R v Duong

[2019] NSWDC 467

District Court

New South Wales

Medium Neutral Citation:	R v Duong [2019] NSWDC 467
Hearing dates:	23 July 2019
Date of orders:	23 July 2019
Decision date:	23 July 2019
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	Offender sentenced to an aggregate sentence of five and a half years with a non-parole period of three and a half years to commence on 12 September 2018. In relation to the charge of drive whilst disqualified, Offender sentenced to six months imprisonment, to be served concurrently, and disqualified for a period of six months. In relation to the charge of use vehicle with the unauthorised numberplate, impose a fine of $250. In relation to the charge of drive under the influence, impose a fine of $800 and disqualify the offender for a period of 12 months. Order that the firearms and the ammunition be destroyed.    Note the offender has consented to the destruction of the Samsung camera which contained the offending material, and any associated cassettes or storage of that.
Catchwords:	SENTENCING — Penalties — Imprisonment
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Procedure Act 1986 Firearms Act 1996 Road Transport Act 2013
Cases Cited:	R v Osenkowski (1982) 5 A Crim R 394
Category:	Sentence
Parties:	Regina (Crown) Bidong Duong (Offender)
Representation:	Counsel: Ms Ervin (Crown) Mr Provera (Offender)
File Number(s):	2018/00164048; 2018/00182062

Judgment

INTRODUCTION

1. Bidong Duong appears before me for sentence. He has pleaded guilty to four charges: having sexual intercourse with a person aged between 14 and 16 years contrary to s 66C(3) of the Crimes Act. The maximum penalty for that offence is ten years; Possess a shortened firearm (not pistol) contrary to s 62(1)(b) of the Firearms Act 1996. The maximum penalty for that offence is 14 years; Police pursuit contrary to s 51B of the Crimes Act 1900, maximum penalty is three years, and take/drive a conveyance without consent contrary to s 154A of the Crimes Act 1900, maximum penalty being five years.

2. There are a number of Form 1s before the Court. I have taken into account one charge on a Form 1 in respect of the sexual intercourse charge, that is, cause a child fourteen and over to make child abuse material, contrary to s 91G(2) of the Crimes Act 1900. The maximum penalty is ten years.

3. I have taken into account on a Form 1 in respect of the possess the shortened firearm, 55 charges. They include possess unauthorised firearm contrary to s 7A(1) of the Firearms Act, maximum penalty five years; Possess ammunition without authority contrary to s 65 of the Firearms Act, maximum penalty 50 penalty units; Twenty eight charges of possess identity information to commit/facilitate commission of indictable offence contrary to s 192K of the Crimes Act, maximum penalty seven years; Goods on premises suspected of being stolen contrary to s 527C(1)(c) of the Crimes Act, maximum penalty six months and/or five penalty units; Twenty charges of dishonestly obtain financial advantage by deception contrary to s 192E of the Crimes Act 1900, maximum penalty ten years; Dishonestly obtain financial advantage by deception contrary to s 192E of the Crimes Act, maximum penalty ten years; Drive whilst disqualified contrary to s 54(1) of the Road Transport Act 2013, maximum penalty six months and/or 30 penalty units with an automatic disqualification period of six months with a minimum of three months; Drive conveyance without consent of owner contrary to s 154A of the Crimes Act 1900, maximum penalty five years.

4. I have taken into account on a form 1 in respect of the police pursuit (charge 3) four charges of possess identity information to commit/facilitate commission of indictable offence contrary to s 192K of the Crimes Act, maximum penalty of seven years.

5. There are a number of matters to be dealt with pursuant to s 166 of the Criminal Procedure Act 1986 and I will deal with those at the end of my reasons for judgment.

6. The maximum penalty is an important guidepost in the assessment of sentence. A judge should steer by the maximum penalty but not aim for it.

7. I note that the offender has been in custody on these matters for a period of 406 days. It is agreed between the parties that the start date of the sentence that I shall announce should commence on 12 September 2018.

8. The offender has spent eight months serving a sentence in an unrelated matter. He was sentenced to and served an aggregate sentence of 12 months imprisonment with a non-parole period of eight months for a further set of offences committed on 1 April 2018 but for which he was not charged until arrested on these matters. That sentence was imposed at the Penrith Local Court on 23 August 2018 and was backdated to when he entered custody on 12 June 2018.

