Director of Public Prosecutions v Van Khanh Nguyen

[2018] VCC 1073

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-02408

DIRECTOR OF PUBLIC PROSECUTIONS

v

VAN KHANH NGUYEN

---

JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	19 April 2018 and 12 June 2018 respectively
DATE OF SENTENCE:	13 July 2018
CASE MAY BE CITED AS:	DPP v Van Khanh Nguyen
MEDIUM NEUTRAL CITATION:	[2018] VCC 1073

REASONS FOR SENTENCE
---

Subject:  CRIMINAL LAW

Catchwords:             Sentence – Pleas of guilty – Arson (4 charges) – History of drug use – Gambling addiction – History of mental health issues including depression, anxiety and impulsivity – Socially isolated

Sentence:Convicted and sentenced to Total Effective Sentence of 5 years and 6 months’ imprisonment with a non-parole period of 3 years and 6 months’ imprisonment – Declared serious arson offender after Charge 2 – Pre-sentence detention of 317 days’ declared as having already been served - s.6AAA Sentencing Act 1991 declaration – Ancillary orders – Disposal and Compensation

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms Hayley Bate (Plea and Further Plea) Ms L. Treasure (Sentence)	Solicitor for Public Prosecutions
For the Accused	Mr P. Casey	James Dowsley & Associates

HER HONOUR:

1Van Khanh Nguyen, you have pleaded guilty to four charges of arson.  This offence has a maximum penalty of 15 years' imprisonment, which reflects the seriousness with which Parliament regards the offence.

2I was told that you were 58 and 59 years old at the time of the offending.  You have just turned 60.

Charge 1

3In relation to Charge 1, I was told that at approximately 2.43am on the
19 March 2017, you attended the second level of a multi-level car park at 125 Napier Street in Fitzroy.  You used the north-west stairwell and were carrying a bottle containing petrol inside a shopping bag.

4You approached a Mercedes Benz ML320 wagon belonging to Ty Kha and placed the bottle of petrol underneath the vehicle.  You then walked towards the northwest stairwell, dropping some tissues.  You walked behind the stairwell where you ignited a rag momentarily before extinguishing it.

5About four minutes later, you again approached the Mercedes belonging to Kha, where you dipped the rag that you previously lit into the bottle of petrol beneath the car before igniting the rag.  This gives rise to Charge 1, arson.  You then left the car park via the same stairwell, dropping a bundle of matches held together with a rubber band.  Eleven minutes later, the Mercedes caught fire.

6Residents of the area described loud, constant explosions

7Two people saw the fire and walked up to the second level. They then ran from the area after the Mercedes exploded.

8Twelve minutes later the fire spread to the vehicles parked either side of the Mercedes and then to the vehicles either side of those.  There were a number of explosions.

9In total, cars belonging to seven different people were damaged as a result of the fire which you lit.  The victims of this fire are:

10Ty Kha;

11Claire Harrison;

12Chang Tao;

13Sujuan Ye;

14Saido Aden;

15Atta Omer; and

16Jacinta Veselovska.

17The entire incident was captured on CCTV.

18Kha purchased his Mercedes Benz wagon for $8,500 approximately six months before the offence.  The car was insured with the Commonwealth Bank.

19Claire Harrison is a disability pensioner suffering from depression, anxiety and bipolar disorder.  She believes her 1997 Toyota Corolla sedan was valued at $1300.  She had spent $250 to have her car serviced shortly before the fire.  It was not insured.

20Chang Tao purchased her 2012 Holden Captiva wagon car for $16,000 approximately two years before to the fire.  Her car was not insured.

21Sujuan Ye purchased his 2016 Toyota Corolla sedan for $22,800 less than a year before the fire.  The car was insured but Mr Ye had to pay $677.92 excess to his insurance company and his insurance premium was increased as a result of the claim.

22Saido Aden was the owner of a 2002 Mitsubishi Nimbus van which was destroyed as a result of the fire.  The value of the van, which was insured, was $9,474.05.

