Director of Public Prosecutions v Al-Mandalawy
[2019] VCC 991
•27 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
CR-23-01227
CR-23-01432
Indictment No. C2315928
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DENG ABIEN PATRICK KON |
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JUDGE: | HER HONOUR JUDGE HASSAN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 November 2023, 4 April 2024, 18 June 2024 |
DATE OF SENTENCE: | 27 June 2024 |
CASE MAY BE CITED AS: | DPP v Abien & Kon |
MEDIUM NEUTRAL CITATION: | [2019] VCC 991 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – (Abien) prohibited person possessing a firearm (1 charge); discharge firearm at a vehicle (1 charge) and related summary offences. (Kon) theft of a motor vehicle (1 charge); discharge of a firearm at a vehicle (1 charge); reckless conduct endangering serious injury (1 charge) and related summary offences - plea of guilty – offending occurred in residential streets, discharge of firearm from moving vehicle.
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Worboyes v The Queen [2021] VSCA 169; R v Mills [1998] 4 VR 235; Bugmy v R (2013) 302 ALR 192; R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; DPP v McLean [2022] VCC 1454; R v McKee (2003) A Crim R 88; DPP v Doodt [2021] VCC 1584; DPP v Smiljanic [2020] VCC 495; DPP v Taylor [2019] VCC 2220.
Sentence:Total effective sentence (Kon) - 5 years and 2 months imprisonment with a non-parole period of 3 years and 6 months
Section 6AAA declaration: 7 years and 6 months imprisonment with a non-parole period of 5 years and 6 months
Total effective sentence (Abien) - 4 years and 7 months imprisonment with a non-parole period of 3 years.
Section 6AAA declaration: 6 years and 6 months imprisonment with a non-parole period of 4 years and 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Pickering | Office of Public Prosecutions |
| For the Accused Abien For the Accused Kon | Ms J. Hotchkin (plea) Ms S. Vardy (sentence) Mr J. James (plea) | Balmer & Associates Marshall Jovanovska Ralph Criminal Lawyers |
HER HONOUR:
1Deng Abien, you have pleaded guilty to one charge of being a prohibited person possessing a firearm for which the maximum penalty is a term of imprisonment of 10 years and one charge of discharge firearm at a vehicle for which the maximum penalty is a term of imprisonment of
15 years.2You have also pleaded guilty to related summary charges of possess cartridge ammunition for which the maximum penalty is 40 penalty units and commit an indictable offence while on bail for which the maximum penalty is three months' imprisonment or 30 penalty units.
3Patrick Kon, you have pleaded guilty to one charge of theft of a motor vehicle for which the maximum penalty is a term of imprisonment of
10 years; one charge of discharge a firearm at a vehicle for which the maximum penalty is a term of imprisonment of 15 years; and one charge of reckless conduct endangering serious injury for which the maximum penalty is a term of imprisonment of five years.4You have also pleaded guilty to related summary charges of drive in a manner dangerous for which the maximum penalty is a term of imprisonment of two years or 240 penalty units; failing to give a name and address for which the maximum penalty is 14 days' imprisonment or five penalty units; fail to stop and render assistance for which the maximum penalty is 14 days' imprisonment or five penalty units; drive unlicensed for which the maximum penalty is six months' imprisonment or 60 penalty units; and commit an indictable offence on bail for which the maximum penalty is three months' imprisonment or 30 penalty units
5Tendered on the plea as Exhibit 1 was a summary of prosecution opening dated 26 October 2023. The facts and circumstances of your offending are as follows.
6 At about 10.45 am on 20 November 2022, Amelia Ramsay reported to police that her vehicle, a white Toyota RAV4, registration ending 7TA, had been stolen.
7On 24 December 2022 at approximately 1 am, police saw the RAV4 drive into Drummond Street Carlton and park outside 475 Drummond Street. The RAV4 had registration plates AFC 770 and a check by police showed that these may have been cloned plates.
8As police approached the RAV 4, it suddenly accelerated west along Princes Street, turning its headlights off. It was last seen entering the intersection of Princes Street and Lygon Streets against the red traffic signal, travelling south.
