Director of Public Prosecutions v Deng
[2023] VCC 1514
•24 August 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01221
CR-22-01222
CR-22-01223
CR-22-01225
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PADIET DENG KENA IBSA BISHOY GEORGE ERIC BIZIMUNGU |
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JUDGE: | His Honour Judge Wraight | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 August 2023 | |
DATE OF SENTENCE: | 24 August 2023 | |
CASE MAY BE CITED AS: | DPP v Deng & Ors | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1514 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing
Catchwords: Plea of guilty – Aggravated burglary – Theft – Possess a drug of dependence – Commit indictable offence whilst on bail – Relevant criminal history – Offending in company – Bugmy – Verdins – Principle of totality – COVID-19 pandemic.
Legislation Cited: Crimes Act 1958 ss 74, 77; Drugs Poisons and Controlled Substances Act 1981 s 73(1); Bail Act 1977 s 30B; Sentencing Act 1991 ss 6AAA, 18.
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Azzopardi v The Queen (2011) 35 VR 43; Bugmy v The Queen (2013) 249 CLR 571.
Sentence: Imprisonment for a period of 4 years and 4 months with a non parole period of 2 years and 2 months (Deng); imprisonment for a period of 118 days and a 3 year community correction order, and an aggregate fine of $1,000 (Ibsa); imprisonment for a period of 102 days and a 3 year community correction order, and an aggregate fine of $1,000 (George); imprisonment for a period of 4 years with a non parole period of 2 years (Bizimungu).
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr G Buchhorn | Office of Public Prosecutions |
| For Padiet Deng | Mr I Polak | May Lawyers |
| For Kena Ibsa | Ms J Swiney | Greg Thomas Lawyers |
| For Bishoy George | Mr A Malik | James Dowsley & Associates |
| For Eric Bizimungu | Ms K Rolf | Gallant Law |
HIS HONOUR:
1Padiet Deng, Kena Ibsa, Bishoy George and Eric Bizimungu, on Indictment C2114886.1, you have pleaded guilty to:
(a) one charge of aggravated burglary contrary to s 77 of the Crimes Act 1958 (‘Crimes Act’), which carries a maximum penalty of 25 years imprisonment (Charge 1 and Charge 2);
(b) one charge of theft contrary to s 74 of the Crimes Act, which carries a maximum penalty of 10 years imprisonment (Charge 3); and
(c) one charge of possess a drug of dependence contrary to s 73(1) of the Drugs Poisons and Controlled Substances Act 1981 (‘Drugs Poisons and Controlled Substances Act’), which, in this instance, carries a maximum penalty of 5 years imprisonment (Charge 4).
2Padiet Deng, Kena Ibsa and Eric Bizimungu, you have also pleaded guilty to the related summary charge of committing an indictable offence whilst on bail contrary to s 30B of the Bail Act 1977 (‘Bail Act’), which carries a maximum penalty of 3 months imprisonment (Summary Charge 6 in each case).
3Padiet Deng and Eric Bizimungu, you have each admitted your prior criminal record.
4Bishoy George and Kena Ibsa, neither of you have prior criminal records.
Circumstances of the offending
5Padiet Deng, you are 25 years old. You were 23 years old at the time of the offending and living in Dandenong North.
6Kena Ibsa, you are 24 years old. You were 22 years old at the time of the offending and living in Noble Park.
7Bishoy George, you are 21 years old. You were 19 years old at the time of the offending and living in Hallam.
8Eric Bizimungu, you are 24 years old. You were 22 years old at the time of the offending and living in Dandenong.
9The victims in these matters are Nathan Shuttleworth, Maddison McCann and their two young children, Bradley Granato and his two young children and a child of a friend to Mr Shuttleworth and Ms McCann, who they were looking after on the night of your offending. They were all residing at a Pakenham residence that evening.
10At approximately 9.30 pm, Mr Shuttleworth and Ms McCann were in the master bedroom which is located at the front of the house. They were both watching television. Mr Granato was asleep on the couch in the living area. The children were asleep in different rooms, including bedrooms located at the back of the house.
11At about 11.44 pm, CCTV from the house depicts a dark-coloured Mazda CX-9 arrived outside the residence and parked on the street.
