The Queen v W R [2013] VSC 603

Supreme Court of Victoria|2013-11-06|Before: Croucher J

CRIMINAL LAW - Sentence - Accessory after the fact to murder - Aggravated burglary and related offences - Possess unregistered firearm - Victim impact statement - Serious offending - Full admissions - Early pleas of guilty - Genuine remorse - High level of past and promised assistance to the authorities - Psychological afflictions - Particular hardship of imprisonment - Limited prior convictions - Strong prospects of rehabilitation - Weight to general deterrence, just punishment and denunciation moderated slightly on account of psychological afflictions at time of offending - Current sentencing practices - Parsimony - Submissions on range - Overlapping behaviour - Total effective sentence of four-and-a-half years' imprisonment - Non-parole period of two years - Section 6AAA of the Sentencing Act 1991 (Vic) - If no plea of guilty or assistance to authorities, total effective sentence of ten years' imprisonment with non-parole period of seven years - If plea of guilty but no assistance to authorities, total effective sentence of seven years' imprisonment with non-parole period of four-and-a-half years.

1 On 28 October 2013, the Director of Public Prosecutions ("the Director") filed an indictment (No D11954815) charging WR with eight offences: accessory to murder[1] (or what used to be known as being an accessory after the fact), aggravated burglary[2], intentionally causing injury[3] (two charges), armed robbery[4], criminal damage[5], common assault[6] and possession of an unregistered firearm.[7]

2 Upon arraignment, WR pleaded guilty to each charge.

4 The applicable maximum penalties to which I must, and do, have regard for those offences are as follows:

(a) accessory to murder (Charge 1) - 20 years' imprisonment;[8]

(b) aggravated burglary (Charge 2) - 25 years' imprisonment;[9]

(d) armed robbery (Charge 4) - 25 years' imprisonment;[11]

(e) criminal damage (Charge 5) - ten years' imprisonment;[12]

(f) common assault (Charge 7) - five years' imprisonment;[13] and

(g) possession of an unregistered firearm (Charge 8) - 240 penalty units or four years' imprisonment.[14]

5 Summary of Prosecution Opening: The circumstances of the offending were outlined in a written Summary of Prosecution Opening, which was tendered (as Exhibit 1) and from which Mr Rochford SC (who appeared for the Director) read. I understood that summary to be agreed in by Mr Trood (who appeared for WR). With some minor changes,[15] that summary is as follows:

6 WR meets Mr Spence: In the early part of January of 2013, WR (who was aged 39 at the time) met an associate known as Harvey Spence near the Flinders Railway Station. Mr Spence had with him his 14-year-old nephew AC. At that time, WR was living at a property at Johnsonville. At the request of Mr Spence, WR drove AC to that property in a Ford 250 utility. Mr Spence drove there in WR's gold Holden Calais.

7 Mr Spence brings Mr Doan to Johnsonville: On the morning of 6 January 2013, Mr Spence drove the gold Holden Calais towards the Johnsonville area. Three other men were in the car - Todi Muja, Peter Mitchell and Nhan Ngoc Doan. At some stage during this journey, Mr Spence placed Mr Doan into the boot of the car. On arrival at the Johnsonville property, Mr Doan was dragged from the boot and into a work shed. His hands were bound and duct tape was also placed across his mouth. WR observed Mr Doan wriggling on the floor. After a disagreement with Mr Spence, WR returned to the house. WR was not involved in the eventual death of Mr Doan any further from that point.

8 Mr Doan is murdered: Mr Doan was bound, gagged, suffocated and strangled. Mr Spence and Mr Mitchell have been charged with his murder.

9 Mr Doan's body is partially burnt by Mr Mitchell: After Mr Doan was killed, his body was put into a trailer and set on fire. Mr Mitchell subsequently put out the fire as it was causing a lot of smoke. Mr Spence then had a conversation with WR and took a large sum of money with him to go and purchase drugs.

10 WR and AC find the body: After Messrs Spence, Mitchell and Muja had left the property, WR went to the shed and, with the assistance of AC, found the body of Mr Doan lying partially burnt in the trailer. Inside the trailer was a large cardboard box that was taped up with duct tape. WR could not see all of the body, but observed that it was part of the body of Mr Doan, whom he had known by the name of Kevin.

11 WR and AC burn the body: WR and AC took the body out of the trailer and put it outside on the grass. Some wood was then put on the grass and petrol was used to set a fire. Once the fire was well established, WR and AC lifted the body on to the fire. The fire burnt until there was effectively nothing left but ashes. The shed, the trailer, the area that had been burnt and the grass were then cleaned up.

