Director of Public Prosecutions v Duac
[2023] VCC 1564
•1 September 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-01216
CR-22-01756
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TOANG DUAC |
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JUDGE: | HIS HONOUR JUDGE MURPHY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 August 2023, 24 August 2023, 28 August 2023 | |
DATE OF SENTENCE: | 1 September 2023 | |
CASE MAY BE CITED AS: | DPP v Duac | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1564 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Plea of guilty – 1 charge of armed robbery – 1 charge of violent disorder – 1 charge theft of a motor vehicle – 1 charge possession of a drug of dependence (cannabis) – 1 charge of knowingly possessing counterfeit currency – sentence indication – youthful offender – no prior criminal history – parity – non-association – high risk of reoffending - rehabilitation
Legislation Cited: Crimes Act 1958 (Vic), s 74(1), s 75A, s 195I; Drugs, Poisons and Controlled Substances act 1981 (Vic), s 73; Crimes (Currency) Act 1981 (Cth), s 9
Cases Cited:R v Renzella [1997] 2 VR 88, DPP v Bakhit [2023] VCC 1513
Sentence:6 months’ imprisonment and 18 month Community Corrections Order - $600 fine – s 6AAA declaration – 3 years’ imprisonment with a non-parole period of 18 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. McWilliams Mr G. Mohammed | Office of Public Prosecutions |
| For the Accused | Mr A. Pyne | Ann Valos Criminal Law |
HIS HONOUR:
1 Mr Toang Duac, you have pleaded guilty to one charge of armed robbery maximum penalty 25 years' imprisonment; one charge of violent disorder maximum penalty 10 years of imprisonment; and one charge of theft of a motor vehicle with the same maximum penalty.
2 On a separate Commonwealth indictment, you have pleaded guilty to one charge of possession of a drug of dependence, namely cannabis, maximum penalty five penalty units, and one charge of knowingly possessing counterfeit currency, maximum penalty 10 years' imprisonment.
3
I am required to sentence you for these offences. I am able to do that relatively summarily, given the comprehensive submissions made by both parties on the plea and by your counsel Mr Pyne, which I have marked and exhibited. These reasons must be read in conjunction with my sentencing remarks for your
co-offender Mr Bakhit, who I sentenced last week.[1]
[1]DPP v Bakhit [2023] VCC 1513
4 The circumstances of the offending were set out in a comprehensive prosecution opening which was partially read on the sentence indication and updated for the plea hearing and which I have again exhibited. That is the basis upon which I am sentencing you.
5 You were originally to face trial with two co-offenders. You and one of your co-offenders, Mr Bakhit, sought a sentence indication which was given and accepted. Subsequently I sentenced Mr Bakhit on 24 August of this year. Subsequent to that the second co-accused has also pleaded guilty and his matter has been adjourned until later in the year.
Circumstances of the offending
6 The offending occurred in the early hours of the morning of 7 January 2022 in the Cranbourne business district near the Amazing Grace Hotel. You, along with a number of young males of African descent, committed a shocking armed robbery and car theft on an innocent motorist who was just going about his business, going home from work in the early hours of the morning.
7 The event commenced when the complainant's 2012 Mercedes sedan was followed by a dark SUV and blocked from behind. A second gold coloured Toyota drove onto the wrong side of the road and blocked the vehicle from the front. Another vehicle, a Holden Captiva, was in the area and was used by your co-offender Mr Bakhit to flee the scene.
8 When the complainant found that his vehicle was blocked, he locked it and sought to run away from his vehicle, taking the keys with him. He was chased by a group of up to 16 individuals. One kicked him from behind, causing him to fall to the ground. He was then surrounded, punched and kicked to the head and back, and at least three of the group used knives to stab or slash the complainant in the lower back.
9 These events constitute the offence of violent disorder to which you have pleaded guilty, along with your co-offenders. Several of your other co-accused who are named in the indictment have been dealt with in the Children's Court and, as they are children, cannot be named in any publicity.
10 The armed robbery in company involved the complainant being robbed of his car keys, his car was stolen, and he was stripped of his possessions, including his shoes, his work gloves and his phone. In his car was a bag containing his driver's licence, phone charger, and an ATM card. The conduct involving the armed robbery was captured on CCTV footage. Subsequently the stolen car was, a few weeks later, found torched.
11 Your individual contribution, as identified from the CCTV footage during the robbery, included chasing the complainant to the hotel car park; kicking him as he attempted to get away; kicking him three times while he was on the ground while you appeared to hold something in your hand, stepping back from the assault and putting something in your satchel bag; punching the complainant three times while he was being stabbed by others, and kicking him once more before walking towards the main street with a co-offender.
