Director of Public Prosecutions v Akok
[2021] VCC 1795
•10 November 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-01766, CR 21-01668, CR 21-01762,
CR 21-01763, CR 21-01666, CR 21-01667
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GOCH AKOK, GATWECH PAL, SAM NIMIR, MOSES LAULA, TABAN KOR, KEAK DIU |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 & 8 October 2021 |
DATE OF SENTENCE: | 10 November 2021 |
CASE MAY BE CITED AS: | DPP v Akok & Ors |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1795 |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Violent disorder - being armed with knife with criminal intent – affray - commit indictable offence whilst on bail.
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:
Sentence:AKOK: 18-mth CCO
PAL:14 mths & 24 days’ YJC, 10 mths & 24 days’ cumulative on current sentence
NIMIR: 32 days’ imprisonment (=PSD) + 20-mth CCO
LAULA: 16 mths’ YJC, 12 months cumulative on current sentence
KOR:18-mth CCO
DIU: 243 days’ imprisonment (=PSD) + 18-mth CCO
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APPEARANCES: | Counsel | Solicitors |
| For the DPP at hearing For the DPP at sentence | Ms K. Hamill Ms M. Heap | Office of Public Prosecutions |
For Accused Akok | Ms S. Brookes-Miller | Ajak Wolan & Associates |
For Accused Pal | Mr D. Rofe | Chester Metcalfe & Co |
For Accused Nimir | Mr T. McCullough | Bowler Man & Co |
For Accused Laula | Mr L. Cameron | Stary Norton Halphen |
For Accused Kor | Ms M. Walker | Melinda Walker |
For Accused Diu | Mr M. Kozlowski | Unite Legal |
HIS HONOUR:
1Keak Diu, Taban Kor, Moses Laula, Sam Nimir, Gatwech Pal, you have each pleaded guilty to a charge of violent disorder. Moses Laula and Gatwech Pal, you have each also pleaded guilty to a charge of being armed with a knife with criminal intent. Goch Akok, you have pleaded guilty to a charge of affray. Keak Diu, Moses Laula and Gatwech Pal, you have each also pleaded guilty to a related summary offence of committing an indictable offence whilst on bail.
2The maximum sentence for the offence of violent disorder is imprisonment for 10 years. The maximum sentence for the offences of being armed with criminal intent and affray is imprisonment for five years. The maximum sentence for the offence of committing an indictable offence whilst on bail is imprisonment for three months or a fine of 30 penalty units.
3The circumstances of the offending are well-described in the prosecution opening on plea, which was Exhibit A on the plea hearing. The facts set out in Exhibit A were not in dispute. They may be summarised as follows.
4On 6 March 2021, a young woman made an Airbnb booking for the long weekend of 6 to 8 March 2021 for a short-stay accommodation situated at 2509/200 Spencer Street in Melbourne. On Sunday evening, 7 March and into the early hours of 8 March 2021, a number of invited guests attended the apartment to celebrate her 19th birthday. During the same period, a number of people who had not been invited arrived at the party, leading to a total of 50 or more young people attending.
5Amongst those attending were all of the offenders and the victims in relation to this matter. Other than the host, no one in attendance at the party, whether invited or otherwise, has made a statement to the police. The evidence of what occurred is therefore limited to what can be derived from CCTV footage and three short video recordings obtained from a mobile phone of one of those present.
6CCTV footage obtained from 200 Spencer Street showed multiple groups of young people arriving at the building from approximately 1 am to 1.50 am on
8 March 2021 and proceeding to the apartment on Level 25. The victims’ group arrived at about 1.12 am. Akok and Nimir arrived at approximately 1.40 am. A co-offender, a juvenile offender to whom I will refer throughout as “Offender J”, arrived a short time later. A group of males which included Diu, Pal, and Laula arrived with two co-offenders not charged on this indictment at about 1.50 am. Kor's arrival was not captured on CCTV.7At 2.08 am, a number of males entered the lift on the 25th floor and a fight commenced. The fight was captured on CCTV. The victims’ group of about five young males was the first to enter the lift, and initially appeared to be engaged in discussion with a larger group of males located outside the lift. The discussion became animated. After about a minute, the larger group attacked the victims’ group. The victims’ group members were pushed to the back of the lift, and for the next four minutes attempted to fight off the other males. Members of the victims’ group produced knives, which initially caused the larger group to retreat from the lift, before various members of the larger group re-entered the lift and lashed out at the victims’ group before retreating. There were several such waves of attack before the victims managed to shut the doors of the lift.
8Each of the offenders had a common goal to assault and injure the victims’ group. They achieved their goal. As a consequence, three members of the victims’ group were injured.
9Akok and Nimir were present outside the lift at the initial stages, before the incident became physical. Once the fight commenced, both entered the lift. Akok placed his hands around the neck of one of the members of the victims’ group and attempted to pull him out of the lift. However, the press of people entering the lift behind them pushed them both towards the back of the lift. Akok remained at the back of the lift for approximately 45 seconds, largely outside the range of the CCTV, before he was pulled out of the lift by a member of the larger group.
10While he remained in the vicinity of the lift thereafter, he did not re-enter the lift, and that essentially is the conduct which leads to the charge of affray, Charge 4 on the indictment against Goch Akok.
11Nimir was one of the initial aggressors, entering the lift and pushing the victims’ group. He engaged in a verbal exchange with one of the victims’ group while holding his chest, and twice punched at the victims’ group. He was ejected from the lift after approximately one minute. He re-entered the lift on two further occasions.
12Pal also entered the lift as part of the initial group. He was pushing and verbally engaging with the victims, standing alongside Nimir and holding onto the collar of one of the victims, before he was pulled out of the lift approximately
40 seconds later. He, too, re-entered the lift on further occasions.13After the victims’ group produced knives, the larger group retreated from the lift and the lift doors started to close. However, they were forced open by members of the larger group, and an unknown male wearing a black baseball cap and purple t-shirt re-entered the lift armed with a knife, kicking and gesturing towards the victims’ group.
14Pal re-entered the lift also armed with a knife; that relates to Charge 3 against him of being armed with criminal intent. He thrust the knife towards the victims’ group. Nimir re-entered the lift and kicked and punched at the victims’ group. He remained in the lift for approximately 15 seconds, punching again as he left. He returned to the lift approximately 30 seconds later, but was jostled and ejected shortly afterwards.
15Around this time Pal entered the lift and punched at the victims’ group a couple of times, and Laula entered and also punched towards the victims’ group, before being pulled backwards out of the lift. Diu first entered the lift during this second attack, briefly kicking and punching at the victims’ group before also being forced backwards out of the lift. About 10 seconds later, most of the large group moved out of the lift. Diu re-emerged and swiped towards the legs of the victims’ group, before leaning back and kicking at them twice.