12 Arrest, interviews and statements: On 8 February 2013, police arrested and interviewed WR. He gave an account of what had occurred. On 15 April 2013, WR made a long written statement detailing his involvement in the matter. He was then arrested again on 3 July 2013 and a further interview was conducted. On 11 September 20013, WR made a second written statement, which filled in his involvement in the burning of the body of Mr Doan.

13 The offence: WR's burning of the body was done for the purpose of impeding the apprehension, prosecution or conviction of Mr Spence, knowing or believing that Mr Spence had murdered Mr Doan. That behaviour constitutes the offence of being an accessory after the fact to murder alleged in Charge 1.

Charges 2-7 - Aggravated burglary and related offences

14 Charge 2 - Aggravated burglary: On 4 February 2013, WR attended an address on Rosamond Road in Maribyrnong where a man named Dai Nguyen and his family resided. WR and another male went to this address because Dai Nguyen also knew Mr Spence, for whom WR was looking at the time. WR saw a vehicle parked in the driveway which he believed belonged to Mr Spence. He and the male parked around the corner and walked back to the house with jemmy bars. WR forced entry via the front door and went to the kitchen/lounge area. In the house at that time was Tam Nguyen (who was aged approximately 63), his wife Linh Duong (the same age as her husband) and their two grandchildren Tiffany Nguyen (aged 11) and Daniel Nguyen (aged four).

15 The forced entry to the premises as a trespasser with the intention of assaulting someone therein and while holding a jemmy bar constitutes the aggravated burglary alleged in Charge 2.

16 Charge 3 - Intentionally causing injury to Tam Nguyen: After walking into the kitchen/lounge area, WR punched Tam Nguyen to the face causing his dentures to break and fall from his mouth. The blow also caused pain. There were then demands made as to where Dai Nguyen and Mr Spence were at that time.

17 The striking of Tam Nguyen to the face, causing pain, constitutes the intentionally causing injury alleged in Charge 3.

18 Charge 4 - Armed robbery of Tam Nguyen: WR and the other male began to take tools and laptop computers. Tam Nguyen was struck to the left side of his head by WR and was then forced to hand over his car keys. Four laptop computers and power tools were then put into the Holden Astra sedan which belonged to Tam Nguyen. Tam Nguyen ran upstairs and whilst there Tiffany Nguyen called the police on her mobile phone. Linh Duong called Dai Nguyen and Vu Nguyen.

19 The theft of the items and the car with the use of force or threat of force in order to steal while holding the jemmy bar constitutes the armed robbery alleged in Charge 4.

20 Charges 5 & 6 - Criminal damage to car and intentionally causing injury to Vu Nguyen: Vu Nguyen attended the address and was confronted by WR and, while seated in a vehicle, was told to "get out of the car". He did he not comply with this order. WR again told him to get out of the car and threatened to hurt his family. When Vu Nguyen again did not comply with the order, WR smashed the window with a jemmy bar and, in the same action, struck Vu Nguyen to the face with the bar, which caused him pain. Vu Nguyen put his car in reverse, drove away and called the police.

21 The damage to the car constitutes the criminal damage alleged in Charge 5 and the strike to Vu Nguyen's face, causing pain, constitutes the intentionally causing injury alleged in Charge 6.

22 Charge 7 - Common assault on Quyen Tran Nguyen: Quyen Tran Nguyen, who was the mother of Tiffany Nguyen, attended at the house and saw WR with her 11-year-old daughter Tiffany. WR approached Quyen Tran Nguyen and threatened her with the bar, telling her to go and find the CCTV hard drive that he knew existed inside the house somewhere. Quyen Tran Nguyen went inside and began looking for the CCTV hard drive with WR but could not find it.

23 The threat to Quyen Tran Nguyen with the bar constitutes the assault alleged in Charge 7.

24 WR and the other male leave: Shortly afterwards, WR and the other male left the address, taking the vehicle of Tam Nguyen and the stolen property. They collected the other vehicle which had been parked around the corner and drove off.

25 Arrest and interview: On Friday 8 February 2013, police executed a search warrant at WR's premises at Minter Road in Johnsonville. WR was arrested. He co-operated with police and assisted in locating laptop computers and other things that had been taken from the Rosamond Road address in Maribyrnong. He was interviewed and made admissions to the aggravated burglary and other offences. Initially, he would not disclose the identity of the other male who was with him at the time, but he did so later.

26 Charge 7 - A firearm is located: On Saturday 9 February 2013, police executed a search warrant at WR's property at Johnsonville. Police located an unregistered single-barrel pump-action Bentley shotgun loaded with five shotgun cartridges in the master bedroom concealed under a doona on the bed.

