Nguyen v The Queen [2015] VSCA 283

Ms V Anscombe, Acting Solicitor for Public Prosecutions

1 On 12 March 2015, the applicant pleaded guilty in the County Court to aggravated burglary (charge 1); two charges of rape (charges 2 and 3); one charge of robbery (charge 4); one charge of being a prohibited person in possession of a firearm (charge 5); and one summary charge of being in possession of a prohibited weapon. He was sentenced on 23 April 2015 to be imprisoned for six years on charge 1; for five years on each of charges 2 and 3; for two years on charge 4; for 12 months on charge 5; and for eight months on the summary charge. Orders for cumulation resulted in a total effective sentence of nine years and 10 months' imprisonment, upon which a non-parole period of seven years and 10 months' imprisonment was fixed.

2 The applicant sought leave to appeal against sentence on two grounds as follows:

1. The learned sentencing judge erred by impliedly making a finding that the applicant was a high risk of sexual reoffending. This finding was not reasonably open on the evidence.
2. The learned sentencing judge erred by imposing a [non-parole period] that was manifestly excessive, having regard to the following factors:

(a) Too much weight was given to protection of the community.

(b) Insufficient weight was given to the applicant's disadvantaged upbringing and the need to impose a 'meaningful' parole period.

(c) The NPP was disproportionately high having regard to the head sentence (80 per cent). No reasons were advanced for the disproportionately high NPP. These features invite appellate scrutiny and, in combination with the preceding criticism, are indicative of error.

3 Pursuant to s 315 of the Criminal Procedure Act 2009, on 12 August 2015, Redlich JA determined 'on the papers' that leave to appeal should be refused. His Honour considered that neither proposed ground was reasonably arguable. The matter was before us by way of an election under s 315(2) of the Act. As will become clear, with respect, we are of the view that the conclusions reached by Redlich JA were undoubtedly correct. We too would refuse leave to appeal.

4 Before proceeding further, we should say a little more of what occurred at today's hearing. When the matter was called, the applicant was unrepresented by counsel or a solicitor. The solicitors who had submitted the written case on the applicant's behalf had been permitted by the Registrar to come off the record some weeks ago. Despite being notified by the Registry, by letter of 12 October 2015, that he should either seek alternative representation or be prepared to personally argue his case, the applicant was, as we have said, unrepresented. Serendipitously, however, Mr J McLaughlin, from Victoria Legal Aid, was in court when the matter was called and the Court endeavoured to determine what course the further hearing should take. Mr McLaughlin undertook to confer with the applicant in the cells. For that purpose, Mr McLaughlin was given several documents, including copies of the written case and response, and the reasons of Redlich JA.

5 After having conferred with the applicant, Mr McLaughlin, as amicus curiae, confirmed that the applicant desired that the Court deal with the matter on the basis of the written case earlier submitted, but with the benefit of some further observations. Thus, Mr McLaughlin - without objection - was permitted to inform the Court that the applicant was 'really sorry' and 'ashamed' of what he had done. The applicant, it was said, was 'sorry about the harm he caused to the victims', and 'was ashamed about what he did in the presence of a child'. He had been rejected by his family and friends, and it was said that he would benefit from a longer period on parole.

6 The Court expresses its gratitude to Mr McLaughlin for his timely intervention and valuable assistance, and to the respondent's counsel for her forbearance.

7 Returning to the merits of the application, in our view elements of the applicant's crimes were shocking, and deserving of strong condemnation. The gravity of the applicant's offending is revealed by the judge's description of it in her sentencing remarks. Addressing the applicant, the judge said:

In summary, your crimes were as follows. On 2 February 2014, it is not disputed that you followed a woman home from a Chinese festival in Footscray , and around 11 pm, entered her home by slipping unnoticed into her garage when she opened it using a remote control and drove her car in, closing the door after her. The door to the house was unlocked and you went in after the woman, and her then seven year old daughter, had entered and the child had gone to the bathroom. You were in possession of what was described as an axe, and it is accepted that your intention when you entered the property was to steal (Charge 1 - aggravated burglary).

