Director of Public Prosecutions v Chol

[2023] VCC 477

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-21-02683
CR-22-01514

DIRECTOR OF PUBLIC PROSECUTIONS

v

Arop CHOL

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JUDGE:	His Honour Judge Moglia
WHERE HELD:	Melbourne
DATE OF HEARING:	15 February 2023, 14 March 2023
DATE OF SENTENCE:	14 March 2023
CASE MAY BE CITED AS:	DPP v Chol
MEDIUM NEUTRAL CITATION:	[2023] VCC 477

REASONS FOR SENTENCE

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Subject:Criminal Law – Sentence – guilty plea

Catchwords:              aggravated burglary – threat to kill – theft – home invasion – recklessly cause injury – driving without a license – 22 years old – significant developmental trauma  -  moderate-high gravity – extensive criminal history - guarded rehabilitation – parity – general and specific deterrence.

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:Brown (aka Davis) v The Queen [2020] VSCA 60; Worboyes v The Queen [2021] VSCA 169; DPP v O’Brien (2019) 280 A Crim R 1; Hogarth v The Queen (2012) 37 VR 658; Myers v The Queen (2014) 44 VR 486; Verdins v R (2007) 16 VR 269; Bugmy v The Queen (2013) 249 CLR 571.

Sentence:Total effective sentence 5 years and 9 months; 665 days reckoned as already served; non-parole period 3 years and 6 months; 6AAA: 7 years and non-parole period 4 years, 6 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	J. O'Toole	OPP
For the Accused	J. Hession	Slater and King

HIS HONOUR:

1Arop Chol, you have pleaded guilty to aggravated burglary (max penalty 25 years), make threat to kill (max penalty 10 years), theft (max penalty 10 years) in relation to events of 17 May 2021, and home invasion (max penalty 25 years), causing injury recklessly (two charges, max penalty 5 years), theft (two charges, max penalty 10 years), and summary offences of commit indictable offence whilst on bail (max penalty 3 months) and unlicensed driving (max penalty 6 months) in relation to events of 18 May 2021.

Summary of offending

2The agreed basis for your guilty pleas is set out in the prosecution opening dated 16 January 2023, which I summarise as follows.

Indictment N10578690

3In the early hours of 17 May 2021, Mr Sharma, Ms Sharma, and their 10-year-old daughter were asleep in their Tarneit home. Their family car was parked in the garage.

4You and a co-offender arrived at the property at approximately 2:20 AM. You entered the house at approximately 3:15 AM through a window intending to steal and were at least reckless about someone being home (charge 1 – aggravated burglary). You walked through Ms Sharma’s bedroom, where Ms Sharma was asleep with her 10-year-old daughter. You left the bedroom but soon returned, grabbed Ms Sharma, and interrogated her about the location of the Mercedes key. You said to her “Just give me the Mercedes key. If you have cash, give me cash, if you have gold, give me gold.”

5Ms Sharma got out of bed and saw you holding the keys to her Nissan. When asked about the location of the Nissan, she told you that it was parked outside.

6Mr Sharma, who was sleeping in another bedroom, was woken from the noise and came out to the kitchen to see you with Ms Sharma. You demanded that he give you the Mercedes keys, cash, and gold. You told him words to the effect of “If you do not give me, I will shoot you and your family” and “I am going to kill you. I have a pistol and a knife, and I have killed two people in Australia.”

7You told the Sharmas that if they didn’t hand you the Mercedes key, you would kill their daughter, kill their dog and burn down their house (charge 2 – make threat to kill). Ms Sharma grabbed the Mercedes keys from the kitchen and handed them to you.

8At approximately 3:35 AM, you took the Sharmas into the garage. You told Mr Sharma to give you his gold chain which he did (charge 3 – theft).

9You went back inside the house and warned the Sharmas, “Do not call the police. If you call the police, I will shoot you in the head.”

10You got in the Mercedes and drove it away (charge 4 – theft). Your co-offender drove the Nissan away. Mr Sharma called the police.

11Police located the Nissan approximately 2.5 km from the Sharmas’ address. They saw you and a younger male standing next to the vehicle. You were arrested while the younger male ran away. You were escorted to the Werribee Police station where you were interviewed. You denied the allegations, claiming that you were sleeping at your girlfriend’s apartment at the time and they granted you bail.

