R v Ngo
[2006] VSC 181
•17 May 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1507 of 2005
| THE QUEEN |
| v |
| NGO |
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JUDGE: | OSBORN J | |
WHERE HELD: | MELBOURNE | |
DATE OF PLEA: | 17 FEBRUARY, 5 MAY 2006 | |
DATE OF SENTENCE: | 17 MAY 2006 | |
CASE MAY BE CITED AS: | R v NGO | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 181 | 1st Revision: 17 May 2006 |
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SENTENCE – Guilty plea to one count of aggravated burglary and two counts of intentionally causing serious injury – Total effective sentence 8 ½ years non- parole period 4 ½ years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. A. Tinney | Office of Public Prosecutions |
| For the Accused | Mr. P. Dunn QC with Mr. M. Gleeson | Michael Gleeson & Associates Pty |
HIS HONOUR:
Paul Ngo, you have pleaded guilty to one count of aggravated burglary and two counts of intentionally causing serious injury without lawful excuse.
The offences occurred at a panel beating workshop in Market Road, Sunshine on 1 December 2004.
Earlier on that day a dispute occurred at the premises when your father accompanied by your mother and one of your brothers, sought payment of a sum in the order of $300 said to be due as the balance of moneys owing for the construction of a carport at the workshop.
The dispute evidently related to the cost of materials for the roof of the carport. Both your father and Khuong the owner of the workshop maintained that they were out of pocket as a result respectively of having acquired materials. It was suggested by a neighbour that the amount in dispute be split 50/50 but in the event the argument descended into a physical confrontation. Pushing occurred between your father and a worker at the shop and this progressed to a fight in the course of which workers at the workshop used pieces of wood and tools and your father, mother and brother suffered blows. Your mother was struck to the face with either a tool or a piece of wood probably accidentally. She subsequently developed bruising.
You told police you were in the city at the time of the incident but were advised by mobile phone of what had occurred and went home. It is likely that the version of events given to you by your brother and parents was dramatic. When interviewed by police you told them that your brother told you:
"That mum got hit, and dad got hit and it was like, it was a set up for him. They called him over. There was, like, 10 guys waiting for him already there. They were using spanners and stuff, and then chased – and even after they bashed my dad, one fellow even chased him down the street."
In addition it was apparent to you that your mother had suffered a blow to the face and I accept that it is likely you were particularly enraged by this.
In the event, as you told police, you became very angry and you went back to the workshop with two companions almost precisely one and a half hours after the first incident.
It is apparent that you went there intending violence. You took with you a .22 semi-automatic pistol (the origin of which was not explained to me) and one of your companions took a filleting knife.
When interviewed by police you admitted having a knife with you but asserted that another of your companions was the one to bring with him and use a handgun.
The confrontation was videotaped in part and it is apparent that it was you who led the group. You first confronted Thuy, the victim of count 2, in the area of the carport. He asked you if you were there to collect a car. One of your group asked if a particular employee was there. Thuy said he was not. You then pulled the .22 pistol from behind your back and shot Thuy in the upper left chest near his neck from very close range.
You then pointed the pistol at the head of the wounded man. He moved back and was grabbed by one of your companions who was brandishing the filleting knife. Thuy thought he was going to be stabbed and fended off the arm holding the knife with his own arm. Both you and the man with the knife asked Thuy , who hit your father. Thuy stated that it was not him. He tried to put the man with the knife between himself and you.
At this point Khuong, the victim of count 3 who had heard his employee yelling from the carport area, came through a roller door into the carport from the main panel shop. He saw Thuy sitting on the ground and you and your companions nearby. You were holding a gun. Khuong asked what was going on. You asked: "Who assaulted my brother?" or something of that kind. You then fired a shot at Khuong striking him in the groin/lower abdomen region. He fell straight to the floor and you and your companions ran away.
