Director of Public Prosecutions v Gatlwok, Jongkuch

[2016] VCC 513

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00118
CR 16-00135

DIRECTOR OF PUBLIC PROSECUTIONS

v

KOT GATLWOK
EMMANUEL JONGKUCH

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	29 April 2016
CASE MAY BE CITED AS:	DPP v GATLWOK, JONGKUCH
MEDIUM NEUTRAL CITATION:	[2016] VCC 513

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr M. Roper
For Accused GATLWOK	Mr J. Mortley
For Accused EMMANUEL	Mr M. McGrath

HER HONOUR:

1Kot Gatlwok and Emmanuel Jongkuch, you have each pleaded guilty to one count of armed robbery.  The maximum penalty for armed robbery is 25 years imprisonment.  The circumstances of your offending are set out in the agreed facts, Crown opening on the plea, Exhibit A.

2On 20 November 2015, at about 2.15 am, you both went to BP in Laverton North.  You approached the counter and spoke with two of the employees, then left the store.  You returned at approximately 12.30 am, but went towards the cafe area where a different employee was working. 

3You both went behind the counter and confronted Ms Charzi Kabeils, who was then serving a customer.  You Gatlwok, holding a silver bladed folding knife said "Give me the money".  She responded that she did not have the password for the till.  You, Jongkuch, then pulled out a machete and pointed it at her aggressively saying "Give me the money".

4Ms Kabeils then opened the till and ran away to the office area.  You took money from the till and tried unsuccessfully to open another till.  You stole approximately $300, then you both walked out of the store.  The police soon attended and obtained CCTV footage of the incident.  In the days following, you were both identified from the footage in the Sunshine West area, wearing some of the same clothing you were wearing when you committed this crime.

5You were both arrested and interviewed.  You, Gatlwok, gave a no comment interview and you, Jongkuch, were too intoxicated and thus unfit to be interviewed. 

6A victim impact statement was prepared by Ms Kabeils, Exhibit B, and the contents were read out in court.  Clearly this incident has had a significant effect on her, and her capacity to work in a similar environment.  It took her weeks to recover to the point where she could do her usual activities of daily living.

7She is fearful and feels angry and upset that this has happened to her.  She has required counselling.  She has been required to give up the job that she previously enjoyed. 

8As to your personal circumstances, Mr Gatlwok, I received a report from Warren Simmons, a psychologist, dated 19 April 2016, and I take that material into account.  You are currently aged 21 and you are a youthful offender.  You moved to Australia from a refugee camp in Kenya in 1998 with your mother and three older siblings and one young sibling.  Your father was killed in Sudan when you were very young.  You have lived with your mother in Braybrook most of your time in this country.  You reported abusive punishment as a child by your mother and uncles, though this could be viewed as a cultural way of providing discipline.

9Simmons is of the opinion that during your early childhood, you experienced symptoms of post-traumatic stress disorder.  You attended various schools and finished Year 11 at Sunshine College.  You then completed a pre-apprenticeship in carpentry and Certificate II in building and construction.

10You have been employed in the building industry and provided funds to your mother and siblings for their education.  However, that employment ceased due to court commitments to which I will refer later in these reasons.  I understand that was a period of employment of about 12 months.  You are a talented basketball player and were accepted to participate in training camps in the US in 2010.  You played the game for Braybrook Longhorns between 2006 and 2012.  Simmons opines:

"You struggle to engage in the wider world and it would seem you have not really been prepared well for work and living in the community.  It must be acknowledged that there is a degree of anti-social personality distraites, which no doubt have effected your ongoing behaviour".

11Your consumption of alcohol began when you were aged about 13 and increased significantly in 2011 with the death of a close friend and relative.  During 2003, you became involved in the use of drugs, including cannabis and ice.  You have had only limited involvement in drug and alcohol treatment in the past.  You have a significant amount of prior convictions, including appearances in the Children's Court between 2008 and 2013, and later in the Magistrates' Court.  The prior matters have involved violent, dishonest and other minor summary offences. 

12Most significantly, on 19 October 2012, at this court, on appeal from the Children's Court, you were convicted of one count of armed robbery and two counts of robbery and sentenced to be detained for nine months in the youth justice centre.  I note that you were convicted of recklessly cause injury in this court on 16 November 2015, and a community correction order was imposed.  It was only four days later that you committed this offence, and you have been in custody since.  In respect of the sentence imposed on 19 October 2012, material provided from Flemington & Kensington Community Legal Centre, Exhibit 3, reveals an incident that had you removed from Parkville and placed at Port Phillip Prison.  This was when you were aged 18.

