Director of Public Prosecutions v Awo
[2017] VCC 1801
•28 November 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-00985
CR-17-00986
CR-17-00987
CR-17-00526
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PULIOS AWO AND REGAN AUGUSTINE AND PADIET DENG |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 September and 19 October 2017 | |
DATE OF SENTENCE: | 28 November 2017 | |
CASE MAY BE CITED AS: | DPP v Awo & Ors | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1801 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: -Armed robbery, attempted armed robbery and criminal damage – 3 offenders acting together with weapons (1 shotgun and 2 machetes) – faces disguised – soft targets.
- Offender Awo (aged 22) with additional charge of possessing a drug of dependence and prohibited person possessing a firearm - limited criminal history – total effective sentence 3 years imprisonment with non-parole period 18 months (278 days pre-sentence detention reckoned as time already served)
- Offenders Augustine (aged 19 years 10 months) and Deng (aged 19 years 6 months) – both with significant criminal histories – total effective sentence 3 years detention in a Youth Justice Centre (278 days pre-sentence detention not reckoned as time served)
- Offender Deng – additional offending – handling stolen goods and theft of a motor vehicle – total effective sentence 155 days imprisonment (155 days reckoned as time already served)
Legislation Cited: Criminal Procedure Act 2009; Sentencing Act 1991; Confiscation Act 1997
Cases Cited:Azzopardi & Ors v The Queen [2011] VSCA 372; DPP v R.E.E [2002] VSCA 65; R v Graham Patrick Gilbert, Unreported 16 September 1994; R v Hill [1996] 2VR 496 at 505; R v Mills [1998] 4 VR 224; R v Misakka [1995] VSC 215; R v Verdins (2007) 16 VR 269
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms H Bate | Solicitor for the Director of Public Prosecutions |
| For the Accused Awo | Mr A Chernok/ Mr S Parker | Theo Magazis & Associates |
| For the Accused Augustine | Mr B Johnston/ Mr R Lawrence | James Dowsley & Associates |
| For the Accused Deng | Mr F Ralph | C. Marshall & Associates |
HER HONOUR:
1 Pulios Awo, Regan Augustine and Padiet Deng, you have each pleaded guilty to one charge of armed robbery, which carries a maximum penalty of 25 years’ imprisonment, one charge of attempted armed robbery which carries a maximum penalty of 20 years’ imprisonment and one charge criminal damage, which carries a maximum penalty of 10 years’ imprisonment.
2 In addition, Pulios Awo, you have pleaded guilty to one charge of possessing a drug of dependence, cannabis. As the prosecution has conceded that the cannabis was not possessed for the purpose of trafficking, this offence carries a maximum penalty of imprisonment of 1 year. Further, you have pleaded guilty to one charge of being a prohibited person in possession of a firearm, which carries a maximum penalty of 10 years’ imprisonment.
3 In addition, Padiet Deng, you have pleaded guilty to one charge of handling stolen goods, which carries a maximum penalty of 15 years’ imprisonment and one charge of theft, which carries a maximum penalty of 10 years’ imprisonment. Further, you have consented to one summary charge of committing an indictable offence (namely, armed robbery) whilst on bail, being transferred to this Court pursuant to s145 of the Criminal Procedure Act 2009. You have pleaded guilty to that charge, which carries a maximum penalty of 30 penalty units or 3 months’ imprisonment.
4 The circumstances of the armed robbery, attempted armed robbery and criminal damage charges are detailed in the summary of prosecution opening (Exhibit “B”). All of these offences were committed on 23 February 2017. The armed robbery occurred at 3.50am at the United Service Station in Heatherton Road, Narre Warren. Each of you had your faces disguised. Mr Awo was carrying a 12 gauge double barrel shotgun and Mr Augustine and Mr Deng were each holding a machete. There were two persons present at the service station. One of them was Mr Chhabra, who looked up when he heard a knock on the window. He was so frightened by seeing one of you, wearing black clothing, with your face covered and holding a large knife, that he ran out of the front door of the shop to a roundabout, screaming for help. The other person, Mr Singh, was in the back room of the premises when he heard Mr Chhabra screaming. When he saw Mr Chhabra running out of the shop, he tried to hide himself in the console area. All of you entered the store. Mr Awo came towards Mr Singh, screaming “where is the money” and Mr Singh opened the till with a key. Cash totalling $585 was taken, and a demand was made for more money and cigarettes. Mr Augustine produced a bag which he held open, while Mr Singh handed over cigarettes. Mr Augustine then came behind the counter and helped himself to approximately $6,355 worth of cigarettes, which he put into the bag. The armed robbery was captured on CCTV. Still photographs from the CCTV footage were tendered as part of Exhibit “E”.
5 The three of you left the service station and, shortly afterwards, at 4.20am, you committed an attempted armed robbery. This was at the Pinewood Newsagency in Centreway, Mount Waverley, where three employees were working. Mr Jackson and Mr Daulagala were working in the front of the shop, whilst Mr Eishold was working in the back office. Mr Awo appeared in the entrance of the shop holding the double barrel shotgun. He directed Mr Jackson and Mr Daulagala to go to the rear of the shop where Mr Eishold was working. The three of you entered the shop, with Mr Awo holding the shotgun and Mr Augustine and Mr Deng holding machetes. In their statements to police, your victims refer variously to pieces of cloth or hoodies covering part of the face of the perpetrators.[1] In addition, Mr Awo took steps to ensure that various items or surfaces were rubbed to avoid fingerprints being left. Mr Awo asked for the keys to two safes and to the cigarette locker. Mr Eishold stated that, because the bosses were not there, nothing was open. This conduct comprises Charge 2, attempted armed robbery.
[1]Mr Eishold’s statement, p78 Depositions; Mr Jackson’s statement p82 Depositions; and Mr Daulagala’s statement, p86 depositions
6 Whilst your victims remained at the rear of the shop, Mr Augustine and Mr Deng walked to the front of the shop. From the back room, banging noises could be heard coming from the front of the shop. Your offending on Charge 3, criminal damage, involved attempting to force the cigarette cabinet open. It had a locked white roller door covering it. Multiple horizontal indentations, incisions or markings were left on the roller door consistent with unsuccessful attempts to open it by using a machete or machetes. These markings are depicted in photographs 219 and 220 forming part of Exhibit “E” on the plea.
