Director of Public Prosecutions v Tran

[2018] VCC 1222

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01221

DIRECTOR OF PUBLIC PROSECUTIONS

v

DUY TRAN

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	27 July 2018
DATE OF SENTENCE:	7 August 2018
CASE MAY BE CITED AS:	DPP v Tran
MEDIUM NEUTRAL CITATION:	[2018] VCC 1222

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty - Armed robbery – Commit indictable offence whilst on bail – Lengthy criminal record – Soft target of offending – Long chronic relapsing history drug abuse

Sentence:Convicted and sentenced to Total Effective Sentence of 4 years and 1 month’s imprisonment with non-parole period of 34 months’ imprisonment – 146 days pre-sentence detention declared as having already been served – s.6AAA Sentencing Act 1991 declaration

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. French (Plea) Ms C. Tulloch (Sentence)	Solicitor for Public Prosecutions
For the Accused	Mr J. Miller	James Dowsley Associates

HER HONOUR:

1Dinh Thai Duy Tran, you have pleaded guilty to one charge of armed robbery which has a maximum penalty of 25 years' imprisonment.  The maximum penalty reflects the seriousness with which Parliament regards this offence, and is one of the matters I must take into account when sentencing you.

2Further, you have pleaded guilty to one summary charge of committing an indictable offence whilst on bail, which has a maximum penalty of three months' imprisonment.

3I was told by the learned prosecutor that you were 34 years old at the time of the offending and had no fixed address.  The victim was 28 years old and 28 weeks pregnant at the time of the offending.  On 13 March 2018, at about 8.46 am, you attended a Chemist Warehouse store in Noble Park.  The victim was working at one of the cash registers.  You approached her and pulled out a folding knife from one of your pockets, and pointed the blade at her face.

4You then leaned over the counter and grabbed hold of the victim's lanyard, pulling her towards you.  The victim stepped back, which caused you to release your grip on the lanyard.  She then pressed the bell on the counter and walked out of the store to try to find the security guard.  However, he had apparently gone to buy some coffee.

5The victim then re-entered the store.  You had jumped over the counter at this stage and were trying to open the cash registers.  You walked over the victim and pushed her toward the cash register she had been operating.  You then said to her, "Open the till or I'll cut you", saying this once or twice.  At around this time, you were pushing your right hand into the victim's back, and still holding the folding knife in your left hand.  The victim opened the cash register and you removed about $500 cash.  You then left the store.

6The incident was captured on the store's CCTV cameras, and I viewed the incident during the course of the prosecution opening.  It made for most alarming viewing.

7At the time of the armed robbery, you were on bail and were due to appear at the Dandenong Magistrates' Court on 18 April 2018.  You had been bailed to appear in respect of driving-related offences alleged to have been committed in February 2018.

8Police arrested you on 14 March 2018 at a bus stop in Noble Park, having identified you from the CCTV footage.  When arrested, you were searched and the knife that was used in the armed robbery was found inside one of your jacket pockets.  You were taken to Dandenong police station for interview.

9You said that on the morning in question, you had been walking around Noble Park and had fallen asleep somewhere.  You denied attending Chemist Warehouse in Noble Park, and after being shown the CCTV footage, you said that you were "pretty drug-affected, so I don't remember."

10Mr Tran, I regard your offending as serious and deserving of punishment which is just in all the circumstances, and your conduct must be firmly denounced.  Further, strong weight must attach to general deterrence in a bid to deter others from offending as you have.  In terms of the seriousness of the offending, you entered a store while customers were about, which is clear from the CCTV footage.  You threatened the victim with a knife at her face, and physically manhandled her in a bid to steal money from the till.

11Although I do not find that you were aware that the victim was pregnant, you take your victim as you find them and this particular victim was in an advanced stage of pregnancy.  The learned prosecutor fairly indicated that her stage of pregnancy was not obvious.  However, on any view of things, she was a soft target.

12You committed this offence while on bail, having been granted bail only a month before.  Further, you were subject to a community corrections order at the time that you committed the offence for which I sentence you, and had successfully obtained variation of that community corrections order only three months before this offending.  The order had been varied to enable you to have further time to engage with a behaviour program and ongoing drug treatment.  However, obviously, you failed to do so.

