Nguyen v Aisin Australia Pty Ltd
[2012] VCC 799
•18 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00590
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRYON EAST |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 June 2012 | |
DATE OF SENTENCE: | 18 June 2012 | |
CASE MAY BE CITED AS: | DPP v East | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 799 | |
REASONS FOR SENTENCE
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Catchwords: Armed robbery with a knife – Recklessly cause serious injury (knife wound) – Robbery – R v Williams [2005] VSCA 274 and R v Bailey (2988) 25 A Crim R 458 regarding hardship due to time being served in protective custody – R v Vance [2008] VSC 468 regarding knife attacks – Sentence of 4 years 6 months with a non-parole period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Livitsanos | Office of Public Prosecutions |
| For the Accused | Mr N. Goodenough Ms E. Bradley | Leanne Warren & Associates |
HER HONOUR:
The charges
1 Bryon East, you have pleaded guilty to one charge of armed robbery, one charge of recklessly causing serious injury and one charge of robbery. The maximum penalty for armed robbery is 25 years while the maximum for recklessly causing the serious injury and robbery is 15 years.
Circumstances of offending
2 The circumstances of your offending are that on Wednesday 11 January 2012 the complainants, Michael Hume, Allison Hickox and her son, Michael Seigel, went to Shakespeare's Tavern in Frankston. They left this venue at about midnight and walked along the Nepean Highway where they met you and your co-offender, Paul Wright. After talking with you, Michael Hume asked if you knew where they could meet some females and you and Paul Wright suggested that you knew where they could meet some females and invited them to join you at a party at Seaford.
3 You mentioned that you "didn't have any grog" and Michael Hume stated that he was financial. Ms Hickox was not keen to go to the party at Seaford and said she wanted to go home. You and Paul Wright then attended a gaming venue at the Grand Hotel in Frankston. You were joined there by Michael Hume for a short time before you all left the venue and went back into Davies Street and rejoined Ms Hickox and her son.
4 A verbal altercation then occurred between you and Ms Hickox because she was saying she was not going to Seaford. Michael Hume intervened and became involved in the argument which resulted in a physical altercation between you and him. Apparently he punched him and you produced a knife and stabbed him to his left forearm causing a laceration approximately three centimetres long. Michael Hume then ran away and was chased by you and Paul Wright along Davies Street towards the arts centre.
5 As you were chasing him Paul Wright continued to encourage you but yelling out "just cut his throat, cut his throat". You and Paul Wright eventually caught up with Michael Hume and demanded money from him while you brandished the knife. Michael Hume opened his wallet and gave Paul Wright $200 in cash however when Paul Wright saw that there was more money in the wallet he demanded it all and Michael Hume handed over $900. These facts relate to the charge of armed robbery.
6 Ms Hickox then arrived on the scene and Paul Wright punched her to the face knocking her to the road unconscious. While she was lying there he took her handbag containing personal property valued at $300 and this action relates to the charge of robbery.
7 You and Paul Wright then ran from the scene. Mr Hume and Ms Hickox were taken to Frankston where they were both admitted. Mr Hume was treated for concussion, bruising and swelling of his face. He had damage to his triceps tendon from the stab wound and underwent surgery which relates to the charge of recklessly cause serious injury. Ms Hickox was treated for a fractured noise, loose teeth, concussion, bruising and swelling below her left eye.
8 You were arrested on Monday 23 January 2012 at your parent's address and taken to the Frankston police station for an interview where you made admissions regarding your role in this incident. Paul Wright was arrested on Friday 24 January 2012 and he made a no comment interview.
Personal circumstances
9 Turning to your personal circumstances, you are 35 years old having been born in Dandenong on 20 January 1977. You have a good relationship with your parents and you have three siblings who have not been in any trouble with the law. You attended Hastings Primary School and then Mornington Technical School through until Year 9. However it appears that your schooling was problematic as you ceased attending because you were doing too much wagging and you were in fact sent to Baltara for a short period. Your employment has been somewhat erratic but at one stage you worked in a factory for up to 12 months.
10 You had a problem with alcohol when you were younger. You ceased drinking approximately six years ago when you were diagnosed with a hernia. You started smoking cannabis aged 15 and using amphetamines at 16. At 18 you used heroin. From your mid-20's you experimented with and abused Xanax and Valium. It appears, however, that amphetamines are your main problem. In fact, for approximately three days prior to this offending you had been using them in conjunction with Xanax and Valium.
Criminal history
11 Your criminal history is 18 pages long. You have had 39 court appearances for some 160 offences. It appears that most of these offences have been committed to finance your drug habit. Most of the charges are for theft and burglary and do not involve violence. However, there are three previous offences involving violence: a recklessly cause injury in 1996, a reckless conduct endangering life and serious injury in 1998 and recklessly causing injury in 2009.
