Director of Public Prosecutions v Deng Shok
[2019] VCC 1447
•4 September 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 18-01991
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AGOC DENG SHOK |
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JUDGE: | HER HONOUR JUDGE M. SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 July 2019 | |
DATE OF SENTENCE: | 4 September 2019 | |
CASE MAY BE CITED AS: | DPP v DENG SHOK | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1447 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Armed Robbery - Attempted Aggravated Burglary - Prohibited person use an imitation firearm – Theft – Dangerous Driving
Legislation Cited:
Cases Cited:Verdins [2017] VSCA 102 – Bugmy (2013) 249 CLR 571 – Boulton [2014] VSCA 342 – Younan [2017] VSCA 207 – Pristin [2018] VCC 320 – Mendelle [2018] 204 – Walker & Dargan [2019] VSCA 137
Sentence: TES: 6 years 7 months’ imprisonment with a minimum of 3 years 9 months to be served. Disposal order made and disqualified from driving for 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D. Caruso | OPP |
| For the Accused | Ms N. Karapanagiotidis | David Barrese & Associates |
HER HONOUR:
1 Agoc Deng Shok, you have pleaded guilty to one charge of armed robbery, which has a maximum sentence of 25 years' imprisonment; one charge of attempted aggravated burglary, which has a maximum sentence of 20 years' imprisonment; one charge of being a prohibited person using an imitation firearm, which has a maximum sentence of 10 years' imprisonment or a fine of 1200 penalty units; three charges of theft, an offence which has a maximum sentence of 10 years' imprisonment; and one charge of dangerous driving while being pursued by police, which has a maximum sentence of three years' imprisonment.
2 You also agreed to this court hearing two summary charges to which you pleaded guilty: summary charge 9 of unlicensed driving, which has a maximum sentence of six months' imprisonment or a fine of 60 penalty units; and summary charge 18 of committing an indictable offence while on bail, which has a maximum sentence of three months' imprisonment or a fine of 30 penalty units.
3 I sentence you on the basis of the prosecution opening[1], an agreed summary which was read out in court. I also take into account the CCTV footage[2] that was played in court during the plea. I will outline your offending as briefly as I can, given that it involved two sets of crimes committed in one day.
[1] Exhibit A
[2] Exhibit B
4 On 2 January 2018, a Mercedes car was stolen from outside the home of the owner. On 7 January you drove that car, knowing it to be stolen (charge 1) and you used it in all the crimes you committed that day.
5 At 6.44am on 7 January you drove to the Prince Mark Hotel in Doveton and attempted to break into a room where two men unknown to you were inside. You did this by knocking on the door and, when one man answered it, you asked if any mail had turned up. The man told you that he had been there for two months, no mail had turned up, and went to shut the door. You then pulled out a gun and tried to enter the room. The other man joined his friend at the door, attempting to push it shut. In the struggle, you lost a thong under the door. You then said something like they had five seconds to open the door or you will put a bullet in their head. You began counting, the men managed to bolt the door shut and then ran to the bathroom, terrified, and rang 000. That is the subject of charge 2 of attempted aggravated burglary, with the aggravating elements of the attempted burglary being that you had an imitation firearm and you knew there were people in the room.
6 You then departed the Prince Mark Hotel in the stolen car but left behind your fingerprints and a left-foot thong as well as your image on CCTV.
7 Just over six hours later, at 1pm on 7 January 2018, you began putting fuel into the stolen car at the 7‑Eleven service station in Lynbrook. The attendant shut off the pump and you drove off, having stolen $8 worth of fuel. That is the subject of Charge 3 of theft. A few minutes later you did the same thing at Coles Express service station in Narre Warren South, this time stealing $59.50 worth of fuel. That is the subject of charge 4 of theft.
8 About 10 minutes later, at about 1.20pm, you drove into the 7‑Eleven store car park in Cranbourne North. You were wearing a hooded jumper and had a towel covering your face when you ran into the store pointing the gun in front of you. You moved in front of the four customers lined up at the counter and pointed the gun at the staff member. There were numerous other customers in the store and they all began to scream and flee the shop. You threatened the staff member with the gun, demanding money or you would shoot him, and telling him to hurry up. The staff member opened the cash drawer and put the till on the counter from where you loaded the plastic bag you were carrying with $600 from the till, putting the gun on the counter to do so. That is the subject of charge 5 of armed robbery, and your possession of the imitation gun, together with your previous convictions, is the subject of charge 7, being a prohibited person using an imitation firearm. As you were on bail for other offences when you committed the armed robbery, that is the subject of summary charge 18 of committing an indictable offence while on bail.
