Director of Public Prosecutions v Kok
[2021] VCC 791
•15 June 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-00462
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DHIEU KOK |
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JUDGE: | HER HONOUR JUDGE WILMOTH |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 June 2021 |
DATE OF SENTENCE: | 15 June 2021 |
CASE MAY BE CITED AS: | DPP v Kok |
MEDIUM NEUTRAL CITATION: | [2021] VCC 791 |
REASONS FOR SENTENCE
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Subject: Criminal law – sentence
Catchwords: plea of guilty to one charge of attempted aggravated burglary; one summary charge of committing an indictable offence whilst on bail – altercation over supplying drugs to young family friend – stabbed at scene (extra curial punishment) - 32 year old Sudanese refugee – long term alcohol and drug problem - criminal record from 17 years old - Mixed Anxiety & Depression Disorder – Polysubstance Abuse Disorder
Sentence: 12 months imprisonment (371 days days time served) CCO 2 years with program conditions
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Goetz | OPP |
For the Accused | Mr B. Johnston | Chris McLennan |
HER HONOUR:
1Dhieu Kok, you have pleaded guilty to one charge of attempted aggravated burglary and a related summary offence of committing an indictable offence while on bail.
2In the early hours of 10 June 2020 you and an associate, Kot Gatlwak, went to the house of Akoon Nagour, also known as, 'Bella', a young woman whose family you had known for some years.
3Abdullah Tokhi, also known as Adam, was in an on-again/off-again relationship with Nagour. You suspected that Tokhi was supplying drugs to Nagour and you wanted to confront him about this. You told Nagour that you had to go and see Tokhi and told her to telephone him. She did so and told him that she and you, whom she described as her cousin, wanted to buy a gram of drugs. You and Gatlwak were present when the phone call was made.
4Gatlwak drove you and Nagour to an apartment complex in Coventry Street, Southbank, and Nagour buzzed for entry to Tokhi's apartment. He granted her access and she waved you and Gatlwak through the entrance before following you. The three of you then took a lift to the 5th floor. You were in possession of an imitation firearm, intending to scare Tokhi in order to discourage him from supplying drugs to Nagour.
5Nagour knocked on the door of Tokhi's apartment and he opened it. He refused to allow you and Gatlwak in and you produced the firearm to scare him. That is the charge of attempted aggravated burglary.
6An altercation took place at the door and you received serious stab wounds to your shoulder and stomach. You never proceeded through the doorway. The three of you took the lift to the ground floor and left the building. You gave the imitation firearm to Gatlwak and told him to hold it. He drove you and Nagour to hospital, where you were treated for life-threatening stab wounds. You were in intensive care until the next day, when you were arrested, and were transferred to Port Phillip Prison on 13 June.
7When interviewed you told the police of the plan to gain entry to Tokhi's apartment because of your suspicion about him supplying drugs to Nagour and that you wanted to scare him in order to stop him. You said that at the door of the apartment Tokhi asked for money for the request of drugs and you became angry and refused to pay. Tokhi gave you and Gatlwak a pipe to smoke in the hallway and admitted Nagour into the apartment. When Tokhi opened the door again you swore at him and produced the imitation firearm to scare him, at which point Tokhi stabbed you, and you and the others fled.
8Nagour was arrested but released without charge.
9Gatlwak was arrested and charged with offences, to which he later pleaded guilty. For these, and other unrelated charges, he was sentenced to 183 days' imprisonment[1].
[1] Theft of a motor vehicle (used in the incident); prohibited person using an imitation firearm; committing an indictable offence while on bail. The other charges were an unrelated charge of car theft and unlicensed driving.
10During the course of taking a statement from Tokhi he was questioned in relation to the allegation of stabbing but was not charged.
Personal background and circumstances
11Turning to your personal background and circumstances.
12You are a 32-year-old single man, born in Sudan. As a small child you went with your mother to take refuge in Egypt and 10 years later, aged 14, you came to Australia with your mother and brother. Your father had died in a motorbike accident. Your three sisters have remained in Sudan and you have not seen them for some two decades. Your brother died of malaria in Egypt a few years ago and your mother died from diabetes while visiting her daughters in Sudan three years ago. The only family member you have living in Australia is your uncle, with whom you have lived for various periods. You also have an
11-year-old daughter who lives with her aunt in Adelaide, but I understand you have no contact with that child.13You attended school in Sydney until Year 11 and had a number of unskilled jobs after that, but you have not worked since about 2013.