9Later investigation of CCTV recordings in the Ministry of Housing area in Drummond Steet, Carlton showed the RAV4 arriving, with you Mr Abien, and co-offender Daniel Conners. It depicted you walking towards another man identified as Dek Wasame.
10 At approximately 1.07 am, CCTV at 478 Drummond Street, Carlton showed Wasame, Conners and another co-offender, Eskinder Albero, and both of you, that is, Mr Abien and Mr Kon entering via the rear entrance, taking the lift inside to apartment 83.
11Over the next hour, the five of you are seen at a number of times on CCTV in and around the lift at 478 Drummond Street, Carlton.
12At approximately 1.57 am, Connors was in the lift with Wasame and you Mr Kon, when Connors lifted his t-shirt several times to show what appears to be a firearm in his waistband.
13 At approximately 7 am, you Mr Kon entered the driver’s seat of the stolen RAV4, with you Mr Abien and Albero also in the vehicle, while Connors entered the driver’s seat of a VW Passat which also had a cloned registration plate. In that vehicle's case, WGA 390.
14In the Passat were two other men, Corinthian Morgan and Douglas Farmer.
15Mr Kon, you are not licensed to drive a motor vehicle in the State of Victoria and that is the basis of summary charge 17 against you.
16The RAV4 was driven by you, Mr Kon, and the Passat was driven by Connors and these vehicles drove to a carpark at 229 Barkly Street, Footscray. The group of you walked together to Bacash Lane where there was conflict between your group of five on the one hand and Mr Morgan and Mr Farmer on the other hand.
17 At around 7.19 am, Morgan and Farmer escaped in the Passat. You, Mr Kon, got into the driver’s seat of the RAV4 with Mr Abien in the front passenger seat and Connors and Albero in the rear. You drove in pursuit of the Passat.
18The pursuit of the Passat by Mr Kon, Mr Abien and the
co-offenders in the RAV4, was recorded by CCTV through Footscray, Moonee Ponds and Essendon and observed by witnesses over the next half hour. It unfolded as follows:(a) At 7.19 am, CCTV recorded the Passat travelling at high speed in Irving Street, Footscray followed by the RAV4, ignoring the red traffic signal at the intersection of Irving and Leeds Streets and narrowly missing pedestrians before continuing north along Moore Street;
(b) At 7.23 am, a witness called Triple 0 to report the two vehicles travelling north at high speed along Laura Street, Moonee Ponds;
(c) About the same time, another witness observed the two vehicles travelling at high speed through red lights on the wrong side of the road in Puckle Street, Moonee Ponds;
(d) At 7.24 am, CCTV cameras recorded the two vehicles travelling east at high speed in Buckley Street, Essendon.
19As the RAV4 passed the Kangan TAFE in Buckley Street, you
Mr Abien are seen leaning out of the window holding what appears to be a firearm.20Immediately after passing the TAFE building, CCTV cameras with audio at 51 Buckley Street, record the sound of five shots being fired.
21At 7.25 am, CCTV cameras show the two vehicles undercutting another RAV4 being driven by a Mr Michael Arabi, then going through a break in the median strip onto the wrong side of the road before entering the intersection of Buckley Street and Pascoe Vale Road against the red traffic signal. Mr Arabi called the Triple 0 service and reported hearing 'popping' sounds immediately before he was passed by the two vehicles.
22 At about the same time, another witness was stationary at the Buckley Street - Pascoe Vale Road intersection where he and his daughter heard what sounded like fireworks immediately before the Passat and the RAV4 entered the intersection.
23Dashcam footage from the witness' vehicle recorded the sound of gun shots immediately before the Passat entered the intersection on the wrong side of the road, the Passat turning north and mounting the curb followed by the RAV4.
24 The gun shots were also heard by other witnesses.
25At approximately 7.28 am, the CCTV at BP Bell Street service station and the Shell Bell Street service station recorded the pursuit of the Passat by the RAV4.
26As the Passat entered the intersection of Bell Street and Sussex Street, the lights began to turn red. The RAV4 entered the intersection moments later against the red signal and crashed into a Toyota Camry registration number ending 7AF, driven by Duy Thao Troung, who was starting to turn right from Sussex Street into Bell Street.
27Mr Troung describes feeling immediate pain to his shoulder from the impact of the RAV4 to his Toyota Camry.
