Director of Public Prosecutions v Fouch

[2014] VCC 1241

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00366

DIRECTOR OF PUBLIC PROSECUTIONS

v

LOK FOUCH

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	5 August  2014
DATE OF SENTENCE:	6 August  2014
CASE MAY BE CITED AS:	DPP v Fouch
MEDIUM NEUTRAL CITATION:	[2014] VCC 1241

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – Plea of guilty – Recklessly cause injury – Criminal damage – History of mental illness – Schizophrenia – Impaired at time of offending - History of alcohol and drug abuse – Criminal record

Sentence:Community Corrections Order – 18 months duration – Supervision, treatment and rehabilitation components

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Livitsanos	Mr C. Hyland, Solicitor for Public Prosecutions
For the Accused	Ms C. O'Shea	VLA

HER HONOUR:

1Lok Fouch, you have pleaded guilty to one charge of recklessly causing injury which has a maximum penalty of five years' imprisonment and one charge of criminal damage which has a maximum penalty of ten years' imprisonment.

2I sentence you on the factual basis which is set out in the Summary of Prosecution Opening.  The summary forms part of my sentencing reasons and I will annex a copy of it to my remarks.  In essence, the basis for
Charge 1, recklessly cause injury, is that on 13 February 2013, you and another male, referred to as ‘Mika’ assaulted Mamer Kuor after he tried to stop you from assaulting your cousin.  You had set upon your cousin after he had stopped you from assaulting yet another male.  I sentence you on the basis that the punches and kicks which you inflicted upon Mr Kuor were to his body rather than to his head, in keeping with evidence of one of the witnesses at the committal hearing.  I was told that you and Mika eventually stopped kicking Mr Kuor as he lay on the ground and you were laughing.  You then asked witnesses ‘does anyone else want some of this?’

3The basis for Charge 2, criminal damage, is that after assaulting Mr Kuor, you grabbed a computer notebook from a Nyakouar Gatluak and snapped this across your knee.

4You were arrested at the scene a short time after these incidents.

5Mr Kuor was taken to the Alfred Hospital where he was treated for serious head injuries and was intubated.  He was noted to be agitated before being sedated.  When examined by a neurosurgery registrar, he found Mr Kuor had suffered a right sided acute subdural haematoma with mild mass effect which was stable seven hours later after repeat imaging.  He also suffered a lower lip laceration.  The injuries were said to be consistent with blunt head trauma.

6The Crown accepted your plea on the basis that the prosecution could not  prove beyond reasonable doubt that you were the person who caused the serious head injury or that you had intended to cause that injury.  Mr Kuor discharged himself from hospital on 17 February but was later admitted to Dandenong Hospital after experiencing pain, headaches and nausea.  He was then released on 26 February.

7When interviewed by police, you told them that you had schizophrenia and were taking medication for this.  You said that you had been in the park for five minutes and admitted fighting with your cousin and being intoxicated.  You said you had never met Mr Kuor but that during the fight with your cousin, Mr Kuor was standing behind you.  You denied fighting with Mr Kuor but admitted to fighting with ‘Dizzy’ and ‘Mika”.  Regrettably, when you were interviewed by police a forensic medical officer was not present.

8Mr Fouch, your actions on the day that you committed these offences were terrible.  I hope that in time you come to appreciate this.  Mr Kuor was trying to do the right thing but you and Mika punished him for trying to do this.  If you did not have your mental health difficulties, I would have sentenced you to a significant period in gaol, over and above the time you have now served.

9You were heavily intoxicated at the time and were also suffering the effects of a severe mental illness, schizophrenia which had been diagnosed about five years before.  Although you had been taking medication for your illness, this did not suffice to control your actions, which were also fuelled by your level of intoxication.  Since this time you have been placed on different medication which has been more effective in stabilising your mental health.

