Director of Public Prosecutions v Chol

[2023] VCC 1525

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-23-00871
CR-23-00872

DIRECTOR OF PUBLIC PROSECUTIONS

v

MANYIEL CHOL

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Melbourne
DATE OF HEARING:	17 August 2023
DATE OF SENTENCE:	23 August 2023
CASE MAY BE CITED AS:	DPP v Chol
MEDIUM NEUTRAL CITATION:	[2023] VCC 1525

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW SENTENCE

Catchwords:   Sentencing – robbery, violent disorder

Legislation Cited: s6AAA, s48CA Sentencing Act 1991

Cases Cited:Mills, Azzopardi, Boulton, R v Tafa [2022] VSC 466,

Sentence:Imprisonment - 195 days, 18-month Community Correction Order, supervision, 200 hours of unpaid community work, treatment and rehabilitation in relation to drugs and alcohol, other programs designed to reduce reoffending. Forfeiture and disposal order.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Hutton	Ms C. Tran, Office of Public Prosecutions
For the Accused	Ms N. Giorgianni	Ms N. Giorgianni, Georgianni & Liang Lawyers

HIS HONOUR:

1       Manyiel Madup Chol, you have pleaded guilty to two indictments.  The first, indictment N12646195, you pleaded guilty to one count of robbery on 16 September 2022.  The second indictment, No.N12707729, you pleaded guilty to one charge of violent disorder, whereby on 4 December 2022 you were a participant in violent disorder with a group of other young men using unlawful violence with the common goal or intention to fight with another gang, and in such you caused injury to two members of that other gang, and you were reckless, or it was intended that violence would be used. 

2       The facts of your offending are set out in Exhibit A, the summary of prosecution opening for plea.  I was informed by your counsel that I could treat that document as an agreed statement of fact.  I incorporate it into these reasons for sentence, and I sentence you on the basis of the facts set out therein. 

3       Very briefly stated, at about 4.35 on 16 September 2022, you and a group of friends bailed up a 13‑year‑old boy in the streets of Sunshine.  One of your friends produced a knife.  The young boy had been shepherded into an isolated position.  The group surrounded him, and after originally refusing to hand over his items, he gave up a jacket, some shoes, a belt, an iPhone, a scarf, and a backpack.  He was forced to display gang signs because you were a member of a gang that called themselves OGK, and I will come back to that later, and he was filmed doing this, and he was slapped by people in the group whilst he was being filmed.  You can be observed on that film taking his hat from his head and giving it to someone else.  Police executed a warrant on your home in December and they located items at your Melton South home that belonged to your 13‑year‑old victim. 

4       At 6 pm on 4 December, you and some of your mates went to the St Kilda area.  You apparently were the oldest of the group of young people.  You met up with other friends there, and a group of now seven of you went on to the St Kilda foreshore area.  You were a part of a group that called yourself Original Gangster Killers, or OGK, a youth gang, the name of which indicates the stupidity of your association.  Your group was in conflict with another group of young males who called themselves the Niners. 

5       In any event, at about 7.30 that evening, a group of Niners arrived on the beach, and that included two members, a Mr Hashim Mohamed, and a Mr Ibrahim Mohamed Kir.   Mr Mohamed Kir approached your group and produced a knife, pointing it at one of your group and wanted to take his necklace.  That prompted a violent incident that took place between the two groups where there was an exchange of words, punches, and kicks.  Your group produced knives and started threatening the other group.  At that time there were members of the public, families in the foreshore area who all witnessed this activity. 

6       In any event, the Niners tried to run away.  You and your group chased them, slashing at them with your knives.  Hashim Mohamed fell over on the ground and got separated from his group.  He tried to defend himself by kicking out with his legs, but you and another member of your group approached him with knives and set upon him.  You tried to stab apparently in his legs.  Your associate, Kir, ran up behind him, a 15‑year‑old, and stabbed Mohamed in the back.  It hit him so hard the knife remained stuck in his back.  You then, with your group, ran away. 

7       You came back later as members of the public were rendering assistance to Mohamed, and you saw him lying on the ground.  You spat upon him and yelled 'You fucking scum, you got what you deserved'.  At this time, you were seen to be carrying a large knife in your hand. 

8       You left the scene, and as you were leaving you confronted an unidentified male person who happened to be in your road.  You ripped his mobile phone from his hands.  One of your friends punched and kicked the man, and then you punched him in the head with your right hand.  He managed to escape and run away from you, and then you can be seen on CCTV footage wantonly destroying the phone that you took from him. 

