Director of Public Prosecutions v Kir-Deng

[2023] VCC 2068

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-20-01402

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

DENG KIR-DENG

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JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	20 October 2023
DATE OF SENTENCE:	8 November 2023
CASE MAY BE CITED AS:	DPP v Kir-Deng
MEDIUM NEUTRAL CITATION:	[2023] VCC 2068

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:             Armed robbery; commit indictable offence whilst on bail

Legislation Cited:     Crimes Act 1958 (Vic) s 75A(1); Bail Act 1977 (Vic) s 30B

Cases Cited:            R v Verdins (2007) 16 VR 269

Sentence:                 47 days’ imprisonment in combination with a community correction

order of 12 months’ duration

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Gray	Office of Public Prosecutions
For the Accused	Mr F. Ralph	Marshall Jovanovska Ralph Criminal Lawyers

HER HONOUR:

1Deng Kir-Deng, you have pleaded guilty to one charge of armed robbery,[1] an offence which carries a maximum penalty of 25 years' imprisonment and one charge of committing an indictable offence while on bail which carries a maximum penalty of 30 penalty units or three months' imprisonment.[2]

[1]Crimes Act 1958 (Vic) s 75A.

[2]Bail Act 1977 (Vic) s 30B.

2A summary of prosecution opening dated 15 February 2023 forms the factual basis of your plea.  That document is attached to and forms part of these reasons and I will refer to some of the circumstances of your offending in summary form here.

3At approximately 8:00 am on 27 April 2020 Matthew Kindred, who was 19 years old, left his home on a walk.  He was listening to music through his headphones.  As Mr Kindred was walking along Arnolds Creek in Melton he saw you sitting on a park bench in a play area looking at him.  He also noticed that there was a bicycle on the ground near you.  Mr Kindred continued walking and noticed you following him pushing the bicycle.  You caught up with him and asked him for cigarettes.  He told you that he did not smoke and continued walking.

4You kept following Mr Kindred.  You asked to borrow his phone telling him you wanted to message your missus on Snapchat.  Mr Kindred told you he did not have Snapchat and you kept asking for his phone.  He ignored you and continued walking.  To this you said, 'If you keep on running I will fuck you up'.

5Mr Kindred told you that he was walking, not running.  You asked him where he was going and he told you he was going to work at the
Woodgrove Shopping Centre.  You then dropped the bike and grabbed
Mr Kindred by his jumper.  He pushed you away.  You then took out a medium-sized knife from your jacket pocket and signalled to Mr Kindred to follow you into a nearby alleyway where you again asked him for his phone which gives rise to Charge 1, armed robbery.

6He got his phone out from his jumper pocket and gave it to you.  You asked Mr Kindred to unlock the phone and remove his Apple ID.  He did as you asked while you held onto the phone.

7Meanwhile Tyler De Silva arrived.  After speaking with you and shaking your hand Mr De Silva asked Mr Kindred for his wallet and produced a medium-sized knife.  Mr Kindred told Mr De Silva he did not have anything and Mr De Silva started patting down his pockets.  Mr De Silva grabbed Mr Kindred's headphones and pulled them off him.  However, Mr Kindred said they were just $20 headphones and Mr De Silva handed them back.  Mr De Silva also threatened to slit Mr Kindred's throat.  You told Mr Kindred, 'Go to work.  Don't go to the cop shop'.

8Mr Kindred walked away and went to Woodgrove Shopping Centre where he asked someone for assistance.  That person called Mr Kindred's mother and he was collected from the shopping centre by his brother shortly afterwards.

9As Mr Kindred and his brother were driving around the area where the offence occurred Mr Kindred saw you and Mr De Silva standing at the end of a driveway.  His brother called triple 0 and police attended the area to search for the two of you at 9.20 am.

10Mr De Silva was found by police, arrested and taken to Melton police station.  He provided police with your first name and told police that you had the stolen phone.  You were arrested the following day at Woodgrove Shopping Centre just after attempting to sell Mr Kindred's mobile phone at a repair kiosk.  It was later recovered.

