Director of Public Prosecutions v Khat
[2024] VCC 1000
•3 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01901
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HANNAH KHAT |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 January 2024 | |
DATE OF SENTENCE: | 3 July 2024 | |
CASE MAY BE CITED AS: | DPP v Khat | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1000 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Causing injury intentionally – carjacking – handling stolen goods – category 2 offence – youth – deferral – repeated bail breaches – lack of engagement on deferral – plea of guilty
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Azzopardi v The Queen (2011) 35 VR 43
Sentence: Term of imprisonment of 202 days served by way of pre-sentence detention combined with a Community Correction Order for a period of 2 years 175 hours unpaid community work
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Hannan | Office of Public Prosecutions |
| For the Accused | Mr R. Backwell | Greg Thomas Barrister & Solicitor |
HER HONOUR:
1Hannah Khat on 21 December 2023 you were arraigned on indictment P10399780. You pleaded guilty to one charge of causing injury intentionally, one charge of carjacking and one charge of handling stolen goods. In addition, you consented to this court dealing with two summary related offences of committing an indictable offence whilst on bail and you pleaded guilty to those charges as well.
2Your matter was adjourned for a plea before me on 23 January 2024. Your plea having been entered I ordered pre-sentence reports from Community Corrections, Youth Justice and also MHARS, which is Mental Health Assessment Service at the court. I also had a report from Court Integrated Services Program (CISP) as to your suitability for bail on the CISP program.
Circumstances of offending
3The circumstances of your offending are set out in the Prosecution Opening for Plea dated 15 January 2024. This document was tendered on the plea and what now follows is a summary.
4At the time of the offending, you were 18 years old and you lived in Pakenham.
5On 10 February 2023, the victims, Alice McQueen (aged 20) and Shartayia Douglas (aged 21), drove Ms McQueen’s car, a black holden Cruze from Adelaide to Melbourne. The purpose of their trip was to visit males known to them through social media as “GUAPY” (Tietdong Chuol) and “JAZER” (Mana Jikany Gony).
6At approximately 6 am on 15 February 2023, Ms McQueen and Ms Douglas drove to pick up Gony and Chuol. At approximately 9:30 pm, Chuol received a call. You then spoke to Ms Douglas and Ms McQueen about a phone that was alleged to have been stolen. A short time later you told them you had the wrong people and had made a mistake.
7Shortly after Chuol said he wanted to go to the park near Casey Central Shopping Centre to get his brother’s hat from a friend. Chuol drove Ms McQueen’s car containing Ms McQueen, Ms Douglas and Gony to Casey Central Park and parked the vehicle in Hayley Way, Narre Warren South.
8The interaction between yourself and your co-accused and the victims was captured by CCTV from Hayley Way, Narre Warren South. The footage depicts the following:
(a) At 10.14 pm, Ms McQueen’s vehicle arrives at Hayley Way and you approach the vehicle;
(b) At 10.15 pm, you walk to the front driver’s door and hug Chuol who exits the driver’s seat. You then move to the passenger side of the car and hug Gony, who exits the rear passenger seat.
(c) Ms McQueen moves to the driver’s seat of her car and wants to leave the area. You speak with Ms Douglas who is sitting in the rear middle seat of the car.
(d) Chuol and Gony walk down Hayley Way to greet the group of approximately 10 people standing on the road, including co-accused Nyanthel Jock and Estella Michael. Jock and unknown female 1, walked to the driver’s door of the car and they speak to Ms McQueen.
(e) At 10.16 pm, Jock walked around the back of the car to the rear passenger door and spoke to Ms Douglas. Michael, Chuol and an unknown female 2 walked to the driver’s door of the car and speak to Ms McQueen.
(f) At 10.17 pm, you and Jock join the other people at the driver’s door of the car. The unknown female 2 tapped Chuol on the shoulder and then pointed to a CCTV camera on Hayley Way.
(g) At 10:18 pm, Michael pulled you and Chuol away from McQueen in the driver’s seat and pointed to the CCTV camera on Hayley Way. You threw your hands up in the air and returned to the driver’s side door of the car. The unknown female 2 pointed down Hayley Way towards Golden Grove Drive.
(h) Ms McQueen was repeatedly asked by the females to move her vehicle from Hayley Way. You ran around the front of the vehicle and got into the front passenger seat.
