Director of Public Prosecutions v Leek

[2022] VCC 1071

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-21-01768

DIRECTOR OF PUBLIC PROSECUTIONS

v

TIMOTHY LEEK

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	1 & 27 June 2022
DATE OF SENTENCE:	27 June 2022
CASE MAY BE CITED AS:	DPP v Leek
MEDIUM NEUTRAL CITATION:	[2022] VCC 1071

REASONS FOR SENTENCE

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Subject:Plea - sentencing

Catchwords:          Violent disorder - commit indictable offence whilst on bail

Legislation Cited:  Sentencing Act 1991

Cases Cited:

Sentence:284 days’ imprisonment + 18-month Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Hamill	Office of Public Prosecutions
For the Accused	Mr R. de Kretser	Stary Norton Halphen

HIS HONOUR:

1Timothy Leek, you have pleaded guilty to one charge of violent disorder, for which the maximum penalty is 10 years' imprisonment.  You have also pleaded guilty to one related summary offence of committing an indictable offence whilst on bail, for which the maximum penalty is three months' imprisonment and/or a fine of 30 penalty units.

2You have a prior criminal history which you have admitted which contains a prior conviction for the offence of affray which, although not as serious as the offence of violent disorder to which you have pleaded guilty, is nevertheless a serious criminal offence and was committed in circumstances where you were with a group of other young men and carried out an attack on an individual in public.

3That offence occurred in 2019 and you were sentenced on 21 February 2020.  A community correction order was imposed for that and a number of other offences for an 18-month period, which means that you were in breach of that order by committing the offence the subject of this indictment and the related summary offence.

4The prosecution provided an outline of their case in the form of a prosecution opening for the plea dated 19 April 2022 and have also tendered video from the CCTV cameras in the lift and a video obtained from the mobile phone of another of your co-offenders but which seems to have been taken by you during the course of the violent disorder.  The light of the phone camera is picked up in the CCTV footage.

5It is apparent that the offending occurred over a period of about four minutes from about 2.09 am to about 2.13 am on the morning of 7 March 2021.  It was the occasion of a birthday party at an apartment at 200 Spencer Street.  It was an upper floor apartment.  At about 2.08am, a group which has been described as the ‘victim group’ entered the lift, apparently to leave the premises but were prevented from doing so by the group of which you were a member.  You had only been in the building for something in the order of 20 - 25 minutes prior to that and had arrived with a group of people which included a number of your co-offenders.

6There is no doubt that you were part of the group that has been described as the ‘offending group’, or ‘the aggressors’, milling outside the lift and involved initially in a verbal altercation with the victim group.  You then continued into the lift with various members of your group attacking the victims who produced knives, apparently to defend themselves, and at various stages during the proceedings knives were produced also by at least two members of your group and used.  Injuries were caused to three members of the victim group.

7The melee was ugly, noisy, frightening and must have alarmed any member of the public who had been in the vicinity and other occupants of that building.  It was a very frightening experience for anybody that was caught up in it, in particular the victims.  You entered the lift on at least two occasions and offered your support to the aggressors by throwing punches and kicks at the victim group.  You were also responsible for the three pieces of video footage by taking those on the mobile phone at times when you were not actually engaged in the violence yourself.  It was a thoroughly disgraceful incident and one you should have had no part of.

8You were arrested on 12 March 2021.  You made some admissions to police about your attendance at the apartment and your observations during the melee, but as to your involvement you were not prepared to make admissions as to your full participation in the event.

9The injuries to the victims were serious enough but not in the category of serious injuries.  Nevertheless, the potential for much more serious injuries was clearly there.  Indeed one of your co-offenders, Mr Kor, suffered life-threatening injuries as a result of the defensive actions of the victim group.

10Turning to matters personal to you: it was pointed out that you were 20 years of age at the time of the offending and you are 22 years of age now.  I have been supplied by a number of documents by your counsel, in particular an outline of submissions in mitigation which is Exhibit 1, a sentence remand report which is Exhibit 2, a neuropsychological report from Alison Schokman dated 20 May 2022 which is Exhibit 3, a bundle of CISP reports, some of which were added today, which is Exhibit 4, a bundle of character references including from your mother which is Exhibit 5.  I note others speak well of you, of your good qualities and your prowess in basketball.

