Director of Public Prosecutions v Chol
[2022] VCC 781
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-21-01894
CR-21-01895
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHOL CHOL DENG DOUT |
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JUDGE: | HER HONOUR JUDGE LEIGHFIELD |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 March 2022 8 April 2022 30 May 2022 |
DATE OF SENTENCE: | 30 May 2022 |
CASE MAY BE CITED AS: | DPP v Chol |
MEDIUM NEUTRAL CITATION: | [2022] VCC 781 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Aggravated burglary – recklessly causing injury – theft – committing an indictable offence while on bail – plea of guilty – deprived and traumatic childhood – post-traumatic stress disorder – youthful offender – totality – parity – impact of COVID-19
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571
Sentence:Convicted and sentenced to a term of imprisonment of 3 years and 1 month, with a non-parole period of 1 year and 10 months (Dout)
Convicted and sentenced to a term of imprisonment of 2 years and 9 months, with a non-parole period of 1 year and 7 months (Chol)
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Singh | Office of Public Prosecutions |
For Accused Chol | Mr S. Devlin | Greg Thomas Barrister & Solicitor |
For Accused Dout | Mr T. McCulloch | Bowler, Man & Co |
HER HONOUR:
Introduction
1Chol Chol and Deng Dout, you have each pleaded guilty to one charge of aggravated burglary (Charge 1), one charge of recklessly causing injury (Charge 2) and one charge of theft (Charge 3). Mr Chol, you have additionally consented to this court hearing, and pleaded guilty to, one charge of committing an indictable offence whilst on bail (Charge 10).
2The maximum penalty for aggravated burglary is 25 years' imprisonment, for theft is 10 years' imprisonment, for recklessly causing injury is five years' imprisonment and for committing an indictable offence whilst on bail is three months' imprisonment or 30 penalty units.
Circumstances of the Offending
3The full circumstances of the alleged offending, investigation and arrest are set out in the summary of prosecution opening for plea dated 3 March 2022, which was tendered as Exhibit A on the plea. However, the essential aspects of your offending are as follows.
4The charges arise from events which occurred in the early hours of 9 December 2020 when each of you were 18 years and two months of age. You committed the offences with three co-accused, two of whom were 17 years of age at the time. The fifth offender remains unidentified.
5At 2.27 am, the four of you, plus the unidentified additional person, arrived at the victims' address in Kurunjang in a vehicle which had been stolen by unknown persons some two weeks previously. There were three people present in the home, being 50-year-old Paul Muscat, who was the owner of the house,
28-year-old Van Sui Hniar, who was in a relationship with Mr Muscat at the time, and 27-year-old Christian Muscat, who is Paul Muscat's son.6The two of you, and two other persons, exited the vehicle and moved towards the victims' address. A fifth person remained in the car. One of the four of you who approached the property was seen on CCTV at 2.27 am retrieving a sledgehammer from the car and carrying it towards the property. All four of you entered the property by using an unknown implement to force the sliding screen door and smash a glass window panel. At the time of entry, there were three weapons which were in the possession of the four of you as a group: the aforementioned sledgehammer, an axe and a machete. This conduct constitutes Charge 1, aggravated burglary.
7After entering the property, one of the four of you obtained a small kitchen steak knife from the kitchen before you all continued through the house. Two of you then forced your way into the master bedroom, which was locked, by kicking the locked bedroom door. Mr Paul Muscat and Ms Hniar were asleep in bed in that room.
8Mr Muscat said he was woken by a loud bang and saw three people with weapons at his bedroom door. Three of you ran up to Mr Muscat, grabbed him by the hair and arms, dragged him into the kitchen and demanded money and jewellery. Mr Muscat said he did not have anything, and he was then punched to the face and body. He was naked at the time.
9Ms Hniar was woken by something hitting her head multiple times. A male was pulling her hair and yelling, 'Where is the money?' She replied, 'I don't know, I don't live here'. Ms Hniar was then also pulled from the bed and taken to the lounge area. She was also naked at the time and was not allowed to get dressed. When she arrived in the lounge, Ms Hniar saw Mr Muscat lying unconscious on the floor with blood on his face and legs.
