Director of Public Prosecutions v Kon
[2016] VCC 156
•19 February 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-15-02012
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| REJINA KON |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 February 2016 |
| DATE OF SENTENCE: | 19 February 2016 |
| CASE MAY BE CITED AS: | DPP v Kon |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 156 |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Attempt to pervert the course of justice - stating a false name - identity crime certificate
Legislation Cited: Sentencing Act 1991
Cases Cited: Boulton & Ors v The Queen [2014] VSCA 342
Sentence: 3-year Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C.J.Duckett | Office of Public Prosecutions |
| For the Offender | Ms C. Beissman | Victoria Legal Aid |
HIS HONOUR:
1Rejina Kon, you have pleaded guilty to one charge of attempting to pervert the course of justice and one transferred summary charge of stating a false name.
- Attempting to pervert the course of justice carries a maximum penalty of 25 years' imprisonment
- Stating a false name carries a maximum penalty of five penalty units.
2You were born on 3 March 1989. You are now aged 26 and you were aged between 23 and 24 when this offending occurred in 2013.
3You do have a criminal record, about which I will go into more detail later.
4The victim in this matter is Achol Daniel Bol Deng. She was born on 1 January 1989 and at the time the offences were reported was 25 years of age. Ms Deng ordinarily resides in New South Wales and was studying nursing at the time of the theft of her identity by you.
5At the time of the incident Ms Kon, you and Ms Deng were known to each other as Ms Deng is the wife of your cousin. You first met in 2011.
6In early January 2013 Ms Deng was visiting Victoria. During her visit she stayed at your sister Theresa's house in Sunshine, Victoria.
7On about 30 January 2013 Ms Deng went shopping at Highpoint Shopping Centre. Later that evening when she returned to the house and a pizza had been delivered, she opened her purse to pay for it. At this time she noticed that there was $250 missing and assumed she had lost it whilst shopping. You had been present at the house during the day.
8The following day, 31 January 2013, Ms Deng attended at the Tiger Air Terminal at Tullamarine Airport to catch her return flight to New South Wales. When she was asked to produce photograph identification prior to boarding the flight, she was unable to locate her New South Wales learner's permit.
9Ms Deng used other identification and boarded the flight, returning to New South Wales.
10On 7 February 2013 you attended the Dandenong Shopping Plaza with Martha Paul. You both had your children with you. While you were at the Plaza you committed various shop thefts as follows:
·from Valley Girl - three belts and a dress worth $58.80;
·from Target - a child's hoodie, a jumper, two pairs of jeans, a Thomas the Tank Engine pair of pants and a sweater worth $91.60;
·from the Reject Shop - a Kensington quilt set and a backpack worth $28.
11You and Ms Paul were arrested by Loss Prevention officers. The police then attended and conveyed you both to the Dandenong Police Station and interviewed you in relation to the thefts. You presented Ms Deng's New South Wales learner's permit to the police and were processed, interviewed and charged as “Deng”.
12You were then bailed to appear at the Dandenong Magistrates' Court on 19 June 2013.
13On 19 June 2013 you attended at the Dandenong Magistrates' Court, appeared before Magistrate McGrane and entered a plea of guilty to the three charges of theft. You were fined $200 without conviction that day.
14Using Ms Deng's details enabled you to avoid an appearance before the courts being recorded in your name. It had the effect of recording an appearance before the court in Ms Deng's name.
15On 12 September an unknown person travelled without a valid ticket on public transport and was spoken to by Metro authorised officers. When asked to produce identification, the person produced Ms Deng's New South Wales learner's permit.
16A Department of Transport Infringement Notice was then issued and posted to Ms Deng's address in New South Wales. When Ms Deng received the infringement notice, she attended the Bankstown Police Station and lodged a lost property report. After doing this, Ms Deng lodged an objection against the infringement issued in her name and it was withdrawn by the Department of Transport.
17Ms Deng then learnt from a friend that you were using her New South Wales learner's permit to gain access to nightclubs in Melbourne.
18Ms Deng telephoned you and spoke to you about her missing New South Wales learner's permit but you denied taking it.
19Ms Deng was contacting or attempting to contact you many times, but you refused to speak with her or hung up. Ms Deng then contacted you via Facebook and told you that she had already asked you to stop using her identity card and that you had messed up her life. You apologised, saying that you knew what you did was wrong, but you had many problems.
20In April 2014 Ms Deng wanted to undertake a nursing placement and made application for a National Criminal History Check as part of her application. When Ms Deng did this, she was advised that she had a criminal history listed in Victoria.
21On 12 December 2014 Ms Deng returned to Victoria and appeared before Magistrate Vandersteen in the Dandenong Magistrates' Court and all three theft charges were struck out.
