Director of Public Prosecutions v Kwajakwan
[2023] VCC 1977
•25 October 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-23-00508
CR-21-02242
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ORIGI KWAJAKWAN |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 & 25 October 2023 | |
DATE OF SENTENCE: | 25 October 2023 | |
CASE MAY BE CITED AS: | DPP v Kwajakwan | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1977 | |
REASONS FOR SENTENCE
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Subject:Sentencing - plea – contravention of CCO
Catchwords: Plea: Aggravated burglary
Contravention of CCO imposed on 5 July 2022Legislation Cited:
Cases Cited:DPP v Meyers [2014] VSCA 314
Sentence:Over both matters: 16 months' imprisonment, 9 months non-parole
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Dearman | Office of Public Prosecutions |
| For the Accused | Ms H. Anderson | Ajak and Associates |
HIS HONOUR:
1 Origi Kwajakwan, you have pleaded guilty to an offence of aggravated burglary on 30 October 2022. The maximum penalty for that offence is imprisonment for 25 years.
2 The prosecution filed and read to the Court a summary of prosecution opening for plea dated 13 October 2023. That is Exhibit A on the hearing. You were 27 years of age at the time of the offence and had no fixed place of abode.
3 On 30 September 2022 during the evening, your victims were having a barbecue dinner at an address in Dandenong when you entered the house through the doorway and took a step inside. At the point of entry you were holding a gardening tool - a weeder - which you held above your head and pointed in the direction of one of the females who were present at the social function, and you said, 'I'm going to kill'.
4 A male guest at the dinner party intervened, restrained you and escorted you outside. The hostess of the evening picked up the gardening tool that you brought with you from the deck. You were behaving erratically. You grabbed her left arm and said, 'I'm the king, I'm here to kill'.
5 During the course of the plea hearing a video obtained from the CCTV system at the property was played. It showed the interaction between you and the guests, or at least part of the action. You were escorted outside. You broke free and scaled the gate to leave the property in the direction of the Princes Highway. In all, you were at the property for about four minutes.
6 Police were on scene soon afterwards and located you lying in the garden bed in the driveway of a property on Princes Highway, Dandenong. You were conveyed to Dandenong Hospital for monitoring as a result of your clearly drug and/or alcohol-affected state. Police attended the address where the offence occurred and seized a pair of shorts which apparently belonged to you, and the gardening tool.
7 On the following day you were taken to the Dandenong police station where you were interviewed. You made admissions to the extent that you remembered having the garden tool in your hand but you did not remember hurting anyone with it. You remembered there being a party but that you did not lunge at anyone. Those are the brief facts of the matter.
8 I note that you have a criminal record which you have admitted. It contains the offences for which I dealt with you on 5 July 2022, which included an extortion with a threat to inflict injury; an offence of possession of a drug of dependence, and an offence of dealing with property suspected of being the proceeds of crime, namely a credit card which did not belong to you. For that offending you received a community correction order for 12 months to perform 120 hours of unpaid community work.
9 The prosecution also tendered a victim impact statement which was read in part to the Court, omitting matters that were not relevant to the issue or admissible in the proceeding. It suffices to say that the victim, the author of that report, who was the hostess of the evening where the offence took place, indicates the ongoing fear and mental disturbance that she feels as a result of what she considers to be a violation of her privacy. She also identifies the effect that your conduct had upon her autistic son.
10 The effect of burglaries, and particularly aggravated burglaries, on householder victims of that kind of offending is not to be underestimated. It is for that reason, at least in part, that the offence carries the maximum term of imprisonment of 25 years. It is also an offence which has attracted the attention of the Court of Appeal over many years and which is generally regarded as an offence of sufficient seriousness to warrant a term of imprisonment.
11 So far as the other matter that I need to deal with today, which is your breach of the community correction order that I imposed upon you on 5 July 2022, I have been provided with documents relating to that, including my sentencing remarks along with a contravention report from Community Corrections which shows that you contacted Corrections on 7 July 2022, thus satisfying your within two days reporting requirement and that you organised with Corrections to attend an induction appointment the following week, on 13 July of 2022. However, you failed to attend that appointment.
12 You were contacted by Corrections on 14 July 2022, and you advised of no reasonable excuse for your absence on the previous day. Corrections organised for you to attend an induction appointment later on that same day; however at the appointed time for your induction you failed to attend and Corrections contacted and spoke to you. You claimed to be shopping and unable to complete the appointment, given that you were in a public place.