11And I have also been provided today with a psychiatric report from a Dr Trisno dated 16 June 2022, which is Exhibit 6.  She diagnoses a moderate depressive disorder with anxiety symptoms.  It is not suggested that any of the Verdins principles apply in your case, but that forms part of the material upon which the terms of the proposed community correction order are based.

12Your counsel's outline of submissions supplies me with detail about your background.  You come from a South Sudanese family, you were born in Clayton in 2000.  You are the eldest of four brothers and it seems that you come from a good family.  You had a reasonably unremarkable period at school except that you excelled at basketball and obtained a scholarship to an American college, which you attended when you were 18 years of age.  That must have been an enlightening experience for you and one which hopefully would have developed your devotion to, not just playing basketball but keeping a clean record, so that if the opportunity arose you could have gone back to the United States of America. 

13You completed Year 12 after your return at age 19 and continued to play basketball, but it seems you got in with a group of negative peers - some of whom I have no doubt were in attendance at the time of the violent disorder.  You had stopped taking basketball seriously in 2020 when the offending occurred.  You became an irregular attender at training, no doubt seduced by the alternative pleasures of the company of your negative peers.

14The offending occurred on 8 March 2021.  You spent a good deal of the intervening period in prison, partly serving a sentence and partly on remand for these matters.  You were bailed on 10 March of this year, almost a year after the offending.

15The material before me suggests that one has to be guarded about your continued rehabilitation.  I say that because the prior criminal history shows very serious offending and the offence of violent disorder is also a very serious offence.  The reports from the Court Integrated Services Program suggest that there is ground for optimism that you can put all this behind you.  It is said that you no longer associate with these negative peers and that you are responding well to the CISP program.  I hope that their comments are well placed and that you are intent upon putting this behind you and leading a productive and honest life. 

16With your talent you are still young enough to do really great things if you put your mind to it and devote yourself to basketball.  I have no doubt that will help you focus on a more productive style of life.  If you can get yourself a decent job, have a career ahead of you, and have a basketball future as well, then those factors should serve to help you to put all this behind you.  If you go the other way, then unfortunately I can predict a very unhappy life with regular attendances before this Court, regular periods of incarceration and a downward spiral.  So it is up to you.

17The period that you have already spent in custody is sufficient to satisfy the need for a custodial sentence.  I have no doubt that your participation and your criminal history warranted a term of imprisonment of or close to the period that you have been on remand for this matter.  If it had not been for that, I would have been looking at imposing a term of imprisonment of that order and the extent to which that could be combined with a community correction order which would be designed to assist your rehabilitation primarily, but also to supplement the punishment which you richly deserve for this disgraceful offending.

18I treat you as a young offender.  You were a youthful offender at the time of the offence and you are still only 22 years of age.  You have a good deal of your life ahead of you.  I give your youth significant consideration in determining the appropriate sentence.  It is thought that encouraging rehabilitation of a young person will be more productive in the long term than a substantial custodial sentence.

19It is necessary to consider the sentences that I imposed on your co-offenders and to impose a sentence that reflects your role, but also your criminal history in a way that is just in comparison with the sentences imposed on your co-offenders.  I have already indicated that the sentence I imposed on Mr Diu of imprisonment for 243 days, which was the period of pre-sentence detention that he had served, plus a community correction order for 18 months, which did not include any community work component, is the nearest comparator.  However, as I have already pointed out, Mr Diu did not have any prior convictions and his role was similar to the role you played.

20The community correction order that I propose to make is designed for two things: to add to you the punishment, because I think that you deserve further punishment in a non-custodial sentence, but also to assist your rehabilitation by requiring you to participate in rehabilitative programs and be under supervision for a period of 18 months. 

21I will go through the terms of that in a moment, but you have pleaded guilty during the Covid pandemic.  It was not an early plea but you deserve considerable credit for that and I give a substantial reduction in sentence for your pleas of guilty which are consistent with remorse. 

22I am not sure that they necessarily indicate genuine remorse, but they are recognition by you of criminal responsibility and are to be seen as very much a step in the right direction, as well as having substantial utilitarian value.

23You have a good family who are supportive.  With their help and with your own resolve, you have the capacity to move forward.  I see that you have plans to obtain a driver's licence which will assist you not just to obtain employment, but to pursue your basketball career.