9 You picked up the gun, ran from the store and drove off in the stolen car. The staff member and numerous customers having rung 000, a number of police units responded and were patrolling the area looking for the Mercedes driven by a man matching your description, including the disguise.
10 Shortly after 1.30pm, you and the Mercedes were seen by two mobile police units who began to pursue you, one of them with emergency lights activated. As you attempted to get away, you drove through a bottle shop car park, over a garden bed, and back onto the road, where you were estimated to be travelling at about 95kmh in the 60kmh zone.
11 You approached a red light where two cars were stationary side by side and attempted to drive between them. Inevitably, you collided with them both, causing considerable damage to the Mercedes you were driving, including the dislodgement of the front wheel. Despite this you continued on through the red light and turned left, while the police in pursuit stopped to assist the drivers of the other two cars, with fortunately only minimal damage to those cars and no injuries to the drivers. All of the driving just described is the subject of charge 6 of dangerous driving whilst being pursued by police. As you did not have a driver's licence, that conduct is also the subject of the summary charge 9 of unlicensed driving.
12 You abandoned the Mercedes shortly after that and ran away through a retirement village, where you were seen by some of the residents and where you dropped a number of items later associated with you through DNA testing. The imitation gun was found in the Mercedes, along with a thong which paired with the one found at Prince Mark Hotel and a sandal which paired with the one found at the retirement village[3]. Your fingerprints were found on the Mercedes and you left your DNA on the steering wheel and also on plastic gloves found in the village. The plastic bag which had contained the money was also found in the village, but no money was recovered.
[3] Exhibit C
13 Leaving the retirement village, you made your way to a nearby bus stop, where in a very calm manner you identified yourself to police who approached you, looking for a man matching your description, after which you were permitted to board the bus. You then used your Myki for the first time that day. That record of use was part of the proof that the prosecution relied on to show that you had lied in your interview with police three days later when you said you had caught numerous buses that day and denied the offending other than driving the stolen car on that day.
14 No impact statements were provided by any of your victims but I do not need such statements to tell me that all of them would have been extremely frightened as a result of your actions, especially your wielding of the gun which was a very realistic imitation, described by many witnesses in the 7‑Eleven store as being like a police-issue handgun.
15 The men in the hotel room and the staff member and customers in the 7‑Eleven store did not know that the gun was imitation and, given your threat at the Prince Mark Hotel to put a bullet in the heads of the two men, and the threat to shoot the staff member if he did not hurry up, I have little doubt they all believed that the gun was real and were terrified as a result. I take into account this impact on all of your victims in deciding the appropriate sentence.
16 Your criminal behaviour, spread over two events in the one day, was very serious. The features that make the overall offending so serious include the use of a disguise; the way you used the gun during the attempted aggravated burglary and the armed robbery, as opposed to just having it on you; the threats you made in each of those crimes; the fact that you were on bail at the time, and the fact that you drove, and drove so dangerously, without being licensed to drive. However, the last two factors (being on bail and being unlicensed) are not aggravating features of the other offending, as they are the subject of separate offences for which you are to be sentenced today.
17 You were arrested about three days later and when interviewed denied the offending, including denying that it was you appearing on the CCTV footage which you were shown. You indicated your intention to plead guilty after I delivered a ruling permitting the prosecution to rely on answers in your interview as lies and for all charges to be heard in the one trial. DNA was initially a pre‑trial issue, but that was resolved after a joint expert report[4] was prepared.
[4] Pursuant to the County Court of Victoria Practice Note: Expert Evidence in Criminal Trials
18 You are now aged 24, and were aged 23 at the time of the offending. Despite your relatively young age you have a significant and relevant criminal history from at least 2010 to October 2017, with these offences committed in January 2018. From the material I have, you were charged with armed robbery at age 15 while still in the Children's Court and have two other armed robbery convictions since then in that jurisdiction, plus, as best as I can figure it, nine convictions for unlicensed driving, six convictions for theft of a car, and many other dishonesty convictions as well as driving, drug and assault related offences from appearances in both the youth and adult jurisdictions.
