Crown v Accused

2 The maximum penalties for these offences are imprisonment for 20 years, 10 years, 5 years, 10 years and 15 years respectively.

3 The objective gravity of your offending and your moral culpability for it are very high.

4 On 23 November 2017 you had been at the home of Yen Ngo. Ms Ngo was involved in the business of drug trafficking. You had been in a sometimes intimate relationship with her for a few months. You also bought illicit drugs from her.

5 On that day you had with you a firearm; a sawn-off shotgun in very ill repair. It lacked a trigger guard and both the barrel and the butt had been shortened. It was loaded. You were prohibited from possessing a firearm because less than five years had passed since you had completed a term of imprisonment for an indictable offence. You had possession of the firearm for 'protection' given the drug milieu in which you and Ms Ngo were involved.

6 During the afternoon Ms Ngo was asleep in her room. Your gun was on the corner of her bed. You were in another bedroom where, with others, you consumed a quantity of drugs. This included methylamphetamine or 'ice' apparently provided by Ms Ngo's housemate, as well as heroin from your own supply of drugs. You then went to Ms Ngo's bedroom where you sat on the floor with your back against the wall. You remained in her bedroom while she slept, either writing letters or continuing to smoke drugs by yourself. At some point, Ms Ngo woke up and you smoked heroin together before you drifted off to sleep.

7 You have given evidence[1] that you awoke to hear Ms Ngo saying words to the effect of 'I don't care anymore' and 'kill me'. She went to grab the gun. You lunged forward and tried to grab the gun, but failed to get a proper grip. It came out of your hand. You lunged again for the weapon and, as you pulled it back, the weapon discharged. Ms Ngo sustained a gunshot wound to her chest.

8 You took Ms Ngo downstairs, receiving some limited assistance from her landlord, and outside the house. You placed Ms Ngo in the rear foot well of her four wheel drive and took her to the Sunshine Hospital. You took the firearm with you. You were with Ms Ngo in the foyer of the emergency department as she was placed on a gurney. A uniformed police officer, present at the hospital for unrelated reasons, approached and spoke to you. You left the foyer, entered your vehicle and took off at speed. You collided with a car in the hospital carpark.

9 You exited the carpark onto Furlong Road and drove towards the Western Ring Road. You entered the intersection of those two streets against a red light, colliding with the front of a Toyota Hilux utility. The driver of that vehicle pulled into a bus stop. She got out to inspect the damage and made a telephone call on her mobile. You, too, alighted from your vehicle, which the collision had rendered inoperable. You were holding what appeared to be a black bag and said 'help me'.

10 You then attempted to stop a number of passing vehicles before approaching a Mazda 2 sedan stopped at the lights of the Western Ring Road exit waiting to turn right into Furlong Road. You had the firearm in your hand. You first tried to open the driver's door, but the door were locked. Next you lifted the butt of the firearm and hit the driver's window three to four times in order to smash the window and gain entry to the vehicle. As you did so the barrel of the firearm dislodged and landed on the median strip. The stock and butt fell onto the road way. The driver of the Mazda vehicle accelerated through a red light to escape the situation.

11 You then walked back to the Toyota Hilux. Its driver was still speaking on her mobile phone. You said to her words to the effect of 'don't call the police, don't call the police'.

12 There had already been a number of 000 calls made to police and, at that point, two police officers arrived in a marked police car which had its lights flashing.

13 Senior Constable Hardwick approached you with her gun drawn. It appeared to her that you were holding something. She directed you to get on the ground and show your hands. Both police officers continued to yell at you to 'show your hands'. You ignored this directive and ran to the driver's door of the Toyota Hilux and got behind the wheel. Leading Senior Constable Brennan deployed her OC spray through the open window. You wiped your eyes and face before driving towards SC Hardwick and then west along Furlong Road.

14 You continued driving towards Mcintyre Road. More than once you veered onto the wrong side of the road. SC Hardwick and LSC Brennan followed, at some distance, in their patrol car. Eventually you veered into the path of an oncoming Toyota Camry sedan near the intersection of Cooke Avenue and Furlong Road. The impact of that collision caused the stolen Toyota Hilux that you were driving to roll and sustain significant damage.

