Director of Public Prosecutions v Chak

[2024] VCC 903

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01778

DIRECTOR OF PUBLIC PROSECUTIONS

v

GENJOOK CHAK

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	18 June 2024
DATE OF SENTENCE:	18 June 2024
CASE MAY BE CITED AS:	DPP v Chak
MEDIUM NEUTRAL CITATION:	[2024] VCC 903

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty – Aggravated burglary – Assault – Possess a drug of dependence – Possess counterfeit money – Possess prohibited weapon – Relevant criminal history – Youthful offender – Offending committed in company – Verdins principles 5 and 6 – Reasonable prospects of rehabilitation.

Legislation Cited:      Crimes Act 1958 ss 77; Drugs, Poisons and Controlled Substances Act 1981 s 73(1); Crimes (Currency) Act 1981 (Cth) s 9(1)(a); Control of Weapons Act 1990 s 5AA; Sentencing Act 1991 ss 6AA, 18, 48CA.

Cases Cited:R v Mills [1998] 4 VR 235; Azzopardi v The Queen (2011) 35 VR 43; The Queen v Verdins (2007) 15 VR 269.

Sentence:                  Imprisonment for a period of 18 months with a Community Correction Order for 2 years; on Summary Charges 5, 6 and 14, conviction and $250 fine on each charge.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms E James	Office of Public Prosecutions
For the Accused	Mr D De Witt for Plea Mr C Sloan for Sentence	McNally & Gleeson Lawyers

HIS HONOUR:

Introduction

1Genjook Chak, you have pleaded guilty to the following charges:

(a) one charge of aggravated burglary contrary to s 77 of the Crimes Act 1958 (‘Crimes Act’), which carries a maximum penalty of 25 years imprisonment (Charge 1);

(b)   three charges of common assault contrary to common law, which carries a maximum penalty of 5 years imprisonment (Charges 2, 3 and 4);

(c) one charge of possession of a drug of dependence contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981, which in this instance, as the cannabis was a small amount, carries a maximum penalty of 5 penalty units (Charge 5); and

(d) one charge of possess counterfeit money contrary to s 9(1)(a) of the Crimes (Currency) Act 1981(Cth), which carries a maximum penalty of 10 years imprisonment (Charge 6).

2You have also pleaded guilty to the related summary offence of possess prohibited weapon without exemption or approval contrary to s 5AA of the Control of Weapons Act 1990, which carries a maximum penalty of 2 years imprisonment (Summary Charge 14).

3You have also admitted your Criminal Record.

Circumstances of the offending

4A prosecution opening was tendered on the plea and may be summarised as follows:

5At the time of the offending, you were 19 years old and residing with your family in Cranbourne West. There are two co-accused in this matter, Lionel Atem[1] and George Holt.[2] At least three other unknown co-accused were also involved in the offending.

[1] A pseudonym.

[2] A pseudonym.

6The three victims in this matter are Daniel Leong (31 years old) and Sabrina Lim (32 years old), who are a couple, and Li Wei Lee (26 years old). The three of them resided at an address in Clayton as housemates.

7At approximately 10:30pm on 23 February 2021, two cars, a silver 2005 Ford Futura and a rust coloured 2011 Ford Ranger, went to Connam Avenue in Clayton. Both cars travelled east along Connam Avenue and stopped next to each other, just before the intersection at Sarton Road, Clayton. The occupants had a short discussion, before both cars turn left into Sarton Road. About two minutes later, five males could be seen jogging west along Connam Avenue, toward Renver Road.

8Four males, you among them, covered their faces, and armed themselves with wooden table legs wrapped in ‘cling-wrap’, and forcibly entered the victims’ residence on Renver Road, Clayton. 

9Inside, the three victims were sitting in their lounge room watching television. They heard loud banging and saw the glass next to their front door smash.  Ms Lim saw one of the males reach their hand through the broken glass and unlock the front door.

