Director of Public Prosecutions v Bol
[2020] VCC 1202
•13 August 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00707
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NGOR BOL |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 August 2020 | |
DATE OF SENTENCE: | 13 August 2020 | |
CASE MAY BE CITED AS: | DPP v Bol | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1202 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Plea of guilty – One charge attempted armed robbery - One charge
possess methylamphetamine - One charge possess heroin – Youthful offender armed with knife – Offender has demonstrated remorse - Circumstances of COVID-19 pandemic taken into account.
Legislation Cited: s 321M, s75A Crimes Act 1958; 73(1) Drugs, Poisons and Controlled Substances Act 1981; s18, s44, s48CA Act 1991
Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; Marrah v The Queen (2014) VSCA 119.
Sentence: Imprisonment for 9 months in combination with 15 month Community Corrections Order upon release; Aggregate fine of $200.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E. Maguire | Office of Public Prosecutions |
| For the Accused | Mr D. Swan | Victoria Legal Aid |
HER HONOUR:
Introduction
1 Ngor Bol, you have pleaded guilty to one charge of attempted armed robbery contrary to ss.321(M) and 75A of the Crimes Act 1958, which carries a maximum penalty of 20 years' imprisonment (Charge 1), and two charges of possessing a drug of dependence contrary to s.73(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Charges 2 and 3).
2 The relevant drugs were methylamphetamine and heroin. Because the plea proceeded on the agreed basis that those drugs were not in your possession for the purposes of trafficking, the applicable maximum penalty is one year imprisonment, or a penalty of not more than 30 penalty units.
3 You have admitted a prior criminal history. Your prior offending has been in both Victoria and South Australia.
Circumstances of the offending
4 The circumstances of your offending are set out in the summary of prosecution opening dated 16 July 2020. That document is Exhibit A on the plea and forms part of these reasons. I will summarise the facts giving rise to your offences here.
5 On 4 March 2020, at about 7:33 pm, four people, strangers to you, were sheltering from the rain and playing Pokémon Go together in an undercover area at 106 Elizabeth Street in Richmond. You went up to their semicircle and told them you were ‘having a bad day’. They said they were sorry to hear that and that they hoped it got better. You walked away.
6 You came back soon afterwards and asked them if they wanted to ‘do this the easy way or the hard way?' You took a 15 centimetre knife from the front of your pants and pointed it at them. You then told them to give you their mobile phones. They did not do so.
7 When the victims moved away from you, you went towards them with the knife in one hand. When you reached for Ms Dobber-Kerchavel's phone with your other hand, she told you to put the knife away, that there was ‘no need for it.’
8 When Mr Vo warned you that it was not going to end well for you because you were outnumbered and there were security guards close by, you turned towards him with the knife and said, ‘I don’t give a fuck. I don’t care. Do you want to get shanked?’.
9 After this, you moved towards Mr Gil and attempted, without success, to take his mobile phone.
10 The victims then walked away from you and asked for help from nearby security guards, who called 000.
11 CCTV footage shows the incident unfolding over about three minutes. In it we see you wrapping the knife in a cloth and putting it back under your clothes as you walk away.
Arrest and interview
12 Soon afterwards police arrived and arrested you on the corner of Lennox and Victoria Streets in Richmond. They searched you and found the knife wrapped in a green tea towel in the front of your pants. They also found three snap-lock bags with a crystal substance inside.
13 You were taken to Richmond police station and put in a cell to sleep.
14 The next day you answered questions in a police interview. You told police that the drugs were for your personal use. You denied attempting to commit armed robbery. You admitted that you had a knife, but told police it was for your protection and was not used to try to rob the victims. When you were told that there was CCTV in the area where the incident took place, you said you would answer ‘no comment’ to any further questions.
15 You were then charged and brought before the Melbourne Magistrates’ Court the same day for a filing hearing.
16 At a committal case conference on 28 May 2020, you entered pleas of guilty to the charges and your case was transferred to the County Court for a plea hearing.
Nature and gravity of the offending
17 Your offending was opportunistic, short in duration and unsophisticated. It was unplanned and poorly executed. The shabby nature of your offending caused one of the victims to describe it as ‘almost comical’. You were always outnumbered, but your use of the knife to point at your victims increases the gravity of your offence.
Victim impact
18 Comical or not, you nevertheless frightened four people, who were strangers to you and minding their own business. Although no victim impact statements were tendered on the plea, evidence of how you made them feel was taken from their statements and formed part of the prosecution opening. You made them feel variously shaky, panicked and helpless. Happily, they were not physically harmed, nor did they lose their property as the result of what you did, but they should never have been put in that position by you. It is entirely unacceptable.
19 You were, at the time of the offending, subject to a Community Corrections Order, and that fact aggravates your conduct.
20 While your offending was not among the most serious examples of this offence, it was frightening and confronting for those involved.
