Director of Public Prosecutions v Atem & Ors
[2023] VCC 1739
•25 September 2023
T. HERH
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02282
CR-21-02287
CR-21-02288
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| DKTOUR TON DUACH DUACH DENG ATEM |
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JUDGE: | HER HONOUR JUDGE KARAPANAGIOTIDIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 July 2023 | |
DATE OF SENTENCE: | 25 September 2023 | |
CASE MAY BE CITED AS: | DPP v Atem & Ors | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1739 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing
Catchwords: Plea of guilty – Recklessly cause serious injury – Intentionally cause serious injury – Violent disorder – Parity – Overall good prospects of rehabilitation – No difference in moral culpability between co-offenders
Legislation Cited: ss 5, 6AAA, 11, 14, 18 Sentencing Act 1991
Cases Cited:Andrew Apineru v The Queen, Maele Maele v The Queen, Leti Maele v The Queen [2018] VSCA 206; Azzopardi v The Queen [2011] VSCA 372; Mohamed v The Queen [2022] VSCA 136; R v Renzella [1999] VSCA 85; R v Verdins [2007] VSCA 102; Worboyes v The Queen [2021] VSCA 169.
Sentence: Dktour TON – Imprisonment for a period of 2 years and 6 months. Non-parole period of 1 year and 4 months..Duach DUACH – Imprisonment for a period of 2 years and 10 months. Non-parole period of 1 year and 7 months imprisonment. Deng ATEM – Imprisonment for a period of 2 years and 3 months imprisonment. Non-parole period of 1 year and 2 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Warren | Office of Public Prosecutions |
| For Offender Ton | Ms J. Willard | James Dowsley and Associates |
| For Offender Duach | Mr T. Antos (plea) | Stary Norton Halphen |
| For Offender Atem | Mr R. Bhattacharya | Ajak Wolan & Associates |
HER HONOUR:
1Mr Ton, Mr Duach and Mr Atem, you have each pleaded guilty to two charges of recklessly cause serious injury, one charge of intentionally cause injury and one charge of violent disorder. The charges arise from events that occurred at approximately 1.30 am on 1 January 2021.
2In addition, Mr Duach, as I have just mentioned, you have agreed to this court hearing, and you pleaded guilty to one summary offence of commit indictable offence whilst on bail. I sentence you on the basis of the agreed prosecution opening dated 19 June 2023.
Circumstances of offending
3In summary, on 1 January 2021, you all, whilst in company with approximately four other unknown males, assaulted three males who were unknown to you. During the course of the assault your group caused serious injuries to two of the males, Michael Bradbury and Kevin Anderson, and caused injury to the other male, Garry Kemp. Mr Ton, it appears that you had just turned 20 at the time, and you Mr Duach and Mr Atem, were 21 years of age.
4All three victims were guests at a New Year's Eve party at a private residence in Push-Pea Way, Cranbourne East. Nearby, at Polson Way, there was another New Year's Eve party that you, Mr Ton, attended as you knew someone there. You forwarded the address to five or six of your friends who arrived soon after, including you, Mr Duach and Mr Atem.
5You and your friends remained at Polson Way until approximately 12:50 am on Friday 1 January 2021, when you were asked to leave because apparently two of your friends were located in a room where they should not have been. You all left Polson Way without issue but once onto Paramount Boulevard you began fighting amongst yourselves, yelling, screaming and pushing and shoving each other.
6At approximately 12:55 am, your group was captured on CCTV footage at the intersection of Morialta Road and Paramount Boulevard, Cranbourne West. You slowly walked south along Morialta Road, towards Push-Pea Way.
7At the same time the Police Communications Centre received reports of a brawl near the intersection of Polson Way and Paramount Boulevard, and the job was assigned to police members in the area.
8At approximately 1:06 am, in response to a report of brawling in the area, police arrived and observed your group walking along Morialta Road, Cranbourne West. They spoke with your group but as you were not doing anything wrong at the time, they took no further details or action.
9Your group milled around for a while and then continued walking along Morialta Road. At approximately 1:30 am, one of the males in your group approached Mr Anderson, Mr Kemp and Mr Bradbury who were standing in the shared driveway area outside the residence where they were guests in Push-Pea Way. A second male was also present.
10The first male asked Mr Anderson for a cigarette and alcohol. Mr Anderson told the male that he was not interested and to go away. The male tried to fist pump Mr Anderson but Mr Anderson did not reciprocate and again told the male to leave. The male appeared calm and walked away with the second male and was seen heading east along Morialta Road, towards Evans Road.
11After a short time, the first male returned to Push-Pea Way. He was holding a stainless-steel kitchen sink and approached Mr Anderson and Mr Kemp, along with the second male from the group who was holding a piece of timber.
12A verbal argument ensued between Mr Kemp and Mr Anderson and the male holding the sink. As a physical altercation broke out, the other males from the group rushed into Push-Pea Way. The group physically assaulted Mr Kemp and Mr Anderson by punching and kicking and knocking them to the ground. One of them swung the kitchen sink at Mr Kemp but missed him and struck Mr Bradbury. Mr Bradbury was also knocked to the ground.
13As Mr Bradbury, Mr Kemp and Mr Anderson lay on the ground, they were overwhelmed and unable to defend themselves. Mr Kemp and Mr Anderson were trying to cover-up and protect themselves, but Mr Anderson lost consciousness and was unable to defend himself. Members from the group continued to repeatedly kick and punch the three victims and stomp on Mr Bradbury’s head as they lay on the ground. During the assault, Mr Kemp’s mobile phone fell out of his pocket.