You did not know the woman, Bich Tran, and it seems she was selected at random by you in an attempt to obtain money to buy drugs for your own use. You confronted Mrs Tran in the kitchen and rushed towards her. You were holding the axe, and you had tried to prevent your identification by earlier tying the strings of your hood tightly just under your nose, and by wearing dark glasses and blue gloves. Your action so scared Mrs Tran that she screamed, and her daughter, Rosemary, looked out of the bathroom and saw her mother and saw you, describing you later to the police as 'a robber'. Scared, she went back into the bathroom to hide.

You pushed Mrs Tran into the lounge room and onto the couch, grabbing the mug she was holding and smashing it on the floor. You pushed her onto the floor and began demanding money from her, making threats as you did so. You began tying her hands behind her back with cable ties you had brought with you. Mrs Tran screamed again and her daughter came out of the bathroom again. You noticed the girl and got up and pushed her into the bathroom and yelled at her to stay there.

You returned to Mrs Tran and continued to demand money. You told her not to move, and when she tried to lift her head, you hit her on the head with the axe, cutting her behind the right ear. After your continuing demands, Mrs Tran directed you to her purse, from which you stole about $100.

This was not enough money for you, so you continued to threaten her and demand more money, looking around the house. Her daughter, who had remained in the bathroom, plucked up the courage to yell out that she had money. You went to the bathroom and told her to get the money. She retrieved her money box from her bedroom and gave you what it contained. You then pushed her back into the bathroom.

You returned to Mrs Tran and lifted her onto the couch. You ripped off her underwear, scratching her as you did so. The daughter yelled out again that she had more money and you told her again to get it. Rosemary went to the living room to get another money box, and there saw her mother face down on the couch, and her underwear on the floor. After Rosemary gave you the money box, you told her to get back into the bathroom, which she did.

Mrs Tran saw you trying to put a condom on, and soon after, you attempted to penetrate her vagina from behind. It is not known whether you were wearing the condom when you tried to penetrate, or later when you did penetrate her vagina. Your penis was not erect, and masturbating yourself did not achieve erection. This made you angry. You turned her around so that she was seated with her hands behind her, and you pushed a cushion onto her face. You attempted penetration again but were still unable to achieve an erection. Removing the cushion, you pushed your penis so far inside her mouth that she almost vomited. You removed your penis and slapped Mrs Tran on the face, threatening her with further harm. You penetrated her mouth again and continued to do so for about five minutes (Charge 2 - rape).

After this, you withdrew your penis, put the cushion back on her face, and penetrated her vagina. This continued for some minutes during which you re-positioned yourself, while Mrs Tran remained sitting on the couch with her hands tied behind her back (Charge 3 - rape).

After you had violated her, you continued to search the house for money. Mrs Tran noticed you were bleeding from a cut on your knee. You transferred some of this blood to her purse and her handbag which you looked through. Apart from the money I earlier referred to, you also stole her phone and watch (Charge 4 - robbery).

You threatened her again, cruelly suggesting that someone she knew had sent you. Her daughter also overheard this threat. After you made further attempts to clean up your blood, you left via the front door, threatening Mrs Tran not to call the police or follow you or you would return and harm her.

After you left, Mrs Tran called out to Rosemary, who left the bathroom and at her mother's request got some scissors to cut the ties from Mrs Tran's hands. Rosemary saw that her mother's dress was up with her breasts exposed and she was otherwise naked. Mrs Tran was unable to find her phone to call police, as you had stolen it, and despite your threat, she drove with Rosemary to her sister's house and called police from there.

After police went to her house, samples of the blood found there were tested, and DNA analysis showed extremely strong support for it coming from you.

On 14 February 2014, you were arrested at your house, where an axe was located in your car and tests performed on it showed extremely strong support that DNA from the blood on the weapon was from Mrs Tran.

In a search of your house and car, police also found a box of blue latex gloves, and white cable ties. Weapons were also found: a set of nunchukas, a slingshot and a butterfly knife (summary charge - possession of prohibited weapons) as well as two imitation firearms (Charge 5 - prohibited person in possession of a firearm).

