Director of Public Prosecutions v Bieljok

[2016] VCC 985

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01079

DIRECTOR OF PUBLIC PROSECUTIONS

v

KUACHJAN BIELJOK

---

JUDGE:	HER HONOUR JUDGE CAMPTON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	1 July 2016
CASE MAY BE CITED AS:	DPP v Bieljok
MEDIUM NEUTRAL CITATION:	[2016] VCC 985

REASONS FOR SENTENCE
---

Subject:  Theft of motor vehicle – Breach bail conditions
Catchwords:              Youthful offender
Legislation Cited:
Cases Cited:
Sentence:                  163 days imprisonment with a CCO for 12 months

---

APPEARANCES:	Counsel	Solicitors
For the Accused	Mr M. Cahill
For the Director of Public Prosecutions	Mr P. Triandos

Pages 1 - 7

 

 

HER HONOUR:

Offences

1Kuachjan Bieljok, you have pleaded guilty to one count of theft of a motor vehicle.  The maximum sentence for theft of a motor vehicle is ten years.  You have also pleaded guilty to four summary charges of contravening your curfew condition with respect to bail.  The maximum sentence for this offence is 30 penalty units, or three months.

Circumstances of Offending

2The circumstances with respect to the theft are that on 22 June 2013, Mr Zurki left his Toyota Corolla sedan parked outside his property in Springvale.  The vehicle was locked and secured.  Between 10 pm on 22 June 2013 and 2 am on 23 June you stole the vehicle, using scissors to start the car.

3On 23 June the police attempted to intercept the vehicle, driven by you, but you crashed after skidding through the intersection of Hanleth and Guildford Avenues in Springvale.  You ran off, leaving the vehicle with the scissors in the ignition.  You were injured and blood was located on the driver's side door.  A DNA sample was taken from the vehicle and when analysed, matched your DNA.

4The facts relating to the bail offences are that on 16 November 2015 you were granted bail after being apprehended by the police in a stolen BMW in Dandenong.  On four occasions in November 2015 - 16, 17, 18 and 19th - you contravened the bail curfew condition by failing to be present at your mother's home in Clyde North between the hours of 9 pm and 6 am.

Personal Circumstances

5You were born on 13 July 1995 in Kenya.  You have six siblings and you are the only one who has been in trouble with the police.  Your parents originally came from Sudan.  Due to the conflict in that country your family fled to Ethiopia, and then to Kenya.  I understand your oldest brother was born in Ethiopia, and you and two of your other siblings were born in Kenya.  In 2002 your mother came, together with four children, to this country as a refugee.  She established a relationship with another man of Sudanese descent, and I understand that she has three children from that relationship.  For the last three years she has been supporting the family on her own by working in childcare.

6You left school after completing Year 12 at Rowville Secondary College.  Unfortunately your prior criminal history reveals that you began to get into trouble when you were aged about 16.  Your first court appearance was at the Dandenong Children's Court in October 2010 for theft.  You had three other appearances in the Children's Court in 2011 for similar offending.

7In 2012 there was, again, offending of a similar nature. In 2014 there was offending relating to theft of a motor vehicle.  For this string of offences over that period the penalties you received were good behaviour bonds without conviction.  What is concerning to this court is that your offending escalated after this; as on 5 July 2015 you were sentenced to 12 months in a Youth Training Centre for offences including recklessly cause injury and attempted robbery.  On 12 August 2015 you were sentenced to eight months detention in a Youth Training Centre on a charge of robbery.

8It is relevant that I go through, briefly, your history after receiving this last sentence.  On 9 November 2015 you were released from Malmsbury on youth parole.  On 14 November 2015 you were arrested after being found in Dandenong in a BMW with three other males.  You were released on bail on 16 November 2015, and that bail was on condition that you reside at your mother's house and comply with a curfew.

9On 20 November 2015 you were taken into custody in relation to a bomb hoax at the Merinda Train Station. A police interview was held, and on that same day you were charged with burglary and aggravated burglary - which trial was held before me just recently.  You were also charged with respect to the bomb hoax at the railway station, and for committing indictable offences on bail.  On these charges on 8 March 2016 you were sentenced at Dandenong Magistrates' Court to a period of imprisonment of two months, and 60 days was declared as time served.

10Now, this means that you have been in custody in an adult gaol since 20 November 2015; about seven and a half months.  The time served in relation to the offence that I am sentencing you on is 163 days.

Plea submissions

11In his plea on your behalf your counsel relied on the fact that you pleaded guilty to the theft of the motor car and the bail condition breaches and, in addition, on the fact that you are a young offender and you had been in custody in an adult gaol since 20 November 2015.  He submitted to this court that your time in adult custody had had a salient effect on you.  In other words, that you had learnt your lesson.  He also submitted that the time you had served; 163 days, was more than you would have served if you had been sentenced back in 2013.  So, essentially what he said to this court was that time served - the 163 days - was an appropriate sentence.

12Your Counsel called your mother in support of these submissions. She gave evidence that you had helped her at home with cleaning and looking after your younger siblings.  She put your offending down to the fact that after you had left school you had been hanging out with bad friends, or the wrong group.  Your mother had been visiting you in gaol and believed that you had learnt a lesson. She was prepared to have you live at home again.

