Director of Public Prosecutions v Truong
[2014] VCC 1399
•7 August 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Indictment No. E10855815
Case No. CR-14-00977
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BAO TRUONG |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 August 2014 | |
DATE OF SENTENCE: | 7 August 2014 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Truong | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1399 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty - Aggravated burglary – Trespass – History of substance abuse
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Summary Offences Act 1966
Sentence: Total Effective Sentence - Four years and six months’ imprisonment with a non-parole period of three years’ imprisonment and fine of $100 - Sentencing Act 1991 s.6AAA declaration: Six years and six months’ imprisonment with a non-parole period of four years’ imprisonment and fine of $200.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Ayres | Solicitor for Office of Public Prosecutions |
| For the Accused | Ms J. Pisasale | Slade & Parsons |
HER HONOUR:
1 Bao Truong, you have pleaded guilty to one charge of aggravated burglary and to a summary charge of trespass. Aggravated burglary has a maximum penalty of 25 years’ imprisonment, which reflects the seriousness with which Parliament regards this offence. Trespass has a maximum penalty of six months’ imprisonment.
2 Your offending was opened as follows: You had previously been in a long-term de-facto relationship with Ms Yen Lai, with whom you have two teenage children. Lai resides at Unit 2, 12 Albert Avenue, Springvale, where you had previously lived. She was employed at a shop owned by a Ms Thuy Diem Tran, who was aged 33, and who resided at an address in Glendale Road, Springvale. You had known Ms Tran for about ten years and had visited her house on many occasions.
3 On Tuesday, 4 March 2014 at about 10.30 am, you and a male friend attended at 12 Albert Avenue, Springvale, in order to retrieve some of your personal belongings from the unit which you had shared with Ms Lai. No one was inside the premises at this time. You climbed up a vent pipe against the rear wall of the unit and managed to gain entry to the premises through an unlocked toilet window. This gives rise to the summary charge of trespass.
4 Shortly afterwards, Ms Lai returned home with her son and saw you trying to climb back out of the premises through the bathroom window. After a brief argument inside the house, you ran out the front door and left the scene.
5 On Friday, 7 March 2014 at about 9.30 am, you attended Ms Tran's address in Glendale Road, Springvale, in possession of a large meat cleaver. No one was inside the house at this time. You walked around the side of the house and smashed open a rear lounge room window and climbed inside the premises. This gives rise to Charge 1 on the indictment, Aggravated burglary.
6 You proceeded to ransack the house, searching for items of value by rummaging through various cupboards and turning over items of furniture. At one point you found a safe inside a cupboard in the master bedroom, which you attempted to force open by removing the door handle, but you were unable to open it.
7 At about 10.00 am, Ms Tran returned home and heard a disturbance at the back of the premises. She went to investigate and saw you climbing out of the smashed rear lounge room window, whilst holding the meat cleaver in your hand. She immediately recognised you as the person who had visited her house the day before. You fled the scene without taking anything from the premises and dropped the meat cleaver on the ground outside the broken window. Ms Tran ran away from the house in fear and called police.
8 On Saturday 8 March 2014, you were detained after being observed walking along Sandown Road in Springvale, whilst being heavily intoxicated. It was ascertained there was an outstanding warrant in relation to you, and you were then conveyed to Narre Warren Police Station, though you were initially deemed unsuitable to be interviewed.
9 On Sunday, 9 March 2014, you were interviewed and answered “no comment” to questions regarding the offending.
10 You were arrested on 8 March 2014. At a committal mention on 3 June 2014, the matter proceeded by way of straight hand-up brief, with you indicating an intention to plead guilty to one charge of aggravated burglary. A related summary charge of trespass was transferred to this court.
11 Whilst the summary charge is technically made out and does not reflect well upon you, it was committed in circumstances where you had previously been living with Ms Lai and had gained access without damaging the property.
I take into account that you entered the premises in order to obtain your belongings, although you did so, knowing that you were not welcome there, and ought to have arranged to collect them in a more civilised fashion.
12 In relation to the aggravated burglary, the weapon which you had with you at the time was a most frightening one. Although you did not wield it when confronted with Ms Tran’s arrival, your presence in her home with this most threatening looking weapon must have been most frightening for her, which is indicated by her reaction in fleeing the premises at that time. Fortunately for Ms Tran and for you, you fled the scene as soon as she had discovered you, taking nothing.
13 Your counsel said that you had attended the property that day in order to assist with sugar cane stripping, in a bid to make amends for an argument you’d had with Ms Lai the previous day. However, your counsel said that you had a change of heart when you arrived at the premises and instead of using the meat cleaver for stripping sugar cane, you used it for smashing the window, entering Ms Tran’s home with the weapon. The prosecution did not contest that the meat cleaver was an instrument used for stripping sugar cane, however they did submit that your actions in attending the premises were premeditated, and invited me to reject your explanation, referring to depositional material.
