Director of Public Prosecutions v Truong

[2020] VCC 821

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00700

DIRECTOR OF PUBLIC PROSECUTIONS

v

KIET TRUONG

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	5 June 2020
DATE OF SENTENCE:	10 June 2020
CASE MAY BE CITED AS:	DPP v Truong
MEDIUM NEUTRAL CITATION:	[2020] VCC 821

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty – Attempted Armed Robbery; Extensive criminal history; History of chronic schizophrenia
Legislation Cited: Crimes Act 1958
Cases Cited:
Sentence: Total effective sentence of 2 years 3 months imprisonment with a non-parole period of 18 months – Pre-sentence detention of 547 days declared as having been served – s.6AAA declaration – 3 years with a non-parole period of 2 years 3 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Sprague	OPP
For the Accused	Mr C. Pearson	Greg Thomas Barrister & Solicitor

HIS HONOUR: 

1Kiet Quoc Truong, you have pleaded guilty to one charge of attempted armed robbery, contrary to s.321M and 75A of the Crimes Act 1958. The maximum penalty for that offence is 20 years' imprisonment.

2You pleaded guilty following committal to this court, and consideration being given as to whether you are fit to stand trial or mentally impaired at the time of your offending.  At committal, the matter proceeded by way of hand-up brief with no witnesses being called.  In such circumstances, I have treated your plea of guilty as an early one, and I have taken it into account in your favour in mitigation of sentence. It is significant that the victim of your offending, a 73-year-old vulnerable woman, was not required to give evidence at committal proceedings or at a trial.

3You have admitted an extensive criminal history dating to 1997 for a range of offences including weapons offences, offences of violence and aggravated burglary, trafficking heroin, and dishonesty offences.  You have breached a number of dispositions ordered by courts to support your rehabilitation, and short terms of imprisonment imposed upon you have failed to deter you from offending.

4A prosecution opening was tendered in evidence and your offending on this occasion may be summarised as follows –

5At approximately 11.20 am on 10 December 2018, you were armed with a metal pole and behaving erratically in the vicinity of the shopping centre in Alfreda Street, St Albans.  The victim of your offending exited the Alfreda Street pharmacy, and you began following her.  Fearing for her safety, she enlisted a passer-by to escort her, and after he left her company, you ran up behind her and struck her to the lower back with the metal pole.  You then demanded money from her.  She was able to flee to a nearby medical clinic, and the police were notified of the incident.

6You were arrested shortly afterwards, still in possession of the pole.  Due to your erratic behaviour you were conveyed to Sunshine Hospital for mental health assessment, but were discharged into police custody and were then assessed as not fit for interview by a forensic medical officer.  You were released, as police had not located the victim of your offending, but were re-arrested the following day, charged and remanded in custody, where you now remain.

7The victim of your offending has not made a victim impact statement,
but I accept that your offending would have had a distressing and traumatic effect upon her.

8Your offending is a serious example of the offence you have pleaded guilty to.  You preyed upon an elderly, vulnerable woman in a public place, and you used the weapon that you were armed with.

9However, I accept, as was submitted by your counsel, that I am not sentencing you for an offence involving the fact that you struck your victim with the metal pole. However, the fact that you performed that act is nevertheless part of the circumstances of your offending and relevant to sentencing purposes for that reason.

10It is incumbent upon the court to protect the community from offending of this nature, and this sentence must be calculated to deter others from offending in this way.  Having regard to your criminal history, the sentence must also be calculated to deter you from reoffending.

11I now turn to your personal circumstances. 

12You were born in April 1980 in Melbourne and are now aged 40.  Your parents migrated to Australia from Vietnam and separated when you were a young child.  You have three siblings and were educated to Year 11 level at Redden College in Preston.  You have no formal qualifications and have not been employed for many years.

13I have received in evidence a psychiatric report of Dr Lester Walton, forensic psychiatrist, detailing your psychiatric history, and I accept that you have a well-established past history of polysubstance abuse disorder and parallel chronic schizophrenia which is currently in remission. 

14A further report from the North-Western Mental Health Service states that you have required multiple psychiatric hospital admissions.  You are currently prescribed Zyprexa for your psychiatric condition. 

15The evidence does not reveal that there is a connection between your mental illness and your offending on this occasion, although it is clear that you were behaving erratically.  It would appear that you were also affected by an illegal substance.  Nevertheless, your psychiatric history is relevant to your personal circumstances, and I also accept that the burden of imprisonment will be greater in your case for this reason.

16I have received in evidence a number of certificates disclosing that you have completed a range of courses in prison, and you are now compliant with your prescribed medication.  Nevertheless, any assessment of your prospects of rehabilitation must be approached with caution and are dependent upon you remaining drug free upon your release from prison.

17Your counsel submitted that it would be open to me to impose a community correction order in combination with a term of imprisonment in this case, but as I indicated during the course of the plea hearing, in my opinion, such a disposition would not be proportionate to the gravity of your offending, nor would it meet the purposes for which this sentence is to be imposed.

18In arriving at the sentence to be imposed in your case, I have also had regard to the increased burden of imprisonment upon you by reason of the restrictions currently in place due to the COVID-19 pandemic.

19In the result, the sentence of the court is as follows –

20On the charge of attempted armed robbery, you are convicted and sentenced to be imprisoned for two years and three months. 

21I direct that you serve 18 months before becoming eligible for release on parole.

22I declare that you have served 547 days by way of pre-sentence detention, not including today.

23But for your plea of guilty, I would have imposed a sentence of three years' imprisonment with a non-parole period of two years and three months.

24I have made the forfeiture order sought on behalf of the prosecution.

25Is there anything further required?

26MR PEARSON:  No, Your Honour.  Not from my part, Your Honour, no.

27HIS HONOUR:  Thank you.  So Mr Truong is eligible for parole now,
Mr Pearson, so it will be a matter for the Parole Board following his application as to whether he is released.

28MR PEARSON:  Yes.  That's so, Your Honour, yes.

29HIS HONOUR:  All right, thank you.  We will adjourn sine die. 

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