10Having read the report of Dr Nicholas Owens, psychiatrist, dated 13 June 2014, it is clear that you have a firmly established diagnosis of schizophrenia, which was first diagnosed, as I said, about five years ago.  I am satisfied that at the time you committed the offences, you were chronically impaired by this condition, as you continue to be, albeit that there appears to be some improvement in your mental state more recently.  Dr Owens found that it was likely that the effect of your illness was to impair your ability to make calm and rational choices and to appreciate the wrongfulness of your conduct.  In so finding I did not understand that the second finding was something which was the basis for a mental impairment defence, as such.  In all of the circumstances, I accept that at the time you committed the offences, your moral culpability was significantly reduced and that this impacts on the weight which I would otherwise give to the need to punish you.  I have also substantially moderated the weight which would usually attach to general deterrence.

11In your case, even though you have a number of prior convictions, some of which are relevant to the present offending, I have substantially reduced the weight which I would otherwise give to specific deterrence because of your ongoing illness.

12As I said to your Counsel, Ms O’Shea, my concern is protection of the community.  You have limited insight into your illness and your criminal behaviour.  However, you have resolved to stay away from alcohol and, in your weekend visits home, it appears that you have stuck to this resolve and you are not taking illicit drugs either.  This is very good and you must continue to stay away from alcohol and illicit drugs and to accept the treatment regime you are currently on.  If you fail to do all these things and commit further offences, a judge may have no option but to send you to gaol.  You are now receiving daily doses of clozapine, which is proving to be more effective, and you are an involuntary patient in a secure hospital unit at Dandenong Hospital.  You will be closely monitored by your treating professionals, who will work in tandem with community corrections if and when it is time for you to re-enter the community on a more permanent basis.  I am grateful for the letter from senior social worker, Mr Bota, who has accompanied you to Court today, indicating that you may be at the unit for six to 12 months, but that you are progressing rather well to the point where you are allowed to have unescorted leave with your mother on weekends and there are no reports of substance abuse, as I have already said.

13I also accept that in your case, a further period in gaol will damage the good work that you and treating professionals have already done and that any sentence involving a further period in gaol would be a far harsher experience for you than for others not afflicted by your illness.

14I take into account your plea of guilty and the stage at which it was entered.  In pleading guilty you have saved the witnesses the time and trouble of giving evidence at trial and you have saved the community the time and expense of a trial.  Although you ran a contested committal hearing, or at least commenced this, you are entitled to a discount which is not insubstantial in all of the circumstances.

15I have taken into account your background which is a sad one.  As your father was persecuted in the Sudan for his religious beliefs, your mother took you and other siblings to Cairo where you lived for two years before coming to Australia.  I understand that you and your brother helped your mother with your two younger sisters who were very young when you left Sudan.  Your brother, who also labours under the same mental condition as you do, was at the plea hearing and I see he is here still to support you.  Your mother and grandmother intended to be here but were confused about the venue.  However, you also have their support to look to in the future.  Your formal education at school ended after Year 8 and you embarked on a TAFE course which you did not finish.  You went to the Northern Territory to look for work and it was there that you were first hospitalised for your illness.  You have recently said that you would like to do a TAFE course in horticulture, and I sincerely hope that you do pursue this very worthwhile qualification.

16I have also taken into account the various proceedings and events which have negatively impacted upon you since you were charged with the offences.  The time that you have already spent in gaol has been very difficult for you, and the twists and turns of Court proceedings have caused you a good deal of angst and confusion.  The matters themselves have been hanging over your head since February of last year.  Your mental health has plummeted at times, leading to your inability to come to Court, or in the case of the committal hearing, an inability to remain there.  During the time that you have been very unwell, you were arrested on two occasions, spending further periods in custody.  I was told that you remain very fearful as to the sentence you might receive in this case before me.

17In view of your mental illness and attraction to illicit substances and alcohol in the past, I am concerned about your prospects of rehabilitation.  These prospects and therefore community protection will be maximised by a sentence which does what it can to ensure that you continue on the path that you are on, whilst being closely monitored by mental health professionals in conjunction with community corrections.  You must also continue to stay away from illicit drugs and from alcohol.

