Director of Public Prosecutions v Hothnyang
[2019] VCC 1509
•6 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00654
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MIRAEX HOTHNYANG |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 July 2019 | |
DATE OF SENTENCE: | 6 August 2019 | |
CASE MAY BE CITED AS: | DPP v Hothnyang | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1509 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Plea of guilty following sentence indication - one charge of aggravated burglary - one charge of damaging property - one charge of common assault – no prior criminal history – offender was a former partner of the victim – genuine remorse – but for these offences otherwise of good character – offending an isolated incident caused by the emotional stress of relationship ending - specific deterrence not required in this instance.
Legislation Cited: Crimes Act 1958, Sentencing Act 1991.
Cases Cited: DPP v Barnes [2015] VSCA 293.
Sentence: Community correction order for a period of two years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S Pillai | Office of Public Prosecutions |
| For the Accused | Ms P Smith | May & Monagle |
HIS HONOUR:
Introduction
Miraex Hothnyang, you have pleaded guilty to one charge of aggravated burglary contrary to s 77(1) of the Crimes Act 1958 which carries a maximum penalty of 25 years imprisonment (Charge 1), one charge of damaging property contrary to s 197(1) of the Crimes Act 1958 which carries a maximum penalty of 10 years imprisonment (Charge 2) and one charge of common assault contrary to common law which carries a maximum penalty of 5 years imprisonment (Charge 3).
You have no prior criminal history.
Circumstances of the offending
A prosecution opening was tendered on the plea and may be summarised as follows:
The complainant in this matter Ben Chak aged 27, had been in a relationship with you for approximately six years. The relationship ended in July 2018.
On Sunday 11 November 2018, you had been at a nightclub in South Yarra and had found out that Mr Chak had a new girlfriend. At approximately 1.00am you rang your cousin Nyaluak Luak and asked her to drive you to Mr Chak’s house. There were two other people in the car who were cousins of Ms Luak being a male and female. In the car, you kept saying “I’m going to fight Ben, I’m going to fight Ben today”. At one point you telephoned Mr Chak and when he realised it was you, he hung up. Your cousin and the others in the car tried to calm you down but you would not listen. Ms Luak said that you “seemed alcohol affected but she still seemed to know what she was saying”.
Just before 3.00am, Mr Chak was in his bedroom with his girlfriend having just finished watching a movie, when he was woken up by a loud banging on the front door. You were outside yelling at him to open the door. He told you he was going to call the police. You said that you wanted to see his girlfriend.
Mr Chak went outside and saw your friends in a car parked outside. He tried to take you to them but you would not leave. You tried to force your way past Mr Chak to get into the house. He quickly returned to the house and shut the door.
A few minutes later you jumped the side fence into Mr Chak’s backyard and pulled the flywire screen off a bedroom window.
David Kun, Mr Chak’s house mate, asked you what you were doing. You said “I wanna fight, I wanna fight”. He asked you who you wanted to fight and you did not reply. You were laughing and said “this is fun for me!”
You then approached Mr Chak at the front of the house and tried to push your way into the house. He continually asked you to leave. At this stage the people in the car were also trying to get you to leave. You were verbally abusing Mr Chak and said you were going to hit him.
You entered the house however Mr Chak managed to get you out through the front door. He then ran back inside and closed the front door.
A few minutes later Mr Chak heard a window smash. You had returned and jumped over the neighbour’s fence. You smashed the bedroom window with your high heel shoe causing significant damage to the window. It is these facts that relate to Charge 2, criminal damage.
You then climbed through the window causing you to cut your hands. Mr Kun tried to stop you from coming through the broken window as he was worried that you would cut yourself further. Mr Chak describes there being ‘blood everywhere’. It is these facts that relate to Charge 1, aggravated burglary.
Once you had entered the house, you walked towards the kitchen and approached Mr Chak’s girlfriend Ruby Goch, who was sitting at the kitchen table and began to verbally abuse her. Mr Chak said the situation became heated and he thought you were going to hurt Ms Goch so he stood between you both. As soon as he became involved you started to attack him.
