Nguyen v The King
[2024] VSCA 290
•28 November 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0115 |
| ANH THAI NGUYEN | Appellant |
| v | |
| THE KING | Respondent |
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JUDGES: | PRIEST and T FORREST JJA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 November 2024 |
DATE OF JUDGMENT: | 28 November 2024 |
MEDIUM NEUTRAL CITATION: | [2024] VSCA 290 |
JUDGMENT APPEALED FROM: | DPP v Nguyen [2023] VCC 1171 (Judge Cannon) |
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CRIMINAL LAW – Appeal – Sentence – Recklessly exposing an emergency worker to risks by driving and reckless conduct endangering life – Appellant drove vehicle on pedestrian footpath to evade police – Police officer exposed to risk – Pedestrians and workers endangered – Total effective sentence of 7 years’ imprisonment with 5 years non-parole – Whether individual sentences manifestly excessive – Whether orders for cumulation resulted in a total effective sentence that is manifestly excessive – Whether principle of totality breached in circumstances where one course of conduct resulted in multiple victims – Lack of remorse – Poor criminal history for driving offences – Appeal dismissed.
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| Counsel | |||
| Appellant: | Mr T Kassimatis KC with Ms A Balkin | ||
| Respondent: | Ms DI Piekusis KC | ||
Solicitors | |||
| Appellant: | Papa Hughes Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
•
PRIEST JA
T FORREST:
Introduction
Pursuant to leave granted by Taylor JA on 8 December 2023,[1] Anh Thai (‘Jackie’) Nguyen appeals against a total effective sentence of seven years’ imprisonment, with a non-parole period of five years, imposed by a County Court judge on 8 June 2023 for recklessly exposing an emergency worker to risk by driving[2] (one charge – charge 1) and reckless conduct endangering life[3] (six charges – charges 2 to 7 inclusive), imposed following jury verdicts in a trial in which the principal issue was identity.
[1]Nguyen v The King [2023] VSCA 309 (Taylor JA) (‘Leave reasons’).
[2]Crimes Act 1958, s 317AE. The maximum penalty is 10 years’ imprisonment.
[3]Crimes Act 1958, s 22. The maximum penalty is 10 years’ imprisonment.
The structure of the sentence imposed may readily be appreciated when it is set out in tabular form:
Charge Offence Sentence Cumulation 1 Recklessly exposing an emergency worker
to risks by driving4 years Base 2 Reckless conduct endangering life 3 years and 8 months 8 months 3 Reckless conduct endangering life 3 years and 8 months 8 months 4 Reckless conduct endangering life 3 years and 8 months 8 months 5 Reckless conduct endangering life 3 years and 6 months 4 months 6 Reckless conduct endangering life 3 years and 6 months 4 months 7 Reckless conduct endangering life 3 years and 6 months 4 months Total effective sentence: 7 years’ imprisonment Non-parole period: 5 years Pre-sentence declaration: 418 days Other orders: Pursuant to s 89 of the Sentencing Act 1991, driver licence cancelled and disqualified for 2 years.
The appellant’s sole ground of appeal contends that the individual sentences of imprisonment are manifestly excessive, and the orders for cumulation resulted in a total effective sentence that is too long, as is the non-parole period.
For the reasons that follow, we would dismiss the appeal.
The offending
In her reasons granting leave to appeal, Taylor JA summarised the appellant’s offending as follows:
[5]On 5 March 2019 the applicant did not hold a driver licence. Whilst driving he was intercepted by police performing mobile bicycle traffic patrol duties. After evading the police members he was subsequently found travelling, at an estimated 40–60 km/h, eastbound on the footpath of Olympic Boulevard towards the corner of Punt Road in the area of the Swan Street Bridge/Richmond station. Olympic Boulevard, including its footpath, was then under construction. About 30–40 people were scattered at the worksite.