Luckily for you both victims were taken relatively speedily by ambulance to the Royal Melbourne Hospital where they underwent emergency surgery for gunshot wounds. In Thuy's case the bullet had passed through the chest wall cracking a rib, then passing through the upper lobe of the left lung and lodging in the tissues of the upper back. Initially a large blood clot was removed and the lung repaired. Subsequently the bullet was also removed. Thuy remained in hospital for almost a week. Khuong's wound was investigated by way of laparotomy, cleaned and closed. No vital structure was damaged. He was also discharged a week later.
Both victims have filed victim impact statements which were read in open court. As a result of his injury Thuy states that he has suffered from continuing pain and shortness of breath. Both he and his family remain in constant fear. He has lost employment. His relationship with his wife has been affected. He suffers nightmares. Relations with his relatives and friends have been affected.
Khuong states he has regular flashbacks and nightmares. His business was badly affected by reason of his absence in hospital. He, too, is affected by fears of further violence. Relations with his friends and relatives have also suffered.
All of these consequences were readily foreseeable and constitute a severe and totally unmerited impact on the lives of both men.
The initial shooting of Thuy to the chest was an outrageous assault. You shot him not knowing or apparently caring even whether he had been involved in the events earlier that day. He did no more than inquire whether you were a customer. Yet you shot him in a manner which could easily have resulted in very serious and potentially fatal injuries.
The shooting was aggravated by the continuing harassment which followed it. You offered Thuy no assistance but continued to threaten him with your weapon.
Insofar as Khuong is concerned you again shot him before confirming his identity. You shot him in a manner which could once again easily have caused more serious and potentially fatal injury. You again offered no help to him but fled from the scene.
I am satisfied that you went back to the workshop deliberately intending to exact revenge and that as your pleas of guilty indicate you shot the two men whom you presumably believed were somehow implicated in the confrontation with your parents and brother. You shot them with the deliberate intention of causing them serious injury. There are a series of aggravating circumstances associated with your offences:
(a)they constituted deliberate attacks with a handgun taken by you to the scene;
(b) they were carried out against unarmed victims;
(c)they were carried out in circumstances where you and your companions outnumbered the victim you were confronting and two of you were armed;
(d) they were carried out in total disregard of the law;
(e)they were totally disproportionate to the physical confrontation that had occurred earlier that day; and
(f)they involved two separate deliberate shootings.
As against this, it is contended on your behalf that although the attacks cannot be excused they have their root in the provocation constituted by the injury to your parents and brother earlier that day and in particular the injury to your mother with whom you had a very close relationship. It is further submitted they were impetuous and immature acts done in the course of a group venture which I accept.
It may also be said that each of your offences arose out of the same incident. Indeed the video camera shows you were only on the premises for three minutes and count 1 may be regarded as preparatory to counts 2 and 3.
I turn to your personal characteristics. You are 20 years old having been born on 31 August 1985.
You are the youngest of a large family and have a strong sense of loyalty to your mother. Your family came to Australia in 1984. They settled in Perth where you were born in 1985 and then relocated to Melbourne in 1987. They settled in the western suburbs and you attended the local primary school and secondary school. You achieved a number of distinctions excelling in mathematics. Unfortunately four of your elder siblings became addicted to heroin and despite efforts by your mother to protect you from drugs, you too became involved in heroin abuse.
When you were 16 years old your parents separated and for a time you lived on the streets. You became estranged from your father. During this period you became more heavily involved with illicit drug use. You had two appearances in the Children's Court. In July 2001 you were convicted of theft and placed on a good behaviour bond. In October 2002 you were convicted of three charges of trafficking in heroin and other associated charges, and placed on probation with a special condition that you attend counselling.
In July 2004 you were again convicted of trafficking in heroin, use of heroin, possession of a controlled weapon namely a samurai sword, possession of heroin, and possession of money being the proceeds of crime. You were released on a community based order for a period of 12 months with a special condition that you perform 200 hours of unpaid community work and undergo assessment for treatment for alcohol and drug addiction.
