Director of Public Prosecutions v Garang (aka Giarang)

[2018] VCC 687

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CR-17-02336
CR-18-00139
CR-18-00142
CR-18-00143

DIRECTOR OF PUBLIC PROSECUTIONS

v

MAYOL GARANG (aka GIARANG)

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	13 March 2018
DATE OF SENTENCE:	10 May 2018
CASE MAY BE CITED AS:	DPP v Garang (aka Giarang)
MEDIUM NEUTRAL CITATION:	[2019] VCC 687

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:             Sentence – common law assault (3 charges) – criminal damage – causing injury intentionally – causing injury recklessly – behave in indecent manner in a public place – possess dangerous article in a public place – drunk in a public place

Legislation Cited:     Crimes Act 1958, s197(1), s18

Cases Cited:Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 349 ALR 37; R v Verdins & Ors (2007) 16 VR 269

Sentence:                 Convicted and sentenced to six months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr C McConaghy	Solicitor for the Office of Public Prosecutions
For the Accused	Ms Z Broughton	Victoria Legal Aid

HIS HONOUR:

1       In this indictment I formally pass the following sentence.

2       Insofar as each of these charges to which there has been a plea by Mr Garang, each of them are relatively minor in themselves.  However, they represent, no doubt, in total, when you take into account the summary matters that I have been asked to also take into account which have been filed with the Court and which Mr Garang has pleaded guilty through his counsel today, and you take into account the reports that we have sought and particularly the report received from Forensicare, who I thank, cause for concern as to Mr Garang's future and future criminality.

3       The learned prosecutor spoke about the need for supervision.  There may well be, through some other provisions in the Act, or some other authority might be able to take some steps in that regard.  However, this Court can only sentence for the offences that are before the Court.

4       Mr Garang is aged 32.  He has been before the Court on what might be seen essentially as street offences, but including numerous assaults, for many years.  Indeed he has been before the County Court by way of appeals from numerous sentences.

5       One has to take into account in any sentence, of course, the material that has been tendered. In particular, I refer to the psychiatric reports of Susan Carey, clinical neuropsychologist, dated 26 December 2017, 30 November 2017, 6 July 2017 and 30 May 2017, together with an update report of 13 March 2018.

6       In addition, we have the psychiatric report, prepared and forwarded to the Court on 8 May 2018, by Dr Triglia, consultant psychiatrist from Forensicare, which I sought.  Indeed that is the matter that has, no doubt, motivated the prosecutor’s concern, where the doctor, [48], says, given Mr Garang’s cognitive impairment, he needs a supervised setting.

7       Well, insofar as my role is concerned, I can only sentence and deliver justice to Mr Garang as is appropriate in all of the circumstances of the case, as is required by the High Court.  See Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 349 ALR 37, [47]-[50]. That applies to all the offences for which I am sentencing him.

8       I take into account the fact he has served 12 months in remand.  I, despite his background, would have been unlikely to have sentenced him to a period of imprisonment of 12 months, taking into account the impact upon the sentencing function that comes about from the principles in R v Verdins & Ors (2007) 16 VR 269, [32], where a person is suffering from such mental conditions.

9       However, in all the circumstances, doing as best I can, taking into account his priors and the serious nature of these crimes and their potential, I have indicated to counsel, and there is no submission otherwise, that for the totality of the four indictable charges, and the summary matters put before the Court, I intend to sentence Mr Garang to a straight sentence of six (6) months.

10 Given the agreed period that he has served to date, being 523 days, it is clear that I will make a declaration under s18 that his sentence has been well and truly served, and indeed he has some in the bank. As I said to him, I hope they are not in the bank for any further offences, and I say that in particular on behalf of the community.

11      We are fortunate to have Mr Northcott here from Disability Services.  As against what I previously said, Mr Northcott has been able, through Disability Services, to get Mr Garang a home to go to.  In the interim with his consent, they can work with him to assist in regard to his disability related needs.

12      It is very important, Mr Garang, for everyone, most importantly you, to continue with that assistance, all right, because we want you to be able to live in the community and not be committing offences.  Because if you continue to commit offences you are going to end up with a long gaol sentence.  Now you have just been in gaol for 12 months, that should tell you that is not really where you want to be, but I cannot do much more than that.  So in the circumstances, that is the sentence I will pass.

13      Despite the requirements of s6AAA, in the circumstances, I am not going to even postulate what I might have done.

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HIS HONOUR:  Mr Prosecutor, do I have to do any more than that?  Any other orders?

MR McCONAGHY:  No other orders, sir.

HIS HONOUR:  I thank both counsel and Mr Northcott, indeed everyone for their assistance and let's hope things improve.

MS BROUGHTON:  I apologise for my outburst before, Your Honour.

HIS HONOUR:  Ms Broughton, you're only looking after your client.  We accept that totally.

MS BROUGHTON:  As Your Honour pleases.

HIS HONOUR:  Now Madam Associate, do you want those so that you can type the appropriate material?  So once all that's been attended to, Mr Northcott, I'm not too sure how long it takes but we'll get the order down as soon as we can but I think you probably - if you were down there in an hour or so you should be - I don't know.  Officer, how long does it normally take?

PRISON OFFICER:  Approximately an hour, sir.

HIS HONOUR:  Yes.  Well let's say an hour and a half, Mr Northcott, all right.  All right, Mr Garang, good luck.  Try and stay off the grog, most important, all right or if you're doing it just do it at home, nowhere else.  Yes, I thank counsel for their assistance.

MR McCONAGHY:  Thank you, Your Honour.

HIS HONOUR:  Let's hope we're not back here for a more serious matter.

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