Director of Public Prosecutions v Dieng (a pseudonym)
[2023] VCC 698
•3 May 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MAJOK DIENG (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 February 2023 | |
DATE OF SENTENCE: | 3 May 2023 | |
CASE MAY BE CITED AS: | DPP v Dieng (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 698 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – SENTENCE
Catchwords: Pleas of guilty to three charges of theft, one charge of possess firearm as prohibited person, one charge of aggravated burglary and one summary charge of committing an indictable offence while on bail – two separate incidents - serious offending – offences committed in company – offender not principal offender -young offender – mild intellectual disability –immaturity – vulnerability to negative peer influence - relevant criminal history – risk of institutionalisation – Verdins principles
Legislation Cited:
Cases Cited: Azzopardi v R [2011] VSCA 312; Mills v R; Muldrockv R [2011] HCA 39; R v Verdins [2007] VSCA 102
Sentence: 12 months imprisonment and a two year CCO with Justice Plan.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D Ellwood | OPP |
| For the Accused | Mr T Battersby | Emma Turnbull Lawyers |
HER HONOUR:
1Majok Dieng[1], you have pleaded guilty to three charges of theft, one charge of possessing a firearm being a prohibited person and one charge of aggravated burglary. You have also pleaded guilty to the summary charge of committing an indictable offence whilst on bail.
[1]A pseudonym.
The offending in the first incident
2Your offending in the first incident is limited to use of the stolen car and possession of the stolen items, the mobile phone and the watch, which are Charges 1 and 2. It is the prosecution case that you were not involved in the stealing of the car or the items, but you had knowledge of the thefts. That knowledge is the basis of the charges.
3The details of the incident are set out in detail in the prosecution opening, as follows.
First offender
4Soon after midnight on 20 July 2021 Mr Kon Demetriou[2] was sitting in a white Toyota Camry sedan outside an apartment block in Collingwood, smoking an e-cigarette, when an offender approached the car armed with a machete and a crow bar. This offender was not you, but a person who has not been apprehended. He reached through the open window and opened the driver’s door. He yelled: “Where’s the keys? Where’s the keys? Give me the keys.”
[2]A pseudonym.
5The victim jumped out of the car and the offender grabbed his clothing and pulled him away from the car. The offender then struck the victim with the machete to his leg causing a deep laceration and fracturing the tibia. The offender then got into the driver’s seat and continued to demand the keys.
6Second offender
7The victim began to run from the car. A second unknown offender got out of a small white hatchback parked behind the Toyota Camry, and stepped into the victim’s path, grabbing his watch from his wrist.
8The victim broke away and tried to run but fell to the ground and was unable to stand. He crawled to a nearby building. An ambulance was called by a security guard from a block of flats, and the victim was taken to hospital for treatment.
9The white Toyota was stolen from the scene. The victim’s phone was in the car, with a SIM card registered in his name.
The accused
10You were arrested three days later, on the morning of 23 July 2021. You were found with the victim’s watch and phone. The SIM card from the phone had been transferred into another phone, a Samsung Galaxy which was in your possession, and which contained a video image of you wearing a gold chain on a black patterned scarf.
11The stolen white Toyota Camry was found in Garfield Street, Richmond. Testing of the steering wheel revealed DNA with a high likelihood that it belonged to you.
12The Samsung Galaxy phone contained a number of video files. One showed a person wearing red tracksuit pants seated at the wheel of a Toyota car, recorded at 1.05 am on 21 July, about 24 hours after the “carjacking” event.
13Another video recorded shortly after the first shows you holding a sawn-off 12 gauge shotgun and cartridge inside a vehicle, seated in the rear passenger seat on the driver’s side, and wearing red track suit pants.
14A third video, about two hours later at 3.36 am shows you seated in a Toyota Camry, wearing red tracksuit pants.
15Finally, a video recorded ten minutes later shows you seated in the driver’s seat of a Toyota car holding a Sprite bottle and showing a distinctive mark on your thumb.