12Your offending has had a significant impact on Mr Sharma, Ms Sharma and their family (victim impact statement; Exhibit A). Mr Sharma stated that, after the incident, he is constantly anxious and concerned for the safety of his family. He has considered selling the family home to avoid experiencing flashbacks of the incident. He has trouble falling asleep, which has a negative impact on his energy levels and productivity during the day. Similarly, Ms Sharma stated that she and her daughter no longer feel safe in their own home. They have trouble falling asleep because they are scared that intruders will come into their bedroom and inflict harm on them. The Sharmas have become less sociable because they are paranoid about being surrounded by people who they perceive to be dangerous.

Indictment M11013050.1

13On 17 May 2021 at approximately 11:30 PM, Mr Tang arrived at his family home in Point Cook and parked his BMW in the driveway. Ms Leung was in her bedroom asleep with their 5-year-old daughter. Their 3-year-old son was asleep in the second bedroom from the front of the house by himself.

14On 18 May 2021 at approximately 1:15 AM, you and your co-accused Ajak Deng entered the home and commenced searching for goods to steal, while most of the family were in bed asleep (charge 1 - home invasion). Mr Tang walked inside from the backyard and saw you and Deng rummaging through a shelf in the corridor. You charged at Mr Tang and told him to give you the keys to the BMW. You pushed Mr Tang up against the wall as Deng snatched Mr Tang’s phone from his left hand and placed it in his pocket (charge 4 - theft).  

15Mr Tang handed the keys to his BMW to you. You asked him to show you where the money is, and he told you that you could search him. In response, you punched Mr Tang to the left side of his jaw and asked Deng to show Mr Tang the knife (charge 2 - recklessly cause injury). As Deng poked the knife into Mr Tang’s right shoulder and chest area, you said aggressively, “if you don’t show me the money, we will kill you”.

16Deng grabbed Mr Tang’s Apple Macbook and asked Mr Tang to enter the password. Mr Tang couldn’t remember the password and kept failing. You kept asking him to show you the money while Deng was saying “open it or I’ll kill you in three seconds” before starting to count down from three.

17Mr Tang told you where his wife’s handbag was and said there should be money in there. You emptied the contents of her handbag onto the ground and stole something that Mr Tang could not see. Mr Tang told you that his money was in his wallet on the bench, and you proceeded to take $200 from inside. You also took approximately $300 in notes and coins separated in plastic money bags that were from Mr Tang’s business (also comprising charge 4 - theft).

18You asked Mr Tang for the location of the safe or jewellery, and Mr Tang responded that they did not have a safe or any jewellery. You then asked Mr Tang to show you the master bedroom, and Mr Tang answered “no, there’s kids in the room, I’m not going to show you the room. Please leave, I have given you everything I have”.

19Deng punched Mr Tang multiple times and kept asking him to point out the master bedroom. You took a 30cm knife from the kitchen and started tapping it on Mr Tang’s chest, demanding “show me the money or I will find the kids and kill them”.

20Mr Tang began to struggle against you and Deng upon hearing the threat to his kids’ lives. You and Deng punched him multiple times, knocking him to the ground but he kept getting up and fighting and yelling.

21Ms Leung heard the struggle and walked out of her bedroom into the living area. You approached her and struck her with a clenched fist to the head, knocking her to the ground. Mr Tang heard Ms Leung scream and fall to the ground with a thud. He saw her lying flat on her back with her arms out to the side and unconscious (charge 3 - recklessly cause injury).

22At this point, you said something to Deng, which caused him to stop punching Mr Tang, and the two of you ran to the front door. Mr Tang locked the door once you and Deng were outside, and he saw you drive away in his BMW (charge 5 - theft).

23Mr Tang tended to his wife who was lying unconscious on the floor with her eyes open and bleeding from her mouth. He called 000 and helped Ms Leung as she regained consciousness.

24During the incident, Mr Tang sustained concussion and multiple bruises on his face and a sore neck, requiring an X-ray and CT scan, depicted in photographs at pages 93-96 of the depositions, as alleged in charge two. Ms Leung suffered a bleed to her brain (subdural haematoma), laceration to her lip requiring plastic surgery and an injured jaw, depicted in photographs at page 125 of the depositions, as alleged in charge three (Exhibit C).

25At the time of this offending, you were subject to the undertaking of bail you had entered the day prior at the Werribee Police Station on 17 May (summary charge - commit indictable offence whilst on bail). You did not hold a valid driver’s licence.

