Director of Public Prosecutions v Kwajakwan
[2022] VCC 1092
•5 July 2022
IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for PublicationAT MELBOURNE
CRIMINAL DIVISION
CR-21-02242
DIRECTOR OF PUBLIC PROSECUTIONS v ORIGI KWAJAKWAN ---
JUDGE:
HIS HONOUR JUDGE MAIDMENT
WHERE HELD:
Melbourne
DATE OF HEARING:
5 July 2022
DATE OF SENTENCE:
5 July 2022
CASE MAY BE CITED AS:
DPP v Kwajakwan
MEDIUM NEUTRAL CITATION:
[2022] VCC 1092
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Extortion with threat to inflict injury - possess drug of dependence - deal with property suspected of being proceeds of crime
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence:12-month community correction order
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APPEARANCES:
Counsel Solicitors For the Director of Public Prosecutions Mr S. Davison Office of Public Prosecutions For the Accused Mr M. Kozlowski Ajak Wolan & Associates HIS HONOUR:
1 Origi Kwajakwan, you can remain seated for the time being. You have pleaded guilty to an offence of extortion with a threat to inflict injury for which the maximum penalty is imprisonment for 15 years. You have pleaded guilty to possession of a drug of dependence, a small quantity of cannabis, for which the maximum penalty is five penalty units. And you have pleaded guilty to a related summary offence of dealing with property suspected of being proceeds of crime, for which the maximum penalty is imprisonment for two years. That offence relates to a credit card of which you were found to be in possession by police upon your arrest in the early hours of 22 November 2020.
2 The prosecution has relied upon Exhibit A which is the summary of prosecution opening for plea. It has been read and I am not going to read it again, but it sets out the circumstances in which you, with your alleged co‑offender Mr Elmi in the background, extorted $400 from your victim who had lost his mobile phone a short time previously. The demand was for that sum in exchange for the return of the phone.
3 You were the one who was conveying the implied threats of physical harm. You freely acknowledged in a subsequent interview with police that your conveyance of those threats would have terrified your victim and resulted in the $400 being handed over to you which you shared equally with your alleged co‑offender Elmi. Indeed, you were found in possession of $200 upon your arrest later that morning.
4 You were also found in possession of a small quantity of cannabis. I do not regard that as being an offence of great seriousness, but I do regard the offence of extortion as being a serious offence. The maximum penalty of 15 years reflects that fact.
5 You have admitted a prior criminal history, although I disregard that for sentencing purposes. It does not have any offending of this nature or any offending other than offences associated with driving a motor vehicle and use of alcohol. As your counsel has rightly pointed out, the convictions underscore the proposition that you may have had more to drink that night than was good for you and that that may have affected your judgment.
6 It does not excuse your offending by any means, but I am encouraged to learn that you have decided to turn over a new leaf so far as alcohol use is concerned. No doubt that will assist you to be a good partner and hopefully a future father. Your partner has attended court today with you. It is to be hoped that you can settle down to an honest, decent life in the future.
7 Your counsel has told me a bit about your background. That is set out in his outline of plea submissions. It is clear that you come from a good family and you have had a good upbringing with good educational opportunities. You have done well at school and subsequently with your academic studies.
8 You have had various jobs, including working as a disability support worker with EasyCare Living, and more recently working in an electrical panels factory where you suffered a work-related injury from which you are still suffering consequences. You have been off work on Newstart whilst you have been recovering from that injury. I accept that your desire is to get back to work so that you can support your partner and young family when hopefully that emerges.
9 It is to your credit that you cooperated with the police and admitted your offending conduct. It seems to me that you did so with a degree of frankness. That is very much in your favour. You have pleaded guilty at a reasonably early opportunity. You are entitled to significant credit for that, particularly in these Covid-related times.
10 I would ordinarily regard an offence of this nature as requiring serious consideration of a term of imprisonment even if it was a first offence of its kind. However, it seems to me that your prospects of rehabilitation are such that it would be unfortunate to interrupt that process. You have stayed out of trouble since the offending and I am told that there are no other outstanding matters pending.
11 Your counsel has urged me to impose a community correction order rather than a term of imprisonment and I think in all the circumstances that is reasonable. You must be punished for this offending. It is necessary for the court to mark the seriousness of the offending with a punishment that has the capacity to deter others from engaging in similar conduct.
12 In all the circumstances I am inclined to deal with you, therefore, by way of a community correction order with the sole condition, beyond the standard conditions, being that you complete 120 hours of unpaid community work. Mr Kwajakwan, I understand you have already discussed that with your counsel; is that right?
13 OFFENDER: (No audible response.) [The offender nodded in agreement.]
14 HIS HONOUR: Yes. And I am going to go through the terms of the order so that you can indicate whether you consent or not, because I cannot impose such an order unless you do consent. Do you understand?
15 OFFENDER: (No audible response.) [The offender nodded in agreement.]
16 HIS HONOUR: All right. You are living at Narre Warren I think. That is right, is it not? Yes?
17 OFFENDER: Current address.
18 HIS HONOUR: And I understand the nearest Community Correctional Services office is at Walker Street, Dandenong, so that will be the office you will need to report to. The conditions that will apply are that you must attend the Dandenong Community Correctional Services at 46-50 Walker Street, Dandenong within two clear working days after the commencement of this order which is today. So that will be by 4 pm on Thursday. You will need to report to that office.
