R v Tran

The facts

1. The facts are agreed and the following is taken from the agreed facts. In terms of the armed robbery matter, the victim was 20 years of age. At about 2 am on 28 December 2020, the victim used the phone application, Grindr, and he came across a profile for "JLE" and recognised that person as someone from Canley Vale High School.
2. The pair conversed via Grindr and arranged to meet up in the victim's car on the corner of Maple Street and Cabramatta Road, Cabramatta. The victim drove his car to the arranged meeting and a short time later the offender arrived. The offender entered the victim's car and the pair drove to a more secluded location in a lane in Cabramatta. Upon parking, the offender put a black surgical‑style face mask on and said that they should get into the back of the car. As the victim took off his belt, the offender moved towards him and put his right hand on the back of the victim's neck and the offender was holding a large knife near the victim's neck.
3. The victim panicked and was scared that he would be hurt and he said to the offender, "I know who you are. Don't do this. It won't end well," and the offender said, "Give me your fucking money." The victim grabbed the knife and forced it away. The offender said, "Let it go," the victim replied, "Get out of the car." The offender moved back from the victim, opened the car door and said to the victim, "Give me your money," and the offender remained in the car but was slowly exiting and the victim replied, "No."
4. The offender tapped the victim on the leg with the knife, the victim drove the car forward and the offender fell backwards from the car and the victim drove away and went to Cabramatta Police Station to report the matter. Photos were taken of the victim and his injuries. He suffered redness to his neck. Shortly after the incident, the offender contacted the victim via Grindr and in effect said, "Watch out, fuckwit, faggot. You got - you aren't - you not answering."
5. They are essentially the facts in relation to the armed robbery offence. In relation to the offence concerning Ms Ngo, the following is taken from the agreed facts for those offences. Kimberley Ngo was 20 years of age at the time of the offences. She met a male by the name of John Nguyen, which is apparently a pseudonym on the mobile application, Tinder, for this offender. They messaged for some time and then met in person for a date and following that, they did not speak for some time. In September 2020, the pair communicated over Instagram.
6. During that, the offender told Ms Ngo he had financial trouble. He asked her a number of times for money for rent and other expenses. Eventually she agreed to help him by loaning him some money. The offender gave Ms Ngo his bank account details and she made a number of transfers which are set out in the agreed facts, which I will not read onto the record.
7. Later on 27 October 2020, the offender contacted Ms Ngo and told her he was to receive an early payment from Centrelink and he could pay her back. Ms Ngo asked him to transfer the cash into her account and provided her bank details. He spoke with Ms Ngo further and convinced her to provide him the client number and password to her account, which she did.
8. The facts state that he then took control of Ms Ngo's bank account and transferred to himself $5,097 of her money, and she did not authorise the transfer. They are the facts that support sequence 1, which is on the form 1 of dishonestly obtain financial advantage by deception.
9. Several days later, Ms Ngo attended Campsie Police Station and reported that matter. In November 2020, the offender contacted Ms Ngo again. He asked for her bank details so that he could repay her the money. He again asked for her log-in details and she refused to provide them. No money was returned to her.
10. In late April 2021, the Offender contacted her via Instagram. He told Ms Ngo he wanted to return her money. During that correspondence he sent a photo of his driver's licence. In the early evening of 13 May 2021, Ms Ngo agreed to meet the offender at the parking lot near Belmore Train Station.
11. When they met, the offender asked to borrow her phone to make a phone call to his friend. She gave him her phone. He tried a few times to make a call, but no one answered. He then turned to her and said he had a knife. He touched his bum bag, which was slung over his shoulder, indicating where he had the knife.
12. He told her he needed money. She was scared the offender would hurt her. The offender told Ms Ngo that he would take $800 from her account or he would throw her phone over the nearby fence and leave. Ms Ngo called for help, but no one heard or helped.
13. In response, the offender feigned throwing Ms Ngo's phone over the fence and she believed, given the darkness, that he had indeed thrown her phone away. The offender said if Ms Ngo waited, he would collect her phone, and after the offender transferred himself some money, he would return the phone to her.
14. He walked from her in an apparent attempt to find her phone. After a few minutes, Ms Ngo went to try and find the offender or someone who could help her. She returned to where they had been and he was there with the phone. He told her that he was still transferring money and the transaction was pending.
15. Ms Ngo held her wallet in her hand, the offender reached forward, and while Ms Ngo still held onto the wallet, opened it, and took out her CommBank Mastercard, her Western Sydney University student identification card, her New South Wales Health Care Card and her New South Wales learner licence. He took some coins from the wallet. He told her when he received the money he would return those items. He returned her phone. He warned her not to tell anyone about what had happened, otherwise he said, "I know where you live." He had attempted to transfer a little of the $2,800 from her account.
16. The next day, Ms Ngo reported the matter to the police and she was able to cancel the transaction.
17. Between the 17th and 27th of May 2021, the offender messaged Ms Ngo repeatedly asking for the transfer to go through. When it had not and when she did not, he sent various messages which are set out in the agreed facts, some of which read as follows, "I'll see you around if no reply." "I'll see you soon." "Bloody pick up or at least message me, man." "Pick up your phone." "I'm giving you a chance or I'll be waiting around near yours." "I'm giving you 30 minutes to reply." "I'll come to yours and say 'Hi'." "If it's not in by tomorrow." Clearly not in by tomorrow, "You call up, please." "I need a response by tonight or I'll come by and pay you a visit later on today." "I'm outside your place at 6." "Answer me. I'm coming to your place right now." And demands of that type.
18. During the 26th to the 28th of May 2021, the offender had his friends attend Ms Ngo's address and record or take photos, and he had the friends message her seeking to scare her. He sent to her on 27 May 2021 a recording made by his friends of Ms Ngo's address. He engaged in the exchanges between the 20th to the 28th of May 2021, for the express purpose of obtaining outstanding funds. Those facts support sequence 3, the demand property with menaces offence.
19. A search warrant was executed on 2 June 2021 at the offender's home. He was at home. He was arrested, and spoken to. Then Police asked the offender about the items stolen from Ms Ngo. He said they were in a shoebox in his room. And when searched, her cards and IDs were found in the shoebox. Those facts support the goods in custody charge, which is on the form 1.
20. The Offender was taken to Fairfield Police Station. He was interviewed. He made a number of statements including that he had been drunk and abusing drugs. He accepted he was trying to make her scared and that his pseudonym was John Nguyen. He accepted that for three days straight, he got friends to message her and go to her house, record outside and message her, and send her a video. He acknowledged he should not have done it, he just needed the money.

