Director of Public Prosecutions v Truong

[2022] VCC 994

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-19-01196

DIRECTOR OF PUBLIC PROSECUTIONS

v

CU TRUONG

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	17 June 2022
DATE OF SENTENCE:	24 June 2022
CASE MAY BE CITED AS:	DPP v Truong
MEDIUM NEUTRAL CITATION:	[2022] VCC 994

REASONS FOR SENTENCE
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Subject:Criminal law

Catchwords:              Causing injury intentionally

Legislation Cited:      Sentencing Act 1991

Sentence:                  4 months' imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Nibbs	Office of Public Prosecutions
For the Offender	Mr R. Backwell	Greg Thomas Barrister & Solicitor

HER HONOUR:

1Cu Truong, you have pleaded guilty on indictment to a single charge of causing injury intentionally.

2In sentencing you for this crime I must have regard to the maximum penalty for the offence you have committed.  The maximum penalty for causing injury intentionally is 10 years' imprisonment.  That maximum penalty reflects the seriousness with which Parliament regards this offence.

3The circumstances of your offending were set out in a document entitled 'Summary of Prosecution Opening for Plea' dated 8 June 2022.  This is an agreed document.  It represents your acceptance of the elements of the offence to which you have pleaded guilty, as well as the facts on which I am to sentence.

Offending

4In terms of the offending, on 2 May 2018 you were on remand at the Metropolitan Remand Centre in Middle Road, Ravenhall.  You were housed in Cell 45 in the Attwood Unit with co-accused Chris Nguyen and Ben Henderson.

5The victim, Dragon Domazet, was also housed in the Attwood Unit and in Cell 51.  Cell 51 and Cell 45 were located on the same tier and side of the Attwood Unit.

6At approximately 9.18 am you, Nguyen and Henderson left Cell 45 and walked to Cell 51 where Domazet was standing with his back to all three of you.

7You and Nguyen started running and, as Nguyen entered the cell, he raised his hand above his head bringing it down hard and stabbing Domazet in the back using a 'shiv' made from a broken toilet brush.

8Domazet turned to fight you and Nguyen.  He attempted to push you out of his cell and you both tried to force him back inside.  

9Domazet was able to force his way from the cell, however, the attack upon him continued, with Nguyen stabbing him a further three times in the back.

10You, Nguyen and Henderson returned to Cell 45 and Domazet returned to Cell 51 where he changed his T-shirt, left his cell and walked outside into the yard as did you and Nguyen.  Henderson hid the shiv under a toilet rim and piece of cloth in a separate cell where each were recovered by prison staff later that morning.

11All prisoners were then locked down in the Attwood Unit when prison staff became aware of the incident.

12Domazet was taken to the Royal Melbourne Hospital where it was identified that he suffered the following injuries:  firstly, a punctured lung;  secondly, a penetrative wound that nicked the right kidney; thirdly, one other stab wound to the back; and, finally, one further stab wound to the neck.

13The entire incident was captured on CCTV footage.  Henderson has since died and Chris Nguyen failed to appear at his trial listed on 5 May 2022.

Offence gravity

14It is the prosecution case that you intended to cause injury to Domazet but did not anticipate that Nguyen would injure Domazet as seriously as he was.  It is not sought that you bear criminal responsibility for the actual stabbing.

15Nevertheless, this is obviously still serious offending.  It has occurred in circumstances where there was two to three persons on one, entering the victim's cell in circumstances where he had little, if any, opportunity to defend himself.  Presumably this was all part of the plan.

16I accept, as outlined by the Crown, that your role was lesser than that of Nguyen.

17I note that there is no victim impact statement but Mr Domazet was obviously affected physically and probably psychologically.  The rest of the unit had to endure a lockdown as a result of your actions.

18In terms of an assault within the prison system, a victim in the circumstances has little choice but to be where he is and has a reduced ability to protect themselves.  Prisoners, who largely rely on prison authorities to protect them from such violence, should be able to see the court as a form of protection against violence from their fellow prisoners in the sentences imposed.

