R v Vu

[2011] SASCFC 112

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v VU

[2011] SASCFC 112

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice David and The Honourable Justice Peek)

14 October 2011

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - RESPONSE TO CHARGES - CO-OPERATION WITH POLICE OR ASSISTANCE TO AUTHORITIES

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - RESPONSE TO CHARGES - PLEA OF GUILTY

Appeal against sentence – the appellant pleaded guilty at an early stage to eight counts of aggravated robbery, two counts of attempted aggravated robbery, possession of a firearm without a licence, serious criminal trespass (non-residential), and theft – in relation to the eight counts of aggravated robbery and two counts of attempted robbery, the sentencing Judge imposed a single sentence of 28 years’ imprisonment but made a 25 per cent reduction for the appellant’s early pleas of guilty and contrition, resulting in a sentence of 21 years’ imprisonment – for the offences of serious criminal trespass and theft, the sentencing Judge imposed a single sentence of 18 months’ imprisonment but made a 33 per cent reduction for the early pleas of guilty, resulting in a sentence of 12 months’ imprisonment – the sentencing Judge ordered that the sentences be cumulative, resulting in a total head sentence of 22 years’ imprisonment – the sentencing Judge fixed a non-parole period of 11 years, taking into account the age of the appellant and his good prospect of rehabilitation.

Upon arrest, the appellant promptly and freely admitted to his involvement in each of the armed robberies – the appellant showed the police to the location of a hidden single barrel shotgun and other concealed items, including the proceeds of his crimes – this amounted to full cooperation – the issues were: (1) whether the reduction for early pleas of guilty, for cooperation with the police and for contrition and remorse, was inadequate; (2) whether the sentencing Judge should have given separate reductions for the pleas of guilty, and for the cooperation, contrition and remorse and arrived at a greater reduction than 25 per cent; and (3) whether, in all the circumstances, the sentence imposed was manifestly excessive.

Held (Doyle CJ with David and Peek JJ concurring): (1) the reduction of 25 per cent was not inadequate in the circumstances; (2) it is not the practice of the court to make a separate reduction for a plea of guilty, and on the other hand for cooperation, contrition and remorse; and (3) the sentence imposed was not manifestly excessive.

Appeal dismissed.

Criminal Law Consolidation Act 1935 (SA) s 5(1), s 5AA, s 134(1) s 137(1), s 137(1)(b) s 169(1), s 169(1)(a), s 270A, s 270A(3)(b); Firearms Act 1977 (SA) s 11(1), s 11(6)(e), s 11(7)(b); Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.

R v VU
[2011] SASCFC 112

Court of Criminal Appeal:  Doyle CJ, David and Peek JJ

1. DOYLE CJ:          Mr Vu appeals against a sentence that was imposed by a Judge of the District Court of South Australia on 11 April 2011.

2. Mr Vu pleaded guilty to eight counts of aggravated robbery, contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA); two counts of attempted aggravated robbery, contrary to s 137(1) and s 270A of the CLCA; possession of a firearm without a licence, contrary to s 11(1) of the Firearms Act 1977 (SA) (Firearms Act); serious criminal trespass (non‑residential), contrary to s 169(1) of the CLCA; and theft, contrary to s 134(1) of the CLCA. The aggravated offences were aggravated because Mr Vu used an ‘offensive weapon’ (a single barrel shotgun) to commit the offences: see s 5(1) and s 5AA of the CLCA.

3. The maximum term of imprisonment for the offence of aggravated robbery is imprisonment for life (s 137(1)(b) of the CLCA). The maximum term of imprisonment for attempted aggravated robbery is 12 years (s 270A(3)(b) of the CLCA). The shotgun is classified as a class D firearm under s 11(6)(e) of the Firearms Act. The maximum penalty for possession of a class D firearm without a licence is $35,000 or imprisonment for seven years (s 11(7)(b) of the Firearms Act). The maximum penalty that may be imposed for serious criminal trespass (non-residential) is 10 years’ imprisonment (s 169(1)(a) of the CLCA). For the offence of theft, s 134(1) of the CLCA stipulates that the maximum penalty that may be imposed is imprisonment for 10 years.

4. In relation to the eight counts of aggravated robbery and two counts of attempted robbery, the sentencing Judge imposed a single sentence of imprisonment, exercising the power conferred by s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act). The Judge started with a sentence of 28 years’ imprisonment but made a 25 per cent reduction for Mr Vu’s early pleas of guilty and contrition, resulting in a sentence of 21 years’ imprisonment.

