Director of Public Prosecutions v Garang
[2014] VCC 580
•30 April 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication) |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-00345
CR-13-00085
| DPP |
| v |
| GARANG GARANG |
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JUDGE: | His Honour Judge Maidment | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 April 2014 | |
DATE OF SENTENCE: | 30 April 2014 | |
CASE MAY BE CITED AS: | DPP v. Garang | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 580 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms P Thorp | |
| For the Accused | Mr D Glynn |
HIS HONOUR:
1 Garang Garang you can remain seated for the time being. You have pleaded guilty to two indictments. The first charging you with four offences of obtaining property by deception, one offence of armed robbery and one of attempted armed robbery and the second charging you with causing serious injury intentionally. You have also admitted a number of prior convictions and court appearances. The prosecution has tendered and relied upon two summaries of prosecution opening which cover the offences to which you have pleaded guilty. I am not going to read those again. They were read earlier today. Suffice to say that the first indictment involves you using a credit card that was stolen a few hours previously in the course of another robbery and your participation in an armed robbery and attempted armed robbery on soft targets, with others. These are offences (particularly the armed robbery and the attempted armed robbery) that are prevalent and are often committed by young people like yourself. They are offences which cause a good deal of concern, harm to the victims, not just in terms of physical harm, but in terms of the fear that is instilled and the emotional damage that is done which can last for a very considerable period of time after the offence.
2 For those reasons the courts are concerned to impose substantial terms of imprisonment ordinarily for offences of that nature. The second indictment concerns an offence of intentionally causing serious injury upon a Corrections officer who was overseeing you whilst you were in custody. I note that the offences on the first indictment were committed within about a month of you being placed on a community corrections order and the offence of intentionally causing serious injury was committed within a couple of weeks or so of you appearing again before Her Honour Judge Gaynor where she sentenced you to a term of imprisonment for offences for which you had previously been sentenced to a community corrections order. She described you as a dangerous person and regarded your behaviour as very disappointing I think is the politest way to describe the way she felt about your offending so soon after she had imposed a community corrections order.
3 The result was that you served a term of 12 months imprisonment and also another one month imprisonment. But had you not committed these offences you would not have been required to serve that time albeit that you were in breach of the community correction order for other reasons as well as the commission of the offences, the subject of the first indictment. The offence of intentionally causing serious injury upon a Corrections officer has to be regarded as a very serious offence indeed. They do a job which places them in positions of danger on a daily basis and they are entitled to be protected.
4 This was a particularly unpleasant offence. I appreciate that you had been the subject of a similar attack yourself in a custodial environment but that is no excuse for you behaving in that way. Indeed all the more reason why you should not have behaved in that way knowing the effect that your conduct was likely to have upon your victim. Your counsel helpfully provided me with a short plea outline and also with a chronology of relevant events. He also provided me with psychological assessment report from a Neuro psychologist Lindsay Vowles a letter provided by Chantelle Hicks who also gave evidence and those documents show that you clearly had a difficult background, a very difficult background and that you will no doubt have experienced many traumatic events in your life.
5 It will have been extremely difficulty for you to have made the journey that you did from Sudan to Australia via Egypt and to have sought to fit in to the Australian community not just with your background, but with the deficits, the impairments, mental impairments that arose from a series of events which seemed to have caused or contributed to your acquired brain injury and other mental impairments. No doubt they have interfered with your ability to complete your education satisfactorily and also made you more vulnerable to the influences of others who drew you in to use of illicit drugs in particular ice and in to criminal conduct.
6 It is noteworthy that you have acquired for a young man a bad criminal record with some serious criminal offences including intentionally causing injury and recklessly causing injury, recklessly causing serious injury and armed robbery. The report of Lindsay Vowles suggests that the combination of your deficits leave you with a very low intelligence quotient and the testing that Dr Vowles performed suggested that it may be as low as a full scale IQ of 57 which is extremely low. It was submitted on your behalf that the effect of Dr Vowles' report is to show that your mental impairments including your acquired brain injury are such that they reduce your moral culpability for the offending conduct that is your blameworthiness for the conduct, they reduce the need to hold you up as an example to others in support of the principle of deterring others from committing offences of this kind and reduce the need for specific deterrence you being not a good subject for specific deterrence.
7 Also it seems to me that all of the Verdins principles are engaged in one form or another that these deficits are going to have an effect upon you whilst you are serving your sentence. They already have no doubt. They have made your serving time in prison more difficult. I have no doubt they contributed to your offending conduct in the offence of intentionally causing serious injury to the prison guard as well. For all of those reasons it seems to me that the sentences that I would otherwise have been bound to impose upon you have to be significantly reduced as a result of all of those matters.
