Director of Public Prosecutions v Kok
[2022] VCC 1752
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00782
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Dhieu KOK |
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JUDGE: | Her Honour Judge Dalziel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 October 2022 | |
DATE OF SENTENCE: | 11 October 2022 | |
CASE MAY BE CITED AS: | DPP v Kok | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1752 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Carjacking – Possess a Drug of Dependence
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Worboyes v The Queen [2021] VSCA 169
Sentence: Convicted and sentenced to a total effective sentence of 3 years
and 9 months’ imprisonment, with a non-parole period of 2 years
and 3 months.
Section 6AAA declaration: Conviction and total effective sentence of 5 years imprisonment with a non- parole period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Brown | Office of Public Prosecutions |
| For the Accused | Mr R. Bhattacharya | Chris McLennan & Co |
HER HONOUR:
1On 3 July 2021 a man whom I will call, Mohamud, met with the victim of this carjacking Mr Hara, to show him an apartment for rent, in Maidstone. In order to do so, Mr Hara picked Mohamud up from outside an apartment building in Rooney Street, Maidstone.
2After inspecting the apartment Mohamud and Mr Hara went to the Ashley Hotel, in Braybrook. They entered the hotel with two other men, one of whom (Gatlwak) was involved in the offending committed on 7 July 2021 by you and others. Mr Hara was driving a Mercedes car.
3On 7 July 2021 Mohamud sent a text message to Mr Hara saying he had another property that Mr Hara could inspect. They arranged for Mr Hara to collect Mohamud from outside the same address in Rooney Street, Maidstone.
4At 8.33 pm you and three other men, who are the other alleged offenders in the carjacking, arrived at the Rooney Street address and you all went into one of the units.
5Mr Hara arrived at 8.44 pm. He parked his car in the car-park of the apartment complex and called Mohamud to say he was there. You and your three associates walked down to the carpark. Mohamud followed you all around two minutes later. When you and your associates got to the carpark, Gatlwak who was one of them, approached Mr Hara and asked him for a lift. Mr Hara refused, although he recognised Gatlwak from the hotel.
6Gatlwak told Mr Hara that Mohamud would be down in two minutes, but then he reached into the car and unlocked the front passenger door, and then got in and sat down in the front passenger seat.
7You and the other two offenders got into the back seat. All of you were carrying black bags.
8Mohamud approached the car and told Mr Hara that if he gave you all a lift nothing would happen. Mohamud then got into his own car, and drove away.
9One or more of you in the vehicle was directing Mr Hara where to drive. He started to reverse, and all of the men in the car were yelling at him. Mr Hara made it to the roadway, but Gatlwak put the car in park, and one of the men in the back seat put a finger in Mr Hara’s eye, so that he could not see properly. Another of the men in the back seat choked Mr Hara by putting an arm around his neck.
10Whilst Mr Hara was being assaulted by men in the back seat, Gatlwak was demanding that he hand over the keys and leave the car. One of the offenders said “just shoot him”.
11Mr Hara tried to get out of his car, but was prevented from doing so as one of the offenders was pulling on his jumper. Eventually Mr Hara was able to get out of the car but one of the offenders grabbed him around the head, whilst another tried to take his car keys. One of the offenders yelled something to the effect that if they could not get his keys, just shoot him. This caused Mr Hara to hand over his keys, and then he ran away. You and your co-accused all got into the Mercedes and drove away.
12The three other men who you were with then committed further offences, in the shout-eastern suburbs of Melbourne, that brought the attention of police to the stolen Mercedes. They followed the car until it pulled over near a reserve in Ferntree Gully, not long after 1.00 am. When the car pulled over, you got out of the back seat, and ran away. You were arrested not long after. When searched you had a small amount of Cannabis in your possession.
13When interviewed you said you had been smoking ice and drinking for 4 days and had not slept for 4 nights. You said you had no memory of the carjacking. You said, also, that you did not know anyone who lived at the Rooney Street address, that you had never been to Maidstone and had never heard of the names of the other three men in the car with you, including Gatlwak. I was told on the plea hearing that Mr Gatlwak was one of your co-accused in the aggravated burglary you committed in June 2020.
Offence Gravity
14The offending was committed in company. All of you took part in the offence in some way. The offending appears planned to some extent, but I cannot say that you were part of that planning. It is unclear what actions you took, if any, in the assaults on Mr Hara in the car, and outside the car. It is also not clear who said “just shoot him”. Nevertheless, you were present and, by your plea, you accept that you were involved in the offence of car-jacking.
