Mr Kondich (Counsel for the Offender)
File Number(s): 2020/790
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Judgment
Early on the morning of 1 January 2020, Long Nguyen, then aged 26, committed a number of offences while he was under, what he describes, as the influence of a cornucopia of prohibited drugs. First, he pleaded guilty to a number of offences in circumstances justifying a 25% discount on the term of imprisonment, and his counsel concedes that a term of full-time custody is required and it is unnecessary for me to consider any alternatives.
I sentence him in accordance with the purposes set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. The maximum penalties and, where applicable, the standard non‑parole periods are yardsticks in the sentencing process.
He was on parole at the time of the offending, which was revoked and will be reconsidered on 31 December 2020 and may expire in March 2021. It is agreed that in the exercise of my discretion I should commence the term of imprisonment on 1 June 2020, to take into account the fact that he has been in custody since his arrest on 1 January 2020.
The offender is charged with the following offences:
1. Reckless wounding in company contrary to s 35(3) of the Crimes Act 1900 in relation to Mr Wikaira. The offence carries a maximum penalty of ten years imprisonment with a standard non-parole period of four years
2. A second count of reckless wounding wounding in company, contrary to s 35(3) of the Crimes Act 1900, against Mr Oh which carries the same penalties.
3. The third count of assault occasioning actual bodily harm in company in relation to Mr Park, contrary to s 59(2) of the Crimes Act 1900. The offence carries a maximum penalty of seven years imprisonment with no standard non‑parole period.
4. The fourth count of assault with intent to rob against Mr Oh, contrary to s 94A of the Crimes Act 1900 carries a maximum of 14 years with no standard non‑parole period.
A number of co-offenders have been dealt with. Lauren Denaro was sentenced to a term of imprisonment of 20 months, with a non‑parole period of 11 months; in an aggregate sentence imposed by Judge Yehia on 23 September 2020, following a severity appeal from the Local Court. She was charged with one count under s 94(1) under s 59 and a count of armed with intent to intimidate under s 115. Mr Vu was sentenced by the Local Court in October in relation to counts under s 115 and two counts under s 59, one of them being on a Form 1, and a count of supplying a prohibited drug and four breaches of a Community Corrections order. He was also given an aggregate sentence of 22 months and 14 months non‑parole period. Paul Nguyen has pleaded guilty to a reckless wounding in company charge against Mr Wikaira, and he is to be sentenced following a trial on an unrelated matter in January 2021.
The agreed facts show that the group of four offenders, Paul Nguyen, Long Nguyen, Lauren Denaro and Jayden Vu checked into an apartment in the city just after midnight. At about 2am on 1 January they left the apartment and went out into the streets. The victim Wikaira was in the city for New Year celebrations. He was walking with a bottle of champagne that he had brought from his home. He bumped into the group walking in the opposite direction. Something was said.
Paul Nguyen went into a convenience store and purchased two pairs of scissors, paid for them in cash and left the cardboard packaging in the store. He walked out and handed one pair of scissors to Long Nguyen. Paul and Long walked towards Wikaira and proceeded to swing the scissors a number of times. Paul swung his right arm towards Wikaira and they both then continued to swing the scissors at him. During the altercation he dropped his bottle of champagne. Denaro moved in and retrieved the bottle of champagne.
Paul chased Wikairaout into the middle of George Street onto the light rail tracks, holding a pair of scissors,. Wikaira felt liquid on his back and he looked down and saw blood on his shirt, He ran to some paramedics who were nearby in the street.
He was found on admission to hospital to have a stab wound involving a full thickness laceration through all layers of the skin in the lumbar area to the low back, a stab wound involving a full thickness laceration through all layers of the skin on the right side of the midline of the low back, a right-sided haemothorax, which was blood in the right chest cavity, and a laceration to the right kidney of 3-7 centimetres causing perinephric hematoma, that is blood around the right kidney. He required insertion of a right intercostal catheter and conservative management of the right kidney laceration. He was discharged from hospital on 6 January.