Personal circumstances
21 You are 23 years old. You were born in the Kakuma refugee camp in Kenya where your family had sought safety from the conflict in your original country of Sudan. You were raised in that camp by your mother and sister until you were nine years old. You are unsure of the fate of your father.
22 In Kakuma as a very young child you were exposed to horrific violence. You saw people being killed in a number of terrible ways. It was no place for an adult to thrive, let alone a child. The camp was full of tension, both between ethnic groups within the camp and between refugees and locals outside the camp. There was little by way of education. Your existence until the age of eight can be described as traumatic, fearful and uncertain. In 2005 your family was granted entry to Australia as refugees.
23 You settled in Adelaide and went to learn English in a dedicated school for two years. You then entered mainstream primary school. Your English was still developing and you had a slight stammer. You were then subjected to racially motivated bullying. You found it hard to describe this and report it to adults in authority because of your limited English and speech difficulties. On the occasions you did manage to report the bullying, which was both verbal and physical, it appeared that little or nothing was done to protect you by those in charge.
24 This bullying continued into your high schooling. Unsurprisingly it had a corrosive effect on you and you started to look for reasons to miss school. In this way, the process of your disengagement from education began. During Year 11 you dropped out of school completely and have not returned to education since.
25 While in Adelaide, your 14 year old cousin, with whom you were close, was fatally stabbed in the CBD. Later you were held in youth custody with the perpetrator, which was disturbing for you.
26 After you left school you obtained work. You worked as a labourer in construction, as a courier for StarTrack for a year and in the Coles distribution centre for a similar period. You moved to Victoria in 2019. Other members of your family, including your mother, had moved here previously.
27 At around the time of your cousin’s death, when you were 12, you started using alcohol and cannabis to help you cope. Over time this escalated into using other drugs, including methamphetamine and alcohol. You had used both on the day of your offending. I gather the police put you in a cell to sleep it off after you were arrested.
28 You retain the support of your mother and sister. You assist them financially when you can. While you have been in custody, your mother suffered a heart attack. I accept that your mother’s ill health has made this period of gaol, the longest you have ever served, more stressful for you.
Prior history
29 I have had regard to your prior criminal history, which dates back to 2012.
I have taken into account that part of your history that concerns your conduct as an adult. Much of it appears to concern offences that are disorderly, rather than violent in nature, although I note references to two assaults, one involving a weapon.
30 I have already noted that at the time of this offending you were on a CCO for offences in Victoria. Through your counsel, you have expressed a wish to be given another chance at completing a CCO. The prosecutor correctly notes that you have only had one therapeutic order in the past, notwithstanding your history.
Early plea
31 Your plea of guilty was entered at the earliest opportunity and by pleading guilty, you have saved the community the various costs of a trial. It is significant that your plea has saved the victims from having to give evidence and relive a very unpleasant event. Further, at a time where the public health emergency has prevented criminal trials form being heard, I consider that your plea is particularly valuable. It reduces the already large backlog of cases to be heard in the future.
Remorse
32 I accept that your guilty plea indicates some remorse. Moreover, you composed a brief note about how you felt about your offending, marked as Exhibit 3 on the plea. In it, you speak about being ‘honestly done’ with taking drugs. You write about being sorry for how your offending affected the victims. I accept that you are now thinking clearly about how your drug use is threatening to waste your life, and that you have demonstrated remorse about what you did.
Time in custody
33 You have been using your time in custody well. I have a letter from Godefa Berhane G’her, who writes about your participation in the African cultural group in custody and your role in planning African Day 2020. Your random screen for drug use is negative for all substances. I am optimistic about your prospects of rehabilitation. It was properly conceded by the prosecutor that the principles of general deterrence and denunciation ought to be somewhat moderated in favour of your rehabilitation.
Impact of public health measures
34 In thinking about how to sentence you, I am assisted by submissions from both the prosecutor and your barrister, that the current public health measures taken by the Corrections system necessarily mean that your time in custody has been unusually difficult. You have been unable to complete a course you would have liked to do, being the forklift licence training. All prisoners are unable to receive visits, have less access to phone calls, and all prisoners have to deal with the anxiety of being in an environment they do not control, in circumstances when infection rates have risen in Victoria in two periods since your incarceration on 4 March 2020. I have taken all this into account in your favour.
Sentencing considerations
35 I have to impose a sentence that properly punishes you, denounces this behaviour and deters you (and others) from committing similar offences. On behalf of the community, the court says this: It is completely unacceptable to frighten people in this way and try and take their things.
