Director of Public Prosecutions v Vann

[2019] VCC 1163

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01644

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHANNPHAKDHEY VANN

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	29 March 2019
DATE OF SENTENCE:	30 July 2019
CASE MAY BE CITED AS:	DPP v Vann
MEDIUM NEUTRAL CITATION:	[2019] VCC 1163

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Foot	Office of Public Prosecutions
For the Accused	Ms K. Ljubicic	James Dowsley & Associates Pty Ltd

HER HONOUR:

1Channphakdhey Vann, you have pleaded guilty before me to one charge or robbery, one charge of false imprisonment, one charge of recklessly causing injury, two charges of extortion with threat to destroy property, and one charge of possessing a drug of dependence.

2The facts underlying this offending are as follows.  At the time of offending, you were 21 and living at 7 Gray Street, Springvale in a share house with your girlfriend.  You and Asa Piatkowski, who was 31 years old, engaged in this offending together. 

3The primary victim was a man called Vien Van Lee, who is a 22-year-old who was living with his father in Noble Park.  Victims of the extortion charge were his 17-year-old younger sister, Amy Lee, his 27-year-old older brother Tye Lee.  You and Mr Van Lee knew each other through your brother. 

4On 26 January 2018, Vien Van Lee was at his home with his father when you, Piatkowski and a third male drove to Temple Court, parking outside Unit 6/174 Corrigan Street, Noble Park.  At about 2.30 pm, a friend of Vien Van Lee, Louie Vega, walked along Corrigan Street to his home. 

5As Mr Vega walked past 6/174 Corrigan Road, he saw three men near the garage of the unit.  Mr Vega knew that these three men did not live there.  He continued on to Vien Van Lee's house.  At Mr Van Lee's house, Mr Vega spoke to Mr Van Lee's father, Huynh Lee, and then Mr Vien Van Lee and Vega decided to walk to Mr Vega's house to smoke cannabis.

6The two of them left the house and were walking near the alley way of Temple Court when they were approached by you, Piatkowski and the third male.  You approached Mr Van Lee and said, 'Come here', and then told Mr Vega to essentially 'fuck off'.  You grabbed Mr Van Lee by the neck and tried to throw him on the ground, saying to him, 'You owe me money'. 

7You continued to demand money from the victim, who was asking, 'What money do I owe you?'  You then punched Mr Van Lee to the head with both fists, pushed him up against a fence and said, 'I want my money.  Get in the car, we're going to get the money'.  You reached into Mr Van Lee's pocket and stole his mobile phone, which you passed to the third male.  Those actions underlie Charge 1 on the indictment, robbery. 

8You ordered Mr Piatkowski and the third male to put Mr Van Lee in the car, which they tried to do.  Those actions underlie Charge 2 on the indictment, false imprisonment.  Mr Van Lee managed to get away from Piatkowski but you caught him and again punched him.  You and Mr Piatkowski then grabbed
Mr Van Lee again and dragged him towards the car, causing injury to his feet. 

9He also suffered bruising to the forehead, tenderness to the left side chest wall, superficial knee grazes and skin tear on the toes and balls of his left feet. 
Mr Van Lee continued to struggle and tried to get away while you and
Mr Piatkowski continued to kick and punch him.  Those actions underlie Charge 3 on the indictment, recklessly cause injury. 

10Eventually, Mr Van Lee got away and the three of you left in Mr Piatkowski's car.  Police attended and located Mr Van Lee and he was taken to Dandenong Hospital.  At about 4 pm that day, Mr Van Lee's sister, Amy, was on a work break when she checked her mobile phone and saw she had received a message from a neighbour telling her that police and ambulance had been called as her brother had been assaulted.  She then called her brother's mobile phone and it was answered by you, you having stolen Mr Van Lee's phone. 

11She asked to speak to her brother and you told her, 'Daniel's in the boot of my car, he owes me $15,000.  I won't hurt him if you give me $800 tonight'.  You then made a further demand, saying, 'I need my $800 tonight in cash.  If I don't get my money, I'll put bullets through your house'.  Those actions underlie Charge 4 on the indictment, extortion. 

