Nguyen v The King
[2023] VSCA 212
•6 September 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0102 |
| CAO THIEN NGUYEN | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | BEACH and WALKER JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 September 2023 |
| DATE OF JUDGMENT: | 6 September 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 212 |
| JUDGMENT APPEALED FROM: | [2023] VCC 724 (Judge Cahill) |
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CRIMINAL LAW – Appeal – Sentence – Armed robbery in company – Category 2 offence – Applicant required to be sentenced to term of imprisonment without community correction order – Sentenced to 2 years, with non-parole period of 1 year – Manifest excess – Whether sentence manifestly excessive – Not reasonably arguable that sentence manifestly excessive – Application for leave to appeal refused.
Crimes Act 1958, s 75A, Sentencing Act 1991, s 5(2H).
Azzopardi v The Queen (2011) 35 VR 43, Bugmy v The Queen (2013) 249 CLR 571, Clarkson v The Queen (2011) 32 VR 361, R v Mills [1998] 4 VR 235, R v Verdins (2007) 16 VR 269, Worboyes v The Queen [2021] VSCA 169, referred to.
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| Counsel | |||
| Applicant: | Mr CK Wareham with Ms M McDonald | ||
| Respondent: | Mr CB Boyce KC | ||
Solicitors | |||
| Applicant: | Slades and Parsons | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
BEACH JA
WALKER JA:
The applicant pleaded guilty in the County Court to one charge of armed robbery, contrary to s 75A of the Crimes Act 1958. The maximum term of imprisonment for the offence of armed robbery is 25 years. When committed by an offender in company with one or more other persons, as the applicant did in this case, the offence is a category 2 offence within the meaning of s 3(1) of the Sentencing Act 1991. Being a category 2 offence, s 5(2H) of the Sentencing Act obliged the sentencing judge to impose a period of imprisonment without a community correction order unless one of the exceptions in s 5(2H)(a)–(e) was established.
On 4 May 2023, following a plea hearing conducted on 19 April 2023, the applicant was sentenced to a term of imprisonment of two years, with a non-parole period of one year.[1] Pursuant to s 18 of the Sentencing Act, the judge declared a period of 288 days as pre-sentence detention. Additionally, pursuant to s 6AAA, the judge declared that, but for the applicant’s plea of guilty, he would have sentenced the applicant to three years’ imprisonment, with a non-parole period of two years.
[1]DPP v Nguyen [2023] VCC 724 (‘Reasons’).
The applicant now seeks leave to appeal against his sentence on the ground that the head sentence and non‑parole period are each manifestly excessive. For the reasons which follow, the application for leave to appeal will be refused.
Circumstances of the offending
On 24 June 2022, the applicant telephoned the victim of his offending and arranged to purchase a bottle of whiskey from him for $250. They arranged to meet at an address suggested by the applicant. At approximately 9.00 pm, the victim and his friend attended the pre-arranged address. When they arrived, the applicant was standing in the driveway of the address.
The victim got out of his car and spoke to the applicant about the whiskey purchase. At the same time, two co‑offenders, wearing balaclavas and carrying machetes, ran from a nearby reserve towards the victim and the applicant. The victim took a golf club from the boot of his car to defend himself. The two co‑offenders slashed the golf club with their machetes. The applicant released the car’s boot lock. Together with his co‑offenders, he then took the whiskey bottle from the boot. As the applicant and his co‑offenders ran off, one of the co‑offenders smashed the victim’s windscreen with his machete.
The applicant was arrested on 20 July 2022. At interview, he denied any knowledge of the robbery. He was then charged and remanded in custody. Subsequently, he pleaded guilty at a committal mention.
Applicant’s background
The applicant was born in Vietnam in 2003. He was 19 at the time of his offending, and 20 at the time of sentencing. While the applicant was a child in Vietnam, his father passed away as a result of a drug overdose. His mother subsequently formed a relationship with a man who also struggled with drug addiction. That relationship eventually ended, and the applicant’s mother later commenced another relationship with a man who eventually sponsored the applicant’s family to come to Australia in 2012.
The applicant left school at the end of Year 11. He commenced, but did not complete, pre‑apprenticeship courses in plumbing, bricklaying and carpentry. He was briefly employed as a plumbing apprentice and subsequently held various warehouse roles.
In 2020, the applicant was involved in an altercation which resulted in a fatal stabbing. He was charged with murder and spent a month in juvenile remand custody. On 19 November 2020, he was released on intensive bail. Subsequently, the applicant pleaded guilty to a charge of violent disorder. On 22 June 2022, two days before his current offending, the applicant was sentenced to a good behaviour bond without conviction.
