Director of Public Prosecutions v Luak
[2025] VCC 1159
•17 July 2025
h
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-01842
CR-24-01849
AP-24-1040
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAL LUAK & TIETDONG CHUOL |
---
JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 May 2025 | |
DATE OF SENTENCE: | 17 July 2025 | |
CASE MAY BE CITED AS: | DPP v Luak & Anor | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1159 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Home Invasion – Armed Robbery – Possession of Cannabis – Dangerous Driving – Co-Offenders – Young Offender – Knives – Objective gravity-mid range – Remorse – Verdins principles – Relevant priors – Early guilty plea – Low IQ – Prospect of rehabilitation – Youth Justice Centre Order – Limited insight and remorse – Parity.
Legislation Cited: Crimes Act 1958 (Vic); Drugs Poisons and Controlled Substances Act 1981 (Vic); Road Safety Act 1986 (Vic); Criminal Procedure Act 2009 (Vic); Sentencing Act 1991 (Vic).
Cases Cited:DPP v Meyers (2014) 44 VR 486; R v De Simoni (1981) 147 CLR 383; R v Verdins [2007] VSCA 102; DPP v O’Neill (2015) 47 VR 395; Muldrock v The Queen (2011) 244 CLR 120; Clifton v The Queen (2021) VSCA 111; R v Mills [1998] 4 VR 235; Azzopardi v The Queen [2011] VSCA 372; R v Wright [1998] VSCA 84; DPP v Lawrence [2004] VSCA 154; DPP v Anderson [2013] VSCA 45; Singh v R [2023] VSCA 17; Bower v The King [2024] VSCA 317; Gosland and McDonald v The Queen [2013] VSCA 269; Balshaw v The Queen [2021] VSCA 78; Seualeuga v The King [2024] VSCA 1853.
Sentence: Jal Luak – 2 years and 3 months' detention in a Youth Justice Centre - S 6AAA – Significant period in adult custody.
Tietdong Chuol – 1 year and 9 months' imprisonment - S 6AAA - 3 years’ imprisonment – Non-parole period of 2 years’.
Tietdong Chuol (Appeal) – Magistrates' Court Orders-Set aside - Fined $1,000 - S6AAA - 3 months' imprisonment - Fine of $1,000.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr C. Brydon | Office of Public Prosecutions |
| For the Accused (Luak) For the Accused (Chuol) | Mr J. Karitzsis Ms K. Powell | James Dowsley & Associates Victoria Legal Aid |
HIS HONOUR:
Introduction: The matters before the court
1Jal Luak and Tietdong Chuol face a number of charges as co-offenders.[1] Both men have pleaded guilty to:
(a) One charge of home invasion contrary to section 77A(1) of the Crimes Act 1958 (Vic) (‘Crimes Act’), which carries a maximum penalty of 25 years’ imprisonment; and
(b) One charge of armed robbery contrary to section 75A of the Crimes Act, which carries a maximum penalty of 25 years’ imprisonment.[2]
[1] CR-24-0842 and CR-24-01849.
[2] Indictment No. C2400445.
2In addition, Tietdong Chuol has pleaded guilty to one charge of possession of cannabis contrary to section 73(1) of the Drugs Poisons and Controlled Substances Act 1981 (Vic), which carries a maximum penalty of a fine of 5 penalty units.
3Further, Jal Luak has plead guilty and agreed to this court sentencing him in relation to two related summary offences:[3]
(a) Driving in a dangerous manner contrary to section 64 of the Road Safety Act 1986 (Vic), which attracts a maximum penalty of imprisonment for 2 years’; and
(b) Driving without supervision contrary to section 18B of the Road Safety Act 1986 (Vic) which attracts a maximum penalty of 6 months’ imprisonment.
[3] Criminal Procedure Act 2009 (Vic) s 145.
4Finally, in a separate matter, Tietdong Chuol appeals against orders made by the Magistrates’ Court sitting at Moorabbin on 30 July 2024.[4] For convenience, all of these matters have been heard by the court together.
Summary of Offending
[4] AP-24-1040.
Charges 1 and 2: Home invasion and armed robbery
5Mr Luak and Mr Chuol were 19 and 20 years old, respectively, at the time of offending. A third co-offender, who has not been identified, will be referred to as ‘the unknown offender’.
6The victims are Xuji Cheng and Hui Liang. At the time of the offending, they lived in Mulgrave, along with Mr Cheng’s two children.[5] On 7 June 2024, Mr Cheng, his two children, his mother and Ms Liang were asleep at their home in Mulgrave.
[5] The court was not informed of the ages of the children.
7Shortly before 2:57am, Mr Luak, Mr Chuol and the unknown offender arrived at the house. Mr Luak and the unknown offender each armed themselves with serrated knifes, 10-15 centimetres in length. Mr Luak also wore a black face covering.
