Director of Public Prosecutions v Deng
[2022] VCC 732
•26 May 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02685
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AJAK DENG |
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JUDGE: | His Honour Judge Moglia | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 May 2022 | |
DATE OF SENTENCE: | 26 May 2022 | |
CASE MAY BE CITED AS: | DPP v Deng | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 732 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence upon plea of guilty
Catchwords: Sentencing – Home invasion – Causing injury intentionally – Theft – Attempted theft – Plea at earliest opportunity – Remorse – Relocation – Subject of racist bullying – Bugmy – Language barriers – Social exclusion – Limited criminal history – Additional hardship in custody due to Covid-19 – Persistent adjustment disorder – Depressive disorder – Drug and alcohol abuse – No intention to assault at entry – Willing and active participant – General deterrence, denunciation and punishment – Verdins limbs 2 and 5 – Use of weapon – Worboyes discount – Youthful offender – Reasonable prospects of rehabilitation – Need for specific deterrence moderated – Totality and concurrency – Head sentence – Non-parole period
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; Brown (aka Davis) v The Queen [2020] VSCA 60; DPP v O’Brien (2019) 280 A Crim R 1; Verdins v R (2007) 16 VR 269; Baroch v The Queen [2022] VSCA 90 [16]; Nash v The Queen (2013) 40 VR 134; Worboyes v The Queen [2021] VSCA 169
Sentence:Total effective sentence or term of imprisonment of 4 years 3 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. McGowan | OPP |
For Deng | Mr J. Murphy | Gallant Law |
HIS HONOUR:
1Ajak Deng, you have pleaded guilty to one charge of home invasion, one charge of causing injury intentionally, two charges of theft and one charge of attempted theft in relation to events occurring on 18 May last year.
2The maximum penalty for charge 1 is 25 years, charges 2-4 is 10 years each and charge 5 is 5 years.
Summary of offending
3The agreed basis for your guilty plea is set out in a summary of prosecution opening dated 4 May 2022. You are to be sentenced based on those facts, which I summarise and make findings about as follows.
4On the night of Monday 17 May 2021, you were with a friend, who I will refer to as AC, drinking heavily and taking Xanax. You made your way to Point Cook where, just after midnight on the morning of Tuesday 18 May, you wandered around residential streets attempting to open doors of various cars in an attempt to steal, as alleged in charge 5.
5Shortly afterwards, you both entered the home at Ladybird Crescent Point Cook. It belonged to Ms Leung and Mr Tang who lived there with their children, aged 5 and 3 years. You didn’t know them, but you entered their home intending to steal from them, while Ms Leung was asleep in a bedroom with their 5 year old daughter and their 3 year old son was asleep in another room, as alleged in Charge 1. I acknowledge that you are not shown to have known who was in the house or their ages, but by the fact of them being present you face the charge of home invasion. Mr Tang had arrived home from work not long before you got there and was using his phone in the back yard before heading inside to bed.
6As he did so, he saw you and AC in the corridor rummaging through a shelf where they kept their keys and other belongings. You both saw him as he came through the kitchen where the light was on. AC charged towards him, grabbed the front of his jacket, demanding, 'What’s this key?' Pointing to keys he had just thrown on the sofa. He demanded, 'Give me the keys for the BMW' whilst pushing Mr Tang up against the wall. The family car was indeed a BMW parked outside. While this was happening, you snatched Mr Tang's phone from his hand, putting it in your pocket, as alleged in charge 3.
7Mr Tang handed his BMW keys to AC who then demanded money as well. AC told you to show that you had a knife, which you did, holding up a kitchen knife with a 15 cm blade that you then poked into Mr Tang's shoulder and chest area. AC threatened to kill him if he did not show you both the location of money. He dropped to his knees and pleaded with you to leave.
8You told Mr Tang, 'If you cooperate you will not get hurt' and grabbed his laptop. You opened it and told him to enter his password. He tried to do so but could not remember it. You threatened him, saying 'Open it or I’ll kill you in 3 seconds.' You then started to count down.
9Under these threats, Mr Tang indicated there was money in his wife's handbag. AC grabbed it and emptied it onto the floor, taking items from it. AC then also grabbed Mr Tang's wallet from the satchel on the kitchen bench, taking $200 from the wallet and about $300 in takings from the couple's shop from the satchel. When AC continued to demand money and to search the other rooms of the house, Mr Tang again pleaded for you both to leave and that his children were asleep in the master bedroom. Upon hearing this, you punched Mr Tang multiple times and kept asking him to show you the room. AC then went to the kitchen and took a 30 cm kitchen knife before returning to threaten Mr Tang with it and repeating demands to 'Show me the room'.