26At 1:28 AM you were captured on CCTV leaving the victims’ address in the stolen BMW. You drove the BMW while Deng was in the passenger seat. At 1:44 AM, the stolen BMW was detected by a speed camera traveling at 113 km/h. At approximately 2:55 AM, a police sergeant observed the stolen BMW travelling south on Bacchus Marsh Road in Lara. Shortly after, you failed to make a right hand turn onto Little River Ripley Road and crashed into a farm fence (summary charge: drive without a licence). You and Deng fled the vehicle and were apprehended by police in the fields. Items that were found in your possession included cash in zip lock bags stolen from Mr Tang.

27The effect of the impact of your offending on Mr Tang, Ms Leung and their family has proven to be very significant (victim impact statement; Exhibit B). This is unsurprising. Mr Tang relives the night in his dreams and often wakes more than 5 times a night. Even though they have moved house, he is always worried that somebody will break in again. He has never been attacked or punched like that in his whole life. He still feels pain in his neck and back which also makes it hard to sleep. He gets headaches from the injuries you caused to his head, which affects his ability to work properly in their business.

28They had to close their shop for days after the attack. The car you stole and crashed was not covered by their insurance policy. They had to move out of their family home whilst still paying rent there for a further 5 months. During that time, they stayed with friends who could only offer limited space, so they could not all stay together as a family during this time. Due to this move, their daughter had to change schools. The extent of these consequences demonstrates the true impact of your violent home invasion.

Procedural history

29After your arrest, you and Deng were transported to the Werribee Police Station where police interviewed you. You denied being involved in the home invasion, denied being the driver of the BMW and stated that you were picked up by an unnamed friend prior to the collision and injured your knee when it crashed.

30In relation to Indictment No. N10578690 (the offending on 17 May 2021), you were committed to this Court via a guilty plea at the second Committal Mention on 23 August 2022. I accept that this was a plea of guilty entered at the earliest reasonable stage in the proceeding.

31In relation to Indictment No. M11013050.1 (the offending on 18 May 2021), you contested the allegations and were committed to this Court on 16 December 2021. This case resolved to a plea of guilty at the Final Directions Hearing on 23 August 2022. I accept that although this could be considered a late guilty plea, it was nevertheless entered prior to the cross examination of any witnesses.

32Your plea is of significance, as it demonstrates your willingness to facilitate the course of justice, and you deserve a significant discount on your sentence for its utilitarian value. That value is greater than usual, as held by the Court of Appeal, in circumstances of the COVID-19 pandemic and should attract ‘a more pronounced amelioration of sentence than at another time’ due to the severe strain placed on court resources.[1]

[1] Worboyes v The Queen [2021] VSCA 169, [35]-[39].

33You have been in custody on these matters since 28 May 2021. I acknowledge the hardship you have experienced as a result of being on remand during the pandemic. I accept that access to personal visits has been restricted due to COVID-19 lockdowns, making your time in custody more burdensome than it should have been. Likewise, many rehabilitative programs and treatment services that would have been delivered in person have been unavailable or delivered remotely. I will reduce your sentence because of this.[2]

[2] Brown (aka Davis) v The Queen [2020] VSCA 60, [48].

Personal circumstances

34During your plea, your counsel relied on the expert report of Clinical Psychologist Alison Mynard dated 30 January 2023 (Exhibit 1).

35You were born in Sudan. You have two older sisters, two younger sisters and one older brother. You were around four to five years old when your family fled from Sudan. You remember the war, and how your family was constantly feeling scared and frightened. You remember that the journey to Egypt was very difficult, full of army trucks, bombs, and guns, but no shelter or food. You distinctly recall losing your uncle on the way to Egypt.

36Your family stayed in Egypt for less than a year. While you were there, you did not attend school, in fact, it was not safe for you to go outside for extended periods. Your father was a chef, and your family survived by relying on the leftover food he brought home from work.

37Your father had problems with alcohol. From age 8 to 14, you reported that your father physically assaulted you. You said that your father tried to discipline you into a better person, but it only pushed you away from him. He currently lives overseas and you are no longer on speaking terms, after he told you that you are not his son anymore. Your mother also hit you on occasion, but she is a better communicator than your father, and you share a close and loving relationship with her. Growing up without the guidance of a supportive father has influenced your outlook on life. You tend to see the world as a cruel and unfair place where you must look out for yourself.

38You came to Australia and started Year 3 at Dandenong Primary School. You recalled that the teachers were kind and helpful. However, you were lonely and isolated without your brother at the same school. When you were 8 to 9 years old, you moved to St Brendan’s Primary School in Shepparton, where you had a less positive relationship with your teachers and peers. Around this time, you were diagnosed with ADHD and began to take medication.

