Director of Public Prosecutions v Chol

[2020] VCC 763

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-00475

DIRECTOR OF PUBLIC PROSECUTIONS

v

AROP CHOL

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	2 June 2020
CASE MAY BE CITED AS:	DPP v Chol
MEDIUM NEUTRAL CITATION:	[2020] VCC 763

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Hannan	Office of Public Prosecutions
For the Accused	Mr A. Pyne

HER HONOUR:

1Arop Chol, you have pleaded guilty before me to three charges of robbery.  The facts underlying your offending are as follows.

2Essentially these robberies took place over about a two-week period between 2 and 17 September 2018 and were part of a scheme devised by you and the other people involved in committing this offending.

3Charge 1 occurred on 2 September 2018.  Before that a person who had a fictitious or made-up name of Michael Harron advertised on Facebook Marketplace a laptop computer for sale for $1,700.  On the day of 2 September, the victim, Jeezan Mohammed messaged the seller, Michael Harron, and arranged to meet in Hoppers Crossing so he could buy the computer.  An address of 7 Torquata Court, Hoppers Crossing, was provided.

4At about 8 pm, Mr Mohammed drove to Hoppers Crossing and received a message from Michael Harron to meet him in the car park at the Kiah Reserve next to a kindergarten.  He drove there when he saw four young men of African appearance all wearing hoodies and one of them carrying a backpack.

5One of these young men approached Mr Mohammed, shook his hand and asked for the money.  Then all four immediately attacked the victim, Mr Mohammed, grabbing him from the front of his jumper, ripping it, punching and kicking him before pushing him to the ground and continuing to kick him there.

6One of them went through his pockets and stole his iPhone and the $1,700 cash that he had brought to buy the computer.  One of the other offenders then went to Mr Mohammed's car, took his key from the ignition and his wallet and then asked him for the passcode to his phone.  All four of them then ran off to a nearby dark car after one of the other offenders told the other not to worry about it.

7Eventually, Mr Mohammed settled down and found your black mobile phone and walked to a nearby police station and reported the matter.  At that time, Mr Mohammed had blood coming out from his right eye and swelling and redness to his forehead.  His car key was later found in the grass nearby.

8When you were arrested on 20 September 2018, you denied knowing anything about this offending and said you had lost your phone shortly after your birthday in August 2018.

9Charge 2, the second charge of robbery, occurred on 12 September 2018.  On 10 September 2018, Sudich Muralindhara listed his iPhone X on Facebook Marketplace for sale and was contacted by a person using the name Michael Harron who told him he was interested buying the phone.

10Mr Muralindhara arranged to meet Michael Harron on the evening of 12 September at Ginifer station to sell him the phone.  Muralindhara's friend, Chandra Mohan Giri, who was the victim, came with him to sell the phone which he carried in his jacket pocket.  The two of them arrived at Ginifer station at about 9.15 pm and Mr Muralindhara was exchanging messages with Michael Harron asking where he was.

11Mr Muralindhara and Mr Giri waited for some time but Michael Harron did not appear so they started walking towards Camara Street and when they reached, they saw three men walking towards them from the other side of the road.  These three men were of African descent and one was wearing a brown hoodie and the other two had black hoodies.  You were one of these men.

12The two groups came together and shook hands and exchanged various comments and one of the offenders asked, 'Where is the phone?', and Mr Giri put his hand in his pocket to pull it out.  As he did this, one of the offenders immediately grabbed him around the neck and Mr Muralindhara ran away being chased by one of your group.

13During the time that Mr Giri was being held by one of the offenders, someone put their hands in his pockets and took out the phone as well as Mr Giri's personal phone and Mr Giri's wallet containing cash and various cards.

14The person that chased Mr Muralindhara caught up with him and pulled his jumper off but Mr Muralindhara kept running to Ginifer station where he found two men.  Mr Giri ran back towards Ginifer station where he found Mr Muralindhara talking with two other men and they all walked back towards Camara Street looking for the offenders.

15You were later identified as one of the three people involved in the robbery although the victim and Mr Muralindhara could not identify what role you played.

16On 20 September 2018, a search warrant was executed at your house where Mr Giri's phone was found.  In a record of interview on 20 September, you initially denied any involvement in the offending but later told police you had been involved but said that no weapons were used which is what police originally alleged.