10Desperate, Mr Tang started fighting with you both. You and AC both punched him, knocking him to the ground.
11Hearing the commotion, Ms Leung walked into the living room. AC left your side and attacked her, punching her to the head and knocking her to the ground where she then lay unconscious. He returned to you where you were standing over Mr Tang punching him and then you both ran out of the door. Mr Tang followed you to the front door which he closed and locked as he saw you drive away in their BMW, as alleged in charge 4.
12Mr Tang then tended to his wife who was lying unconscious on the floor with her eyes open and bleeding from her mouth. He called 000 and helped Ms Leung as she regained consciousness. You have not been charged with the assault on Ms Leung and it will form no part of the sentence I impose on you.
13During the incident, Mr Tang sustained concussion and multiple bruises on his face and a sore neck, requiring an X-ray and CT scan, depicted in photographs at pages 91-95 of the depositions, as alleged in charge 2.
14As you left the Ladybird Crescent address in the stolen BMW, your progress was captured by residential CCTV and a speed camera on the Avalon Road freeway overpass. About an hour later you were observed in the vehicle at Lara, where the Police Air Wing monitored the vehicle including where it failed to negotiate a turn into Little River Ripley Road and crashed into a fence. AC fled from the driver's seat followed by you a few moments later from the passenger side. Police gave chase on foot and found you lying down in dense scrub where you were arrested. They searched you and found two garage remotes, coin rolls and cash totalling $184.60 that were stolen during the home invasion.
15Police also found and arrested AC and with the assistance of the Air Wing located items he had discarded in the field.
16The effect of the impact of your offending on Mr Tang (victim impact statement; Exhibit 1), Ms Leung (victim impact statement; Exhibit 2) and their family has proven to be very significant. This is unsurprising. Mr Tang relives the night in his dreams and often wakes more than 5 times a night. Even though they have moved house, he is always worried that somebody will break in again. He has never been attacked or punched like that in his whole life. He still feels pain in his neck and back which also makes it hard to sleep. He gets headaches from the injuries you caused to his head, which affects his ability to work properly in their business. They had to close their shop for days after the attack. The car you stole and crashed was not covered by their insurance policy. They had to move out of their Ladybird Crescent home whilst still paying rent there for a further 5 months. During that time, they stayed with friends who could only offer limited space, so they could not all stay together as a family during this time. Due to this move, their daughter had to change schools. The extent of these consequences demonstrates the true impact of your violent home invasion.
Procedural history
17Following your arrest, police interviewed you at Werribee but you made no comment about the events of the night. You were remanded in custody where you have remained since.
18You pleaded guilty in the Magistrate's Court at a mention on 16 December 2021. In doing so, you have not required Mr Tang or Ms Leung to relive their experience in Court, which is to your credit.
19
Your plea was entered at the earliest reasonable stage of the case and you have shown those who know you well, such as Mr Manon (Exhibit C),
Ms Merryfull (Exhibit D) and your family (Exhibit B), that you deeply regret what you did. You discussed the case with forensic psychologist,
Ms Jackson (Exhibit A) who observed you to be distressed by your conduct. I accept that your plea is accompanied by remorse.
Personal circumstances
20You were 21 at the time of this offending.
21You were born in Khartoum, Sudan, where you stayed until your family fled to Egypt to escape the Sudanese civil war when you were about 2. Your family relocated to Australia as refugees when you were 4 and you are now an Australian citizen.
22You are the second eldest of 8 children and your family has remained close as it navigated the various challenges of relocation. You undertook an English language program before starting primary school at St Albans.
23You then moved with your family to Shepparton and attended further school in Mooroopna. School was not easy for you due to language difficulties and the lack of a learning foundation. You then attended two secondary colleges in Shepparton where you were the subject of racist bullying. Despite these difficulties, you completed Year 11 VCE and the Year 12 VCAL stream at Notre Dame College. Your teacher, Ms Merryfull, described you as a 'personable, polite and trustworthy student', but one who was 'easily led'.
24As a teenager, you excelled at AFL. You were an under-16 ‘All Australian’ player representing Victoria and you played in an Australian under-17 team in New Zealand. You were then picked up by various adult leagues, including the Murray Bushrangers. Mr Manon, an educator and mentor in Melbourne, described you as a role model for young Africans who love AFL. Sadly, you left the sport at the end of the 2019 season because you felt isolated given the near complete absence of other African players in the AFL.
