Director of Public Prosecutions v Deng

[2021] VCC 1296

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

AT MELBOURNE

CRIMINAL DIVISION

CR 21-00503

DIRECTOR OF PUBLIC PROSECUTIONS

v

YORO DENG

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	31 August 2021
DATE OF SENTENCE:	6 September 2021
CASE MAY BE CITED AS:	DPP v Deng
MEDIUM NEUTRAL CITATION:	[2021] VCC 1296

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords: Aggravated home invasion – armed robbery – dangerous driving – early plea of guilty – extensive criminal history – offensive weapon – motor vehicle theft – denunciation – youthful offender – childhood trauma and dislocation – parity – deterrence  

Legislation Cited: Crimes Act 1958 (Vic); Road Safety Act 1986 (Vic); Sentencing Act 1991 (Vic)

Cases Cited: Azzopardi v The Queen (2011) 35 VR 43; The Queen v Verdins (2007) 16 VR 269

Sentence:  Total effective sentence – imprisonment of 7 years and 9 months with a non-parole period of 4 years and 6 months – s.6AAA declaration – imprisonment of 10 years with a non-parole period of 7 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Office of Public Prosecutions
For the Accused	Ms S. Lenthall	Papa Hughes Lawyers

HIS HONOUR:

1Yoro Deng, you have pleaded guilty to -

(i) One charge of aggravated home invasion contrary to s77B of the Crimes Act 1958. The maximum penalty for that offence is 25 years imprisonment.

(ii) One charge of armed robbery contrary to s75A of the Crimes Act 1958. The maximum penalty for that offence is 25 years imprisonment.

(iii) The related summary offence of dangerous driving contrary to s64(1) of the Road Safety Act 1986. The maximum penalty for that offence is two years imprisonment.

2

You pleaded guilty at committal mention and before any witnesses were called.

I accept that your early plea has spared the witnesses the stress of giving evidence in a criminal proceeding.  Your plea has also facilitated the administration of justice during the COVID-19 pandemic, and I have taken this into account in your favour in mitigation of sentence.  I also accept that your plea is evidence of some remorse for your offending. 

3You have admitted an extensive criminal history for a range of serious offences dealt with in the Children's Court, the Magistrates' Court and this court on appeal.  You have been the subject of a Youth Supervision Order and have previously been imprisoned, despite your youth.

4

On 1 December 2017, you were placed on a Youth Supervision Order for

12 months by this court sitting on appeal for a series of offences, including aggravated home invasion, aggravated burglary and attempted aggravated burglary.  Your counsel informed me that the offending was of a similar nature to the offending that you have pleaded guilty to in this instance.  In my opinion, this prior court appearance is of particular significance for sentencing purposes in this case, and specific deterrence and the protection of the community are prominent sentencing considerations. 

5Following your appearance in this court in 2017, you continued to offend.  At the time of your offending in this instance you were the subject of a Community Correction Order in relation to a series of offences, including attempted aggravated burglary.  It is clear that sentencing dispositions intended to support your rehabilitation have to date been unsuccessful.  You also have multiple convictions for driving offences, including driving whilst disqualified and failing to provide an oral fluid test on request by police. 

6The prosecution opening was tendered in evidence and your offending may be summarised as follows -

7In the early hours of Sunday 16 February 2020, you were travelling in a vehicle with your three co-offenders in Greensborough.  At the time you resided in Sunshine.  Following a collision, the front tyre of the vehicle deflated and you and your co-offenders abandoned the vehicle and continued on foot before arriving at  Manatunga Circuit, Greensborough at approximately 7.10 am.  All four of you entered the back yard of a house in that street which was then occupied by a family comprising two parents and their three adult sons.  All four of you attempted to enter the house, causing the male parent to wake up and then to yell at you to leave the premises. 

8One of the offenders then armed himself with a spade from the garden and used it to smash the glass front door of the house.  This caused glass fragments to strike the body of the male parent who was attempting to prevent you all from entering his house.  He was not able to do so, and all four offenders forced their way past him and into the house.  You were armed with a screwdriver.  A co-offender was armed with a knife and another co-offender another screwdriver.  All of you were wearing hoodies and two were wearing face masks.  All four of you were shouting and making demands of the residents of the house for their phones, wallets, car keys and other personal belongings.  A co-offender placed the knife with which he was armed to the throat of the female parent and demanded the password to her mobile phone.  Following this, three sets of car keys were stolen and you drove from the premises in a Honda Civic owned by the family.  A large quantity of personal items and some cash were also stolen.

9You then drove the Honda Civic in a convoy with your co-accused who were travelling in the other two stolen vehicles at very high speeds and in a dangerous manner.  You continued to drive the vehicle in a dangerous manner before dumping it in Abbotsford.  Witnesses contacted police and you were arrested a short time later.  You were interviewed by investigating police, charged with the offences before the court and remanded in custody, where you remain. 

10I have received in evidence a victim impact statement prepared by the male parent, detailing the traumatic effect your offending has had on him and his family.  He also required medical treatment to remove glass fragments from his body, an injury suffered during the home invasion.  The victim impact statement, which was not read aloud in court, eloquently states how the offending has also adversely affected his trust in other people and the enjoyment of his life. 

11In my opinion, it is plain that your offending constitutes very serious examples of the crimes to which you have pleaded guilty.  Whilst armed, you and your co-offenders smashed your way into a complete stranger's home with the purpose of stealing their personal belongings, property, and motor vehicles.  You subjected them to a terrifying ordeal with no regard whatsoever for their fundamental entitlement to occupy their home peacefully. 

