Director of Public Prosecutions v Dau

[2015] VCC 1935

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR -15-00183

DIRECTOR OF PUBLIC PROSECUTIONS

v

DENG DAU

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 December 2015
CASE MAY BE CITED AS:	DPP v Dau
MEDIUM NEUTRAL CITATION:	[2015] VCC 1935

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Lee
For the Accused	Mr A. Lewis

HER HONOUR:

1Deng Dau, you have pleaded guilty to one charge of affray.  The maximum penalty for that offence is five years' imprisonment. 

2The prosecutor made an application for the taking of a forensic sample from you.  I have refused that application because I do not consider that the taking of a sample is justified in the circumstances of this case, taking into account your youth and your lack of any prior criminal history. 

3The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea, which was tendered as Exhibit A.  I was also provided with some still images from CCTV footage, which was tendered as Exhibit B, and a DVD of CCTV footage showing this incident, which was tendered as Exhibit C.  A further photograph of you at the time of interview with the police was tendered as Exhibit D. 

4In brief, the circumstances of your offending are that on the early hours of Sunday 27 October 2013, you were with a group of friends who had been socialising at a premises in Glenferrie Road, Hawthorn.  At about the same time, there was another group of people who had been socialising at another venue in Glenferrie Road.  Both groups ultimately were in the same area of Glenferrie Road near the McDonalds premises.  You had walked past the other group when one of your friends became involved in an argument with a person from the other group about the throwing of a paper bag from McDonalds. 

5There was a verbal confrontation and then there became a scuffle and pushing and shoving between the two groups.  You turned back and joined the groups.  There were punches thrown by members of your group.  Members of the groups moved on to the edge of Glenferrie Road and into the Glenferrie Road.  One of the people in the other group was punched to the head and face and fell onto the road.  The victim in this matter was punched in his left eye and ended up striking his head on the roadway.  He remained unconscious. 

6Police arrived shortly after, as police were on duty further up Glenferrie Road.  The victim was transported to hospital.  He suffered very significant and serious injuries.  He continues to have a brain injury and to suffer very serious consequences from this incident, which are described in his victim impact statement, which was tendered as Exhibit E and read to the court. 

7It is not alleged that any direct actions by yourself caused the injury to the victim.  The charge of affray is made on the basis that you participated in the general fighting of this array. 

8You were interviewed by police later that day.  You admitted that you were in the area, but said that you were not involved in the punch up.

9In sentencing you, I have taken into account your personal circumstances.  Your personal circumstances were outlined by your counsel and also in the psychological report of Ms Carla Lechner, dated 14 December 2015. 

10You are now 20 years old.  You were 18 years old at the time of this incident.  You came to Australia from Sudan, via Egypt, when you were about 12, with your parents and your five older siblings.  You initially settled in New South Wales and went to school there, before moving to Melbourne, where you completed your secondary schooling.  You completed Year 12 and obtained a VCAL certificate.  You finished Year 12 shortly after this incident.  You have not been able to continue with studies since.  You have engaged in some casual employment.  I accept that your ability to engage in employment and motivation to do so has been disrupted, to a degree, by the consequences of this incident. 

11You have no prior criminal history.  You have no drug and alcohol issues.  You have no psychological issues to interfere with your prospects of rehabilitation.

12Affray is an offence which covers a wide range of conduct.  In this case the affray was short in duration.  It appears to have been a confrontation which turned into a scuffle and pushing and shoving.  It then got further out of control.  The victim was injured very seriously, but without any person having apparently intended to injure him to that degree.  Certainly your involvement is not described as having directly caused that injury to him.  The conduct involved in this affray by the participants was less serious than some other circumstances of affray.  There was no planning.  There were no weapons involved.  There was no prior bad feeling between your group and the other group.  This appears to have just been an incident where there were two groups of young men, out very late at night who started some form of confrontation which got out of control. 

13The point is that that is the very circumstance which leads to this type of behaviour being a criminal offence.  It is because it can very quickly get out of control and someone can be very seriously injured, that this is a crime.  It is a crime because the society and Parliament on behalf of the community, wants to try and stop people engaging in this kind of behaviour.  The consequence are very serious indeed, but I do not consider the conduct engaged in this affray to put it at the serious end of affray offences.  The courts have repeatedly expressed the view that participants in affrays must be punished in a way that is sufficient to deter other people from becoming involved in any kind of physical confrontation. 