25After leaving school, you worked at various jobs in Shepparton, including in plumbing, as an apprentice plasterer, a factory hand, in dry cleaning and as a fruit picker. In 2020, you moved back to Melbourne to live with your brother. You obtained a Certificate 4 in disability work at the Job Training Institute in Sunshine. You were a disability support worker at a local service provider, working 4 to 6 days a week for about 4 months. Mr Manon supervised you there and described you as having 'received outstanding feedback from … participants' and doing 'excellent work'. As I commented during the plea hearing, it is very much to your credit that you have engaged in that work caring for others less fortunate than yourself.
26
Your counsel submitted that the principles outlined in the case of Bugmy[1] are relevant to some extent in sentencing you. I acknowledge the difficulties faced by all people seeking refuge in a new country due to violence and war at home. Research tends to confirm that people are at greater risk of adverse psychological impacts in those circumstances.[2] While it was not put that you were directly the subject of violence or that you suffered
Post-Traumatic Stress due to the war personally, I accept that your family's experience of the situation in the Sudan is something you have carried with you and has formed part of the basis for your depression. Further, I accept that along with your experience of language barriers, racism in school and alienation in sport, your background has left you vulnerable to social exclusion which I find to be relevant in explaining how it was that you came to use alcohol and prescription medication, and to the extent that you used them, in the lead up to your offending.
[1] Bugmy v The Queen (2013) 249 CLR 571.
[2] Kate E Murray, Graham R Davidson and Robert D Schweitzer, Psychological Wellbeing of Refugees Resettling in Australia: A Literature Review Prepared for the Australian Psychological Society (August 2008) 13–14.
27In spite of that context, you have a limited criminal history. In September 2020 you were fined without conviction for possessing stolen goods, failing to stop a vehicle on police direction and offending whilst on bail. On 26 February 2021, for driving an unregistered vehicle, you were placed on a good behaviour bond for 3 months without conviction, which this offending breaches. As the prosecutor very fairly conceded, and I accept, these matters have very limited relevance to sentence in this case.
28You have been in custody now for 372 days for this offending. The
COVID-19 pandemic has rendered your time there more burdensome. This is your first time in custody, and you have had no in-person contact with your family. Despite the limited access to services, you have completed a drug and alcohol program at Ravenhall prison and you are about to complete a warehouse operations course. You have been keeping busy with shifts in the kitchen and in steel work. The prosecutor concedes that some weight should be given to the additional hardship you have experienced in this way and I will moderate your sentence accordingly.[3][3] Brown (aka Davis) v The Queen [2020] VSCA 60, [48].
29In preparation for your plea, forensic psychologist Lisa Jackson assessed you and found you to have developed a persistent adjustment disorder reflecting the problems you faced as a refugee assimilating into a new culture. Further, she recognised a history of the depressive disorder with which you were diagnosed when you were remanded. Since that time, you have been treated with antidepressant medication. Ms Jackson also acknowledged your significant drug and alcohol abuse leading up to this offence and that this may have heightened your risk of impulsivity and antisocial behaviour. I find that this assessment provides a basis for leniency in accordance with Verdins (limb 5).
Sentencing issues
30The offence of home invasion is, by its very nature, a serious criminal offence, the maximum penalty for which is 25 years' imprisonment. As the Court of Appeal has observed, the crime of home invasion is 'a particularly nasty form of criminal conduct'.[4]
[4] DPP v O’Brien (2019) 280 A Crim R 1; [2019] VSCA 254 (Maxwell P, Niall and T Forrest JJA), quoting Hogarth v The Queen (2012) 37 VR 658, 659 [1]; [2012] VSCA 302 (Maxwell P, Neave JA and Coghlan AJA).
31In your case, I note that you entered the home at midnight on a weeknight, when the family car was parked outside. The people inside included children. When, during your assault on Mr Tang, you were told of their presence, you not only continued your assault on him, but also maintained your demand to be shown the room where they were to search for money. Even after AC had assaulted Ms Leung, rendering her unconscious on the floor, you did not stop assaulting Mr Tang or later refrain from taking their car.
32Whilst it is not alleged that you had an intention to assault when you entered the home, your conduct after entry was particularly grave. Your counsel submitted that your overall culpability is coloured by the fact that your initial purpose on the night was only to steal items from cars – things then escalating once you found yourself in a confrontation with Mr Tang. I find, however, that once inside, even accounting for AC's more active role, you were a willing and active participant in what followed.
