Director of Public Prosecutions v Bol
[2024] VCC 1465
•17 September 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00830
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SUNDAY BOL |
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JUDGE: | HIS HONOUR JUDGE MEREDITH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 11 September 2024 | |
DATE OF SENTENCE: | 17 September 2024 | |
CASE MAY BE CITED AS: | DPP v Bol | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1465 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Arson of a function centre and a vehicle; PG; young offender
Legislation Cited:
Cases Cited:
Sentence: TES 2 years and 6 months; NPP 15 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Malik | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr W. Hart | Stary Norton Hamilton |
HIS HONOUR:
1Sunday Bol, you have pleaded guilty to Charge 1 of arson of the Emerald Function Centre in Thomastown, and Charge 2 of arson of a Ford Ranger motor vehicle in Bundoora.
2Each charge of arson carries a maximum penalty of 15 years’ imprisonment and both offences are related having occurred within about an hour of each other on 22 February 2024.
3Tendered on the hearing of your plea was a summary of prosecution opening and reference also made to photographs.
4
In summary, you were 20 years of age at the time of your offending and are now 21. Sometime between 20 and 22 February 2024, you came to be in possession of a stolen Ford Ranger vehicle belonging to the victim of Charge 2, Mr Phillip Heveren. You drove this vehicle from your residential address in St Albans, arriving in the Thomastown area at about 4.40 am. At around 5.45 am on
22 February 2024, you drove the Ranger to a customer carpark located at 219 Settlement Road.
5You then exited the vehicle with your face covered, removing two fuel containers and placed them and yourself over the boundary fence. You forced entry into the Emerald, a reception centre, and doused petrol throughout the office and entrance area before igniting it.
6You then fled the premises, jumping the boundary fence and driving off in the Ranger. At around 6.1 0am you parked the Ranger outside an address in Nathan Court in Bundoora, doused it with accelerant and lit it on fire.
7You then travelled to the Preston area by tram and engaged with a civilian witness whom you asked to call an ambulance, stating you had been involved in a motorcycle accident. At around 7.15 am, Preston Police attended where they saw you interacting with Ambulance Victoria members. You were observed not to be wearing any shoes or socks, being topless and covering your left arm with a grey coloured long-sleeved top, and you stated you were in a motor bike accident. A pair of tracksuit pants that you had been wearing had been discarded. You were transported to Royal Melbourne Hospital for burns and treated for your injuries.
8As part of the investigative process, police took swabs from the boundary fence that you had jumped as well as fuel containers that you had left at the scene. These all came back as a preliminary match to you.
9In addition, when police attended the burnt-out Ford Ranger, they observed the presence of an Apple iPhone which was linked to you, as well as other items. The map application on the iPhone was open showing directions to Nathan Court from a destination 2.4 kilometres away. The Emerald Reception Centre was 2.4 kilometres away from where you had burnt the Ranger out.
10You were arrested on 29 February 2024 and observed to be bandaged to your arms and leg, consistent with burns that you had received in carrying out your offending. Nothing has been sought to be made on your plea hearing of the fact that you suffered some injury as a result of your offending. Nonetheless, I do take into account that your injuries required medical intervention and would doubtless have been painful and engendered a degree of fear in you.
11When interviewed by police you declined to comment.
12It is apparent that your arson of the business premises was planned, and it was put on your behalf on the plea hearing that you had been approached by unnamed others and told you would be rewarded with cash and drugs if you undertook the arson in question. It was also put that they supplied you with the stolen Ford Ranger. The obvious inference regarding the Ford Ranger is that you burnt it out to minimise the risk of you being later detected.
13Both charges are premeditated and serious examples of arson. You were engaged in the arson of the business premises in the expectation of reward and consequent upon that destroyed the motor vehicle. It is apparent that general deterrence and the court’s denunciation of your offending must be appropriately emphasised in my sentencing of you.
14Regarding the damage to the business premises, it has been variously described as considerable and significant. I was told on the plea hearing that an insurance claim as of May this year put the damage at approximately $830,000. I was further advised that it is not anticipated that the business will be able to reopen until late 2025.
15Turning next to your own personal circumstances, much of these are contained in the submissions of your counsel and character references tendered at the plea hearing.
16You are currently 21 years of age and were 20 at the time of your offending. You began getting into trouble with police from a young age and your offending has escalated. Your criminal history dates back to 2019 and you have been sentenced twice in this Court, as well as multiple times in the Children’s Court. Your County Court matters related to aggravated carjacking with an offensive weapon and affray and robbery.
17You were born in Sudan and are the youngest of seven. Your father was killed in the Sudanese civil war before your birth and your mother fled Sudan with you and your siblings. Your family spent time in refugee camps in Nairobi before arriving in Australia when you were approximately two years of age. You report a close and supportive relationship with your mother; however, your upbringing was turbulent, partly due to ongoing financial difficulties. You report feelings of disadvantage due to growing up without a father figure or male role model and experiences of violence throughout your upbringing, financial hardship, racism, and other related issues.