14While this was happening other people inside the residence ran inside and shut the garage doors. They could hear the victims being assaulted and a witness used her phone to video record one of the offenders viciously stomping on the head of Mr Bradbury and kicking him in the face, as he lay unconscious on the ground. The identity of this offender remains unknown.
15After stomping on Mr Bradbury’s head numerous times, the unknown offender kicked him to the face and then appeared to be filming his actions on a phone before being pulled away by one of the other group members. The group then ran away from the scene, west along Morialta Road and over Futures Road.
16As the victims were being assaulted, witness Alexander Michaelopoulos was walking past and attempted to intervene. As he approached two of the group turned on him, by which stage he was calling Triple 0 for police assistance. One of the males attempted to grab the phone from Mr Michaelopoulos but was unable to take it. Two offenders punched him, knocking him to the ground before they ran off towards Central Parkway. Mr Michaelopoulos was not injured during this incident and helped to provide first aid assistance to the victims using his jumper to help stem the bleeding.
17Other witnesses also contacted the police who soon arrived at the scene. Police units began patrolling the area for offenders.
Arrest of offenders
18Additional police units, including the Air wing, members from the Dog Squad and Critical Incident Response Team (CIRT) attended Push-Pea Way and commenced patrolling. You, Mr Atem, were located with Mr Koang Jock hiding in the bushes along the eastern fence line near the intersection of Missens Road and Volk Road, Cranbourne West.
19At approximately 2:50 am, police attended the nearby 7-Eleven store where they located you, Mr Duach and Mr Ton. Attending police also recognised you as the two males they had earlier spoken to in Morialta Road.
20During a search of you, Mr Ton and Mr Duach, police located a mobile phone in the possession of Mr Duach. Enquiries later confirmed that this mobile phone belonged to the victim, Mr Kemp.
21You were all transported to Dandenong Police Station.
22Your clothing was seized and underwent a forensic medical examination.
23During a recorded interview with police, you, Mr Ton, stated that you went to a party that night, got 'too drunk' and claimed you could not remember anything apart from being arrested at the 7-Eleven after the party. You denied being involved in an assault.
24Mr Duach and Mr Atem provided 'no comment' recorded interviews.
25Clothing worn by you all and other items from the scene were sent for forensic analysis, as described in the opening.
26The DNA evidence which resulted from the forensic testing of the items at the Push-Pea Way address, and clothing worn by you, is outlined. Mr Kemp’s blood was located on clothing worn by you, Mr Ton and Mr Atem, and Mr Anderson's blood was also located on items of clothing worn by you, Mr Atem.
Victim’s injuries
27The victims, Mr Kemp and Mr Anderson, were conveyed by ambulance to hospital. Mr Bradbury, who had a serious head injury, was taken by Helicopter Emergency Medical Service (HEMS) to The Alfred Hospital in a life-threatening condition. Once at the Alfred Hospital, Mr Bradbury was placed in an induced coma and remained so for two weeks.
28As a result of this incident the victims sustained the following injuries in summary:
a)Mr Kemp: Extensive facial trauma with soft tissue swelling closing bilateral eyes, left anterior chest wall abrasions. Mr Kemp discharged himself from the Alfred Hospital, against medical advice, on the evening of 1 January 2021;
b)Mr Anderson: Suffered a left-sided Zygomaticomaxillary complex fracture, fracture to the left greater wing of sphenoid, complex right ear laceration, cartilage avulsed on view, T12 SEP fracture, non-displaced fractures to the left lateral orbital wall and orbital floor, minimally displaced fracture of the anterior wall of the left maxillary sinus and a comminuted fracture of the lateral wall depressed by up to 11mm.
Whilst an inpatient at the Alfred Hospital, Mr Anderson underwent plastic surgery operative intervention for his complex ear injury before discharging himself against medical advice on the 3 January 2021, and then re‑presented on 4 January 2021 for a planned Facial Maxillary surgery.
Mr Anderson suffers ongoing pain and discomfort from his injuries. He still has a metal plate in his jaw, experiences dizziness and blurred vision. His scar abrasions have created pink pigmented patches on multiple areas of his face and suffers from anxiety and mood changes.
c)Mr Bradbury suffered significant head trauma and an acquired brain injury.
Victim Impact
29The victim impact statements speak powerfully of the devastating and life-altering impact of your offending.
30Michael Bradbury describes the pervasive impact of your offending on all aspects of his life. He states:
'The emotional impact of my attack is incomprehensible. It's left me with daily suicidal thoughts, debilitating depression and severe anxiety. I have no enjoyment of life left as this has impacted every part of a life I had and the person I once was. I have been a guitarist since the age of 15, my brain injury no longer allows the left and right-hand sides of my brain to communicate properly, meaning I can no longer do the thing that was my whole life. My son is now 16 and learning to play, I can't help him. That was my dream. I live with extreme rage, anger and fear that I'll never recover from. It affects all parts of my life, including my relationships, work, sleep, and I have no way of ever enjoying life again. This horrific crime is a life sentence for me.'
31He also speaks of the debilitating impact of his physical injuries affecting his communication, thought patterns, motor skills and memory. He can no longer play sports with his children or guitar. The impact of your offending has also left him financially destroyed and someone who lives in constant fear. He concludes: 'I am a shell of the person I used to be.'
32His father, Peter Bradbury, refers to the horror of awakening to heavy banging on his front door in the early hours and being told that his son was in hospital, in an induced coma, fighting for his life. He states: 'At 79 years of age I was shocked. I did not think he'd survive as things were not looking good for him and I was advised to prepare for the worst.'