7 The offences which I have just described are of a seriously violent and disturbing nature. Mr Chhabra, one of the employees at the service station, was so terrified that, when he managed to stop a passing motorist in order to call the police, he asked the motorist to stay with him because he was so scared. Mr Singh pleaded with Mr Awo, “please brother, don’t hurt me, I have a family”. He told police he was very scared throughout the whole incident, and decided to speak nicely and co-operate because of the fact that the three of you were holding weapons. The still photographs from the CCTV footage are a picture of chilling menace – 3 young men in dark clothing, with faces covered and holding weapons. The photograph of the shotgun shows it to be approximately 60 centimetres in length.[2] Each of the machetes are very nasty looking knives. One had a solid blade of approximately 16cm in length.[3] The other had a substantial and curved blade measuring approximately 36 centimetres with significant serrations on the upper part of the blade.[4]
[2]Photographs 291 and 292 of Exhibit “E”.
[3]Photograph 302 of Exhibit “E”.
[4]Photograph 304 of Exhibit “E”
8 The victims from the newsagency, also, were very frightened by your violent intrusion, as they were going about their jobs in the early hours of the morning. In a Victim Impact Statement from Mr Daulagala (Exhibit “C”), he described being unable to go to work, at all, for a couple of months and losing money. He stated that he still feels scared as he works in the early morning, suffers disturbed sleep, needs to see a psychologist because the incident is always on his mind and experiences ongoing worry and fear for his family.
9 Mr Eishold, another of the victims from the newsagency, made a Victim Impact Statement (Exhibit “D”). He described how your criminal offending has changed his outlook on life and increased the stress of working in his job at night time. He is now very suspicious of people. He stated that the relaxed environment in which he had worked has changed. Now, he is forever concerned about the safety of himself and others.
10 The third victim of your offending at the newsagency, Mr Jackson, told police that he was frightened for his life.
11 All of the matters described by the victims are foreseeable and understandable consequences of your terrifying behaviour towards people who were just minding their own business, getting on with their jobs, when you violently invaded their workplaces. The impact of your offending was all the greater because the three of you were acting in company, dressed in dark clothing, with your faces disguised, and all holding weapons. These factors demonstrate, some degree of pre-meditation and planning and were calculated to intimidate others and to avoid detection. Unfortunately, armed robberies or attempted armed robberies on “soft targets”, who work late at night or in the early hours of the morning, are prevalent criminal offences. They are crimes of a deeply unsettling and antisocial manner and breed feelings of fear and insecurity in our community. In sentencing for these crimes, this Court must denounce your conduct, place emphasis upon general and specific deterrence and impose just punishment. The Court must be mindful of the need to protect innocent members of the community who are at work, from acts of wanton violence, particularly acts committed by multiple offenders acting together.
12 As part of the individual pleas in mitigation on behalf of you, it was put that each of you were young and easily led by peers. If that is so, each of you, in a state of immature vulnerability, must have been led on by the others. You need to understand that you are all equally culpable for this serious offending and take responsibility for it. It was also put on behalf of each of you that you had come from your birthplace in Africa, where you grew up in an atmosphere of conflict, violence, and fear for your safety. It is an irony that, having been granted asylum as a refugee in this country, you should then commit acts of brazen violence, disturbing the peaceful dignity of others, causing them to be in fear for their safety. Each one of you should feel deeply, deeply ashamed for the serious abuse of hospitality which has been shown to you in Australia, which has provided refuge for you and your families. Your appalling conduct has caused ongoing adverse psychological consequences for 5 citizens who were simply going about their business of earning a living.
Pulios Awo
13 Pulios Awo, you have just turned twenty-two years of age, having been born on 27 November 1995. You were aged 21 years and 3 months at the time of offending. Both of your parents were born in the Sudan, but you lived with them for a number of years in Egypt, before you arrived in Australia with your family. This was in 2009, when you were aged approximately fourteen years.
14 Although you are the oldest of the 3, you have the least serious criminal history. You come before the court with one prior court appearance, for some twelve offences, at Melbourne Magistrates’ Court on 29 June 2016. These include a number of offences of dishonesty, including handling stolen goods, burglary, theft, and dealing with property suspected of being the proceeds of crime. Without conviction, you were sentenced to undertake a community correction order for a period of six months. You apparently breached that order through non-attendance and it was ultimately cancelled in the Magistrate’s Court on 3 May 2017. Your offending on Charges 1 and 2 represents significant escalation in offending.
15 In a plea on your behalf, the court was asked to take into account that this offending occurred over the course of a single evening, was relatively unsophisticated, and was consistent with your immaturity and use of methylamphetamine at the time. The court was also asked to take into account your early pleas of guilty, the fact that you have a law-abiding and supportive family, and that you had acknowledged the seriousness of your offending and exhibited remorse and victim empathy when you were assessed by Mr Cummins, forensic psychologist, on 21 July 2017.
16 Mr Cummins’ report, which was tendered as Exhibit “D1-1”, noted that you attended Dandenong Secondary College until age eighteen, but did not sit your Year 12 exams, and had then spent almost 12 months unemployed, during which time you hung around with mates, abusing alcohol and drugs. You had smoked cannabis, up to three or four grams daily, to the age of about nineteen, then smoked cocaine and methylamphetamine regularly for approximately 18 months prior to your offending. He noted that you had attended a warehousing course and a bar-tending course and had had some work as a waiter, which caused you not to fulfil the obligations of your community correction order, made on 29 June 2016.
17 Mr Cummins assessed you as not attracting any specific mental health diagnosis, other than the diagnosis of a stimulant-use disorder. He stated that you had told him that you deserved to be punished for what you did. You thought you were immature at the time, and this had made you decide not to use drugs ever again. He stated that you expressed regret and remorse concerning your involvement, and that the high level of violence must have been due to you being under the influence of methylamphetamine at the relevant time. Mr Cummins stated that you appeared capable of displaying empathy and were able to speak about the concept of victim empathy.
