Director of Public Prosecutions v Deng
[2018] VCC 819
•1 June 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 18-00135
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DENG AKON DENG |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 May 2018 |
| DATE OF SENTENCE: | 1 June 2018 |
| CASE MAY BE CITED AS: | DPP v Deng |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 819 |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Armed robbery - commit indictable offence whilst on bail
Legislation Cited: Sentencing Act 1991
Cases Cited:Boulton & Ors v The Queen [2014] VSCA 342
Sentence:18 months' imprisonment plus 2-year Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms N. Burnett | Office of Public Prosecutions |
| For the Accused | Mr J. McGarvie | Stary Norton Halphen |
HIS HONOUR:
1Deng Akon Deng, you have pleaded guilty to two charges of armed robbery and one transferred summary charge of committing an indictable offence whilst on bail.
- Armed robbery carries a maximum penalty of 25 years’ imprisonment.
- Committing an indictable offence whilst on bail carries a maximum penalty of 3 months’ imprisonment or 30 penalty units.
2You were born on 30 September 1995 and are now 22 years old. You were also that age at the time of the offending in October last year.
3You have a criminal record of prior offending interstate to which I will refer shortly.
4At the time of the offending you were living in Corbet Street, Melton South. The co-accused, Mustafa Muhumed, was born on 25 December 1986. At the time of the offending, he was living in a unit at 120 Racecourse Road, Flemington. Mr Muhumed's matter is listed at the Melbourne County Court for a final directions hearing on 3 December 2018 and a trial on 4 February 2019.
5As to the victims in your matter, the first victim, Sean Fitzsimons, was 27 years old and he was the sole employee at the Thirsty Camel bottle shop attached to The Quiet Man Irish Pub at 386 Racecourse Road, Flemington. The second victim, John Boyce, was 27 years old and he was the manager of The Quiet Man Irish Pub. A third victim, Sai Uppala, was 26 years old and he was the sole employee in the Subway store at 270 Racecourse Road, Flemington.
6The circumstances of the offending are as follows.
7As to the first armed robbery, on 24 October 2017 at approximately 12.05 am, you and Mr Muhumed entered the Thirsty Camel bottle shop attached to The Quiet Man Irish Pub. Sean Fitzsimons was working in the bottle shop and attempted to stop you and Mr Muhumed from entering.
8You pulled out a screwdriver and swung it at Mr Fitzsimons, grazing him briefly, while Mr Muhumed walked over to the beer fridges and removed a six-pack of beer. You and Mr Muhumed left the bottle shop without making any attempt to pay for the alcohol.
9Mr Fitzsimons ran into the bar to notify his manager, John Boyce. Mr Boyce went into the bottle shop along with two bar patrons.
10Shortly after, you returned to the drive-through area. Mr Boyce attempted to stop you and Mr Muhumed from re-entering the shop. You pushed past him while brandishing the screwdriver and entered the bottle shop. You walked around the bottle shop with the screwdriver in your right hand.
11While you were walking around near the fridges, Mr Muhumed walked into the drive-through area and threw a bottle that smashed inside the bottle shop. He then approached the fridges and removed beer while you approached the liquor shelf and demanded bottles of spirits from Mr Boyce. Mr Boyce handed you two bottles of Jack Daniel's. You demanded another bottle while waving the screwdriver around and Mr Boyce handed you a third bottle.
12As you were leaving the drive-through area, Mr Muhumed threw a bottle of Carlton Draught which struck Mr Boyce on the left thumb causing swelling and bruising. The total value of the stolen property was $140.43.
13Police attended a short time later and set up a crime scene. Police obtained CCTV footage from the premises. They also conducted a fingerprint examination of the fridge area and other items seized from the scene but no prints were located.
14CCTV footage from the Department of Health and Human Services captures you and Mr Muhumed entering an elevator at 12.05 am from level 14 of 12 Holland Court, Flemington. It shows you exiting the building on the ground level. You were captured returning to 12 Holland Court, Flemington, with a group of unknown males at approximately 12.17 am. The group entered the elevator and travelled to level 14. The group is captured carrying the stolen items of alcohol while you are captured with the screwdriver.
