Director of Public Prosecutions v Gatkuoth
[2016] VCC 634
•17 May 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00288
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ISAAC GATKUOTH |
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JUDGE: | HIS HONOUR JUDGE TAFT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 May 2016 | |
DATE OF SENTENCE: | 17 May 2016 | |
CASE MAY BE CITED AS: | DPP v Gatkuoth | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 634 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: 18 year old offender – armed robbery with firearm – serious offending –
relevant criminal history - recent demonstrable efforts at improvement
Legislation Cited:
Cases Cited:
Sentence: Detention in Youth Justice Centre for 16 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A Kapitaniak | Office of Public Prosecutions |
| For the Accused | Ms C Blakeney | Greg Thomas Barrister & Solicitor |
HIS HONOUR:
1 Isaac Gatkuoth, you are only 19 years old but have already accumulated a significant criminal record over the last three years. On this occasion, you have pleaded guilty to one charge of armed robbery and a second charge of being a prohibited person carrying a firearm.
2 The details of your offending can be summarised. They are more fully described in a prosecution opening which has been tendered as Exhibit A.
3 At the time that you offended you were 18. On 5 November 2015, Sam Newman and Daniel Sibberas were returning home in the early hours of the morning after leaving a club. You and your co-offenders were in a stolen BMW. You stalked Mr Newman’s car and ultimately rammed his Ford sedan from behind. Mr Newman and Mr Sibberas walked towards the BMW and said “What the fuck are you doing?” You and two others left the BMW and you walked up to Mr Newman and pointed a sawn-off shotgun at his head. Mr Newman feared for his life when he was ordered to hand over his keys. He backed away from you, begging you not to shoot him. Mr Newman and Mr Sibberas ran for safety as their car was driven away. Mr Newman had left his wallet, passport, iPhone and other possessions in the car.
4 Shortly afterwards police observed the stolen Ford sedan travelling at great speed on Cranbourne Road. It was followed by the BMW.
5
You were arrested two weeks later and interviewed at Narre Warren Police Station. You admitted that you had been picked up on the evening of
5 November 2015 in a white BMW knowing that it was a stolen vehicle. You conceded that you were armed with a single barrel shotgun and said that you had purchased the gun two days earlier after paying $800 plus an 8-ball of Ice. You claimed that you had the gun for your protection. You stated that the victim’s car was chosen at random.
6 During the course of the interview you admitted to wearing a mask with a smiley face when the offending occurred. You acknowledged that the victims would have been traumatised but said that the gun was not loaded. You stated that you had been drinking a great deal.
7 No Victim Impact Statements have been provided.
8
After your arrest you were remanded in custody and as at 11 May 2016 you had spent 174 days in custody. However, there is little pre-sentence detention that is exclusively referable to the offending before this Court because, on
8 December 2015, you were sentenced to six months’ detention in a Youth Justice Centre for charges including aggravated burglary.
9 At the conclusion of the plea in mitigation, I ordered that you be assessed as to your suitability for a further Youth Justice Centre Order.
10 It is necessary to turn to your personal circumstances, which are fully described in a report from Dr Nicole Moriarty, clinical psychologist, dated 16 April 2016.
11 You were born in Sudan and lived with your extended family until your father disappeared when you were about two years old. You then moved to live in another part of Sudan and stayed there until you were approximately six years old. You later moved to Egypt when your sister married a man whose family resided in that country. You attended school in Egypt and lived with your brother-in-law’s mother. You reported memories of gangs, violence and weaponry.
12 You told Dr Moriarty that Sudan was “not a place for kids”. Dr Moriarty reports that you informed her that two of your brothers died in Sudan but that the family do not speak about this loss. Until you were about 16 you believed your father to be alive, but you then became aware that some time earlier your father had been killed by a rival community in Sudan. You have been much affected by his death.
13 You came to Australia shortly before turning ten without being able to speak any English. You attended language school in Springvale and finished primary school in Endeavour Hills. You said that you were involved in fights on a daily basis and bullied because people did not like you. Your life improved for a period when you attended Gleneagle Secondary School through Years 7-9. You were Year 7 sports captain and later transferred to Hallam Secondary School for Year 10, hoping to join the sports academy at that school. You played soccer well. Unfortunately, you were not successful in gaining a place at the sports academy and lost hope. You began truanting and using illicit substances. Halfway through Year 10 you were expelled for smoking cannabis.
14 Dr Moriarty stated that you presented as a “traumatised and sad young man, who had no coping mechanisms for managing [your] emotional state”.
15 Whilst serving your current sentence of detention, you have commenced on Mirtazapine – an anti-depressant. You expressed concerns that you were depressed and that you thought about death. You indicated that at the time you committed the offences before this Court you were using Ice. You reported smoking cannabis at about the age of 16 and, after being expelled from school, you began to smoke Ice and other drugs. For about three years you used Ice and at one point your weight had declined to some 45 kilograms. You recognised that you were a “mess”. You stated that you would stay awake for several weeks at a time, hallucinating and hearing voices.