19 To understand that criminal history, it is necessary to consider your background, which is one of trauma, disadvantage and dislocation. You were born in North Sudan, the middle child of nine brothers and sisters. You were exposed to war in your birth country and saw bodies of people who had been shot and killed. Your parents fled with you, aged about five, and the other children to Egypt, where you all remained for about two years in a refugee camp. You were apparently subjected to racial vilification while there.
20 In 2001 to 02, when you were aged about seven, the family were accepted into Australia as refugees and you ultimately became an Australian citizen. Unfortunately, your parents separated within two months of your arrival and two of your siblings went to be with your father while the rest of the children stayed with your mother, including you. Your counsel submitted that this had an enormous emotional and practical impact on your young life. The family was initially in a refuge, then in transitional housing, and finally obtained a Ministry of Housing property.
21 You report that your mother did not allow you contact with your father, and so you lost your relationship with him. Apparently your father is known for helping the Sudanese community through the church, but it seems he did not help his own family, for whatever reason.
22 Your mother obtained work as a cleaner, as well as caring for the remaining children, but sadly she could be violent and emotionally unstable, no doubt due to her own experiences; there was a notification to the Department of Health and Human Services when you were aged 11[5]. In the context of this abuse, you ran away from home and were homeless at the age of 12. You attempted to live with your father after a few months, but he was never home and you again became homeless. In 2007, at about 13, you were made the subject of what is called a Custody to the Secretary order and in 2011 were living in out‑of‑home care[6]. Over this period you were in and out of residential care and home with your family.
[5] Exhibit 5
[6] Exhibit 6
23 Information from the Youth Parole Board's annual survey in 2017 shows that of the young offenders detained or on remand in that year, 36% had been subject to a child protection order; 70% were victims of abuse, trauma or neglect; 65% had been suspended or expelled from school; 53% presented with mental health issues; 30% had a history of self-harm or suicidal ideation; and 58% had a history of both drug and alcohol misuse, amongst other factors. You are a few years older than this cohort, but it is very sad to see that those characteristics apply equally to you during your time in the youth justice system.
24 From a young age, you were keeping away from home, had no supervision, began chroming, binge-drinking, mixing with older young men, and self‑harming. You began using ice at the age of 17 years. Your schooling was interrupted with the cycle of absconding, being at home, conflict arising, leaving again, drug use, and compounded by a negative view of the authorities. Eventually, to your credit, you passed Year 10 and completed part of a bricklaying apprenticeship. Unfortunately that was interrupted by time spent in the Youth Justice System and, because of your issues, your application to the apprenticeship requirements was inconsistent.
25 Your criminal history must therefore be seen in the context of that background. Between 2015 and 2017 in the adult jurisdiction you received fines and a community correction order, which you breached, and by 2017 two short gaol sentences were imposed. You have been in gaol on remand for the offences for which I am sentencing you for 582 days, which is just under one year, eight months – far longer than any previous time you have spent in custody. While in custody you recently completed a Managing Ice Addiction Program with Caraniche[7] and you have provided urine samples which tested negative to illicit substances in June and September 2018, and April and June 2019[8]. That is the good news.
[7] Exhibit 4
[8] Exhibit 3
26 The bad news is that although while in gaol you have been drug free, completed courses and have tried working, you have come into physical conflict with others and there have been issues that resulted in you spending time in management units of all the prisons you have been kept in while on remand, which means 22 - 23 hours in lockdown.
27 I received a report from forensic psychologist Dr Aaron Cunningham[9] in which he detailed your background as I have outlined it and said that you reported to him symptoms of Generalised Anxiety Disorder, Post Traumatic Stress Disorder (PTSD) and Major Depression. In his opinion, your profile as assessed by him is consistent with your history of trauma and abandonment. Since your youth you have felt badly depressed, and feel confused about your identity, as well as sad, abandoned and self-destructive. You have made suicide attempts. You do have flashbacks of trauma. You have episodes of crying in gaol, and have refused food for days on occasion.