12Three of you, Padiet Deng, Bishoy George and Kena Ibsa, exited the car and approached Mr Shuttleworth’s Ford Ranger which was parked on the nature strip in front of the house.
13The three of you returned to the Mazda, and then approached the front door of the house. You are all captured on CCTV footage.
14While in the master bedroom, Ms McCann and Mr Shuttleworth could hear male voices from outside the bedroom window. They attempted to check the CCTV footage using their mobile phones but could not connect to the cameras.
15At the same time, you, Kena Ibsa, used a silver baseball bat to turn the front door camera away from the front door.
16Ms McCann walked to the front door and moved aside the blind to look through the front door panel window. She observed a tall skinny Caucasian man wearing black clothing and a blue face mask. The prosecution allege that this person was you, Bishoy George.
17You used the black torch you were carrying to smash the glass panel. This caused fragments of glass to hit Ms McCann in the face.
18After the window was smashed, Ms McCann yelled out, ‘I’m calling the cops’. One of you responded, ‘I don’t give a fuck’.
19Hearing the commotion at the front door, Mr Granato approached the door and said, ‘There’s kids here’. One of you then again replied, ‘I don’t give a fuck’.
20You, Bishoy George, then put your hand through the broken window and unlocked the front door from the inside. You, along with Kena Ibsa and Padiet Deng, then entered the house through the front door.
21At this time, Eric Bizimungu, you were in the Mazda CX-9.
22Mr Shuttleworth was still in the master bedroom when the three of you were in the front entry area. One of the three of you, described as over six feet tall, with black skin and speaking with an African accent, then entered the master bedroom and confronted Mr Shuttleworth telling him to stay on the bed, which he did. That same offender then held a black taser to the right side of Mr Shuttleworth’s neck and discharged an electric current. The Prosecution is unable to identify which of the three of you is responsible and as such a charge in relation to this conduct is not proceeding against any of you.
23The male stood in the doorway preventing Mr Shuttleworth from leaving. He could hear the men elsewhere demanding keys, phones and wallets, and one person asking for the ‘real’ keys.
24As this was occurring, Ms McCann ran to the rear bedrooms to check on the children. She called the police from inside the bedroom.
25While inside one of the children’s bedrooms, Ms McCann opened the door to peak outside. She saw Mr Granato laying on his back trying to defend himself. She heard him say, ‘My kids bro, I have kids here’, and a voice reply, ‘I don’t care’. This voice was not the same as the person who smashed the window.
26One of you then entered the bedroom in which McCann was hiding. As you entered the room, Ms McCann ended the call with the police. The male yelled out, ‘Hand over your money and your keys’. Ms McCann stated, ‘I have kids in here’. The male replied, ‘I don’t give a fuck about the kids’. Ms McCann described this person as a man in his twenties with a ‘stocky build’ and of Sudanese appearance, wearing a black balaclava with light stitching.
27CCTV footage depicts you, Bishoy George, exiting the house through the meals area into an outdoor area covered by a pergola. You unsuccessfully attempted to open the door of a locked Holden Commodore before returning inside the residence.
28At some stage during the offending, Mr Shuttleworth had his wallet containing personal cards and approximately $300 stolen, along with his car keys for the Ford Ranger and a Holden HSV GTS (which was parked in the garage), which were taken from his bedside table.
29CCTV footage depicts you, Padiet Deng and you, Kena Ibsa, then exit the house through the meals area into the outdoor area covered by a pergola. You, Kena Ibsa, can be seen carrying the baseball bat. You proceeded towards the garage, opened the roller door, entered the garage, and closed the roller door. You, Bishoy George, briefly came out into the outdoor area before re-entering the house. You, Padiet Deng, and you, Kena Ibsa, then exited the garage and returned inside the residence.
30Shortly after this, CCTV footage depicts you, Padiet Deng, running out of the front of the house and using Mr Shuttleworth’s keys to open the driver’s door of the Ford Ranger. You, Eric Bizimungu, are depicted exiting the Mazda CX-9 and approaching the Ford Ranger. You then run toward the house while you, Padiet Deng, remained with the vehicles. The prosecution does not allege that you, Eric Bizimungu, entered the house or that you were aware that the co-accused had the baseball bat upon their initial entry into the house.