27 This discovery gives rise to the inferred possession of an unregistered firearm the previous day (i.e. on 8 February 2013) alleged in Charge 8.

28 Mr Rochford tendered a victim impact statement by Lien Doan (Exhibit 2). Lien Doan is the sister of the deceased. Ms Doan and some other members of her family were present at the plea. Ms Doan's statement is a powerful and extremely moving document. Amongst other things, she speaks of the emotional impact on her family resulting from their inability, in the absence of Mr Doan's body, to give him a proper burial ceremony. She explains that, in her family's culture, those who die without a proper burial ceremony become "wandering souls who cannot lay to rest [and who] may never be reincarnated and enjoy life again". She speaks of how her mother has even become a vegetarian in the hope of gaining some good karma for her son's soul, but that she has lost a good deal of weight as a result. I cannot do the document justice by trying to summarize it any further. However, I have taken its contents into account in sentencing.

29 No victim impact statements were made by either the direct or indirect victims of the offences in Charges 2-7, the Nguyen family. However, no victim impact statements are needed to infer that great terror must have been experienced by all of those who were either the direct victims of those offences or who otherwise witnessed those events.

30 The offending is very serious. Whilst Mr Doan's body had already been partially burnt, the further burning of the body to the point that there was, in effect, nothing left of it has caused considerable grief to Mr Doan's family, as the victim impact statement shows. This is a matter that must have been foreseen by WR at the time the crime was committed. Further, whilst it can be readily inferred that WR may have burned the body to ensure that the finger of suspicion for murder would not be mistakenly pointed at him, particularly when the killing had occurred at his premises, the fact is that his plea of guilty acknowledges that his purpose in doing so was to impede the apprehension, prosecution or conviction of Mr Spence, knowing or believing that Mr Spence had murdered Mr Doan. Further, he committed the offence with a fourteen-year-old boy. Whilst I can imagine far more serious examples of the offence, WR's behaviour strikes me as a serious example of being an accessory after the fact to murder.

31 As for the aggravated burglary and related offences, in my view, collectively, they amount to a very serious incident. The striking of Tam Nguyen - once in the injury offence and again in the course of the armed robbery - is aggravated by the fact that he is a man much older than WR (63 compared with 39); and that he was assaulted in his own home in the presence of his wife and his young grandchildren. Indeed, all of the offences are aggravated by the presence of young children. Further, to have threatened Quyen Tran Nguyen with the bar - a woman in the presence of her daughter - is also a rather low act. Whilst the injuries inflicted in the offences charged in Charges 3 and 6 were at the lowest level (they were confined to pain), the fact that such blows were struck with a jemmy bar could only have intensified the terror that must have been experienced by the Nguyen family at already having an armed man break into their home. The whole incident smacks of cowardice and reflects poorly on WR. As a father of three children aged between three and thirteen years, WR must be taken to know how terrifying that would be. Mr Trood agreed with my observation on the plea that WR's behaviour at the Nguyens' home amounted to "a pretty ordinary performance".

32 Mr Rochford submitted that the aggravated burglary and related offences are, in some ways, more serious than the accessory after the fact offence. I agree with that submission. As a result, I will make the sentence on the aggravated burglary charge the base sentence upon which the sentences for some of the other offences will be directed to be served partly cumulatively.

33 Balanced against the seriousness of the offending are the several mitigating factors on which WR is entitled to rely.

34 Before going to those factors, I should add that WR's personal history is set out in detail in the psychologist Patrick Newton's report (Exhibit 7) and in the reference from Geoffrey Milroy (Exhibit 8). I shall not repeat that detail in these reasons, although I will be referring to aspects of those two documents shortly.

35 First, WR made full admissions to and co-operated with police.

36 In particular, WR made full admissions when interviewed by police on 8 February 2013 in respect of the aggravated burglary and related offences. He also co-operated by pointing the police to the stolen items.

37 Also on 8 February 2013, WR gave an account of what occurred in respect of Mr Doan. As indicated above, on 15 April 2013, WR made a long written statement detailing his involvement in the matter; on 3 July 2013, he gave a further interview; and on 11 September 20013, he made a second written statement. Thus, he also made full admissions in respect of the offending concerning Mr Doan.

38 Secondly, WR pleaded guilty to all charges at the earliest practical stage.

39 In relation to the aggravated burglary and related charges, WR pleaded guilty at a committal mention hearing in the Magistrates' Court on 7 May 2013.

40 He also pleaded guilty to the possess firearm charge the same day but that charge was not added to the current indictment until just recently, when WR indicated through his lawyers that he wished to have all matters dealt with together.

