R v Nguyen
[2009] VSCA 64
•2 April 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 810 of 2007
| THE QUEEN |
| v |
| DANG HAI NGUYEN |
---
JUDGES: | DODDS-STREETON and WEINBERG JJA and WILLIAMS AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 March 2009 | |
DATE OF JUDGMENT: | 2 April 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 64 | |
---
SENTENCING – Appeal – Attempted armed robbery – Error as to maximum penalty – Sentencing discretion reopened – Theft – Whether sentence for theft manifestly excessive – Length of minimum term – Young male offender with drug addiction – Rehabilitation prospects likely to be enhanced by supervision during parole period – Disqualification from obtaining driver licence – Punitive nature of disqualification order – Sentencing Act 1991 s 5(2)(b) – Road Safety Act 1986 s 89(4).
---
| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr DA Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Appellant | Mr LC Carter | Robert Stary & Associates |
DODDS-STREETON JA:
I have had the benefit of reading in draft the reasons for judgment of Williams AJA. I agree with the disposition proposed by her Honour, for the reasons she gives.
WEINBERG JA:
I agree for the reasons given by Williams AJA that this appeal should be allowed, and the appellant re-sentenced in accordance with the orders proposed.
The error on the part of the sentencing judge as to the correct maximum penalty for the offence of attempted armed robbery is sufficient, in my view, to require the sentencing discretion to be re-opened.
I regard a sentence of three years’ imprisonment as appropriate for the primary offence. The appellant’s criminal history is significant, and there was little by way of mitigation presented on his plea. I also agree that a term of three months’ imprisonment is warranted for the offence of theft of the motor vehicle.
Given that the only reason that the vehicle was taken seems to have been so that the appellant could get to the automatic teller machine, where he proposed to carry out the armed robbery, the two offences are sufficiently linked to warrant some degree of concurrency. Indeed, the Crown all but conceded as much. For that reason, I would make two months of the three month term imposed on the count of theft concurrent with the three years fixed for the attempted armed robbery.
This adjustment to the total effective sentence requires a reconsideration of the non-parole period. I agree with Williams AJA that, given the appellant’s age, the fact that he has not previously had the opportunity of parole, and his prospects of rehabilitation, a non-parole period of two years is justified in this case.
There seems little point, in my view, in imposing a period of disqualification from obtaining a drivers licence, by reason of an offender having been convicted of theft of a motor vehicle, unless that disqualification operates to some degree, at least,
in a punitive fashion. For that reason, I consider that disqualification for a period that ends two months after the date upon which the appellant is released from custody is appropriate.
WILLIAMS AJA:
On 20 September 2007, after a guilty plea, the appellant was sentenced in the County Court to three months’ imprisonment in relation to one count of theft of a motor car and two mobile phones and three years’ imprisonment on one count of attempted armed robbery. The offences were committed on 4 March 2007.
The three months’ imprisonment for theft was ordered to be served cumulatively upon the sentence for attempted armed robbery, making a total effective sentence of three years and three months’ imprisonment. The learned sentencing judge fixed a minimum non‑parole period of two years and six months. He also disqualified the appellant from obtaining a driver licence for a period of three years.
Leave to appeal was granted under s 582 of the Crimes Act 1958 on 18 July 2008.
Grounds of appeal
The grounds of appeal are set out in the appellant’s Full Statement of Grounds dated 18 August 2008 relevantly as follows:
1. The learned sentencing judge erred by sentencing the appellant on the basis that the maximum penalty for count 2 (attempted armed robbery) was 25 years’ imprisonment, when the correct maximum penalty is 20 years imprisonment. …
2. The learned sentencing judge erred in fixing the non-parole period, in that there is an insufficient gap between the head sentence of 39 months and the non-parole period of 30 months … .
3. The individual sentences, the order for cumulation, the total effective sentence and the non-parole period are each manifestly excessive.
4. The 3 year period of disqualification from obtaining a drivers licence
is manifestly excessive.
It is common ground that the learned sentencing judge’s error as to the maximum sentence for attempted armed robbery has the effect of reopening the sentencing discretion unless the Court is satisfied that the mistake could not have materially affected the sentence imposed.[1] The respondent conceded that, in the circumstances, it would be difficult for the Court to be satisfied that the error could not have affected the judge’s intuitive sentencing synthesis.
[1]R v Orbach [2007] VSCA 166.
I am not persuaded that the judge’s error could not have materially influenced the sentence for armed robbery, the total effective sentence, the non-parole period or the period of disqualification. Accordingly, the sentencing discretion is reopened and the appellant must be re-sentenced in relation to each of those matters.
I turn first to the circumstances of his offences.