5. For the offences of serious criminal trespass and theft, the sentencing Judge, again exercising powers conferred by s 18A of the Sentencing Act, imposed a single sentence of 18 months’ imprisonment but made a one-third reduction for the early pleas of guilty, resulting in a sentence of 12 months’ imprisonment.

6. The Judge ordered that the second sentence be cumulative upon the first, resulting in a total head sentence of 22 years’ imprisonment. 

7. The Judge fixed a non-parole period of 11 years, taking into account the age of Mr Vu and his good prospect of rehabilitation.

   Facts

8. The sentencing Judge summarised the nature and circumstances of Mr Vu’s offending. 

9. The following summary relates to the counts contained on an Information of 20 September 2010. 

10. The first count was attempted aggravated robbery of a service station at Pooraka. On 24 January 2010, Mr Vu entered the service station through the front door and pointed a single barrel shotgun at the attendant. Mr Vu threatened to kill the attendant if he did not open the cash register. The attendant explained to Mr Vu that he could not open the cash register because it was locked. Mr Vu became angry, threw a bottle of water at the attendant and then fled as a customer pulled into the service station. 

11. The second count was aggravated robbery. On 24 January 2010, Mr Vu robbed a service station in Virginia. The attendant was mopping the floor when Mr Vu entered the service station, pointed a single barrel shotgun at him and demanded the attendant empty the cash register. The attendant complied. Mr Vu then told the attendant to get on his knees, which he did. Mr Vu then left the service station. 

12. The third count was aggravated robbery. On 29 January 2010, Mr Vu ran into a supermarket in Pooraka brandishing a single barrel shotgun. Mr Vu pointed the shotgun at the chest of the owner of the supermarket and demanded that he open two cash registers. The owner complied and Mr Vu emptied the two cash registers containing $910.00 into a bag while continuing to point the gun at the owner. 

13. The fourth count was aggravated robbery. On 31 January 2010, Mr Vu entered a liquor store at Virginia. He pointed a single barrel shotgun at one of the workers and demanded that he open the cash register. A female employee who was also working opened the cash register and placed the money into a bag that Mr Vu had thrown on the counter. Mr Vu continued to point the shotgun at the male employee as he left the store. As he left, Mr Vu told the male worker that he knew where he lived. 

14. The fifth count was aggravated robbery. On 31 January 2010, Mr Vu ran into a chemist shop at Pooraka, pointed a shotgun at a female employee and another employee and demanded money from them. Mr Vu took an amount of money between $1000 and $1700 from two cash registers and then fled. 

15. The sixth count was aggravated robbery. On 6 February 2010, Mr Vu entered a grocery store in Virginia, walked up to the counter and pointed a single barrel shotgun at a young employee. Mr Vu pointed to both of the cash registers on the counter and told the employee to put the money in a bag, which he did. Mr Vu fled with an amount of about $1500. 

16. The seventh count was aggravated robbery. On 19 February 2010, Mr Vu drove his car into a drive-through bottle shop in Pooraka, alighted from his vehicle and pointed a shotgun at the head of a worker. He then demanded that the worker get on the floor and empty the cash registers of money. He was able to take $666.85 from one cash register but a second register would not open. Mr Vu then demanded a wallet and mobile phone from one of the employees. When the employee informed Mr Vu that he did not have his wallet on him, Mr Vu moved close to him, accused him of lying and pointed the gun at his head from a distance of about 15 cm. Mr Vu then left. 

17. The eighth count was a second attempted aggravated robbery. On 13 February 2010, Mr Vu entered a grocery shop in Pooraka, pointed a shotgun at the owner and demanded that he hand over money. The owner informed Mr Vu that he did not have any money. Mr Vu approached him on the other side of the counter, pointed the shotgun at him and threatened to kill him if he did not give Mr Vu money. Mr Vu left without any money. 

18. The ninth count was aggravated robbery. On 14 February 2010, at Ingle Farm, Mr Vu entered a pizza bar, pointed a shogun at a male worker and demanded that he give Mr Vu money. The worker opened a cash register and removed $160 in notes. Mr Vu demanded more money. The worker handed over his wallet and mobile phone with which Mr Vu fled. 

19. The tenth count was again for aggravated robbery. On 15 February 2010, Mr Vu entered a post office at Pooraka. He pointed a shotgun at a female worker who was standing behind the counter. A female customer then entered the post office. Mr Vu pointed the shotgun at her and told her to get inside and remain in the post office. Mr Vu demanded and received $500, which was placed in a bag. Mr Vu then left. 