16Taban Kor, who had been part of the initial press of people near the victims’ group at the start of the altercation before being ejected from the lift,
re-entered, and executed a flurry of punches towards the victims’ group. At some point during that exchange, Kor sustained multiple stab wounds to his abdomen. He removed himself from the lift, while other members of the group continued to strike at the victims’ group.17Nimir had also re-entered the lift at this juncture. He delivered a flurry of punches and a kick towards the victims’ group followed by another flurry of punches, before he was ejected from the lift by other members of the larger group. Most of the larger group then retreated from the lift; however, an unknown male wearing a red top entered the lift and punched towards the victims’ group. Laula then re-entered the lift and kicked out at the victims’ group five times, retreating as the lift doors again began to close.
18Pal again re-entered the lift, leaning over the victims’ group and making several stabbing motions with a knife. By this stage, one of the victims’ group had fallen and remained seated on the floor of the lift for the rest of the incident. The lift doors were again forced open, including by the male in the red top. He walked back into the lift and gestured and punched at the victims’ group.
19Diu re-entered the lift and punched six times at one of the members of the victims’ group before being pulled back to the lift entrance. Laula also re-entered the lift and kicked and punched at the victims in the corner of the lift. During this time, a number of females were seen entering the lift, attempting to physically remove members of the larger group.
20After Diu left the lift, Laula remained inside. Offender J entered the lift holding a knife in his left hand which he thrust towards the victims’ group. Laula then took the knife from his hand, which gave rise to Charge 2 on the indictment of being armed with criminal intent, and then stabbed the knife into the victims’ group.
21The lift doors finally closed at 2.13 am, and the victims then left the area.
22A number of days after the offending, police arrested an associate of the offenders for unrelated matters. His phone was seized and analysed; it contained three short videos showing aspects of the offending, two videos showing the early stage of the offending, and a third taped with the word, 'Monday' showing the latter stages, with Pal striking at the victims’ group, who were then cowering at the back of the lift. The person shooting the videos is heard chanting, 'NGS', which stands for, 'Next Gen Shooters', a gang. In the final video, another person is heard repeatedly shouting, 'Stab them'.
23Those videos and the CCTV footage from inside the lift were played to the court during the plea hearing. Each of the offenders could be identified and could be seen playing the roles in the offending which I have endeavoured to describe.
24At approximately 3.50 am, members of the victims’ group presented to the Werribee Mercy Hospital with stab wounds. All refused to provide formal statements to police; however, each of them provided false accounts to police who attended at the hospital.
25One presented with a laceration to his right upper inner thigh but left the hospital before being assessed by a doctor. He initially said he had been injured at a party in Melbourne, before saying he and two companions were jumped by groups of males wearing balaclavas on an unknown street near the Westgate Bridge. He said he did not know how many offenders there were or how he was stabbed.
26Another victim presented with superficial lacerations to his left knee and right palm. He also left before being assessed by a doctor. He told police that at approximately 2.30 to 3 am, he and two other males had left a party at an Airbnb in Hoppers Crossing, and were jumped by a group of males, 17 to 19 years of age, of Pacific Islander appearance, one of whom produced a pocketknife and stabbed them.
27A third victim said he was walking in Hoppers Crossing, looking for an Airbnb party. He was walking alone but his friends were close by, when he was approached by three or four males of Pacific Islander descent who were drunk and yelling at him. He said he was punched to the face, lost consciousness, and was then stabbed. He presented with an eight-centimetre laceration, consistent with infliction of a wound by a sharp object, which extended from the mid-dorsum of the left hand down to the space between the second and third fingers, and which extended deep into the muscles. The wound was cleaned and the muscles sutured, and the skin then sutured closed. The arm was put in a sling.
28Police had been called to the apartment at approximately 2.10 am by the night shift officer at 200 Spencer Street. The officer who had attended at the apartment earlier in the evening in response to a noise complaint from the apartment above had also notified police earlier in the night when it became clear that more than the permitted number of visitors were present in the apartment. He reported the fighting in the lift when he saw the incident on the CCTV.
29Police also received a call from a resident who could hear the incident from his apartment on the 37th floor. A further call was made to 000 by an unidentified female in relation to a male who had been stabbed.
30Attending police located Kor outside in Spencer Street, with multiple stab wounds to the torso. He was conveyed to the Royal Melbourne Hospital, where his condition was assessed as critical, and he underwent surgery.
31The area outside 200 Spencer Street, the lift lobby and apartment 2509 were established as crime scenes and processed. Significant areas of blood-staining and several knives were located.
32Approximately half an hour later, police were notified that you, Diu, had presented at the Royal Melbourne Hospital with a slash wound to your chest. You refused to cooperate with investigators. Police later confirmed from CCTV sources throughout Melbourne and from mobile phone downloads, which included photographs of various offenders at 200 Spencer Street and at locations near that address, that each of you had attended the CBD at the relevant time. Several of you were also depicted leaving the scene, both on foot and in vehicles. Relevantly, you, Akok, were observed on Safe City cameras leaving the scene in a black Mitsubishi registered in your name.
33On 12 March 2021, investigators executed search warrants at addresses connected to several of the offenders, including you Laula, you Nimir, and you Akok. Officers located various items of clothing and footwear matching the description of the clothing observed in the CCTV footage at the time of the offending.
34On the same date, a search warrant was executed at an address connected to you, Pal, and an Optus mobile phone was seized. A warrant was executed at an address connected with you, Diu, and an Apple iPhone was seized. An Apple iPhone belonging to you, Kor, was seized following a search warrant executed on the Royal Melbourne Hospital.
35On 16 March 2021, the Mitsubishi vehicle used by Akok was seized from the driveway of your residence, Akok. Bloodstained clothing and shoes were found in the boot, which matched the description of those worn on the night by you, Akok. You were also forensically linked to the vehicle by fingerprints.