13You spent several months in solitary confinement, without access to education or rehabilitation programs, programs that you had previously been able to engage in successfully at Parkville.  The conditions in the adult gaol contributed to a significant deterioration in your physical and mental health, and required considerable advocacy to have you placed in mainstream, in adult gaol.

14I understand on your release, just before Christmas in 2012, you went to live with your older sister in Alice Springs who was a positive influence, and that you then returned to Melbourne, were working in the building industry, playing basketball and that you had sought clarification re your identity and date of birth from government agencies.  You were being helped in the community by your older brother, Manyok. 

15This progress however stalled with your involvement in a trial in February 2015, when you were required to give up your job because of court commitments.  You were acquitted of those matters, although you spent 164 days on remand between 23 August 2013 and 4 February 2014.  After the trial, you returned to Sudan where you remained until late July 2015.  Upon your return to Australia, you had difficulties with Centrelink and were unable to receive any income or benefits.  It was in these circumstances that you renewed old acquaintances and commenced drinking alcohol, and using ice again.

16You were living a chaotic lifestyle, not staying at your mother's home and couch surfing in the time leading up to the commission of this offence.  This was also your circumstance when you were placed on a community correction order on 15 November 2015, of which you have not complied.  I take into account the dead time of 164 days in sentencing you, although I note that the magistrate would have also been aware of it when you were sentenced on
15 November 2015.

I take into account your plea.  You have pleaded guilty to this offence and obtain the full benefit of that.  This is both as to the utilitarian value of the plea, but also as witnesses were not required to recount this frightening incident.  I accept your plea is indicative of a remorse.  As to your rehabilitation prospects, your prior history is of concern, particularly that you committed this offence only days after being given an opportunity by this court, and being placed on a community corrections order.

17However, I note that you have had periods where you are able to remain offence free, especially during the period after which your release from custody in 2012.  Your sister has offered you similar support to that previously given to you on your release from custody this time, though she now resides in Darwin.  She has prepared a letter for the court and I take that material into account.  That is Exhibit 1.

18Your desire to live with your sister on release from custody, and your family support for you, including that of your sister, is encouraging.  However, it will be up to you to deal with the alcohol and drug issues that you have, and to start living a more positive lifestyle.  It was strongly argued on your behalf that any plan for you to live with your sister in Darwin, augured well for your rehabilitation.  Rehabilitation is an important sentencing consideration, particularly given that you are a young offender.

19I turn now to Mr Jongkuch.  I received a report from Carla Lechner, a psychologist, dated 13 April 2016 and I take that material into account.  You are currently aged 26 and were born in Sudan in December 1989.  You have four older, and two younger siblings.  Your father died when you were young in Sudan and when you were aged about 11, for fear you would be taken as a child soldier, your eldest brother, Nelson, took you to Kenya in 2001.

20In Kenya you attended a boarding school that was financed by Nelson your brother.  There you were a good student and able to speak a number of languages.  In 2007, you came to Melbourne with Nelson's wife and family and lived in Deer Park.  You completed school, then commenced Foundation Studies at Victoria University.  Upon completion, you enrolled in medical engineering at that university.

21Unfortunately, your mother became ill in 2008 and you ceased studying and commenced working at food processing factories in order to provide some financial support for the family.  In 2009, you had a child with Abiyong, who you remained in an on and off again relationship, until 2013.

22You returned to your studies in 2010, but struggled in paying the fees.  You also commenced drinking alcohol around this time, as a means of coping with the loss of five close family friends over a period of three months.  You stated to
Ms Lechner:

"It was the worst time ever.  I'd drink until I passed out.  Took away all the people I love and who loved me".

23It was in these circumstances that you were trying to be a partner and a father, and living in Ballarat.  Abiyong would spend time with her own mother on weekends, and you would spend much of that time consuming alcohol and ultimately getting in trouble with drink driving.

24You have sought assistance from Orygen Youth Health for your mental health and were prescribed Olanzapine.  By 2013, you had spent a period in custody and had serious alcohol problems.  You were using ice which resulted in at least three drug induced psychotic episodes, requiring hospital admissions.  You were residing at your cousin's house during periods of 2013.

