Director of Public Prosecutions v Chol

[2016] VCC 299

Pages 1 - 6   IN THE COUNTY COURT OF VICTORIA

Revised (Not) Restricted  Suitable for Publication

AT MILDURA
CRIMINAL JURISDICTION

CR 15-01833

DIRECTOR OF PUBLIC PROSECUTIONS

v

YAI CHOL

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Mildura
DATE OF HEARING:
DATE OF SENTENCE:	17 March 2016
CASE MAY BE CITED AS:	DPP v Chol
MEDIUM NEUTRAL CITATION:	[2016] VCC 299

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D O'Doherty
For the Accused	Mr N. Howard

HIS HONOUR: 

1Yai Man Chol, you are to be sentenced for one charge of making a threat to kill and one charge of armed robbery.  Maximum sentences are, respectively, ten years and 25 years' imprisonment. 

2You pleaded guilty to these offences before me on 2 March.  When interviewed by police on 1 April 2015 you falsely denied them.  There was a short contested committal on 21 October 2015, after which you pleaded not guilty.  The matter was listed for trial in these March sittings at Mildura.   That indictment alleged six charges,  including also those of aggravated burglary and intentionally or recklessly causing serious injury.  However, on 2 March this plea indictment was filed over and, as stated, you pleaded guilty. 

3You receive the benefit of your plea of guilty and the level of cooperation that short history of the proceeding shows.   As to  the timing of your plea, I bear in mind that it reflects a negotiated position.  The Crown has not proceeded against you on a number of charges. 

4At your plea hearing today Mr O'Doherty for the Crown tendered a written Crown opening and the victim impact statement of Thomas Gouk.  Mr Howard for you,  tendered the forensic psychological report of Dr Mirabel McConachy dated 3 March 2016. 

5The circumstances of your offending are comprehensively stated in the tendered Crown opening, which his Exhibit A.  My own summary may be short.

6You are a 29-year-old man who comes from the Sudan.  At time of offending you lived in Swan Hill.  Your victim, Thomas Gouk, is also Sudanese and lived at a different address, being a Salvation Army boarding house in Swan Hill.  Thomas Gouk was 36 at the time.

7In late February 2015 he owed you money.  His position was $50, yours $250.  On 24 February he paid $50 to you through a mutual associate.  There was a confrontation between you on that day, it seems, as to the alleged balance.  Gouk complained to police, alleging production of a knife.  Police investigation did not sustain that and you were not charged.  You spoke to police, who counselled you against further action.  You asked them to help get your money.  It is clear that you are aggrieved that they did not do so.

8On 25 February there was another confrontation at the boarding house.  You threatened to kill Gouk, Charge 1.  On 26 February, again at the boarding house, you committed the armed robbery against him, Charge 2.  As he walked along a hallway you struck him to the head with a large stick.  You continued to hit him on the ground.  You again threatened to kill him.  You took his mobile phone and left. 

9Thomas Gouk's injuries are stated in paragraph 12 of the Crown opening.  I quote.

"A nasal plate fracture with marked septil edema with associated septal haematoma; left-fifth metacarpal fracture; haematoma to right forehead; multiple lacerations to face, ankle, hand and knees; nasal swelling; tenderness over the radial styloid process, wrist.  Mr Gouk required surgery; however, as at 15 April 2015 the fracture of the left-fifth metacarpal remained ununited".

10You are not charged with and will not be sentenced for the offence of causing his injuries.  However, they must be seen as part of the context for Charge 2, armed robbery.

11Thomas Gouk's victim impact statement states a number of effects of your offence.  His physical injuries, particularly the fractures to his nose and arm, have caused ongoing pain and disability.  Medical treatment has been difficult.  He was off work for about three months,  with considerable financial loss.  I am not complete.  The victim impact of your offending must be taken into account in my sentence of you.

12As stated, you are a 29-year-old man.  You left war-torn Sudan at ten years.  Separated from your parents, you lived for seven years in an Egyptian refugee camp.  You came by yourself as a refugee to Australia at 17.  Your siblings have or had reunited with your parents.  You have not;  and have no contact with your family.