33His older brother, Thomas Bradbury, also speaks of the profound emotional toll it has taken on him and their elderly father. He states: 'I can't explain the absolute horror I felt when he told me that my little brother was fighting for his life and was being taken by helicopter to The Alfred with injuries so bad. They didn't expect him to survive the trip.'
34He speaks of the trauma and despair of seeing his brother swollen with 'tubes everywhere.' He states: 'Worst of all was the conversation I had with Michael's children. I was trying to keep their hopes up, but they could always tell things were bad.'
35Jade Anderson speaks powerfully of the impact of the offending on her husband, Kevin Anderson. Seeing the extent of the injuries to her husband's face was, 'The worst thing I've ever seen in my life. He was unrecognisable.' She also speaks of the detrimental impact of the offending as she has observed it on Michael Bradbury and Gary Kemp. She refers to the deep emotional strain and stress your offending caused their relationship and marriage, ultimately playing a big part in its breakdown. They have struggled with the frustrations on both sides, the financial impacts, her husband's ability to do his normal career as a carpenter was deeply affected, the impact on social interactions and the growing isolation.
36Your offending dramatically changed the man she had married:
37'He had no patience whatsoever and his aggression heightened to a level that was consistently apparent, but he was unable to see this.'
Gravity of the offending
38Mr Ton, Mr Duach and Mr Atem, your offending has caused terrible loss and pain to your victims and their families. The sentence that I propose to impose will take this into account but is in no way a measure of this.
39Your offending is objectively serious and the sentencing purposes of general deterrence and denunciation are prominent. These were appalling and vicious crimes fuelled by alcohol and a reckless group, or mob-type mentality, whereby the attack on your victims continued even after they were on the ground and rendered defenceless.
40In assessing the objective seriousness of your offending, I have taken into account the maximum penalties and the following factors: the attack was unprovoked, persistent and in company. It was in a public residential space where others were exposed to and witnessed the violence. Your co-offenders were kicking and stomping at the victims’ heads as they lay on the ground and the foresight of serious injury would have plainly been held by all those who were involved in the attack. The serious injury to Mr Bradbury was life-threatening and substantial and protracted. As I have already referred to, he was placed in an induced coma for two weeks and suffered an acquired brain injury. The serious injury to Mr Anderson was substantial and protracted. He suffered multiple fractures and a complex laceration to the ear requiring multiple surgeries.
41The prosecution allege that each of you was actively and directly involved in assaulting one or more of the victims, having regard to the DNA evidence, in other words, you were not mere bystanders. However, it is not alleged that any of you were responsible for directly attacking the victims beyond the point that they fell to the ground and/or were rendered incapacitated. It is not alleged that any of you directly inflicted kicks or blows to the victims as they lay on the ground. Your plea of guilty to the charges represents an acceptance that you were involved in the commission of the offences, on a complicity basis, as put, and are criminally liable for the acts of all those involved in the offending and for the injuries sustained.
42The prosecution submit that overall, taking into account the lesser role played by each of you, your offending falls at the mid-range of objective seriousness. I accept and adopt this characterisation of your offending. It is certainly serious, and you are each criminally responsible, but I accept that your offending was unplanned, spontaneous and of relatively short duration. Your roles were limited in that you were not directly involved in the sustained attack on the victims as they lay helpless on the ground and did not directly cause their serious injuries.
Plea of guilty
43Mr Ton, you entered a plea of guilty after a sentence indication hearing in April 2023. Your plea of guilty, however, is to be treated as an early one as you made a formal offer to plead to these charges which was rejected by the prosecution on 16 October 2021, that is, pre-committal.
44Mr Duach and Mr Atem, your pleas were not 'early' and were entered at a later stage but I accept that you are still entitled to a substantial discount and that your pleas demonstrate an acceptance of responsibility on your part.
45In your case, Mr Atem, I also take into account your expressions of remorse and that during your pre-sentence assessment you did not attempt to deny, minimize or justify your offending behaviour.
46By your plea each of you have indicated a willingness to facilitate the course of justice. Your plea carries important utilitarian value, also heightened in accordance with what we refer to as the Worboyes considerations.[1]
[1] Worboyes v The Queen [2021] VSCA 169.
Personal circumstances
47As for your personal circumstances, they can be summarised as follows:
TON
48Mr Ton, you are now 22 years of age and you were 20 at the time of the offending.
49You were born in South Sudan and migrated to Australia with your mother and your four siblings when you were six years of age. South Sudan was plagued by war and you and your family first travelled to Egypt before migrating to Australia. Your father passed away when you were only very young.
50You completed your schooling up until Year 11 and at the age of 18 commenced a roof tiling apprenticeship. This was difficult work and also, it seems, somewhat exploitative. You ended up getting a job in a factory unloading containers, which was the job you had up until the time of your initial remand.
51You have had two significant relationships, one that ended after several years in 2018, and one of a shorter duration ending prior to your remand.
52You started drinking alcohol at the age of 18. You used alcohol to make you feel good or as a crutch for when you were experiencing difficult times. You told psychologist, Sandra Cokorilo, that you drank to 'feel good' when angry or to get through difficult periods. By the age of 19 you were drinking daily. You smoked cannabis daily for a period of three months at age 18 but discontinued its use as it made you drowsy and paranoid. You have also used cocaine occasionally.
53While you have a relevant prior criminal history, it is relatively limited and is mostly comprised of Children's Court appearances and otherwise matters attracting non-conviction dispositions.