Circumstances of the offences
In early March 2007, the appellant had been living in Albion with his grandmother. He was 26 years old. His grandmother was holidaying in Vietnam, leaving him responsible for paying household bills. He had been using drugs heavily at the time and had no money for the bills or for drugs.
On 3 March 2007, the appellant’s friend, the victim of the theft, spent the night at the appellant’s home. On the following morning of 4 March 2007, the appellant stole the keys to the friend’s car and his two mobile phones. He drove the car without his friend’s knowledge or permission, and without a licence, to a parking spot near an automatic teller machine (‘ATM’) in Sunshine. At that point, he was desperate for money for drugs.
The appellant observed a young man withdraw money from the ATM. He left his friend’s car, carrying a small fishing knife, and jabbed its handle into the victim’s back. He demanded that the victim give him the money.
The victim ran to the middle of the road, screaming for help, pursued by the appellant who was still holding the knife. The victim managed to phone 000 and the appellant escaped in the stolen car. He did not obtain any money from the victim.
The appellant was interviewed by police on 13 March 2007. He made full admissions to them.
Impact on victims
The victim of the attempted armed robbery made a victim impact statement which referred to minor property damage (to his tee shirt and reading glasses). He stated that he was traumatised by the event and had ongoing fears when using ATMs.
The sentencing judge noted that the appellant had remained on good terms with the victim of the thefts who made no Victim Impact Statement.
Appellant’s personal circumstances
The appellant was born in Vietnam on 22 January 1981. His mother died when he was four. He had no siblings. He had had no contact with his father and was unsure as to whether he was alive.
The appellant came to Australia with his grandmother when he was five years old. He attended Christian Brothers’ College in St Kilda, leaving after having completed one term of year 11. He started smoking marijuana shortly after leaving school.
He then worked in a family owned sewing factory business and performed casual work, picking vegetables. He fell into bad company and became addicted to heroin by the age of 18, whilst working in the factory. He had last worked, at an aunt’s restaurant, some 18 months before his sentencing on 20 September 2007.
The appellant’s heroin addiction had been broken only during periods of imprisonment. Each time he was released from custody, however, he returned to the company of drug addicts and dealers.
I will refer in some detail to his history of involvement with the criminal justice system. I note that counsel for the appellant informed the Court of his client’s instructions that, where his criminal record referred to offences involving an unspecified drug of dependence, the drug had been cannabis. This proposition was not disputed by the respondent and I have proceeded on the basis that it is true.
On 24 November 1999, at the age of 16, the appellant was dealt with in the Children’s Court on cannabis related charges and received a probation order.
On 22 March 1999, he was convicted of going equipped for stealing, interfering with a motor vehicle, theft, trafficking in cannabis, possession of stolen property and using cannabis. He received a Community Based Order which he had breached. The order was ultimately adjourned.
On 14 April 1999, the appellant was convicted and fined $250 for theft. On 17 September 1999, he received a fully suspended aggregate sentence of two months’ imprisonment after convictions for trafficking in cannabis, possession and use of cannabis, possession of a prescribed weapon and possession of property which was the proceeds of crime.
On 14 October 2002, the appellant was sentenced to an aggregate term of 12 months’ imprisonment with a non‑parole period of six months for burglary and other dishonesty offences, possession of a prohibited weapon and trafficking in cannabis. On appeal, a 24 month Community Based Order was substituted. The order was cancelled after his breach and, on 22 July 2003, he was sentenced to six months’ imprisonment in the County Court.
On 24 April 2003, the appellant was convicted in the Magistrates’ Court of trafficking in cannabis and possessing money which was the proceeds of crime. He was sentenced to two months’ imprisonment wholly suspended for 12 months.
Having breached the suspended sentence, he was ordered to serve the two months’ imprisonment on 2 July 2003. On the same day, he was convicted of additional trafficking offences and of possessing money which was the proceeds of crime. He received a total effective sentence of six months’ imprisonment. On appeal, the County Court re-sentenced him on 22 July 2003 to a total of three months’ imprisonment.
The appellant returned to the Magistrates’ Court on 28 August 2003 to receive concurrent sentences of two months’ imprisonment for handling stolen goods and one month’s imprisonment for obtaining property by deception and attempting to obtain cannabis by false representation.
Finally, the appellant was convicted of trafficking and possession of cannabis, as well as failing to answer bail, on 16 February 2005. He was sentenced to three months’ imprisonment by way of an Intensive Correction Order and fined $300.
Before the appellant received the sentence from which he now appeals, he had also been charged with trafficking in heroin on 12 April 2006 and 12 September 2006. These charges had not been dealt with as at the date of the County Court plea.