9       In any event, Hashim Mohamed subsequently died as a result of the stab to the back that your friend had caused.  You are not charged with that murder, your friend Ibrahim Kir is, and is to stand trial in the Supreme Court, and I make it clear that I am not sentencing you for the wound or the injury that caused the death of Hashim Mohamed.  Your other co‑accused are all children and are going to be dealt with in the Children's Court. 

10      You were originally remanded in custody, and then you were bailed, but your bail was revoked on 3 April this year because you breached bail conditions about where you could go and who you could associate with.  Now this concerns me, because if you breach the conditions of the order I am about to release you on, you will find yourself just where you were when you breached your bail conditions ‑ back in custody.  You have been now in custody for 195 days, not including today. 

11      Victim impact statements, Exhibit B and C, were tendered by both the mother and the brother of the deceased man, Hashim Mohamed.  Those victim impact statements obviously speak of the extreme grief and sorrow that they both suffer at the loss of their son and brother.  Again, I have to make it clear that those victim impact statements in my view relate more to the offence of murder and the death of their son and brother than they do to the offending that you committed, but I have no doubt that your violent actions have caused distress and harm to the victims. 

12      Your counsel filed written submissions on this case, Exhibit 1.  She sets out your personal history, which is largely set out and repeated in the psychological report of Warren Simmons, Exhibit 2, tendered upon your plea. 

13      You are now 19 years of age.  You were born on 24 July 2004, and as pointed out, you were only 18 at the time of this offending.  You were born in Egypt after your parents fled from Sudan, and you came to Australia in 2006 when you were two years of age.  You have a brother who is some six years older, or approximately six years older, than you.  Other members of your family have never been in trouble with the law and are said to be supportive of you.  Both your mother and father work in a processing factory, and they continue to support you, and indeed you will be going back to live there with them when you are released from custody. 

14      You were educated to Year 12 level, which you finished last year, and then you gained work in the same processing factory that your parents work at.  You have had a long history of prescription and illegal drug abuse.  You were using Xanax since you were 14 and often taking a number of tablets a day.  You have been smoking cannabis for years, and you indicated that you were smoking up to two grams of cannabis a day.  You have abused ecstasy since the age of 16, and you have had a problem with alcohol since you were 15. 

15      Your counsel properly conceded that just punishment, general deterrence, and denunciation of your conduct are substantial sentencing factors in this case. 

16      I take into account a number of matters in mitigating of your offending. 

17      Firstly, I take into your account your pleas of guilty, which I accept were made at an early occasion.  By pleading guilty you have spared the community the time and expense of a criminal trial and the victims and their families the need to give evidence at this trial.  I also accept that those pleas are some evidence of your remorse for your responsibility. 

18      You are a man who falls to be sentenced as a young offender without any prior criminal history.  The Court of Appeal has made it clear in authorities such as Mills[1] and Azzopardi[2] that rehabilitation should be the predominant sentencing factor when dealing with a young offender such as you and I should do what I can to promote your rehabilitation.  The court has also recognised that young men in adult prison is a totally undesirable circumstance, that you are much likely to come out worse than when you went in, and I am acutely conscious that you have spent your 195 days in adult prison.  Fortunately, there appears to have been no issues with your incarceration. 

[1] R v Mills [1998] 4 VR 235, 241

[2] Azzopardi v The Queen (2011) 35 VR 43

19      Having regard to your age, your lack of prior criminal record, the way you engaged with Youth Justice when you were on bail ‑ and I will return to that in a moment ‑ and the support you have from your family, I find that your prospects for rehabilitation are reasonable.  Clearly you have to go to disassociate from the group that you were associating with.  You have demonstrated some responsibility.  You have done courses that are available to you in custody, and you have been employed in the kitchen. 

20      Your counsel submitted that the appropriate disposition would be a lengthy community corrections order combined with time served effectively that you have already done.  The Court of Appeal in the decision of Boulton[3] have made it clear, particularly at paragraph 131 of that judgment, that community corrections orders represent punitive and appropriate sentencing options in cases that would otherwise call for lengthy or substantial periods of imprisonment, and I accept that you fall into that category.  Mr Hutton, the learned Crown prosecutor, after some thought, conceded as much. 

[3] Boulton v The Queen [2014] VSCA 342;46 VR 308

21      I am heartened by the report from Exhibit 3 from Youth Justice, which indicated that before you had your bail revoked you 'engaged well in an open and candid way with Youth Justice in a dialogue and demonstrated a high level of motivation to make positive change in [your] life.  Mr Chol's engagement with Youth Justice has consistently been positive' and you commenced a knife crime program.  The fact that you were positive in that up until the time you stupidly breached your conditions does give me some confidence about your ability to complete a community corrections order. 

