Director of Public Prosecutions v Chol
[2025] VCC 42
•5 February 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-24-01437
CR-24-01438
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DENG CHOL and HIANG LAY |
---
JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 January 2025 | |
DATE OF SENTENCE: | 5 February 2025 | |
CASE MAY BE CITED AS: | DPP v Chol & Anor | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 42 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Two co-accused – plea of guilty - false imprisonment (1 charge) – intentionally causing injury (1 charge) – robbery (1 charge) – theft (1 charge against Mr Lay only) – summary charge of fail comply with direction to assist (1 charge against Mr Chol only)
Legislation Cited: Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic)
Cases Cited:Bugmy v The Queen [2013] HCA 37
Sentence: Mr Chol: Total effective sentence of 3 years and 6 months with a non-parole period of 2 years and 2 months.
Mr Lay: Total effective sentence of 3 years and 6 months with a non-parole period of 2 years and disqualification from driving for 3 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D Brown | OPP |
For the Accused (Mr Chol) | Ms M Grant | James Dowsley & Associates |
| For the Accused (Mr Lay) | Ms K Foote | Stary Norten Halphen |
HER HONOUR:
1Deng Chol and Hiang Lay, you have each pleaded guilty to one charge of false imprisonment contrary to Common Law (charge 1), which carries a maximum sentence of 10 years’ imprisonment; one charge of intentionally causing injury contrary to section 18 of the Crimes Act 1958 (charge 2); which carries a maximum sentence of 10 years’ imprisonment; and one charge of robbery contrary to section 75 of the Crimes Act 1958 (charge 3), which carries a maximum penalty of 15 years’ imprisonment. You, Hiang Lay, have also pleaded guilty to one charge of theft contrary to section 74(1) of the Crimes Act 1958 (charge 4), which carries a maximum penalty of 10 years’ imprisonment. You, Deng Chol, have also pleaded guilty to one summary offence relating to your failure to comply with the directions of a police officer contrary to section 465AAA(4) of the Crimes Act 1958, which carries a maximum penalty of 2 years’ imprisonment.
2In sentencing each of you, I have taken into account all of the material provided to me, as well as the oral submissions made by counsel.
Circumstances of Offending
3The details of your offending are set out in the Summary of Prosecution Opening for Plea dated 22 January 2025 which was accepted by your counsel and I sentence you on the basis of the facts set out in that document.
4At the time of the offending, you, Mr Chol, were 27 years old and you Mr Lay were 45 years old. The victim, Mr Mohammed Malik, was 29 years old.
5On 31 December 2023, Mr Malik and his friend and work colleague, Mr Ajaypal Mahli, were on their way to a worksite in Tarneit. They met at approximately 8:00am at a 7-Eleven store in Truganina. Mr Mahli left his car there, and Mr Malik drove them both in a Toyota Camry he had rented from Melbourne Ride Share Club. They decided to stop on the way to work at a property in Deer Park in order to buy some drugs from you, Mr Lay. They had previously been to that property to buy drugs from you, Mr Lay, and your wife, Ms Tran.
6Mr Mahli stayed in the car and Mr Malik went into the house to purchase the drugs from you, Mr Lay. In the presence of you, Mr Chol, another man called Mohammed Adan, and a fourth man, you, Mr Lay, accused Mr Malik of owing you money from previous drug purchases and demanded payment. Mr Malik denied owing you any money. Whilst you, Mr Lay, argued with Mr Malik about the debt, Mr Adan hit Mr Malik over the head with a circular metal rod that was approximately 60 centimetres long. This caused Mr Malik to fall to the floor and drop his Apple iPhone 8.
7Mr Adan and you, Mr Lay, commenced assaulting Mr Malik whilst he lay on the floor. You, Mr Lay, kicked and punched Mr Malik to the head and body, causing him to bleed from his mouth and nose. Some of Mr Malik’s blood landed on your white shoes and you demanded Mr Malik lick the blood off them, which he did. You did not physically assault Mr Malik any further but you directed the others to detain and further assault him.
