Director of Public Prosecutions v Tran
[2015] VCC 1152
•21 August 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-14-01480
Indictment No. E11742800
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANH HUNG TRAN |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 August 2015 | |
DATE OF SENTENCE: | 21 August 2015 | |
CASE MAY BE CITED AS: | DPP v Tran | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1152 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Recklessly cause injury – Affray – importance of specific and general deterrence - Community Correction Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Parkes | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr J. Hannebery | Slater & Gordon |
HIS HONOUR:
1 Anh Hung Tran, you have pleaded guilty to one charge of recklessly causing injury and one charge of affray.
2 The circumstances of your offending are as follows:
3 In the early hours of 24 November 2013, you were in attendance at the Bass Lounge Nightclub in Melbourne with a group of friends. You left that club at about 2.27 am and stood near its entrance with four other males.
4 About 2.34am, whilst you were still standing outside the nightclub, a person, (who I will refer to as “the victim”) left the club with another male and two females. He went to walk past you and your group. As he passed by he was pushed and then hit in the back of the head, and then set upon by members of your group. You took the victim in a headlock and pulled him to the ground where he remained. You stepped away. However, you remained close by and watched on as the other members of your group, and possibly other people, continued the attack upon him. The victim was punched and kicked on numerous occasions whilst he was on the ground. He lost consciousness but the assault continued. He was punched and kicked on a number of occasions whilst he was on the ground and whilst he appeared unconscious. You and your group then ran away from the scene.
5 The incident was partially captured on Closed Circuit Television (CCTV). A copy of that film was tendered I have perused it.
6 Police and ambulance were called. The victim was subsequently taken to the Royal Melbourne Hospital.
7 As a consequence of the attack upon him, the victim suffered from:
· Bleeding to the brain;
· Bruising, swelling and bleeding to his face and head;
· Multiple lacerations to his face and head;
· A fractured nose;
· Post-traumatic amnesia.
8 He remained in hospital for some 17 days. A recent report from his General Practitioner, which was tendered, indicates that he continues to suffer from depression and anxiety symptoms. He has been prescribed anti-depressant medication since that time. He has a number of mental health issues related to his head trauma.
Background
9 By way of background, you were born in 1987. At the time of your offending you were aged 26. You are now 28.
10 You were born in a refugee camp in Indonesia, after your parents had fled Vietnam in the mid-1980s. When you were aged about one, your family migrated to Australia. You and they spent some time in Sydney and then Queensland, before settling in St Albans in Victoria. You have, until the present time, always lived in your parents’ home.
11 By way of education you completed Year 10 at Copperfield Secondary College but left school part-way through Year 11. After leaving school you worked as a factory worker, eventually undertaking training as a forklift driver and you are currently still employed in that capacity.
12 You and your former partner have a seven-year old-son. In a character reference written by her she describes the significant role that you have played in the upbringing of your son and the tight bond that you share with him.
13 You have been in a relationship with your current partner for about two years.
Prior Convictions
14 You have prior convictions in New South Wales in 2009 for supplying a prohibited drug and dealing with property suspected of being the proceeds of crime. You received a suspended sentence. I accept your counsel’s submission that these prior convictions are of minimal relevance when assessing your current prospects of rehabilitation.
Sentencing Principles
15 Section 5 of the Sentencing Act provides the purposes for which sentences may be imposed. Principally, these include the need to punish you for your offences in a manner that is just in all of the circumstances, to deter you and others in the community from committing similar offences in the future and to manifest the court’s denunciation of your offending, and to protect the community from you.
16 Here, specific and general deterrence and the denunciation of your offending are of particular significance. Violent, alcohol-fuelled attacks such as this committed in public places in the early hours of the morning are relatively common and of great concern to the community in general. It is important that my sentence condemns such behaviour in strong terms.
17 I take into account that in the period of 21 months since your offending, there is no evidence that you have breached the law.