8Mr Luak and the unknown offender entered the house. Mr Chuol remained outside in a white car, parked on the street.
9After entering the home, either Mr Luak or the unknown offender triggered a movement sensor inside the home. This caused an alert to be sent to Mr Cheng’s mobile phone, waking him up.
10Mr Cheng left his bedroom to look down the hallway, turned on the light and called out ‘who’s there?’. He then saw Mr Luak and the unknown offender in the hallway.
11Mr Luak pointed his knife towards Mr Cheng and said words to the effect of ‘give me your keys. Give me your keys. Don’t move or I’ll stab you’. Both Mr Luak and the unknown offender walked towards Mr Cheng, continuing to demand he hand over his keys. Mr Cheng closed the bedroom door, and Ms Liang called police from inside the bedroom.
12Mr Cheng led Mr Luak and the unknown offender to the loungeroom where his car keys were kept. As he walked the offenders to the loungeroom, one of them held their knife to his neck, touching his skin. It is unclear whether this was Mr Luak or the unknown offender.
13Once they were in the loungeroom, Mr Luak and the unknown offender opened the cabinet containing the car keys taking the garage fob, remote to the front gate and the keys to Mr Cheng’s 2023 BMW X6 M Wagon (‘the BMW’). They also took:
a) Keys to Mr Cheng’s 2023 Audi RS e-tron GT Coupe (‘the Audi’);
b) Two Hermes wallets;
c) Two Bvlgari wedding bands; and
d) A VCA-branded Bracelet.
14Mr Luak and the unknown offender told Mr Cheng to show them where his vehicles were kept. Mr Cheng led the offenders to the garage where the Audi was, along with another of his vehicles, a black 2022 Porsche 911 Coupe (‘the Porsche’). The BMW was parked outside the garage, in the driveway.
15In the garage, Mr Luak and the unknown offender demanded that Mr Cheng provide them with keys to the Porsche. Whilst doing so, the unknown offender held Mr Cheng’s wrist and made stabbing motions towards him. Mr Cheng told Mr Luak and the unknown offender that the Porsche was not his vehicle - it belonged to a friend of his, and he only had the keys for the BMW and the Audi.
16Either Mr Luak, Mr Chuol or the unknown offender used the garage fob to open the garage door. They went outside to the driveway and one of them opened the front gate.
17At this point, Mr Chuol got out of the white car that was parked on the street. He was wearing a black balaclava and had also armed himself with a serrated knife.
18Mr Chuol and the unknown offender approached Mr Cheng, and the unknown offender pushed him to the ground. Mr Chuol and the unknown offender continued to make stabbing motions towards Mr Cheng whilst he was on the ground.
19Mr Chuol and the unknown offender then led Mr Cheng back into the garage, sat in the driver’s seat of the Audi and started the engine. Mr Luak sat in the driver’s seat of the BMW and drove it onto the street.
20Mr Luak has pleaded guilty to the home invasion as a principal offender; Mr Chuong has pleaded to that charge on a complicity basis.
21Both men have pleaded guilty to the armed robbery charge concerning the property described at [14] and the BMW. The court was not informed of the value of the property stolen.
Summary Charge 4 – Mr Luak: Dangerous driving
22At approximately 3:05am, the offenders left the area in a convoy consisting of the BMW, driven by Mr Luak, the Audi, driven by the unknown offender, and the white car driven by an unidentified person. Shortly after, Mr Chuol sat in the driver’s seat of the BMW and commenced driving it whilst Mr Luak moved to the front passenger seat.
23At approximately 3:10am, police arrived at the house and spoke with the victims. They told police that the BMW was fitted with a GPS tracker, accessible through the ‘My BMW’ application on Mr Cheng’s mobile phone.
24The BMW was able to be tracked, with its location communicated to the Police Air Wing. At approximately 3:53am, the Police Air Wing helicopter located the BMW.
25At approximately 3:57am, Mr Chuol parked the BMW on the corner of Radius Lane and Hyde Avenue, Clyde North. He got out of the driver’s seat, ran around the vehicle and sat in the front passenger seat. Mr Luak, who was seated in the front passenger seat, moved across to the driver’s seat.
26Mr Luak commenced driving the BMW. He drove westbound on Thompsons Road, Cranbourne North, where police deployed stop-sticks which became tangled in the vehicle’s tyres.
27Mr Luak continued driving the vehicle at a speed and manner that was dangerous considering that his tyres were impacted by the stop sticks and he was driving in a residential area.
28At approximately 4.02am, the vehicle travelled against traffic on William-Thwaites Boulevard, Cranbourne North. The vehicle’s tyres had disintegrated significantly, affecting the control of the vehicle, but Mr Luak continued to drive. Mr Luak then lost control of the vehicle, colliding with a garden bed in the front yard of a house on Brolin Terrace, Cranbourne North.