14In 2009 you moved to Melbourne and stayed with your uncle; an arrangement which ended when you were forced to leave, owing to your escalated drinking of alcohol. By then you had had a long-term problem with drugs and alcohol, which worsened when you became homeless. You relied largely on alcohol as well as the substances ice and cannabis. In prison, on remand for this offending, you obtained Buprenorphine and abused it regularly until you were started on a methadone maintenance regime.
15On 15 July 2020 you produced a drug screen test clear of any substances, including methadone, so presumably the methadone course commenced after that. You told the psychologist, Mr Mackinnon - when he assessed you very recently - that you have not used any substances since then.
16Your criminal record dates from 2005, when you were 17, with convictions for a range of offences including armed robbery and theft, for which you served a prison sentence of three and a half years with a non-parole period of two years, and a conviction for being a prohibited person possessing a firearm, for which you served six months. Your most recent sentence was for 430 days, reckoned as time served, imposed on 6 March 2019 for dishonesty offences, intentionally causing injury and assault. There have been other prison sentences and a Community Correction Order in 2012, which you breached.
17Mr Mackinnon took a detailed history from you and diagnosed longstanding mixed anxiety and depression disorder as well as polysubstance abuse disorder; describing them as major disorders. He considered you are of normal intelligence and that you do not possess an inherently anti-social or criminal character despite having accrued some of those traits during your troubled adulthood.
18You told Mr Mackinnon that you have been taking classes in prison to improve your English language skills and he gained the impression that you have used your time in custody to reflect on your offending and to develop some hopes for a stable life, free of offending, when you are released. He said you knew what you did was wrong, and you would not have done it had you not been under the influence of alcohol and ice.
19During the period of seven or eight years after leaving school, until 2013, you worked in a variety of jobs including several in regional areas, demonstrating your ability to go after the work and a proactive attitude. During previous periods of imprisonment you have completed various vocational courses. You plan to live with your uncle when you are released and to apply for public housing. You appear to have a realistic insight into your ability to complete a Community Correction Order and you are motivated to use the opportunity such an order might offer.
20Your counsel, Mr Johnston, submitted that a CCO combined with a prison sentence is an appropriate disposition and the prosecution position was that this is within range, although without conceding that 12 months' imprisonment is adequate to reflect the seriousness of the offending and the need for specific and general deterrence.
Mitigating factors
21The observations that I have made about your attitude and your progress in prison suggest that your prospects for rehabilitation have improved and are far more positive now than if they had been assessed a year ago. It may also be that at the age of 32 you have gained maturity; reflected by the insight already mentioned.
22You were seriously injured in the incident, a fact which is confirmed by the discharge summary from St Vincent's Hospital, where you were treated for the injuries between 10 and 16 June 2020. The summary is detailed and includes reference to the extensive treatment performed at the three laceration sites near your shoulder, hip and upper central abdomen. Fortunately, any internal injuries appear to have been limited to a left pneumothorax, which healed itself after a few days, and a laceration to the liver with no active bleeding. In the absence of any expert report I can only conclude that that was a relatively minor injury.
23The injuries were extensive enough to amount to a significant degree of extra curial punishment, which I take into account, as well being a component of specific deterrence. Your fairly extensive criminal history calls for your sentence to reflect the need for you to be deterred from further offending and also suggests your rehabilitation will not be easy for you because of past patterns of behaviour, your longstanding substance abuse problem and your mental health difficulties. Mr Mackinnon considered that a lot will depend on your ability to maintain a stable life and engage in appropriate treatment. It follows that your prospects for rehabilitation are guarded but the chance for treatment might be fruitful if you can maintain the necessary stability.
24Your plea of guilty is a further mitigating factor which I take into account. You pleaded guilty at a relatively early stage, after one witness had given evidence at a contested committal hearing. Having spared the other witnesses from giving evidence and saved the expense and inconvenience of a trial, you are entitled to a discount on your sentence, particularly at a time when COVID-19 restrictions have delayed the progress of cases. By contrast with many other cases this case has progressed quickly. The plea is also an indication of remorse, which you have expressed elsewhere, including making admissions when interviewed by the police.
