Director of Public Prosecutions v Dut

[2019] VCC 1325

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01714

DIRECTOR OF PUBLIC PROSECUTIONS

v

YAK DUT

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	19 August 2019
DATE OF SENTENCE:	23 August 2019
CASE MAY BE CITED AS:	DPP v Dut
MEDIUM NEUTRAL CITATION:	[2019] VCC

REASONS FOR SENTENCE
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Subject: Criminal law – sentence.          

Catchwords: pleas of guilty to two charges of intentionally causing injury, two charges of making a threat to kill, summary charges of using a vehicle non-compliant with standards, failing to stop on police request, dangerous driving, exceed PCA, use unregistered vehicle – victims of assault were two police officers performing their duties – assaults occurred following police pursuit – impact on victims personally and as police officers - young offender – remanded for 18 months – prospects for rehabilitation.               

Sentence:TES 12 months imprisonment, CCO for two  years, fines $1500, licence to drive cancelled for 10 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. K. Doyle	Office of Public Prosecutions
For the Accused	Mr. C. Nikakis	Haines & Polites

HER HONOUR:

1.Yak Dut, you have pleaded guilty to two charges of intentionally causing injury and two charges of making a threat to kill.  The victims of these offences were two police officers who were performing their duties at the time. 

2.You also pleaded guilty to five summary charges, all of which involved your driving on that occasion.  They are: using a vehicle not complying with standards, failing to stop a vehicle on police request, driving in a manner dangerous, exceeding the prescribed concentration of alcohol, and using an unregistered vehicle. 

THE OFFENDING

1.On 17 February 2017, you were a 21 year old man living with your parents and sister in South Morang.  You had been drinking with friends that evening when you became aware that someone had driven your car resulting in a flat tyre.  You decided to drive the car home regardless. 

2.When tested later at the police station you had a blood alcohol content of .056 per cent which is just above the lawful level for a fully licenced driver.  You were a probationary driver required to not exceed zero blood alcohol content.

3.That night Senior Constable Elizabeth Moss and Senior Constable Meredith Grissold were performing traffic patrol duties, and at about 11.55 pm they were driving in their fully marked police car along Pindari Avenue in Mill Park.  They saw the Volkswagen you were driving and heard distinctive noises coming from a flat tyre.  The car had no registration plates, which is part of summary charge 9, using a vehicle not complying with standards. 

4.It was later established that the car registration had been cancelled in 2017 and the plates surrendered.  This is charge 22, using an unregistered vehicle.  The driver of the police car, Senior Constable Moss, made a U-turn in order to intercept you. 

5.At the T-intersection with McDonalds Avenue you turned right and then immediately left into Meadowglen Drive.  Moss was able to overtake other traffic and follow you.  She activated the emergency red and blue lights and siren to indicate to you to pull over but you did not stop.  This is summary charge 10, failing to stop when directed. 

6.As you turned right into Findon Road, Moss observed the tyre from the front right wheel come off leaving you driving on the wheel rim.  This is part of summary charge 9.  You struggled to keep your vehicle in the lane which posed a risk to other drivers but you drove on, and from this point until you stopped at your home, you committed the offence of driving in a manner dangerous, which is summary charge 12.  Senior Constable Grissold informed police communications that they were in pursuit and other police officers were informed and kept updated.  You sped up to 70 kilometres per hour before the roundabout at the intersection of Civic Drive where there was other traffic.  You continued along Findon Road, increasing your speed to 79 kilometres per hour in a 60 kilometre per hour zone.

7.Sergeant Pauline Drew was the pursuit controller at Epping Police Station.  She was told by either Grissold or Moss the reason for the pursuit was that the car was being driven on a wheel rim and at a speed of over 70 kilometres per hour. 

8.Sergeant Drew determined that you, the driver, had limited control over the car and that you were a danger to other road users.  She knew that Moss was a classified Gold Class driver.  She requested a secondary unit to assist and she and the informant, Constable Finelli went to the scene and received regular updates. 

9.You executed a series of left and right hand turns before pulling into the driveway of your home.  By this time it was past midnight.  You got out of your car and walked aggressively towards the two police officers who had arrived.  Moss directed you numerous times to get on the ground but you refused. 