31CCTV footage then depicts three of you, being Eric Bizimnugu, Kena Ibsa and Bishoy George, running away from the house toward the Mazda CX-9. The prosecution allege that you, Eric Bizimungu, are carrying a large bag. All four of you then entered the Mazda and drove off in a westerly direction along Greendale Boulevard. (Charges 1 and 2 – Aggravated burglary)
32Ms McCann remained inside the bedroom until she heard Mr Granato say, ‘Maddy, I’m bleeding, they have gone’. Mr Granato was later observed to have sustained a cut to his head, which was bleeding. An ambulance took him to hospital.
33In response to a task to attend an address in Pakenham in relation to a burglary that was occurring, Sergeant Stefan Schmitzer and Constable Amy Hall travelled in a marked divisional car to the Pakenham residence. As they arrived they observed the Mazda reversing from the Pakenham residence at a fast speed before driving over a nature strip. This manoeuvre resulted in the right rear tyre popping.
34Sergeant Schmitzer and Constable Hall began to pursue the Mazda, activating their red and blue flashing lights in the process. The Mazda travelled through various residential streets in the immediate vicinity. At different stages, the Mazda has wrongly traversed several roundabouts and travelled on the wrong side of the road. After reaching Park Boulevard, the Mazda turned left onto McGregor Road. The Mazda drove south, including through the McGregor Road and Henry Road intersection contrary to a red traffic signal.
35After crossing the Princess Freeway overpass, the Mazda wrongly traversed another roundabout and turned right onto the Princess Freeway.
36By this stage, the Victoria Police Airwing had begun to follow the Mazda. The Mazda was observed stopping approximately 1.5 kilometres west of the Cardinia Road overpass in the vicinity of Lecky Road in Officer.
37Sergeant Schmizer and Constable Hall caught up with the vehicle which had been abandoned with all four doors open and the engine running.
38Constable Hall searched the vehicle and seized a variety of items including:
(a) three mobile phones;
(b) a metal baseball bat with black handle on the floor behind the driver’s seat; and
(c) a black bag containing a wallet and cards in the name of Eric Bizimungu.
39Constable Hall also located Mr Shuttleworth’s personal cards and some cash about three metres in front of the Mazda.
40During a search of the grassland next to the Princess Freeway, Leading Senior Constable Scott Rosomacki and police dog Fargo located a black Adidas jumper, a yellow Champion jumper and a large red, white and blue striped tarpaulin bag containing cannabis. The Crown allege this bag is the same one taken from the Pakenham residence. (Charge 4 – Possession of a drug of dependence).
41At the time of the offending, three of you, being Padiet Deng, Kena Ibsa and Eric Bizimungu were each on bail which gives rise to Related Summary Charge 6 in relation to each of you – commit indictable offence while on bail.
42On 29 October 2021 at 12.25 am, Sergeant Schmitzer located you, Kena Ibsa, in grassland approximately 200 metres southeast of the abandoned Mazda, and arrested you.
43About 15 minutes later at 12.40 am, Leading Senior Constable Rosomacki located you, Padiet Deng, and you, Bishoy George, in grassland off Lecky Road and you were both arrested.
44Leading Senior Constable Rosomacki and police dog Fargo then continued to search for you, Eric Bizmungu. About one hour later at 1:48 am, you were located near a waterway approximately 500 metres from the Princess Freeway and arrested.
45All four of you voluntarily provided a sample of forensic material for the purpose of deriving a DNA profile. Each of you were interviewed and made no admissions to the offending, however, various comments that were made by each of you are summarised in the prosecution opening.
46On 1 November 2021, police searched the Mazda and seized:
(a) a black torch in the front centre console with damage observed to the top. The prosecution allege this torch was the one used by you, Bishoy George, to smash the window to gain entry to the Pakenham residence;
(b) a black taser in the driver’s footwell, which had ‘Police’ emblazoned on its side and was disguised to look like a torch. The taser was operable when tested. The prosecution allege this taser was used by one of you to assault Mr Shuttleworth when in the master bedroom;
(c) an Oppo mobile phone belonging to Mr Granato;
(d) a black balaclava, which the prosecution allege was worn by you, Padiet Deng, during the course of the offending; and
(e) a ‘Cruiser’ bottle.
