Director of Public Prosecutions v Dauch

[2018] VCC 1705

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01370

DIRECTOR OF PUBLIC PROSECUTIONS

v

JIOKTHIANG DAUCH

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	12 October 2018
DATE OF SENTENCE:	18 October 2018
CASE MAY BE CITED AS:	DPP v Dauch
MEDIUM NEUTRAL CITATION:	[2018] VCC 1705

REASONS FOR SENTENCE
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Subject: Criminal Law - Sentence

Catchwords: Plea of guilty – young offender – whether youth justice centre order an appropriate disposition - one charge of aggravated burglary – one charge of sexual assault – one charge of causing injury intentionally – one charge of attempted theft – two charges of damaging property – one charge of common law assault

Legislation Cited: Crimes Act `1958 (Vic), Sentencing Act 1991 (Vic)

Cases Cited: DPP v Barnes [2015] VSCA 293, Azzopardi v The Queen (2011) 35 VR 43

Sentence: Total effective sentence of 5 years imprisonment with a non-parole period of 2 years and 6 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D Glynn	OPP
For the Accused	Mr J Anderson	Matthew White & Associates

HIS HONOUR:

Introduction

1Jiokthiang David Dauch, you have pleaded guilty to the following charges:

· One charge of aggravated burglary contrary to s 77 of the Crimes Act 1958, which carries a maximum penalty of 25 years imprisonment;

· One charge of sexual assault contrary to s 40(1) of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment;

· One charge of causing injury intentionally contrary to s 18 of the Crimes Act 1958 which carries a maximum penalty of 10 years imprisonment;

· One charge of attempted theft contrary to s 321P(1)(a) of the Crimes Act 1958 which carries a maximum penalty of 5 years imprisonment;

· Two charges of damaging property contrary s 197(1) of the Crimes Act 1958 which carries a maximum penalty of 10 years imprisonment; and

·    One charge of common law assault which carries a maximum penalty of 5 years imprisonment.

2You have also admitted your prior Criminal Record.

Circumstances of the offending

3A Summary of Prosecution Opening was exhibited on the plea and may be summarised as follows:

4On Tuesday 3 April 2018, at approximately 2.25pm, you together with an unknown male boarded a city bound train at Ringwood Railway Station. 

5At approximately 2.36pm, you and the unknown male began abusing and threatening a male passenger, who was seated with a female in the train carriage. At approximately 2.40 pm you got off the train at Box Hill Railway Station.

6At approximately 3.20pm, you were observed in Victoria Street, Box Hill acting erratically, hitting and shoving cars with both of your hands. You were observed approaching a white Holden Cruze vehicle parked in the street and kicking the side mirror of that car. In that instance the mirror did not break. 

7You then approached a white Mazda hatchback that was also parked in the street. You kicked the driver's side mirror and it fell off the car. It is these facts that relate to charge 5, criminal damage.

8You were then observed approaching two females and a male in the street. You grabbed the male by the neck of his shirt and yelled at him. This lasted for about five seconds before you let the male go. That conduct is uncharged.

9You then approached a vehicle, being a white BMW, belonging to Joanne Chia. Ms Chia states that it was around 3.20pm and she had just arrived home. Ms Chia was still in her car when you approached. Ms Chia asked you if you needed help. You said that you wanted a lift as people were coming to get you. She said she could not give you a lift, but could call the police.

10Whilst she was on the phone to the 000 operator, you climbed onto the roof of her car and dented the roof. You then climbed onto the windscreen and kicked the glass. This action did not cause any damage to the glass but forced the rear view mirror to become dislodged and fall off. You caused damage to both car doors and dented the roof of the vehicle. You then left and continued down Victoria Street. It is these facts that relate to charge 6, criminal damage.

11At approximately 3.20pm, near the intersection of Victoria Street and Albion Road in Box Hill, Ms Sukhvir Kaur got off the bus and observed you kicking mirrors off car doors. You approached Ms Kaur and, as she felt frightened, she ran to the front yard of a nearby house. You followed her into the front yard of the home and were yelling at her. You hit hanging pots on the veranda and hit the walls of the house while continuing to yell. You then picked up the garden hose and hit the windows of the home with the hose. You also hit Ms Kaur on the head once with that hose.