16CCTV footage obtained by the police shows a person parking a white vehicle outside 61 Garfield Street, Richmond at 8.25 am on 22 July. The driver, wearing red tracksuit pants, was seen to get out of the car and walk towards the high-rise flats at 106 Elizabeth Street, Richmond. Ten minutes later you were seen, on other CCTV footage located at 106 Elizabeth Street, wearing red tracksuit pants, walking on Garfield Street towards the high rise building.
17A minute later you were seen in an elevator in the building.
18At around 10.30 that morning police saw the Toyota Camry parked in Garfield Street, and again, still there, just before midday.
19When you were arrested the following day you were driving a Mitsubishi station wagon, in the glove box of which was found a pair of red tracksuit pants. Also in the car was a gold and black patterned scarf, the Apple iPhone belonging to the victim of the car-jacking and a Samsung Galaxy phone containing the SIM card from the stolen phone. The scarf was later found to have DNA that matched yours. Video footage on the stolen phone showed you wearing a scarf of similar appearance to that found in the car.
20The t-shirt worn by the victim was found to have DNA from three contributors, with one contribution matching your DNA. The prosecution maintains that the only inference to be drawn is that your DNA was transferred by some means to the T-shirt, and that the evidence does not establish that you were one of the offenders in that incident.
Second incident
Video footage from the Samsung phone, recorded at 1.30 am on 21 July 2021, shows you holding a sawn-off 12 gauge shotgun and cartridge inside a vehicle. You were seated in the driver’s side rear passenger seat, wearing red track suit pants.
21Between 10 pm that night and 2.44. am the following morning CCTV footage from several locations recorded the following.
22The carjacked white Toyota Camry containing the SIM card from the stolen Apple iPhone travelled from Smith Street, Collingwood and then south to 88 Scotsdale Drive, Cranbourne East.
23The prosecution summary puts you as the driver and the other three men as passengers. You provided the shotgun and cartridge to the other offenders.
24Police were able to track the Camry as it drove along the Eastern Freeway, by the “pings” from the phone which continued until the Camry reached 88 Scotsdale Drive.
25At this address you remained in the car and the three passengers committed an aggravated home invasion just after 2 am, when they entered the house by smashing a glass door. One man was armed with a sawn-off shotgun. The offenders were yelling “Where’s [Rodney]?”
26Present in the house were Ronald Carlisle[3] and his wife Susie Orde[4], and their seven children, the youngest aged 14. Twenty year old Rodney Carlisle[5] opened his bedroom door and was attacked with a machete by one of the intruders, causing lacerations to his hands.
[3]A pseudonym.
[4]A pseudonym.
[5]A pseudonym.
27Another intruder fired the shotgun into the bedroom, narrowly missing him. The offenders then left. Further CCTV footage recorded the Camry being driven towards the city, to the vicinity of Collingwood.
28Rodney Carlisle was treated in hospital for abdominal puncture wounds, a laceration to his thigh and for injuries to three fingers on his right hand and four fingers on his left hand. These involved tendon, nerve and artery injuries. Mr Carlisle refused to make a statement to the police and no victim impact statement has been provided.
29The other offenders have not been apprehended.
30You were arrested on 23 July 2021 and charged with other matters. On 1 March 2022 you were sentenced by the Melbourne Magistrates Court to 12 months imprisonment, having spent 221 days on remand. 220 days were declared as pre-sentence detention. That sentence expired on 21 July 2022. Meanwhile you had been remanded in custody for this matter, commencing at the committal hearing on 2 May 2022.
31Including Renzella time of 1 day you had spent 560 days in pre-sentence detention as at the plea date, 3 February 2023. Of that time, 365 days were served by way of sentence, making a period of 195 days of pre-sentence detention available in respect of this matter, as at 3 February.
32Since then you have served a further 89 days, bringing the total period of pre-sentence detention to 284 days. (See note on page 11).
Gravity of offending
33The maximum penalties for these offences are as follows: for theft, 10 years imprisonment, for aggravated burglary, 25 years, for being a prohibited person in possession of a firearm, 10 years and for committing an indictable offence while on bail, 3 months.
