R v Nguyen
[2021] ACTSC 146
•16 July 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Nguyen |
Citation: | [2021] ACTSC 146 |
Hearing Dates: | 28 May, 1 June, 16 July 2021 |
DecisionDate: | 16 July 2021 |
Before: | Murrell CJ |
Decision: | Offender sentenced to 13 months and two weeks’ imprisonment and placed on a drug and alcohol treatment order |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – drug and alcohol treatment order |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 12A, 33, 35 Criminal Code 2002 (ACT) s 310 |
Cases Cited: | R v Bennett [2015] ACTSC 36 R v Bresnan [2017] ACTSC 18 R v Percival [2018] ACTSC 230 |
Parties: | The Queen ( Crown) Hieu Hoang Nguyen ( Offender) |
Representation: | Counsel T Lee ( Crown) J de Bruin ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender) | |
File Number: | SCC 41 of 2021 |
MURRELL CJ:
The offender was committed for sentence on one count of aggravated robbery (robbery while in possession of an offensive weapon), contrary to s 310 of the Criminal Code 2002 (ACT).
The maximum penalty for the offence is 25 years’ imprisonment, a fine of $400,000, or both.
The plea was entered on the fourth mention in the Magistrates Court, after a brief of evidence was provided. Nevertheless, the plea has considerable utilitarian value, and I will allow a discount of 25 per cent under s 35 of the Crimes (Sentencing) Act2005 (ACT) (Sentencing Act).
The offender has been in custody since his arrest on 15 November 2020.
Facts
On 13 November 2020, the complainant was working at a bakery at Evatt Shops.
At about 1:15 PM, the offender entered the bakery. He was wearing a light grey hooded jumper, black pants, white shoes, a black cap, a blue disposable face mask, and a black glove on his left hand.
The offender approached the sales counter, where there was a till and a clear plastic protection screen. He pulled a knife with a 20-centimetre blade from his left pocket and held it down in front of himself.
The complainant recognised the offender as he had previously attended the bakery and they were both part of the Vietnamese community. She approached him with the intention of serving him.
The offender ordered a cake. The complainant bent down to take the cake from a cabinet. When she stood up, the offender extended his arm and pointed the knife blade towards her. He demanded that she open the till. She refused to do so.
The offender pushed the plastic protector screen from the counter, waved the knife at the complainant, and again instructed her to open the till. The complainant became frightened and stepped back from the counter.
The offender leaned over the counter and tried to open the till. The complainant told him to stop and asked him, “Why are you doing this? We are from the same community”.
The offender then climbed over the counter. Fearing an attack by the offender, the complainant picked up a basket of bread rolls, held it defensively against herself, and began to throw bread rolls at the offender.
The offender held the knife in his left hand and used his right hand to open the till. The complainant told the offender to “stop”. She said that she would not report the incident if he desisted and left the premises.
However, the offender opened the till and removed $360 before leaving the bakery.
The complainant followed the offender. She encountered two men, told them that the offender had stolen money, and asked for their help.
The two men chased the offender. The offender stopped running outside Evatt Primary School. The offender handed the stolen money to one of the men and it was later returned to the complainant. The offender lifted his shirt to show that no further money was concealed. The two men observed the offender to have scar-like marks on his stomach. They spoke to the offender, who said that he “was doing it tough”. The two men then left the offender.
Police attended the bakery and located a fingerprint of the offender on the display counter.
On 15 November 2020, the offender was arrested.
Objective seriousness
Having regard to the following matters, the offence is of relatively low objective seriousness.
(a)The offence occurred in daylight, in commercial premises.
(b)Although the complainant was alone in the shop, members of the public were nearby. Consequently, I do not accept the Crown submission that the complainant was more “vulnerable” than a typical victim of such an offence.
(c)The weapon that was used was a knife, a weapon that is commonly used in such offences, but one that may cause significant injury.
(d)The offender used the knife by pointing it at the complainant in a threatening way but used no actual physical force.
(e)The amount that was taken was $360, a relatively small amount of money. The money was recovered.
(f)The offence was poorly planned in that the complainant and the offender knew each other. The Crown does not submit that the clothing, including the facemask worn by the offender, were worn as a disguise. Even had that been the case, it would have been a very rudimentary disguise.
Subjective features
The offender is 24 years old.
He has several convictions for drug-related and driving offences. There are three prior offences of dishonesty. Most recently, in 2018, the offender was convicted of riding or driving in a motor vehicle without consent and received a nine-month sentence, suspended after serving four months, to be of good behaviour for a period of 12 months. For an offence of possessing a knife without reasonable excuse committed in September 2018, he was fined $500.
