Director of Public Prosecutions v Choul

[2021] VCC 1016

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CR-21-00382
Indictment No. 12546204

DIRECTOR OF PUBLIC PROSECUTIONS
v
DHUOR CHOUL	Accused

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JUDGE:	HER HONOUR JUDGE MORRISH
WHERE HELD:	Melbourne
DATE OF HEARING:	9 July 2021
DATE OF SENTENCE:	23 July 2021
CASE MAY BE CITED AS:	DPP v Choul
MEDIUM NEUTRAL CITATION:	[2021] VCC 1016

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence

Catchwords:              Attempted armed robbery – early plea of guilty – troubled history – relative youth of offender – past psychiatric and current psychological issues – ‘Verdins’ principle 5 applicable – ‘Renzella’ pre-sentence detention taken into account – related summary offence of commit indictable offence whilst on bail – prior convictions for commit indictable offence whilst on bail

Legislation Cited:      Crimes Act 1958, s75A, s321M; Sentencing Act 1991, s5(4), s6AAA, s11, s16(3C), s18; Bail Act 1977, s30B; Criminal Procedure Act 2009, s145C; Summary Offences Act 1966, s60A

Cases Cited:R v Swingler [2001] VSCA 26; DPP v Doherty [2002] VSCA 213; R v Kittikhoun [2004] VSCA 194; Worboyes v R [2021] VSCA 169; R v Verdins & Ors (2007) 16 VR 269; R v Renzella [1997] 2 VR 88; R v Angelopoulos [2005] VSCA 258; R v Mills [1998] 4 VR 235; Nutter v R (Unreported, VSCA, 8 November 1995); Better v R [2003] VSCA 71; DPP v Josefski (2005) 13 VR 85

Sentence: Convicted and sentenced to a total effective sentence of 13 months’ imprisonment with a non-parole period of seven months. Section 6AAA declaration: Convicted and sentenced to a total effective sentence of 25 months plus two weeks’ imprisonment, with a non-parole period of 13 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E Fargher	Solicitor for the Office of Public Prosecutions
For the Accused	Mr C Pearson	James Dowsley & Associates

HER HONOUR:

1DHUOR CHOUL, you are to be sentenced in respect of one charge of attempt to commit armed robbery contrary to s75A and s321M of the Crimes Act 1958. You pleaded guilty to the charge when arraigned before me on 9 July 2021.

2The maximum applicable penalty is 20 years’ imprisonment.

3You also pleaded guilty to a related summary offence, namely commit indictable offence whilst on bail (the attempted armed robbery) contrary to s30B of the Bail Act1977. This charge has been transferred from the Magistrates’ Court under s145 of the Criminal Procedure Act 2009. The maximum applicable penalty for this offence is 30 penalty units or a term of three months’ imprisonment.

Background

4The offending relates to an incident that took place on a public bus service on the evening of Tuesday, 20 October 2020. 

5The offending was captured by CCTV cameras installed on the bus.  The footage was played to the Court and tendered as Exhibit C. 

6The victim, Sirisak Inthawong, was a hapless, innocent stranger, sitting on the bus.

7At the time of offending you were 27 years of age and were subject to and bound by the conditions of:

(a)   a Community Correction Order imposed by the Moorabbin Magistrates’ Court on 18 September 2019; and

(b)   an undertaking of bail entered into on 26 September 2020.

Circumstances of offending

Charge 1 – Attempted Armed Robbery

8On Tuesday, 20 October 2020, the victim, Sirisak Inthawong, finished work at approximately 10.00pm.  He walked to the bus stop located at Footscray train station and at approximately 10.17pm, he boarded a bus heading towards the City.  The victim was the only passenger on the bus. 

9Approximately two stops later, you boarded the bus.  You sat in the row of seats diagonally behind the victim.  You sat in the seat closest to the aisle.

10A short time after entering the bus, you pressed the stop button, requesting the bus to stop at the corner of Dynon Road and Lloyd Street in Footscray.  After the bus came to a stop, you produced a socket wrench from the back right pocket of your pants.  You stood up and walked towards the victim.  At this time, the victim was holding his mobile phone.  You grabbed the victim’s phone and attempted to pull it from his grip.  The victim held onto his phone tightly and the two of you struggled over the phone.  While still grappling for the phone, you swung the socket wrench towards the victim.  You then punched the victim to his head multiple times. 

11The bus driver heard the victim shouting for help.  He turned and saw you pushing the victim and trying to pull the phone away from him.  Three or four times the driver yelled out to you, “Please stop!”

12During the struggle, the victim’s phone fell to the floor.  The victim managed to kick you away from him and out of the open door of the bus.  In the process you dropped the socket wrench in the doorway of the bus. 

13The victim retrieved his phone from the floor, ran to the front of the bus and asked the driver to close the bus doors.  You attempted to re-enter the bus and yelled something towards the victim and the driver.  The driver yelled back at you, following which you again exited the bus.  The driver then shut the bus doors. 

14The driver called triple zero to report the matter.  He located the socket wrench on the floor of the bus, wrapped it in a paper towel and gave it to the victim, before driving the victim to the victim’s home address. 

Related Summary Offence

15At the time of committing the attempted armed robbery, you were on bail, which had been granted by the Magistrates’ Court at Melbourne on 26 September 2020, less than a month before you committed this offence.

16As your prior criminal history shows, this is not the first time you have committed offences whilst on bail.

Investigation, arrest and interview

17Police attended the victim’s home in response to a triple zero call made by the driver.  The victim gave the socket wrench to police and made a formal statement.   

18Police processed the bus and obtained a description of the offender from both the victim and the driver.  Police also obtained a copy of the CCTV footage of the offending, in which you were clearly visible.  The description of the offender’s clothing and features matched a description of you as obtained from Protective Service Officers (PSOs) following an interaction they had had with you earlier in the evening.  That interaction was captured on Body Worn Camera footage. 

19On 28 October 2020, police attended an address in Cheltenham, where you were arrested, cautioned and informed of your rights.  During this process, you were verbally aggressive towards the police. 

20You were taken to the Moorabbin Police Station, where you participated in a recorded interview with police.  During the course of the interview:

(a)   When asked about the incident, you told police:

“I got on a bus and … someone, he’s an Asian - Middle Eastern or Asian, I can’t remember.  I asked him, ‘Could I please make a phone call?’  The guy overreacted, he’s like, ‘Youse black c###s’ – ‘Youse black people rob people,’ and that’s when I got angry at him. Actually, yeah, ‘cause the - the way he spoke that’s just why … I was like, ‘No, I’m gunna rob this person’, in my head.

And I just gave – [he] bashed the hell out of me and he kicked me.

…

Kicked him back, he defended himself and then after that I got out of the bus and … went away.”[1]

[1]Answers 27-29

(b)   You repeated that you had asked the victim if you could use his phone, telling police:

“And then he overreacted, he’s like ‘Youse African rob people and stuff,’ and that’s when I overreacted too ‘cause you can’t - you’re crossing the line if you’re gunna say Africans and - you know. ...  you’re gunna use everyone as a bad influence and that’s when I overreacted and punched him in the face - - -

…

- - - gave him a few bashes and then we fought for a bit and then he kicked me in the face …  

…

… I hit him and punched him … 

… I punched him in his head …

I’m a good fighter ...  