10Mr Leong and Mr Lee both began to shout, hoping to scare the males away, and attract the neighbours’ attention so they could call police. Four males entered the house, waving the table legs. All four wore dark coloured hoodies and had masks covering their faces. Ms Lim saw one of the males was wearing red glasses.

11At least two men struck the three victims multiple times with the table legs, on their head, arms, legs and bodies. The intruders demanded that the three victims keep their heads down. The residents were corralled into a downstairs room used for storage and told to ‘squat down’ and keep quiet. The light in the room was switched off, and demands were made for their mobile phones.

12You and another male stood watch over the residents in the storage room, as two other co-offenders went through the house. The residents were told to hand over their phones and passwords.  When Mr Lee said that he did not have his phone because he left it on the couch, he was struck five or six times with the wooden table leg. You snatched the mobile phone from Ms Lim’s hand and demanded the password and Apple ID.

13You and another male became upset when the housemates looked up at them directly. One male struck the victims, knocked their glasses from their faces and stepped on them to break the lenses. After some minutes, the three victims heard one male yell to the others ‘run, run, run’. At this, the males fled the address, leaving two wooden table legs wrapped in plastic. (Charge 1 – Aggravated burglary; Charges 2, 3 and 4 – Common law assault).

14As they left, the co-accused Mr Atem took Mr Leong’s car, a black Honda Civic sedan. The car was driven rapidly, east along Connam Avenue before turning left into Sarton Road. CCTV footage shows the black Honda Civic, and two males running east along Connam Avenue and turning left into Sarton Road, before being collected by the rust-coloured Ford Ranger.

15Another two males ran north along Renver Road before turning back and running south, past the victims’ address. One ran ahead, and the second is seen on CCTV carrying multiple items, yelling out for him to wait.

16A vehicle believed to be the Ford Futura sedan reversed along Sarton Road with an occupant shouting ‘oi, get in!’.

17During the aggravated burglary, the following items were stolen:

(a)   From Mr Leong:

(i)an Apple iPhone 12;

(ii)a black coloured Prada wallet containing $100 cash and bank cards;

(iii)an apple iPad;

(iv)an Apple watch;

(v)$29,000.00 in cash; and

(vi)a black Honda Civic sedan.

(b)   From Mr Lee:

(i)an Apple iPhone 7;

(ii)a brown wallet containing $500 cash and bank cards;

(iii)an Apple iPad;

(iv)a MacBook Air; and

(v)a Nintendo Switch.

(c)   From Ms Lim:

(i)an Apple iPhone 12 Pro;

(ii)a blue Prada purse containing bank cards; and

(iii)a pink Apple watch.

18As a consequence of the assaults, Mr Lee suffered a laceration to his forehead and scratches to both arms and hands. All three victims suffered emotional trauma: for weeks after the incident, they only slept during daylight hours. Mr Leong and Ms Lim subsequently moved house, and Mr Lee returned to Singapore.

Investigation and arrest

19Call charge records for telephone numbers belonging to you and co-accused Mr Atem and Mr Holt located each of you in Clayton at the time of the incident. The call charge records, Eastlink, Citylink and Traffic Camera Office data also placed you in the same locations as Mr Atem and Mr Holt and the silver Ford Futura on numerous occasions between 22 and 24 February 2021.

20On 2 March 2021, the silver Ford Futura was found on a street in Eumemmering. A wooden table leg wrapped in plastic was found inside this car. Numerous identification cards and bank cards belonging to the three victims were also in the car.

21DNA analysis of the wooden table legs used as weapons supported the inclusion of Mr Atem as a contributor. Three DNA samples taken from the wooden legs yielded a ‘mixed DNA profile’ of ‘at least five contributors’ which was too complex for further statistical interpretation.

22Police executed a search warrant on your residence in Cranbourne West in the morning of 18 march 2021. You were asleep in your bedroom and were arrested.