18 In addition, I have taken into account each of the matters set out in s.5(2) of the Sentencing Act.
19 In particular, I take into account:
(a) The maximum penalty imposed by Parliament for the offence of recklessly causing injury is five years' imprisonment. The maximum penalty for the offence of affray is also five years' imprisonment. Those penalties demonstrate the seriousness with which Parliament views those offences.
(b)I take into account the nature and gravity of the offences. Here I take into account that you were part of a group of about five people who attacked the victim when he was, to all intents and purposes, alone. The offences were serious. Your offending can rightly be described as cowardly.
(c)I take into account your culpability and responsibility for the offence.
You were not the only one involved but you played a significant part in it. I am satisfied that the victim was initially pushed and shoved by other people. You then came at the victim, placed him in a headlock and wrestled him quickly to the ground. It was whilst he was on the ground and virtually defenceless that he was punched and kicked, and no doubt suffered many of the injuries caused to him. Although you did not punch or kick him, your act in placing him in a headlock and manoeuvring him to the ground should not be underestimated. Your actions rendered him virtually defenceless against the attack that followed.
(d) I take into account the impact of the offence on the victim himself.
He chose not to make a victim impact statement. However, it is clear that his injuries were serious. Medical evidence put before me makes it plain that he suffered significant, long-term, and possibly permanent, injuries as a consequence of the attack upon him.
(e)I take into account your personal circumstances, which I have already dealt with. In particular, I take into account that you are in full-time employment and that you have a young son.
(f) Finally, I take into account that you have pleaded guilty to these offences and the time that you did so.
Here, you did offer to plead to the affray charge alone as far back as August 2014. Eventually you agreed to plead guilty to the two charges in May 2015, some 18 months after your offending. You plea does have a utilitarian value. Witnesses have been relieved from the need to attend court to give evidence, a matter which would no doubt have been distressing for them.
Mitigating factors
20 There were a number of mitigating factors which your counsel submitted went in your favour.
21 I accept that you have shown some signs of remorse.
22 I have read the report of Mr Patrick Newton, psychologist, dated 4 August 2015. I note his comments concerning your background of heavy binge drinking and your comments to him that, at the time of these offences, you were significantly affected by alcohol. No doubt you were affected by alcohol but your appearance in the CCTV footage does not lead me to conclude that you were particularly intoxicated. To all intents and purposes, you might well have been sober, from your appearance on that CCTV.
23 I consider that further education concerning the link between alcohol and behavioural problems would be desirable. I note further Mr Newton’s recommendation for you to participate in a program of counselling and education to improve your conflict management skills.
24 I have taken into account a number of references that were tendered on your behalf. In particular I note the letters from your ex-partner concerning the role that you play in the upbringing of your son, and I have taken into account particularly the comments of your current employer.
25 It seems that you continue to enjoy considerable support from your family and friends.
26 You are in full-time employment. Your employer is aware of these offences and appears to be prepared to continue to employ you. In all the circumstances, it is desirable for you to continue in full time employment, if possible.
27 I accept your counsel's submission that your prospects of rehabilitation are relatively good.
Sentence
28 Your counsel has submitted to me that an appropriate penalty in your case would be the imposition of a Community Corrections Order rather than sentencing you to an immediate term of imprisonment.
29 I am in possession of a report from Corrections Victoria dated 11 August 2015 in which the author states that you are assessed as suitable for a further Community Corrections Order.
30 I am satisfied that a sentence not involving further conferment can achieve the sentencing purposes to which referred previously. I have determined that it is appropriate to sentence you to a Community Corrections Order, should you consent to one being made.
31 It is my intention to sentence you, on an aggregate basis, to a two and a half year Community Corrections Order subject to a number of conditions. As I say, I would only impose such a sentence if you consented to it and the conditions proposed. Before I ask whether you do consent, I need to tell you what those conditions would be.