18 He assessed you as being relatively immature, which, in his opinion, also played a role in your offending. He noted that, at the time of offending, you were working, and residing with your parents in a loving and caring family environment, and he considered that your prospects of rehabilitation appeared to be favourable, provided you remain drug-free.
19 Mr Cummins overstepped his professional boundaries by suggesting that a combined sentence involving a period of imprisonment and a community correction order would be clinically appropriate. This sentence was also advocated on your behalf by your counsel. I regard such a sentence as being manifestly inadequate for the grave offending for which I must sentence you. However, I accept that, although you are not a “young offender” within the definition in s.3 of the Sentencing Act 1991, you have only just had your 22nd birthday. It is possible that, as your first ever experience of custody has been in an adult prison, this may have been something of a “wake-up call” for you. Certainly, you told Mr Cummins that you have decided never to use drugs again.
20 I note the contents of the affidavit of Brendan Francis Money sworn on 12 October 2017 (Exhibit “D1-2”). Whilst on remand, you have, on occasions, attracted the attention of the sentence management panel, and been reported “to have a propensity to or pattern of regularly using significant violence against others, but also present as vulnerable in the custodial environment”[5]. I make it plain that, in sentencing you, I take no account of any material in Mr Money’s affidavit regarding alleged offending whilst in custody on remand. However, in all of the circumstances, there is no appropriate sentence other than an immediate custodial sentence and, given your age, this must be in the adult prison system.
[5]Paragraph 12 of Mr Money’s affidavit.
21 I am conscious of the principle of parity and the fact that, unlike your two co-offenders, you are too old to be considered for a youth justice order, even though I accept that you are immature, as Mr Cummins has said, and that this factor and your drug use lie behind your offending. It is difficult to apply parity when the regimes for sentencing adult and young offenders are different. In your case, this has lead me to mitigate the head sentence imposed, which might, otherwise, be considered very lenient. However, it is important to bear in mind that adult prison is significantly more onerous than youth detention and I am mindful of Mr Money’s comments about your vulnerability in adult custody.
22 You have the least serious criminal history of the three of you and have a very supportive family, many of whom were present at the plea hearing. Even though you have breached a Community Corrections Order, you have shown a capacity for work before being remanded in custody. This has been demonstrated, also, by you working as a billet doing cleaning work whilst in custody, for which you have received positive reports.[6] I note, also, from Mr Money’s affidavit that you have completed a drug and alcohol participation program and the 12 hour youth substance use and emotional management program. Further, there is no indication that you have been using illicit drugs whilst in custody. Overall, I assess your prospects of rehabilitation to be considerably better than your two co-offenders. For these reasons, I consider it appropriate to set a shorter than usual non-parole period in your case.
[6]Paragraph 13 of Mr Money’s affidavit.
23 Your propensity for violence is a grave concern, as is the fact that you have escalated in the seriousness of your offending. However, if you vow to keep clear of illicit drugs and anti-social gangs, it may be that this factor can be addressed. You are the only one who can make this decision. If you don’t make it, your life is likely to be a wasted and wretched one.
24 Although the firearm offence, Charge 4, is a discrete offence, I take into account that the shotgun was not loaded and that there is no evidence that you had possession of it for a criminal purpose other than the offences for which I must sentence you. Of course, your victims did not know that it was unloaded, but I am mindful of the principle of totality and of not imposing double punishment in circumstances where the criminal activity associated with the possession of the weapon is the armed robbery and attempted armed robbery.
25 In arriving at the sentence I intend to impose, I have taken into account the submissions made on your behalf. I regard your early pleas of guilty as evidence of remorse as articulated by you in Mr Cummins report. For this factor you are entitled to a high discount upon the sentences which, otherwise, would have been imposed.
26 On Charge 1, armed robbery, you are convicted and sentenced to 2 ½ years’ imprisonment.
27 On Charge 2, attempted armed robbery, you are convicted and sentenced to 2 years imprisonment.
28 On Charge 3, criminal damage, you are convicted and sentenced to 3 months imprisonment.
29 On the Summary Charge of possessing cannabis, you are convicted and the charge is dismissed pursuant to s76 of the Sentencing Act 1991.
30 On the Summary Charge of being a prohibited person in possession of a firearm, you are convicted and sentenced to be imprisoned for a period of 9 months.
31 The sentence imposed on Charge 1 is the base sentence. I direct that 6 months of the sentence imposed on Charge 2 be served cumulatively on Charge 1. Save for such cumulation, all other sentences of imprisonment imposed this day are to be served concurrently.
32 The total effective sentence is 3 years imprisonment.
33 I direct that you serve a period of 18 months imprisonment before becoming eligible for release upon parole.
34 I declare a period of pre-sentence detention of 278 days be reckoned as time already served under the sentence imposed this day.
35 Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your pleas of guilty, the total effective sentence would have been 7 years’ imprisonment with a non-parole period of 5 years.
36 Pursuant to section 78(1) of the Confiscation Act 1997, I order the forfeiture to the State of ‘Quantity of GVM – Approximately 1 gram TEAB T500190354’ and ‘3 x Bags containing white powder TEAB T500190357’, and I further direct that these items be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceeding where it may be tested and/or analysed and then destroyed.
37 Pursuant to section 33(1) of the Confiscation Act 1997 I order that ‘1 x double barrel side by side shotgun – S/N 237991’ be forfeited to the Minister.
Regan Augustine
38 You are presently aged 19 years and 10 months, having been born on 27 January 1998. You committed these offences one month after your 19th birthday. You come before the Court with three prior court appearances.
· On 26 February 2016, you appeared before the Dandenong Children’s Court for a number of offences of dishonesty and violence, which included two charges of armed robbery. Without conviction, you were released on a Youth Supervision Order for a period of 12 months.
· On 22 September 2016, you appeared in Dandenong Magistrates’ Court on driving and dishonesty charges. You were convicted and ordered to undertake a Community Correction Order for a period of six months, which included a condition that you perform 75 hours of unpaid community work.