[6]The applicant was pursued by Leading Senior Constable Lawther. Confronted by barricades at the intersection, the applicant conducted a three-point turn and accelerated towards LSC Lawther. She was required to dismount and jump out of the way. LSC Lawther then pushed her bicycle towards the applicant’s car to protect herself (charge 1). The applicant accelerated past her and, in an erratic manner, drove along Olympic Boulevard in a westerly direction.
[7]Three school students were walking along the northern footpath of Olympic Boulevard towards Punt Road. Hearing a commotion and injunctions to ‘get out of the way’, each ran from the applicant’s path of travel, being the footpath on the wrong side of the road and at about 40 km/h (charges 2–4).
[8]The applicant then executed a U-turn and drove back down the same footpath.
[9]Two men were working as cable jointers in and near a service pit within the median strip between two pavements on the northern side of Olympic Boulevard. A third was working as a traffic controller to keep the cable jointers safe. The service pit had no tape or barrier around it. The applicant sped past the jointer in the pit (charge 5). The other was forced to jump into the back tray of his truck to avoid being hit (charge 6). The traffic controller also had to evade the applicant’s vehicle (charge 7).
The reasons for granting leave to appeal
Although Taylor JA granted leave to appeal, she was not persuaded that any individual sentence imposed by the sentencing judge was manifestly excessive. Her Honour said that she was
not persuaded that it is reasonably arguable that any of the sentences imposed on the individual charges were manifestly excessive. In particular, I do not accept the applicant’s argument that there is nothing remarkably serious about his offending beyond the inherent seriousness of the offences. Nor do I accept that statistical analysis based on the Sentencing Advisory Council data or cases cited as comparative demonstrate the sentences imposed to be wholly outside the range.[4]
[4]Leave reasons, [44].
Turning to the complaint that the sentencing judge gave too much weight to some matters and insufficient weight to others, Taylor JA was of the view that the sentencing judge
correctly characterised the seriousness of the offending and the applicant’s moral culpability. The applicant had no remorse or insight. He maintained at his plea that it had not been him driving the vehicle. His significant criminal history and prior convictions for driving offences, coupled with a lack of insight into his substance use issues, led the judge to correctly find that his prospects of rehabilitation were ‘fairly poor’. There was nothing in the material before the judge to warrant any reduction in moral culpability. Further, the matters available to moderate sentence were considered.[5]
[5]Ibid [45].
Ultimately, Taylor JA granted leave to appeal solely on the basis that it was reasonably arguable that the orders for cumulation resulted in a total effective sentence that is manifestly excessive. She observed:
While there is no error in the making of orders for cumulation to reflect the impact of the applicant’s driving on each victim involved, given the overlapping nature of the criminality of the charges arising out of the same temporally limited conduct — that is, charges 2, 3 and 4 (travelling west) and charges 5, 6 and 7 (travelling east) — it is reasonably arguable that the particular orders for cumulation made are ‘out of kilter’ and resulted in a total effective sentence that was manifestly excessive. That is, the six charges did not arise from distinct aspects of the applicant’s driving[6] but rather each set of three charges resulted from one aspect, being either the first or second occasion on which the applicant drove on the footpath. Further, it is not apparent from the Reasons why charges 2, 3 and 4 each attracted orders for cumulation double that of each of charges 5, 6 and 7.[7]
[6]See Russell [(2021) 97 MVR 149, 160 [27]] [2021] VSCA 221, [27] (Priest JA, Niall JA agreeing at [30]).
[7]Leave reasons, [49].
The appellant’s submissions on appeal
In support of the ground of appeal, counsel for the appellant submitted that the sentence on charge 1 was a ‘statistical outlier’. By reference to statistics published by the Sentencing Advisory Counsel, counsel submitted that the sentence imposed on charge 1 was double the most common sentence imposed for the offence of recklessly exposing an emergency worker to risks by driving, and equal to the longest sentence imposed for the offence. Further, the sentences imposed on charges 2 to 7 were well into the upper end of the statistical range for offences against s 22 of the Crimes Act 1958. Counsel submitted that the sentences imposed on the appellant were ‘unusually high’, and invite careful scrutiny; in particular, of the objective gravity of the offence and the appellant’s moral culpability.