Long, Paul and Denaro and an unnamed male and female walked back to the apartments at about 2.24am. Denaro was still holding Wikaira's champagne bottle. At about 3.26am the four, Long, Paul, Denaro and Vu again left the apartments and went to the Korean barbecue restaurant in Goulburn Street. Mr Oh was eating and drinking there with some friends. Mr Oh and Ms Wong went outside to have a cigarette. Something passed between them and Mr Oh thought they might have asked for a cigarette, and he replied, "Sorry, last one".
Vu then swung a closed fist and punched Oh in the top right of his head. Long struck him on the left side of his jaw and holding a pair of scissors. Oh saw that the man was holding a weapon. He thought it was a knife or scissors. He realised his chin was bleeding and blood was dripping down his face and onto his clothes. The assault was witnessed by a restaurant employee, who saw Long hit Mr Oh with his right hand maybe two or three times, and then he saw the scissors drop to the ground. Long picked up the scissors and continued to attack Oh.
Police arrived at about 4.30am. Oh was holding a napkin to his chin and there was blood on his face, hands and clothing. He was found on admission to Prince of Wales Hospital to have a 4 centimetre laceration near the left lower jaw, a lump on his right forehead, a skin laceration on the left mid‑arm and a laceration on the left mid‑thigh. The laceration to his jaw was sutured, and the lacerations to his arm and thigh were washed, glued and steri-strips applied, and he was discharged that day.
In relation to the victim Mr Park, he went over and stepped between the men to try and separate them when the altercation was going on outside the restaurant. Using his left hand Long punched Mr Park twice with a fist to his cheek. Park felt pain to his face and turned his face away. He then felt pain between the top of his shoulder blades and thought he had been punched in the back. He heard Long saying "Fuck" and at the same time Vu was also hitting Mr Park.
Mr Park was taken to St Vincent's Hospital and had 1 millimetre lacerations on the back of his neck and midline cervical spine, tenderness. The wound was cleaned and dressed, he was given a tetanus injection and discharged.
In relation to Mr Oh, the assault with intent to rob involved Mr Oh and Ms Wong managing to get inside the restaurant and standing in the stairs. Denaro, followed by Long, went inside the front entrance. Long grabbed at Ms Wong's handbag, which was still across Mr Oh's chest, and this caused him to fall down the stairs. The handbag chain broke and Long was able to take hold of her handbag.
An employee of the restaurant intervened and stood between Ms Wong and Denaro. Long and Paul reached around Denaro and pulled her out of the restaurant, and they returned to the apartments. They were arrested by the police at about 1.15pm on that day. Long declined to participate in an interview.
Long has a record involving drug and driving offences, leading up to a more serious offence of reckless wounding in company occurring on 8 July 2017, for which he was sentenced to two years and 11 months commencing 2 April 2018 and concluding 22 March 2021. He had been released on parole on Christmas Day 2019, only a week before this offending. His parole was revoked and he was, as I have indicated, serving the balance of the term after his arrest on these matters.
His earlier periods of custody include seven months with a non‑parole period of five months for driving while disqualified in 2015, and two years and three months with a non‑parole period of one year and three months for supplying a prohibited drug commencing 4 March 2016.
I have brief victim impact statements from Mr Oh and Mr Park, which are dealt with in the way suggested by Basten JA in R v Thomas [2007] NSWCCA 269. They are a short description of the expected effects of these attacks on these men and they are taken into account, even though not tested or otherwise expanded upon in evidence.
Some material that was before the sentencing judge on the previous occasion included a letter from the offender dated 25 August 2019, in which he says he takes full responsibility for his actions and expresses a wish for wanting to get out and find a job so that he could turn his life around.
