Director of Public Prosecutions v Deng (a pseudonym)
[2021] VCC 99
•9 February 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MAJOK DENG (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE WILMOTH |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 February 2021 |
DATE OF SENTENCE: | 9 February 2021 |
CASE MAY BE CITED AS: | DPP v Deng (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2021] VCC 99 |
REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: Pleas of guilty to two charges of criminal damage and two charges of making a threat to kill, and two summary charges of unlawful assault – offences committed while intoxicated - assaulted partner and her 15 year old son – extensive damage to house and contents – young children present – remorse -
Sentence: 11 months imprisonment 18 months Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr N. Batten | OPP |
For the Accused | Ms Z. Garde-Wilson | Tabforce Pty Ltd |
HER HONOUR:
1Majok Deng[1], you have pleaded guilty to two charges of damaging property and two charges of making a threat to kill, as well as two summary charges of unlawful assault. The background to these offences, is that at the time you were in a relationship with your partner, the mother of four children. You are the father of the youngest of the children, and your partner was due to give birth to another child in December 2020. You did not live with the family but visited there frequently.
[1] A pseudonym.
2On 7 April 2020, you went to your partner's home and after having spent the day drinking alcohol, you began behaving aggressively towards your partner's nine year old child. This was at about 5.30pm, when your partner defended the child, you walked through the house slamming doors and damaging door frames and wall plaster. That is the first part of the first charge of criminal damage, Charge 1.
3You threw onto the ground a phone belonging to the eldest 15 year old child causing the screen to crack. That is the second charge of criminal damage, Charge 2.
4You then demanded everyone leave the living room, so you could sleep. As your partner gathered the children to leave the room you slapped her on the back several times and said you would kill her. That gives rise to the first part of the first summary charge of unlawful assault, Charge 4, and part of the charge of making a threat to kill, Charge 3.
5You then struck your partner in the face just above her left eye causing swelling. She grabbed you in a bear hug, and you grabbed her dress and pulled her towards the ground, ripping off the top of her dress, and leaving her upper body naked. That is the second part of summary Charge 4.
6The eldest child tried to drag you off his mother and during the struggle, you bit his arm causing the skin to break and minor swelling. That is the second summary Charge of unlawful assault, Charge 21.
7You yelled at your partner that you would kill her if she did not beat the children for you. That is the second part of Charge 3, making a threat to kill.
8She and her eldest child tried to push you out the house and managed to do so and locked the door. You continued to threaten to kill her, and that is the continuation of Charge 3.
9You picked up a large pot plant and threw it at the front door, shattering two vertical glass windowpanes. That is a continuation of Charge 1, criminal damage.
10You then reached through the broken window and tried to open the door, but you could not reach the child lock. You yelled out, 'Bitch, open the front door. I'll kill you today'. You then realised that she could see you on a security camera, so you broke it, and started to kick the door. That is a continuation of Charge 3, making a threat to kill.
11Your kicking eventually broke the child-lock and you forced the door open, causing damage to the door and the latch. That is a continuation of Charge 1. Your partner and the children ran into the backyard, and you entered the house cutting your feet on the broken glass. You ran through the house, screaming that you would damage everything if you could not beat the children or kill
your partner. She and the children climbed through a window, back into the house, your partner called a relative while the eldest child called the police.12You went through the house smashing and damaging the property extensively. You threw furniture and appliances, and you damaged doors and walls, and other items, including a television set. That is all part of Charge 1.
13You turned the gas stove on and threatened to start a fire and kill everyone. That is Charge 4, the second charge of making a threat to kill. Your partner could smell gas and begged you not to kill them all, adding that you would die too. You then turned the gas off, and locked an internal door, separating yourself from the family. You told your partner to call the police, and this time she and the children took refuge in the garage.
14At about 7.45 pm, the police arrived and removed the family for their safety. You were arrested and taken to hospital for treatment to your bleeding feet. Later, you were interviewed at the police station still in a state of intoxication. You said you had smashed the front door, but otherwise denied the offending claiming the victims had inflicted their injuries themselves. You were remanded in custody and, without applying for bail, you have remained there for 308 days.