36On 17 and 18 March 2021, investigators executed search warrants at Monash Medical Centre and the Royal Melbourne Hospital and obtained records showing the following:
(a)that you, Diu, attended the Royal Melbourne Hospital at about 3.02 am on 8 March 2021 with a superficial stab wound approximately
5 centimetres long to your chest;(b)that you, Akok, attended Dandenong Hospital at about 3.35 am on 8 March 2021 with a wound to your right hand which required three stiches to a finger and three stitches to your palm - you told hospital staff the injury was caused by a fall while you were running;
(c)that you, Laula attended Dandenong Hospital on 11 March 2021 with a fracture to the ring finger metacarpal shaft of your right hand, which you stated was from jamming your hand in the car door - while it is possible a crush injury caused the fracture, punching injuries often account for fractures of that bone;
(d)that you, Pal attended Casey Hospital on 11 March 2021 with a 10-centimetre-long wound to your right leg, telling hospital staff the wound was from 'broken glass' and was about a day and a half old - the wound, which was most likely the result of sharp trauma with an object such as a knife or a shard of glass, was cleaned and sutured, and you were discharged on antibiotics.
37Each of you was interviewed by the police. Pal, Nimir, Laula, Akok and Diu, you all declined to comment when asked about the incident.
38You, Kor, provided the following account. At approximately 9.40 pm on 7 March 2021, you attended the Relapse Nightclub with your cousin and a friend. You stayed at Relapse for three hours then your group, along with another friend, attended a birthday party on Spencer Street that you had been told about by a friend. You were led upstairs by a couple of girls who had come downstairs. After approximately 30 minutes 'chilling and listening to music' in the apartment, you heard arguing coming from the area of the lift. You approached the lift and saw approximately six to seven people arguing outside the lift, with the same number of people inside the lift. You said you were not involved in that you did not know what was going on and did not think they were going to do anything to you. So, you went to enter the lift to go downstairs to collect an associate. When in the lift, you felt vulnerable due to the way people were looking at you. You did not know the people in the lift, and none of them had said anything to you, and you did not say anything to them. But you thought they looked like they were going to swing at you. So, after having been in the lift for 'about a minute', you swung your arms twice. You said the swings did not connect. You later said you were not the first to have thrown a punch, but you did not see who threw the first punch. You were then stabbed three times to the abdomen. You received a slash injury to the back of your head and immediately got out of the lift. You then retreated to the apartment before catching the lift downstairs. You left the building and were transported to hospital via ambulance shortly after.
39Following your arrest and remand, you, Diu, made a series of calls from custody which were recorded using the Arunta system. In the calls, you made reference to having, 'cleaned everything off your phone' because you knew that “they” (which the prosecution says is a reference to “police”) were going to come. In one call, you informed associates that when you heard police at the door (which the prosecution says is a reference to the attendance by police on 12 March 2021) you grabbed and hid your phone.
40Each of the matters other than yours, Akok, resolved at committal mention stage. Your matter, Akok, resolved following a contested committal. I intend to treat all of you as having offered pleas of guilty at the earliest reasonable opportunity.
41Nine people were charged in connection with the incident. The matters of two of those charged have proceeded to a contested committal hearing. Another participant to the offending, Offender J, was 17 years of age at the time of the offending. He pleaded guilty in the Children's Court on 25 August 2021 to violent disorder and possessing a controlled weapon without excuse. He was sentenced by that court on 28 September 2021 for those and several other unrelated offences to an aggregate sentence of 15 months’ detention in a Youth Justice Centre. He also had a substantial prior criminal history.
42I pause here to say that the circumstances relevant to the sentence imposed on Offender J do not provide much assistance in determining parity of sentence with or amongst the six offenders before me.
43No victim impact statements have been submitted.
44Turning to matters personal to each of you, commencing with you, Diu.
Keak Diu
45Your counsel provided me with an outline of plea submissions dated 5 October 2021; a report from Carla Ferrari, psychologist, dated 23 July 2021; an undated letter from your aunt Nyaluet Yan; and an undated letter from the President of the Casey Titans basketball club who speaks well of you and of your contribution to and participation in that club. Those documents tell me much about your background and current personal circumstances.
46You were born in Sudan on 8 September 2001. You are now 20 years of age. You were 19 years of age at the date of the offending. You have no prior criminal history. You have three younger brothers. You came to Australia with your parents and brothers as refugees in 2005. Your parents separated in 2016 and your mother has since re-partnered. You apparently have a positive relationship with your stepfather.
47You completed Year 12 at school and were an average student. You obtained a floor-sanding apprenticeship upon leaving school, but that has been deferred as a result of the COVID pandemic. You commenced a job pallet-making at the start of 2021, but that was cut short by your being remanded in custody for this offending. Since 2019 you have also had experience working for an event decorating company run by your aunt, who speaks highly of your work ethic. She has offered you full-time work in that business upon your release from custody.
48Ms Ferrari opines that as at the date of your report, you were suffering from a major depressive disorder, and post-traumatic stress disorder in response to the injuries you sustained in the incident which gave rise to your offending. She went on to suggest that your offending involved an impulsive decision under the influence of alcohol, which you deeply regret. It was not suggested that Verdins principles apply, but I take into account your diagnosed psychological disorders in the general sense in determining sentence.
49I accept the submission of your counsel that you have sound prospects of rehabilitation. I intend to give you a full and appreciable measure of credit for your early indication of your plea of guilty in these COVID times. I also note that you have been in custody in the adult prison system under the unusually strained COVID regime under which prisons have been forced to operate. However, your admitted offending conduct deserves punishment and strong denunciation. I regard your role in the violent disorder as serious.
50You entered the lift on three occasions and participated by punching and kicking members of the victims’ group repeatedly. You had opportunities to desist and leave the melee which you did not take. You suffered a superficial
5-centimetre slash wound to your chest, for which you sought treatment at hospital shortly after the offending.51You have now been in custody in an adult prison for 243 days, not including today. I do not propose to order that you serve any further period of incarceration. Rather, I intend to impose a Community Correction Order with some punitive element, but with an emphasis on promoting your rehabilitation. You have been assessed as suitable for such an order; I will come to the details of the order that I propose to make and explain it to you in due course.
Taban Kor
52Turning next to you, Taban Kor. You are 20 years of age, having been born on 10 September 2001 in Sudan. You were aged 19 years at the time of the offending. You have no prior criminal record, and have no charges pending. Your counsel provided me with an outline of submissions and a report dated
19 September 2021 from Laura Fleming, psychologist. You live with your parents and grew up as the second eldest of six children in the Dandenong area. You were a satisfactory student at school and you obtained your VCE in 2019.53You commenced a business degree course at RMIT before you deferred as a result of difficulties arising from the COVID pandemic. You are employed by a labour hire company. You have no history of substance abuse; you have no diagnosed mental or psychological disorders. You told Ms Fleming that you had ceased contact with the people with whom you had attended 200 Spencer Street at the time of the offending. Ms Fleming noted that you expressed an intention to return to RMIT and complete your business degree. She stated that your risk of reoffending was low.