· On 22 September 2016, you also appeared in Dandenong Children’s Court charged with breach of the Youth Supervision Order which had been made on 26 February 2016. Again, without conviction, you were released upon a further Youth Supervision Order for a period of eight months. This included a condition that you complete the motor vehicle offenders program.
39 It is an aggravating feature of the offending for which I must sentence you that, by it, you breached both the second Youth Supervision Order, which was given to you on 22 September 2016, and the Community Correction Order made on that same date.
40 In a plea on your behalf, the Court was told that you were born in Kenya in a refugee camp. Your mother had fled from her home in the Sudan. You are the second youngest of five children. You suffered significant social disadvantage in Kenya, including a complete lack of schooling. At the age of 9 years, you came to Australia as a refugee, with your mother and siblings. Your father did not come to Australia with the rest of your family and you have had no contact with him.
41 Upon arriving in Australia, you resided in Western Australia and, in your early teenage years, the family moved to Dandenong where you attended Dandenong High School. You completed Year 11, but did not complete Year 12. You met your co-accused at high school, and had begun using illicit drugs in your mid-teens – initially cannabis and, later, ice and cocaine. You instructed your counsel that you were addicted to ice and using it on a daily basis at the time of these offences, at which time you were effectively homeless. By reason of your offending, you have become estranged from your mother, who no longer speaks to you. However, your sister, Lillian, was in Court to support you and has visited you twice at Fulham Prison where you have been held on remand. None of your four siblings (aged 25, 24, 22 and 12) has been in any trouble with the law.
42 Your counsel stated that you had witnessed deaths and other violence in Kenya. No psychological or psychiatric report was filed on your behalf. Your counsel asserted that you had witnessed the death of two persons being shot and that your uncle had been poisoned and both of these events were relied upon in support of your family’s application for asylum. However, no documents relating to that application were tendered at the Plea hearing.
43 Your counsel stated that you had found it “scary” being in custody for the first time, particularly given that it has been at an adult prison and that you fear being stabbed by other inmates, as you have witnessed stabbings whilst on remand. You instructed your counsel that you have remained drug-free whilst on remand and this is the longest period that you have not taken drugs since becoming addicted to ice when you were in Year 12 at school. This is a matter to your credit. Your counsel stated that you work as a garden billet and have undertaken a number of courses, including a 24 hour drug and alcohol program, an anger management course and an English literacy course.
44 Your counsel urged the Court to regard your early plea of guilty as being indicative of remorse and urged that you be considered for a youth justice centre order.
45 Tendered as Exhibit “D2-1” on the plea was a report authored by Ms Aimee Hughes, Acting Team Leader with the Department of Justice in the South East Metropolitan Region. Her report dated 20 September 2017 stated that you first commenced involvement with the Youth Justice system on 18 November 2015, when you were remanded to the Parkville Youth Justice Precinct and, later, released on supervised bail. She then recites the history to which I have previously referred, namely, that following that, you were placed on a 12 month Youth Supervision Order on 26 February 2016. You breached this by further offending, but were given another opportunity by way of Youth Supervision Order on 22 September 2016. You breached this second Youth Supervision Order by further offending, although no breach proceedings have yet been instituted.
46 Ms Hughes stated that, prior to being remanded in adult custody on 23 February 2017, you had attended only 12 of 22 scheduled appointments with Youth Justice. She noted that Youth Justice had enrolled you in a Certificate I in Building and Construction, which you had completed in December 2016. In January 2017 Ms Hughes attempted to enrol you in a bricklaying course, but you did not appear to be interested. She stated that you had been untruthful in claiming that you had suffered a fractured spine after falling off a roof when in fact it had been incurred during a motor car accident. However, she did state that, after attending one session with the Youth Support and Advocacy Service, you had ceased smoking cannabis in September 2016.
47 Ms Hughes was asked to provide a pre-sentence report assessing your suitability for a youth justice centre Order. Her report dated 25 September 2017 was tendered as Exhibit “D2-2”. In that report, Ms Hughes, who has continued to visit you whilst you have been remanded at Fulham Prison, stated that you appear to have taken “some” responsibility for your actions and displayed victim empathy and remorse. She noted that you had previous links to gang-related violence, namely the “Apex” gang, for which you had been given your first Youth Supervision Order. She noted that you have the support of your older sister, Lillian. Also, you told her that you are agreeable to accessing drug and alcohol counselling to address your ice and cannabis use and now state that you are interested in completing the pre-apprenticeship in bricklaying. She considers these factors bode well for your rehabilitation. In addition, she noted that you are in the younger age of offenders within the adult prison system. She stated that you had spoken of witnessing assaults and been threatened to “watch your back” and had your shoes stolen from you whilst in custody “demonstrating (your) propensity to be victimised”. She stated that you had spoken of experiencing flashbacks regarding traumatic events in your life, which have not been addressed in a therapeutic setting. She considered that, pursuant to s32(1) of the Sentencing Act 1991, which takes into account age, prospects of rehabilitation or/and if a young person is particularly impressionable, immature or likely to be subject to undesirable influences in prison, you are considered suitable for detention within a youth justice centre.
48 Following the part-heard adjournment of the plea, I requested that Ms Hughes provide the Court with a supplementary report detailing the particular basis for her assessment that you have reasonable prospects of rehabilitation and are particularly impressionable, immature or likely to be subject to undesirable influences in an adult prison. A supplementary report dated 16 October 2017 was tendered as Exhibit “D2‑3”. As far as the basis for you having reasonable prospects of rehabilitation are concerned, the only additional factor mentioned by Ms Hughes was that you would be able to participate in the adolescent violence intervention program facilitated by Youth Health and Rehabilitation Service if you were placed in youth detention and, also, whilst subject to a Youth Parole Order. In addition to the matters in her earlier report, she indicated that you had spoken of a desire to return to team sports, describing yourself as a good sportsman.
