Director of Public Prosecutions v Tran
[2020] VCC 1802
•11 November 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 20-01158
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VINH QUANG TRAN |
---
| JUDGE: | HIS HONOUR JUDGE McINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 October 2020 |
| DATE OF SENTENCE: | 11 November 2020 |
| CASE MAY BE CITED AS: | DPP v Tran |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1802 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty – Attempted armed robbery – Theft - Priors are low order in comparison – COVID-19 - Combination sentence – Imprisonment – Community correction order
Legislation Cited: s. 74(1), s.321M Crimes Act 1958
Cases Cited:DPP vBourke [2020] VSC 130 - Boulton v The Queen [2014] VSCA 342
Sentence:Total effective sentence is 422 days, further declare 149 days of pre-sentence detention. Upon completion of imprisonment, convicted and ordered to serve a community correction order for a period of 2 years with therapeutic conditions.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Singh | Solicitor, Office of Public Prosecutions |
| For the Accused | Ms S. Parsons | Doogue and George Defence Lawyers |
HIS HONOUR:
1In the matter of Vinh Quang Tran, Mr Tran is now 37, he was 36 at the time of the commission of these crimes, being born on 24 September 1983. The plea was conducted in this Court on 19 October 2020. I mark for the record that it was a plea conducted by way of WebEx. The plea concerns Indictment L11432377 and in regard to that plea, Mr Tran was represented by Ms Parsons as he is also today; and in regard to the Director, Ms Singh appeared and appears today.
2All the offending took place on 15 June 2020. The second charge occurred in the Woolworths Supermarket located at 242 Smith Street, Fitzroy at approximately 8:00 am. Mr Tran stole the items set out in Charge 2 at a total value of $333.50, there were some 20 items, most of them of minor household use. Such is an offence against s.74(1) of the Crimes Act, the maximum penalty for which is 10 years and/or 1200 penalty units.
3Subsequent to the commission of Charge 2, we come to approximately 8:40 am when Charge 1 on the indictment occurred. The victim Ms Rahman, was at the ATM in Smith Street, Collingwood. She was removing cash in the sum of $70 and by happenstance, Mr Tran came up to her, close to her, almost touching and produced a knife, the knife being as we understand it one or other of the knives set out in Exhibit B. The use of the knife is shown dramatically in Exhibit C, the CCTV footage of Charge 1.
4One sees there the reaction of the victim. Charge 1 is a charge of attempted armed robbery pursuant to the provisions of s.321M, in particular s.321P(1)(a) the maximum penalty is 20 years and/or 2400 penalty units.
5As I understand the position, the pre-sentence detention to date is 149 days. There is a forfeiture order sought which I will sign in regard to the two knives.
6Insofar as Mr Tran is concerned, as I indicated, he is now aged 37. He has a number of priors but they are all, if I use the term by way of comparison to Charge 1, small time. They occupy some 10 pages and have occurred over the last 17 years, since Mr Tran was 18. Most of the offences seem to involve drugs and theft matters. From 2002 through to 2011, every alternative seems to have been applied by the Courts to assist Mr Tran.
7On 17 December, there are further trafficking and possession matters dealing in proceeds and handle, that is when Mr Tran receives his first sentence of gaol which was an aggregate of three months, with a community correction order of 15 months. Mr Tran in fact got out from gaol for that sentence in February 2019 so he had completed the community correction order approximately one month before this offending.
8In assessing the objective criminality, there was no issue from either counsel that one can only assess the criminality of this attempted armed robbery as serious. In that regard, Ms Parsons does not dispute that a sentence of imprisonment is appropriate, or that the pre-sentence detention to date is insufficient.
9In the plea, Ms Parsons sought a combined order (see [21], Exhibit 1) and in regard to that, sought a community corrections report which has been tendered today as Exhibit E and is positive, despite the number of occasion that he has previously had such reports.
10The prosecution submitted, given the serious nature of the criminality, that such combined order was not appropriate. I should have checked and I have not. Ms Singh, is that still the prosecution view despite the report received?
11MS SINGH: My instructions are that a head sentence with a non‑parole period is appropriate.
12HIS HONOUR: Thank you. So those instructions I have just been advised by Ms Singh have not changed.
13As to the circumstances of the attempted armed robbery, I accept that this crime can only be seen as opportunistic. The offending in Charge 2 occurs as I have said at 8:00 am. Given the chance circumstances of the victim withdrawing funds from the ATM at approximately 8:40am, Mr Tran's presence must be seen as happenstance. I accept that the criminality was unplanned and that he desisted from his intent once the victim moved away, which one can clearly see on the CCTV footage.
14However, the fact remains as demonstrated on the CCTV, that Mr Tran produced a knife in public as part of a attempted armed robbery upon a member of the community using an ATM at 8:40 am in a suburban street. The use of the knife at such close quarters was obviously frightening. Such again is demonstrated from the manner in which the victim moved, as one can see in the CCTV footage.
