Director of Public Prosecutions v Lokodu

[2021] VCC 526

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 18-00526

DIRECTOR OF PUBLIC PROSECUTIONS

v

LOMARY LOKODU

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	3 May 2021
CASE MAY BE CITED AS:	DPP v Lokodu
MEDIUM NEUTRAL CITATION:	[2021] VCC 526

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Saunders	Office of Public Prosecutions
For the Accused	Mr N. Goodfellow

HER HONOUR: 

1Lomary Lokodu, you have pleaded guilty before me to one charge of aggravated burglary and one charge of theft.  I am annexing the detailed prosecution opening to my sentencing remarks, but in short compass, on 1 September 2017, a group of men who were friends of yours, went into a house armed with sticks and poles and committed an aggravated burglary.  This was in Albion, and during it, a television was stolen. 

2Your role in that aggravated burglary was to sit in the back of a car and keep look-out.  Eventually, police apprehended the car and you were found in the back of the car, with other persons, and you holding the television.

3You are a person with not much in the way of prior criminal history, having appeared before the courts only twice before. 

4That is, in 2012, you were dealt with for being drunk in a public place, assaulting and resisting police, theft of a motor vehicle and failing to answer bail and you were placed on an adjournment to be of good behaviour.

5At that stage you were in the Children's Court. On the same date for some reason, you also appeared in the Magistrates' Court for using indecent language in a public place, being drunk, resisting police, assaulting police, attempted theft and other charges, and you were fined $1000 but no conviction was attached.

6You have a very complex personal history, which I am now going to turn to.  Before I do, however, I need to note that the maximum penalty for this offending is 25 years' imprisonment.  You have also been charged with theft and the maximum penalty for that is 10 years' imprisonment. 

7This matter was originally set down for trial, but you eventually pleaded guilty close to the trial date.  Notwithstanding this, for reasons which I will refer to later, I am satisfied you are remorseful for your offending. 

8You are now 30 years of age. You have a deeply troubling and difficult background history.  You were born in the Sudan and your mother died about three months' after you were born, along with your six year old brother, and they died because of the war.  You were told that your mother risked her life to save you. 

9You were raised by your two older sisters as your father was away working in another country and sending money back.  They were at least seven years older than you and they looked after you when you were a baby.

10You all lived, however, with your auntie and uncle and cousins and you suffered very badly at your aunt's hands.  She favoured her children, and you were told that whilst your auntie and uncle would provide a roof over your heads, they made a point that neither you and your sisters were their children.  Your aunt said she did not want to invest any money in you. 

11You were often beaten, you and your sisters were made to do all the housework and you were sexually assaulted by your aunt from between ages seven to 12.  If you refused to sleep with her, she would beat you.  She would make you stand with rocks in your hands until you dropped them and then she would beat you.

12When you were about 11, your father came back and  you saw him for the first time.  You told psychologist Alison Mynard, whose report dated 14 March 2021 was tendered on the plea, that you were very eager to have a father, but he only came back to marry a second wife and left soon after. 

13You and your sisters were then, again, mistreated by your step-mother.  She already had two daughters who she favoured over you, although you were desperate for her to accept you.  You told Ms Mynard you found those years in your early to mid-teens very, very difficult.  You, your step-mother and sisters eventually left the Sudan in 2002 for Egypt at which time your father had fled to another country because he was told that he would have to fight in the war.

14In Sudan, you saw people in a van who would come and grab children to take them to be child soldiers and were told you had to be very careful.  This is when you were living earlier in Sudan.

15When you were about eight, you and your cousin were kidnapped, and taken to be child soldiers for about three or four months.  You were treated very badly by the soldiers, who would whip you for being too slow, and eventually you were saved by your uncle, but you were aware that if you had not been stolen with your cousin, no-one would have come to save you. 

16In 2004, you and your sisters left your step-mother when you were in Egypt.  That was because one of your sisters had become pregnant and you were all thrown out of the house and the three of you became homeless.  Your father was not there at the time.  You were about 13. 

17You were homeless for about three weeks then you found a man from your tribe in the Sudan.  You stayed with him for a short while, but he tried to sexually assault your sister. You eventually got in contact with your father and asked him to sort out the issues with your step-mother. 

18After six months' your father came to Egypt to help sort things out, but by this stage, your sisters had moved out to live with boyfriends.  You, your step-mother and father, were given protection visas to come to Australia as refugees, but your sisters lost their visa because they had both, by then, married and had children and they remained in Egypt.

19You told Ms Mynard, that you still send them money and you often wish you had never been separated from them.  You had trouble accepting your step-mother as your mother.  Your father and step-mother do have now a daughter and son who are aged 13 and seven, but they refer to you as their step-brother and you told Ms Mynard that this makes you feel, yet again, you are not being accepted into your family and are being excluded.