41 In relation to being an accessory to murder, a committal mention hearing was listed in the Magistrates' Court for 1 October 2013 but was abridged to 13 September, at which time WR pleaded guilty.

42 By pleading guilty at each committal mention stage, and by honouring those pleas in this Court, WR has obviated the need for any contested committal proceedings or trials, and thereby has saved considerable scarce court, police and prosecutorial resources, has spared witnesses the ordeal of giving evidence and has shown a willingness to facilitate the course of justice.

43 An early plea of guilty that does nothing than more than avoid a committal hearing and a trial, and thereby spares witnesses and saves resources, is usually a significant mitigating factor simply because of those utilitarian considerations.

44 Thirdly, I am also satisfied that WR is genuinely remorseful for his crimes and the impact they have had on others.

45 So much is apparent from his full admissions; his pleas of guilty; the assistance he has provided, and the further assistance he has promised to provide, to the authorities (which I shall address later); his apologies offered, through counsel, to the victims and their families; his acknowledgment, through counsel, of the particular suffering caused to Mr Doan's family by reason of his actions depriving them of the chance to provide a proper burial ceremony; the observations of the psychologist Mr Newton in his report (Exhibit 7); and the observations of his father-in-law MM in his reference (Exhibit 8).

46 Detective Senior Sergeant Ron Iddles, who is in charge of the investigation into the death of Mr Doan, also gave evidence for WR on the plea. Detective Iddles twice had contact with WR, and he was of the view that his contrition was genuine. I accept that evidence. I also had the benefit of observing WR closely when he was in the dock and when he gave evidence before me. In my view, it is plain that WR is ashamed at what he has done and, rightly, feels terrible over the harm he has caused his victims and their loved ones.

47 Early pleas of guilty that are attended by true remorse usually result in a substantial discount on sentence. WR's pleas of guilty fall into that category and they shall attract a substantial discount.

48 Fourthly, WR has provided, and has promised to provide, very substantial assistance to the authorities.

49 I have already mentioned the assistance WR provided by making statements to the police concerning his involvement in burning Mr Doan's body. Those statements (of 15 April and 11 September 2013), and his police interview of 3 July 2013, also detail the involvement of others in the events which led to Mr Doan's death.

50 Further, on the plea, WR gave a sworn undertaking to give evidence in accordance with his statements and interview in the prosecution of Mr Spence and Mr Mitchell. Detective Iddles gave evidence that WR's evidence would be "towards vital or crucial" in the case against Mr Spence and "fairly vital" in the case against Mr Mitchell.

51 On 25 October 2013, WR also provided a statement to police in an unrelated murder case concerning the killing of a baby in the course of an aggravated burglary. The gist of WR's statement is that, whilst on remand in prison, he received a confession or admission from another prisoner to the effect that he was responsible for the death of the baby. WR gave a sworn undertaking to give evidence in accordance with his statement in that matter too. Detective Iddles gave evidence that WR's evidence would be corroborative of an undercover operative's evidence that the accused had made admissions to him. He regarded the evidence as being "of assistance". Detective Iddles said that police accepted WR's statement but recognized that, as an alleged "gaol yard confession", it would be a matter for a jury whether they accepted it.

52 In my view, WR's assistance to the authorities thus far, and his undertakings to assist in two separate prosecutions of three individuals in the future, amount to powerful mitigating factors, in several ways:

a) First, the potential benefit to the community in assisting in the prosecution of alleged murderers is substantial. Here, the assistance is provided in respect of the alleged murders of two persons and in respect of the trials of three accused. I accept Detective Iddles' evidence that WR's evidence is "towards vital or crucial" and "fairly vital" in respect of two persons charged with the one murder and "of assistance" in respect of the other person charged with the unrelated murder.

b) Secondly, it is likely that WR will have to give evidence several times - at one committal hearing, one Basha inquiry and two trials at the very least.

c) Thirdly, the consequence of taking this course is that WR's time in gaol, and his life after gaol, will forever be blighted additionally by the fear that he may be the target of violence, or at least opprobrium, by those who think poorly of police informers.

d) Fourthly, his preparedness to take this course shows that he is truly remorseful, ashamed at what he has done and prepared to right his wrongs in so far as he can. This, in turn, adds to my conviction that, despite the seriousness of his crimes, his prospects of rehabilitation are very strong. There may be a certain irony that, having sought by his offending in Charge 1 to impede the apprehension, prosecution or conviction of Mr Spence, WR's assistance is now designed to assist inter alia in Mr Spence's prosecution. But, as I say, his decision to assist the police shows a preparedness to right his wrongs so far as he can.

