Director of Public Prosecutions v Vann

[2023] VCC 2147

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR 22-01872

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHANNPHAKDHEY VANN

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	20 November 2023
CASE MAY BE CITED AS:	DPP v Vann
MEDIUM NEUTRAL CITATION:	[2023] VCC 2147

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW
Catchwords:	Theft of motor vehicle – Carrying an imitation firearm contrary to a firearm prohibition order – Breach of Community Corrections order – Plea of guilty – Pre-sentence detention – Early plea – Relevant criminal history – Intellectual disability – P:sychological difficulties
Legislation Cited:	Sentencing Act 1991
Cases Cited:	Worboyes v The Queen [2021] VSCA 169, R v Verdins & Ors [2007] VSCA 102
Sentence:	25 months imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Picone
For the Accused	Mr D. Care

HER HONOUR:

1Channphakdhey Vann, you have pleaded guilty before me to one charge of theft of motor vehicle, one charge of robbery and one charge of carrying an imitation firearm, contrary to a firearm prohibition order.

2You have also pleaded guilty to breaching a Community Corrections Order, imposed by this court on 30 July 2019.  The facts underlying your offending are as follows.

3

At about 10.30 on the morning of 5 April 2022, you and your co-accused,

Julian Zagarella, ran down a laneway separating Glen Eira Road and

Maryville Street.  You entered Maryville Street where the victim

Mohammed Norden

had parked his white Toyota HiAce delivery van, outside a house in Maryville Street leaving the keys in the ignition and the van running, while he made a food delivery.  Zagarella got into the van and drove it across the street where you were waiting, you got into the passenger seat and then the two of you drove to Carnegie where you abandoned the car on Neerim Road, near the corner of Koornang Road.  Those actions underly Charge 1 on the indictment, theft of motor vehicle.

4

Charge 2, robbery, occurred on 12 April 2022, with two other co-accused being Zagarella and Jay Saintmart, and one other unknown co-accused.  At about

1.30 pm you with the co-accused were all travelling in a silver Honda in the area of Browns Road, Clayton, where you saw the victim, Thangellis Thanos walking nearby.  Zagarella wound down the front passenger side window of the Honda and asked Mr Thanos whether he lived in the street.  Mr Thanos then saw three men exiting the car, these being Zagarella, Saintmart and yourself, while the fourth unknown man kept driving the Honda.  Zagarella told Mr Thanos to hand over his wallet and his money.  Mr Thanos kept walking to his car, a grey Volkswagen Polo which was parked nearby.  He unlocked it using his key fob, then you, Zagarella and Saintmart began to assault him by punching him over and over in the face.

5

The prosecution cannot establish which of the three of you physically took

Mr Thanos's car keys, house keys, garage remote and black bag containing his wallet and cash, but they were taken during this assault.  These actions underly Charge 2 on the indictment, robbery.

6During this incident, a resident Newton John heard shouting outside his home, then saw the assault from the garden gate at the front of his property.  He began recording on his mobile phone which also showed Mr Thanos being kicked by the three of you.  While it is not part of the prosecution case in relation to Charge 2, it should be noted that Mr John then went over to the four of you, asking what was going on, to which one or more of you three said, that you were being mugged and that Mr Thanos, was in fact, the person mugging you.  You and St Mart ran away on foot.  Mr John tried to call 000, but Zagarella who was still there told him to hand over the phone and then punched him in the face with a closed fist.  Zagarella then got into Mr Thanos's car and drove it away. 

7

On 15 April 2022, at about quarter to five in the morning, Zagarella drove a BMW into an underground car park in Browns Road, Clayton, with the stolen

Volkswagen Polo, following closely behind being driven by a Gabriel Verigos.  You were seen on CCTV footage of the area walking alongside Mr Thanos's stolen car which then had different registration plates.  Gabriel Varigos was arrested in the Volkswagen on 5 May 2022.  The original plates were located in the boot of the car.