20You attended school for a very short while when you were in Egypt.  That stopped when you became homeless.  When you arrived in Australia, you attended Western AIMS, then you went to the Sunshine North Technical College in 2009 when you were 18. 

21You then completed a bricklaying apprenticeship by the time you were 24, and you have worked in brick and bricklaying for many years.  You formed a stable relationship, you have two sons aged nine and six, but that relationship became troubled. 

22You have been using alcohol heavily since your early teens. You started using drugs, mainly methylamphetamine because, you told Ms Mynard, it gave you self-confidence and a warm feeling inside that you felt you could only have got from your parents. 

23Alcohol became a terrible problem for you to the point that you drank between   three and five litres of wine a day.  You told Ms Mynard (we see this often in the courts Mr Lokodu), that you used alcohol to drink away your pain and block your memories and negative thoughts. 

24You said you have tried to give up several times, but your depression took over and you relapsed.  You began using ice and heroin in 2019, however you used so much of it, you became paranoid and started to doubt your partner and developing trust issues. 

25However, you were very well regarded by your employer and you believe that he would take you back again on your eventual release.   

26In any event, understandably, problems developed between you and your partner which was very sad as you have been together for many, many years. 

27Psychological testing revealed a number of really nasty psychological problems.  You have a Persistent Depressive Disorder, and Post Traumatic Stress Disorder. You were suffering from drug-induced psychosis. You have an Alcohol Dependence Disorder although that is in remission.  You have a Stimulant Use Disorder which relates again to your ice use and an Opiate Use Disorder which relates to your heroin use.

28You told Ms Mynard that you have constant nightmares and bad dreams, and that relate to the trauma you have suffered, including the abuse you suffered when you were living your aunt and uncle and the period you were abducted by the soldiers.

29You have low mood and you feel cut-off from others, feel that no-one can understand your pain,  have always regarded the world as dangerous, feel anxious, on guard, and wait for the next bad thing to happen. 

30You have never had psychological treatment, although you have had a counselling session in custody which you found very helpful.  You did receive bail and did well for a while, ceasing drug and alcohol use for about six to eight months and attended Alcoholics Anonymous, but relaxed again when your cousin was released from prison.  He brought an ice pipe to work and a few cans of alcohol, and before you knew it, you were back purchasing five litres of wine again each day.

31You also spent most of your money on ice and heroin and developed a gambling disorder on the pokies because you used to try and get your money back.  

32You lost your job, and said at one time that you slapped your wife when you argued. She then took out an intervention order against you, although that has now lapsed. 

33While you were using drugs in particular, you started associating with negative peers and were with them when the offending occurred.  You had been drinking that night and you were drunk.  You said that you knew that what your friends were doing was wrong, but thought they were going to collect some money that was owed to them and that they had only taken a television as a last resort. 

34You said that you stayed in the car because you did not want to be a part of this, but told Ms Mynard, that in hindsight, you should have got out of the car and walked away.  You now realise those people were not good friends to you and you have nothing more to do with them, as they lied to you about what they were doing on that night.

35Ms Mynard said that you appeared most remorseful for your part in the offending and that you spoke about your opposition to violence or doing anything against your morals and values.  You said that you had been mistreated and abused so much in your own life, you did not want to do this to anybody else. 

36You talked of learning your lesson and about what you could do to ensure you did not offend again. 

37Ms Mynard said:

'Mr Lokodu does suffer from a severe trauma history and subsequent mental health issues and requires treatment by psychological intervention to assist him to resolve these issues.' 

She said: 'He displayed an ability to be self-aware, to be emotionally intelligent, and an amiability for therapy and the writer believes he would be a good candidate for therapy.' 

38Ms Mynard believes your time in custody has impacted badly on your mental health conditions.  She stated: 

'His own trauma is being constantly triggered, feeling the severe effect of being away from his children, just as his own father was not there for him.  She said you worry a great deal about your relationship with your children and the fact that your time in custody has been very difficult for them.'

39For a long time, you and your partner had talked about whether and how to explain you were away. In any event, I am satisfied that this is an issue that weighs very heavily upon you. 

40Ms Mynard stated: 

'In the writer's opinion, if he were given the opportunity and accountability for psychological treatment and rehabilitation, Mr Lokodu's risk of relapsing into substance-abuse would reduce and his risk of overall recidivism would also reduce. 

'Protectively, Mr Lokodu has a strong and stable work history and a family whom he is looking forward to reuniting with.  He has a limited offending history and appears to have good morals and values, wanting to continue to be a good father and role model to his children and a positive contributing member of the community.' 

41The offending that you became involved in was very serious, Mr Lokodu.  You have also placed yourself at risk because Border Force have come in to see if you are a person who should be returned to your country of origin which is Sudan, which would be terrible for you.