(i) Chuol got in the rear passenger seat, and Jock got in the rear driver’s side door. All other males and females on the street walked towards Golden Grove Drive. Jock again asked McQueen to move her car.
(j) Ms McQueen believed that the female who got into the front passenger seat of her car was you, as this person spoke about the “stolen phone”.
(k) At 10:19 pm, Michael and another co-accused, Renee White returned to Hayley Way and walked to where you were in the front passenger seat.
(l) At 10:20 pm, Ms McQueen drove her vehicle with you, Jock and Chuol as passengers. She drove down Hayley Way and turned left and parked outside No.53 Golden Grove Drive.
(m) Michael, White and all other males and females in the street walked towards the vehicle on Golden Grove Drive.
(n) Ms Douglas moved to the front passenger seat when you and Chuol got out.
(o) Jock remained in the backseat of the vehicle and refused to leave.
(p) The females tried to get Ms McQueen and Ms Douglas out of the vehicle. They asked them to come and drink with them in the park.
(q) At 10:32 pm, a large group of males and females can be seen standing in a group in Casey Central Park nearby to the intersection of Hayley Way and Golden Grove Drive.
(r) Kuan and approximately two other unknown females arrive to join them.
(s) At 10:35 pm, all males and females walked back towards the vehicle parked in Golden Grove Drive.
(t) At approximately 10:37 pm, the front passenger door of the vehicle opened, and Ms Douglas was dragged from the vehicle by several females.
(u) At the same time, Jock, who was seated directly behind Ms McQueen grabbed Ms McQueen’s hair and hit her in the face, from around the seat.
(v) The driver’s door then opened and Ms McQueen was dragged from the vehicle.
(w) Ms McQueen was then assaulted, being punched, and kicked whilst she was on the ground. The assault caused her to lose consciousness.
(x) Ms McQueen said she heard male voices yell “Get out of the fucking car!”
(y) Ms Douglas was kicked, punched, and stomped on to the head, face, and body.
(z) You, together with White and unknown females 1 and 2 assaulted Ms Douglas. Kuan recorded part of the incident on his mobile phone.
9After Ms Douglas and Ms McQueen were dragged from the car and assaulted, an unknown offender stole Ms McQueen’s car. Michael and other unknown persons were in the car at the time.
10As a consequence of the assault Ms Douglas suffered abrasions to the right side of her face, severe abrasions and bruising to her left elbow, upper arms, shoulders, back and both knees, tenderness to her left patella, lacerations from where her earrings were ripped from her ears, a swollen right index finger, a nasal fracture and displacement of the right nasal bone.
11You were arrested at your home on 22 February 2023. A search warrant was executed, and police seized your iPhone XS Max with a pink case and a Commonwealth Bank Card in the name of Bradley Benson. Enquiries made into the Commonwealth Bank Cards confirm that the Commonwealth Bank Card in the name of Bradley Benson was stolen.
12You were later interviewed by police and made no admissions to the offending.
Nature and gravity of offending
13In sentencing you I must make an assessment of the objective gravity of your offending. The starting point for such an assessment is the maximum penalty prescribed by Parliament for each offence. Carjacking and handling stolen goods are punishable by a maximum penalty of 15 years' imprisonment and intentionally cause injury is punishable by a maximum of 10 years' imprisonment.
14In addition, Parliament has designated carjacking as a category 2 offence. Section 5(2H) of the Sentencing Act1991 provides that the court must impose a custodial sentence (other than a term of imprisonment in combination with a community correction order), unless at least one of the circumstances set out in sub-ss(a) to (e) can be established.[1] The consequence of this categorisation reflects Parliament's very real concern that taking a person’s car upon demand of violence is a very serious offence that must be appropriately punished.
[1] Section 5(2H) Sentencing Act 1991 (Vic).
15Ms Khat your offending occurred at night. Your victims were two vulnerable young women who were far outnumbered by yourself and your group of co-offenders. Your offending was captured on CCTV and was sickening to watch. You and your group punched and kicked Ms Douglas while she was cowering and defenceless. You should be thoroughly ashamed of your cowardly and deplorable behaviour.
16
You and your group caused Ms Douglas considerable injury and no doubt both
Ms McQueen and Ms Douglas were extremely traumatised by the attack upon them. I consider your offending to be very serious.