… I’m a fighter.  That’s probably I cleaned him out or that’s probably why I bashed him.

… that’s what happens sometimes.

…

…  I just went violent on him and gave him, like, four or five jabs and kicked him.  … .”[2]

[2]Answers 34-35; 47; 64-65; 86-87; 90

(c)   You told police that you been arrested by PSOs earlier on the evening of the offending;[3]

[3]Answers 48-49

(d)   You admitted that you “maybe” tried to snatch the phone from the victim, and that you did so because the victim “got smart”;[4]

[4]Answers 82-86

(e)   You told police “nothing got took off him so it’s just attempt robbery”;[5]

[5]Answer 84

(f)    You told police that you had been staying at a friend’s house for five days as you thought “the streets are hot.  I didn’t want to get busted.”[6]

[6]        Answer 91

(g)   You provided a version to police that was inconsistent with both the victim’s version and with the CCTV footage.  In your false account to police you claimed that you had asked the victim if you could use his phone, to which the victim responded “youse Africans rob people” and then “[he] bashed the hell out of me”;[7]  

(h)   When shown photographs taken from the CCTV footage of the offending, you denied that the person in the CCTV footage was you and you also denied being armed with a socket wrench;[8] 

(i)    You later admitted to having a socket wrench and a pair of scissors in your possession;[9] and

(j)    When offered the opportunity to explain your conduct, you told police:

“I just … on drugs … don’t know nothin’…

… I said I was in the influence of narcotics --- anything could happen …  It’s methamphetamine …

I had it the whole night, then in the morning, the daytime, I had a few times, yeah.  I was at the --- for sure.  Nothing makes me wild ---

…  

I was under the influence of methamphetamine crystallised.”[10]

[7]Answers 27-29; 34-41

[8]Answers 108-122

[9]Answers 156-158

[10]Answers 164-170

Gravity of the offence

21The crime of attempted armed robbery is particularly serious.  It is a prevalent offence.  The inherent gravity of the offence is reflected in the maximum applicable penalty of 20 years’ imprisonment.  In your case, the crime was committed against a “soft target,” a man sitting on his own in an empty bus late at night who was distracted when using his mobile phone.

22In R v Swingler,[11] Buchanan JA, with whom the other members of the Court of Appeal agreed, observed:

“11.  The crime of armed robbery perpetrated against defenceless, isolated persons late at night is serious and calls for condign punishment in order to deter others.  The seriousness of the offence in the eyes of Parliament is marked by the maximum sentence prescribed for it. In R v Orlikowski, Winneke, P., speaking of the attempted armed robbery of a service station by a youth wielding a knife, said:

‘One has to be careful, I think, in entertaining applications against sentences of this sort, not to allow too readily the personal circumstances of the offender to mask the features of this crime which required the sentencing judge to properly regard principles of general and specific deterrence as important features in the exercise of the sentencing discretion.  The crime is one which is perpetrated upon usually defenceless members of the community whilst those persons are going about their business, often in circumstances of isolation.  The crime is one which instils terror into its victims … .’

… .”[12]

[11][2001] VSCA 26

[12]ibid at paragraph [11], (citations omitted)

23In DPP v Doherty,[13] O’Bryan AJA observed:

“41.…  Armed robbery is a prevalent crime in the community and courts have a considerable responsibility to send a clear message to the public that an armed robbery, whether committed on a ‘soft’ target or a ‘substantial’ target such as a bank or place where cash money is likely to be found, is likely to be visited with a stern and fitting custodial sentence.  … .”[14]

[13][2002] VSCA 213

[14]Ibid at paragraph [41]

24In R v Kittikhoun,[15] Chernov JA, with whom the other members of the Court of Appeal agreed, stated:

“15.… as this Court has said in the context of other cases where armed robberies have been perpetrated against soft targets, ‘because of the prevalence and the seriousness of offences of this nature … the mitigating and other personal circumstances of the offender must, to a degree, give way to the primary purpose of punishment of such offences, namely, deterrence’.  As Buchanan J.A. (with whom Callaway, J.A. and Coldrey, A.J.A. agreed) observed in  R v Swingler, ‘the crime of armed robbery perpetrated against defenceless, isolated persons late at night is a serious offence and calls for condign punishment in order to deter others’.  … .”[16]

[15][2004] VSCA 194

[16]Ibid at paragraph [15] (citations omitted)

25These principles are equally applicable to cases of attempted armed robbery.

26The authorities show that in sentencing for the crime of attempted armed robbery, principles of deterrence, both general and specific, just punishment, denunciation and condemnation, and protection of the community are very significant sentencing factors. 

Aggravating circumstances

27At the time of committing the armed robbery, you were on bail.  You will be sentenced for that crime, which is the related summary charge. 

28You were also bound by the terms of an 18-month Community Correction Order requiring you to be of good behaviour during the period that the Order was in force.  That Order was first made on 18 September 2019 in conjunction with an aggregate term of 30 days’ imprisonment.  The conditions attached to that Order included a requirement that you participate in assessment and treatment for drug abuse or dependency as directed.  You breached that Order by committing further offences and were called upon to answer for that breach.  On 12 February 2020, in the Neighbourhood Justice Centre Magistrates’ Court at Collingwood, the breach of the Order was found proved, and the original 18-month Community Correction Order imposed on 18 September 2019 was confirmed.

Effect of your offending on the victim

29The victim has been offered but declined the opportunity to make a Victim Impact Statement.  Even so, as the CCTV footage shows, it must have been a terrifying experience for him.  Photographs taken of the victim show that he sustained bruising to his face.  Fortunately, as the Prosecution has conceded, he has not suffered any long-term or serious physical injury.[17]

[17]Exhibit B, Outline of Prosecution Submissions on Sentence, paragraphs 10-11

Plea in mitigation of penalty

30Your counsel, Mr Pearson, conceded the gravity of your offending and that the only appropriate response to it is to sentence you to a term of imprisonment of such duration that will require fixing a non-parole period.[18]  That said, Mr Pearson identified a number of factors that he urged me to take into account in mitigation of penalty.  I now turn to those factors.

[18]Exhibit 1, Outline of Submissions for Plea, paragraph 15. By implication, by virtue of s11 of the Sentencing Act 1991, the head sentence would need to be two years or more for there to be a mandatory fixing of a parole period; however, a non-parole period may be fixed for a sentence of imprisonment under two years provided that period is at least six months less than the term of the sentence.

Personal history

31Your personal history is well set out in a report dated 5 July 2021 prepared by
Mr Guy Coffey, clinical psychologist, tendered as Exhibit 2.

32Mr Coffey interviewed you on some five occasions.  He cross-checked information that you provided to verify its accuracy.  He also spoke with your mother.  He noted that there were some inconsistencies in the account you gave him of your personal history; however, given the trauma you have experienced and the addiction problems you have suffered, it is understandable that your memory of events is not perfect. 

33You are now 28 years of age.  At the time of offending you were aged 27 years.