18You attended three different primary schools and were expelled from your high school in Year 10 in 2019. You were enrolled in another high school for Year 11; however, the COVID-19 pandemic disrupted your schooling as well as your attendance being minimal prior to you being remanded in youth custody. During your period on remand you attended Parkville College and continue to receive support from this organisation. You commenced smoking cannabis at an early age, namely 13, and more recently you have struggled with cocaine abuse.
19Whilst in the community you have resided with your mother. You are described as being her main support and she has struggled without you at home. She has also struggled with the impact that these charges have had on your reputation within the community and its consequent impact upon her.
20Regarding your turbulent background, it is apparent that you have experienced disadvantage at a number of levels.
21In Bugmy’s case[1] the majority of the High Court, at paragraph 43 of that judgment, stated that:
'A background of childhood disadvantage is a feature of a person's makeup and does remain relevant to the determination of an appropriate sentence because the impacts of profound childhood depravation do not diminish with the passage of time, and repeated offending.'
[1] Bugmy v The Queen (2013) 249 CLR 571
22The High Court spoke of it being correct to give full weight to an offender’s deprived background in every sentencing decision.
23You have experienced disadvantage in a number of different ways in your formative years and I do take this into account. I will sensibly reduce your moral culpability in light of the reasoning set forth by the High Court in Bugmy’s case.
24I do note, however, that the High Court went onto state in Bugmy’s case:
'That is not to suggest, as the appellant's submissions were apt to do, that an offender’s deprived background has the same mitigatory relevance for all the purposes of punishment.'
25A number of references have been tendered on your behalf. These include references from Ms Elle Hannelly, employment co-ordinator with Parkville College, Areej Nur, senior leader at Parkville College occupying the role of culturally responsive practice manager, Ajak Kwai, a member of the Parkville College’s elders advisory council, and Malau Lueth, senior project officer at the Commission for Children and Young People.
26You were released from custody in May of last year, 2023, on the affray and robbery sentence imposed in this court. Your offending before me occurred approximately eight months after your release from custody.
27In June of 2023, you completed a program through the YMCA and received an offer of paid ongoing employment as a labourer. You received mostly positive feedback from this employment but stopped receiving shifts towards the end of 2023 due to a lack of available work. You applied for an internship program through HoMie Pathway Alliance in early 2024 but were unable to attend the final interview due to your arrest. According to one of your referees, Ms Elle Hannelly, employment pathways co-ordinator at Parkville College, this eight month internship program position is likely to be available to you should you still be under the age of 24 at the time of your next application.
28Ms Hannelly has had extensive dealings with you. Amongst other things she writes:
' ……….From the period of May 2023 through until Sunday’s arrest on February 29 2024, Sunday remained consistent in his high levels of engagement with my support in the community, meeting in person on average twice per week and speaking via phone or SMS every second day. Since being in custody Sunday has maintained his voluntary engagement with my support, speaking on average of once per week.'……….. ' I have come to know Sunday as a reliable, insightful and thoughtful young man.”'
'Due to Sunday’s shifts decreasing and then ceasing in late 2023, Sunday was motivated to seek alternative employment that provided him with financial stability. Sunday engaged heavily with my support while also driving his own efforts to secure employment. Sunday applied for numerous positions throughout January and February, in industries including waste management, warehousing and construction.'
29She further states that;
'Sunday has presented as accepting and understanding of the charges he is facing. Sunday expressed to me a deep remorse for his charges, the impact on the victims, and for his support network who he felt he had “let down”.
'During a visit in March, Sunday stated that he “would give anything to go back in time five weeks and take it back. Sunday was visibly distressed throughout this conversation and struggled to hold eye contact during moments when his eyes began to well with tears. He reflected on all the efforts he had made in his rehabilitation since exiting youth custody, and remorse in feeling that he had sullied this progress. Sunday has articulated that this current period of remand in adult custody has been a “wake up call”, stating that it is very different from the youth justice system that he was familiar with. He has described feelings of a lack of safety within the prison, as well as the prevalence of negative influences. At the prison, Sunday has registered his interest in all further education opportunities available to him through Kangan, however has been advised that there is a long waitlist to engage in these programs. Sunday has requested resources from our school to be shared with him so that he can continue his learning in custody, however the logistics of this are yet to be fully explored.'
30It seems that after your release you had found employment and were making positive progress. You lost your employment and then things have taken a downward spiral for you culminating in the offending before me.
31Turning next to your plea of guilty. It is to your credit that you have pleaded guilty to these matters and your guilty plea was entered at an early time. It has facilitated the course of justice and has saved the community and the courts the cost and time of contested proceedings. In addition, having regard to your early guilty plea and other materials before me, I am satisfied that you are appropriately remorseful for your conduct now.
32You are still only 21 and were only 20 when you offended. Your comparative youth is a highly relevant sentencing consideration. Generally speaking, maturity can be expected to develop progressively through adolescence and adulthood.
