Director of Public Prosecutions v Kur

[2023] VCC 1802

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-22-02010

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHOL KUR

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JUDGE:	HER HONOUR JUDGE BLAIR
WHERE HELD:	Melbourne
DATE OF HEARING:	4 October 2023
DATE OF SENTENCE:	4 October 2023
CASE MAY BE CITED AS:	DPP v Kur
MEDIUM NEUTRAL CITATION:	[2023] VCC 1802

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence  

Catchwords:              Plea of guilty following sentence indication – aggravated carjacking (person injured) – Category 1 offence – relatively minor injury – opportunistic offending –  youthful offender – refugee background – visa cancellation

Legislation Cited: s 5(2G), s10AD, s 10A Sentencing Act 1991 (Vic); s207(1)(a) Criminal Procedure Act 2009 (Vic)

Cases Cited:R v Mills [1988] 4 VR 235 - Azzopardi v The Queen (2011) 35 VR 4 - Worboyes v The Queen [2021] VSCA 169 - Matamata v The Queen [2021] VSCA 253 - Guden v The Queen (2010) 28 VR 288 - Jason Mammoliti v The Queen (2020) 281 A Crim R 511

Sentence:                  3 years and 6 months’ imprisonment, non-parole period of 3 years.

s6AAA – 4 years and 6 months’ imprisonment

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P. Teo	Office of Public Prosecutions
For the Accused	Mr J. Miller	Balmer & Associates

HER HONOUR:

1Chol Kur, your case was listed for trial to commence 26 September 2023 and was adjourned to 27 September 2023.  That was done to accommodate the court.  Your counsel indicated that there had been some movement in relation to the issues in dispute.  You had been charged with a total of six offences including alternative charges of aggravated carjacking.  The circumstance of aggravation alleged was that you were in company and there was use of a knife and the other was that you were in company and a person had been injured.  A sentence indication was sought on a charge of aggravated carjacking with the circumstance of aggravation being that a person was injured and ultimately that is what you have pleaded guilty to.

2The offence of aggravated carjacking is a serious offence. Parliament has seen fit to define it as a Category 1 offence. So, for Category 1 offences, s5(2G) of the Sentencing Act provides that you must receive a term of imprisonment[1]. Further, pursuant to s10AD of the Sentencing Act[2], the court must impose a statutory minimum non-parole period of three years, unless a special reason exists pursuant to s10A of the Act[3].  Your counsel did not advance a special reason in your case and you are therefore caught by the mandatory sentencing provisions.

[1]Sentencing Act 1991 (Vic) s5(2G).

[2]Ibid at s10AD.

[3]Ibid at s10A.

3I allowed your application for sentence indication back on 27 September of this year and, pursuant to s207(1)(a) of the Criminal Procedure Act 2009,[4] I indicated that if you were to plead guilty to the one charge of aggravated carjacking (person injured), I would impose a term of imprisonment of three years and six months with a non-parole period of three years.  You have accepted my sentence indication.

[4]Criminal Procedure Act 2009 (Vic) s207(1)(a).

Circumstances of Offending

4

The prosecution opening was tendered this morning.  That was on the plea and that was marked as Exhibit A.  I do not propose to recite that document in full. 

I will just go through a summary of your offending which you have only just heard but I will repeat it.

5Your offending occurred on 24 May 2022.  You were 22 years old at that time.  The victim, George Kastanaras, was someone you knew from high school and you had known him for about eight years at the time of the offending.  At around 4.30 pm on this date, you contacted the victim and asked him if he could pick you up from your girlfriend's home and take you to your home.

6The victim agreed and drove his car, which is actually registered to his mum, a white Audi A4.  He arrived at your girlfriend's home at around 6 pm.  Initially you asked to be dropped off at no.10 Ambervue Drive but then changed this to no.29.  When you arrived at Ambervue Drive, you told the victim that you wanted to pick up your cousin and go to St Albans.  You then got out of the car and returned a short time later with David Wani, who was your friend and someone who was not known to the victim.

7

At approximately 8 pm the victim drove you and your co-offender to the

Metro Service Station at 263 Ballarat Road, Braybrook, to get some snacks.  