Counsel for the appellant submitted that the sentencing judge found the appellant’s moral culpability to be ‘high’. But what was serious about this offending, counsel submitted, is that it posed a risk to an emergency worker and endangered other persons’ lives. Those features were elements of the offences, and thus necessarily will be present in all cases. Counsel submitted that, those things aside, however, there was nothing particularly serious about the offending. The offending was spontaneous, of apparently short duration and poorly executed (committed in a car registered to the appellant’s partner). Counsel submitted that, whilst it is true that there were a number of people around, that factor is what resulted in there being multiple charges.
Additionally, the appellant’s counsel relied on a number of comparative cases (so-called) in order to try and make good that the sentence imposed on the appellant on charge 1 is excessive.[8] Counsel also submitted that the sentences on charges 2 to 7 be seen to be extremely stern when it is appreciated that they involved conduct no more serious than that on charge 1 but were seen to warrant sentences approaching four years’ imprisonment.
[8]Counsel referred to: Hutchison v The Queen (2021) 64 VR 450 and Kehayias v The Queen (2021) 97 MVR 364; and to Nelson v The Queen [2020] VSCA 219; Jaeger v The Queen (2020) 92 MVR 95; Clark v The Queen (2021) 98 MVR 280 and McKay v The King [No 2] (2023) 103 MVR 249 (which involved an aggravated version of the offence). Counsel also referred to a number of County Court sentences: DPP v Roberts [2020] VCC 1195; DPP v O’Sullivan [2020] VCC 1449 and DPP v Cox [2021] VCC 1942.
Counsel for the appellant submitted that the principle of totality required that the total effective sentence reflect the appellant’s overall criminality. In the present case, counsel contended, all of the offences occurred in a single continuous episode of driving over what appears to have been a relatively short period of time, and all arose from the appellant’s ‘reactive’ attempt to avoid police detecting what would have only been an infringement offence. Counsel acknowledged, however that within that single continuous episode, there were discrete acts. Thus, charges 2 to 4 arose from the appellant driving on the footpath at about 40 km/h a few metres from three victims; and charges 5 to 7 arose from the appellant driving back along the same footpath in the vicinity of other victims.
In arriving at the orders for cumulation, counsel submitted, the sentencing judge does not appear to have sufficiently acknowledged the overlapping nature of the criminality across the charges; and in particular, the charges arising out of the same conduct (charges 2 to 4 and 5 to 7 respectively). Where a single criminal act or course of conduct constitutes multiple offences because there are multiple victims, most of the purposes of punishment will be reflected in the sentence on the main charge.[9] Counsel submitted that the orders for cumulation rendered the sentence ‘crushing’, because it ‘would not hold out a proper measure of hope for, and encouragement to, rehabilitation and reform’.[10]
[9]Counsel cited Davidson v The Queen (2022) 100 MVR 336, 349 [36] (Brereton JA).
[10]Postiglione v The Queen (1997) 189 CLR 295, 341 (Kirby J).
Finally, counsel for the appellant submitted that the following matters support the contention that the non-parole period is manifestly excessive:
· the appellant’s solid work history;
· his recent gap in offending (from 2015 to 2019);
· his previous successful completion of community correction orders;
· his good progress in prison;
· family support;
· the availability of stable accommodation; and
· the fact that this was by far his longest sentence of imprisonment.
The appellant’s personal circumstances and mental state
The appellant, now aged 49 years, was 43 when he offended. He was born in Vietnam in 1975, and arrived in Australia in about 1989, becoming an Australian citizen. He left school before completing year 11, and did a carpentry course. The appellant has worked as a carpenter and as a baker (1996 to 2018); and, at the time of the offending, was working as a handyman and shopfitter. He has a ‘complex’ relationship with the mother of his children.