15Am aggravating factor is that this offence was committed whilst you were on a Community Correction Order which had been imposed approximately 3 weeks earlier. This was a rehabilitative Community Correction Order aimed at promoting rehabilitation programs and treatment. You had spent more than a year on remand.
Personal History
16You were 32 at the time of this offence, and are now 34
17You were born in 1988 in Khartoum, Sudan. Your family are Dinka and you mother and father were Christian. You had three sisters and one brother. Your father worked for a petroleum company, so he was often away from the family for work.
18In your very early years, the war in Sudan did not directly impact your family, although you lived under the shadow of the conflict.
19When you were 4, your father passed away. Not long after his death things got worse in Sudan, and so your mother made the decision to escape, taking you with her to Egypt, where you joined your older brother. He was already in Egypt, studying. Your three sisters did not go to Egypt and now live in South Sudan.
20For the next 10 years or so, you lived in Egypt. In 2002, when you were aged 14, your mother, older brother and you all moved to Australia. You lived in Sydney, which you say you liked.
21You attended school in Australia up to year 11, but you had had limited opportunity to learn in Egypt, and your poor English lingulae skills made school difficult. You were expelled after a fight in Year 11. You liked sports, particularly soccer, but did not pursue this in any serious way.
22In 2009, in your early 20s, you made the move to Melbourne. You were then around 19 years old. You lived, off and on, with an uncle in Ascot Vale. Although you lived with him from time to time, you couch surfed and your life was generally very unstable.
23You have a daughter, who is now 12, who lives in Adelaide with relatives. You are not permitted to have contact with her.
24Your brother returned to work for UNICEF in Egypt, but passed away in 2017, after he contracted malaria. Your mother visited South Sudan to visit your sisters, but sadly, in March 2019, she passed away from complications from diabetes.
25Prior to 2013, you had a number of casual jobs, in hospitality, warehousing and labouring, but you have not worked formally since. Whilst in custody you were able to obtain several certificates, in warehousing, traffic control, cleaning, food handling and you have White Card for construction.
26You report that you began to smoke cannabis when you were18 and then drinking alcohol regularly from the age of 19. From 2016, when you were around 30, you started abusing methylamphetamine, after you got out of prison.
27You reported to Mr Mackinnon, last year, that alcohol was your main issue, with ice being the second. You reported different levels of ice smoking, but you told Mr Mackinnon when you drank, you drank whatever you could.
28Whilst you were on remand in 2020-2021 you obtained and abused buprenorphine, but after getting on the methadone program you said you had not abused buprenorphine or any other substance. As I have already noted, within a month of getting out of prison last year, and within 2 months of the assessment by Mr Mackinnon you committed these offences, whilst heavily affected by ice.
29The report from Mr Mackinnon says that on 10 June 2020, when you committed the aggravated burglary, you suffered a serious stab wound, which you reported required you to be put on life support and you were in ICU for some days.
30You told Mr Mackinnon that you had been working whilst in custody on the previous remand period as a laundry billet, engaging in English courses to improve your literacy, spoke regularly to your uncle. You were also on a waiting list for public housing. You said last year that your mental health had probably improved whilst on remand, you felt more stable and clearer. You were being prescribed an antidepressant, which no doubt assisted with your anxiety and depression.
31Last year, Mr Mackinnon considered that you had mixed anxiety and depression disorder and poly substance abuse disorder. Mr Mackinnon considered that the polysubstance abuse disorder was a form of self-medication for chronic distress. Mr Mackinnon associated the mixed anxiety and depression disorder with the traumas of your childhood, including the loss of your father, the unrest and conflict in Sudan, your time in Egypt as a refugee, and the difficulty you had assimilating here in Australia.
32You have a serious criminal history, including aggravated burglary, robbery, armed robbery. You were sentenced in this court on 15 June 2021 on the charge of aggravated burglary with an imitation firearm, and committing an indictable offence on bail. You were sentenced to time served, which was just over 12 months, and CCO. As I have noted, CCO conditions were aimed at your rehabilitation. There was supervision and assessment of treatment orders, as well as judicial monitoring.
33The offence for which I must sentence you was committed on 7 July 2021, not even a month after that sentence. You have been on remand since your arrest on 8 July 2021. This period in custody was affected by the pandemic with lockdowns and limited contact with family and friends and also, no doubt, impacting the available activities and courses for you.