12At this point you dropped the hose and moved towards Ms Kaur. You placed both hands around her neck and began to squeeze. As you were doing this, you were getting close to her face and trying to kiss her. Ms Kaur screamed. You let her go and walked away. It is these facts that relate to charge 7, common assault. During the plea I was informed that the assault with the hose also forms part of this charge. 

13Ms Kaur jumped a neighbour's fence, called 000 and provided a description of you to the police.

14You then went to a two-storey home in Barcelona Street, Box Hill. It was approximately 3.30pm by this stage. You walked to the back of the house and climbed a set of stairs on the outside of the house that led to the second storey. Upon reaching a bedroom window about halfway up those stairs, you began banging on the window and yelling. The window smashed. 

15The resident of that home, Ms Josephine Romano[1], who was 79 years of age at the time, was in the kitchen on the top floor of the home and heard the banging and the window smash. She started yelling as loudly as she could, "Help me please, somebody help me, call the police". As she was yelling for help, you entered her kitchen from the lounge room. She continued to scream for help saying, "Somebody help me please, somebody is here trying to kill me". It is these facts that relate to charge 1, aggravated burglary.

[1] A pseudonym name

16You grabbed a knife from the utensil container, throwing the balance of the container onto the floor. You pushed the knife up against Ms Romano’ throat. It is these facts that form part of charge 3, intentionally causing injury.

17While you were doing this you said to Ms Romano, "I will kill you, I will fuck you. Give me a kiss". At this point, Ms Romano grabbed hold of the knife blade, and managed to take the knife from you, throwing it onto the floor. Her hand was cut in this incident and began to bleed.

18You continued to yell, "I'll kill you, I'll fuck you" and you started punching Ms Romano to her upper arms and face. You then threw Ms Romano against the kitchen wall and attempted to pull down her pants at the front.  Ms Romano was screaming for help and crying. You continued to yell and swear at Ms Romano and while she was trying to pull her pants up, you forcibly pulled her pants down at the front, inserted your hand into her underwear and grabbed her on the vagina area. Ms Romano fought you off, pulling your hand out of her underwear. She pulled her pants up and turned away from you. It is these facts that relate to charge 2, sexual assault.

19At this point you grabbed Ms Romano’ wooden walking stick. You used the walking stick to strike Ms Romano a number of times over her body, causing the walking stick to break. When the walking stick broke, you grabbed a portable pedestal fan and began to hit Ms Romano with the fan until it also broke. The assaults with the walking stick and fan also form part of charge 3, intentionally causing injury.

20When the fan broke, you left the house by jumping from the second storey balcony onto the bonnet of a vehicle belonging to Ms Romano’ son, Piero Romano[2].

[2] A pseudonym name

21After landing on Mr Romano' car, causing damage to the bonnet, you opened the unlocked driver's door and removed panels from under the steering wheel in an attempt to steal the vehicle. Being unsuccessful, you went to the front passenger side and removed more panels to access fuses, in a further attempt to steal the vehicle. It is these facts that relate to charge 4, attempted theft.

22While you were in the car, Mr Romano arrived home. He saw you in his car. You saw Mr Romano and fled on foot, leaving behind a small black handled kitchen knife. 

23After you left, Ms Romano made her way out of her kitchen and waited for her son and the police to arrive. Her son found Ms Romano lying on her back, crying on the landing at the top of the stairs with blood on her hands, face and clothes. She was taken to hospital and received stiches to her finger. She also suffered soreness from the assaults.

24Police attended at approximately 4.15pm and you were arrested a short distance from the Romano residence. You appeared to be affected by drugs or alcohol and as such you were conveyed to the Box Hill Hospital for treatment. Whilst at the hospital, you told police that you had not taken any drugs and that you could not remember anything that had happened.

25On 4 April 2018 at approximately 12.30am, you were discharged from hospital and returned to Box Hill Police Station. Investigators contacted a Forensic Medical Officer who advised that you would not be fit for interview until around 7am that morning. You were subsequently interviewed at 7.50 am.

26Throughout the interview, you maintained that you could not remember anything as you had consumed the majority of a 750ml bottle of Cointreau with a friend in Ringwood. However, I note that in evidence at the plea, you stated that you shared about half of the bottle with the friend you were with and that you also took two Xanax tablets.