34You were born in Sudan.  You were the second born of six children in your family.  When you were nine months’ old, your mother took you and your elder sister to seek refuge in Kenya due to the civil war.  Your father, who was a senior soldier in the South Sudanese Army, remained in Sudan.  Your mother and you, together with your sister, lived in a refugee camp in north-west Kenya.  Your father visited the family from time to time.  Three of your four younger siblings were born in the refugee camp.

35Living conditions at the camp were rudimentary and your family lived in a mud and grass hut with two rooms and an earth floor.  You had little by way of clothing and food was not plentiful.  In your early childhood, you were underweight and often felt hungry.

36You attended primary school at the refugee camp for approximately four years.  Classes were conducted in Swahili but English was also taught there.

37There were ethnic tensions in the camp and you witnessed episodes of violence during which people were killed.  The clashes were often quelled by the Kenyan military.  You told Mr Coffey that local Kenyans often attacked the refugees.

38By 2001, you had spent some nine years in the refugee camp.  With your family you moved to Nairobi where you were joined by your father who had a position for a period with the South Sudanese Embassy there.  You attended Grades 5 and 6 at a private school in Nairobi.  You lived in a relatively secure environment.  You enjoyed school, and you played soccer in the school team.

39Your family had applied for resettlement in Australia and you, your mother and your siblings were granted visas under the Refugee and Humanitarian Program.  You arrived in Australia on 2 January 2004.  Your father returned to South Sudan.

40You attended a local primary school for Year 6, where you learned English quickly and made some good friends.  Your mother states that you were restless and having difficulty concentrating so she sought medical assistance for you.  It appears that you were diagnosed with an Adjustment Disorder at this time.  In 2006, when you were in Year 7 and were aged 13 years, you were hit by a car while on the way to school.  Your tibia was broken in multiple places and you were hospitalised and underwent surgery four times.

41In 2008, you were expelled from school after a fight with a fellow student.

42Thereafter you received little by way of further secondary education.  Your mother reported attempts to have you engage in various programs but you rarely attended them. 

43For a short period you worked at a fast food restaurant, but after leaving that job, you did not seek further employment.  You continued to live with your mother but your life became directionless.  You would spend your days playing video games and meeting with other youths with whom you went to public gardens, skate parks and shopping centres.

44By the age of 12 years you had begun drinking alcohol on weekends.  After you left school, you drank heavily.  You also began smoking cannabis daily.

45At the age of 17 years, you moved out of your family home for a period.  It was decided that you would benefit from living with your father who had remained in South Sudan.  You returned to South Sudan, where you enrolled in a military college.  You trained in all elements of military service.  For a period you ceased your alcohol and cannabis use and you benefited from the discipline the college imposed.

46As a result of your training, you were promoted from private to captain, placing you in a position of responsibility.  You engaged in military operations and in combat.

47During your military service you were engaged in one significant episode of combat in 2012 which lasted for three months.  After that deployment, you passed the rest of your military service in a security operation where you witnessed the death of many fellow soldiers.

48In 2014, you were hospitalised in a military psychiatric facility.  You had become depressed, were drinking heavily, and were preoccupied by your experiences during the warfare in 2012.  You had become irascible and were easily angered.  You were experiencing auditory hallucinations involving people commenting in a derogatory way about you.  You spent three weeks in hospital, received psychotropic medication and you were diagnosed with Post-Traumatic Stress Disorder.  You then returned to your security duties.  For a while your psychological health improved, however over the following years, your mental state deteriorated and you began drinking heavily again.

49In 2017, when aged 24 years, your commanders told you that you needed a break.  Your father and you decided that you should return to Australia with a view to returning to South Sudan and resuming your military career once your mental health had improved.

50You arrived in Australia in April 2017 and lived with your mother and siblings in the family home in Cheltenham.  According to your mother, you arrived back in Australia in a psychologically debilitated state and you often seemed confused.

51You drank heavily each day, usually with friends who also regularly drank to the point of intoxication.  You had no structure to your day.  You found some part-time employment washing cars but left that job after only three months.  You have been unemployed ever since.

52You reported to Mr Coffey that in an inebriated state you would become angry and abusive toward your mother, particularly when she refused to give you money to buy alcohol.  You said that at this time in your life, you were experiencing post-traumatic symptoms, were labile and angry.  You reported that when intoxicated in public you would feel others were looking at you in a belittling way and you would become physically aggressive in response.  Sometimes you would fight and get injured.  In 2019, you were cut to the face with a knife and required 41 stitches.

53While in custody in July 2018, you were diagnosed with an episode of psychotic illness.  You were commenced on antipsychotic medication.

54While in the community in 2018 and 2019, you attended the Monash Medical Centre and received antipsychotic medication.  You also received a few months of counselling for your alcohol and cannabis use and for your problems with anger.

55In 2019, following charges of theft, property offences and threats to kill, you spent some months in prison and upon your release, you were placed on an 18-month Community Correction Order.

56Upon a return to custody in November 2019, you were agitated and spoke about “killing white people” and you were preoccupied with persecutory ideas centred on being mistreated by police.

57You reported to Mr Coffey that the treatment you received in the community was supportive but it did not cause you to reduce your drinking or cannabis use.

58During 2018 and 2019, you kept the company of friends who abused substances.

59In February 2020, you were charged with various offences which you had committed in the context of being intoxicated and demanding money from your mother.  You told Mr Coffey that not having any money and craving alcohol were often the cause of your aggression towards your family.  You spent four months in prison between February and June 2020.  Mental health assessments during this period of custody note a history of psychotic symptoms, but the problems then were primarily related to Post-Traumatic Stress Disorder, Depression and alcohol abuse.

60After your release from custody in June 2020, you lived in the community for five months until you were arrested on 28 October 2020 for the current charges.

61In the period leading up to the commission of the armed robbery, you either lived with friends or slept outside in public places.  You relied on charities for food.  You told Mr Coffey that you were drinking approximately five litres of cask wine each day and that you were smoking about seven grams of cannabis.  You usually drank with friends in parks in Collingwood and Fitzroy.  You said every week you and your associates were involved in fights with other people who were drinking in the parks.  You said, when intoxicated, you are not normally aggressive but would become quickly angry if you felt someone was denigrating or threatening you.  You denied that during this period you were ever significantly depressed.  You also said that you were not experiencing any hallucinations and usually did not hold paranoid beliefs about being watched or followed.

62You described to Mr Coffey what a typical day was in the month prior to your offending.  You said that you would wake at about 8.00am, have breakfast and then would often go to a liquor store.  You would spend up to five hours in a park drinking with friends.  You would not eat lunch.  At times you would pass out in an intoxicated state.  Sometimes there were fights between different groups.  You might also spend time at friends’ houses before returning home for your evening meal.

63In the week prior to committing the present charges, you stayed in houses in Footscray.  During the day you drank in a park near Footscray station.  You told
Mr Coffey that you drank up to 10 litres of cask wine a day.