12 You later ran back and stole the complainant's runners. You were subsequently found in possession of those shoes. You are pleading guilty to the charge of armed robbery on the basis of complicity with the other named and unnamed offenders.
Subsequent events
13
In a comprehensive investigation the police used compilations of phone videos seized from your co-offenders, as well as phone tracking in order to identify some of the co-offenders, including yourself and Mr Bakhit.
At 2.45 am on that day you were seen in the stolen vehicle; later at around 3.44 am you joined two co-offenders at the Cranbourne North McDonald's where earlier one of those co-offenders had sought to use the complainant's stolen ATM card.
14 Hours later, at 7.51 am, you were seen in the Holden Captiva involved in the event with Mr Bakhit and another co-offender. A short time later the three of you were arrested in Cranbourne East. Your co-offender was found in possession of some of the complainant's property, and you were found wearing his shoes. You were also in possession of a kitchen knife. You lied to the police about your whereabouts that evening in the record of interview.
Assessing the seriousness of the offences
15 You have pleaded guilty to the offence of armed robbery in company with the other youths; only eight of the group have been named and properly identified. You have also pleaded guilty to the charge of violent disorder, contrary to s195I of the Crimes Act, which is a new offence which codifies the old offence of affray, and in that offence that you have pleaded to you, along with a number of Sudanese males about the same age as you, have agreed to engage in violent offending, violent assault, of the complainant Mr Masofa in public, at night, in company and he was injured in the course of it.
16 It was a shocking crime. It is a gang crime. It is a crime that youthful offenders like you are all too frequently engaged in when you get peer group pressure where someone suggests 'We are going to do something', and it is done and you all join in. That seems clear from the prosecution opening because you and the other offenders have been identified sharing videos of your conduct in cars subsequent to the offending, which allowed you to be identified due to your clothes and your proximity to the other offenders, and thus you were able to be identified as one of the perpetrators of this offending.
17 Not surprisingly the offending has had a major impact on the complainant, which I must take into account. As I indicated, he lost his car and suffered injuries. He was taken to hospital and he has filed a victim impact statement indicating the impact on him. His girlfriend broke up with him not because of this, but that caused him further upset at the time. He was having trouble sleeping in the period immediately after this and had to go to hospital.
18 He was 21 at the time, a bit older than you. He had to take a week off work. He has got over his injuries, but the car was not insured and he is still stuck with a $15,000 debt because he financed it. He is now working extra shifts just to pay off a car which he does not have anymore. He also had to pay for the ambulance. As he said in his victim impact statement:
'After this crime I really feel uncomfortable about groups of younger people, especially around the bus stop near the Cranbourne Shopping Centre near where this happened'.
19 He says:
'This happened about three or four minutes' walk from my house. I walk my dog around the area and drive past where the crime happened every day to and from work, and it reminds me of this crime'.
20 Your offending as part of this group has had a long term continuing impact on him because he lives in the Cranbourne area. The seriousness of the offending is reflected in the impact on him, and the sheer event that is captured by the CCTV footage. It is shocking to see the photos that are part of the prosecution opening.
Other offences
21 When you were arrested you were found in possession of a small quantity of cannabis. You were also found in possession of a counterfeit $100 note. These are the subject of a separate Commonwealth presentment. The prosecution accepted that the amount of cannabis is a small amount for the purposes of sentencing, with a maximum penalty of five penalty units, as I have indicated.
22 Possession of counterfeit currency is a serious offence carrying a maximum penalty of 10 years' imprisonment. The prosecution accepted, however, that this particular document was a very poor colour photocopy of a $100 note, and I regard it as appropriate to impose monetary penalties for both of these offences.
Your personal circumstances
23 Your personal circumstances were set out in the plea submission of your counsel. When you committed these offences, you were just two months past your 18th birthday. You are thus, for the purposes of sentencing, to be treated as a young offender, but due to you having reached the age of 18 you face more serious penalties of a mandatory term of imprisonment for the offence of armed robbery in company.
24 As set out in your plea submission, you were born in Melbourne in
November 2003. Your parents had arrived in Australia in 2000 having migrated from South Sudan. You have an older sister aged 21 who is a university graduate and working in government. You have two younger brothers, one of whom is working in a factory and the other is still at school. You were living with your parents who both work in the disability care sector.
25 You are the only one in your family who has got into trouble with the law. You are from a Christian family and participate in church activities and come from a stable home. You attended a number of primary schools in the Dandenong and Hampton Park area. You then attended a number of secondary colleges, finally ending up in the Rowville Secondary College. This college has a sports academy. You were a talented basketballer and were set to pursue the goal of college basketball in the USA.