49 As far as being particularly impressionable, immature or likely to be subject to undesirable influences in an adult prison is concerned, she noted that you were one of only four young offenders in Fulham Prison. She reiterated her note in the previous report that you had been experiencing flashbacks regarding traumatic events in your life, and specifically stated that these related to your childhood in Kenya. She also added that you had told her you had suffered previous suicidal ideation, but you had never told anyone about this. She stated that you had described your time at Port Philip Prison as “like a camp that is trying to make you feel depressed” and she expressed concern that your mental health may deteriorate further.
50 At the adjourned plea hearing on 19 October 2017, an affidavit from Brendan Francis Money, Assistant Commissioner of the Sentence Management Division, Corrections Victoria, sworn on 13 October 2017, was tendered as Exhibit “D2-4”. He noted that when you had been received into the Metropolitan Assessment Prison on 3 March 2017, you had been classified as a medium security risk. You had been placed in a mainstream unit there and on 9 March 2017, transferred to a mainstream unit at Port Philip Prison. On 7 March 2017, you met with the Sentence Management Panel and on 13 March 2017, you were transferred to Fulham Correctional Centre, which is a medium security prison, where you receive between 12 and 13 hours out of your cell compared to eight hours at the Metropolitan Assessment Prison and 11.5 hours at the Port Philip Prison. I make it plain that, in arriving at the sentence which I intend to impose, I have not taken into account any incidents of alleged misconduct whilst you have been on remand.
51 I have some reservations concerning Ms Hughes’s assessment that you have demonstrated reasonable prospects of rehabilitation in the light of your having been afforded a second opportunity to serve a Youth Supervision Order, but breached both this and a Community Correction Order by committing the violent offences for which I must sentence you. However, you are “young offender” within the definition in s.3 of the Sentencing Act and have not previously served a custodial sentence of any sort. Thus you have not had an opportunity to serve a sentence in a Youth Detention Centre.
52 I note that, as you are approaching your 20th birthday next January, you fall at the upper end of those who are detained in youth justice centres. In order to accede to the submission of your counsel that a disposition by way of a youth justice centre order is appropriate, I would need to tailor the total effective sentence to accommodate the 3 year maximum period for detention in a youth justice centre. As a total effective sentence of this length would not, in my view, adequately reflect the gravity of your offending, it would be necessary for me to not declare that your 278 days pre-sentence detention be reckoned as time served under my sentencing order. This would be an unusual course given the terms of s.35 of the Sentencing Act. It is not something which should be done without very careful consideration lest it be seen to undermine the legislative basis for a youth justice centre order.
53 The prosecution has conceded that a youth justice centre order is within range as a sentence for you. However, neither your counsel or the prosecution took me to any authorities on this point or to particular features of your case which would justify such a course. The use of such a “device” has been acknowledged as possibly appropriate in a case of a youthful offender. That is because generally, rehabilitation is more important than general deterrence and it is desirable to avoid sending a youthful offender to an adult prison, particularly for a first offence.[7] Of course, you are not a first time offender and this “device” may not be readily applicable where you have already spent 278 days on remand in an adult prison. I have anguished about this matter. Clearly, you have already undergone some relevant punishment on remand and in adult custody. It may be that this has already had some specific deterrent effect upon you. In the end, I have determined that I should take this course in your case, as Ms Hughes is apparently very well acquainted with you, having known you since about 2015 when you first came into contact with the juvenile justice system. For this reason I consider that I should place some weight upon her opinion concerning your vulnerability in adult custody. Obviously she is not a psychologist, but the features of traumatisation to which she refers are not uncommon with refugees from Africa. I take your background of disadvantage and apparent traumatisation into account as part of your relevant personal circumstances, even though there is no evidence before the Court that could satisfy the elements of R v Verdins.[8]
[7]R v Hill [1996] 2VR 496 at 505;R v Graham Patrick Gilbert, Hampel J, Supreme Court of Victoria, Unreported 16 September 1994; DPP v R.E.E [2002] VSCA 65
[8](2007) 16 VR 269
54 Notwithstanding the seriousness of the offending for which I must sentence you, which necessitates denunciation of your conduct, emphasis upon general and specific deterrence, just punishment and the need to protect the community, I consider that it would be wrong of me to ignore your young age and not make a disposition to allow you to serve a sentence in a Youth Detention Centre to see whether you can turn your life around and be rehabilitated to be a productive citizen. It has long been acknowledged that, where appropriate, a rehabilitative approach should be the predominant consideration in sentencing a young offender. Otherwise, the concern is that criminal tendencies may become entrenched by mixing with older, experienced criminals in adult custody.[9]
[9]R v Mills [1998] 4 VR 224; R v Misakka [1995] VSC 215 especially at [4]; Azzopardi & Ors v The Queen [2011] VSCA 372
55 Although I have reservations, I consider that, if you are able to abstain from using illicit drugs, your prospects of rehabilitation should be reasonable. As I have said, it is to your credit that you appear not to have used illicit drugs whilst in custody. I note that you have been assessed as a medium security risk, whereas Mr Awo and Mr Deng have been classified as maximum security risk prisoners.[10] I accept that you are likely to be subjected to undesirable influences in an adult prison.
[10]Mr Money’s affidavit, paragraph 6.
56 I have taken into account your early pleas of guilty although there is no evidence that they are necessary remorseful. and having regard to the nature of the offences and your age, character and past history, I sentence you as follows:
57 On Charge 1, armed robbery, you are convicted and sentenced to be detained in a youth justice centre for a period of 3 years.
58 On Charge 2, attempted armed robbery, you are convicted and sentenced to be detained in a youth justice centre for a period of 2 ½ years.
59 On Charge 3, criminal damage, you are convicted and sentenced to be detained in a youth justice centre for a period of 3 months.
60 Pursuant to s33 of the Sentencing Act 1991, I direct that all sentences imposed this day are to be served concurrently. I further order that such sentences commence immediately. Thus, the total effective sentence is 3 years’ detention in a youth justice centre.
