Nguyen v The Queen
[2010] VSCA 284
•27 October 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No S APCR 2008 0958
| DUC TAN NGUYEN |
| v |
| THE QUEEN |
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| JUDGES | ASHLEY and WEINBERG JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 21 October 2010 |
| DATE OF JUDGMENT | 27 October 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 284 |
| JUDGMENT APPEALED FROM | R v Nguyen (Unreported, County Court of Victoria, Judge Rizkalla, 19 December 2008) |
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Criminal Law – Sentence – Armed robbery, being a prohibited person in possession of a firearm, recklessly placing a person in danger of serious injury and intentionally causing injury – Total effective sentence ten and a half years with non-parole period of eight and a half years – Appellant spent period of ‘dead time’ in custody before being sentenced for current offences – Whether sentencing judge gave inadequate weight to totality in sentencing synthesis – Appeal allowed – Appellant re-sentenced – Total effective sentence of eight years imprisonment with non-parole period of six years – Appeal decision without precedent value.
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr A P Lewis | Lethbridges |
| For the Crown | Mr B L Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
ASHLEY JA:
Duc Tan Nguyen pleaded guilty in the County Court to four offences committed at Springvale on 2 May 2006: armed robbery (count 1); being a prohibited person in possession of a firearm (count 2); recklessly placing a person in danger of serious injury (count 3); and intentionally causing injury (count 4). On 19 December 2008, he was sentenced as follows:
Count 1 - 8 years’ imprisonment;
Count 2 - 2 years’ imprisonment;
Count 3 - 1 year’s imprisonment;
Count 4 - 2 years’ imprisonment.
The judge cumulated 1 year of the sentence on count 2, 6 months of the sentence on count 3; 12 months of the sentence on count 4 on each other and on the sentence on count 1. The total effective sentence was thus 10 years and 6 months. The judge fixed a non-parole period of 8 years and 6 months. She made a declaration under s 6AAA of the Sentencing Act 1991 (Vic) that had the appellant not pleaded guilty, and had he been convicted, she would have imposed a total effective sentence of 13 years with a non-parole period of 10 years.
Grounds
Now the appellant appeals by leave against sentence. As finally articulated, he relies upon the following grounds:
1.The Learned Sentencing Judge erred by failing to give any or any sufficient weight to the principle of totality.
2.The Learned Sentencing Judge erred by failing to give any or any sufficient weight to the period of ‘dead time’ that the appellant had spent in custody prior to being sentenced for the current offences.
3.The Learned Sentencing Judge erred by failing to give sufficient weight to the mistreatment that the appellant suffered as a result of the conduct of various members of the Armed Offenders Squad.
(Reasons for Sentence paragraphs 11 – 16).
….
7.The Learned Sentencing Judge erred in sentencing the appellant on the basis that the offences had been committed whilst he was on parole.
(Reasons for Sentence paragraph 26).
8.The Learned Sentencing Judge erred in ordering partial cumulation in respect of the sentence her Honour imposed on Count 2.
9.The total effective sentence, the individual sentences and the minimum non-parole period fixed by the Learned Sentencing Judge are, in all the circumstances of the case, manifestly excessive.
Ground 7 was scarcely pursued. Counsel conceded that it depended upon a reading of the judge’s sentencing remarks which was probably wrong. I agree with the concession made, and will say nothing more about that ground.
Circumstances
The appellant is a man born 21 February 1979. He was thus aged 27 at time of offending, and 29 at time of sentence.
There was a female co-offender, Sherrie Hangan. She pleaded guilty to a count of robbery and a count of possessing a drug of dependence.
The learned sentencing judge described the circumstances of the offending this way:
2.The offences arise out of an armed robbery committed at the Van Kim Pho jewellery store in Springvale Road, Springvale on 2 May 2006.
….
3.At the time of this offending you were both in a relationship living a transient lifestyle; in effect, living out of cars or motel rooms. On 2 May you, Nguyen, entered the jewellery store with a sawn-off shotgun hidden in a box which you had taken from the boot of the car that Hangan was driving. You, Nguyen, told Ms Hangan to wait outside and she was, in effect, to be the getaway driver.