Dr David Trainor, a consultant psychiatrist with Forensicare, in a report dated 21 March 2023, had assessed the appellant due to concerns about his mental health in custody. With respect to Dr Trainor’s report, the judge made the following observations:[11]
[T]he report from Forensicare dated 24 March 2023 indicated that there was insufficient evidence to conclude that you had a chronic and enduring psychotic illness such as schizophrenia, and that most likely you had experienced stress-related psychotic symptoms secondary to incarceration which had improved with anti-psychotic medication. There was no evidence of a mood disorder. Dr Trainor also said it was difficult to comment with any degree of certainty about whether you were mentally unwell at the time of the offending, as you provided no details of the offending at interview. Of course, this is consistent with your stance that you were not the driver of the car, which you have maintained. However, Dr Trainor said there was no evidence which suggested that before the offending you had a history of major mental illness, and nothing to suggest you were mentally unwell during your incarceration after the offending. Dr Trainor said that it was therefore more likely than not that mental illness did not influence your offending in any way.
He said that it was likely that you were using substances around the time of the offending, as you used these chronically, based on the history you provided at interview. He said that substance use may have increased the likelihood that you would offend by way of impairing your judgment and increasing disinhibition and impulsivity.
He said that you have a long history of substance use, predominantly heroin, but also methamphetamine in the last few years. You showed little insight into your substance abuse or use issues. He said that you met the criteria for opioid-use disorder in early remission in a controlled environment, and stimulant-use disorder in early remission in a controlled environment.
Therefore, at the time of the offending there is nothing which would reduce your moral culpability, as I have previously indicated, and further, you suffer from no impairment of mental function which would warrant reduction of other sentencing considerations such as specific and general deterrence.
[11]Emphasis added.
Discussion
In our view, the appellant’s offending was very serious. So as to evade police, he drove his vehicle — a Toyota RAV4 — onto a footpath that was being used by multiple pedestrians and workers. Three school students and three workers were forced to take evasive action to avoid being struck by the appellant’s car. The jury’s verdicts establish that they were satisfied beyond reasonable doubt that the appellant foresaw the probability that his driving placed each of the victims in danger of death. For no better reason, it seems, than to avoid the possibility of being detected driving whilst unlicensed, the appellant demonstrated a complete disregard for the lives of a number of ordinary, innocent individuals, going about their ordinary affairs.
The sentencing judge described the appellant’s offending as ‘outrageous’. We agree. She said:
You drove in a most outrageous manner on the day in question, terrorising the victims, who were entitled to go about their daily business without you behaving in a most dangerous and threatening manner. They were especially vulnerable to harm caused by you, as you were in a car and they were not, being pedestrians, workers in the area, or the police officer who was on a bike. They were also on a footpath area where they were entitled to feel safe from vehicles. Whilst there are no victim impact statements, it is apparent from the evidence at trial that the school girls, in particular, were especially distressed by your offending, and it was also apparent that the other victims were negatively affected by your actions.
Moreover, the appellant has what the sentencing judge described as a ‘concerning’ history of driving offences, a characterisation with which we agree. In her reasons for sentence, the judge summarised it as follows:
Your criminal history commences in 1994 when you were granted a ‘without conviction’ adjournment in respect of possession of an unknown drug of dependence, possessing a restricted substance, and attempting to use heroin.
On 18 September 1995, you were again dealt with by way of ‘without conviction’ adjournment for criminal damage, intentionally or recklessly causing injury, and make false report to police.
In 1997 you received a three-month suspended sentence in respect of trafficking heroin and failing to answer bail.
In 2001 you were convicted and fined $2,000 in respect of possessing heroin and using heroin.
In 2002 you were sentenced to four months’ imprisonment which was wholly suspended for 18 months in relation to attempted theft.