22On 20 August 2015 you were arrested in Simmons Street, South Yarra and taken to the Melbourne West Police Station, where an interview was conducted. During that record of interview you deposed:
· that you had taken Ms Deng's New South Wales identification but denied taking the $250;
· that you were arrested at the Dandenong Shopping Plaza and had produced Ms Deng's identification that day and were charged and bailed on those details that day;
· that you had entered a plea of guilty at the Dandenong Magistrates' Court to avoid a conviction being recorded in your name;
· that the fine imposed at court was deducted from your Centrelink payments;
· that you did not produce Ms Deng's New South Wales learner's permit to authorised officers at the Dandenong Railway Station;
· that you spoke with Ms Deng on Facebook and Ms Deng was angry but you had not spoken with her since;
· that you lost the licence in your old house in Dandenong and thought that someone there had taken it but did not ask anyone about it.
23You were then remanded and released the following day, as bail was unopposed.
24You were charged in relation to this offending on 20 August 2015, there was a filing hearing the next day, a plea offer was received in the matter on 5 November 2015 and the matter settled as at 13 November 2015.
25I note that no victim impact statement has been provided.
26There have been two days pre-sentence detention in this matter, as you were charged and remanded on 20 August 2015. As I said, bail was unopposed at the filing hearing the following day.
27I now turn to your personal circumstances.
28As I noted earlier, you are now 26 years old and you were 23 to 24 at the time of this offending.
29Your criminal record comprises one appearance at the Ringwood Magistrates' Court in October 2012 when, for shop stealing, stating a false name and dealing with property suspected of being the proceeds of crime, you were sentenced to an adjourned undertaking for 12 months without a conviction being recorded.
30You were born in the south Sudan, the eldest of six children and received no education whilst there. You grew up with your mother and siblings, your father having other wives and families. You rarely saw your father.
31You came to Australia as a refugee from the war in Sudan in 2002. In Australia you attended school from Years 7-12 and have worked variously as a waitress, in a hair salon and currently are working at a meat factory whilst studying for a Bachelor of Business.
32You have two children, a daughter aged six and a son aged five. They have no contact with their fathers. Is the daughter aged seven now, I think you said?
33MS BEISSMAN: That's correct, Your Honour.
34HIS HONOUR: A daughter aged seven and a son just turned five. They have no contact with their respective fathers. Your daughter was born when you were in Year 12 at school. Your relationship with the child's father ended on the birth of that child. Similarly, your relationship with your son's father also ended following that child's birth. The children live with your mother so as to allow you to study as well as work part-time, but you try and see them every day.
35For a period in 2012 you lived in a refuge with the children before living in a boarding house in Dandenong.
36You have now been before the courts twice for matters of dishonesty. The current offending is regarded very seriously by the law, because in each case it has the effect of subverting the proper administration of the law. The offending undermines the legal system and can create a loss of public confidence in the legal system. The courts rely daily on the integrity of matters placed before them.
37In this case in particular, your act of attending court representing that you were someone else and allowing a penalty to be recorded in an innocent person's name was a wicked act, contemptuous of that other person's dignity and rights, and a deception on the court.
38The victim no doubt suffered great anxiety about what had occurred, as well as great inconvenience in seeking to set the record straight.
39The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific to you and general - that is, making an example of your case in order to deter other people that might be so like-minded, rehabilitation, denunciation and the protection of the community.
40In sentencing I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, its context, your personal circumstances and those of the victims. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
41General deterrence and denunciation have significant prominence in the current sentencing balance. Specific deterrence also remains a consideration in light of the seriousness of the offending and the fact that you do have a record of previous dishonesty.
42In mitigation I take into account the matters urged on your behalf by your counsel, including:
· your early plea of guilty;
· the delay between the time of offending and sentencing and the fact that you have not re-offended in that period;
· your circumstances of personal difficulty at the time of offending, being a single mother of two young children in difficult circumstances and with a disadvantaged background; and
· in particular, your application to work and to study and your overall prospects of rehabilitation which I regard as still being good.
43Ordinarily for an offence of this nature, an offender should consider that a sentence of imprisonment to be immediately served is the most likely outcome.
44On balance in the particular circumstances of this case, I am persuaded that the purpose or purposes for which the sentence is imposed can be achieved by a sentence that does not involve your immediate confinement in prison. In my view you will benefit from the availability of appropriate programs in an atmosphere which is more conducive to your rehabilitation than if you were confined to a period of imprisonment.
45I also consider that the process of unpaid community work will provide a suitable balanced aspect of punitive deterrence.
46In light of the particular extenuating circumstances of this case, a community correction order would fall, in my view, within appropriate sentencing range. You have been assessed as suitable for such disposition. In the circumstances, as I say, I am satisfied that a sentence of imprisonment is not the only appropriate sentence and I am particularly reinforced in this aspect by the application of the recent decision of the Victorian Court of Appeal in the case of Boulton & Ors v The Queen [2014] VSCA 342.
47On Charge 1 of attempt to pervert the course of justice and the transferred Summary Charge 5 of stating a false name, you are convicted and ordered to serve a community correction order for a period of three years.