28The RAV4 then ricocheted into four other vehicles which were stationary in Bell Street.
29Mr Zachary Murray was driving a white Toyota Camry and was stationary in Bell Street facing west. He observed the RAV4 cross onto the wrong side of the road and hit the front of Mr Truong’s car, which then crashed into the front of his own car, causing both airbags to activate.
30As a result of this impact, Mr Murray was taken to the Royal Melbourne Hospital by ambulance for treatment for his injuries. He suffered bleeding and bruising on both hips from the seatbelt, bruising on the right side of his chest, cuts and bruises to his knees and elbows, along with chest and neck pain from the airbag.
31Mr Mohammed Omar was driving his Toyota Taris with his wife and was waiting to turn right into Sussex Street from Bell Street.
32When the RAV4 went through the red light at the intersection, it struck his vehicle after hitting the Camry. As a result, Mr Omar also sustained a sore left shoulder and arm. His wife, Laila Abdilahi, who was seated in the passenger seat, although not injured, was in shock.
33Another driver was driving his Toyota Kluger west on Bell Street approaching the intersection of Sussex Street in the right lane. He saw the RAV4 collide with multiple cars in front of him. He swerved to avoid the collision but was unable to, colliding with one of the vehicles that had been impacted by the RAV4, causing damage to the front bumper and right side of his vehicle.
34Both of you and your co-offenders fled the scene without any attempt to assist your victims.
35At 7.40am, Albero was located by police in Bruce Street, Coburg and arrested. He was carrying .22 calibre ammunition in his pocket.
36A crime scene was established in Buckley Street, Essendon. Four fired ammunition shell casings were located on the eastbound lane, spread over approximately 68 metres.
37Examination of the crashed RAV4 located one .22 calibre ammunition round in the front passenger footwell, where you Mr Abien had been seated.
38Examination of the Passat, which was located in Norfolk Court, Coburg on 31 December 2022 with the number plates removed, showed fired .22 calibre bullet fragments in the rear tailgate and rear bumper bar.
39The shell casings located in Buckley Street, Essendon were also .22 calibre and were fired from the same firearm.
40Police analysed a mobile phone seized from Albero and located the following videos:
(a) At 4.27 am on 22 December 2022, you Mr Abien and Connors are at Connor’s Yarraville address and a handgun is visible on a bench;
(b) At 1.55 am on 24 December 2022, you Mr Abien are posing with two firearms while Albero holds a large amount of cash and this video is taken at 478 Drummond Street;
(c) At 1.57 am on 24 December 2022, Mr Abien is seated on a bed and Mr Kon is holding a large amount of cash. Again, this video appears to be taken at 478 Drummond Street;
(d) At 1.58 am on 24 December 2022, it depicts Mr Abien standing next to a bed with two firearms on it, holding his mobile phone and cash;
(e) At 5.20 am on 24 December 2022, it depicts Mr Kon sitting in the RAV4 holding a large amount of cash and a dark-skinned hand can be seen holding a silver-coloured handgun next to Mr Kon.
41Mr Kon, you were arrested on 28 December 2022 for unrelated matters in Collingwood.
42On 5 January 2023, Mr Connors was arrested in Geelong.
43Mr Abien, you were arrested on 6 January 2023 outside your home in Deer Park. Police seized a black/grey Louis Vuitton bag which contained 7 rounds of 22 calibre ammunition in a Ziploc bag and that is the related summary offence of possess ammunition which concerns you, Mr Abien.
44You were both interviewed by police upon your arrest. You both made no comment records of interview.
Objective Gravity of Offending and Moral Culpability.
45This offending involves a shocking episode of criminality during which multiple members of the public were injured and put in danger by both the highly dangerous driving of the vehicle and the firing of multiple shots.
46It involved a high-speed chase with another vehicle in a suburban area which culminated in a multi-vehicle collision. It further involved you Mr Abien firing shots from the erratically driven vehicle which struck the Passat.
47It is quite simply intolerable that members of the community are subjected to behaviour so lawless, so dangerous and so frightening when they should be free to go about their business in peace and safety.
48This is very serious offending, and your moral culpability is high.
49You were both on bail at the time and this further aggravates your very serious criminal conduct.
