DIRECTOR OF PUBLIC PROSECUTIONSvKEVIN LE

[2018] VCC 449

IN THE COUNTY COURT OF VICTORIA  Revised

(Not) Restricted Suitable for Publication

AT MELBOURNE CRIMINAL JURISDICTION

CR 17-02265

DIRECTOR OF PUBLIC PROSECUTIONS

v

KEVIN LE

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JUDGE:	HIS HONOUR JUDGE COISH
WHERE HELD:	Melbourne
DATEOF HEARING:	5 April 2018
DATEOF SENTENCE:	12 April 2018
CASE MAY BE CITEDAS:	DPP v Le
MEDIUMNEUTRAL CITATION:	[2018] VCC 449

Subject: Catchwords: Legislation Cited: Cases Cited: Sentence:

REASONS FOR SENTENCE

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APPEARANCES:  Counsel  Solicitors

For the Director of Public Prosecutions

Ms J. Cavka  Office of Public Prosecutions

For the Accused  Ms J. Fayman  Fayman Lawyers

VICTORIAN GOVERNMENT REPORTING SERVICE

7/436 Lonsdale Street, Melbourne Vic 3000 - Telephone [phone]

HIS HONOUR:

1Kevin Nguyen Le, you have pleaded guilty to one charge of conduct endangering life. This offence carries the maximum penalty of ten years' imprisonment.

2It is unnecessary for me to recount the facts of the matter in detail as they are on transcript and contained in Exhibit 1, the summary of prosecution opening. That opening was accepted by you through your counsel. I proceed to sentence you on the basis of the facts as opened by the prosecutor which I shall now summarise.

3The victim owned eight gyms across Victoria. In April 2015 he opened a new gym in Pakenham. That gym was in competition with the Muscle Max gym in Pakenham. The owner of the Muscle Max gym was associated with the Comanchero outlaw motorcycle gang. I find that the motivation for this offence was to intimidate the victim as a consequence of him establishing a gym in direct competition with the Muscle Max gym in Pakenham.

4On or about 6 May 2015 the first GPS tracking device, GPS1, was installed on the victim's motor vehicle. GPS1 sent and received SMS messages to a mobile phone in the possession of a person who was in possession of clothing with the Comanchero logo. On 7 May 2015 you rang that person. A mobile phone used by  you  sent  a  call  to  GPS1,  and  this  activated  GPS1.    Between  7  and

15 May 2015 you used that mobile phone and contacted GPS1 on 60 occasions. GPS1 sent the location of the victim's motor vehicle to the phone you were using.

5On 15 May 2015 you travelled to Deer Park and replaced GPS1 with a new mobile tracking device, GPS2. This GPS was also activated by receiving a call from the mobile phone that you had been using. Between 15 and 17 May 2015,you used that mobile phone and contacted GPS2 on 25 occasions. GPS2 sent the location of the victim's motor vehicle to the mobile phone you were

using.

6On 21 May 2015, you drove your motor vehicle to the vicinity of the victim's address at 31 Mockridge Avenue, Burnside. Your motor vehicle was displaying different numberplates to its usual numberplates. At about 5 pm, you drove around the victim's address. At about 5.20 pm the victim was en route to his home address. At 5.40 pm you were seen in your motor vehicle parked in Mockridge Avenue before you drove to Boyle Terrace where you waited for the victim to arrive home.

7Shortly after the victim arrived at his home address you drove into Mockridge Avenue at a fast rate of speed and pulled up opposite the victim's motor vehicle.

8I shall quote from the summary of prosecution opening for the description of what then occurred.

[20] An unknown passenger wearing a balaclava that covered his face exited the offender's vehicle, ran up to the driver's side door of the victim's vehicle, and fired three shots from a handgun through the driver's window as the victim sat in the driver's seat of his parked motor vehicle on the nature strip outside his home. The victim saw the shooter and was able to drive away after the second shot was fired. Whilst driving, he felt a sharp pain in his right side near his ribcage and saw blood on his right arm. The victim called his partner and advised her not to attend their property due to the shooting.

[21] "The unknown male returned to the offender's motor vehicle, and the offender drove off at speed.".

[22] "The victim drove to the Sunshine police station, where he was treated for cuts and abrasions to his arm that he had sustained from the shattered glass of the driver's side door."

9On or about 15 July 2015 you arranged for the sale of your motor vehicle. You were arrested on 7 June 2016. You made a no-comment record of interview on 21 June 2016.

10You were therefore the driver of the motor vehicle involved in this incident. You knew the passenger in your motor vehicle had a firearm. You and this passenger had agreed to frighten the victim by approaching him and discharging the firearm.

11I state to you that I have taken into account the following matters in mitigation of sentence. You have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. The community has by your plea been spared the time and cost of a trial. Witnesses have been spared the ordeal of giving evidence upon your trial.

12You pleaded guilty at an early stage. I accept on all the material before me that you are genuinely remorseful. You have no prior convictions. I sentence you as a person of previously good character.

13You did complete a diversion program commencing on 28 July 2014 in respect of an offence of intentionally cause injury committed on 18 March 2013. This does not lessen the weight I attach to your absence of prior convictions and past good character.