16
Your criminal record discloses that on 23 August 2013 you appeared at the Dandenong Children’s Court for robbery and attempted robbery. On
17 October 2014 you appeared in court for multiple thefts from motor vehicles, carrying a controlled weapon without excuse, dealing with property suspected of being the proceeds of crime and other offences. You again appeared in the Children’s Court on 10 December 2014 and 5 June 2015. On the latter occasion, you were released on a Youth Supervision Order for a period of six months in respect of a number of charges, including possession of a prohibited weapon, dishonesty offences, intentionally causing injury and affray. Subsequently, you committed the aggravated burglary which founds your current sentence. It is apparent that the scale and frequency of your offending is escalating.
17 I consider that your offending is serious and alarming. The hijacking and robbery of a Ford sedan was purposeful and involved a significant degree of premeditation. You were in company. You were armed with a firearm and terrified the victims. You were disguised. Your offending is in no way excused or diminished by your use of Ice and alcohol. You engaged in a serious armed robbery and the only matter left to chance was the selection of the target vehicle. I entirely accept that your formative years have been wretched. That however does not excuse your violent conduct. As I have previously remarked, having been exposed to violence you should be the last person to inflict violence upon others.
18 This Court was informed about the sentences attaching to your co-accused. None of them have been dealt with in this Court and the only offender who has been sentenced for the armed robbery was dealt with in the Children’s Court where very different sentencing considerations apply. In addition, and in contrast to you, he had no prior criminal history.
19 A number of factors were relied upon to support the submission that you should be sentenced to a further period of detention in a Youth Justice Centre. Those factors included:
· your youth;
· your admissions in the record of interview;
· the entry of pleas of guilty at a very early stage;
· your fragile mental health, including Dr Moriarty’s opinion that you are likely to be suffering from Post-Traumatic Stress Disorder;
· your demonstrated commitment to self-improvement and rehabilitation while undertaking your current sentence; and
· the support you enjoy from an older sister who supported you in court.
20 I accept that there is evidence of demonstrable efforts you have made to improve yourself. You appear to be gaining a measure of insight. Significantly, two letters were tendered which attest to your academic achievements whilst you have been in custody at the Malmsbury Youth Justice Centre. You have been attending Parkville College, which provides education for young offenders in custody in Victoria. You enrolled in November 2015. It is reported that you have attended every educational class available to you and that you have been highly respectful and enthusiastic.
21 Anne-Maree Fenech, the lead teacher at Parkville College, and Luke McMurray, the numeracy teacher at Parkville College, state that in every class and in every interaction with teaching staff you have displayed “exemplary conduct and behaviour” and that your attitude towards education and self-improvement has been “admirable”. You have been able to block out distractions and work independently and you have done so in a dedicated and self-motivated manner. You are described as an “outstanding student” in numeracy class. The writers consider that you have good prospects of rehabilitating yourself based upon your “exemplary conduct…high work ethic…outstanding attitude and much admired perseverance…”. Those are most positive statements. You need to continue with that progress.
22 In addition, viva voce evidence was called from Susan Piggott, Youth Justice Worker at Dandenong, who has known you for some time. She described you as “very bright” and indicated that you do express remorse for your offending. She considers that you understand that your offending is intimately linked to your association with a peer group that invites further offending and your use of drugs. She is hopeful as to your prospects and considers that upon your release you can be linked to TAFE and to medical, health and drug services. You aspire to get employment in the building industry and a building apprenticeship.
23 In my view, your rehabilitation should be promoted and it is hoped that you are now gaining a level of maturity. Only time will tell. You should repay the support that your older sister has shown towards you.
24 I have had you assessed for a further Youth Justice Centre Order and that assessment is favourable.
25 On the charge of armed robbery, you are to be detained in a Youth Justice Centre for 16 months.
26 On the charge of being a prohibited person carrying a firearm, you are to be detained in a Youth Justice Centre for four months.
27 Those sentences are concurrent with each other and with the sentence that you are currently undertaking. The sentences take the principle of totality into account and that you were not given an opportunity to be released on youth parole for your current sentence because of the charges pending in this Court.
28 Pursuant to s35(1) of the Sentencing Act 1991, 19 days of pre-sentence detention are reckoned as a period of detention already served.
29 I make an order for the taking of a forensic sample by way of a buccal swab. I must inform you that the police may use reasonable force to carry out that procedure.
30 Pursuant to s6AAA of the Sentencing Act, I indicate that but for your pleas of guilty, you would have been sentenced to a period of detention in a Youth Justice Centre for 24 months.
31 HIS HONOUR: Can I thank you for your assistance. Mr Gatkuoth, can I ask you to stand once more. Somewhat to my surprise, the report from Parkville College was very positive. I had not expected it. If it had not been for that report and the opinions expressed by the teachers, you would have been sentenced to a longer term of detention.
32 I do not know whether you will change your ways, but if you commit violent offences in the future you must expect to be sentenced to significant terms of imprisonment in an adult gaol. Our community will not accept and will not tolerate hijackings, use of firearms and intimidation. Do you understand that?
33 OFFENDER: Yes.
34 HIS HONOUR: I will stand down.
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