13 Various other attempts were made to contact you, but you were the subject of a very serious assault which occurred on the following day, resulting in your hospitalisation. There was little if any contact between you and Corrections up to the time when you committed the offence of aggravated burglary on 30 October 2022.
14 Thereafter your cooperation with Corrections was superficial. It seems to me on reading that report and the report from the Australian Community Support Organisation, that you made very little effort to engage with those who were seeking to assist you under the terms of the order. I do not regard your commitment to that order as being sufficient. It was not non-existent, but it was superficial.
15 The recommendation of Corrections is that I should cancel the community correction order and re-sentence you for the offences for which the order was made. As I have indicated, those are an offence of extortion with threat to inflict injury, which was committed on 22 November 2020; an offence of possessing a drug of dependence on that same day, and an offence of possessing property reasonably suspected of being the proceeds of crime in the form of a credit card. It seems to me it is appropriate in the circumstances for me to deal with you in that way.
16 Before I identify what my sentencing orders will be, I indicate that I have received on your behalf an outline of defence submissions on the plea and the Corrections breach dated 14 August 2023, wherein your counsel has set out the important factors which she submits go to sentence in this case.
17 She concludes in paragraph 40 of that document that given the community correction order has not expired, it is open for the court to cancel and re-sentence. Her submission ultimately is that I should cancel the order and re-sentence you to a further community correction order with conditions not limited to drug and alcohol treatment, supervision, and community work hours.
18 I indicate now that, and it would be clear from my response to those submissions, that I do not accept that submission. It is necessary, in all the circumstances, to re-sentence you for those matters but not to a community correction order. It seems to me that your commitment to the last order was such that I could have no confidence that you would not be back before me in a short period of time for breaching such an order. I do not propose to waste the resources of Community Corrections on a further order; rather to deal with you by way of a custodial sentence, the details of which I will come to in a few minutes.
19 You have pleaded guilty to this offence and you have done so in circumstances where you must have realised that there was a substantial risk that you would undergo a custodial sentence. You are to be given full credit for your plea of guilty. It is apparent from looking at the facts of the case and your conduct on that day that you were seriously affected by drugs and/or alcohol. Even though your presence at the address would have been very frightening for those present, and particularly the females, it was an offence that was committed by somebody who appeared to be in a suspended state of reality.
20 It is difficult to see what you hoped to achieve in circumstances where you did not know any of the people there and did not appear to be seeking to steal anything. From what you have said to those present, it is clear that you were not functioning in a rational way and that would have been obvious enough to those who were present. Your condition enabled the male contingent at the social event to intervene and eject you from the property. The fact that you were found comatose 10 minutes later by police, lying in a garden bed near a driveway in a property a short distance away is testament to the degree to which you were affected by whatever drug or combination of drugs you had ingested on that day.
21 Ordinarily the ingestion of drugs, particularly by somebody who was already accustomed to abusing drugs of that kind which included methylamphetamine and gamma-hydroxybutyrate, GHB, on that day would not have provided any mitigation for the offending. It would have required me to impose a sentence that is commensurate with the seriousness of the offence having regard to the maximum term of imprisonment and to the authorities which show that offending of that kind ordinarily is visited with a substantial custodial sentence.
22 However, there were a number of other items that I was provided with, including the Australian Community Support Organisation report dated 7 March 2023, which is Exhibit 2; the letter from your father dated 10 August 2023, which is Exhibit 3; a psychological report from Dr Mathew Staios, clinical neuropsychologist, dated 9 October 2023, which is Exhibit 4, and I will come to that in a bit more detail in a minute; a Court Integrated Services Program report dated 16 March 2022, along with a short letter from the author of that report dated 30 March 2023 which is, I think, to be regarded as part of Exhibit 5, namely being the CISP report.
23 Turning to Dr Staios' report, Exhibit 4, the report provides a useful background history of your Sudanese background, you having been raised in Egypt, that you are the eldest child of a sibship of six, and that your immediate family and extended family fled Sudan in the context of civil war prior to your birth.
24 This was a family in respect of whom several family members were executed in Sudan. Although those matters were not openly discussed within the family, you indicated that your living situation in Egypt was impoverished and both your immediate and extended family members were provided with subpar and overcrowded accommodation.
25 You came to Australia when you were six years of age after your family had been granted political refugee status. You characterised your transition into Australian society as unremarkable and did not report any exposure to prejudice or marginalisation. You attended English language school for a period of two years, as Arabic had been your dominant language prior to your arrival.