THE PLEA

9. The guilty plea and the timing of the plea are to be taken into account on sentence pursuant to s 21A(3)(k) and s 22 of the Crimes (Sentencing Procedure) Act 1999. The guilty plea was indicated and entered at an early stage in the Local Court. The Crown in its submissions conceded that the pleas were entered at the earliest reasonable opportunity and accordingly, the full 25% discount is applicable.

10. The indicative sentences that I will announce in these reasons for judgment will have been discounted by 25%.

THE FACTS

11. At tab 3 of exhibit 1, are the agreed facts dealing with the counts before the Court. I do not propose to read them verbatim but rather give a summary in relation to those agreed facts.

Agreed Facts in Relation to H132308902.

12. The complainant was 15 years of age. The offender was 35 years of age. He met the complainant through his involvement with the Drug Court Program where he was attending with the complainant’s stepfather. He was informed by the stepfather that the complainant was 15 years of age. The complainant and the offender communicated by text messages and commenced a secret relationship.

13. In or about August or September 2017, the complainant confided to a friend of hers that she had had sex with her boyfriend who was the offender.

14. On 2 May 2018, the police attended the accused’s premises to execute a search warrant in relation to a separate matter. The complainant was at the premises but the accused was not. On searching the premises, police seized a Samsung Galaxy camera. When downloading the contents of the camera, police found a video taken on 14 September 2017 of the offender and the complainant engaging in sexual intercourse. The victim was fifteen at the time.

15. The offender participated in an ERISP on 17 July 2017 and made admissions to being in a relationship with the complainant.

OBJECTIVE SERIOUSNESS

16. I take into account the age difference, he being thirty five and she fifteen. The intercourse was consensual but because the complainant was fifteen, she could not lawfully consent. If the offender had waited 12 months, no offence would have been committed.

17. The intercourse did not involve violence or a breach of trust in the traditional sense. It was an older man taking advantage of a 15 year old girl, experimenting and exploring her sexuality. There was no complaint on her part and I do not have a victim impact statement before me.

18. The only reason why the offence came to light was the offender filming the act and that footage being discovered as a result of the exercise of a search warrant. I assess the objective seriousness at the low end of the range.

Agreed Facts in Relation to Possess Shortened Firearm

19. On 2 May 2018, police attended an address in St Marys and executed a search warrant. The property was leased to the offender Bidong Duong and his sister, however, his sister was merely on the lease and did not live at the premises.

20. A search revealed a number of items including an air pistol and an antique firearm. Police located a handwritten note with personal identification details of five individuals including name, credit card details, address and mobile phone numbers.

21. Police also located a handwritten note containing credit card, personal and business details of five other individuals.

22. Once the search of the downstairs area was completed, police went upstairs to where the bedrooms are located. In the wardrobe of the bedroom used by the offender, police located a .243 Win calibre sako, repeating bolt action rifle. They also located five boxes of .243 ammunition containing seventy nine .243 Win calibre cartridges, one .243 Win fired cartridge case and five .243 Win calibre cartridges with a detachable magazine.

23. Also located in the bedroom was a .22 shortened long rifle calibre Winchester single shot bolt action rifle with one round of .22 ammunition located in the firearm.

24. In the bedside drawer, twenty four different types of identification cards were found. In the top drawer of a cabinet, seventeen different types of identification cards were found.

25. Police also located a Commonwealth Bank Eftpos terminal under the offender’s bed. It had been stolen.

26. The offender had conducted a number of transactions using the credit card details of Nicholas Commano and had taken a number of amounts of money out of that account. None of those transactions were authorised.

27. On 7 May 2018, the offender was captured on CCTV attending the Woolworths Caltex service station at Granville. He was driving a 2014 Nissan Pulsar without a licence as he was disqualified at the time. On arriving at the petrol station, his passenger got out of the vehicle and pumped 35 litres of fuel into the tank. The passenger got back into the vehicle and the offender drove away without paying. The vehicle the offender was driving had been reported stolen some time earlier.

OBJECTIVE SERIOUSNESS

28. The possession of a loaded firearm is objectively serious. The firearm was inadequately stored and posed a danger. He also had in his bedroom a bolt action rifle with a not insignificant quantity of ammunition. The offence is in the mid-range of objective seriousness. The possession of a loaded firearm without explanation can only be for a criminal purpose. Courts must send a message that if you possess a firearm you will go to gaol for a considerable period of time. Others must be deterred from the possession of an illegal firearm.