10.Charges 1 and 2 on the indictment are both charges of intentionally causing injury and the facts which make up these charges are contained in the following description of the events which occurred outside your home that night. 

11.Even though you are much taller than she is, Senior Constable Moss managed to get you onto the ground, but you kept your arms under your body and continued to resist arrest. 

12.She placed her knee over your wrists and was trying to place handcuffs on you when she heard two female voices wailing and moving towards her.  These were your mother Abuk Agok and your sister Aker Dut.  Your sister pulled Moss's police vest to get her off you and yelled at her face.  Moss told her to back off but she continued to yell. 

13.You continued to thrash around and yell highly abusive and sexually demeaning language to the police officers.  Moss saw that your mother was next to Grissold and she told her to back off and to give police space, but your mother did not comply.  She continued to hinder police grabbing them and yelling abuse. 

14.At this stage, Sergeant Drew and other police heard a request for police assistance. 

15.You managed to move free and roll onto your side, swinging your leg at Moss in what was described as a 'roundhouse' kick motion. Your shin hit Moss on the shoulder and the kick hit her on the right side of her head and face.  That blow moved her head to the right side of her body and she immediately felt intense pain.  She became unbalanced and you got out from under her knee. 

16.Your sister punched Moss on the right temple and while Moss was on the ground, both the women hit her repeatedly on the head and shoulder as she tried to gain access to her OC spray.  Grissold communicated a Code 19 meaning police were under threat.

17.Suddenly Moss felt something hit her firearm on her right leg, so she immediately rolled to her right and kept the firearm between her thighs to prevent access to it.  She managed to get up and pointed her OC spray at the two women, directing them to back off or she would use the spray. 

18.Your sister continued to be aggressive towards Moss and your mother moved in between her and Moss, facing Moss.  She swatted Moss's firearm twice.   Moss told her to stop and to move away.  She moved to arrest your sister and again your mother obstructed her from doing so.  Your sister moved towards Moss who told her she was under arrest for assaulting police to which she replied, 'I don't care.' 

19.At this point, you became aggressive again toward Grissold kicking her in both legs, connecting to her knees and shins causing her to lose her balance.  You then moved towards Moss who told you to get on the ground about three times but you refused.  You yelled out, 'Spray me, spray me.'  Your sister grabbed Moss's vest and another scuffle started, involving you and your sister against Moss.  She pushed you causing you to bend backwards over the bonnet of the police car and she then deployed the OC spray on you.

20.Your sister went inside and returned with a jug of water which she poured on you but you continued to be aggressive.  Other police arrived and while you continued to struggle, your sister was arguing and yelling and was arrested.  She told a police officer that she had, 'Tried to get the female pigs off her brother.'

21.An ambulance was called to attend to the injuries of the police officers and they were taken to hospital.  You were given a preliminary breath test with a reading of .059 per cent.  As I said earlier, later at the police station the breath test resulted in a reading of .056 per cent. 

22.You were arrested at the scene and continued to resist as you were led to the divisional van.  It took four police officers to place you in the rear of the van.  At the police station you told an officer that you had kicked those, 'slut dogs' in the head, referring to Moss and Grissold, and you said you were glad you had punched them and wished you had stomped on them.  You said all police were pigs and racist cunts and that they were doing it because you were black. 

23.You said you were going to find the two female officers and shoot them with their own guns.  You said that if this were done at home you would do it in front of their mothers, partners and kids if you had to. 

24.You said you would find them whether at work or at home and shoot them.  You said you would get away with it because the Magistrate would not lock you up because you were black.  These threats constitute Charges 3 and 4 on the indictment, making threats to kill.

25.You were interviewed and described being angry at finding your car tyre was flat. You said you knew the police were pursuing you but you were not going to stop for anyone.  You said you thought you could get home safely without endangering other road users and that you were capable of driving while affected by alcohol.  You said you knew that as a P-plater you should have a zero reading. 

26.You said that once at home, the police did not tell you what they wanted to talk to you about, although you knew it was because of the pursuit.  You said they asked you to get on the ground, but did not say why, and you did what they said. 