54Since your release on bail there was a period of time when you were not working but you have since obtained a job in a factory where you continue to be employed on a casual basis. You currently live at home with your mother and siblings and apparently you are very close to them. Your brother has attended, I note, court in support of you.
55In January of this year you were placed on a community corrections order of 12 months for offending that pre-dates this matter. You have apparently undertaken some drug and alcohol counselling on the order. Most recently I was told that your engagement on the order has been relatively sporadic. There has been some subsequent offending, but I was told that it is confined to driving matters.
DUACH
56Mr Duach, you are presently 24 years of age and you were 21 at the time of the offending.
57You were born in Sudan and came to Australia in 2007 at eight years of age with your entire family. You have nine siblings and you are the third eldest.
58Your family settled in Traralgon and you grew up there. Your father worked as a labourer and your mother was the primary carer of the children.
59You completed Year 12 at Traralgon High School. You were involved in the soccer team in your local area. You commenced employment and at the time of the offending were working as a roof tiler.
60You have not had any significant relationships nor are you partnered.
61Your family have apparently always been supportive of you and remain so. You have had limited visits whilst in custody yet remain in phone contact with them regularly.
62As a teenager you used cannabis but did so infrequently. You also began drinking and would often do so in social settings. At the time of the offending you instruct that you had been drinking and were under the influence of alcohol.
63You have no prior criminal history. You have been in custody continuously since January 2021 and were subsequently sentenced to a substantial term on another unrelated matter which pre-dates this offending and which I will return to shortly.
ATEM
64Mr Atem, you are also of South-Sudanese origin and you have five sisters and two brothers, aged between four and 18. You are the eldest in the family. You are close with all of your siblings but in particular your four year old brother for whom you aspire to be a role model. Some of your siblings have attended court in support of you. You have a positive relationship with your parents, and they remain supportive of you.
65You were born in a refugee camp in Uganda as your family had earlier fled the violence in Sudan. You lived with your family in another camp in Kenya for a few years which you describe as 'Nairobi slums.' In 2004, when you were aged four or five, you came to Australia as asylum seekers.
66Your family first lived in Springvale, then moved to Pakenham. You attended high school at Pakenham Secondary College, completing VCAL in Year 12. You report struggling at school and experiencing some racism.
67Your first job at about the age of 18 was as a roof-tiler. You worked with the same company for about two years. You left when it became apparent that the company was not progressing your apprenticeship.
68You then worked as a full-time concreter for another two years or so.
69You were then unemployed between mid-2022 to March 2023. You have regained employment and work at a company that installs exterior walls on houses.
70You accept that you had too much to drink on the night of the offending and you have made a concerted effort to reduce your drinking since then. You started drinking at around the age of 18 when you were offered drinks at a house party. Your drinking then escalated, coming to a head following the death of your cousin and you continued to drink most days as a way to 'cope'. You report having significantly reduced your drinking and being motivated to become 'one hundred per cent sober.'
71You have no prior criminal history or subsequent offending and your counsel submitted that your offending was completely out of character.
72Presently you live with your family. Your mother and sister have attended court in support of you. You now work as a cladding installer on a full-time basis. You apparently have a good relationship with your current employer who has been mentoring you on how to run your own small team within the company, with your future goal to be starting your own business. I take into account the circumstances that are personal to you.
Other mitigatory factors
Youth
73In all of your cases, your youth is an important consideration. Mr Ton, you had just turned 20 at the time of your offending. I note that had your case been dealt with then, or at that age, a Youth Justice Centre disposition would have been available. Mr Duach and Mr Atem, you were 21 years of age. You were all properly characterised as youthful offenders.
74There are well settled principles in relation to young offenders that have application in your case. The courts recognise that due to their immaturity young offenders may be 'more prone to ill-considered or rash decisions', 'may lack the degree of insight, judgment and self-control that is possessed by an adult …may not fully appreciate the nature, seriousness and consequences of their criminal conduct.' The courts also recognise the potential for a young offender to be redeemed and that their effective rehabilitation in the long term better protects the community from further offending.
75However, I must also weigh these considerations with the seriousness of the offending in this instance. It is a well-established sentencing principle that as the level of seriousness of the offending increases there will be a corresponding reduction in the weight which is given to an offender's youth by way of mitigation. As the court stated in the case of Azzopardi:
The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.[2]
[2] Azzopardi v The Queen [2011] VSCA 372, [44].
76On my assessment, the other relevant sentencing considerations, including general deterrence and denunciation of your conduct, must carry weight in the sentencing discretion in this instance and therefore the mitigating effect of your youth is necessarily reduced. However, given your respective ages, and, Mr Ton, your limited prior criminal history, and Mr Duach and Atem your lack of prior criminal history, despite the seriousness of the offending, in my view your rehabilitation remains prominent in the sentencing discretion.
77There are other mitigatory factors relied upon in your individual cases which I will address now briefly.
Mental health
78In your case, Mr Ton, you were assessed by Ms Cokorilo in mid-2021. Also tendered on your behalf was a neuropsychological report of Dr Harriet Downing dated 2 September 2022.
79In her report Ms Cokorilo assessed you as presenting with major depressive disorder and generalised anxiety disorder. However, upon later assessment by Dr Downing of Mr Jackson's office, you were found to have no elevated symptoms of depression, anxiety or stress.[3] The difference in your presentation appears to correlate with you being in custody for the assessment with Ms Cokorilo, and not for the assessment.
[3] Neuropsychological Report of Martin Jackson dated 2 September 2022; p11.
