Director of Public Prosecutions v Chaorai

[2024] VCC 514

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-01830

DIRECTOR OF PUBLIC PROSECUTIONS

v

SARAWUT CHAORAI

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	22 February 2024
DATE OF SENTENCE:	23 April 2024
CASE MAY BE CITED AS:	DPP v Chaorai
MEDIUM NEUTRAL CITATION:	[2024] VCC 514

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW - SENTENCE

Catchwords: Burglary; aggravated burglary; trespass with intent to steal; stolen bank and identity cards; obtain property by deception.

Legislation Cited: s76 Crimes Act 1958 (Vic); s81 Crimes Act 1958 (Vic); s 77 Crimes Act 1958 (Vic); s70(1)(b) Sentencing Act 1991 (Vic); s 73 Sentencing Act 1991 (Vic)

Cases Cited: Guden v The Queen [2010] VSCA 196; Tufue v The King [2024] VSCA 22; DPP v Dalgliesh [2017] 91 ALJR 1063 1072.

Sentence: 2 years and 4 months imprisonment with a minimum of 18 months to be served before being eligible for parole.

6AAA: 3 years imprisonment with a minimum of 2 years to be served before being eligible for parole.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. M. Brogden	Ms N. Fedyszyn
For the Accused	Mx C. Rattray	Mr H. Middleton

HIS HONOUR:

1In the indictment no. 11745018 there are five charges. Mx Rattray appeared for the accused and Mr Brogden for the DPP.

2The first charge of burglary on 11 July 2023 upon an unlocked premises at 13th Street, Mildura. Essentially, bank cards and ID cards were stolen on that day, the burglary effected by a trespass with an intent to steal. Such is an offence under s76 of the Crimes Act, for which the maximum penalty prescribed is one of 10 years imprisonment.

3Charge 2 on the indictment is the use of a Commonwealth Bank card obtained from the burglary on the same day in Mildura and two other cards. The charge is one of obtain property by deception. It relates to six transactions, all of which were under $100, and in fact the total sum of $272.65. The crime of obtain property by deception is an offence under s81 of the Crimes Act, for which the maximum penalty prescribed is one of 10 years imprisonment.

4We then move to 14 August of the same year, 2023, when Mr Chaorai committed Charge 3 on the indictment, which was an aggravated burglary on premises in Lime Avenue, Mildura. According to the opening, it was the first day of operation of the business called Fantastic Traditional Massage. I do not know whether that is exactly true because there is references in the opening to persons having been there and worked there for some time. It may well have been the first time that one of the victims was there. Anyway, Charge 3, as I have said, is a charge of aggravated burglary. It was committed, with a meat cleaver and the commentary essentially made at the time by Mr Chaorai was asking for 'Money, money, money'. This crime, obviously, is inherently serious albeit it only went on for a limited time, being an offence against s77, for which the maximum penalty proscribed is one of 25 years imprisonment, the highest penalty under the Crimes Act, except for life imprisonment.

5Charge 4 was a charge in the same circumstances at the same time laid in regard to Wen Fang Wang, who was at the premises on that day.  It is a charge of false imprisonment.  I must say it is probably the weakest charge of false imprisonment that I have ever seen in my experience.  It is a common law charge for which the maximum penalty is one of 10 years imprisonment.  Indeed, the offence, having considered the facts, was such that I asked the prosecutor to seek instructions from the DPP, or the Acting DPP, as to whether the prosecution wished to proceed with the matter.  By way of an email dated 19 March, the reply from Mx Rattray was that he confirmed that the Director would not be discontinuing those charges and the indictment remains as filed.

6The fifth charge is one of attempted armed robbery by way of him seeking money and using the meat cleaver as part of the attempt, insofar as the scaring and putting into obvious trepidation the two women who were at the premises.  There was, I do not think, any money there.  If there was, it certainly was not given to him because they bravely took up a chair and forced him away.  He left the premises.  There was a 000 report made and with not only very brave actions of the women in the premises but the brave actions of a Mr McCarthy and Mr Ellis, two bystanders, as a result of their chases, the police apprehended Mr Chaorai very shortly thereafter.

7As I have said, there were four summary charges, Charge 7 being commit an indictable offence while on bail, Charge 14 relates to committing the offences on 11 July. So that is Charge 14 and 15, committing both offences while on bail and Charge 16 related to a breach of condition of bail as of 17 July 23, being not at his premises.  All of those offences are subject to a penalty of either three months imprisonment and/or 10 penalty units.

8As has been confirmed today by Ms Fedyszyn, the PSD to date is 253 days, not including today.

9Insofar as this plea is concerned, it was a very early plea.  The committal mention took place on 25 October 2023 when it was indicated that this was to be a plea.  Clearly, given the time and the fact that this Court was still being impacted by the issues associated with the delay from the pandemic, it was a very important early plea.

10Mr Chaorai comes before the Court with no criminal history.  He has subsequently one conviction, which was for deception charges.  That conviction was recorded in January 24, for which he was fined $1,000, and I understand it relates to circumstances close to the time of these offences.

11There was no victim impact statement and I have indicated insofar as the meat cleaver that I will sign the disposal order.

12Exhibit B was the prosecution submission on sentence and at paragraph 1, the submission made was that there should be a term of imprisonment and parole, given the seriousness of these offences. There was no issue made by Mr Brogden in that regard see Exhibit 1, which is the defence submissions, in particular, paragraph [4] and [28]. Mr Brogden, in Exhibit 1, set out the personal circumstances of Mr Chaorai from [5] to [11]. As I have said, given the inherent seriousness and maximum penalty involved in these offences, it was accepted by Mr Brogden that we were dealing with serious offences.