All three of you were depicted on CCTV footage at the service station.

8

Next you directed the victim to take you to a park in Derrimut where you saw another of your friends.  That friend arrived on an electric scooter.  Your co‑offender then said that he wanted to go and see another friend and directed

the victim to an industrial area in Ravenhall.  The victim stopped the car on

Rockfield Way at approximately 8.30 pm.

9All three of you got out of the car and waited for your co-offender's friend.  The victim was standing near the front bonnet of the driver's side and you and your co‑offender huddled together near the petrol tank on the same side.

10Your co-offender then told the victim, 'Give me your keys'.  You then came behind the victim, put your arms around his waist and threw him to the ground.  The victim got up, tried to push the two of you away but he was held by the hood of his jumper.

11The three of you scuffled and the victim fell to the ground.  Whilst he was on the ground you and your co-offender kicked him.  It was whilst he was on the ground that the victim saw a black-handled knife with a blade.  He kept his head down for protection but at one stage was kicked in the face.

12Your co-offender was able to get the keys during the scuffle.  He got in the driver's seat of the car.  You sat in the backseat with the victim.  He was told he would be dropped home.  At one stage, you had him in a headlock whilst your co-offender filmed this from the front seat.  The victim fought you off and got out of the car.  He picked up a plank of wood he found nearby.  You got out of the car and came towards the victim.  He hit you across the shoulder and neck with the plank of wood.  Your co-offender got out of the car and came towards the victim with a knife.  The victim dropped the plank of wood and ran away. You and your co‑accused drove away in the car.

13The victim telephoned his mother.  She picked him up.  They reported the matter at Sunshine police station where he made a statement and had photographs taken.  He attended a medical centre the next day.  The doctor found he had sustained a bruised periorbital area around his left eye and a subconjunctival haemorrhage in his right eye.

14Early the following morning on 25 May 2022, the Victoria Air Wing observed the stolen Audi A4 travelling at a fast rate of speed in Brookfield and tracked the vehicle through Melton into Cobblebank.[5]

[5]The hearing was interrupted as the prison video link was terminated. The hearing resumed later the same day at 2.45pm

15Early the following morning on 25 May 2022, the Victoria Air Wing observed the stolen Audi A4 travelling at a fast speed in Brookfield and tracked the vehicle through Melton into Cobblebank.  The car was observed to be parked approximately 50 metres away from 29 Ambervue Drive, Cobblebank which was the home of your co-offender.  He was arrested by police shortly after and you were arrested at around this time.

16A search of the stolen Audi A4 was conducted and a knife with a black handle and silver blade was located.  Photographs were taken of the car.  The house was searched.  A number of items were seized.

17You took part in a record of interview with the police.  You essentially denied the offending although you admitted that you knew the victim.

Nature and Gravity of Offending

18As I have mentioned aggravated carjacking is a serious offence.  It is punishable by 25 years' imprisonment and has been designated as both a Category 1 offence and an offence for which a minimum mandatory non-parole period has been set.

19Your offending occurred in the early hours of the morning in an isolated location and your co-offender had a knife.  The agreed factual basis of the offending is that you are not to be considered complicit in the use of the knife and accordingly you will not be sentenced in relation to the presence of the knife.

20The incident of offending was undoubtedly frightening for your victim.  He was outnumbered and assaulted by you and your co-offender.  You took advantage of your friendship with the victim who you had known for about eight years.  He had gone out of his way to help you by picking you up from your girlfriend's house and then driving you to a number of other locations at your request.  Your victim was likely caught off guard by your attack as you were someone he thought he could trust.

21As a result your victim suffered injury that would have been painful and uncomfortable for him.  Although your offending is serious it is not the most serious example of offending of this nature.  In my view it was opportunistic, having started in a consensual driving arrangement and the physical injury sustained by the victim was not significant or lasting.  Additionally the car was recovered by police largely undamaged.

Victim Impact

22A victim impact statement was received from George Kastanaras and marked as Exhibit B on the plea.  In his statement Mr Kastanaras describes how what you did was the lowest thing somebody could do and that was especially so because you were his friend and you betrayed him.  As a result he does not trust anybody and cannot work or study due to problems with concentration.  This has had a major impact on him financially as he was working casually.  The other impact is that he does not want to go out anymore.  Mr Kastanaras describes being frustrated and angry, not just because of what you did to him but also the impact it has had upon his mother.