Psychological report
12 Your counsel tendered a psychological report from Mr Jeffrey Cummings, who stated that in an interview you had acknowledged that it was inevitable that you would be required to serve a further sentence of significant duration. In his opinion, you were at risk of becoming institutionalised. However, on a more positive note, Mr Cummings reported that you now appreciated that you should participate in a long term residential drug rehabilitation program and an anger management program.
Defence submissions
13 In mitigation of your offending, your counsel relied on the following matters:
· your early guilty plea and cooperation with the police;
·
the fact that you had accepted your share and responsibility for the charge of robbery although
Mr Wright had been the main offender;
· that the robbery was not planned;
· that prior to that you had been on the bender for some days as you had lost your job, your girlfriend and access to your two year old daughter;
· that despite your long record, your offending had usually been without violence and that Mr Hume had punched you prior to you producing the knife.
14 With respect to your rehabilitation, your counsel submitted that your drug addiction was under some sort of control because you were on methadone. In addition, he submitted that you had some prospects as you had your heavy machinery licence and you had worked. More importantly, you told him that you were too old for all of this and that you needed a change. You had a son who was 17 and the fact that you had no involvement in his life troubled you. Your number one priority was not to repeat this pattern and that you wanted to be a good father to your daughter.
15
With respect to your time in custody your counsel relied on the decision of
R v Williams[2007] VSCA 131 in submitting that it would be more burdensome because you were in protective custody. He submitted that an appropriate sentence was three and a half to four years with a long parole period.
Prosecution submissions
16 The prosecutor, on the other hand, submitted that general deterrence and specific deterrence were important considerations in crimes such as yours and that they weighed heavily and denunciation of your crime was also important. You had attacked two complainants who were enjoying a night out on the town and you had not cooperated to identify your co-offender. The prosecution indication for sentence was four and a half to six and a half years with a non-parole period of three to four and a half years.
Sentencing remarks
17 In sentencing you I have taken into account all the mitigating matters mentioned by your counsel. You pleaded guilty and you are entitled to a discount for your plea of guilty. I accept that, despite your long record, if you get some treatment for your drug problems, you are not without some chances of rehabilitation.
18 In accordance with not only with R v Williams [2005] VSCA 274 but also a number of other authorities, including R v Bailey (2988) 25 A Crim R 458, where it was stated;
"It has for a long time been the practice in this court to take into account circumstances which make the incarceration of the prisoner more burdensome upon him than would be the case of the ordinary gaol inmate".
19 I accept and take into account that you will do your time harder due to the fact that you are in protective custody. In addition, in sentencing you, I have taken into account the need for specific and general deterrence as well as denunciation of your conduct. Although there was no victim impact statement I have no doubts that this was a frightening and painful deal for your victims who were simply trying to have an enjoyable evening out.
20 In assessing the seriousness of the offence of recklessly cause serious injury, I must also take into account that you used a knife to inflict the injury. This is because the use of such a weapon carries the obvious risk of serious injury to the victim. In R v Vance [2008] VSC 468, His Honour Justice Coghlin said "The use of knives in the community is to be abhorred. It is in these circumstances that injuries more serious than those actually intended occur". Both you and your victim are lucky that the injury inflicted in this case was not more serious than it was. Would you please stand up.
Sentence
21 On the Charge 1, or armed robbery, you are sentenced to three years imprisonment. On Charge 2, recklessly cause injury, you are sentenced to two years imprisonment. On Charge 3, robbery, you are sentenced to 18 months. I cumulate 12 months of the sentence of recklessly cause injury on Charge 1 of armed robbery and I cumulate six months of Charge 3 on Charge 1 of robbery. This means that the head sentence is a sentence of four years and six months. I declare that you are to serve three years before being eligible for parole.
22 I declare 148 days as pre-sentence detention. I make a compensation order in the sum of $300 for Allison Hitchcock and $900 for Michael Hume. But of are your plea of guilty you would have been sentenced to six and a half years to serve four years.
23 In respect to the citations of the cases I referred to counsel can get them from my Associate.
24 MR LIVITSANOS: Your Honour.
25 HER HONOUR: Yes, you can sit down. Thank you, is there anything else?
26 MR LIVITSANOS: No there's not, Your Honour.
27
HER HONOUR: Yes, if you want the citations I can give them to you now. It's just I don't particularly like having to quote them in front of the prisoner.
R v Baileyis [1998] 25 A Crim R 458, R v Vance [2008] VSC 468 where Justice Coghlin made the quote I referred to about the knives.
28 MR LIVITSANOS: Your Honour pleases. Thanks, Your Honour.
29 MS BRADLEY: Thank you, Your Honour.
30 HER HONOUR: I think that's it for the moment.
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