42I am satisfied that essentially all this trauma in  your life caught up with you, that you managed to keep working and were leading a pro-social life,, even though you were drinking huge amounts, but once you started using drugs, everything went off the rails. It has caused terrible problems with your partner and your children. 

43But, it seems to me, given your prior history, you have got good prospects of rehabilitation as long as you receive the proper assistance.  It was agreed between both parties that an appropriate sentence for you would be a term of imprisonment to be followed by release on a community corrections order and I propose to impose this. 

44I have had you assessed for a community corrections order and you have been found suitable, so I am going to place you on a community corrections order. 

45I am going to sentence you to an aggregate sentence of 10 months' imprisonment.  I declare you have already served this term by way of pre-sentence detention, that you have already served 608 days of prison.

46I am going to release you on a community corrections order for a period of 18 months, but I can only place you on that order, Mr Lokodu, if you agree to it, all right?  So I have to tell you what the conditions are. 

47They are, that you must report to the Community Corrections office within two days of the making of this order.  That is by Wednesday of this week. 

48Whilst you are on the order, you must not commit another offence for which you could be punished by imprisonment.  So that does not mean you have to commit an offence and go to gaol, but if you commit an offence which theoretically, do you understand what I mean by theoretically, if you commit an offence which you could possibly be gaoled for, that will be enough to breach the order and you will be brought back and I will have to re-sentence you on this offending. 

49You may not leave Victoria without the permission of the Community Corrections office.  You must report any change of address or employment within 48 hours of making that change.

50You must not attend upon the Community Corrections office under the influence of drugs and alcohol.  You must report to, or receive visits to the Community Corrections office and you must obey all lawful directions of the Community Corrections office. 

51I am going to order that you perform 100 hours of unpaid community work.  I am also going to order that you attend treatment for alcohol abuse and drug abuse, and I am going to order that you undertake psychological assessment and I want you to have trauma-specific psychological assessment.  I am going to send a report to the Community Corrections office.  Do you understand trauma-specific?  What that means?

52OFFENDER:  Yes, Your Honour.

53HER HONOUR:  You tell me what you think it means?

54OFFENDER:  That is regards my child soldier ‑ ‑ ‑ 

55HER HONOUR:  Yes.  You need to have psychological assessment and you need to tell Corrections this, and I will be sending my sentencing remarks as well.  I want you to have trauma-related psychology.  Just not ordinary old psychology.  You need more special psychology than that.  Okay?  I am also going to order that you attend for Judicial Monitoring.  Now, what that means is that every few months I will get a report from Corrections to see how you are going, and you need to attend before the court. 

56Now, you can do that by remote - through your phone if you like - or if you could go to the Community Corrections office and they can beam you in. 

57Mainly, I am doing that because I want to make sure you are getting the right psychological treatment and that you are getting the right programs.  All right?

58OFFENDER:  Yes, Your Honour.

59HER HONOUR:  All right, are you prepared to enter this order?

60OFFENDER:  Yes, Your Honour, I am prepared to.

61HER HONOUR:  Okay.  The first Judicial Monitoring will be on the 9th of August at 9.30.  All right?

62OFFENDER:  Yes, Your Honour.

63HER HONOUR:  So what will happen is we will send - actually we will get it done now.  I will sign it.  It will be sent through to you at the prison, all right, so it probably means you will get out gaol today, Mr Lokodu, okay?

64OFFENDER:  Yes, thank you. 

65HER HONOUR:  I will just sign it and we will send it through, just to be sure.  Thank you.  I am also ordering that any hours of rehabilitation that you do will come off the number of hours of unpaid community work you have to do.  Okay? 

66OFFENDER:  Yes, Your Honour.

67HER HONOUR:  Good.  Thank you very much.  Good luck, Mr Lokodu.  What a difficult time you have had for the last two or three years, hey?

68OFFENDER:  Sorry, I can't hear Your Honour.

69HER HONOUR:  I am saying what a very difficult time you have had in the last two or three years?

70OFFENDER:  Yes, I know, Your Honour, and I hope  - I hope this should be a great start for me. 

71HER HONOUR:  I think so too.  I think, as long as you get - it is the drinking and the drugs that is the big problem for you.

72OFFENDER:  Yes, Your Honour.

73HER HONOUR:  And the psychological treatment is really important, because that will help you manage all the emotional pain that you have, so you can deal with that without drinking, without using drugs.  That is a really important part.  All right?

74OFFENDER:  Yes, Your Honour. 

75HER HONOUR:  Thank you very much.  Pursuant to s.6AAA I declare that had you not pleaded guilty, I would have sentenced you to a term of two and a half years and order you serve a minimum term of 14 months. 

76Thank you very much.  Yes, thank you, we will stand down and we will adjourn sine die.  Thank you very much.  Good luck Mr Lokodu. 

77OFFENDER:  Thank you. 

78HER HONOUR:  I thank counsel.  Thank you. 

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