You were classed as a prohibited person as you had within five years before received a prison sentence for offences of trafficking, possession of drugs of dependence, possession of a controlled and a prohibited weapon, dealing with the proceeds of crime, and theft.

As conceded by counsel on your behalf, the crimes you committed against Mrs Tran and her daughter were protracted, serious and frightening. The aggravated burglary and robbery are made even more serious because there was an element of pre-planning to the extent that you had with you cable ties, gloves and a weapon. For all the crimes committed in the house, they are made more serious because you effectively wore a disguise which made the experience more frightening; you made constant threats accompanied by violence towards Mrs Tran; and you committed the crimes in the presence of a child.

8 Proposed ground 1 asserts that the sentencing judge erred by impliedly making a finding that the applicant was a high risk of sexual reoffending, such a finding not being reasonably open on the evidence. It is important to take notice of what the judge did in fact say. With respect to the sexual offending, she observed:

The rapes were committed in an opportunistic manner, although I note you had a condom with you, and they arose out of your unreasonable anger and a feeling of demoralisation. In my view, they were attempts to demonstrate your power over Mrs Tran and not for sexual gratification. For you to commit these sexual offences in such a serious way for the first time gives me concern as to your risk of reoffending.

9 Hence, it is to be noted that the judge did not state that she regarded the applicant as a 'high risk of sexual offending'.

10 Moreover, a psychological report tendered on the applicant's behalf made clear that, in the psychologist's opinion, if the applicant remained a drug addict - as he had been for many years - there was 'a high risk he will reoffend'; that the reoffending would most likely be directly associated with drug use and trafficking; and that there remained 'a possibility' that the applicant would reoffend by way of violence including sexual violence.

11 When refusing leave to appeal, Redlich JA said of these matters:

The link between the applicant's sustained drug addiction and his offending was clear and it provided the opportunity for the commission of these sexual offences. It appears from [the psychologist's] report that the applicant's drug addiction had continued during his adult life except for some periods of abstinence and in his time in custody. [The psychologist] noted that none of the treatments that the applicant had received had any substantial benefit.

The applicant has not demonstrated that the sentencing judge's concern about the applicant's risk of sexual reoffending when engaged in the commission of other criminal acts for the purpose of supporting his drug addiction was unjustified. This ground is not reasonably arguable.

12 With respect, for the reasons that Redlich JA advanced, we agree with his Honour's conclusions.

13 Proposed ground 2 relates to the non-parole period fixed by the sentencing judge. It will be remembered that, quite apart from reliance on the written case, in oral submission through the agency of Mr McLaughlin, the applicant also attacked the non-parole period. In the written case, among other things it was said that the applicant 'sits on the cusp of a 10 year sentence'. The ratio of effectively 80 per cent between the non-parole and the head sentence in this case 'is at the higher/highest end of the range'. Although, as it was acknowledged, the applicant's prospects of rehabilitation are 'guarded at best', it was argued that 'they are not so bad as to warrant this ratio'. It was submitted that no reasons were given for the imposition of a ratio of this order. In the presence of 'compelling reasons to set a lower ratio', so as to achieve the 'meaningful' non-parole period sought, it was said that 'it bespeaks error'.

14 We would reject the applicant's submissions. In our opinion, the position was correctly stated by Redlich JA when refusing leave. His Honour said:

The non-parole period imposed fell outside the sentencing practice identified in the joint judgment in Kumova v The Queen[1] with respect to the setting of non-parole periods between 60 and 75 per cent of the head sentence. That practice provides only a general guide to a sentencing judge and ratios outside those are not precluded. Although the sentencing judge provided no explicit reasons for the non-parole period that was fixed, the respondent submits with some force that the reason was obvious, namely, that the primary purpose was to protect the community in circumstances where the applicant's prospects of rehabilitation were guarded. The applicant appears to accept in his written case that community protection constituted the primary reason for the non-parole period that was fixed.

Having regard to the finding that was made as to risk, it is not in my view reasonably arguable that a ratio of 80 per cent between the non-parole period and the head sentence was not open to the sentencing judge. ...

16 For the foregoing reasons, leave to appeal must be refused.

[1] (2012) 37 VR 538, 548 [35].