Director of Public Prosecutions v Deng
[2024] VCC 2106
•20 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-23-01749
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MADUT DENG |
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JUDGE: | HER HONOUR JUDGE HARPER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial: 29, 30, 31 July 2024, 1 August 2024 | |
DATE OF SENTENCE: | 20 December 2024 | |
CASE MAY BE CITED AS: | DPP v Deng | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2106 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Aggravated home invasion, armed robbery
Legislation Cited: Sentencing Act 1991
Cases Cited:R v Verdins [2007] VSCA 102, DPP v Wol [2019] VSCA 268, Makieng v The Queen [2022] VSCA 52, Xiang v The King [2024] VSCA 165.
Sentence: TES: 6 years imprisonment NPP: 4 years imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. O’Toole | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr J. Miller | Shanelle Veit Lawyers |
HER HONOUR:
1Madut Deng, you were found guilty by a jury on 1 August 2024 of one charge of aggravated home invasion and two charges of armed robbery.
2The maximum penalty is 25 years imprisonment on each of the three charges before the court.
3I note that aggravated home invasion is a category 1 offence pursuant to the Sentencing Act 1991 meaning I must impose a term of imprisonment. It also has a mandatory minimum non-parole period of three years unless special reasons exist.
4Armed robbery, where the offence is committed by an offender in company, is a category 2 offence, meaning I must impose a term of imprisonment not in combination with a Community Corrections Order.
Circumstances of offending
5On 27 November 2022, two days before the offending, you were involved in a text exchange with a phone contact called 'Machine'. You were provided with a floor plan of a house in Atkinson Street, Chadstone and told the property was next to a job site. You were informed that the occupants might be home given it was a Sunday and that they could open the safe.
6At 5.22pm you said you were 'double checking all the boys' and securing 'tools' or weapons. At 11pm you said you were 'waiting on numbers'.
7At 1.28am on 28 November 2022, you told 'Machine' that 'it's looking like tomorrow night to be honest'.
8On 28 November 2022, at approximately 7pm, you and two unknown males were captured on CCTV attending Bunnings in Melton East. The three of you arrived in a blue Holden Commodore and purchased a crowbar.
9At 2.13am on 29 November 2022, you were in a blue Holden Commodore that stopped in the carpark of the Comfort Motel in East Melbourne. Your co-accused Deng Malwal, got into the car, wearing a blue hooded jumper, black pants and runners and carrying a grey bag with a red strap.
10After travelling a short distance, you and your co-offenders in the Commodore got into a silver Volvo, bearing stolen registration plates 1VB9QW. Citylink records show that the Volvo was detected travelling eastbound at Toorak Road at 2.35am. You were travelling towards the complainants' residence.
11At 3.17am Dmitry Li and Jayme McCormack were in their respective bedrooms at their Atkinson Street, Chadstone adress, Li on the first floor and McCormack on the ground floor. Both were using their computers.
12CCTV inside the front door of the complainant's premises showed an unknown male carrying a crowbar and wearing a grey bag with a red strap enter via the rear door. You, the second male, entered via the rear door carrying a silver crowbar. Unknown male one opened the front door, letting two further males into the house, the first being unknown male two who was carrying a baseball bat and the next being Deng Malwal, carrying a machete. Unknown male three then entered via the rear door, also carrying a machete.
13Once inside the house, unknown male one directed you and unknown male three upstairs while he and Malwal entered McCormack's bedroom. Unknown male two also went upstairs.
14Li, in the upstairs bedroom, saw the weapons as you and unknown male three entered his bedroom and one of you said 'get down' as you struck him to the head with the crowbar. I note you are not to be sentenced for causing injury.
15You forced Li downstairs, striking him to the ribs and back as you did so. While this was happening, Malwal and unknown male one entered McCormack's bedroom, unknown male one placing his hand over McCormack's mouth as Malwal entered the room. This was captured on CCTV footage.
16Malwal and unknown male one demanded cash, drugs, jewellery and guns and threatened to stab and kill McCormack, striking him several times. Malwal pressed his knife against McCormack while speaking to him.
17For a couple of minutes Malwal and unknown male one searched McCormack's bedroom before Malwal left the room and you entered. After 2 minutes, unknown male one exited McCormack's bedroom and turned the CCTV camera to face the wall.
18A watch, two pairs of shoes, a computer, a phone and approximately $2,000 in cash were stolen from McCormack's bedroom.
