Director of Public Prosecutions v Bieljok

[2017] VCC 1404

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00612

DIRECTOR OF PUBLIC PROSECUTIONS

v

KUACHJAN BIELJOK

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JUDGE:	HER HONOUR JUDGE CAMPTON
WHERE HELD:	Melbourne
DATE OF HEARING:	14 September 2017
DATE OF SENTENCE:	28 September 2017
CASE MAY BE CITED AS:	DPP v Bieljok
MEDIUM NEUTRAL CITATION:	[2017] VCC 1404

REASONS FOR SENTENCE
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Subject:  Attempted armed robbery
Catchwords:  Soft target
Legislation Cited: Disability Act 2006
Cases Cited:  R vVerdins (2007) 16 VR 269

Sentence:2 years and 9 months imprisonment with 18 month non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper
For the Accused	Mr J. McLoughlin

HER HONOUR: 

Charges

1Kuachjan Bieljok, you have been charged with two counts of attempted armed robbery.  The maximum sentence for attempted armed is a term of imprisonment of 20 years.  By committing the attempted armed robberies, you breached a community corrections order which was for a period of a 12 months on a charge of theft of a motor vehicle.

2A report from community corrections revealed that you displayed generally poor compliance and attitude towards the order, with four unacceptable absences.  However, it was recommended that the order be recommenced to give you an opportunity to engage in treatment including drug and alcohol treatment.

Circumstances of offending

3The attempted armed robberies took place on 30 July 2016 at Coles Supermarket on the Princes Highway in Dandenong.

4The first one occurred at about 12.25 am when you attended Coles carrying a thin metal pole approximately a metre long.  You entered the store and approached a female staff member who was working on a register which was open at the time.  You raised the pole and demanded money from her. 
You picked up a motorcycle helmet which belonged to a customer and threw it into the area where the staff member was standing and yelled "Give me the money" very loudly.

5You swung the metal pole several times pretending to strike another customer who was walking past.  You then walked to register 4 where customers were waiting in line.  You confronted a customer waiting there and pushed him in the chest.  After this you went back to the front of the store towards the store security officer and raised the pole in a threatening manner towards him. 

6You were confronted by the security officer and another staff member at the front of the store.  After they managed to disarm you of the metal pole, you exited the store. 

7When you left the store, you told staff members you would be back.  Indeed, you did come back at approximately 12.38 am, this time wearing a red bandana over your face and carrying a wooden chair leg in your right hand. 

8On this occasion, essentially, you used the chair leg to threaten members of staff and customers.  The store security officer tried to corral you using a shopping trolley.  You raised the chair leg threatening to hit him.  He blocked your attempts by pushing the trolley into you several times. Eventually you were tackled to the ground and the chair leg was taken from you.

9The staff member let you go and you said you would t come back.  He followed you towards the exit.  You turned around and appeared to point to him in a threatening matter while still retreating from the store.  He tackled you to the ground before you were allowed to leave.

10All of this was captured on the store's CCTV and you were arrested on 25/09/2016 and remanded for unrelated matters including an attempted armed robbery, robbery and assault with a weapon that is yet to be finalised.

Personal circumstances

11Your personal circumstances are that you were born on 13 July 1995 in a refugee camp in Kenya so you are 22 years old.  You lived there until coming to Australia as a refugee with your mother and brothers in 2002 aged seven.  You are the second eldest in a family of six children.  You have had no contact with your biological father. 

12While there is no history of any particular trauma occurring while you were in the refugee camp, I accept that living conditions were harsh with inadequate food, water and sanitation.  I also accept that you received virtually no education in Kenya.

13On arrival in Australia, you attended Springvale English Language School followed by the local primary and secondary schools.  You attempted VCAL at Rowville Secondary College but were unsuccessful.  You commenced a certificate of General Education for Adults on referral from disability client services in July 2015 before being remanded in custody. 

14You have a stepfather, Mr Bieljok who has returned to Sudan but who has recently come back to Australia.  I was informed that resuming a relationship with him was a source of motivation for you to return to the community.  I was also informed that you have a good relationship with your mother and other members of the family when you are not affected by alcohol.

15Alcohol is your problem.  You commenced drinking aged 16 in the company of peers, mainly cask wine.  A lot of your offending is connected to your alcohol abuse.  You self-referred to Monash community services as a voluntary client in 2014 and you participated in counselling about relapse and harm minimisation.  You also completed a community residential withdrawal program with South-East Alcohol and Drug Services from 22 October 2014 to
31 October 2014.  You also received drug and alcohol counselling through Monash community services.

16While you did achieve abstinence at one stage, unfortunately none of these programs have been successful in the long run and you relapsed.

Psychological reports

17Your counsel tendered a number of reports to the court concerning your intellectual capacity and it appears from these reports that you have been assessed as suffering from a mild intellectual disability.  You met the criteria for funding for programs for students with disabilities when you were at school and you also became a client of disability services after appearing in the Children's Court in 2011.

18A recent report from the Department of Health and Human Services dated
12 August 2015 confirms that you have been issued with a statement that you have an intellectual disability as defined under the Disability Act.

Criminal history

19Your criminal history commences in 2012 with a Children's Court appearance for theft and street offences.  You received a number of a good behaviour bonds for offending between 2011 and 2014.  Your first youth training centre sentence was for 12 months for serious charges, including recklessly cause injury, attempted armed robbery and make threats to kill.

