Director of Public Prosecutions v Dao
[2024] VCC 1728
•29 October 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-01859
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NGOR DAO |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 May 2024 and 16 October 2024 |
| DATE OF SENTENCE: | 29 October 2024 |
| CASE MAY BE CITED AS: | DPP v Dao |
| MEDIUM NEUTRAL CITATION: | [2024] VCC 1728 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Charges of affray, intentionally causing injury and use a prohibited weapon – no criminal history – early plea of guilty – young offender – good prospects of rehabilitation – parity.
Legislation Cited: Children, Youth and Families Act2005.
Cases Cited:Muldrock v The Queen [2011] HCA 39; Keys and Ors v R (1987) 84 Cr App R 204; Worboyes v R [2021] VSCA 169; Azzopardi v R (2011) 35 VR 43; R v Verdins (2007) 16 VR 269; Pihlgren v R; Stephens v R [2024] VSCA 47; DPP v Ater [2024] VSC 67; DPP v Kuol; DPP v Leek [2023] VSC 751; DPP v Wal; DPP v Mainyal [2022] VSC 828.
Sentence: 15-month Community Correction Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms L. Gurry | Office of Public Prosecutions |
| For the Accused | Mr D. Sala | Doogue & George Criminal Lawyers |
HIS HONOUR:
Introduction
1Mr Dao, you pleaded guilty to a charge of affray, a charge of intentionally causing injury and a summary charge of using a prohibited weapon. The circumstances of your offending are set out in the document entitled 'Agreed summary of prosecution opening for plea hearing', which is exhibit A.
Circumstances
2You were one of a group of young persons who were in conflict with another group of young persons. At about 3.40 pm on 18 May 2023, at the intersection of two streets in Sunshine, members of your group attacked the members of the other group. One member of your group, Samir Bol[1], armed with a large machete, ran towards the other group, consisting of five males. Another member of your group, Ayman Deng[2], armed with a large kitchen knife, ran towards the group. You, armed with a machete, followed Deng and Bol.
[1] A Pseudonym.
[2] A Pseudonym.
3Bol stabbed a member of the other group, Valaitha Cinzah, in the hip. However, a member of that group, Alawad, also armed with a machete, chased Bol away. You and Deng continued running towards the group. Deng chased the injured Cinzah and you chased a person called Juuk. Deng further injured Cinzah who ultimately escaped.
4Meanwhile, you approached Juuk, swinging your machete in your hands while Juuk tried to defend himself with his school bag. You slashed at Juuk, cutting the index finger of his left hand. Later, the injury was treated by ambulance officers. These circumstances constitute Charge 2, a charge of intentionally causing injury.
5Deng saw a friend of the group, Lyhym. He chased him and stabbed him twice in the back. Shortly afterwards, Lyhym died.
6While Deng chased Lyhym, you fought with Alawad. Each of you attempted to slash the other with machetes. Alawad dropped his machete which you picked up. Armed with two machetes, you approached Alawad who defended himself with a shopping trolley before he walked towards the bus terminus and you walked away in a different direction. These circumstances constitute the charge of affray.
7I have viewed the various pieces of CCTV footage and dashcam footage where you are highlighted. I have also seen the photos taken of Juuk’s hand.
8On 19 May 2023, you went to the Melbourne West police station with your solicitor. You were arrested, interviewed and released. On 5 June 2023, you were arrested again at your home. Your home was searched. You were interviewed but gave 'no comment' answers to questions. You were bailed that day. The conditions of your bail included a curfew between 11 pm and 7 am the next day and not to associate with your co-accused.
Criminal history
9You have no criminal history.
Victim impact statements
10There are no victim impact statements. From the photographs and Exhibit A, Juuk suffered a cut to the index finger of his hand. It bled to an extent. The wound was treated by ambulance officers at the scene by, at least, bandaging. There is no evidence of any disability.
Personal
11You are now 19. You were born in Australia of Sudanese parents. They migrated to Australia in 2004. You have always lived in Australia but retain family in Sudan.
12You have six siblings, including a twin brother. You reside at the family home with your siblings and parents. It is a supportive and caring household, and you have a close relationship with your mother and twin brother. She, along with your two sisters, were present in court to support you at the plea hearing.
13In 2017, your father suffered a brain injury. You find it difficult to communicate with him. As a result of the brain injury, your father has increased his alcohol use. Despite this, there are no conflicts within the household.