13It is an aggravating feature of the offence for which I now sentence you that you were subject to a community corrections order at the time of the offending before me.  The fact that you were also subject to bail will be reflected in some cumulation in respect of the penalty I impose for the summary offence.  I make it clear that I will be most mindful not to double-punish you in respect of breaching bail or the community corrections order.

14In assessing the seriousness of your offending, I have also factored in that this was of relatively short duration and was not apparently premeditated or sophisticated, reflective of the fact that you were under the influence of illicit substances at the time.  While this situation is not mitigatory, it helps explain your actions on the day in question, and the lack of sophistication in taking measures to avoid detection.

15The victim in this matter declined to make a victim impact statement.  However, it does not take too much imagination to consider that she would have been terrified by your actions both in respect of herself and her unborn child.  Further, it would be unsurprising if she were not suffering from ongoing trauma from what you had done.

16I take into account your criminal history, which is a fairly lengthy one.  You first came before the courts in February 2006 in relation to trafficking heroin, possessing a controlled weapon, dishonesty matters, using an unregistered motor vehicle, and failing to answer bail.  In relation to the dishonesty and trafficking matters, you were sentenced to three months' imprisonment and you were fined in relation to the other matters.

17You then came before the Dandenong Magistrates' Court again in April 2014 for drive whilst disqualified and three charges of failing to answer bail.  You received a good behaviour bond in relation to these matters.

18In August 2016, you were dealt with for a number of driving charges including failing an oral fluid test within three hours of driving, and also, persistent contravention of a family violence and committing an indictable offence whilst on bail.  In relation to a number of these matters, you were convicted and received a 12 month community corrections order with conditions for treatment and rehabilitation, including for drug abuse.  You were fined in relation to the other matters on this occasion.  I have viewed a summary in relation to the contravention of the family violence order.  While no violence was inflicted, you certainly threatened to do so.

19On 6 December 2016, you were dealt with for contravening that community corrections order and the community corrections order previously imposed was varied, giving you more time to complete the order.

20On 6 December 2016 in the Dandenong Magistrates' Court, you were dealt with for entering a private place without authorisation, going equipped to steal, using methylamphetamine, refusing to undergo an assessment for drug impairment, and failing to ensure that a child was in a suitable restraint where the child was under six months.

21In relation to the first three of these matters to which I have referred, you were convicted and sentenced to an aggregate term of 65 days imprisonment, being time already served.  In relation to the other matters, or the remaining matters, you were convicted and fines were imposed with an order made against your licence.

22On 8 August 2017, you were dealt with for possessing a drug of dependence and possessing a controlled weapon without excuse.  You were convicted and fined an aggregate fine of $4000.

23On 7 December 2017, you were dealt with for contravening the community corrections order which had previously been varied and to which I have previously referred.  The charge of contravening the order was found proven with no further penalty, and you were re-sentenced in relation to the offences to a community corrections order which was varied enabling you to complete the order.

24I accept that you have no prior convictions for offences of the nature now before me, but I regard the family violence contravention and possess controlled weapon matter as being of some relevance, and of course, in view of the context of the offending now before me, I have factored in that your criminal history is very much tied up with your drug addiction.

25I put you on notice that as there is a link between your decision to take drugs and offend, that if you choose to take drugs in the future and commit criminal offences, your decision to take drugs may well be viewed as an aggravating feature in the future.

26On your behalf, Mr Miller told me that you had been addicted to drugs for 20 years, and it was in this context that your criminal history and current offending ought be viewed.  He told me that you have had no contact with your family since the offending for which I now sentence you.  However, your mother, grandmother and sister had attended court in support of you at the plea hearing.  I understand that they are in a position to give you support in the future, providing you behave yourself and decide to accept their help and support.

27In your favour, I take into account your very early plea of guilty which has greatly facilitated justice.  You are entitled to a significant discount in the sentence that you would otherwise receive, as you have saved the witnesses, particularly the victim, the time and trouble of giving evidence and you have saved the community the time and expense of contested proceedings.