Personal Circumstances and Mitigatory Considerations.
50I turn now with matters raised in respect of each of you at the plea and I begin with you Mr Abien. In outlining your personal circumstances, I refer to the psychological report of Courtney Steffans, psychologist, dated 13 December 2023, the neuropsychological report of Dr Kelly Sinclair, neuropsychologist, dated 18 September 2023 and to the submissions of your counsel.
51You were born in November 1998, and you are presently 25 years old.
52You were born in Sudan, the eldest of seven children. Your family were the target of political violence in the longstanding conflict in the Sudan and you fled to Egypt. You lived in a refugee camp in Egypt before coming to Australia when you were approximately seven years old. You told Ms Steffens you witnessed racism, violence and killings in Egypt.
53You started school in Australia. You had an integration support worker, but still experienced feeling different. You attended three different high schools and reported experiencing racism. You were badly behaved and involved in fighting, as well as being disrespectful to your teachers. You were expelled from your first high school and asked to leave your second high school. You completed Year 11 at your third high school.
54You learnt English at primary school. You received individual learning plans to help with your literacy and numeracy. However, a speech pathology assessment conducted when you were still at primary school assessed your language skills as significantly below the average level for children of your age.
55You lived with your parents until you were aged about 16 years old. You have had some employment but at 19 you were already incarcerated in a youth justice facility in respect of offences of armed robbery, theft, failing to answer bail and failing to stop a vehicle on police direction. You were sentenced in this Court to a total effective sentence of two years and 10 months. You have further findings of guilt and convictions for offences of being in possession of a prohibited weapon, affray, robbery, intentionally causing injury, dishonest retention of stolen goods, theft of a motor vehicle and driving while disqualified. These other matters were all dealt with in the Magistrates' Court and by way of fines.
56You have been in custody for your present offending since your arrest date and this is your first time in adult custody.
57You reported to Ms Steffens a history of polysubstance abuse going back to the age of 14. You have also used alcohol, other illicit drugs and have abused prescription medication.
58You went to Egypt in 2021 and report that your alcohol consumption increased significantly when you were there. You report continuing to use drugs and alcohol when you returned to Australia to help you manage what you described as intrusive symptoms, including flashbacks and nightmares about witnessing war-related violence in Egypt.
59You told Ms Steffens on the day of your offending you were substance-affected, having gone for an extended period without sleeping and having used multiple substances to manage your mental health symptoms.
60You told Ms Steffens that your offending was unplanned. You told her you understood that discharging a firearm could have seriously injured someone. You said you were grateful this had not occurred. Ms Steffens gives the opinion that you acknowledged the wrongfulness of your behaviour and did not attempt to minimise your offending. She says you indicated a willingness to seek treatment for your addiction and mental health.
61You have a girlfriend, Elette, and you are focused on prioritising this relationship and staying out of trouble.
62Upon mental health examination, Ms Steffens found you to be co‑operative but not always able to articulate a response. She states you did not appear to suffer any perceptual disturbances. She found you to be of below average cognitive ability, which was consistent with your previous neuropsychological report, which I will discuss shortly.
63Her conclusions, based on her testing and upon her interactions with you were, broadly put, that you are an immature individual due to your intellectual impairment. You present with clinically significant symptoms of post-traumatic stress disorder (PTSD) and clinically significant symptoms of anxiety and depression. She says you likely meet the criteria for a current major depressive disorder and your anxiety symptoms are likely referable to your PTSD.
64She assessed you as a moderate to high risk of reoffending until appropriate mental health and alcohol and drug dependency interventions are in place. Ms Steffens found that you were unable to reflect upon you past behaviour with any real insight and this was likely to be consistent with your cognitive deficits.
65On the effects of imprisonment upon you she says:
'It is noted that imprisonment would likely weigh more heavily
upon Mr Abien than a person without his conditions. In individuals with symptoms of PTSD, there is potential for exacerbation of symptoms and mood fluctuations in response to the volatility in the prison environment'. She goes on to say, 'In addition a long-term custodial sentence is likely to have a disproportionately negative effect on Mr Abien due to his young age, and lack of access to appropriate mental health treatments for his condition in the custodial environment comparative to the general community'.
66Turning now to the neuropsychological report of Dr Sinclair.