14 In her statement, Ms Tran said that you had assisted in certain tasks in the garage, however stripping sugar cane was not expressly said to be one of these.
15 In the end, although I am of a view that you probably did attend the premises with the intention of breaking in to steal property, in view of the explanations which you gave through your counsel, I am not satisfied of this beyond reasonable doubt and therefore I sentence you on the basis that the aggravated burglary was not premeditated. Notwithstanding this, I view your offending as serious, because of the weapon you had at your disposal at the time and the fact that the complainant happened upon you when she returned to her home, which was a place she was entitled to feel safe in.
16 Further, you ransacked her home and caused damage to her safe and the window. Your conduct is deserving of a punishment which is just in all the circumstances and must be denounced. I place significant weight on general deterrence in a bid to deter others from offending as you have.
17 You have a most substantial criminal history, even allowing for the pages devoted to breaches of a Drug Treatment Order. The learned prosecutor told me that you had 16 separate court appearances, in addition to breaches of the Drug Treatment Order. You have in the order of at least 115 prior convictions, including seven prior convictions for burglary and three for aggravated burglary. You also have prior convictions for drug offences and failing to appear. Although you have been given the benefit of a number of dispositions in the past, involving drug treatment, you have reverted to drug abuse and committing offences. I was told that the total period thus far for which you have been sentenced to gaol, is about seven years. Your criminal history gives me grave cause for concern in terms of your prospects of rehabilitation and is most relevant to the weight which I need place on specific deterrence and for the need to protect the community.
18 By way of background, I was told that you are now 39 years old. You were born in a province of China and have 13 siblings. You and your family lived in poverty and your parents were harassed by the Communist Party. Your parents constantly lived in fear. When you were 12 years old, your parents arranged for you and two of your brothers to escape to Hong Kong, where you remained until 1990, when you then travelled to Perth in Western Australia. You attended school in Perth for about six months, then travelled to Melbourne, where you lived with an aunt and uncle. You were 15 years at this time. You enrolled in Footscray Secondary School, remaining in your aunt and uncle’s care. Unfortunately, in 1993, as your uncle and aunt were struggling financially, they asked you and your brothers to leave. You did not know what to do and for the ensuing few years, you and your brothers effectively couch surfed.
19 To your credit, you continued to attend school, however this became too difficult to manage financially, forcing you to leave in the middle of Year 12. You became mixed up with negative peers and started to use heroin and marijuana. Your heroin habit led to you using the drugs intravenously, up to two grams a day, when you were 16 years old, at which time your offending started, which was essentially a product of your drug addiction. You also used marijuana regularly and continued this until you were 29 years old. At that time, you ceased using marijuana, as you did not like the effects of the drug. I was told that in your teenage years and into your 20s, your life was punctuated by drug use. You were introduced to amphetamine when you were 32 years old. You used .2 of a gram, two to three times a week, for five or six years. I was told that when you commenced taking drugs, you felt hopeless and desperate about your situation.
20 Your offending commenced in 1994. In 1995, you met Yen Lai, who is the victim of the trespass charge and mother to your two sons. Your children are now 16 and 13 years old. Your relationship with Ms Lai has been of an "on and off" nature, punctuated by arguments and your incarceration from time to time.
21 You have very little in the way of a work history. You worked for two years in carpentry when you were younger, then for one year as a fitting supplier in a factory.
22 In 1995, you returned to Vietnam to visit your parents, however, you have not visited them since. I understand that you do maintain contact with them.
23 In 2009, one of your brothers, Hung, was deported because of his criminal offending. Your other brother remained in Australia and has a wife and children. He has no criminal history. You have limited contact with him.
24 Up to the time of the offending for which I now sentence you, you were residing with your wife and two children, although prior to the aggravated burglary and trespass, you had been told to leave your partner’s home. Following this offending, an Interim Intervention Order was put in place which will shortly become final, with your consent. This will deprive you of an ability to see your children, I am told, however, you are prepared to consent to the order as a gesture to your partner, acknowledging what you have done and in a bid to give her some peace of mind.
25 Your counsel told me that your pattern has been to commit offences when in the community, in order to fund your drug habit, but to abstain from drug use whilst in gaol. Your counsel told me that in relation to the aggravated burglary, this was committed in circumstances where you were upset about your separation from your partner and also had no money to support yourself in any way. As at that time, although you were still using heroin, you had reduced your intake to one or two occasions per fortnight. Before committing the aggravated burglary, you had taken a Valium tablet and you apparently were not thinking straight.
26 Your counsel said that you did not accept that you had visited Ms Tran the day before the aggravated burglary, as the prosecution alleged. She said that your thinking shifted from a gesture seeking forgiveness, to an idea to break into Ms Tran’s premises upon arriving there. Because you were affected by Valium, your recollection of the aggravated burglary was somewhat vague.