25Your time on remand has been throughout the period of COVID-19 restrictions, as they have applied to all prisoners, and that is also a matter to be taken into account in a general sense. While all these factors serve to reduce the severity of the sentence I shall impose, the need for general deterrence is important in order to deter others from this type of serious offending. The incident was planned and deliberate and you involved others in it.
26The maximum sentence for attempted aggravated burglary is 20 years, and three months or a fine for the summary offence. The circumstances of your offending, however, when combined, provide reasons for considerable leniency when considered together with treatment options available under a Community Correction Order. You have been assessed as suitable for such an order and I shall make that order, which will cover both charges. It will be combined with an aggregate sentence of imprisonment of 12 months for both charges.
27The Community Correction Order will commence upon your release and will last for two years. You will be under supervision and must attend programs for treatment of drug and alcohol abuse. You must also be assessed as to the need for mental health treatment and you must attend programs to reduce offending if directed to do so.
28I note here the detailed and helpful mental health assessment performed by
Mr Jansen, of the Community Forensic Mental Health Service, which includes recommendations that you see your general practitioner very soon after your release from prison in order to ensure that your medication prescriptions are kept up to date, as well as putting a treatment plan in place. A further recommendation by Mr Jansen is for those monitoring your mental health under the Community Correction Order to take into account that mandating your participation in psychological counselling might be overwhelming for you and should be treated as therapeutic rather than punitive.29I should add here that there will be also a requirement that you attend judicial monitoring hearings from time to time and I will explain what that means,
Mr Kok. It means that you will have to appear in court from time to time and you will be given those dates. There will not be any need for any lawyers to be present but your Corrections officer will provide me with a progress report so I will be able to see how you are getting on. You will know what is in that report and you will be able to discuss it with me. So the first date for that will be
19 August at 9.30 am.30I have not ordered that you perform any unpaid community work because the Corrections officer who assessed you recommended against this on the basis that you will need to focus your time and attention on treatment.
31Mr Kok, do you agree to be bound by the conditions of a Correction order? You're nodding your head. Yes, all right. Thank you. I need to inform you that were you to breach any of these conditions either by
non-compliance or by further offending then you would be in breach of the order and you would have to come back to court to be re-sentenced for these charges.32A copy of the Corrections order will be sent to you for you to sign and that will then be returned back to the court.
33You must attend the Melbourne Justice Service Centre at 50 Franklin Street, Melbourne, by 4 pm within two working days of your release. So if you are released today, which I expect you will be, leaving aside today, that would be by 4 pm on Thursday.
34OFFENDER: Okay.
35HER HONOUR: I declare that you have spent 371 days in pre-sentence detention and that time shall be declared as having already been served. I shall cause that to be noted on the court record.
(Discussion re pre sentence detention page 8 )
36If you had pleaded not guilty to these charges, I would have sentenced you to 18 months' imprisonment.
37The prosecution has applied for a disposal order in relation to a list of items and I make that order, but I trust there's no opposition to that, Mr Johnston? No? Thank you.
38Now, Mr Goetz, have I neglected or omitted anything?
39MR GOETZ: No. Your Honour has made reference to the ancillary order. I'm just wondering about whether the pre-sentence detention has been correctly stated. Your Honour will recall on the last occasion Mr Johnston and I brought to Your Honour's attention that it was either 361 or 364 days depending on the time in the hospital.
40HER HONOUR: Yes.
41MR GOETZ: Given the days that have lapsed since that discussion we believe that the pre-sentence detention ought to be stated as either 371 or 368, depending on Your Honour's view about the hospitalisation.
42HER HONOUR: It should be 371, given that I've taken into account the extra curial punishment. Thank you.
43MR GOETZ: May it please the court.
44HER HONOUR: You agree to that, Mr Johnston?
45MR JOHNSTON: Yes, I do, Your Honour.
46HER HONOUR: And, Mr Johnston, is there anything further that I've omitted from your part?
47MR JOHNSTON: No, Your Honour.
48HER HONOUR; Adjourn the court please.
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