Director of Public Prosecutions v Tran, Allan

[2012] VCC 2073

7

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-12-01402

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALLAN TRAN

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	19 December 2012
DATE OF SENTENCE:	21 December 2012
CASE MAY BE CITED AS:	DPP v Tran, Allan
MEDIUM NEUTRAL CITATION:	[2012] VCC 2073

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms C. Parkes
For the Accused	Mr T. Marsh

HER HONOUR:

1       Allan Tran, you have pleaded guilty to one charge of armed robbery, which occurred on 9 June 2012.  That day, at 5 am you hailed a taxi at the intersection of Southbank Boulevard and Sturt Streets in Southbank.    You directed the driver to drive to Crown Casino, then altered your directions to him more than once, with the taxi ending up in Coventry Street.  The driver stopped, as directed by you, and turned the meter off and asked for his fare of $10.80.  You told the driver that you were very sick, and indeed the driver made that observation, that you appeared to be very tired and very sick, or as if you were under the influence of drugs.  You then asked him for the car keys, and the driver pressed the emergency button and tried to talk to you while he did so.  You told him "Look man, I'm a professional, just do what I tell you to do." 

2       The driver then  saw that you were holding a large knife, pressing it against the back of the front passenger seat.  He was very scared, and asked you what you wanted.  You replied "I want money, I don't want to hurt you.  Turn off the engine and lights and give me the keys."  The driver complied, but kept the lights on, and told you he would give you money.  You asked him if he had insurance, to which he replied that he did not, that he was "new here" and was a student and had a family.  You said you were sorry he did not have insurance, but you took the $1000 cash offered to you.  You then left and ran down St Kilda Road towards the city. 

3       The incident was captured on the security camera in the car.  Soon afterwards, you were at Tullamarine Airport and were filmed there by the security cameras just before you boarded a flight to Hamilton Island where you spent the weekend with your family.  The police released the images captured in the taxi to the media, and later received an anonymous call from a person who recognised you.  Police came to your home on 12 June and arrested you.  During the interview you denied committing the offence and denied that you were the person shown in the images.  You also said it was possible the incident had occurred and you could not remember.  You were charged and released on bail.  You later made a further statement explaining that you had been mentally unwell at the time of the incident and since, that your treatment had been changed, and you had been doing well, and you were very remorseful.  You had just successfully completed your period of parole after your release from prison, where you had served a sentence for two charges of armed robbery, and a charge of attempted armed robbery. 

4       You background is that you are aged 29, and the son of parents who came here from Vietnam as doctors, who then studied to qualify for practice here.  They put a premium on the importance of education for you and their other children, and indeed your brother is a physiotherapist and your sister a veterinary surgeon. 

5       You exhibited behaviour problems as a school boy, such as to require you to leave two private schools at middle school level, and you eventually completed your secondary education at a third school, interrupted by being sent to Vietnam for a year as a means of denying you access to drugs.  You did well at school, where you were captain of your house, and excelled at sport. 

6       You graduated with a degree in international business at RMIT, and were employed as an analyst at the ANZ bank.  However you began using drugs again, and your mental health declined, with the emerging symptoms of bipolar affective disorder.  You were involved in an episode of aggression at work and you lost your job. 

7       Your psychiatrist prescribed benzodiazepines, and you abused them, and you  were eventually admitted to hospital as an involuntary patient.  There followed difficult times adjusting to medication, and tensions within your family. 

8       You again went to Vietnam for a few months, but by April 2009 further difficulties with medication, abuse of alcohol and drugs, as well as family tensions, led to you being ejected from home, and you lost your job as well.

9        I note that these matters were set out in some detail in the sentencing remarks of Her Honour Judge Patrick when she sentenced you on 28 January 2010 for two charges of armed robbery, and one charge of attempted armed robbery.  Those matters occurred in May 2009 when you on two separate occasions used a knife to threaten victims whilst demanding money from them.  Her Honour sentenced you to three years' imprisonment, with a non-parole period of 18 months.

10       I also note at this point that your parents have written a letter explaining their profound and longstanding concerns for you, and their belief that you are capable of leading a better life if you accept your mental illness and adhere to treatment. 

11      On your release from prison you took up postgraduate studies at RMIT, and you have now almost completed a Master’s of Business Administration.  Having returned to treatment with your psychiatrist, Dr Schutz, you decided to cease taking medication, and turned to alcohol and the medication known as Imovane to counteract the anxious and elevated mood swings you were experiencing.  It was in this state that you committed the present offence. 