23I acknowledge the impacts your offending has had on the victim and I take into account the impact of your offending on your victim when imposing sentence.  
I should say that I hope that now the matter has finalised before the court that Mr Kastanaras can move forward.

Personal Circumstances

24In terms of your personal circumstances, you are currently 23 years of age and you were 22 at the time of the offending.

25You were born in South Sudan and you are the eldest of nine siblings.  Your youngest sibling is four years old.

26When you were a young child, you and your family became refugees from
South Sudan, a country which has been subject to civil war for many years.  You spent some time in a refugee camp in Egypt before moving to Australia on a humanitarian visa when you were five or six years old.  Perhaps fortunately, you do not have any memories of this time.  You believe your father is living somewhere in Africa but you do not have contact with him and you have not been close to him for a long time.

27Despite this difficult start to life, you report a relatively happy childhood with your mother and siblings with whom you were living prior to your remand.

28You attended Catholic Regional College in St Albans from Year 7 to 10 before you were expelled for fighting.

29You do not have any reported employment history but you have provided support to your mother at home in helping raise your many siblings.  You told your counsel that your intention prior to being remanded for these offences was to work in a warehouse with your cousin and to save money to complete further study.  In the past you had started a mechanics course which you had an interest in returning to.

30A few months prior to being remanded for this offending you sustained a hand injury for which you did not seek immediate treatment.  This resulted in the injury healing badly and two fingers no longer move properly and you suffer ongoing pain.  This hand injury impacted your ability to seek work prior to your remand.

31You believe you may have anger issues which over time have escalated, however, you have never had any substantial counselling or other treatment for mental health.  There is no family history of mental health problems to your knowledge.  You believe that in the past you have tried to self-medicate by abusing drugs and alcohol, including cocaine, pills and MDMA.

32Since being in custody urine screens show you have been abstinent from drugs.  You have been prescribed the anti-depressant mirtazapine which you have been taking for about 12 months to assist you with sleeping.  You have been employed continuously as a billet since being remanded.

33This is not your first extended period in custody having previously been remanded in 2020 in relation to murder charges which eventually resolved to a charge of robbery in your case.  Upon resolution of that matter, you were released on the day of court after serving 323 days in pre-sentence detention and you were not subject to any form of supervision upon release.  You told your counsel that following your release from custody for this offending, you wanted to turn your life around, but you did not know where else to turn besides the same peers as before who were involved in criminal activity.

34Not long prior to this offending on 5 May 2022, you were sentenced to two days' imprisonment reckoned as time served for possession of numerous drugs including methylamphetamine, cocaine and cannabis, as well as breach of bail offences.  You have several other matters from 2018 and 2019 which primarily relate to property related offences including theft, robbery and breaching bail.  
In 2019, you were sentenced to 18 months in a Youth Training Centre or Youth Justice Centre following a number of adjourned undertakings and periods of probation imposed for offending prior to this time.

Deportation

35You are not an Australian citizen and you are currently permitted to reside in Australia on a Global Humanitarian visa. 

36Because this offending requires that I impose a penalty of more than 12 months' imprisonment, your visa is subject to the mandatory cancellation provisions of the Migration Act.  Your counsel has provided the signed statement of Amanda Staier, officer within the Department of Home Affairs, which confirms your citizenship status and that the Department is currently assessing whether your visa should be cancelled.  That was tendered on the plea and marked as Exhibit 1.

37I accept that the prospect of deportation will make your time in custody more onerous.  I also accept that deportation, if it did occur, would constitute an additional punishment as you would lose the opportunity to permanently settle in Australia.  It is not clear whether you would be able to successfully challenge the cancellation or where you would be deported to.

38The courts have recognised that the impact of deportation may vary depending on each offender's circumstances.  I consider that the impact in your case would be significant as you have spent the vast majority of your life in Australia and you have no close familial ties to South Sudan.  In fact, you have no memory of your time there.[6]

[6]          Matamata v The Queen[2021] VSCA 253; Guden v The Queen (2010) 28 VR 288.