14When you were an infant, you underwent spinal surgery. You suffer from ongoing back pain, but it is not too serious now.
15In 2013, you undertook a cognitive assessment. It was determined that your Full-Scale Intelligence Quotient (FSIQ) fell below the first percentile (<0.5%) and within the Extremely Low range when compared to those of your age. This score indicated an intellectual disability.
16However, you completed primary and secondary school. You took some time to adjust to the transition between schools but managed. You had good school attendance. You found the schoolwork at times to be overwhelming but required no support. There were no learning supports for you during your secondary education. You completed Year 12, just passing. This was due to the current court proceedings and having to complete your education online. You were unable to return to the school’s physical campus due to the offending. This has brought shame on your family. You became afraid to leave the house which also affected your ability to work.
17After school, you did commence an apprenticeship in carpentry. You engaged in this apprenticeship for four months until your employer could no longer afford your wage. At present, you work as a picker and packer for two different employers. Your combined hours of work amount to about full-time employment.
18You have not had any long term or serious relationships. Since the offending, you have socialised with family and friends, but not often. These friends are prosocial, and none has police involvement. You used to attend church as a family on a weekly basis, but due to work commitments, this now occurs infrequently. Sometimes, you attend bible studies.
19You do not misuse alcohol or substances.
20Since the offending, you have felt a lot of guilt. This has led to poor sleep and a loss of appetite. Sometimes, you experience flashbacks of the incident when you try to sleep. You have thought about suicide, but not since August 2023.
Sister
21Angelina is one of your sisters. She works as a collection’s agent and lives with you. On 6 May 2024, she gave evidence during the plea hearing. Some of her evidence has now been overtaken by events.
22Since your release on bail 11 months ago, you worked in construction as an apprentice. Recently, she helped you look for a new job, as a packer in a warehouse. You are about to commence an induction at a warehouse for a new job. She does not know the detail of the tasks you will be doing at this new job.
23You have not been going out a lot since you have been on bail. There is a curfew. When you go out, it is to a cousin or friend’s house. Your friends are reasonable. Some of them are working and they seem like a good group of people, according to your sister.
24You spoke to her about the offending. After you first got arrested and came home, you told her what happened and how you felt. She says you felt extremely guilty about the offending, and you have never been involved in this type of incident before. You wish it had never happened in the first place.
25She said you felt torn over the death of the victim. You broke down. You never expected it to happen and did not want it to happen. You told your sister that in relation to Juuk, you had a fight with him and injured his finger.
Psychologist
Dorissa and da Silva
26When you were in Year 2 and aged 8, your school referred you to the psychological service of the Catholic Education Office. You were assessed by a provisional psychologist, whose work was supervised by a psychologist[3].
[3] Report undated but the assessment occurred on 18 March 2013.
27You undertook a test called the Wechsler Intelligence Scale for children – 4th edition. On page eight of their report, various aspects of your intellectual functioning were placed in one of seven categories with a figure representing the percentile rank. Your best result of 16 was with a function called 'Block design'. This meant 84% of persons your age did better than you on this function. Your worst came in what was called the 'coding' where the percentile was 0.1. That meant 99.9 per cent of your age group did better. This was described as the 'extremely low' range.
28Overall, the psychologists ranked you as below the first percentile. That is, more than 99 per cent of your age group would perform better than you. They made a large number of specific recommendations.
Dawson
29Hannah Dawson is a forensic psychologist. She interviewed you on 19 April 2024 at the request of your solicitors.
30Arising out of her interview, Dr Dawson considered you were of low average intelligence. Since she was supplied with the report of the intelligence assessment in 2013, she added 'perhaps slightly above previous testing'. I find this comment incongruous. That testing placed you two standard deviations below the mean and in the first percentile for your age group. You repeated a year at school. Thereafter, you progressed through secondary school without a teacher’s aide or other assistance and successfully completed Year 12. I am not satisfied you are intellectually challenged or, as the High Court put it in Muldrock[4], 'intellectually retarded'. You are in the low end of the average range.
[4]Muldrock v The Queen [2011] HCA 39.
31Dr Dawson diagnosed you as suffering from an adjustment disorder with mixed anxiety and depressed mood. This disorder is due to this proceeding. She recommended a mental treatment plan through your general practitioner.
32She considered you a low risk of re-offending.