19General deterrence is therefore of considerable import so that others do not follow your example.  This, in turn, is of assistance to the general and safer management of our prison system.

20In your case there is also a history of violence which is relevant to the need for specific deterrence.  I turn now to that history.

Prior criminal history

21Your criminal history commences on 13 July 2000 when you appeared at the Melbourne Magistrates' Court in relation to charges of trafficking heroin, possessing heroin, possessing the proceeds of crime and failing to answer bail.  At that time you were convicted and sentenced to six months' imprisonment to be served by way of an intensive corrections order, an order you contravened.

22Up until your offending in May of 2018 there were then an additional 15 court appearances from 13 July 2000, primarily drug related, including trafficking in drugs.

23Relevantly, on 26 October 2006 you were convicted in the Melbourne County Court for a charge of armed robbery and intentionally cause injury.  You received a total effective sentence of 48 months, with a non-parole period of 24 months' imprisonment.

24On 1 October 2014 you appeared at the Heidelberg Magistrates' Court in relation to a charge of recklessly cause injury and were convicted and sentenced to two months' imprisonment.

25On 22 May 2018, which is subsequent to your offending of 2 May 2018, you received a sentence of one year and five months' imprisonment, with a minimum of 10 months before being eligible for parole.  This was in relation to a large number of matters which included a charge of intentionally cause injury.

26You are not to be punished for these matters a second time but you clearly have a history of violence.  In addition, this history is relevant to an assessment of the need for specific deterrence, that is, putting you off further offending, denunciation and the need to protect the community. It is, of course, also a means of assessing your prospects for rehabilitation.

27Looking at that history, periods of imprisonment do not appear to have deterred you, nor have supervisory orders assisted you.

28The matters which have preceded post-May 2018 are also relevant to assessing your prospects for rehabilitation, as well as being relevant to the principle of totality.  I will turn to that at a later stage.

Personal circumstances

29For now I turn to your personal circumstances.  You are now aged 41 years.

30You were born in Vietnam and came to Australia when aged 10.  You have two younger brothers and two sisters.  You were raised in commission housing in Carlton.

31You achieved a Year 10 education at the Princess Hill Secondary College.

32You left home when aged 15 or 16.  By that stage you were already using illegal substances and commenced your longstanding relationship with heroin which commenced when you were aged approximately 17 years.

33You married in 2012 and your daughter was born in June 2013.  Your relationship with your wife broke down in the context of your substance abuse.  In early 2017 she left with your child and their whereabouts were unknown to you.  This sent you into a spiral of drug use and abuse.

34Tendered on your behalf were two reports authored by Ms Gina Cidoni, psychologist.  I have read each report and neither is the subject of challenge.  Both set out much of your personal history.

35Her report first in time is dated 25 October 2017.  Intellectual testing at that time indicated that you had a Full Scale IQ of 72, where 97 per cent of your age‑related peers would do better.  Ms Cidoni opined that your low cognitive function presented you with challenges in problem-solving, planning and judgement.  She described you as being 'easily led'.

36In Ms Cidoni's subsequent report dated 14 January 2022 you agreed with her that in May of 2018 you had lost control over yourself.  You indicated that you were remorseful for your actions and wanted to put your past life behind you.

37Personality testing at that time reflected stabilisation in your life.  You do not have a personality disorder or clinical condition which augurs well for your future prospects.  You do present with some anxiety, likely to be related to these proceedings.

Plea of guilty

38In terms of your plea of guilty the Sentencing Act obliges me to take into account the stage at which you entered your plea.  Your matter resolved at a directions hearing in November of 2021 and was listed for plea on 18 January 2022 but could not proceed on that day and was instead adjourned to 17 June 2022.  I will return to the relevance of delay at a later stage.

39Given the matter resolved to a significantly less serious charge than that on which you were committed to stand trial, I do consider your plea of guilty to be at an early stage.

40There is clear value in saving the witnesses the need to give evidence and there is extra value in saving the community the expense of contested proceedings. 

41In addition, your decision to plead guilty in the context of the COVID-19 pandemic has additional value as it does provide certainty and finality to all parties in circumstances where the court's operations have been disrupted and many trial dates remain as yet unfixed.