[9] Exhibit 2
28 Dr Cunningham is of the opinions that you present with a diagnosis of PTSD, that you were predisposed to development of this by exposure to war-related trauma, and that the disorder was precipitated by the abuse and instability in your family home. He is of the further opinion that your drug abuse would have increased your impulsivity and recklessness and was the main contributor to your offending, although he does state your PTSD led to an increase in reckless and self-destructive behaviour. Because of your trauma and abandonment, he considers you are poorly equipped to cope with life stressors and engage in prosocial consequential thinking. He also stated that a long period of time in gaol would perpetuate your trauma because of the exposure to trauma and violence in that environment.
29 I accept all of these opinions from Dr Cunningham and I am satisfied that the diagnosis of PTSD and its effects on you make serving a term of imprisonment harder for you than for someone without such a diagnosis and background.[10] I will take this into account in the sentence I impose.
[10]Verdins [20017] VSCA 102
30 There was some discussion at the plea hearing about how I should take into account your time in management units, with the prosecution submitting that that could not be considered as mitigatory if the management issues arose from your own behaviour. While I accept that as a general proposition, I refer back to Dr Cunningham's opinion, which I have accepted, that your PTSD leads to an increase in reckless and self-destructive behaviour and that, because of your trauma and abandonment, he considers you poorly equipped to cope with life stressors and engage in prosocial consequential thinking. To the extent that your background has led to you not being always able to avoid conflict and ending up in management units as a result, I take into account the periods you have served in lockdown.
31 There are a number of other factors that I take into account in deciding the most appropriate sentence.
32 The first, and most important, of these is the fact that you pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. Because of your pleas, the community has been spared the time and cost of a trial. Further, you have spared the victims from the ordeal of giving evidence at a trial. However, as your plea was entered after the case was committed to this court for trial, you did not spare the men from the Prince Mark Hotel from ever giving evidence, because they were cross examined at committal. Except for the charge of theft of the car, your plea was not entered early, as it was indicated shortly before trial after I delivered rulings admitting evidence in the prosecution case, as I mentioned earlier. I do accept that your plea shows a willingness to facilitate justice and some demonstration of remorse and that is to be taken into account.
33 You told Dr Cunningham that you have thought a lot about your victims and recognised that they would have been scared. You also mentioned this to those assessing you for your suitability for a community correction order. I take this as a further sign of remorse and as showing that you have some insight into the impact of your offending on your victims.
34 I also take into account your relatively young age and that you are young enough to learn a new way of living and not spend the rest of your adult life in and out of gaol.
35 I take into account your background[11], not just as explanatory of your criminal history, or as affecting the way in which you are serving your time in gaol, but also because it has led to your diagnosis of PTSD, which in turn impacts on your moral culpability, which I find to be lower than if you had had the advantage of a proper and stable upbringing without being subjected to the trauma, violence, disadvantage and dislocation you suffered in your childhood and teenage years.
[11]Bugmy (2013) 249 CLR 571
36 I take into account your attempts so far at rehabilitation while in custody, including that you have been drug-free for more than 12 months, and recognise that you do still have support in the community: first from your family, with your mother and a brother coming to court on the plea day to show their support, which is ongoing despite difficulties in the past, and you can live with your mother on your release; and, second, from your former partner, who has visited you in prison and with whom you maintain a positive relationship. This is all to your benefit, but I find that your prospects of rehabilitation are guarded; you need to remain drug-free once back in the community, and you need treatment for your PTSD and other reported symptoms of anxiety and depression to promote your rehabilitation and reduce your risk of reoffending.
37 You told Dr Cunningham that you committed the offences for which I am sentencing you while abusing drugs and trying to get money to get a bond for you and your partner to live somewhere stable. She gave evidence before me in the pre-trial hearings, and I have seen other evidence such as text messages, showing that the situation was unstable for both of you at the time. You also told Dr Cunningham that you felt worthless because of an inability to support your family. While that is in no way an excuse for your serious offending, it does provide some background and explanation for it in the context of all your difficulties, ramped up by significant drug abuse.
38 Your counsel submitted that because of the factors to be taken into account in mitigation, that I could consider a sentence of imprisonment of 12 months combined with a community correction order, citing a case called Boulton[12] to submit that this was an option open to me. If I did not agree, she submitted that I should consider a longer parole period in imposing a prison sentence.