15As to the second armed robbery, on Tuesday 24 October 2017 at approximately 10 pm, you and Mr Muhumed entered the Subway store located at 270 Racecourse Road, Flemington. Mr Uppala told you both that the store was closed. You walked behind the counter and showed him a knife which was tucked up your sleeve with the blade partially visible. You told Mr Uppala to “open the till” and followed him to the till. Mr Muhumed also walked behind the counter and over to the till. You repeated the demand to open the till. Mr Uppala attempted to open the till but there was a delay. Mr Muhumed reached underneath the bench and pulled the locked cash drawer from the counter. You and Mr Muhumed left with the cash drawer containing $400.
16CCTV footage obtained from the Department of Health and Human Services from 12 Holland Court captures you and Mr Muhumed and an unknown male entering an elevator at 9.01 pm from level 14 and exiting the building on the ground level. You are captured carrying a knife. You were then captured returning to 12 Holland Court, Flemington, at approximately 10.04 pm. You and Mr Muhumed entered the elevator and travelled to level 14. You were captured carrying the cash drawer.
17On Thursday 26 October 2017 at approximately 11.30 am, you returned to the Thirsty Camel bottle shop at 386 Racecourse Road, Flemington. Mr Fitzsimons identified you as the same person involved in the armed robbery earlier in the week. He then photographed you. You threatened to smash his phone but he ignored you and called 000. Police attended and Mr Fitzsimons provided the photographs from his phone. Police then attended at the Celebrations bottle shop nearby at 280 Racecourse Road, Flemington. You were arrested and transported to North Melbourne police station.
18Search warrants were executed at the unit at 12 Holland Court, Flemington, at the unit at 120 Racecourse Road, Flemington and at your premises in Corbet Street, Melton. At the unit at 12 Holland Street police located several bottles of Jack Daniel's, a cash register made up of three compartments and clothing similar to that worn during the armed robbery at the Subway store.
19You were interviewed and made no admissions.
20A victim impact statement from Mr Fitzsimons was tendered on the plea. Mr Fitzsimons has suffered emotionally from the experience, including hyper-vigilance, anxiety, fear and worry. His sleep pattern has been affected and relationships changed because of disengagement from social groups and employment. Mr Fitzsimons has been affected to the extent that he has sought regular treatment from a psychologist.
21These emotional scars are commonly seen in victims of armed robbery. It is an indication of why the offence of armed robbery is regarded so seriously and why the community is so justifiably outraged by the prevalence of this type of offending by drug-affected individuals.
22Previously, on 20 September 2017, you and Mr Muhumed were arrested at the IGA supermarket on Mount Alexander Road, Travancore following an armed robbery. You were both charged with shop-steal and a third male, Amat Kual, was charged with armed robbery. The incident involved Kual waving a hammer towards the victim and demanding cigarettes. Whilst this was occurring, you and Mr Muhumed stole alcohol from the fridges. You were charged and bailed to appear at the Melbourne Magistrates' Court on 22 January 2018.
23I now turn to your personal circumstances.
24You were born in Khartoum in the Sudan in September 1985 and you are the third of seven children. Your mother and grandmother raised you whilst your father was a soldier fighting with the South Sudanese Army. Your mother and the children fled the Cairo when you were around five. Your father followed two years later. Your family endured difficult conditions in Khartoum. You all lived in a single room and your mother worked as a cleaner. The locals were hostile towards Africans. In the street you and other family members had rocks thrown at you and were harassed, beaten and indecently assaulted. You avoided going outside because the streets were unsafe, and you did not attend school.
25Your family arrived in Australia in July 2003 and you attended Footscray Primary School. You learned English quickly, were average academically and had good relations with the teachers. You achieved basic literacy and numeracy.
26At high school, however, you fell in with students who were avoiding school and smoking cannabis. By the time you were 13 and in Year 8, you were often affected by cannabis in class. Your academic performance declined and your attendance at school became erratic. You drank alcohol heavily on weekends. You discontinued school in Year 10 in 2010. In that same year, you moved out of home and stayed with your cousin and also at the houses of friends. You occasionally returned to the family home and moved out again. Your criminal history suggests you often went to Western Australia.
