Director of Public Prosecutions v Bidong

[2020] VCC 1076

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-20-00570

Indictment No. K11698203

DIRECTOR OF PUBLIC PROSECUTIONS

v

DUR BIDONG

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JUDGE:	HER HONOUR JUDGE CARLIN
WHERE HELD:	Melbourne
DATE OF HEARING:	3 July 2020
DATE OF SENTENCE:	22 July 2020
CASE MAY BE CITED AS:	DPP v Bidong
MEDIUM NEUTRAL CITATION:	[2020] VCC 1076

REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords:  Affray; offender armed and accompanied by 30 to 40 others; extensive prior criminal history; no evidence of remorse; poor prospects of rehabilitation; difficult childhood including some exposure to war in Sudan; victim sustained injuries however not inflicted by offender.
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic.
Cases Cited: Kelly v R [2020] VSCA 171
Sentence: Total effective sentence of 22 months imprisonment with a non-parole period of 12 months.  348 days pre-sentence.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering	Office of Public Prosecutions
For the Accused	Mr M. Cunningham	Paul Vale Criminal Law

HER HONOUR:

Introduction

1Mr Bidong, you can remain seated throughout.  Normally when I come to actually imposing the sentence, I would ask you to stand, but given that you are appearing by way of video link, if you stand I probably will not be able to see you.  So just remain seated and I have to read out my remarks as to why I am sentencing you and then I will impose the sentence right at the very end.

2Mr Bidong, just after midnight on 21 December 2017 you, in company with a large group of young males, attended a house in Cranbourne North seeking to avenge an assault that had taken place earlier that night on your younger brother Nyot.  You believed that one of three boys responsible for the assault on Nyot lived at that address.  You were armed with a pole similar to a broom handle.

3At the house at that time were four girls aged between 13 and 17, two 15-year-old boys and one adult female, who was the mother of three of the children.  Some of them were out the back, enjoying a bonfire, when you arrived.  Upon hearing noises, the two boys, Aaron and Zac, went to investigate.  Because of earlier events they armed themselves with poles.  They saw two males out the front of the house, but then they heard a whistle and the rest of your group, about 30 to 40 mostly African youths, arrived. 

4One of your group smashed a window of the house.  Someone else yelled out, ‘We’re finally here to get you, cunt’.  The occupants of the house locked the doors and hid inside.  Aaron and Zac rushed back to the house, but on the way Zac was attacked by four unidentified members of your group.   He was hit on the head with a pole and fell to the ground, bleeding.  You and your group then left the premises and Aaron managed to drag Zac inside.  He had sustained life-threatening injuries, including skull, facial and spinal fractures and bleeding on the brain.  He was conveyed to hospital by ambulance.

5Later that day you were arrested and interviewed.  Your home was also searched and clothing, including a pair of your shoes, was seized.  You told police you were home all night and denied any involvement in the incident.  You were released without charge.

6Nine months later, on 20 September 2018, forensic analysis determined that both of your shoes had Zac’s blood on them.  On 21 September 2018, you were again arrested and interviewed.  You could not explain why the blood of your victim was on your shoes.  You were charged on summons but were remanded in custody on other matters on 28 November 2018, where you have remained ever since.  On 9 August 2019 you were also remanded on this matter.  As at the date of the plea you had spent a total of 583 days in custody, 329 days referable to this matter.

7This matter resolved on 17 April 2020 when you pleaded guilty to affray in the Magistrates Court and were committed to this Court for a plea hearing.  On
2 July 2020 you pleaded guilty before me to a single charge of affray, contrary to s.195H of the Crimes Act 1958 (Vic).

8After a plea on your behalf, it falls to me to sentence you for your conduct.  Your counsel, Mr Cunningham, submitted that if not for the fact that you are on remand on other matters, a combination sentence would be appropriate.   The prosecutor, Mr Pickering, accepted that such a sentence would have been within range.  Accepting your remand precludes that sentence, Mr Cunningham argued for as short a non-parole period as possible to facilitate your rehabilitation.