20. Mr Vu was also charged with possessing a firearm without a licence. This was the subject of count eleven. On 16 February 2010, the police attended the appellant’s residence for the purposes of conducting a search. By this stage, the police suspected Mr Vu of committing offences of aggravated robbery. Mr Vu was cooperative. During the search, an officer asked Mr Vu where the firearm was located. Mr Vu confessed that he had the firearm and showed the police that it was hidden in the back shed of the appellant’s residence placed inside the roof. The firearm recovered was a single barrel shotgun. 

21. Mr Vu pleaded guilty to two further counts on an Information of 21 July 2010. The first count was serious criminal trespass (non residential) and theft. Both counts arise out of the same offence. Between 31 December 2005 and 3 January 2006, Mr Vu entered an electrical store at St Mary’s with the intention of committing theft. Mr Vu took electrical equipment worth about $30,000 and more than $2500 worth of the electrical store’s property.

    Mr Vu’s circumstances

22. Mr Vu was 25 years of age when sentenced.  He was born in Australia.  The Judge described his family as law abiding and hard working.  They continue to support Mr Vu.  Not surprisingly, the Judge noted that Mr Vu’s parents have been deeply affected by his offending.  One can imagine the grief that it has caused to them.

23. As is so often the case, the background to these offences involves excessive use of drugs and alcohol, apparently beginning when Mr Vu was about 16 years of age.  The death of a cousin in a motor vehicle accident may have contributed to the misuse of alcohol and drugs.  Mr Vu became addicted to heroin.  Heroin is an expensive drug, and he incurred a debt of about $10,000.  Threats were made that he and his family would be harmed if the debt was not paid.  This was his reason for resorting to crime – his addiction and the cost of addiction.

24. He had no prior record of offending, although the offences of serious criminal trespass and theft were committed in January 2006, some four years before the robbery offences.

25. The Judge had before him a report from a psychologist.  The psychologist noted that Mr Vu met the diagnostic criteria for opioid dependence.  In the opinion of the psychologist, at the time of the offending Mr Vu was suffering from a major depressive disorder, probably linked to the death of his cousin some years earlier.  The psychologist described this as a “complex grief reaction leading to a major depressive disorder”.   In the opinion of the psychologist, Mr Vu’s rehabilitation was dependent upon his ability to abstain from drug use.  If he could not, the risk of him reoffending was in the medium range.

    The Judge’s reasons

26. The Judge recorded the offending conduct in brief.  He summarised Mr Vu’s circumstances, covering much the same ground as I have.  He noted the effect that Mr Vu’s crimes had had on the innocent people who became caught up in them.  As the Judge said, this had had “a profound effect on a large number of people”.  He said that the offending was most serious, and noted that there was a degree of planning and organisation.  These were not simply random offences.  The Judge accepted that the gun that Mr Vu used was not capable of being discharged.  However, that was something not known to the victims, and understandably they were terrified by the use of the gun and the threats that Mr Vu made.  But for the pleas of guilty, for the robbery offences the Judge would have imposed a sentence of 28 years’ imprisonment.  He reduced that to 21 years having regard to Mr Vu’s pleas of guilty and contrition.  That was a reduction of 25 per cent.

27. In relation to the offences of serious criminal trespass and theft, he imposed a single sentence of 12 months’ imprisonment.  But for the pleas of guilty the sentence would have been 18 months.  That was a reduction of one-third.

28. The Judge ordered that the sentence of 12 months’ imprisonment be served cumulatively upon the sentence of 21 years’ imprisonment, making a total head sentence of 22 years.  He considered the question of totality, but saw no reason to reduce the punishment. 

29. He fixed a non-parole period of 11 years, one half of the head sentence.  He accepted that Mr Vu was a good candidate for rehabilitation. 

    Submissions on appeal

30. Mr Muscat SC, counsel for Mr Vu on appeal, did not attack the starting point.  His submission was that the reduction for the pleas of guilty, for cooperation with the police and for contrition and remorse, was inadequate.

31. When Mr Vu was arrested by the police, he was completely frank with them.  He promptly and freely admitted to his involvement in each of the armed robberies.  He volunteered information to the police about them.  He showed the police where he had concealed various implements that he used, gave them the money that he had by way of proceeds and generally did all that could have been done.  I accept Mr Muscat’s submission that this was full cooperation.  I should add that Mr Vu also participated in a lengthy recorded interview in which he made complete admissions.  His pleas of guilty were offered at an early stage.