18In all of the circumstances, I have come to the view that a community corrections order is warranted in your case.  The Crown takes no issue with such a disposition and you have been assessed as suitable for such a disposition.

19I intend to impose a community corrections order for a period of 18 months.  I can only impose such an order if you agree to this, so I will now set out the terms of the proposed order and what can happen if you breach it, so could you please listen carefully, Mr Fouch:

20As I said, I intend to place you on a community corrections order for
18 months.  You must understand that if you commit any further offences, including failing to comply with any of the conditions of the order, you will be at significant risk of going to gaol.  Do you understand that?

21The terms of the community corrections order that I propose are as follows:

o   You must not commit another offence for which you could be imprisoned during the time that the order is in force;

o   You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011;

o   You must report to, and receive visits from, the Secretary to the Department of Justice (or his or her delegate);

o   You must report to the Dandenong Community Correctional Service at 11.30 am this Friday 8 August 2014;

o   You must let a community corrections officer know within two clear working days of you changing your address or job;

o   You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice (or his or her delegate);

o   You must obey all lawful instructions from and directions of the Secretary to the Department of Justice (or his or her delegate).

22The conditions that apply in addition to the mandatory conditions that I have just set out are:-

Supervision

o   You must be under the supervision of a Community Corrections Officer for the next 18 months.

Treatment and Rehabilitation

o   You must undergo assessment and treatment (including testing) for drug and alcohol abuse or dependency as directed by the Regional Manager;

o   You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the Regional Manager.  In this regard, Community Corrections will liaise with the various health professionals involved in your care at the Secure Extended Care Unit as to your ongoing management and treatment needs.

23Do you consent to the terms and conditions of the order, Mr Fouch?

24I should tell you that if you do not comply with all of the requirements of the community corrections order then you will face breach proceedings before me.  You will then be sentenced in relation to the breach and re-sentenced in relation to the charges, in which case you, as I have said, you may well be sentenced to a period in gaol.  I would regard a breach of the community corrections order as a serious matter, whether it be because of further offending or because you did not comply with any of the conditions of the order.

25Do you understand that?  Do you still consent to the making of the order? 

26Therefore in relation to the charges, you are convicted and sentenced to a community corrections order in the terms and conditions that I have just set out.

27I also make a disposal order in respect of items seized by the police which is not opposed by you.

28I make an order for retention of your DNA sample on the grounds of the seriousness of your offending, that it is in the public interest to make such an order, because of your prior convictions and because you don’t oppose the order.

29If not for your pleas of guilty I would have sentenced you to a community corrections order, with more stringent conditions than those I have imposed in this order, for a period of three years.

30I record that you have served 177 days in custody which I have factored in, in a general sense, when sentencing you.

31I will now ask your barrister to approach the dock with my associate and help you with the signing of the order.

32(Community corrections order signed and acknowledged.)

33Thank you, I have signed that order.  Copies will be made and of course no doubt, Mr Fouch, he does not have to remember all those things that I have just said, but there will be a document that will assist him in remembering what you have got to do, Mr Fouch, and also the appointment that you have to keep on Friday with the assistance of Mr Bota.  I thank you for attending today also.  We will now adjourn.