8You, Mr Chol, and the other offenders forced Mr Malik to remove his clothing and sit on the floor of the loungeroom in his underwear. You and the others cut up his clothes and forced him to put on a woman’s singlet and skirt. You and the others forced him to sit on a chair: you bound his hands and feet with duct tape and tied him to the chair.
9The fourth man picked up Mr Malik’s phone (Charge 3 against each of you) and demanded Mr Malik’s passcode and passwords, which Mr Malik provided him. You, Mr Chol, put on a pair of red boxing gloves and commenced punching Mr Malik in the face. Mr Adan produced what Mr Malik believed to be a home-made slam gun, loaded it with a black and gold cartridge and held it against Mr Malik’s thigh. He demanded Mr Malik tell him where he lived and worked. One of the offenders slashed Mr Malik’s forearm and thigh with a foldable knife. Mr Adan tasered Mr Malik several times.
10Whilst this assault was occurring, one of the offenders spoke to Mr Mahli who was waiting outside in Mr Malik’s car and told him that Mr Malik was going to be a while. Mr Mahli drove the car to a 7-Eleven store in Truganina and left it there, hiding the key under the tyre. Mr Mahli then drove to work in his own car.
11Mr Malik remained tied to the chair. When Ms Tran appeared, he asked her to release him, but she said that was up to Mr Lay. Mr Malik asked you, Mr Chol, to release him but you refused.
12You, Mr Lay, told Mr Malik that you were going to take his car, and demanded to know where it was. Wanting to be released, Mr Malik told you where it was located. Mr Malik also told you where Mr Mahli worked so that you could get the car keys from him. You, Mr Lay, went with Mr Adan to Mr Mahli’s worksite at around 11.30 am and asked him for the location of Mr Malik’s car, which he gave you.
13During this time, at the Deer Park property you, Mr Chol, took a number of videos films on your mobile phone of Mr Malik and of the threats you made to him. Although you, Mr Chol, refused when interviewed to give police the passcode to your mobile phone (which is the subject of summary charge 4 against you, Mr Chol), police were able to retrieve 5 video files of the incident from your mobile phone.
14The first video depicted Mr Malik sitting on the floor in his underwear and wearing a women’s black singlet. There were possible red welts on his body. You, Mr Chol, stated “You are going to die today man. Have you got your last words” and “What do you want me to break first? Pick, or I’m gonna pick. I’m gonna choose your neck.”
15The second video showed Mr Malik sitting on a chair with his legs tied to the legs of the chair with duct tape, his hands tied behind his back and a black face mask covering his entire face, with further duct tape around his mouth and neck.
16The third video showed Mr Malik sitting on the chair wearing a women’s black singlet and a black skirt, with red boxing gloves visible in the background. You, Mr Chol said to Mr Malik: “Give me $20,000 and you will get out of here.” When he replied that he did not have the money, you Mr Chol said to him: “You aren’t going anywhere, I know you are going to the ‘Jacks’ to the police after this, I’ll need the money for my lawyer.”
17The fourth video showed Mr Malik sitting on a chair, while you Mr Chol said: “I am gonna cut off one of your fingers to make sure you don’t call the police, I don’t trust you.”
18The fifth video showed Mr Malik sitting on a chair while you, Mr Chol said to him: “If you call the Police on us, I’m not gonna come after you cause I’ll be in jail, but my little brother is Apex, and he is gonna come on you deep bro. You won’t be sleeping, my brothers will come for you, they won’t torture you, they will kill you bro. You tell Police or anyone what happened or show them this house, you’re dead.”
19You, Mr Lay, drove with Mr Adan to the 7-Eleven store, collected Mr Malik’s Camry and drove it back to Deer Park. This is the subject of charge 4, theft, against you, Mr Lay. When you and Mr Adan got back to the house, Mr Malik was still tied to the chair. He continued to be assaulted by the offenders.