After committing the offences now before the Court and whilst on bail, the appellant was also charged with burglary and shop stealing in relation to a pair of sunglasses (which were returned). A plea hearing in relation to those matters had been scheduled for September 2007, but no submissions were made in relation to that proceeding.
The plea in the County Court
The judge was told at the commencement of the plea that the appellant did not have ‘any psychological issues’. Counsel referred to his history of illicit drug use and described his addiction as his only health issue. No medical or other reports were tendered.
The appellant claimed to have gone through detoxification whilst in custody. He had undergone some screening tests, but the results had not been available. Counsel stated that the appellant had put his name down for a drug rehabilitation programme conducted through Moreland Hall. (I note that a certificate tendered in the appeal shows that he did go on to complete a 12 hour Moreland Hall Drug Education program between 7 and 14 April 2008.)
The appellant had instructed counsel before the County Court plea that he had realised that he was at a ‘precipice’, at the age of 26, and that he would spend a great deal of time in prison if his offending continued. He understood the significance of the crime for which he was being sentenced, which was his first violent offending.
Counsel told the court that the appellant recognised the benefit of supervision while under parole, pointing out that he had not previously been afforded that opportunity for rehabilitation.
The appellant also relied upon his early guilty plea and the fact that his offending had been drug related.
Submissions
Attempted armed robbery
The respondent contended that the sentence of three years’ imprisonment for the attempted armed robbery was appropriate in all the circumstances and that it should be reimposed.
The appellant opposed that course. He relied upon the absence of prior convictions for violence in his history and the sentencing judge’s assessment of his culpability as being less than that of many other offenders facing similar charges. He referred to his relative youth, disadvantaged background, guilty plea after admissions and related drug addiction. He asked the Court to bear in mind that his drug addiction had developed in the context of his disadvantaged background.
The appellant asked the Court to take it into account that he had completed a number of courses whist in custody in 2008. He tendered certificates gained after his participation in an Exploring Change Program and East Gippsland TAFE Asset Maintenance (Cleaning Operations) and General Education for Adults courses.
The respondent submitted that a three year sentence of imprisonment was called for in light of the objective seriousness of the offence and the appellant’s extensive criminal history. Counsel pointed out that, but for the victim’s courage and composure, the offence would have been completed. Further, he contended that, although the judge had considered the appellant less culpable than many other offenders facing similar charges, the attempted crime was serious because the appellant had pursued his victim onto the road after meeting initial resistance.
Counsel for the respondent also relied upon sentencing statistics produced by the Sentencing Advisory Council and the Judicial College of Victoria in relation to attempted armed robberies. They showed that the average custodial sentence in the year 2007-8 was one year and ten months, the 90th percentile was three years and six months, the highest sentence was four years and the median was one year.
Theft sentence
The appellant challenged the theft sentence as manifestly excessive, given the fact that he had returned the car immediately after the crime. He described the circumstances as ‘a borrowing without permission’.
The respondent, on the other hand, contended that the sentence of three months’ imprisonment for the theft was warranted and not manifestly excessive, given the breach of the friend’s trust, the appellant’s history of dishonesty offences and the fact that the car was stolen for use in an armed robbery.
Cumulation
The appellant also submitted that the order for cumulation was manifestly excessive in the circumstances in which the theft was essentially a borrowing.
The respondent conceded that total cumulation of the sentences for related offences was difficult to justify, but maintained that some partial cumulation was appropriate.
Non-parole period
The appellant argued that the non-parole period invited close scrutiny and reflected error : given his age, his need for drug rehabilitation and the fact that he had not before had the benefit of a non-parole period.
The respondent conceded that the quantitative relationship between the head sentence and the non-parole period of 77% was unusual and unexplained, particularly in light of defence submissions that the appellant’s rehabilitation prospects would be enhanced by the supervision he would receive whilst on parole.
Disqualification
The appellant argued that the disqualification period imposed was manifestly excessive, pointing out that it had been made by the judge immediately after sentencing, in the absence of any submissions. He argued that the decision to impose such a lengthy disqualification period gave no weight to the public’s interest in his rehabilitation and was of the type which would be expected in the case of an offence involving dangerous driving.[2]
[2]Citing R v Lefebure (2000) 112 A Crim R 41; R v Milorad Novakovic [2007] VSCA 145.
The respondent acknowledged that a disqualification period of three years might be excessive, depending upon the outcome of the appeal.
Conclusions
Attempted armed robbery
Section 5(2)(b) of the Sentencing Act 1991 requires the Court to have regard to current sentencing practices and the information provided as to current trends contained in the sentencing statistics is of assistance in that regard.[3] Of course, the circumstances of the offence and the offender and all other relevant sentencing considerations must also be taken into account in the exercise of the Court’s sentencing discretion.