27When the allegations were put to you, you said that you could not recall the events and said "it's crazy in my head right now" and "I can't believe it, it doesn't even sound like me". 

28You also stated that there had been previous occasions when you have had too much alcohol but that it had never gotten out of control to this level. You also stated in the interview that "I'm very low tolerant of alcohol" and "I'm not a good drunk. Everyone tells me I'm the worst drunk".

29In the interview, you made the following comments in relation to the victim Ms Romano. In summary you said:

·“I just can’t believe this is me”;

·“She would’ve been scared as hell”;

·“If I’ve hurt her, please, I can’t hear it, I don’t want to hear any more”;

·“Do you know if that old lady is alright” and

·“I’m happy to write an apology letter and pay for the damage and just do whatever”.

Objective seriousness of the offending

30Your offending on 3 April 2018, which began on the streets of Box Hill in the afternoon, and concluded in the home of Ms Josephine Romano, could only be described as very serious and disturbing offending. Mr Anderson who appeared on your behalf, accepted that your offending was serious. He also submitted and I accept, that your offending on this occasion was bizarre, alarming and shocking.

31Your behaviour on the streets of kicking cars and threatening people who you came in contact with, ultimately led to breaking into Ms Romano’ home. Ms Romano was a 79-year-old woman who was home alone. After breaking in, you violently assaulted her physically and sexually. Whatever the reason for your behaviour on this afternoon, your offending in totality can only be viewed as extremely serious.

32Mr Anderson submitted that the aggravated burglary charge, if viewed in isolation, is not a high end example of that offence. The intention, as particularised, is an intention to steal and at the time of entering there was a person present. However this is not an example of someone entering a home quietly in the dead of night while a person is sleeping in order to steal. This is an offence where an angry man smashed a window of a home in broad daylight while yelling. As soon as you were aware of the presence of Ms Romano, undeterred, you continued, approaching her to physically and sexually assault her.

33The offences that immediately followed the aggravated burglary amount to very serious offending. That said, I acknowledge that there is somewhat of an anomaly in that the maximum penalty for aggravated burglary is 25 years and thus more than the maximum penalty for the offences which you then committed after entry, being 10 years respectively. This type of anomaly was recognised by Justice Croucher AJA in DPP v Barnes[3] where His Honour said at [46]:

[I]t is hard to imagine an aggravated burglary ever properly attracting a sentence anywhere near its maximum penalty, or heavier than the order of sentence likely to be imposed for the more serious instances of offences to the person that might be committed after entry, if only because it would seem wrong to punish such burglarious behaviour, which does not cause physical harm, as heavily as the criminal behaviour that does cause very serious physical and/or psychological harm, such as rape, intentionally causing serious injury and the like. In my view, it is important to recognize this anomaly when having regard to the very high maximum penalty the legislature has fixed for aggravated burglary.

[3] [2015] VSCA 293.

34These distinctions of course are meaningless to the victims involved in such offences. What occurred here was that Ms Romano heard her window smash and realising what was occurring immediately screamed out for help. As she was calling for help you entered her kitchen, you grabbed a knife from a container, you threw the remainder of that container on the floor, you pushed the knife against her throat together with the threat ‘I will kill you, I will fuck you, give me a kiss’. You then proceeded to physically assault Ms Romano in her home including the sexual assault as described above. As such, in my view, the aggravated burglary cannot be viewed in the isolated way that was submitted

35Ms Romano was 79 years of age. This incident would have been extremely terrifying for her. You invaded the privacy, sanctity and relative security of her home and then violently attacked her for no apparent reason other than the venting of your internal rage.

36Your actions on the street leading up to the aggravated burglary are also disturbing. Joanne Chia was in her car when you climbed onto her roof and then kicked at her windscreen. This too would have been a frightening experience for Ms Chia.

37Your offending against Sukhvir Kaur involved you hitting her with a hose and then putting your hands around her neck and squeezing while your face was close to hers. You did this after Ms Kaur had observed your behaviour and, in a frightened state, ran to a nearby house for refuge. You followed her and she observed you hitting the walls of a house and pots on the veranda while yelling. There can be no doubt that Ms Kaur was extremely frightened. As she said in her victim impact statement: ‘I was just thinking that I am going to die’.

