Director of Public Prosecutions v Achor

[2018] VCC 2194

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00521

DIRECTOR OF PUBLIC PROSECUTIONS

v

DENG ACHOR
MADING ATEM
ANGOY NGONG

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JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Melbourne
DATE OF HEARING:	14 December 2018
DATE OF SENTENCE:	18 December 2018
CASE MAY BE CITED AS:	DPP v Achor
MEDIUM NEUTRAL CITATION:	[2018] VCC 2194

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Fallar	Office of Public Prosecutions
For Accused Achor	Mr A. Lavery	Chris McLennan & Co.
For Accused Atem	Mr J. McQuillan	Greg Thomas Barristers and Solicitors
For Accused Ngong	Ms J. Clark	Matthew White and Associates

HER HONOUR:

1Deng Achor, Mading Atem and Angoy Ngong, you have each been found guilty by a jury of one charge of affray.  The maximum penalty for that offence is five years' imprisonment.

2Mading Atem, you were also found guilty of one charge of handling stolen goods.  The maximum penalty for that offence is 15 years' imprisonment. You also pleaded guilty to a summary charge of failing to answer bail.

3Angoy Ngong, you pleaded guilty in front of the jury to one charge of criminal damage.  The maximum penalty for that offence is ten years' imprisonment and you also pleaded guilty to a summary charge of failing to answer bail.

4As regards the charge of affray, the jury's verdict must be interpreted in light of each of you being found not guilty of intentionally or recklessly causing serious injury to Joshua Lim, not guilty of intentionally or recklessly causing injury to Shane Taylor and not guilty of intentionally or recklessly causing injury to Bradley Edmondson.  You are each entitled to the full benefit of those verdicts and I have acted on that basis.

5The charge of affray in relation to which you were found guilty involved each of you participating in a very serious affray, which resulted in Joshua Lim suffering serious injury, including an undisplaced skull fracture.  He required extensive treatment and rehabilitation.  Shane Taylor suffered a minor injury to his hand and Bradley Edmondson suffered a head injury which required suturing, as well as injuries to his back. Each of you, however, has been found not guilty of inflicting the injuries to which I have referred, either as a principle or on the basis of complicity.  That is, you are all being sentenced on the basis that while you participated to some degree in the affray, you are not criminally liable for the injuries to which I have referred.

6The seriousness of the affray globally is informed by matters such as duration, the number of participants, whether weapons were used and injuries sustained. 

7The jury was satisfied that a bystander of reasonable firmness and courage might reasonably have been expected to be terrified and a number of witnesses gave evidence in support of that proposition.  Apart from the incidents which founded the injury charges, the prosecution, as regards the affray, relied upon a ‘show of force’ on the roadway and what was described on numerous occasions as ‘a formation’, as well as the use of force, as per your records of interview.

8Mr Achor, in your record of interview, you described attending the scene and approaching the Taylor house.  You told police you broke a branch from a tree when you saw that people from the opposing group were armed.  You then handed that branch to one of your companions.  You denied being involved in any fighting or any display of force thereafter. 

9Your counsel submits that it is likely that you were found guilty by the jury on the basis of complicity.  That is, that by passing the branch to another, you acted to encourage or assist other parties in the fighting that followed.  I note that there is no evidence that fighting had commenced at the time you passed the branch to another person in your group.

10Mr Atem, you said in your record of interview, firstly, that you punched someone in the back after you were struck to the arm, with what you thought was a piece of wood.  You also said you thought that you threw a stick at Josh while Josh was still standing.  You denied that you had seen Josh on the ground or being assaulted.  You said further, in relation to the tree branch, that you threw it into the group. 

11As regards the charge of handling stolen goods, that charge was found proven on the basis of your retention of debit card, which I accept you had found in your vehicle subsequent to leaving the scene and other occupants of the vehicle alighting.  You briefly maintained possession of it.  There was no attempt to use the card in relation to any associated criminal activity.  This is an offence at the lower end of the range.

12Mr Ngong, in your record of interview, you at all times maintained that your group was unarmed and that the other group had come towards you with weapons.  You said that you had not gone there to fight and did not take anything with you.  You told police you had picked up a broken bat and got hit.  You said you did not want to fight with anyone.  You told police, as soon as fighting started, you got hit.  You picked up a bat, or part of it, and you got smacked again.  You described fighting with Bradley, but said, "It was just me and him smacking each other".  As regards the incident with the pipe, I note that you have been found not guilty and I act on that basis.

