Director of Public Prosecutions v Gong

[2016] VCC 828

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00583

DIRECTOR OF PUBLIC PROSECUTIONS

v

ACHIEK GONG

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JUDGE:	HER HONOUR JUDGE CHAMBERS
WHERE HELD:	Melbourne
DATE OF HEARING:	16 June 2016
DATE OF SENTENCE:	16 June 2016
CASE MAY BE CITED AS:	DPP v Gong
MEDIUM NEUTRAL CITATION:	[2016] VCC 828

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S.P. Zebrowski	OPP Victoria
For the Accused	Mr J.P. McQuillan	James Dowsley & Associates Pty Ltd

HER HONOUR: 

1Achiek Gong, you have pleaded guilty to one charge of armed robbery and two related summary offences of failing to answer bail.  The maximum penalty for armed robbery is 25 years' imprisonment.  The maximum penalty for failing to answer bail is two years' imprisonment.

2The offending occurred on 21 June 2009 when you were aged 24 years old.  You are now 31 years old, married with three young children all under the age of five. 

3The reason the matter comes to be heard as a plea in June 2016 is that after attending two committal mentions in late 2009, you failed to appear in Court on 1 March 2010 and again, after a warrant was executed, in April 2012.  I will return to the effect of your failure to appear in court in answer of your bail later in these sentencing comments.

4The facts of this case were opened by Mr Zebrowski, who appears to prosecute, and are contained in the summary of prosecution opening, which is Exhibit A in these plea proceedings. 

5In brief, at around 2.10 am on 21 June 2009, you and your then co-accused,
Mr Deng, approached the victim, who was alone, walking in Main Street, Pakenham.  You demanded money from him.  The victim handed over $1.50 in loose coins from his pocket.  After Mr Deng repeatedly demanded more money, he handed you another $10 in coins, hoping that this would satisfy the two of you.  However, the victim then noticed that you had moved behind him.  He understandably became anxious at this time.  You and Mr Deng both removed the belts from your trousers and began to strike the victim to the back of his neck and to his back and arms.  Mr Deng continued to demand more money from the victim.  Mr Deng's belt buckle fell off at this point, and the victim, trying to defend himself, threw it at you, striking you in the eye.  This act enraged
Mr Deng, who then threatened the victim, saying words to the effect "I'm going to kill you, you white trash, I'll stab you, I'll shoot you."

6At this point you tried to calm Mr Deng, telling him not to hurt the victim.  You backed off when the victim began yelling at you both, but Mr Deng, in turn, warned him not to yell or else he would be stabbed.  At this point, noticing
Mr Deng was carrying a Stanley knife, the victim lunged at him, pushing him off balance.  The knife fell to the ground.  The victim says he saw you pick up his wallet from the road.  The wallet contained $100.  You both swung your belts at the victim again.  He then tried to punch Mr Deng.  You soon began to back off in response to the victim's yelling.  The incident ended when you grabbed
Mr Deng and told him to go.  You then both fled on foot but were subsequently intercepted by police about a kilometre from where the incident occurred. 

7Mr Gong, you were arrested and interviewed, and in your record of interview you made partial admissions to the offending. 

8The offence of armed robbery is a serious one.  This is reflected in a maximum penalty of 25 years' imprisonment under the law.  In this case the victim, who was walking alone and was unknown to you, was approached by you both in the early hours of the morning, threatened with a knife and repeatedly struck with your belt buckles.  Fortunately, it does not appear that he was physically injured as a result of the scuffle that ensued, but understandably reports fearing that he would either be stabbed or worse.  The victim was unable to run from you both that night due to an earlier injury to his foot from which he had been recovering and had been on crutches. 

9Whilst the victim has elected not to make a victim impact statement for the purposes of these plea proceedings, the entire incident was undoubtedly a very frightening experience for him. 