64With regard to the day of offending, you told Mr Coffey that you arrived at the park at 9.00am and spent the whole day there.  You said the day passed uneventfully.  You spent the day chatting and listening to music played on an iPhone.  You were not feeling irritated or distressed.  You denied experiencing any abnormal phenomena, you were not hallucinating, nor did you feel unsafe or threatened.  You were not preoccupied by any paranoid ideas.  You told Mr Coffey that you may have consumed up to 10 litres of wine over the course of about 11 hours and that you smoked about 7 grams of cannabis.  You denied taking any other substance, although I note that this is contrary to what you told police.  With regard to your state of inebriation, you told Mr Coffey that you were slurring your words and felt a bit drowsy but were not staggering.  You said you intended to visit your mother that evening because you wanted a break from the life you were leading.  You said you left the park before 9.00pm with a view to travelling by public transport to your mother’s place.

65Otherwise, you gave Mr Coffey a version of the attempted armed robbery charge that is contrary to the agreed facts.  Significantly, you denied experiencing any abnormal perception or ideation at the time of offending.  Specifically, you denied any auditory hallucinations or abnormal ideas about the victim.

Guilty plea

66As mentioned, you pleaded guilty to the charges.

67A guilty plea, no matter why or when entered, must almost always attract a sentencing discount.  In your case, I note that you entered your plea of guilty at an early stage, prior to a contested committal hearing.

68No witness has ever been required to give evidence against you.  Importantly, the victim has been spared the ordeal of giving evidence. 

69In determining the weight to be given to your plea of guilty, I take into account the following factors:

(a)   the timing of your plea;

(b)   you are entitled to a statutory discount because of your plea;

(c)   although attempting to blame the victim for your conduct and minimise your culpability, you nevertheless made significant admissions.  That said, the case against you was overwhelming as your crime was captured on CCTV footage;

(d)   you have avoided the cost and inconvenience of a trial.  You have spared witnesses the inconvenience and ordeal of giving evidence, both at committal and at trial; and

(e)   there is enormous social utility involved in your guilty plea and by taking this course, I accept that you have facilitated the course of justice.

70I note that your counsel does not suggest that your guilty plea is indicative of any remorse on your part.  Indeed, more generally, he does not contend that you are remorseful.  I note that in his report, Mr Coffey observed:

“[Mr Choul] demonstrated limited empathy for the victim, blaming him for provoking him in the context of an account of the offending which misrepresented what occurred.  His remorse is at best inchoate.  … .”[19]

[19]Exhibit 2 at paragraph 107

71I hasten to add that the absence of remorse does not count as an aggravating factor.  Rather, it is a factor that cannot be counted in your favour in mitigation of penalty generally, and in particular, it cannot lend weight to the significance of your guilty plea.

72Dealing with the question of the social utility inherent in your guilty plea, the Prosecution accepts that this factor weighs heavily in your favour because of the world-wide pandemic of COVID-19.[20] 

[20]Exhibit B, Outline of Prosecution Submissions on Sentence, paragraphs 35-36

73In the recent case of Worboyes v R,[21] the Court of Appeal emphasised the need to give more than mere lip service to the sentencing discount to be applied for a guilty plea in the current climate.

[21][2021] VSCA 169

74As Their Honours stated:

“34. It may thus be concluded that, … the preponderance of authority contemplates that mitigation of punishment should flow from a plea of guilty based solely on the utilitarian benefits of the plea.  Hence, appellate courts have recognised the public interest in facilitating pleas of guilty so as to conserve courts’ trial processes, and so as to alleviate the congestion in criminal courts that delay in the hearing of contested trials creates.

35. As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested.  Unacceptable delay in the disposition of criminal cases is endemic.  Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts.  We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice.  Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead.  Such encouragement must come from an actual and palpable amelioration of sentence.

36. There are, it must be recognised, real disincentives in the current climate for accused persons who are on bail to plead guilty, particularly if a sentence of imprisonment is on the cards.  As the judge observed in the present case, a newly-sentenced prisoner in times of the pandemic will spend the first two weeks of his or her sentence in isolation. Thereafter, he or she will have very restricted opportunities for contact with family and friends. Further, rehabilitative and other programs within prisons are severely curtailed.  That this is so is notorious. These circumstances must render the prospect of imprisonment even more unpalatable than is usually the case, and operate as a further deterrent to the entry of a guilty plea.  These disincentives to pleading guilty must be balanced by a proper inducement, through mitigation of sentence, to accept guilt.

37. Self-evidently, the other side of the coin is that there are real incentives for the cynical and unprincipled to exploit the delays resulting from the pandemic.  The longer the delay, the more the memory (and enthusiasm) of witnesses dims, and the preparedness of victims to actively and willingly participate is tested, with associated forensic disadvantages to the prosecution.  In ordinary times with ordinary delays, the lot of victims and witnesses already is not a happy one.  The longer the delays, the more pronounced their plight.

38. Further, and significantly, criminal jury trials in times of the pandemic are far more resource-depleting than in times where the threat of serious infection is not present.  One of the aspirations of encouraging utilitarian pleas of guilty must be that scant resources, upon which there is great demand, will be to an extent freed up.

39. For these reasons, we consider that — all other things being equal — a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects.  A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time.  Although a sentencing judge need not quantify the extent of any ‘discount’, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.”[22]

[22]Ibid at paragraphs [34]-[39] (citations omitted)

75Balancing all of these factors, your absence of remorse notwithstanding, I consider that significant weight must be given to your guilty plea.

Psychological considerations

76In his lengthy and detailed report dated 5 July 2021,[23] Mr Coffey painted a sorry picture of your mental decline and its contributory causes.  In that report, Mr Coffey noted your various periods of mental deterioration and the treatment you received whilst on remand.  Mr Coffey reported:

“[47]Mr Choul’s mental state has fluctuated markedly during his remand and treating clinicians have had differing views on how to characterise his condition.  His initial assessment at the Melbourne Remand Centre (‘MAP’) noted him to be ‘tangential, loud and disorganised’ and appeared psychotic[24].  A psychiatric assessment on 11 November 2020 found no psychotic symptoms present and concluded that his diagnosis remained unclear[25] and a further assessment on 16 November found that ‘objectively he does not present with any positive or negative symptoms of psychosis’[26].  He was receiving anti-psychotic medication at this time but did not adhere to treatment; on 30 December 2020 his medication was ceased due to non-adherence and it was noted that despite the lack of pharmacotherapy his mental state had not deteriorated[27].  However in mid-January 2021 he was found to be agitated and aggressive and reported hearing voices telling him to kill others[28].  He was recommenced on an anti-psychotic[29].  His condition continued to fluctuate; in February 2021 he denied any psychotic experiences and his mood was euthymic but was noted to have spat at staff when angry with them[30].  In March 2021 he described nightmares and flashbacks to past trauma[31], and stated that he has a ‘devil’ in him that makes him aggressive; the clinical opinion was that he was not psychotic and the presentation might be explicable in terms of a personality disorder[32].  In April 2021 he reported hearing voices telling him to harm others[33] and experienced panic attacks[34].  In early June 2021 he was not depressed, his nightmares and flashbacks were reduced in frequency and there were no psychotic symptoms; he was receiving anti-psychotic medication[35]. 