47Emily Sowter, a botanist at the Forensic Services Centre of Victoria Police, analysed the substances found in the bag and determined that it was cannabis. The total weight of the cannabis was 5.73 kilograms.
Nature and gravity of the offending
48Aggravated burglary is by its nature a serious offence, reflected in the maximum penalty of 25 years imprisonment.
49In this instance, the prosecution submit that this is a serious example of the offence for the following reasons: the offending was confrontational; it was committed late at night; it was committed in the victim’s home where children were also present; force was used to enter the house by breaking a glass window; the offence was committed as a group; the offence was planned, and the offence involved the use of weapons being a baseball bat, an item that look like a torch, and a taser.
50The prosecution case is that each of you were involved in the offence either as principles or were complicit with each other pursuant to s 323(1)(a) of the Crimes Act. In the case of you, Eric Bizimungu, it is not alleged that you entered the house or that you had knowledge of the weapons used by the other co-offenders. As such the charge of aggravated burglary that you face has different particulars.
51In my view this is a serious example of the offence of aggravated burglary. This was clearly a planned attack, with three of you entering the home knowing or being reckless to the fact that there were people inside. Further, once in the home, you were told by two of the adult victims that there were children in the house, which had no effect on your determination. While you, Eric Bizimungu, did not enter the home or have knowledge of the weapons, you nonetheless played an active role supporting the others and carrying away items taken.
52While no victim impact statements have been filed, it is self-evident that this would have been a frightening experience for the occupants when confronted by you in their home, where they are entitled to feel safe.
53As to the possession charge, in my view, given the weight of the cannabis in your possession, I am not satisfied that the drugs were possessed for a non-trafficking purpose and thus the higher maximum penalty applies. That said, you were only in possession for a very short period of time.
Personal circumstances
Padiet Deng
54Padiet Deng, you were born and raised in Kenya. You are now 25 years of age. Your father and other relatives were killed during the South Sudan war, and your early childhood was marred by other extreme violence. At 11 years old your mother, three siblings and you immigrated to Australia.
55Prior to coming to Australia, you had not attended school and spoke limited English. You initially resided in Bendigo. While you struggled to adapt to new and unfamiliar surroundings and felt culturally isolated, you were nonetheless a good student and rarely got into trouble. You moved to Dandenong where you formed strong ties with other peers who shared similar interests and you culturally connected with. You completed Year 11 but negative peer influence resulted in you criminally offending. You reported that you initially did not know about their antisocial behaviours but maintained these associations because you felt like you belonged, and you feared social rejection.
56You have a relevant and not insignificant prior criminal history, including priors for aggravated burglary, theft and dishonesty offences, and contraventions of youth supervision orders and bail conditions. You were first detained in a Youth Justice Centre just before your 18th birthday after breaching a youth supervision order imposed less than three months earlier. Since then, you have spent time in and out of youth detention and adult custody. You reported that you were often released without supervision or supports.
57You have had sporadic and unstable employment, obtaining casual roles at a butcher, a pizza shop and in plumbing, with periods in incarceration causing disruption. You have also been involved in your brother’s youth work which aims to assist young people experiencing mental health and substance use problems, using your own experiences to deter young people from criminally offending. You currently work as a cleaner in custody but have a long-term goal of establishing your own recording and music studio.
58You have a long-term partner who you report is the ‘best thing’ in keeping you out of trouble. You have had brief separations due to your reoffending, however she remains supportive of you. Your family are supportive of you and your aspirations, having offered accommodation, support and job seeking assistance upon your release.
59Three character references were tendered at the plea hearing. They speak to your positive change in behaviour after being released for a period on bail for this matter. Your brother, Mun Deng, states that you shouldered parental responsibilities in your adolescence due to your father’s absence. He describes you as a kind, caring and giving person who is focused on supporting your family upon release.
60Malesh Jada Eile, a youth worker who met you at the Parkville Youth Justice Centre seven years ago, states that you were always respectful towards staff and students and are a charismatic and intelligent person who is a natural leader. Mr Eile has maintained contact with you while you have been incarcerated and has offered to provide support post-release.