10Ms Hniar was then dragged by one of the four of you to Christian Muscat's bedroom. One of the four of you opened the door to the bedroom as Christian was putting his pants on. Christian was grabbed by his left shoulder and chest and dragged into the lounge area whilst Ms Hniar was dragged back to the master bedroom. When he arrived in the lounge, Christian saw his father lying on the floor with blood all over him and one of the four of you standing over the top of him, holding a knife to him and yelling, 'What's the code to the safe?' and, 'Where's the cash?' Meanwhile in the master bedroom, demands were again being made of Ms Hniar in relation to the whereabouts of money, wallets and keys. Ms Hniar pleaded to get dressed and was eventually allowed to do so before two of the four of you searched the bedroom. Whilst the bedroom was being searched, a third offender entered the bedroom and demanded to know where the gun was kept. Ms Hniar said she did not know. Mr Muscat was then grabbed by one of the four of you and was taken to the garage area where a locked firearm safe was located. Both Ms Hniar and Christian Muscat were also taken into the garage. Whilst in the garage, some of you tried to make Christian Muscat open the gun safe and hit him whilst he was trying to do so. Christian did not know the safe combination and after three incorrect attempts the safe became disabled.
11At various points throughout this incident, each of Paul Muscat, Ms Hniar and Christian Muscat were threatened by your group both verbally and with the weapons including the axe, the machete and the knife. Threats were made at various points to each of them that if they did not hand over money or provide the code for the safe, that they or the other victims would be killed. Each of the three of them were also hit with the weapons during the incident and dragged around the house to various rooms.
12At one point, one of the four of you tried to stab Paul Muscat in the chest region. Mr Muscat grabbed the blade with his left hand before it was ripped from his grip, resulting in lacerations to the inside of Paul Muscat's fingers. A short time later one of the four of you stabbed Paul Muscat in the left thigh and demanded the gun safe code again. When Mr Muscat refused to give the code, the same offender stabbed him in the upper part of his right thigh. All of the conduct in the preceding passages whereby Mr Muscat was physically assaulted resulting in injury constitutes Charge 2, recklessly cause injury.
13At some point during the incident, Ms Hniar managed to flee from the house via the smashed sliding door. She cut the soles of her feet on the broken glass as she ran to seek help from a neighbour. The neighbour called Triple 0. By this time, it was 2.48 am, some 21 minutes after you had all forced your way into the home.
14After realising that Ms Hniar had fled, the four of you left the house, got into the vehicle you arrived in and drove off. You took a number of items with you which you had stolen from the house. These were a leather ammunition belt, various shotgun cartridges, an Apple iPhone X, a CCTV hard drive, a Makita power drill, a pair of bolt cutters, a 28-carat gold necklace with a Ferrari emblem, a bottle of Johnnie Walker scotch, a bottle of Dimple scotch, a Louis Vuitton belt in a box, a Tommy Hilfiger T-shirt, a pair of Tommy Hilfiger flip flops, a silver men's watch and a set of keys which included house and car keys. This conduct constitutes Charge 3, theft.
15At the time of this offending, you, Mr Chol, were on bail. The commission of the aggravated burglary whilst you were on bail constitutes the related summary offence of committing an indictable offence whilst on bail.
16As a result of the offending, Mr Muscat received a number of injuries, being a 2 centimetre superficial stab wound to the left thigh; a 2 centimetre superficial stab wound on the right thigh; a volar laceration over his left ring finger middle phalanx; a swollen right upper arm; a bruised lip; a small laceration under the chin; and a nosebleed. He was taken to the Royal Melbourne Hospital and his injuries were treated with irrigation, Steri-Strips and sutures. He was discharged the following day, being 10 December 2020.
17The prosecution has conceded that it is unable to distinguish each offender's role when inside the victims' premises. You have each pleaded guilty to the aggravated burglary on the basis that you entered the premises in company with each other and two other persons, and that each of you was involved in the offence on a complicity basis. Whilst it is not clear who had which weapon, you have conceded that the four persons who entered the house (which includes each of you) had between them a machete, an axe and a sledgehammer at the time of entry, and were aware of the presence of those weapons.
18In relation to the recklessly cause injury charge, again whilst it cannot be said who actually inflicted the injuries on Paul Muscat, each of you have pleaded guilty to the charge on the basis that you were aware that it was probable the offence of recklessly cause injury would be committed in the course of carrying out the aggravated burglary and theft.
19Finally, in respect of the charge of theft, you have each pleaded guilty to the charge on the basis that you were complicit in the offending.
20I note in respect of your co-offenders that the prosecution was unable to prove out of the remaining three offenders which offender remained in the car and which two offenders entered the house. Accordingly, whilst your co-offenders pleaded guilty to the same charges as each of you, they were both sentenced in the Children's Court on the basis that they did not enter the premises.
