Director of Public Prosecutions v Deng
[2022] VCC 1913
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR 21-00827
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARCO DENG |
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JUDGE: | HIS HONOUR JUDGE CHETTLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 September 2022 | |
DATE OF SENTENCE: | 3 November 2022 | |
CASE MAY BE CITED AS: | DPP v Deng | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1913 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: Imprisonment, Total Effective Sentence 2 years and 7 months. Non-parole period 20 months.
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Gray | OPP Ms A. Lioudvigova |
| For the Accused | Mr D. Cronin | Emma Turnbull Lawyers |
HIS HONOUR:
1 Marco Deng, you have pleaded guilty to one charge of theft of a motor vehicle; one charge of armed robbery, and one charge of theft. The facts of your offending are set out in the prosecution opening for plea, Exhibit A, with some qualifications as set out in the submissions your counsel, Mr Cronin, indicated that I could treat this document as an agreed statement of fact. I incorporate it into these reasons for sentence, and I sentence you on the basis of the facts set out therein as qualified by Mr Cronin.
2 Very briefly stated. On Sunday 23 February 2020 you were party to the theft of a motor vehicle in Vere Street, Collingwood. It is common ground that you were unaware of the co-accused's plan to use force and a weapon to steal the car. You were a passenger in the vehicle and guilty of theft of that vehicle. You and your co-accused were driven to Napier Street, Fitzroy, where your co-accused threatened the owner with a knife and forced him from the vehicle. It was driven away with you as a passenger.
3 At 6.10 am the next morning Jared Collins was walking in Bend Road, Keysborough. You and the two co-accused got out of the stolen Honda Civic and approached Collins. One of your co-accused threatened Collins with a knife and stole his Samsung Galaxy phone, his wallet, and his JBL headphones. You and your co-accused got back in the Civic and drove away.
4 An hour later you got out of the vehicle and approached two young girls at a bus stop in Lower Dandenong Road, Parkdale. You snatched the phone from a 13-year-old, Chantal Delacruz, and ran back to the car and were driven away.
5 Police intercepted you 45 minutes later on the Nepean Highway near Southland Shopping Centre. You were in the front passenger seat of the stolen Honda Civic and were found in possession of Mr Collins' driver's licence, his Medicare card and a Dan Murphy card. His wallet, a knife, and Chantal Delacruz's phone were located in the vehicle.
6 You lied to the police when interviewed as to your actions. You did admit your presence in the car, but falsely claimed to have been asleep and to have no recollection of the armed robbery and theft. You were on bail for other offending at the time of those offences. You have pleaded guilty to a related summary offence of committing an indictable offence whilst on bail.
7 You have admitted a prior criminal history. On 6 September 2019 you were convicted and fined $3,000 for offences of recklessly cause injury, trespass and commit indictable offence whilst on bail.
8 Your personal history is set out in Exhibit 1, the submissions of Mr Cronin, and Exhibit 2, the psychological report of Sandra Cokorilo.
9 You are now 24 years of age. You were born in May 1998 in Sudan. Your mother died when you were very young. Your father re-partnered and you were raised by him and your stepmother. When you were five you came to Australia with your father and younger brother.
10 You did not enjoy a good relationship with your stepmother. However, you completed Year 12 schooling and commenced a carpentry apprenticeship. You moved then to roof tiling, working at a meat factory, and in a warehouse for 18 months. You were unemployed from September 2019. You left home to live couch surfing and itinerantly for some five years until you were remanded in custody on these charges and other charges.
11 You suffered significant emotional disturbance as a result of severe trauma from witnessing war atrocities as a child in the Sudan. The death of your mother escalated those issues. You abused alcohol, cannabis, and prescription drugs from the age of 17 until you were remanded, and you claimed to be affected by both alcohol and Xanax at the time of these offences.
12 Ms Cokorilo reports in paragraph 54 of Exhibit 2:
'Mr Deng presented as an immature young man with poor insight into the factors contributing to his poor mental health. He also appeared not to fully appreciate the extent of his maladjustment. His expression of remorse was limited and he prioritised his own circumstances and did not wish to divulge anything that could possibly incriminate him'.
13 She concluded in paragraphs 70 to 73:
'Mr Deng is a 24-year male before the court on serious charges of murder; armed robbery; theft. He presents with a history of severe early trauma, having witnessed war atrocities in Sudan as a child and the death of his mother. Such an invalidating environment has undoubtedly compromised his emotional development and behavioural outcomes. Early life trauma is one of the strongest risk factors for emotional psychopathology.