8 Your counsel rightly reminded me that you have pleaded guilty and it seems to be accepted that I should treat you as having pleaded guilty to each of these offences at the earliest reasonable opportunity and therefore you will get the maximum benefit for the saving of the cost of a trial, the inconvenience of calling witnesses to a trial and saving all of that. But the other factor which is of particular significance is that you are still a young man. You are only 21 years of age apparently and you were 20 at the time that the offences were committed. Now ordinarily the rehabilitation, that is the helping the offender to lead an honest life in the future should be given top priority. But these are offences which are of such seriousness that to some extent that priority has to give way to the need to protect the community from you and to punish you adequately for your offending conduct notwithstanding the matters to which I referred.
9 Unless you get a good deal of support when you are released from prison I think your prospects of staying out of trouble in the future are poor. You are very fortunate to have people around you who have been prepared to really put themselves out. Ms Hicks is one of them, her family and your brothers no doubt, also have done their best I think to support you and will continue to do so. But you have got to make an effort yourself. You have got to make a real effort and I notice looking at the transcript on the proceedings before Her Honour Judge Gaynor in November of 2012 you were arguing with her as to her characterisation of you when she was describing you as dangerous. Within two weeks you poured boiling water over the head of a Corrections officer and it does suggest that Her Honour summed you up pretty well on that occasion.
10 You may think that there are all kinds of good reasons why you might be susceptible doing something like that, but the fact is that I have a duty also to the community just as Her Honour determined that she had a duty to the community. There is no doubt though as I say, that the fact that you had to serve that full 12 months imprisonment that she imposed upon you as a result of being in breach of the community correction order is something that I have to take in to account, just as the other one month that Mr Glynn rightly drew my attention to, needs to be taken in to account in reduction of sentence. There are well established principles which govern the court's approach to that kind of sentence reduction. It goes to an assessment of the total sentence that would be imposed upon you and as to whether the sentence having regard to the 12 months and 13 months extra that you had to do ends up producing a just result. So I do have to factor that in and that too reduces the sentence that I would otherwise have to impose upon you.
11 I have found this difficult because there is no doubt in my mind that for a time, unless you respond well to the assistance that is offered you when you are released you will pose a danger to the community and unless and until you get a real grip on yourself and receive the right kind of support and treatment that danger will remain. But your youth I think has to be taken in to account here and the court has to give you a reasonable opportunity of making a good life for yourself. I see your brother sitting in front of me and I see Ms Hicks's family and I think you are very, very fortunate. The young children that have been in the Court have been a delight and you should look to that family and think what you could achieve in building a life for yourself too and seeing if you too can build a family and build a decent future for them, not just for yourself.
12 I have to balance all of those factors. I have to punish you appropriately. I have to pay proper regard to all of the sentencing principles that I have mentioned and try if I can to arrive at a sentence which properly balances all of those factors. I have endeavoured to do that and I am ready to impose sentence upon you now so would you stand. For the offences on the first indictment on Charge 1 of obtaining property by deception I convict you and sentence to imprisonment for two months. Charge 2 of the same offence, I convict you and sentence you to imprisonment for two months. On Charge 3 of obtaining property by deception, I convict you and sentence you to imprisonment for two months. On Charge 4 of obtaining property by deception I sentence you to two months imprisonment and convict you.
13 On Charge 5 of armed robbery I convict you and sentence you to imprisonment for two years and six months. Now that is a very lenient sentence having regard to the nature of the offence and that is only because of the factors that I have mentioned that it is as lenient as it is. On Charge 6 of attempted armed robbery I convict you and sentence you to imprisonment for 20 months. On the second indictment for the offence of intentionally causing injury I sentence you to imprisonment for a period of three years and that too for what I regard as a very serious example of the offence is a very lenient sentence and I only pass it because I regard the factors put in your favour in mitigation as being very significant.
14 On that particular charge the sentence is three years I further order that that sentence is to be regarded as the base sentence and I order that nine months of the sentence on Charge 5 on the first indictment be served cumulatively upon the sentence of three years imposed for intentionally causing serious injury. It is a total effective sentence of three years and nine months. I order that you serve a period of two years and three months before you become eligible for parole. I declare pre sentence detention of 257 days, not including today is to be reckoned as time served on that sentence and deducted from the sentence I have imposed. That will make a pretty significant dent in the two years and three months before you become eligible for parole.
15 But for your pleas of guilty I would have sentenced you to five years and three months with a non parole period of three years and three months. I also make the orders for disposal of property and restitution in accordance with the drafts which I have been provided.
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16 HIS HONOUR: Are there any other orders that I need make counsel?
17 MS THORP: No Your Honour.
18 MR GLYNN: No Your Honour.
19 HIS HONOUR: All right, well good luck. You can take him out thank you. I'll just take a few minutes to sign those orders and - those orders are now signed.
20 MS THORP: Thank you Your Honour.
21 MR GLYNN: If Your Honour pleases.
22 HIS HONOUR: Yes all right, whatever time it is tomorrow morning.
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