//
[2019] VSCA 249
General information, not legal advice.
Court of Appeal (Vic)
2019-11-06
Mr J, Niall JA, Ashley JA
Original judgment source is linked above.
DPP v Nguyen [2018] VCC 1468 (Judge Lawson)
CRIMINAL LAW - Appeal - Sentence - Multiple charges of theft and burglary - Attempted burglary - Trafficking a drug of dependence - Total effective sentence 4 years and 6 months' imprisonment - Two co-offenders - Disparity of sentence - Applicant cooperated with authorities - Applicant had excellent prospects of rehabilitation - Early plea of guilty - Sentence failed to reflect differences in circumstances between offenders - Appeal allowed - Applicant resentenced to total effective sentence of 2 years and 8 months' imprisonment.
1 Following a concentrated spell of serious criminal offending in January 2018, the applicant pleaded guilty to seven charges of theft, six charges of burglary, two charges of trafficking in a drug of dependence and one charge of attempted burglary. He was sentenced by a judge of the County Court as follows:
Theft [s 74 of the Crimes Act 1958]
Burglary [s 76 of the Crimes Act 1958]
Theft [s 74 of the Crimes Act 1958]
Burglary [s 76 of the Crimes Act 1958]
Theft [s 74 of the Crimes Act 1958]
Burglary [s 76 of the Crimes Act 1958]
Theft [s 74 of the Crimes Act 1958]
Burglary [s 76 of the Crimes Act 1958]
Theft [s 74 of the Crimes Act 1958]
Burglary [s 76 of the Crimes Act 1958]
Theft [s 74 of the Crimes Act 1958]
Burglary [s 76 of the Crimes Act 1958]
Traffick in a drug of dependence [s 71AC of the Drugs, Poisons and Controlled Substances Act 1981]
Traffick in a drug of dependence [s 71AC of the Drugs, Poisons and Controlled Substances Act 1981]
Attempted burglary [ss 76 and 321M of the Crimes Act 1958]
Theft [s 74 of the Crimes Act 1958]
6AAA Statement: 6 years' imprisonment with a non-parole period of 4 years
Other relevant orders: Forensic sample order pursuant to s 464ZF(2) of the Crimes Act 1958
2 The applicant's offending was committed with two co-offenders, Andy Nguyen, who is the applicant's cousin, and Daniel Brittain ('Brittain').[1] Andy Nguyen and Brittain subsequently pleaded guilty and were sentenced by the judge who had imposed the above sentence on the applicant. Given that one of the applicant's complaints is that his sentence is disproportionate to the sentence imposed on Andy Nguyen, it is necessary to refer to the sentences imposed on the co-offenders.
3 Andy Nguyen pleaded guilty and was sentenced for nine charges of theft, seven charges of burglary, two charges of attempted theft, two charges of making or using a false document, one charge of attempted burglary and one charge of negligently dealing with proceeds of crime. He was also sentenced for two summary charges of possession of a prohibited weapon without exemption and one summary charge of possession of a controlled weapon without excuse.
4 Andy Nguyen was sentenced to an aggregate sentence of five years and six months' imprisonment, with a non-parole period of three years.
5 Brittain pleaded guilty and was sentenced for ten charges of theft, six charges of burglary, two charges of attempted theft and one charge of attempted burglary. Brittain was also sentenced for a summary charge of driving whilst disqualified.
6 Brittain was sentenced to an aggregate sentence of six years' imprisonment, with a non-parole period of four years.
7 The applicant was born on 26 January 1994 and was 23 years of age at the time of the offending, and 24 years of age at the time of sentence.
8 On 29 December 2017, a Honda Accord motor vehicle was stolen from an address in Bentleigh. The applicant was not directly involved in that theft, but he later admitted that he believed the vehicle was stolen when he used it in the commission of other offences on the indictment between the 8 January and 31 January 2018 (Charge 1 - Theft).
9 On 8 January 2018 at 3:40 am, the applicant, Andy Nguyen and Brittain attended at the Australia Post Business Hub in Braeside, wearing white overalls. They used hand tools to gain access to the building (Charge 2 - Burglary). Once inside the parcel storage facility, they removed a large, but unknown, number of letters and parcels which they loaded into two vehicles (Charge 3 - Theft). They returned on Friday 12 January 2018 at 3:00 am, and repeated the escapade, taking a large number of letters and parcels (Charge 6 - Burglary and Charge 7 - Theft).
10 On 8 January 2018 at 4:00 am, the applicant and his co-offenders drove to the Australia Post Business Hub in Burwood, again wearing white overalls and headlamps. After gaining entry to the premises (Charge 4 - Burglary), they removed a large number of letters and parcels and loaded them into the waiting vehicles (Charge 5 - Theft).