54I regard your prospects of rehabilitation as good. Your participation in the violent disorder was brief; your active role in the offending involved you entering the lift and throwing a flurry of punches towards the victims’ group. However, in doing so, you were stabbed multiple times by a member of the victims’ group and sustained life-threatening injuries. Fortunately, you were able to leave the lift and get yourself to Spencer Street, where you encountered attending police. You were then taken to the Royal Melbourne Hospital, where your condition was assessed as critical. You underwent surgery and I understand have made a full recovery.
55When questioned by police about the offending, you made admissions as to your participation. You were the only one of the offenders before me to do so. Your counsel urged me to make a Community Correction order without conviction. However, I regard your conduct as exhibiting deliberate and aggressive participation in the offence which assisted in furthering the violent assault by your group upon the victims’ group. In my judgment, your role was much too serious to permit me to make a non-conviction order.
56Having said that, I do intend to make a Community Correction order containing both punitive and rehabilitative components. I shall say more about the terms of the order when I come to make the proposed sentencing orders.
Moses Laula
57Turning to you, Moses Laula. You were born in Egypt on 7 July 2002 to Sudanese parents. You are now 19 years of age; you were aged 18 at the date of the offending. You and your family came to Australia as refugees in 2005 and settled in Noble Park. You have an older brother and three younger siblings. Growing up, you were a witness to your father's distressing violence towards your mother. Your parents separated in 2014.
58Your counsel provided me with a detailed written plea submission, psychological reports from Mr Guy Coffey dated 20 May 2021 and 3 October 2021, a supervised bail progress report dated 25 May 2021 and a pre-sentence report dated 9 June 2021. Also, a report from Youth Support and Advocacy Service.
59Your school performance was satisfactory until Year 9 when your attendance began to decline and you started smoking cannabis. Both your attendance and performance further deteriorated in Year 10 as you socialised increasingly with negative peers and you became further enmeshed in substance abuse. In 2009 you received a diversion order for an offence of assault, and you were required to engage with Youth Justice, and the Youth Justice Support Advocacy Service. In that year, your family moved to Doveton. You left school and commenced general studies at TAFE in Dandenong.
60By the time you engaged in serious offending on 6 August 2020, your life had become what Mr Coffey described as, 'dissolute and directionless'. You were sentenced for those offences in this court on 11 June 2021 to a Youth Justice Centre Order for a total of 26 months. You are currently serving that sentence.
61You spent three months on remand after your arrest for the 6 August 2020 offending, during which you received treatment for injuries received from being bitten by a police dog during your arrest. When you were released on bail, you initially engaged well with Youth Support Services but drifted back to your negative peer group. According to Mr Coffey, by the date of this offending, your life had again become, 'unstructured and directionless'. Nonetheless, based on the whole of the information before me, I am satisfied you have reasonable prospects for rehabilitation, and I treat rehabilitation as an important sentencing consideration.
62You do not suffer from any mental disorder and your substance abuse has been in remission since you entered custody. You are supported by your family and have demonstrated an ability to engage with Youth Justice Support Services.
I note that your bail was revoked on 12 March 2021 in relation to the matters for which you were sentenced on 11 June 2021. Again, you were incarcerated in the adult prison system. The time spent on remand was declared as time to be reckoned as served against the sentence on that date. You are entitled to the full measure of the credit which can be given for your early indication of your pleas of guilty.63Your role in the offending was serious. You entered the lift on three occasions, kicking and punching members of the victims’ group. On the last occasion you also took a knife being wielded by Offender J and stabbed into the victims’ group. Whilst it is right to say that you did not bring the knife to the melee, you used it aggressively and dangerously in a confined space with criminal intent. I regard that as a serious example of the offence in Charge 2 on the indictment; it is conduct which overlaps and goes beyond that reflected in Charge 1 and attracts additional punishment. I intend to avoid double punishment, that is, punishing you twice for the same offending conduct.
64Your counsel submitted that I should impose a further Youth Justice Centre Order. I have received a pre-sentence report dated 20 October 2021, which indicates you are suitable for detention in a Youth Justice facility. I intend to make such an order, and I will state the details when I come to pass sentence.
Sam Nimir
65Turning to you, Sam Nimir. Your counsel provided me with a submissions outline dated 7 October 2021, supervised bail progress reports dated 17 August 2021 and 6 October 2021, a report from Youth Support and Advocacy Service dated 6 October 2021, a letter from RMIT University welcoming and congratulating you on becoming a new student in 2021, and drug screening pathology reports on urine samples collected from you on 23 August, 3 September, 10 September, and 30 September 2021 respectively. All showed clear results save for the sample taken on 3 September which detected alcohol.
66You have admitted a prior court appearance at the Dandenong Children's Court on 20 November 2020 for a range of offences which included reckless conduct endangering serious injury. You were released without conviction on a
Youth Justice Supervision Order for a period of 12 months. You spent 32 days in custody in the adult prison system following your arrest for this offending. You were released on Youth Supervised Parole on 12 April 2021. You were then remanded in custody again on 19 June 2021 for other offending and were released on Youth Supervised Bail in relation to those matters on 26 July 2021.67You commenced a Bachelor of Information Technology degree course at RMIT on 28 August 2021. You have no mental health issues. It seems you have, at least in recent times, been cooperating and engaging well with Youth Justice and Youth Support supervisors, as well as abstaining from use of illicit drugs.
68You were born on 10 February 2003 of Sudanese parents and are therefore
18 years of age. You live with your parents and siblings in Dandenong North. You have a good relationship with your family, despite your parents and one of your siblings expressing dissatisfaction with your offending conduct. You are an obviously capable young man who has good prospects of rehabilitation.69Your role in the violent disorder was significant and serious. You were one of the initial aggressors entering the lift and pushing at the victims’ group. You
re-entered the lift on two further occasions, each time punching and kicking at the victims’ group. However, your counsel invited me to consider sentencing you to a Community Correction order. I received an assessment report dated 14 October 2021 which indicates you are suitable for such an order. I intend, subject to your ultimate consent, to make such an order and will address conditions when I impose sentence.Gatwech Pal
70Turning to you, Gatwech Pal. Your counsel provided me with written submissions and supplementary submissions dated 5 October 2021, a report from Jeffrey Cummins, psychologist dated 21 September 2021, a neuropsychological report from Laura Scott dated 15 February 2021, a pre-sentence report dated 26 March 2021 and a character reference letter from your father dated 5 October 2021.