Objective seriousness

1. Turning then to my assessment of the objective seriousness of the offences and I will, later in these remarks, once I have reviewed the offender's subjective case, address the closely related issue of the offender's moral culpability or moral blameworthiness for the offending.
2. In terms of the assault with intent to rob offence, I note a large knife was used and was held near the victim's neck, and the victim managed to grab it and force it away. There was clearly planning involved in the commission of the offence, given that there was an organised meeting through a dating app, and the offender brought a knife to that meeting. I note the victim was also tapped on the leg with the knife, and no doubt would have been scared. I also note that nothing was obtained during this offence.
3. In relation to the robbery of Ms Ngo offence, the offender said he had a knife and motioned to his bum bag. However, I note the Crown accepted that the offender did not actually have a knife on that occasion. Again, some planning was involved and they met through a dating app, and the contents of the victim's wallet was taken, but I note that in essence it appears she at least obtained all her cards back.
4. In relation to the demand money with menaces offence, there are a number of persistent demands and threats over a number of days, clearly involving some planning, noting at one point he had his friends attend the victim's premises and take photographs.
5. No money was actually obtained as a consequence of those demands. I assess all three offences as being below a notional mid-range offence, noting that it is not necessary to classify the seriousness of the offences on some notional scale, as they do not carry a standard non-parole period.
6. In terms of the impact of the form 1 offences, the offence in sequence 1 on the form 1 has some impact on the sentence to be imposed, as it involved dishonestly obtaining $5,097 from Ms Ngo. The goods in custody offences, the product of the robbery, has no impact on the sentence to be imposed.