20After Mr Malik had been detained in the house for about 10 hours, you Mr Lay untied him and allowed him to leave the premises (this is the subject of Charge 1- False Imprisonment – against each of you, Mr Lay and Mr Chol). Before Mr Malik left the property, you Mr Lay threatened to kill him if he went to police.
21When Mr Malik was at the front of the premises, an unknown male gave him a shirt and trousers to put on and allowed him to phone Mr Mahli, who picked him up and drove him home.
22The following day, Mr Malik attended at the Sunshine Police Station to report the incident. The police took a number of photographs of the cuts, bruises and abrasions on his torso, back and limbs and a chipped tooth. These injuries are the subject of Charge 3 – Intentionally Causing Injury – against each of you Mr Lay and Mr Chol. Each of you is criminally responsible for the injuries you personally inflicted on Mr Malik and, on a complicit basis, for the injuries that your co-offenders inflicted upon him.
Investigation, records of interview, resolution
23The police investigation included CCTV footage from outside the premises in Robinson Rd, Deer Park, showing the movements of Mr Malik, Mr Adan, Mr Lay and Ms Tran as well as Mr Malik’s car. The footage showed Mr Malik arriving in his Camry at 9.05am and leaving the address at 7.55pm wearing only a T-shirt and shorts and no shoes. Mr Malik identified Mr Adan from a photo board as the man who used the taser on him and who pushed the ‘slam gun’ against his thigh, while demanding the passcode to unlock his phone. Mr Malik identified you, Mr Chol, from a photo board as being involved in the incident on the 31st of December 2023.
24You, Mr Chol, were arrested on 5th of January 2024 and interviewed by police. You denied being at the Deer Park premises on 31 December 2023, and said you were at home or with your girlfriend. You gave “no comment” replies to some questions and later said you might have gone to the premises to buy drugs but that you never got out of the car while at the address. You denied the offending. You refused to take part in an identity parade and, as noted above, refused to give your mobile phone password to police.
25You Mr Lay were arrested on the 17 of January 2024 and participated in a record of interview. You admitted being at the premises on 31 December 2023 with Ms Tran. You said people were coming and going from the premises all day. You admitted knowledge of the incident but refused to say any more about it. You Mr Lay denied going to either Tarneit or Truganina or knowing that the victim was bound with duct tape. You denied threatening to kill the victim if he reported the matter to the police.
26On the first day of the committal, 19 August 2024, before any witnesses were called, each of you indicated your intention to plead guilty.
27You, Mr Chol have been in custody since 5 January 2024. Your pre-sentence detention, not including today, is 397 days.
28You, Mr Lay, have been in custody on other charges and have no pre-sentence detention referable to the current offending.
Nature and gravity of the offending – charges 1, 2 and 3
29Mr Malik provided a lengthy Victim Impact Statement signed in early February 2025 in which he outlined the significant physical, psychological and financial impact of your offending. He has been unable to work for the past 6 months, incurring a loss of earnings of around $25,000 to date. He has been unable to access benefits and has survived by borrowing money from friends, which has put him in serious debt. He has been unable to pay rent, and is at risk of eviction. He suffers ongoing back pain from the beatings he endured during the incident. He cannot sit, bend, drive or sleep comfortably due to his pain. Psychologically, he has been ruined by the incident: he used to enjoy life, particularly his building trade, as well as his relationships. He now suffers from depression and requires long term psychiatric treatment. He is taking a high dose of antidepressants as well as sleeping tablets. At night, he relives the trauma of being tasered. He lives in fear of being killed and stays in his room all day. He is unable to work. He is irritable with his loved ones.
30Mr Malik provided a medical certificate dated 4 April 2024 indicating his unfitness for all work for 6 months due to Depressive Anxiety Disorder resulting from the incident. Mr Malik also provided two reports from his treating psychologist, dated 28 January and 14 February 2024, which note a diagnosis of PTSD as a result of the incident, an incapacity for work for 6 months, and the need for at least 6 months psychological treatment.
31I note that each of your counsel, Mr Chol and Mr Lay, conceded that your offending is serious, and would have been terrifying for Mr Malik.