27Between 2010 and 2014 when you were 18, your daily life had become untethered from any education or vocation or direction. You were drinking alcohol and using cannabis most days and began using amphetamine and methamphetamine heavily.
28In 2014 you met your partner and in 2015 you had a son. For a period of about six months after the birth you were able to stop the use of drugs and alcohol. You began drinking heavily again in 2016 and a second son was born mid-year. In that same year you obtained some work as a furniture removalist, lasting for a week on about ten occasions. This was the only paid employment you have ever had.
29In 2016, you and your partner were able to obtain public housing. Periodically, you would move out and live with friends because she was unhappy with you. There were issues about your continuing drug, substance and alcohol use.
30When interviewed by Mr Coffey, clinical psychologist, you were unable to provide a chronology of your life in 2017 other than to say that on most days, you were heavily drug and alcohol-affected.
31You have suffered several incidents of head trauma in recent years and have been hospitalised after experiencing seizure. You did not follow up neurological appointments and rarely took anti-convulsant medication because you did not want to combine it with your drug use.
32A psychological report from Mr Coffey was tendered on your plea. In summary, Mr Coffey said that when interviewed, you were not suffering from any mental illness. You met diagnostic criteria for Alcohol Use Disorder and Stimulant Use Disorder, both currently in early remission due to being in a controlled environment. It was Mr Coffey's opinion that, as a consequence of you having lived much of your adolescence and early adulthood in an alcohol and drug-affected state, you have not engaged in the developmental tasks of youth. For instance, you have not developed a stable identity, a set of considered values or mature relationships. You have not learnt to forestall gratification, to be less egocentric and to understand and manage your emotions such as disappointment, frustration and anger.
33In each of the circumstances of the current offending, you were on bail for the alleged offending on 20 September 2017. I understand that you will be dealt with for this matter, together with a raft of other outstanding Magistrates' Court matters, later this year.
34You have extensive prior appearances in the Children's Court and Magistrates' Court in Western Australia throughout 2010, 2011, 2012, 2013, and 2014. Apart from the offence of aggravated burglary in 2010, the offending represents relatively minor summary offending consistent with your history of dislocated life circumstances in the context of substance abuse. It is disturbing conduct in its extent and repetition.
35The act of armed robbery is regarded as very serious offending, reflected in part by the maximum penalty that is imposed by Parliament of 25 years' imprisonment. This type of frightening behaviour - often by drug-affected and addicted youths against vulnerable citizens doing their best to earn a living - often late at night, is, unfortunately, prevalent and a source of great community concern. Current sentencing practices indicate that principles of denunciation by the court, punishment, general and specific deterrence and the protection of the public are usually prominent and which normally warrant a sentence of immediate imprisonment and, depending on the circumstances, often for a significant period.
36In mitigation, I take into account the submissions of your counsel and in particular:
· your youthfulness;
· your plea of guilty which was made at the earliest time, both for its utilitarian effect as well as its expression of remorse;
· your personal circumstances in which your childhood development was disturbed by your father's absence and the difficult relocation to Cairo and subsequent immigration to Australia as a refugee and the difficulties of adjusting to life in a new country;
· your lack of maturity and long-standing polysubstance addition;
· your expressions of remorse;
· the efforts you have made to assist your rehabilitation whilst in custody; and
· the support that you have from your partner, expressed in a letter to the court, and also from your family, who were in court at the time of the plea and who are supporting you in court by being here today.
37I note your diagnosis of post-traumatic epilepsy following a history of seizures and that this condition is currently being treated pharmaceutically whilst you are in custody.
38Your prospects of rehabilitation will very much depend on your own ability and willingness to withdraw completely from alcohol and drugs. Given your history from early adolescence it will be a very big task, but only you can do it.
39You were remanded in custody on 26 October 2017 and have remained in custody since this date. You have therefore served 218 days by way of pre-sentence detention in this matter.
40Your counsel submitted that in all the circumstances, a sentence of imprisonment is warranted but should be tailored with a community correction order. Several sentences from other judges of this court were referred to in discussion.
41The prosecution submitted that the sentences referred to can be distinguished and that despite your youthfulness and other mitigating circumstances, the sentence structure submitted by your counsel would not adequately reflect the appropriate balance with the gravity of offending.