11After your arrest you were taken to Melton Police Station where a record of interview was conducted.  During the interview you told police that you had been at your cousin's house and visiting friends' houses on the day of the offending.  You appeared sleep deprived and police subsequently suspended the interview.

12At the time of your offending you had no prior criminal history.  In the period since the offending you have pleaded guilty to offences in the Northern Territory and have served a term of imprisonment there.  Initially you were granted bail on these matters in April 2020 but you breached that bail by travelling to the Northern Territory and being remanded on offending there.  You were sentenced to 12 months' imprisonment there for the charges of recklessly endangering serious harm and related offences.

13When you returned to Melbourne after that sentence you surrendered yourself at a police station by appointment and were re-remanded before being granted new bail in this Court in April 2022.

14Mr Kindred authored a victim impact statement.  He describes being very shaken by what you did.  He became paranoid and anxious and had trouble being in public spaces.  He had to take time off work and to have psychological treatment.  He had to move away from the area for a time.  He had difficulty functioning in normal routines.  I take the effect of what you did to Mr Kindred into account on your sentence.

15Turning now to my assessment of the nature and gravity of your offending.  Parliament has determined that the offence of armed robbery is punishable by 25 years' imprisonment and that potential penalty describes how gravely armed robbery is to be regarded by the Court. 

16Your offending was both menacing and somewhat protracted.  You opportunistically chose your victim as he made his way to work, following him and talking to him prior to your ultimate threat.  You ended by telling him not to contact police, which direction was added to his fearful and no doubt shaken state.

17That said, I also accept your offending was spontaneous and desperate and highly likely to end in your detection.  It was shabby and disorganised but no less frightening for your victim on that account.

18You were on police bail at the time you committed the armed robbery.  This gives rise to the related summary offence.  You committed the armed robbery just eight days after being admitted to police bail on the other offending.

19Turning now to your personal circumstances.  You were 18 years old at the time of the offending and you are now 21.  You were born in Australia as the third eldest of eight siblings.  Your family emigrated from Sudan shortly before your birth where they had endured and survived significant conflict and trauma.  You describe your family as supportive and you continue to live with them.

20At school you recall that violence was normal and was perpetrated both by and against you.  You saw petty crime as just the culture growing up and that everyone was doing it, you said.  You left school after completing Year 12 without an ATAR score but you were more interested in basketball.  You have previously worked as a farm hand.  You are currently unemployed and receive Youth Allowance payments.  You now socialise rarely and spend most of your days at home.  You have not been involved in any intimate relationship and have no children.

21Turning to the matters in mitigation on your sentence.  At any time your plea of guilty would be an important feature in mitigation of your sentence.  Your victim has been spared appearing as a witness at trial.  The community has been spared the expense and human toll of a criminal trial.  This is a very significant matter and reduces the sentence that I will impose.

22Moreover, although court waiting lists are returning to post pandemic normality you indicated your pleas before this position was announced by the
County Court and I apply the Worboyes additional sentencing discount in mitigation of your sentence.

23You had just turned 18 shortly before you committed these offences.  Your youth is a very powerful matter of significance in mitigation of your sentence and I have applied the principles relating to youth to your case.  You were at an age where you had an underdeveloped appreciation of the consequences of what you were doing.  Moreover, as a young person you have more potential for recovery and reintegration and rehabilitation.

24I have already referred to the fact that you had no prior history before you committed these offences.  You have been in trouble in the Northern Territory and I have already referred to the sentence that you served there between the offending in this case and today.  Over three years have elapsed since your commission of these offences and some of that time was spent in custody in the Northern Territory and I take that into account as part of the principle of totality.

25You have participated in the CISP program since your admission to bail on 22 April 2022.  This is a big matter of significance on this sentence.  You have regularly, in this period, appealed for bail reviews before me and I have been much assisted by the CISP reports and the work that those people have been doing during this time.  The details of your engagement with those services has been brought to my attention consistently.