22      I was provided with a decision of Justice Taylor in the case of Tafa [2022] VSC 466[4] which in my view has a great deal of relevance and assistance to your case.  Now there are differences between Mr Tafa's position and yours.  He was older than you by a couple of years, he was a New Zealand citizen who was likely to be deported, and he had done 13 months in pre‑sentence detention before he sentenced.  But having said that, he was in a similar situation to you.  He was part of a group that set upon an individual, and one of his cohorts, one of his co‑offenders in the violent disorder, caused a wound that led to the death of the victim.  Again, like Justice Taylor, I want to re‑emphasise I am not sentencing you for the wound or injuries that caused the death of your victim, but I will quote from Her Honour's reasons at p7: 

'Your offending was serious.  In a public place you participated in a pack attack on a defenceless and unarmed teenager who, after trying to evade you, put up no resistance and lay in the foetal position on the ground.  You were armed with a baseball bat.  Two others were armed with knives, another with an extendable baton and … another with a … bottle.  The attack was vicious.  And you, the only member of the pack aged more than 18 years, were a leader in the enterprise.  Bravery is not demonstrated nor is respect found in pack behaviour.  Being a member of a gang masks cowardice.  True courage is shown by stepping away from a group bent on unlawful, violent behaviour and indeed, by opposing it.  Your behaviour must be denounced by this Court and the sentence I impose must give significant weight to general deterrence'. 

[4] R v Tafa [2022] VSC 466

23      

Now those words could easily apply in the main to your case.  Her Honour sentenced the defendant in that case to nine months' imprisonment, but as

I said, he had done 13 months' PSD. 

24      I have had you assessed for your suitability to undergo a community corrections order, and you have been found suitable for such a disposition.  I was concerned by some of the comments by the community assessment officer as to your poor attitude and lack of consequential thinking and your lack of remorse for the victims of your offending. 

25      You need to understand what you did was not only stupid but serious, a serious criminal offence.  A young boy in the street was set upon by large boys, by a group of large men like yourself.  The fighting on the beach at St Kilda with knives in public is a disgrace.  People are concerned and frightened about behaviour such as yours.  Now I hope that you have learnt your lesson.  I am told by your counsel that this is a wake‑up call.  And you will be brought straight back to me if you breach the terms of the order I am about to impose. 

26 In respect of the first charge, the charge of robbery, on indictment N12646195, you are sentenced to be released on a Community Corrections Order for a term of 18 months. You are to undergo 200 hours of unpaid community work. You are to undergo treatment and rehabilitation in relation to drugs, treatment and rehabilitation into alcohol, and treatment and rehabilitation other, and programs designed to reduce reoffending. You will be under supervision. I order, pursuant to s48CA of the Sentencing Act, that 60 hours of any programs you undergo can count against the 200 hours of unpaid community work. 

27      In respect of the indictment no.N12707729, the offence of violent disorder, you are sentenced to 195 days' imprisonment, I declare 195 days of that sentence have already been served, and to a community Corrections Order for 18 months in the same terms and conditions as the Community Corrections Order I imposed on your robbery charge.  Do you consent to such a disposition? 

28      OFFENDER:  Yes, Your Honour. 

29      

HIS HONOUR:  All right.  Community Corrections did not recommend judicial monitoring.  It was something that I asked about, but they don't seem to think that I need to be keeping an eye on you.  But let me tell you, if you breach the order by non‑compliance, if you don't turn up, if you don't do what they ask, or more significantly if you reoffend in the next 18 months, you'll be brought back before me to be resentenced in relation to this offence and for the breach. 

Do you understand? 

30      OFFENDER:  Yes, Your Honour. 

31      

HIS HONOUR:  All right.  And you should have no doubt what I would do if you come back before me and you've reoffended.  Any of the leniency I've shown in letting you out now would not be present in the next disposition.  Now I'm sure your barrister will make it clear; you don't want to see me again.  And

I don't want to see you again, and I hope I don't, all right?  I wish you well with your order, and I hope you comply with it.  You are to report to Melton Community Corrections Centre within 48 hours of your release from custody.  They should release you today.  That means you better get to Melton Corrections Centre at 2A Barries Road by close of business on Friday.  Do you understand? 

32      OFFENDER:  Yes, Your Honour. 

33      HIS HONOUR:  All right.  At that time, you'll be asked to sign a copy of the order.  That will be sent to the Corrections Office by my associate, and they will have you sign the order in the terms that I have just indicated

34 HIS HONOUR: Pursuant to s6AAA of the Sentencing Act, I indicate that but for your pleas of guilty in relation to both these indictments I would have imposed a total effective term of imprisonment of three years with a non‑parole period of two in respect of both indictments.  And there's a forfeiture order.  The prosecution want to make that order as well.  Any other orders required? 

35      MR HUTTON:  No, Your Honour. 

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