61Mr John Leloudas, who has known you for five years, also provided a reference. He describes himself as a mentor to you and somewhat of a father figure. He writes that you are a kind person and he is willing to provide you with employment at his boxing gym upon your release.
62A report dated 5 August 2023 prepared by forensic psychologist, Naomi Cameron, was tendered on the plea. Ms Cameron reported that your exposure to violence and instability in your early childhood, the death of your father, other family members and friends in your late adolescence, and the associated unresolved grief combined with alleged physical assaults in prison, contributed to your Complex Post-Traumatic Stress Disorder diagnosis. It is noted that you become hypersensitive to perceived threats and respond aggressively.
63Ms Cameron also reported that you have an Alcohol Use Disorder and Cannabis Use Disorder which are in remission due to your incarceration. You began drinking at the age of 18, which increased to daily use after the death of your friend and grandmother and again during the pandemic. Prior to this offending, you also began consuming cannabis and non-prescribed Xanax daily. You turned to these substances to self-medicate, increasing the frequency and quantity in periods of personal crisis and hardship. You were categorised as a moderate risk of reoffending with Ms Cameron noting that your risk would increase if you were to relapse into substance abuse and re-associate with antisocial peers.
Kena Ibsa
64Kena Ibsa, your personal history is outlined in the psychological report of Gina Cidoni dated 3 January 2022, which was tendered on the plea. It can be summarised as follows:
65You are currently 24 years old. You were born in Ethiopia before moving to Kenya for a year. You remember very little about your childhood in Ethiopia but know that you were exposed to war and lost family members. At the age of five, you and your family arrived in Australia as a refugees.
66Your family struggled with the war in your home country, followed by refugee camp experiences and settling into a new country. You reported that your father’s poor mental health problem contributed to him physically assaulting you and your mother. Your mother has recently had surgery on her shoulder and requires your assistance around the house. Your parents remain supportive of you.
67You attended Noble Park Primary School and Secondary College and completed Year 12. You did not enjoy school as you were both physically and verbally bullied. You were suspended from school for being violent against both students and teachers. Nonetheless you completed the year.
68You began using cannabis at the age of 16, alcohol socially when you were aged 18, and Xanax at aged 21. Your consumption of these substances increased to daily use immediately prior to your remand on these matters. You also began using psychedelics daily, four or five months before being remanded and have also tried cocaine and ecstasy a couple of times. Ms Cidoni suggests that low supervision at home during your adolescence lead to you connecting with displaced peers with similar experiences and low maturity level.
69At the age of 21, you moved out of the family home and resided with your sister. You and your sister argued, and you ultimately moved back into the family home after two months. You then moved in with friends prior to your remand. You have a fractured relationship with your two sisters and have not been in contact with them in recent months.
70You have had one intimate relationship when you were in Year 11, which lasted 18 months.
71In your adolescence, you gained casual employment at McDonald’s and Target. You were a factory worker prior to your incarceration but were let go because you were unvaccinated. You currently work as a machine operator at a factory, working five to six days a week. You have obtained your traffic control certificate and hope to gain employment in this industry.
72You reported no major illnesses or mental health diagnosis although you stated that you struggled to cope with the passing of both of your grandmothers in early 2021 and that you dream about stabbings and dead people in the street, which you link to your childhood experiences overseas. Ms Cidoni opined that you have Post-Traumatic Stress Disorder (PTSD), Generalised Anxiety Disorder and Persistent Depressive Disorder, which she attributed to intergenerational trauma and childhood domestic violence. You turned to substances to self-medicate.
73You balance your employment with playing basketball and now have prosocial friends. You have gained your driver licence since your release.
Bishoy George
74Bishoy George, you were born and raised in Melbourne and are now 21 years old. You had a stable upbringing and are the youngest of three children. Your parents emigrated to Australia from Egypt in the early 1990s and your father was the main provider. Your family are supportive of you and were present at the plea hearing.