61 I make it plain that in arriving at the sentences imposed this day I have already taken into account that you have served 278 days on remand in adult custody. Accordingly, I make it clear that pursuant to s35 of the Sentencing Act, that 278 days is not to be reckoned as a period of detention already served under the sentences imposed this day. In my view, to do so would have resulted in a sentence which was inadequate to reflect the gravity of your offending.
62 Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your pleas of guilty, the total effective sentence would have been 7 years’ imprisonment with a non-parole period of 5 years.
63 Pursuant to s33(1) of the Confiscation Act 1997 I order that “1 x Machete with yellow/black/silver tape on handle and 1 x Machete, black handle, serrated blade” be forfeited to the Minister.
Padiet Deng
64 You are presently aged 19 years and 6 months, having been born on 28 May 1998. You were aged 18 years and 10 months at the time of offending on 23 February 2017. Of the three of you, you have the most extensive criminal history.
65 On 15 February 2016, you appeared at Dandenong Children’s Court on more than 30 charges. They included armed robbery, attempted armed robbery, three aggravated burglaries and multiple assault charges (including assault in company and assault with a weapon), other offences of dishonesty, damaging property, driving offences (including driving in a manner dangerous) and 2 charges of committing an indictable offence whilst on bail. Without conviction, you were released on a Youth Supervision Order for a period of 12 months, with a number of rehabilitative conditions attached to such order. Within three months you were back before the Dandenong Children’s Court, on 6 May 2016, having breached the Youth Supervision Order by further offending. This new offending included reckless conduct placing others in danger of serious injury, theft of a motor vehicle, aggravated burglary involving use of an offensive weapon, resisting an emergency worker whilst on duty, intentionally damaging property, committing an indictable offence whilst on bail and driving whilst disqualified. On that occasion, you were convicted and ordered to be detained in a youth justice centre for a total effective term of 9 months, with 198 days reckoned as already served. You apparently spent from 6 May 2016 to 18 July 2016 in a youth justice centre, before being released on a Youth Parole Order on 18 July 2016.
66 You had only been out of detention on Youth Parole for approximately two weeks when, on 4 August 2016, you committed the offences of handling stolen goods and theft of a car on Indictment G12146749. It is an aggravating feature of that offending that it occurred whilst you were on a Youth Parole Order (which, I note, expired on 22 October 2016). You were remanded in adult custody on 4 August 2016, but given bail on 5 January 2017. Only five or six weeks after being released on bail, on 23 February 2017, you committed the offences for which I must sentence you on indictment C1711132. It is an aggravating feature of that offending that it occurred whilst you were on bail.
67 I have had the benefit of reading two supervised bail progress reports dated 4 January 2016 (sic), which should read 2017, and 14 February 2017. (Exhibit “D3-3”). It was on the basis of the earlier report that you were released from adult custody on bail on 5 January 2017. In particular, the report stated that you had initiated assistance in order to address your need for counselling. It was noted that you had possibly been exposed to traumatic events relating to your family seeking refuge following a civil war in your [parents] country of birth. The earlier report stated that you were wanting to be engaged in your local community and to continue your education and to try to obtain employment. The report noted your poor consequential thinking and negative peer associations in the south-east Melbourne area. It was considered to be a protective factor that you could reside with your older brother, Mr Deng Yong Deng, who is a pharmacist, in Southbank away from alleged offending associates.
68 The follow-up report, dated 14 February 2017, was provided only one week before your further offending on 23 February 2017. It stated that you had settled into your new home in Southbank, where you enjoyed a positive and supportive relationship with your older brother, were abiding by your curfew conditions, reporting to police and had apparently enrolled in a CAE course to commence the Victorian Certificate of Education on four days a week as from 23 January. It stated that you were staying away from negative peers and engaging with the South Sudanese Australian United Association and the Yarra Council Rising High Music Program. The writer of the report expressed no concerns in relation to negative peer influences, as you had ceased all communication with them. You were said to be either mentoring other young Sudanese people in basketball or attending music workshops as part of programs run by the South Sudanese Australian United Association. You were also said to be continuing to engage with Dr Eleanor Brenthall from Youth Health and Rehabilitative Services discussing “dual diagnosis counselling”. Unhappily, I take the view that the authors of these reports were probably misled by you as to your disassociation with negative peer influences and your alleged engagement with educational and other programs.
69 Your counsel, Mr Ralph, stated that you come from a caring and law-abiding family. You have two older brothers and a sister who have done well and are contributing members of the community. Your father was killed in the Sudanese war. Your mother and older siblings spent a considerable amount of time in a refugee camp in Kenya, where you were born. You witnessed traumatic events and suffered social and educational disadvantages. Notwithstanding those disadvantages, it seems that your siblings have achieved, but you have constantly thumbed your nose at the law, in spite of having been given multiple chances.
70 Your older brother, who is a pharmacist, wrote eloquently of the hardship that the whole family has suffered as refugees and how you were born into the hardship of a refugee camp (Exhibit “D3-1”). He claims that you are a progressive thinker, who cares about everyone’s welfare, and he has tried his best to be a support to you, but has had his own responsibilities. He describes you as being “loving, respectful, compassionate, intelligent (although sometimes making stupid choices), protective, resilient and remorseful”. He is committed to supporting you through the South Sudanese Australian Youth United basketball mentoring program, which he conducts, known as “Bounce Back”, details of which were tendered as Exhibit “D3-2”.
71 I do not doubt for one moment that your admirable oldest brother has tried his best to support you, but you have been given chances in the past to engage with that program and were allegedly doing so only one week prior to the offending on 23 February 2017. I have great difficulty resiling your brother’s description of you as being respectful and compassionate with the litany of violent, dishonest and anti-social crimes which you have committed over a period of approximately 2 years.
72 There is evidence that you suffer Post-Traumatic Stress Disorder relating to distressing recollections of prior trauma from your time in the refugee camp in Kenya where there was tribal warfare and you recall killings of relatives and others. These matters are referred in a report from Dr Aaron Cunningham, forensic psychologist, dated 10 October 2017 (Exhibit “D3-7”). Dr Cunningham states that you believe that you could not discuss these distressing issues with people during your current incarceration and, so, have been keeping feelings to yourself. He also noted that you arrived in Australia at a developmentally sensitive time, that you were transitioning from childhood to adolescence and brought with you the survival mindset that you had from the refugee camp and bonded with other individuals from your cultural background to ease transition and gain protection.