15 You crawled out of the Toyota Hilux. You were arrested by other attending police officers on the nearby nature strip.

16 The driver of the Toyota Hilux involved in the initial crash was treated at the Sunshine Hospital for general soreness and shock. The driver of the Toyota Camry involved in the second collision was taken to the Royal Melbourne Hospital where he was treated for fractured ribs and a fracture to the sternum.

17 At the time of your arrest you were found to be in possession of identification documents in the name of Manmohan Shoi. You knew or believed that they were stolen.

19 You have a relevant and extensive criminal history of drug, driving, theft and weapon offences.

20 In February 2008 you were convicted of aggravated burglary (offensive weapon) and two counts of theft in the County Court. You were sentenced to eight months' imprisonment for the aggravated burglary and five months on each of the theft charges. With orders as to partial concurrency the total effective sentence was 11 months, seven of which were suspended for 15 months.[2] You were also convicted and fined for the possession of both counterfeit money and cannabis.

21 On 16 April 2008 you appeared before the Magistrates' Court for numerous offences. You were convicted and sentenced to a community based order (CBO) for 15 months in respect of charges of cultivate cannabis, traffick cannabis, intentionally cause injury, fail to answer bail, theft of a motor vehicle and handle/receive stolen goods. In addition to a condition of unpaid community work, that CBO required you to undergo assessment and treatment for alcohol/drug addiction, submit to medical/psychological/psychiatric assessment and treatment and undergo assessment for and participate in suitable programs for recidivism reduction. You were also convicted and fined with respect to three charges of unlicensed driving and drive whilst exceeding PCA. Further you were convicted and discharged in respect of use cannabis (three counts), use ecstasy, possess methylamphetamine, possess amphetamine (two counts), possess drug of dependence not named, possess ecstasy and possess cannabis.

22 You next appeared before the Magistrates' Court on 14 April 2010 where you received a total effective sentence of imprisonment for 18 months for offences of traffick amphetamine, handle stolen goods, possess cannabis, possess drug of dependence - prescription drug, possess ammunition without a licence, possess prohibited weapon without exemption or approval and fail to answer bail (two counts). You were also convicted and fined with respect to charges of wilfully damage property, unlicensed driving, exceed speed limit, state false name, fail to have proper control of vehicle and fail to keep left of dividing line. Your licence was cancelled and you were disqualified from driving for six months. Additionally this offending breached the CBO imposed on 16 April 2008 and on each charge relevant to that CBO you were sentenced to three months' imprisonment to be served concurrently with the term of 18 months.

23 Your offending since February 2008 was also in breach of the suspended sentenced imposed on 25 February 2008. On 20 August 2010 the sentence imposed on that date was reinstated. You were ordered to serve the seven months' imprisonment concurrently with the 18 months imposed on 14 April 2010.

24 On 10 August 2012 you were again before the Magistrates' Court. You were convicted of handle stolen goods, use unregistered vehicle (two counts), fraudulently use registration label (two counts), drive motor vehicle without licence, forge identifying number, stop in disability parking area and drive whilst disqualified. You were sentenced to a Community Correction Order (CCO) for 15 months with conditions that you undergo treatment and rehabilitation for drug dependency, mental health and road trauma awareness.

25 On 28 November 2013 you were convicted of drive whilst disqualified (two counts), possess GHB and possess amphetamine for each which you received three months' imprisonment to be served concurrently and wholly suspended for 12 months. You were also convicted and fined for offences of use unregistered motor vehicle, use vehicle not in a safe and roadworthy condition, fail to wear a seatbelt, possess controlled weapon without excuse and possess cartridge ammunition without licence or permit.

26 This offending breached the CCO and on 29 August 2014 that order was cancelled and you were given an aggregate fine in respect of the 10 August 2012 charges. Additionally you were sentenced to a total effective term of imprisonment of one year and 11 months with respect to charges of theft (three counts), drive whilst disqualified, possess methylamphetamine, intentionally damage property, enter private place without authority or excuse, go equipped to steal, possess controlled weapon without excuse, obtain property by deception (two counts) unlicensed driving (four counts), commit indictable offence whilst on bail (four counts), theft of a motor vehicle, burglary, reckless conduct endangering life, fraudulent use of identifying number (two counts), fail to obey lawful direction of police (two counts), dishonest retention of stolen goods, handle stolen goods and resist police. For offences of fail to wear a seatbelt, use unregistered motor vehicle (two counts), exceed speed and forge notice required by Road Safety Act you were convicted and fined. You were also disqualified from driving for two months. For offences of possess cannabis and possess amphetamine you were convicted and discharged.