Further Investigation, Arrest, Interview, and Remand
21In the four hours after you had left the house, each of you was captured on CCTV footage in various locations, ultimately ending up in La Trobe Street in Melbourne. You, Mr Chol, were captured on CCTV in two separate locations in La Trobe Street carrying the Louis Vuitton belt box belonging to Paul Muscat. You and one co-accused were also seen on CCTV speaking with an associate, at which time you and the co-accused appear to be laughing and describing the aggravated burglary to your associate, including a stabbing motion by the co-accused and actions describing the size and type of firearms safe by you, Mr Chol.
22On 15 December 2020, police investigators located the stolen Jeep in which the group of you had travelled to the Muscats' address and undertook surveillance of the vehicle. Four males were seen to exit the vehicle, one of whom was you, Mr Dout. You were intercepted by police, and they conducted a safety and evidence search on you. A number of items were seized from you including a blue 12-gauge shotgun cartridge, which was in your bumbag. The shotgun shell was the same type of ammunition stolen during the aggravated burglary. A search warrant was later executed at your house, but nothing was seized.
23On 21 December 2020, investigators executed a search warrant at your address, Mr Chol. On 31 December 2020, police again attended at your address and two items were seized from you, being a mobile phone and a pair of shoes. On 16 February 2021, police attended at your address for a third time, and you were arrested. Later that same day, you gave a no comment record of interview, were charged and remanded in custody on these matters.
24Mr Dout, you were ultimately arrested, charged and remanded in relation to these matters on 18 February 2021. You were unable to be interviewed due to being substance-affected.
25Each of you has remained in custody since being remanded on 16 and 18 February 2021 respectively, a period of approximately 470 days. However, due to each of you serving other sentences whilst you have been on remand, the actual pre-sentence detention available to you, Mr Chol, is 361 days, and for you, Mr Dout, is 422 days.
Victim Impact
26I received victim impact statements from both Mr Paul Muscat and Ms Hniar during the plea. Those victim impact statements indicate the significant emotional, psychological, physical and social impact which your offending has had upon each of them. Mr Paul Muscat described being unable to sleep, the constant paranoia he now feels, and his inability to feel safe and secure in his own home. He further detailed the scarring and ongoing pain from the injuries he sustained during the offence. Ms Hniar similarly described feeling anxious and unable to sleep in the aftermath of your offending. She is scared to drive at night, is jumpy when she hears sudden noises, and has found herself unable to return to her previous work in aged care. She also suffered injuries to her feet when she fled from the home which were painful and took some time to heal.
27I accept that the impact of your offending upon Mr Muscat and Ms Hniar has been profound in terms of its immediate effect and its enduring impact. Their victim impact statements clearly demonstrate the consequences of invading someone's home, a place where they are entitled to feel safe and secure. I take that impact into account in sentencing each of you.
Gravity of Offending
28Turning now to the seriousness of your offending.
29As submitted by the prosecution, and properly conceded by each of your counsel, the objective seriousness of both the aggravated burglary and injury offences in this case is high. The aggravated burglary was committed in the early hours of the morning, at a residential address, with multiple offenders entering the home, and weapons being carried and used. The recklessly cause injury charge encompasses the multiple injuries inflicted upon Mr Muscat over an extended period of time, and with some of the injuries being inflicted by a knife. Whilst the intent of each of you upon entry into the house was to steal, this entire incident was a terrifying and degrading ordeal for the victims inside. Additionally, you were each subject to other court orders at the time of committing the offences. You, Mr Dout, were on a youth supervision order, whilst you, Mr Chol, were on both bail and an adjourned undertaking. I do note, however, that given the prosecution cannot say who did what within the home, each of you falls to be sentenced on the basis that you were aware of the weapons carried and foresaw the probability of the causing injury offence occurring during the course of the burglary rather than being directly responsible for any of the discrete acts or injuries caused.
30It was submitted by your counsel, and conceded by prosecuting counsel, that to the extent that the aggravated burglary and theft were committed at the same time, in the same place and with the same end in mind, that there should be substantial concurrency between the sentences imposed on each of those charges. It was, however, appropriately conceded by each of your counsel that a greater level of cumulation is required for the recklessly cause injury charge. I accept and agree with both of those submissions.
Plea of Guilty/Remorse
31Each of you pleaded guilty to the offences currently before the court at what can be considered to be an early opportunity despite having conducted a contested committal where two police officers were cross-examined. Initially, you were each charged with aggravated home invasion, and it was only after the co-accused's matters resolved to aggravated burglary in the Children's Court in December 2021 that your matters were also able to resolve in the current fashion.