'Mr Deng meets the criteria for post-traumatic disorder; major depressive disorder; and generalised anxiety disorder. Mr Deng's complex and multifactorial profile is characterised by hyperarousal; impulsivity; recklessness; emotional dysregulation and negative effect, and is associated with an increased risk of aggression and substance abuse. His defects in emotional regulation and impulse control undermine his ability to cope with stressors, think clearly, responding calmly and exercising appropriate judgment'.
14 Mr Cronin agreed with me that there is some degree of what might be described as psychobabble in this report.
15 In paragraphs 76 and 78, the author concludes:
'Co-morbid depression and post-traumatic stress disorder are associated with higher incidents of anger and emotional regulation problems than either disorder on its own. Mr Deng reported worsening of his depression due to homelessness and unemployment at the time of the offending. Negative affective states can alter cognition and behaviour, thus impairing impulse control, decision making, ability to rationalise, and consider alternative responses'.
16 I take the contents of Ms Cokorilo's report into account in sentencing you.
17 Whilst on bail for these offences, on 22 June 2020 you committed a murder. You were convicted in the Supreme Court on 24 June 2022. You are yet to be sentenced for that offence. It seems fairly clear that you face a significant term of imprisonment and that the sentence for these charges will be subsumed by your murder sentence.
18 The offending for which I am to sentence you is serious criminal conduct. You and co-accused were on a crime spree at the time. You were on bail and displayed a callous, violent disregard for the rights of your victims. Principles of general deterrence, specific deterrence, denunciation and just punishment all dictate that a term of imprisonment is the only available sentencing option in this case. Your counsel conceded as much.
19 In relation to the co-accused, one was discharged at committal, and another pleaded to aggravated carjacking and theft. He received a 12-month community corrections order after 414 days of incarceration were taken into account. Really the charges and the different offending make issues of parity irrelevant in this case.
20 Your counsel relied on a number of significant matters in mitigation of your offending. Firstly, your pleas of guilty. Those pleas were entered at an early stage. You spared the community the cost of a criminal trial and your victims the trauma of giving evidence at court. Those pleas of guilty have increased value as a result of the damage COVID-19 has inflicted on our justice system.
21 Secondly, I accept that those pleas of guilty are, to some extent, evidence of remorse for your conduct, although Ms Cokorilo's report indicates you exhibit self-pity rather than genuine remorse.
22 Thirdly, your time in custody will be more onerous than usual because of the ongoing effects of the COVID-19 pandemic. Lockdowns, loss of visits, disruption to programs and courses all make custody more onerous in that environment.
23 In addition, you are required to spend time in protection because of threats made to you by those who supported the man you murdered. That again will make your time in custody more onerous for you. Your childhood trauma invoked the principles set out in the decision of Bugmy. Your damaged psychological state is no surprise and contributed to your offending.
24 Fifthly, that damaged psychological state, your post-traumatic stress disorder, depression and anxiety will make custody more onerous for you and those conditions are likely to be aggravated in custody. I take all these factors into account in sentencing you.
25 The sentences of the court are, on all charges, you are convicted. On Charge 1, the theft of a motor vehicle, you are sentenced to be imprisoned for six months. On Charge 2, armed robbery, you are sentenced to be imprisoned for two years. On Charge 3, theft, you are sentenced to be imprisoned for six months.
26 Having regard to principles of totality and cumulation, I order that three months of each of the sentences imposed on Charges 1 and 3 be served cumulatively upon the sentence imposed on Charge 2, which I declare to be the base sentence.
27 On the summary offence of committing an indictable offence whilst on bail, you are sentenced to be imprisoned for one month. I order that sentence to be served cumulatively upon the sentence imposed on Charges 1, 2, and 3. That is an effective term of imprisonment of two years and seven months, and I order that you serve 20 months of that sentence before being eligible for parole. I declare that 692 days of that sentence have been served by way of pre-sentence detention.
28 Finally, pursuant to s6AAA of the Sentencing Act, I indicate that but for your pleas of guilty I would have imposed an effective term of imprisonment of four years and six months with a non-parole period of three years.
29 Are there any other orders required, Mr Gray?
30 MR GRAY: Yes, Your Honour. There are some forfeiture disposal orders.
31 HIS HONOUR: I make the forfeiture and disposal orders sought by the Crown.
32 MR GRAY: Thank you, Your Honour.
33 HIS HONOUR: Anything else, Mr Cronin?
34 MR CRONIN: No, sir.
35 HIS HONOUR: Thank you. I'll terminate the link.
36 MR CRONIN: Your Honour, before the link is terminated can I just take the ‑ ‑ ‑
37 HIS HONOUR: All right. Don't terminate the link. You want to talk to him?
38 MR CRONIN: Only to say that I have got a video conference booked with him tomorrow at 6 o'clock to talk about today.
39 HIS HONOUR: All right.
40 MR CRONIN: Thank you.
41 HIS HONOUR: I'll terminate the link now.
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