I factor in that you derived no benefit from this offending. Your counsel said that when you saw Ms Tran, you did not wish to aggravate the situation any further and left. This may be so, however, I have little doubt that part of your thinking was to evade detection by having the victim, whom you knew, identify you.
27 Whilst the aggravated burglary was committed in circumstances where you had broken up from your partner, your motive in committing the offence was to obtain items or money which were not yours. This is not the first time that you have committed such an offence, albeit that on this occasion, there was a backdrop of a volatile domestic situation.
28 Your counsel said that when you are released, you have resolved to remove yourself from drugs and negative peer influences, although it was not suggested that you committed the aggravated burglary to fund a drug habit or that your peers influenced you to commit the offences before me. However, your resolve in these respects will assist in your rehabilitation, as past offending has been closely connected to drug use.
29 In your favour, I take into account your early plea of guilty, which has saved the witnesses, especially the victims, the time and trauma of giving evidence and you have saved the community the time and expense of contested proceedings. You are therefore entitled to a significant discount in the sentence you would otherwise receive.
30 I am satisfied, on the balance of probabilities, that you have some remorse for your actions in respect of the trespass matter, which is demonstrated by your proposed consent to a final Intervention Order being made against you. This will mean that you will be unable to have any contact with your former partner or your children.
31 In respect of the aggravated burglary, albeit that you have taken responsibility for it at an early stage, there is nothing beyond your early plea of guilty, which manifests much in the way of remorse. Against a background of three previous convictions for aggravated burglary amongst other matters, an assertion of contrition by your counsel without more, will not suffice.
32 I have factored in that this is your first appearance in the County Court, other than on appeal from the Magistrates’ Court. I have also borne in mind that the previous aggravated burglaries were all committed without the use of a weapon, but rather on the basis of “person present”. However, either circumstance of aggravation is concerning.
33 I make allowance for the fact that you will not receive any visitors whilst in gaol, making time in prison more difficult for you than for others who are able to receive visits. Having said this, I understand that you have spent your time on remand in a productive fashion and have some companionship afforded you by the prison guards, whom you assist with the running of the unit insofar as you are able.
34 You have applied to undergo a drug treatment course whilst in custody but unfortunately there is a lengthy waiting list for the program. This is a most regrettable situation for you and other prisoners in the same predicament and also for the community, who has an interest in being protected from criminal offenders with healthy drug habits.
35 Whilst on remand, you have engaged in a good deal of exercise and have an interest in pursuing a career as a personal trainer upon your release.
I encourage you to do so. It may well be that you can use such talents to help youths from disadvantaged or troubled backgrounds, gain a sense of
self-worth. In view of your background, you might well have a good deal of empathy and insight to offer.
36 Mr Truong, you are now 39 years old and you have hopefully reached a stage where you will contribute positively to society and be a positive role model for your children; if you choose not to, you will spend a good deal of your future in gaol, if you live to do so.
37 In all of the circumstances, I regard your prospects of rehabilitation as rather poor, but there is a glimmer of hope, in view of the fact that you are getting to the stage where drugs and a criminal lifestyle may not have the attraction that they once did in your life. I must place significant weight on specific deterrence and protection of the community, in view of your offending on this occasion and in light of your criminal history.
38 Your counsel and the prosecution agree that an immediate term of imprisonment is warranted and your counsel urged me to impose a parole period, which is what I intend to do. This will be the first time you have the prospect of being supervised on parole, which in my view, is in everyone’s best interests.
39 Whilst I have had some regard to the sentencing snapshot for the offence of aggravated burglary, this does not overly assist me. There are a whole variety of circumstances in which these offences are committed by offenders with a whole array of personal backgrounds.
40 It is certainly not the most serious example of this kind of offending, insofar as the aggravated burglary is concerned; however, in sentencing you for this offence, I have had to factor in the weight I need give to the relevant sentencing principles to which I have referred in the course of my sentencing remarks.
Would you please stand up Mr Truong.41
42 Firstly I make a Disposal Order in the terms set out in the draft documents previously provided to me, which orders are consented to by you.
43 In relation to the summary charge of trespass, you are convicted and fined $100. I will grant a stay of six months in relation to payment of the fine.
44 In relation to Charge 1 on the indictment, aggravated burglary, you are convicted and sentenced to four years, six months imprisonment, with a
non-parole period of three years before becoming eligible for parole.
45 If not for your pleas of guilty, I would have sentenced you to six and a half years imprisonment, with a non-parole period of four years in respect of the aggravated burglary and I would have convicted and fined you $200 in relation to the trespass charge.
46 I declare that you have already served 152 days pre-sentence detention, which will be deducted from the sentence I have just imposed.
47 Please take a seat for a moment, Sir.
48 Is there anything arising from the sentence?
49 COUNSEL: No, Your Honour.
50 HIS HONOUR: All right, thank you. Yes, you might remove Mr Truong, thank you. We will now adjourn.
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