Prosecution Submissions
32The prosecution did not take issue with your personal histories and circumstances as outlined by each of your counsel.
33It was submitted by the prosecution that the offending of each of you should be assessed as being serious examples of the offences of false imprisonment, intentionally causing injury and robbery. The offending occurred over an extended period of time. Mr Malik was held captive for over 10 hours. In that time, he was tied to a chair and assaulted with fists, a metal rod, a taser and a home-made slam gun and threats of inflicting serious injury to him were made. Overall, your conduct was calculated to instil fear into Mr Malik and to humiliate him. From his victim impact statement, it is clear that your conduct had precisely that effect. The threats that you, Mr Chol, made to Mr Malik, which you recorded on your phone, were designed to further terrorise Mr Malik. The prosecution submitted that you, Mr Lay, instigated the assaults, directed others to detain and assault Mr Malik, but had a limited role in the physical assaults. On the other hand, you, Mr Chol, in spite of having no issues with Mr Malik on that day, were an active and willing participant in detaining, assaulting, threatening, and humiliating Mr Malik.
34In relation to your moral culpability, Mr Chol, the prosecution submitted that the difficulties you experienced during your childhood and adolescence were not sufficient to enliven the principles outlined in the case of Bugmy[1] for a number of reasons. Firstly, your evidence about family violence by your father was vague and not corroborated. Secondly, there is no evidence of your exposure to drug abuse at home. Indeed, each of your parents appears to have been strict and disapproving of your drug-taking. Rather, on the evidence, it appears that your offending history has been linked to drug-taking which is independent of your family background. However, the prosecution conceded that your mental health challenges and drug addiction were matters pertaining to your personal circumstances which could be taken into account in sentencing you.
[1] Bugmy v The Queen [2013] HCA 37.
35The prosecution accepted that your pleas of guilty have utilitarian benefit in saving the community the cost and inconvenience of a trial and that it indicates an acceptance of responsibility by each of you. However, as the matter resolved on the morning of the contested committal, when the victim had already attended court, it was submitted that the timing of the plea indicates limited remorse.
36It was submitted that given the serious nature of the offending that general deterrence and denunciation should be at the forefront of sentencing considerations for each of you.
37In your case, Mr Lay, it was submitted by the prosecution that your prospects of rehabilitation depend on your remaining drug free. Although you had a long period of abstinence and no offending between 2007 and 2018, during which you worked full-time, you were placed on Community Corrections Orders in 2018 and 2021 requiring drug rehabilitation, but these did not prevent a relapse and the current offending. For this reason, it was submitted that your prospects of rehabilitation remain guarded.
38In addition, in relation to you, Mr Lay, the principle of totality is relevant. On 17 July 2024 you were sentenced to a total effective sentence of 16 months with a non-parole period of 8 months. On the other hand, I must take into account that you committed the current offences while on bail for some of that prior offending.
39Given your criminal history, Mr Chol, it was submitted by the prosecution that your prospects of rehabilitation cannot be seen as positive. You have been placed on a Community Corrections Order on 3 occasions.[2] The last two orders included conditions requiring assessment and treatment for drug abuse or dependency. However, you failed to take advantage of the rehabilitation programs those dispositions offered you.
[2]6 August 2016, 20 January 2017 and 5 April 2019.
40The prosecution conceded that it would be open to the court to impose an aggregate sentence on each of you in relation to charges 1, 2 and 3. The prosecution submitted that the only appropriate sentence for each of you is a term of imprisonment involving a head sentence and non-parole period.
Mr Chol
Personal Circumstances
41Mr Chol, your personal circumstances were set out at length in the psychological report of Mr Austin Campbell dated 9 December 2024. You are now 28 years old.
42You were born in South Sudan and shortly after your birth your family moved to Egypt. When you were about four years old, your family moved to Melbourne. You have a younger brother. You have limited memories of your parent’s relationship before they separated in 2005 or 2006, but recalled that your father was physically abusive to your mother. An intervention order was taken out against him but your family relocated a number of times to avoid him. You have four younger half-siblings from your mother’s subsequent relationship. You completed primary school without any difficulties.