On 18 July 2003 you were dealt with for attempting to commit an indictable offence, going equipped to steal or cheat, and driving without P-plates displayed. In relation to the first two mentioned offences, you were sentenced to an aggregate term of 14 days’ imprisonment. You were fined in relation to the driving offence, and your licence was suspended for two months. On that day you were also dealt with for breaching the suspended sentence to which I have previously referred. The suspended term of four months was wholly restored, such that you were required to serve four months’ imprisonment.
On 5 September 2003 you were convicted of driving whilst disqualified, handling stolen goods, and possessing property being proceeds of crime, as well as possessing a drug of dependence. In relation to the first three offences to which I have referred, you received a total effective sentence of six months’ imprisonment, four months of which was to be served. You were convicted and fined in relation to the drug possession charges.
On 16 September 2003 you were convicted of trafficking heroin, possessing heroin, possessing money being proceeds of crime, selling a controlled substance without a licence, and possessing a restricted substance. You were convicted and sentenced to a total effective sentence of 18 months’ imprisonment which was partially suspended, such that you were required to serve 12 months. The operational period was two years.
On 3 September 2007 you were convicted and sentenced to 90 days’ imprisonment for a shop theft. The sentence was partially suspended, such that you were required to serve four days during an operational period of six months. The four days being reckoned as already served.
On 24 June 2009 you were convicted of three charges of drive whilst authorisation suspended, failing to answer bail, theft, shop theft, dealing with property suspected to be proceeds of crime, exceeding the speed limit of 40 kilometres per hour, two charges of using unregistered motor vehicle on a highway, fraudulently using a registration label or number plate, and possession of a drug of dependence being a prescription drug. Overall, you were sentenced to two months’ imprisonment in combination with a 12-month community corrections order which required you to undertake treatment for alcohol and drug addiction, and medical, psychological and psychiatric assessment and treatment as directed by the regional manager. You were also required to be under the supervision of Community Corrections for 12 months. On that day you were also dealt with for breaching the suspended sentence imposed in September 2007, and a term of 86 days’ imprisonment was restored, and you were required to serve this term concurrently with the two months imposed in relation to the other matters to which I have just referred.
On 2 September 2009 you were convicted of driving whilst your authorisation was suspended and unlicensed driving. You were sentenced to two months’ imprisonment which was wholly suspended for an operational period of 12 months. Your licence was cancelled, and you were disqualified from driving for two months, and you were also fined.
On 21 October 2009 you successfully appealed sentences imposed in relation to matters dealt with in the Magistrates’ Court on 24 June 2009. You were sentenced to a 12-month community corrections order with unpaid community work as well as the treatment conditions previously imposed. You were fined in relation to the traffic matters and drug possession charges. You were also successful in your appeal against restoration of a term of imprisonment in relation to the shop theft charge, and the suspended sentence imposed on 3 September 2007 was further suspended for 12 months.
On 23 June 2010 you were convicted of driving whilst suspended, using heroin, and careless driving. In relation to the first mentioned offence, you were sentenced to two months’ imprisonment which was wholly suspended for 24 months, and you were fined $500 in aggregate which related to the other two charges.
On 8 November 2012 you were convicted of two charges of driving whilst authorisation was suspended, and you were sentenced to four months’ imprisonment which was wholly suspended for 18 months.
On 2 April 2013 you were convicted of one charge of driving whilst authorisation suspended, and sentenced to one month’s imprisonment which was wholly suspended for 12 months.
On 23 March 2015 you were convicted of two charges of driving whilst suspended, and one charge of using an unregistered motor vehicle. You were sentenced to a 15-month community corrections order with supervision, and you were required to undertake an offending behaviour program.
On 10 December 2015 you were dealt with for contravening a suspended sentence order of 2 April 2013 in relation to driving whilst authorisation suspended. The contravention was proven, and no further order was made due to you establishing exceptional circumstances which included sustained commitment to adherence to a community corrections order.
