R v Ton
[2015] VSC 188
•6 May 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2014 0196
| THE QUEEN |
| v |
| LILY HUONG TON |
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JUDGE: | PRIEST JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 May 2015 |
DATE OF SENTENCE: | 6 May 2015 |
CASE MAY BE CITED AS: | R v Ton |
MEDIUM NEUTRAL CITATION: | [2015] VSC 188 |
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CRIMINAL LAW — Sentence — Plea of guilty to assisting offender — Youth — Prospects of rehabilitation — Sentenced to adjourned undertaking without conviction.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M J Rochford QC and Ms F E Holmes | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
| For the Accused | Mr A Lewin | Turnbull Lawyers |
HIS HONOUR:
Lily Huong Ton, you have pleaded guilty to a charge of assisting offender, the maximum penalty for which is five years’ imprisonment.
For the reasons that follow, I intend to sentence you without conviction to an adjourned undertaking for a period of 18 months.
Ms Ton, you were a regular visitor to premises occupied by Nathaniel Raimundo and Crytal Portelli at 125 Alfrieda Street, St Albans. You were a close friend of Raimundo, and regularly visited the premises, sometimes using one of the bedrooms.
During the evening of Friday 10 May 2013, and morning of Saturday 11 May 2015, various people came to the premises, where ice, heroin, cannabis and alcohol were consumed. You came to the premises at about 8:00pm on the Friday evening, but were asleep in the front bedroom in the early hours of Saturday morning when a visitor to the premises, Hieu Nguyen was stabbed. It seems that your friend, Raimundo, attacked Mr Nguyen and struck him repeatedly with a bottle. You came out of the bedroom. Sometime later, another individual, Kether Mazzaro, held Mr Nguyen whilst Raimundo stabbed him once in the chest.
At 5:23am, Raimundo and Mazzaro left the premises with Mr Nguyen in a Honda motor vehicle. Mr Nguyen was left by the side of the road near the Emergency Department of Sunshine Hospital a few minutes later. When found by security staff at 5:50am he was dead.
Your crime was to assist Portelli and Mazzaro to clean the premises, so as to rid it of blood, but there is no evidence to suggest that you knew at that time that Mr Nguyen had died. It is for that reason that the indictment charges you with assisting Raimundo and Mazzaro believing them to be guilty of intentionally causing serious injury, rather than some form of unlawful killing.
I note that Portelli and others burned the Honda so as to get rid of evidence, the car containing a significant amount of blood.
Ms Ton, you were born on 28 June 1995. You were aged 17 years at the time of your offending, and are now aged 19. Your youth when you offended — and now — is relevant to the sentence that I must impose. Rehabilitation is important, and the weight to be given to general deterrence is, to some extent, reduced. I intend to reflect your youth and prospects of rehabilitation — which I regard as excellent — in the sentence I impose.
Moreover, there has been a delay of two years since the offending. You have had the matter hanging over your head for that time, which would have caused a degree of stress associated with the uncertainty of what your fate would be. I think that stress would have been exacerbated by your original discharge, followed by the filing of an indictment. Significantly, you have involved yourself in no further illegal activity in that time, so that I am justified as regarding your rehabilitation as advanced.
You are Australian born from a family of Vietnamese origin. Your mother and father came to this country as refugees, and are decent, hard-working and law-abiding citizens. By your actions, you have brought great shame down upon them, and upon yourself. You are, as you should be, embarrassed and ashamed of your conduct. The letter that you have written to the Court expresses your remorse for what you have done.
I was told that you successfully completed VCE at Marian College. From the age of 14 years and 9 months you worked at McDonalds. Following completion of your VCE, you have been employed in a dental surgery.
You have no prior convictions or findings of guilt. I regard the your offending as being out of character, and, as your counsel put it, an aberration. Indeed, I received a number of character reference from your mother, father and sister, and glowing references from Dr Tran, Tuan Nguyen, Kayla Nguyen and Michael Nguyen. They reflect well on you. You also wrote a letter to the Court acknowledging your guilt and your remorse for your actions. I think it likely that your offending arose out of negative influences by your then associates (who were all older than you), youthful naivety and a misguided sense of loyalty to Raimundo. You have now broken away from such negative influences, and I think the whole episode has had a salutary and sobering effect on you.
Ms Ton, you pleaded guilty following having been discharged at committal and following the filing of a direct indictment. I regard the plea as early. It has a utilitarian benefit, and facilitates the course of justice. Furthermore in my view the plea reflects your remorse for your actions. Indeed, Mr Rochford, who appeared with Ms Hogan for the prosecution, in a perspicuously fair submission, conceded that your plea evidences genuine remorse. I intend to ameliorate significantly the sentence that I would otherwise have passed because of your plea of guilty. As I have observed more than once previously, people in your situation must be confident that a plea of guilty will result in a real and palpable ‘discount’.
General deterrence is of limited relevance given your age. Further, I regard specific deterrence as relatively unimportant, since I think it unlikely that you will re-offend. You have, I think, suffered significantly as a result of your actions and the curial process that has followed them. My principal aim in imposing sentence upon you is to promote your rehabilitation.
I must, to some extent, have regard to the principle of parity. Several of your co-offenders have been dealt with. One individual, Tahir was sentenced in the Melbourne Magistrates’ Court on 5 December 2014. In response to an undertaking on his part to give evidence for the prosecution in relation to the principal offence of murder, he was sentenced to an 18-month adjourned bond without conviction and ordered to pay $2,000 to the court fund. He had pleaded guilty to one charge of arson in relation to the Honda.
Peter Gergis, pleaded guilty to one count of arson in respect of the Honda and gave an undertaking to give evidence on behalf of the prosecution. He had prior convictions and he was also sentenced to an 18-month adjourned bond, however with conviction, and ordered to pay $3,000 to the court fund.
Portelli, who pleaded guilty to assisting offender and arson was, on 19 December 2014, sentenced in this Court on each charge to be imprisoned for six months, and to undergo a community correction order for two years, including the performance of 100 hours of unpaid community work and other conditions. She was much older than you and had significant priors. Her offending was also more serious than yours.
You are younger than your co-offenders and without prior convictions. Although your conduct in cleaning the premises was significant, your criminal actions were different — and more limited — than those of your co-offenders. You have not, however, offered assistance. I must, as best I am able, endeavour to accommodate those competing considerations in the sentence I pass upon you.
Ms Ton, I sentence you without conviction to an adjourned undertaking for 18 months, with conditions that you be of good behavior during the period of the undertaking and attend before the Court during the period of the adjournment if called upon to do so. It will be a special condition of the undertaking that you pay the sum of $500 into the Megistrates’ Court Fund within 14 days of this order.
Pursuant to s 6AAA of the Sentencing Act 1991, I declare that, but for your plea of guilty, I would have convicted you, and sentenced you to a community correction order for two years with a condition that you perform 100 hours’ community work.
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