At the time of your arrest for the offences which bring you before me, you had completed some 120 hours of community work and were receiving some counselling with respect to drug use. You had also undergone drug detoxification programs and had had a naltraxone implant at the instigation of your family.
Evidence was called on your behalf from Mr Richard Tregear, an experienced community worker who has known your family for some 10 years, and from Ms Anne Hooker, the officer in charge of the youth unit at Port Phillip Prison. Ms Hooker has substantial experience in corrections and has partially completed tertiary qualifications in psychiatry and sociology.
Mr Tregear states that he has never known you to be a violent person and your actions were in his view out of character. He says you have also worked hard at coming to grips with your drug problems. I accept the honesty of this opinion but it does not gainsay your criminal record or the aggravating circumstances of your offending.
Ms Hooker described your progress in the unit she supervises. You have successfully completed programs which have given you insight into anger management, substance abuse and the consequences of your conduct for others.
This intellectual insight is reflected in a letter to the Court which I shall quote in part:
"I can now think of myself in other people's shoes and use empathy which made me realise it is the stronger person who walks away from conflict. I am now second in charge at Industries where I work. I have learnt how to play the guitar and go to the gym every day to keep myself occupied and my mind off things. I get envious of people who I see go in and out of gaol because I see gaol as a lesson that you should learn from and a place I never want to come back to. I honestly think that if I knew what I learnt through the programs when I was free then I wouldn't of did what I did and the situation would have ended in a more positive manner [sic].
I am sincerely sorry to Khuong Huynh and Thuy Nguyen and their family and friends. I had no right to cause them such pain, strife and trauma and I am truly sorry and ashamed of what I have done. My actions have caused both sides to be a lose/lose situation because I have caused a lot of pain and hurt on my family and to the people who love me. I am sorry to the community for disrupting the peace and making them feel insecure and unsafe because no one deserves to feel like that.
I have now learnt to set my goals and I am confident through the skills I learnt doing the programs, that I'll be a positive member of the community when I get released. I now have my priorities straight and want to keep my mum a diabetic in her mid fifties happy and take care of her. I am also planning to get engaged to my girlfriend, Cindy Bui thus meaning I have to make something of myself to win her parents' approval. I plan to go back to school and study to become a mechanic once I get released. I also learnt how much I should cherish and appreciate life more now because I am not going to get a second chance of life and I really want to live life to the fullest. I was just 19 when this incident happened and I really see myself as a teenager learning how to be a man and I really don't want to grow up in this kind of environment."
As your letter further reflects you have undertaken a series of programs not only directed to personal development but also directed to self-expression through the guitar, English and other media.
In Ms Hooker's view you were immature when admitted to the unit but have matured and changed. In particular you have become an active participant in the programs offered to those within it. She expressed concern that if you were placed in mainstream adult prison:
·You would be physically vulnerable;
·You are still very young and need to mature further;
·You suffer from depression and are emotionally vulnerable;
·You may be targeted and stood over.
Because you cannot remain in her unit once sentenced and cannot go to the youth unit at Fulham until a number of conditions are met, she recommends that you be sent to youth training centre.
In response to this suggestion, the Court sought and obtained a suitability assessment from the Department of Human Services, Juvenile Justice Unit.
In summary that report does not support youth training centre as an outcome for the following reasons:
(a)in discussion with the assessment officer who saw you on two occasions over some five hours, you remained adamant that you did not shoot your two victims, but were present in possession of a knife with an intent to bash the person who assaulted your mother;
(b)the counselling offered at YTC is centred upon acceptance by the offender of responsibility for his actions and there can be no confidence that you will directly address your responsibility for your actions;
(c)you have a substantial personal commitment to persons in the drug scene and one in particular;
(d)your access to a handgun at short notice is unexplained and disturbing;
(e)you failed to take proper advantage of the counselling offered pursuant to previous court decisions;
(f)despite the help previously offered your offending has continued over an extended period and has escalated in severity;
(g)you would have to complete the VCE by distance course within YTC just as you would have to do so within mainstream prison;
(h)you present with age appropriate maturity and have negotiated the adult prison system over a period of some 15 months with apparent success. There are no incident reports indicating unusual vulnerability or inadequacy;
(i)your maturity is well beyond that of the general population in a YTC.