You punched and slapped Mr Chak in the head. He tried to push you towards the front of the house and says that you kicked him ‘in the balls’. You continued to kick him. He told you to calm down and wait for the police. You calmed down and went outside. After approximately 10 minutes you came back inside and sat down on the lounge. A few minutes later you began abusing Ms Goch again. When Mr Chak stood between you, you started hitting him again.
Mr Chak called 000 and reported that his ex-girlfriend had broken into his house and was attacking him and his friends. He said he had been assaulted. He noted that you were injured and asked repeatedly for an ambulance to attend.
While Mr Chak spoke to police you were hitting him and kicking him and knocked the phone out of his hand. You were screaming insults at Mr Chak and said, “I’m going to beat you and I’m going to beat her too”. You tried to attack Ms Goch who moved away from you. Mr Chak and Mr Kun stopped you from attacking Ms Goch. It is these facts that relate to charge 3, common assault.
Police attended and heard you yell “I’m good, I’m good, I’ll fight you”. Senior Constable Emily Stephens approached you and was leading you out of the laundry when you pulled away from her and slapped
Mr Chak in the face. You continued to yell abuse.You calmed down and were informed that police would be putting an intervention order in place. You started yelling again and said “I want to fight him. I want to bash him. I’m going to go in there and bash him”.
Senior Constable Stephens described you as being intoxicated and unsteady on your feet. You were described by police as being cooperative but very obnoxious. A Family Violence Safety Notice was served on you as a result of the offending behaviour.
You were arrested for aggravated burglary and transported to the Narre Warren Police Station. On Sunday 11 November 2018 you were interviewed. You made full admissions during the interview.
When asked what the purpose was of attending Mr Chak’s house in the early hours of the morning, you said “Well someone told me some news and I wanted to see if it was true”. When asked why you wanted to get inside the house so badly you said “Oh, yeah, I think I was feeling rage - like, not rage, I was just, like, wow, O.K. I was hurt.”
Nature and gravity of the offending
Aggravated burglary is recognised by Parliament as a serious offence which is reflected in the maximum penalty of 25 years imprisonment. However aggravated burglary offences are committed in a wide range of circumstances and as has been recognised by the Court of Appeal, it is hard to imagine an aggravated burglary ever attracting a sentence near its maximum penalty, given the available maximum penalties attached to serious offences that may be committed after entry.[1]
[1]DPP v Barnes [2015] VSCA 293 at [46] per Croucher AJA.
Here it has been accepted by the prosecution that the circumstances of this example of aggravated burglary must fall towards the lower level. In this case the prosecution consented to a sentencing indication. Further, as a result of the outcome of that hearing, a plea was conducted where the prosecution did not disagree that a non custodial disposition was within range.
This offending did however have some disturbing aspects to it. You clearly were not wanted at your ex-partners house and he ultimately forced you out. Intoxicated, upset and unperturbed you persisted in letting him and his new girlfriend know how you felt. You smashed a window and entered the house. In doing so, you injured your hand.
You then struck or slapped Mr Chak a number of times however taking into account the description of the assault, together with the absence of any medical or other evidence of injury to Mr Chak, I also view the common assault charge as a low level example.
That said, despite the long history you had with Mr Chak, your relationship had ended and he was entitled to move on with his life without you invading his home and assaulting him. I note however that Mr Chak showed concern for your welfare at the time you entered the house and asked for an ambulance as you had cut your hand and were bleeding.
Personal circumstances
You are 24 years of age. You were born in South Sudan and are one of four children. You father was killed in the civil war in Sudan when you were four years of age.
You migrated to Australia in 2003 and settled in Frankston. Your mother re partnered, and her new partner became a father figure to you. Your mother had two further children with her new partner. Your family remain as a large close knit family and you continue to live in the family home with your siblings and step siblings.
As the second eldest child you also have responsibilities within the family and you continue to assist your parents financially.
You attended the local primary school and completed your VCE at Carrum Downs Secondary College after only learning to speak English through your primary years.
You were actively involved in school sports and excelled as a track runner. You also worked part time throughout your high school years. Following school you commenced a Bachelor Degree in Nursing and Pathology at Deakin University, however you did not continue that course, going back to work in order to assist your family financially.