15There is no victim impact statement tendered. However, in the statement made by the victim in the depositions, in particular at [33], she stated that she screamed, she jumped away and she was fearful. The victim said that she was shaken and traumatised, but to her credit, then once Mr Tran was apprehended by two persons from the public, requested those persons not to hurt him.
16As put by the learned prosecutor and which I accept, the offence given the penalty imposed is inherently serious.
17As to the plea, Ms Parsons tendered the following:
a.her written submission dated 14 October 2020;
b.a letter of support from Mr Tran's parents;
c.a character reference from Mr Kan Ho of Uniting ReGen;
d.a letter of apology addressed to the Court;
e.a urine sample dated 23 August 2020 taken in gaol; and
f.details of various programs that Mr Tran has undertaken while in gaol.
18The circumstances would appear to be, as accepted in the community correction order report that Mr Tran was going through a period of distress at the time. Indeed, as his priors demonstrate, given the impact of drugs upon him, this is not unusual in his life. Mr Tran was sleeping rough and was drug‑addicted. There has been previous attempts by him with narcotics anonymous to free himself of the blight of drug addiction, however, these have been unsuccessful. However, as I have said, Mr Tran had abided by the terms of the community correction order up until approximately a month from this offending.
19Because of the issues of COVID-19, a number of the supports that Mr Tran would normally be able to utilise were not available at the time of this offending. In particular, those matters are set out in Exhibit 3 the letter from ReGen, as to the difficulties in May and June of this year brought about by the COVID-19.
20As I have said, Mr Tran’s parents, as set out in Exhibit 2, despite their experience with him and disappoint no doubt, still are supportive, still love him and are still prepared, providing he wants to, to allow him to live with them.
21I accept Mr Tran’s apology as genuine, as set out in Exhibit 4. Mr Tran obviously, as detailed in the materials and his history, has no issues from an intellectual point of view; appears indeed to be intellectually talented, has had a good education and indeed was given by his parents excellent opportunities. However, it would appear sometime into his second year of studying accounts at La Trobe University, Mr Tran became impacted by the effect of drugs and unfortunately stopped that course.
22Ms Parsons submitted that given Mr Tran’s priors, he has made a huge jump in this particular crime, which I accept. However, of course, this type of jump and criminality always goes with the life being by Mr Tran, there is always a risk that people will be involved in crime when they are so affected. However, as I have said, fortunately, his priors are of low order compared to this serious matter with which we are dealing.
23Any determination as to Mr Tran’s rehabilitation by this Court must be guarded. There is only one way that Mr Tran is going to change his life and that is by way of eliminating his addiction, and making sure that he remains so.
24I accept that Mr Tran has pleaded guilty, that in these COVID-19 times, such a plea is seen as utilitarian, see the decision of the Supreme Court in Bourke [2020] VSC 130, [32] and is to be seen as assisting justice. I accept that it also effects remorse and Mr Tran is entitled to the discount appropriate in those circumstances.
25The report received from Community Corrections, is positive. I read from the comments:
'Mr Tran has been subject to six previous community-based dispositions having successfully completed his last four attempts. It is of concern that Mr Tran continues to offend despite being subject to therapeutic CCO’s. However, Mr Tran indicated his support network was disrupted at the time of his offending due to COVID-19 and he was couch surfing at the time of his offending. This was supported by the material tendered to the Court by Uniting ReGen. Mr Tran described his offences as financially motivated whilst under the effects of Xanax, which he states made him not consider consequences of his actions and act in this matter out of character.'
26As I said, Mr Tran expressed remorse for the victim in such interview and I accept that as genuine.
27I also accept that Mr Tran has had a difficult time, as no doubt all prisoners currently have. But during Mr Tran’s remand, he has been subject to the rigours of the steps taken by the authorities insofar as COVID-19 is concerned. In this instance, the bureaucracy of Corrections needs to be congratulated because no COVID-19 transmissions have taken place in prison concerning prisoners. And I note in particular the email sent to the Court of the 5th of November 2020 indicating the periods of sickness as well that Mr Tran has endured.
28During COVID-19 Mr Tran has had to be subject to half day lockdowns, restrictions in any programs that he may well have wished to have had and, of course, no visitors.
29The circumstances here and the totality of all matters put to me by both counsel created an exquisite balance. There is, of course, given the seriousness of this crime, a need for a sentence which reflects not only specific and general deterrence, but punishment and denunciation given the public nature of this crime.
30However, I do acknowledge the huge step in the degree of criminality taken by Mr Tran, albeit his long term issues and the circumstances surrounding it.
31Having considered the principles set out by the Court of Appeal in Boulton v The Queen [2014] VSCA 342, I consider that the order sought is appropriate, that is that a combined order should be made. I reject the submission made by the prosecution in this regard.
32Mr Tran, I will ask you ultimately if you accept that, but if you do what I want to say to you is this, you are now in the big league. You now have a conviction for a very serious offence as against your other priors. Should you commit any further crimes in the future you can expect no further mercy from any Court. You should understand that.
