Director of Public Prosecutions v Chuol

[2021] VCC 444

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01737

DIRECTOR OF PUBLIC PROSECUTIONS

v

PAJOK CHUOL

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	16 April 2021
CASE MAY BE CITED AS:	DPP v CHUOL
MEDIUM NEUTRAL CITATION:	[2021] VCC 444

REASONS FOR SENTENCE

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Subject:

Catchwords:  Armed robbery – Theft – mental health – schizophrenia  

Verdins –  

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms V. Petsinis
For the Accused	Mr G. Cooper

HIS HONOUR:

1Pajok Chuol, you were arraigned and pleaded guilty to a charge of armed robbery and one charge of theft of a motor vehicle.  The first charge carries
25 years' imprisonment as a maximum penalty, and the theft charge carries
10 years as a maximum penalty.

2The factual circumstances giving rise to these charges took place on 21 June 2020 and was summarised in an agreed summary which the prosecution tendered to the court.  Briefly stated, at 6.45 am on 21 June 2020, the victim had parked his car on the rooftop carpark at the Cranbourne Park Shopping Centre.  He was about to walk to work, when you approached him, and said you needed him to drive you somewhere.  You were holding a bat, he felt scared, you told him you did not want to hurt him, but that you needed to be driven.  The bat was at your side, the victim placed some personal belongings on the ground, including his phone and wallet.

3You then told him that you would leave the car at the Frankston police station when you were finished with it and drove away.  Some hours later in Doveton, a woman had left the car unlocked with the engine running in her driveway while she had briefly gone inside her house.  When she returned, the car was gone.  The first victim's car was located at the Doveton address, with the first victim's wallet and key inside.  His phone was recovered from a reserve in Lyndhurst some weeks later.

4The following day, after the theft of 22 June, police found you at the Caltex Roadhouse in Charlton.  You bogged the vehicle you were driving in some mud the car you had stolen in Doveton, and you were barefoot and had no money.  You admitted to police to having taken the car.  You handed the keys to them.  After arrest, you were taken to Charlton Hospital, and then transferred to Bendigo Base Hospital for a mental health assessment, a few days later, the Casey Hospital Berwick on a treatment order.

5When you were discharged from there, you were arrested.  When interviewed, you admitted the theft but not the armed robbery.  You were remanded and remained in reclusion since that time.

6In December 2020 you were committed for trial on a committal case conference.  You were self-represented at that time.  The second directions hearing in this court in February 2021, you entered a plea of guilty.  Given your circumstances, I view this plea as an early plea, which should attract the reduction in sentence.  Victoria Legal Aid representative from February 2021 and soon after their involvement, your plea was offered and accepted.

7A victim impact statement was received from the first victim.  In a brief statement he outlines the impact of the offence committed as creating immediate and ongoing fear.  His habits related to work and parking in particular have altered to deal with hypervigilance and recall of this traumatic event.  His efforts have involved others in assisting him.  The memory of the events are still active in his daily life and affects his sleep and it affected it afterwards.

8These reactions are understandable and the effect of the event upon him is not to be diminished.  Although there was an implied, rather an express threat, the presence of the bat and the resolute approach you made to him, would have carried apprehension and fear.  No frank violence was involved, and no physical injury was received.  I consider that this type of offence carries an inherent danger of violence and anxiety on a soft target.  He was alone in an isolated location in the early hours of the morning, practically in darkness.

9Members of the community are entitled to go about their business unhindered by criminality and fear.  The court must denounce and appropriately punish such behaviour.  The theft was opportunistic; it appears from later material your intent on driving north to Alice Springs to be with your family.  Your behaviour was clearly confused and reflective of your mental ill health.

10Nevertheless, the inconvenience and apprehension caused by your theft was real, taking other people's property in this fashion is a prevalent and unacceptable code of conduct, which calls upon the court to denounce and deter it where possible this type of theft occurs. 

11Without reciting in great detail your circumstances, there are significant matters raised by the material as to your background and mental health status, which are powerful factors in moderating the punishment to be applied.  These factors mitigate to a very large extent your moral culpability.  The appropriateness of you as a vehicle for general deterrence and specific deterrence, particularly your mental health status.

12General deterrence and specific deterrence and denunciation are still applicable sentencing principles.  I rely on the extensive and helpful psychiatric report and other material provided by Dr Nina Zimmerman dated 5 April 2021.  This very comprehensive report covers many relevant aspects of your circumstances, including your disadvantage and poor background history as a refugee, developmental history of drug use and dysfunction, complex psychiatric history, diagnosed schizophrenia, as well as episodes of
drug-induced psychosis, paranoid delusions, command hallucinations, voluntary and involuntary admission from medical facilities as well.  There is recent frequent periods at Thomas Embling Hospital during your remand.

13This history is summarised and goes back to at least 2015.  You were subject to a treatment order under the Mental Health Act at the time of the offending.  You were homeless as a consequence of an intervention order, which prevented you from returning to the family home, but which may have further complicated your state at the time.  You have a long history of complex relationship with medical and medication and non-compliance.  You were psychotic at the time of the offending, and it is clear that your actions are related in large part to this state.