Matters in Mitigation
34First and significantly, is your plea of guilty. It was submitted that this was at a relatively early stage following the committal. You were committed for trial on 11 May 2022 and an initial directions hearing listed on 8 June this year. You were arraigned on these charges 4 July 2022. Although there was a contested committal run, your counsel did not cross examine the complainant.
35Your counsel appropriately pointed me to the case of Worboyes. In that case, the Court of Appeal noted that a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts were not affected by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Your plea of guilty gives rise to significant mitigation of your sentence.[1]
[1] Worboyes v The Queen [2021] VSCA 169 [41]
36The next factor that was raised relates to your upbringing and your childhood. Defence counsel argued that this gave rise to the principles of the case of Bugmy v The Queen. This was disputed by the prosecution.
37From the material before me, it appears that your family was hard working. Your brother was educated but your childhood and family and your life were impacted by the conflict and the disruption from the move from Sudan to Egypt and then to Australia. I accept that this is not conducive to a steady life and it effected your behaviour but it does not reduce your culpability. The offending here was cause by poor associates and by your intoxication.
38The High Court in Bugmy said that I must take into account social disadvantage, no matter the background or the acuity of an offender often proceeds criminal behaviour. In your case, your decision to use drugs is not a reflection of the environment in which you were raised but, according to Mr McKinnon, it was as a result of your efforts to self-medicate due to your mental distress caused by your disjointed and unstable childhood and teenage years.
39It is not the situation that your upbringing and family life taught you to abuse drugs and offend. But nevertheless, the various events of your childhood and teens have left their mark on you. You lost your father, your home, you moved twice to wholly different situations on the background of war and the terrors associated with that war. I accept that all these uncertainties and dislocations impacted your sense of certainty and place with your family and the community. I accept also that your decision, or lack of good decisions regarding drug and alcohol abuse, occurred on that background.
40I do not accept that your history means that you were less able to understand that taking drugs and committing offences was wrong, but I do accept that the trajectory that you were on was not the result of cold and calculated choices.
41As I said in the plea hearing, your background is relevant, as I am sentencing you, not anyone else. For reasons that I have said, your history gives rise to some mitigation of your sentence.
42The next factor is the effect of COVID-19 on your experience of remand. As I have already noted, there have been many lockdowns, reduced contact with the outside world and reduced activities and I mitigate your sentence for this reason.
43Finally, your counsel raised the case of Verdins and submitted that your time in custody was more onerous due to your mental health. I have rejected that submission because the material before me suggests that your time in custody is not more onerous by reason of your mental and I am referring there to the report from Mr McKinnon.
Sentencing Factors
44General deterrence is a significant sentencing consideration. Carjacking is a serious offence, carrying a maximum penalty of 15 years. The seriousness with which Parliament considers this offence is reflected by the marking of this offence as a category 2 offence so that a term of imprisonment which is not combined with a CCO must be imposed, unless one of the exceptions are made out. Your counsel did not submit that one of the exceptions applied in your case.
45Other sentencing principles just punishment, denunciation, protection of the community, also relevant is specific deterrence. Specific deterrence is tied, to some extent to your prospects of rehabilitation. I consider that your prospects of rehabilitation are poor.
46I note the content of the report prepared for the plea by Mr Mackinnon last year, and that you offended in this way within a month of release. You suffered serious injuries in June 2020, in the course of that aggravated burglary yet even that, was not enough to cause you to change your ways.
47When he wrote the report in May 2021, Mr Mackinnon said:
“In my opinion, Mr Kok is currently genuinely motivated to make rehabilitative progress but his success in this regard will depend very much on whether or not he can maintain stability of living circumstances, once he is released from prison.”
48Mr Mackinnon recommended you find somewhere to live, and to stay on the methadone program, and to try to establish a routine with a supportive network, including attaching yourself to a local community. He said you needed to avoid negative associates and anyone involved in substance abuse. Regrettably, you were not able to do so.
49The sentences I impose are as follows:
50On Charge 1, carjacking, the sentence is 3 years and 9 months imprisonment. The non-parole period is two years and three months.
51On Charge 2, possession of a drug of dependence, you are fined $50 with conviction.
52I declare 460 days have been served as pre-sentence detention and I direct that this declaration be entered into the records of the court.
53On conviction on the charge of carjacking, I am told there is a mandatory requirement to disqualify you from obtaining a driver’s licence. The order will be that you are disqualified from obtaining a driver’s licence for a period of two years from today.
54Pursuant to s 6AAA, I state that, if you had not pleaded guilty, I would have sentenced you to 5 years imprisonment, with a non-parole period of three years.
55The disposal order will be made once it is lodged with the court.
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