Plea hearing
On the plea, the applicant tendered an intensive bail progress report dated 8 June 2022. The report stated that, since his release from custody on 19 November 2022, the applicant had been compliant with all aspects of his intensive bail and that he had attended 78 out of 81 scheduled appointments.
The applicant also tendered a report from a clinical psychologist, Carla Lechner. Ms Lechner conducted a psychological assessment of the applicant on 29 March 2023. In her report, Ms Lechner said that the applicant presented with symptoms of Complex Post-Traumatic Stress Disorder, such as chronically low self‑esteem, inter‑personal mistrust, emotional and behavioural dysregulation and hyper vigilance. Ms Lechner said that the applicant would benefit from trauma‑informed psychotherapy that would assist him in understanding and changing unhelpful patterns of behaviour in response to triggers from the past. She said that he would also benefit from social skills, assertiveness and communication training in order to better respond to negative peer pressure.
On the plea, the applicant’s counsel acknowledged that a prison sentence was ‘inevitable’ – armed robbery, committed in company, being a category 2 offence. She submitted, however, that mitigating factors (which included the applicant’s early guilty plea, his remorse, his psychological condition, his youth and his traumatic and dysfunctional childhood) should moderate the sentence to a term which did not exceed the time that he had already spent in custody.
The prosecutor submitted that a prison term was required. She contended that the applicant’s offending was a serious example of armed robbery – there having been a degree of planning which had involved the luring of the victim to a place near a reserve at night where the co‑offenders (who were both armed with, and used, machetes) would make a surprise attack.
Sentencing reasons
The judge summarised the circumstances of the applicant’s offending,[2] his criminal history,[3] and his personal circumstances.[4] He then summarised Ms Lechner’s report,[5] noting her opinion that the applicant’s ‘post‑trauma symptoms are likely to be aggravated in the prison environment’ and that his imprisonment was likely to be more burdensome than for a person who did not suffer from the applicant’s mental health problems.[6]
[2]Reasons [3]–[6].
[3]Ibid [12]–[13].
[4]Ibid [14]–[26].
[5]Ibid [27]–[35].
[6]Ibid [35].
After setting out the parties’ submissions,[7] the judge said that violent theft offences ‘are invariably a terrifying experience and threaten the community’s sense of security’.[8] The judge then said that there were a number of concerning features of the applicant’s offending, namely:
(a)there was a degree of planning which involved targeting the victim using the pretext of a liquor purchase and choosing the place where the offending occurred;
(b)the applicant committed his offending in company with two co‑offenders;
(c)the offending was committed at night; and
(d)while there was no physical harm to the victim, the co‑offenders used their weapons when he attempted to defend himself, and one of them gratuitously damaged his vehicle as they left.[9]
[7]Ibid [39]–[51].
[8]Ibid [52].
[9]Ibid [55].
The judge assessed the objective gravity of the applicant’s crime to be ‘low to mid‑range’.[10]
[10]Ibid [58].
The judge took into account a number of mitigating factors to moderate the sentence he would impose. Specifically, the judge accepted that:
(a)the applicant was entitled to a demonstrable sentencing benefit for the high utilitarian value of his early plea of guilty which, as his Honour said, attracted Worboyes[11] considerations;[12]
(b)the applicant’s plea and its timing and his expressions of contrition to Ms Lechner showed that he was remorseful;[13]
(c)the applicant’s childhood exposure to developmental trauma moderated his moral culpability to a modest degree, referring to Bugmy v The Queen;[14]
(d)the applicant had a ‘vulnerability to peer pressure’, which influenced his decision to become involved in the offending;[15]
(e)the applicant suffered from post‑traumatic symptoms which were likely to be aggravated in the prison environment and which would make prison harder for him than for a prisoner without the applicant’s mental health problems;[16] and
(f)the applicant was a young offender and, while appropriate weight had to be given to general and specific deterrence, his rehabilitation remained ‘a primary sentencing consideration’.[17]
[11]Worboyes v The Queen [2021] VSCA 169 (‘Worboyes’).
[12]Reasons [60].
[13]Ibid [61].
[14](2013) 249 CLR 571.
[15]Reasons [62].
[16]Ibid [63].
[17]Ibid [64].
The judge said that, while it was not easy to assess the applicant’s prospects of rehabilitation, there were ‘protective factors’ for his rehabilitation: namely, the applicant’s youth, his remorse, his limited criminal record, his solid work history, and his family support.[18]
[18]Ibid [65].