9In arriving at an appropriate sentence, I am required to have regard to all the factors set out in s.5(2) of the Sentencing Act 1991. These factors are sometimes overlapping and sometimes contradictory in nature. Some tend towards leniency and some point the other way. No one factor automatically prevails over any other. Rather, I must have regard to them all and give each one the weight it deserves in order to arrive at a just sentence in your case.

Objective Gravity of Your Offending and Moral Culpability

10The Crown case is put on the basis that you and the other members of your group were all acting collectively.  It is not alleged that you committed any specific act of violence and, in particular, it is not alleged that you broke the window, nor that you were the person who yelled out, ‘we’re finally here to get you, cunt’, nor that you assaulted Zac.

11Accepting that, the evidence nevertheless indicates that you played an important role in the affray.  That evidence is that earlier in the night your younger brother, Nyot, who was still a child, told a friend that he had just been assaulted by three boys, one of whom had a sister called Chloe.   Nyot was then dropped off at your house in Cranbourne North by his friend’s mother and he repeated his allegations to your family.  The mother of Nyot’s friend then saw you leading a group of African youths down the street, holding a pole, with Nyot limping behind you.  Nyot and others then started exchanging Snapchat messages and a video saying they were going to go to the house where his attacker lived.  The video showed you and others walking down the street.  You were still holding a pole.  Not long after that your group arrived at the house in Cranbourne North where 14-year-old, Chloe lived and the affray took place.

12Further, whilst it is not alleged that you were the one who inflicted the injuries on Zac, clearly you were close enough that Zac’s blood ended up on your shoes.

13Mr Cunningham submitted that this was not a serious instance of affray.  I disagree.  True it is that the duration of the affray was relatively short and it is not alleged that you personally committed any acts of violence.  However, you determined to go to someone’s home late at night for the purpose of exacting revenge.  You must have known, or strongly suspected, that children would be present at the house.  You were armed and accompanied by a large number of young males.  It may be that some of those males had a motive independent of yours, but clearly the arrival of you all was coordinated.  You effectively ambushed the occupants and were a party to the infliction of serious injuries on a 15-year-old boy.  The whole ordeal would have been terrifying and made more so by the assault on Zac, who, being Chloe’s boyfriend, not brother, appears to have been entirely innocent. 

14To be clear, I am not sentencing you for the assault on Zac, but it is relevant to the seriousness of the affray in that it would have increased the level of terror experienced by those present.

15You were assessed by clinical psychologist, Alison Mynard, on 29 April 2020.  She considered you to be of average intelligence and diagnosed you as suffering from anxiety and moderate depression.  She did not say whether those conditions were present at the time of the offending, but in any event, did not opine that your moral culpability was reduced on account of them or any other mental impairment.  I accept that in a general sense your difficult childhood experiences in South Sudan and Australia are relevant to your culpability.  You did not have the benefit of being brought up in a safe, stable environment with all that flows from that.  However, you have been before the courts on many occasions for similar offending and must have known that your actions on this night were wrong.  You told Ms Mynard that as the oldest male in your family there were high expectations from your family and your community and you were effectively a role model.  The fact you may have been acting out of a sense of duty to your brother may explain your actions, but it does not excuse them.  In fact, the courts have often said that such vigilante behaviour is aggravating, not mitigating.  In my view your moral culpability is high.

Current Sentencing Practices

16One, and one only, of the matters to which I must have regard in arriving at an appropriate sentence for you is current sentencing practices.  The reason is to promote consistency of approach in sentencing, particularly, the application of relevant sentencing principles. 

17The current offence of affray was introduced into the Crimes Act 1958 (Vic) in 2017 when the common law offence was abolished. The maximum penalty remained the same, at five years’ imprisonment. The most recent Sentencing Advisory Council Statistics of the higher courts (May 2019) indicate that 45% of charges of affray over a five-year period resulted in an immediate term of imprisonment, with a community corrections order being the next most frequent sentence imposed. Of the terms of imprisonment, 67% were less than one year and 33% were between one and two years. I have had regard to these statistics, but note they are of limited assistance given the vast disparity in seriousness of the offence of affray, even within the County and Supreme Courts.