53 Whilst it is difficult to quantify things of this nature, and not all think that quantification should be attempted, in my view, WR's assistance - both past and promised - is of such a high order that it warrants a very substantial discount on sentence. Whilst I do not think it warrants the maximum discount available - which, as Nettle JA noted in R v Johnston [2008] VSCA 133; (2008) 186 A Crim R 345 at [15]- [19], may be as much as 50 to 66 percent - it certainly warrants a very substantial discount, a discount that is significantly greater than the order of discount afforded for an early plea of guilty attended by remorse. I shall say more about this later when announcing sentence.

54 Fifthly, given the report of the psychologist Mr Newton, the reference from WR's father-in-law MM and the observations of Detective Iddles on the plea, all of which evidence was unchallenged, I am satisfied that, at the time of his offending, WR was suffering from significant anxiety, depression and dependence upon cannabis, alcohol and amphetamines. It is apparent that WR has suffered from depression and anxiety for a large part of his life and that his mental state deteriorated in the period leading up to his offending, which in turn saw him become involved in amphetamine use at the same time. Perhaps not surprisingly, his wife had moved out of home at this time and he feared she had left him permanently. Fortunately for WR, his wife and her parents are now strongly supportive of him.

55 In my view, the afflictions under which WR laboured at the time of the offending lessen his moral culpability, albeit only to a small degree. As I will explain below, this in turn will have a small moderating effect on the weight to be given to the sentencing purposes of general deterrence, denunciation and just punishment.

56 Sixthly, I accept Mr Newton's view that it is likely that WR will suffer serious mood disturbances and/or severe anxiety at levels considerably greater than other prisoners not so afflicted; that such episodes will occur more frequently and for more extended periods than for normal prisoners; and that his decision to assist the authorities is likely to add to the hardships he faces in prison. Further, I accept Mr Newton's opinion that there is a considerable risk that WR's mental state will deteriorate during the course of any period of incarceration.

57 Detective Iddles gave evidence that it was his understanding that, as a prisoner who will be a witness for the Crown, WR is likely to go into a protection unit where 23-hour lockdowns are common. Mr Rochford indicated he accepted that evidence.

58 Mr Trood tendered a letter from Corrections Victoria dated 25 October 2013 (Exhibit 9). The letter reported inter alia that WR had been assaulted after it was heard by other prisoners that he was a Crown witness. This was on 18 May 2013. He was placed into a "protection" unit on 30 May and has remained in protection units ever since.

59 The letter goes on to say that protection prisoners have the same opportunities as mainstream prisoners for participation in offender programmes and time out of cells. The latter point seems to be inconsistent with the evidence of Detective Iddles and the concession by Mr Rochford.

60 I do not need to resolve whatever controversy there may be, as I am satisfied that WR's time in custody - whether or not he is subject to 23-hour lockdowns - will be considerably more onerous than for other prisoners and that there is a considerable risk that his mental state will deteriorate during the course of any period of incarceration. This, in turn, is relevant to both the length of the sentences I will impose and the ratio of the non-parole period to the total effective sentence I fix.

61 Seventhly, WR has a limited prior criminal history. In particular, he admitted prior convictions incurred in three court appearances.

62 First, on 13 May 1992, when he was aged 18, WR was convicted in the Magistrates' Court at Melbourne of theft from a motor vehicle and going equipped to steal. On one charge, he was sentenced to three months' imprisonment, wholly suspended for 18 months; and on the other charge, he was placed on a community based order for 18 months, with a condition that he perform 125 hours of unpaid community work.

63 Secondly, on 5 July 2000, when he was aged 27, WR was convicted in the Magistrates' Court at Broadmeadows of cultivating possessing and using cannabis and two offences of possessing a category A longarm without a licence. On the cultivation charge, he was sentenced to three months' imprisonment, wholly suspended for 12 months. On the possession and use charges, he was fined an aggregate of $1,500. On the guns charges, which Mr Trood advised concerned air rifles, he was fined an aggregate of $1,500.

64 Thirdly, on 16 June 2008, when he was aged 34, WR was convicted in the Magistrates' Court at Kyneton of careless driving.[16] He was fined $1,000 and was suspended from driving for two months. Mr Trood advised that there was an element of aggression or "road rage" in the offence in that WR deliberately drove into the back of another car.

65 Mr Trood submitted that, while there was an element of aggression in the careless driving charge, none of the prior convictions were for violence and they should not cause me any great concern in the sentencing process. Mr Rochford said nothing against that submission. I accept Mr Trood's submission: the prior convictions do not cause me any great concern.