32Your pleas are significant for a number of reasons. Firstly, you have saved the complainants from the ordeal of having to give evidence and relive the traumatic events of 9 December 2020. Secondly, your pleas facilitate the course of justice and have significant utilitarian value. Any trial in this matter was likely to be of some length, and proof of the case would have been reliant on circumstantial evidence. Further, the value of your pleas is elevated by the fact that they have been entered during the current climate of the pandemic, which is having a considerable impact on the efficient running of the criminal justice system.
33Thirdly, I also accept that in each case your plea of guilty demonstrates an acceptance of responsibility for your conduct and a level of remorse. The evidence before me does not enable me to make a finding that either of you have full remorse for, or insight into, your offending. However, in the circumstances, and despite my findings in respect of the limitations on your insight and remorse, I have still given each of you a substantial discount on sentence for your pleas of guilty.
Personal Circumstances – Chol Chol
34Turning now to your personal circumstances, Mr Chol. Mr Chol, you are now 19 years of age and will be turning 20 in September. You were born in Egypt, but both of your parents and your older brother, Marko, were born in South Sudan. You immigrated as a family to Australia in January 2005 when you were three years of age. Your little sister, Ayen, was born after you arrived in Australia. You identify yourself as Sudanese Australian.
35Your father left your family in 2008 and returned to Africa. He has since
re-partnered and had a further child with his new partner. You have minimal contact with your father. Your mother struggled financially after your father left and was often absent from the home, as she was working to try and support the family. Then, in July 2011, the house where you were living with your mother and your siblings burnt down. Police considered your mother to be a suspect in relation to the fire, but she was not charged.36In the aftermath of that fire, you all moved for a period to your mother's cousin's house in St Albans. However, within a month of moving there, further tragedy struck when an unrestrained pit bull dog entered the yard, and then the home, where you were staying. It attacked and injured your mother's cousin and her
five-year-old child, who were present. When your mother intervened, the dog turned its attention on her and your sister. Your mother was injured and, sadly, your four-year-old sister was killed by the dog. You were just nine years of age at the time and witnessed the entire incident.37Leading into 2011, you had been undertaking your primary education at Sacred Heart Primary School in St Albans and were a regular attendee at school. However, after the death of Ayen, you needed additional support at school, as you struggled to retain information and maintain concentration. You did, however, manage to continue with your schooling and commenced high school at Caroline Chisholm Catholic College.
38Child protection services then became involved with your family in 2014, and throughout 2014 and 2015, the family was subject to protection orders, supervision orders and family preservation orders. There were two further fires in the family home, including one in 2017 where your brother received burns and was hospitalised. Again, police considered your mother to be a suspect, but she was not charged. This triggered further child protection involvement and you were removed from your mother's care. You were placed in a kinship placement with your paternal uncle, who provided you with basic care but no emotional support. You struggled whilst you were living with your uncle, as you wanted to be with your mother and brother and could not understand why you had been removed from them. You visited your mother when you could, and it was your mother who continued to support you both financially and emotionally throughout this time. To this day, your mother remains supportive of you.
39Despite the considerable disruption in your family life, you continued to attend school and managed to complete Year 10. You report that you were suspended in term 1 of Year 11 after a fight outside the school grounds. You did not return to the school, partly because you felt that you had let the school down.
40From 17 May 2018, you were placed on a care by secretary order until the age of 18, which involved you being placed in a lead tenant property through MacKillop Family Services from February 2019 onwards. However, due to you committing a number of offences and being remanded on a number of occasions, you did not get to spend much time in that placement.
41You do have a limited but relevant criminal history. In August 2019, you were sentenced to 10 months' probation in relation to four charges of robbery, one charge of trespass, and a number of other dishonesty and bail offences. Then, on 2 April 2020, you were sentenced to 180 days' detention in a youth justice centre for two armed robberies, false imprisonment, assaults and a number of other dishonesty offences. You had already served 106 days in detention by the time you were sentenced, and I am told that you were not granted parole. You were released in June 2020.
42On your release from custody, you started to engage with O Street, Parkville College, which is a flexible learning centre. Ms Morrissey from O Street provided a letter to the court stating that prior to your remand in February 2021, you were showing a level of commitment to your education, attending regularly on campus. You were preparing to begin a Certificate II in Civil Construction at Foresite Training and, according to Ms Morrissey, had gained a sense of purpose due to having a strong career pathway plan. To your credit, you have remained in contact with Ms Morrissey and O Street whilst you have been on remand and have consistently expressed a desire to return to O Street to develop work readiness skills to enable you to undertake TAFE opportunities and achieve your employment goals. Ms Morrissey has indicated that O Street would be willing to support you in these goals on your release from custody. I take this into account when assessing your prospects of rehabilitation.