24I also take into account the fact that your period of incarceration on remand, 284 days, was in circumstances of unusual hardship caused by the Covid pandemic.  That has considerable value in terms of determining the ultimate sentence and deserves a reduction in the sentence that you might otherwise have been required to serve.  Your counsel has submitted that I should impose a combination sentence which is to imprison you for the time that you have already served in relation to this matter, being 284 days, and to impose what he has described as a highly punitive and lengthy community correction order.

25I am not inclined to make it a highly punitive order.  It will include a punitive element and I am going to go through the terms with you now.  But I think that the combination sentence that your counsel has invited me to impose is the right sentence, taking everything into consideration.  The prosecution do not dissent from that proposition.

26Mr Leek, just stand for a moment please.

27Timothy Leek, on Charge 1 on the indictment, you are convicted and sentenced to imprisonment for 284 days.

28On the related summary offence of committing an indictable offence whilst on bail you are convicted and sentenced to imprisonment for 30 days. 

29Those two sentences are to run concurrently.  The total effective sentence is 284 days' imprisonment.

30I declare that the period that you have been in custody in respect of these offences, namely 284 days, be reckoned as a period of imprisonment already served under this sentence, which is to be deducted administratively.  In other words you will not have to serve any more time in prison.

31In addition, for both of those offences I propose to make a community correction order.  I say I propose to do so because I cannot do it without your consent and I am going to go through the terms of the order so that you can decide whether you are willing to consent to the order or not. 

32The order that I propose is for a community correction order for a period of 18 months beginning today and ending on 26 December 2023.  You would be required to attend the Cranbourne Community Correctional Services at 176 Sladen Street in Cranbourne within two clear working days after the commencement of the order, which would be Wednesday 29 June at 4 pm.  You must attend by telephone, rather than in person.  You will need to phone them.  The telephone number of the Cranbourne Community Correctional Services is on the order that you will receive.

33Now the order that I propose has a number of mandatory terms which are fixed in all community correction orders and some non-mandatory terms. I am going to read the non-mandatory terms to you first of all.  They are:

·     you are to be under the supervision of a Community Corrections officer during the 18-month period during which the order is in force:

·     you must perform 100 hours of unpaid community work as directed by the Regional Manager;

·     you are to undergo assessment and treatment, including testing, for alcohol abuse or dependency as directed by the Regional Manager;

·     you are to undergo assessment and treatment, including testing, for drug abuse or dependency as directed by the Regional Manager; 

·     you are to undergo mental health assessment and treatment including, but not limited to, mental health, psychological, neuropsychological and psychiatric, if necessary in a hospital or a residential facility, as directed by the Regional Manager;

·     you are to participate in programs or courses that address factors relating to your offending behaviour as directed by the Regional Manager.

34I further direct that all of the 100 hours of unpaid community work may be offset against hours of treatment and rehabilitation satisfactorily undertaken.  Therefore they can be treated as hours of unpaid community work for the purposes of the unpaid work condition.  In other words, if you do 100 hours of treatment and rehabilitation under this order you will not have to do any more community work.  So once you have clocked up the 100 hours of treatment and rehabilitation as required by the Regional Manager, then you can put the community work to one side.  If on the other hand you do not reach that, then you will have to do some unpaid community work.

35The mandatory terms - the terms that apply to all community correction orders - no doubt have been explained to you, but I will go over those now.  They are:

·     you must not commit another offence for which you could be imprisoned during the period the order is in force;

·     you must comply with the requirements of Regulation 17 of the Sentencing Regulations 2011, which essentially set out your obligations as to the attendance at the Community Corrections Centre, such things as not turning up there drunk or drug affected;

·     you must report to and receive visits from a Community Correction officer;

·     you must report to the Community Correction Centre, that is the Cranbourne Centre, within two clear working days - as I have already indicated, that will be by 4 pm on Wednesday 29 June;   

·     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.

36Do you understand and agree to all of those conditions, Mr Leek?

37ACCUSED:  Yes.

38HIS HONOUR:  There are a couple of other conditions that I intend to impose. One is that you must not during the period of the order associate or contact any of your co-offenders, that is those named on the indictment or your co-offender Mathew Akoi, for the whole of the period of the order.  Do you understand that requirement?

39ACCUSED:  Yeah.