13Your time in Australia has been terribly unsuccessful.  You have had little schooling and have worked itinerantly, mainly as a meat worker and seasonal farm worker.  You have done that consistently; however, it has offered little reward, advancement or stability.  It is clear from the tendered psychological report  that dislocation and deprivation over your life has left you damaged, hardened and bitter.  Mr McConachy diagnoses an antisocial personality disorder.

14You have a number of prior convictions including for attempted armed robbery and other offences of violence.  You have been imprisoned, on my reckoning, five times.  You hate it in Australia and wish to return home and find your family. 

15It is a legitimate expectation  that you will be deported upon parole  release for this sentence.  As discussed with and agreed by your counsel, this is not a case in which that should affect your head sentence or eligibility for parole.  You also wish to apply for return as a refugee to the Sudan.

16This was a very serious offence.  Its circumstances attract as relevant the sentencing considerations of deterrence,  both general and specific, your moral culpability and the need to sentence in a way to condemn what you did.  There must be proportionate punishment.  Moderating factors which must be taken into account include your plea of guilty and your very markedly deprived background and personal circumstances. 

17Stand up, please, and I will sentence you.

18You are sentenced as follows. For threat to kill I impose imprisonment of six months; for armed robbery I impose imprisonment for three years. That is a total effective sentence of three years. I set a minimum term before eligibility for parole of 18 months. I declare under s.18 of the Sentencing Act pre-sentence detention I think of 351 or 352 days.

19MR HOWARD:  It is now 352 days, Your Honour, if you take into account today.

20HIS HONOUR:  All right, 352 days, which is about a year.  So that gets deducted from the 18 months.  All right.  Is there anything else I need to do?  

21MR O'DOHERTY:  Have you ‑ ‑ ‑

22HIS HONOUR:  I think I have signed the order, haven't I?

23MR HOWARD:  Yes, that's been signed.

24MR O'DOHERTY:  I don't know if you've signed the ‑ ‑ ‑

25HIS HONOUR:  We get ‑ ‑ ‑

26MR O'DOHERTY:  I think you kept it.  Has Your Honour ‑ ‑ ‑

27HIS HONOUR:  You kept it so that it wouldn't get lost.  Take a seat, please.

28MR O'DOHERTY:  Has Your Honour referred to s.6AAA?

29HIS HONOUR:  Yes, thank you.  Had you not pleaded guilty I would have imposed a sentence of five years with a minimum term of three years.  The minimum term is double what you got.

30All right, what do we need?  We need to retrieve the order, do we?  I don't know where it is.  I think Ms Merrington put it in a safe place.

31ASSOCIATE:  I did.

32HER HONOUR:  Where is that?  That's the problem with safe places.

33ASSOCIATE:  Is it there?

34MR O'DOHERTY:  It was in a plastic ‑ ‑ ‑

35HIS HONOUR:  It was put in the plastic thing, was it?

36MR HOWARD:  Plastic sleeve.

37HIS HONOUR:  Yes, there it is.  I have found it.

38ASSOCIATE:  Thank you.

39HIS HONOUR:  It has been signed and I will hand it back down.  Yes, I need to - well, can I ask this question.  He has been in gaol five times and a sample has not been taken of him.

40MR O'DOHERTY:  That's right, Your Honour.

41MR HOWARD:  Not that I'm aware, no.

42MR O'DOHERTY:  Well, it's what the informant told me.

43HIS HONOUR:  All right.  What I'm going to do is I have got - I am making an order that you supply a sample of your saliva.  You use a cotton swab, you put it inside your mouth and that is the end of it.  If you cooperate in that, nothing else happens.  If you do not,  a blood sample may be taken by injection and reasonable force used.  The reason I have made the order is the seriousness of the circumstances of the offending and also your prior criminal history.  So I signed those orders yesterday.

44It might not mean much to you, but I wish you the best.  I hope that you get back to the Sudan and I hope you do link up with your family.  I hope it goes all right for you when you do.

45OFFENDER:  Thank you, Your Honour.

46HIS HONOUR:  All right, good.  Thank you.  You can take him into custody.  All right, thank you for your assistance,

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