17The third charge of robbery occurred on 17 September 2018 again under the same scheme.  Sometime before 16 September 2018, an advertisement selling a MacBook Pro was listed on Facebook Marketplace for 1,650 by Michael Harron.  The victim, Kaaze Ahmed, messaged him on that date and organised to buy the MacBook Pro.  After messages were exchanged, it was agreed that he would meet up at an address in Hoppers Crossing to buy the MacBook Pro.

18At 5.30 that evening, the victim met with his cousins, Muzammil Ahmed and Tahin Naeem, and together they went and got $1,650 from an ATM before heading to Hoppers Crossing.  When they got to the meeting place, no one was there and eventually it was arranged after messaging that you would all meet at the car park next to the nearby kindergarten.

19Two offenders both in school uniform met with Mr Ahmed and his cousins and one of them asked to see and count the money.  They then immediately set on Mr Ahmed grabbing him around the neck and three more offenders then appeared from nearby bushes and helped in the robbery.

20One or more of the offenders hit Mr Ahmed to the head from behind about 10 to 12 times and the other opened his hand to get the $1,650 worth of cash.  Mr Ahmed's phone was also grabbed from his pocket while he was being hit and he eventually handed his phone over.  He also provided his PIN number and then the offenders ran away and police were called.

21It is the prosecution case that you were one of the five involved in this robbery but they cannot say exactly what role you played.  When you were interviewed on 20 September 2018, you denied any knowledge of this offending.  You were remanded in custody on 20 September 2018 and your parole was cancelled.  The maximum penalty for robbery is 15 years' imprisonment.

22When was the plea of guilty entered?

23MR HANNAN:  3 May.

24HER HONOUR:  Was it at ‑ ‑ ‑

25MR HANNAN:  Sorry.

26HER HONOUR:  Of 2019?

27MR HANNAN:  You mean for this ‑ ‑ ‑

28HER HONOUR:  For this matter.  Yes.  Was there a committal held?

29MR PYNE:  There was.  It is dealt with in my submissions.  There was a committal, Your Honour, ‑ ‑ ‑

30HER HONOUR:  Yes.

31MR PYNE:  ‑ ‑ ‑ on the issue of whether or not there ‑ ‑ ‑

32MR HANNAN:  Was a weapon.

33MR PYNE:  ‑ ‑ ‑ there was a weapon and a ‑ ‑ ‑

34HER HONOUR:  All right.

35Ultimately a committal hearing was held the sole issue being whether weapons had been used in this offending but the matter ultimately resolved to ‑ ‑ ‑

36MR HANNAN:  6 May.

37HER HONOUR:  ‑ ‑ ‑ on 6 May 2020.

38MR PYNE:  And there had been an indication in - just shortly after the offender was arrested in December 2018 that he would plead to the robbery charge.

39HER HONOUR:  Ultimately, it was fairly readily agreed that Mr Chol who had made - that you, who had made this order early, would plead to three charges of robbery which was ultimately agreed to by the prosecution.

40I now turn to your personal circumstances.

41You are now 19 years old and you came to this country when you were quite young, about four, with your family who had fled the war in South Sudan.  There were some difficulties when you first arrived.  You have got two older sisters, an older brother and two younger sisters and whilst they came here, your father remained in Sudan.

42You and your family lived in Dandenong until you were nine and then your father came over from Sudan and you joined him in Shepparton.  You told psychologist, Ms Alison Mynard, whose report dated 1 June 2020 was tendered on the plea, that when you met your father, you did not know who he was and thought it was a joke.

43Your father has kept working and there had been some difficulty because your mother found it difficult to cope without your father being around and you told Ms Mynard there was a high level of stress in your family at times.  Things, however, have settled down and you have a close relationship with your father and your family generally.

44In Shepparton, your father worked as a farmhand and your mother worked in child care.  There were some problems between your parents about your father drinking and at the age of 16, you moved to Point Cook with your mother and siblings while your father remained in Shepparton to work.

45You had some difficulty at school and you have now been formally diagnosed as suffering attention deficit hyperactivity disorder which is well-known to these courts as being a most disruptive factor for young people to deal with whilst undertaking education, having a great deal of difficulty with concentration and focus.

46Like many young people who suffer this condition, you were disruptive at school, you were placed into a specialist unit in Year 9 Notre Dame High School in September but there were behavioural problems, you were involved in fighting and ultimately were expelled.