Sentencing remarks

13However, the prosecutor submitted that a custodial sentence exceeding the time that you had already served in gaol was warranted, and it was submitted that your subsequent offending was relevant with respect to your prospect of rehabilitation.

14In sentencing you I have taken into account all the matters relied upon by your counsel.  You are entitled to a discount for your plea of guilty, and I have given you one.  I have taken into account that you are a young offender, and that you have spent over seven months in an adult gaol.  While two months of this period was for other offending, the principle of totality applies.  However, in balancing these matters, with the need for both general and specific deterrence I have come to the conclusion that time served alone is not an appropriate sentencing disposition.

15With respect to the theft of the motor vehicle the maximum period of imprisonment is ten years.  Motor vehicle theft continues to be a prevalent and serious problem in the community.  With respect to your breaches of bail you showed a flagrant disregard for the curfew conditions by not being present at home.  Your history of subsequent offending since the motor car theft in 2013 is a matter of concern to this court.  In particular, it is concerning that 11 days after you were released from Malmsbury on youth parole you committed the bomb hoax offence.  It appears that your time in youth custody did not deter you from further offending.  Hopefully the fact that you have spent time in adult custody this will have had a different effect on you.

16While I have said that I am not going to sentence you to time served, I am not going to sentence you to further time in actual custody.  Taking all the various sentencing considerations into account I have decided that 163 days, together with a community corrections order, is an appropriate sentencing disposition.  The most punitive effect of the community corrections order is that you will be under supervision for a period of 12 months.  Rehabilitation of a young offender protects the community from further offending, and the rehabilitative effect of the order is that you will attend programs in relation to your alcohol consumption, and to reduce offending.  I had you assessed for a community corrections order and you were found suitable.

17On the charge of theft of a motor vehicle you are sentenced to 163 days imprisonment.  On your release you are to be placed on a community corrections order for a period of 12 months.  The special conditions will include supervision, treatment and rehabilitation with respect to alcohol consumption and programs to reduce offending.

18On the summary offences of breaching your bail conditions you are sentenced to 14 days imprisonment.  This sentence is concurrent with the sentence on the motor vehicle theft charges.  It is mandatory on the motor vehicle theft charges that your licence be cancelled, and that you be disqualified from obtaining a licence for a discretionary period of time.  The period will be six months.  The period of 163 days is to be marked on the record as time served.

19Mr Bieljok, I want to stress to you that the community corrections order - if you do not comply with it you would come back before this court, and it is likely that you would spend further time in custody.  Do you understand that?  I also want to draw to your attention that when you gave evidence to this court in the trial you said one of the reasons that you did not go home to your family is that you were drunk.  You did not want your mother and your younger siblings to see you in that condition; is that right?  You did not want them to see you drunk.  How old are your younger siblings?  What, six/seven?

20ACCUSED:  Six.

21HER HONOUR:  You are going to be 21 next - is it next week?

22MR CAHILL:  Yes, two weeks, Your Honour.

23HER HONOUR:  Two weeks' time.  You are not a boy anymore.  Boys steal motor cars and do stupid things like that, not men.  You have got those younger siblings of yours who would look up to you, you have got your mother, who is struggling to support your family.  It is about time you acted like a man and not a silly little boy.  Do you understand?  Take a seat.  Now, do we have the community corrections order?  Thank you.  Yes, can you approach your client with that document?

24MR CAHILL:  Yes, Your Honour.  Thank you, Your Honour.

25HER HONOUR:  Mr Cahill, I'm putting some responsibility on you, I'm sure you don't mind.  Can you make sure that you stress to him the importance of complying with that order, and perhaps to his mother and older brother?  You can explain that he has received a chance to stay out of trouble and it's very much up to him to grab that chance and run with it.

26MR CAHILL:  Yes, Your Honour.

27MR TRIANDOS:  Yes, Your Honour, and there's got to be a s.6AAA indication before we go.

28HER HONOUR:  Yes, all right.  Nine months' imprisonment with an 18 month community corrections order.

29MR TRIANDOS:  Yes, Your Honour.  I'm just - yes, Your Honour, that's - no, that's - that's (indistinct).  There's just a matter that Your Honour raised in the sentencing.  It probably doesn't make any difference, but I don't think when I made my submission that I actually said that the - that a custodial sentence exceeding the time served is actually warranted, but if I did say that I apologise, Your Honour.  I don't think I did, but ‑ ‑ ‑ 

30HER HONOUR:  Well, if you didn't ‑ ‑ ‑ 

31MR TRIANDOS:  ‑ ‑ ‑ we did say custodial sentence.

32HER HONOUR:  Well, if you didn't, since I didn't give him one, we are in agreement. 

33MR TRIANDOS:  Yes.  Correct, Your Honour.

34HER HONOUR:  Our minds have met.

35MR TRIANDOS:  Just want it put for the record, that's all, Your Honour.

36HER HONOUR:  All right.

37MR TRIANDOS:  Thank you, Your Honour.

38HER HONOUR:  All right.

‑ ‑ ‑