Director of Public Prosecutions v Bieljok

[2018] VCC 894

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR -18-00106

DIRECTOR OF PUBLIC PROSECUTIONS

v

KUACHJAN BIELJOK

---

JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	18 June 2018
CASE MAY BE CITED AS:	DPP v Bieljok
MEDIUM NEUTRAL CITATION:	[2018] VCC 894

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms T. Saville	Office of Public Prosecutions
For the Accused	Mr C. Tom

HER HONOUR:

1Kuachjan Bieljok, you have pleaded guilty on indictment to one charge of armed robbery and to a summary offence of refusing to provide your name and address to police upon request.  Your offending occurred on 25 September 2016.  Armed robbery carries a maximum sentence of 25 years imprisonment and the summary offence carries a maximum fine of five penalty units.  These maximums reflect the seriousness with which parliament regards these offences.

2The circumstances of your offending are set out in a document entitled “Prosecution Opening upon Plea” dated 13 June 2018.  It is marked as
Exhibit P1.  The contents of this document are not disputed by your counsel.  In short compass at approximately 6.30 am on 25 September 2016 Ms Jodie Lawrence was working at a Caltex Safeway service station located in Seymour Street, Traralgon, as a console operator.  She went outside to clean the petrol pumps, putting on Latex and cotton gloves to do so.

3Whilst Ms Lawrence was at the pumps you approached the service station and she nodded at you to gesture that she was on her way into the service station to serve you.  When Ms Lawrence got to the front door of the service station you stood at the entry door and you said, "After you".  So she pushed the door open and went in. 

4You started wandering around the store.  Ms Lawrence walked towards the entrance to the console removing her gloves.  When she turned to close and lock the staff entry door to the console you were standing right behind her inside the console area.  You said, "I'm very sorry to do this to you" and put a bandana over your head.  You told Ms Lawrence not to set off any alarms and to "Give me all your money".  On hearing this, Ms Lawrence's heart started racing and she tried to recall what she had been taught in training for this situation. 

5She opened the register as you told her to “take all the money out and put it in a bag”. You kept telling her to “hurry up”.  Ms Lawrence emptied the register into a white plastic bag but the bag was not given to you at this time.  You then told her to open the safe.  She told you that she could not open the safe.  You then grabbed a pair of scissors from the counter using one of Ms Lawrence's latex gloves to do so in order that no fingerprints were left by you.  You then pointed the scissors at Ms Lawrence and demanded that she open the safe.

6Ms Lawrence got the key and put it into the top keyhole in the safe showing you the Armaguard keyhole that was just below it.  At this point you said "Stop lying to me" and pressed the point of the scissors into her neck.  She was understandably fearful that you would stick the scissors into her throat if she could not get the safe open.  Ms Lawrence showed you that the key would not work in the Armaguard keyhole.

7You then saw another smaller safe under the big safe and pointed to that safe.  Ms Lawrence unlocked it showing you that it was empty.  You then stood up, took the scissors from Ms Lawrence's neck and walked out of the console area taking the plastic bag that Ms Lawrence had earlier filled containing $278.85, the scissors and the gloves with you.  This completed Charge 1, the offence of armed robbery.

8Ms Lawrence started crying and rang 000. 

9You were arrested that day when police attended an address in Traralgon.  When asked you refused to provide police with your name and address.  That constitutes the related summary offence, refusal to provide name and address to a police officer. 

10You participated in a record of interview with police that day in which you denied any involvement in the offending to which you have now pleaded guilty. 

11The armed robbery is obviously the most serious charge.  It was committed on a so called "soft target" given it was at approximately 6.30-7.00 am and your victim was a lone female.  You persisted with your offending in the face of being told your victim could not access the safe and you took recourse to the use of a weapon which was then held to the throat of your victim.

12Whilst there is no victim impact statement it is clear from Ms Lawrence's statement to police that she was very afraid, if not terrified, by this event.  It has obviously occurred in her work environment, an environment in which she is entitled to feel safe.

13Whilst the offending was relatively unsophisticated and I have no basis to form the view that any planning was other than limited, you took some recourse to disguising your appearance by use of the bandana to cover your face and to protecting your fingers with the latex glove when you picked up the scissors.  You also disposed of your T-shirt after the offence presumably as it could have been used as a means to identify you.  Your offending has been described by each of the parties as mid-range in terms of its objective seriousness.  I accept this characterisation.

14There was no attempt to excuse your offending nor could there be.  There seems to be little explanation for your offending other than your peer associations at the time, your abuse of alcohol and as I will later refer, your diagnosed intellectual disability.

15I have taken into account matters personal to you as raised by your counsel in detailed written submissions and oral submissions made on your behalf.  These include the following. 

·You are now aged 22 years and were 21 at the time of your offending. 

·You were born in a refugee camp in Kenya, your family having fled from Sudan.  From the materials provided to me I accept that your time in the refugee camp was one where there was limited access to food, water and appropriate hygiene.  It has not been suggested that you were the victim of nor witness to any violence in that environment.

·You came to Australia at age seven in 2002. 

·You are second in a sibship of five and reside with your mother and siblings in Clyde North. 

·You have had no relationship with your biological father but regard your stepfather, Mr Bieljok, as your father figure.  You describe your mother as being extremely supportive of you.  

·You found your transition to Australia difficult as you were bullied at school. 

·In 2007 you were diagnosed as suffering from an intellectual disability. 

·You finished your secondary education at Emerson Special School and have had limited, if not no, employment history.