34Aggravated burglary and theft are particularly serious offences, as indicated by the maximum penalties the legislature has seen fit to impose. A family, including at least one child, was present in the house at the time of the invasion, at a time when all the occupants would have been expected to have been asleep. The entry by smashing a window would have been terrifying for the family, followed by the machete attack on Rodney Carlisle and the firing of the gun. Mr Carlisle senior described the fear experienced by himself and his wife, while trying to stop the man with the machete getting into their bedroom, and then seeing their son’s injured hands, with his fingers hanging off by the skin.
35The medical report which provides details of the injuries to the hands states that they were treated with plastic surgery and the victim had to attend therapy afterwards. Photographs of the interior of the house taken after the incident show extensive areas of blood on the floors and walls.
36It is fundamental for people to expect to be safe in their own homes. This incident was a gross violation of that right, and resulted in extensive and quite horrific injuries to the victim. It is a serious example of the offence, and in most circumstances would warrant a lengthy prison term.
37As the driver of the car and having provided the firearm to the other offender, you are charged with the same offences as were committed by the offenders who actually invaded the house and injured the occupant. Although you did not physically steal the car, you are considered to have done so because you were driving it. Similarly, your possession of the watch and the phone resulted in you being charged with theft by finding, as it is called.
38Although you did not know that the other men would fire the gun which you had provided, it is said by the prosecution that you were reckless as to that occurring. You must have known of that possibility. It means your culpability is high, but I will turn now to some mitigating factors.
Mitigating factors
39First it must be said that your relatively early plea of guilty means you are entitled to a discount on your sentence. It has avoided the expense and inconvenience of a trial and spared the witnesses from having to give evidence about a traumatic event in their lives. The court is still dealing with a large backlog of cases owing to the Covid-19 pandemic and so your plea has added value.
40You are a youthful offender, having just turned 21 and you were 19 at the time of the offending. Your family is Sudanese, and you were born in a refugee camp in Kenya, the fifth of your parents’ nine children. The others in your family have not been in trouble and they continue to support you, with visits and phone calls while in custody.
41I have read letters from your mother, sister and girlfriend. They all speak well of you and are confident you will do well if given a second chance.
42You came to Australia in 2008 when you were 6 years old, and struggled with your education here. Your literacy and numeracy skills are at Grade 1 and 2 level. You have been diagnosed by neuropsychologist Ms Bronwyn Hall with a cognitive impairment, with a superficial understanding of the concepts of right and wrong. Tests performed by Ms Hall showed many results in the extremely low range of competency, including reasoning skills and flexibility of thinking. Despite your IQ being measured at 67, with overall intellectual functioning described as extremely low, this is characterised as being a mild intellectual disability.
43Ms Hall, in her very detailed report dated 27 January 2023, said your cognitive impairment cannot entirely account for your offending, adding that you have long-standing problems in conforming to social norms with respect to lawful behaviour, and that you do have an anti-social personality disorder. That said, you are capable of learning impulse control and emotional regulation, and you would likely benefit from highly structured monitoring and case management.
44Ms Hall emphasised that your risk of recidivism would be best addressed by your eventual release into the community with supports in place.
45You were previously supported by an NDIS plan. When you are released community support will also be available to you through that plan and through Yarra Youth Services, which already supports several other of your siblings.
46It is concerning that while in prison it appeared that you were attempting to fit in with members of an outlawed motor- cycle gang, and your behaviour changed. This was noted by your NDIS worker, and his review report refers to these difficulties, which improved when you were transferred to another prison away from those influences.
47More positively, you have a relationship with a young woman and you hope to live together when released, after initially living with your mother.
48Unfortunately you have a fairly extensive criminal history, beginning when you were 15, with serious offending. Most of this was dealt with in the Children’s Court jurisdiction, but your continued offending at a serious level resulted in prison sentences, and you have spent a lot of time in custody. Indeed, you committed the current offences only two months after you had been released from prison.
49There is a risk that you will become institutionalised if you spend more time in prison. Although only 284[6] of the 560 days spent in custody are available as pre-sentence detention for this case, the principle of totality requires the court to take all that time into account in broad terms, to reduce the length of the sentence to be imposed.
[6] Please see p.11 of these sentencing remarks
50The fact that you are a young man means it is particularly important that you do not spend more time in prison than is necessary. It is recognised that young people are immature and often vulnerable to peer group pressure, as you are, according to the reports I have read. Your vulnerability is increased by your cognitive disability which makes it harder for you to make decisions about your behaviour. However, you seem to have some insight and remorse about the offending, despite perhaps not fully understanding the concept of your own responsibility for what others did.