19Having located a souvenir shotgun cartridge, you and your co-accused asked for the location of the gun but there was not one in the house.
20In the kitchen, you and your co-accused continued to make demands of Li for money and a safe. His phone was taken and demands were made for his PIN. After some 5 minutes, McCormack was forced to join Li in the kitchen. Further demands were made and a mobile phone, desktop computer tower, post office box key and a CCTV camera belonging to Li were stolen.
21Between five and ten minutes later, one of your group called out, at which point you and all of your co-accused ran out of the door and left the property. Li used an old phone to call police.
22Citylink records reveal that at 3.47am the Volvo was travelling westbound at Toorak Road. At 4am, you, Malwal and the three unknown males returned to your address.
23You were arrested on 30 November 2022 at your home and your phone was seized.
24I am satisfied that on the way the trial was run, the jury must have been satisfied that you were male two in the home invasion and in the armed robbery and that you were armed with a crowbar upon entry into the house.
Gravity of the offending
25This offending was planned, committed in company, in the middle of the night and disguises were worn. You entered quietly, surprising your victims. The CCTV of you all creeping into the house is chilling. You threatened your victims, struck Li with the crowbar and moved both victims to the kitchen of the property where you menaced them with weapons before stealing from them.
26You were active in the planning of the offence as evidenced by the text messages and your attendance at Bunnings to buy the crowbar with which you were armed. You knew your co-offenders had bladed weapons. It is at least a mid-range example of the offence of aggravated home invasion.
Victim Impact
27
Dmitry Li, one of the victims of your offending, provided a Victim Impact Statement outlining the negative impact of the offending on his life and on his wellbeing. His sleep has been disturbed, he is distrustful of people and feels that he is on 'high alert'. This is not surprising given the nature of the offending that you and your
co-accused subjected him to. I take this into account.
Personal circumstances
28You are now 20 years of age, having been born in August 2004.
29You are of South Sudanese descent and were born in Kenya where you lived for the first 2 ½ years of your life before your family moved to Sydney in 2007. You have six sisters and five brothers.
30When you were aged four your family moved to Adelaide where you remained until you were 10. Your primary education was completed in Adelaide.
31At the age of 9 you were the subject of a seemingly racially motivated and unprovoked physical attack by a stranger.
32Your family moved to Melbourne and your parents then separated when you were aged 11. You lived with your siblings and your mother while your father returned to Kenya. Your parents continue to have an amicable relationship.
33Your secondary education was at Catholic Regional College in Sydenham and Melton from Years 7 to 12. Your academic performance was good but you experienced conflict with students and then with teachers in circumstances where you felt bullied.
34When you were aged approximately 14 you returned to South Sudan for a period of three to four months during which you became very unwell and believe you had malaria.
35You completed work experience during Year 10 in construction and gradually increased your involvement in this area while you completed your Year 12 in the VCAL pathway. You then worked in a scrap yard and in labouring before completing pick packing for a month until your remand.
36You commenced a relationship when you were 17 but that ended after two years. Prior to your remand you were residing in Weir Views with your siblings. Your mother lived nearby and your father would come and go. You are very close to your immediate family and to your cousins.
37You began using cannabis at the age of 14 or 15, began drinking socially at age 18 and have continually used benzodiazepines, methylamphetamine, MDMA, Xanax and other prescription medication since then.
38You completed a court mandated drug and alcohol course from March to April 2023.
39Since being remanded you have worked in the commercial kitchen at Ravenhall. You have enrolled in the Bridge Program and intend to commence learning a trade through this service shortly.
40I received a psychological assessment from Gina Cidoni dated September 2023, together with a neuropsychological report from Dr Laura Anderson dated 3 December 2024. I also heard evidence from Dr Anderson on the plea.
41Ms Cidoni took a social history from you in which you reported minimal drug use. While she did not assess your full-scale IQ, she did assess your cognitive functioning and determined that you have attention deficit hyperactivity disorder (ADHD). This results in impulsivity and difficulties in maintaining focus.
42Dr Anderson assessed you on two occasions in which you appear to have provided considerably more detail than you did to Ms Cidoni. Dr Anderson conducted further testing and determined your full-scale IQ to be 89. In her report, she diagnosed you with:
(a) Attention deficit hyperactivity disorder (ADHD);
(b) Post traumatic stress disorder (PTSD);
(c) Unspecified mild neurocognitive disorder;
(d) Suicidal behaviour disorder;
(e) Alcohol use disorder;
(f) Cannabis use disorder;
(g) Sedative, hypnotic or anxiolytic use disorder; and
(h) Stimulant use disorder.