Relevance of Deprived and Traumatic Childhood
43A copy of a Children's Court report authored by clinical psychologist, Aphrodite Papageorgiou, and dated 1 August 2019 was tendered on the plea. This report had been prepared in relation to your criminal proceedings in the Children's Court. In that report, Ms Papageorgiou confirmed that you had been diagnosed as suffering from chronic post-traumatic stress disorder (or 'PTSD') and depression whilst in youth detention and had been placed on antidepressants to deal with the distressing symptoms including mood disturbance, intrusive images and memories, sleep difficulties, and emotional dysregulation caused by your PTSD.
44Ms Papageorgiou was of the opinion that as a result of your childhood trauma and destabilisation, you possess poor emotional regulation and tolerance skills. She was of the view that it is likely that you engage in activities as a way to modulate, interrupt, avoid or soothe negative internal states and further that you present with a tendency to externalise through aggression, thrill-seeking, and antisocial behaviours particularly during periods of increased stress or destabilisation. In other words, in Ms Papageorgiou's view, your escalation in externalising behaviours, antisocial attitudes and compromised decision-making is a by-product of your attempts to reduce trauma-linked emotional distress. Further, Ms Papageorgiou was of the opinion that your history of disrupted and disorganised attachments has also led to a need for belonging and validation which you achieve through association with antisocial peers.
45Mr Devlin, on your behalf, submitted that the significant trauma and destabilisation which you endured throughout your childhood had the effect of substantially affecting your childhood and that, in the circumstances, the principles in Bugmy v The Queen (2013) 249 CLR 571 apply. He submitted that the impact of your deprived childhood does not diminish over time and your experiences are relevant to an evaluation of your moral culpability in this case.
46Ms Pillai, for the prosecution, accepted that the profound dysfunction, trauma and disadvantage which you experienced during your formative years are relevant to an appropriate evaluation of your moral culpability, but identified that your difficulties may also require an increase in the weight placed on other sentencing purposes such as community protection.
47I accept that the principles in Bugmy do apply in your case. Your traumatic experiences throughout your childhood have played a role in shaping your behaviour and responses, and I accept that, as a result, your moral culpability for your offending is reduced to a moderate level. It is, however, of importance that your underlying issues are addressed, as without treatment it is unlikely that rehabilitation or long-term community protection will be achieved. You have shown some interest in pursuing employment opportunities on release from custody and will, given your age, be free to return to your family home on release from custody where you will have the support of your mother. Whilst you have not shown a desire, at this stage, to commit to treatment for your underlying issues, I am still of the view that you do have prospects of rehabilitation albeit my optimism in that respect is guarded.
Personal Circumstances – Deng Dout
48Turning now to your personal circumstances, Mr Dout. Mr Dout, you are now 19 years of age and will be turning 20 in September this year. You are of South Sudanese descent but were born as a refugee in Egypt. You arrived in Australia when you were two years of age. You are one of seven children to your parents, who are now separated. You describe your childhood with your family as being part of a big family in a small house, on Centrelink. I note that you did not have any family members in court supporting you, and I was told that you have not, until very recently, allowed your lawyers to contact your mother or your family to support you through these proceedings. As a result, you have spent approximately 12 or 13 months in custody without any contact with your family. You have, however, very recently had some contact with your mother and are starting to come to the realisation that you will need some support from your family on your release from custody.
49In terms of schooling, you attended a local primary school and learnt English as you progressed through the grades. You did not excel academically, but you attended consistently. You also played community soccer. You attended secondary school at Catholic Regional College in Sydenham and completed Year 10. You commenced, but did not complete, Year 11. It was around this time that you started using cannabis and Xanax. It was also around this time that you first became involved with the criminal justice system.
50You have had some further limited education since leaving Catholic Regional College. You undertook some classes in 2020 through O Street College and also undertook some classes through Parkville College whilst on remand but have otherwise not undertaken any further education or training.