26You have periodically had the support of your father and your mother in Court with you on those occasions.  Your progress on CISP and engagement with mental health and drug treatment has been both enduring and flawed but you have always remained engaged.  You have had one attempt at residential detoxification previously and you are currently undertaking another.  You have been engaged with your area mental health service but the border between your drug and alcohol problems and your organic mental illness has been imprecise. 

27You have been very consistent in coming to Court and disclosing the things that have been troubling you.  You have sometimes expressed insight into what you need to do in accepting mental health treatment and not complicating your diagnosis with alcohol and drugs.  At other times you appear to be labouring under ideas that are perhaps symptoms of your illness.

28Your case was significantly delayed through no fault of yours but because there was difficulty in securing an appointment for a full psychiatric assessment and diagnosis.  Ultimately, a report authored by Dr Rakov was tendered on your plea.  In that report Dr Rakov, who examined you on 25 August 2023, stated that you have a diagnosis of schizophrenia which makes you unwell and which, in her opinion, has been inadequately treated.

29In Dr Rakov's opinion, although it does not appear you were labouring under specific delusions at the time of the offending, your condition can contribute to poor judgement in general.  She describes the treatment administered so far as being insufficient.  She advocates for your re-engagement with your area mental health service and writes that your psychiatric condition has been overlaid with drug and alcohol use which is problematic both in itself, she writes, but also because it stands in the way of treatment and rehabilitation for your mental illness.

30I accept that your mental illness, schizophrenia, reduces your moral culpability to a degree consistent with limb 1 of the case of Verdins,[3] in that you were suffering the symptoms of a serious mental illness which contributed to poor judgement in general at the time.  I do not overlook that this mental illness was, it seems at the time, likely to have been both obscured and compounded by alcohol and drug use.

[3]R v Verdins (2007) 16 VR 269.

31Your sentencing indication took place on 22 April 2023 and as I have said, further delay was incurred on account of waiting for psychiatric material.  During that time, however, you were able to reach the top of a waiting list for residential detoxification and entry into the Bridge Residential Rehabilitation Program where I see that you are today while listening to this sentence.

32The time you have now spent in in-patient detoxification and the time you have spent in residential rehabilitation to this date has restricted your liberty and may continue to do so and I take this into account.  I also take into account the totality of your offending and the fact that you have served sentence in the
Northern Territory between the commission of the offences that I impose sentence for and today.

33The process between your charge and this sentence has been a protracted one and despite your difficulties you have remained engaged with your CISP worker and kept coming to Court.  It is clear that in order not to offend again in future your mental illness must be properly treated by your area mental health service.  It is difficult, however, for effective treatment to be prescribed and maintained while you are substance affected.

34In undertaking residential rehabilitation you are now giving yourself the best opportunity you can to have real and practical assistance with your mental illness.  You are still very young and on this account more susceptible to intervention than a person who has had a protracted experience of the criminal justice system.

35Your family have shown their support for you when they have come to Court.  If you are able to stay the course in the rehabilitation unit that you are now in and have appropriate psychiatric treatment you will find your rehabilitation is assured.  It will not necessarily be easy.  Your prospects of rehabilitation are fragile.

36I have had regard to current sentencing practices in fixing your sentence.  Mostly armed robbery concludes with significant periods of incarceration.  I have had regard to those sentences and to others but my job is to do individual justice and no case is quite like yours.  I sentence you in the landscape of those sentences.

37There is a role for general deterrence for offending of this seriousness and type and I do not forget that.  However, your youth, your lack of prior history and your diagnosis of mental illness causes me to conclude that your case provides a less useful vehicle to teach other would-be armed robbers about consequences.  There is a reduced but not absent role for specific deterrence in this sentence.  You must also be adequately punished and your offending denounced.