The judge rejected the applicant’s submission that he should impose a straight sentence equivalent to time served, saying that a prison term of 9 months was insufficient to achieve sentencing purposes, which included general deterrence and just punishment as well as the applicant’s rehabilitation. The judge said that a prison sentence without an opportunity for release under supervision would be detrimental to the applicant’s rehabilitation.[19] The judge concluded by saying:
Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charge of armed robbery you are sentenced to two years’ imprisonment.
To mitigate punishment in favour of your rehabilitation, I fix a minimum non‑parole period of one year.[20]
[19]Ibid [68].
[20]Ibid [70]–[71].
Applicant’s submissions
The applicant contended that the sentence imposed by the judge was not reasonably open if proper weight had been given to all relevant sentencing factors. In support of that contention, the applicant advanced the following submissions:
(1)The applicant was a youthful offender with a limited criminal history. His youth was a powerful and important consideration in the sentencing synthesis.[21] The weight which ought to have been attached to his youth was not adequately reflected in the sentence ultimately imposed.
(2)The applicant indicated his intention to plead guilty at the earliest opportunity. His plea obviated the need for the victim to be cross-examined, either at committal or at trial, and spared the courts and community the time and expense of a trial. Moreover, as this Court said in Worboyes, a plea of guilty entered during the COVID-19 pandemic has an additional utilitarian benefit. The applicant’s concessions to Ms Lechner demonstrated insight into his offending. While the judge referred to the applicant’s plea of guilty, Worboyes and the applicant’s remorse, the sentence imposed demonstrates that the judge did not sufficiently reduce the sentence to take these matters into account.
(3)The applicant’s background of hardship and deprivation ‘called for an assessment that his moral culpability was greatly reduced’. While the judge accepted that the applicant’s exposure to developmental trauma moderated his moral culpability to a ‘modest degree’,[22] his Honour failed to give these factors sufficient weight when arriving at the head sentence and non‑parole period imposed.
(4)While the judge accepted the evidence of Ms Lechner that the fifth and sixth propositions in R v Verdins[23] were engaged, he did not link this to the fact that the sentence of imprisonment to be imposed would be the applicant’s first time in custody.
(5)The applicant’s offending ‘lacked sophistication’ and the value of the property stolen was ‘relatively low’. The applicant himself was not armed and he did not disguise himself. Moreover, the offending was of relatively short duration, ‘lasting only minutes’. While the judge assessed the objective gravity of the offending as low to mid‑range, the sentence actually imposed does not adequately reflect the overall nature and gravity of the offending.
[21]See R v Mills [1998] 4 VR 235. See also Azzopardi v The Queen (2011) 35 VR 43.
[22]Reasons, [62].
[23](2007) 16 VR 269.
Consideration
As has been said many times before, the ground of manifest excess will only succeed if it can be shown that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[24] That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did, if proper weight had been given to all of the relevant circumstances of the offending and the offender. As has also been said many times, this is a stringent requirement, difficult to satisfy.[25]
[24]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
[25]Ibid.
By reason of s 5(2H) of the Sentencing Act, the judge was required to sentence the applicant to a term of imprisonment without combining that term of imprisonment with a community correction order. So much was acknowledged by the applicant’s counsel during the course of the plea and in this Court. While the value of the item stolen by the applicant and his co‑offenders was relatively modest, the applicant’s offending was a serious example of the commission of a serious offence. This was a planned armed robbery committed by the applicant in company and at night. Worse, it was committed a mere two days after the applicant had been dealt with by way of an adjourned bond to be of good behaviour.
As the Reasons disclose, after taking into account the matters in mitigation relied upon by the applicant, the judge sentenced him to a term of imprisonment that was a mere 8 per cent of the maximum term. In all the circumstances, and while one cannot allow mathematics on their own to determine whether a sentence is or is not within range, it is difficult to see how it could sensibly be suggested that the head sentence of two years imposed by the judge was wholly outside the permissible range, given the seriousness of the offending.
The same point may be made with even more force in relation to the non‑parole period fixed by the judge. The non‑parole period was only 50 per cent of the head sentence and, as the judge said, it was fixed so as to mitigate the punishment of the applicant in favour of his rehabilitation.[26]
[26]Reasons, [71].
The Reasons disclose that the judge appropriately considered each of the matters relied upon by the applicant in mitigation of sentence. Additionally, the head sentence and non‑parole period fixed by the judge show that his Honour gave appropriate weight to all of those matters when he imposed a sentence which was, in all the circumstances, moderate. There is no basis upon which it could be concluded that the sentence imposed by the judge was manifestly excessive. The contrary is not reasonably arguable.
Conclusion
It is not reasonably arguable that the sentence imposed on the applicant was manifestly excessive. His application for leave to appeal must therefore be refused.
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