23In your bedroom, police located:

(a)   a blue Apple iPhone in a clear case;

(b)   a blue Ziplock bag containing cannabis (Charge 5);

(c)   $2,160.00 cash;

(d)   four $100 counterfeit notes (Charge 6); and

(e)   a black knuckleduster (Summary charge 14).

24Analysis of the mobile phone in your possession identified relevant material, which included:

(a)   multiple photos from 6:12am on 22 February 2021 of Mr Atem and two male associates with a silver Ford sedan with partial registration of ‘HF42’;

(b)   a photo from 6:10:39pm on 22 February 2021 depicting Mr Atem, you and Mr Holt driving an older model Ford;

(c)   a video from 2:44:35am on 23 February 2021 showing you driving an older model Ford with Mr Atem in the passenger seat and the text 'No way g chak bro';

(d)   a video from 5:46:23pm on 23 February 2021 depicting Mr Atem and Mr Holt;

(e)   a video from 6:25:06pm on 23 February 2021 depicting you wearing glasses with red arms, inside a vehicle with Mr Holt and others;

(f)    a video from 7:53:05pm on 23 February 2021 depicting cannabis in a bag and the words 'who needs up to bags’;

(g)   a video from 8:02:53pm on 23 February 2021 depicting Mr Atem, Mr Holt and a male associate inside a vehicle with the text 'Slump GXNGGGG';

(h)   two videos from 10:31:20 and 10:34:53pm on 23 February 2021 (immediately after incident) depicting Mr Atem driving the stolen Honda Civic;

(i)    a video from 11:28:25pm on 23 February 2021 showing a hand holding a large stack of $50 notes;

(j)    a video from 11:31:39pm on 23 February 2021 depicting you and other males counting a large sum of money inside a vehicle;

(k)   two photographs from 11:52pm on 23 February 2021 depicting Mr Leong's stolen Honda Civic;

(l)    a video from 12:26:50 am on 24 February 2021 showing you driving an older model Ford;

(m)     a video from 12:44:44am on 24 February 2021 depicting you driving an older model Ford with Mr Atem in the rear seat;

(n)   a video from 2:23:44am on 27 February 2021 depicting a silver MacBook Air, with the screen display showing an Apple ID sign-in page; and

(o)   a photograph from 3:01:56am on 24 February 2021 showing a hand holding a large stack of $50 notes.

25You were interviewed at the Box Hill Police Station on 18 March 2021. You denied the allegations and said you ‘would have been at home’ on 23 February 2021. You denied the phone that police located in your bedroom was yours, and claimed it belonged to one of your sisters. You said you ‘knew nothing’ about the 23 February 2021 incident.

Nature and gravity of the offending

26In this instance it is accepted by the prosecution that you did not use a weapon to physically assault any of the three victims and that Charges 2, 3 and 4 (the common assault charges) are put on a complicity basis. The prosecution does not assert the identity of the offender who knocked glasses from the victims’ faces and you deny this act. Further, that the money found in your possession upon arrest is not alleged to be money stolen from the victims.

27Mr De Witt, who appeared on your behalf, while conceding that the offending is serious, effectively submitted that based on the prosecution position, your involvement is not as serious as that of Mr Atem and similar to that of Mr Holt.

28Ms James who appeared on behalf of the Director of Public Prosecutions, highlighted the fact that the aggravated burglary was committed at night by a group of men using weapons, that the victims were assaulted and intimidated, while items were stolen from them. Ms James submitted that in all the circumstances this is a serious instance of aggravated burglary.

29In my view, while the concessions were made in relation to your actual involvement, particularly in relation to the assaults, as Ms James correctly submitted, the case is put on a complicity basis and your conduct remains very serious as you were part of a group of young men acting together in the way described, resulting in an assault on three people in their home at night, where they were entitled to feel safe. In those circumstances, on any view your offending can only be described as very serious.