[48]Mr Choul said he initially spent about three weeks at MAP, a month at the Metropolitan Remand Centre and the rest of his remand at Port Phillip Prison. Mr Choul told me that he has spent all but about a month of his remand in a management unit during which he has usually been confined to his cell for 22 hours a day.  Upon being remanded he was placed in quarantine for a fortnight which was soon followed by a month in the management unit due to conflict with prison staff and then, in January 2021, an incident caused him to remain in isolation until the present.  He said the latter incident involved him hitting prison staff after an argument over him receiving the wrong food.  He said that he felt intensely angry that the mistake was not corrected and he began to throw punches.  He said at the time he was feeling frustrated because he hadn’t been able to contact his family.”[36] 

[23]        Exhibit 2

[24]        Justice Health [file], 31 October 2020. 

[25]        Justice Health file, 11 November 2020

[26]        Justice Health file, 16 November 2020

[27]        Justice Health file, 30 December 2020

[28]        Justice Health file, 15,16 January 2021

[29]        Justice Health file, 9 February 2021 

[30]        Justice Health file, 24, 26, 27 February 2021

[31]        Justice Health file, 10 March 2021

[32]        Justice Health file, 17 March 2021

[33]        Justice Health file, 14 April 2021.

[34]        Justice Health file, 25 and 28 April 2021

[35]        Justice Health file, 2 June 2021

[36]Exhibit 2, paragraphs 47-48

77I note that Mr Coffey’s observations are consistent with the sentence/remand report tendered on your behalf.[37]

[37]Exhibit 6

78With regard to your mental state at the time of your various interviews with him, Mr Coffey reported:

“[96]I preface my conclusions by noting that in consequence of inconsistencies in Mr Choul’s account of his personal history across various assessments[38] - including information pertaining to his military service, the extent of his substance use and his treatment attendance – combined with a lack of collateral information, I have been circumspect when I have based an opinion on that history. 

[38]I refer to the assessments by Miriam Latif [psychologist], Dr Nick Owens [psychiatrist], my own assessment and the police interview of 28 October 2020

[97] There has been some uncertainty about Mr Choul’s diagnoses among treating clinicians.  There is no doubt that he has severe addictions to alcohol and cannabis.  When I assessed him he did not have psychotic symptoms of a frequency and intensity which would permit a diagnosis of a specific psychotic disorder, such as schizophrenia. When assessed there were no delusions, ideas of reference, formal thought disorder, incongruent affect or bizarre behaviour. He was experiencing brief periods of auditory hallucinations but their phenomenological status was unclear; sometimes his descriptions were suggestive of auditory thoughts rather than external hallucinations. 

[98]However, considered longitudinally, there is evidence that at times over the past three years Mr Choul has experienced positive symptoms of psychosis including prominent auditory hallucinations and persecutory delusions.  Their genesis is uncertain: they may have arisen in response to substance abuse and stress or may indicate an underlying psychotic disorder. It is possible that the absence of more prominent psychotic symptoms at present is due to the anti-psychotic medication he is receiving.  In my opinion Mr Choul suffers from at least a strong predisposition to developing psychotic symptoms in response to substance abuse or stress and he may have an underlying psychotic disorder which fluctuates in intensity.  Close longitudinal assessment should clarify this question. 

[99]When I assessed him Mr Choul was not experiencing frequent reexperiencing of traumatic events, posttraumatic nightmares, or avoidance of reminders of previous traumas. He therefore did not meet the full criteria for Posttraumatic Stress Disorder.  He apparently did experience PTSD in the years following his military service in South Sudan and over the years the symptoms have gradually attenuated.  However, as is not uncommon in chronic posttraumatic conditions, Mr Choul has continued to experience a heightened perception of threat in his daily life and emotional dysregulation - particularly in relation to the ease with which he is provoked to intense anger.  In my opinion these features of his psychological functioning are likely to be the long term sequalae of his military service which built upon the effects of the violence he was exposed to in early childhood while living in a refugee camp. 

[100] In the months prior to the offending Mr Choul’s life had become disorganized and dissolute.  He was itinerant and was spending most of his days in parks consuming large qualities of alcohol and cannabis. 

[101] At the time of the offending he was heavily intoxicated with alcohol and cannabis.  His judgment was impaired as a consequence; he was likely to have been less heedful of the consequences of his actions and disinhibited due to his intoxication. 

[102] It is less certain that a psychotic condition or posttraumatic symptoms played a role in the offending.  Mr Choul denies he was hallucinating at the time or that he had any abnormal ideas about the victim.  I don’t believe his actions were directly affected by psychotic phenomena. 

[103] At the time of the offending Mr Choul was likely to have been suffering from the posttraumatic symptoms I have described – a heightened perception of threat and emotional dysregulation. It is probable these symptoms played a role in offending which has occurred in the context of interpersonal conflict.  However the evidence of the prosecution summary (and contrary to Mr Choul’s account) is that there was no conflict or threat preceding the offending that might have provoked Mr Choul to anger.  I do not believe Mr Choul’s posttraumatic symptoms played a direct role in the offending. 

[104] However I believe that Mr Choul’s mental disorders played a contextual, non-specific role in the offending. His fluctuating psychotic condition and post-traumatic symptoms are likely to have contributed to the disorganization of his daily life, poor decision making and ongoing resort to alcohol and cannabis in order to attempt to regulate his emotional state.  In support of this conclusion is the evidence that he was not adhering to his pharmacological treatment in the weeks prior to the offending[39]. 

[105] Custody has benefited Mr Choul in two ways: he has received regular psychiatric assessments and pharmacological treatment which apparently did not occur in the community, and he has not been able to abuse alcohol and cannabis during his remand.  His psychological well-being has improved as a consequence. 

[106] However to this point many of the usual benefits of custody have not been available to Mr Choul. His extended seclusion regime has made involvement in courses, work and regular exercise inaccessible to him.  Mr Choul informed me that he has been locked in his cell for 22 hours a day for all but a month of his eight months of remand. He also told me he does not know when these arrangements will end. In my opinion at various times during his custody, the extended seclusion Mr Choul has experienced - with its social isolation, diminished sensory stimulation and absence of daily structure - has caused Mr Choul’s mental state to deteriorate. Prisoners suffering from posttraumatic symptoms and psychotic conditions are likely to fare less well in custody than comparatively psychologically well prisoners. I believe Mr Choul will find a term of imprisonment moderately more onerous due to his mental disorders and additionally difficult in the event that he continues to be held in seclusion.”[40] 

[39]         See footnote 9 [footnote 25 in this judgment]

[40]Exhibit 2, paragraphs 96-106

79Your Counsel, Mr Pearson, and the learned Prosecutor, Ms Fargher, agree that on the available evidence, there is no direct nexus between any psychological condition and the commission of the attempted armed robbery so as to reduce your moral culpability.  They do, however, agree that as a result of your fluctuating mental health problems as described by Mr Coffey, a period of imprisonment would be more onerous for you than it would be for any other prisoner not so afflicted.[41]  With respect, I also agree.

[41]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269 at paragraph [32], “principle 5”

Prior convictions and court appearances

80You have admitted to a criminal history dating back to 19 January 2018 when you faced the Magistrates’ Court at Melbourne on charges of criminal damage, commit an indictable offence whilst on bail, make threat to kill, theft from a shop, unlawful assault, fail to answer bail, possess controlled weapon without lawful excuse, and behave in an offensive manner in a public place.  On that occasion, without conviction, you were released on a Community Correction Order for a period of
12 months containing assessment, treatment and rehabilitation conditions designed to help you overcome your alcohol abuse or dependency.