12Ms Lee was understandably frightened, tried to buy time and immediately called her father, asking if he knew where her brother was, and when her father told her that her brother was in hospital, Ms Lee then realised that you were bluffing and went back to work.  At about 5.30 pm when she checked her phone again, Amy Lee noted that you called her about 10 times, and she then messaged her brother, Tye Lee, telling her about the missed calls. 

13Tye Lee told her to block the number, which she did.  Throughout the night,
Ms Lee received a further five calls from the phone you had stolen, which she ignored, and finally answered a call in which she heard you yelling at her, sounding very angry.  Ms Lee believed that you were genuine about shooting up the house and told her parents to leave and stay elsewhere for the night.  She herself stayed at a friend's house just to be safe.  She also called 000 and reported that she had received further calls from both her brother's stolen mobile phone and another number.

14Tan Lee was at his house when he received a text message from Amy Lee regarding their brother being assaulted, and he tried to call his brother's mobile but there was no answer.  He then rang the second number that Amy Lee gave him, which was the phone that you were using in order to try and receive money from her.

15He ended up speaking to you and identified himself as Van Lee's brother.  You then said, 'Your brother Daniel's all right, so how are you going to fix this?  All right, you got to come up with the money unless I'm going to come around and shoot the house up'. 

16Amy Lee had told her brother Tye that her brother Daniel may have owed you $16,000, but you were only demanding $800 from him during the call.  Tye Lee told you he would need some time to come up with the money and you threatened him, saying, 'You have 10 minutes to come with the money or I'm going to come around to your house'. 

17You then called Mr Tye Lee from another phone number saying, 'You fucking called the cops, didn't you?  You watch what's going to happen, you watch what I'm going to do to this bitch'.  Mr Tye Lee believed that you were referring to his sister, Amy, and was worried about whether you were at her house.  Tye Lee then contacted police about the threats and asked a friend to drive past his parents’ home, as he genuinely believed you were at their house. 

18On the way to his parent's home, Tye Lee received a message on his phone from you, which was a photograph of the front yard of the family house, and then had several missed calls from you, which he did not answer because he knew police were attending.  As he drove past his parent's home, he received a text message that read, 'You dog', which was from you. 

19The victim, Daniel Van Lee identified you as being the offender that assaulted him, saying he had previously been friends with you but this friendship ended after you assaulted another of his friends and he became frightened of you.  A partial registration of your car was provided by a witness to the false imprisonment and descriptions were given of the offenders by Mr Vega.  You were also identified via a photobook. 

20You were arrested on 13 February 2018 and taken to the Dandenong police station, where you provided a 'no comment' record of interview and were then remanded in custody.  There was a police warrant executed at the address where you were arrested and in your bedroom police found the stolen mobile phone and a ziploc bag containing a small quantity of methylamphetamine, or ice.  You possession of this drugs underlies Charge 6 on the indictment, possession of a drug of dependence. 

21Eventually, Mr Piatkowski was intercepted driving in the car that had been used on this occasion.  Mr Piatkowski made full admissions.  I dealt with him in a plea before this court and I placed him on a Community Corrections Order.  He had little in the way of prior convictions and overall, his situation and his involvement in this offending were extremely different to yours.  You have remained in custody since being arrested for this offending. 

22You have been before the courts on a number of occasions, beginning in 2016 when you were fined on charges of assault with a weapon, unlawful assault, fail to answer bail and criminal damage.  You were further fined for driving offences in that year. 

23On 4 October 2018, you were placed on a Community Corrections Order for 12 months on charges of possessing a firearm and ammunition without a licence, possessing methamphetamine and handling stolen goods.  It would appear your being placed on this Community Corrections Order occurred only a matter of weeks before you committed the offences for which I am sentencing you today.

24The maximum penalty for robbery is 15 years' imprisonment.  The maximum penalty for false imprisonment is 10 years' imprisonment.  The maximum penalty for recklessly causing injury is five years' imprisonment.  The maximum penalty for extortion is 10 years' imprisonment.  And the maximum penalty for possessing a drug of dependence is one years' imprisonment.