66 In particular, I regard the prior convictions as irrelevant except in so far as it cannot be said that WR previously has led a blameless life. The dishonesty convictions were incurred in 1992 when WR was only 18. The cannabis convictions incurred in 2000 reflect WR's abuse of drugs which in turn is reflective of his long-term psychological afflictions. Further, there is nothing to suggest the air rifles were being misused. And, while WR's candid admission, through Mr Trood (that the careless driving offence involved aggression), means that it cannot be said he has lived without blemish, such behaviour bears no comparison with the behaviour giving rise to the present charges. Further, the driving offence per se has no bearing on the current charges.

67 Eighthly, any modest reduction in leniency on account of WR's prior convictions is offset by the evidence of positive features of his character.

68 WR's father-in-law MM provided a helpful reference. MM describes his son-in-law as a friendly, polite, good-natured, respectful, well-mannered person who would do anything to help others; as a loving husband; and a loving, caring and doting father to his three children.

69 MM explains that, when WR's mother was diagnosed with cancer, he used his carpentry skills to refurbish her unit in order to make things more comfortable for her. Further, he spent a lot of time with his mother as her health deteriorated and, when her health failed her so much that she was unable to care for herself, WR and his wife cared for her at their home, where she ultimately died about a month later.

70 MM also attests to WR's involvement in community activities, such as, without charge, repairing playground equipment and fences at [a rural childcare centre] and [a rural after-school care centre], where two of his older children attended for a time.

71 Ninthly, I am satisfied that WR has strong prospects of rehabilitation. There are several reasons for that view.

72 First, WR's full admissions, early pleas of guilty, remorse, assistance to the authorities, limited prior convictions and the positive aspects of his character all auger well for his prospects of rehabilitation.

73 Secondly, MM, who has known WR closely for 22 years, speaks positively about those prospects. He speaks of WR's deterioration after allowing an old friend of his, who had drug problems, to stay in the shed at his property in Johnsonville. MM believes that it was this old friend who introduced WR to those integral to the offending in which he subsequently engaged. WR became withdrawn, was drinking more than usual, struggling with his medication and appeared to be having serious mental health issues. However, MM has spoken to WR several times since he was taken into custody. He believes WR deeply regrets and is ashamed at what he has done and the impact it has had on the victims, their families and his own family. He has progressively observed a noticeable change in WR's demeanour, personality and body language. He notes that WR has been seeing mental health professionals in prison and that his medication appears to be more settled. He has a positive attitude and is keen to get working upon his release from prison so that he can support his family again. MM also notes that he writes this reference from the perspective of one who worked as an industry supervisor at HM Prison in Pentridge for 14 years and that, as a result, he has a good perception of whether prisoners are being truthful in their promises. He is satisfied that WR is genuinely remorseful, will not re-offend and has a genuine desire to return to his normal self and to provide for his family.

74 Thirdly, WR's history is one of hard work and providing for his family, despite the life-long psychological afflictions and physical pain under which he has laboured. WR has strong support from his wife and his parents-in-law. He has three children to support. MM describes him as a good tradesman in carpentry (MM is also a carpenter) and as having a good work ethic.

75 I accept MM's observations, which were uncontested.

76 On the other hand, Mr Newton's opinion, which was also uncontested, is that WR is a rather psychologically afflicted individual who has a very limited degree of insight into the factors associated with his drug addiction. Mr Newton is of the view that WR's psychological afflictions are such that he requires structured intensive intervention. He is also of the view that there may be some benefit in imposing on WR a significant period of supervision in the community, as such a course would "ensure that he receives the structured intensive intervention he requires in the context of ongoing supervision and clear contingencies for non-compliance". He concludes with the remark that "[t]he combination of structured treatment and supervision may well provide the only realistic prospect for WR to address his significant psychological and other difficulties".

77 As I understood Mr Trood, his submission was that a substantial potential period on parole is the type of sentence that would allow the type of structured treatment and supervision which Mr Newton recommends. I accept that submission.

General deterrence, specific deterrence, denunciation, just punishment and community protection

78 Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentence may be imposed are, to use the shorthand, general deterrence, specific deterrence, denunciation, protection of the community, just punishment and rehabilitation.

79 In my view, general deterrence, just punishment and denunciation are important considerations in respect of offending of the types in which WR has engaged. Others in the community should understand that anyone who might be minded to destroy the body of another for the purpose of impeding the bringing of a killer to justice, and that anyone who might be minded to break into a home and terrorize the occupants with threats and actual violence, will receive stern and just punishment. The community should also know that the courts will denounce such behaviour, and I do. That said, I have moderated, albeit to a small degree, the weight I accord to general deterrence, just punishment and denunciation on account of the psychological afflictions under which WR was labouring at the time of the offending.