13In relation to Bradley, you said you probably hit him six or seven times and then you said, "Probably like nine times", but you said that you were hitting him in places that were not going to hurt him.  You said, "It was neck down, that's all.  I wasn't going any higher".  You said you were hitting him to the legs and back and that, "This guy was just hitting me and his main aim was to hit me in the head.  That's how the first bat broke on my hand".  You said it was only Bradley you fought with and that you did not fight with anyone else.

14In order to find the charge of affray proven, the jury had to be satisfied that the display of force or fighting in which you each engaged was unlawful.  That is, without lawful justification or excuse, which means the jury were satisfied beyond reasonable doubt that you were not acting in self-defence when you engaged in the acts which found the charge of affray.  You are to be sentenced on that basis. 

15The affray globally is a serious example of this offence, noting of course that it carries a maximum penalty of five years' imprisonment.  Your role is to be assessed having regard to the jury's verdicts of not guilty in relation to a number of aspects of the incident that occurred, that is, your role in the offending must be seen and your culpability assessed taking into account the jury's verdicts of not guilty.  To do otherwise would be to deny you the full benefit of those verdicts.

16I do not accept, for the purposes of sentencing, that what occurred was premeditated by any of you, rather than a situation which evolved.  I think it is clear that the complainants' group played a significant role in what occurred, which included arming themselves from an early stage.  That, of course, does not excuse your actions, but does provide some context. 

17Mr Atem, the handling stolen goods charge is clearly, as I have said, at the lower end of the range.  And Mr Ngong, in relation to the charge of criminal damage, which was the subject of a plea, I note that it relates to a broken window and again, it could not be described as an upper end of the range offence. 

18I have received three victim impact statements, which were the subject of discussion upon the plea.  The statements of both Joshua Lim and Shane Taylor were prepared prior to trial and thus do not reflect the limited basis upon which you have been found guilty.  Similarly, Bradley Edmondson's statement exceeds the matters upon which you are to be sentenced. I have thus had regard to those statements, to the extent that they are relevant and admissible in sentencing you.  What is clear, however, is that the affray itself has had a significant impact upon both Shane Taylor and Bradley Edmondson.  There has been a psychological sequelae and ongoing trauma. As regards Joshua Lim, his injuries were life-altering and tragic.  Nobody should endure injuries of this type.  The injuries were caused during the affray, but again I note, you are to be sentenced on the basis that you were not complicit in causing this serious injury, or indeed any of the injuries to either Shane or Bradley. 

19I turn to your personal circumstances. 

20Deng Achor, you are now aged 21.  You were 18 at the time of your offending.  You have no prior criminal history.  There is a subsequent shoplifting matter, which in my view, does not affect your prospects of rehabilitation. 

21By way of background, you were born in Sudan and moved to Egypt with your family before arriving in Australia.  While in Egypt, when you were aged six, you suffered a head injury and amnesia when you were struck by a car.  You received further treatment for these injuries upon arrival in Australia, however,
I note that no medical material was available at the date of the plea in relation to either those injuries or their ongoing impact upon you. 

22You had never been to school until your arrival in Australia and despite that, you successfully completed Year 12 VCAL.  You were working in fencing at the time of this incident and you have maintained steady employment prior to that as a bricklayer.  You live with your mother and contribute a large proportion of your weekly earnings to household expenses.  I have been told that you remain an ambitious young man and that you are hardworking. 

23Mading Atem, you are now aged 20.  You have no prior criminal history.  You were 18 years old at the date of this incident.  You have a number of subsequent appearances before the criminal courts.  On 8 March 2018, you were fined, without conviction, in relation to theft, bail offences and other offences in relation to unregistered motor vehicle.  On 10 September 2018, you were fined, with conviction, in relation to driving offences, a bail offence and possession of a small quantity of cannabis.  These are not prior matters for the purposes of sentencing and in my view, they do not alter your prospects of rehabilitation or what is required to achieve that.