27.You said you did not want to cooperate and you started being a smart-arse.  You said you kicked Senior Constable Moss because she was having a go at your sister and then you kicked Senior Constable Grissold, as you referred to her, 'the other bitch.' 

28.You described the officers as, 'just female officers' and that they, 'didn't know shit about cars.'  You said because they were females you could have taken the police car if you had wanted to.  You said they and the other officers who attended were just a bunch of girls and they were trying to arrest a man which they failed to do.  You said you were not remorseful and twice you said you would 'happily kill the bitch.'  This is referrable to Charge 4 on the indictment making a threat to kill. 

29.You were heard to say that you were happy you had bashed the officers and they deserved it.  You bragged about bashing them and said you were happy you had caused injury. 

IMPACT ON THE VICTIMS

1.Senior Constable Moss took leave from work for a month and returned on light duties but had to have surgery on her shoulder for the substantial injury which was inflicted, and she spent eight weeks recovering. The shoulder injury was a tear of the surface of the right shoulder joint with a split extending from the upper to the lower region.  The surgery was successful with the surgeon describing an excellent outcome, but she has continued to suffer pain which her treating osteopath describes as chronic.  He believes she has a relatively poor long term prognosis for complete pain resolution. 

2.She also suffered bruising on her arm and temple and soft tissue injuries around her neck and back.  She suffered inflammation of a muscle tendon in her arm. 

3.In her Victim Impact Statement which she read to the court, Senior Constable Moss described in detail the effects your assault has had upon her.  She said she felt immediate pain as soon as you kicked her and she suffered a migraine for 48 hours.  She suffers constant pain including daily headaches requiring medication. She must do physical exercises three times a day and her daily physical activities are severely restricted and she has been unable to return to her normal duties.  She cannot play sport as she used to, and other pastimes and activities are now limited.  She is genuinely concerned about the threats made to her and to Senior Constable Grissold and she finds thinking or talking about the incident is upsetting and unsettling. 

4.Senior Constable Grissold also read her Victim Impact Statement to the court.  She said that during her 12 years as a serving police officer she has never been involved in such an incident.  She feared for her life as she had no idea if you had a weapon or if you would grab her firearm.  She says she was fighting to save her life and her partner. 

5.She has continued to experience pain in both shins, particularly her right shin.  She cannot kneel on the leg or have any pressure applied to it.  This injury requires further medical investigation including X-rays.  She has not been able to run as a hobby or take part in a exercise regime as she did formally, and she feels extremely traumatised and her sleep has been affected.

6.She has had to explain the threats to her family and they, in turn, are very concerned for her welfare, observing her increased anxiety and nervousness. 

7.A statement made by Inspector Kelly Lawson was tendered at the plea hearing. 

8.Inspector Lawson referred to the impact upon police of incidents such as this which she has observed herself in relation to Senior Constables Moss and Grissold.  She said both had been emotionally distraught and are still in fear of their safety. More broadly, Inspector Lawson described the impact on the organisation of the police force of such an incident as this through lost shifts, and as hampering their ability to meet community expectations thereby contributing to a reduction of safety for the public.

9.The offending was serious by any objective assessment and had serious effects both personally for the victims and more generally as it effected the ability of the police force to serve the community. 

PERSONAL CIRCUMSTANCES

1.After your arrest, you were remanded in custody where you have remained for a period of 551 days. 

2.You are aged 22, you were 21 at the time of the offending.  You were born in Kenya and came here with four of your six siblings in 2004.  You were aged eight or nine and spoke no English.  You were placed in Grade 3 at school and spent the next two years or so trying to understand English. 

3.At school you excelled at football and played at senior levels while still very young.  You dropped out of school before finishing Year 12 and looked for work, but you were able to obtain a fee for the football matches you played in. 

4.In 2015, you did obtain work with an asphalting company earning enough to buy a car.  You no longer have that car because of this offending. 

5.When you were taken to the police station, you were kept in an interview room while your mother and sister were spoken to.  Indeed, they were charged with offences and the hearing is listed for October in the Magistrates' Court. 