[3]See: R v Bangard (2005) 13 VR 146, [11] (Buchanan JA).
Whilst it might be the case that the appellant should be regarded as less culpable than numerous other offenders facing a charge of attempted armed robbery, this is a serious example of the offence. The appellant chose a victim whom he thought he could overpower and who was vulnerable and exposed as he used the ATM. Further, when the victim managed to run away calling for help, the appellant pursued him, still holding his weapon.
The victim was terrified by his experience. At the time of making his victim impact statement, he continued to suffer from the effects of the events, remaining very frightened when withdrawing money from any ATM and suffering from what he described as ‘mental crisis’.
This is not a case in which the personal circumstances of the offender significantly reduce his moral culpability. At 26, the appellant is not, relatively speaking, a very young man. The Sentencing Snapshot material shows the average age of people sentenced for attempted armed robbery between 2002 and 2007 was twenty six years and four months.
The appellant’s drug addiction did not excuse his behaviour, but it is relevant to the assessment of his moral culpability.[4] The origins of that addiction do differentiate the appellant from someone from a more privileged background who might be regarded as having more freely chosen to use drugs.[5]
[4]R v Koumis (2008) 18 VR 434, [53]–[54] (Redlich and Kellam JJA and Osborn AJA).
[5]See: R v McKee (2003) 138 A Crim R, 92 [13] (Buchanan JA).
As far as the appellant’s prospects of rehabilitation are concerned, it is to be hoped that he will continue to avail himself of the opportunities available whilst he is in custody and on parole to deal with his destructive addiction. To date, there is, unfortunately, little evidence of efforts on his part to rid himself of that drug addiction to which not only the subject offences but also his numerous prior offences appear to have been largely attributable.
There is a need for both specific and general deterrence in this case. The appellant’s history of offending demonstrates his apparent failure to have benefited from any leniency shown him, revealing a number of breaches of orders offering opportunities of rehabilitation in the community.
It is important that any person withdrawing money from an ATM should be able to do so safely. Such a person is vulnerable and often presents what might be thought to be an easy target. The appellant’s sentence must take into account the need for general deterrence.
In all the circumstances, I consider that the appellant should be re-sentenced to three years’ imprisonment for the attempted armed robbery.
Theft sentence
I do not regard the theft sentence as manifestly excessive. The appellant concedes that the car and the mobile phones were stolen for use in an armed robbery. Although, of course, he must not be punished twice for the armed robbery, the Court is entitled to take the proposed use into account as part of the circumstance of the offence when considering the appellant’s submissions as to its seriousness.
The appeal in relation to the theft sentence should be dismissed.
Cumulation
I agree with the respondent that some cumulation is warranted to recognise that there were different victims of the two related crimes.
One month of the sentence for theft should be served cumulatively upon the armed robbery sentence, making a total effective sentence of imprisonment for three years and one month.
Non-parole period
Given the appellant’s acknowledgement of the critical importance of the likely benefits of supervision to his prospects of rehabilitation, a non-parole period of two years from 20 September 2007 is appropriate in this case. This is the minimum time the interests of justice require that the appellant should serve, in all the circumstances, to ensure that relevant sentencing objectives, including the need for general deterrence and the requirement that the appellant be punished, be achieved.[6]
Disqualification
[6]See: R v VZ (1998) 7 VR 693, [15] (Callaway JA), [22] (Batt JA).
Section 89(4) of the Road Safety Act 1986 requires the Court to disqualify the appellant from obtaining a driver licence because he has been convicted of theft of a motor vehicle.
In Lefebure[7] the Court held that the disqualification has a punitive element which requires an assessment of the extent to which, in the context of the overall punishment, it is needed to reflect the community’s dissatisfaction with the offence. The length of any period of imprisonment is relevant and sometimes the disqualification period should be longer to achieve its objectives. The convicted person’s dependency on a driving licence is also relevant in order not to undermine prospects of rehabilitation.[8]
[7](2000) 112 A Crim R 41.
[8](2000) 112 A Crim R 41, 44, [7]-[8] (Tadgell JA, Chernov and Hedigan JJA agreeing).
Whilst there was no direct evidence as to the appellant’s future need for a licence or as to whether he would have any access to a car, I assume the likelihood that his rehabilitation prospects would be enhanced by the ability to obtain a licence once he is released on parole.
Bearing in mind the punitive nature of the order, I consider that he should be disqualified from obtaining a driver’s licence for the period commencing on 20 September 2007 and ending two months after the date of his release from custody on parole or at the expiration of his sentence.
---
7
0