23Atta Omer was the owner of a 2009 Toyota Corolla sedan which was damaged in the fire.  Mr Omer paid $700 to repair his car as a result of the fire.

24Jacinta Veselovska is the owner of a 2002 Holden Cruze wagon which was parked on the level above the main fire.  Veselovska has had a number of mechanical problems with her car as a result of the fire on the lower level of the carpark.

25As a result of the fire, damage was caused to the structural integrity of the car park belonging to the Department of Human Services.  The total cost to repair the car park was $69,443 including GST.

Charge 2

26In relation to Charge 2, I was told that at about 2.25am on 14 of June 2017, you left your address in Collingwood. 

27At approximately 3.30am, you attended outside 145 Brunswick Street, Fitzroy, and approached a Holden Captiva Wagon belonging to Ty Kha, who is one of the victims in Charge 1.

28This is a busy built up area and opposite a high rise housing estate.

29You placed an open tin of petrol underneath the car before lighting the petrol, giving rise to Charge 2, arson.  You then walked away and attended the Tankerville Arms Hotel before returning home.

30Police and Fire Brigade units attended and extinguished the fire.

31Mr Kha bought the car for $15,000 about one month before this offence.  The car was insured with the Commonwealth Bank.

Charge 3

32In relation to Charge 3, I was told that at about 12.55am on 9 August 2017, you left your home and drove to a 7-Eleven petrol station on Johnson Street, Fitzroy.  You removed a milk bottle from the boot of your car and filled it with petrol before placing the bottle back in the boot.  You paid the attendant and returned home.

33About half an hour later you again left your home, carrying an oil tin.  This was captured on CCTV in the elevator of the building. 

34You drove your vehicle to 161 Brunswick Street in Fitzroy.  Here, you found another Holden Captiva vehicle belonging to the same victim, Ty Kha.

35You approached the vehicle and poured the petrol from the milk bottle into the oil tin.  You then placed the oil tin behind the rear passenger side wheel before walking away.

36Approximately four minutes later, you returned, approached the vehicle and bent down towards the rear passenger wheel.  Another vehicle then performed a U-turn in close proximity to you so you stepped away from the car and hid behind an electrical box.

37Once the car left, you bent down and lit a rag which you then placed in the tin beneath the car.  This gives rise to Charge 3.

38You walked away, returning about a minute later to ensure the rag remained ignited.

39You then left the area on foot at about 2.32am, attending the Tankerville Arms Hotel.

40About 15 minutes later, the Holden Captiva caught fire and caused an explosion which covered the adjacent footpath.

41Police and MFB units attended and extinguished the fire which had, by that time, completely destroyed the Holden Captiva, which was valued at $8,998.

42This incident was also captured on CCTV.

Charge 4

43In relation to Charge 4, I was told that at about 3.38am on Monday
28 August 2017, you left your residence in possession of an open top canola oil tin.  You drove to 68 Hanover Street, Fitzroy, where you found a 2013 Honda Accord, belonging to an Annie Phung.

44You placed an open top tin containing petrol beneath the car before leaving the area, and returned home for about ten minutes.

45You then returned to Phung's vehicle, igniting it at approximately 5.21am, giving rise to Charge 4.

46The Honda Accord took about 19 minutes to be engulfed by flames.  The fire spread to a Honda CRV Wagon belonging to Daniel Smyth, which was parked directly in front of it.

47Police and MFB units again attended and extinguished the fire.

48The Honda Accord was completely destroyed and was valued at $35,594.

49The Honda CRV wagon was damaged and cost $800 to repair.

50The area in which this fire occurred is a busy residential street and, I was told, on Monday mornings it sees heavy vehicular and pedestrian traffic, although the prosecution acknowledged that this would not have been at such a high level at the time of the fire as it would have been later in the morning.

Arrest & Interview

51On the 31 August 2017, police executed a search warrant at your home.  You were at home at the time and were arrested.

52Numerous items of clothing identifiable in the various CCTV images were located and seized.

53Police also located and seized a 4 L tin identical to that found at the scene of the offence on the 9 August 2017.