6.Your interview commenced at about 3.35 am, a delay of slightly more than three hours since the cessation of the event and your arrest.  By the time you were interviewed you were angry, hence your attitude and the threats you made during the interview, although objectively this anger would seem to be a continuation of your angry and aggressive behaviour at the scene outside your home. 

7.It was submitted by your counsel, Mr Nikakis, that the interference by your mother and sister exacerbated your behaviour, and that seems likely, but you had already embarked on a course of serious offending by then by your dangerous driving after having been drinking and failing to stop when the police directed you to. Indeed, you demonstrated your aggressive attitude and behaviour as soon as you arrived at your house before your mother and sister intervened. 

8.Your father, who in Kenya worked for World Vision and now is a factory worker, was in court during the plea hearing to support you.

9.You have been in regular contact with your parents while in custody and they have visited you occasionally. 

MITIGATING CIRCUMSTANCES

1.Whilst at Ravenshall prison you undertook a course dealing with alcohol abuse as well as counselling, prompted by your knowledge of what you had done while drunk. You are now at Barwon, but the same programs have not been available to you.

2.The Corrections officer who assessed you on Tuesday reported that you engaged well in the process and demonstrated some insight into your offending behaviour and why it happened, and you were able to reflect on your actions and to articulate how you would have approached the situation differently if it should occur again.

3.You told the Corrections officer that you had been unemployed for a time immediately before the offending and had been drinking alcohol daily because you had nothing to do.  You said you did not intend to socialise again with the friends you had at that time. 

4.You pleaded guilty at a late stage after a contested committal and a short time before a trial was due to commence, but discussions had been held concerning the degree of severity of Senior Constable Moss's injury, as well as the issue of mens rea, hence the delayed plea. 

5.Despite being late its value lies in having avoided a trial and for that utilitarian benefit you are entitled to a discount on your sentence in the usual way.  As an indication of remorse it carries only nominal weight and there is no other expression of remorse.  However, you have taken some steps towards your rehabilitation and you do plan to get work as soon as you can. The development of some insight and indications of an altered attitude auger well for the avoidance of reoffending in the future.

6.As an adult offender you were dealt with for a number of driving offences two years ago when you were placed without conviction on an adjourned undertaking and your licence was suspended for three months. 

7.Although it is a very limited criminal history, you have now demonstrated a propensity for this sort of offending, referring to the driving charges, and so specific deterrence has an important role to play in sentencing you. 

8.While your youth is the key factor in sentencing you, a very important focus of the sentence I impose is on general deterrence and denunciation by the court.  As I said before, the offences you committed were very serious, not only because of your dangerous driving and the intentional assaults on the officers, but also because you assaulted two officers who were performing their duties. 

9.You placed them in fear of their safety and indeed their lives, and you caused them immediate and ongoing pain and in the case of Senior Constable Moss, an injury requiring surgery with continuing associated pain and difficulties.  She was unable to work at her job for many weeks and Inspector Lawson explained that impact upon the police force.

10.As to your youth, it is widely recognised that the rehabilitation of a young person is of great importance to the community.  A lengthy prison term would do nothing to enhance those prospects, particularly given that you have already spent 18 months in custody. 

11.You have demonstrated in the past, a capacity for work which you intend to pursue and you appear to understand now that lack of employment can be potentially harmful for a young person. 

12.Your counsel submitted that your sentence of imprisonment should not be greater than the time you have already served, and that a Community Correction Order in addition would address any further aspects of the sentence required, that is, your rehabilitation and any further punishment. 

13.The prosecution submission was similar, in that the time you have already served is within range, and that an appropriate sentence could be achieved by a head sentence and a non-parole period, or alternatively by a Community Correction Order. 

14.I have given careful consideration to the question whether a head sentence with a non-parole period is appropriate.  A properly constructed sentence, taking into account all relevant matters, would permit a relatively short period of parole if you were determined to be eligible. 

15.By contrast, a long Community Correction Order can provide a long period of structure and supervision which is called for. 