19 The order contains some mandatory terms, that is, standard terms that apply to all community correction orders. I am going to read those out to you now:
· you must not commit any other offence for which you could be imprisoned during the time that the order is in force - the order will be in force for a period of 12 months from today so you must not commit an offence punishable by imprisonment during the next 12 months;
· you must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations which concerns not turning up to your required work commitments or to the offices of the Community Correctional Services drunk or drug-affected or that kind of thing;
· you must report to and receive visits from the Secretary or the Secretary's delegate;
· you must report to the Community Correction Centre within two clear working days of the order starting;
· you must let a Community Corrections officer know within two clear working days of you changing your address or your job;
· you must not leave Victoria without first getting permission to do so from the Secretary or his or her delegate; and
· you must obey all lawful instructions from and directions of the Secretary or the Secretary's delegate.
20 In addition to those standard conditions, the work condition is that you must perform 120 hours of unpaid community work over the period of 12 months in which the order is in force and that will have to be done at the direction of the regional manager. If you fail to comply with this order the Secretary of the Department of Justice may give you a direction to perform additional hours of unpaid community work. Do you understand that?
21 OFFENDER: (No audible response.) [The offender nodded in agreement.]
22 HIS HONOUR: All right. Now, in addition I need to tell you that if you breach any of the terms or conditions of the order then you are liable to be brought back to this court, probably before me, to be considered for resentence on these charges. Do you understand?
23 OFFENDER: (No audible response.) [The offender nodded in agreement.]
24 HIS HONOUR: If that happens there is a fair chance you would be sent to gaol, particularly if the breach of the condition is that you have committed a further offence during the period of the order. In addition to all of that, even for breaching the order you are up for a prospective period of imprisonment of three months. Do you understand?
25 OFFENDER: (No audible response.) [The offender nodded in agreement.]
26 HIS HONOUR: All right. Now, if your circumstances change, if you become ill or for one reason or another you are unable to comply with the terms of the order, then you must contact the Community Corrections office and tell them the reasons that you are having difficulty in complying with the order. You have the right to apply for a variation of the order or for a suspension of the order or even to have the order discharged. Do you understand?
27 OFFENDER: (No audible response.) [The offender nodded in agreement.]
28 HIS HONOUR: If any of those things happen, if for one reason or another you are prevented from or it becomes extremely difficult for you to perform the terms of the order, I suggest you go back to see your solicitors and get them to advise you and to make the necessary applications. All right?
29 OFFENDER: (No audible response.) [The offender nodded in agreement.]
30 HIS HONOUR: Now, do you understand those terms and conditions?
31 OFFENDER: Yes.
32 HIS HONOUR: Yes. Are you willing to comply with those terms and conditions?
33 OFFENDER: Yes.
34 HIS HONOUR: All right. I am going to ask you in a minute to sign the order, but first of all I am going to impose sentence upon you.
35 For the offence of extortion, Charge 1 on the indictment, and for the summary offence of dealing with property suspected of being the proceeds of crime, I impose a community correction order for a period of 12 months with the conditions that I have outlined, the unpaid work condition being that you must perform 120 hours of unpaid community work over that period as directed by the regional manager.
36 For the offence the subject of Charge 2 on the indictment, possession of a drug of dependence, I regard that as being an offence so minor that I propose to dismiss that under s76 of the Sentencing Act.
37 I also make the two ancillary orders which I have been asked to make. The items the subject of the schedule to the forfeiture order - that's the cannabis I assume; is that right?
38 MR DAVISON: Your Honour, no. Charge 1, forfeiture of the $200.
39 HIS HONOUR: Forfeiture of the $200. Yes, all right. I make that order. And Charge 2 is - is that the cannabis one?
40 MR DAVISON: It is, Your Honour.
41 HIS HONOUR: Yes.
42 MR DAVISON: Charge 2 is disposal of the cannabis and Charge 5 disposal of the bankcard.
43 HIS HONOUR: All right. Now, I direct that the pleas of guilty and the admission as to your criminal record be entered into the records of the court. Are there any other orders I need make?
44 MR DAVISON: Your Honour, I would just ask that you indicate whether it is with conviction or without conviction.
45 HIS HONOUR: Sorry, I didn't say that. Yes, the community correction order with conviction.
46 MR DAVISON: As the court pleases.
47 HIS HONOUR: Now, Mr Kozlowski, would you perhaps go with my associate to your client so that he can consider and sign the order if it is appropriate for him to do so.
48 MR KOZLOWSKI: Yes, thank you, Your Honour.
49 HIS HONOUR: The order itself will tell you that you need to telephone the Dandenong Community Corrections office. Do you understand?
50 OFFENDER: (No audible response.) [The offender nodded in agreement.]
51 HIS HONOUR: Because they're not taking people in person because of the Covid pandemic. The telephone number will be on the order. So you will need to telephone the office within two clear working days. Mr Kwajakwan, I have now signed the order. The order is now in force, and you may now leave the dock.
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