4.You, Ms Hangan, it is accepted, were unaware at the time that Mr Nguyen had the firearm when he left to go into the shop and that is the basis on which the Crown puts the charge against you of robbery.
5.The owner was alone in the store when you entered the shop, Nguyen. You put your box on the floor near the front counter. You walked around the shop yelling ‘give me money, give me money’. You fired a shot in the mirror shattering it, opposite to where the victim was standing. You then came up to the victim and holding the barrel with both hands you swung the gun around and you hit him on the left side of the face with the butt of the gun causing him injury to that side of his face. You then smashed the top of the glass counter with the butt of the gun and fired another shot into the side of the shop counter. These circumstances amount to all of the charges against you.
6.As a result of your conduct Mr Phan, the owner of the shop, suffered facial swelling for three to four weeks thereafter. I have seen photos of excessive swelling to the left side of his face, bruising and redness. It was difficult through that period for him to eat or talk and was very painful. At the committal he indicated he still had difficulty sleeping even though it was 8 months after the offending. He was on constant medication for his pain and in the victim impact statement which was filed in this court he indicated that as a result of this incident he became so frightened that he shut his shop and did not reopen it until a police station opened opposite when he felt some added sense of security. He lost $20,000 in stock from this robbery plus any profits that he would have had for that 7 months when he was closed. He also said in his statement that he has ongoing psychological effects from this incident. He has become hypervigilant and very scared.
7.After taking that $20,000 worth of jewellery, you left the store, got into the car and you were driven away by Ms Hangan. The car in fact was previously rented in your name, Nguyen, and fitted with false plates.
8.You, Nguyen, were identified on a photoboard by the victim and jewellery was recovered from the car that you were driving when you were both arrested. That was identified as the jewellery taken in the robbery. That was about eight days after this offence.
The police investigation and the aftermath
It is convenient to refer to the judge’s description of the police investigation, its aftermath for the appellant, and the way in which her Honour dealt with the issue which arose:
11.You, Nguyen, were interviewed by members of the Armed Robbery Squad. During the course of that interview and prior to being placed on tape you were seriously assaulted by two members of the Armed Robbery Squad and I have been provided with a transcript and video disc of that particular incident. These offences led to three officers later pleading guilty to assaulting you. They were convicted of one rolled up charge of assault in the Magistrates’ Court. The incident was captured on a video by a secret camera that had been placed in the interview room. The same members pleaded guilty to one rolled up charge of misleading the director of the Office of Police integrity and this related to answers given in a hearing which were false.
12.As a result of the way you were unlawfully assaulted, apart from the trauma that you suffered at the hands of police throughout that interrogation, you were also physically assaulted and I am told your eardrum was perforated and did bleed profusely at the time and that has left you with some ongoing impairment in terms of hearing in one of your ears.
13.At the plea your counsel submitted that your unlawful assault and intimidation by the investigating police is a matter that should be taken into account when considering sentence in terms of some mitigation in sentence because of the way that you were treated. You were, in effect, in the custody of the state at the time that you were assaulted and you were in a position where you had no option but to remain. In those circumstances, it was argued, you were entitled to presume, as is any citizen of this state, that you would be dealt with according to law and although it is true, as the Crown submits, that those perpetrators have been dealt with according to law, your counsel submitted that does not take away from the fact that you have been affected psychologically and physically at the time unlawfully and that that should be taken into account.
14.The Crown in its submission sought to argue against any mitigation in sentence. While recognising the serious conduct of what occurred, the Crown submitted that the conduct of the police involved had been dealt with separately and according to law and so it should not have any impact on this sentence.
15.It is for the courts to punish crimes, not for those investigating on behalf of the community and the courts and the community certainly cannot condone summary justice or investigation by force by those invested with the power to do so. I do not accept the Crown submission that there should be no recognition in this sentence in terms of mitigation for the fact that you did suffer not only some psychological harm, given the nature of the interrogation over some four-and-a-half hours, but also you have an ongoing hearing impairment. Some mitigation, although it has to be said in a case involving such serious offending it cannot be regarded as more than a degree of moderation in sentence, is due to you on this basis in my view. It must recognise that the courts and the community will not tolerate mistreatment of suspects by those who are given the power to detain them.