24By way of background, you too were born in the Sudan and you left for Egypt when you were five.  You arrived in Australia in 2003.  You continue to live at home with your parents, your five brothers and two sisters.  You finished your VCE at McKillop Catholic Regional College in 2016.  You were accepted into further education of RMIT.  You have not yet elected to pursue higher studies, but you hold some ambition to return and obtain tertiary qualifications in the future. 

25You have maintained steady employment since leaving school. Most notably, you had been employed at Aaron's Outdoor Living as a landscape labourer since October 2017, until about January this year.  You failed to appear on this matter on an occasion when you were working in a country town.  You were unemployed from January to last week and I was told upon your plea that you have now secured a full-time apprenticeship in commercial flooring, which will take you the next four years.  Your usual hours are to be 7.30 am to 3.30 pm and you need to be available six days' a week.  This is a significant step in your future.

26I am told that you still have ambitions to study civil engineering.  Your counsel noted that you have been an active and accomplished sportsman throughout your teenage years.  You have played at senior levels, including at State level.

27Angoy Ngong, you have admitted the contents of a criminal record which discloses numerous appearances before the Children's Court, dating back to 26 February 2013.  At that time you were, without conviction, released on a youth supervision order for eight months in relation to charges including burglary, theft, robbery, attempted robbery and trespass.  You breached that order and on 23 October 2013, the breach was proven.  You were again released on a youth supervision order for a period of ten months. On that same date at the Melbourne Children's Court, you were, without conviction, released on a youth supervision order for ten months in relation to the offences which were the breaching offences and included robbery, intentionally causing serious injury, recklessly causing injury, obtaining property by deception, theft, assaulting an officer, possession of stolen goods, burglary and criminal damage.  This offending then occurred on 18 February 2016.

28I have been advised of a number of appearances subsequent to that date, which are, of course, relevant in terms of your prospects of rehabilitation and what is required to achieve that.

29On 3 August 2016 at the Melbourne Magistrates' Court, you were sentenced to be detained in a youth training centre for 12 months in relation to charges including false imprisonment, threat to kill, intentionally causing injury, unlawful assault, persistent contravention of a family violence intervention order, theft and bail offences. 

30On 4 October 2016, you appeared at the Melbourne Children's Court and you were, without conviction, fined in relation to handling or receiving stolen goods.  The following day, on 5 October 2016, at the Sunshine Magistrates' Court, you were sentenced to be detained for one month in relation to charges including burglary, theft, contravening an intervention order, resisting police, trespass, unlawful assault and driving matters. 

31On 26 May 2017 at the Melbourne Magistrates' Court, you were sentenced to be detained for three months on charges of intentionally damaging property and persistent contravention of a family violence order. 

32It is relevant that you have committed no further offences since completing youth parole in November of 2017.

33You are now aged 21.  You too were born in the Sudan in 1997 and you lived in Khartoum.  Your father tragically died when he was shot when you were five and you subsequently left the Sudan for Egypt in 2003 with your mother and siblings.  You arrived in Australia in 2005 and you were granted citizenship in 2007.  You attended Manor Lakes Secondary College for Years 7 to 10.  You then completed Year 11 at Wyndham Central.  You have performed a number of short-term jobs since leaving school, but more recently found employment in landscaping.  

34You are currently co-parenting your two sons, one is aged two and there is a younger child.  You have the support of Wombat Housing and support services that are provided by that organisation.  You are described by your case worker as an intelligent, amicable and articulate young man, who in her opinion, will thrive if you continue to take positive steps forward.  Your efforts in relation to drug abuse have been significant and it seems substantially successful.  You were residing in accommodation with your brother, but I was told upon the date of your plea, that you have both recently returned to live with your mother. 

35I note that you had offered to plead guilty to the charges upon which you have now been convicted, at a very early stage, but that offer was rejected by the prosecution.  You are entitled to a discount based upon that offer. 

36As regards parity, I note for completeness, that two of your co-offenders were dealt with in the Children's Court.  Deng Deng was 16 at the date of the offending.  He, it seems, was filming what was occurring.  He pleaded guilty to two charges of recklessly causing injury, assault in company and affray.  He was placed on a bond to be of good behaviour. Yaya Hagurgashi was 17 at the time and was sentenced in the Children's Court to a 12 month youth supervision order in relation to a single charge of affray. The principles of sentencing are, of course, very different in the Children's Court and parity has limited application in these circumstances. 