54A search was also conducted of your vehicle in which a 3 L milk bottle filled with clear liquid was found and seized.

55You were interviewed at the Richmond Police Station with the assistance of a Vietnamese interpreter.

56You made full admissions to each of the incidents, saying:

·You had been forced to commit the offences by your ex-cell mate from Fulham, Tony Le;

·You had a gun held to your head and your family were threatened;

·You said that Le would provide you with the vehicle registration details and location prior to each offence;

·That you were told the vehicles that you were setting alight belonged to Le and that Le said he would then claim their value on insurance;

·That the money claimed back by Le was intended to repay a debt he had incurred;

·That Le had previously given you $15,000 to "look after him" in prison, but had demanded that money back in the period before 19 March 2017;

·That you never had Le's phone number; and

·That you would meet at the Tankerville Arms Hotel.

Further Enquiries

57Police made enquiries with Corrections who confirmed there was a prisoner by the name Tony Le in custody at around the same time as you.  However, they were unable to confirm cell details.  Corrections indicated that the "Tony Le" they had on record did not match the description provided by you.  Further enquiries about this individual revealed he had never resided Fitzroy or  surrounds.

58The Department of Health and Human Services also confirmed that there was no record of a Tony Le matching the description given by you having ever resided in the Fitzroy residential housing estate.

59Mr Kha stated he did not know why his vehicles had been set alight, that he had no outstanding debts and had not been asked for money.  He stated he was unemployed and on a Centrelink benefit to look after his mother.  He further stated one of his cars was purchased from a dealership whilst the other was purchased from a male he met at the pub.  He could not recall the person's name.

60All three cars owned by Mr Kha were insured with the Commonwealth Bank.

61Mr Nguyen, your offending is most serious and is deserving of a punishment which is just in all of the circumstances and your conduct must be denounced.

62Setting fire to cars in the way that you did was obviously most dangerous in terms of the cars that you were targeting and other cars and people within the vicinity.  I note that in relation to the first fire, there were several explosions along the way, which is most concerning and frightening for those who witnessed them.  I have also factored in that there was a degree of pre-planning involved in each of the offences and I have factored in the extent of damage caused in relation to each charge.

63Not only did you cause damage to the cars of people who, in many cases, could not afford this to happen, but you also damaged the structure of a carpark in a most significant way.  Further, you put the emergency services to significant time, trouble and expense, subjecting emergency workers to risk of harm again and again.  You behaved without any sense of conscience or decency toward those you were impacting upon.

64In sentencing you in relation to Charges 1 and 4, I have factored in that you deliberately targeted one car, albeit that your actions resulted in more widespread damage.

65I take into account the victim impact statement which was provided by Jacinta Veselovska.  She said that since the incident involving her car, she has great concerns that this might happen again.  Due to her car being damaged, she has missed a number of job opportunities and had to spend a good deal to have her car fixed, which had ongoing mechanical problems.  This happened to the point where she has had to get rid of it as it was not deemed to be roadworthy, so she has now had to spend a good deal of money on public transport and taxis.  She feels helpless, angry and frustrated because of her current predicament which has been caused by you, Mr Nguyen.  She goes out socially to a lesser degree as she does not feel safe and feels severely paranoid due to the incident.  Further, she often cannot afford alternative means of transport and has missed important social events such as her friend's birthday celebrations and the like.

66It takes very little imagination to surmise that the other victims have suffered fear and great inconvenience at the very least because of what you have done.

67In terms of your explanation to police, the prosecution does not accept that you were directed by the person who you nominated to commit these arsons.  The plea hearing was adjourned so that you could be given a chance to be advised in relation to a possible defence of duress.  However, you have not taken this course, apparently on legal advice.  Further police investigations have been conducted on the basis of information which you gave to them, but to no end.  On your behalf, Mr Casey submitted that the name given you of "Tony Le" and the address he gave you at one stage were probably not accurate details.  
Mr Casey made some efforts to ascertain who this person might actually be, but while some details as to the person's identity fitted with an owner of businesses in Richmond, other details did not.  However, he submitted that the details that you gave in your record of interview about such a person were of such a specific nature that it militated against you having made this person up.  Mr Casey submitted that you have done your best to assist in the identification of the person who you say directed you to commit the offences, bearing in mind that you have been in custody since your arrest.  Mr Casey also mooted that you may have been required to carry out the arsons at the behest of another in order to pay off gambling debts.  He said that Mr Kha was the target of the first three arsons and that it was a case of mistaken identity in relation to the fourth.