16.Although counsel found no authority specifically on this issue, I was referred to a number of authorities which dealt with the issue of a person who is injured whilst in the course of a crime or by others thereafter in revenge for it. They are not directly on point and it would seem to me that if there was to be any mitigation for an injury to a person undertaking a crime, then one which occurs in circumstances where the police are in breach of the law themselves must be a more pressing case for some recognition in sentence certainly than one which results from attempts to stop the crime lawfully or where members of the public seek to take revenge for the crime themselves. Justice does require a sentencing court to take into account all material facts when considering appropriate sentence and in my view the circumstances of the interrogation and the resulting injury are such a circumstance.
and
18.Another aspect of your treatment was that you were prepared to assist the Office of Police Integrity in bringing the police involved to justice. You provided them with details and a statement to that effect and I have been provided with a letter from the Office of Police Integrity which was a confidential letter but which was made available to the prosecution. I also received a certificate from the director of the Office of Police Integrity under the Police Regulation Act which indicates that you were issued with a summons to attend and give evidence for the purpose of investigating those police. You indicated to that office that you were willing to do that on the basis of that certificate and although that was not ultimately required, as matters were, as I said, dealt with by way of pleas of guilty, the Office of Police Integrity confirms that you were of assistance and were willing to be so, if necessary.
19.Again, despite the Crown submissions to the contrary, it is my view that that is another circumstance that is appropriate to recognise by some way of mitigation in sentence. It is well recognised that those who assist authorities should receive some recognition in sentence to encourage other to do likewise.
The appellant: his antecedents and prior offending
The appellant’s life, despite some family dislocation, was apparently without particular complication until about 1990. Then – it was said to have been at a time when his mother became ill – he began to ‘go off the rails’.
From about age 17, the appellant developed a serious drug problem. He became heroin addicted. He began to offend. His offences were related to his addiction. His offending escalated. The learned sentencing judge described the situation this way:
23At the age of 29 you are a person who comes before this court with a very long criminal history. On the further presentment the priors commence in May 1997 and you have eight previous Magistrates’ Court appearances up to 16 June 2005. You also admit two previous appearances in this court. In March 1998 you were convicted of two counts of armed robbery, arson, criminal damage, theft, possession of drug of dependence and you received a youth detention sentence; and then on 5 September 2001 in this court you were convicted of four counts of armed robbery and received a sentence of five years with three years minimum.
24I was provided with the sentences from previous judges, Judge Hassett and Judge Wood, in relation to those matters and it is to be noted that further in those matters you admitted a presentment which had numerous prior children’s Court matters. The relevance of this is that, as has been put by your counsel, you are a person who has had a very long heroin drug addiction and that has resulted in a long history in terms of your court appearances.
25Further, the last conviction on 16 June 2005, the theft and causing injury recklessly and resisting a police officer in the execution of duty, and driving offences, led again to a period of imprisonment which was directed to cumulate on your then non-parole period.
26The most significant matters, obviously, in terms of this sentence are the other prior convictions for armed robbery, in particular, those in 2001. They were offences where, again, you were armed with a sawn-off shotgun and again in two instances you struck victims with it, as you did on this occasion. Consequently, you are a person who has shown you are prepared to be engaged in using a firearm and violence in perpetrating these sorts of offences. That is so despite servicing a number of years in custody. Upon your release you have, whilst on parole, engaged in these offences.
Mental illness
There was a complication in the appellant’s personal circumstances which bore upon sentence:
17Further, since you have been taken into custody you have been diagnosed … with schizophrenia. You are now held in Thomas Embling Hospital undergoing treatment. The material I have cannot indicate one way or the other whether there could be said to be any link between the onset of schizophrenia and the treatment that you received[1] and I certainly do not draw that particular link and I have not been asked to do so.
and
34… Your counsel put to me that in fact you have reported hearing voices since about late 2004 but that you sought no assistance professionally in relation to them. Once you have been placed in custody you now have been diagnosed as suffering schizophrenia. Your counsel submitted that to some extent, then, the fact that you are now in Thomas Embling Hospital and suffering a mental illness will have an effect upon the way in which you undergo your time in custody, even though you are receiving appropriate medical treatment, which at the present is still in the early stages.