10Mr Gong, you had a limited prior criminal history from South Australia before the offending in 2009.  In July 2008 you were fined $250 for carrying an offensive weapon, a knife, and for using offensive or indecent language and providing false details, for which you were placed on a six month good behaviour bond in September 2008.  Subsequent to the offending in 2009 but being a prior for the offence of failing to answer bail in 2012, you were placed on a two year good behaviour bond in Adelaide in September 2011 for damaging property.

11Apart from those priors and this offending, you have no other history of offending.  You have committed, since this, to a life focused on supporting your relationship with your wife and your young family and have had a notably consistent work history. 

12On your behalf, Mr McQuillan, appearing for you, submitted that your plea of guilty, the fact you played a lesser role in the offending on the night and that your prospects of rehabilitation, particularly as evidenced over the last eight years of stability in supporting your partner and family, means that the gravity of your offending can be appropriately reflected by a combined sentence of imprisonment and a community correction order.

13The submission made to me is that the imprisonment term should reflect that served by way of pre-sentence detention of 61 days. It was acknowledged that a lengthy community correction order would be warranted.

14The prosecution, whilst noting your positive steps towards rehabilitation, submit that this must be weighed against the fact that you have "bought time" by your failure to answer bail on two occasions.  Notwithstanding that, the prosecution does not oppose the combined imprisonment and community correction order as contended for on your behalf. 

15I move now to the matters relevant to your background. 

16Mr Gong, your childhood was one marked by trauma.  You were born in a village in South Sudan.  You are the fifth born of six children.  The civil war in that country had a devastating impact on you and your family.  Tragically, you witnessed your father's murder, you lost many family members, mainly uncles, in that war.  Your early education was disrupted, and disrupted permanently by that war. 

17Ms Carla Lechner, consultant psychologist, who assessed you for this plea on 9 June 2016, describes your teenage years as ones “focused on you just trying to survive."

18At the age of 19, leaving your mother and siblings, you “tried your luck” by escaping with your cousin to Kenya, where you spent two years in a refugee camp.  Ultimately leaving all family behind, other than your cousin, you were sponsored to come to Australia in 2006.  You were then 21 years old. 

19You initially settled in Adelaide but subsequently lived, for various periods, in Melbourne and Brisbane, largely looking for opportunities for employment.  You initially studied English, becoming proficient in that language over time, and have worked in a series of jobs including in meatworks, at a bakery factory, installing air conditioning and, most recently, as a packer at the Savers store.  You hope to become an electrician.  You have sought to improve your prospects of rehabilitation through further education and training, notably having obtained relevant certificates in warehouse operations.  

20I am told by your counsel that you and Mr Deng had been heavily drinking that night; indeed, that around that time you were engaging in binge drinking.  In your record of interview, you say that you had drunk, both of you, a bottle of dry sherry that night.  This, of course, helps to explain your behaviour on the night, but it does not excuse the behaviour.  It does not excuse the offending.  It is, however, relevant to your prospects of rehabilitation, noting that you report having ceased heavy drinking following the birth of your son some five years ago.  Certainly, that report is consistent with the positive steps you have taken towards rehabilitation over the past eight years. 

21I therefore note and give weight to Ms Lechner's assessment that in the absence of any underlying psychological or substance abuse issues, combined with your current focus on family and employment, your prospects of rehabilitation are extremely good - indeed, she uses the word "excellent" - and that your risk of reoffending is low. That your prospects of rehabilitation be facilitated in a continuing way must be seen to be in the interests of the community.

22It is also relevant, and I have given weight to the fact that it was you, during the course of the armed robbery, who attempted to placate your co-accused,
Mr Deng, particularly by telling him not to harm the victim and ultimately grabbing him to leave. 

23I have also had regard to your plea of guilty, which, whilst entered late, has meant that witnesses, particularly the victim, have not been required to attend at court or to give evidence in court.  I accept particularly that, with maturity, the expression of remorse you made to Ms Lechner was genuine. 

24For an offence of armed robbery, even noting the extent of your role in the offending in addition to matters personal to you, there are other relevant sentencing considerations to which I must have regard.  The need for just punishment, general and specific deterrence and denunciation, are all relevant.  In particular, general deterrence is the paramount sentencing consideration.  It is important to deter others from arming themselves or going armed to rob victims, particularly victims who may be seen as “soft targets” out late at night and alone.