43Your engagement in secondary school declined when you started drinking and smoking cannabis regularly around the age of 15. Your mother, who works in community services, disapproved of this behaviour. You then moved to Castlemaine to live with your father, but found him too strict. You returned to Melbourne to live with your mother and committed your first offences at the age of 15. You left school at age 16 in 2012. You used drugs with an antisocial peer group. You had a relationship with a young woman from a different Sudanese tribe which resulted in the birth of your son in 2013 when you were 17 years old. In 2014 you were assaulted after a party and were knocked unconscious. You were hospitalised and required surgery. You became anxious after this assault and used substances to cope with your symptoms.
44In 2015, due to cultural differences with your partner’s family, your partner left Australia suddenly, taking your son with her. You were then 19 years old and were severely affected by their departure and the loss of contact with your son. Your mental health declined and you returned to regular alcohol and illicit substance abuse to numb your distress and depressive symptoms. You became a regular and frequent user of heroin and a frequent offender for drug, driving, dishonesty and weapons offences, as well as breaches of Court orders.
45You have not had regular employment since leaving school due to your ongoing drug use and intermittent periods of incarceration since September 2018.[3] Although your ex-partner and son have returned to Australia, you have not had contact with your son. You want to improve your mental health and functioning first.
[3]In April 2019, March 2021, July 2022.
46You had been released from custody on 22 December 2022 following a sentence of 12-months imprisonment. You remained drug free for about six months but then resumed using drugs.
47You told Mr Campbell that you had been at the Deer Park premises for some time prior to the offending, and had used cocaine, heroin and alcohol in another part of the premises. You then entered the room where the offending occurred and participated in it. You told him that you had a history of being aggressive when on drugs. You told him you hit the victim a few times. You expressed remorse to Mr Campbell for the offending and acknowledged some potential impacts on the victim.
48Mr Campbell diagnosed you with Substance Use Disorder and Major Depressive Disorder.[4] He considered that you were suffering from these disorders at the time of the offending. He also noted that you disclosed a history of personal and generational trauma, and that your perceptions, attitudes and emotional regulation systems are likely to be impacted by a number of traumatic experiences. His opinion was that this has likely resulted in functional impacts such as heightened reactivity and sensitivity and impaired emotion regulation skills.[5]
Submissions
[4]Psychological Report of Mr Austin Campbell dated 9 December 2024, 7 [29].
[5]Ibid 7 [30].
49Mr Chol, I turn briefly to the submissions made on your behalf. It was conceded that your offending is serious, but it was submitted that while you participated in the offending, you did not instigate it nor direct the actions of others. It was submitted that, according to Mr Campbell’s report, your background in terms of family violence and instability of living arrangements resulted in an insecure attachment style, overall avoidant coping skills and lack of adaptive coping strategies’.[6] You used alcohol and drugs to cope with psychological distress and depression and developed a substance use disorder during adolescence which escalated during adulthood. [7]
[6] Ibid 9 [35].
[7] Ibid 8 [33].
50In mitigation, your counsel relied on a number of matters. First, your early plea of guilty, even though you have limited memory of the offending, has utilitarian benefit in avoiding the need for any witnesses to be called to give evidence at committal or trial or for Mr Malik to relive the offending. In addition, you have expressed remorse to Mr Campbell for your offending.[8] You also provided to the court a letter of apology to Mr Malik.[9]
[8] Ibid 6 [27] and 10 [40].
[9]The letter, dated 28 January 2025, was provided to the court on 3 February 2025.
51Second, your reduced moral culpability based on your personal circumstances and the considerations in Bugmy,[10] along with the fact that, at the time of offending, you were suffering from Major Depressive Disorder and Substance Abuse Disorder and had reduced inhibition and impaired consequential thinking.[11]
[10] Bugmy v The Queen [2013] HCA 37.
[11] Above n 4, 8 [34].