39The medication ‘zoned [you] out’ and helped you regulate your emotions. However, the medication also made you feel down with no interest in daily life. When you didn’t take the medication, you couldn’t focus on work and often distracted your peers, to the point where the school did not allow you to attend unless you had taken your medication.

40In Shepparton, your family was one of the first African families there, and you were teased because of your skin colour. You were excluded from some activities and the other children did not ask you to play with them. You were targeted and assaulted by your peers, which exacerbated your feeling of isolation. These experiences caused you to become emotionally inhibited, but always with an underlying sense of doom and anxiety.

41You later moved to another school in Goulburn Valley, where you were expelled. You then attended an alternative program for disengaged students in Shepparton for one year. You left school when you were 14 years old. Around this time, you were walking on the street when someone said racist things to you hit you on the head with a bottle. You sustained an injury on your forehead. It exacerbated your feeling of not belonging to the community. I find all of these factors in your developmental years to be very significant.

42You are now 22 years old and have no work history. You could not obtain Centrelink benefits because you do not possess the required identification documents. You have one child, a 5-year-old son, to your former partner.

43Your drug use started at age 14, when you stopped taking Ritalin and started smoking cannabis daily. You explained to Ms Mynard that you didn’t like ‘normal feelings’ like anxiety or sadness.

44When you were 20 years old, you started using methamphetamines and Xanax. In the weeks leading up to your remand, you were using ice to stay awake and alert. You were also taking five to six Xanax each day in response to the stress that you felt. At that time, there was a group of older African boys who didn’t like you and your friends. You believed that the other group had ‘bashed and stabbed’ your friends. You were convinced that you or your family would be subjected to gang related violence.

45You reported feeling restless all the time and finding it difficult to wind down. You prefer an active lifestyle, training at the gym and playing basketball. You are easily distracted and find it hard to communicate with people unless you focus extra hard on their words. When you encounter a high stress and high-pressure situation, your logical thinking ‘goes out the window’ and anxiety and fear takes over, and this often results in impulsive conduct.

46You were first remanded in custody when you were 15 years old. Since then, you have spent significant periods in custody. You were first sentenced to a term of detention in 2017. You endured being remanded at Barwon prison due to riots at the Youth Justice Centre. You were 16 years old at the time and subjected to 23-hour lockdown every day.

47You reported that you have been taking Clonidine for your ADHD since 2017. You have never seen any psychologist in the community in relation to your mental health concerns, but you have had several sessions with a mental health clinician whilst in custody.

48In late October 2022, when you were at Metropolitan Remand Centre, you were attacked by eleven others in the unit. You sustained a few bruises on your head, arms, and chest. You have been moved to Port Phillip Prison, but your feelings of paranoia have persisted.

49Prior to your remand, you lived in Point Cook with your family. You recently had a visit with your mother, who told you that your family was evicted from the Point Cook residence. You were worried about your family as they tried to find a suitable house large enough to fit everyone.

50You plan on living with your mother and siblings again once you are released from custody. You desire to access mental health treatment, raise your son, and focus on music and youth work.

Sentencing issues

51The offence of home invasion is, by its very nature, very serious, as reflected in the 25 years max imprisonment.  It is a 'a particularly nasty form of criminal conduct'.[3]

[3] DPP v O’Brien (2019) 280 A Crim R 1; [2019] VSCA 254 (Maxwell P, Niall and T Forrest JJA), quoting Hogarth v The Queen (2012) 37 VR 658, 659 [1]; [2012] VSCA 302 (Maxwell P, Neave JA and Coghlan AJA).

52In accordance with s3 of the Sentencing Act 1991, charge one on Indictment No. M11013050.1 is a Category 2 offence, meaning I must impose a period of imprisonment, not in combination with a Community Correction Order.[4] Your counsel does not seek to enliven any of the exceptions to this rule.

[4] Sentencing Act 1991, s. 5(2H).

53The prosecutor submitted that the charges of home invasion (M11013050.1) and aggravated burglary (N10578690) are both relatively serious examples of their kind.

54The Court of Appeal in Meyers,[5] set out some of the factors that might be considered in assessing the gravity of a charge of aggravated burglary. Your offending is characterised by a number of aggravating factors. You intended to steal from the homes of others whom you didn’t know, you entered their homes in the early hours of the morning, you were aware of the likelihood that others would be present given their vehicles parked in the driveways.