8

On 20 April 2022, police executed a search warrant at an apartment at

29 Browns Road, Clayton at which time you and Zagarella were there.  They seized clothing worn by you in the robbery and then while viewing CCTV footage dated 12 April 2022 of the underground car park, saw you carrying a large imitation firearm.  At the time you were the subject of a firearms prohibition order and those actions underly Charge 3 on the indictment, possessing an imitation firearm in contravention of firearms prohibition order.  You were interviewed by police on 20 April 2022 and gave 'no comment' answers.

9

In relation to the Community Corrections Order, on 30 July 2019, I sentenced you to a term of 11 months and three weeks' imprisonment in combination with a two year Community Corrections Order declaring that 532 days (being 17 months and 17 days) as being served.  Between

16 March 2021 and 8 April 2022, you committed a number of offences which were heard in the Magistrates' Court at Ringwood on 5 July 2022 and were sentenced to seven days' imprisonment, as well as being the subject of a fine.  That Community Corrections Order expired on 29 July 2021.

10I also received a report from Corrections noting your failure to attend appointments and rehabilitation treatment whilst on the CCO which also comprises the Community Correction Order contravention.  Proceedings for this were commenced on 17 June 2022.  You were remanded in custody following your arrest in April 2022.  A committal hearing in relation to these matters was held on 13 October 2022 at which time the matter resolved.

11On 6 December 2022, you entered a plea of guilty before me, and deferred the matter for 12 months and placed you on bail with the condition that you be supervised by the Court Integrated Services Program.  This was to assist you and give you an opportunity to bring your life into order.  By this time you had, because of your intellectual disability, attracted NDIS programs and it was also hoped that the CISP program which is a considerable and intensive program would be of assistance for you in dealing with your drug problems and other difficulties that you had in your life. 

12However, on 3 April 2023, you were charged with new offences including driving whilst disqualified and driving an unregistered vehicle.  You were arrested on 10 April 2023 and remanded in custody.  On 29 Mary 2023, your bail in relation to the matters for which I am sentencing you today was revoked and you were sentenced for the driving matters on 21 September 2023 in the Magistrates' Court.

13The maximum penalty for theft of motor vehicle is 10 years' imprisonment.  The maximum penalty for robbery is 15 years' imprisonment.  And the maximum penalty for possessing an imitation firearm is 10 years' imprisonment.  I now turn to your personal circumstances.

14

You are 27 years old and were born in Australia to parents who emigrated here from Cambodia.  You told Neuropsychologist, Jane Lofthouse whose report dated

9 September 2023 was tendered on the plea, that English was spoken in your home and your first language is English.  You are one of 11 children, and your parents separated when you were 17.  Your father was violent towards your mother which you saw, and he was also violent towards you, and threw you out of home when you were 14.You began living with friends and on the street, although your family continued in stable housing and from time to time, you would come back to live with your mother, who has continued to support you ever since.

15You told Ms Lofthouse you would leave the family home to drink and use drugs on the street, and then you began drinking alcohol on a regular basis from the age of 16, but reduced this after you were released from prison in 2020.  You began using amphetamines or ice on a daily basis when you were 18 and this kept going until you were gaoled in your early 20s.  When you were released from prison, you cut down the amount of ice you were using but still used it regularly until you were arrested.  You have also used cocaine in small amounts on a daily basis from the age of 20 until you were recently gaoled and you used cannabis every day between the ages of 14 and 18.

16

You have an intellectual disability which was not diagnosed until 2019, although you received special education at school.  You began offending in 2016, and you have been dealt with, over the years, for assault with a weapon, unlawful assault, driving whilst disqualified and in 2018 were placed on a

Community Corrections Order for 12 months for being a prohibited person possessing a firearm, possessing cartridge ammunition without a licence, possessing ice, and dishonestly retaining stolen goods.  That order was breached in November 2019.