Personal circumstances
17You have recently turned 20 years old. You are the third child born to your father, Mun Khat, and your mother, Mary Chol. You have an older brother and sister and a younger brother and sister.
18Your family came to Australia from South Sudan in 2000. Your older brother was an infant and he did not arrive in Australia until 2001. Your older sister, yourself and the rest of your siblings were born in Australia.
19At the time of your birth your family were living in Colac. Sometime after your family moved to Geelong, and then Cranbourne, where you lived for 10 years. In 2017, your family moved to Pakenham, and you also lived in Alice Springs from 2019 to 2021.
20There has been a history of violence within your family home from your father towards your mother. Your father did not live with the family in Victoria, but he did come to Alice Springs and has opted to remain there. You have limited contact with your father although you have expressed a desire to move to Alice Springs as you enjoyed it there when you were a child.
21There have been considerable difficulties for you within your family home. You have not always enjoyed good relationships with your mother and brother in particular. However, in more recent times I understand that these relationships have improved. Your mother has been at court on at least two occasions and appears to remain supportive of you and I see that she is present again in court today.
22In terms of schooling, you completed part of Year 12 at Heritage Christian College. You did not complete the year because of distraction with the problems you encountered at home. You have completed a Certificate 1 in Business Management at Charles Darwin University in Alice Springs. You have a white card and have undertaken a warehousing course.
23In the past you have been employed at McDonalds, Hungry Jacks, the Good Guys and as a cleaner. You also worked in after-school care for 12 months whilst you were in Alice Springs. Most recently whilst on the deferral of sentence you had some casual employment at a warehouse.
24In the lead up to your offending you had been consuming a considerable amount of alcohol. At one stage you were drinking on average a bottle of vodka each day.
25
A psychological report authored by Gina Cidoni, was tendered on your plea.
Ms Cidoni conducted psychological testing which indicated:
“the presence of borderline personality traits that were characterised by instability in self-image, relationships and mood. This instability [she said] leads to intense and rapidly shifting emotions which can make maintaining stable relationships challenging and result in impulsive behaviours. [You] also exhibit unstable mood states, involving mood fluctuations that encompass periods of intense sadness, irritability or elevated mood. These mood swings can disrupt [your] emotional stability and [your] ability to cope with everyday stressors.”
26Ms Cidoni was of the view that the presence of symptoms related to post traumatic stress disorder were suggestive of significant trauma in your life. Your symptoms included intrusive thoughts, nightmares, flash backs and heightened arousal. Your heavy alcohol use was a means of coping with these difficult emotions and symptoms. Heavy alcohol consumption however can have the effect of exacerbating mental health issues, impairing judgement and also decision making.
27It was the view of Ms Cidoni that you required counselling and support to address the underlying issues that contribute to your non-compliance and instability.
Procedural history
28
The date of the offending before the court was 15 February 2023. You were arrested and remanded in custody one week later on 22 February 2023. During your time on remand you were held at the Dame Phyllis Frost Centre, which is a gaol for adult females. You remained in custody on remand until 31 May 2023 when you were released on bail with strict conditions. The major condition was that you comply with Youth Justice. Your time on bail was marked by extensive
non-compliance and repeated breach of bail conditions.
29During your time on bail you did comply with alcohol counselling with YSAS. You attended six face to face appointments with your YSAS worker and had multiple phone communications. You were referred for mental health assessment given you past history of trauma and untreated mental health diagnoses of grief and loss. You were referred to Headspace but did not receive support from that organisation.
30In addition, you engaged with Pivot. Pivot are a youth crime prevention program that supports young people between 10 and 23 years who have repeated contact with the justice system as serious or recidivist offenders. Pivot helps young people learn new skills, reconnect with education, build relationships and generate meaningful connections within the community.
31On 12 October 2023 you were arrested for breach of bail, your bail was revoked and you were returned to custody. Pivot continued to see you whilst you were in custody in the latter half of 2023.
32Whilst at the Dame Phyllis Frost Centre you engaged in several programs and completed a variety of educational components. These programs included Family friends and community, Healthy relationships, Take Stock A, and Adapt. You obtained your white card and completed certificates in supply chain operations, hygienic practices for food safety, traffic control, workplace safety, and as a barista.
33On 21 December 2023 you pleaded guilty to the charges and I requested a pre-sentence report to assess your suitability for Youth Justice Detention and also a community correction order. You did not consent to either assessment and were assessed as unsuitable for both dispositions. You remained in custody until 24 January 2024. At this time, you were released on CISP bail upon a deferral of sentence.