33The Court of Appeal has stated that there are a number of considerations which underlie the general primacy of youth as a sentencing consideration. Young offenders are often immature and therefore may be more prone to ill-considered or rash decisions. Insight, judgement and/or self-control may be lacking as compared to an adult.
34Courts also recognise the potential for young offenders to be reclaimed and rehabilitated. This is because typically they are still in a stage of development and may be more open to influence which may positively change their behaviour than adults who have established patterns of antisocial conduct. Generally speaking, when dealing with a young offender, rehabilitation is of a greater significance than general deterrence. This is because punishment may in fact lead to further offending, in the sense that it is desirable to avoid placing young offenders in a prison context with hardened criminals who may lead to their corruption.
35I also allow for a degree of reduction in your moral culpability also on account of your comparatively young age. Having regard to your relatively young age, I accept that you did not have a fully developed appreciation of the degree of seriousness of your offending conduct.
36Unlike the Children’s Court jurisdiction, however, which has an emphasis on rehabilitation, the adult jurisdiction requires me to take into account the sentencing aim of general deterrence, that is, sending a message to others that if they offend as you have, there will be consequences sufficient to deter them from engaging in the behaviour in question.
37Your offending is relatively serious and the primacy of rehabilitation as a sentencing consideration, in your case, must be moderated by the need for the court to appropriately express the community’s denunciation of your conduct, and also to deter you and others from engaging in similar conduct.
38Whilst the reference material placed before me indicates that you have a degree of family support as well as support from other areas, including the Parkville College, it is apparent that notwithstanding this degree of support, you have relapsed into drug abuse and offending behaviour at what is a comparatively short time after your previous release from detention. In saying this, I note that you were gainfully employed and were making positive progress for a period. Whilst generally I assess your rehabilitative prospects as positive, I have some caution as to whether you are prepared to properly commit yourself toward your future rehabilitation. Time will ultimately tell. You do have considerable support and resources available to you and it will be up to you to make the most of them.
39You also need to understand that if you continue to offend, all things being equal, you can expect to receive significant sentences in response to your offending now that you are in the adult jurisdiction and have a considerable prior offending history.
40I was referred to a number of authorities on the plea hearing and I have had regard to them.
41
Your counsel submitted that whilst a term of imprisonment is warranted on
Charge 1, the arson of the Emerald, that I ought combine this with a community correction order on Charge 2, the arson of the Ranger. Prosecuting counsel submitted that the only appropriate sentence in your case was a head sentence and non-parole period.
42Given the nature of your offending, and your previous history, I cannot accede to your counsel’s submission. In my view, notwithstanding your youth, difficult background and mitigatory matters generally, a head sentence and non-parole period is the only appropriate sentence to mark the gravity of your offending in light of your prior history.
43The total effective sentence which I impose on you will however be moderated, as will the individual sentences, to appropriately reflect the fact that you are a comparatively young offender, and you will be serving your first sentence in the adult system.
44In my view, notwithstanding the mitigatory factors in your case, any sentence other than a head sentence and non-parole period would, as I have said, not appropriately reflect the seriousness of your offending. I do, however, propose to maximise your chances of supervised release under parole should you be deemed eligible for this and, in particular having regard to your age, have fixed a minimum term as well as a head sentence lower than I otherwise would have.
45Regarding Charges 1 and 2, given that they are both offences of arson, if I impose a term of imprisonment on Charge 1, which is inevitable, and that I will be imposing a term of imprisonment on Charge 2, you fall to be sentenced on Charge 2, as a serious arson offender. I direct this be noted in the records of the court.
46This means that I must regard protection of the community as the principal purpose for which the sentence is imposed. In this regard, I note that the prosecution do not call for a disproportionate sentence to be imposed to achieve this sentencing aim and I agree with their assessment.
47Also, unless I otherwise direct, the sentence on Charge 2 is to be served cumulatively upon the sentence imposed on Charge 1. I will, however, allow for the operation of some concurrency to recognise the interrelated nature of your offending on Charges 1 and 2, matters personal to you, and the need to avoid a sentence beyond the proper application of the totality principle in your case.
48
Would you stand up. Balancing all matters then, on Charge 1, I sentence you to two years and three months' imprisonment. On Charge 2, I sentence you to
12 months’ imprisonment. Three months of the sentence I have imposed on Charge 2 will be served cumulatively with the sentence I have imposed on Charge 1, making a total effective sentence of two years and six months' imprisonment, or 30 months’ imprisonment. I fix a non-parole period of 15 months in your case and I declare what I understand to be presentence detention of 195 days. Have a seat for now.
49MR MALIK: Two hundred and one. Two hundred and one days, Your Honour, not including today.
50HIS HONOUR: Two hundred and one, all right. Are there any further orders required?
51MR MALIK: Yes, Your Honour. There are I think applications for forfeiture orders and disposal orders.
52HIS HONOUR: All right. I will make those.
53MR HART: Those are not opposed, Your Honour.
54HIS HONOUR: Yes, all right. All right, thanks, if Mr Bol can be taken into custody. Okay, thanks.
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