Victim impact statements

30Two of the victims Daniel Leong and Sabrina Lim, prepared victim impact statements that were tendered on the plea. Mr Leong describes how the trauma of the offending has changed him as a person and how he continues to feel scarred by the incident. He notes that as a result of his savings being stolen he had to push his wedding plans back. Ms Lim states that the offending has taken a significant toll on her. She continues to suffer from physical and emotional pain, always in a state of high alert. She was unable to attend work following the incident and has sought the assistance of a psychologist.

31I have taken the contents of the victim impact statements into account.

Personal circumstances

32You are now 22 years old and were 19 at the time of the offending. You are the second youngest in a sibship of six. You were born in a refugee camp in Kenya to South Sudanese parents who had fled the civil war in South Sudan.

33You, your siblings and your mother came to Australia as refugees when you were two years old while your father remained in Africa. You settled in Cranbourne in Melbourne but experienced difficulties adjusting to life in a new country. Your mother did not speak English and your family experienced great financial stress due to the difficulties your mother experienced in trying to navigate the Centrelink system. You and your siblings did not commence learning English until you started going to school. As a result, you struggled with school work and were bullied and socially isolated. You did however go on to acquire English language quickly after receiving English as Second Language support classes in primary school. In your assessment with psychologist Courtney Steffens on 14 December 2023, you described an awareness that you and your siblings constituted ‘the only African family at the school’. You did not form any close friendships until you were about 13 years old and started playing basketball with other boys in your neighbourhood. Unfortunately, this peer group appears to have been an antisocial one, introducing you to alcohol and drugs.

34You stated to Ms Steffens that you were intoxicated at the time of this current offending, by a mixture of alcohol and other substances. Your history of alcohol use started at age 16, when you started to drink in a social context. Your drinking increased over time and from 2019 to 2021 you consumed alcohol every day. You also started using drugs around the same age and became addicted over time, moving from cannabis and what you described as ‘pills’ – Xanax, oxycodone, codeine – to methamphetamine and cocaine. Whilst in custody on this matter, you completed three AOD courses.

35I have had the benefit of reading the Court Integrated Services Program  (CISP) Finalisation Report, dated 7 June 2024, which confirms you were referred to the Youth Support and Advocacy Service (YSAS) in Dandenong for AOD outreach support as part of your participation in CISP whilst on bail. You reported having some contact with your YSAS AOD worker but have not yet met with her in person. You also expressed an interest in recommencing pharmacotherapy to assist with relapse prevention in the community. Although a referral to a prescribing practitioner was obtained for you, you did not attend an appointment with this practitioner, and have not commenced pharmacotherapy during your participation in CISP. However, you reported both to your CISP case manager and to neuropsychologist Amy Dluzniak that you have abstained from substances since being released from custody on 24 January 2024.   

36In Ms Steffens report dated 19 January 2024, Ms Steffens concludes that at the time of the offending, you were impacted by Alcohol Use Disorder and Substance Use Disorder, which contributed to polysubstance intoxication. There is clearly also a strong social component to your substance use, into which you appear to have some insight. You stated to Ms Steffens that you were ‘getting around with the wrong crowd, doing the wrong thing’ at the time of this offending, and that you would like to ‘try to hang around the right people, try to stay away from gangs and drugs’ in the future. To this end, since 1 March 2024, you have been working two days a week in a warehousing role with Fruit 2 Work, an organisation focused on providing employment opportunities for people involved in the justice system. You have also been living with your mother in Cranbourne South in accordance with your bail conditions and have a supportive family network around you.

37In addition to Alcohol Use Disorder and Substance Use Disorder, Ms Steffens also diagnosed you with Post-Traumatic Stress Disorder with symptoms in the severe range, and Major Depressive Disorder, with the latter conditions ‘significantly [informing your] involvement with antisocial peers, which has offered belonging and temporary reprieve from low self-esteem, boredom, and sense of emptiness’ you have experienced in your life. She assessed you as being at a ‘moderate to high risk’ of reoffending without appropriate supports in place. She identified antisocial peer affiliations and a lack of prosocial peer connections as one of your primary risk factors together with your substance use, over which your peer group clearly has influence. The prosocial features of your day to day life include the fact that you have been able to obtain and maintain stable employment and that you have the support of your mother and older sister, remaining abstinent from drugs since at least your release into the community on bail.