34Your time on the deferral of sentence was very similar to your time on Youth Justice Bail. You did not attend your first CISP court review. You were described as apathetic and unwilling to participate in goal setting. You would not take public transport due to social anxiety and you had no phone. Initially you had stayed in emergency accommodation, but you moved back home to your mother’s and were described to be coming and going from home. Further, the informant had advised that you were present at an offender's home in breach of bail at the time a warrant was executed at that address.
35Notwithstanding these issues I adjourned the deferral review and you attended court on 1 March 2024. You reassured the court that you would comply with CISP. You advised that you had seen Pivot, had been referred to Wise women’s employment agency, had gone to Centrelink and were not consuming drugs or alcohol. I adjourned the deferral for further review on 11 April 2024.
36On this date you arrived at court an hour late and you were unapologetic, at least to begin with. You had not complied with CISP. Although you had obtained work, remained abstinent from alcohol, remained in stable accommodation, and had linked in with a GP. I was informed by your CISP worker that she considered you to be in the action stage of change but pre-contemplative about CISP. I varied your bail by removing CISP as a condition and added compliance with Pivot instead. I adjourned the deferral for a further review on 16 May 2024.
37This review hearing was conducted online. You had a swollen jaw, you had lost your job, were waiting on Centrelink, and had kept limited contact with Pivot. A letter from Pivot described your engagement as not consistent enough, although it was confirmed that you had attended an appointment with Asuria, which was an employment agency, you had got set up Centrelink, you had booked in for a forklift licence training and had attended Vic Roads with a view to converting your Northern Territory Learner’s Permit to a Victorian Learner’s Permit. In the circumstances I requested an extended pre-sentence report from Corrections to explore sentencing options.
38When your matter returned to court a couple of days ago on 1 July 2024 it was apparent that you had kept one of the four appointments made with Corrections for the extended pre-sentence report. You advised the assessor you would not consent to such an order and thwarted any attempt made by the assessor to discuss the offending or any of your personal history. In addition, Corrections detailed that you had been spoken to by police in relation to allegations of affray.
39Your counsel Mr Backwell submitted that you had indicated you would consent to a work order only community correction order as you were not ready to deal with the issues impacting your mental health.
40I take into account the efforts that you have made upon the deferral. On my assessment you have not performed well but you have made some efforts and you attended court on all but one occasion. You have demonstrated that you have the capacity to comply with programs that are of interest to you. Further, a letter from Pivot indicated that your relationships at home had improved and this was evidenced by the fact that your mother and other family members attended court to support you.
41In terms of matters in mitigation I take into account your plea of guilty. This was entered after a contested committal and after significant negotiations to resolve the charges. Your plea has utilitarian value as a trial was avoided as was the cross examination of the witnesses at trial. I accept that there is a degree of acceptance of responsibility for your offending and some remorse evidenced by your plea. I intend to allow a significant discount for your plea of guilty.
Youth
42The most compelling mitigating factor in your favour is your youth. You were only 18 years old at the time of your offending. You are now 20 years of age at the time of sentence. You fall to be sentenced as a 'young offender' pursuant to s3 of the Sentencing Act.[2]
[2] Section 3 Sentencing Act 1991 (Vic).
43The Court of Appeal in Azzopardi v The Queen summarised the three considerations which underlie the general primacy afforded to an offender's youth as a sentencing consideration:[3]
Firstly, young offenders are often more prone to impulsive and ill‑considered decision making. They may lack the insight and self-control of adults and may not fully appreciate the nature, seriousness and consequences of their criminal conduct.
Secondly, that courts recognise the potential for rehabilitation in young people because they are at an earlier stage in their mental and emotional development. They therefore may be more open to positive change than adults with entrenched anti-social behaviours. Further, the community has an interest in such rehabilitation as in the long term it is protective from the impacts of future offending.
Thirdly, the incarceration of young offenders is more likely to hinder rather than improve their prospects of rehabilitation. Young people in custody are likely to be exposed to corrupting influences which can entrench criminal and anti-social tendencies. These effects have detrimental flow-on consequences in the community.
[3] Azzopardi v The Queen (2011) 35 VR 43 [34] - [36].