26 Your father holds a master's degree in theology and works for several churches across the south eastern suburbs of Melbourne, as he indicates in his own letter to the Court. Your mother was initially a stay-at-home care giver; however in more recent years she has been an active member of the Sudanese community and plays a role in maintaining and organising community-based events.
27 You reported to Dr Staios sharing a close relationship with your immediate family, and characterised your relationship with them as positive and supportive. You have, in more recent times, fathered a child who is now about eight months old with a lady with whom you had a strained relationship which was characterised by mutual issues with regard to substance abuse. Your capacity, and her capacity, to care for that daughter resulted in that daughter being looked after by another family member. You have also recently discovered that you are the father of another daughter born approximately two and a half years ago, and your discovery of that apparently had something of an effect upon you, your emotional state.
28 You achieved a Year 12 pass at school and since leaving school it seems you have been largely fully employed, although you were unemployed at the time of the assault upon you which resulted in your hospitalisation on or about 15 July of 2022. I am satisfied from what is contained in the report of Dr Staios that at the time of this offending, that is 30 October 2022, you were suffering from post-traumatic stress disorder and that that condition had been a substantial factor in your resort to substance abuse.
29 When you consulted with Dr Staios for the purposes of this report on
31 July 2023 you indicated that your symptoms of post-traumatic stress had, by then, subsided. Dr Staios goes on to say that no cognitive or perceptual disturbance was noted. He took the view that you gave your best to all of the tasks that were administered to you in the consultation you had with him.
30 There was a suggestion of an acquired brain injury, but it does not seem there is anything in the report to indicate that there is any long ongoing issue relating to an acquired brain injury.
31 In paragraph 7.2 Dr Staios says, amongst other things:
'The nature of his current offending appears to have escalated in more recent times, which appear to coincide with a number of multiple personal stressors, including discovering that he had previously fathered a child who is now two and a half years old, sustaining several stab wounds and hospitalisation in July 2022, the birth of his most recent daughter in December 2022, a three year unstable interpersonal relationship characterised by mutual substance misuse; homelessness, and polysubstance abuse as a means of coping and escapism. These factors are important to consider, particularly given his foundation of early childhood instability, exposure to displacement and intergenerational trauma, which have left him predisposed to substance use in adulthood. In my opinion, in the lead up to his current offending Mr Kwajakwan met criteria for adjustment disorder (depressive subtype) and post-traumatic stress disorder'.
32 He goes on to say:
'Mr Kwajakwan stated that he has experienced significant stabilisation in his mental health since his hospitalisation in 2022; however, ongoing monitoring [of] his psychological health will be necessary given the nature of this reported incident and his subsequent offending, all of which appear to be linked.’
33 He says in paragraph 7.3:
'Finally, the impact of Mr Kwajakwan's early childhood and exposure to significant instability in the context of the intergenerational trauma should not be overlooked or minimised as these early destabilising factors leave him vulnerable to drug seeking behaviours when faced with adversity in adulthood. Moving forward, Mr Kwajakwan may wish to consider engaging in psychological intervention with a culturally similar treatment provider where factors relating to shame, stigma surrounding help-seeking and disclosure may be minimised.’
34 Upon that assessment, the facts from the prosecution opening and the viewing of the CCTV footage of the incident, there is, at least on the balance of probabilities, a credible link between the post-traumatic stress disorder and your drug abuse which led to your intoxicated state, which was obvious enough to observe from your conduct during the aggravated burglary on 30 October 2022.
35 After the offence was committed you were in custody for a while and were released on bail on 15 September. Your younger daughter was born on 16 December 2022. That daughter is now in the care of your sister.
36 Your counsel addressed the objective gravity of the offending with reference to the considerations set out in the judgment of the Court of Appeal in DPP v Meyers[1]. She concedes that aggravated burglary is an inherently serious charge applying the considerations involved in this case, that is those arising from the case of Meyers. She says it is submitted that the conduct of Mr Kwajakwan should be considered at the lower end given various facts which I have already set out, I think, adequately from the prosecution opening. I accept that submission.
[1] [2014] VSCA 314
37 It seems to me that although, as was rightly conceded, the offence is an inherently serious offence, this offending was at the lower end of the scale of seriousness. Your counsel characterised the circumstances of the offending as bizarre, opportunistic, of short duration, and clearly involved no planning or sophistication. She conceded that it would have been highly alarming to the victims and still on that basis that it should be considered a low level confrontational aggravated burglary.