25Now, you need to understand, Mr Vann, this is really, really serious offending.  I have stated that I will place you on what is called a combination sentence, that is a term of imprisonment to be followed your release on a Community Corrections Order, but if you ever do anything like this again, I will send you to gaol for years; do you understand me?

26I have received an assessment from the Department of Human Services intellectual disability section, who have found that you do have an intellectual disability.  Because of this, I am going to take a more lenient course than I would otherwise.  But a lot of what you did, Mr Vann, sounds to me, even if you have got an intellectual disability, to be offending that you planned, that took an amount of thinking, you threatened people, you tried to make them think you were going to shoot their brother, you made them think you were going to shoot up their parents’ house, you behaved like some sort of drug thug; do you understand what I am saying?

27OFFENDER:  Yes, Your Honour.

28HER HONOUR:  You say it back to me, what did I just say about your offending?

29OFFENDER:  I was just acting like a drug thug.

30HER HONOUR:  Yes.

31OFFENDER:  (Indistinct words).

32HER HONOUR:  Beating up people.

33OFFENDER:  Yes.

34HER HONOUR:  And you planned what you did all that day, is that right?

35OFFENDER:  It was not really planned, it was just ‑ ‑ ‑

36HER HONOUR:  You kept doing it. 

37OFFENDER:  No, it was not I kept doing it, it just happened out of nowhere, it just ‑ ‑ ‑

38HER HONOUR:  Yes, I am sorry but I am not interested in “it happened out of nowhere”, you decided to do it and you did it; do you understand?

39OFFENDER:  I understand, Your Honour.

40HER HONOUR:  You terrorise people.  Do you know what terrorise means?  You made them really afraid.  You did it on purpose because you wanted money.  I will be placing you on a Community Corrections Order but if you do not do what you are told on this order, you will be brought back before this court and I will sentence you again and I will send you to gaol for a very long time; do you understand me?

41OFFENDER:  Yes, Your Honour.

42HER HONOUR:  You say back to me what I just said to you.

43OFFENDER:  If I do repeat in this again, (indistinct words).

44HER HONOUR:  Yes, you will be going to gaol for years and years; do you understand?

45OFFENDER:  Yes, Your Honour.

46HER HONOUR:  If you did not have an intellectual disability, I would gaol you for a long, long time.  How old is your client now, Ms Ljubicic?

47MS LJUBICIC:  Twenty-two.

48HER HONOUR:  Twenty-two.  You are now 22 years of age.  You were 21 at the time of the offending.  You grew up in your family home in Noble Park with your parents and 11 siblings, you have got seven brothers and three sisters, who are now aged between 39 and 14.  You are the only person in your family to get in trouble with police. 

49You went to a mainstream primary school but you ended up going to the Emerson Specialist School in Dandenong, which looks after students with intellectual disabilities, and you completed Year 10 there and started Year 11.  You left school when you were 17 and you worked as a car dealer at Mazda Dealer in Berwick where you kept working until you were about 19.  You have not had a job ever since.

50You have since been placed in gaol.  You have been working as a kitchen billet, which is a position of trust, and you have completed an occupational health and safety course in custody. 

51You started drinking alcohol and smoking cannabis when you were about 15 or 16, and then when you were 17, were introduced to ice by friends from school and you very quickly began using it every day.  You have never had any treatment for drug or alcohol problems. 

52You have had ongoing support from your mother and your siblings.  They help you with domestic tasks, they manage your finances and they take you to appointments.  I was told that before you were in gaol, you had never lived independently, but I do not accept that because you had a girlfriend and you spent a lot of time at her house. 

53And it seems to me that if you can organise to threaten people and drive around with other people to help you bash people up and to try and get money out of them, you would be perfectly capable of doing things around the house.  I see your mother is in court.  I think you are much more capable of doing things for yourself than may have previously realised by your family. 