52Third, the progress you have made in custody in engaging with alcohol and drug treatment programs, receiving Methadone as part of Opioid Substitution Therapy. You have also for the first time sought to address your mental health issues by taking anti-depressant medication. You have also been participating in a number of courses.[12] You engaged positively with Mr Campbell and were receptive to feedback he gave you.[13]
[12]‘Changing Gears Program’; ‘Cert II in Hospitality’; ‘Cert II in Cleaning Operations’.
[13] Above n 4, 7 [31].
53Fourth, that according to Mr Campbell your prospects for rehabilitation are positive[14] because this is the first time you have been able to access stable accommodation for long enough to enable you to engage with mental health treatment. You have said that your lack of stable housing in 2017 and 2019 prevented you from fully engaging with treatment on offer then in the community but that upon release you will have stable accommodation with your mother and the support of your siblings. You have realised that up until now you have used drugs to tackle your depressive symptoms[15] and that unresolved mental health issues along with drug abuse have contributed to your offending.[16] While it appears that you are now motivated to engage with recommended supports to address your mental health and substance use issues,[17] it was conceded that your prospects of rehabilitation rest mainly on your ability to stay free of illicit drugs.
[14] Ibid 9 [39].
[15] Ibid 5-6 [22].
[16] Ibid 7 [31].
[17] Ibid.
54In addressing the relevant sentencing considerations, your counsel conceded that in addition to the principles of general deterrence, denunciation and totality, given your relevant prior history, specific deterrence plays an important role in the sentencing exercise. However, it was submitted that, at the age of 28, you are still a relatively young man who has spent over four years in custody since the age of 20 and rehabilitation has an important role to play in your future. In light of the fact that charges 1 to 3 arise out of one overall set of events and involve a single victim, it was submitted that it is open to the Court to impose an aggregate sentence for these charges.
55In all the circumstances, it was conceded that a sentence of a term of imprisonment with a non-parole period is appropriate, but that the non-parole period should be one that provides you with appropriate support and supervision in the community.
Mr Lay
Personal circumstances
56Mr Lay you are now 46 years old. You were born in East Timor and at age 3 moved to Australia with your parents and eight older siblings. Your parents were on benefits. You had a normal childhood and there was no drug use in the family. You left school in Year 10 and completed two years of a boiler-maker’s apprenticeship before working for one of your brothers as a kitchen hand and cook in a family restaurant.
57You started using heroin when you were 18 years old, and used it intravenously on and off for around 10 years. Upon release from custody in 2007, you went to live in Brisbane with your ex-partner and worked full time in a restaurant with your eldest brother. You were drug-free until 2018. In 2017, you had a disagreement with your sister over a restaurant you owned jointly with her, and you sold the business. Your relationship with your ex-partner broke down in 2018, your father died, and you returned to Melbourne, where you relapsed into heroin use, used methylamphetamine sporadically and associated with a negative peer group.
58Your drug use escalated in 2021 after your mother died, and you remained homeless (living on the street and couch-surfing) until your remand. You formed a relationship with Ms Tran and had a daughter in late 2023. They live with Ms Tran’s mother. Upon your release, you will receive a Newstart Allowance. You intend to obtain work with one of your siblings.
59Whilst on remand at Marngoneet Correctional Centre, you have been abstinent from illicit drugs and been having monthly buprenorphine injections. You provided two random clean urine screens from 16 May 2024 and 13 January 2025 and have completed a number of rehabilitative and vocational programs, [18] and received a number of certificates.[19]
Submissions
[18] ‘Take Stock A’, ‘Take Stock B’, Jobs & Careers’, ‘Learning for Life’ (two sessions), ‘Recalibrate’, ‘Houses and Homes’, ‘Peace Education Programme’ and ‘Ice and Me’.
[19] ‘Foundation OHS’, ‘Cert I in Skills for Vocational Pathways’, ‘Cert II in Applied Digital Technologies’, ‘Cert I in General Education for Adults’, ‘White Card – “Prepare to work safely in the construction industry”’, ‘Cert II in Applied Digital Technologies’.