38While there has been some explanation as to your behaviour being that you had consumed approximately half a bottle of Cointreau together with two Xanax tablets, what has been unexplained is what motivated such anger within you. In a report that was tendered on the plea by Dr Nina Zimmerman, consultant psychiatrist, she concluded that the active drug in Xanax tablets that is, Alprazolam, increases disinhibition and the effects of alcohol. She also states that it can be associated with agitation, atypical risk-taking behaviour and aggression. While I accept that that may be the case, the effects of either the alcohol or the drugs or their combination set off an impulsivity which resulted in a violent reaction. In that state, it seems that you attacked anything in your path, be it a car, an object or a person.

Victim Impact Statements

39Two victim impact statements were tendered on the plea. The first was from Sukhvir Kaur and was read out loud at the plea. As noted above, Ms Kaur felt that her life was at risk at the time you attacked her. She notes that the offence has had a great impact and will stay with her for the rest of her life. She says she still cries thinking of that day, and that she does not want to go out anymore by herself rather, she is just scared.

40The second victim impact statement was prepared by Piero Romano, the son of Josephine Romano. The statement is a reflection of his observations of the state of his mother when he discovered her shortly after you had assaulted her. He notes that Ms Romano is afraid to go outside to the garden or even to go shopping. He notes that she loved gardening and cleaning however now she is always looking behind herself. Understandably, he observes that what should be the golden years of her life have been adversely affected as she no longer feels safe in her own home.

Personal circumstances

41You are now 20 years of age. You were 19 at the time of the offending. 

42You were born in Sudan and came to Australia with your family when you were aged two. You obtained citizenship in about 2001. You are the third youngest in a sibship of seven. Your parents have been in an on and off relationship for many years but you and your siblings have retained contact with both parents. Your father previously worked for the South Sudanese government however he has not worked since recently suffering a stroke which left him partially paralysed down one side of his body together with a speech defect. Your mother works overseas as the South Sudanese ambassador to Egypt and intermittently spends time living in Australia.

43You have two older brothers that live independently; the rest of your siblings reside with your father. You have a 26 year old brother who has taken over the paternal role since your father's stroke. You did not get on well with that brother and were involved in conflict with him leading to you being required to leave the home which resulted in recurring bouts of homelessness. You began to mix with people who use drugs and alcohol and who were occasionally involved in the criminal justice system. You began to adapt your behaviour to that of your friends. 

44You attended Mooroolbark College until year 10 where you left school at age 16. You completed two years of a roof tiling apprenticeship which you intend to complete on your release.

45You have a history of substance abuse, alcohol being the primary substance you have used most heavily. You first consumed alcohol when you were about 13 and have used heavily since the age of 16. You first smoked cannabis when you were 15 and you had smoked ice about three times a week in the period leading up to the offending.

46Since you were arrested in relation to this offending you have been on remand in the adult system at the Metropolitan Remand Centre. You have had some issues in custody. For example, you had undertaken a substance abuse course but saw no relevance in attending that group resulting in you losing your temper and threatening the worker. However since that time you have settled at the MRC and state that you get along well with the other prisoners. You have been mixing with older prisoners as in your view they provide you with better guidance than the younger people.

47You gave evidence at the plea where you confirm that you feel terrible about your behaviour on this particular day. You say you think about it every day. You also said that you accept that Ms Romano would have been scared. Further, that if there was anything you could do to fix it, you would do it. You said that none of your family members have ever been in trouble with the police and because of the shame you have suffered as a result of your actions, you have not permitted any persons to visit you in custody, including your family. You gave evidence that you produced clean urines whilst in custody and that you have involved yourself in three drug and alcohol courses. You have also involved yourself in education courses.

48Dr Nina Zimmerman noted that you were able to provide of a coherent account of yourself and that there was no evidence of formal thought disorder that could be associated with psychotic disorders. Further, there was no evidence of paranoid, religious or bizarre delusions. In short, there were no mental health issues which could be associated with your offending on this day.

49Dr Zimmerman does however report that the use of alprazolam (Xanax) increases disinhibition and the effects of alcohol. She notes that it can also be associated with agitation, atypical risk taking behaviour and aggression. She opines that it is likely that the underlying cause of your disordered thinking and impulse control was associated with your use of the combination of alcohol and alprazolam.