51You also have a limited but relevant criminal history. On 8 March 2019, you were placed on a 12-month good behaviour bond without conviction for charges including handling stolen goods, burglary and bail offences. On 7 November 2019, you were placed on probation for a period of 12 months for a consolidation of charges which included armed robbery, robbery, criminal damage, theft of motor vehicle and other dishonesty offences. You were then breached on that probation order and sentenced on new offences, which included armed robberies and theft of motor vehicle, on 10 September 2020. You received a term of six months' detention in a youth justice centre (time served) together with a youth supervision order for a period of 12 months. You were still on that order at the time of the current offending, and it appears that it continued to be administered whilst you were in custody on remand for these matters. An email from Mick Lowes, an advanced case manager from Mallee Youth Justice, confirms that you undertook monthly Zoom supervision sessions and always presented in a polite and respectful manner.
Deprived Upbringing and Prospects of Rehabilitation
52Your counsel submitted that despite your limited recount of your early childhood and your instructions that you did not experience any trauma or racism growing up, that I could still draw an inference that you and your family experienced the many disadvantages of having to flee one's home as a refugee, escape to a new and completely foreign culture and then encounter all of the economic disadvantage that entails. He further submitted that this submission is strengthened by the material contained in the youth justice centre order assessment report indicating that your exposure to a significant history of family violence perpetrated by your father together with a history of parental mental health concerns and inadequate supervision led to you suffering cumulative harm throughout your childhood. He further submitted that this deprived background, in combination with your youthfulness, is a matter which I could take into account as a mitigatory matter in sentencing you.
53Whilst it is open to me to find on the material before me that you were brought up in an environment where there was economic and social disadvantage - and I do find that - I do not have sufficient material before me to be able to find that you had a 'deprived childhood' in the sense required for me to consider it as a mitigating factor which would reduce your moral culpability for your offending. I do, however, consider your youthfulness, in combination with your difficult childhood, to be a significant mitigating factor, and I will address this in more detail in due course.
54As with Mr Chol, I am of the view that whilst you have not to date expressed any great desire to undergo rehabilitative treatment, you do have some prospects for rehabilitation. However, again, my optimism in this regard is guarded.
Totality – Chol Chol and Deng Dout
55Turning now to the principle of totality as it applies to each of you.
56I have already recounted the limited prior history which each of you have. You have both also been dealt with for subsequent matters since the offending which I am dealing with.
57Mr Dout, since being remanded on this matter, you were sentenced on 23 June 2021 to a period of one month detention in a youth justice centre (served in adult prison) for recklessly causing injury and unlawful assault; on 20 July 2021 to a
one-month youth supervision order for affray and assaulting an emergency worker on duty; and on 25 February 2022 to 14 days' imprisonment for theft of motor vehicle and unlicensed driving.58Mr Chol, you were sentenced on 17 February 2021 to four months' detention in a youth justice centre (served in adult prison) for offences including intentionally causing injury, attempted carjacking, and theft from motor vehicle. Additionally, I am told that prior to the imposition of your 10-month probation order in August 2019, you spent 128 days in custody which were not declared as
pre-sentence detention and which have not otherwise been accounted for. The combination of your various sentences and periods on remand mean that you have spent approximately two years and two months of the last three and a half years in custody.59In considering the sentence to be imposed on the offences before me, I cannot, and do not intend to, further punish either of you in respect of your subsequent matters. However, your subsequent convictions do have relevance to my sentencing task, as they are pertinent to the application of the principle of totality in this case. Not only is it necessary for me to consider the principle of totality in respect of the sentences I impose across the various offences for which I am sentencing you, but I have also taken into account the additional periods which each of you have spent in custody when applying that principle. This has more weight in your case, Mr Chol, given the period of 128 days which you previously spent in custody which have not otherwise been accounted for.
Impact of COVID-19 – Chol Chol and Deng Dout
60Further, I take into account that during the period that each of you have been in custody, you have been impacted by the COVID-19 pandemic in a number of ways. You have been subjected to various lockdowns, and your access to rehabilitative and work opportunities has been limited. You have had reduced access to family and friends, including restrictions on face-to-face contact. I take into account that your time in custody has been more burdensome, and will continue to be more burdensome, than it might otherwise have been due to the imposition of these restrictions.
