Director of Public Prosecutions v Bingai Chho

[2021] VCC 1265

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 21-01122

DIRECTOR OF PUBLIC PROSECUTIONS

v

BEI TEI BINGAI CHHO

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	29 July 2021, 27 August 2021
DATE OF SENTENCE:	1 September 2021
CASE MAY BE CITED AS:	DPP v Bingai Chho
MEDIUM NEUTRAL CITATION:	[2021] VCC 1265

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – Attempted aggravated burglary – Summary charged of possess controlled weapon without excuse – Young offender – Substance abuse - Imprisonment -

Legislation Cited: s77, s321M Crimes Act 1958 – s6(1) Control of Weapons Act

Cases Cited:Worboyes v The Queen [2021] VSCA - DPP vTokava [2006] VSCA 156 - R v Mills [1998] 4 VR 235

Sentence:Total effective sentence of 291 days imprisonment. 291 days pre-sentence detention declared.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Wilson	Office of Public Prosecutions
For the Accused	Ms A. Sharpley	Bowler Man & Co
(For Plea)
Mr M. Man
(For Sentence)

HIS HONOUR: 

1Mr Chho is 19.  He was born in May 2002 and he came here as a refugee I think at the age of 12 from Burma.  The plea in this matter took place on 29 July 2021.  Ms Sharpley, who appeared on behalf of Mr Chho, and Mr Man appears today, Mr Wilson has appeared on behalf of the Director throughout.

2I apologise for whatever picture you are getting of me, but I cannot do much about it.  Also I thank everyone for making this possible in our very difficult COVID times.  Following that plea we had a further plea last week on 27 August 2021 as a result of the receipt of the two reports that I had sought. 

3The indictment charges one offence of attempted aggravated burglary, an offence pursuant to the combined impact of s77 and 321M of the Crimes Act 1958, which has a maximum penalty of 20 years imprisonment.  The attempted aggravated burglary took place at 50 Gum Road, Kings Park on 4 November 2020 at approximately 3.50 am.  In addition, Ms Sharpley on Mr Chho's behalf pleaded guilty to a summary charge of possess controlled weapon, which was a kitchen knife.  The maximum penalty for that offence is one year imprisonment and/or 120 penalty units.

4The reason why Mr Chho is before this Court is that in effecting the attempted armed burglary, which I will come to later, he left his fingerprints on the window.

Prior Offences

5Mr Chho comes before the Court with no convictions; however, with a number of findings of guilty in the Children's Court, most importantly the matter which occurred on 28 August 2020, when he was placed on probation, those circumstances were in fact markedly similar, only in fact it was a charge of an aggravated burglary, again committed with an offensive weapon.

6Two prior matters have come before the Children's Court, one in 2020 and one in April 2018.  On the earlier one Mr Chho received an adjourned 12 months' good behaviour order in the Children's Court and then finally in 2020 a six months' probation.  He has unfortunately served his remand period, pre-sentence detention I understand is now agreed at 291, in an adult prison. 

Charge 1 on the Indictment

7Coming then to the charge, as I said I would, while not a big step-up in the sense of the offence committed in February 2020 which was dealt with in the Children's Court in August, however Mr Chho is now in the adult Court and faces an offence which has a 20-year maximum.

8This offence was committed by way of using the garbage bins near the property, then climbing over a fence.  The victims Mr Le and Ms Duyen, having heard noises, suddenly were confronted with Mr Chho at their window.  He was threatening them, attempting to get into the premises.  Having been unsuccessful at the window, he tried the front door, at the times having a knife in his hand.  Fortunately Mr Chho did not persist, hence the attempted aggravated burglary charge.  As I said, he left his prints in the kitchen window exterior.

9Trying to understand this crime has been very difficult.  There is no evidence of any prior connection to Mr Le, no suggestion of why Mr Chho would be there.  One of the suggestions made is that Mr Chho was there to get some food, yet, as the prosecutor points out, this was a residential area.  Whatever the reason, it seems to me clearly that he was there because of the impact of drugs.