Agreed Facts in Relation to H68573431.

29. Police were conducting random breath testing on the Greater Western Highway. At about 1.20am, the offender was driving a Mazda CX5. He was directed into a testing lane. He was asked for his licence. Shortly after that request, the passenger in the motor vehicle left the motor vehicle and the offender then accelerated away.

30. The police then pursued the Mazda and its pursuit was recorded by video. The police vehicle reached at one point a speed of 218 kilometres per hour in pursuit of the offender’s vehicle in a zone with a 60 kilometre per hour speed limit. The pursuit went for some time and it stopped simply because the offender crashed his motor vehicle into a tree. He jumped out and then ran away from police. It was necessary for the police to call the dog unit because he had successfully made his getaway. At a later stage, the offender was found and was handcuffed and arrested. He told police that he had taken one gram of ice and one point of MDMA about 40 minutes before driving. He also told police that he thought the vehicle he was driving might be stolen and that he had borrowed it from friends earlier in the day.

31. A blood sample was provided by the offender and was analysed. It showed that there was amphetamine, methylamphetamine, methylenedioxyamphetamine, methylenedioxymethylamphetamine and THC within the offender’s system. A pharmacologist provided a report which said that he was of the opinion that at the time of driving, the offender was under the influence of the combined effects of methylamphetamine commonly known as Ice and 3.4 methylenedioxymethylamphetamine commonly sold as MDMA or ecstasy to the extent that his driving would have been impaired.

32. The Mazda had been reported stolen between 7pm on 25 May 2018 and 11.30am on 13 May 2018. The numberplates on the vehicle were also identified as having been stolen.

FORM 1 OFFENCES

33. A search was conducted of the motor vehicle on 14 June 2018. As a result of that search, a number of personal identification cards and documents in various names were located. The offence was objectively serious. The offender drove the car at high speeds while under the influence of drugs. He could have put other road users at risk. The offence in my view is above the mid-range of objective seriousness.

34. In relation to the drive without the consent of the owner, in my view it is at the low-range of the spectrum.

AGGRAVATING FACTORS

35. S 21A(2)(i): the offence was committed without regard for public safety. This is in relation to the police pursuit. S 21A(2)(j): the offender was on conditional liberty in relation to sexual intercourse in that he was on parole at the time.

SUBJECTIVE CIRCUMSTANCES

36. I have before me a Sentence Assessment Report dated 17 July 2019. The relevant parts are as follows: that the offender has a historical pattern of similar offending behaviour and he acknowledges that that pattern of behaviour is directly linked to the times where he has increased his drug use. The offender was able to identify anti-social associates and substance use as negative influences on his offending behaviour, however, failed to provide an alternative course of action for his offending behaviour. The offender did verbalise that he had accepted he had done the wrong thing. He had minimised his actions by blaming external factors attributing his offending to his substance abuse and anti-social peers.

37. I have heard sworn evidence from the offender and accept from him that there is a degree of contrition and remorse in relation to his commission of the offences.

38. He went on to tell the author of the report that he has a history of polysubstance use that commenced in his teenage years.

39. He successfully completed the compulsory drug treatment program in early 2008. However, Mr Duong celebrated his achievement with alcohol use and recognised this as the gateway to his relapse into ice use.

40. He disclosed he was smoking up to three and a half grams of ice daily in the lead up to his offending. Mr Duong described his actions and behaviour as a cycle of crime to get drugs.

41. The offender did acknowledge that the two things he needs to do differently in the future to prevent re-offending are to distance himself from anti-social peers and to abstain from alcohol and drugs.

42. It is noted that he is willing to engage in interventions to address his drug use and his sex offending. He was assessed as being a medium to high risk of re-offending.

43. I also have before me a psychologist report dated 11 July 2017. The offender was referred to the Psychology Department of Parklea Correctional Centre to provide information as part of a sentencing assessment report. Specifically, it was requested that an actuarial assessment of sexual offending recidivism risk be conducted.

44. The author noted that Mr Duong has an extensive criminal history that begins in 1996 and includes drug matters, stealing and driving related offences. He has no history of previous sexual offences.

45. The static 99R test was undertaken which is used to identify risk of sexual re-offending. He was assessed as being an average risk relative to other male sex offenders.

46. Also administered was the STABLE 2007 test and upon the administration of that test, it indicated that he had a moderate level of stable, dynamic risk and needs. His overall risk rating was average.