13Without in any way putting this as an excuse, by way of explanation of these crimes, it was put and seems to be reasonably so, given that we are dealing with a person who was 30 at the time with no prior offences, who to that time had been a hard worker, apparently he had been involved in drug taking for some time, he got to a position where he lost his job, he had very limited support and apparently needed money for his rent.  Not the most sensible way to obtain it, but that is apparently the background.

14As I have said, the plea being made in August 23 was the earliest possible plea you would imagine.  As a result, he gets the benefit of a utilitarian plea and his full cooperation not only with the police but with the investigation.

15Mr Brogden submitted that in the circumstances concurrency should be effected. He essentially submitted that Charges 1 and 2 should be seen as connected, as should Charges 3, 4 and 5.  Mr Brogden submitted to the Court that the issue of totality was one of importance.

16It is clear that as a non-Australian national and given the sentence to be imposed in this matter pursuant to the relevant provisions of the Immigration Department, he will be deported.  In those circumstances, pursuant to the principles set out in Guden v The Queen [2010] VSCA 196, at [29], it is appropriate in sentencing to take into account that the sentence will have to be served and with an additional burden, of bearing in mind the prospect of deportation and should he have thought he had any opportunity of staying in Australia, that obviously will now be gone. The most recent reference to these principles by the Court of Appeal is Tufue [2024] VSCA 22.

17Mr Brogden also submitted that the prisoner is a person that the Court should take a positive view that he can rehabilitate.  He is still only 31.  As I stressed, he has no priors.  He has obviously the ability to work hard, and has shown in the circumstances, I accept that he can rehabilitate himself albeit unfortunately for him not in this country.

18As decreed by the High Court in Dalgliesh [2017] 91 ALJR 1063 1072 at [49], Mr Chaorai is entitled to a just individualised sentence which relates to the facts of his case, and that is what I intend to do.

19As I said, Mr Chaorai, I would normally ask you to stand at this stage when I pronounce sentence.  That is obviously not necessary.

20Insofar as the indictment is concerned in regard to Charge 1, you will be sentenced to a period of imprisonment of nine months.

21In regard to Charge 2, a period of imprisonment of three months.

22In regard to Charge 3, a period of imprisonment of two years.

23In regard to Charge 4, on the basis of s70(1)(b) of the Sentencing Act pursuant to s73 of the Sentencing Act, I convict and discharge you in regard to that offence.

24And in regard to Charge 5, I sentence you to two years' imprisonment, which will be the base sentence.

25In regard to the summary charges, the four summary charges, I will pass an aggregate sentence in regard to those charges of two months' gaol.

26Coming then to the question of cumulation, having given the matter close consideration, a difficult matter in some regards because there are a lot of positives from Mr Chaorai's point of view, but they, of course must be balanced against the seriousness of these crimes. 

27Having given the totality of the circumstances appropriate consideration, I have determined that upon the base sentence of two years should be accumulated three months of the sentence on Charge 1 and one month of the sentence on Charge 2 and upon each other making an aggregate sentence of two years and four months.

28I determine that the period to be served before you are eligible for parole will be 18 months.

29I declare that the 253 days served to date on remand be deemed to be service of this sentence. That makes approximately eight and a half months, Mr Chaorai. So essentially you've got about nine and a half months to serve before you will be eligible for parole.

30Mr Chaorai, it is important for you to understand the benefit of your plea.  The Parliament requires me to tell you what that benefit is.  It is difficult when one tries to relate it to only one topic when there is a number of matters being considered in regard to your sentence.  However, doing as best as I can to abide by Parliament's requests, can I indicate to you that had you not pleaded guilty, the sentence I would have given you is not the two years and four months or the minimum period of 18 months that I have given you today, but the sentence had you pleaded not guilty would have been three years with a non-parole period of two years.

31Yes.  Is there anything else that I should do, Ms Fedyszyn?

32MS FEDYSZYN:  No, Your Honour.

33HIS HONOUR:  Any issues, Mr Middleton?

34MS SMITH:  Sorry.  No, Your Honour.

35HIS HONOUR:  All right.  Mr Middleton?

36MS SMITH:  My apologies, Your Honour.  Mr Middleton has had to step into another Court here at the Mildura Magistrates' Court, so I am stepping in briefly.

37HIS HONOUR:  All right.  What is your name?

38MS SMITH:  Ms Smith, Your Honour.

39HIS HONOUR:  Ms Smith.  Thank you, Mss Smith.

40Ms Smith, I am not too certain.  Did you understand the sentence?  Were you here for it?

41MS SMITH:  I did, Your Honour, yes.

42HIS HONOUR:  All right.  Do you want some time to explain to your client what the position is or will you talk to him later?

43MS SMITH:  Your Honour, Mr Middleton will speak with him later.  We will book in a conference with him.

44HIS HONOUR:  All right.  Mr Chaorai, did you hear that?

45OFFENDER:  Yep.

46HIS HONOUR:  ‑ ‑ ‑ in regard to your sentence?

47Can I just indicate to you the period I have given you, the aggregate sentence is two years and four months ‑ ‑ ‑

48OFFENDER:  Yep.

49HIS HONOUR:  A non-parole period of 18 months.

50OFFENDER:  Yep.

51HIS HONOUR:  You have served 253 days, which is about eight months and 14 days.  So you have got the balance of the sentence to serve and you should get parole then in about nine and a half months but I cannot guarantee parole, but as long as you behave, it should be all right.

52OFFENDER:  Yep.

53HIS HONOUR:  I wish you all the best and let's hope this does not happen to you again, all right?

54OFFENDER:  Yep.

55HIS HONOUR:  All the best.  Thank you.  Thank you.

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