80Upon assessment for cognitive function, you were estimated to fall within the below average range of intellectual functioning. On formal testing conducted by Dr Downing you obtained a full-scale IQ of 73. There was significant inter-index variability with you performing at an extremely low range in such things as delayed recall for spoken stories and performance on a measure of knowledge of social mores and general concepts; borderline range for overall perceptual reasoning abilities and verbal comprehension abilities and low average range for verbal fluency, reading ability, and overall psychomotor processing speed. Based on available information you did not meet the criteria for a diagnosis of intellectual disability or any other neurological condition.
81On the material presently before the court, and after careful consideration, I am not satisfied that Verdins principles are enlivened, including Limbs 5 and 6.[4] To be clear, however, I do accept that in light of your previous experience on remand and your vulnerabilities you are likely to experience elevated symptoms of depression and anxiety upon return to custody, and you will struggle. When you were on remand you reported to Ms Cokorilo experiencing fear, anxiety, excessive worry and problems with concentration and sleep. I take this into account as part of your circumstances, along with your identified impairments in functioning and vulnerabilities, as described in the reports.
[4] R v Verdins [2007] VSCA 102.
Covid-19 and burden of custody
82Both you Mr Ton and Mr Duach served periods in custody during 2021, when restrictions were in place due to the pandemic. Mr Ton, you served 224 days, and Mr Duach, you were on remand since early January 2021, though I note, again, that most of your PSD has been reckoned on another unrelated matter. I take into account that during these periods there were greater restrictions, causing custody to be more onerous.
Delay
83In respect of all of you, I also take into account that there has been some undue delay in the finalisation of your cases. The offending occurred in January 2021 and I accept that this matter has now been 'hanging over your heads' for an extended period of time, with the uncertainty and stress that this involves. The prosecution submit that there has been no evidence of genuine rehabilitation within this period of time. Mr Duach, you have been confined in custody serving another sentence. Mr Ton and Mr Atem, I take into account that you have been on bail for this period, and it also seems mostly employed and living with your respective families. Mr Atem, you have not reoffended, and Mr Ton, while you have, this has been in respect of driving matters and not similar offending. I take these matters into account in sentencing you.
Prospects of rehabilitation
84In assessing your rehabilitative prospects, I take into account for each of you your young age and also your acceptance of responsibility for your offending.
85Mr Ton, in your case you have a prior criminal history, though, as I have already noted, it is relatively limited. You have maintained and continued employment and have the support of your mother and siblings. I also accept that your period on remand for your first experience of custody, had a salutary impact. Dr Downing considers that you, Mr Ton, are capable of learning, particularly when supported by her suggested strategies, and that you would benefit from working with services to promote specific skill development. Due to your challenges with new learning, she makes a number of recommendations. Ms Cokorilo also considers that you would benefit from engagement with therapeutic interventions to develop functional coping strategies. She also notes that in custody previously you had commenced a drug and alcohol course which you found helpful. Overall, I consider your prospects of rehabilitation to be good.
86Mr Duach, your family remain supportive of you and frequently communicate with you in custody, though this has mostly been remote. Most of them reside in Gippsland which is where you intend to go when you are released from custody. In custody you work as a billet labourer. You have not undertaken any programs to date, or that is what I was told on the last occasion, and you are not on any medication. You apparently do not suffer from any mental health issues or conditions. As His Honour Judge Murphy stated in sentencing you previously, assessing your rehabilitative prospects is somewhat difficult. He noted your youth, family support, education and work history. Ultimately, he considered that your rehabilitation, to some extent, depends on your progress in custody and the courses you undertake. You are currently serving a substantial period which complicates this assessment. Overall, taking into account the protective factors in your case, I regard your prospects as somewhat guarded but reasonable.
87Mr Atem, you have no prior criminal history and there has been no subsequent offending. Your counsel submits that you have led a 'blameless life' and that you present with very good prospects of rehabilitation. I note that Corrections assessed you as being of a low risk of general reoffending. The assessment notes that you have a strong sense of connection to your Sudanese community; you have also consistently been involved in sports, have a good and stable work history and are close with your family. You have also significantly reduced your drinking and are motivated to completely stop. I regard overall your rehabilitative prospects as very good.
Parity
88The principle of parity is a relevant consideration in your case, though a difficult one to apply. The ideal of equal justice requires identical outcomes in cases that are relevantly identical, but different outcomes in cases that are different in relevant respects.[5] In respect of the offending, there is no difference in role or moral culpability between you. You were all also essentially of the same age, although Mr Ton you were the youngest, having just turned 20.
[5] Andrew Apineru v The Queen, Maele Maele v The Queen, Leti Maele v The Queen [2018] VSCA 206; [32].
89There are some differences in your circumstances.
90Your plea, Mr Ton, is properly to be regarded as an early one. Also, you present with some additional limitations and vulnerabilities, as I have already canvassed. Mr Atem, you have no prior criminal history or subsequent matters and I regard you as having very favourable prospects of rehabilitation. Your counsel submitted that there are significant differences in your circumstances which makes parity less relevant in your case. While I accept that there are differences between you and Mr Ton in your personal circumstances, most importantly your lack of any prior criminal history, he has other factors to call upon, as I have already noted. Overall, while your circumstances provide for some differentiation between you, I do not consider that they justify a substantially different outcome.
91Mr Duach, parity is also an important consideration in your case. There are some differences in your circumstances which will need to be reflected. Your plea is not an early one, you also offended while on bail and you are presently serving a substantial period of imprisonment, and I will turn to a consideration of some of these issues now briefly.