27 On 29 March 2017 you were sentenced in the Magistrates' Court to an aggregate seven months' imprisonment for offences of contravention of a family violence interim intervention order, theft, unlawful assault, persistent contravention of a family violence order, commit indictable offence whilst on bail and recklessly cause injury.

28 It is necessary to say something about your personal background.

29 You were born on 27 November 1984, the only child to a Pakistani father and English mother. That union lasted until you were aged five years. You claim memories of your father's alcohol abuse and violence and of your mother being hospitalised as a result of beatings.

30 After your parents separated you had no contact with your father for several years. Aged 18 years you contacted him and met the children of his subsequent partnership. Neither your father nor your stepsiblings were interested in maintaining a relationship with you.

31 As a child you lived in the Melton area with your mother who had relationships with men involved in drug use and associated criminal activity. She had three more children, two of whom have been involved in the criminal justice system.

32 You reported to Ms Lisa Jackson, who prepared a psychological report on your behalf, that you exhibited behavioural problems from your early teenage years. You were involved in school ground fights. This was exacerbated after you were twice sexually assaulted by an older male, a matter which you had not previously revealed. When you were aged 15 years your mother moved to New South Wales. You remained in Victoria, living a transient lifestyle with older males within a drug and criminal milieu. That said, it is evident that you completed years 11 and 12 of your schooling at Sunbury TAFE College.

33 You have a limited and sporadic employment history of factory and labouring work.

34 Your drug addiction issues reportedly commenced when you were about 15 years of age. Your initial amphetamines use soon progressed to use of methylamphetamine. At the age of 16 years you developed a heroin dependency. You have also used ecstasy and benzodiazepines. Ms Jackson notes that you have had some periods of abstinence associated with treatment attempts, custodial environments and parole conditions, but absent such support you have been vulnerable to relapse. At the time of your offending, which occurred about four months after you were last released from prison, you were customarily using at least one gram of methylamphetamine and 1.7 grams of heroin per day.

35 Since being remanded for this offending, you have responded well to pharmacological treatment. The results of 22 urine screens, all negative for illicit substances (medicinal methadone aside) and spanning the period 26 February 2018 to 19 May 2021 were tendered on your behalf.

36 You have a history of depression and anxiety and, in the context of your heavy substance misuse, you have experienced symptoms of drug related psychosis.

37 You have had a number of intimate relationships, one of which produced a son, now eight years of age. Your relationship with his mother ended acrimoniously when your son was three years of age. You had little to no contact with him thereafter. Your former partner later lost custody of your son and a younger child born of a subsequent relationship. Those two children now both live with your mother, who remains supportive of you. I have received and considered a letter authored by her.

38 Over the last 18 months you have had frequent Skype contact with your son. You express a desire to be an active father and good role model to him upon your release from custody. Presently, the Department of Health and Human Services does not consider it suitable for you to live with your mother, son and his brother. Under extant orders of the Children's Court, upon release you will be allowed supervised access visits three times a week. You will also be subject to random, supervised drug testing up to three times a week. You will not be allowed to live with your mother and son unless you return three consecutive weeks of negative drug screens, you engage with a mental health practitioner immediately upon your release and no other protective concerns arise. In the meantime you intend to live with an uncle in Gippsland to be close to your mother and son. The protection matters are next listed in the Children's Court on 29 July 2021.

39 Your offending on 23 November 2017 was extremely serious.

40 Heavily intoxicated and aware throughout the entire course of your actions that the police wished to speak to you, you drove in an outrageous manner, utterly indifferent to anyone who crossed your path. Two other drivers were injured. You drove towards a police officer. And all road users in the vicinity were imperilled by your reckless and selfish behaviour.

41 You damaged Ms Ngo's car and three others. You used a firearm to attempt to steal one vehicle, not simply by holding it, but also by using it to batter the window where the driver was seated. That driver could only have been terrified. Then, despite having a police officer draw a weapon at you and another spray you with OC spray, you took another vehicle and continued to drive. The whole event was sustained and only came to an end because you veered onto the wrong side of the road and caused a serious collision.

42 The maximum penalty for attempted aggravated carjacking indicates the seriousness with which the legislature treats such offending.[3] And, for the reasons just outlined, the entirety of your conduct was inherently dangerous to numerous persons. Although you have acknowledged this in the evidence you gave at your trial, stating that at the time you were 'out of your head' and in shock at what had happened to Ms Ngo, your behaviour was brazen and self-motivated.