35It seems to me that it does require some mitigation or some moderation in sentence to take into account that you are a person who has a mental illness and that that seems to be at this stage one that will be ongoing. However, having said that, I should say that it is not as significant an issue as it might be given that it can be appropriately accommodated in the custodial setting.
[1]That is, the police assaults. My footnote.
Prospects for rehabilitation
The learned judge rightly regarded the appellant’s addiction as bearing upon his prospects of rehabilitation. She said this:
33You have had a severe drug problem from about 17. As I said earlier, you received your first sentence in 1998 in a youth facility. You have never really been employed for any period of time; about six months is the longest you have worked at anything.
and
27Based on this history your prospects of reoffending must be regarded as high and of rehabilitating poor unless you make major changes in your lifestyle, particularly in relation to your drug use. What effect your recently diagnosed mental illness will have on your future is impossible to gauge.
28There is no doubt, as I have said, when looking at your history and the material, that all the prior matters result from a heroin addiction. That is so for these offences as well. I am told on this occasion it would appear that during the months previous to the offending both you and the co-accused had been using drugs and got yourself into a circumstance whereby you owed money to those who were supplying you. In order to obtain money you then determined to undertake this offending.
29Despite the fact that over the years you have had various community-based orders, you have taken part in various drug programs and rehabilitation, it just has not been successful. I do note that whilst you are in custody at present your are attempting again to do something about your addiction. You have undergone various programs and education-type programs that have been available to you and that is to your credit.
30In your case, because of your long history, there is no doubt that you are going to require a lengthy rehabilitation if you are to ever avoid drug use and thus reoffending.
Sentencing considerations
Other than the matters to which I have already referred, the learned sentencing judge – (1) noted the guilty plea, and accepted that it was one requiring ‘some credit in sentence’, and allowing ‘a reasonable mitigation’; (2) stated that the offences were very serious and required condign punishment, particularly because of the use of a loaded firearm and the violence inflicted on the victim. Thus there was a ‘real need for specific and general deterrence’; and (3), stated that ‘upon your release you have, whilst on parole, engaged in these offences’.
Resolution of the appeal
Grounds 1 and 2 can be considered together; and in my opinion, they provide the answer to the appeal.
The appellant was taken into custody on 10 May 2006. He was sentenced on 19 December 2008. He had been in custody throughout that period. It was common ground that there was no pre-sentence detention to be brought to account, for he had been in custody either because of reclaimed parole or in respect of sentence imposed for other offences. Particularly, see below, from 10 January 2007 the appellant had been serving reclaimed parole of almost two years – that being part of the sentence passed on 5 September 2001.
So-called ‘dead time’ in the period May 2006 to December 2008 was relevant to totality on a Renzella[2] basis. But it was not the only totality issue, for the impact of the sentence which her Honour was minded to impose needed to be considered in the context of the overall period of continuous custody which the appellant would, or was, thereby likely to serve. The fact that part of that period had been, or would be, served in respect of other offending did not mean that it could be ignored by her Honour.
[2]R v Renzella [1997] 2 VR 88.
Mr Dickinson, a manager employed by Corrections Victoria, provided a letter to the sentencing court which set out the pertinent facts and their consequences. On the plea, he gave viva voce evidence about the matter. The learned judge made a valiant attempt to understand what he was saying. She was evidently concerned that both she and counsel understood the situation.