47You developed from the age of 15 a daily cannabis habit and this habit escalated to the point that you were consuming 5 grams of it each day.  I make the comment that this is a major cannabis problem.  This is a great deal of cannabis for anyone to smoke on a daily basis.

48As a result, you are not someone who drinks alcohol.  You have tried cocaine and ecstasy or MDMA but they have only been on an experimental basis and you have never taken use of those drugs up in any serious way.  It is quite clear that cannabis was a major problem for you and you have been diagnosed by Ms Mynard as suffering a disorder in that regard, that is a cannabis use addiction disorder.

49Along the way, you got into a lot of fights with other children and then teenagers and began offending.  You have got quite a long prior criminal history beginning in 2015.  You have been dealt with in the Children's Court since then on dishonesty charges, theft charges, burglary, driving offences, attempted aggravated burglary, engaging in reckless conduct endangering serious injury and on 11 October 2017, you were ordered to be detained in a Youth Justice Centre for 18 months on serious charges including assault in company, two charges of armed robbery, intentionally destroying property, intentionally damaging property and at the time you committed the offences that have brought you before this court, you were on parole from Youth Justice for that offending.

50You were placed back in custody after you were arrested and you have remained in custody ever since.  I should add that in 2017, you were one of a number of young people transferred across from Youth Justice to be held in Barwon prison as a result of riots in the Youth Justice Centre.

51You found this a very distressing situation.  You were only 16 at the time.  You petitioned the Supreme Court to be moved back to Youth Justice and it is quite clear that this very difficult experience where you were locked up in your cell for 23 out of 24 hours and taken out for an hour a day in handcuffs has had a continuing effect upon you.

52As your counsel said, it has not hardened but it has made you very determined not to return to the adult prison system.  It appears from what you told Ms Mynard that the people with whom you offended were friends of yours.  You describe them as bad company and a poor choice of friends.  You were smoking a great deal of cannabis at the time and you needed money to support your habit and this, you said, was the main reason you engaged in this three robberies.

53Since being placed in custody, you have been at Malmsbury and you seem to have progressed very well.  You are described by those dealing with you as a respectful young man who has participated in the African program at Malmsbury, you are a leader to your peers in that program.  You apparently have a keen interest in music.  You have attended all your classes and the report from Parkville College was extremely positive talking of your engagement, your respect and the important role that you are now playing at Malmsbury with respect to younger offenders being held there.

54Overall, this was an extremely positive report and, indeed, you have been held in custody at Malmsbury since your arrest in September 2018 and I am satisfied have made the most of every opportunity that has been given to you.

55Also, importantly, in my view, you have been receiving a new medication for your ADHD and this is extremely important.  People who suffer from ADHD are called impulsive.  It is part of the way their brain is functioning.  Impulsive means they act without thinking.  Does that make sense to you, Mr Chol?

56OFFENDER:  Yeah.

57HER HONOUR:  You have been previously been diagnosed with Ritalin but you found this made you nauseous and whilst at Malmsbury, that has been replaced with another medication which you can tolerate and which you find to be helpful.

58You have been involved in Origin Mental Health Programs whilst at Malmsbury and you have been referred to the Caraniche Drug Program also conducted at Malmsbury to assist you with your cannabis program although you have been there for such a long period of time that you have effectively gone through a detox program and stayed drug-free.

59I had you assessed for suitability for placement in a Youth Justice Centre.  It was noted that you are close to your family, that they are supportive of you, that you have been participating well in those programs.  You are currently working towards your VCAL certificate.

60The report from Parkville College stated,

'Arop is eager to work on his music and developing his skills in music and has demonstrated his writing skills through the form of lyrics.'

61I noted that you wrote a letter of apology to the court.  Testing administered by Ms Mynard showed that you still have some verbal difficulties with English.  You speak three languages but verbally English remains a problem for you.  However, I made the comment on the plea having read your letter to the court that you are a strong writer of English and it would appear that this is the case with your music writing in the lyrics that you are able to come up with.

62You have expressed an interest in completing your schooling at O Street Flexible Learning Centre when you are released into the community and Youth Justice has completed a referral there.

63In other words, once you are released from custody, the aim is for you to attend this learning centre.  This appears, in my view, to be a very positive development.  You are clearly a young man of some ability and education can only help you in developing the talents that you have.