38Turning now to the submissions of the parties.  Your barrister submitted that in light of the lengthy period on CISP bail, your youth, your admission into residential treatment and your diagnosis of schizophrenia, among other matters, meant that no further prison time should be served on your sentence.

39The prosecution made it clear that further imprisonment was open but that a combination of time served with a CCO was also within range, making an additional submission today in favour of some hours of community service being a feature of such a community correction order.  I have adopted that course.

40The community correction order will be of a shorter duration than what would otherwise be warranted on account of the very lengthy process that you have undergone on CISP bail since you were first granted bail in this Court.

41So what I am imposing on you, Mr Kir-Deng, is a period of 47 days custody.  A sentence of 47 days with conviction in combination with a community correction order of 12 months duration.  I am going to read through the conditions of the community correction order.  Once I read through the conditions I am going to ask you whether you consent to undertaking that order.

42So the first condition will be standard conditions of a community correction order and the most important one is this.  That you must not commit any other offences that are punishable by imprisonment during the 12 month period that starts today.

43Let me be clear about this.  If you do get brought back to court before me and re-sentenced for these offences and absent very powerful reasons you should expect that would involve that you receive some imprisonment.

44You must report to the Melbourne Justice Service Centre
Community Corrections Service within two days of today by telephone.  The report makes it clear that the Community Corrections Service understands that you are currently in residential rehabilitation and reporting by telephone will be sufficient as long as you do that within the next two days.  I trust that someone there will assist you with that.

45You are required to advise your supervisor in Corrections Office of any change of address where you are living or working.  You must do so within two clear working days.

46It is a term of all community correction orders that you must submit to visits as directed and you must obey all of the instructions and directions of a
Community Corrections Office.  You are not able to leave the State of Victoria without prior permission and that is for the entire 12 months.  So you are not able to leave Victoria for the 12 month period of the order.

47I also attach the following special conditions and they are as follows.

48You will be required to complete programs to further address your drug use and alcohol use.  I will hear the parties on how to cast that requirement but it may be that I order specifically to complete the Bridge Rehabilitation Centre Program.  So you must participate in assessment and treatment for drug and alcohol use.  Assessment and treatment and rehabilitation for your mental health.  Programs to reduce reoffending and you must also submit to supervision by the Community Corrections Office.

49I declare that pursuant to s 18 of the Sentencing Act you have already served 47 days pre-sentence detention pursuant to this sentence.

50Pursuant to s 6AAA of the Sentencing Act I declare that but for your plea of guilty I would have imposed a term of imprisonment of three and half years with two and a half years' non-parole period.

51I also order, as I have just missed a note here.  As part of the community correction order I impose the requirement of 50 hours community work but hours spent in rehabilitation and treatment can be counted towards those hours.  So if you are seeing your drug and alcohol person or undergoing treatment that clocks up the hours on your community correction order.

52Counsel, is it necessary for me to phrase something particular about
the Bridge Program or does it get captured by the rubric of attend for assessment and treatment as directed?  It is not currently directed by Community Corrections.  It is Mr Kir-Deng's voluntary participation at the moment.  Is it better left that way?  I don't know.

53MR RALPH:  I would say, Your Honour, that if it was left in the usual terms that that would leave it up to the directions of Corrections. 

54HER HONOUR:  That is probably most desirable, isn't it?

55MR RALPH:  Yes.  For example, people can be ejected out of residential rehabilitation programs for all sorts of infractions.

56HER HONOUR:  Yes. 

57MR RALPH:  But that doesn't necessarily mean that another course couldn't be pursued and as long as Corrections are satisfied, that would probably be the more flexible.  To essentially leave it up to Corrections as to their satisfaction.

58HER HONOUR:  All right.  Mr Gray, is there anything to be said against that?

59MR GRAY:  So just so I'm clear on this issue, Your Honour.  Is Your Honour saying that it's not actually a condition of the CCO?