15Your partner made a statement to the police and said she was terrified of you and did not want you anywhere near her or the children. An intervention order was put in place. Your partner made a claim on her insurance company for the cost of repairs to the house which was $17874.84, but did not include damaged items such as the television set. She had to pay an excess fee of $500.
16On 6 October, the victim made a “statement of no complaint” to the police, saying she wished to have the charges against you withdrawn and to be able to have contact and communication with you. She wanted to reconcile with you because of the baby, of which you are the father, to be born by caesarean section in November, five weeks before the due date.
17She made the statement with the assistance of her lawyer and an interpreter. She wrote a letter to the court dated 29 January 2021, explaining her circumstances. Her five children are aged 15, 9, 4 and the baby, two months. The eldest child helps her with shopping and taking the younger children to school, but she explained her need for both physical and financial help from you. She said she has forgiven you because she has never seen you drunk before, and you have never before behaved as you did that day. She believes you did so because you were upset about your friend having committed suicide.
18I take this into account, by exercising some leniency in determining an appropriate sentence, but with emphasis on your lack of similar offending in the past, and other matters which indicate reasonable chances for your rehabilitation. In considering those matters, I have not excluded the sad fact that offenders often express what seems like genuine remorse, and are trusted by their victims to change, in circumstances where the victim may be dependent on the offender.
19You are a 33 year old man, born in Northern Sudan who came to Australia at the age of 14 as a refugee without any family. Your mother has since died, and you have been unable to locate your father or brother. You did not go to school in Australia, but you have always worked as a cleaner, and you speak good English. You are considered a leader in the Sudanese community, helping those in need, and organising community events.
20You are well regarded by others and those who know you were shocked to learn of this violent offending. Two community leaders have provided references to that effect and the victim provides similar information in your support.
21You have a criminal record dating from 2006, two years after your arrival, initially, for a minor matter involving abuse of alcohol but in 2010, you were convicted of some serious driving offences and placed on a two year suspended prison sentence. In 2017 and 2018, you were convicted of further driving offences, some involving alcohol and clearly, that has been an ongoing problem, despite the victim not having observed you in that state. The more recent offending resulted in a Community Correction Order which you completed.
22The maximum penalty for each of the indictable offences is 10 years' imprisonment, and three months for the summary charges. You have been in custody for just over 10 months. The submission by your counsel is that that time is sufficient punishment, if combined with the Community Correction Order and the prosecution agrees that a combination sentence is within range.
23This was family violence of a serious kind, with injuries to your partner and to her son, in the presence of four children. They had to flee to various parts of their own house, terrified of your violence. The aftermath was your removal to prison, and the mayhem and destruction you caused to the house and to their possessions.
24You were attempting to manipulate the victim into beating her children for no apparent reason, except it would seem your need to occupy the living room exclusively at a time of day when your partner might have reasonably expected some help from you. Intoxication is merely an explanation, not an excuse, and on this occasion, it may well have disinhibited you and exposed an unacceptable attitude towards women and children, which is partly discernible from at least one of your answers in your record of interview.
25It was shocking behaviour and should you ever repeat any aspect of it, you would likely be facing a much longer prison term. The community has no tolerance for violence of this type and expects such offenders to be afforded little leniency. An appropriate sentence must be one that deters others from offending in this way and must reflect the firm denunciation of the court.
26Although you have some prior court appearances for offending relating to alcohol abuse, you have no history of committing violent crimes, nor of any type of family violence. However, you must know by now, if you did not earlier, that drinking alcohol to excess can in your case lead to serious offending.
27I accept that you are remorseful and that you regret your behaviour and wish very much to return to the family. Your remorse is a positive indicator for your likely rehabilitation, as is the fact that you pleaded guilty, and in doing so, avoided the need for a trial. Importantly, the need for the victim and the older children to have to give evidence has also been avoided, and for that, you are entitled to a discount on your sentence.
28You have been assessed as suitable for a Community Correction Order. I will be imposing that order, in combination with a prison term that you have served. The conditions of the order requiring you to undergo treatment programs amount to sufficient punishment when considered with the time you have already served in prison.
29I sentence you to the following terms of imprisonment.
30For Charge 1, criminal damage, eight months.
31For Charge 2 criminal damage, one month.
32For Charge 3 making a threat to kill, six months.
33For Charge 4 making a threat to kill, eight months.
