R v Nguyen
[2018] ACTSC 146
•21 May 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Nguyen |
Citation: | [2018] ACTSC 146 |
Hearing Dates: | 15 March 2018; 21 May 2018 |
DecisionDate: | 21 May 2018 |
Before: | Murrell CJ |
Decision: | Sentenced to one year and 11 months’ imprisonment, to be served by way of Intensive Correction Order with 150 hours of community service to be performed within 12 months. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – property offences – arson – damage to building by explosive – offence of substantial objective seriousness – extensive and costly damage to property – young offender – no significant criminal history – offender has shown regret and remorse – intensive correction order |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 11, 35, 36, 77, 78, 79 Criminal Code 2002 (ACT) ss 45A, 404 |
Parties: | The Queen (Crown) Anthony Nguyen (Offender) |
Representation: | Counsel Mr J Walker (Crown) Mr A Fraser (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Armstrong Legal (Offender) | |
File Number: | SCC 325 of 2017 |
On 8 November 2017, the offender pleaded guilty to a charge that, on 7 March 2017, he committed the offence of arson in that he caused damage to a building by explosive contrary to s 404(1) and s 45A of the Criminal Code 2002 (ACT).
The maximum penalty for an offence against s 404 is 15 years’ imprisonment and a fine.
Several co-offenders were involved in the offence. One juvenile co-offender is yet to be sentenced. Other co-offenders have not been charged, or have not been committed to the Supreme Court for trial or sentence.
The offender entered the guilty plea after the charges and facts had been agreed with the Crown. A brief of evidence had not been served. Pursuant to s 35 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), the offender is entitled to a discount of a little less than 25 per cent.
Facts
In late 2015, Bupa Aranda, an aged care facility, was progressively vacated and operations were moved to a more modern facility. One of the reasons that the premises was vacated was a concern about asbestos contamination. A security firm was engaged to monitor the security of the abandoned premises.
At about 4:30 pm on 7 March 2017, the offender and numerous others engaged in a conversation on Facebook Messenger through a group chat entitled “frashin bin it”. The offender’s user profile name was “kim jong un”. The primary co-offender’s name was “Slim shady”.
During the conversation, the members of the group conversation discussed detonating an explosive device that night for the purpose of setting alight the Bupa facility. The offender and the principal co-offender discussed the materials that would be required to construct an explosive device.
At about 9.00 pm that night, a group comprising eight people assembled at the Coles Express service station in Gungahlin. The offender and principal co-offender were present. They entered the rear seat of a vehicle and began to dismantle sparklers and place the crushed contents into straws. The straws were to be used as fuses in canisters of nitrous oxide.
The group decided to travel to the Bupa facility. The group travelled in two cars and parked in a carpark at a primary school near the facility. The group entered the facility through a door at the rear of the premises that had a broken glass panel. They made their way up to a large room on the first floor. Most of the group then left that room. The offender and the principal co-offender remained in the large room attending to the explosives.
Each offender lit the explosive device that he had been carrying. The first explosive device was lit in the large room. It ignited with a loud explosion and a flash of light. The pair went to a second room, where the second explosive device was detonated. The offender and the principal co-offender then ran from the second room. A large fire spread quickly through the premises, possibly because heavy curtains in the room caught alight.
All participants made their way back to the carpark and drove past the facility. By that stage, it was well alight.
The group returned to the Coles Express service station in Gunghalin. When the offender and principal co-offender were dropped back at that location, they indicated that they wished to return to view the fire.
At 10.41 pm, ACT Fire and Rescue Services requested that police attend the facility.
The fire rendered the premises structurally unsafe; the ceiling and walls partially collapsed. Police were advised that the premises posed a potential asbestos contamination risk due to the age of the construction.
Bupa stated that the costs directly attributable to the fire were $187,195.50. However, because the building must be demolished, the total costs are said to be far greater. Even the figure of $187,195 indicates that the damage was very substantial.
On the following day, 8 March, there was a group conversation on the “frashin bin it” group chat. During this conversation, the offender told the principal co-offender: “when I said let’s burn it down I didn’t actually think it would happen lol”. The co‑offender responded with foresight, remarking: “pretty much all the evidence leads to us”. Members of the group chat referred to video footage that they filmed from outside the building which showed ACT Fire and Rescue vehicles at the scene. On the footage, male voices can be heard making comments, including “I can’t believe we did that much” and “delete the fucking video”.
On 30 September 2017, the offender was arrested. That afternoon, he was interviewed by police. He made full and detailed admissions. He said that after igniting the second explosive device, he and the principal co-offender panicked and attempted to find something to extinguish the fire but were unable to do so. They then ran from the building. He described the group conversations as impulsive, irrational, sarcastic and “over the top”.
Police seized the offender’s mobile telephone. On it they located screenshots of articles relating to the fire and the video clip recorded when participants drove past the fire and discussed the damage.