In addition, allowing for some duplication, you have numerous road traffic offences as set out in the Road Safety Act certificate. These include a number of speeding offences, other instances of careless driving, unlicensed driving, and driving whilst authorisation suspended, with the most recent of the last-mentioned offence being in September 2019, and before this, August 2019.
Although he is not to be punished again for his previous offending, the appellant’s bad record is relevant in a number of ways: as an indicator of his moral culpability; his prospects of rehabilitation; his dangerous propensities (and, correspondingly, the community’s need for protection); and the increased importance of specific deterrence as a factor in sentencing.[12]
[12]R v O’Brienand Gloster [1997] 2 VR 714, 718 (Charles JA). See also Leishman v The Queen (2019) 90 MVR 421, 427–8 [19] (Ferguson CJ, Whelan and Priest JJA).
Dealing with the appellant’s prospects of rehabilitation, the sentencing judge made a number of observations with which we also agree:
In view of the offending on this occasion, your criminal history, your drug issues, apparent lack of employment – although factoring in your capacity for employment based on the past – and limited community support, I rate your prospects of rehabilitation as being fairly poor. In coming to this assessment, I have also factored in that you continue to deny your offending, which you are entitled to do, but it means that you have no remorse or insight in relation to it. I must place fairly strong weight on specific deterrence and protection of the community.
Ultimately, the sentencing judge made it clear that she was aware of the need to pay due regard to the principle of totality. She said:[13]
In all the relevant circumstances, I have arrived at a sentence which addresses the weight which needs to attach to the sentencing considerations to which I have referred. Strong weight in this case must attach to general deterrence in a bid to deter others from behaving as you have, and I have also attached the weight and to which I have previously referred, to other relevant sentencing considerations. I have factored in that in respect of the victims of Charges 2 to 4, and in respect of Charges 5 to 7, the same episode of driving occurred in respect of each of these ‘sets’ of victims, if it can be isolated in this way to that extent, but there is a separate impact on every victim in relation to your conduct, warranting a level of cumulation. However, I have also had regard to the principle of totality in arriving at an appropriate sentence in your case.
[13]Emphasis added.
As did Taylor JA, we consider the individual sentences imposed to be well within the range of those available to the sentencing judge in the sound exercise of discretion.
It cannot be gainsaid that general deterrence needed to be a significant feature animating any sentence imposed upon the appellant. Those who seek to drive in a dangerous or reckless manner to escape police, and who thereby place police or other citizens at risk of death or serious injury, need to know that such conduct will not be tolerated, and will be met with stern punishment. Moreover, there was a strong need to denounce the appellant’s outrageous conduct, and to impose just punishment for it.
Significantly, the appellant had demonstrated not one jot of remorse. Although, of course, the appellant was not to be additionally punished for pleading not guilty, he did not attract the ameliorating influence on sentence provided by a plea of guilty, particularly one accompanied by sorrow for having offended against the law. The absence of remorse also reflected poorly on the appellant’s prospects of rehabilitation. And given his poor history of driving (and other) offences, an adequate measure of specific deterrence also needed to be part of any sentence imposed.
We are unable to see that, at a practical level, the orders for cumulation have resulted in a total effective sentence that is manifestly excessive. Albeit that the applicant’s represented one course of appalling conduct, the fact that separate victims were put in danger needed to be given recognition in the orders for cumulation imposed. Had we been sentencing at first instance, we might have been inclined to order six months’ cumulation of the sentence each of charges 2 to 7 on the base sentence — resulting in 18 months’ cumulation between the two ‘sets’ of victims — but so much would not have produced any practically different result.
Finally, we consider the non-parole period imposed to be wholly unremarkable. Certainly, neither the head sentence nor the non-parole period could legitimately be described as ‘crushing’; that is, effecting the destruction of any reasonable expectation of useful life after release.[14]
[14]R v Yates [1985] VR 41, 48.
For these reasons, the appeal will be dismissed.
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