80 Whilst specific deterrence must be given some weight, I have given it less weight than otherwise on account of WR's full admissions, early pleas of guilty, remorse, assistance to the authorities, limited prior convictions, the positive aspects of his character and, as I have indicated above, the fact that WR has strong prospects of rehabilitation.

81 Given those same factors, in the present case, I do not consider WR to be any real risk of re-offending in the same manner. Accordingly, there is only a very modest need to give weight to protection of the community as a sentencing purpose. Protection of the community will be better served by the fixing of a sentence that maximises WR's chances of rehabilitation.

82 In so far as I can determine them, I have had regard to current sentencing practices for the offences charged. In the area of sentencing, it is almost always difficult usefully to compare other cases and divine solid information from sentencing statistics, but I have found these sources of some assistance. I have had regard in particular to sentences recorded on Austlii for the offence of accessory to murder (or accessory after the fact to murder) and to the statistics to be found on the Judicial College website for sentencing for aggravated burglary and related offences. In the end, however, because of the limits of that process, one is driven to rely principally on the particular circumstances of this case and sentencing principles to arrive at appropriate sentences.

83 Section 5(3) of the Sentencing Act 1991 (Vic) provides that a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed. Section 5(4) provides that a court must not impose a sentence that involves confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender. These provisions reflect the common law principle of parsimony. I have applied those principles when fixing sentence.

84 I invited submissions from counsel on sentencing range.

85 Mr Rochford submitted that a total effective sentence of between five and six years' imprisonment with a non-parole period of between three and four years would be appropriate. He said that that range built in almost all of the factors Mr Trood had been putting on the plea. He emphasized that these were very serious offences.

86 Mr Trood submitted that that range was too high and that it undervalued the high magnitude of the assistance to the authorities in two separate matters, the need for a potentially significant period on parole and the other mitigating factors. He submitted that a non-parole period in the order of two to two-and-a-half years would be appropriate.

87 I have had regard to those submissions in fixing sentence.

Other factors relevant to individual sentences, cumulation and totality

88 Other relevant considerations to which I must have regard in sentencing are as follows:

89 First, the criminal damage in Charge 5 and the intentionally causing injury in Charge 6 arose out of the same act of striking at the car. In order to avoid double punishment, I have taken that overlapping behaviour into account when fixing the individual sentences and considering the directions for cumulation in respect of the sentences on those charges.

90 Secondly, there is a degree of overlap between the intention to assault that forms one of the elements of the aggravated burglary in Charge 2 and the assault, force, threat of force or injuries that actually occurred in Charges 3, 4, 6 and 7. Again, I have taken that overlapping behaviour into account when fixing the individual sentences and considering the directions for cumulation in respect of the sentences on those charges.

91 Thirdly, the offending in Charge 1 on the one hand and the offending in Charges 2-7 on the other are separated in time and circumstance. Ordinarily, this would indicate at least a degree of cumulation. On the other hand, totality requires that there be a degree of concurrency between the sentences imposed for those two periods of offending.

92 Fourthly, whilst the offending in Charges 2-7 all occurred as part of the one incident, nevertheless, even allowing for totality, there were some discrete offences that warrant an element of cumulation of sentence, particularly given the three separate victims of the injury or assault offences and the violence and theft that formed part of the armed robbery.

93 Fifthly, having regard to ss 5(3) and (4) of the Sentencing Act and all relevant considerations, whilst I have come to the view that the offences in Charges 1-7 inclusive demand terms of imprisonment, the offence in Charge 8 - i.e. the possession of the unregistered firearm - warrants only a fine.

94 Balancing all of these factors, WR is convicted on each charge and otherwise sentenced as follows:

• On Charge 1, accessory to murder: two years and eight months' imprisonment;

• On Charge 2, aggravated burglary: two years and eight months' imprisonment;

• On Charge 3, intentionally causing injury to Tam Nguyen: ten months' imprisonment;

• On Charge 4, armed robbery: two years and four months' imprisonment;

• On Charge 5, criminal damage to the car: one month's imprisonment;

• On Charge 6, intentionally causing injury to Vu Nguyen: ten months' imprisonment;

• On Charge 7, assault on Quyen Nguyen: five months' imprisonment; and

• On Charge 8, possession of an unregistered firearm: fined $450.

95 I direct that 12 months of the sentence on Charge 1, two months of the sentence on Charge 3, four months of the sentence on Charge 4, two months of the sentence on Charge 6 and two months of the sentence on Charge 7 be served cumulatively upon the sentence on Charge 2 and upon each other. All other sentences are to be served concurrently.