47. He told the author that he expressed a positive attitude towards supervision and he explicitly stated that he needs help to better manage his substance abuse and associated criminal lifestyle.

48. Dr Martin, a forensic psychiatrist has provided a report to the Court dated 25 June 2019. In that report, the offender described a long history of the use of substances. He said that his main substance of abuse had been methamphetamine. He said that he first used cannabis at the age of fourteen and smoked regularly as a teenager. He said that more recently he had smoked methamphetamine regularly and he had tried it intravenously on two occasions. He said that he had previously used on an all day, everyday basis, since about 2005. He said that he also was addicted to heroin for about four years from his late teens. He said that he previously used to drink alcohol in a binge pattern up until the age of twenty four.

49. He admitted to having been in a sexual relationship with a 15 year old girl with whom he had come into contact through an associate through the compulsory drug treatment program and he said that they became close. He said that he was not proud of what he had done and he knew it was wrong.

50. The psychiatrist has diagnosed the offender with a substance use disorder and says that on a positive note the offender displays a willingness to engage in drug treatment again and has not lost hope in relation to this and expressed what appeared to be genuine willingness to work. The offender took responsibility for the offending and did not seek to minimise the harmful nature of this and acknowledged its wrongfulness.

51. The psychiatrist went on to say he does not appear to have an underlying paedophilic disorder and I do not find evidence to suggest any other paraphilic tendencies.

PROSPECTS OF REHABILITATION

52. I have taken into account the various reports and in my view, as a result of the long term substance abuse that the offender has, his prospects of rehabilitation are guarded. His counsel relied on what was said by Chief Justice King in R v Osenkowski (1982) 5 A Crim R 394 at 395:

“There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records. When the judge forms the view almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform”.

53. The offender has told me that as a result of the last 13 years of his life, either eleven of those have been served in prison or he has been using drugs but he now has got to the stage in his life where he thinks he might be getting too old for it and it might be that now with that amount of age under his belt, he might finally be turning the corner, however, I do propose in this case that there be an extended period of parole to enable the offender to re-integrate into society.

SPECIAL CIRCUMSTANCES

54. Ms Ervin in her helpful submissions submitted that the offender requires substantial assistance to address his drug issue and that the Court could find special circumstances and I do find special circumstances as a result of the extensive misuse and abuse of substances by the offender throughout his life in the hope that having an extended parole period will reintegrate him into society as a decent, law-abiding member of society.

AGGREGATE SENTENCE

55. I intend to impose an aggregate sentence in relation to this matter.

INDICATIVE SENTENCES

56. In relation to the charge of sexual intercourse between the ages of 14 and 16 years, I note that the maximum penalty is ten years. I made a finding in relation to this matter that it was at the low end of the scale.

57. I sentence the offender to an indicative sentence of 18 months. But for the 25% discount, the sentence would have been one of two years.

58. In relation to the count of possess a shortened firearm, the maximum penalty is 14 years imprisonment. This offending on the part of the offender was serious offending.

59. I impose a sentence of three years and six months as an indicative sentence. But for the 25% discount, the sentence would have been four years and eight months.

60. In relation to the charge of police pursuit, the maximum penalty is three years. I made an assessment that the objective seriousness was above the mid-range. I impose an indicative sentence of two years. But for the 25% discount, the sentence would have been one of 32 months.

56. In relation to the charge of drive without the consent of the owner, the maximum penalty is five years. I impose a sentence of eight months. But for the 25% discount, the sentence would have been 12 months.

57. I impose an aggregate sentence of five and a half years with a non-parole period of three and a half years and I direct that the commencement date of the sentence is 12 September 2018.

58. The non-parole period will expire on 11 March 2022 and the offender will be eligible for parole on that date.

59. The head sentence of five and a half years will expire on 11 March 2024.

60. In relation to the s 166 offences, on the charge of drive whilst disqualified, I sentence the offender to six months imprisonment which is to be concurrent with the sentence I have just announced and I disqualify him for a period of six months.

61. In relation to the charge of use vehicle with the unauthorised numberplate, I impose a fine of $250.

62. In relation to the charge of drive under the influence, I impose a fine of $800 and disqualify the offender for a period of 12 months.

63. I order that the firearms and the ammunition be destroyed.   

64. I note that the offender has consented to the destruction of the Samsung camera which contained the offending material, and any associated cassettes or storage of that.

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Decision last updated: 10 September 2019