64You are also working regularly with at the Activating Youth Change Program which offers case managing and mentoring support to young people and the aim is also to support you in exploring part-time work.

65So overall you have made very good progress in custody.  You have a good family to return to and there are a number of plans being made at the moment for supports that will be offered to you on youth parole when you are eventually released.

66In all the circumstances, taking into account your youth and that this means that the court must have more than usual interest in your rehabilitative prospects, your very good progress whilst in custody which, in my view, mean that your prospects of rehabilitation have much improved and the sort of programs that are to be put in place once you are released on parole, it is my view that notwithstanding the seriousness of this offending, I should sentence you to be detained in a Youth Justice Centre rather than imposing of a sentence of imprisonment in adult custody.

67No victim impact statements were compiled but it would be quite clear to me, Mr Chol, that those people that you robbed would be feeling a lot less secure about their lives.  People who are the victims of robberies, such as you inflicted upon these people, often suffer quite severe psychological damage.  They feel less safe in their lives, they are scared to go out, they are scared to mix with friends, they suffer anxiety and they suffer stress.

68I note that Ms Mynard assessed you as experiencing quite a lot of anxiety yourself.  You can be sure, Mr Chol, that your victims are suffering just as much, if not more, anxiety than you as a result of what you did to them and you need to bear that in mind.  You need to remember that when you offend in this way against other people, you leave them in a pretty bad and much worse emotional state than they were.  It can take years for people to recover from the terror of being attacked and robbed in the way these young men were.

69As I have said, it is my view that I should sentence you to a term of detention in a Youth Justice Centre and I am going to do so on an aggregate basis in relation to all three charges.  This is because the offending occurred in a spree-type way if you like and pursuant to a particular plan which was put in practice on each occasion.  In other words, the offending is linked.

70It was your view also that you essentially were brought in to play a lookout role.  The prosecution is not able to say that that was the case but even if that was the case, Mr Chol, the fact that you were a lookout does not make you any less guilty than the people who were actually attacking those that were robbing.  Under the law, a lookout is just as guilty as the people you are looking out for.  Does that make sense to you?

71OFFENDER:  Yeah.

72HER HONOUR:  It is called complicity.  So, for example, if there is a big bank robbery and people run into a bank with guns and balaclavas and there is one person sitting in the car outside waiting to see if police are coming, that person out in the car is just as guilty of the armed robbery as the people who went in.

73OFFENDER:  Yeah.

74HER HONOUR:  And you need to understand that.

75In my view, a term of detention in a Youth Justice Centre answers the principles of community protection, specific deterrence and general deterrence that are applicable in your case together with the mitigatory features I have outlined.

76In relation to all three charges, I therefore direct that you be detained in a Youth Justice Centre for a period of two years.

77I declare that 152 days of that sentence have already been served by way of pre-sentence detention.

78Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of three years in a Youth Justice Centre.

79MR HANNAN:  As the court pleases.

80HER HONOUR:  All right?  Does that all make sense to you, Mr Chol?

81OFFENDER:  Yeah, um - yeah, I'll ask my lawyer to - of anything that I don't ‑ ‑ ‑

82HER HONOUR:  No, Mr Pyne will explain it all to you.

83MR PYNE:  Yes.

84HER HONOUR:  And, in any event, I hope you remember what I said to you, Mr Chol, all right?

85OFFENDER:  Yeah, I will.

86HER HONOUR:  All right.  You make this work for you.  This needs to be the last time you get into trouble and cannabis is a big problem for you.  If you start smoking cannabis again, my experience is that people who give up drugs a while and then go back on them, when they go back on them, they seem to go berserk and use more drugs almost than they did before and if you do that, you will be in trouble all over again, and this time it will be Port Phillip.  All right?

87OFFENDER:  Yeah, I know.

88HER HONOUR:  But I wish you well, Mr Chol.  I hope you have a good future.  Thank you very much.

89OFFENDER:  Thank you.

90HER HONOUR:  I thank counsel for their assistance in this matter.  Is there anything else that I need to attend to?

91COUNSEL:  No, Your Honour.

92HER HONOUR:  Thank you very much.  We will adjourn to 9 o'clock tomorrow morning.  Thank you very much.

93Thank you.  I forgot to say that I reserve the right to edit the lack of grammar that often attends my ex tempore sentences.  Thank you.

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