26 Your schooling, however, was disrupted. Your current predicament and your criminality can be partially explained by the COVID pandemic. Your mother had gone back to Sudan and was unable to return to Australia when the borders were closed. Your father at the time was working in Alice Springs and could not return to Melbourne. You were thus left in the care of other family members during the lockdown during 2021.
27 At this time, as is well known, the education system moved to online learning and so for a period of five months your participation in education fell and you had no proper supervision. Although you obtained your VCE in 2021 you did not receive an ATAR. It was over this period, not surprisingly, that you fell into bad company leading to this offending. You did work for a short period in 2021 but your further progress in education and employment has been put on hold while your legal difficulties are resolved.
Events after arrest
28 Unlike your co-offender you have no prior convictions alleged against you. You were arrested on 19 January 2022 and remanded until 15 June. You were released on bail and subsequently reoffended and were remanded. You were sentenced on 7 February 2022 and placed on a Community Corrections Order for 12 months. The earlier periods on remand were declared as time served on that later offending.
29 The upshot is that at the present time you have only 25 days of pre-sentence detention referable to the offending for which I am dealing with today. As your counsel submitted, you spent the bulk of the 19th year of your life in adult custody.
30 On 11 July this year you were again remanded in custody and were sentenced on 1 August to monetary penalties for the offending for which you were arrested. This 20 days of custody your counsel asks me to take into account as what is called Renzella time in sentencing you, and I do so. Your counsel submitted to me that as a result of your offending subsequent to this offending and your dealings with the criminal justice system, you lost the opportunity of having all your offending dealt with at the same time and thus the benefits of totality.
31 On this basis your counsel also submitted that given your age, considerations of rehabilitation of a young offender ought be prominent in a sentencing disposition. This was notwithstanding the seriousness of the offending that required the imposition of a term of imprisonment.
32 Your counsel also submitted that notwithstanding the seriousness of the offending here and the periods that you have been in custody since the offending, you have prospects of rehabilitation and you are not entrenched into criminality. As he indicated, you have spent 343 days in custody since this offending in adult custody. It is regrettable that I am required to impose a further sentence of imprisonment upon you.
33 Considerations of the risk of institutionalisation and the dangers of contamination call for a sentence of imprisonment that is the shortest possible that could meet all the requirements of sentencing. Here, considerations of denunciation and general deterrence are factors that would ordinarily be prominent in sentencing you; however as a young offender it is in the community's interest that you be rehabilitated into society.
34 A disposition that promotes rehabilitation is in your interests and in the long term community's interests. Sentencing here is a difficult exercise. You are very much at a fork in the road in your life. Considerations of parity with your
co-offender Mr Bakhit required that there be some parity with the sentence that I have previously imposed on him. He did however have a prior criminal record and had been in youth detention shortly prior to this offending.
35 He was sentenced to a term of imprisonment of 182 days for armed robbery, and a two year community corrections order on the charge of violent disorder and theft of a motor vehicle. He had 182 days pre-sentence detention to be taken into account, thus he did not require to go back into custody. He was a few months older than you. In sentencing him I considered it was not appropriate to return him to custody.
36 You are in a different position, in that you have only 25 days pre-sentence detention referable to this offending. You must be punished for this offending. On the sentence indication I indicated that I proposed to sentence you to a term of nine months' imprisonment on the charge of armed robbery, and an aggregate sentence of an 18 month Community Corrections Order to follow for the other two offences on the first indictment.
37 I have taken into account your plea of guilty to these offences. I am required to give you a perceptible amelioration of the sentence that I would otherwise have imposed by your plea of guilty in the COVID backlog environment, so you will get credit for that.
38 The plea of guilty is some evidence of remorse. There is not much other evidence of remorse in terms of empathy for the victim in this matter, but I have taken into account your plea of guilty and I have taken into account all the other matters put by Mr Pyne in his submission to you. You will be sent the community corrections order and you are required to sign it and send it back to the court.
39 Having considered the matter further and having regard to your age and the prior periods on remand and the risk of institutionalisation and focusing on a disposition that would most encourage your rehabilitation, I have determined to sentence you to a period of six months' imprisonment on the charge of armed robbery, followed by an 18 month Community Corrections Order as an aggregate sentence.
40 In fixing the sentence of six months' imprisonment I have taken into account the 20 days that you were on remand in July, when you were subsequently fined for that particular offending. I want to emphasise that in sentencing you, you are very much at a fork in the road in your life. Do you understand what that means?