14I have been told something of your personal circumstances. You are 27 years of age, having been born on 29 July 1990. You are a single man with no dependents. You come from a strong Vietnamese family. You completed Year 12 at secondary school. You had employment in a call centre and as an apprentice motor mechanic.

15You started using drugs when you were about 23 years of age. You used various substances and your usage reached problematic and unwise levels. You became involved in a drug-related social scene and this led to the connections with others involved in this offending. Thus, through these very inappropriate associations, you became involved in this serious offending.

16You are a young adult and I accept that at the time of this offending you were an immature man. You did take positive steps to turn your life around. Before you were remanded in custody you had been in fulltime employment. You were in a stable relationship and you were drug-free.

17A report from Patrick Newton, psychologist, was tendered on your behalf.  It is

not submitted that any of the well-known principles enunciated in Verdins case apply. I accept Mr Newton's opinions that you are immature, you currently have an adjustment disorder with depression, and you had a moderate substance use disorder with regards to MDMA, cocaine and ketamine. These opinions are relevant to your general personal circumstances.

18I accept that in more recent times you have disassociated yourself from the negative peer group involving drug use and offending. A large number of character references and testimonials were tendered on your behalf. In these references and testimonials you are described as generous, caring, kind- hearted, a member of a close-knit family, passionate about food and cooking, honest, hardworking, loyal and trustworthy.

19You have helped with various charitable causes. The references and testimonials are from friends, family members and a former employer. The number of references and the detail provided by persons supporting you is to your credit. Friends and family have been shocked by your actions. This theme was emphasised in the evidence given on your behalf by your sister, Caroline Le. She had also provided a written reference.

20She said the family was shocked by your acts. She described you as kind, generous, and "a nice guy". Recent pathology reports demonstrate negative urine drug screen test results. You have also undergone psychological counselling, as detailed in the letter from Dida Garcia, dated 29 January 2018.

21I assess your prospects of rehabilitation as being good. Against these matters in mitigation however, your actions were very serious indeed. I assess this offending as objectively serious. There was significant and sophisticated planning and preparation for this offence. The aim of the offending was to intimidate and frighten the victim. This was achieved by the firing of three shots from a handgun through the driver's side window of the victim's motor vehicle whilst the victim sat in the driver's seat of his motor vehicle. That motor vehicle

was parked outside the victim's home in a Melbourne suburb in the late afternoon.

22Whilst the intent was to frighten the victim and not shoot the victim, this still remains an objectively serious example of the offence of conduct endangering life.

23There are victim impact statements from the victim and his partner. The victim describes a terrifying incident. It has had both acute and chronic effects upon him. Not surprisingly the victim thought he was going to die. He was in shock and traumatised by the shooting. He has suffered from anxiety attacks, depression, and he has gained weight.

24He stated that:

"This shooting has taken a huge toll on my health and wellbeing."

25His personal and professional life have been adversely affected. The victim's partner was also in shock. She describes the massive disruption the shooting has caused them.

26One terrible consequence for the victim has been that he has been somehow tainted as a person of bad character. It must be emphasised that he was an entirely innocent and blameless victim of an awful shooting.

27I have had regard to these very detailed victim impact statements, however they must not overwhelm other relevant sentencing considerations. The presentence detention is 98 days.

28As well as the matters to which I have referred, I must also take into account the need for general and specific deterrence. Specific deterrence is less relevant, as you have no prior convictions and I assess your prospects of rehabilitation as being good. General deterrence is of considerable importance in a case such as this. This type of offending, particularly involving the use of a firearm, must be discouraged.

29I am called upon by the Sentencing Act, and it is appropriate, that I manifest the community's denunciation of your conduct. I must also generally impose a just punishment.

30Your counsel submitted that I ought impose a sentence of imprisonment combined with a community corrections order. It was submitted on behalf of the prosecution that an immediate custodial sentence was required.

31This is a case in which I have concluded after engaging in the deliberation required by the Sentencing Act that the sentencing purposes of just punishment, denunciation and general deterrence require a sentence of imprisonment. A combined sentence of imprisonment and a community corrections order is not appropriate.

32Rather, there ought be a sentence and a non-parole period. Whilst I was provided with two County Court sentences on this offence, these are of limited utility.

33Having regard to all relevant facts and appropriate sentencing principles, I sentence you as follows:

34You are convicted and sentenced to three years' imprisonment. The non-parole period is the minimum term that justice requires you to serve, having regard to all the relevant circumstances that exist. For that reason, it cannot be fixed automatically. All relevant factors and sentencing principles are to be taken into account. I have to consider when you should be eligible for mitigation of confinement, and in turn rehabilitation under conditional supervision.

35In all the circumstances, I direct that you serve a minimum terms of two years' imprisonment before becoming eligible for parole.

36As prescribed by s.18(4) of the Sentencing Act, I declare that the period of time you have spent in custody is 98 days, which is to be reckoned as time already served under the sentence.  I direct that such be noted in the records of the

court.

37I have made the disposal order sought by the prosecution. Pursuant to s.6AAA of the Sentencing Act, I state that the sentence and non-parole period I would have imposed but for the plea of guilty is four years with a non-parole period two years and six months.

38Does that cover all the formalities?

39COUNSEL:  Yes, thank you Your Honour.

40HIS HONOUR: Yes, thanks very much. You can remove the prisoner, thank you.

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