Plea of Guilty

39

As I have already mentioned your trial settled after sentence indication shortly before the trial.  However, you have always maintained that you did not possess and use a knife during the course of the offending.  This was the issue identified in dispute at a case assessment hearing in February this year.  I accept that although your plea was late, coming as it did when the matter was listed for trial,

I accept that it was necessary for you to get to this point to enable a resolution that was acceptable.  In these circumstances I give you credit for your plea of guilty as a relatively early plea.  I consider it has significant utilitarian benefit.  The court has been spared the time and expense of a trial and witnesses were not required to give evidence.  Most importantly the victim was spared from giving evidence at trial.  In this way your plea has facilitated justice.

40I also take into account that your plea of guilty has occurred during a time when the court is still experiencing the crippling backlog of cases that have accrued as a result of the COVID-19 pandemic.  I propose to give you a significant discount for your plea of guilty.[7]

[7]        Worboyes v The Queen [2021] VSCA 169.

Youth

41At 23 years of age and 22 at the time of your offending, you are not a 'young offender' for the purposes of the Sentencing Act. 

42Nonetheless, I accept your counsel's submission that you are a youthful offender and you are of an age where a person has not yet fully developed self-control, insight and considered decision-making abilities.  Thus, I consider the sentencing principles set out in Azzopardi and Mills still have some relevance in your case.[8]

[8]        Azzopardi v The Queen (2011) 35 VR 4; R v Mills [1988] 4 VR 235.

43Though your offending is serious, I still consider rehabilitation to be a relevant sentencing consideration because of your age.  In my assessment you still have the ability to make meaningful changes as you had previously planned.  This has been demonstrated by your drug free status in custody, your consistent work as a billet and the ongoing support of your family.

Sentencing

44I consider the relevant sentencing principles that must be applied in your case are general and specific deterrence albeit moderated to a degree, denunciation, protection of the community and just punishment.  I must also be mindful of the principles of parsimony and proportionality.  That is I must impose a sentence that does no more than is necessary to punish you and the punishment must fit the crime.

45

I have taken into account the sentencing guidelines referred to in s5 of the

Sentencing Act[9]

where relevant to your case.  I have also taken into account, as far as possible, the current sentencing practices for the offence of aggravated carjacking to which you have pleaded guilty.

46On the charge of aggravated carjacking I have taken into account the maximum term of imprisonment of 25 years and the mandatory minimum non-parole period as guidelines.  I do not intend to exceed the minimum mandatory term of imprisonment as a reflection of your youth, your plea of guilty and the other important mitigating factors in your case including the issue of deportation and your potential for rehabilitation.[10]

[10]        Jason Mammoliti v The Queen (2020) 281 A Crim R 511.

[9]        Sentencing Act 1991 (Vic).

Disposition

47Mr Kur in relation to Charge 1 of aggravated carjacking, you are convicted and sentenced to a period of three years and six months' imprisonment.  I order that you serve the minimum mandatory term of three years before being eligible for parole.

48Pursuant to s18 of the Sentencing Act I declare that you have served a total of 497 days by way of pre-sentence detention.

49Pursuant to s6AAA of the Sentencing Act, bearing in mind the application of the mandatory sentencing regime that applies, I would have sentenced you to a period of four years and six months but for your plea of guilty.

50I will make the disposal order for the knife that is sought by the prosecution.

51

All right.  So that finalises the matter, Mr Kur, as far as the court is concerned. 

So the 497 days that you have served will be taken off that non-parole period of three years.  So it will be something like around 18 months or so before you will be eligible for parole, all right?  So do you understand the sentence?

52OFFENDER:  Yeah, I do.

53HER HONOUR:  Yes.  All right.  Well yes.  I hope that you get to do some programs in custody and that you get parole and there is a bit of supervision and support for you in the community.  So make use of anything that you get would be my advice, all right?

54OFFENDER:  Yeah. 

55HER HONOUR:  All right.  Thanks very much, Mr Miller and Mr Teo.  Is there anything else I should ask?

56MR TEO:  No, Your Honour.

57HER HONOUR:  No.  All right.