81On 29 January 2018, in the Frankston Magistrates’ Court, you were convicted and sentenced to two days’ imprisonment in respect of a charge of contravening a conduct condition of bail.

82On 3 February 2018, in the Weekend Court at Melbourne Magistrates’ Court, you were sentenced to an aggregate term of imprisonment of three months in respect of a charge of committing an indictable offence whilst on bail, a charge of attempted theft of a bicycle, two charges of theft, two charges of unlawful assault, a charge of dealing with property suspected of being the proceeds of crime, and a charge of using threatening language on railway premises.

83On 19 April 2018, in the Magistrates’ Court at Sunshine, a breach of the Community Correction Order imposed on 19 January 2018 was found proved.  The Order was cancelled.  You were convicted and resentenced to an aggregate term of four months’ imprisonment in respect of the charges that were originally the subject of the Community Correction Order.

84On 27 April 2018, in the Magistrates’ Court at Melbourne, you appeared on a charge of intentionally damaging property.  Without conviction, the matter was adjourned to 26 October 2018.

85On 18 September 2019, in the Magistrates’ Court at Moorabbin, you were convicted and sentenced to an aggregate period of 30 days’ imprisonment on charges of criminal damage, acting disruptively whilst in custody, making a threat to damage property, making a threat to kill and committing an indictable offence whilst on bail.  The record of that disposition notes custody management issues because you might then have been at risk due to withdrawal from drug addiction, a psychiatric illness and/or your intellectual disability.  The record also notes “HAS DEPRESSION.  IS MEDICATED FOR IT.  TO BE SEEN BY A PSYCHIATRIC NURSE.  PLEASE SEE ATTACHED FORENSICARE REPORT.”  On that occasion, an 18-month Community Correction Order was also imposed, again containing conditions directed at your assessment, treatment and rehabilitation.

86On 1 November 2019, in the Bail and Remand Court, you were convicted and fined an aggregate amount of $500 in respect of charges of theft of a bicycle, commit indictable offence whilst on bail, dealing with property suspected of being the proceeds of crime and carrying a controlled weapon without lawful excuse.

87On 12 February 2020, in the Neighbourhood Justice Centre Magistrates’ Court at Collingwood, a charge of breaching the Community Correction Order imposed on
18 September 2019 was found proved.  The original Order was confirmed without further penalty.

88On 19 February 2020, in the Bail and Remand Court, you appeared on charges of theft from a shop and commit indictable offence whilst on bail.  Without conviction, the matter was adjourned to 19 August 2020.

89Your criminal record shows that you have been given many opportunities to reform, but you have not made the best of those opportunities.  None of these sentences has inspired you sufficiently to adhere to treatment plans.  Nor has any sentence deterred you from committing further offences.

90In all the circumstances, specific deterrence must form an element of the sentence to be imposed today.

Prospects of rehabilitation

91Mr Coffey opined:

“[107]I have described at [53]-[59] Mr Choul’s response to the offending which may be relevant to remorse and rehabilitation. He acknowledged his substance use affected his judgment at the time. He demonstrated limited empathy for the victim, blaming him for provoking him in the context of an account of the offending which misrepresented what occurred.  His remorse is at best inchoate. However he said he was committed to turning his life around and avoiding recidivism by engaging in treatment for his addictions and his mental disorders. 

[108]In my opinion Mr Choul is likely to continue to demonstrate the same pattern of offending upon his release into the community unless he receives a comprehensive program of treatment and rehabilitation. 

[109]A program of treatment and rehabilitation which is capable of making relapse into alcohol and drug use and recidivism unlikely would need to be comprehensive and protracted.  It would need to contain the following elements: 

-measures to promote engagement and motivation to participate in the program; 

-monitoring of progress, case management and close supervision;

-specialized alcohol and drug service programs involving psychological, pharmacological and residential components;

-psychological and psychiatric treatment for a psychotic condition and the long term sequalae of developmental and war related trauma;

-offence specific psychological interventions directed in particular at victim empathy and conflict resolution;

-neuropsychological assessment to identify learning disability and whether chronic alcohol abuse has resulted in cognitive impairment;

-vocational training adapted to his needs and capacity.

[110]Such a program of rehabilitation should last for as long as is required for Mr Choul to demonstrate abstinence for at least eighteen months.  The program should be able to be rapidly re-deployed at the first sign of relapse.”[42] 

[42]Exhibit 2, paragraphs 107-110

92Taking account of this evidence, it is clear that at present, your path to rehabilitation will be dependent upon your acceptance of unqualified responsibility for your offending and of the factors that contribute to it.  Moreover, unless you fully commit to treatment, your prospects of leading a law abiding life will not improve.

Pre-sentence detention not applicable to these offences

93Mr Pearson submitted that you have spent time in custody that has never been reckoned and declared as a period of detention already served under previous sentences imposed.  He submitted that under principles of totality, I should take account of those undeclared days.

94Ms Fargher agreed that you have spent considerable time in custody, only a fraction of which can be declared under s18 of the Sentencing Act 1991 as pre-sentence detention referrable to the present charges. She noted that as at the date of the plea hearing on 9 July 2021, you had spent a total of 86 days by way of declarable pre-sentence detention, however, you have been in custody since the date of your arrest on 28 October 2020, some 254 days.

95It is common ground that at the time of your arrest, you had a number of outstanding matters pending before the Magistrates’ Court.  These were dealt with by way of consolidation in the Magistrates’ Court at Melbourne on 15 April 2021.  As mentioned, on that occasion, you were sentenced to an aggregate term of 230 days’ imprisonment, together with an 18-month Community Correction Order.  The 230 days you had spent in custody were declared as time already served under that sentence.

96Ms Fargher also noted that prior to your arrest on the present charges, you had spent some time on remand, not all of which was declared as pre-sentence detention under the Order made in the Magistrates' Court on 15 April 2021.  Some 146 days remain unaccounted for as part of any sentence already served. 
Ms Fargher calculated the undeclared days as follows:

·        You were arrested and remanded on 28 October 2020.  Between that date and the date of the plea hearing, you had spent 254 days in custody;

·        On 15 April 2021, you were sentenced in the Magistrates’ Court to serve 230 days’ imprisonment, with a declaration that you had already served that period by way of pre-sentence detention;

·        Accordingly, as at the date of the plea hearing for this matter, the time between 15 April 2021 and 9 July 2021 equates to 86 days of pre-sentence detention referable to the present charges;

·        Prior to your remand in respect of these offences, you had spent 208 days in custody in the periods between 4 November 2019 and 12 February 2020 (100 days) and between 24 February 2020 and 11 June 2020 (108 days).  Therefore, you had served 208 days for those matters in respect of which you were sentenced on 15 April 2021;

·        On 15 April 2021, the sum total of all pre-sentence detention you had served was 376 days, of which only 230 days were declared as time already served under the sentence imposed that day, leaving some 146 days of time spent in custody not otherwise accounted for.

97(Discussion ensued regarding the number of days to be declared as pre-sentence detention).