32 Firstly, there are the mandatory conditions, as set out in s.45 of the Act:
(a) That you must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;
(b)That you comply with any obligations or requirements provided by regulations;
(c)That you must report to, and receive visits from, the Secretary of the Department of Justice, or his or her nominee, as directed, during the period of the order;
(d)That you must report to the Sunshine Community Correctional Services at 10 Foundry Road, Sunshine, within two clear working days from today; today is Friday, you have to do it by Tuesday, at the latest;
(e)That you must notify the Secretary of any change of your address or employment within two clear working days after that change;
(f)You must not leave Victoria, except with the expressed permission of the Secretary; and
(g)That you must comply with any direction given by the Secretary that is necessary in order to ensure that you comply with this community correction order.
33 In addition to those mandatory terms, there will be further conditions. Firstly:
(a)That you perform 300 hours of unpaid community work during the course of the two and a half year order, pursuant to s.48C of the Sentencing Act;
(b)That you undergo treatment and rehabilitation, as directed by the Secretary of the Department of Justice, with regard to alcohol abuse or dependency pursuant to s.48D(3)(b) of the Act; and
(c)That you undertake a program or engage in services, as directed by the Secretary, which address violence and anger management, pursuant to s.48D(3)(g) of the Act.
34 I have had regard in drafting these proposed orders to the information, matters and recommendations made in the Corrections Victoria report.
35 Before asking you whether you consent to such an order, you may wish to confer with your counsel or solicitor concerning those proposed conditions.
36 MR HANNEBERY: They've already been explained, Your Honour, in the report.
37 HIS HONOUR: Have they? All right. It is important that you understand, Mr Tran, that if you were to breach any of the terms of the Community Corrections Order, that would constitute an additional breach of the law it itself, punishable by law. The effect of it would be that you would come back before me to be re-sentenced in respect of these offences. That is, the recklessly cause injury and the affray offences. You would come back to me re-sentenced afresh.
38 Do you consent to such an order being made?
39 OFFENDER: Yes.
40 HIS HONOUR: My Associate will provide you with a document for you to sign acknowledging that you are aware of the conditions for the purpose of the order.
41 Pursuant to s.6AAA of the Sentencing Act, I declare that had you not pleaded guilty to these offences, I would have sentenced you to a total effective term of imprisonment of 18 months, with a minimum non-parole period of 12 months.
42 Ms Kohn, are there any other ancillary orders sought?
43 MS KOHN: Yes, Your Honour. A forensic sample order, the taking of a forensic sample.
44 HIS HONOUR: What's that? 464ZF?
45 MS KOHN: Yes, Your Honour.
46 HIS HONOUR: Have you got the order here or was it handed up to me last time?
47 MS KOHN: I have a draft order.
48 HIS HONOUR: If you could just hand that up please? The order I'm making, Mr Tran, under s.464ZF of the Crimes Act is that you undergo a forensic procedure for the taking of a scraping from your mouth and/or a blood sample, in accordance with sub-s.30a of Part III of the Crimes Act, until a sample of sufficient standard is obtained for placement on the database.
49 I should tell you that I'm making the order because of the seriousness of the circumstances of the offending, and also because the order is made by consent. I should nevertheless bring to your attention that in the event that you do not consent to such a sample taken, Victoria Police may use reasonable force to obtain such a sample.
50 That is the only ancillary matter?
51 MS KOHN: Yes, Your Honour.
52 HIS HONOUR: Do either you, Mr Hannebery or your instructing solicitor wish to have a look at these documents before they're signed by your client?
53 MR HANNEBERY: If I could approach the Dock, Your Honour?
54 HIS HONOUR: Yes. I just want to say one further thing to you, Mr Tran. You would be frankly living in a cave if you had not read newspaper accounts of these sorts of beatings that have occurred, not only in the area of nightclubs such as you attended that night, but elsewhere in Victoria. You would be well aware that on some occasions people have died as a result of such beatings. It is perhaps fortuitous for you that this particular person didn't die, but nevertheless, has suffered serious, possible permanent injuries as a consequence.
55 As I said to you in the course of my reasons before, this was a cowardly act involving a virtually defenceless man outnumbered five or six to one. You should have a long, hard look at yourself. You've been given an opportunity today by my not sentencing you to prison. If you were to come back before this court, or any other court in Victoria, for similar offences in the future, I wouldn't count on being so lucky. Thank you.
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