17

On 30 July 2019 as I have said, I placed you on a combination sentence of

11 months and three weeks' imprisonment, combined with the two-year Community Corrections Order and on charges of extorting with the threat to destroy property, recklessly causing injury, false imprisonment and robbery.  It was at that time you were first properly assessed by Ms Lofthouse and diagnosed with a mild intellectual disability.  In her latest report, Ms Lofthouse noticed a speech pathology report prepared after the granting of NDIS funding which indicated you had severe difficulties with language and with reading.  She again conducted a number of tests which revealed an ongoing significant intellectual impairment, such that she again has said she was having a mild intellectual disability.  That means mild in comparison to other people with an intellectual disability.

18Ms Lofthouse also gave the opinion that your chronic drug and alcohol use may have caused an acquired brain injury and may have, in particular contributed further to the considerable memory impairments and the slowed, what she called mentation that you have demonstrated.  Ms Lofthouse found on assessment that you presented as very depressed, and that your level of anxiety was higher than she had expected.  You described to her family matters which had made things worse for you, including the death of your grandmother when you were 14 - you were very close to her - seeing your parents’ continual fighting and the violence you received from your father and his actions in throwing you out of home when you were only 14.

19I also recall at the plea in 2019, evidence from one of your siblings about the very bad treatment you received from your father and that for a time you were made to live in a garage of the home.  You told Ms Lofthouse that you were depressed about going back to gaol once more, and believed you were constantly disappointing your family, in particular, your mother.  Ms Lofthouse stated you,

'Identified with an extremely severe level of depression, anxiety and distress response being consistent with experiencing a high level of emotional distress.'

20She believed that your psychological distress had got worse since the last time she saw you in 2018.  She said that your intellectual problems put you at risk of making impulsive and bad decisions about your actions, and she said that your intellectual impairment would have been part of your behaviour that led to the charges.  She stated,

'Mr Vann's high levels of anxiety and heightened responses to stress place him in a position where he is likely to react to real or perceived stress in inappropriate ways which are sometimes violent.  Mr Vann's level of depression and social anxiety also place him at risk of self-medication with drugs.  Mr Vann's psychological issues would have been contributing factors in the behaviour that led him to [your] current charges.'

21It does seem after you were placed on the Community Corrections Order you did fall back into drug use, and to associating with other criminals, so that you offended in the way that I have described in 2022.  On 6 December 2022 when I placed you on bail, I was told you would be living with the family of your then girlfriend.  However, I had also hoped that the intensive supportive program of the court program attached to CISP, would give you the opportunity over the next 12 months to prove yourself and perhaps mean I did not have to gaol you any further for the 2022 offending. 

22

However, I received four reports from CISP between December 2022 and

25 May 2023.  On 15 March 2023, Ms Rice Lacey of CISP reported that you told her you had no intention of making contact with the services CISP were trying to provide you.  You attended only two case management appointments and were constantly late or asked for them to be rescheduled.  In the report dated

17 April 2023, this was noted, and this is after I had spoken to your Mr Vann, at judicial monitoring, that you attended only one appointment out of four, refused to take up an offer of emergency housing after the placement with your girlfriend's family broke down, and then had limited contact with your support coordinator. 

23This then affected your ability to get appropriate supports funded under the NDIS.  In the report of 25 May 2023, it was stated you had been remanded in custody on 20 April 2023, that you had not engaged with CISP, and that there were concerns by CISP that you were not prepared to participate in the program or make any changes.  You had also engaged in further offending as I have said while you were on bail.

24

At this stage, I should refer to the victim impact statement from Mr Thanos. 

Mr Thanos wrote, that since the offending he had become afraid to move around alone in areas far from his home where he lives, and that he had had trouble ever since.  He wrote,

'Nights were difficult, but morning were worse.  The unknown, overwhelming feeling was pushing me back and making me incapable of starting the day.  I've had to overcome it every morning and push myself to go to work.'

25He also stated,

'Since then I'm always looking around to see if someone is following me or approaching me when I'm about to get into my car.'

26Mr Thanos wrote that for a while he lost his hearing in his left ear, because of the punching to his head.  He said he was embarrassed by bruising to his face, that he felt ashamed and that he suffered financial loss because he had to pay for hospital admission, after you all attacked him, he had to change the locks on his house because you had taken his house keys.  He had to pay for the car to be returned and paid for, damage to the car including detailing.  He stated,

'But in my opinion, the financial part is the least I'm concerned of since these three persons who attacked me made me feel so scared that I wish it won't follow me for the rest of my life.'