68I understand that your instructions remain that you committed the offences at the direction of another who threatened to kill your family if you did not.  I understand that you say that you are still in fear of this person, who knew to find you at the Tankerville Arms Hotel where you regularly attended.  However, you were not prepared to give evidence in relation to this aspect.  While there is no onus on you to do so, in the absence of evidence, I am not satisfied on the balance of probabilities that you were subjected to such threats to your family.

69While it may well be that you were acting at the behest of another who had some connection with the victim, Mr Kha, I cannot make any finding beyond this.  At the end of the day, you were prepared to engage in this dangerous and destructive activity for some financial benefit and in the absence of any finding, that you did so because of fear for your family's welfare, I find that your moral culpability is high.

70I take into account your criminal history, which is rather extensive and commences in 1989.  You have prior matters for reckless conduct endangering serious injury, criminal damage, abalone related offences, trafficking and possessing heroin, dealing with property suspected of being proceeds of crime, and some weapon offences.  Your last prior matter was in December 2012 but you have no prior convictions for arson.  However, I regard the reckless conduct endangering and criminal damage offences as having some relevance, as well as the fact that you have a substantial history of disobeying the law, although the last prior matter is about five years before you commenced the current series of offences.

71I take into account your background:

72You were born into poverty in Vietnam.  You have seven siblings, and both of your parents are now deceased.  You have limited education.  You entered the army when you were 18 years old, serving in it for three years until the government collapsed and you were able to escape to a refugee camp in Malaysia where you remained for a number of years before coming to Australia in 1985.  You do not speak, read or write English.  You are married and have one child who was born in 1991 and who has now left home.  You are on good terms with him and he has been supportive of you, both financially and in respect of relaying information from you to your legal advisers in respect of these proceedings.  Your wife is in poor health and is in receipt of the disability pension.  You have worked as a fisherman and in various factories in the past.  However, you sustained an injury to one of your eyes a number of years ago, which left you blind in that eye.  This resulted in you being unable to work and you then received the disability pension also.

73At one stage, you were addicted to heroin, which is reflected in your criminal history.  You reported to Dr Lopez that your addiction lasted for about six months and that you obtained treatment for this from a doctor, with good results.  However, it appears that you have a rather entrenched gambling problem, which has exposed you to vulnerability of criminal offending.  You reported to Dr Lopez that from time to time you have sought assistance from a local community clinic, who have given you advice in relation to your gambling problem.

74I take into account the report of Dr Carla Lopez, forensic psychologist, dated
29 March 2018.  Dr Lopez said that your vulnerabilities leading to your offending related to you experiencing significant social isolation, mental health issues and gambling addiction.  Although Dr Lopez assessed you as possibly trying to give a favourable impression, she said that you shared some characteristics and attitudes which were common amongst individuals who engaged in criminal behaviour and/or who re-offend.  She also assessed you as experiencing depressive, anxious and stress symptomology in the extremely severe range over the week preceding her interview with you.

75She set out a number of areas which, if left untreated, placed you at greater risk of re-offending.  These were:

(a), self-esteem problems and lack of insight into the seriousness of problems, especially gambling;

(b), interpersonal difficulties, in that you were prone to social isolation and limited supports;

(c), criminal orientation, especially your attempts to rationalise your criminal behaviour;

(d), psychopathology, especially anger and impulsivity; and

(e), other potential mental health problems.