Relevance of Youth and Parity – Chol Chol and Deng Dout
61Dealing now with the relevance of youth and parity. As I have already identified, each of you were only 18 years and two months of age when you committed these offences. As a result, you fall to be sentenced in the adult jurisdiction whilst your co-accused, who were 17 years of age, were dealt with in the Children's Court. Your co-accused both pleaded guilty to aggravated burglary, recklessly causing injury and theft in the Children's Court. However, they fell to be sentenced on these charges on the basis that they were complicit in the offending but did not enter the home. One of your co-accused also pleaded guilty to additional unrelated charges of recklessly causing injury, theft of motor vehicle and possession of a drug of dependence, being a single Xanax tablet. The other
co-accused additionally pleaded guilty to two unrelated charges of theft of a motor vehicle, and one charge each of failing to comply with a direction to assist, and unlicensed driving. On 23 February 2022, they were each sentenced to an aggregate term of detention in a youth justice centre for a period of 15 months for the offending.62Each of you were only 18 years and two months of age at the time of this offending and accordingly were just two months shy of also being subject to the different sentencing regime available in the Children's Court. Despite this, you both still fall to be sentenced as youthful offenders. Each of your counsel submitted, and prosecuting counsel conceded, that youth is a relevant sentencing factor in this case. Each counsel referred to the principles in the case of R v Mills (1998) 4 VR 235 and submitted that despite the seriousness of the offending in this case, that the sentencing purpose of rehabilitation still carries weight in the sentencing synthesis. Further, it was submitted by each of your counsel that whilst general deterrence remains a significant sentencing factor given the nature of the offending before me, there is scope to moderate the weight to be given to general deterrence in a modest but significant way. By contrast, Ms Pillai submitted that whilst rehabilitation must be given weight, the principles of general deterrence, denunciation, just punishment and protection of the community are still the primary sentencing considerations in this case.
63I accept that general deterrence, denunciation, just punishment and protection of the community, and indeed specific deterrence, are all sentencing considerations which must carry weight in the sentencing synthesis. However, I agree with defence counsel that given your youthfulness both at the time of the offending and now; your limited, albeit relevant, criminal histories; the fact that for each of you this is your first period in adult custody; and the need in each of your cases to address underlying issues by way of treatment in order to better effect both your rehabilitation and protection of the community into the future, rehabilitation is an important and weighty sentencing purpose in this case. I also agree that there is scope to moderate the weight to be given to general deterrence in a modest but significant way.
64Turning now to the issue of parity as it applies between the two of you, I note that insofar as your roles in the offending, your prior histories, the difficulty of your time in custody whilst on remand, your youthfulness, and the value of your pleas are concerned, there is nothing to distinguish between you. However, given the findings that I have made in respect of the effect of your respective childhoods on the moral culpability of each of you, and to a lesser degree the application of the principle of totality, there is some room for modestly disparate sentences in this case and that is reflected in the sentences which I am going to impose.
65Insofar as considerations of parity as they apply as between the two of you and your co-accused, who are only slightly younger than each of you, I have taken into account the sentences imposed upon them to the extent that they can be relevant in circumstances where each of them have been sentenced under a different regime, on a different factual basis, and in circumstances where each of them has different criminal histories and personal issues from your own. I have endeavoured to impose a sentence which would not lead to a justifiable sense of grievance in the circumstances.
Sentencing Submissions and Current Sentencing Practice/Comparable Cases
66Turning now to the sentencing submissions made in this case.
67Ms Pillai, for the prosecution, submitted that the objective seriousness of each of your offending is high, and despite the mitigating factors available to each of you, an immediate custodial term with a non-parole period is warranted in each case.
68Mr McCulloch submitted on your behalf, Mr Dout, that, having regard to your youth, a term of detention in a youth justice centre or, if unavailable, a term of imprisonment which allows for a head sentence and a lengthy period on parole would be an appropriate disposition in this case.
69Mr Devlin submitted on your behalf, Mr Chol, that a combination of a term of imprisonment with a community correction order would be available in all of the circumstances and would allow the court to address the issues underlying your offending. Mr Devlin further submitted that in the event that I was of the view that a combination sentence was not an available disposition in this case, that a term of imprisonment with a head sentence and the opportunity for a lengthy period of parole should be imposed.
70During the course of the plea, prosecuting and defence counsel brought my attention to a number of cases which, although not strictly comparative, may be of guidance in this case. I have had regard to the cases referred to by counsel and note, as conceded by each of them, that each of the cases referred to are distinguishable from the present case in respect of both the factual circumstances of the offending and the matters in mitigation. However, I have taken each of the cases referred to into account, as they do provide some guidance as to the application of the relevant sentencing principles in this area and can also be used as yardsticks that may be able to illustrate (although not define) the possible range of sentences available. Ultimately, I have sentenced each of you in this case on the basis of applying the principles to the specific facts of you and your case.
Availability of Youth Justice Centre Order and/or Community Corrections Order
71Given each of you are still young offenders, and given the submissions made on sentence, I adjourned the plea to have each of you assessed for your suitability for both a youth justice centre order and a community correction order.