10The prosecutor insofar as this crime was concerned at the first hearing of 29 July 2021 stressed the circumstances of grievousness, and referred to the matters which he sets out at paragraph 2 of Exhibit A, which was his opening.  Mr Wilson notes the similar type of offending, he notes the recent appearance in the Children's Court, albeit not a conviction but of the same type, and ultimately submitted that a sentence involving a period in gaol and parole would be appropriate.

11At the subsequent hearing, having received the two pre-sentence reports, the prosecution took the view that a YJC order was open and indeed, while it was a matter for the Court, the proposal put by counsel Ms Sharpley, on behalf of Mr Chho that is, that given the totality of the circumstances the period served should be sufficient and was acknowledged as being open.

12As I said, the matter had been adjourned from 29 July to get two reports, a Community Correction Report dated 4 August 2021 which was tendered as Exhibit D, and a Youth Justice report dated 23 August 2021, Exhibit E. It is to be noted that both reports were positive.

Plea of Mr Chho

13Ms Sharpley in her plea was at pains to stress Mr Chho's history with substances and the impact that they were having on him, especially on this night.  I note in the mental status report received the reference by Mr Chho to being involved with drugs from the age of 13.  She stressed the circumstances on this particular night as being inexplicable, that Mr Choo’s explanation as best he can give it was a search for food, that the assault happened simply in context with trying to get into the premises.  Mr Chho was clearly affected, according to instructions, and those instructions were maintained in the report of Mr Simmons, psychologist, Exhibit 2. 

14Ms Sharpley was at pains to stress, although Mr Chho is only charged with attempted aggravated burglary, that fortunately he did not complete the more serious charge.  Ms Sharpley pointed out that Mr Chho has a supportive family, in particular his father is very hard working; that the circumstances as to his drug use had been confirmed to Mr Simmons, as the circumstances of the crime as best she could understand it.

15Insofar as Mr Simmons' report, which was tendered as Exhibit 2, I refer to the last paragraph 29 and I will read from that.  Mr Simmons said:

‘While disposition is a matter for the Court, it is respectfully suggested that Mr Chho would benefit from ongoing drug and alcohol counselling with a focus on increasing self-efficacy, harm minimisation and relapse prevention strategies. There is no doubt that Mr Chho has drifted away from the influence of his family to a group of peers who engage in substance use and resulting antisocial behaviour. For Mr Chho to make significant changes into the future he will need to distance himself from this peer group and engage further with his family. His adolescence from his mid-teens seems to be marred by the influence of older Burmese males whose adjustment to Australia may have been limited.’

16Both reports that I have received and have been exhibited confirm the need for a drastic change in Mr Chho’s life:  to stabilise his life, especially by way of taking appropriate steps in regard to working and getting further education; and importantly, overcoming the problem of drugs. 

17The plea obviously referred to the principles concerning the sentencing of a young man set out in R v Mills [1998] 4 VR 235, 241 and 242.

18Ms Sharpley stressed the genuine remorse demonstrated not only by the plea but by the statements made, one hopes that is correct. The circumstances in which Mr Chho has served his remand brought about by COVID-19 restrictions, I take into account those totally. The principles referred to more recently by the Court of Appeal in Worboyes v The Queen [2021] VSCA 169 as to the utilitarian benefit of the plea in these times; and also the particular concern given his background as to risks of deportation. I take all those matters into concern.

19As I said when we met last Friday, I wanted to give these matters further consideration, which I have over the last five days.  I think the principle matters that have impacted upon me is the fact that Mr Chho is still 19, that rehabilitation is therefore a very important factor and having the opportunity to effect that.  In that regard I would quote from the current President in DPP vTokava [2006] VSCA 156, [21], where he said:

‘A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in a case of a serious offence, if in the long term the community’s interest will be best served by that course.’

20At [22] the President quoted from a determination by the Supreme Court in ACT in R v Dixon (1975) ACTR 13 and the reference there as to the perils of young men in gaol for the first time. The comment was made that:

'A distinct possibility, particularly if the sentence is a long one, is that the person sent to gaol will come out more vicious, and distinctly more antisocial in thoughts and deed than when he went in'.

21The President went on to say:

'These passages [in Dixon] set out a view held in 1975 of the likely effect of gaol.  As I remarked in the course of argument, my impression is that almost everything which his Honour said then is still [remains appropriate today]'.