33I am prepared to make an order pursuant to s.44(1), the effect of which will be that there will be a term of further gaol amounting to a period of four months. Thereafter a community correction order will apply for a period of two years upon Mr Tran’s release. I should point out that I did put to Ms Parsons whether, in all the circumstances surrounding her client, a straight sentence may not be more effective, however, the Court was assured of Mr Tran's intent to reform and as such I am prepared to make such an order.
34I hope for all of us, in particular you Mr Tran, and the protection of the community, that such intent is reflected in how he now spends his life. Because I want to stress again, Mr Tran, you come up before the Court on a serious matter again and your penalty is going to be quite significant, you understand that?
35OFFENDER: Yes, I understand, Your Honour.
36HIS HONOUR: The conditions I would propose would be supervision, conditions as to the alleviation of drug addiction including random sampling, conditions to assist in ensuring there is no re-offending. What I would propose, pursuant to s.44(1) is to make an order that Mr Tran serve a period of imprisonment of 422 days which effectively is nine months plus a pre-sentence detention. In regard to that I would declare pre-sentence detention of 149 days and what the effect of that, Ms Parsons, is that your client would have a further nine months to serve and thereafter would have a two year community correction order to serve.
37I can only make that order, obviously, if your client consents. Do you need me to stand down?
38MS PARSONS: Yes, thank you, Your Honour.
39HIS HONOUR: Do you want to talk to your client?
40MS PARSONS: If I could have that opportunity, thank you, Your Honour.
41HIS HONOUR: I do not know who goes into the lobby. We all go into the lobby, you do not.
42MS PARSONS: All right.
43HIS HONOUR: All I can tell you, as best as I understand it, there is no recording made of any discussion you have but I cannot guarantee that. All right? It is the best I can ‑ ‑ ‑
44MS PARSONS: Thank you, Your Honour.
45HIS HONOUR: My enquiries are that there is no recording made and no breach of privilege in those circumstances.
46MS PARSONS: Thank you.
47HIS HONOUR: My tipstaff assures me that is the position.
48MS PARSONS: All right.
49HIS HONOUR: I will stand down.
(Short adjournment.)
50HIS HONOUR: Yes, Ms Parsons?
51MS PARSONS: Thank you for that opportunity, Your Honour. Mr Tran has instructed that he accepts and consents to the community correction order.
52HIS HONOUR: Thank you. Yes, in those circumstances, Mr Tran, you will be convicted on both accounts. In regard to Charge 1 of attempted armed robbery, you will be sentenced to a period of imprisonment of 422 days. The effect of that is after the pre-sentence period is taken care of, you are going to have to serve an additional nine months.
53In regard to the theft, you will be sentenced to a period of imprisonment of three months. I make no order as to cumulation.
54The total effective sentence therefore is a period of 422 days.
55Pursuant to s.18 I declare that the 149 days served by way of pre-sentence detention were served as of this sentence and that a copy of the declaration be recorded in the records of this Court.
56Pursuant to s.44(1), I order that upon your release you enter into a community correction order that you have agreed to today. That community corrections order will be for a period of two years. It is the intent of this Court that you benefit from the therapeutic assistance that that order will make.
57Firstly, by way of supervision; secondly, by way of programs to assist you to overcome your drug addiction and in regard to that, it is my specific order that you be subjected to random sampling and further that you undertake programs to ensure that you are assisted in making sure that you do not commit further offences as has been part of your life for the period that I have indicated.
58Can I indicate to you, Mr Tran, which is a requirement of the Parliament what your plea of guilty means. It is a very difficult requirement of Parliament because in telling you this, it needs me to concentrate only of the factor of you pleading guilty which is quite difficult given the number of factors I have spoken about in this sentence.
59However, had you not pleaded guilty, the total effective sentence you would have received is not one of 422 days but one of three and a half years with a non‑parole period of two years and four months.
60Madam Prosecutor, is there anything I have to - sorry, I make the forfeiture order that I indicated.
61And insofar as the community corrections order, I think the order itself tells us where to attend, does it not? Broadmeadows office. And Ms Parsons, you have indicated on behalf of your client his acceptance of such an order?
62MS PARSONS: That is correct, yes, Your Honour.
63HIS HONOUR: And given the emergency regulations, that is allowable in these circumstances. However, Madam Associate, we will send a copy of the order to Mr Tran and you can explain this to him, Ms Parsons. And we will actually ask him to sign the order.
64MS PARSONS: Yes, Your Honour.
65HIS HONOUR: So for the purposes of the sentence, I accept his consent as made through you today pursuant to the emergency provisions. Yes, Madam Prosecutor, are there any other matters I need to attend to?
66MR SINGH: No, Your Honour.
67HIS HONOUR: Yes. Can I thank both counsel for their assistance in this matter. Yes, Mr Tipstaff.
‑ ‑ ‑
0