R v Van Dong

[2006] QCA 198

SUPREME COURT OF QUEENSLAND

CITATION:	R v Dong [2006] QCA 198
PARTIES:	R v DONG, Tam Van (appellant/applicant)
FILE NO/S:	CA No 44 of 2006 DC No 342 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING  COURT:	District Court at Brisbane
DELIVERED EX
TEMPORE ON:	7 June 2006
DELIVERED AT:	Brisbane
HEARING DATE:	7 June 2006
JUDGES:	de Jersey CJ, McMurdo P and Keane JA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1.  Appeal against conviction dismissed
2. Application for leave to appeal against sentence refused
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - OTHER OFFENCES - where applicant convicted upon the verdict of a jury of one charge of armed robbery with personal violence and plead guilty to making unlawful threats - where applicant sentenced to five years imprisonment for armed robbery and three years for the unlawful threats - where the offences took place in the context of a drug-related debt - where applicant has criminal history but no history of violence - where applicant argued he had a minimal risk of re-offending - whether the sentence imposed was excessive
R v Kelly, Baker and Perry, [1991] CCA 198; CA No 144 of 1991, 29 August 1991, considered
COUNSEL:	S Nguyen for the appellant/applicant R G Martin SC for the respondent
SOLICITORS:	No appearance for the appellant/applicant Director of Public Prosecutions (Queensland) for the respondent

KEANE JA: On 2 February 2006 the applicant was convicted, upon the verdict of a jury, of a charge of armed robbery with personal violence. He was acquitted of one count of unlawful wounding. He had earlier pleaded guilty to making unlawful threats.

On 10 February 2006 he was sentenced to five years imprisonment for the offence of armed robbery and three years imprisonment for the offence of making unlawful threats. A period of 59 days was declared to be pre-sentence custody.

The applicant originally sought to appeal against the conviction for armed robbery. That appeal was abandoned by the applicant's counsel at the hearing of the appeal and the appeal against conviction should accordingly be dismissed. The applicant now seeks leave to appeal against the sentence imposed in respect of the offence of armed robbery.

The Crown case at trial was that on 24 September 2004 the the complainant's rings as security for payment of the debt of $100. The appellant then threatened the complainant with what was described as a machete or samurai sword. The appellant had a blowtorch-style cigarette lighter, which he used to apply flame to the blade. He made some swings with the blade in the direction of the complainant and the appellant demanded that the complainant take off all his belongings and put them on the table.

complainant, a heroin addict, drove to a house at Inala to ask
one of his heroin suppliers to allow him more time to pay his
debt to that supplier. When the complainant arrived at the
house, the appellant was there as well. The complainant owed
the appellant $100 for drugs. The complainant asked the
appellant for more time to pay his debt to him.

The appellant took the belongings which the complainant had removed from his person at the appellant's demand. These consisted of two rings, his wallet and a Seiko wrist watch. The appellant also demanded the complainant sign his car over to the appellant or he would chop off one of the complainant's fingers.

In fear of the appellant, the complainant signed a document
purporting to transfer title of the complainant's car to the
appellant. The appellant demanded the keys of the car and the
complainant handed them over. According to the complainant,
the appellant swung the blade at him and he grabbed the blade
to try to get it off the appellant. At this point the
complainant suffered a cut to a finger and the palm of his
right hand. He was bleeding profusely and asked for help.
The appellant punched him in the face.

According to the complainant, the appellant walked out of the house and returned with the mobile phone from the glove box of the complainant's car. One of the appellant's companions continued to threaten the complainant with the samurai sword and according to the complainant, this other person struck him in the knee with the blade, leaving a gash in the knee.

The complainant somehow got one of his rings back and then made his way out of the house. He was subsequently assisted by some passers-by who called an ambulance. The complainant was taken to hospital where he was interviewed by police.