42Based on the materials before me I do accept that your plea of guilty is one of remorse.

43These factors will all be taken into account in your favour.

Delay

44As I have already indicated, the delay you have experienced is relevant to the sentencing exercise.

45The offence occurred on 2 May 2018.  You were not charged until November of 2018.  You were committed for trial on 17 June 2019 but in relation to more serious charges.  A trial hearing listed 14 September 2020 and 5 October 2021 were both vacated related, as I understand it anyway, to the COVID‑19 pandemic.

46I accept, in general terms, that you would have been aware of the likelihood of being charged from May of 2018.  This matter has effectively hung over your head for approximately four years, which I accept would have been an additional stress upon you.  In general terms this period can also be used to assess your prospects for rehabilitation.

47The chronology outlined on your behalf, combined with your criminal history, would, at first blush, indicate that those prospects were somewhat guarded.

48As referred to earlier, you were sentenced by the Melbourne Magistrates' Court on 22 May 2018 in relation to charges which did include intentionally cause injury, drug possession, offences against the Bail Act, dealing with property suspected to be the proceeds of crime, trafficking in heroin and minor vehicle offences.  At that time you were sentenced to a total effective sentence of one year and five months' imprisonment, with a non-parole period fixed at 10 months.  289 days were reckoned as served.

49This offending pre-dated that sentence but you were not charged until November of 2018.

50You did not receive parole from the sentence of 22 May 2018 .

51Whilst ultimately released, you then appeared in the Magistrates' Court jurisdiction on at least three separate occasions and received terms of imprisonment.

52The totality principle is one that requires where an offender is being sentenced to multiple terms, or is otherwise to serve multiple sentences, then the sentencer should ensure that the total sentence remains one which is just and appropriate for the whole of the offending. 

53Had your matter resolved at an earlier stage it could have been dealt with in the Magistrates' Court on any one of those previous occasions.  This is another factor to be taken into account in your sentencing.

54Your most recent release from custody was on or about 22 April 2020.

55In mid-2020 you renewed contact with your wife and daughter.  Your daughter is now aged nine years.  You now reside together in rental accommodation in Moonee Ponds as a family.

56You have maintained some form of employment for approximately two years.  A letter tendered by your current employer, Montefiore Cheese, indicates that you have worked for that company since June of 2021.

57You are presently drug-free and have apparently stayed out of trouble.

58Your parents reside in Lalor with one of your brothers.  Three other siblings live independently.  You are well-supported by family.  Your father and partner were present for your plea hearing.

59Your prospects for rehabilitation at this point in time appear to have been markedly improved and I accept that you are highly motivated to keep the stable way of life you have now attained.

Sentencing

60In terms of sentencing, a term of imprisonment is conceded by both parties but described by your counsel as 'a short sharp shock' in order to properly address all relevant sentencing considerations.

61The basic purposes for which a court may impose a sentence are punishment, both general and specific deterrence, rehabilitation, denunciation, as well as protection of the community.  In sentencing you I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim.

62I must also balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, where possible, that offenders are rehabilitated and are safely reintegrated into society. 

63I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 where relevant to your case. I have taken into account current sentencing practices for the offence you have pleaded guilty to, as well as the principles of totality and proportionality. I do see your plea and the delay as significant matters in the sentencing exercise, as well as your more recent efforts to have a positive way of life.

64Accordingly, on the single charge of cause injury intentionally, you are convicted and sentenced to four months' imprisonment.  I reckon seven days as having already been served. 

65Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed had you not pleaded guilty to the charge.  If not for your plea of guilty you would have received a sentence of 12 months, with a minimum of six months before being eligible for parole.

66Mr Nibbs, anything I've missed from your end?

67MR NIBBS:  No, Your Honour.

68HER HONOUR:  Mr Backwell?

69MR BACKWELL:  No, Your Honour.

70HER HONOUR:  All right.  I thank you for your assistance, each of you.  Otherwise I close the court until Monday.  Thank you.

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