You worked as an Aged Care Assistant at Bupa aged care for approximately five years before leaving in June this year. While you were still working at Bupa, you were also working casually at a Spotlight store to supplement your income and you continue in that position.
Your relationship with Mr Chak was your first and most serious relationship which lasted for approximately six years. Following the end of that relationship in July 2018 you maintained contact with Mr Chak and continued to have a sexual relationship with him until October 2018, the last contact being approximately two weeks before the incident.
The breakup was initiated by Mr Chak and you clearly had difficulty in accepting that the relationship was over. You were experiencing a break up for the first time and you reacted in the context of also having consumed a significant amount of alcohol.
A report was prepared by from David Ball, forensic psychologist and tendered on the plea. Mr Ball assessed you and noted the following:
My view is that her offending occurred in the context of immaturity, inability to navigate a relationship in the context of the Melbourne night club scene and being affected by alcohol on the night of the offending. On her account, there was also a lack of clear relationship boundaries in the context of the ‘break up’ and her own wishful thinking that the relationship could be salvaged.
Further, Mr Ball concluded that your ability to be managed in the community ‘presents with few if any challenges’ and he did not consider that any psychological or psychiatric intervention is necessary.
Following the incident you arranged counselling sessions. Tendered on the plea was a counselling record confirming the six counselling sessions you undertook through Benestar, an organisation that provided counselling through your employer, Bupa.
Also tendered on the plea were references from family, friends and a priest from the Anglian Church you are associated with. They all speak with a united voice as to your otherwise good character and your strong family ties.
Sentencing considerations
I take into account your plea of guilty which was entered following the sentencing indication on 2 May 2019. While the plea was entered after a committal it still demonstrates your acceptance of responsibility for your conduct. Your plea has also saved the cost and time of a trial and has avoided the need for the witnesses to give evidence.
Ms Smith who appeared on your behalf submitted that over and above your plea of guilty you have expressed genuine remorse. You made full admissions to the police and the character references also speak of your remorse and your acceptance of your mistake on this occasion. I also accept that for a person with no prior convictions and who is otherwise of good character, the two days you spent in custody following your arrest had a significant salutary effect on you.
I accept that you have taken the matter seriously. You engaged in counselling and you now have insight into your offending behaviour and you have moved on. It is for these reasons that Mr Ball is of the view that you do not require any further assistance by way of counselling.
As to you prospects of rehabilitation, it is self evident that this circumstance was an isolated incident that occurred in the context of you been very emotionally upset over the breakup of your first long term relationship. I note that you conveyed to your psychologist that you have ‘leant your lesson’ further confirming your insight in relation to the incident and the reasons behind your reaction. In all the circumstances in my view your prospects of rehabilitation are very strong.
I also note that you are a relatively young person and that your immaturity played a part in the offending. Your relative youth together with the fact that you have no prior convictions is therefore a sentencing consideration that is relevant and in my view should carry weight in the sentencing equation.
Ms Pillai who appeared on behalf of the Director of Public Prosecutions, highlighted the principles that underpin the seriousness of aggravated burglaries and noted that general deterrence is the paramount sentencing consideration. It was also submitted that specific deterrence should be given some weight however in my view for the reasons noted above in relation to your insight, lack of prior history and your excellent prospects of rehabilitation, specific deterrence is not required in this instance.
I do accept however that just punishment and denunciation of your conduct are relevant considerations.
I had you assessed for a community correction order and you have been addressed as suitable and as being a low risk of reoffending. I also note the comments of the assessor who formed a similar view to that of Mr Ball that you would not benefit from any further mental health treatment. The writer noted further that such a view is supported by evidence based practice, that minimising interventions is an effective way of maintaining a person’s low risk of recidivism.
Sentence
Ms Hothnyang please stand.
Miraex Hothnyang on Charges 1, 2 and 3 you will be convicted on each change and placed on a community correction order for a period of two years.
In addition to the core conditions of the community correction order, you will be required to undertake 150 hours of unpaid community work over the period of the order.
Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, I would have sentenced you to a combined order involving a term of imprisonment followed by a more onerous community correction order.