38Your assessment with neuropsychologist Amy Dluzniak was ultimately inconclusive on the question of whether you may present with a neurodevelopmental disorder or longstanding cognitive deficit.  Ms Dluzniak found that you exhibited ‘aspects of abnormal test-taking behaviour’ which led to ‘significant qualitative concerns regarding the validity of [your] performances’. She noted that whilst you had self-reported a history of head injuries, she concluded that these may have been ‘towards the milder end of severity’ and ‘may not therefore result in enduring cognitive impairment or a significant acquired brain injury’. She also identified your psychological wellbeing as ‘a priority area for intervention and support’.

39Nonetheless, Ms Dluzniak concluded that receiving appropriate psychological input would also likely minimise the impact of your mental health issues on your cognitive function, given the well established association between depression  and PTSD and deficits in attention, concentration and memory.

40Two character references were tendered from your mother and sister. Each confirm their ongoing support of you and willingness to assist you in your ongoing rehabilitation.

Sentencing considerations

Plea of guilty

41I first take into account your plea of guilty which was entered following a sentence indication before me. Your plea has utilitarian benefit as it has avoided the need for a trial saving considerable time and expense and most importantly, saving the victims from having to give evidence and relive the event.

Relative Youth

42You are now 22 and were 19 at the time of the offending. As such, relying on the principles set out in cases such as Mills and Azzopardi, it was submitted on your behalf that your relative youth should be a primary sentencing consideration.[3] At 19, as observed by Ms Steffens you were ‘still transitioning into adult life’ against a background of long term academic difficulty and significant past trauma. I accept that given your age and psychological profile, rehabilitation should be given considerable weight in the sentencing discretion.

[3] R v Mills [1998] 4 VR 235; Azzopardi v The Queen (2011) 35 VR 43.

Mental health

43As to your mental health it was submitted that based on the materials, Verdins principles 5 and 6 are enlivened.[4] Ms Steffens reported that imprisonment would likely weigh more heavily on you than a person not suffering your psychological conditions and that for individuals with symptoms of complex PTSD and Major Depressive Disorder there is a potential for exacerbation of symptoms in the prison environment. Ms Steffens is also of the view that a long term custodial sentence is likely to have a disproportionally negative effect on you due to your young age. In the circumstances I accept that Verdins principles 5 and 6 are relevant and should be given weight.

[4] The Queen v Verdins (2007) 15 VR 269.

Delay

44The offending in this instance occurred on 23 February 2021, over three years ago. While you were charged in March 2021, as a result of ongoing investigations in relation to phone tower evidence, there has been considerable delay. The delay is not attributable to you.  Mr De Witt submitted that the delay is relevant particularly in relation to your age and the fact that the delay has resulted in you not being able to access sentencing options available for young offenders. Further Mr De Witt relies on delay in that since being bailed you have not reoffended and have demonstrated your willingness to engage with supports offered to you. I accept that delay is able to be taken into account in the ways submitted.

Prospects of rehabilitation

45Turning to your prospects of rehabilitation I note the opinion of Ms Steffens as follows:

Notwithstanding his strong desire for peer connection, Mr Chak showed good insight into the need to source and associate with more prosocial peers and distance himself from antisocial ones. He also identified that there may be some practical barriers to achieving this, expressing a willingness to engage in support services aimed at helping him build his prosocial connections and protective factors. He is also expressing a wish to find employment. These considerations are positive for his prospects of successful rehabilitation.