73 He considers that your bond and continued association with negative peers is the main contributor to your offending behaviour. He believes that your networks and associations have developed as a form of perceived safety and protection. He notes that you have not engaged with treatment for your trauma. He considers that you would benefit from a disposition that facilitates rehabilitation and psychological treatment in the community, whilst maintaining the support of your family and engaging with employment or education.
74 Following the plea hearing, in the light of Dr Cunningham’s report not being compliant with the Practice Note concerning expert reports on mental functioning of offenders[11], a supplementary report from Dr Cunningham dated 1 November 2017 was tendered as Exhibit “D3-8”. In that report Dr Cunningham confirmed that you suffer from Post-Traumatic Stress Disorder stemming from your exposure to violence during your childhood and suffer negative alterations in cognitions and mood in the form of feelings of worthlessness and emotional disconnection from others and arousal symptoms in the form of hypervigilance, reckless behaviour, irritability, sleep disturbance and difficulty concentrating. Dr Cunningham stated that there was not a clear link between your Post-Traumatic Stress Disorder and your offending behaviour. Rather, he opined that your Post-Traumatic Stress Disorder helped to explain your association with an ongoing connection with offending peers because you initially felt disconnected in Australia and sought peers with similar background in order to feel connected. As I have said, he considers that this is the main contributor to your offence behaviour. He also opines that your Post-Traumatic Stress Disorder will likely persist for many years unless you engage with suitable intervention and that your trauma would likely be aggravated by exposure to violence and threat in a prison environment due to escalations in your hypervigilance, leading to increased anxiety.
[11]Supreme Court of Victoria Practice Note SC CR7
75 Dr Cunningham stated that you had expressed understanding and wrongfulness of your actions and expressed remorse and wished to apologise to your victims, but were not forthcoming in expressing further empathy regarding the consequences to your victims. I have some reservation about the remorse you expressed to Dr Cunningham. He also opines that you present with positive prospects for rehabilitation. You have a good level of intelligence although he did note that your IQ of 92 (with a range of 86-96) which is in the average range, was a poor indicator of your cognitive performance. He noted that you performed significantly lower on verbal compared to non-verbal reasoning, consistent with English not being your first language. He expressed the view that you can be successful in a range of different employments and your only limitation is your motivation to change and your engagement with negative peers. In my view, your lack of motivation and gang orientation have been a significant impediment to your rehabilitation in the past. I do not share Dr Cunningham’s view about your positive prospects for rehabilitation. Dr Cunningham’s reports make no mention of the many opportunities for rehabilitation that you have been given and your failure to use those opportunities. However, I accept that serving a term of imprisonment in adult custody may be more burdensome for you than for a person without Post-Traumatic Stress Disorder and that your mental health status may well deteriorate if you continue to be incarcerated in adult custody.
76 I take heed of the fact that you were born into and reared for the first decade of your life in a violent and insecure environment in a refugee camp. I take note that it is difficult for the trauma of such a childhood to be overcome. However, the fact of the matter is you have been given multiple chances to try and engage with counsellors and to increase your level of education but you have breached every opportunity given to you. I note too that there are some inconsistencies in your history in that both your counsel and Dr Cunningham state that you have never been a drug user, whereas Exhibit “D3-3”, which includes the supervised bail progress report dated 14 February 2017, noted previous methylamphetamine use, albeit no current substance use. It is difficult to know what to believe in your case and I consider that you are capable of being manipulative and giving information to the writers of reports that you think will assist your cause, as would appear to be the case with that report which occurred, as I have said, only one week prior to your offending on 23 February 2017.
77 In a report dated 16 October 2017, you have been assessed as suitable for a youth justice centre order (Exhibit “D3-6”). This assessment conducted on 16 October 2017 concerns me to some extent in that it cites you as having reasonable prospects for rehabilitation given that you have taken “some” responsibility for your actions. It also states that you display insight into the immediate and ongoing impact on the victims. The latter is at odds with Dr Cunningham’s assessment. Further, it seems to me that in that same report you are endeavouring to minimise your offending by claiming that you were not aware of the plans or intentions of your co-accused when, in fact, all three of you entered both the service station and the newsagency armed with weapons and with your faces partially disguised. This minimisation by you in indicating you not taking full responsibility for your offending and causes me to doubt your remorse, notwithstanding your early pleas of guilty. I do not accept your counsel’s submission that your role was a secondary or supportive one in the offending on 23 February 2017. The three of you are equally culpable for the appalling crimes.
78 The assessment report also states that you have good prospects for education and are motivated to complete your Victorian Certificate of Education, when you have been given multiple opportunities to engage in further education whilst at liberty and failed to do so. However, I do note that you have undertaken a number of courses since you were last remanded in adult custody (Exhibit “D3-4”). Further, it is stated that your pro-social guidance and supervision from your stable family is a significant factor, but, of course, you have had such guidance and supervision and support during the entirety of your now significant offending over a 2 year period. In all of the circumstances, I am less than optimistic about your prospects of rehabilitation, particularly given your repeated flouting of the law by failing to comply with court orders and repeated breaching of bail conditions by committing indictable offences, even after spending time in a youth justice centre and an adult prison. Your behaviour is that of a recalcitrant brat.