18Whilst no two cases are ever truly the same, of more use than statistics are sentences imposed in comparable cases.  Upon specific enquiry, I was not referred to any comparable cases by counsel appearing, perhaps reflecting the divergent ways in which affray can occur.

19Ultimately my duty is to impose a just sentence and appropriate sentence on you in the circumstances of this case. 

Impact of Your Offending

20No victim impact statements have been submitted.  There may be many reasons why a victim chooses not to do submit a victim impact statement and I draw no inference either for you or against you in relation to that fact.  However, there can be no doubt that the events of this night would have been terrifying for all your victims. 

Plea of Guilty, Co-operation and Remorse

21You are to receive a discount in your sentence for the fact you pleaded guilty to the offence of affray.  The matter did not resolve until after committal proceedings had commenced, but you faced additional charges at that stage.  I therefore treat your plea of guilty as an early plea. 

22Mr Cunningham, who appeared on your behalf, submitted that I should also find that you are remorseful. 

23Whilst it may be indicative of remorse, a plea of guilty is not, of itself, proof of that fact and in this case, there is simply no evidence that you are remorseful.  You denied being involved in the incident when interviewed by the police and, in a departure from the usual scenario, the report from psychologist Ms Mynard contains no suggestion of remorse for the events of this night as opposed to a general acknowledgement that you have made errors and let your family down.  Finally, your plea of guilty came in the face of what I consider to be a strong Crown case in relation to affray.  Whilst that does not detract from the utilitarian benefit of your plea, it does not assist in proving remorse.

24The fact I have not been persuaded that you are remorseful is not an aggravating factor, it simply means you do not get the additional discount in sentence that would flow from such a finding. 

Background and Personal Circumstances

25Your background and personal circumstances were set out in detail in the Outline of Defence Submissions and the report of psychologist, Ms Mynard, tendered on your plea and marked as Exhibits 1 and 2 respectively.

26Very briefly, you were born and grew up in Sudan and are now 26 years old.  You were raised by your mother and step-father, having never met your biological father or knowing his whereabouts.  You have five half-brothers and two half-sisters. You are the oldest.

27Your family fled Sudan during the civil war to Egypt before eventually coming to Australia in 2004 when you were about 11.  You do not have many memories of the war.  You told Ms Mynard that your grandmother remained in Egypt, that you worry about her and would like to help her financially.

28You attended school in Egypt and Australia.  When you arrived in Australia you did not speak English but mastered it easily.  You enjoyed playing soccer at school and in a community team.  You told Ms Mynard that you struggled to fit in and understand Australian culture.  You said that on many occasions you had to defend yourself or members of your cultural group against bullying or racist comments and taunts, which led to you being branded as aggressive.   You struggled with academic work and did not know how to ask for help.  You left school in Year 10.  You felt pressure from your family and yourself to achieve and felt a huge sense of failure when you were unable to meet your family and your own expectations. 

29You have been unemployed since leaving school. You have been supported by your mother and received Centrelink benefits.  You have various certificates from the Kangan Institute in 2013 and 2015 including for Working with Numbers and Money, Providing Responsible Service of Alcohol, working in construction, operating a forklift and strategies for working and learning.

30During your time in custody you have been reading and also completed a Certificate in Hospitality and General Education.  You have also recently started a business course.

Your Character and Risk of Reoffending

31Your prior criminal history is cause for dismay.  You are only 26 and yet you have been sentenced on 16 different occasions by the courts of this State for a variety of offences, including many crimes of violence and on several occasions, violence in company.

32Your first court appearances were in the Children’s Court but you quickly progressed to the Magistrates and County Courts.  You have received a variety of dispositions, at first geared towards your rehabilitation, but increasing in severity as your offending continued and remained serious.  You were first incarcerated in May 2013 when this Court sentenced you to a term in a Youth Justice Centre for reckless conduct causing serious injury and theft.  You were only 19 and it was your ninth court appearance.  The sentencing remarks in relation to that matter indicate that you told Youth Justice that you were aware of the need to make changes to your life to avoid future offending. 

33After that you were sentenced to immediate terms of imprisonment, including by way of restoration of suspended sentences on four separate occasions.  Unfortunately, nothing has deterred you.