25Ms Lechner notes:

"Your mental health has continued to decline, including periods of drug induced psychosis, with you becoming caught in a vicious cycle of using more and more drugs and alcohol to cope with internal distress, but making the situation worse.  Your offending occurred in this context.  You have no recollection of this offence on account of your level of substance intoxication.  But you accept moral responsibility for your actions. 

You are both ashamed of your offending and have appropriate empathy for the victim.  No doubt your level of substance abuse impaired your ability to exercise good judgment".

26Ms Lechner opines that your prior offending seems to have arisen in the setting of alcohol use disorder, with an underlying history of post-traumatic stress disorder, arising from childhood experiences in Sudan and a clinical level of depression, triggered by a series of significant personal losses.  Your use of alcohol and drugs has not only aggravated your symptoms, but led to disinhibited behaviour and offending.

27You have a number of prior convictions, mainly for driving offences, also connected to alcohol consumption.  You have been placed on a number of community orders as a result of your offending.  Not one of these orders has been breached.  You have never received a custodial sentence before.  This offending is clearly a step up in the seriousness of your offending.

28It is however significant that you have been remanded in custody in respect of matters for which you were acquitted.  I was informed that you were arrested and remanded in August 2013, and bailed in April 2014, serving 226 days.  Then on breach of that bail, remanded again on 27 May 2014, until your acquittal on 25 February 2015, a further 274 days.  You have spent 500 days in custody as dead time.  You have been in custody for this offence since your arrest.  You have completed several courses whilst on remand, including to address drug and alcohol issues and I was provided with a number of certificates with regard to furniture making that you have completed within custody.

29You have pleaded guilty to this offence and will obtain the full benefit of that.  This is both as to the utilitarian value of the plea, but also I accept that your plea is indicative of remorse.  Your counsel also drew my attention to the recent authorities regarding sentences of imprisonment imposed on individuals with your immigration status.  These are irrelevant in circumstances where the period of imprisonment to be imposed is 12 months or more.  Having regard to the sentence I will impose on you, there are no direct consequences regarding your immigration status.

30I take into account the extended period of dead time you have served, namely 500 days.  As to your prospects for rehabilitation, the success depends on you addressing a number of issues, including alcohol and drug issues, and also counselling related to childhood trauma.   Any success will hopefully coincide with you having contact with your son who is now aged about seven.

31There are some aggravating features in respect of this offending.  This was a soft target.  It occurred in company and you both had weapons.  There was a significant impact on the victim.  I note however that it was accepted by the Crown that it was spontaneous and unsophisticated.  You were seen days later wearing some of the same clothes that you wore committing the offence.

32Although you were both equally responsible for the offence, there are features that distinguish you in terms of parity.  You, Gatlwok, are a young offender, though you have a significant prior history.  You, Jongkuch, are older, but you do not have such an extensive criminal history, and you have not been sentenced to gaol before.  In addition, your period of dead time is significantly more.

33In sentencing you both, I must take into account general deterrence, protection of the community, just punishment and specific deterrence. These are to be balanced against your plea, remorse, time in custody and your specific personal circumstances. Mr Gatlwok, your counsel conceded that I would impose a term of imprisonment, however, submitted I should impose a straight sentence. That is one that does not include a non-parole period. See s.11(1) of the Sentencing Act.  And the power of the court to impose a term of imprisonment of less than two years without fixing a non-parole period.

34Additionally, she did not submit that I should impose a combined disposition involving a term of imprisonment, and a community correction order.  Her primary submission was that given you were planning to go and live with your sister in Darwin after your release, that your rehabilitation would be best fostered by staying out of Victoria.

35Given that you are a young offender, and have previously benefited from residing with your sister, I am, although with some hesitation, prepared to adopt this somewhat unorthodox approach.  I note that the prosecution indicated that a straight sentence was within range.

36Jongkuch, your counsel submitted that having regard to all the relevant sentencing considerations, including the substantial period of dead time, you should be placed on a community correction order to commence almost immediately, having regard to the period of time that you have been in custody for these matters, approximately five months.  The Crown did not dispute that this course was within range of sentencing options available to me.  I had you assessed as to your suitability for a community correction order and I propose to adopt that course with conditions.

37I accept your counsel's submission and in accordance with the principles in Boulton, that the punitive element has been adequately covered by the time spent in custody, I will not require you to do any unpaid community work.  I will make a community correction order in accordance with the terms recommended, including treatment and rehabilitation for drugs, alcohol, mental health and for you also to be supervised by the office of Corrections in Werribee.  I will also require you to attend for judicial monitoring before me so that I can check on your progress.  If you could both please stand. 