- - -

DIRECTOR OF PUBLIC PROSECUTIONS

V

LOK FOUCH

PROSECUTION OPENING - PLEA

Date of document:  31 July 2014

Filed on behalf of:  Director of Public Prosecutions

Prepared by:

Craig Hyland   Solicitor’s Code 7539

Solicitor of Public Prosecutions  Direct line: 9603 7419

Melbourne VIC 3000  Ref: Ms. R Yousuff

Background

1. The complainant in this matter is a Sudanese male by the name of Mamer KUOR, a 32 year old who lived in the Noble Park area. 
2. The accused in this matter is Lok FOUCH. 
3. The accused and the complainant were loosely known to each other through mutual friends. 
4. The accused migrated to Australia from Sudan when he was nine years old.  The accused is currently on a disability pension and has been diagnosed with schizophrenia.  At the time of this incident the accused was engaged with Southern Health mental health services in Dandenong, to assist him with his schizophrenia. 
5. On Wednesday 13^th February, 2013 the accused started consuming alcohol.  At about 7:30 p.m. he attended at the Mills Park Reserve, located at Roberts Street, Noble Park. The accused drank wine from a cask whilst at the Reserve.  There were a number of other people in the park at this time and some of these people also consumed cask wine.
6. The accused arrived at the park intoxicated and was verbally abusive towards people at the park.  The accused had a verbal argument with a male named Mika (whose present whereabouts are unknown).  The accused was going to assault Mika when the accused’s cousin Dhiel GONY intervened and stopped this from occurring.  The accused started to punch Dhiel GONY until GONY fell onto the ground (Uncharged Act). 
7. The complainant, Mr. KUOR attempted to intervene to stop the accused from further assaulting Dhiel GONY.  Mr. KUOR received a punch from a person by the name of Chol DENG.  This blow is not the subject of any charge.

Charge 1 –Recklessly Causing Injury

8. The accused then began to punch Mr. KUOR. 
9. The accused kicked the complainant as he lay on the ground. 
10. The male known as Mika also kicked Mr. KOUR whilst he was on the ground.

Charge 2 - Criminal Damage

11. The accused grabbed Nyakouar GATLUAK’s notebook from her and snapped it across his knee, breaking the notebook and throwing it on the ground.  The accused and the unknown male Mika eventually stopped kicking Mr. KUOR and were laughing.  The accused asked the witnesses “does anyone else want some of this?”

INJURIES TO COMPLAINANT

12. Mr. KUOR was given care by witnesses in the park who had contacted Ambulance and Police.
13. Police attended the scene shortly after, where the accused was arrested in Mills Park Reserve.  Police observed multiple areas of blood in the grassed area of the reserve and numerous items of clothing. 
14. Mr. KUOR was conveyed to the Alfred Hospital where he was treated for serious head injuries and was intubated and was noted to be agitated prior to sedation and intubation.
15. Mr KUOR was noted by Dr Piers THOMAS (neurosurgery registrar) to have:
1. Right-sided think acute subdural haematoma with mild mass effect – stable on repeat imaging 7 hours later;
2. Lower lip laceration,

consistent with blunt head trauma.

16. The plea of guilty to the charge of Recklessly causing injury is on the basis that the prosecution could not prove beyond reasonable doubt that the accused was the person who caused the serious head injury to the complainant or that he had intended to cause that injury.
17. Mr. KUOR self-discharged from The Alfred Hospital on 17^th February, 2013.  Later this day Mr. KUOR was experiencing pain, headaches and nausea and attended at the Dandenong Hospital where he was admitted.  Mr. KUOR was released on 26^th February, 2013.

Record of Interview

18. The accused was interviewed at the Dandenong Police Station where he advised the police that he had schizophrenia and took medication for this (q.87).  He admitted being in the park for five minutes (q.130) and fighting with his cousin (q.134) and being intoxicated (q.181).

19. The accused stated that he had never met the complainant, Mamer KUOR (q.279).   The accused did state that during his fight with Dhiel GONY, the complainant was standing behind the accused (q.283).  The accused denied the fight with Mamer KUOR but admitted the fighting “Dizzy and Mika” (q.384).

Maximum Penalties

20. Recklessly Causing Injury: s18 Crimes Act: Level 6 – 5 years
21. Criminal Damage: s197(1) Crimes Act: Level 5 – 10 years

Disposal Order Sought

464ZF Retention Order Sought

Compensation Order sought for laptop: $500.00

Pre-sentence Detention: 177 days