60It was conceded that your offending is serious, but it was submitted that your participation in the physical assault was limited, and that the physical injuries caused to Mr Malik are not the most serious examples of injuries dealt with by the court for the offence of intentionally causing injury. It was submitted that the robbery involved only theft of an iPhone. It was submitted that the offending occurred while you were drug addicted and under the influence of both heroin and methylamphetamine.
61The matters relied upon in mitigation were your plea of guilty and your engagement in custody in drug rehabilitation programs. Your plea reflects your acceptance of responsibility and willingness to facilitate the course of justice. Your remorse is evidenced by that plea and by your conduct in custody.
62It was submitted that you, Mr Lay, have reasonable prospects of rehabilitation for a number of reasons. Firstly, you do not have any recent prior convictions for violence. The last relevant prior conviction for intentionally cause injury dates from 2001 when you were 23 years old. For this reason, the court should be satisfied that you are unlikely to offend in a similar manner again.
63Secondly, the fact that you committed no offences in the community between 2007 and 2018 shows that you are capable of leading a law-abiding life, provided you remain drug free. The considerable period you have spent in custody on these matters has enabled you to remain free of drugs and should assist your ongoing abstinence.
64Thirdly, upon release you will have the benefit of support from your siblings and partner in relation to obtaining accommodation and employment.
65However, it was conceded that the only appropriate disposition is one of the imposition of a term of imprisonment with a non-parole period. It was submitted that it would be appropriate to impose an aggregate sentence in respect of charges 1 to 3 and that any sentence on charge 4 should be made wholly or partially concurrent with the sentence imposed on charges 1 to 3.
Sentencing Considerations
66Given that the offending of each of you which is the subject of charges 1, 2 and 3 was a course of conduct involving each of you, I consider it appropriate to impose an aggregate sentence in respect of these charges on each of you.
67I consider that the offending of each of you in charges 1 to 3 is very serious and is aggravated by a number of factors. Firstly, the offending occurred over an extended period of 10 hours, during most of which Mr Malik was tied to a chair with his hands bound, and at times with his face covered. Secondly, the offending was in company. Thirdly, threats to inflict serious injury or death were made to Mr Malik a number of times during the course of the false imprisonment. Your conduct, Mr Chol and Mr Lay, which is outlined above, was calculated to humiliate and terrify Mr Malik. This includes the threats you made to him, Mr Chol, and which you recorded on your phone. Fourthly, weapons were present (though neither of you were in possession of any weapons). Fifthly, Mr Malik was repeatedly subjected to violence, at different points of his false imprisonment, which included being beaten on the head with a metal rod, being kicked and punched to the head and torso, being slashed with a knife on the arm, and being tasered multiple times in the legs. Whilst the physical injuries sustained by Mr Malik were relatively modest, it is clear from his victim impact statement and the medical and psychological reports provided by him that he remains in a state of terror and fear and has sustained some permanent physical and permanent severe psychological damage. The impact of the offending of each of you has been very serious indeed.
68I accept that you, Mr Chol, did not attend the property intending to offend and did not instigate the offending nor direct others to assist. However, you could have walked away but instead actively participated in it. I accept that you, Mr Lay, instigated the offending, directed others to assist, refused to release Mr Malik but inflicted less physical violence on him. However, given the seriousness of the offending comprising charges 1 and 2, I consider overall that there is little difference in the roles that each of you played such which would materially affect the sentence to be imposed on each of you.
69The offending of each of you attracts the sentencing principles of denunciation, just punishment, general and specific deterrence, and protection of the community, along with that of rehabilitation which is particularly relevant to your Mr Chol as a relatively young man, albeit that you have a more recent history of offending. The principle of totality is relevant to the sentencing process for you, Mr Lay.
70In all the circumstances, and noting that all parties agree, I consider that the only appropriate disposition in respect of each of you in relation to the offending the subject of charges 1, 2 and 3 is the imposition of a term of imprisonment with a non-parole period.