67Based on her examination and the referral materials, which included an earlier neuropsychological assessment conducted in 2017 which was also tendered at your plea, and a statement of intellectual disability which again was also tendered at your plea, she concluded that you had been diagnosed with an intellectual disability in 2019 following your 2017 assessment. She says current overall neuropsychological findings are consistent with the previous testing and indicate a current intellectual and cognitive ability in the borderline range. This indicated a moderate intellectual weakness over a broad range of capacities including problem solving, reasoning, knowledge acquisition and decision-making.
68She gives the opinion that the cognitive functioning would have been apparent at the time of your offending and in conjunction with your reported acute intoxication due to substance abuse would have impacted on your decision making.
69She gives the opinion that your moderate intellectual and cognitive weaknesses will impact on your ability to express insight into your offending behaviour.
70She says of the effects of incarceration upon you:
'Mr Abien’s cognitive weaknesses are unlikely to deteriorated as a direct result of being imprisoned and he may benefit to some extent from clear structure and routine in the environment, however his cognition may be at risk of deterioration in the context of any decline in his mental health'.
71At the time of writing her report, you were reporting experiencing mild to moderate symptoms of depression, anxiety and stress.
72In her written submissions, your counsel, Ms Hotchkin, relied on the following matters.
73First, she relied on your plea of guilty which she submitted occurred before the cross-examination of any witnesses at committal and was therefore a plea at the earliest opportunity. She submitted your plea attracted Worboyes[1] principles.
[1]Worboyes v The Queen [2021] VSCA 169 (“Worboyes”)
74Secondly, she submitted that you have demonstrated your remorse, not just by your plea but in subsequent statements.
75Thirdly, you are a youthful offender and she relied on the authority of Mills[2] which prioritises rehabilitation over general deterrence in the case of youthful offenders. Ms Hotchkin acknowledged that your offending was serious, but submitted still the mitigating effect of your youth should not be wholly eradicated.
[2]R v Mills [1998] 4 VR 235
76Fourthly, she noted you had never had the opportunity to do a corrections order, nor had you ever been granted parole. In fact, this is your first time in adult gaol. She submitted in these circumstances you should have the opportunity of a longer than usual parole period.
77She submitted based on the psychological and neuropsychological material that Verdins[3] limbs 1, 3, 5 and 6 were engaged in sentencing you.
[3]R v Verdins; R v Buckley; R v Vo [2007] VSCA 102 (“Verdins”)
78Ms Hotchkin referred me to a number of comparator cases.[4]
[4]DPP v Doodt [2021] VCC 1584; DPP v Smiljanic [2020] VCC 495; DPP v Taylor [2019] VCC 2220
79She noted that you had completed a certificate of barbering while in youth justice. During your present time in custody, you have completed various educational and vocational certificates and you have remained drug-free.
80Ms Hotchkin acknowledged the seriousness of your offending and accepted that the only appropriate disposition was a term of imprisonment consisting of a head sentence and a non-parole period.
81Turning now to you, Mr Kon, and, in outlining your personal circumstances, I refer to the reports of Ms Christine Kennedy, provisional psychologist, and Dr David Ball, forensic psychologist, and that report was dated 7 November 2023, a Forensicare report of Professor Michael Daffern, principal consultant psychologist at Forensicare, dated 10 January 2024 and to the submissions of your counsel, Mr James.
82You were born in June 1995 so you have just turned 29.
83Like Mr Abien, you came to Australia as a refugee from Sudan. In fact you were born in a refugee camp in Kenya. You came to Australia when you were six years old with your grandmother and your five uncles. You lived with your grandmother until you were 17 or 18 when you moved into your girlfriend’s house, although you continued to live on and off with your grandmother.
84Your parents and your siblings came to Australia some years after you. You have had a difficult relationship with your parents. You told Ms Kennedy that your father was an alcoholic and that you do not talk to him. You told Ms Kennedy that you wanted a relationship with your mother but that you struggle to connect.
85You attended school in Australia until Year 11. You were not a good student and were poorly behaved. You were good at football, but you told Ms Kennedy you did not get a chance to play club football because you were unsupported.
86After school you have worked in construction, labouring and factory work.