38 She points out the utilitarian value of the plea in this case, and I give full credit for the plea of guilty, tendered as it is at the tail end of the effects of the COVID pandemic still impacting the prison system and the desirability of ameliorating the backlog of cases pending in this Court. She identifies cases which she invites me to consider as assisting with current sentencing practice in cases of this kind, although she concedes that every case has to be determined on its own facts.
39 In respect of the breach, as I have already indicated, she invites me to consider cancelling and re-sentencing you to a community correction order. I have already indicated that I do not think that is appropriate for the reasons I have already stated.
40 It is necessary for me to consider the maximum term of imprisonment for the offence and what the Courts have said about the seriousness of aggravated burglary offences and, as the prosecution point out in their submissions, I need to take into account the effect on the victim or victims and the impact upon the author of the victim impact statement and upon her son.
41 It is necessary to punish you adequately for your offending conduct; to denounce your conduct; to give proper weight to the need for general deterrence; that is, deterring others from committing similar offences, and also to deter you from committing similar offences in the future. However, it is also important to balance that against the need for your rehabilitation.
42 As to your prospects of rehabilitation, it will depend very much on your capacity to deal with issues of drug abuse that have affected your life in these last few years, to resume your good work history and to look to and to take advantage of the support of your family in your continued rehabilitation. It is disappointing that you did not make more use of the community correction order during its currency. It raises a question of the degree to which you are committed to pursuing rehabilitation with the kind of determination that might be required to overcome the temptation to resume drug abuse as a means of dealing with emotional stress.
43 I need to consider, in dealing with the breach of the community correction order, the need to punish you adequately for that and to deal with you justly and fairly in relation to the re-sentencing for the offences, the subject of that community correction order. I propose to deal with that by way of a short term of imprisonment but there will not be a significant increase in the total effective sentence overall. When I say not significant, it will be limited to one month, so there will not be a very significant impact upon you for that earlier offending but it disposes of those offences for the purposes of sentence.
44 I shall now impose sentence upon you.
45 For the offence of aggravated burglary on indictment M12362919 I convict you and sentence you to imprisonment for 15 months.
46 The total effective sentence on that indictment is imprisonment of 15 months.
47 In relation to the breach of the community correction order, I order that the community correction order be cancelled and that you be re-sentenced on the offences the subject of that order.
48 On Charge 1 on indictment L12738768, which is the offence of extortion with threat to inflict serious injury and which carries a maximum term of imprisonment of 15 years, I convict you and sentence you to imprisonment for two months.
49 On Charge 2 on that indictment of possessing a drug of dependence I make the same order as I made on the last occasion: I dismiss that charge pursuant to s76 of the Sentencing Act.
50 In relation to the related summary offence of dealing with property reasonably suspected of being stolen, you are convicted and sentenced to imprisonment for one month. In addition, I sentence you to one month for the offence of breaching the community correction order.
51 I order that one month of the sentence of two months on Charge 1 on the indictment, that of extortion, be served cumulatively upon the sentence of 15 months imposed for the offence of aggravated burglary on indictment M12362919, making a total effective sentence over all of the offences, of imprisonment for 16 months.
52 I fix a non-parole period of nine months.
53 I declare 55 days as time to be reckoned as served on the sentence that I have imposed over both indictments and to be deducted administratively.
54 But for your pleas of guilty I would have sentenced you to imprisonment for two years and two months, and fixed a non-parole period of imprisonment of
20 months.
55 Are there any other orders that I have failed to make or any corrections that I need to make to the sentencing?
56 MS DEARMAN: Just the disposal order for the weeder, Your Honour, but I think that was done on the last occasion.
57 HIS HONOUR: I make the disposal order for the weeder.
58 MS DEARMAN: Thank you, Your Honour.
59 HIS HONOUR: Which was not, as I understand it, the property of the hosts at the property and therefore it is an appropriate order to make and it is not opposed.
60 MS DEARMAN: As Your Honour pleases.
61 MS ANDERSON: Nothing further from the defence, Your Honour.
62 HIS HONOUR: Yes, thank you. Mr Kwajakwan, you have heard what I've said and I know it's been a rather lengthy explanation of my reasons for sentence. I hope you see this as an encouragement for you to pursue your rehabilitation in the future and to continue to accept the support of your family and those nearest and dearest to you, and resume a more settled lifestyle, perhaps with the prospect of resuming or fulfilling your parental duties.
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