Mr Chol
71Mr Chol, I take into account as part of your personal circumstances that you have had a somewhat difficult childhood but am not satisfied, given the paucity of evidence before me, that the degree of deprivation was such as to enliven the principles in Bugmy. I accept, however, that you lacked emotional skills to cope with distress and turned to illicit drugs at a relatively early age instead of seeking appropriate assistance for any emotional or mental health problems and I have taken these matters into account in sentencing you. I otherwise accept the matters advanced in mitigation on your behalf as outlined above.
72I note that you have a considerable number of convictions for driving, drugs, weapons, and dishonesty offences as well as breaching court orders, but no prior convictions as an adult for violent offending. I note that you told Mr Campbell that although you knew that you became aggressive when drug affected, you are not a violent person.[20] You had no reason to become involved in the dispute between Mr Lay and Mr Malik over a debt, and could have walked away from the premises at any time, but instead became an active participant in the offending over the course of 10 hours.
[20]Above n 4, 6 [27].
73I note that whilst on remand you have for the first time sought to address your mental health issues and drug dependency by taking antidepressants and methadone and participating in relevant programs. You have developed insight into the link between your emotional and psychological issues and your drug-taking and offending. You have obtained a number of vocational certificates. As you are a relatively young man, your future in the community depends on your ability to maintain abstinence from drugs, and to obtain stable accommodation and employment. I note that you have the support of your mother. I consider that your prospects for rehabilitation are reasonable.
74I propose to sentence you as follows.
75On charges 1, 2 and 3, I impose an aggregate sentence of 3 years and 6 months imprisonment with a non-parole period of 2 years and 2 months. On summary charge 4, I impose a sentence of 1 month’s imprisonment, to be served concurrently with the sentence imposed on charges 1, 2 and 3. The total effective sentence is one of 3 years and 6 months imprisonment with a non-parole period of 2 years and 2 months.
76I declare that there are 397 days of pre-sentence detention, not including today, which are to be deducted administratively from this sentence.
77Pursuant to section 6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty to the above charges, I would have imposed a total effective sentence of 4 years 8 months with a non-parole period of 3 years.
Mr Lay
78I accept the matters put on your behalf in mitigation. Apart from a prior conviction for intentionally cause injury in 2001, you have no history of violent offending. You demonstrated a capacity to remain drug and offence free, and employed, until your relapse in 2018. Thereafter you committed a number of drug, driving, dishonesty and weapons offences. It is of serious concern that you committed the present offending while on bail for other offending (for which you are currently serving a sentence). Your prospects of rehabilitation also depend on your remaining drug free. Whilst on remand you have been medicated with an opioid substitute and have completed a number of programs and obtained a number of vocational certificates. You are fortunate to have the support of your partner and your siblings which will provide you with accommodation and the chance of employment. I consider that your prospects of rehabilitation are reasonable.
79The principle of totality is relevant to your sentence Mr Lay because you are currently eligible for parole on the previous offending in February 2025 and I am obliged pursuant to section 14(1) of the Sentencing Act 1991 to set a new non-parole period for the entirety of your offending. On the other hand, because you have committed the current offending whilst on bail for the previous offending, ordinarily pursuant to section 16(3C) of the Sentencing Act 1991, the sentence for this offending, unless otherwise directed, be cumulative on the sentence imposed for the previous offending. Taking all of these matters into account, I consider it appropriate to set a non-parole period as indicated below.
80On charges 1, 2 and 3, I impose an aggregate sentence of imprisonment of 3 years and 6 months with a non-parole period of 2 years. On charge 4, I impose a sentence of 3 months’ imprisonment and I disqualify you from driving for 3 months. I direct that the term of imprisonment imposed on charge 4 be served concurrently with the sentence imposed on charges 1, 2 and 3. The total effective sentence is one of imprisonment for 3 years and 6 months with a non-parole period of 2 years.
81Pursuant to section 6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty to the above charges, I would have imposed a sentence of 4 years and 8 months with a non-parole period of 2 years and 8 months.
0