16At the age of 16 years you commenced abusing alcohol and have continued to do so with some periods of abstinence.  Whilst you have flirted with marijuana and ice your primary addiction is to alcohol.  I am told that this came about at a time when your stepfather returned to Sudan for a period of four years and your older brother was diagnosed as suffering from schizophrenia.  You describe this as a time when you lost your significant role models.

17You have a prior history of some ten court appearances of which half are in the Children's Court.  Your admitted criminal history reflects offences of dishonesty, breach of bail, robbery, assault, drunkenness, driving offences and failures to answer bail.  You have a history of breaching court orders.  Indeed at the time of the offences before me you were subject to a community corrections order which had been imposed at the Melbourne County Court on 1 July 2016 in relation to charges of theft of motor vehicle and contravention of a conduct condition on bail.  The offending before me has occurred within three months of your release on that order and is an aggravating feature to your offending.

18You are not to be sentenced again for this prior history but it has relevance to aspects of specific deterrence, the need to protect the community from you and the weight that should be given to your prospects of rehabilitation. 

19Relevant also to the sentencing process is that you were sentenced by
Her Honour Judge Campton on 28 September 2017 in relation to two counts of attempted armed robbery which took place at a Coles supermarket in Dandenong on 30 July 2016.  You were also sentenced by her in relation to charges of theft in relation to a breach of a community corrections order to which I have already referred.  The total effective sentence imposed by Her Honour Judge Campton was one of two years and nine months imprisonment with a non-parole period of 18 months imprisonment, 272 days were declared as
pre-sentence detention.  You are still undergoing that sentence.

20Given the timing of the offending before Her Honour Judge Campton and the matters before me, the time that you have already spent in custody and the declared days of pre-sentence detention, the principle of totality has some priority in the sentencing mix.  This principle requires that where an offender is being sentenced on multiple terms or is otherwise to serve multiple services then the sentencer should ensure that the total sentence remains just and appropriate for the whole of the offending.

21Tendered on your behalf were reports from Carla Lechner, clinical psychologist, dated 10 July 2017 and a report from Dr Aaron Cunningham, forensic psychologist, dated 2 April 2018.  I have had recourse to each of these documents and to all other materials tendered on your behalf, some eight exhibits in total.

22Ms Lechner's report opines that you present with symptoms of alcohol use disorder at the time of her assessment of you in mid-2017.  It was not subject to challenge. 

23Dr Cunningham's report was also not subject to challenge.  He assessed you as having an IQ in the range of 67-75.  In his view your overall thinking and reasoning skills were in the extremely low range consistent with an intellectual disability.  I note, as I have already referred, you were diagnosed with an intellectual disability around 2007.

24You do not present with a mental illness.  Dr Cunningham did find that your intellectual disability results in impaired thinking and reasoning skills.  He was of the opinion that you would be more likely to act impulsively without proper consideration of long term consequence.  He was also of the view that you would be vulnerable to abuse and manipulation by peers.  He did link your intellectual disability to your offending.  As such I accept that there needs to be some limited moderation of aspects of both general and specific deterrence.  Further I accept that your disability reduces, to a small extent, your moral culpability for your offending conduct.

25Dr Cunningham does reflect that you are subject very much to the influence of others and that you need to disassociate from your peer group and use of alcohol in order to further your prospects for rehabilitation.  This would appear to be self-evident.  On the evidence before me, at various stages throughout your life you have tried to remain absent from alcohol and undergone programs.  All of these have, so far, been unsuccessful. 

26I note in the materials before me you have continued family support and accommodation.  You are now involved with an agency referred to as Afri-Aus Care which has some cultural specificity.  You have commenced courses within the custodial setting and returned to the sport of basketball, a sport at which you are extremely proficient, again within the confines of the prison setting.

27These factors in combination with your relative youth, support the submission made on your behalf that you still have reasonable prospects of rehabilitation.  This must be balanced, of course, with the fact that you do have a relevant prior criminal history and that your intellectual disability will continue to impact on positive decision making.  I do, however, accept that you have reasonable prospects for rehabilitation.

28You have pleaded guilty, whilst not at an early stage, I accept that your plea has utilitarian value and has saved the court the time and expense of a trial and the witnesses, particular Ms Lawrence, the trauma of having to give evidence.  I accept that you have expressed remorse to Dr Cunningham and that all of these matters can, and should, be properly taken into account in sentence. 

29I now do turn to sentence.  I have made the ancillary orders as sought for compensation and disposal with the consent of your counsel.  If you could please stand.

30In relation the charge of refusal to state name and address upon request by a police officer you are convicted and fined the amount of $100.  I grant a stay of three months.

31In relation to the charge of armed robbery you are convicted and sentenced to two years and six months' imprisonment.  This sentence is considerably less than what I would have imposed if I had not accepted the argument raised on your behalf as to totality.  I fix a new non-parole period of 18 months before being eligible for parole.  Eighty-five days are reckoned by way of pre-sentence detention. 

32Section 6AAA of the Sentencing Act requires me to state the sentence that
I would have imposed if you had not pleaded guilty to the charges.  If not for your plea of guilty I would have sentenced you to a total effective sentence of three years and six months imprisonment with a minimum of two years and three months imprisonment before you would have been eligible for parole.  If you could remove the prisoner, thank you.

33MS SAVILLE:  As Your Honour pleases.

34MR TOM:  As Your Honour pleases.

35HER HONOUR:  You're certainly excused, Mr Tom, thank you very much.

36MR TOM:  Thank you.

37(At this stage the court proceeded with another matter.)

‑ ‑ ‑