79 I am mindful of the fact that you are young, have a mental health condition by way of Post-Traumatic Stress Disorder and, apparently, are impulsive, with poorly developed consequential thinking skills. Perhaps the most persuasive aspect of the assessment report is that whilst you were held in a juvenile justice centre, you are reported to have been of consistently good behaviour, whereas it is noted that you have been involved in three incidents whilst on remand at Port Philip Prison (which I make plain I do not take account of when imposing this sentence today.) I note that the lack of anyone to talk to about nightmares and emotional distress in the adult setting is identified as a problem and you are viewed as being vulnerable to undesirable influences and to demonstrate impressionability. I note that you have now spent 2 significant periods in adult custody. These are 155 days in relation to the matters on Indictment No. G12146749 and 278 days in relation to the matters on Indictment No. C1711132. Clearly, the principle of totality is an important consideration in sentencing you, to ensure that the overall sentence is a just and proportionate reflection of the gravity of your offending and not a crushing one. Your counsel has urged that the Court sentence you to a youth justice centre. The prosecution has indicated that, in the event that I should find your prospects of rehabilitation to be reasonable, then that disposition is within the appropriate range of sentences. Of course, prospects of rehabilitation are only one part of the equation. S.32(1)(b) of the Sentencing Act refers to the other part, namely, whether a young offender is believed by a Court to be particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison.
80 In my sentencing remarks relating to Mr Augustine, I have already referred to the necessity of employing the device of not reckoning the 278 days as time already served, if I were to make a youth justice centre order. This is because, in my view, such an order of 3 years duration would not be an adequate reflection of the gravity of your offending. I have wrestled even harder with this potential sentence than in the case of Mr Augustine. You are not a particularly young offender like the 14 and 15 year olds in some of the cases relating to non-declaration of pre-sentence detention.[12] You are far from being a first time offender. Although no excuse you do not have an explanation for your offending, namely that you have a drug abuse issue like either of your co-offenders. You do not have a cognitive incapacity. However, you are only 19 years of age and have now had a good taste of what adult custody is all about. I consider that that has probably achieved some punitive effect by now, but you have a long way to go in your rehabilitation. I fear that if you are left in an adult prison for very much longer your anti-social, violent tendencies may become so well entrenched that any hope of rehabilitation in the long term may be lost.
[12]R v Graham Patrick Glbert, Ibid (14 year old offender); R v Hill Ibid (15 year old offender); DPP v R.E.E Ibid (17 year old offender)
81 I have found your case to be a very finely balanced one, between a sentence of imprisonment and a sentence of youth detention. I have oscillated between one and the other. By the skin of your teeth Mr Deng, I have decided that notwithstanding your abominable record of offending, given your relatively young age, I should give you the opportunity to serve a youth justice centre order. This will enable you to participate in an adolescence violence intervention program as well as ongoing counselling from Youth Health and Rehabilitation Services, both whilst in custody and also in the community, should you be given the opportunity of a further youth parole period.
82 You need to be very very very aware, Mr Deng, that this is your last chance. If you do not seize it, I foresee that you will become an intolerable, violent menace to society and will end up inflicting more damage on the community and end up wasting your life by serving longer and longer prison sentences. Now is the time to wake up. It’s up to you to seize this last opportunity. You are like a cat that has now used up all of its lives. Heed my words. It is with great reservation that I have made this determination. If you don’t use it, there will be only one person to blame and you’ll bring further shame on your family and on your ethnic community in this wonderful country, Australia.
83 In arriving at the sentences which I intend to impose, I have taken into account your early pleas of guilty, your youth and the evidence that you may be subject to adverse influences in adult custody. I have particularly taken into account your diagnosis of Post-Traumatic Stress Disorder. On Indictment No C1711132, you are sentenced as follows:
84 Charge 1, armed robbery, you are convicted and sentenced to be detained in a youth justice centre for a period of 3 years.
85 On Charge 2, attempted armed robbery, you are convicted and sentenced to be detained in a youth justice centre for a period of 2 ½ years.
86 On Charge 3, criminal damage, you are convicted and sentenced to be detained in a youth justice centre for a period of 3 months.
87 Pursuant to s33 of the Sentencing Act 1991, I direct that all sentences imposed this day are to be served concurrently. I further order that such sentences commence immediately. Thus, the total effective sentence is 3 years’ detention in a youth justice centre.
88 I make it plain that, in arriving at the sentences imposed this day, I have already taken into account that you have served 278 days on remand in adult custody. Accordingly, I make it clear that pursuant to s35 of the Sentencing Act, that 278 days is not to be reckoned as a period of detention already served under the sentences imposed this day. In my view, to do so would have resulted in a sentence which was inadequate to reflect the gravity of your offending.
89 Pursuant to 6AAA I state that, were it not for your pleas of guilty, the total effective sentence imposed on Indictment No. C1711132 would have been 7 years imprisonment with a non-parole period of 5 years.
90 Pursuant to s33(a) of the Confiscation Act 1997, I order that “1x machete with a yellow/black/silver tape on handle” and “1 x machete, black handle, serrated blade”, be forfeited to the Minister.
91 On Indictment No G12146749, the circumstances of your offending are detailed in the summary of prosecution opening (Exhibit “A”). I note that you were not the principal offender and joined in with others who had already stolen a car by riding in it, and were found to be in possession of two watches and cash which were apparently the subject of earlier robberies or burglaries by other persons. Although a contested committal was conducted by you, it is conceded by the prosecution that your pleas of guilty were entered an early stage. This is because you had indicated an intention to resolve the matters on the basis of such pleas of guilty to the charges of handling stolen goods and theft, which was not accepted by the prosecution at that stage.
92 Given these circumstances, I consider that the 155 days pre‑sentence detention from the date of your arrest on 4 August 2016 until the date upon which you were granted bail on 5 January 2017, constitute adequate punishment for these offences, particularly taking into account the principle of totality and bearing in mind the sentence to be served for your offending on Indictment No C1711132.
93 On Indictment No. G12146749 you are sentenced as follows:
94 On Charge 1, handling stolen goods and Charge 2, theft of a motor vehicle, you are convicted and sentenced to an aggregate sentence of 155 days’ imprisonment.
95 On the summary charge of committing an indictable offence whilst on bail you are convicted and sentenced to be imprisoned for a period of 1 month to be served concurrently with the sentence of 155 days on Indictment No. G12146749.
96 I declare 155 days pre‑sentence detention to be time reckoned as already served in relation to this sentence.
97 Pursuant to s6AAA of the Sentencing Act, I state that were it not for your pleas of guilty, the aggregate sentence of imprisonment would have been 15 months’ imprisonment with a non-parole period of 10 months.
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