48The community correction order commences today and ends on 18 February 2019. The Corrections Centre you will attend is the Carlton Community Correction Service at 444 Swanston Street, Carlton, and you must attend there within two clear working days after the commencement of the order, that is by 4 pm on Tuesday next week, 23 February 2016.
49All the mandatory terms of a community corrections order apply and the additional conditions that I impose are that:
· you perform 150 hours of unpaid community work as directed by the regional manager; and
· you be under the supervision of a Community Corrections officer.
50I will explain the mandatory terms of the community corrections order. Those terms are that:
· you must not commit another offence for which you could be imprisoned during the time that the order is in force, and that is for a period of 3 years;
· you must comply with the requirements of Regulation 17 of the Sentencing Regulations 2011, which essentially set out your obligations as to your attendance at the Community Corrections Centre;
· you must report to and receive visits from a Community Corrections officer;
· you must report to the Community Corrections Centre, that is the Carlton centre, within two clear working days of the order starting and, as I have already indicated, that is by next Tuesday 23 February;
· you must notify a Community Corrections officer of any change of address or employment within two clear working days after the change;
· you must not leave Victoria without first getting permission to do so from a Community Corrections officer; and
· you must obey all lawful instructions from and directions of Community Corrections officers - such directions may be given either orally or in writing.
51You will be given written notice of all of this for you to read and to make sure you understand and comply. The main thing is that you maintain communication with the Community Corrections officers so there is no misunderstanding about these matters. Do you understand and agree to those conditions, Ms Kon?
52OFFENDER: Yes.
53HIS HONOUR: If you are sick or if there are exceptional circumstances, the order may be suspended for a period of time. If your circumstances materially alter you may apply for a variation or cancellation of the order. In either case, you must notify the Carlton Community Corrections Centre and I recommend that you obtain legal advice if any of these things happen.
54However, I must warn you that if you breach any condition of this community correction order you will be brought back before court, and that will be back before me. One of the options open to me at that stage is to cancel the community correction order and then just simply resentence you on the original charges, and I may also deal with you for the breach which is itself an offence, an offence which carries a maximum sentence of three months’ imprisonment. Do you understand the consequences of breaching your community correction order?
55OFFENDER: Yes.
56HIS HONOUR: I will ask you to sign the community correction order shortly. You may be seated.
57There is a further matter I need to attend to at this hearing. The Crown have made application for an identity crime certificate to be issued to Ms Deng and I will sign that certificate today.
58MS DUCKETT: It is available, Your Honour. There are three copies I am just handing up now.
59HIS HONOUR: All right. I will make the appropriate orders and comment in relation to the forensic sample order.
60MS DUCKETT: As the court pleases.
61HIS HONOUR: I will check the identity crime certificate shortly and if that is in order I will sign that today.
62MS DUCKETT: Yes, Your Honour.
63HIS HONOUR: Having considered the seriousness of these circumstances upon the application for the taking of a forensic sample, I am satisfied that in all the circumstances the making of the order is justified because the seriousness of the circumstances of the offending, in my view, warrant the making of the order and that the granting of the order is in the public interest.
64I make that order notwithstanding that it was not consented to and in fact it was opposed. I think the seriousness of the circumstances of the offending and the aspect of the prior appearance and order of the court are relevant. The second reason I apply that is the granting of the order is in the public interest.
65Ms Kon, I want you to listen to me carefully. If at the time that the request for the taking of the forensic sample is made, if you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force then police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that?
66OFFENDER: Yes.
67HIS HONOUR: All right.
68If there is nothing else, at this stage I would ask if Ms Kon could come out from the dock now for the purposes of signing the community correction order and when that is done I will counter-sign it. Just come up to the Bar table, if you would please, Ms Kon. Could you just explain what is happening now please, Ms Beissman.
69(Community corrections order signed and acknowledged.)
70(Identity crime certificate signed.)
71(Section 464ZF order signed.)
72Is there anything else from either counsel? No.
73Ms Kon, could you just stand for a moment. You should not consider this as being a soft option. This community correction order is a matter of singular and serious importance. If you breach this order … in light of your obvious intelligence and the fact that you can apply yourself to work and to study, I would take a very dim view of you not appropriately dealing with the work component aspects of this order or otherwise not complying with this order. It is a very serious matter. You have been given this opportunity to keep yourself out of trouble and to apply yourself to the punitive aspects, which is the unpaid community work. Notwithstanding the difficulties there might be with your children and the fact that you are working and studying, it is a very serious matter for you to breach. Do you understand that?
74OFFENDER: Yes.
75HIS HONOUR: You have committed very serious crimes. You have demonstrated that you have a potential for matters of gross dishonesty and selfishness, so if you breach this you are going to find yourself in real trouble and the children, they just might find themselves without their mother for a significant period. Do you follow that?
76All right, thank you everyone.
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