71You have admitted one prior court appearance at the Frankston Magistrates' Court for contravening a conduct condition of bail, for which you were fined without conviction. You were, however, sentenced in the Children's Court on 7 April 2021 to a 20-month Youth Justice Centre Order with 73 days pre-sentence detention declared, for a range of serious offences which you committed on 6 August 2020 in company with your co-offender in this matter, Moses Laula.
72You are currently serving that sentence at Malmsbury Youth Justice Centre. You had been remanded in custody in the adult prison system upon your arrest for these offences on 12 March 2021. You remained in custody on those matters until you were sentenced on 7 April 2021 as I described earlier.
73You were born on 5 September 2002 in Tasmania of Sudanese parents, who had migrated to Australia that same year. Your parents separated when you were still living in Tasmania and both your mother and father re-partnered. You live with your mother, but have a good relationship with your father, who lives in Noble Park. It is not suggested by your counsel that Verdins principles apply to this sentencing process, although I note that you have been diagnosed as suffering from post-traumatic stress disorder arising from the circumstances of your arrest on 6 August 2020.
74You told Mr Cummins you were feeling guilty, embarrassed, regretful and remorseful about your participation in the violent disorder. You expressed interest in pursuing rehabilitative programs available through a Youth Justice Centre Order. I regard your prospects of rehabilitation as reasonable.
75I have now received a pre-sentence report dated 22 October 2021 which refers to you saying that you felt apologetic and ashamed about your role in the violent disorder. You are deemed to be suitable for detention in a Youth Justice Centre. Your counsel has urged me to make such an order, and I propose to do so. In crafting the order, I propose in addition to the pre-sentence detention, to give you substantial credit for your plea of guilty in these COVID times, and for the 36 days of Renzella time which does not fall within the description of
pre-sentence detention.76I note, however, that your role in the offending was significant. You were part of the initial group of aggressors who had entered the lift. When you entered for a second time, you were armed with a knife which you thrust at the victim group. You entered for a third time, punching at the victim group, and for a fourth time, when you again entered the lift and made several stabbing motions with the knife whilst leaning over other members of the victims’ group.
77Arming yourself with a knife with criminal intent in those circumstances, must be regarded as a serious example of that offence. It was calculated to add fuel to a rapidly developing fire and was highly dangerous conduct. It requires separate punishment. Its use in the violent disorder aggravates your role in that offence. Despite obvious overlap of the two offences, I intend to avoid punishing you twice for the same offending conduct.
Goch Akok
78Finally, turning to you, Goch Akok. Your counsel provided me with written submissions on your behalf dated 1 October 2021, a letter from Selba-Gondoza Luka, CEO and founder of the Afri-Aus Care (“AAC”) community service organisation dated 3 October 2021, and supervised bail progress reports dated 17 May, 11 June, 16 August, 30 September and 8 November 2021. That material provides a picture of your background history, and your good progress since being admitted to bail.
79You are 19 years of age; you were born on 12 March 2002 in an Egyptian refugee camp of South Sudanese parents. You came to Australia with your family in 2003. You are the youngest of seven children. Your family settled in the Dandenong area. You currently live at home with your mother and four of your siblings. In 2019, your father returned to South Sudan to visit extended family and has been prevented by the COVID-19 pandemic travelling restrictions from returning home. You found your father's absence difficult to deal with, and by March of this year you had been keeping bad company and experimenting with alcohol and drugs.
80Following your arrest for this offence, you spent 11 days in custody in the Melbourne Remand Centre before being released onto the Youth Justice Supervised Bail program. You were also linked to a support worker from the AAC organisation. Upon being granted bail, you began volunteering at the AAC community centre. You continue with that until 10 May 2021, when you obtained a full-time job at Jayco Caravans. You reported to Youth Justice that this employment provides you with 'structure, and routine, and a sense of purpose'. Your progress on your Youth Justice supervised bail has been very positive. You have engaged well with your case manager, and referral practitioners.
81When lockdown restrictions have permitted, you have been playing soccer for a football club in Springvale. I am told that since your release on bail, you have cut ties with your negative peers and have not associated with your
co-offenders. You have no prior criminal history. I regard your prospects of rehabilitation as good to very good. I suspect that you have learnt a stern lesson from your 11 days in custody.82Your role in the melee was less serious than that of any of your co-offenders. You were one of the first to enter the lift and confront the victims’ group. You placed your hands around the neck of one of that group and attempted to pull him out of the lift. After being pushed towards the back of the lift for about
45 seconds, you were pulled out of the lift by a member of the larger group. You did not re-enter the lift. You pleaded guilty to a lesser charge of affray. It is, nevertheless, a serious offence, and your actions were calculated to escalate the confrontation between the two groups in the very confined space within the lift. It requires punishment.83Your counsel urged me to deal with you by way of an adjourned undertaking, or a financial penalty. I do not regard either of those submissions as persuasive. Her alternative submission was that I impose a Community Correction Order. You have been assessed as suitable for such an order, and I intend to make such an order. I shall explain the terms and conditions in due course, but it will include a punitive condition for you to perform unpaid community work.
84I have also received a report from Forensicare arising from a mental health assessment of you made on 15 October 2021. There is no indication of current mental disorder, or any need for mental health assessment or treatment.
85Despite the progress you have made on Youth Supervised Bail, you were assessed by Corrections Victoria in a report dated 13 October 2021 as being,
'At high risk of general re-offending'. I therefore intend to attach rehabilitative and supervisory conditions to the order that I propose to make.86You are entitled, as are the other offenders before me, to significant credit for your plea of guilty, and in assessing the appropriate sentence I propose to take into account, in your case, the 11 days you spent in custody following your arrest.
General Sentencing Considerations
87Turning to general sentencing considerations, although the melee in and around the lift at 200 Spencer Street on 8 March of this year was relatively brief, the conduct of all of those involved was deplorable. It was a highly dangerous, violent confrontation between two groups of young men who were attending a so-called party at an apartment let to a young person by Airbnb in a high-rise apartment building.
88It was calculated to terrify any law-abiding citizen who might have been caught up in, or who witnessed, the incident. The volume and aggression in the voices of participants in the melee captured on mobile phone recordings which were played to the court, would have echoed through much of the building, to the alarm of any resident who heard it. You are all extremely fortunate that none of you were killed or suffered serious long-term injury.
89Indeed, you should also count yourselves as fortunate that no-one else was killed as a result of your collective offending. By initiating or joining such an uncontrolled and heated confrontation, with some of you using knives, you could all easily have been facing a charge of murder. I do not say that lightly, but I say it to impress upon each of you the seriousness of your conduct, and the possible consequences which might have been far worse than those you are facing today.