The report of Dr Martin, psychiatrist, dated February 2017, notes he had been previously admitted to Liverpool Mental Hospital for drug psychosis, a history of having used cannabis at age 16 and been using on most days for several years, and also used methamphetamine for six years and also used MDMA and cocaine frequently in the past. Dr Martin at that stage said his predominant clinical problem was related to drug and alcohol use, and he made a diagnosis of substance use disorder. His mood disturbance and psychosis was closely related to drug use, but he did not think he had a major mental illness such as bipolar or schizophrenia. The most pressing need for him was to acknowledge and seek management for substance misuse.
The psychologist that has seen him on two occasions recently takes a more detailed history, which is not adopted by the offender in evidence and is treated with some caution in accordance with what was said in R v Qutami (2001) 127 A Crim R 369 and Imbornone v R [2017] NSWCCA 144, but it appears to be a reasonable basis on which to proceed, given the other material that I have beyond the history. The offender came to Australia from Vietnam at the age of 11. He said that his father was an abusive alcoholic and he rarely saw his mother during childhood. He has lived a transient lifestyle, either on the streets with anti-social peers or intermittently with his mother. When he had to move into a women's refuge with his mother in his mid-adolescence he stopped going to school and formed associations with anti-social peers whilst spending time on the streets, and since that time the majority of his social networks have been with anti-social or drug using peers.
He has two children from a relationship that commenced when he was 19 and terminated when he was 26. His involvement with his children is mostly confined to visits while he is in custody.
He acknowledged to the psychologist that on his release from gaol in late 2019 he tried to remain abstinent from drug use, but he acknowledged that he lapsed on day of the current offences and used a large quantity of various substances. He has never attended any drug treatment or rehabilitation program. His convictions, according to the psychologist, show a gradual accumulation of charges during his late adolescence which he attributed to his ongoing substance use and/or negative peer associations.
He said a close friend encouraged him to go out on New Year's Eve and he said from about 3pm that day he consumed various substances, including alcohol, cocaine, ice, Xanax and ecstasy. He said it was due to his paranoia, as well as being under the influence of alcohol and drugs, that he perceived his first victim as possibly being a threat. He described being exposed to violence in custody and not knowing who his enemies are, and that his behaviour has been influenced by his experience in custody, where if someone has a go at you, you have to react and stand up for yourself or they will prey on you, and he has to learn to defend himself and his family.
He was diagnosed with substance use disorder and on a subsequent consultation a diagnosis of post‑traumatic stress disorder was also reached. The psychologist says that his actions are a function of alcohol and illicit substance abuse, along with hypersensitivity and paranoia. He did not attempt to justify or condone or rationalise his actions. He indicated a willingness to engage in treatment programs and asserts that he has been drug free while he has been in custody.
In summary, the psychologist says that his condition was present at the time of the offending and hyper vigilance, paranoia, anxiety, dysfunctional attitudes and belief systems developed through his involvement with criminal peers, maladaptive coping strategies and his substance intoxication all combined to compromise his capacity for rational judgment, decision making and consequential thinking.
He has engaged in regular sessions in the EQUIPS addiction program while in custody this year.
I have been greatly assisted by comprehensive written submissions from the Crown and by Mr Kondich, counsel for the offender. As to the objective seriousness of the reckless wounding, the Crown points to the authorities demonstrating that the extent and nature of the injury ought to a significant degree determine that matter and the appropriate sentence, including factors such as the degree of violence, the ferocity of the attack, the fact that it was unprovoked and it was perpetrated on an innocent citizen.
I accept that both Long and Paul Nguyen were armed with a set of scissors and were equally culpable as participants in a joint criminal enterprise at that stage, and the CCTV footage shows that the incident lasted about 20 seconds, with this offender swinging the scissors at the victim three separate times in a targeted and ferocious attack in a public place. In short, it was an unprovoked attack perpetrated on an innocent citizen enjoying New Year's Eve celebrations.