14It is also clear that although you have been managed in prison, this environment has led to custodial periods marked by serious psychotic relapses, and would be onerous than otherwise, and rendered so by your mental illness.  The report pointedly indicates that your rehabilitation requires management and commitment, with the crucial element of engagement with mental health services.  Community protection in such cases as yours is a very relevant matter.  But beyond punishment, I have little doubt that the most adequate measure of protection for the long term for the community is to endeavour to address your mental health. 

15One suggestion proffered by Dr Zimmerman is a lengthy admission in the Secure Extended Care Unit in the community, aided by the intervention of a drug counselling service like Africare, an organisation which provides targeted specialist involvement and links into mainstream services.

16You have a short prior criminal history, the most relevant of which are a series of offences dealt with in 2016.  However, they include violence and dishonesty offences.  They were dealt with by way of a two year community corrections order and that order was not breached.  However, the relevance of this history goes to assessing your prospects of rehabilitation.  At this stage, those prospects may be good if the care related to your mental health and the subsequent offending is properly addressed.

17The priors remain relevant, although limited.  The risk remains but can hopefully be managed.  In my view, your moral culpability is significantly reduced, which bears on the sentence, both as to specific and general deterrence.  That impacts on the nature of the punishment to be imposed.  In this sense, a number of Verdins limbs are activated in my view.  Moderation of these aspects, your relative youth and immaturity, the clear nexus between your offending and your mental health persuade me that a combination sentence is appropriate in this case.

18An added factor is the support you have from your family, which extends to accommodation.  The court received a number of letters from your mother in Alice Springs, your elder sister, your brother, and an aunt who is willing to give up hours of work to care for you on a full-time basis and provide you with accommodation.  They write of a young man with much promise, and hope for the future blighted by mental issues, but who has worked in the past, studied a diploma in mechanical engineering, and been in the bosom of a caring family for most of his life.

19This family support is essential for your future.  Both on 12 April when the senior clinician at the court prepared a brief note that an in-patient assessment order under the Mental Health Act had been made for you, and that upon release you would be transferred by ambulance to the Monash Area Mental Health Service, where you would be assessed either as an outpatient or an inpatient in the psychiatric unit.  Yesterday, when a fuller report was prepared for the court by the clinician, which outlined in more detail your situation.

20Your situation before the court is made clear. The clinician reviewed the discharge summaries for Thomas Embling and the Eyre Unit at Ravenhall.  She noted you had five area mental health service referrals, and the last one being in August of 2020, ten inpatient psychiatric unit admissions and 16 compulsory episodes under the Mental Health Act.  She outlined the past medication and treatments.  Your mental state assessment was clearly troubled with grandiose delusions, but you understood the need and importance of engaging with mental health services to help you in your future.  That report very much mirrors Dr Zimmerman's report.

21It must be acknowledged that there is ongoing risk of violence, which must be properly addressed, including consequent sexual behaviour and absconding risks.  Your established diagnosis of schizophrenia is confirmed and there is great need for ongoing psychoeducation to reduce the risk of non-compliance with treatment.  Ongoing mental health care is clearly to be made a condition of any order, including frequent reviews, stabilisation efforts in an in-patient setting, before continuing to engage in a community-based order, which should include trauma-informed interventions given your traumatic experiences in the war in Sudan.

22This hopefully can be achieved by admission to the Dandenong Monash Health Inpatient Psychiatric Unit for treatment, review, and stabilisation, before continued engagement with the order.  Corrections will need to manage and supervise this transition, with the mental health care providers over a period, and ongoing as part of the order.  You were assessed as suitable by an assessment outcome report with a number of recommended conditions to be applied beyond supervision treatment and rehabilitation conditions pertaining to drugs, programs, and to reduce offending.

23The recommendation of the senior clinician were noted as - was the engagement value of Afri-Aus Care.  I will impose such an order in combination with the sentence, which will be encompassed by time served by way of
pre-sentence detention, which in the circumstances I consider appropriate. 
I note the prosecution in their submission to the court, fairly accept that such a disposition to be appropriate while noting the inherent risks which persist in relation to your management and supervision.

24Is there an agreed number for the pre-sentence detention?

25MS PETSINIS:  Yes, Your Honour.  My friend and I discussed that today.  It is 295, that is including the time where he was in the hospital under police guard.

26HIS HONOUR:  And that is excluding today?

27MS PETSINIS:  Sorry, Your Honour.  Just one moment.

28HIS HONOUR:  Sure.  That was the number at plea, so it will be some days beyond that, excluding today.

29MS PETSINIS:  Yes, Your Honour, 298.

30HIS HONOUR:  Two ninety eight.  All right.

31On the armed robbery, Mr Chuol, you are convicted and sentenced to seven months' imprisonment.

32On the theft, you are convicted and sentenced to four months' imprisonment.

33I order that two months on the theft be cumulative on the armed robbery, making a total effective sentence of nine months, to be followed by a Community Corrections order for 24 months within the conditions I have outlined, and to which you have consented.