87You have been with your girlfriend since you were 18 years old. You have a son and a daughter together, and your girlfriend has two other children.
88You began drinking alcohol at 16 and have consistently used methylamphetamine since you were 24. You report that you have also consistently abused Xanax and another prescription drug, Lyrica. You have also used cannabis and cocaine. You report an episode of drug induced psychosis and an admission to Footscray Hospital in 2021.
89On your offending you told Ms Kennedy that it happened in the context of your drug use, but that you have no recollection of the incident. You told Ms Kennedy that you were sorry for what you had done, however she gives the opinion that your remorse was 'simplistic' and that you declined to provide an explanation other than you let your 'personal problems' get the better of you.
90Ms Kennedy found you to be an immature and socially detached individual. She thought you presented with some symptoms of PTSD, likely referable to your experiences as a refugee.
91She gives the opinion that you satisfy the criteria for severe stimulant and alcohol use disorder in remission and for a persistent depressive disorder accompanied by severe anxious distress. She says: 'Without treatment he is likely to continue to engage in self-destructive behaviour such as self-medicating with excessive alcohol or drug use'.[5]
[5]Forensic psychology report of Christine Kennedy and David Ball dated 7.11.23 at p.6
100 Ms Kennedy says you present as functionally illiterate and innumerate.
101On your rehabilitation, she gives the opinion that you present with a number of challenges in terms of your safe management in the community especially given your drug and alcohol addiction.
102On your intellectual functioning, testing gave you a full-scale IQ of 50, placing you below the first percentile. You were therefore assessed as having an intellectual disability. However, as I read and interpret Ms Kennedy’s report, your low intellectual functioning is likely a result of lack of educational opportunities and a disruptive and chaotic lifestyle and therefore you could potentially benefit from further general education and trade training.
103Turning to Professor Daffern’s report. Professor Daffern gives the opinion that your insight into the nature of your problems was poorly formed.
104He gives the opinion that 'although Mr Kon’s intellectual ability is likely below average, whether he meets the criteria of a diagnosis of intellectual disability is much less clear'. He says the testing conducted by Ms Kennedy cannot in fact form the basis for such a diagnosis. He gives the opinion it is unlikely that you could have gone to school until Year 11 without an intellectual disability having been considered and documented if indeed you were so impaired. In his opinion given your presentation, and your history of education and employment, you are of below average, but not necessarily extremely low, intellectual ability.
105Professor Daffern gives the opinion that you present with a minor depressive disorder. He gives the opinion that you will require intensive support and supervision to help you establish more prosocial behaviour and to manage your propensity for drug use and criminal behaviour.
106You have a criminal record going back to 2015. You have been sentenced to correction orders with rehabilitative components. You have invariably breached correction orders. You have convictions for driving offences, violent offences and dishonesty offences. In 2017 you were sentenced by Judge Grant of this Court to 30 months' imprisonment on charges of armed robbery and theft. I was provided with Judge Grant’s sentencing remarks. The armed robbery was committed in company with Mr Albera, upon a service station. It was committed in breach both of an adjourned undertaking and a correction order. No submissions about your mental health were made to Judge Grant who observed that you offended while in full time employment and while having responsibility for a child. Judge Grant said he had reservations about your prospects of rehabilitation.
107Turning now to the matters raised by your counsel in mitigation of sentence.
108First, Mr James relied upon your plea of guilty the timing of which he submitted attracts a Worboyes discount.
109Secondly, he submitted you have demonstrated real and genuine remorse.
110Thirdly, he submitted your deprived background as a refugee, fleeing conflict, displacement and emigration enlivened Bugmy[6] principles moderating your moral culpability.
[6](2013) 302 ALR 192
111Fourthly, while accepting on the basis of Professor Daffern’s report that it is unlikely you are intellectually disabled and present with only a mild depressive disorder, Mr James did not rely on Verdins principles but submitted you do still have low intellectual functioning and poor mental health that will make your time in custody difficult.
112Fifthly, he submitted there are factors which bode well for your rehabilitation, including your good work history, your age, your stable long-term accommodation with your partner and children and the remorse and acceptance of criminal responsibility implicit in your plea of guilty.