12This sentence must be calculated to make it clear that offending of this type which undermines the foundations of our community will be met with the imposition of a significant term of imprisonment upon conviction.  Our community must be protected from people like you who are prepared to offend in this grave manner.  Offending of this repugnant nature must be denounced by this court. 

13By operation of s10AC of the Sentencing Act 1991 (the Act), the offence of aggravated home invasion is subject to a mandatory non-parole period of three years imprisonment, unless a special reasons exists.

14Your counsel did not submit that a special reason exists and I accept that this is correct.  Furthermore, the offence of aggravated home invasion is a Category 1 offence, and, by operation of the Act, a custodial sentence must be imposed unless specific criteria, not relied upon in your case, are demonstrated. 

15The offence of armed robbery is a Category 2 offence by operation of The Act and a custodial sentence must also be imposed in the circumstances of this offending unless specific criteria, not relied upon in your case, are demonstrated. 

16It was accepted by your counsel that the only sentencing disposition available to me in this case is a sentence of imprisonment, together with a non-parole period. 

17I now turn to your personal circumstances. 

18You were born on 26 April 2000 in a refugee camp in Kenya and you are now aged 21.  You were 19 at the time of your offending.  I accept that you are a youthful offender and your future rehabilitation is an important sentencing consideration in this case.  However, as the Court of Appeal stated in Azzopardi v The Queen (2011) 35 VR 43 at paragraph 44:

'Where the degree of criminality of the offences requires the 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.'

19This is such a case. 

20Your family is of Sudanese heritage and I accept that your childhood and formative years were characterised by trauma and violence.  Your father was murdered in the refugee camp in Kenya when you were two years old and I accept that life in the camp was dangerous and unstable.  Your mother and four siblings migrated as refugees to Australia and settled in Melbourne.  In 2008 you suffered serious injuries when hit by a car and you spent four weeks in The Royal Children's Hospital.  However, you recovered from these injuries and developed into a talented junior AFL player and were offered positions at the junior academies of two AFL clubs. 

21Your formal education was initially difficult as you did not speak English and you were bullied at school.  In your late teenage years, you developed polysubstance abuse disorder, which in turn led to your offending and the end of your formal education in year 10.  Your drug use also brought to an end your sporting career.  You have a very limited work history and no dependents. 

22I have received in evidence a neuropsychological report from Mr Mathew Staios setting out your background and psychological profile.  You are of average intelligence and do not suffer from any mental illness or psychological disorder, with the exception of polysubstance abuse disorder and associated depression for which you are currently medicated.  Your counsel stated that the principles enunciated by the Court of Appeal in The Queen v Verdins (2007) 16 VR 269 are not engaged in your case.

23I have also received in evidence a number of references from your family and two letters written by you addressed to the court and to the victim of your offending.  The references disclose that you have a close and supportive family but I do not accept that you were simply 'led astray' by other offenders or other bad influences.  You have an extensive and serious criminal history and you have been given opportunities by the courts to develop a law-abiding life and have failed to do so.  However, I accept that you are now drug free and have completed a number of vocational courses in prison, despite the COVID-19 restrictions currently in place. 

24In my opinion, your prospects for rehabilitation are to be approached with a degree of caution and, as I have said, specific deterrence is an important sentencing consideration in your case. 

25

I have had regard to the reasons for sentence and the sentence imposed by His Honour Judge Doyle on your co-offender

Patrees Makieng on 18 December 2020 and to the principle of parity in sentencing. Parity is not, as was submitted by the prosecution, a question of arithmetical equality, but rather a principle founded in fairness and consistency in sentencing.  It is also accepted that different judges may arrive at a different assessment of an appropriate proportionate sentence in cases concerning like co-offenders constrained by the principle of parity.

26As was pointed out by the prosecution, you are also to be sentenced for the offence of dangerous driving and Makieng was not.  Furthermore, the fact that you have a prior court appearance for the serious offence of aggravated home invasion is a significant difference between you and Makieng.  You are also 13 months older than him. 

27Finally, you have been in custody for the entirety of the COVID-19 pandemic and I accept that the restrictions on you in the prison system, together with your relative youth, have increased the hardship of imprisonment upon you and this will continue into the foreseeable future. 

28In the result, the sentence of the court is as follows:

(i)On Charge 1, you are convicted and sentenced to be imprisoned for 6 years.

(ii)On Charge 2, you are convicted and sentenced to be imprisoned for 4 years.

(iii)On the charge of dangerous driving, you are convicted and sentenced to be imprisoned for 9 months.

29

Charge 1 is the base sentence.  I direct that 18 months of the sentence on

Charge 2 and 3 months of the sentence on the charge of dangerous driving be served cumulatively on each other and cumulatively on the sentence imposed on Charge 1.  This makes for a total affective term of imprisonment of 7 years and 9 months. 

30I direct that you serve 4 years and 6 months before becoming eligible for release on parole. 

31I declare that you have served 568 days by way of pre-sentence detention, not including today.

32All driver's licences held by you are cancelled and you are disqualified from obtaining a licence in the state of Victoria for a period of four years from 1 January 2024. 

33But for your plea of guilty, I would have imposed a total affective term of imprisonment of 10 years and imposed a non-parole period of 7 years. 

34I have made the compensation order sought by the prosecution. 

35Are there any further orders required, Mr Moore?

36MR MOORE:  No, that completes the matter, Your Honour.

37HIS HONOUR:  Thank you, Ms Park?

38MS PARK:  Nothing further, Your Honour.

39HIS HONOUR:  All right, thank you.  Yes, all right, those sentencing remarks will be prepared.  If the parties wish to access them, they can seek them from my associate.  Thank you.  The court will now adjourn sine die. 

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