The Crown submits that the offence against Mr Wikaira was just above midrange; against Mr Oh was between low and midrange. As to the assault occasioning against Mr Park, the Crown acknowledges that the injuries were relatively minor. In relation to the assault with intent to rob against Mr Oh, the Crown concedes that it is the least serious of all offences. It was haphazard and over within a split second and it is towards the lower end of offences for this type.
Mr Kondich acknowledges that the first attack against Wikaira was one involving a number of blows and he submits that the offending is towards the lower end of the scale, which is a similar position he puts in relation to Mr Oh's reckless wounding offence. He also submits that the assault occasioning and the assault are at the lowest end of the scale respectively.
The Crown acknowledges that offences against s 35 of the Crimes Act 1900 would ordinarily involve the use of some type of weapon, but they are not an essential element of the offence and thus can be taken into account as an aggravating factor, as has been acknowledged in s 33 offences. In the circumstances of this case I do not regard that as an aggravating factor under s 21A(2)(c) of the Crimes (Sentencing Procedure) Act 1999.
It is acknowledged that he was on conditional liberty and he has a significant record of previous convictions which do not entitle him to leniency. As to the offence against Mr Wikaira, it is accepted that members of the public had to move away so as not to be caught up in the altercation and it was committed without regard to public safety.
As to mitigating factors I have mentioned a plea of guilty and expressions of remorse in his letter. His prospects of rehabilitation would have to be put as guarded at the highest, given his poor response on previous occasions. He does clearly have a need for engagement in intensive treatment programs which justifies a modest finding of special circumstances.
As a general proposition the Crown accepts that the younger the offender, the greater the significance to be afforded to the element of immaturity, but that cannot apply, in my view, to a man who is now 27 and has exhibited a history of violence since at least the age of 23. The need for general and specific deterrence should play a significant role.
As to his mental conditions and addiction, the Crown accepts that he suffers from a long standing substance use disorder which is a matter that should be taken into account consistent with the principles in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1. I accept, as the Crown submits, that his substance use disorder did not materially contribute to the commission of the offending in a way that his moral culpability is reduced. In short, even accepting his account, he deliberately ingested a variety of substances including alcohol, cocaine, ice, Xanax and ecstasy after deciding to go out for New Year's Eve. He did so knowing or at least being reckless to the fact that it had previously contributed to him being violent and, notwithstanding the fact that he had previously received an indication that his sentence would be structured to give him an opportunity to overcome his addiction, he offended in the way that has been described.
I accept that these matters support a finding that his ingestion of drugs and alcohol was a deliberate decision by him and could not be regarded as being mitigated by the fact that he was introduced to and became addicted to drugs at a young age.
I accept that there is a modest basis for consideration of his deprived upbringing so as to mitigate sentence in the way described in R v Bugmy (2013) 249 CLR 517 or R v Fernando (1992) 76 A Crim R 58.
I take into account, as Simpson J said in R v Henry [1999] NSWCCA 111 that the Court should not close its eyes to the many circumstances of disadvantage and depravation that frequently precede and precipitate a descent into illegal drug use.
The standard non‑parole periods where applicable do not have much significance here, as Basten JA observed in KG [2012] NSWCCA 10, given my findings that the reckless wounding offences were in the low to midrange and the remaining two offences were at the low end of the range of objective seriousness.
I take into account questions of totality as outlined in the written submissions, and Mr Kondich acknowledges that the offences involved three separate victims and a measure of accumulation is required.
The orders that I make are as follows:
1. He is convicted of each offence.
2. Taking into account the 25% discount for the pleas fo guilty, the indicative sentences are:
1. Reckless wounding in company, 27 months with a non‑parole period of 18 months,
2. Reckless wounding in company, 23 months with a non‑parole period of 15 months,
3. Assault occasioning, nine months and
4. Assault with intent to rob seven months.
1. I impose an aggregate sentence of imprisonment of three years to commence on 1 June 2020,
2. I impose a non‑parole period of two years expiring 31 May 2022
3. I find special circumstances.
Note - These extempore remarks were revised without access to the court file
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Decision last updated: 26 April 2021