113Mr James submitted that the case of McLean[7] was a comparator case in respect of the charge of reckless conduct and in which case the conduct was assessed as 'mid-range'. In that case, the accused was sentenced to a 12-month correction order.
[7][2022] VCC 1454
114Mr James however acknowledged that in your case the only appropriate sentence was a term of imprisonment consisting of a head sentence a non-parole period.
115I turn now to the submissions of the prosecution, beginning with the submissions in respect of Mr Abien.
116Mr Pickering, on behalf of the Director, accepted that your plea of guilty made at the fourth committal case conference on 17 July 2023, was an early plea attracting a limited Worboyes discount. The prosecution accepted that there is remorse implicit in your plea but beyond your plea you have expressed no empathy for your victims and little more than concern for your family and for yourself.
117The prosecution accepts that you are a youthful offender but submits that you have not engaged in any form of rehabilitation to give the Court any confidence in your future prospects.
118On the application of Verdins principles, the prosecution submitted that there is some applicability of limbs 1, 3 and 5 given your cognitive impairments, but that your offending is largely causally connected to your substance abuse. On Verdins limb 6, the prosecution submitted that the material tendered did not demonstrate that your mental health was at serious risk of a significant adverse effect in custody.
119Mr Pickering submitted that the only appropriate sentence was a head sentence with a non-parole period.
120In terms of you, Mr Kon, the prosecution submitted again that your plea was an early one and entitled you to a limited Worboyes discount. Again, the prosecution submitted that there was remorse implicit in your plea but otherwise any expression of remorse on your part was superficial.
121Mr Pickering noted that on the topic of your mental health, this was not taken up when Judge Grant sentenced you.
122Again the only appropriate sentence was a term of imprisonment with a head sentence and a non-parole period.
123Mr Pickering submitted, in respect of you Mr Kon, given your appalling driving and to protect the community, there should be an order cancelling your licence of some duration.
124Turning now to the application of sentencing principles and I begin with the plea of guilty and this applies to both of you.
125You have both pleaded guilty at an early opportunity, which has been of considerable benefit to the community in obviating the need for a trial. The timing of your plea predates the announcement that the backlog of trials occasioned by the COVID-19 pandemic has been cleared in this Court and I therefore accept that your plea of guilty attracts Worboyes discount.
126However, while I accept that both of you are entitled to a Worboyes discount for your plea of guilty, when applying the Worboyes discount it is necessary to consider the degree of pandemic-related delay at the time the plea was entered. In July 2023 the situation in this Court was not what it was in 2020 when trials were suspended indefinitely at the height of COVID uncertainty. Accordingly, you will both get a Worboyes discount, but it will be reflective of the circumstances at the date of your plea and will not be of the magnitude that pleas were attracting at the height of the pandemic.
127On the topic of remorse, I accept the prosecution submission in respect of both of you that you have failed to demonstrate full and insightful remorse. However, I accept the defence submission, and this is in regard to both of you, that this is likely referable to your low cognitive functioning and immaturity.
128On your cognitive functioning and metal health, I accept in relation to you, Mr Abien, that on the basis of your intellectual disability and mental health, and that is the significant symptoms of PTSD, that Verdins limbs 1, 3 and 5 are engaged in sentencing you.
129I am prepared to accept that there is some engagement of Verdins moderating your moral culpability. Your offending was fuelled by your drug consumption, but you have been addicted from an early age and I am mindful of authorities allowing for some mitigation of moral culpability when drug addiction commences at an early age and is connected with mental health difficulties and criminal offending.[8]
[8]R v McKee (2003) 138 A Crim R 88, 94 [21] Buchannan JA.
130I am also prepared to find that prison will be more onerous on you than for a prisoner without your mental health condition and cognitive limitations.
131There is some moderation of the principle of general deterrence given your intellectual disability. But I stress that this is to a modest extent. General deterrence remains an important sentencing consideration here and I will address it shortly more fully.
132I reject the application of Verdins limb 6. There is no evidentiary basis in the reports which has demonstrated any worsening of your mental health while in custody and this is in circumstances where you have now been in custody for some time.
133In respect of you, Mr Kon, although you have not relied on Verdins principles, I am prepared to find on the basis of your youth and low cognitive functioning, prison will be a very difficult place for you.