51Your counsel raised the issue of whether the Bugmy[7] principles apply in this case, conceding that because you have no memory of your life in Kenya before coming to Australia there is no information about disadvantage during those years which might provide a basis for those principles to take effect. All you can remember is that your mother had to move the family frequently to ensure your safety.
[7] Bugmy v R
52Although it can be presumed that considerable disadvantage accompanied your early years, the factors of youth and cognitive disability are the prime factors which indicate leniency.
53Because of your youth, your rehabilitation is regarded as very important, even though the seriousness of the offending somewhat diminishes that importance. You have completed some vocational courses in prison, and you are motivated to find employment. The supports to which I have referred are likely to be of great assistance to you.
54These mitigating factors call for a substantially lenient sentence. A further mitigating factor relates to the Verdins principles, which when applicable require moderation of the need for general deterrence. and I shall return to that matter shortly.
Sentencing discussion
55The prosecution submission as to sentence is that a prison term with a head sentence and a non-parole period is appropriate. In the case of Hogarth, heard by the Court of Appeal in 2012, the accused, who like you, did not actually enter the house, was sentenced to prison for four and a half years for the charge of aggravated burglary, which the Court of Appeal considered to be appropriate.[8]
[8] Hogarth v R (2012) 37 VR 658 at [62].The Court stated that sentences for a confrontational aggravated burglary should be more severe than those being imposed at the time.
56However, that accused did not suffer from an intellectual disability as you do. Your moral culpability is reduced by that disability, because your decision-making capacity is reduced by it. You are not to be regarded as a suitable vehicle for general deterrence in the same way as an offender who does not have such a disability. The result is that the need for general deterrence to be reflected in the sentence is reduced, as was determined in the case of Verdins.[9]
[9] R v Verdins {2007] VSCA 102
57When weighed in combination with your youth and other mitigating factors, the degree of moderation of the sentence should be considerable, to allow for your treatment and rehabilitation in the community, rather than prolonged imprisonment with the risks of further criminalisation and institutionalisation.
58Specific deterrence remains an important consideration, but it is tempered by the equally important need to prevent the risks associated with imprisonment. Evidence of this risk is the fact that you are comfortable in prison and do not experience hardship, as well as the behaviour changes noted by the NDIS worker.
59While your recidivism is a real risk, it is unlikely to be addressed by prolonged imprisonment, but the community supports already mentioned may do so. The proposed Justice Plan is intended to be the chief support.
60You have been assessed as suitable for a Community Correction Order, combined with a Justice Plan. The report regarding the Justice Plan sets out the steps to be taken and the desired outcome for you to learn better ways to manage your life and to avoid offending. It is the crucial part of the sentence I am imposing.
61In terms of punishment some of the time you have already spent in prison when serving an earlier sentence should be taken into account, in broad terms, in recognition of the principle of totality, and to avoid a crushing sentence.
62I sentence you as follows:
63For charge 5, aggravated burglary, a prison term of 12 months. This will be in combination with a CCO and Justice Plan.
64For charge 3, being a prohibited person in possession of a firearm, 6 months, to be served concurrently. That charge will also be covered by the CCO.
65Charges 1, 2 and 4, the theft charges, and the summary charge, will be included in the CCO.
66I will not declare that the 284[10] days of pre-sentence detention are to be reckoned as already served, meaning that you must serve twelve months from today before being released.
[10] See note above
67The sentence is structured this way to ensure that you serve an appropriate time in prison, a total of about 22 months, but that when released you will have the benefit of quite intense scrutiny and support. It will assist in your rehabilitation and will be in the interests of the protection of the community.
68Pursuant to s.6AAA of the Sentencing Act, if you had pleaded not guilty to these charges I would have sentenced you to a total effective sentence of 4 years imprisonment with a non-parole period of two years and six months. That would take into account the fact that a CCO with Justice Plan would not have been available for you.
Note: (a) I am informed that the correct PSD is 309 days.
(b)Due to a technical fault the proceedings were not recorded.
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