11 On 18 January 2018 at 5:00 am, the applicant and his co-offenders attended at XM2 business in Oakleigh, wearing white overalls and headlamps. They used hand tools to gain access to the premises (Charge 8 - Burglary) and removed $158,000 worth of drones and other products, which they loaded into the vehicles (Charge 9 - Theft).
12 For the fourth time, on 24 January 2018 at 4:35 am, the applicant and his co-offenders struck at an Australia Post facility, this time in Clayton South. They used a vehicle to ram into the front window to gain entry to the premises (Charge 10 - Burglary). The applicant remained in the vehicle whilst the other co-offenders accessed the parcel storage area and loaded up the vehicle with an unknown quantity of parcels and letters (Charge 11 - Theft).
13 Very early on the morning of 30 January 2018, when under police surveillance, the applicant, Andy Nguyen, and Brittain were observed in separate vehicles: Brittain in a Volkswagen Transporter Van, with a trailer attached, and the applicant and Andy Nguyen in a Honda Jazz. At 3:52 am, Brittain reversed the van at a fast rate of speed towards the front door of a business, 'DJ City', in Oakleigh in an attempt to gain entry (Charge 15 - Attempted burglary). The trailer hit a bollard and became detached from the van. Brittain then drove off at a fast rate of speed. The vehicle containing the applicant also sped off.
14 On 31 January 2018 at 4:15 am, the applicant, Andy Nguyen and Brittain attended at the business Inventory Placement in Oakleigh South. They gained access to the premises by breaking a lock and door (Charge 12 - Burglary). Once inside, the offenders stole boxes containing various confectionary items and a petty cash tin (uncharged).
15 On the same morning at 4:54 am, police observed the Volkswagon van and Honda vehicle parked next to each other near Factory 3 in the Hallmarc Business Park. The applicant and his co-offenders entered a Mitsubishi Express Van owned by a person working inside the Business Park at the time. The offenders took two drive shafts, a brake caliper and a dash camera from the vehicle (Charge 16 - Theft).
16 At approximately 5:40 am on 31 January 2019, police attended a residential address in Keysborough and arrested the applicant and a number of other persons. Later that morning, police executed search warrants on that premises and a number of vehicles, and recovered various items, including a black Samsung box containing deal bags and receipts, three resealable bags containing a crystal substance, a resealable bag containing 92 blue tablets, a resealable bag containing 24 coloured tablets, a set of digital scales and other drug trafficking paraphernalia (Charges 13 and 14 - Traffick in a drug of dependence). During his record of interview with police, the applicant admitted that he owned and was intending to sell drugs.
17 The applicant seeks leave to appeal against sentence on the following four proposed grounds:
18 The respondent conceded ground 4. In order to explain why we would uphold the ground in light of the concession, it is not necessary to set out the judge's reasons in any detail. The following precis will suffice.
19 Having set out the facts of the offending, the judge noted that the applicant was cooperative when interviewed by police and made admissions in respect of his offending.[3] Importantly, at the time of the plea, Andy Nguyen and Brittain were contesting the charges and facing a contested committal. The applicant gave an undertaking to give evidence against the co-accused. The judge accepted that the assistance provided by the applicant was significantly valuable to the prosecution of the co-offenders.[4]
20 The judge recorded that the applicant had a long history of using illicit drugs including methamphetamine, ecstasy, cannabis and GHB.[5] The applicant commenced using methamphetamine in 2016 and, at the time of arrest, was smoking up to one gram of that drug each day. The judge accepted that the applicant had displayed significant insight into the link between his drug taking and offending, and had exhibited a positive motivation to remain abstinent from methamphetamines and had participated in counselling and drug treatment.[6]
21 The judge accepted that the applicant had 'excellent' prospects of rehabilitation and that he was genuinely remorseful for his offending. In that respect, the judge noted the applicant's cooperation and early plea of guilty which, her Honour accepted, manifested genuine remorse as well as providing utilitarian benefit.[7]
22 Against those very favourable factors, the judge noted that the burglaries were committed against commercial premises, including Australia Post, and were serious examples of the offences of both burglary and theft.[8] The offending was committed in company, was organised, systematic and utilised appropriate tools to enable access. Further, the offending included the use of a stolen vehicle and the period of offending conduct extended from 8 January to 31 January 2018.
23 The judge found that the nature of the offending called for both general and specific deterrence and required a term of imprisonment. In doing so, the judge rejected the applicant's submission for a Community Correction Order ('CCO') in combination with a term of imprisonment, concluding that the offending was too serious as to permit such a disposition.[9]
24 In the result, the judge imposed an aggregate sentence of four years' imprisonment for the burglary, attempted burglary and theft offences and 12 months' imprisonment for each of the charges of trafficking in a drug of dependence. Her Honour made orders for cumulation of three months on each of the drug charges, resulting in a total effective sentence of four years and six months' imprisonment.
25 With that context set, it is convenient to turn immediately to ground 4. The applicant submitted that the principle of parity required a clear and distinct differentiation between the sentences imposed on the applicant and Andy Nguyen. We agree.