90In my judgment, this court is obligated to denounce such behaviour in very strong terms, and to impose sentences that are likely to deter others from similar conduct.
Parity
91The question of parity of sentencing between the offenders before me and with others convicted of similar offences in different circumstances is not an easy one. I have been referred to cases arising from a notorious riot at the Melbourne Remand Centre. Except in general terms, I have not found the comparison particularly helpful. It is to be expected that incidents such as this one will occur spontaneously and be of relatively short duration. They may, however, as in this case, pose a greater threat to the lives of participants or to innocent bystanders.
92I am acutely conscious of the ages of the offenders, and the need to promote their rehabilitation as strongly as the circumstances allow. In all cases, the sentences I intend to impose are directed at achieving an appropriate balance between the various and competing sentencing principles. I have endeavoured, with the considerable assistance of the prosecution analysis of the CCTV footage from the lift, to identify and distinguish between the roles played by each offender.
93I have also taken into account time already spent in custody by each offender, as well as their personal circumstances. I note in passing that there was no objection raised or no suggestion that the prosecution outline of the offending and the roles played by each was other than that described by the prosecution in the written opening.
94I shall now pass sentence upon each of you in turn.
Diu Sentence
95Keak Diu, for the offence of violent disorder, you are convicted and sentenced to imprisonment for 243 days.
96For the offence of committing an indictable offence whilst on bail, you are convicted and sentenced to imprisonment for 30 days, to be served concurrently with the sentence of 243 days.
97The total effective sentence is imprisonment for 243 days. I declare 243 days pre-sentence detention as time to be reckoned as served upon that sentence and deducted from it. So you will not have to serve any further time in custody. I order those facts be noted in the records of the court.
98It is my intention that you be released from custody immediately or as soon as can properly be arranged following the sentencing hearing. Mr Kozlowski and your instructing solicitor, if there is any difficulty with that, unless you are able to resolve that difficulty yourself, please contact me through my associate, and I will endeavour to ensure that the proper steps are taken to ensure that your client is released at the earliest available opportunity.
99MR KOZLOWSKI: Yes, thank you, Your Honour.
100HIS HONOUR: I also propose to make a Community Correction Order with conviction; having regard to the length of your pre-sentence detention, I do not propose to order that you perform any unpaid community work. The proposed terms of the Community Correction Order are directed at promoting your rehabilitation. I shall explain them to you.
101The order will be for 18 months, commencing on the completion of the term of imprisonment or detention which hopefully will be today. You must attend at the Cranbourne Community Correctional Services at 176 Sladen Street Cranbourne, Victoria 3977, and the phone number is 1300 292 936, within two clear working days after the commencement of this order. That attendance in these circumstances must be by phone with you communicating to the number I have just read out, and which will be written on the order that I am going to be asking you to sign.
102I am going to explain to you the mandatory terms of the order, which are:
· You must not commit an offence for which you could be imprisoned during the time that the order is in force. If you do, then you are liable to be brought back before this court and sentenced for breaching the order and re-sentenced for the offences to which you have pleaded guilty. It is likely to be before me, so I will have a clear recollection of these sentencing remarks and the circumstances in which you were sentenced today.
· You must comply with the requirements of regulation 17 of the
Sentencing Regulations 2011, which essentially sets out your obligations as to your attendance at the Community Correctional Centre - such things as not attending whilst drug or alcohol affected.· You must report to and receive visits from a Community Corrections officer.
· You must report to the Community Corrections Centre, that is the Cranbourne Centre, within two clear working days of the date stated. As I have already indicated, that is going to be by phone and must be within two working days of your release from prison.
· You must notify a Community Corrections officer of any change of address or employment within two clear working days after the change.
· You must not leave Victoria without first getting permission to do so from a Community Corrections officer.
· You must obey all lawful instructions from and directions of Community Corrections officers - such directions may be given orally or in writing.
103Now, I have read those conditions quite quickly, but do you understand those conditions? Yes. Thank you.
104Now, if you are ill, or if there are exceptional circumstances, the order may be suspended for a period of time, and if your circumstances materially alter you may apply for a variation or cancellation of the order. In either case you must notify the Community Corrections Centre, that is, the centre at Cranbourne, and I recommend that you obtain legal advice if any of those things happen.
105However, I must warn you that if you breach any condition of this order, you will be brought back before this court and probably before me. One of the options open to this court is to cancel the Community Correction Order and re-sentence you on the original charges. I must deal with you also for the breach of the order, which carries a maximum term of imprisonment of three months.
106So there are significant consequences for breaching the terms of the order.
107Do you understand the consequences of breaching your Community Correction Order? Yes.
108Now, there are some additional conditions, and I am going to ask you that same question again once you have heard those.
109In addition to the mandatory terms and conditions that I have read out, you will be subject to these conditions:
· you must be under the supervision of a Community Corrections officer for a period of 18 months;
· you must undergo assessment and treatment (including testing) for drug abuse or dependency, as directed by the regional manager;
· you must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager; and
· you must not contact or associate with any of your co-offenders charged on this indictment, or with your co-offender Offender J, for a period of 18 months, that is, the period of the order.
110Again, do you understand those conditions? And do you consent to be on that order, and do you agree to comply with the terms of the order. Thank you, all right. Well, now, the order has been signed by me and your agreement and consent has been obtained via audio-visual link. So it is treated as signed by you. Are you content with that? You will be supplied with a copy of the order that I have read out to you. Do you understand?
111Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to imprisonment for 20 months.
Kor Sentence
112Next, dealing with Taban Kor. On Charge 1 of violent disorder, I propose to make a Community Correction Order with conviction. The terms of the order I propose to make are as follows.
113The order will be for 18 months and it commences today, 10 November 2021 and ends on 9 May 2023.
114You must attend at the Dandenong Community Correctional Services at 46-50 Walker Street in Dandenong, Victoria 3175, and the phone number is (03) 8765 5222, within two clear working days after the commencement of this order, that is, by 4 pm on Friday.
115The mandatory terms are the same as those that I read out in relation to Mr Diu, but I am going to read them out again to you:
· you must not commit any offence for which you could be imprisoned during the time that the order is in force;
· you must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011, which essentially sets out your obligations as to your attendance at the Community Corrections Centre, such things as not attending drug and alcohol affected;
· you must report to and receive visits from a Community Corrections officer;
· you must report to the Community Corrections Centre within two clear working days of the order starting;
· you must let a Community Corrections officer know of any change of address or employment within two clear working days after the change;
· you must not leave Victoria without first getting permission to do so from a Community Corrections officer; and
· you must obey all lawful instructions from and directions of Community Corrections officers - such directions may be given orally or in writing.