98Ms Fargher concedes that the totality of your time spent in custody must be considered when determining the appropriate sentence.  In this regard, Mr Pearson tendered the summaries relevant to the matters dealt with in the Magistrates’ Court on 15 April 2021.[43]  I note that the offences the subject of those proceedings included charges of robbery, recklessly causing injury, two charges of commit indictable offence whilst on bail, assault emergency worker on duty, theft, obtain property by deception, dishonestly obtain stolen goods, deal with suspected proceeds of crime, two charges of possess a controlled weapon, robbery, affray, make threat to kill, assault with weapon, resist emergency worker on duty, and refuse/fail to state name. 

[43]Exhibits 3, 4 and 5

99I should emphasise here that the offences dealt with in the Magistrates’ Court on 15 April 2021 do not count as prior convictions and do not constitute circumstances aggravating the offences before me.  Nor will this sentence stand as punishing you again for the crimes that were the subject of the sentence imposed on 15 April 2021. 

100In accordance with the principles enunciated in R v Renzella[44] and applying principles of totality, I shall take account of your unaccounted for “dead time” in custody when fixing your overall sentence.

[44][1997] 2 VR 88

Relative youth

101You are now aged 28 years.  At the time of offending you were aged 27 years.  As a child and as a young man, you have seen things that children and young adults should never have to see.  Along the way you have suffered psychotic episodes, you have suffered symptoms of Post-Traumatic Stress Disorder and you have not had the benefit of completing your secondary education. 

102In the eyes of the law, you are now an adult.  Nevertheless, I am entitled to pay regard to your relative youth and immaturity and, if appropriate, moderate your sentence.[45] 

[45]See R v Angelopoulos [2005] VSCA 258 at paragraphs [56] and [66]; R v Mills [1998] 4 VR 235 at 241; Nutter v R (Unreported, VSCA, 8 November 1995) and Better v R [2003] VSCA 71 at paragraphs [5] and [12]

103In R v Mills,[46] Batt JA referred to three important considerations when sentencing youthful offenders:

“(i)    Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.

(ii)    In the case of a youthful offender rehabilitation is usually far more important than general deterrence.  This is because punishment may in fact lead to further offending.  Thus, for example, individualised treatment focusing on rehabilitation is to be preferred.  (Rehabilitation benefits the community as well as the offender.)

(iii) A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is a particular application of the general principle expressed in s. 5(4) of the Sentencing Act 1991.).”[47]

[46]ibid

[47]Ibid at 241

104These principles still have relevance to my task in sentencing you today.

Submissions as to penalty

Prosecution submissions

105In detailed written submissions on behalf of the Prosecution,[48] Ms Fargher conceded that there are a number of factors that must be counted in your favour, including your early guilty plea and the social utility inherent therein in light of COVID-19, your relative youth, your difficult background and the fact that gaol will be more onerous upon you than on any other prisoner not afflicted with the issues that you have. 

[48]Exhibit B

106On the other hand, Ms Fargher submitted that those factors need to be balanced against the need to address principles of general and specific deterrence, and protection of the community from you.  Ms Fargher noted your criminal history and the fact that sentencing dispositions in the past have neither resulted in your overcoming your personal problems such as drug and/or alcohol abuse, nor have they deterred you from committing further offences.

107Ms Fargher submitted that your intoxication should be regarded as an aggravating feature as you were all too well aware that when inebriated, you become physically aggressive, angry and abusive towards your mother and towards members of the public.  Ms Fargher summarised some of the relevant passages of Mr Coffey’s report on this subject: 

“29.The prosecution submits that in this case, the offender’s intoxication is an aggravating feature.  There is a wealth of material indicating that the offender had the requisite degree of foreknowledge about the impact of alcohol on his behaviour, including:

a)While Mr Coffey indicates the offender has provided inconsistent accounts of his personal background,[49] it is clear the offender has a long history of alcohol and drug use. The offender and his mother confirmed that the offender started drinking alcohol at age 12 and began drinking and smoking cannabis on a daily basis from age 16.[50] Upon his return from Sudan in 2017, he was drinking heavily on a daily basis.[51]

b)The offender’s first criminal offending in 2009 coincided with his increased drug and alcohol use.[52]  His later offending for which he was convicted in February 2020, which was committed in breach of a Community Corrections Order, was committed in the context of the offender being intoxicated.[53]

c)The offender told Coffey he became physically aggressive, angry and abusive towards his mother, and towards members of the public generally, when he was inebriated.[54] He acknowledged he was quick to anger when intoxicated.[55]  He also told Coffey that he recognised his craving alcohol was often the cause of aggression towards his family.[56]

d)In the months leading up to the offending, the offender was drinking 5 litres of cask wine a day and smoking 7 grams of cannabis per day.  He and his associates would become inebriated in the park, and fight with other groups of people who were also drinking alcohol in the park.[57]

e)In the week leading up to the offending, the offender was drinking up to 10 litres of cask wine per day.[58]

30.Despite the offender’s awareness that his alcohol use led to anger-related aggressive and criminal conduct, on the day of the offending the offender drank 10 litres of cask wine.[59]  In his report, [Mr] Coffey indicates that the offender acknowledges that intoxication and short temper contributed to his offending behaviour.[60]”[61]

[49]        Report of Guy Coffey, [96] footnote to [22]

[50]        Ibid. [18]; [73]-[75]

[51]        Ibid. [26]

[52]        Ibid. [18]

[53]        Ibid. [33]

[54]        Ibid. [26][27]

[55]        Ibid. [35]

[56]        Ibid. [33]

[57]        Ibid. [35]

[58]        Ibid. [39]

[59]        Ibid. [40]

[60]          Report of Guy Coffey, [54]

[61]Exhibit B, paragraphs 29-30

108Whilst noting your drug and alcohol problems, Mr Pearson did not directly address the question whether your intoxication on this occasion should be regarded as an aggravating feature.  Nor did he submit that your intoxication should be counted as a mitigating feature.

109In my judgment, it is clear that your problem with alcohol is a very long-standing one and it is associated with a difficult personal history.  You told police that at the time of committing the attempted armed robbery, you were affected by crystal methamphetamine.  You told Mr Coffey that you had consumed a vast quantity of alcohol before committing the offence and that you had used cannabis. 

110Attempts to help you overcome your addiction problems in the past have failed.  The reasons why you become aggressive when intoxicated are complex and are bound up with the violence you have witnessed, both while living in a refugee camp, while fighting in the army in the Sudan and in your personal life here in Australia.  You endured many of these experiences as a child or as a young man.  You have suffered from psychotic episodes from time to time and there are features of Post-Traumatic Stress Disorder that have troubled you over the years.

111Mr Coffey notes that without the assistance of an intensive rehabilitation program, you are likely to relapse into further offending.

112In his report, Mr Coffey opined:

“[57]In relation to becoming aggressive when angered, he said the following:  ‘I need to learn how to ignore it…not to overreact … sometimes I just can’t handle what is said to me [when he feels he is being belittled or bullied]…you have to walk away, I think I am learning that’. 