This Court called for the letter to which I have just referred. As confirmed by counsel for the Crown in this Court,[3] [4] it showed the following: (1) the appellant was sentenced to five years’ imprisonment with a three-year non-parole period on 5 September 2001; (2) with allowance for pre-sentence detention, his earliest release date on parole was 30 March 2004; (3) in fact, he was paroled on 15 April 2004. The parole period was thus about two weeks short of two years; (4) the appellant was taken into custody on unrelated matters on 7 February 2005. He was on remand until sentenced to three months’ imprisonment in the Magistrates’ Court on 16 June that year. No pre-sentence detention was declared for the period 7 February to 16 June 2005; (5) when the three months sentence ended, the appellant was again remanded in custody. He remained in custody between September and December 2005, when he was bailed; (6) the appellant was again remanded in custody in May 2006. He remained in custody until 18 October 2006, at which time he was sentenced, in the County Court, to 27 months’ imprisonment with a non-parole period of 15 months. 365 days of pre-sentence detention was declared. It related to the periods February to June 2005, September to December 2005, and May to October 2006; (7) the sentence imposed on 18 October 2006 related to offences committed whilst the appellant was on parole – remembering that his parole in respect of the September 2001 sentence had not yet been cancelled. Thus, the effect of s 16(3B) of the Sentencing Act 1991 was that – absent contrary direction – the sentence was to be served cumulatively on any period of reclaimed parole. There was no contrary direction; (8) on 10 January 2007, the Parole Board cancelled the appellant’s parole from 15 April 2004. It gave no direction under s 77(7A) of the Corrections Act1986 (Vic) – the consequence being that he was given no credit against sentence for the period between April 2004 and February 2005; (9) in the event, allowing for pre-sentence detention, the non-parole portion of the October 2006 sentence ended on 18 January 2007; (10) thereafter, the appellant remained in custody until sentence for the instant offences on 19 December 2008, serving the period of reclaimed parole under the 2001 sentence. By December 2008, he had served almost all of it. What then remained to be served, unless the Parole Board granted the appellant parole, was the 12 month balance of the October 2006 sentence.
[3]The author of the letter attended Court, and provided relevant instructions.
[4]Counsel for the appellant also agreed with the synopsis following.
The present offences were also committed whilst the appellant was on parole – because his parole in respect of the 2001 sentences was not cancelled until January 2007. Thus, unless the judge otherwise ordered, the sentence which she imposed was required by s 16(3B) to be cumulated upon the remaining fragment of the 2001 parole period, but not upon the potential parole period arising from the October 2006 sentence. That is so although the latter period would not end, if parole was not granted, until January 2010.
Further, the effect of s 15 of the Sentencing Act was that when her Honour sentenced the appellant, the non-parole period which she fixed had to be served first of all. Then there would fall to be served (subject to grant of parole) the balance of the terms fixed by the October 2006 sentence (12 months) and by her Honour’s disposition (two years). In fact, because there was no presumed – or order for –cumulation, that meant an additional two, not three, years. So, standing as at date of sentence by her Honour, the appellant had been in continuous custody for about two and a half years, and he would certainly remain in custody for another eight and a half years. Then there would be the prospect (though not the certainty) of a further two years in custody. Subject to grant of parole in that two-year period, there was thus the certainty of 11 – and the prospect of 13 – years of continuous custody.
It could not sensibly be concluded, in light of her Honour’s careful attention to the evidence of Mr Dickinson, and her references to totality, that she failed altogether to consider the implications of ‘dead time’ – at least in respect of the period between January 2007 and date of sentence – when sentencing the appellant. So much is clear also from her discussion of the import of the witness’s evidence with counsel shortly before she passed sentence. But I respectfully consider that her Honour did not address what I have identified as the second totality issue; or at least that her consideration of that issue failed to correctly identify, in all respects, the applicable sentencing regime in the circumstances of the case. For in the discussion with counsel which immediately preceded her sentencing the appellant, she said this:
He has already served the fixed non-parole period of that cumulated sentence … . So the effect of that seems to me to be that any sentence I impose, the non-parole period will commence from today. He will then serve the unexpired parole. Subject to the Parole Board discretion, he will then go on to be considered for release within that period of either the unexpired parole or the new parole period. Either way, on that scenario and on the Court of Appeal decision in R v Piacentino, I have to look at the totality considering the unexpired non-parole period, as though he were to serve all of that, because it has been called in, he has in effect served it in combination with another sentence and will go back to serve it once he has served my minimum unless a decision is taken otherwise.
But whatever criticisms can be made of the learned judge’s consideration of totality, the question in the end is whether a head sentence of ten and a half years, bearing in mind dead time, and bearing in mind the prospect that the appellant would have to serve every day of his sentence in custody, leads to the conclusion that her Honour gave inadequate weight to totality in the sentencing synthesis.