32. Mr Muscat submits that but for the admissions, it might not have been possible to prove that Mr Vu was guilty in relation to three or four of the offences.  That submission was not made before the sentencing Judge.  If it was to be made, it should have been made there.  There is nothing about the offences to which Mr Muscat referred to suggest that there would have been any particular difficulty in proving Mr Vu’s guilt.  I do not accept that submission.

33. Mr Muscat submits that the Judge should have given separate reductions for the pleas of guilty, and for the cooperation, contrition and remorse.  Had the Judge done so, Mr Muscat submits he must inevitably have arrived at a greater reduction than 25 per cent.

34. I disagree.  It is not the practice to make a separate reduction for a plea of guilty, and on the other hand for cooperation, contrition and remorse.  The practice is to consider all of these together, resulting in a single reduction.  There is nothing wrong with the approach that the Judge took. 

35. Nor, in my opinion, can it be said that the reduction of 25 per cent was inadequate.  I accept that Mr Vu was completely cooperative, but it is not uncommon for offenders to cooperate fully with the police, to make full admissions, and then to plead guilty at an early stage.  Despite the emphasis that Mr Muscat placed on Mr Vu’s cooperation, at the end of the day what he did does not stand out as exceptional, calling for a greater reduction than the Judge made.

36. Of course, no-one can say that a reduction of 25 per cent is exactly right.  This is something on which minds might differ.  But in my opinion it cannot be said that a greater reduction must have been made.  I reject that submission.

37. Mr Muscat pointed to the circumstance that the Judge allowed a reduction of one-third in the sentences for serious criminal trespass and theft.  The Judge did not explain why he allowed a greater reduction.  This matter does not provide any support for Mr Muscat’s argument.  One cannot argue that because the Judge allowed a reduction of one-third for these offences, he was obliged to make the same reduction in relation to the other offences.  One could equally well argue that the reduction of one-third was unduly generous, and that that is where the error lies, if there is an error.

38. Although Mr Muscat did not attack the Judge’s starting point, I have considered the sentence as a whole.  I do so because, in the end, the question is whether the sentence is manifestly excessive.

39. One is immediately struck by the large number of very serious offences.  They were committed over a relatively short period of time, between 24 January 2010 and 15 February 2010 (the serious criminal trespass and theft were committed in 2006).  But each offence was a separate incursion into crime.  It cannot be said that this was offending of a kind such that, once commenced, it was difficult to stop.  Mr Vu’s persistence in offending is also noticeable.  He accepted that the proceeds of his offending were not wholly devoted to repayment of the drug debt.  He also used the money that he obtained to fund his continuing addiction.  Mr Muscat pointed to statements by Mr Vu that, even in the course of the offending, he was aware of and regretted the impact that his offending would have on persons involved in his offence.  But, to my mind, that is not a matter that assists him.  To the extent that he was regretful, he was prepared to subordinate those regrets to his own needs for money.

40. The targets for Mr Vu’s robberies were generally small business premises in which one would expect to find, at the relevant time, only one or a few staff members.  They were premises of a kind that are vulnerable to this kind of offending.  This is a relatively common form of offending, and one which causes great community concern, for obvious reasons.  The cost that this offending inflicts on the community goes well beyond the amount of money or valuables taken.  The cost to the community extends to the need for increasing and expensive security measures in response to offending of this kind.  General deterrence is a significant factor in a case like this.

41. I am also struck by the long list of victims.  As is common, the victim impact statements disclose that many of them have suffered substantially because of their involvement in a robbery, and experience suggests that some of them are likely to continue to suffer for a long time.

1. It is tragic to see a young man, coming from a good and supportive family like this, with only two offences in his past, facing a prison sentence of the magnitude imposed.  But the Judge was right.  It cannot be said that the head sentence at which he arrived is excessive, nor can the non-parole period be said to be excessive.  Indeed, in all the circumstances, it is a moderate non-parole period.

2. The sympathy one feels for Mr Vu’s family, and the regret at seeing a young man like Mr Vu imprisoned for so long, cannot outweigh the need for a punishment that reflects the number of offences, the seriousness of the offending, the need for individual but in particular general deterrence, and the serious consequences of this offending.

   Conclusion

3. For those reasons I would dismiss the appeal.

4. DAVID J:     I would dismiss the appeal.  I agree with the reasons of the Chief Justice.

5. PEEK J:       I would dismiss the appeal.  I agree with the reasons of the Chief Justice.