14You are a young man.  You are a young offender and I must take that into account in sentencing you.  I consider that you have good prospects for rehabilitation.  I have been told about some outstanding matters, but they are of a different nature.  I accept that you are motivated to avoid violence.  The very sad circumstance of the stabbing of your brother is a matter which should clearly reinforce the need for you to stay away from any circumstances of violence.  I accept that you genuinely are remorseful and that you want to get on with work and study.  You have, in my view, good prospects for rehabilitation and your rehabilitation must be a very important sentencing consideration because of your youth. 

15General deterrence remains, in my view, a sentencing consideration which must be given weight.  You must be punished sufficiently that others who hear of your punishment think that it is worth avoiding getting into this type of situation. 

16I also consider that specific deterrence should have some weight in sentencing you.  That means that the sentence ought to be serious enough that you understand that you will have more serious punishment if you offend again in this way.  That hopefully will encourage you to avoid ever getting into such a situation again. 

17You are entitled to a significant discount for your plea of guilty.  Your plea offer in respect of a charge of affray was made early and often.  This matter started in the Magistrates' Court in the summary stream and then moved to the committal stream because of the nature of the other charges or charge that the prosecution wished to proceed with.  The prosecution is entitled to do that, but in my view, in this case there was very little evidence to support any charge involving allegations of gross violence against you. 

18The result has been that there has been considerable delay since your arrest in October 2013.  You have been required to comply with bail conditions and reporting conditions.  You have done so.  It is my view that that period of delay and the burden that that has placed on you, must be taken into account in mitigation of sentence. 

19Your plea of guilty was made after a voir dire at the commencement of the trial process.  It was apparent from that voir dire that the prosecution would not be able to proceed with certain charges.  On that basis the matter was resolved with you pleading guilty to affray, which was what you had offered to do from the beginning. 

20Your plea of guilty did have utilitarian value in saving the further expense of trial past that time of the voir dire.  I also accept that it is an expression of your genuine remorse and your deep regret about the injuries suffered by the victim.  Your plea of guilty also is a demonstration of your acceptance of your responsibility for this event. 

21I do not consider that a financial penalty would sufficiently reflect the sentencing purposes of general deterrence, just punishment, denunciation and specific deterrence, even where those factors are moderated because of your youth and because of the factors which operate in mitigation of sentence in this case. 

22I do consider that a community correction order would appropriately meet those sentencing requirements.  Because of your youth, the delay and your good prospects of rehabilitation, I consider that it is appropriate to impose a community correction order without conviction.  You are a very young man.  It appears that you come from a stable and hard-working family.  You have the ability to work hard and to comply with the law.  You do need to understand that you must obey the rules and the laws with driving matters and other matters, but I consider that you have the capacity to do that.  You clearly have the ability to apply yourself and to work hard.  If you are able to do that, you will be able to make a very positive contribution to this community. 

23In my view it would assist you, in terms of your future work and prospects, if you do not have a conviction against your name for this offence.  So what I propose to do is to impose a community correction order without conviction.  The community correction order would last for nine months.  It would require you to do 100 hours of community work over that nine months.  One of the reasons that I consider this to be an appropriate sentence is because if you breach the community correction order by not doing what they tell you, or by further offending, you will be brought back before me and I can re-sentence you for this offence. 

24That means that for the next nine months, effectively the court will be supervising you.  I consider that to be appropriate because of your youth and because of the need to encourage you to engage in study and/or work, and to progress positively with your life.  I hope that the knowledge that the court will still be effectively monitoring your progress will encourage you to go through the next nine months being very careful not to offend and being able to do your best to obtain work or study, whichever you prefer.           

25Mr Dau, I believe that the core conditions and other conditions of the order have been explained to you.  Is that right? 

26OFFENDER:  Yes. 

27HER HONOUR:  Do you consent to the order being made?

28OFFENDER:  Yeah.

29HER HONOUR:  All right, thank you. 

30In my view, the legislation does not require me to make a 6AAA declaration, but I will do so.  But for your plea of guilty, I would have sentenced you to a community correction order for two years, with considerably more work hours and other conditions.  That order would have been with conviction. 

31MR LEWIS:  If Your Honour pleases.

32HER HONOUR:  Now, if you just take your seat, Mr Dau.  Is there any other of the technical matters that I need to address?  Thank you Ms Lee, Mr Lewis.

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