42I am conscious of the sentencing principles regarding young and youthful offenders and that in a case of a youthful offender, rehabilitation is usually far more important than general deterrence. A youthful offender should not be sentenced to adult prison, or for an extended time in an adult prison, if such a disposition can be avoided. However in the case of serious offending and the particular circumstances of the case, the mitigating circumstances must, to a degree, give way to the primary purpose of punishment, which is deterrence.
43In the course of considering the material before me following the plea, I arranged to have you assessed for your suitability for a community correction order. You were found suitable for such an order.
44I have given close consideration to the principles expressed in the case of Boulton[1] and the further expressions of those principles by the Court of Appeal in subsequent decisions of that Court. I have also carefully considered the provisions of the Sentencing Act 1991, in particular s.5. I have reviewed the cases provided on the plea and also the tables provided by the Judicial College of Victoria for their assistance as to current sentencing practices reflected by decisions of the Court of Appeal.
[1]Boulton & Ors v The Queen [2014] VSCA 342
45You are a youthful man with an immature personality and the length of any term in custody should be ameliorated as much as possible to avoid the more corrosive influences that prison may have upon you.
46In my view, your prospects of rehabilitation will be better advanced if you are provided with the opportunities available under the provision of a community correction order once you are released from custody. In particular, I consider that regular supervised unpaid community work will greatly assist you getting some routine and order into your life. That, along with substance abuse and behaviour change programs, will give you the opportunity to lead a more productive life to the benefit not only to yourself but also to your community. It may also help you to get some self-respect.
47Your offending is further aggravated by the fact that it occurred whilst you were on bail. I note that pursuant to s.16(3C) of the Sentencing Act, the sentences I impose must, unless I direct otherwise, be served cumulatively. However I do not intend to impose cumulation other than that which I direct. I note that the Crown did not request that the sentences be served cumulatively.
48Mr Deng, could you now please stand.
49On Charge 1 of armed robbery, you are convicted and sentenced to 12 months' imprisonment.
50On Charge 2 of armed robbery, you are convicted and sentenced to 12 months' imprisonment.
51On the summary Charge 9 of committing an indictable offence whilst on bail, you are convicted and sentenced to one month's imprisonment.
52As to cumulation, Charge 1 is the base sentence. I direct that six months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1. The sentences are otherwise concurrent.
53The total effective sentence is 18 months' imprisonment.
54Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 218 days not including today be reckoned as time already served under the sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
55On Charges 1 and 2 of armed robbery you are further ordered, with conviction, to serve a community correction order for a period of two years.
56The community correction order commences immediately upon your release from prison and ends two years from that date. The corrections centre you will attend is the Melton Community Corrections Service at 83-85 Unitt Street, Melton, and you must attend there within two clear working days after the completion of your imprisonment term.
57All the mandatory terms of a community correction order apply and the additional conditions I impose are that:
· you be under the supervision of a community corrections officer,
· you perform 200 hours of unpaid community work as directed by the regional manager;
· you undergo assessment and treatment, including testing, for both drug and alcohol abuse or dependency as directed by the regional manager;
· you undergo mental health assessment and treatment including but not limited to mental health, psychological, neuropsychological and psychiatric in a hospital or a residential facility as directed by the regional manager;
· you undergo programs or courses aimed at addressing factors relating to your offending as directed by the regional manager; and
· you attend for judicial monitoring in this court on Friday 2 August 2019 at 10 am.
58Now judicial monitoring means that you come to the court during the period of your community correction order so that I can assess how you are going. I can supervise what courses you are getting and make sure that you are getting the courses that you are entitled to from community corrections and that you are getting them in an appropriate time frame and not waiting for courses to start. It also allows me to understand how you are complying with the order. It will just be you and me and the court staff here and you can talk freely to me about the various matters, any issues that you have, and if you are not getting the courses that you are entitled to then I can make arrangements and make sure that you do get them as a matter of priority. Do you understand that?
59OFFENDER: Yes.