75You attended Oakleigh Grammar until Year 8 and St Francis Xavier College thereafter. You undertook VCAL in Years 11 and 12, completing a Certificate II in plumbing. You struggled at school but achieved adequate literacy and numeracy skills. Symptoms of Attention Deficit Hyperactivity Disorder (ADHD) were identified in primary school and a possible diagnosis identified during an initial assessment. A further assessment was recommended but did not occur.
76At 15, you began using alcohol and cannabis after school. This escalated to daily use prior to your arrest on the matters before this Court. You have remained largely abstinent after release from custody, with one relapse during 2022.
77You have no relevant prior criminal history. On release from custody on the matters currently before this Court, you were subject to supervised bail which included counselling and mental health conditions. You were compliant and the condition was removed from your bail on 4 April 2023.
78Two psychological reports by Laura Flemming, dated 16 December 2021 and 19 June 2023 were tendered on the plea. She reported that the time of the offending, you met the criteria for a diagnosis of Cannabis Use Disorder, Major Depressive Disorder (MDD), Adjustment Disorder and probable ADHD. Ms Flemming opined that your Adjustment Disorder has since resolved, and your Cannabis Use Disorder and MDD are in remission. She also reported that you do not present with ADHD currently, noting that it has likely resolved because you have established a stable life and activities which maintain your interest.
79Three character references were tendered at the plea hearing. They speak to your positive change in behaviour after being released from custody. Your sister, Rebecca George, notes that you were always a kind, engaging and thoughtful individual, but changed when associating with negative peers. She said that since your release you have been motivated to change, connecting with your family more, disassociating from negative influences and participating in prosocial activities including basketball.
80Your employer, Anthony La Pierre, described you as a respectful, hardworking and confident although quiet man. He was shocked and incredibly disappointed to hear of your offending. He describes it as ‘out of character’ for the individual he knows. He will continue to support your employment.
81Father Abanoub Attalla, Parish Priest at your church, opined that you were a kind and gentle person who interacted with a bad group of friends. He has been providing you with counselling and has noticed your remorse and motivation to change.
Eric Bizimungu
82Eric Bizimungu, you were born in Tanzania and are the eldest of four children. You spent your early years in refugee camps in Malawi. Your mother met your step-father at one of these camps, although you were told that he was your biological father. At the age of 18 you were told your stepfather was not your biological father and that your biological father was reportedly a violent man. You have no knowledge of your biological father.
83You report that you were left alone while at the refugee camps, while your parents worked, often being exposed to physical violence. You recall having your hand burnt and almost ‘chopped off’ by neighbours when you trespassed on their property. You also report witnessing people being killed and children being kidnapped on a regular basis and were exposed to dead bodies while in the refugee camps. You believed that resorting to violence was how to survive in a hostile environment, plagued by poverty and war.
84At the age of 9, you and your family settled in Dandenong after migrating to Australia as refugees. Moving to an unfamiliar country where you did not speak the language made you feel isolated. Your relationship with your stepfather deteriorated after moving to Australia and he became less involved in your life. Your mother is supportive of you, and you have always lived with her when not in custody.
85You attended an English language school for 12 months after arriving in Australia before attending Dandenong Primary School and the local high school. You were made fun of for not wearing shoes to school and experienced other types of bullying. You began associating with negative peer groups in early high school and were suspended for fighting. You started using alcohol and cannabis as a coping mechanism.
86You too have a relevant and not insignificant prior criminal history, including seven priors for aggravated burglary; theft and dishonesty offences, and contraventions bail conditions. You have been incarcerated for most of your adolescence, being first detained in a Youth Justice Centre at the age of 16. You undertook study while detained, were required to complete Year 10 in the community and have not returned to school. You increasingly used Xanax, cocaine, MDAD and alcohol after your periods of incarceration.
87You have a sporadic employment history and no stable employment. At 16, you gained employment at McDonald’s. You then obtained casual employment in labouring roles including plumbing, pick-packing and sales. You are currently engaged with an employment agency.
88You have had three previous significant relationships, the first when you were 18 years of age. Your partner was pregnant while you were in custody but miscarried after being involved in a motor vehicle accident.
89You were reportedly diagnosed with PTSD whist in custody in 2016, relating to your experiences living in Africa. You were prescribed anti-depressants in 2017 but reported you became increasingly aggressive so avoided taking them. You completed drug and alcohol and anger management programs while in youth detention.