16.Because the victims are police officers who were on duty it follows that you must be sentenced to a mandatory minimum period of imprisonment for six months for Charges 1 and 2. That can only be avoided if a special reason exists pursuant to s.10(A) of the Sentencing Act. 

17.It is not submitted that any such special reason exists in this case.  I note that the maximum penalty for intentionally causing injury is ten years' imprisonment as it is also for making a threat to kill.  That charge is the subject of Charges 3 and 4.  It is a serious violent offence and if sentenced to prison for those offences you are to be sentenced as a serious violent offender to be noted on your record. 

18.The maximum penalty for the summary charges are as follows: 

19.For using a vehicle non-compliant with standards, a fine of five penalty units; for failing to stop when directed, 12 months imprisonment or a fine of 240 penalty units or both; for dangerous driving, two years imprisonment or a fine of 240 penalty units; for exceeding the concentration of alcohol in your blood, a fine of 20 penalty units for a first offence; and for using an unregistered vehicle a fine of 25 penalty units.  I will address the penalties that I will be imposing for you for those charges in one moment. 

20.Would you stand now, please.

THE SENTENCE 

1.I sentence you to 12 months imprisonment for each of Charges 1 to 4 inclusive, three months for summary charge 10 and six months for summary charge 12.  Each sentence is to be served concurrently with each other, so that the total effective sentence is 12 months. 

2.To comply with the Sentencing Act, I declare that you have already served 365 days which equates with the sentence I have imposed, but noting that of course you have spent 18 months in custody and I place considerable weight on that fact in considering the appropriate sentence overall. 

3.It also needs to be stated that a sentence that is not longer than 12 months allows for a Community Correction Order and the structure of such an order is in my view, essential for your successful rehabilitation. 

4.I also impose that order for which you have been assessed as suitable.  It applies to Charges 1 to 4 inclusive as well as the summary charges 10 and 12. 

5.It commences today as soon as you are released and will last for two years.  You will be under supervision and you must perform 150 hours of unpaid community work.  You must undergo treatment for alcohol abuse and programs to reduce the risk of reoffending, and the hours you do spend attending programs will be credited towards your work hours.

6.You must attend court from time to time for judicial review of your progress and the first date for that will be 7 November at 10 am.  I will then have a progress report and I will discuss it with you. 

7.On your release, you must report to the Corrections officer at South Morang by 4 pm on Tuesday 27 August, that is next Tuesday.  You must understand that if you were to breach this order you will be charged with that as an offence and if it is found proved, you may be resentenced for these charges.

8.I turn now to the penalties for the remaining summary charges. 

9.For Charge 9, a fine of $200; for Charge 14, $800, and for Charge 22, $500.  In relation to each of Charges 12 and 14, your licence to drive is cancelled and you are disqualified from obtaining a further permit or licence for six months. However, four months of the cancellation period for Charge 14 is to be added to the period for Charge 12, making a total period of disqualification of ten months.

10.If you had pleaded not guilty to these charges, I would have sentenced you to two years and six months imprisonment with a non-parole period of 22 months. This declaration under s.6AAA of the Sentencing Act is calculated taking into account the actual time spent in custody rather than the declared time served. 

11.The prosecution seeks a forensic sample of saliva to be obtained, but Mr Nikakis, I have not heard from you whether that is opposed or not?

12.MR NIKAKIS:  I have got no position, it is a matter for Your Honour. 

13.HER HONOUR:  Thank you.  I will mark that accordingly. Mr Nikakis, the Community Correction Order is ready for signature, would you like to accompany my associate to the dock for that to be done.

14.MR NIKAKIS:  Certainly Your Honour.

15.HER HONOUR:  Mr Doyle, what police station is appropriate for Mr Dut to report to for the forensic sample?  Is it Epping or Mill Park?

16.MR DOYLE:  Mill Park, Your Honour.

17.HER HONOUR:  Thank you.  Are there any other matters Mr Doyle?

18.MR DOYLE:  No, Your Honour, no. 

19.HER HONOUR:  Mr Nikakis?

20.MR NIKAKIS:  Not that I can think of, Your Honour.

21.HER HONOUR:  Thank you.  You may take Mr Dut now, thank you officer. 

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