72Mr Dout, you participated in both assessments. You were assessed as unsuitable for a youth justice centre order, with Youth Justice being of the view that you do not meet the criteria for such an order. You were also assessed as unsuitable for a community correction order, given concerns about your motivation and ability to engage in, and complete, such an order.
73Mr Chol, I am told by Youth Justice that you politely declined to take part in the assessment for a youth justice centre order, advising that you wanted to remain in adult custody. You did participate in an assessment for a community correction order, but like Mr Dout, you were assessed as unsuitable for such an order.
74Despite each of you being assessed as unsuitable for a community correction order, it would still be open for me to impose a sentence which includes a community correction order if I was of the view that all of the sentencing purposes in this case could be met by a sentence which involved a combination of such an order with a term of imprisonment. Ultimately, however, I am of the view that despite the mitigating circumstances in each case and the need to give substantial weight to the sentencing purpose of rehabilitation, the gravity of your offending is such that even with moderation of the weight to be given to the sentencing purposes of general deterrence and denunciation, a term of imprisonment consisting of a head sentence with a non-parole period is the only appropriate sentencing disposition in each case. The length of the head sentence and period before which you will become eligible for parole for each of you is, however, markedly shorter than that which would have otherwise been the case in the absence of the mitigating factors which I have taken into account in respect of each of you. Additionally, I have endeavoured to provide each of you with an opportunity to engage in an extended period of supervised rehabilitation in the community whilst still ensuring that the sentence is an appropriate sentence if you were not granted parole and were required to serve the entire period in custody.
Sentence – Deng Dout
75Mr Dout, in respect of Charge 1, aggravated burglary, you are convicted and sentenced to a term of imprisonment of two years and eight months. This is the base sentence.
76On Charge 2, recklessly causing injury, you are convicted and sentenced to 12 months' imprisonment.
77On Charge 3, theft, you are convicted and sentenced to five months' imprisonment.
78I direct that four months of the sentence on Charge 2 and one month of the sentence on Charge 3 be served cumulatively on Charge 1 and each other.
79The total effective sentence is therefore a term of imprisonment of three years and one month.
80I direct that you serve a minimum period of one year and 10 months' imprisonment before becoming eligible for parole.
Pre-Sentence Detention
81The period of 422 days of pre-sentence detention, not including today's date, is hereby declared as having been served in respect of this sentence, and I order that such declaration and its details be entered in the records of the court.
s6AAA Declaration
82Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty to the charges for which you received a term of imprisonment today and been convicted of them, you would have been sentenced to a total effective term of imprisonment of four years and eight months with a non-parole period of two years and nine months.
Sentence – Chol Chol
83Mr Chol, in respect of Charge 1, aggravated burglary, you are convicted and sentenced to a term of imprisonment of two years and five months. This is the base sentence.
84On Charge 2, recklessly causing injury, you are convicted and sentenced to 10 months' imprisonment.
85On Charge 3, theft, you are convicted and sentenced to four months' imprisonment.
86On the related summary offence of committing an indictable offence whilst on bail, you are convicted and sentenced to 30 days' imprisonment.
87I direct that three months of the sentence imposed on Charge 2, one month of the sentence imposed on Charge 3, and 10 days of the sentence imposed on Charge 4 be served cumulatively on Charge 1 and each other.
88The total effective sentence is therefore a term of imprisonment of two years, nine months and 10 days.
89I direct that you must serve a minimum period of one year and seven months' imprisonment before becoming eligible for parole.
Pre-Sentence Detention
90The period of 361 days of pre-sentence detention, not including today's date, is hereby declared as having been served in respect of this sentence, and I order that such declaration and its details be entered in the records of the court.
s6AAA Declaration
91Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty to the charges for which you received a term of imprisonment today and been convicted of them, you would have been sentenced to a total effective term of imprisonment of four years and two months with a non-parole period of two years and five months.
92Can I just check in relation to the disposal order, is there any issue with the disposal order? There were 18 items on that order that were the same for both accused.
93MR DEVLIN: That is not opposed on behalf of Mr Chol, Your Honour.
94HER HONOUR: All right, thank you.
95MR McCULLOCH: It is not opposed, Your Honour.
96HER HONOUR: Not opposed, all right.
Ancillary Orders – Deng Dout and Chol Chol
97So pursuant to s78(1) of the Confiscation Act 1997, I make a disposal order in respect of the 18 items listed in the schedule to the draft disposal orders filed with the court.
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