The report states in summary that your serious and violent level of offending, your association with a sophisticated and criminal peer group, and your exposure to the adult prison system (albeit in the youth unit for 18 to 25 year olds), will impact upon your ability to appropriately engage with the less sophisticated, impressionable, and younger juvenile population in the YTC. You appear to be a person who is far more mature and sophisticated than the young men usually associated with the YTC system. Further there is a concern that these factors taken together with your continued denial, of full responsibility for the shootings may seriously compromise your ability to appropriately engage with the rehabilitation process.
The author of this report was cross-examined upon a further plea hearing before me. In addition Ms Hooker gave further evidence and emphasised that it is her view that you remain emotionally immature.
I accept Mr Dunn's submission that you are of an age when rehabilitation may be given greater weight than would be the case for an older offender.
I also accept Ms Hooker's evidence that you are highly intelligent and have made substantial progress in her unit and demonstrated a growing ability for successful participation in the programs offered there.
Ultimately, however, I am not persuaded either that you have reasonable prospects for rehabilitation in YTC or that you are particularly impressionable, immature or likely to be subject of undesirable influences in an adult gaol.
As to the first consideration I accept Mr Bell's assessment that you are not a good candidate for the programs offered by YTC. It seems to me that the personnel of the Juvenile Justice Melbourne Central Courts Unit are best placed to make this assessment.
As to the second consideration I am not satisfied either that you are particularly vulnerable physically or emotionally. Again I accept Mr Bell's assessment in this regard. The evidence as a whole supports the view that you are considerably tougher than Ms Hooker's initial evidence suggested.
Further, I am in any event not persuaded that a YTC order would be appropriate having regard to the serious nature of your offences, your age, character and past criminal history.[1]
[1]Cf ss.6 and 32(2) of the Sentencing Act.
It will be up to you to progress your skills within adult prison by distance education and such other opportunities as may be offered you.
Ultimately, I must sentence you as a young man with prior convictions for relatively serious drug offences and a prior record of failure to rehabilitate yourself when given the opportunity to do so.
The shootings which bring you before me were acts of callous, unjustified violence carried out in company upon unarmed and defenceless victims. They have had very serious consequences for each of those victims.
The remorse you have expressed to this Court has not been reflected by an acceptance of responsibility for the shootings elsewhere.
The following matters require a substantial custodial sentence:
·The gravity of the assaults in which you engaged;
·The need for general deterrence both with respect to "vengeance" attacks and the use of firearms;
·The need for specific deterrence to bring home to you the extreme seriousness of your offending and the fundamental need to alter your patterns of behaviour;
·The maximum penalties of 25 years prescribed for count 1 and 20 years for each of counts 2 and 3.
You are of course entitled to a real discount in the sentence that I would otherwise impose by reason of your plea of guilty. Further, I accept the submission that was ultimately made on your behalf that if you were not given a YTC sentence I should provide for a substantial opportunity for parole in order to facilitate your rehabilitation.
Having regard to the above matters and the considerations specified under the Sentencing Act I sentence you to 1 year imprisonment on count 1 for aggravated burglary. I sentence you to 6 years' imprisonment for intentionally causing serious injury to Thuy Nguyen without lawful excuse.
And I sentence you to 6 years' imprisonment for intentionally causing serious injury to Khuong Huynh without lawful excuse.
I order that 6 months of the penalty I have imposed on count 1 be served cumulatively upon the sentence for count 2, and 2 years of the further penalty I have imposed for count 3 be served cumulatively upon the penalties for counts 1 and 2. The total effective sentence is 8½ years.
I fix a non-parole period of 4½ years.
I declare pursuant to s.18(4) of the Sentencing Act that you have already served 519 days in custody since 15 December 2002 and I direct that such declaration be noted in the records of the Court.
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