33In the course of her report, Dr Dawson referred to your intellectual functioning. At paragraph 30, she interpreted the findings of the 2013 assessment as placing you below the first percentile and within the extremely low range when compared with persons of your age. At paragraph 73, she noted the issue of an intellectual disability required further assessment. Some of her other comments seemed to assume an impaired intellectual functioning. In paragraph 96, she recommends psychological treatment but cautions that person to consider the impact of potential intellectual limitations on treatment. It is my impression Dr Dawson suspects intellectual impairment but cannot say to the extent or its effect on your decision-making.
Leslie
34Benjamin Leslie is a clinical neuropsychologist. On 13 September 2024, at the request of your solicitors, he assessed you. The assessment was in person and took three hours with one short break. One of the purposes of his assessment was to gauge the extent of your learning disability.
35Mr Leslie did not diagnose you as suffering from an intellectual disability according to the criteria in the 5th edition of the Diagnostic and Statistical Manual of Mental Disorders. However, he noted your unusually poor cognitive performance in certain areas. You are predisposed to think and behave impulsively which would interfere with your ability to make calm and rational decisions. Your impulsivity is worsened by your difficulties in planning, taking in information and managing competing demands. These impairments contributed in his view to your offending.
36Mr Leslie’s recommendations for treatment are mainly concerned with your cognitive weaknesses. They address your difficulties in planning and organising new material; the way information is best given to you; and the speed at which you are given information.
37Shortly, I will discuss the sentencing of youthful offenders. A factor is their immaturity. You are not only youthful but also display greater levels of immaturity than most others in your age group.
Discussion
38Each of the purposes of sentencing is relevant to you. Your involvement in what occurred requires close attention paid to general deterrence and denunciation. In view of what has since occurred, I need give less weight to specific deterrence and protecting the community from you. Allied with those last two purposes is the issue of rehabilitation, a matter of much significance for someone of your age.
39The maximum penalties for the offences are affray, five years’ imprisonment, and intentionally causing injury, 10 years’ imprisonment.
40In assessing the gravity of your offending in respect of the charge of affray, I should bear in mind the words of the Lord Chief Justice in Keys and Ors v R[5]:
'At the other end of the scale come the people who have so to speak been on the edges of the affray. The acts of individual participants cannot in these circumstances be taken in isolation. Even though a particular defendant himself never actually hit an opponent, never threw a missile, never physically threatened anyone, nevertheless, even if he participated simply by encouraging others and by shouting insults and threats, he thereby helps to promote the totality of the affray. He must accordingly take some share of the blame for the overall picture. It scarcely needs stating that the more he is shown to have done in promoting the affray, the greater be his punishment'.
[5] (1987) 84 Cr App R 204 at 207.
41You were one of four young males in your group. The incident lasted only minutes. You and the other members of your group went armed with machetes and knives and to confront the members of the other group. As is obvious from the CCTV footages, this occurred in the presence of a number of persons, including school children, in a very public place. You had a machete at the start of the incident but gained another when a member of the other group dropped his. A member of your group stabbed and killed a member of the other group. Other members of the other group were injured, and you injured one of its members. There is no suggestion you organised or led the group even though you were the oldest.
42As to the charge of intentionally causing injury, the injury was inflicted through a swing of a machete. The potential for damage was significant even though the result was relatively minor. However, being armed with an offensive weapon is itself an offence, for which you have been charged.
Guilty pleas
43The movement from your charging to this plea hearing has been rapid. You were committed at the second committal mention hearing and the plea hearing was arranged at the time of your committal. In terms of timing, I consider your pleas were indicated or entered close to the earliest reasonable opportunity.
44There are benefits of your guilty pleas. They are an emphatic acknowledgement of your offending. It places your guilt beyond doubt. Generally, this is not an issue, but sometimes it is.
45Second, they relieve the victims from the need to give evidence against you in a trial. This relieves them of a real burden. Giving evidence in a trial for young persons is an ordeal.
46Third, you have assisted the criminal justice process. You have removed your case from those needing a jury trial and allowed others to move forward. This has avoided the delay and saved the time and expense of a trial. Generally, jury trials are complicated affairs involving 12 jurors and lasting weeks. Avoiding that is a considerable benefit to the criminal justice system.
47Fourth, the crisis addressed in Worboyes v R[6] and other cases has now disappeared. The amelioration of penalty identified in the case of Worboyes no longer applies, even though the virus can still cause some disruption to jury trials and other court proceedings.
[6] [2021] VSCA 169.