The offender's subjective case

1. Turning then to the offender's subjective case. His date of birth is 21 June 2001. So, he had just turned 21 years of age and was 19 as at the date of the offending. He is what the law sometimes calls a young adult offender. The principles associated with sentencing a young adult offender have application here. Those principles are that it is usually more appropriate to give weight to rehabilitation and treatment than general deterrence, denunciation, and retribution when sentencing a young adult offender. See the summary of the relevant principles in Bullock v R [2016] NSWCCA 131.
2. The offender has a criminal history and while not overly lengthy, it has some relevance to sentence. On 17 May 2021, the offender was given in the Local Court a 15 month community correction order for an offence of dishonestly obtain property by deception.
3. On 21 May 2021, the offender was given a 15 month community correction order for common assault and dishonestly obtain financial advantage by deception. His record is such that it disentitles him to significant leniency here. The offence of demand money with menaces breaches the two community correction orders that were imposed on 17 and 21 May 2021. The fact that offence was committed while the offender was on conditional liberty is an aggravating factor when I sentence him on that offence.
4. The two community corrections orders have been called up before me. I have the facts for both offences and he is to be sentenced in relation to three offences the subject of the community corrections orders, as well as on the principal counts here.
5. In terms of documentary material, I have before me a psychological report of Jason Borkowski dated 15 June 2022, and a Sentencing Assessment Report by Community Corrections dated 22 June 2022. The offender also gave evidence yesterday on sentence and confirmed the contents of both reports. The offender in his evidence appeared a somewhat immature young man with limited verbal skills. Otherwise, I found him to be an acceptable witness.
6. Turning then to his family background. He was born and grew up in Fairfield in Sydney's south-western suburbs. He has one biological sister and two maternal half-siblings. He was initially raised by his biological parents who are of Vietnamese and Chinese/Russian descent, until he was aged 10. When aged 10 his parents separated and the offender was raised solely by his mother until aged 14. From age 14 the offender's mother remarried and he was supported by his mother and stepfather.
7. The offender reported to the psychologist that he had a close relationship with his biological father, who was his primary care giver during childhood. He reported that his father was primarily responsible for domestic duties and would look after the children, only working intermittently. The offender reported his father suffered from issues with drug use and said that he consumed alcohol, cannabis and cocaine, which the offender suggested impacted on his father's ability to perform his paternal responsibilities.
8. When the offender's parents separated, he had only minimal contact with his father for several years but was able to re-establish contact in his early to mid-adolescence. Since that time, he has seen his father only sporadically from time to time.
9. The offender reported a somewhat distant relationship with his mother and suggested to the psychologist that she was neglectful of her maternal responsibility. He denied that his mother had ever been employed and suggested she mostly stayed at home which was often characterised by heavy alcohol use. The offender stated his mother would "spend most of her days drinking and chatting online on the computer".
10. There is a little bit of inconsistency with what is contained in the Sentencing Assessment Report, which records that the offender reported to the author of that report that he had a positive relationship with his mother who he maintained is a pro-social influence in his life. The offender reported that his parents had a "rocky" relationship, with frequent verbal arguments but denied any physical abuse or violence in the family home.
11. He advised the psychologist that he has remained in contact with both his mother and father since being in custody. The offender reported that he maintained a stable relationship with his biological sister during his formative years, however remarked to the psychologist that this relationship had now become distant. The offender reported living with his family until approximately 16 years of age when he was kicked out of home by his mother and stepfather. He recalled being homeless for several months during which time he lived rough on the streets before moving in with a friend for a short time.
12. The offender was able to secure private rental accommodation when he commenced working at 16 years of age. He reported that at the time of the offence he was living in a shared rental property in Cabramatta. The offender reported being in one serious intimate relationship, but this was short-lived and he does not have any children. He noted that he was socially active during his formative years and enjoyed playing sports and computer gaming. He maintains that he developed long-term and reasonably close friends who he considered were a positive influence.