33The gravity of your home invasion and the offences that followed call for a sentence that deters others from similar conduct as well as makes clear the community’s denunciation of such behaviour. The punishment you serve by way of sentence must be and will be proportional to the seriousness of what you did that night.
34Ultimately, and correctly in my view, your counsel did not rely on the principles set out in Verdins[5] to suggest that your moral culpability in this case was reduced because of your mental health problems. He did submit, however, that your condition triggers a question about the type of sentence that would be most appropriate; and provides a basis for some leniency because your depression makes your time in custody more onerous. I accept those submissions.
[5] Verdins v R (2007) 16 VR 269.
35Home invasion is a category 2 offence according to the Sentencing Act 1991. Accordingly, taking into account the issues in this case, s5(2H)-(2I) mandates that I sentence you to a term of imprisonment (and not one combined with a community correction order) unless I find there to be substantial and compelling reasons, including a combination of reasons, that are exceptional and rare not to do so. Your counsel submits that there are such reasons and that, in light of your pre-sentence detention, I should impose a term of imprisonment of 2 years or less and a CCO. The prosecutor submits that the seriousness of the offending, however, requires a sentence of more than 2 years and the fixing of a non-parole period. Your counsel accepted that consideration of this provision only arises if I am satisfied that, in total, a combination sentence involving imprisonment for up to 2 years would be adequate in all the circumstances of the case.
36In assessing the gravity of your assault on Mr Tang alleged in Charge 2, I have considered your intention to injure him as a means to obtain money, the seriousness of the injury you caused, his vulnerability, the attack having occurred in his home where he was entitled to feel safe, that you used a weapon even if not to cause the injury, the length of your assault on him and that you were in company.[6] I find this to be a serious example of that offence.
[6] Baroch v The Queen [2022] VSCA 90 [16]; Nash v The Queen (2013) 40 VR 134 [10] (Maxwell P).
37I have considered the nature of your childhood experience and background and the effects on you of the circumstances of your flight from Sudan and establishing a life in a new country. I have also given weight to your age, your depression, your time in custody and the not insubstantial value of your guilty plea.
38The importance of your plea has increased significance and important utilitarian value because you have pleaded guilty during the COVID-19 pandemic when the justice system has been placed under great pressure.[7] I have aimed to ensure that there is a perceptible amelioration in your sentence and the non-parole period for this reason.
[7] Worboyes v The Queen [2021] VSCA 169 at [39].
39Your young age, remorse and the relatively minor significance of your criminal history suggest that you have reasonable prospects of rehabilitation and the need for specific deterrence is moderated to that extent, and I so find. I do not regard your case to be one that calls for a prolonged imprisonment in order to achieve protection of the community.
40In arriving at your sentence, I have reviewed what I intend to impose in light of the totality principle and I have sought to make orders for concurrency to ensure proportionality in sentencing and the avoidance of a crushing sentence on you as a young offender. I have not found it necessary to deal with the limitation imposed in s5(2H).
41In all the circumstances, while I accept much of what your counsel submits about the matters put in your favour, I do not accept that a combination sentence is appropriate.
42I sentence you as follows:
(a) On charge 1, home invasion – 3 years
(b) On charge 2, intentionally causing injury – 21 months
(c) On charge 3, theft of a mobile phone – 3 months
(d) On charge 4, theft of the vehicle – 8 months
(e) On charge 5, attempted theft from motor vehicle – 3 months
(f) I order that 11 months of the sentence on charge 2, that is intentionally causing injury, and 4 months of the sentence on charge 4, that is the theft of the BMW, be served cumulatively upon each other and upon the sentence in charge 1.
(g) The total effective sentence is 4 years 3 months.
(h) I have fixed a non-parole period of 2 years 3 months.
(i)
In doing so, Mr Deng, I have had full regard to your counsel's submissions and I have done the best I think that I can in giving credit to the rehabilitation you have undergone. In doing so I have attempted to provide for the earliest release possible back home to your family. Indeed, that is within a reasonable margin of the
2 years that was discussed during the plea.
(j) I declare that you have served 372 days and direct that this be reckoned as a period already served under this sentence.
43In accordance with s6AAA of the Sentencing Act 1991, but for your guilty plea I would have imposed 5 years 4 months and fixed a non-parole period of 3 years.
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