[5] Myers v The Queen (2014) 44 VR 486, 498 [48] (Maxwell P, Redlich and Osborn JJA).

55Specifically for the aggravated burglary charge, the prosecutor submitted you entered through the ensuite window and that you were in company with a co-offender. You played a significant role in the offending and made the initial demands for the Mercedes keys. While the victims were already frightened, you made threats to kill on multiple occasions, even directing the threats at the children.

56For the home invasion charge, it was submitted that the assault on Ms Leung is particularly serious given the severity of the injuries sustained. You were the principal offender. You made the initial demands for the BMW keys. You knew that Deng was in possession of a knife, and you instructed him to use it.

57Your Counsel, Ms Hession relied on the expert opinion of Ms Mynard. Ms Mynard observed that you have diagnoses of complex PTSD, ADHD and stimulant use disorder. She stated that at the time of the offending, you were trying to self-medicate your severe mental health issues with ice, Xanax and alcohol. The hyperarousal of your nervous system, anxiety, paranoia and psychosis, compounded with substance abuse, likely resulted in highly impaired moral decision making and long-term thinking.

58Ms Mynard stated that your behaviour at the time of offending was consistent with symptoms of drug induced psychosis and post-traumatic paranoia. You were convinced that prior to your remand, your friends were assaulted or stabbed by another group, and you were in danger. Ms Mynard observed that there was likely a psychotic element to your experience at the time, given your reports of “hearing voices” and “seeing people at the front of [your] house”. Although this presents a reasonable explanation for your behaviour in May 2021, this is not a case where I am satisfied that your impulsive conduct exacerbated by your substance abuse provides any significant mitigation of penalty.

59Ms Mynard observed that you were exposed to a high level of trauma as a child. From a very young age, you have developed a negative outlook about the world, primarily due to your experience of war and family violence. The feelings of isolation, detachment and vulnerability continued throughout your life, in the schoolyard, in your neighbourhood, and later in custody. After being recently assaulted in custody and moving to Port Phillip, your paranoia has been exacerbated. Ms Mynard stated that in these circumstances, you would find custody more onerous than someone without your psychological presentation.

60Ms Delaney, who knows you well and provided a reference (Exhibit 2) supports the view that you find it hard in custody due to your struggles with your mental health.

61Your Counsel relied on the opinion of Ms Maynard as supported by other material and submitted that Verdins limbs 5 and 6 are enlivened, namely that you find prison harder than others who do not have your mental health struggles and that custody in fact is likely to make your health worse, particularly given you cannot access the kind of treatment you need to progress.

62The Prosecutor conceded that Verdins limb 5 is relevant in your case but opposed the submission that limb 6 also has application. The Prosecutor argued that Ms Mynard’s evidence is insufficient to establish that there is a ‘serious risk of imprisonment having a significant adverse effect on the offender’s mental health’.

63However, I accept that in the absence of trauma focused treatment and therapy, your mental health will continue to deteriorate in custody. In that respect I have moderated your sentence accordingly.

64Your counsel submitted that the principles outlined in the case of Bugmy[6] are relevant to some extent in sentencing you. I acknowledge the difficulties faced by all people seeking refuge in a new country due to violence and war at home. Research tends to confirm that people are at greater risk of adverse psychological impacts in those circumstances.[7] Further, I accept that along with your experience of racism in school and alienation in the community, your background has left you vulnerable to social exclusion which I find to be relevant in explaining how it was that you came to abuse alcohol and drugs, and to the extent that you used them, in the lead up to your offending.

[6] Bugmy v The Queen (2013) 249 CLR 571.

[7] Kate E Murray, Graham R Davidson and Robert D Schweitzer, Psychological Wellbeing of Refugees Resettling in Australia: A Literature Review Prepared for the Australian Psychological Society (August 2008) 13–14.

65Having regard to the particular facts in your case as well as your personal circumstances, I conclude that your offending falls in the moderate to high end of the range of objective gravity for this offence.

66Your Counsel conceded that your offending is serious and that general deterrence, specific deterrence, denunciation and just punishment are relevant sentencing considerations.

67I accept that you feel genuine remorse regarding your conduct back in May 2021. In your undated letter to the Court (Exhibit 2), you demonstrated insight into the severe impact your conduct has had on the victim families. You are aware that there are many troubled youths from your community with similar background and circumstances to you. You wish to reach out to the younger generation with your music, guide them through difficult times and prevent them from becoming entrenched in the criminal justice system.