Sentencing Considerations
90I first take into account your pleas of guilty. While you all conducted a contested committal hearing, your pleas have saved the court the time and expense of a trial and demonstrate your acceptance of responsibility. Your pleas carry additional weight which must be reflected in a further amelioration in sentence, as they were entered in circumstances where the effect of the pandemic still has an impact on the criminal justice system.[1]
[1] Worboyes v The Queen [2021] VSCA 169 at [39].
91In relation to each of you, your youthfulness is a relevant consideration. Padiet Deng, you were 23 at the time of the offending and are now 25. Kena Ibsa you were 22 at the time of the offending and are now 24. Bishoy George, you were 19 at the time of the offending and are now 21. Eric Bizimungu, you were 22 at the time of the offending and are now 24.
92As such, it was submitted that rehabilitation should, despite the seriousness of the offending, take a primary role in the sentencing discretion. While I accept the well settled principles in relation to young offenders, and that they do have application in relation to each of you to varying degrees, I must also weigh those considerations with the seriousness of the offending in this instance.
93In Azzopardi v The Queen,[2] having reviewed the established authorities in relation to young offenders, Redlich JA said:
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.
[2] (2011) 35 VR 43, [44].
94In my view, the other competing and relevant sentencing considerations such as general and specific deterrence, and denunciation of your conduct, must carry weight in the sentencing discretion, taking into account your various personal circumstances. For example, in relation to you, Padiet Deng and you, Eric Bizimungu, you both have extensive criminal histories including numerous priors for aggravated burglary. In relation to you, Padiet Deng, this will be your fifth conviction for aggravated burglary, and you, Eric Bizimungu, your eighth. Thus, specific deterrence and protection of the community must carry considerable weight in the sentencing discretion in relation to each of you. You, Kena Ibsa and you, Bishoy George have no prior criminal history. Prospects of rehabilitation also vary significantly between the four of you. Nonetheless, in relation to all of you, your youth remains a relevant consideration which I take into account.
95In relation to you, Padiet Deng, you, Kena Ibsa and you, Eric Bizimungu, I take into account the fact that you have each experienced significant trauma and other disadvantage in your life from a very young age as detailed in the various reports tendered. In relation to the three of you, I accept that the principles articulated in Bugmy v The Queen should be given weight in the sentencing consideration.[3] As noted in Bugmy, the effects of a deprived background as you have experienced, do not diminish over time and should be given full weight in the determination of an appropriate sentence.[4]
[3] (2013) 249 CLR 571.
[4] Ibid [44].
96It was also raised on behalf of you, Padiet Deng and you, Kena Ibsa, that Verdins principles 5 and 6 are enlivened. Based on the psychological materials, I accept that in relation to you, Padiet Deng, Verdins principle 5 has some limited application, however in my view the psychological evidence is not sufficiently cogent to support the application of Verdins principle 6. In relation to you, Kena Ibsa, based on the evidence presented, the principles are not engaged in your case.
97Turning more specifically to your prospects of rehabilitation.
98As to you, Padiet Deng, as already noted, you have an extensive criminal history and it seems from the materials, you have limited insight into your offending. Your prospects in my view remain guarded. You will require supervision in the community upon your release. That said, you have a stable and supportive partner and you are endeavouring to disassociate from your anti-social peers.
99Kena Ibsa, You come before the court with no prior criminal history. Since being granted bail, you have been working full time and you have not reoffended. You were on bail at the time of this offending, however I was told that the matter for which you were on bail related to minor drug offending, in respect of which you received a fine. I accept that your conduct on these charges was an aberration and that your prospects of rehabilitation are very good.
100Turning to you, Bishoy George. You also have no prior criminal history and you enjoy the ongoing strong support of your family. Since the offending you have gained full time employment as an apprentice motor mechanic, and you are now in your second year of training. Like Mr Ibsa, I am also of the view that this offending was aberrant behaviour and that your prospects are also very good.