13. He identified three close friends as his primary pro-social support and he has remained in contact with those persons since being in custody. I note at the time of the offence, the offender was interacting and engaging with anti-social peers who, the author of the Sentencing Assessment Report suggests, had negative influence on his behaviour. He suggested to the author of the Sentencing Assessment Report that he used his anti-social acquaintances for their assistance to scare his victim and acknowledged sending those peers to the victim's address to deliver a threatening message, clearly a reference to Ms Ngo.
14. In terms of his education and employment history, he attended Fairfield Public School during his primary years, and reported to the psychologist that he was academically well-adjusted and denied any behavioural concerns. The offender attended high school until Year 10 when he departed following the disintegration of his family home environment. At that time, he ceased living with his mother and stepfather.
15. He reported somewhat tumultuous high school years, with a decline in academic performance and an increase in behavioural sanctions for misbehaviour. It was during this time that the offender's domestic environment became less stable and he began engaging with negative social influences. During his latter school years, the offender worked a part-time job at McDonald's. He continued in that role until leaving school and home. When living independently he started working as a concreter's labourer for several months but struggled to keep up the physical demands of the job.
16. The offender reported that after this employment he received Centrelink benefits for approximately a year. When able to find employment again he worked at Minto Markets for several months. I note that at the time of the offence the offender was unemployed.
17. In terms of his substance misuse, the offender reported an extensive illicit substance use. He first started using cannabis at age 13. He described only an intermittent use and that he did not really enjoy its effects. At age 14 to 15 the offender first started engaging with alcohol. He described to the psychologist that his use was characterised by intermittent episodes of binge drinking which escalated once he had turned 18. He described a weekly use which was mainly limited to the weekends but suggested he would drink heavily.
18. The offender's illicit substance use developed at around age 15 when he started experimenting with MDMA. The psychologist reported that the offender's use of MDMA was on a binge like basis. Throughout his late adolescence, at its worst, the offender reported that he would consume up to 20 caps of MDMA in a night. At age 17, the offender experimented with psychedelics, and at 18 he began using cocaine on a regular basis. He had identified cocaine and MDMA as his primary drugs of concern which he would often use in conjunction with alcohol.
19. The offender reported that he would use cocaine, MDMA and alcohol in binge patterns across a whole weekend. He suggested that his use became heavier when he was unable to cope with difficult domestic circumstances. I note that at the time of the offence, the offender reported he was generally intoxicated with his substance misuse getting worse and worse.
20. He reported to the author of the Sentencing Assessment Report that he was under the influence of MDMA and alcohol during the time of his offences. He reported to the psychologist that he had never engaged in any drug treatment or rehabilitation programs and suggested he has recognised the physical and psychological benefits of being drug free, and that he is motivated to maintain long-term abstinence from substance misuse.
21. The offender expressed similar sentiments when he gave evidence before me yesterday, and I can only hope that he is genuine about making a real effort to stay away from prohibited substances when he is next in the community. If he is not genuine about that then he can expect that he will spend a lot of his adult life in custody, where he is now.
22. One encouraging sign in that regard is that he has not incurred any disciplinary infringements in the almost year that he has been in custody and gave evidence, which I accept, that as a consequence of being away from prohibited drugs he feels healthier than he did before he entered custody.
23. Turning then to his psychiatric or psychological history. The psychologist noted he was oriented in time, place and person with no evidence of perceptual disturbance or thought disorder. His mood was stable and his affect was responsive with no abnormalities noted. In assessing the offender, the psychologist reported that the offender fit the criteria for major depressive disorder, substance use disorder and alcohol use disorder. The offender's challenging family circumstances through his adolescence led to "depressive symptoms such as amotivation and anhedonia, stress, and negative cognitions", according to the psychologist.
24. The psychologist opined that this disrupted upbringing led to a long‑term major depressive disorder. The psychologist reported that this domestic instability led the offender to gravitate to negative peer influences and in the context of these associations, led to an experimentation with alcohol and illicit drug use.