43Dr Anderson opined that your neurodevelopmental disorder, namely ADHD, is permanent in nature. She found it highly likely that you will continue to demonstrate features of PTSD in the foreseeable future. Both conditions have contributed to significant emotional and behavioural dysregulation. I accept that you suffer from these conditions and that they are of an ongoing nature.
44While I am grateful for her assistance, I note that Dr Anderson in her report then purported to apply your diagnosed conditions to the Sentencing Act 1991 factors, which is not her role, although I do note that she was answering specific questions from your solicitor.
45I will return to Dr Anderson's oral evidence and its impact on the sentencing exercise below.
Parity
46In relation to this offending, Deng Malwal pleaded guilty to one charge of aggravated home invasion, for which he was sentenced to four years imprisonment, and one rolled up charge of armed robbery for which he was sentenced to two years imprisonment.
47While Mr Malwal had Children's Court prior convictions, he was also aged 18 at the time of the offending. There was no evidence to suggest his involvement prior to an hour before the offending, whereas your involvement spanned several days.
Sentencing principles and factors
48You are a young offender and given your age, rehabilitation would usually have a primary role in the sentencing exercise. While still relevant, in your case this must be tempered by general and specific deterrence.
49As held in Makieng v The Queen [2022] VSCA 52 at [44]:
'The authorities also make clear, however, that in cases involving serious violence, whilst an offender’s youthfulness and rehabilitation – both achieved and prospective – are not irrelevant in the exercise of the sentencing discretion, they are of much less significance than in cases of less serious offending. Youth and rehabilitation must be subjugated to other considerations. Indeed they must take a ‘back seat’ to specific and general deterrence in cases of violent offending...'
50Home invasions are increasingly prevalent and community protection must be given due weight in the sentencing synthesis. People have the right to feel safe within their own homes and the community must be protected from actions such as yours. Your offending would have been utterly terrifying for your victims.
51Denunciation and just punishment are also relevant sentencing considerations, in combination with the other factors to which I have given weight.
52You have no prior convictions and fall to be sentenced as a first-time offender. I do note you have a number of subsequent matters, one of which was an aggravated home invasion committed before the instant offending and for which you were sentenced to a non-conviction Youth Supervision Order.
53I received two Youth Justice Supervised Bail Progress Reports dated December 2023 and July 2024. The 2023 report noted that you had not had any further involvement with police during the reporting period and the 2024 report noted an improvement in your commitment to attend and comply with supervised bail requirements after a formal warning.
54While Dr Anderson did not conduct a formal risk assessment, she gave evidence that you may in fact seek out risk taking behaviours in the future because of your ADHD and the 'dopamine rush' that offending gives you. When combined with your drug taking and your antisocial peers, this is clearly a cause for concern.
55Dr Anderson said PTSD is a background factor to your offending in that you are not as likely to engage in clear thoughtful contemplation of the impact of the offending. She further emphasised your impulsive nature, arising as a consequence of your ADHD. I observe that you were however, actively involved in the planning of this offence for some days prior. It was neither impulsive nor spontaneous.
56Your prospects of rehabilitation are nevertheless fair given your age. You are not an entrenched offender, however I do note the subsequent matter which occurred earlier in time than the instant offending. Your rehabilitation is contingent on you remaining drug free and engaging in treatment for your cognitive conditions. While they may not be able to be cured, these conditions can be managed.
Verdins
57Mr Miller submitted that limbs 5 and 6 of R v Verdins [2007] VSCA 102 apply in your case. I accept, as does the prosecutor, Mr O'Toole, that your ADHD and PTSD will make prison somewhat more onerous for you than for a prisoner without these conditions, establishing limb 5.
58I am not persuaded that limb 6 has application as the evidence of Dr Anderson did not reach higher than a possibility of deterioration of your conditions. She in fact gave evidence that ADHD does not fluctuate and that you are coping satisfactorily in the prison environment. There must be a real risk of your condition deteriorating in order to establish limb 6 and I am not satisfied this is made out.
Sentencing submissions
59Mr O'Toole for the prosecution submitted that a head sentence and non-parole period are called for in this case and that neither the exceptions to the mandatory minimum non-parole period nor the provisions allowing for a Youth Justice Centre order, both of which I will discuss shortly, are made out.
