and your lack of relevant criminal history. Accordingly for the charge of common assault you are convicted and fined the amount of $1750.
82.I propose to impose an aggregate on charges 1 and 2 as I am satisfied that the offences are founded on the same facts, or form, or are part of a series of offences of same or similar character.
83.In relation to those two charges, Mr Tran, you are convicted and sentenced to 18 months imprisonment. Two hundred and eighty-three days are reckoned as having already being served.
84.This order is in combination with a lengthy community corrections order of two years duration during which you are to:
a) Be under the supervision of the Office of Corrections;
b) Perform 225 hours of community work;
c) Undergo treatment and rehabilitation for alcohol abuse; and
d) Undergo programs to reduce offending, specifically a men's behavioural change program.
85.One hundred hours of treatment is to be offset against the community work.
86.Courts do now have more discretion in terms of choosing a sentencing disposition, which does enable all the principles of punishment to be served simultaneously, in a coherent and balanced way, in preference to the option of imprisonment, which is naturally skewed towards retribution and deterrence, factors which have weight, but perhaps less weight in the overall sentencing mix for you.
87.The path to rehabilitation has been commenced by you and it seems your ability to access appropriate services has a role to play. A Community Corrections Order can be punitive, can achieve deterrence and may be suitable even in cases of relatively serious offences such as these which might have previously attracted a medium term of imprisonment.
88.In addition to the conditions that I have imposed there are standard conditions. The first and foremost of those is that you must not commit any other offences during the two year period of that order, which could be punished by imprisonment. You must report within two working days of your release to the nearest community corrections office. You are required to advise your supervising corrections office of any change of address of where you are living or working and you must do so within two clear working days. It is a term of all community corrections orders that you must submit to visits as directed and you must obey all of the instructions and directions of a corrections officer. You cannot leave the State of Victoria without the prior permission of your corrections office.
89.In my view, this order presents you with a chance to continue to change your life in a positive fashion should you choose to take up that opportunity and the supports that I intend be made available. The order can be breached if you do not comply with it in terms of its conditions or reoffend whilst it is in place, with an offence punishable by imprisonment. If you do so, you will have to appear before me for breaching the order and I may be required to resentence you on the original charges, as well as to sentence you for contravening the order.
90.Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed had you not pleaded guilty to the charges. If not for your pleas of guilty I would have sentenced you to two years and 10 months imprisonment, with a minimum of 20 months before being eligible for parole.
91.Now Mr Tran, I can only place you on that order if you agree to be placed on that order. So, I will give you the opportunity, if we can work out how to do it, to speak to Ms Ballard about that. I mean, he can see and hear us and you can see him on my associate's screen. I can disappear.
92.MS BALLARD: It'll only take a moment and thank you, Your Honour. That might be the best way to do it. Thank you.
93.HER HONOUR: Yes and if needs be, if the prosecution can temporarily disappear, but I'll stand down temporarily.
- - -
0
2
0