38Mr Gatlwok, you are sentenced to a term of important of 23 months. 
Mr Jongkuch, you are sentenced to a term of imprisonment of five months and then to be placed on a community correction order for a period of three years.  Pursuant to that order, you will be required to attend for treatment and rehabilitation in respect of drugs, treatment and rehabilitation in respect alcohol, treatment and rehabilitation in respect of your mental health, treatment and rehabilitation in respect of programs to reduce your offending.  This will all be at the direction and supervision of the office of Corrections.  As I indicated, I will also require you to attend before me for judicial monitoring in three months' time, and I will indicate that date to you at the end of these proceedings. 

39You should be aware, Mr Jongkuch, that if you breach that community corrections order by the commission of other offences, or by failing to comply with the order, you will come back before me and I will be resentencing you in relation to these matters. 

40Pursuant to s.6AAA, I would have imposed sentences on both of you of periods of imprisonment of four years, with a non-parole period of two years if you had not pleaded guilty to this offence.  I want to ensure that it is noted on the record in respect of both of you, that the periods in custody, referable to the matters of which you were acquitted, has been taken into account in determining the sentence to impose on each of you in relation to this matter.

41Applications were made in respect of both of you for samples pursuant to s.464 of the Crimes Act. Neither of you consented to the orders, however, given the seriousness of this offence, and particularly in respect of you Mr Gatlwok, your prior history, I will make both orders in relation to each of you and I would ask the prosecutor to hand those orders up to me, one that allows for
Mr Gatlwok, who is in custody, and Mr Jongkuch who will not be in custody at the end of today's proceedings.  I just want to get an accurate PSD please.

42MR ROPER:  One hundred and fifty seven days, Your Honour.

43HER HONOUR:  One hundred and fifty seven days.

44MR McGRATH:  Yes, Your Honour.

45MR MORTLEY:  Yes, Your Honour.

46MR ROPER:  Exclusive of today.

47HER HONOUR:  Yes, 157 days pre-sentence detention is declared.  Which means for your purposes Mr Jongkuch, that you will be able to be released from custody today, having served the relevant portion in your PSD.

48MR ROPER:  The only matter, Your Honour, for that is confirming the nearest police station with the current residence of Mr Jongkuch.

49MR McGRATH:  If I could just check that, Your Honour?  He's been living at an address in Williams Landing.  I think that's quite close to Werribee, but I'll just ‑ ‑ ‑

50HER HONOUR:  Well there's - Office of Corrections is Werribee I think, so ‑ ‑ ‑

51MR McGRATH:  Yes. 

52HER HONOUR:  ‑ ‑ ‑ that's probably right. 

53MR McGRATH:  Yes, if I could just check, Your Honour?  Werribee will be the closest ‑ ‑ ‑

54HER HONOUR:  Werribee.

55MR McGRATH:  ‑ ‑ ‑ (indistinct words) for the purposes of the 464.

56HER HONOUR:  All right, there's the 464 for Mr Gatlwok.  Mr Gatlwok, you can just sit down for the moment.  Mr Jongkuch, my associate's just preparing the relevant order that you're going to have to sign.  The date of the judicial monitoring, that is the date that you come back before me is Friday 29 July at 9 o'clock, all right?

57MR McGRATH:  May I approach Mr Jongkuch?

58HER HONOUR:  Sure.

59MR McGRATH:  Thank you, Your Honour.  Your Honour, that's been signed.

60HER HONOUR:  Yes, thank you Mr McGrath.

61MR McGRATH:  I'll give it - when Your Honour leaves the Bench, I'll ask that a copy be made for myself and also I'll give a copy to Nelson, his brother.

62HER HONOUR:  Yes, great thank you.

63MR McGRATH:  And just to confirm, Your Honour, the 6AAA, was that four years and two months for both co-accused?

64HER HONOUR:  Four years with a non-parole period of two years.

65MR McGRATH:  Of two years.

66HER HONOUR:  For each co-accused.

67MR McGRATH:  For each co-accused.

68HER HONOUR:  Yes.

69MR McGRATH:  Yes.

70HER HONOUR:  Thank you.

71MR McGRATH:  Your Honour, may Mr Jongkuch be released?  Is it ‑ ‑ ‑

72HER HONOUR:  I think they've got to go through the cells.

73MR McGRATH:  Yes.

74HER HONOUR:  I think that's the way it works.  Thank you.

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