Director of Public Prosecutions v Gorjok

[2023] VCC 961

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-00508

DIRECTOR OF PUBLIC PROSECUTIONS

v

BOL GORJOK

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JUDGE:	HER HONOUR JUDGE BLAIR
WHERE HELD:	Melbourne
DATE OF HEARING:	29 -31 May, 1 June 2023 (Trial) 5 June 2023 (Plea)
DATE OF SENTENCE:	5 June 2023
CASE MAY BE CITED AS:	DPP v Gorjok
MEDIUM NEUTRAL CITATION:	[2023] VCC 961

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentence

Catchwords:              Common law assault – guilty after criminal trial – limited prior history – good character – neighbour dispute – refugee background

Legislation Cited:      

Cases Cited:

Sentence:                  6-month adjourned undertaking

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J. O’Toole	Office of Public Prosecutions
For the Accused	Ms A. Wong	Victoria Legal Aid

HER HONOUR:

1Bol Gorjok, following a four day trial, the jury found you guilty by majority verdict of one charge of common law assault, and that was on last Thursday, 1 June 2023.  The maximum penalty for that offence is five years imprisonment.

2You were acquitted of aggravated burglary, criminal damage and a charge of threat to kill. 

Factual basis for sentencing

3It was clear that for some reason on 17 November 2021, you were agitated and upset.  It would appear that you thought Mr Lester had called the police and complained about you at an earlier time. 

4Mr Toy gave evidence that he had in fact called the police two to three weeks earlier as a result of loud music being played by you.  As a result there was some disagreement or ill feeling within the block of units.  You took it upon yourself to confront Mr Lester. In my view the jury accepted only part of Mr Lester's evidence.

5In circumstances where you were acquitted of the aggravated burglary, I could not find beyond reasonable doubt that Mr Lester was inside his unit at the time you assaulted him.  I do find however, that he was very close to his front door. He is entitled to feel safe in his home and he did not need for you to come and banging on the door, ranting and raving and confronting him.

6So I find that the assault took place right near his front door and I consider that to be an aggravating feature because, as I say, he is entitled to feel safe at his home.  I take into account your physical actions giving rise to the assault charge, were that you tried to punch him two to three times but he was able to block your punches and that then you kicked him in the leg. This kick made contact with his knee and it caused him some pain, although he did not get medical treatment.

7Mr Lester was able to push you over and push you away from the door, shut the door and lock you out. The police came and you were arrested. I was told, you spent a day in custody before you were able to get bail.

Nature and gravity of offending

8Your offending is serious because it involves aggressive contact with another person and it has happened at or very close to his home.  Fortunately, Mr Lester was not hurt seriously.  He experienced some pain but that seems to have resolved.

9This is a matter that, ordinarily would have been dealt with in the Magistrates' Court but for the more serious offending of which you have been acquitted.  I take into account that you have spent a day in custody, presumably in the police cells, and no doubt that would have been difficult. 

Matters in mitigation

10I also take into account the delay in this matter.  It has been hanging over your head for about 18 months. Such a delay can be taken into account in two ways. 

11Firstly, I can take it into account the fact that it has been hanging over your head and you have been living with the worry and uncertainty of what the outcome was going to be.  A finding of guilt on a charge of aggravated burglary could have had a very different outcome and could have seen you in custody for some time. No doubt that has been something you have worried about over the time.

12The other way that delay can be taken into account is in relation to rehabilitation. I accept that you have not engaged in subsequent offending in circumstances where an intervention order was in place and where you continued to live in close proximity to the victim of this matter. There was no breach of that intervention order and that, in my view, bodes well for your rehabilitation.

Personal Background

13Otherwise, you have a very limited prior history.  In particular, you have no prior history for violence.  I take into account your background. In my view, it is apparent that your behaviour on this day was out of character.  Ordinarily, you are a hardworking and responsible man.  You have worked hard, you have studied.  You have had a very difficult background where you have had to flee your home country, and you sought refuge here in Australia.  

14For a period of time during your teenage years you were separated from your mum and eventually came out here to Australia for a new life. I take all these things into account as well.

Sentence

15In sentencing you, I am of the view, that I must give some limited weight to general deterrence, denunciation and just punishment. In circumstances where you spent the day in custody, you have very little by way of prior history and you have not re-offended for over 18 months, I consider that specific deterrence has very little role to play in the sentencing matrix.

16I also take into account the principles of proportionality, that is the punishment must fit the crime and parsimony, that is I must do no more than is necessary to impose the appropriate punishment on you.

17So when I put all of sentencing factors together, in my view, a s73 dismissal or discharge is not an appropriate penalty.  The order of the court is that you will be convicted and I propose to release you on an adjourned undertaking and I propose the length of this adjourned undertaking will be six months.  So this matter will be hanging over your head for a further six months.

18Are you prepared to make a promise to the court that you will be of good behaviour for the next six months?

19OFFENDER:  Yes.

20HER HONOUR:  Okay, all right.  So we will have a document drafted and I will get you to sign that document which is your promise to the court, that will be the only condition, okay.

21MR O'TOOLE:  If the court pleases.

22HER HONOUR:  If you breach the order, you would get a notice to come back to court.  Thanks very much to counsel for the way that you ran the trial and for all your help that you gave me during the trial, so thanks.

23MR O'TOOLE:  As the court pleases.