60HER HONOUR:   Well at the moment Mr Kir-Deng has voluntarily submitted to this process.

61MR GRAY:  Yes.

62HER HONOUR:  It is not court ordered at this moment.  Now I think there is some merit in what Mr Ralph argues.  That if, for whatever reason, this particular program falls over - - -

63MR GRAY:  Yes. 

64HER HONOUR:  - - - the Office of Corrections has power to direct that he participate in whatever else.

65MR GRAY:  That's through the assessment and treatment condition?

66HER HONOUR:  Yes.  The normal condition.

67MR GRAY:  Yes. 

68HER HONOUR:  It might be best left in that way, do you think?

69MR GRAY:  I concur, Your Honour, respectively.

70HER HONOUR:  Good.  Thank you.  Have I missed any orders, Mr Gray?

71MR GRAY:  Pardon, Your Honour?

72HER HONOUR:  Have I missed any orders?

73MR GRAY:  No Your Honour hasn't and can I also say that 47 days pre‑sentence detention is correct.

74HER HONOUR:  Thank you.  Mr Ralph, what I need to do is to get your client's agreement to undertake the order and I also need him to understand that this is an important moment because he is now, hopefully with an understanding of what is required of him, is now going to participate in the order.  Would you like a moment with him?

75MR RALPH:  Yes.  I haven't been able to speak to - - -

76HER HONOUR:  Yes. 

77MR RALPH:  - - - Mr Kir-Deng because of the situation with the telephones.

78HER HONOUR:  Yes. 

79MR RALPH:  And perhaps if Your Honour could - we could sign the CCO and send that through to him and I can take him through that process.

80HER HONOUR:  That can be arranged but what I do need to get is essentially from Mr Kir-Deng an undertaking to the court while we are still here.  I am sure he will sign the order later and that will be arranged but perhaps I can just do it now through the link that we have.

81MR RALPH:  I'm content with that.  I spent a lot of time with Mr Kir-Deng on the last occasion.  I'm confident he understands and appreciates the situation.

82HER HONOUR:  All right.  Mr Kir-Deng, I am just going to speak to you directly because you are not here, you are up at the Bridge Program.  What I am going to tell you is this.  That you are going to be on a 12 month order.  You have to do treatment and rehabilitation for your mental health.  You have to do treatment and rehabilitation for your drug and alcohol.  You have already started that process.  You have to do 50 hours work but treatment can be counted as the work hours.  You have to do any programs to reduce reoffending that Community Corrections ask you to do and you have to submit to supervision.  So they might ask you to attend for appointments, for example.  You have to make contact by phone within two days but you will get the paperwork and that will tell you who you need to ring.  They know where you are.  They know that you have already started at rehab.  So that is a good thing.

83Importantly, you cannot leave Victoria for 12 months and you must not get into any other trouble where imprisonment is on the table.  So you cannot get into trouble and do another offence because that opens up this whole case again and I potentially have to re-sentence you and we are back to the beginning.  So you must not commit any other offences.

84So Mr Kir-Deng, soon you will be asked to sign some paperwork to say that you do promise to do the order.  Do you understand what is required of you on the order, Mr Kir-Deng?

85OFFENDER:  Yes, Your Honour.

86HER HONOUR:  You do?  You are nodding there?  Yes.  All right and do you agree to doing the order?

87OFFENDER:  Yes, Your Honour.

88HER HONOUR:  You do?  All right and I think Mr Ralph might have a phone call with you later when the phones all recover.  All right.  So the paperwork will be sent to Mr Kir-Deng and to his representatives.  Counsel, is there anything else?

89MR GRAY:  No, not from the prosecution, Your Honour.

90HER HONOUR:  All right.  Thank you for your assistance.  Mr Kir-Deng, good luck at the Bridge Program.  I am really pleased that you are there and I want to also thank the CISP people for all the hard work that they have put in.  Ms Rice-Lacey is in court.  Thank you.  We will rise.

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