116Do you understand and agree to those conditions?
117OFFENDER KOR: Yes, Your Honour.
118HIS HONOUR: Thank you. If you are ill or there are exceptional circumstances, the order may be suspended for a period of time. If your circumstances materially alter, you may apply for a variation or cancellation of the order. In either case, you must notify the Community Corrections Centre, that is the centre at Dandenong, and I recommend that you obtain legal advice if any of those things happen.
119However, I must warn you that if you are in breach of any condition of this order, you will be brought back before this court, and probably before me. One of the options open to this court is to cancel the Community Correction Order and re-sentence you for the original charge. I may also deal with you for the breach of the order by sending you to prison for anything up to three months. So, there are some serious consequences for any breach of the order. Do you understand those consequences?
120OFFENDER KOR: Yes, Your Honour.
121HIS HONOUR: I am now going to deal with the further terms of the order.
122The conditions that apply in addition to the mandatory terms are that:
· you must perform 120 hours of unpaid community work over a period of 18 months, as directed by the regional manager, and I order that 60 hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition - if you fail to comply with this order, the Secretary of the Department of Justice may give you a direction to perform additional hours of unpaid community work in accordance with the Sentencing Act;
· you must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the regional manager;
· you must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the regional manager;
· you must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager;
· you must not contact or associate with any of your co-offenders charged on this indictment, or with your co-offender Offender J, in the period of 18 months during which the order operates.
123Now, do you understand those additional conditions?
124OFFENDER KOR: Yes, Your Honour. Yes.
125HIS HONOUR: And do you consent to abide by an order in those terms?
126OFFENDER KOR: Yes, Your Honour.
127HIS HONOUR: All right. Well, I have signed the order, and you having given consent to the order being made, I treat the order as being signed by you, and it is therefore now in force. Do you understand?
128OFFENDER KOR: Yes, Your Honour.
129HIS HONOUR: Thank you.
Laula Sentence
130Dealing next with you, Moses Laula. On Charge 1 of violent disorder, you are convicted and sentenced to be detained in a Youth Justice Centre for
14 months.131On Charge 2 of being armed with a knife with criminal intent, you are convicted and sentenced to be detained in a Youth Justice Centre for 6 months.
132On the charge of committing an indictable offence whilst on bail, you are convicted and sentenced to be detained in a Youth Justice Centre for 30 days.
133I order that two months of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1.
134The total effective sentence is therefore 16 months' detention in a Youth Justice Centre.
135I order that 12 months of that sentence be served cumulatively upon the sentence of detention in a Youth Justice Centre you are presently serving.
136I am satisfied that no sentence other than detention in a Youth Justice Centre is appropriate. I believe you have reasonable prospects for rehabilitation, and that you would be the subject of undesirable influences in an adult prison.
137Pursuant to s6AAA of the Sentencing Act 1991, but for your pleas of guilty, I would have sentenced you to be detained in a Youth Justice Centre for
26 months.Nimir Sentence
138Dealing next with you, Sam Nimir. On Charge 1 of violent disorder, you are convicted and sentenced to imprisonment for 32 days. I declare 32 days pre-sentence detention as time to be reckoned as served on the sentence I have imposed, and that it be deducted from that sentence. I order that those facts be noted in the records of the court. You will therefore not be taken into custody for any further period of detention.
139Given your role in the violent disorder, I did consider imposing a further custodial sentence involving detention in a Youth Justice Centre, for which you have been assessed as suitable. However, I am persuaded that I can sentence you adequately by making a Community Correction Order, in addition to the sentencing order that I have already made.
140I propose to make a Community Correction Order with conviction for 20 months. In addition to the core conditions, I intend to order that you perform 180 hours of unpaid community work. I am going to go through similar details to those that I went through with your co-offenders a few minutes ago.
141What I propose is that the Community Correction Order be for 20 months, commencing today and ending on 9 July 2023.
142You must attend at the Dandenong Community Correctional Services, 46-50 Walker Street Dandenong, Victoria 3175, phone number (03) 8765 5222 within two clear working days of commencement of this order, which is by 4 pm on Friday. Again, I stress that that attendance must be by telephone. So you will be required to telephone that number that I have just read out, which will be on the order that you will receive, within two clear working days of the commencement of the order, that is, by Friday 4 pm.
143The mandatory terms that apply to all Community Correction Orders are that:
· you must not commit another offence for which you could be imprisoned during the time that the order is in force;
· you must comply with the requirements of regulation 17 of the Sentencing Regulations 2011 which set out your obligations as to your attendance at the Community Corrections Centre, such things as not attending drug or alcohol affected;
· you must report to and receive visits from a Community Corrections officer;
· you must report to the Community Corrections Centre at Dandenong Community Correctional Services by 4 pm on Friday of this week;
· you must notify the Community Corrections officer of any change of address or employment within two clear working days after that change;
· you must not leave Victoria without first getting permission to do so from a Community Corrections officer;
· you must comply with all lawful instructions and directions of Community Corrections officers - such directions may be given either orally or in writing.
144Do you understand and agree to those conditions?
145OFFENDER NIMIR: Yes, Your Honour.
146HIS HONOUR: If you are ill or if there are exceptional circumstances, the order may be suspended for a period of time. If your circumstances materially alter you may apply for a variation or cancellation of the order. In either case, you must notify the Community Corrections Centre, that is, the centre at Dandenong, and I recommend that you obtain legal advice if any of those things happen.
147However, I must warn you that if you breach any condition of this order you will brought back before this court, probably before me. One of the options open to me, or to the judge who deals with you, is to cancel the Community Correction Order, and re-sentence you on the original charge. The court must also deal with you for the breach of the order and may send you to prison for up to three months.
148Now, do you understand the consequences of breaching the Community Correction Order that I have just explained to you?
149OFFENDER NIMIR: Yes, Your Honour.
150HIS HONOUR: All right. Now, there are some further conditions of the order, which I am about to read to you.
151The conditions in addition to those mandatory terms are that:
· you must perform 180 hours of unpaid community work over the period of 20 months as directed by the regional manager, and I order that 90 hours of treatment and rehabilitation satisfactorily undertaken by you are to be counted as hours of unpaid community work for the purpose of the unpaid community work - in other words, if you satisfactorily perform the treatment and rehabilitation programs, 90 of the hours that you spend doing that can be deducted from the 180 hours that you would otherwise be required to perform by way of unpaid community work. If you fail to comply with this order, the Secretary of the Department or his or her delegate may give you a direction to perform additional hours of unpaid community work in accordance with the Sentencing Act.