54Your family is Cambodian and your parents immigrated here some time ago.  Whilst you were a teenager, your parents separated and you suffered in that time.  I was informed by your older brother on the plea that after the separation, your family had to move home.  You were living in a garage and you received a lot of ill treatment at the hands of your father.  Your mother did the best that she could but things were extremely difficult for you.

55I found it quite difficult to accept the level of your intellectual disability because of the type of offending that you did, because of the way you were able to organise other people to help you assault, to help you frighten Mr Van and frighten his sister and frighten his family. 

56But I received a neuropsychological report from Jane Lofthouse, who found after testing that you suffer what is called a mild intellectual disability.  She stated that because of your intellectual impairment, you were at risk of 'reaching poor decisions', and described you having a long-term pattern of 'behavioural anomalies marked by impulse actions and aggressive responses.  Mr Vann's intellectual impairment should be considered as one contributing factor in this criminal offending.'

57It was submitted that because you were young, I should find that there is less moral culpability by you in this offending.  I take that into account to some extent.  But it is extremely concerning to me that you could behave in this extremely criminal and rather organised way. 

58I agree that because you are young, because you have an intellectual disability, rehabilitation is an important factor that the court must take into account, and that is why I am prepared to place you on a combination sentence which is, as I have said, a term of imprisonment combined with a Community Corrections Order. 

59You have been assessed, as I have said, by the Department of Health and Human Services disability section, you have been found suitable for placement on a justice plan.  It is proposed that you live with your older brother, Mr Ritano Vann in Noble Park. 

60You apparently had a good discussion with the disability justice worker, where you were described as being very honest about choosing the wrong friendship groups after leaving school and that while you have been in gaol, you have started getting on better with your family.  You discussed the importance of keeping good relationships with your family and that you were very ashamed of losing your family's trust. 

61It seems that what you have done is you have started using drugs, you have had a whole lot of friends who have also been using drugs, you spent lots of time away for home, and basically you lost contact with your family and the protection that they can give you.  It was stated, 'Mr Vann clearly showed insight and remorse about his offending and was further aware of the factors that contribute to his offending'. 

62It is proposed, under the justice plan, that you receive treatment for - excuse me - drug and alcohol use.  It was stated that Disability Justice can help you access health and employment services and also, you are entitled to some income from the National Disability Insurance Scheme, which the Disability Justice worker will also help you to access. 

63I therefore am satisfied that it is appropriate on all the circumstances that I place you on a justice plan as a condition of the Community Corrections Order.  The aim is to assist you in addressing factors that contribute to your offending and develop strategies to reduce the risk of recidivism. 

64I therefore sentence you as follows.  On the charge of robbery, you are sentenced to six months' imprisonment.  On the charge of false imprisonment, you are sentenced to six months' imprisonment.  On the charge of recklessly causing injury, you are sentenced to six months' imprisonment.  On each of the charges of extortion with threat to destroy property, you are sentenced to nine months' imprisonment.  On the charge of possessing a drug of dependence, you are sentenced to one week imprisonment. 

65The sentence imposed on Charge 4, nine months, is to be the base sentence.  I am going to order that one month of the sentence imposed on Charge 5, one month of the sentence imposed on Charge 3, and three weeks of the sentence imposed on Charge 1 be served cumulatively to the sentence imposed on Charge 4 and all other sentences, giving a total effective sentence of 11 months and three weeks. 

66I declare that that - what is the PSD today?

67MS LJUBICIC:  Five hundred and thirty-two, Your Honour.

68HER HONOUR:  I note that 532 days have already been served.  I declare that the time in gaol has already been served by way of pre-sentence detention.  You are then to be released on a Community Corrections Order for a period of two years.  I need to explain to you what the conditions are, Mr Vann, all right?

69Number 1, you have to go to the community corrections order in two days, that is by Thursday, all right?  While you are on the order in the next two years, if you do any more offending, you will come back in front of me and I will sentence you again; do you understand?

70OFFENDER:  I understand, Your Honour. 

71HER HONOUR:  Number 3, you have to tell Corrections if you move and you have to tell Corrections if you have a job and if you change that job and you have to tell them that within 48 hours, within two days, all right?  