36 On the other hand, I also accept that you were exposed to an exceptionally violent and insecure world as a very young child. At only nine years old you moved country and the damage done to you in those early years was then compounded by racist bullying at school. It was put by your council, Mr Swan, and this submission was echoed in submissions by Ms McGuire for the prosecution, that the principles in Bugmy v The Queen[1] and Marrah v The Queen[2] should apply, so that your moral culpability is reduced on account of this early trauma. I accept those submissions, tempered as they must be by the accompanying principle that the need for community protection may be elevated in such circumstances.
[1] (2013) 249 CLR 571.
[2] (2014) VSCA 119.
37 In any event, I take into account that you are still youthful and conclude that the community is best protected by your rehabilitation. You have said you are ready to do this. You have previously held down long-term employment; you have experienced all the economic and social benefits that work brings and you have recently expressed a desire to be in the workforce again. You have a family and a home. You acknowledge the need to address your mental health issues and the drug and alcohol issues that may be connected to them. All these things allow me to conclude, cautiously, that your prospects of rehabilitation are good.
38 I am also obliged to reflect on current sentencing practices for similar offences and I have done so.
39 I add for completeness that I was given much assistance in this case by counsel’s thoughtful and thorough written submissions. They are marked as Exhibits C and 1 on the plea respectively.
40 Normally, Mr Bol, this is the bit where I ask you to stand up, because I am going to tell you the details of the sentence, but that does not make any sense on screens, so you can remain seated while I tell you the sentence.
Disposition
41 It was put by your counsel and conceded by the prosecutor, that a combination sentence, pursuant to s.44 of the Sentencing Act 1991 is within range for these offences. I was persuaded by those submissions and on the day of the plea you were interviewed by Corrections and assessed as suitable for such an order.
42 Ngor Bol, on Charge 1, armed robbery, you will be convicted and sentenced to nine months' imprisonment.
43 162 days will be reckoned as already served on that sentence.
44 On Charges 2 and 3, the two charges of possession of a drug of dependence, you are convicted and fined an aggregate fine of $200. I am imposing an aggregate sentence on those two charges because they are very similar, occurred at the same time, and can both be dealt with simply by way of a fine. So an aggregate sentence means that you wrap up two charges that are quite similar and give one penalty for both together.
45 In addition to the prison component of the sentence for the armed robbery, when you are released from gaol, you will be placed on a community corrections order, with conviction, for 15 months. That order will involve both treatment and punishment.
46 You will first be subject to the ‘standard conditions’ of a CCO. That means, importantly, that you must not commit any other offences that are punishable by imprisonment during the 15 month period. I emphasise, Mr Bol, that if you do breach this order, you get brought back before me to deal with it.
47 You must report within two days of your release, either by phone or by going to the nearest Community Corrections office.
48 You are required to advise your supervisor in the Corrections office of any change of address where you are living or working, and you must do so within two clear working days. It is a term of all community corrections orders that you must submit to visits as directed and you must obey all of the instructions and directions of a Community Corrections order. You are not able to leave the State of Victoria without their prior permission.
49 You will also be required to complete 150 hours of community work over the 15 months.
50 You will be required to complete programs to further address your drug use and your alcohol use. You will be required to participate in mental health treatment. You will be required to engage in programs to reduce re-offending and you will also be subject to supervision. It will not be easy, Mr Bol, but these are the things that you need to do.
51 Pursuant to s.48CA of the Sentencing Act 1991, I direct that all of the hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition. Mr Bol, that means that when you turn up to do your treatment or do any of the other things that you are required to do, the clock is running and that counts towards the 150 hours.
52 Pursuant to s.18 of the Sentencing Act 1991, I declare that 162 days be reckoned as the period of imprisonment already served under the sentence on Charge 1. That does not include today.
53 Pursuant to s.6AAA of the Sentencing Act, I declare that, but for your plea of guilty, I would have imposed a period of imprisonment of 24 months, with a non-parole period of 15 months.
54 I make the disposal order as sought.
55 Ms McGuire or Mr Swan, is there anything that you seek to raise?
56 MS McGUIRE: No, Your Honour. As the court pleases.
57 MR SWAN: No, Your Honour. If it pleases the court.
58 HER HONOUR: Then, Mr Swan, I have promised Mr Bol that he might have a moment to speak with you without me here, so that you have that opportunity that you would get if you were in court to explain anything and to particularly explain to Mr Bol the consequences of not complying with the order and that we would have to meet again.
59
Mr Bol, I hope you take this in the way it is intended and I mean this in the nicest possible way, I hope I never see you again. Because if
I never see you again, it means you have done your order well.
60 OFFENDER: Yes, Your Honour.
61 HER HONOUR: In terms of the paperwork - my staff will organise a written document that shows you the CCO and it will be given to you to sign in custody, Mr Bol.
62 Is there anything else before I leave the Bench?
63 MR SWAN: No, thank you, Your Honour.
64 HER HONOUR: All right.
65 MS McGUIRE: No, Your Honour.
66 HER HONOUR: We will adjourn the court.
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