60Mr Miller submitted that there is an exception established to the mandatory imposition of a minimum non-parole period. Further, he submitted I should have you assessed for a Youth Justice order.
Mandatory minimum non-parole period
61The Sentencing Act 1991 requires that I impose a term of imprisonment for aggravated home invasion and fix under s.11 a non-parole period of not less than three years unless a special reason exists.
62Your counsel, Mr. Miller, submitted that pursuant to s.10A of the Sentencing Act 1991, a special reason does exist, namely that you suffer from 'impaired mental functioning', specifically a 'neurological impairment'.
63S.10A(2)(c)(1) provides an exception to the mandatory minimum non-parole period where “subject to subsection (2A), at the time of the commission of the offence, he or she had impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces the offender’s culpability.”
64S.(2A) provides that 'this section does not apply to impaired mental functioning caused substantially by self-induced intoxication'.
65On the evidence of Dr Anderson, your ADHD did not cause you to commit the offence. Further, she opined, there is no clear link between PTSD and the offending. She also suggested that you were heavily intoxicated at the time of the offending.
66Accordingly, I do not see a sufficient causal connection between your cognitive impairments and the commission of the offence to invoke the exception. Further, you were suffering from substantial self-induced intoxication at the time of the offending.
67Mr Miller further relied on s.10A(2)(c)(ii) which provides an exception in circumstances where “he or she has impaired mental function in that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.”
68Mr Miller submitted that due to your impaired mental function, by virtue of your ADHD and your PTSD, you would be in a state of constant 'fight or flight' in custody. He submitted that you are likely to experience symptomology in a controlled environment.
69On the evidence of Dr Anderson, I do not consider this exception to be established. She opined that ADHD does not fluctuate, although you may feel an elevation in hyper vigilance. Given the nature of the prison environment, I do not consider this to be a substantially or materially greater burden or risk of imprisonment than to the ordinary prisoner.
Category A Serious Youth Offence
70Aggravated home invasion is a Category A serious youth offence – before imposing a period of youth detention the court must be satisfied that exceptional circumstances exist.
71S.32 of the Sentencing Act 1991 provides that (1) “Subject to subsections (2A), (2B), (2C) and (2D, if a sentence involving confinement is justified in respect of a young offender a court may make a youth justice centre order or a youth residential centre order if it has received a pre-sentence report and (a) it believes that there are reasonable prospects for the rehabilitation for the young offender; or (b) it believes that the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison.”
72S.32(2) states that “in determining whether to make a youth justice centre order or a youth residential centre order, a court must have regard to – (a) the nature of the offence; and (b) the age, character and past history of the young offender.”
73While, as I have stated above, I consider that you have reasonable prospects of rehabilitation, there is no evidence before me that you are particularly impressionable, immature or likely to be subjected to undesirable influences in adult prison, where you are currently remanded.
74
Turning to s.32(2), I consider this to be a serious example of the offence of aggravated home invasion. You are now 20, have been in adult remand for
150 days and committed another aggravated home invasion shortly before this offending which you were later sentenced for. You are of course not to be sentenced for that other offence again, however I consider it relevant to note as a feature of your background.
75Overall, I do not consider that your circumstances are so exceptional as to warrant assessment for a Youth Justice Centre Order.
76Armed robbery is also a category two offence for which I must impose a term of imprisonment, not combined with a Community Corrections Order.
Case law
77I was provided with several relevant sentencing decisions by Mr O'Toole for the prosecution, namely DPP v Wol [2019] VSCA 268, Makieng v The Queen [2022] VSCA 52 and Xiang v The King [2024] VSCA 165. I take these cases into account insofar as they are relevant to the instant offending.
Disposition
78On Charge 1, aggravated home invasion, you are sentenced to five years imprisonment.
79On Charge 2, armed robbery, you are sentenced to 18 months imprisonment.
80On Charge 3, armed robbery, you are sentenced to 18 months imprisonment.
81I direct that Charge 1 be the base sentence.
82I direct that six months of the sentence imposed on Charge 2 and six months of the sentence imposed on Charge 3 be served cumulatively upon the sentence imposed on Charge 1 and on each other.
83That makes a total effective sentence of six years imprisonment.
84I direct that you serve a minimum non-parole period of four years imprisonment.
85I declare that you have served 150 days of pre-sentence detention pursuant to s18 of the Sentencing Act 1991, excluding today.
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