Current sentence – Duach
92Mr Duach, you have been in custody since 1 January 2021, though you have only one day in pre-sentence detention available to you on this matter. On 15 December 2022 you were sentenced to a total effective term of nine years' imprisonment with a non-parole period of five years and six months. Following a trial, you were found guilty of two charges of rape that occurred in March 2020. You were on bail for these offences at the time of the current offences. A period of 711 days was declared as pre-sentence detention.
93You will first become eligible for parole on 2 July 2026 and your sentence expires on 2 January 2030.
94Your counsel submitted that the court should take into account all the time that you have spent in custody 'as per the discretion in Renzella’.[6] Clearly, the time that you have spent on remand for other offending must be factored into the sentencing synthesis. That is so whether it is to be regarded as an aspect of the principle of totality or whether it is an application of what is known as the Renzella discretion.
[6] R v Renzella [1999] VSCA 85.
95The principle of totality is essentially a principle of proportionality. In the ordinary case, where sentence is to be imposed for multiple offences, the principle of totality requires the court to ask itself whether the proposed total effective sentence is proportionate to the aggregate criminality involved in all of the offending. It is a difficult task, particularly when a sentencing judge is required to form a view as to the 'aggregate criminality' of quite different offences, as they are here committed on different occasions, and then determine what total sentence would be proportionate to that aggregate criminality. As the Court of Appeal stated in Mohamed v R,
'The totality enquiry does not, of course, end with an assessment of the aggregate criminality involved in the offending. The total effective sentence will only satisfy the requirement of proportionality if it is a just and appropriate measure of the total criminality involved’.[7]
[7] Mohamed v The Queen [2022] VSCA 136; [69].
96I have read and considered the sentence of His Honour Judge Murphy of 16 December 2022 and the circumstances of your offending. The offending was objectively serious, but I do note that you were 20 years of age at the time. In fixing the non-parole period that His Honour did, he considered that your supervised re-entry into society would provide the best protection for the community after entering custody as a young man and serving a substantial period of time.
97In the case of Mohamed that I have referred to, the court concluded that there is no separate principle requiring that a 'crushing' sentence be avoided. Rather, it is a particular expression of the fundamental principle of rehabilitation which requires that the sentence to be imposed should, so far as possible consistently with the other sentencing purposes to be served, promote the rehabilitation of the offender. I intend to give effect to the principle of totality in your case and to the promotion of your rehabilitation by ordering a substantial level of concurrency and by setting a new non-parole period, as I am required to do. That does not significantly increase your current eligibility date for parole.
98When you are eventually eligible for parole, I consider that structured supervision and treatment over a lengthy period of time in the community will best reduce your risk of re-offending and maximise your rehabilitative prospects.
Sentencing principles
99The basic purposes for which a court may impose a sentence are punishment, general deterrence, specific deterrence, denunciation, protection of the community and rehabilitation. Given the nature of this offending, as I have already stated, general deterrence, denunciation and just punishment are prominent considerations.
100I take into account the sentencing guidelines outlined in s5 of the Sentencing Act, as they apply in each of your cases.
101I have taken into account the general sentencing landscape for such offending, and I have considered the cases that have been referred to by counsel.[8] I have been guided and assisted by these cases but ultimately each case does turn on its own facts and circumstances. Ordinarily one can expect to receive a lengthy term of imprisonment for this kind of offending.
[8] Andrew Apineru v The Queen, Maele Maele v The Queen, Leti Maele v The Queen [2018] VSCA 206.
102I have also taken into account the principles of proportionality, parsimony and totality. In respect of totality, while there are separate charges and victims that need to be reflected, the offending occurred during the one incident. Also, as discussed at the hearing, in respect of Charge 4, caution is required to safeguard against any double punishment.
103I have given very close and careful consideration to whether a combination sentence, that is a term of imprisonment combined with a community corrections order, could meet or satisfy the relevant sentencing considerations. On your behalf, Mr Ton, your counsel submitted that the period of time you have served, that is approximately seven and a half months, combined with a CCO, could sufficiently reflect the gravity of the offending and the mitigatory factors. Alternatively, a longer than usual parole period was submitted to be appropriate in all the circumstances.
104Your counsel, Mr Duach, submitted that the offending calls for a term of imprisonment with some concurrency and the re-setting of your total effective sentence and non-parole period.
105Your counsel, Mr Atem, submitted that a term of imprisonment followed by a community corrections order is appropriate. You have only served one day as pre-sentence detention. And I note that you were assessed by Corrections and assessed as a suitable candidate.
106Ultimately, in all your cases the prosecution submits that the objective seriousness of the offending calls for a term of imprisonment comprising a head sentence and non-parole period. Even having regard to the additional term of 12-months' imprisonment that could be imposed in combination with a CCO, the prosecution submits that a combined sentence would be outside the range.
107I have taken into account submissions made on your behalf, which includes, Mr Ton, the detailed submissions made at the sentence indication hearing.
108Your offending was very serious and the consequences devastating and life altering. Public violence of this type is of grave concern to our community and calls for stern punishment and strong denunciation.
109In my view a term of imprisonment is required in order to meet the relevant sentencing considerations. I am also of the view that the seriousness of the offending is such that a combination sentence is unable to address the relevant applicable sentencing principles in this instance. I consider that the only just and appropriate sentence in each of your cases is a term of imprisonment, with a non-parole period.
110In structuring both the total effective sentence and the non-parole period, I have also had regard to your youth, your prospects of rehabilitation as I have assessed them, and the other mitigatory factors that I have referred to. Given your relative youth, I have borne in mind the potential detrimental impact of imprisonment and its corrupting influences and the adverse flow-on consequences this would have for the community.