25. The offender demonstrated some insight into the link between his illicit substance use and offending behaviour. He reported to the author of the Sentencing Assessment Report that he was financially motivated and was attempting to support himself at the time of the offences. His focus was on supporting his drug use and admitted that he did not consider the consequences of his behaviour at the time.
26. The offender initially denied that he has aggression issues, but conceded to the author of the Sentencing Assessment Report that he was aggressive towards his victims and attributed this behaviour to his drug use. He accepted that his main motive was to threaten and scare his victims for financial gain.
27. The offender demonstrated insight into the effect of drugs and alcohol on his offending behaviour. He cited that he was drinking to cope with strained family relationships and poor domestic conditions, which resulted in a gradual deterioration and negative trajectory in his life. He reported to the psychologist that he feels absolutely the worst, "I'm not usually like that", in relation to his offending.
28. The author of the Sentencing Assessment Report also remarked that he associated his history of offending with his drug use and anti-social peer circle. The offender demonstrated some degree of remorse, recognising how his offending may have impacted upon the victims saying that they would have felt "sad, angry and scared". However, the author of the Sentencing Assessment Report noted that the offender appeared to express only limited regret regarding his offending behaviour towards his victims and showed limited insight into his aggressive behaviour and anti-social peers.
29. Further, the psychologist commented that the offender did not attempt to minimise, justify, or rationalise the offending. He also expressed regret at the negative trajectory his life has taken. And he indicated his willingness to seek professional support as a means of being able to re-establish a more responsible pro-social lifestyle, including ceasing and remaining abstinent from illicit substance use for the long term. He also presented with an understanding of the impact of his actions on the victims of the current offences according to the psychologist.
30. When giving evidence before me yesterday, the offender struggled to articulate any real empathy for the victims. Having said that, I consider that his inability to do so was primarily linked to his immaturity and his relatively young age.
31. The offender is a young man. He was just 19 at the time of the offending, and just days ago had his 21st birthday. A very sobering thing to happen, when you spend your 21st birthday in gaol, one would think. The offender's offending behaviour will need to be addressed in the context of the demonstrable link between his drug use, unstable domestic environment and negative peer influences.
32. In addressing these issues, the psychologist opined that the offender would benefit from placement in a residential drug rehabilitation program to assist him in consolidating and maintaining abstinence from illicit substances.
33. If a residential rehabilitation program is not available, the offender's risk of future drug use and offending would be reduced, should he have access to, and engage with, multi-service treatment options, according to the psychologist.
34. The author of the Sentencing Assessment Report categorised the offender as a medium to high risk of reoffending.
35. I have had regard to the fact that the offender is being sentenced during the Covid‑19 pandemic. It is well known that conditions in custody are more arduous for inmates during the pandemic, as inmates are spending longer periods of time in their cells, receiving fewer, if any, in-person visits, and there has been a reduction of rehabilitative programs available to them.
36. The Crown did not suggest that the principles discussed in Millwood v R [2012] NSWCCA 21 and Bugmy v R ]2013] HCA 37 have no application here. The offender had a relatively difficult upbringing and commenced his drug use at an early age and it would appear he did so in order to cope with some of the difficulties in his home life. The link between that background and his offending is discussed in Mr Borkowski's report.
37. Generally, the fact that an offence was committed while under the influence of alcohol or an illicit drug, or an addiction to those things is not a mitigating factor. This is because the decision to use alcohol or prohibited drugs is seen as an example of a person engaging in freedom of choice. Addiction, however, in some instances can result in a lesser sentence being imposed. That generally involves a consideration of the background of the offender's addiction.
38. Addiction can reduce a sentence where the addiction originated because the offender grew up in circumstances of social disadvantage, or deprivation, surrounded by the misuse of alcohol and prohibited substances, or where the offender's addiction commenced at a young age, and there have been few opportunities to engage in drug or alcohol rehabilitation. There can be some reduction of the sentence as a consequence of the addiction having a causal connection to the offending. See the discussion of this issue in the judgments in R v Henry [1999] NSWCCA 111.
39. I consider that here there is some reduction of the offender's moral culpability for the offences due to his somewhat disadvantaged upbringing and his exposure to drug and alcohol misuse at a young age.