22I refer also to a further decision of the President in R vMerrett [2007] VSCA 1, [49]. I will not rehearse that, but I do want go to DPP v Milson [2019] VSCA 55, a determination of the Court of Appeal in particular at paragraph 71. Talking essentially about rehabilitation, the Court said this:

‘In a climate when sentences for many (if not most) crimes are increasing, it is easy to forget that the protection of the community ultimately is best served by the rehabilitation of an offender. If an offender, whether young or recidivist, can be steered away from a life of crime, the public interest is best served.‘

23Those principles of course are set out in the Sentencing Act s5(1), in particular sub-paragraphs (c) and (e). The Court went on to say:

'That notion, it seems to us, informed what Young CJ said about the sentencing of youthful offenders ... and also underpinned the observations [made by King CJ in a Queensland case] with respect to the sentencing of seasoned offenders.  Indeed, although it is often taken for granted that leniency extended by a judge for the purposes of rehabilitation bestows a benefit on the prisoner alone, commentary in social and news media frequently ignores the fact that the community's interest is best served if well-placed leniency in sentencing may (and often does) lead to reformation'.

24I am mindful of the fact that, despite those comments about the problems of being incarcerated when a young man, Mr Chho has spent 291 days in prison in these times.  He has expressed not only to his counsel and psychologist but in the matters put to me a strong desire to rehabilitate, as I say in particular in the two reports sought. 

Sentence

25Mr Chho, I would normally ask you, if I were in Court, to stand up, but what I want to say to you is this.  I have decided not to send you to detention in YTC, albeit well deserved for your crimes.  I propose to give you a further opportunity.  It might be said you have had plenty of opportunities.  Can I stress to you how dangerous a time it is in your life.  You have got to wake up, as simple as that.  You have got a strong, supportive family.  You have got to get rid of drugs, get yourself working and change your lifestyle.  The fact is you have now got a very serious conviction to your name.  The next time - if there is a next time; we hope not - you come back to Court, you can expect to get a significant gaol sentence.

26I would normally ask you to stand up, but obviously that is impossible.  You just stay where you are now. 

27You will be convicted of the charge in the indictment and the summary charge.  With regard to the charge in the indictment of attempted aggravated burglary you will be convicted and sentenced to a gaol term of 291 days.

28In regard to the summary matter you will be convicted and sentenced to a period of imprisonment of 21 days.  I make no order as to cumulation.

29I declare pursuant to s18 of the Sentencing Act that the pre‑sentence detention that you have served of 291 days be deemed service of this sentence and that a declaration to that effect be recorded in the records of this Court.  Mr Chho, the effect of that decision is, as I have said, to give you an opportunity to grant you leniency.  You must change your lifestyle. 

30OFFENDER:  Yeah.

31HIS HONOUR:  I am required under s6AAA to indicate the impact of the plea of guilty in this matter.  It is very difficult in the circumstances, given the importance of the issue of rehabilitation when dealing with a young man; however, doing as best I can to comply with the parliamentary intent, can I explain to you, Mr Chho, that had I not passed the sentence that I have of 291 days, which effectively is what you have served, the period of imprisonment I would have imposed is a period of three years with a minimum period to serve of 15 months.

32I can only stress again it would be very, very dangerous for you to commit any further crimes in the near future and find yourself back in Court.  I can only wish you the best, all right?

33OFFENDER:  All right, thank you.

34HIS HONOUR:  You have got to change yourself, all right?

35OFFENDER:  Yeah.

36HIS HONOUR:  And don't muck around with older men who aren't helping you.  You take care of what your parents are telling you and get yourself a job. 

37OFFENDER:  Yep, yes.

38HIS HONOUR:  All right, I'll give you the opportunity.  Gentlemen, any matters that I haven't attended to, either Mr Wilson or Mr Man?

39MR MAN:  Not from me, Your Honour.  If I could just have a chat to my client after.

40OFFENDER:  Thank you.

41HIS HONOUR:  Thank you.  Yes, thank you very much, Mr Wilson.

42MR WILSON:  May it please the Court.

43HIS HONOUR:  Much appreciated for your assistance.

44MR WILSON:  May it please the Court.

45HIS HONOUR:  Yes, Mr Tipstaff.

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