40HIS HONOUR:  Also, you must reappear at this Court for a review of your compliance with the order as directed by the Court and the first time upon which you must appear is 29 September of this year at 9.30 am.  And that hopefully will be before me so I will be wanting to know on that occasion how you are getting on and there will be a report from Community Corrections as to your compliance with the order.  At that stage there may be a few things I need to say to you about that, which might be to encourage you to continue as you are going, or it might be to knuckle down and comply to a greater extent, depending on your degree of compliance.

41If your degree of compliance is bad enough and you simply have not complied substantially, I may be encouraging Corrections to breach you which would then involve you being brought back to Court for a breach of the terms of the order and there can be a term of imprisonment of up to three months for that.

42It is important also that you listen to what I am about to say because if you are ill, or there are exceptional circumstances, the order may be suspended for a period of time, and if your circumstances materially alter you may apply for a variation or cancellation of the order.  In other words, if perchance you are suddenly offered a scholarship to go overseas with basketball then you would have the opportunity of applying to this Court to have the order varied or cancelled or suspended for a period of time to allow you to do that.

43If that sort of situation arises I would advise you to get some legal representation and we can see what we can do to accommodate the change of circumstances.

44I also need to warn you that if you breach any of the conditions of this order you will be brought back before this Court and probably before me and one of the options open to me, or to another judge of this Court, is to cancel the community correction order and re-sentence you for the original charges, which may well mean adding to the period of time you have already been in custody for those charges.  This Court may also deal with you by sending you to prison for up to three months just for the breach of the order.  Do you understand the consequences of breaching the order?

45ACCUSED:  Yeah.

46HIS HONOUR:  It is not always going to be easy for you to comply with the terms of the order and you will have to be very focused on making sure that you do.  There are serious consequences if you do not.  Now, do you understand that?

47ACCUSED:  Yeah.

48HIS HONOUR:  Are you willing to comply with the terms of the order?

49ACCUSED:  Yes.  

50HIS HONOUR:  I am going to ask that the order be offered to you to sign and perhaps, Mr de Kretser, if you would go with my associate and take the order to your client and invite him to sign it?

51MR de KRETSER:  Yes, Your Honour.

52HIS HONOUR:  If there are any difficulties in his understanding the terms of the order please assist him there, would you?

53MR de KRETSER:  Yes, Your Honour.

54HIS HONOUR:  Make sure that he understands what he is being asked to sign.  You can take a seat now.

55MR de KRETSER:  Thank you, Your Honour.

56HIS HONOUR:  Mr Leek, that order has now been signed by me so it is in force.

57The only other matter I need to deal with is the requirements of s6AAA of the Sentencing Act 1991 Victoria by saying that but for your plea of guilty to these two offences, I would have imposed a term of imprisonment of 22 months.

58Are there any other matters, Ms Hamill?

59MS HAMILL:  There is also a disposal order sought in relation to the knives that were seized by police at the scene.

60HIS HONOUR:  Yes.

61MS HAMILL:  That is sought against Mr Leek and Mr Puoch because they are effectively the last two to come before the Court.

62HIS HONOUR:  Right.  So I need to make a fresh order in respect of them, do I?

63MS HAMILL:  Yes, Your Honour.

64HIS HONOUR:  Yes, all right.

65MS HAMILL:  But it hasn't been made previously in relation to the others because their matters remained outstanding.

66HIS HONOUR:  I see, all right.  Well in that case, do I have to wait for Mr Puoch before I actually ‑ ‑ ‑

67MS HAMILL:  I am not sure.  I must admit, Your Honour, I am sure that I have been sent the order but I did not really look at it.

68HIS HONOUR:  Well I take it there is no objection anyway?

69MR de KRETSER:  No, Your Honour, no.

70HIS HONOUR:  So whenever it is appropriate for me to sign it, I will sign it.

71MS HAMILL:  Thank you, Your Honour.

72HIS HONOUR:  You can take it that I will make that order.  Mr Leek, you may leave the dock.  Madam, are you Mr Leek's mother?

73VOICE (from body of the court):  Yes, Your Honour.

74HIS HONOUR:  Yes.  Well you have been listening to everything I have said today and no doubt you appreciate that, as your counsel said, he is at a crossroads.

75VOICE:  Yes.

76HIS HONOUR:  The next few years are going to be very, very important to him and I wish the family well, I wish him well and I very much hope that he does not have to appear in this Court again.  If I get to see him again, I hope it is on the basketball court rather than in this Court.

77VOICE:  Thank you, Your Honour.

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