Imposition of sentence

1. The offender entered his pleas of guilty in the Local Court and I will allow him a 25% reduction of his sentence in accordance with the Crimes (Sentencing Procedure) Act provisions. I note the foreshadowed disputed facts hearing was resolved without the need for any witness to be called. There is, as I say, some genuine remorse here, in my opinion, although his degree of insight into the harm his conduct caused the victims is not particularly fulsome.
2. The offender has reasonable prospects of rehabilitation. He is young and has some support in the community. Much will depend upon his ability to stay away from prohibited drugs when next in the community.
3. I noted that his rehabilitation has commenced while in custody, although it is not yet complete. He will clearly need further assistance with his drug rehabilitation when next in the community. He is young and being sentenced during the Covid-19 pandemic and I have already referred to the fact that conditions in custody are more arduous than before the pandemic. Due to the combination of those factors, I will make a finding of special circumstances when fixing the non-parole period.
4. He has been in custody since his arrest on 2 July 2021, [1] so the sentence will be backdated to that date to take account of presentence custody. I will use the aggregate sentencing provisions when imposing sentence. If I had not done so, there would be a reasonable level of accumulation given the fact that there are two victims involved.
5. In sentencing for the assault with intent to rob offence, I have had regard to the guideline in R v Henry. I note that the guideline was for when there was a late plea of guilty.
6. I've had regard to the objectives of sentencing referring to in s 3A of the Crimes (Sentencing Procedure) Act. General deterrence always is to be given weight when sentencing for these types of offences, in particular in relation to the armed robbery offence. People ought to be entitled to go about their lives without the threat of someone producing a knife on them and attempting to rob them.
7. The maximum penalties have been taken into account as legislative guideposts. The community correction orders I mentioned earlier, which have been breached by one of the offences have been called up and are before me, as are the facts associated with those offences.
8. I do not consider that the offence committed on 19 November 2020 of obtaining money by deception warrants the imposition of a gaol term. No action is to be taken on that breach, and the community correction order remains in place. In relation to the community correction order imposed on 21 May 2021 for a common assault offence and cause a financial disadvantage, I note those offences were committed upon a vulnerable taxi driver at night. The community correction order is revoked, and I impose a one-month sentence of imprisonment. It commenced on 2 July 2021 [2] and expired on 1 August 2021.
9. Mr Tran is convicted of the three principal offences to which he has pleaded guilty. I will firstly record the indicative sentences. In determining the indicative sentences and fixing the aggregate sentence, I have had regard to all of the objective and subjective factors I referred to earlier.
10. The sentences Mr Tran will hear me first announce are what are called indicative sentences. He will then hear me announce an aggregate sentence, which is the sentence and the non-parole period that he will serve. It is not arrived at by simply adding up all of the indicative sentences. When announcing the aggregate sentence, I will tell him the day it starts from, the date it ends and the date when he is first eligible for parole.
11. The indicative sentence on the assault with intent to rob while armed offence is two and half years' imprisonment. The indicative sentence on the robbery offence is 18 months imprisonment. The indicative sentence on the demand money with menaces offence, having regard to the offences on the form 1 is 12 months imprisonment.
12. I impose an aggregate sentence of three years imprisonment with an aggregate non‑parole period of one year and ten months imprisonment. The sentence commences on 16 July 2021 and expires on 15 July 2024. The non-parole period expires on 15 May 2023. The earliest date Mr Tran is eligible to be released to parole is the date of the expiry of the non-parole period, which is 15 May 2023. He should have an expectation that he will be released that day to parole, but it remains a matter for the State Parole Authority which will no doubt take account of his behaviour in prison in determining whether he should be released that day or on another date.

Orders 1. Record the following indicative sentences: 1. On the assault with intent to rob while armed offence, two and a half years imprisonment 2. On the robbery offence, one year and six months imprisonment 3. On the demand money with menaces offence, having regard to the offences on the Form 1, twelve months imprisonment 1. Impose an aggregate term of imprisonment of three years imprisonment with a non-parole period of one year and ten months. The sentence commences on 16 July 2021 [3] and expires on 15 July 2024. The non-parole period expires on 15 May 2023.

Endnotes

1. This date was in error, the correct date was 2 June 2021.
2. The commencement date was corrected to 2 June 2021 under the slip rule on 16 December 2022.
3. The commencement date was corrected to 16 June 2021 under the slip rule on 16 December 2022. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 January 2023