101Turning to you, Eric Bizmungu. As noted, you have an extensive criminal history and you also lack insight into your offending. Carla Ferrari notes in her report that you remain hesitant to engage in treatments to address your trauma and mental health issues. You will also require supervision in the community upon your release. In the circumstances your prospects remain guarded.
102In relation to you, Kena Ibsa, and you, Bishoy George, I had you each assessed for a community correction order which included an assessment by the Mental Health Advice and Response Service. You have each been found suitable. In my view, given the positive and sustained period of rehabilitation you have both achieved since being granted bail, it would be counterproductive to require you to serve a further period of imprisonment. That said, I am mindful of the fact that this is serious offending and any correction order imposed must be able to meet the relevant sentencing considerations. As such, the order I will impose in relation to each of you will be onerous and include unpaid community work together with therapeutic conditions.
103In relation to you, Padiet Deng and you, Eric Bizmungu, given your prior criminal histories and guarded prospects of rehabilitation, in my view the only appropriate sentence is a term of imprisonment with a non parole period. However, I am mindful of your relative youth and as such in my view a longer parole period would be beneficial to both of you to enable supervision in the community while you continue your rehabilitation.
104Finally, in relation to you Eric Bizimungu, while you have available to you 407 days of presentence detention, you have in fact been in custody for over 500 days as a result of serving other sentences totalling some 97 days, which are unable to be formally declared. I take that period of time into account in applying the principle of totality.
Sentence
105Padiet Deng, Kena Ibsa, Bishoy George and Eric Bizimungu, would you please stand.
106Padiet Deng on Charge 1, aggravated burglary, you are convicted and sentenced to 4 years and 4 months imprisonment.
107Eric Bizimungu, on Charge 2 aggravated burglary, you are convicted and sentenced to 4 years imprisonment.
108Padiet Deng and Eric Bizimungu, on Charge 3, theft, you are convicted and each sentenced to 7 days imprisonment. On Charge 4, possess a drug of dependence, you are each convicted and sentenced to 1 month imprisonment.
109Kena Ibsa and Bishoy George, on Charge 1, aggravated burglary, you are convicted and will sentenced to imprisonment together with a community correction order pursuant to s 44 of the Sentencing Act 1991 (‘Sentencing Act’). In relation to you, Kena Ibsa, the prison component of the order is 118 days and in relation to you, Bishoy George, the prison component of the order is 102 days which you have each already served.
110The community correction order in relation each of you will be for a period of 3 years. In addition to the mandatory conditions of the orders you will each be required to complete 200 hours of unpaid community work, you will each be subject to treatment and rehabilitation in relation to drug use and you will each be subject to supervision.
111In relation to each of you, pursuant to s 48CA of the Sentencing Act, I direct that all of the hours that you satisfactorily complete, pursuant to the treatment and rehabilitation condition, may be credited as hours of unpaid community work.
112Kena Ibsa and Bishoy George, on Charge 3, theft, and on Charge 4, possess a drug of dependence, you are each convicted and fined an aggregate of $1,000.
113In relation to you Padiet Deng, you, Kena Ibsa, and you, Eric Bizimungu, on Summary offence 6, commit indictable offence whilst on bail, you are each convicted and discharged.
114In relation to you, Padiet Deng, I direct that you serve 2 years and 2 months imprisonment before becoming eligible for parole. In relation to you, Eric Bizmungu, I direct that you serve 2 years before becoming eligible for parole.
115Pursuant to s 18 of the Sentencing Act, in relation to you, Padiet Deng, I declare that 610 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today. In relation to you, Eric Bizmungu, I declare that 407 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today. In relation to you, Kena Ibsa, I declare that 118 days be reckoned as the period of imprisonment already served under the sentence I have imposed. In relation to you, Bishoy George, I declare that 102 days be reckoned as the period of imprisonment already served under the sentence I have imposed.
116Pursuant to s 6AAA of the Sentencing Act, I indicate that had you not pleaded guilty, I would have sentenced each of you as follows: Padiet Deng, to a period of 5 years and 6 months imprisonment with a non parole period of 3 years and 6 months; Eric Bizmungu to a period of 5 years and 3 months imprisonment with a non parole period of 3 years and 3 months; and Kena Ibsa and Bishoy George, to a period of 3 years with a non parole period of 20 months.
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