111With reference to you, Mr Ton, Ms Cokorilo speaks of its potential to entrench offending behaviour patterns in susceptible young adult offenders, such as yourself. In your case, Mr Atem, the assessment report notes 'a lengthy imprisonment term may represent a responsivity consideration as it could have the potential to disrupt the positive changes he has made in his life since the offending took place, most significantly his employment and financial stability.'
112In light of these factors, I also consider that a lengthy supervised period in the community would best promote your rehabilitative prospects and, in turn, best protect and serve the community's interests.
113So synthesising all these matters, I am now going to indicate that each of you are convicted and I am going to impose the following sentences:
TON:
114Mr Ton, if I could ask you to stand, please.
115Now, Mr Ton, I provided an indication, as you are well aware, at the sentence indication hearing that was previously held for you.
116In respect of these matters, I am convicting you and sentencing you as follows:
117Charge 1, reckless cause serious injury, 23 months' imprisonment;
118Charge 2, reckless cause serious injury, 21 months' imprisonment;
119Charge 3, intentionally cause injury, nine months' imprisonment;
120Charge 4, the violent disorder charge, six months' imprisonment.
121The orders for cumulation are as follows:
122Charge 1 is the base sentence. Charge 2, I accumulate five months. And Charge 3, I accumulate two months.
123That arrives at – and counsel if you can confirm – a total effective sentence of 30 months' imprisonment, which is as indicated at the earlier hearing. Ms Warren.
124MS WARREN: Sorry, Your Honour, I was (indistinct) myself. Yes, that's correct, that's my calculation.
125HER HONOUR: Thank you.
126MS WILLARD: That's right, Your Honour, calculated - - -
127HER HONOUR: Thank you. I am setting a non-parole period of 16 months' imprisonment, which I consider, on reflection of all matters, is the minimum term that in all the circumstances justice requires that you serve.
128Pursuant to s18 of the Sentencing Act, I declare that you have already served 224 days' imprisonment, and pursuant to s6AAA I can indicate that but for your plea of guilty I would have sentenced you to a term of some four years and eight months' imprisonment with a non-parole period of two years and nine months. You can take a seat.
DUACH
129Mr Duach, taking into account the totality principle in your case, I intend to impose individually appropriate sentences, but I will reduce the orders for cumulation to ensure the total effective new sentence gives effect to the totality principle, taking into account the overall criminality of your offending and your circumstances, and also the relevant sentencing principles I have referred to. I will then set a new single non-parole period, as I am required to do, pursuant to s14 of the Sentencing Act.
130So you are convicted of each charge and sentenced as follows:
131Charge 1, 25 months' imprisonment;
132Charge 2, 22 months' imprisonment;
133Charge 3, 10 months' imprisonment;
134Charge 4, six months' imprisonment.
135And on the summary charge you are sentenced to seven days' imprisonment.
136Orders for cumulation are as follows:
137Charge 1 is the base sentence. Six months on Charge 2 is to be served cumulatively, three months on Charge 3 is to be served cumulatively, and the remaining sentences will be served concurrently, which ought to arrive at a total effective sentence of 34 months' imprisonment. Ms Warren?
138MS WARREN: Yes, Your Honour, that's correct.
139HER HONOUR: Pursuant to s11(1), I set a non- parole period of 19 months on this sentence. I order that 14 months of the sentence I have imposed be served cumulatively upon the sentence that you are currently serving, which would result in a total effective sentence of 10 years and two months' imprisonment.
140Pursuant to s14, I am required to set a new non-parole period in light of the global total effective sentence as between Judge Murphy's sentence and my order for cumulation. Your new overall non-parole period will be six years and two months with the commencement date being the date of commencement of His Honour's sentence on 16 December 2022.
141In other words, to make plain, my intention is to add 14 months to your total effective sentence and to fix a new non-parole period of six years and two months, thereby adding eight months to your non-parole period and back-dating it to the date of the sentence imposed on 16 December.
142On my understanding, s14 can either be achieved by backdating the new single non-parole period, I declare to the date of the original sentence, which is what I have done, or I can direct that it commences today.
143You remain entitled to the 711 days of pre-sentence detention that was declared by His Honour Judge Murphy on 16 December 2022, and additionally, I declare a further one day in pre-sentence detention pursuant to s18.
144Now, counsel, can I say, if my orders do not have this effect then the matter should return to me for any necessary corrections or clarifications. But I have been at pains to indicate precisely what my intention is because I do appreciate that in an interpretation of these sentences there may be a difference, and if so, it would need to come back before me for correction. Ms Warren, the way in which I have done it is, as I consider I am perfectly entitled to structure it in that way, and also he continues to be entitled to the previous declaration of PSD but he has an additional one day, which I have effectively added.
145So my concern is that it might complicate the sentence by adding that one day, but I hope it doesn't, I hope that it's relatively clear to the authorities.
146MS WARREN: No, I think Your Honour's made it as clear as possible, so hopefully that is the outcome, yes, Your Honour.
147HER HONOUR: All right, thank you. Pursuant to s6AAA, I can indicate that but for your plea of guilty I would have sentenced you to a total effective term of some four years and 10 months' imprisonment with three years and three months as a non-parole period. That is a somewhat artificial task, I must say, in your case, Mr Duach, given that you are already serving a substantial term of imprisonment, but I give that broad indication.
ATEM
148Mr Atem, if I could ask you to stand, please.
149Mr Atem, in relation to you, you were convicted and you are sentenced as follows:
150On Charge 1, you are sentenced to 22 months' imprisonment;
151Charge 2, 20 months' imprisonment;
152Charge 3, eight months' imprisonment;
153And Charge 4, five months' imprisonment.