The offender was born and raised in Canberra. He reported a positive upbringing. He is single. At the time of the offence, he was residing with his parents and was not engaged in any prosocial work or recreational activities. He has a twin brother who is in custody.
The offender is diabetic and requires insulin treatment.
The offender left school prior to completing Year 12 and has since worked in various semi-skilled roles. In recent years, he has been dismissed from two employment positions due to unreliability.
After the offender left school, he became involved in illicit drug use. At 17 years of age, he used cannabis. He progressed to methylamphetamine and heroin. At the time of the offence, he was using heroin daily.
The author of the pre-sentence report assessed the offender as at medium to high risk of general re-offending, with his primary risk factors being illicit drug use, unemployment, and negative peer associations.
Previously, the offender's compliance with supervision has been satisfactory. In 2019, Corrective Services approved an early termination of his supervision due to his protective factors at that time.
The offender is not suitable for an intensive correction order because of unaddressed illicit substance abuse. However, the author of the pre-sentence report considered that the offender would benefit from intensive treatment for drug abuse, such as residential rehabilitation treatment.
Other sentencing considerations
The Court was referred to several somewhat comparable cases: R v Bennett [2015] ACTSC 36; R v Percival [2018] ACTSC 230; R v Crowther [2019] ACTSC 338; R v Bresnan [2017] ACTSC 18; and R v Murphy [2021] ACTSC 94.
The limitations of sentencing statistics are well known. For what it is worth, the ACT Sentencing Database shows that, for offences of aggravated robbery committed between July 2012 and November 2020, 64 per cent of offenders received a sentence of full-time imprisonment, with most other offenders receiving a fully or partially suspended sentence. For those who received a sentence of full-time imprisonment, the term of the sentence was commonly in the range of two to four years' imprisonment.
In sentencing the offender, I am required to consider the factors in s 33 of the Crimes (Sentencing) Act 2005 (ACT), insofar as they are known and relevant. I have referred to the relevant factors above.
Relevant sentencing purposes include general and personal deterrence, accountability, and denunciation. These purposes have been substantially addressed by the period that the offender has already spent in custody.
Having regard to the offender's youth, his past capacity to comply with supervision and the fact that drug use is a central risk factor for him, rehabilitation (particularly in relation to drug use) is an important sentencing purpose and offers the prospect of protecting the community in the future. The Crown conceded that a drug and alcohol treatment order would be an appropriate way for the offender to serve his sentence.
Sentence indication
I am satisfied that the only appropriate sentence is a sentence of imprisonment. I take into account the fact that, to date, the offender has spent six months and 10 days in custody and, by early next week, it will be almost six months and two weeks.
From a starting point of 26 months' imprisonment, I propose to discount the sentence to 20 months' imprisonment. If I decide to proceed by way of a drug and alcohol treatment order, in order to meet the requirements of the legislation I will reluctantly—because the sentence will not accurately reflect what I really intended—reduce that sentence by the time spent in custody so that the sentence is prospective. If the offender is released to bail next Tuesday following a successful eligibility assessment, there will be 13 months and two weeks to be served.
The offender has indicated a willingness to be considered for induction into the drug and alcohol sentencing list. He has signed the appropriate documentation.
Sentence on 16 July 2021
The offender underwent eligibility and suitability assessments for a drug and alcohol treatment order. The assessments were favourable.
I convict the offender and impose a sentence of 13 months and two weeks’ imprisonment, from 16 July 2021 to 29 August 2022.
I make a drug and alcohol treatment order under s 12A of the Crimes (Sentencing) Act 2005 (ACT) for the offence.
The custodial part of the drug and alcohol treatment order is 13 months and two weeks, from 16 July 2021 to 29 August 2022. That period is fully suspended, from today, 16 July 2021, to 29 August 2022.
The treatment and supervision part of the drug and alcohol treatment order is 13 months and two weeks, from 16 July 2021 to 29 August 2022.
The drug and alcohol treatment order is subject to the core conditions and such treatment program conditions as are set by the Drug and Alcohol Sentencing List Judge from time to time.
The drug and alcohol treatment order is subject to the further conditions that:
(a)the offender report to the Drug and Alcohol Sentencing List Judge at 11:30AM today; and
(b)prior to 11:30AM today, the offender attend the Court registry to sign a copy of the order and an undertaking to comply with the order.
| I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell Associate: Date: |
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