28Your counsel submitted that your early pleas of guilty, in combination with expressions of remorse, to him are indicative of your remorsefulness of your actions.  He submitted that you were drug-affected at the time and were dismayed at what you had done, that now you are drug free you are able to see things through the victim's perspective, and you never expected to be involved in offending of this kind.  He also told me that you are mindful of being a burden on your family because of all you had put them through.

29In the end, I make allowance in your favour on the question of remorse.  I take into account your background.  You came to Australia from Vietnam in 1998 with your mother after she separated from your father.  You have two older half-sisters from your father's prior relationship, and one from your mother's.  Your mother remarried when you were about 12, and you have another half-brother and half-sister from that marriage.

30You grew up in the Springvale area and attended various secondary schools in the south-eastern suburbs.  You were suspended and expelled several times from various schools for drug use and fighting with other students.  You left school during Year 11, as you were using drugs and not focusing on school.  Sometime after this, you completed a Certificate III in Logistics and Driving Operations, and then worked for a couple of years in warehouses operating forklifts and performing data entry tasks through a temp agency.

31In around 2012, you met Yan Nguyen, and you have a child from that union who was born in 2015.  You and Ms Nguyen were married the same year.  Ms Nguyen did not use drugs and your relationship was a stabilising influence for you for some time.  You had returned to study digital imaging and web design at the TAFE, but discontinued this course when Ms Nguyen became pregnant.

32I understand that you returned to work in order to bring money into the household.  Your relationship with Ms Nguyen broke down, principally due to your drug abuse.  The family violence intervention order was granted which prevented you from returning to the family home following the prison sentence which you received in 2016.

33I was told by your counsel that you committed the offence for which I now sentence you out of desperation to obtain money for drugs.  You had started using drugs and alcohol in your early teenage years, commencing with cannabis then moving to heroin to which you quickly became addicted.  You have regularly abused a number of illicit substances for a good deal of your life.

34In a bid to curb your poor behaviour during adolescence, your family sent you to Vietnam on about three occasions.  This was to get you away from bad influences and drug use and to reconnect you with your family and culture in Vietnam.  However, unfortunately, this did not serve to assist you in remaining abstinent.

35Your use of heroin commenced when you were 15 years old, and as I have said, addiction followed soon after.  You have attempted to stop using drugs through various pharmacological interventions.  Before being remanded for this offence, you were on a dose of 60 milligrams of methadone, which then went down to 20 milligrams.

36I have now been updated in relation to the methadone treatment that you had been on, and have now recommenced.  I was told that you are now drug-free.  However, I have not been provided with drug screens to verify this.  Mr Miller indicated that he would attempt to obtain these screens prior to sentencing.  He has updated me today that despite his best efforts and yours, he has been unable to do so.  However, you have instructed him that you are drug-free and in the circumstances, I accept that.

37I understand that you accept the most effective measure to finally end your drug abuse would see you attending as an inpatient in a residential rehabilitation centre.  It is in your interest and in the interests of your family and the broader community that you follow through on this idea as soon as you are released.  Do you understand that?

38Mr Miller told me that in the past, your family members would allow you to stay in their houses for short periods of time.  However, they have not been able to offer any other support because of the way that you were behaving.  Further, I understand that at as at the time of this offending, you chose to stay away from them and were living on the streets.

39You have said that you have felt Asian traditional pressures from your family and that you are a burden on them.  However, their presence in court at the plea hearing indicates that they are prepared to support you as best they can if you are to change your ways.  You wish to extract yourself from the drug world that you have been living in, and to be in a position to reconnect with your son who is now three years old.  You wish to live a productive life and to provide for your family.

40I take into account that you have a diagnosis of hepatitis C, and that you had been undergoing a new course of treatment prior to your incarceration.  You are concerned about the cessation of treatment.  In this regard, my associate communicated these concerns to the prison authorities, and their response has been communicated to me and passed on to the parties.  This was the subject of further discussion today.

41In this regard, in relation to the situation concerning methadone, for the purposes of transcript, I will indicate that I received advice through my associate from Jeremy Dixon, clinical governance officer, Justice Health, Department of Justice and Regulation, on 3 August 2018 as follows.