25As to your failure to answer bail on two occasions, your counsel rightly conceded that this has resulted in a significant delay in bringing this matter to finalisation. A failure to answer bail undermines the prompt administration of justice and must not be condoned.  Balanced against that, however, is the significant progress you have demonstrated over those years to becoming a contributing member of our community, and that has given credibility to the assessment of your positive prospects of living a productive and stable life without further offending.

26I have also had regard in assessing your prospects of rehabilitation to the fact that, at 24, you were a relatively youthful offender.  You are now, at the age of 31, a family man with dependents, engaged actively in long-term employment and at a very different stage in your life. 

27In my view, for those reasons, a sentence of imprisonment combined with a lengthy community correction order, having regard to the punitive aspects of a community correction order, properly reflects the sentencing considerations to which I have referred in addition to the many mitigating factors made out on your behalf.

28Mr Gong, if you could stand, please.

29On Charge 1, armed robbery, you are convicted and sentenced to 61 days' imprisonment followed by a two year community correction order.

30On the related summary offences of failing to answer bail, being Charges 4 and 5, you are convicted and sentenced to a two year community correction order to be served at the same time as the community correction order ordered on Charge 1. 

31Mr Gong, you have been assessed as suitable for a community correction order and you have consented to that order being made.  The conditions of the community correction order are as follows: 

32You are to complete unpaid community work as directed, being 250 hours of unpaid community work over the life of that order.

33Having regard to Ms Lechner's report, I have still considered it appropriate that you be assessed for mental health treatment, and if assessed as requiring that treatment, you must undertake any treatment program recommended. 

34You have not been assessed as requiring supervision for a community correction order and I have not ordered supervision as a condition of that order. 

35I have declared that you have served 61 days by way of pre-sentence detention. 

36It is important, Mr Gong, that you understand the effect of a community correction order.  You must be of good behaviour for the duration of that order.  If you were to breach that order in any way, then you could be brought back before the court and re-sentenced in relation to these matters.

37Pursuant to s.6AAA of the Sentencing Act, I indicate that I would have imposed an imprisonment term of eight months followed by a two year community correction order had you not pleaded guilty to these offences.

38I also order that you undergo a forensic procedure for the taking of a scraping from the inside of your mouth.  You must cooperate with authorities in the taking of that mouth scraping.  If you do not cooperate, reasonable force may be used to obtain a blood sample from you.  I make this order because of the seriousness of the offending, the making of the order is in the public interest and noting that you have consented to the making of that order.

39Please have a seat, Mr Gong, you will need to sign some documents in court.

40COUNSEL:  As Your Honour pleases.

41HER HONOUR:  Any questions arising from the order I have imposed?

42COUNSEL:  No, Your Honour.

43HER HONOUR:  Thank you.  I will just stand down while paperwork is being done.  I will just be outside.

44(Short adjournment.)

45Thank you. 

46(Community Correction Order signed and acknowledged.)

47I have also signed those orders in the application for the forensic sample.

48MR ZEBROWSKI:  Thank you, Your Honour.

49HER HONOUR:  Mr McQuillan, I would be grateful if you could explain to Mr Gong that he needs to go to, I think, Narre Warren Police Station ‑ ‑ ‑

50MR McQUILLAN:  Yes.

51HER HONOUR:  ‑ ‑ ‑ after the relevant appeal period that is set out in that order.

52MR McQUILLAN:  I've done that already, Your Honour.

53HER HONOUR:  Thank you.  I will also return to my associate the originals of those certificates and we will take copies.

54MR McQUILLAN:  Thank you, Your Honour, yes, I forgot ‑ ‑ ‑

55HER HONOUR:  I thank counsel for their assistance today.

56MR ZEBROWSKI:  If Your Honour pleases.

57MR McQUILLAN:  Thank you, Your Honour.

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