44In situations of particularly grave offending or offender characteristics, considerations relating to youth may give way to varying degrees to considerations such as general and specific deterrence. Though your offending is serious offending, I do not consider yours to be such a case where I am required to significantly displace youth in favour of other factors. This is in light of your lack of prior history, your psychological presentation and the circumstances of this particular offending.
Rehabilitation
45Your performance on Youth Justice Bail and the deferral of sentence leave big question marks about your ability to rehabilitate. Given your very young age I consider that you must be given every incentive and opportunity to reform. I am encouraged by the fact that there has been some limited compliance during your journey through the gaol and court system. Your prospects for rehabilitation are far from extinguished.
Sentencing principles
46The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.
47In my view given your youth, psychological functioning, and your background circumstances, general deterrence must give way to the promotion of your rehabilitation. I consider that specific deterrence should be given limited weight in the sentencing synthesis given your lack of prior history, your experience of arrest, and the time you have spent in custody. I consider that to return you to custody would be a retrograde step that would not be in anyone's interests given your youth and your potential.
48I take into account the sentencing guidelines referred to in s5 of the Sentencing Act,[4] where relevant in your case. In particular, I have had regard to the sentencing landscape for the offending before me, particularly the offence of carjacking. Ultimately the sentencing exercise requires that I balance all relevant factors and make a judgment as to the appropriate sentence in the circumstances of your particular case.
[4] Section 5 Sentencing Act 1991 (Vic).
49The principles of totality, proportionality and parsimony are also important considerations. They require me to make sure the total sentence is appropriate for the total criminality. I have taken these principles into account in fixing the sentence I will now impose.
Category 2 offending
50Your counsel did not advance any special reason with respect to the offence of carjacking and in the circumstances, I must impose a term of imprisonment for that offence.
Disposition
51In my view the appropriate sentence in relation to the other offences before the court is the imposition of a work order only community correction order.
52Ms Khat, you are convicted in relation to each of the charges. In relation to the charge of carjacking you are sentenced to be imprisoned for a period of 202 days. I reckon that you have served 202 days by way of pre-sentence detention.
53In relation to the remaining charges of intentionally cause injury, handling stolen goods and two summary related offences of commit indictable offence whilst on bail you are placed on a community correction order for a period of 2 years. The only condition of this order is that you perform 175 hours of unpaid community work over the two year period.
54In addition to the community work condition that I have imposed, there are standard conditions you must comply with. First and foremost, you must not commit an offence punishable by imprisonment over the next two years or the currency of the order. If you do you will breach the order. If you do breach the order, you will be brought back before the court, to me, and I will likely have to re‑sentence you. That could involve a sentence of imprisonment.
55I will just pause for a moment to add this. Because the only condition I intend to impose on the community corrections order is the work order, the community work, upon satisfaction of that work the order will lapse. So although I have set the order for two years, if you were to complete the work which is 175 hours within say six months or 12 months, then the order would be finished.
56You need to report within two working days to your nearest Corrections office and that is Pakenham Community Correction Service, so by this Friday 5 July, 2024, so this Friday before 2 pm.
57There are standard conditions that apply, so I need to go through those with you. So you are required to advise your supervising Corrections Office of any change of address where you are living or working within two clear working days. So if you move from home or if you get a new job, you need to let them know. It is a term of all community correction orders that you must submit to visits as directed and obey the instructions and directions of the Community Corrections and you cannot leave the State of Victoria without prior permission.
58I can only place you on a community correction order if you agree – so firstly, do you understand what is involved?
59Do you consent? Do you agree to doing the order?
60All right, so you can have a seat. We will get an order drafted, well I think one has been drafted up, we will get you to sign that.
61Pursuant to s6AAA of the Sentencing Act,[5] but for your plea of guilty, so if you had not pleaded guilty and if you had run a trial and lost, the sentence I would have imposed is 15 months gaol with an eight month non-parole period.
[5] Section 6AAASentencing Act 1991 (Vic).
62Are there any ancillary orders or anything further?
63MR HANNAN: No.
64MR BACKWELL: May I approach the dock?
65HER HONOUR: Yes, thanks Mr Backwell. So I have signed the order. Hopefully Ms Khat, I don't see you back. I hope that you comply with the order and that things sort of work out in the future.
66Thanks very much to the parties.
67COUNSEL: Your Honour please.
68HER HONOUR: I'll adjourn the court.
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