76She said that you were highly driven to acquire funds for gambling and that this presented "an ongoing vulnerability for (your) behaviour to be manipulated".  She then listed a number of areas of treatment which ought be provided in order for your risk of re-offending to be reduced, noting that your lack of English language skills would make it important that any services to address your problems ought be delivered in Vietnamese.  She had previously noted that you had been rather socially isolated in the community, despite having a wife, son and extended family to look to, which had added to your risk.

77Dr Lopez concluded that if the issues which she identified were not dealt with, you remained "vulnerable to negative influence due to (your) gambling addiction and desperate need to fund this at the expense of all else.  This coupled with (your) poor insight, coping strategies and inability to mobilise resources, plan and think through consequences would continue to put (you) at risk of further offending."

78In sentencing you, as I have said, I take into account the report of Dr Lopez - and I take it into account as a whole - I have also allowed for the fact that time in gaol has been and will be harder for you than would otherwise be the case because of your lack of English, which is isolating, and because of your mental health difficulties, as found by Dr Lopez.

79With your consent, I will provide a copy of Dr Lopez's report to the prison authorities in a bid to have these matters addressed.

80I allow a significant discount in the sentence that you would otherwise receive because of your plea of guilty, which was entered at the earliest stage.  In doing this, you have saved the witnesses the time and trouble of giving evidence and you have saved the community the time and expense of contested proceedings.

81While you gave police a good deal of information, this has not been verified by further investigation. Ostensibly, you co-operated, but in circumstances where the details that you have given in relation to your motivation for offending have not been helpful in bringing anyone else to justice, I can only give limited weight to your preparedness to answer police questions. I am not satisfied that you have much in the way of insightful remorse, although I accept that you are sorry for the predicament that you are now in and that you have taken responsibility for your offending.

82In view of your offending, your criminal history, your limited insight and matters raised in Dr Lopez's report as risk factors, but also factoring in your early pleas of guilty, your fairly senior age and disability, I assess your prospects of rehabilitation as guardedly fair, at best.  I give moderate weight to specific deterrence and protection of the community.

83The prosecution submitted that a gaol term is the only appropriate penalty and your counsel conceded this on your behalf.

84After imposing sentence on Charge 2, you are to be sentenced as a serious arson offender, and there will be a presumption of cumulation; however, it is not submitted that a disproportionate sentence ought be imposed.  In view of the separate instances of offending as between Charges 1 and 2, I take the view that a level of cumulation is also warranted as between these.

85Please stand up, Mr Nguyen?  You are convicted of each of the offences. 

86I make the disposal and compensation orders which are not opposed by you.

87You are sentenced as follows:

88Charge 1, four years' imprisonment which is the base sentence;

89Charge 2, two year's six months’ imprisonment;

90Charge 3, two years' imprisonment;

91Charge 4, three years' imprisonment.

92I direct that you are to be declared a serious arson offender after the first two charges, which will be entered in the records.  I further direct that six months from the sentence on Charge 2, three months from the sentence on Charge 3 and nine months from the sentence on Charge 4 be served cumulatively with each other and with the base sentence. 

93This produces a total effective sentence of five years, six months’ imprisonment and I direct that you are to serve three years, six months’ imprisonment before becoming eligible for parole.

94I declare that you have already served 317 days’ pre-sentence detention which will be deducted from the sentence that I have just imposed.

95If not for your pleas of guilty, I would have sentenced to you a total effective sentence of seven years' imprisonment with a non-parole period of five years’ imprisonment.  

96Counsel, is there anything arising from those sentencing remarks?

97COUNSEL:  No, Your Honour.

98HER HONOUR:  All right.  Now, Mr Casey, did you want to have a chance to have a word with your client with the help of the interpreter?

99MS CASEY:  That would be good, Your Honour.

100HER HONOUR:  All right.  Look, I will stand down for a moment and you just indicate to my tipstaff when you are ready.

101MS CASEY:  Thank you, Your Honour.

102HER HONOUR:  Thank you.  Just stand down for a moment.

103(Short adjournment.)

104HER HONOUR:  Anything further?

105MS CASEY:  No, Your Honour.

106HER HONOUR:  All right.  Yes, thank you. 

- - -