[58]He agreed that he needed help with his anger, his abuse of alcohol, and posttraumatic experiences.  In relation to psychotic experiences he said that he sometimes feels threatened and paranoid and that this is a problem; he said that he doesn’t experience auditory hallucinations when he is not in custody.   He said ‘being locked up doesn’t help, in prison you don’t learn much.  You’ll still be the same person’.  He said he would attend drug and alcohol services including inpatient treatment if required and would receive mental health treatment.  He said he needed new company because most of his friends and associates were abusing substances.”[62]   

[62]Exhibit 2, paragraphs 57-58

113It is true that at the time of offending, you were aware that consuming alcohol and taking illicit drugs could increase the likelihood that you might become, angry, aggressive and physically violent, however it is the very addiction to these substances that has reduced your capacity to control your alcohol and drug intake and in turn your behaviour when intoxicated.  It is clear that without intensive treatment and support, when on your own you cannot simply abstain from abusing alcohol.

114You have now committed to addressing your substance abuse and to participating in programs designed to assist you in this regard.  Whilst you have no doubt claimed a willingness to adhere to such programs in the past, as your record shows, your asserted resolve was insufficient.  As a result of your incarceration, you have now had the benefit of remaining drug and alcohol free for a lengthy period.  I hope that when you are released, you will stick to your aim of overcoming your addictions and of addressing the underlying reasons why you offend.

115In all the circumstances, I regard your intoxication at the time of committing the offence as neither an aggravating nor as a mitigating factor.

Submissions on your behalf

116As mentioned, your Counsel relied on all of the factors to which I have referred, but conceded that a term of imprisonment with a non-parole period must be imposed.

Sentences to be imposed

117I take into account all of the matters personal to you to which I have referred, including your prospects of rehabilitation.  I must also take into account such matters as deterrence, both general and specific, which, as I have said, is of importance in a case such as this.  I am required to take into account the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending.

118I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment. 

119As your Counsel has conceded quite properly, there is no alternative but to impose a term of imprisonment and fix a non-parole period.  With respect, I agree.[63]

[63]I do not, however, consider that I am compelled to fix a head sentence of two years or more

120Although you are still a relatively young man and the Court should not yet write off your prospects of rehabilitation, you have an extensive criminal history including for crimes of violence, dishonesty offences, committing offences whilst on bail and breaching community correction orders set in place with the aim of assisting you to overcome your various psychological, mental health, drug and alcohol issues.  You have failed to make the best of the opportunities offered by the rehabilitative aspects of the sentences imposed upon you in the past. 

121I have no option but to sentence you to a term of imprisonment.  That said, I consider that the aim of achieving your rehabilitation is nevertheless a relevant sentencing purpose in your case given your troubled personal history. 

122In fixing the appropriate terms, I have taken into account the fact that you have spent some 146 days, a period of almost five months, in custody that have not otherwise been declared as time already served under any sentence of imprisonment.

123On the sole charge on the Indictment, namely, attempted armed robbery, you are convicted and sentenced to twelve (12) months’ imprisonment.

124On the related summary charge of commit an indictable offence, namely the attempted armed robbery the subject of the charge on the Indictment, you are convicted and sentenced to six (6) weeks’ imprisonment. 

125On the question of cumulation, I note that s16(3C) of the Sentencing Act 1991 provides:

“Every term of imprisonment imposed on a person for an offence committed while released on bail in relation to any other offence or offences must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.”

126Addressing the issue of whether the presumption of cumulation is in any way displaced, I note that whilst it is an aggravating feature of the crime of attempted armed robbery that you committed whilst on bail, you must not be punished twice for the same crime.  I also take account of the fact that the charges are discrete and involved offending of such gravity that the presumption of cumulation is not wholly displaced.  Even so, I must pay regard to principles of totality and proportionality, and avoid imposing a crushing sentence.

127Balancing these matters, I consider it appropriate to order some period of concurrency.  I therefore direct that one (1) month of the sentence imposed on the related summary charge be served cumulatively upon the sentence imposed on Charge 1 on the Indictment, the base sentence. 

128That results in a total effective sentence of thirteen (13) months’ imprisonment.

129In determining the non-parole period in your case, I am required to take into account the purpose of fixing a non-parole period, which is “to provide for mitigation of punishment in favour of [your] rehabilitation through conditional freedom”.[64]  The fixing of a non-parole period requires discrete consideration of the factors bearing upon the question of when you should be eligible for release.  The relevant factors I am required to take into account are:

“(a)that a non-parole period has a penal element;

(b)that, where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period; and

(c)that the prisoner’s prospects of rehabilitation are almost always a significant consideration.”[65]

[64]        See DPP v Josefski (2005) 13 VR 85 at paragraph [43]

[65]        Ibid at paragraph 43

130I note that under s11 of the Sentencing Act, I am not required to fix a non-parole period given the sentence is under two years; however, I do consider it appropriate to fix a period of parole.

131Taking account of all of these matters, including your prospects of rehabilitation, I direct that you serve a minimum period of 7 (seven) months’ imprisonment before becoming eligible for parole.

Pre-sentence declaration

132Under s18(4) of the Sentencing Act 1991, I declare that the period of 101 days is to be reckoned as a period of imprisonment already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the Court.

Statement under s6AAA Sentencing Act 1991

133I am required to state the sentence and non-parole period, if any, that would have been imposed in respect of the offence but for your plea of guilty. Therefore, pursuant to s6AAA of the Sentencing Act, and taking into account the matters I have previously referred to as relevant to the weight to be given to your guilty plea, I state that but for your guilty plea, the sentences I would have imposed are as follows:

134On the charge of attempted armed robbery on Indictment, you would have been convicted and sentenced to 24 months’ imprisonment, taking account of the almost five months that you have served by way of Renzella[66] pre-sentence detention. 

[66]        R v Renzella (ibid)

135On the related summary charge, you would have been convicted and sentenced to two months’ imprisonment.

136I would have directed that six weeks of the sentence imposed on the related summary charge be served cumulatively upon the sentence imposed on Charge 1 on the Indictment, the base sentence.  That would have resulted in a total effective sentence of 25 months plus two weeks’ imprisonment.

137I would have directed that you serve a minimum of thirteen months before becoming eligible for parole. 

138I direct pursuant to s6AAA, that the sentences that would have been imposed but for the plea of guilty be noted in the Court’s records. I will just take a moment for counsel to double check my calculations. Mr Pearson?

139MR PEARSON:  Yes, Your Honour’s figures add up and there is a six-month period between the head sentence and the minimum term, so I do not see any problems in the sentencing Orders that Your Honour has made.

140HER HONOUR:  Thank you.  Ms Fargher?

141MS FARGHER:  Your Honour, I agree with that.

142HER HONOUR:  Thank you.

Ancillary orders

143The Prosecution seeks a forfeiture order be made in respect of the socket wrench  Mr Pearson, is that order opposed?

144MR PEARSON:  It is not opposed, Your Honour, no.

145HER HONOUR: Very well, I will make the forfeiture order. Upon the conviction of Dhuor Choul on 23 July 2021 of an offence, namely attempt to commit armed robbery, the Court orders, pursuant to s60A of the Summary Offences Act 1966, that the property referred to in the schedule be forfeited to the Minister. That property listed in the schedule is a socket wrench.

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