[12] [2014] VSCA 342
39 The prosecutor submitted that a sentence of 12 months' imprisonment combined with a community correction order was completely outside the range of appropriate sentences, and that your crimes, particularly those with maximum terms of imprisonment of 20 and 25 years, were of such seriousness as to warrant stern punishment. She provided me with a number of sentences,[13] which I have read, noting always that every person to be sentenced must be looked at in light of factors relating to them and their case.
[13]Younan [2017] VSCA 207; Pistrin [2018] VCC 320; Mendelle [2018] 204; Walker & Dargan [2019] VSCA 137
40 I do accept that in certain circumstances a community correction order could be imposed for an offence of aggravated burglary,[14] noting that your offence is an attempt at that crime, and it follows that a combination sentence would also be an available option in certain circumstances. I had you assessed for a community correction order, but, as I said on the day of the plea, that did not mean I had made up my mind not to impose a prison sentence.
[14]Boulton at [131]
41 You were assessed as suitable, but I have decided that the offences are too serious and the only appropriate sentence is one of imprisonment.[15] You do need opportunities to receive treatment for your PTSD and to rehabilitate yourself, but that cannot be the primary purpose of sentencing you for such serious offending. The court must denounce your behaviour and impose a sentence that will deter others from committing such crimes, and deter you from committing such crimes in future. I must also consider the protection of the community and bear in mind the likelihood of your re-offending, which I find to be high.
[15] Ibid; also [140]
42 However, I do not want to stifle your rehabilitation efforts, and so I agree with your counsel's secondary submission and I will impose a longer parole period to enable you to have longer term support as you re-enter the community[16].
[16] Ibid [198]
43 Would you stand up, please. You are convicted and sentenced as follows:
44 Charge 1 - Theft of car - 12 months' imprisonment;
45 Charge 2 - Attempted aggravated burglary - 3 years, 6 months' imprisonment;
46 Charge 3 - Theft - 1 month's imprisonment;
47 Charge 4 - Theft - 1 month's imprisonment;
48 Charge 5 - Armed robbery - 5 years' imprisonment;
49 Charge 6 - Dangerous driving while pursued by police - 12 months' imprisonment;
50 Charge 7 - Prohibited person using an imitation firearm, 12 months' imprisonment;
51 Summary charge 9 - Unlicensed driving - 3 months' imprisonment;
52 Summary charge 18 - Commit an indictable offence while on bail - 1 month's imprisonment.
53 The sentence imposed on charge 5 of five years' imprisonment is the base sentence. I direct that 12months of the sentence imposed on charge 2, three months of the sentence imposed on charge 1, two months of the sentence imposed on charge 6, and one month of the sentences imposed on charge 7 and summary charge 18[17] be served cumulatively on the sentence imposed on charge 5 and on each other. All other sentences are concurrent.
[17] By operation of s16(3C) Sentencing Act, the sentence for an offence committed on bail must be served cumulatively unless otherwise ordered.
54 That makes a total effective sentence of 6 years, 7 months' imprisonment. I direct that you serve a minimum term of 3 years, 9 months before becoming eligible for parole.
55 I declare that you have served 582 days in pre-sentence detention including today. These will be deducted administratively from your sentence.
56 I have signed the disposal order sought by the prosecution.
57 On summary charge 9 of unlicensed driving, you are disqualified from driving for 18 months from today.
58 Lastly, if you had not pleaded guilty but had been found guilty after a trial on all your charges the sentence I would have imposed is a total of 10 years' imprisonment with a non-parole period of eight years.
59 Are there any other orders required?
60 MS CARUSO: I don't believe so, Your Honour.
61 HER HONOUR: And, Ms Karapanagiotidis, will you be going to see - - -
62 MS KARAPANAGIOTIDIS: Yes, I will, Your Honour. Thank you.
63 HER HONOUR: All right. Thank you. Mr Shok can be removed and your counsel can see you downstairs.
64 OFFENDER: Thank you.
65 HER HONOUR: Thank you. Well, I thank counsel once again for their assistance and I'll adjourn now until 9 am tomorrow.
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