Objective seriousness
The offence was an offence of substantial objective seriousness.
In assessing the objective seriousness of such offences, relevant considerations include the extent of the damage caused, the potential risk of injury, the risk that the fire would spread and damage other premises, the offender’s foresight of the consequences of their actions, the offender’s motive and the degree of planning and premeditation.
In this case, the motive for the offence seems to have been thrill-seeking. The offence was not motivated by personal gain, as is the case where arson is committed to enable an insurance claim to be made. There was some planning associated with the enterprise, particularly in relation to obtaining the ingredients and manufacturing the explosive devices. The offenders deliberately constructed the devices. The devices were not sophisticated, but required some degree of forethought.
The offender may not have fully thought through the potential for damage. It is clear that the offender contemplated that some sort of fire was a reasonably likely consequence, but he may not have envisaged the extent of the damage.
The damage was extensive and costly. There is no suggestion that anyone’s life or well-being was threatened by the incident, apart from (and not insignificantly) the well-being of the other participants in the enterprise. ACT Fire and Rescue were required to attend the scene, no doubt at considerable expense to the community.
Subjective circumstances
The offender was 19 years old at the time of the offence. He is now 20 years old.
His criminal history is brief and of little significance. He has been fined for three minor motor vehicle matters.
The pre-sentence report states that the offender is the only child of Vietnamese born parents who migrated to Australia about 30 years ago. His parents, his partner of two years and his partner’s family are very supportive. The couple hopes to purchase a home in the near future.
The offender completed Year 12. He has Certificates III and IV in fitness. He works as an apprentice painter and has worked in other relatively unskilled occupations. His employer speaks highly of him and recently, has observed a significant change in his attitude and behaviour. He has become more thoughtful and introverted.
The offender is an occasional binge drinker but has been assessed as having a low risk of alcohol abuse. He is a “social” user of illicit substances and has been assessed as having a low risk of illicit substance abuse.
The offender has adhered to strict bail conditions requiring that he not associate with anti-social peers.
The author of the pre-sentence report states that the offender tried to minimise his role and attribute blame to the principal co-offender. That is a fairly harsh assessment of the situation. The offender accepted responsibility from the outset; as soon as he was arrested, he made a full disclosure of what had occurred to the police. He described his conduct as reckless, impulsive and thoughtless.
The offender is assessed as having a low risk of general reoffending.
A number of character referees spoke of the offender’s regret and remorse. They describe him as hardworking, respectful and generous and as a person who spends a lot of time with his family and his partner’s family. He is said to go out of his way to help others.
Sentencing purposes
In sentencing the offender, it is important to have regard to relevant sentencing purposes. General deterrence is an important sentencing consideration in relation to arson offences. Arson offences are relatively easy to commit. The consequences can be dramatic, in relation to both property damage and personal injury. Often, such offences are committed under cover of night and can be hard to detect. Such was the case here. The identity of the offenders came to police attention as a result of an anonymous tip off, emphasising that the perpetrators of arson offences can be hard to detect.
The offender has had little other involvement with the criminal justice system. He was immediately been remorseful for his conduct. He has willingly and openly disclosed his role in the offence. My attention has been drawn to considerations under s 36 of the Sentencing Act.
There is no dispute that imprisonment is the only appropriate sentencing option. Ordinarily a serious arson offence like this one must be met with a sentence of full-time imprisonment. However, having regard to the offender’s early and continuing cooperation with the police, it may be appropriate that the sentence be served other than by way of full-time imprisonment. In addition to the s 36 factors and the other matters to which I have referred, the offender’s youth and prospects for rehabilitation are very important matters to be taken into account when determining the appropriate manner in which the sentence should be served.
Sentence
15 March 2018
The offender was convicted of the offence. I indicated that the starting point for the sentence that I would impose would be two and a half years’ imprisonment. I reduced that figure by a little less than 25 per cent and indicated a sentence of one year and 11 months’ imprisonment.
However, having regard to the matters noted above and referred to in s 78 of the Sentencing Act, I referred the offender for an Intensive Correction Order (ICO) assessment and adjourned the matter to 21 May 2018.
21 May 2018
The ICO assessment stated that the offender was suitable for an ICO. I was satisfied that the requirements of s 77 of the Sentencing Act were met and I considered the matters in ss 78 and 79 of the Sentencing Act. Having considered the matters that must be considered, I decided to impose a community service condition on the ICO to address sentencing purposes such as appropriate punishment and accountability. .
The offender is sentenced to one year and 11 months' imprisonment. Pursuant to s 11 of the Sentencing Act, I order that the sentence be served by intensive correction in the community.
In addition to the core conditions, the ICO is to include an additional condition that the offender undertake 150 hours of community service work within 12 months. He is to report to ACT Community Corrections within 48 hours of entering the order.
| I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 21 May 2018 |
5
0
2