34Your last sentence before this offence was in August 2017 when you were sentenced to 28 days' imprisonment for crimes of violence.  You had only been released for around three months when you committed this offence. 

35Notwithstanding your criminal history, Ms Mynard considered that you displayed insight into your past offending and have the potential to effect positive change within your community.  However, without targeted interventions she believed your risk of reoffending was moderate to high, as was your risk of relapsing into alcohol use.  Ms Mynard’s report emphasised your sense of the need to defend yourself and others from perceived wrongs.  This attitude of yours is especially concerning since your behaviour on this night falls into that pattern.  You have the potential to be a positive role model within your community, however, unless you dramatically change your attitude you not only risk squandering the opportunity this country has afforded you, you are destined for a life in and out of prison. 

36Unfortunately, at this stage I can only regard your prospects of rehabilitation as poor.

The Effect of COVID-19

37Whilst the chance of you being infected with coronavirus in prison is speculative, I accept that the worry of contracting the virus is an additional burden for all prisoners.  Further, I take into account that any term of imprisonment during the pandemic will be harder due to the suspensions of visits to prisons and the curtailment of various programs and activities. 

Purposes of Sentencing

38In addition to specifying matters to which I must have regard in arriving at an appropriate sentence, the Sentencing Act 1991 prescribes the purposes, indeed the only purposes, for which a sentence may be imposed. These are just punishment, deterrence, rehabilitation, denunciation, and protection of the community. I am obliged not to impose a more severe sentence than is necessary to achieve those sentencing purposes.

39A custodial sentence must only be imposed as a last resort but is conceded to be appropriate in your case. That said, I am obliged not to impose a more severe sentence than is necessary.  Your counsel stressed the importance of facilitating your rehabilitation.  I agree that it is in everyone’s interest if you can be rehabilitated.  Because of your seniority within your family you do have the opportunity to be a good role model for others.  It is up to you whether you take that opportunity or continue your current trajectory of crime and imprisonment. 

40Whilst promoting your rehabilitation is important, of more importance in your case, in my view, are the other sentencing considerations of general and specific deterrence, community protection and denunciation. 

41Only recently the Court of Appeal in this state confirmed the importance of denunciation and general deterrence in cases where the offending was motivated by a desire for retaliation when it said:

'The courts have repeatedly emphasised that the sentences for individuals who take the law into their own hands and commit crimes in order to resolve real or perceived grievances must be sufficiently high to deter others from adopting that course.'.[1]

[1] Kelly v R [2020] VSCA 171 at [46].

42As previously mentioned the fact you are remanded on other matters which are unlikely to be resolved for some time, effectively prevents the imposition of a combination sentence, that is a term of imprisonment combined with a corrections order.  Even if that were not the case, in my view the seriousness of your offending and your criminal history are such that any period of supervision following your release from custody should be by way of parole, not a corrections order.

Sentence

43On the charge of affray, I convict and sentence you to 22 months' imprisonment.  I fix a non-parole period of 12 months.  That is the earliest time at which you can be released.  It is up to the Parole Board whether or not you are released but that is the earliest time at which you can be.

Presentence Detention

44I declare that you have served a total of 348 days' pre-sentence detention, not including today, in respect of this sentence and order that this declaration be entered in the records of the court and that the period be deducted administratively.

Section 6AAA 

45If you had not pleaded guilty to these charges and been found guilty by a jury, I would have sentenced you to a total effective sentence of imprisonment of two years and eight months with a non-parole period of 22 months.

46So, Mr Bidong, do you understand that sentence?  Sorry, your microphone was just turned off.  So I just asked do you understand that sentence?

47ACCUSED:  Yes, Ma'am.

48HER HONOUR:  All right.  Now, I just need to ask counsel are there any other matters that I need to attend to.

49MR PICKERING:  No, Your Honour.

50MR CUNNINGHAM:  Not from defence's point of view, Your Honour, no, thank you.

51HER HONOUR:  All right, thank you.  All right, I will adjourn the court then and we will cut off the video links, thank you.

52MR PICKERING:  If Your Honour pleases.

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