26 The respondent conceded that the error had been established and that the appeal should be allowed on this ground. Although the respondent noted that the judge, in sentencing the applicant's co-offenders, drew attention to the principle of parity, the respondent accepted that the result evidenced a failure to sufficiently reflect the various differences in the circumstances between the offenders.
27 Most significantly, the judge accepted that the applicant provided significantly valuable assistance to authorities. This matter significantly differentiated him from his co-offenders. The sentences imposed on the applicant and Andy Nguyen do not reflect the important differences between the offenders.
29 That being so, the applicant must be resentenced. In the circumstances, it is not necessary to determine the other proposed grounds.
30 There are a number of factors that demonstrate that the burglary and theft charges were particularly serious. As the judge noted, they were organised and systematic. The use of equipment, overalls and headlamps demonstrated a high degree of preparation and premeditation for the offending. The repetition of the burglary and theft charges on the Australia Post facilities reveals that the offending was not impulsive.
31 The applicant is entitled to the benefit of a number of matters in mitigation of sentence. Significantly, he undertook to give valuable assistance in the prosecution of his co-offenders. For this he is entitled to a substantial reduction in the sentence that would have otherwise be imposed. That discount follows from the fact that there is a significant benefit to the administration of justice in the prosecution of the offending, and correspondingly a risk to the applicant as a person who is willing to give evidence. Both the benefits and risks of that course deserve to be reflected to a significant degree in the determination of a just sentence.
32 In addition, the judge was satisfied that the applicant has excellent prospects of rehabilitation and his post-offending conduct demonstrated a degree of insight into the relationship between his drug use and his offending. We accept the judge's conclusion in this respect.
33 We have had regard to the two letters authored by Ms Stasia Turnbull, Forensic Drug and Alcohol Counsellor/Psychologist at Monash Health, dated 25 May 2018 and 31 August 2018. In her first letter, Ms Turnbull states that the applicant engaged genuinely and reflectively during counselling sessions. The applicant reported continued positive motivation to remain abstinent from methamphetamines use. He also reflected on the importance of the need to change and the impact of his past behaviour on his family and relationships.
34 In her second letter, Ms Turnbull noted that the applicant had suffered a period of intense grief and loss as a result of the death of his infant son aged 16 days. Following that tragedy, the applicant disclosed to Ms Turnbull that he had had a relapse into drug use and needed support to deal with loss and grief, and sought additional medical and counselling support.
35 The judge was correct to acknowledge that the applicant had made significant efforts towards his rehabilitation. Given the relationship between his offending and drug use, his ability to remain abstinent will be critical to his ability to avoid future offending. The sentence should take into account the importance of encouraging and supporting these steps toward rehabilitation.
36 Even allowing for the significant matters in mitigation, in our view, the offending is too serious to justify a combined sentence of imprisonment and a CCO. Rather, it is appropriate that the applicant be resentenced to a term of imprisonment with a non-parole period.
37 The judge imposed an aggregate term of imprisonment in respect of charges 1 to 12 (inclusive), 15 and 16. Charges 13 and 14, which related to drug trafficking, were the subject of separate sentences.
38 Putting to one side the drug offences, we are satisfied that an aggregate sentence is appropriate for the burglary and theft charges. In our view, the offending, although involving a number of premises, can properly be seen to be a course of conduct over a relatively confined period of time and it is appropriate to impose an aggregate sentence. In our view, the appropriate aggregate sentence is two years and six months' imprisonment.
39 In addition to the general matters in mitigation to which we have referred, we are satisfied that the applicant's admissions that the drugs found at the premises belonged to him and that he had intended to sell them are especially significant because, without them, it would have been difficult for police to identify, amongst the persons present, the owner or to establish an intention to sell. The admissions in respect of the drug offences attract the principle explained in R v Doran.[10]
40 In the circumstances, we would impose a sentence of six months' imprisonment on each charge of trafficking in a drug of dependence and order that one month be cumulative on each.
41 That results in a total effective sentence of sentence of two years and eight months' imprisonment. We would fix a non-parole period of 18 months. The operation of s 6AAA of the Sentencing Act 1991 is difficult in cases where there is both a plea of guilty and cooperation with authorities. It is not easy to postulate the offender cooperating and not pleading guilty, which would mean that the counterfactual would have neither benefit. Doing the best we can to apply s 6AAA, had the applicant not pleaded guilty, we would have imposed a sentence of five years' imprisonment, with a non-parole period of three years.
[1] Police believe a fourth person was involved in the offending, however, as at the preparation of the Summary of Prosecution Opening Upon Plea, the fourth person had not been charged.
[2] The applicant was granted leave at the hearing to amend ground 4 to refer to Andy Nguyen, correcting a typographical error.
[3] DPP v Nguyen [2018] VCC 1468 [29] ('Reasons').
Nguyen
The Queen [2019] VSCA 249