68You possess a highly relevant criminal history, including prior offences for thefts, burglaries, bail offences, attempted aggravated burglary, robberies (including armed), assault (including injury) offences and contraventions of a variety of supervisory and therapeutic court orders.

69The Prosecutor submitted that your prospects of rehabilitation is guarded given your criminal history, drug addiction and the lack of previous commitment to rehabilitation. This is consistent with Ms Mynard’s opinion, which stated that your risk of reoffending would be moderate to high in the absence of decisive rehabilitative interventions.

70Your Counsel emphasized your need for targeted trauma focused treatment to break the cycle of your hypervigilant nervous system and emotional dysregulation. She submitted that it is in the community’s interest that you undergo drug and alcohol counselling as it will reduce your risk of re-offending and optimise your prospects of leading a productive life.

71Rehabilitation is an important factor in sentencing you, not only to reduce the risk of your institutionalisation, but it provides the best means of protecting the community against similar offending. I find your prospects of rehabilitation to be guarded. I acknowledge that your prospects will ultimately depend on your level of engagement with mental health and alcohol and drug treatment and other relevant programs after you are released.

72For the home invasion matter, your co-accused Deng was sentenced to a total effective sentence of 4 years 3 months upon pleading guilty to a similar set of charges.

73Of course, like offending should attract like sentences, but the following matters are relevant. You have been charged with an additional aggravated burglary with which Deng was not alleged to have been involved. Deng had a limited criminal history, such that the need for specific deterrence was moderated, whereas you possess a lengthy and relevant criminal history.

74You were to some extent the leader in the offending and Deng was at least to some extent following your instructions. Finally, Deng entered a guilty plea at the earliest reasonable opportunity whereas you have done so at the Final Directions Hearing. Whilst the sentence imposed on Deng is not irrelevant to the task of sentencing you, I find your role and your criminal history to provide a sound basis for imposing a more serious sentence on you. 

75In arriving at your sentence, I have reviewed what I intend to impose in light of the totality principle, and I have sought to make orders for concurrency to ensure proportionality in sentencing and the avoidance of a crushing sentence on you as a young offender.

76I am satisfied that no sentence other than imprisonment is appropriate in the circumstances of your case.

Indictment N10578690 (Sharmas)

77I sentence you as follows:

(a)   On charge 1, aggravated burglary – 3 years 3 months;

(b)   On charge 2, threat to kill – 12 months;

(c)   On charge 5, theft – 12 months.

78Six months of the sentence on charge 2 is to be served cumulatively upon the sentence in charge 1, making a total sentence on this indictment of 3 years 9 months.

Indictment M11013050.1 (Tang and Leung)

79I sentence you as follows:

(a)   On charge 1, home invasion – 3 years 6 months;

(b)   On charge 2, recklessly causing injury – 12 months;

(c)   On charge 3, recklessly causing injury – 18 months;

(d)   On charge 4, theft – 3 months;

(e)   On charge 5, theft of motor vehicle – 8 months

(f)    On summary charge 7, offending on bail – 1 months

(g)   On summary charge 8, unlicensed driving – convicted and discharged

80Six months of the sentence on charge 3 and 3 months of the sentence on charge 2 and 4 months of the sentence on charge 5 are to be served cumulatively upon each other and upon the sentence on charge 1 making a total sentence on this indictment of 4 years 7 months.

81I order that 2 years of the sentence on indictment M11013050.1 be served cumulatively upon the sentence imposed on the indictment N10578690, making a total effective sentence of 5 years 9 months.

82I fix a non-parole period of 3 years 6 months.

83I declare that you have served 665 days and direct that this be reckoned as a period already served under this sentence.

84In accordance with section 6AAA of the Sentencing Act 1991, but for your plea of guilty I would have imposed a total effective sentence of 7 years and fixed a non-parole period of 4 years 6 months.

85Mr Chol, the imprisonment term that I have imposed will entail a term of imprisonment of not less than 3 years 6 months and if a parole order is made a period of service in the community called the parole period, to complete the service of your sentence.

86If a parole order is made, the order will be subject to conditions and that parole order may be amended or revoked, and there may be consequences that may follow if you fail without reasonable excuse to fulfil the conditions of your parole.

Ancillary orders

87In relation to theft of motor vehicles, charge 5 (CR-21-02683) and charge 3 (CR-22-01514), I cancel any driver license you hold and disqualify you from driving a motor vehicle for a period of 12 months.

88I make the disposal order as sought, unopposed, in relation to the knife.

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