27So, you might be feeling depressed and anxious Mr Vann, but that is what you did to somebody else.  Okay?

28Your counsel told me that at the time of the offending you were homeless because the placement with our girlfriend's family had broke down.  The prosecution agreed that your intellectual disability and psychological conditions do mean that gaol is more difficult for you than for other prisoners, who do not have these difficulties, and that gaol is possibly making those conditions worse.  You seem to be doing fairly well in gaol.  You have undertaken a lot of programs and you are working for five days a week.  You have done part of a drug and alcohol course and you continue to be visited by and supported by your mother and brothers and sisters.

29In sentencing you, I do take into account your intellectual disability and the psychological difficulties and I also accept Ms Lofthouse's opinion that you are easily led by other people.  It seems to me that because you have never got off drugs, and because you have been hanging around with people that use drugs and commit offences since you were about 14, you find it difficult not to do that, when you are in the community.  I note that all of this offending was carried out in the company of others.

30The trouble for me Mr Vann is that I gave you a big chance when I released you on CISP bail in December last year.  You completely failed to take advantage of this very intensive support service, including the offer to get housing, when you could no longer live with your girlfriend's family and that apparently occurred because you caught COVID, your girlfriend's father then caught it and then most unfortunately, died of the condition, and the family then blamed you.  You do continue to have the support of your family, but nothing seems to stop your drug use and your offending, no matter how much support you are given in the community by the courts and the NDIS.

31The prosecutor very fairly conceded that because the original CCO, was now so old, and because of the excess of number of days of time served which were attached to the original order, that I should deal with you regarding the breach simply by way of confirming it and making no further order, and that's what I will do.

32However, in relation to the fresh offending before the court, that is the offending from last year, I am satisfied that the main principle I have to look at is protection of the community.  The offending for which I dealt with you in 2019 was nasty and violent.  Despite all the help that you have been offered, you have again offended where an innocent member of the public, that is Mr Thanos, who was simply walking to his car, was the subject of a very nasty physical attack, which is causing him considerable distress and difficulty to this day.

33It is my view, the only way I can deal with you in relation to these charges is by sentencing you to a term of imprisonment, which you must immediately serve.  In sentencing you I take into account your relatively early plea, your intellectual disability, the appropriate Verdins limbs, relating to your psychological and intellectual impairments, specifically in relation to your vulnerability to negative influence which relates to - the first limb and the fact that the offending was opportunistic, as well as the limbs relating to your added difficulties in gaol and the damage that will further do to your psychological problems.  The effect of the pandemic on the prison system has reduced, nevertheless, you are entitled to the utilitarian benefit of an early plea, and at the time that you were placed in gaol, some of those difficulties were still present.

34Although the Worboyes discount is coming to an end, your plea was indicated at a time when the full extent of that discount was applicable, and you will be given that benefit.  The case against you is very strong.  Although you entered a plea of guilty, I am not satisfied that you have shown a great deal of remorse, that is, provided evidence that you are sorry for what you have done.  You have a relevant criminal history, including dishonesty, violence, firearms and drug offences.  You have failed as I have said, to undertake the many chances extended to you by this court and I do not think unless you decide you are going to stop using drugs and stop offending that your prospects of rehabilitation, that is your future insofar as not offending is concerned, is particularly good.  It is really up to you now, Mr Vann.

35The court has given you so many chances, you have never taken them and you keep offending, you keep hurting people and now I am gaoling you.  So, it is going to be up to you when you get out of gaol, to go home to your family, to attend to your drug and alcohol problems, to let the NDIS help you, because that is the only way you are going to avoid staying out of gaol.  If you keep doing what you are doing, if you keep using drugs, if you keep getting into trouble, you are just going to be in gaol over and over again.  Apart from anything else, this is going to be horrible for your mother who obviously loves you very much and you know that she does and you know that you are disappointing her.