42I was told that you had self-ceased your hepatitis C treatment before entering custody.  This was noted on reception and you were assessed by the SHP in late July once you had settled in prison.  The plan was to commence treatment in the next week or so.

43I was further told that your mental health had been assessed on a number of occasions and there was no clinical indication for anti-psychotic medication.  The impression was that you were medication-seeking.

44I was further told that you were prescribed methadone on reception but had weaned yourself off.  Your methadone was recommenced on 28 July at a 20 milligram dose.  You have not been prescribed any other medication as you had no other medical diagnosis.

45You had been prescribed anti-psychotic medication in the past by your general practitioner.  However, this seemed to relate to drug-induced psychosis relating to methylamphetamine use which would appear to be no longer necessary if, as you say, you are abstaining from drugs.

46In sentencing you, I factor in that this is your first time in gaol for an extensive period.  Your counsel did not contend that you suffered any impairment of mental function or illness which would make time in gaol harder for these reasons.  However, in sentencing you, I have taken into account the report from your general practitioner dated 18 March 2018, in a general sense.

47You are of the view that drug addiction has changed your mind and you have found it very difficult to deal with people who are not in the drug world.  You have had accidental overdoses in the past, although you have pondered that these may have been subconscious attempts to suicide.  However, you do not presently have any suicidal ideation.

48I was told that your mother has spoken to your father in Vietnam, who is very keen to have you return there to work with him.  He works in the recycling industry and you would be required to work in the office, entering data.  However, you have not a good deal of time to reflect on whether you would be interested in taking up this offer, which could only occur once your full term of imprisonment had been served.

49It is a positive matter that you now wish to make the most of your life and turn your back on drugs and negative peers in favour of being a proper father to your son.  Mr Miller pointed to the community corrections contravention report dated 20 November 2017, which indicated that although your compliance with the community corrections order had been problematic in the past, you had re-engaged with the service and had been linked with treatment for drug abuse.

50He submitted that you did show a capacity, to some extent, to comply with court orders and you understand the requirements such that there was some capacity for you to abide with any conditions placed on you if released on parole.  He said that you would have plenty of time to put yourself in a good position to observe such conditions in the event of parole being granted at some stage in the future.

51He told me that you had instructed him that you wish to do something to make yourself proud and to be a productive member of society.  These are noble sentiments, and I do hope you achieve these.

52Factoring in your offending on the occasion before me, your chronic problem with drugs for 20 years, and your criminal history, and also factoring in your early plea of guilty, remorse, family support and capacity to work - that is, to do honest work - I regard your prospects of rehabilitation as being guardedly fair.

53I must place fairly strong weight on specific deterrence and protection of the community.  Your counsel submitted that you were an appropriate candidate for the imposition of a gaol term which involved a longer than usual parole period.  Ms French, on behalf of the Crown, submitted that this was not warranted in your case.  Having considered the respective submissions and the offending against the background of all relevant circumstances, I do not accept your counsel's submission.  I cannot do justice to the weight which I must apply to all relevant sentencing matters by acceding to such a submission.  However, in sentencing you, I have given due regard to all matters in mitigation in your case in determining an appropriate non-parole period.

54Would you please stand up?

55You are convicted of the indictable offence and the summary offence.

56I make the disposal order, which is sought by the Crown and not opposed by you.

57You are sentenced to four years imprisonment in relation to Charge 1, and in relation to the summary offence, you are sentenced to two months' imprisonment, one month of which will be cumulative upon the sentence for Charge 1, giving a total effective sentence of four years and one month’s imprisonment.

58I direct that you serve 34 months’ imprisonment before becoming eligible for parole.

59If not for your pleas of guilty, I would have sentenced you to a total effective sentence of six years' imprisonment with a non-parole period of four years’ imprisonment.

60I declare that you have already served 146 days by way of pre-sentence detention which will be deducted from the sentence that I have imposed.

61Could you take a seat for a moment, please?

62Is there anything arising from those sentencing remarks?

63MR MILLER:  No, Your Honour. 

64MS TULLOCH:  No, thank you, Your Honour.

65HER HONOUR:  All right.  Yes, thank you.  If you could please remove Mr Tran.  Thank you.  We will now adjourn.

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