12      Following the incident, and after the weekend spent with your parents on Hamilton Island, a CAT team was called because of your condition, and you were admitted to hospital on that occasion. 

13      This is a serious offence, with a maximum penalty of 25 years' imprisonment.  The victim was what is often called a soft target, a person in the position of being unable to defend himself, someone offering a service to the public.  The taxi driver stated that he suffered emotionally because of the fear he experienced, and the loss of the money you took, and his lost income, and those matters had a very big impact upon him. 

14      Despite those consequences, the threat you made to him may, as your counsel Mr Marsh put it in his plea submissions, properly be described as being at the lower end of the range of seriousness.  Mr Marsh also correctly said that as this is  unfortunately a  prevalent crime, it follows that general deterrence must be the focus of the penalty.  The court must strongly denounce such crimes, and people tempted to commit them must know that if they do so they will be punished severely. 

15      In this case, it is a mitigating factor that you carried out the armed robbery with a lack of sophistication, with no disguise and in the obvious presence of a security camera.  There was no planning except for the fact that you instructed the driver to drive around apparently aimlessly, and that could be interpreted as a period of planning, and it is not an unreasonable inference to draw. 

16      The driver's observations of what you said about your health confirm your state of mind as being affected by prescription medication and alcohol, but falling short, as Dr Nicholas Owens said in his report, of mental health impairment.  You knew what you were doing and that it was wrong. 

17      Dr Owens, a forensic psychiatrist, assessed you in September 2012.  He stated that he had spoken with Dr Schutz, whose diagnostic opinion is that you have a complex constellation of problems, including bipolar disorder, features of narcissistic personality, alcohol and substance abuse, all of which tend to impact on your behaviour to varying degrees.  Dr Owens concluded that your untreated bipolar disorder may have reduced your moral culpability for the offending behaviour.  This would also mean a prison sentence would likely weigh more heavily upon you than on others.  But Dr Owens also pointed out that by your decision to cease taking medication, you took responsibility for the crime, as you did also through your understanding that it was wrong behaviour. 

18      Therefore the sentence I impose should be sensibly moderated to some small degree, bearing in mind that your mental illness may have made it more difficult for you to learn from the consequences of your previous similar behaviour. 

19      The other mitigating factors include your early plea of guilty, which entitles you to a discount on your sentence, because of its assistance to the criminal justice system by the avoidance of a trial.  You made full admissions when you were interviewed, and admitted your identity on the CCTV footage.  You have reasonable prospects for rehabilitation, demonstrated by your remorse, your motivation to succeed academically, as you have demonstrated, and your family support.  While these factors have not always served you well in the past, a hope still exists that you will be able to benefit from stabilisation of your illness through treatment, and from increasing maturity, and that you will not offend again. 

20      The sentencing range submitted as appropriate by Ms Parkes on behalf of the prosecution was for a head sentence of between two and a half and three years, and a non-parole period of between one and a half and two and a half years.  Having taken into account the seriousness of the charge and the mitigating factors I have described, I will sentence you at the lower end of that range.  Would you stand now please, Mr Tran. 

21      I sentence you to a term of imprisonment of two and a half years, and I direct that you must serve 18 months before being eligible for parole.  If you had pleaded not guilty to this charge, I would have sentenced you to three years and four months with a non-parole period of two and a half years. 

22      The prosecution seeks an order that you pay compensation to the taxi driver in the some of $1500, and I do not think I have heard from Mr Marsh as to your instructions.

23      MR MARSH:  I promised I'd seek instructions about that, Your Honour, I have, and the order is consented to.

24      HER HONOUR:  Thank you.  Therefore, you having consented through your counsel, I make that order.  Are there any other matters, Ms Parkes?

25      MS PARKES:  Your Honour, just for the sake of the record, the upper end of the range was three and a half years, not three years. 

26      HER HONOUR:  Was it?

27      MS PARKES:  Yes.

28      HER HONOUR:  That's my mistake, I'll correct that.  Mr Marsh, any other matters?

29      MR MARSH:  Sorry, Your Honour, I was scrawling furiously then, could Your Honour just repeat what the 6AAA declaration was?

30      HER HONOUR:  The 6AAA was three years and four months.  And a non-parole period of two and a half years. 

31      MR MARSH:  Thank you, Your Honour, I'm most grateful.

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