Police investigating the incident saw the complainant's car outside another address at Inala. On 25 September 2004 police obtained a search warrant in relation to that address. In executing the search warrant, police knocked at the door. There was no reply but police could hear "people moving" inside the house. Accordingly, police "then entered forcefully".

Constable Black asked the appellant, "Who owns the car in the driveway?" The appellant replied, "Me I've got the paper in my back pocket". Senior Constable Black took possession of this paper. Police also located the blowtorch-style cigarette lighter taken from the complainant.

The appellant asserts that the sentence was manifestly excessive and in particular, the learned sentencing Judge failed to take into account the appellant's youth and the circumstance which, as the appellant puts it in his written submissions, is that the "appellant is not a threat to the greater community".

The appellant, who is a member of the Vietnamese-Australian community, was born in Brisbane on 26 September 1981. He was therefore, about to turn 23 years of age on the date on which the offences were committed. He was 24 years old when he was sentenced.

The appellant has a criminal history which commenced when he was 21 years old. It includes offences of dishonesty and drug related offences. The applicant has no previous history of offences of violence and he has not previously been imprisoned.

On behalf of the applicant it was submitted to the sentencing Judge that the applicant represented a minimal risk of re-offending. In this Court it was submitted, in written submissions, that he is not a threat to "the greater community".

I should say immediately that to the extent that that contention implies that the appellant represents a threat only to drug users, or to drug users within the Vietnamese- Australian community, or to the Vietnamese-Australian community as opposed to the community generally, and that he should thus be afforded leniency, this contention must be rejected out of hand. There can be no differentiation between members of the community entitled to the protection of the law of the kind which appears to be implicit in the applicant's written submission.

The applicant's contention is also that he represents a minimal risk of re-offending generally. The sentencing Judge was unable to reach any view on the likelihood that the applicant will commit any further offences.

This Court cannot lay claim to greater prescience than the sentencing Judge in this regard. What can be said however, is that the applicant's history since he reached adulthood and the circumstances of the offences presently in question afford no reason for optimism in this regard.

As the learned sentencing judge observed, the applicant's offending conduct put the complainant in fear of his life, and, while the applicant had not planned the offence, his ill- treatment of the complainant was sustained over a period of time.

The offences in question occurred when the applicant was very close to full maturity as an adult. They involved deliberate and persistent threats of serious physical injury, which the

applicant was clearly in a position to inflict. These threats Considerations of general and personal deterrence are especially important in these circumstances. A sentence of five years cannot be said to be excessive.

were associated with the applicant's attempts to enforce his
claims to payment as a dealer in heroin. Those claims were
themselves exorbitant as well as unlawful.
These are circumstances of aggravation of particular concern.

A sentence of five years could not be regarded as excessive, having regard to authority such as the decision of the Court of Criminal Appeal in R v Kelly, Baker and Perry, Court of

Appeal No 144 of 1991. Even allowing for points of difference, such as the more protracted nature of the offending in Kelly's case.

No decision of this Court affords any support for the view that a sentence of five years imprisonment for the offending in question should be regarded as excessive. The appellant also asserted, in his written submissions, that the sentencing Judge erred in calculating the appellant's pre-sentence custody.

The applicant contends that he should be credited with a period from 3 October 2005 to 27 January 2006. This assertion is unsustainable and was not pressed on the hearing of the application. In that regard the applicant was arrested for the offences of present concern in September 2004. He was admitted to bail on 12 November 2004.

The applicant's custody between 3 October 2005 and 27 January
2006 followed his arrest for other offences for which he was
07062006 D.1 T13/RAH1 M/T COA124/2006

sentenced on 27 January 2006 to time served. The appeal	1
against conviction should, as I have said, be dismissed. The application for leave to appeal against sentence should be refused.

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THE CHIEF JUSTICE: I agree.

THE PRESIDENT: I also agree.

THE CHIEF JUSTICE: The orders are as indicated by Justice

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Keane.

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8 JUDGMENT 60