154The orders for cumulation are as follows:
155Charge 1 is the base sentence. On Charge 2 there is four months' cumulation, on Charge 3 there is one month cumulation, and Charge 4 will be served concurrently.
156That arrives at a total effective sentence of 27 months' imprisonment, and I set in your case a non-parole period of 14 months.
157I declare, pursuant to s18 that you have served one day in pre-sentence detention.
158I can indicate pursuant to s6AAA that had you not pleaded guilty I would have had you serve some four years and three months' imprisonment with a non-parole period of two-and-a-half years or two years and five months. You can take a seat.
159Counsel, those figures in Mr Atem's case should arrive at the total effective term that I have indicated. Do you agree?
160MS WARREN: I agree.
161MS WILLARD: Okay.
162HER HONOUR: Thank you. Was there anything further in terms of any other orders? Ms Warren, are you able to remind me please?
163MS WARREN: There was a disposal order, Your Honour.
164HER HONOUR: And that was unopposed, is that correct, counsel? Does anybody have a memory of the disposal order?
165MR BHATTACHARYA: I'm not sure if it was in relation to Mr Atem, Your Honour.
166HER HONOUR: Just one moment. Ms Warren, was it just the one order?
167MS WARREN: There's named all three – all three accused, Your Honour. I'm just trying to see if Your Honour actually made it on the last occasion.
168HER HONOUR: Look, I might have. We've had a number of hearings, haven't we, the sentence indication, the pleas and then the administrative adjournments.
169MS WARREN: We have, yes - - -
170HER HONOUR: So it might be - forfeiture and disposal, here we go. Disposal order – did I make it, Harry? It hasn't been made? So disposal is sought of the items that are attached to the disposal order, is that right? Items 13, 14, 16, 18, 19, 20, 21 through to 37 – yes?
171MS WARREN: I've got through to 57, Your Honour. There's some gaps - - -
172HER HONOUR: I see, yes. Okay. Ms Willard, Mr Bhattacharya, do you both have a copy of the order? It was served, it was just a while ago that it was provided.
173MR BHATTACHARYA: I'm just finding it now, Your Honour, I'm sorry.
174HER HONOUR: Ms Willard.
175MS WILLARD: I'm just finding it now too.
176HER HONOUR: Would the parties be content if I indicate that – I mean, I know that this was raised previously and I am also confident it was not an issue; if I give counsel an opportunity to confirm and then I'd be prepared to make, if it's consented to, the administrative order in chambers, and that way Mr Antos might be able to confirm his position also.
177MS WILLARD: As Your Honour pleases.
178MS WARREN: I am content with that, Your Honour. I have just forwarded it to Ms Willard and Mr Bhattacharya, so they should have that - - -
179HER HONOUR: Okay. All right, counsel - - -
180MS WARREN: But I'm content with - - -
181MR BHATTACHARYA: I have seen it, there wouldn't be opposition from Mr Atem, Your Honour.
182HER HONOUR: Okay. No opposition, Ms Willard.
183MS WILLARD: I do recall that – hang on a second, I'll see if it's come through.
184HER HONOUR: I think what I might do, Ms Warren, if you have no difficulty with it, is I'll permit counsel – I'll give them some two days or so to indicate their position and that way Mr Antos also can indicate his position. Then, if everybody agrees, I'll simply make it in chambers, if not, we can resume court.
185MS WARREN: Yes, Your Honour, no issue with that.
186HER HONOUR: I'll deal with it that way. Ms Willard, that will give you a full opportunity to ensure that that's correct. Aside from those orders, anything further Ms Warren?
187MS WARREN: No, thank you.
188HER HONOUR: Counsel, do you wish for me to note any custody management issues? Mr Atem, effectively is going into custody as a first time young person - - -
189MR BHATTACHARYA: First time, yes.
190HER HONOUR: So I will have that noted on the remand warrant. Thank you. Are there any other matters that need to be noted? He's not on any medication or anything of that description, is he - - -
191MR BHATTACHARYA: No medical issues, no, Your Honour.
192HER HONOUR: I will also, Ms Willard, have noted in Mr Ton's case that – I might have noted the following: that he has been assessed as full-scale IQ of 73 and has previously been assessed as suffering from anxiety and depression in custody.
193MS WILLARD: Yes.
194HER HONOUR: And also obviously his youth will be noted. Are there any other matters that you wish for me to have noted?
195MS WILLARD: No, Your Honour. Thank you for that.
196HER HONOUR: Okay. Now can I just confirm then counsel, there is nothing further?
197MS WILLARD: No, Your Honour.
198MR BHATTACHARYA: No, Your Honour.
199HER HONOUR: All right. What I'll permit, and perhaps I'll just address this to security who are present in court; can both men remain in the dock where they are, in particular to facilitate, to allow Ms Willard an opportunity to speak to Mr Ton once people have left the link. Any difficulty with that?
200VOICES (from body of court): No, Your Honour.
201HER HONOUR: So if that could be facilitated. Mr Bhattacharya, that will give you an opportunity too, but do wait for a moment. And I would ask other people in court who are not involved directly in that process to allow it to occur. So you'll have that opportunity, Ms Willard.
202MS WILLARD: Thank you.
203HER HONOUR: I would also like to thank – I can see just on the link, there might be others present, but I can see Ms Anderson and also I note Mr Bradbury is present and I thank them for their attendance today also. Counsel, thanks very much for your assistance and the court is adjourned.
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