37As well as matters personal to each of you, I must have regard to relevant sentencing considerations.  General deterrence must be given weight in matters of this type, as the offending has consequences for members of our community.  We all have a right to live safely in our communities and you significantly compromised that right by this kind of offending.  Your sentence must manifest the community's denunciation of your conduct and impost just punishment. 

38In each case your youth or relative youth is an important sentencing consideration.  You were all aged 18 at the time of the offending and thus, at the lower end of the range for young offenders to be sentenced in this court.  The community must maintain a real interest in your rehabilitation, as that is the community's best protection into the future.  In these circumstances, your rehabilitation, in my view, in each case, should be given significant weight, reducing the usual weight which would be afforded to general deterrence in these circumstances.

39Would you all stand please.

40Deng Achor, on the charge of affray, you are convicted and placed on a community correction order for 18 months.  You are to perform 140 hours' unpaid community work over the period of the order.  You are to report to the Werribee Office of Corrections within two clear working days of the making of this order. 

41Mading Atem, on the charge of affray, you are placed on a community correction order for 18 months.  You are ordered to perform 140 hours' unpaid community work.  You are to report to Werribee Office of Corrections Centre within two clear working days of the making of this order.  On the charges of handling stolen goods and failing to answer bail, you are convicted and fined an aggregate amount of $500. 

42Angoy Ngong, in my view your circumstances are to be differentiated on the basis of your criminal history.  On the charge of affray, you are convicted and sentenced to be imprisoned for 43 days.  I order that 43 days be reckoned as served.  You are thereafter placed on a community corrections order for
18 months.  You are to perform 140 hours' unpaid community work.  You are to be under the supervision of the Office of Corrections and you are to participate in programs to reduce offending.  You too are to report to the Werribee Office of Corrections within two clear working days of the making of this order. 

43In relation to the charges of criminal damage and failing to answer bail, you are convicted and fined an aggregate amount of $600.  Because you pleaded guilty in relation to the criminal damage, I am required to state that, but for that plea of guilty, I would have fined you an aggregate amount of $900. 

44The prosecution seek forensic sample orders in relation to you, Mr Achor, and you, Mr Atem, they already having possession of a sample in relation to you, Mr Ngong.  Neither of your counsel oppose the making of this order.  I make the orders in the terms of the draft, being satisfied that the seriousness of your offending warrant the making of the order and that it is in the public interest. 

45In each case, pursuant to s.464ZF(2) of the Crimes Act, you are each directed to undergo a forensic procedure for the taking of a scraping of the mouth and/or blood sample, in accordance with Subdivision 30A of Part 3 of the Crimes Act, until a sample of sufficient standard is obtained for placement on the database.

46I further direct, pursuant to s.464ZF(2)(a), that for the purposes of undergoing the procedure, you are to report to the officer in charge of the Werribee police station at 134 Princess Highway, during the period of four weeks, commencing 28 days after the date of this sentence, or once any instituted conviction appeal is finally determined and the conviction for forensic sample offence is upheld, whichever is later.

47Thank you, just excuse me for a moment. 

48Thank you.  Each of you can have a seat.  Some documentation needs to be prepared. 

49Counsel, is there any factual matter which needs to be corrected? 

50COUNSEL:  No, Your Honour.

51HER HONOUR:  Thank you.  Each of you should approach with my associate and have the CCOs signed please. 

52Thank you.  Would you all stand again please.

53I am required to inform you that if you breach these orders, you will be brought back before me.  It is not a question of you whether were busy, whether you had work that day. This is what stands between you and a more significant penalty being imposed.  So make sure that you discuss with your counsel before you leave court today what your obligations are.  It is not for Corrections to chase you, you need to present yourself at Corrections as required and you need to participate as directed. 

54Yes, is there anything further? 

55COUNSEL:  No, Your Honour.

56HER HONOUR:  All right.  I have got a 10.30, so I will excuse all of you.  Thank you.

57COUNSEL:  As Your Honour pleases.

58HER HONOUR:  Is it only 20 past?  No, I will stand down.  Thank you.   

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