60HIS HONOUR: Now I realise you have already had the mandatory terms of the community correction order explained to you but I will just go over them again with you now. The mandatory terms - the terms you must do – are that:
· you must not commit another offence for which you could be imprisoned during the time that the order is in force;
· you must comply with the requirements of regulation 17 of the Sentencing Regulations 2011, which essentially set out your obligations as to your attendance at the community correctional centre, and that means not attending drug or alcohol-affected when you go there - do you understand that?
61OFFENDER: Yes.
62HIS HONOUR:
· you must report to and receive visits from a community corrections officer;
· you must report to the community corrections centre - that is the Melton centre - within two clear working days of the order starting and as I have already indicated, that means within two clear working days after the completion of your imprisonment term;
· you must notify a community corrections officer of any change of address or employment within two clear working days after the change;
· you must not leave Victoria without first getting permission to do so from a community corrections officer; and
· you must obey all lawful instructions from and directions of community corrections officers - such directions may be given either orally or in writing.
63Do you understand and agree to those conditions, Mr Deng?
64OFFENDER: Yes, Your Honour.
65HIS HONOUR: If you get sick or if exceptional circumstances arise, the order may be suspended for a period of time, and if your circumstances materially alter you may apply for a variation or cancellation of the order. In either case you must notify the Melton Community Corrections Centre and I recommend that you obtain legal advice if any of these things happen.
66However I must warn you that if you breach any condition of this order then you
will be brought back to court and that will be back before me. One of the options open to me is to cancel the community correction order and resentence you on the original charges. I may also deal with you for any breach by sending you to prison on that further offence for a period of up to three months.67Do you understand the consequences of breaching your community corrections order, Mr Deng?
68OFFENDER: Yes.
69HIS HONOUR: Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty the total effective sentence that would have been imposed is four years' imprisonment with a minimum period of three years to be served before eligibility for parole.
70I will ask you to sign the community correction order shortly.
71At the plea hearing, the Crown sought an order to which you consented for the taking of a forensic sample and I have made that order today for the reasons noted on the order, namely, the seriousness of the offending warrants the making of the order, your prior criminal record warrants the making of the order, the order is by consent and the granting of the order is in the public interest.
72I must inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that, Mr Deng?
73OFFENDER: Yes.
74HIS HONOUR: At the plea hearing, the Crown also sought a disposal order in relation to the items seized by police and compensation orders for the payment of $400 to Subway and $140.43 to the Thirsty Camel, to all of which you consented and I have also made those three orders today.
75Is there anything else from either counsel?
76MS BURNETT: No, Your Honour.
77MR McGARVIE: No, Your Honour.
78HIS HONOUR: No, all right, well, I'll just get this order passed to you now, Mr McGarvie, and you can ask your client to sign that he agrees and understands.
79MR McGARVIE: As Your Honour pleases.
80(Community correction order signed and acknowledged.)
81HIS HONOUR: Mr Deng, before you leave, it seems to me clear from what you said to Mr Coffey how, when you came to Australia, you worked well through primary school before you got involved with drugs in secondary school and with other boys who also got involved with drugs. From that time on, your life has gone off the rails. Your sister also mentions the fact that you are quite bright and I think it is clear that you do have a good intelligence.
82This is a real opportunity for you to turn your life around and make good use of your time in prison. You should really press and push for as much as you can for drug and alcohol assistance because it is not easy to stop that after you having been involved with it for such a long time. But your life has been a dreadful mess since you came here to Australia and unless you do turn around and get away from the drugs and alcohol, and also the people that you meet in those circles, then the rest of your life is going to be a similar mess - you will just get into more and more trouble and you will end up spending a lot of time in gaol. Other things happened to you like the assaults that you had because of the circles that you met, and damage to your head and other injuries that you can get, but you are capable of turning this around but you are going to have to work very hard at it.
83So you get an opportunity whilst you are in custody to completely dry out and you get an opportunity, with the help that you can get from the community correction order, to get into a routine of work with the unpaid community work that you will be directed to and to work with the courses, psychologists and other people to help you get away from the drugs and alcohol. With the help of the family that you have who care for you, and with the help that you can get from the community services, you will have an opportunity to do that. But in the end it will be up to you how you use that. So you can sit down and reflect on that for a while. All right? Good luck.
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