20There was a further sentence of eight months in youth detention on
12 August 2015.  On 20 November 2015, you were sentenced to two months for a bomb hoax.  Then on 1 July 2016, in this court on a charge of theft of a motor car, you were sentenced to a community corrections order for 12 months after serving 163 days imprisonment.

21This order included special conditions:  supervision, treatment and rehabilitation in relation to alcohol consumption and programs to reduce offending.  These charges of armed robbery breached that community corrections order.

Defence submissions

22Your counsel conceded in her plea that a term of imprisonment was warranted in respect of the attempted armed robberies however it was submitted that the court could impose a term of imprisonment followed by a community corrections order. 

23Your counsel submitted:

·that the attempted armed robberies were not amongst the most grave versions for offences of this kind;

·the weapons you relied on were found and used in an opportunistic fashion;

·your intoxication did not heighten the fear of people working at the shop or patrons at the shop;

·at the conclusion of your offending constituting Charge 1, you desisted and left with minimal intervention;

·your attempts to enter the service area were minimal, and you were easily overpowered;

·No one was injured; 

·that the two events occurred 13 minutes apart so they should be regarded as a single transaction with little or no accumulation.

24In mitigation of your offending your Counsel relied on your plea of guilty, your youth, the danger of you becoming institutionalised and your intellectual disability.  With respect to your intellectual disability, principles 1, 2 and 3 of R v Verdins[1] were relied upon to moderate general deterrence.   In respect to your breach of community corrections order, your counsel submitted that you had complied with it, to some extent.

[1] (2007) 16 VR 269

Prosecution submissions

25The prosecutor did not argue with your counsels submission that the attempted armed robberies were at the lower end of the scale for such offences.  It was also accepted that your intellectual disability meant that some moderation of general deterrence was appropriate.  However, even taking these matter into account, it was submitted that a sentence of imprisonment was the appropriate sentencing disposition.

Sentencing remarks

26I will deal firstly with the nature of the offending.  I accept that the attempted armed robberies committed by you were at the lower end of the scale for such offences.  In doing so, I have accepted your counsels submission with respect to the gravity of those offences.  However, while your offending was at the lower end for attempted armed robberies, it is still serious because this charge attracts a 20 year maximum term of imprisonment.

27Supermarkets such as Coles and Woolworths stay open late at night and they are soft targets for offenders such as you.  The people who worked in the supermarket should not have to cope with an intoxicated person wielding a metal pole and chair leg as you did on that occasion.  General deterrence is an important sentencing consideration as others must be discouraged from committing such crimes. 

28Specific deterrence is also important in this case.  You have a prior history that includes convictions for robbery and attempted robbery.  While you have had a difficult background, you have received assistance in the past with further education and with respect to your problems with alcohol.  Despite this, you have continued to commit offences. 

29You received yet another opportunity from this court when you were placed on a community corrections order.  Given these matters, I do not accept that a combination sentence is appropriate.

30In sentencing you I have taken into account all the mitigating matters referred to by your counsel, including your youth and difficult background. You have received a discount for your plea of guilty. I have also moderated the principle of general deterrence to some degree in accordance with Verdins case because I accept that your mild intellectual disability played some role in your offending, compromising your capacity to reason calmly and exercise good judgment.

31In addition, in sentencing you I have taken into account there was a short period of time between the offences. Due to these mitigatory matters and because you have already spent considerable time in custody I intend to fix a relatively long parole period.

32I am going to impose an aggregate sentence for your offending.  Would you please stand up?

Sentence

33You are sentenced on the two attempted armed robberies to two years and six months.  On the charge of theft in relation to the breach of community corrections order, you are sentenced to six months' imprisonment.  Three months of that sentence is cumulative on the sentence of two years and six months on the attempted armed robberies.  So the head sentence is two years and nine months.  I fix a non-parole period of 18 months.  I declare 272 days
pre-sentence detention.

34I make a disposal order for the metal pole and chair leg.  But for your plea of guilty, you would have been sentenced to four years to serve two years and four months.  So you have a relatively long parole period.  I really do not know what to say to you Mr Bieljok.  Do you want to spend the rest of your life in gaol?

35OFFENDER:  No.

36HER HONOUR:  What is going on?

37OFFENDER:  It's - it's a struggle because, um, there's - it's just a struggle for me.  Just being a black - black, um, man and yeah, it's just a struggle.  It's hard but, um, I'm still young, um ‑ ‑ ‑

38HER HONOUR:  You are still young and you can - you've just got to grab the opportunities that you are given.  You have done some programs, you have shown some success.  People who meet you, when I read the reports, when you're not drunk say you're a nice guy.  They say you're polite, you're pleasant, you're good to talk to.  That's what they say, all the reports. 

39OFFENDER:  Yeah.

40HER HONOUR:  I mean, I don't want to keep sending you to gaol.  It doesn't give me any pleasure, I promise you, doing it.  So get it over and done with and this time, when you come out, you've just got to stay away from the alcohol.  You get involved with sport again, find some cause; find something that you're interested in.  All right, is there anything else?

41COUNSEL:  No, Your Honour.

42HER HONOUR:  Yes, you can take him down, thank you.

43OFFENDER:  Thank you.

44HER HONOUR:  Thank you. 

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