34I note for the records of the court, that you have served 298 days excluding today, by way of pre-sentence detention.  I declare them to be so.

35Mr Chuol, you have indicated your consent to this order, to the person who made your assessment, and I take it that is still the case.  What will happen, as I understand it, is that once you are released, you will be taken to the Monash Mental Health Unit and you will be assessed, and you will be assisted there by the personnel at that unit.  They will determine what the best course is in the immediate future.

36OFFENDER:  Yes.

37HIS HONOUR:  That may involve being an inpatient for a period of time in a particular unit.  It may involve taking medication.  I just want to make sure that you understand me very clearly.

38OFFENDER:  Yes, I do, Your Honour.

39HIS HONOUR:  What this means is that for the next period of two years, you will be under a supervisory order of this court.  During that time, you are effectively making a promise to do a number of things.  The first one is to behave and not commit criminal offences.  The best way for you in your situation to avoid that, is number one, to take care of your mental health.  There is no shame or disgrace in having a mental condition, many people in the community do, and most people in the community manage that condition in a number of ways.  I am endeavouring to give you an opportunity to deal with your situation because if you do, your future can be very positive.

40You have family support, you have the opportunity for accommodation.  You have no doubt the intelligence and the capacity to do whatever it is that you want in the future, whether that is by way of study, or work.  But you have to manage your situation in terms of your mental health.  If you can do that, you will find that you will have a peaceful and happy future.  Do you understand?

41OFFENDER:  Yes, I do.

42HIS HONOUR:  Now, in the immediate future, it will mean getting used to talking and being in contact with a large number of people.  I am putting you on this order in order for you to be able, with them, to address your issues, and so that you do not commit offences like the ones that you have come to court with now or before.

43That means that you will probably be on medication that you need to comply with, because it will help you.  That means that you need to stay in contact with your family, let them help you too.  More importantly still, you need to stay away from other drugs, which will simply set you back and you stay away from people who will bring you into trouble.

44OFFENDER:  Okay.

45HIS HONOUR:  Now, I know there is a lot to take on board.  But soon, you will be released from where you are; you need to take care of yourself and you need to understand that you are making a promise to the court today.  That you will do all those things, because in the end, they will give you benefit.  And if you benefit and get better, and stay better as you can, that benefits the community and in particular, your family as well, and you.  Do you understand what I am saying?

46OFFENDER:  Yes, I do.

47HIS HONOUR:  Now, you have been in prison now for about 10 months or so.  I do not know whether you like being in there, whether you think that is a good way of spending your time as a young man.  I would have thought that anyone of your age has lots of other things to do in the outside world, and you can do them well.  So, unless you want to come back before a court, or unless you want to go back to prison over and over again or go in and out of hospitals because you are not compliant with the plan, or the management, then try and abide by this order.  Try and cooperate with the people who will try and assist you in the next few months and years.

48OFFENDER:  Yes.

49HIS HONOUR:  So, I hope that it can work out for you, because if you breach this order, or you are in contravention or you are not cooperating, or you miss your medication, then you will probably come back before me, and I will have to make an assessment as to what to do.  But the likelihood that you are going to lose this opportunity increases and is high.  Do you understand this?

50OFFENDER:  Yes, I do.

51HIS HONOUR:  Now, a transcript of what I have just said to you will be made and be provided to me.  So, it is not a question of either me or anybody else forgetting what was said today.  I want you to understand that you are effectively making a promise to the court, but in a very important way, you are making a promise to yourself, to help yourself.  Do you understand?

52OFFENDER:  Yes.

53HIS HONOUR:  All right.  You will probably have some paperwork that you will get there, where you are, before you are released.  That will mean that you have to sign that order that I have made.  That may happen today or tomorrow, sometime soon.  It will probably be today.  I hope that things can work out for you in the next - in the immediate future, and in the long-term.

54In terms of Corrections, the people who are going to administer this order, the most important thing for you to remember is just talk to them.  Stay in contact with them.

55OFFENDER:  Yes.

56HIS HONOUR:  People break these orders because the people from Corrections all of a sudden cannot contact you, cannot talk to you, do not know what is happening to you, you are skipping appointments, and you are missing medication and other things like that.  So, the most important hint that I can give you about keeping this order, is talk to them.  Let them know what help you need.  Whether that is in education, in work, in accommodation, problems with family, problems with drugs, problems with doctors, whatever.  But just talk to them, they are there to help you because they want you to finish this order too.  Do you understand?

57OFFENDER:  Yes, I do.

58HIS HONOUR:  All right.  Well, I hope it can work out.  If you are unhappy about something, or you think it is not working out, then tell them that too.  All right.

59OFFENDER:  Yes, I will.

60HIS HONOUR:  All right.  Thank you both.

61MR COOPER:  As Your Honour pleases.

62OFFENDER:  Thank you.

63HIS HONOUR:  I do not think that I need to make other ancillary orders in this.  Were the items that were seized or anything of that nature that need disposal or anything like that?

64MS PETSINIS:  No, Your Honour.  There is no orders sought.

65HIS HONOUR:  All right.  I will stand down.

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