72While you are on the order, you are not allowed to leave Victoria without the permission of the Community Corrections office, you cannot go to the Community Corrections office if you are under the influence of drug or alcohol, you have to do everything legal that Community Corrections tells you to do, you have to report to Community Corrections and you have to receive visits from them, all right?

73I am also going to order that you have treatment for drug and alcohol use, and you are to undertake a justice plan, all right?  So Intellectual Disability Services will come along and they will have a plan for you and you have to do what they say.  If you do not do all those things, you are going to be brought back in front of me, if you do not do what you are told, if you do not do all the conditions on that order, I will bring you back, you will be brought back here and I will gaol you; do you understand?

74OFFENDER:  I understand, Your Honour.

75HER HONOUR:  All right.  Do you agree to going on the order?

76OFFENDER:  Yes, Your Honour.

77HER HONOUR:  Thank you.  I am also going to order judicial monitoring, we will do that in four months time.  What that means, in four months time, I am going to get a report from everyone about how you are going so I will know what is happening, and you have to go to Community Corrections in four months' time and they will beam you in through video and I will found out exactly how you are going and whether you are doing what you are supposed to do on this order, all right?  So I will be keeping an eye on you, got it?

78OFFENDER:  Yes.

79HER HONOUR:  Thank you. 

80VOICE (from body of court):  Just want to let you know, in you your sentencing notes (indistinct) weeks, because there are different values, like everyone has different value, I will make sure the total effective sentence is achieved but how we get there will be different to what you have said, just to let you know, yes.

81HER HONOUR:  That is all right.  All right.  The first judicial monitoring - it would be a good idea if the family wrote this down, would be on 29 November at half past nine in the morning.  All you have to do is go to the Community Corrections office and they will beam you in, all right?  All right, family got all that?

82VOICE (from body of court):  So 29 November, 9.30, Corrections office.

83HER HONOUR:  Yes, so he does not have to come here, he just goes to the Community Corrections office and they will screen it in. 

84VOICE (from body of court):  All right. 

85HER HONOUR:  All right?

86VOICE (from body of court):  Yep, thank you.

87HER HONOUR:  So Mr Vann, are you really clear about how serious the trouble you are in is?

88OFFENDER:  Yes, Your Honour, I do.

89HER HONOUR:  All right?  You cannot use drugs anymore, you cannot get into trouble anymore, you have to do what your family says and you have to do what people tell you to do on the order; I am really serious about this.  Good, thank you.  I note that the prosecution agree that this is an appropriate sentence in relation to this matter. 

90MS FOOT:  Your Honour, can I just make one comment?

91HER HONOUR:  Yes.

92MS FOOT:  As you were going through the facts of the matter, Your Honour mentioned that the car was identified as this offender's car, it was actually the ‑ ‑ ‑

93HER HONOUR:  No, it was Mr Piatkowski's car. 

94MS FOOT:  Yes, I think there was just perhaps a ‑ ‑ ‑

95HER HONOUR:  Thank you.

96MS FOOT:  ‑ ‑ ‑ a minor slip.

97HER HONOUR:  That is all right.  Thank you very much. 

98MS FOOT:  And there was a disposal order.

99HER HONOUR:  All right, yes I will sign that.  Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of four years and order that you serve a minimum of two years. 

100MS LJUBICIC:  If might just approach my client, Your Honour, to assist?

101HER HONOUR:  Sure.  Thank you.  Mr Vann can be taken downstairs.  He can be collected by the family from downstairs; is that right?

102VOICE (from body of court):  That's correct, Your Honour.

103HER HONOUR:  All right.  Ms Ljubicic will take you downstairs and you can take him home.  Has everybody heard what he has to do?

104VOICE (from body of court):  Yes.

105HER HONOUR:  He is not out of trouble yet, he has still got a way to go, all right?  Good, thank you very much.  All right. 

106MS FOOT:  Your Honour, may I be excused?

107HER HONOUR:  Thank you very much, of course.

108MS FOOT:  Thank you.

109HER HONOUR:  Thank you.

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