There is no point in using extremes of language in order to describe and condemn the appellant’s offending. This was, simply, a very bad instance of armed robbery, and it was accompanied by personal violence which left the victim considerably injured and fearful. The offending merited stern punishment, despite the matters urged in mitigation.
But the matters relied upon in mitigation were of substance. Apart from matters personal to the appellant (including his recently diagnosed psychosis), and his plea of guilty, importantly there was the fact that he had been seriously and repeatedly assaulted over a period of hours by investigating police officers; and that he assisted the Office of Police Integrity in its pursuit of the officers involved – a pursuit which culminated in criminal proceedings being brought against them. The fact that the former officers – I say ‘former’, because all of them had resigned by the time they were brought before the court – ultimately pleaded guilty does not detract from the appellant’s preparedness to give evidence against them. Counsel for the Crown was entirely justified in submitting – contrary to the submissions for the Crown below – that the two matters last-mentioned warranted a significant discount in sentence. The language used by the learned judge below in describing their significance for sentencing purposes shows, in my opinion, that she underweighed them.
Further, given the limited utility of sentencing statistics,[5] it is clear enough that the sentence which the judge imposed on count 1, comparatively, was extremely high. The judge had to take into account the maximum penalty for the offence. But consistency of sentencing was also a very important sentencing consideration.
[5]Particularly, statistics which do not differentiate, on the one hand, between circumstances fitting, at least broadly, the circumstances of the instant case and, on the other hand, all instances of the particular offence.
As presently advised, I would conclude that the sentence which the learned judge imposed on count 1 and the cumulation orders which she made in respect of counts 2 and 3 merit the description ‘manifest excess’. But the matter need not be decided because I am satisfied that the result produced by her Honour’s sentence offended totality. A sentence which resulted in at least 11, and prospectively 13 years, of continuous custody was unjustifiable.
Re-sentencing the appellant
Before outlining the sentence which I propose, I should make three points in anticipation. First, counsel for the appellant tendered, without objection, a bundle of material bearing upon his client’s progress since sentence. The material shows that the appellant – (1) has successfully undertaken a considerable number of courses that should be of use when he is released; (2) has tested negative to drugs on repeated urine samples; and (3) has successfully taken on the important role of ‘prisoner listener’. This material suggests that he has better prospects for rehabilitation than the circumstances before the learned judge below suggested was the case. The material further shows that the appellant’s paranoid schizophrenia has responded to medication, but that he lacks insight, and at times has (unwisely) sought to reduce or cease medication.
Second, counsel conceded that there was no bar to his client having been convicted and sentenced on counts 1 and 2. His complaint was about the order for cumulation. In my opinion, the point was well-made. I intend to reflect it in the sentence which I propose.
Third, I consider that there was so much factual connection between the circumstances of counts 1 and 3 that there should be no cumulation of sentence on count 3.
I propose that the appeal be allowed and that the appellant be re-sentenced as follows:
Count 1 - 6 years and 6 months’ imprisonment.
Count 2 - 2 years’ imprisonment.
Count 3 - 1 year’s imprisonment
Count 4 - 2 years’ imprisonment
I would cumulate 6 months of the sentence on count 2 and 1 year of the sentence on count 4 on each other and on the sentence on count 1. The total effective sentence would be 8 years’ imprisonment. I would fix a non-parole period of 6 years.
I would declare that if the appellant had pleaded not guilty, then in the event of him having been found guilty I would have sentenced him to a total of 10 years’ imprisonment with a non-parole period of 8 years.
So that there is no room for misunderstanding, this should be understood: the
sentence which I propose means that the appellant will spend not less than 8 years and 6 months in continuous custody; and prospectively 10 years and 6 months.
My reasons involve no novel principle nor the extension or qualification of established principle. They are without precedent value.
WEINBERG JA:
I agree that both grounds 1 and 2 should succeed. When one has regard to 'dead time' (for which no allowance is made) there is a distinct possibility, absent intervention by this Court, that the appellant will serve some 13 years' imprisonment for his involvement in these offences. He will have been in custody from May 2006, until perhaps 2019. Appalling as his criminality undoubtedly was, appropriate regard must be had to the principle of totality. In my opinion, that requires an adjustment to his sentence as proposed by Ashley JA.
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