96 There is a stay of three months in respect of payment of the fine on Charge 8.

97 Thus, the total effective sentence on Charges 1-7 is four years and six months' imprisonment.

99 That is a relatively short non-parole period when compared with the total effective sentence. However, I have selected that period for a number of reasons. First, as indicated above, I am satisfied that there is a considerable risk that WR's time in custody will be substantially more onerous than that of most prisoners - given his mental health problems and his informer status - and that such a factor should attract additional weight when fixing the non-parole period. Secondly, a potentially longer period on parole is likely to assist his reintegration into the community. Thirdly, his pleas of guilty and his assistance to the authorities are entitled to especial weight when fixing the non-parole period. Fourthly, as I have indicated above, his prospects of rehabilitation are strong. Fifthly, I consider that all other significant sentencing purposes - including general deterrence, denunciation and just punishment - allow the fixing of such a period in this case.

100 I declare that 272 days of pre-sentence detention are to be reckoned as already served under the sentence.

Section 6AAA declaration

101 Section 6AAA of the Sentencing Act requires that I must state the total effective sentence and non-parole period and fine I would have imposed but for the pleas of guilty. That task is a difficult one given the interaction between pleas of guilty and other mitigating factors and the nature of the intuitive synthesis in sentencing.

102 One of those mitigating factors is WR's assistance to the authorities. There is no equivalent of s 6AAA as it applies to such assistance, albeit there is an equivalent provision in sentencing for Commonwealth offences. The same difficulty that applies in stating a would-be sentence absent pleas of guilty applies to stating a would-be sentence absent assistance to the authorities. However, given the importance of those two particular factors in mitigation, I think it is appropriate to attempt a declaration that accounts for each of those factors.

103 Accordingly, doing the best I can, had WR not pleaded guilty and had he not provided or offered any assistance to the authorities, on Charges 1-7, I would have imposed a total effective sentence in the order of ten years' imprisonment with a non-parole period in the order of seven years; and, on Charge 8, I would have imposed a fine of $1,000.

104 Secondly, had WR not provided or offered any assistance to the authorities but pleaded guilty at the earliest stage, on Charges 1-7, I would have imposed a total effective sentence in the order of seven years' imprisonment with a non-parole period in the order of four years and six months; and, on Charge 8, I would have imposed a fine of $700.

105 Finally, I make the following ancillary orders:

106 First, I order, pursuant to s 464ZFB(1) of the Crimes Act 1958 (Vic), that the forensic sample and any related material and information obtained pursuant to the informed consent given by WR on 8 February 2013 be retained for placement on the database. I am satisfied that the making of the order is justified given (1) the seriousness of the offending, (2) the order is not opposed by WR and (3) it is in the public interest to make the order.

107 Secondly, I order, pursuant to s 151 of the Firearms Act 1996 (Vic), that the firearm the subject of Charge 8 be forfeited to the Crown.

[1] Contrary to s 325(1) of the Crimes Act 1958 (Vic).

[2] Contrary to s 77(1) of the Crimes Act 1958 (Vic).

[3] Contrary to s 18 of the Crimes Act 1958 (Vic).

[4] Contrary to s 75A(1) of the Crimes Act 1958 (Vic).

[5] Contrary to s 197(1) of the Crimes Act 1958 (Vic).

[7] Contrary to s 6A(2) of the Firearms Act 1996 (Vic) (where, as here, the firearm is a category C or category D longarm).

[8] See s 325(4)(a) of the Crimes Act 1958 (Vic).

[9] See s 77(2) of the Crimes Act 1958 (Vic).

[10] See s 18 of the Crimes Act 1958 (Vic).

[11] See s 75A(2) of the Crimes Act 1958 (Vic).

[12] See s 197(1) of the Crimes Act 1958 (Vic).

[13] See s 320 of the Crimes Act 1958 (Vic).

[14] See s 6A(2) of the Firearms Act 1996 (Vic) (where, as here, the firearm is a category C or category D longarm).

[15] Two changes of note are that, after the plea, the parties jointly advised that the injury relied on in respect of each offence in Charges 3 and 6 is pain and that the gun the subject of Charge 8 is a category C or D longarm, such that the offence is charged under s 6A(2) of the Firearms Act 1996 (Vic) and carries a maximum penalty of 240 penalty units or four years' imprisonment.

[16] There was also a charge described as "use veh - not comply with reg standard", for which he was fined $1,000. I could not make out from the record what this charge meant, and I did not ask Mr Trood about it, but I doubt it could have any bearing on my assessment of the sentence to be imposed on the current offences.

At a glance

Court

Decision date

Before

Source

Judgment (145 paragraphs)

Parties