36

You need to understand that you are hurting other people, not just yourself.  And in this case, you have caused great damage to Mr Thanos, which he simply did not deserve.  Imagine how you would feel if someone attacked one of your brothers or your sisters or even your mother, on the street the way you attacked Mr Thanos.  Imagine how upset and terrified they would be.  That is what you have done to another person.  And this is not the first time you have hurt another person

Mr Vann, so that’s what I have to think about now, rather than worrying about helping you overcome the problems that you have.

37I accept the prosecution description of your offending as chaotic, senseless and objectively serious.  I do not accept the defence submission that the offending on Charge 3, falls at the lower end of the scale.  You have prior convictions for such offending.  You have used firearms in an impermissible way in the past, and in the context of your criminal background, I regard your possession of the imitation firearm as concerning to say the least.

38In all the circumstances and taking into account all the matters I have referred to, I therefore sentence you as follows.

39On Charge 1, you are sentenced to nine months' imprisonment.

40On Charge 2, you are sentenced to 18 months' imprisonment.

41On Charge 3, you are sentenced to six months' imprisonment.

42The base sentence will be the sentence imposed on Charge 2, 18 months and I order that four months of the sentence imposed on Charge 1 and three months of the sentence imposed on Charge 3, be served cumulatively to the sentence imposed on Charge 2, giving a total effective sentence of 25 months' imprisonment.

43I order that you serve 15 months' imprisonment before becoming eligible for parole.  What is the PSD please?

44MR CARE:  It's 405 days, Your Honour, excluding today.

45MS PICONE:  That's agreed Your Honour.

46HER HONOUR:  I declare that 405 days of this sentence has been served by way of pre-sentence detention.  What that means is that you have served most of the sentence already, by amount of time you have been in gaol.  You will have to apply for parole, okay?  Otherwise, you will serve the whole 25 months.  So you will need some help with that.  And I think Mr Care, his solicitors need to be advised about this.  I am not sure what unit Mr Vann is being held in, but very often people with intellectual disabilities simply disappear, because they don't have the capacity to apply for parole.  So, that may need to be attended to.  All right?

47MR CARE:  Yes, Your Honour.

48HER HONOUR:  Now, do you understand what parole is, Mr Vann?

49OFFENDER:  (Indistinct words).

50HER HONOUR:  What do you think it is?

51OFFENDER:  (Indistinct words).

52HER HONOUR:  It means that what will happen is, that you, after you've served a - the lesser, the lower part of the sentence I've given you.  You can be released into the community, but you will still have 10 months of gaol hanging over your head.  And if in that 10 months' time you get into trouble and you commit another offence, you'll have to come back and serve that extra 10 months, okay?  And any sentence that you receive for any trouble you get into, if you offend while you're on parole, you'll have to serve on top of that.

53OFFENDER:  (No audible response.)

54HER HONOUR:  So if you get on parole, if you get parole, you are going to need to really make sure that you are keeping an eye on how you behave.  Because if you offend again, if you get into trouble with police again, you'll go straight back to gaol and for a long time.  I make the comment that it is very important that any parole you receive has intensive supports, in particular the drug and alcohol supports and that you should be linked to any NDIS services that are available to you.  Hopefully, you will be able to return home to your mother and brothers and sisters and to receive help with them at home. 

55You cannot keep going out and using drugs and you cannot keep hanging out with friends and couch surfing and leading the sort of life you were before Mr Vann, because all you do is end up offending with other friends who are also people who offend, you come back before the court and you'll go straight back to gaol.  Do you really understand how bad that is for you now?

56OFFENDER:  Yep.

57HER HONOUR: All right. Pursuant to s6AAA of the Sentencing Act, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of 32 months and ordered that you serve a minimum term of 20 months.  Thank you.

58MR CARE:  Your Honour pleases.

59MS PICONE:  Thank you, Your Honour.

60HER HONOUR:  Yes, thank you, we will adjourn to 9.30 tomorrow morning.  Thank you very much.

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