· you must be under the supervision of a Community Corrections officer for the period of 20 months that the order runs;
· you must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the regional manager;
· you must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager;
· you must not contact or associate with any of your co-offenders charged on this indictment, or with your co-offender Offender J, for a period of 20 months.
152Now, do you understand all those conditions?
153OFFENDER NIMIR: Yes, Your Honour.
154HIS HONOUR: And are you willing to abide by the terms of those conditions, as well as the other terms of the order?
155OFFENDER NIMIR: Yes, Your Honour.
156HIS HONOUR: I take your agreement therefore, as having been given. Your consent to this order being given and I treat the order as being signed by you. I have also signed the order, and it is now in force.
157Pursuant to s6AAA of the Sentencing Act, I declare that but for your plea of guilty, I would have sentenced you to detention in a Youth Justice Centre for 20 months.
Pal Sentence
158Gatwech Pal, on Charge 1 of violent disorder, you are convicted and sentenced to detention in a Youth Justice Centre for 14 months.
159On Charge 3 of being armed with a knife with criminal intent, you are convicted and sentenced to detention in a Youth Justice Centre for 181 days, which is equivalent to six months but has to be expressed in days, rather than months, because of subsequent cumulation.
160On the charge of committing an indictable offence whilst on bail, you are convicted and sentenced to detention in a Youth Justice Centre for 30 days.
161I order that 24 days of the sentence on Charge 2 be served cumulatively upon the sentence on Charge 1.
162The total effective sentence is therefore 14 months and 24 days detention in a Youth Justice Centre. I make that order to take into account the Renzella time of 36 days imprisonment.
163I also declare 25 days pre-sentence detention as time served under the sentence that I have just imposed.
164I further order that 10 months and 24 days of that sentence is to be served cumulatively upon the sentence of detention in the Youth Justice Centre you are currently serving.
165I am satisfied that no sentence other than detention in a Youth Justice Centre is appropriate. I believe you have reasonable prospects of rehabilitation and that you would be subject to undesirable influences in an adult prison.
166Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your pleas of guilty I would have sentenced you to detention in a Youth Justice Centre for 24 months and 24 days.
Akok Sentence
167Lastly turning to you, Goch Akok. On the charge of affray, I intend to make a Community Correction Order with conviction. The terms of the order I intend to make are as follows.
168The order will last for 18 months commencing today and will end on 9 May 2023. You must attend at the Dandenong Community Corrections Services, 45-50 Walker Street, Dandenong, Victoria 3175, telephone number
(03) 8765 5222, within two clear working days after the commencement of this order, that being by 4 pm on Friday of this week. Of course, as I have said in relation to others, that attendance will not be in person. It will be via telephone to the number that is shown on the order.169The mandatory terms of the order are that:
· you must not commit another offence for which you could be imprisoned during the time the order is in force;
· you must comply with the requirements of Regulation 17 of the Sentencing Regulations 2011 which essentially sets out obligations as to your attendance at the Community Corrections Centre - such things as not attending that centre drug or alcohol affected;
· you must report to and receive visits from a Community Corrections officer;
· you must report to the Community Corrections Centre, that is Dandenong Community Correctional Services as I have indicated, by 4 pm on Friday of this week;
· you must notify a Community Corrections officer of any change of address or employment within two clear working days after the change;
· you must not leave Victoria without first getting permission to do so from a Community Corrections officer;
· you must obey all lawful instructions from and directions of Community Corrections officers - such directions may be given either orally or in writing.
170Do you understand and agree to abide by those conditions?
171OFFENDER AKOK: Yes, Your Honour.
172HIS HONOUR: If you are ill or if there are exceptional circumstances the order may be suspended for a period of time, and if your circumstances materially alter you may apply for a variation or cancellation of the order. In either case you must notify the Community Corrections Centre, that is, the centre in Dandenong, and I recommend that you obtain legal advice if any of those things happen.
173However, I must warn you that if you breach any condition of the order, you will be brought back before this court, probably me. One of those conditions open to this court is to cancel the Community Correction Order and re-sentence you on the original charge. That may well result in a term of imprisonment or a term in a Youth Justice Centre.
174The court would also deal with you for the breach of the order which carries a term of imprisonment up to three months. So, do you understand the consequences of breaching the terms of the order?
175OFFENDER AKOK: Yes sir.
176HIS HONOUR: I am now going to read to you the additional conditions of the order, in addition to the mandatory terms that I have already read out:
· you must perform 70 hours of unpaid community work over a period of 18 months as directed by the regional manager, and I order that 35 hours of treatment and rehabilitation satisfactorily undertaken by you are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition, that is, if you perform at least 35 hours of treatment and rehabilitation satisfactorily, you would only be required to undertake a further 35 of the 70 hours of unpaid community work the subject of the order. If you fail to comply with this condition, the Secretary to the Department or his or her delegate may give you a direction to perform additional hours of unpaid community work in accordance with the Sentencing Act.
· you must be under the supervision of a Community Corrections officer for a period of 18 months;
· you must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the regional manager;
· you must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the regional manager;
· you must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager;
· you must not contact or associate with any of your co-offenders charged on this indictment, or with your co-offender Offender J, for a period of 18 months.
177Mr Akok, do you understand the conditions of the order?
178OFFENDER AKOK: Yes, sir.
179HIS HONOUR: Are you willing to be bound by and comply with the terms of the order during the period of 18 months during which the order runs?
180OFFENDER AKOK: Yes.
181HIS HONOUR: In that case I take your understanding and your consent as having been obtained by this audio-visual link. I have signed the order and I now treat the order as being in force. Now are there any other matters or matters I need to correct from those sentencing orders or sentencing remarks, counsel?
182MR ROFE: Your Honour, it is Mr Rofe speaking.
183HIS HONOUR: Yes, Mr Rofe?
184MR ROFE: I noted in Your Honour's reasons with regard to the reference of PTSD, did Your Honour make a finding that he suffered from PTSD? Because neither of the reports opined that he had a diagnosis of PTSD. There was reference that he was receiving PTSD counselling, but that submission was not made because there was no diagnosis at hand in the materials. That is the only thing I bring to Your Honour's attention.
185HIS HONOUR: Thank you for pointing that out. It must have been the reference to the counselling that threw me off track there. I have to say, it would not have made any difference to the sentence that I made in your client's case, but as a matter of accuracy, I am grateful for you pointing that out, Mr Rofe.
186MR ROFE: Thank you, Your Honour.
187HIS HONOUR: I wish all of the offenders well for the future of their rehabilitation and hopefully all of you will make fine citizens in due course.
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