46As noted above, since this matter was adjourned following the sentence indication in February this year you have engaged with the CISP program meeting with the CISP officer on nine occasions. While it is clear that you require ongoing engagement and support with drug and mental health practitioners, over the past months you have demonstrated your willingness to continue to facilitate your rehabilitation. In all the circumstances in my view, if you actively engage with the services that you will be offered as part of sentence I impose and remain in the supportive environment you are now in, your prospects of rehabilitation can be assessed as reasonable.

Parity

47Your two co-offenders were sentenced as follows:

48Lionel Atem, pleaded guilty to charges of aggravated burglary, three charges of common assault and theft of motor vehicle. In the Children’s Court Mr Atem received an aggregate sentence of 15 months Youth Justice Centre Order. It was submitted by Mr De Witt that Mr Atem had far greater involvement in the offending than you.

49George Holt pleaded guilty to charges of knowingly dealing with the proceeds of crime and theft of a motor vehicle as part of a consolidated plea receiving 53 days imprisonment (time served). Mr De Witt submitted that Mr Holt’s involvement was almost identical to that of you. A similar plea offer on your behalf was rejected by the prosecution.

50While I take into account the sentences that were imposed in relation to the co offenders, there are clearly a number of differences, the most obvious being that they were dealt with in the Children’s Court and in Mr Holt’s case, he was not sentenced on a charge of aggravated burglary.

Other considerations

51While your relative youth remains a prominent sentencing consideration, deterrence, both general and specific together with denunciation of your conduct do not fall away and must also be given weight in the sentencing calculus. Offences of this nature are very serious, commonly resulting in ongoing trauma for the victims. A strong message must continue to be sent in order to deter others from engaging in such conduct. Further while you do have positive prospects of rehabilitation and limited prior criminal history, in my view specific deterrence still has a role to play.

52At the sentence indication hearing, it was submitted on your behalf that if you engage with the CISP program during the deferral period, the time you have served or less, approximately 18 months, as a straight sentence is sufficient. I rejected that submission, indicating that time you have served together with an onerous community correction order would be the type of sentence the court would impose upon a plea of guilty. Having reviewed the neuro phycological report and the CISP report, I am still of the view that a combination sentence is appropriate in order to meet the relevant sentencing considerations, while promoting your ongoing rehabilitation.

53I have also taken into account that you have served 150 days in relation to a separate matter that is unable to be taken into account formally as pre sentence detention. This relates to remand between 3 May 2022 and 30 September 2022 where the unrelated matter was struck out at a committal hearing.

Sentence

54Mr Chak, would you please stand.

55Genjook Chak, on Charge 1, aggravated burglary, you are convicted and sentenced to 15 months imprisonment.

56On Charges 2, 3 and 4, common assault, you are convicted and sentence to 6 months imprisonment on each charge.

57On Charge 5, possessions of a drug of dependence, Charge 6, possession of counterfeit money, and Summary Charge 14, possess prohibited weapon you are convicted and fined $250 on each charge.

58I direct that 1 month of the sentence on Charges 2, 3 and 4 be served cumulatively on each other and on Charge 1, making for a total effective sentence of 18 months as the prison component of the combination sentence.

59In addition to the prison component of the sentence, you will placed on a community correction order for a period of 2 years. While all community corrections orders are punitive, the order I am imposing will have specific punitive and therapeutic components. You will be required to complete 150 hours of unpaid community work, you will be required to undertake treatment and rehabilitation in relation to drugs, alcohol and mental health, and you will also be subject to supervision.

60Pursuant to s 48CA of the Sentencing Act 1991 (Sentencing Act), I direct that all of the hours that you satisfactorily complete pursuant to the treatment and rehabilitation conditions, may be credited as hours of unpaid community work.

61Pursuant to s 18 of the Sentencing Act, I declare that 552 days be reckoned as the period of imprisonment already served under the sentence I have imposed.

62Pursuant to s 6AAA of the Sentencing Act, I indicate that had you not pleaded guilty, I would have sentenced you to a period of 3 years and 6 months with a non parole period of 2 years.