43 It follows that denunciation, protection of the community, just punishment and general deterrence are significant factors in the sentencing exercise. Drug intoxication coupled with the kind of driving you displayed and attempted aggravated carjacking must be met with condign punishment. Given your extensive criminal history, specific deterrence is also an important consideration.

44 At the hearing of your plea, five mitigating factors were highlighted, all of which were accepted by the prosecution.

45 First, your early plea to these offences. Notwithstanding that the evidence with respect to these offences is overwhelming, I accept that your plea is evidence of some remorse. You have also expressed remorse in a recently written letter. Your plea involves an acceptance by you of your offending conduct. It has utilitarian benefit.

46 Second, the delay between the offending conduct and your sentence.

47 Third, the stress and anxiety consequent upon standing accused in two trials concerning the death of Ms Ngo.

48 Fourth, that about ten months of your remand has been spent under a prison regime which, consequent upon the COVID-19 pandemic, meant that you had no contact visits, were occasionally locked down in your cell for 24 hours and there was a reduction in programs available to prisoners. That reduction notwithstanding, I note that you have used your time in custody productively. Certificates of courses you have completed at the Box Hill Institute and the Kangan Institute were tendered on your behalf.

49 Fifth, the stress and anxiety that separation from your son has caused.

50 I accept as genuine your desire to be a role model for your son. But in my view you are somewhat naïve as to how difficult it may be to raise him, always putting his needs above your own and simultaneously breaking free of the drug addiction and criminal behaviour that have characterised your adult life. The information before me is that your son has some behavioural issues. You have the support of your mother. You will have the support provided by the Department of Health and Human Services. And, you have been drug free in the custodial environment. It is to be hoped that the motivation you have will be powerful enough to sustain that sobriety in the less structured environment upon your release.

51 That said, given your long history of criminal behaviour and drug use and your limited response to past treatment and intervention, I find your prospects of rehabilitation to be guarded.

52 I have had regard to current sentencing practices. I have also considered the principle of parsimony.

54 Balancing, as best I am able, the competing considerations laid down in the Sentencing Act 1991 ('Act') and having regard to the matters I have just discussed, for the offence of attempted aggravated carjacking (count 1), I sentence you to five years' imprisonment. This is the base sentence. For the offence of prohibited person possess firearm (count 2), I sentence you to three years' imprisonment. For the offence of reckless conduct endangering persons (count 3), I sentence you to two years' imprisonment. For the offence of theft (count 4), I sentence you to three years' imprisonment. For the offence of handling stolen goods (count 5), I sentence you to six months' imprisonment. I direct that three months of the sentence on count 2 and six months of the sentence of each of counts 3 and 4 be served cumulatively on the sentence imposed on count 1 and on each other. That makes a total effective sentence of six years and three months. You must serve a minimum of three years and nine months before being eligible for parole.

55 I declare that you have already served 1331 days of that sentence by way of pre-sentence detention (not including today).

56 I am required by s 6AAA of the Act to indicate what sentence I would have imposed but for your plea of guilty. As such, I declare that I would have imposed a total effective sentence of eight years and three months with a non-parole period of five years.

57 With respect to count 4, I also suspend your driver licence for a period of 18 months.[4] That period of suspension will commence on the day of your release from custody. If your driver licence has already expired or is not otherwise valid, I disqualify you from obtaining a driver licence for a period of 18 months, commencing from the day you are released from custody.

58 I make the disposal order and forfeiture order in the terms sought by the Crown.

[1] You have been twice tried by a jury with charges relating to the death of Ms Ngo. You gave evidence in each trial. The first jury acquitted you of murder but could not return a verdict with respect to manslaughter. The second jury were also hung with respect to the charge of manslaughter. No part of the sentence for the instant offences relate to the death of Ms Ngo.

[2] Pursuant to the Sentencing Act 1991 ('Act'), s 27, since repealed.

[3] See Mammoliti v The Queen [2020] VSCA 52. I note that the prosecution does not submit that the offence of attempted aggravated carjacking, which attracts a maximum penalty of 20 years, enlivens the mandatory minimum non-parole period of three years applicable to the offence of aggravated carjacking, which attracts a maximum penalty of 25 years.