41 OFFENDER: Yeah.
42 HIS HONOUR: What does it mean?
43 OFFENDER: I'm going downhill.
44 HIS HONOUR: That is right. Before this offending you had life plans. You were intending to use your talent as a basketballer. This has been disrupted by your period in custody and I must now return you to custody to punish you for this offending. However, when you are released, I am placing you on a Community Corrections Order that will encourage your rehabilitation.
45 Part of that order is a period of nine months of non-association with your
co-offenders. Your counsel has argued against that, but I regard that as an important protection of the community, to make you break your links with these co-offenders. It is essential that you break the cycle of your co-offending and this requires you to break the bonds with those other youths and find friends and work or an occupation that will keep you away from people committing crimes.
46 A Community Corrections Order also requires you to be under the supervision of the Office of Corrections. I had you assessed for a Community Corrections Order. They found you suitable but they also found that you are at a high risk of reoffending and indeed you had been placed on a community corrections order and there had been lapses in that order. I do not want you to let this order that I am imposing lapse when you are released after serving a period of six months.
47 The community corrections order also requires you to undertake courses to reduce your offending, drug and alcohol courses and other courses designed to get you on the straight and narrow, that is the fork in the road point. You are going downhill. I want you to go uphill into the good life in the best country in the world.
48 An important factor also in the Community Corrections Order is that if you commit an offence carrying a term of imprisonment in the period of 18 months after your release from custody, that breaches the Community Corrections Order and you will come back to me and face the risk of re-sentencing on the charge of theft of a motor vehicle and violent disorder. Do you understand that?
49 OFFENDER: Yeah, yeah.
50 HIS HONOUR: That would then place you being at risk of being returned to prison for that offending. In order to further encourage your rehabilitation, I am imposing a term that you be under judicial supervision, so after a period of some months when you are released from custody on 30 May next year, you have got to come back and see me, on a video screen or maybe in court, and I will ask you how you are going, how you are progressing on the Community Corrections Order. Do you understand?
51 OFFENDER: Yeah, yeah.
52 HIS HONOUR: I do not want you to let me down. When you are released from this period of imprisonment that I am imposing for this bad offending, I want you to get straight back either into education or get a job and start to lead a more productive life than you have been leading for the last couple of years. You are going to turn 20 this year. You will be 20 and a half next year. I had a university degree when I was 20 and a half, my first university degree and you have not got one yet so you have got to get going.
53 Judicial monitoring is part of the term of this order. I want to emphasise to you that I see you as very much at a fork in the road in your life and that is why this disposition, which is a short sentence of imprisonment that is mandatory under the legislation followed by a community corrections order is in the community's interest. It meets the requirements, I am satisfied, of punishment, deterrence and rehabilitation which is what we need for young offenders.
54 I want you to make whatever use of the time that you are in custody now which, as I say, is six months less the pre-sentence detention. Use that time productively, focus on what you are going to do when you get out of custody, and then attend at the Dandenong Community Corrections Centre within
two business days. Get yourself engaged with that centre again, go back home. You will have a supervisor. Comply with the terms of the order.
55 I am going to see you on 30 May next year but I do not want to see you in the criminal justice system for any other offending because if you go committing further offences - you have got a serious criminal record now - you will be doing more and more time and you now know that being in custody is a waste of time. Do you agree with that?
56 OFFENDER: Yeah, yeah.
57 HIS HONOUR: You can put all of this behind you after you do this time and undertake the community corrections order. I have got to sentence you for the possession of cannabis, so without conviction you are fined $200 on that, and on the possession of the counterfeit currency, you are convicted and fined $400.
58 The formal sentence of the court is that you are sentenced to a term of imprisonment of six months on the charge of armed robbery. I declare 25 days pre-sentence detention, and on the other two charges, theft of a motor vehicle and violent disorder, an aggregate sentence of 18 months' imprisonment to commence upon the completion of the term of imprisonment.
59 On the Commonwealth presentment, possession of a small quantity of cannabis, without conviction you are fined $200. On possession of the currency, you are convicted and fined $400. I declare that had you not pleaded guilty I would have sentenced you to a total effective sentence of three years' imprisonment and a 20 month non-parole period.
60 Are there any other matters, Mr Mohammed?
61 MR MOHAMMED: Yes, Your Honour, the forfeiture order that was sought and wasn't opposed.
62 HIS HONOUR: I'll make the forfeiture order about the knife.
63 I want to thank both counsel, including Mr McWilliams who is not here today but was present at the previous hearing dates.
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