Youth
48At 19, you are a youthful person. The law looks carefully at the situation of youthful offenders. In Azzopardi v R[7], Redlich JA said:
'There are a number of considerations which underly the general primacy of an offender's youth as a sentencing consideration. First, young offenders being immature are therefore "more prone to ill-considered or rash decisions". They "may lack the degree of insight, judgment and self-control that is possessed by an adult". They may not fully appreciate the nature, seriousness and consequences of their criminal conduct…
'Secondly, courts "recognize the potential for young offenders to be redeemed and rehabilitated". This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more prone to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders, "is one of the great objectives of the criminal law". The added emphasis for the purposes of sentencing on realisation of a young offender's potential to be rehabilitated is further justified because of the community's interest in such rehabilitation, not only at a theoretical level, but because the effective rehabilitation of a young offender protects the community from further offending…
'Thirdly, courts sentencing young offenders are cognisant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender's prospect of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed. Imprisonment for any substantial period carries with it the recognised risk that anti-social tendencies may be exacerbated. The likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community'.
[7](2011) 35 VR 43.
49As to the first consideration, at present it is unclear whether you suffer from an intellectual disability. If you do, and its extent ascertained, then this factor may assume a greater importance than that described by Redlich JA.
50As to the second, you have already progressed upon the path of rehabilitation.
51As to the third, again, your intellectual capacity is a factor. Even a youthful person of normal intellectual capacity would suffer in the presence of older and seasoned offenders. And I might add, that to a lesser extent, that consideration applies, even if I had been considering detention in a youth justice centre.
Intellectual disability
52Your sentencing was delayed because your lawyers wanted to explore the possibility of the impairment of your intellectual functioning. This had been raised in the 2013 report. It caused your counsel to raise intellectual disability as an important factor in your sentencing. He relied upon Muldrock v R[8]. Your lawyers arranged for your assessment by Mr Leslie. I have already set out his findings. In light of them, there was no reliance on the issue of intellectual impairment.
[8] [2011] HCA 39 at [50]-[51] and [53]-[54].
Verdins
53You do not rely upon any of the limbs of R v Verdins[9].
[9] (2007) 16 VR 269.
Prospects of rehabilitation
54I consider your prospects of rehabilitation as good. You continue to live with your family and have their support. You are working, in effect, on a full-time basis. You contribute financially to your household. You have obeyed the conditions of your bail and, in particular, have not re-offended while on bail.
55You are remorseful, as evidenced, in part, by your guilty pleas. You told
Dr Dawson of the shame you had brought upon your family and the sense of guilt you felt.Parity
56Each of your co-accused were 17 at the time of the offending. One has been charged with murder and is awaiting trial. The cases of the other two are in the Children’s Court. One of the two has had his proceeding adjourned for him to undertake a diversion plan. If the plan is completed successfully, the result is a discharge without a finding of guilt. It is not even a sentence under the Children, Youth and Families Act 2005. In terms of disposition, it is, in effect, the lowest that can be imposed.
57In September 2024, the other was found guilty of intentionally causing injury and affray and, without conviction, was placed on a six-month good behaviour bond.
58More generally, the sentencing of children emphasises rehabilitation. The very point made by Redlich JA in Azzopardi’s case for youthful offenders. What happened to that offender has almost no bearing on my sentencing of you.
Current sentencing practices
59The Director’s counsel drew my attention to summaries of five cases[10] involving, at least, the charge of affray.
[10] Pihlgren v R; Stephens v R [2024] VSCA 47; DPP v Ater [2024] VSC 67; DPP v Kuol; DPP v Leek [2023] VSC 751; DPP v Wal; DPP v Mainyal [2022] VSC 828.
Community correction assessment
60On 6 May 2024, you were assessed by a community correction officer in relation to a community correction order. She assessed you as suitable for such an order and, using a particular risk assessment tool, assessed you as a low risk of re-offending. She recommended two non-core conditions to any proposed order. Her report gives no inkling of perceiving you as intellectually impaired.
Sentence
61On the two charges on the indictment and the related summary charge, with your consent, I will convict you of those charges and place you on a community correction order of 15 months’ duration with the following core conditions:
(a) to perform 150 hours of unpaid community work;
(b) to undertake programmes which address factors relating to your offending behaviour.
62I will direct all hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work.
63You are to attend the Derrimut Community Corrections Service in Derrimut by 4.00 pm on Thursday, 31 October 2024.
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