134You, Mr Kon, relied on Bugmy[9] principles
[9](2013) 302 ALR 192 (“Bugmy”)
135It is clear you have led a difficult and disadvantaged life and Bugmy principles are engaged in sentencing you.
136I find your moral culpability for your offending is moderated pursuant to Bugmy principles, but weighted against this is the seriousness of your offending and the need to protect to the community against you.
137Both of you are both appropriate vehicles for the application of both specific and general deterrence.
138You are both youthful offenders and I take this into account, but your criminality is serious and the message of general deterrence, here, that young men who think they can take their grievances, real or imagined, onto public streets and discharge firearms in broad daylight can expect stern punishment. Parity is an important consideration on the charge of discharging a firearm. I am of the view that you are equally culpable, and in my view, although you have each relied on some different sentencing considerations in mitigation, I intend to sentence you in identical terms on this charge.
139You are both persons from whom the community must be protected and your conduct must be publicly denounced.
140I have considered all the comparator cases I was referred to and they have been of some assistance in sentencing each of you, but ultimately, I must sentence each of you on the facts and circumstances particular to you.
141I take into account the maximum penalty for the offences and I take into account the principle of parsimony.
142In my view, in respect of both of you, I can only agree with the views expressed in the material tendered, that it will be challenging to achieve rehabilitation in both of your cases. You will both require significant interventions. For my part, all I can do is structure a sentence which gives you the opportunity of a period of parole of some length.
143Weighing up as best I can all the relevant matters which I must take into account in sentencing you, matters personal to you and matters which I am required to take into account under the Sentencing Act 1991 (“the Sentencing Act”), I intend to sentence you as follows.
144Mr Abien, you can both remain seated in the circumstances.
145Mr Abien, you are convicted on all charges, indictable and summary.
146On Charge 1, you are sentenced to 20 months' imprisonment.
147On Charge 3, you are sentenced to four years' imprisonment.
148On related summary Charge 1, you are fined $500 and on the summary charge of breach of bail, you are sentenced to one month imprisonment.
149Charge 3 is the base charge. I direct that six months of the sentence on Charge 1 and one month on the summary charge be served cumulatively upon each and upon the base charge. That makes a total effective sentence of four years and seven months' imprisonment.
150I direct that you serve a non-parole period of three years.
151You have served 538 days, not including today, and I direct that be entered into the records of the Court.
152But for your plea of guilty, I would have sentenced you to a sentence of six years and six months' imprisonment with a non-parole period of four years and six months.
153Mr Kon, turning to you, you are convicted on all charges, indictable and summary.
154On Charge 1, which is theft of a motor vehicle, you are sentenced to one year imprisonment.
155On Charge 3, you are sentenced to four years' imprisonment.
156On Charge 4, you are sentenced to 20 months' imprisonment.
157On the summary matters, driving in a manner dangerous, you are sentenced to six months' imprisonment; failing to give your name and address, you are sentenced to seven days' imprisonment; failure to stop and render assistance, you are sentenced to seven days' imprisonment. Driving unlicensed, you are sentenced to two months' imprisonment and committing an indictable offence on bail, you are sentenced to one month imprisonment.
158Charge 3 is the base charge. I direct cumulation upon that charge and upon each other in the following terms. Three months of the sentence on Charge 1, nine months of the sentence on Charge 4 and one month of the summary charges of drive unlicensed and commit an indictable offence on bail. That makes a sentence of five years and two months.
159I direct you serve a non-parole period of three years and six months.
160Your pre-sentence detention is 547 days, not including today, and I direct that be entered into the records of the court.
161But for your plea of guilty, I would have sentenced you to a total effective sentence of seven years and six months' imprisonment with a non-parole period of five years and six months.
162I will make the licence disqualification and cancellation in respect of you Mr Kon pursuant to s89A of the Sentencing Act and I am going to suspend your licence for a period of four years starting from today. So, if you get parole at the earliest opportunity, there will be implications for your licence beyond your parole period. As I discussed at your sentencing hearing, it is not something I usually do, understanding that a licence is important to function in the community and I understand that you are someone that has had employment and has children. However, your driving is appalling and there needs to be some punitive effect on your licence and the principle of community protection requires it as well.
163I make the orders sought by the prosecution.
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