34For summary Charge 4 unlawful assault, two months.
35For summary Charge 21 also unlawful assault, one month.
36The sentence for Charge 1 is the base sentence for purposes of cumulation.
I order that two months of the sentence for Charge 4 be served in cumulation upon the base sentence. This reflects the fact that also the offences were all committed during the same incident, the threat to kill the whole family and the context of such destructive behaviour as you were demonstrating, added considerably to the terrifying nature of the episode, so some moderate cumulation is warranted.37In addition, I order that one month of the sentence for summary Charge 4 be served in cumulation upon the base sentence, to reflect the serious nature of a physical assault on a woman, with particular emphasis on the fact that she was pregnant at the time, and the assault took place in full view of her children, including three very young ones. Meanwhile, her eldest son was doing his best to protect his mother from you. His sensible and courageous response to the situation deserves acknowledgment.
38The total effective sentence is 11 months, which means you will be released in just over three weeks, because you have already served 307 days. You will then begin the Corrections order which will start that day and will last for
12 months It will apply to all the indictable charges. You will be under supervision and must have treatment for alcohol abuse. You must also engage in programs to reduce the risk of re-offending as directed.39If you were to breach the Community Correction Order, you would be charged with that offence, and if found proved, you would have to return to court to be re-sentenced. You must report to Sunshine Office of Corrections within two working days of your release. That would be by telephone, that contact.
40Mr Deng, do you agree to be bound by this order.
41OFFENDER: Yes. Yes, Your Honour.
42HER HONOUR: Do you consent to the court making this order.
43OFFENDER: Yes.
44HER HONOUR: Thank you. The order will be sent to the prison for your signature. I declare that you have already served 307 days of pre-sentence detention; that time is reckoned to be already served and I shall note it on the court record.
45If you had pleaded not guilty to these charges, I would have sentenced you to 20 months' imprisonment, with a non-parole period of 14 months.
46There is a disposal order and is there consent to that, Ms Garde-Wilson?
47MS GARDE-WILSON: Yes, Your Honour.
48HER HONOUR: Which I will make. That relates to items of clothing. Now, are there any other matters, Mr Batten?
49MR BATTEN: The only matter I would raise, Your Honour I think has ordered the conditions that are recommended by Community Corrections. Is that right?
50HER HONOUR: It was alcohol abuse, treatment for alcohol abuse and programs to reduce the risk of re-offending.
51MR BATTEN: Yes, and supervision.
52HER HONOUR: And supervision, yes.
53MR BATTEN: Yes, and I think Your Honour has made that order, a 12 month order.
54HER HONOUR: That is right.
55MR BATTEN: Did Your Honour note that Corrections, in terms of the “offence reduce offending programs”, made the recommendation that the order be at least 18 months, to ensure that that course could be done.
56HER HONOUR: I did not, I missed that.
57MR BATTEN: I am not sure if that is going to make a difference. But they seem to think that there may be a difficulty if it is not sufficient time.
58HER HONOUR: I will make it 18 months, in line with those recommendations to ensure that that can be achieved. Thank you. Ms Garde-Wilson is there anything else?
59MS GARDE-WILSON: Just addressing that point, if the order was to be extended for the additional period of time, perhaps if there is a limitation in relation to supervision being for the six or twelve months in relation to it; it just adds an extra burden in relation to supervision of attending. Your Honour's indication was that it was intended to be any more than 12 months, other than that course to be conducted.
60HER HONOUR: I am not sure whether it can be done in that way. Excuse me, I will just consult with my associate.
61Yes, it can be done. Thank you for that.
62MS GARDE-WILSON: Thank you, Your Honour.
63HER HONOUR: In that case, I will make the supervision apply to the
12 months and it can continue on for
18 months to ensure that the programs can be completed.64MS GARDE-WILSON: Yes, thank you, Your Honour.
65HER HONOUR: Thank you, Ms Garde-Wilson. Do you understand that,
Mr Deng?66OFFENDER: Yes, Your Honour.
67HER HONOUR: I am going to leave the Bench now, but I will leave this link open. So, that Ms Garde-Wilson can speak to you if she needs to.
68MS GARDE-WILSON: Thank you, Your Honour.
69OFFENDER: Thank you.
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