50Unsurprisingly, Dr Zimmerman concludes that reducing the risk of future offending will depend upon your engagement with services to assist you in remaining drug free and in forming a social network of friends to replace the group you have previously identified with in order to assist you in remaining out of trouble.

Sentencing considerations

51Mr Anderson submitted on your behalf that your plea was entered at the earliest available opportunity at the committal mention. I accept that your plea is an early plea and that it has saved the court time and the expense of a trial but most importantly, has saved the witnesses having to give evidence and relive the event.

52It was also submitted on your behalf that over and above the plea of guilty you have demonstrated genuine remorse. You gave sworn evidence at your plea and I accept that now you have had time to reflect, you have demonstrated genuine remorse for your actions and the effect they have had on the victims.

53The primary submission put on your behalf is that you are a young offender. You were 19 at the time of the offence and are now 20. You have never previously received a custodial order although your prior history is relevant. You were subject to a probation order in January 2016 which seems to have been varied in May of that year. You were placed on another probation order in June 2016 for further offending. Nonetheless, I accept you are a young offender and as such, rehabilitation should still play a central role in the sentencing equation. I also accept that if you are able to remain free of drugs and alcohol your prospects of rehabilitation are very good.

54Mr Anderson's ultimate submission was that you should be considered for a Youth Justice Centre disposition. He pointed to s 32(1) of the Sentencing Act 1991 which provides that a court may make a Youth Justice Centre order if it has received a presentence report and it believes that there are reasonable prospects for the rehabilitation of the young offender or it believes the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in adult prison.

55While I accept the well-settled principles in relation to young offenders, and that they do apply in your case, I must weigh those considerations with the seriousness of the offending in this instance.

56In Azzopardi v The Queen[4], having reviewed the established authorities in relation to young offenders, Redlich JA said at paragraph 44:

The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.

[4] (2011) 35 VR 43.

57Mr Glynn submitted that a Youth Justice Centre order in all the circumstances, including the seriousness of the offending, is not an appropriate disposition. He submitted that the offending is grave. As such he submitted that a consideration of a Youth Justice Centre order which is limited to four years, is overtaken by the seriousness of the offending. I am also mindful of the fact that other important sentencing considerations such as general and specific deterrence, denunciation of your conduct, community protection and just punishment must still be given consideration in the circumstances of this case.

58As I stated at the plea, it is a very difficult sentencing exercise when the court accepts on the one hand, as I do in this instance, that as a young offender rehabilitation still must be a paramount sentencing consideration while on the other, taking in to account whether or not all of the sentencing considerations can be met by the imposition of a Youth Justice Centre order.

59Taking into account all of the circumstances including your prior history, your age, the seriousness of the offending, and the fact that you have spent some six months in adult custody, in my view a Youth Justice Centre order is not appropriate in this instance. That said as a young offender, in my view a shorter non-parole period would be appropriate to enable you to enter the community after your period in custody resulting in a longer period of supervision to assist you in your rehabilitation.

Sentence

60Mr Dauch please stand.

61Jiokthiang David Dauch, in relation to charge 1 on the indictment, aggravated burglary, you are convicted and sentenced to 3 years and 6 months imprisonment.

62In relation to charge 2, sexual assault, you are convicted and sentenced to 2 years and 6 months imprisonment.

63In relation to charge 3, causing injury intentionally, you are convicted and sentenced to 2 years imprisonment.

64In relation to charge 4, attempted theft, you are convicted and sentenced to 6 months imprisonment.

65In relation to charges 5 and 6, criminal damage, you are convicted and sentenced to 6 months imprisonment on each charge.

66In relation to charge 7, common assault, you are convicted and sentenced to 18 months imprisonment.

67I direct that 6 months of charges 2, 3 and 7 be served cumulatively on each other and on charge 1.

68That makes for a total effective sentence of 5 years imprisonment. I direct that you serve a period of 2 years and 6 months before becoming eligible for parole.

69Pursuant to s 18 of the Sentencing Act 1991, I declare that 198 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.

70Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a period of imprisonment of 7 years with a non-parole period of 4 years.

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