29Mr Luak and Mr Chuol got out of the car and ran. Mr Luak climbed a fence of an adjoining property, hiding in the back yard. He was spotted by the Police Air Wing helicopter and was subsequently arrested there.
30Mr Chuol was arrested shortly afterwards, nearby on Sutton Rise. He had a small quantity of cannabis on him (Charge 3 – Possession of Cannabis).
31At the time, Mr Luak was a learner driver. While Mr Luak was driving the BMW, he did not have a supervising driver sitting beside him (Summary Charge 5 – Learner Driver without Supervising Driver).
Victim Impact
32Xuji Cheng made a victim impact statement on his own behalf and that of his family dated 6 February 2025.
33In the statement, Mr Cheng explains in a heartfelt manner the terrible impact of the offending on his family. He writes that the offending has not only disrupted their lives but ‘shattered our sense of security in the community we once called home’
34Mr Cheng writes that he had always considered Australia to be a safe country. As a result of the offending, the family has been forced to relocate. The fear of being targeted again has made the family withdraw from the community in which they once actively participated.
35Mr Cheng writes that his children have also been deeply affected and they frequently wake up crying, terrified by nightmares.
36I have taken into account the profound effect of the offending on the Cheng family as I am required to do.[6]
[6] Sentencing Act 1991 (Vic) (‘Sentencing Act’).
Objective Gravity
37In assessing the gravity of the home invasion I have had regard to the decision of DPP v Meyers.[7]
[7] DPP v Meyers (2014) 44 VR 486, 16 [48] (‘Meyers’).
38Applying the criteria there identified, the relevant intent was to steal and not assault. Although entry was not forced, it clearly occurred without consent. The offenders were armed with knives. The offending occurred at night while all of the occupants were asleep. Children and an older inhabitant were present. The offenders were at least reckless about the likelihood the occupants were home.
39This was at least a mid-range example of the serious offence of home invasion.
40There were several aggravating aspects of the armed robbery:
(a) The victim was at home and it was night-time;
(b) He was held at knife-point;
(c) The offending occurred over several minutes;
(d) The property stolen was very valuable;
(e) There was clearly some planning associated with the offending as a face covering was worn and a car was waiting outside.
41I have taken care not to consider other conduct that occurred during the robbery as aggravating as it could have been the subject of other charges but was not.[8]
[8] R v De Simoni (1981) 147 CLR 383.
42Of the summary charges to which Mr Luak has pleaded guilty, the dangerous driving charge is concerning. As an inexperienced learner driver, he drove a powerful motor car dangerously for an extended period of time in circumstances where there was a real and appreciable risk that he or another road user could have been injured or even killed.
Personal Circumstances – Jai Luak
43Mr Luak, your personal circumstances are drawn from the Psychological Report by Rebecca Fakhri dated 10 February 2025,[9] which was provided to the court.
[9] Psychological Report for Mr Luak written by Rebecca Fakhri dated 10 February 2025 (‘Exhibit D1’).
44You were born in Egypt and emigrated to Australia with your family as an infant. Your parents separated when you were 5 years’ old. You continued to live with your mother and five older sisters.
45You have a positive relationship with your mother, but a strained relationship with your father. You have experienced long-term emotional deprivation due to your father’s absence and occasional physical abuse perpetrated by him.
46You were raised in a female-dominated household, feeling isolated and lacking a male role model, which contributed to absconding behaviour and your early reliance on peers for social and behavioural cues.
47Your childhood was marked by frequent relocation, exclusion at home, and periods of absconding, which disrupted your stability and support structures.
48You attended Silverton Primary School and later completed the Victorian Certificate of Applied Learning at St Francis High School, but with a record of behavioural issues, truancy, and disengagement from academic activities.
49You have admitted to low effort in school and began substance use during these years, suggesting a pattern of early-onset risk behaviours linked to disengagement from education.
50Upon completion of your secondary schooling, you briefly worked as a roof tiler, however ceased your employment due to not enjoying the role. You have not held further employment since you were 18 years’ old.
51Since being remanded, you have completed a range of employment-related courses. You are currently working in the timberyard in custody at Ravenhall Correctional Facility, and have expressed an interest in working in cabinet making upon your release.
52You began using cannabis daily from age 14, escalating to 3–5 grams per day by the time of your arrest for this offending. You started using alprazolam (Xanax) at 16, bingeing up to 10 pills per session, and were taking four pills daily prior to being remanded. You have reported blackouts and loss of memory associated with this drug use. You have also used MDMA and cocaine recreationally and reported no formal treatment history or engagement with past AOD services.
53Your history of substance use strongly indicates harmful use and probable dependence. You have, however, remained drug-free since being remanded
54According to Ms Fakhri, you meet the criteria for Sedative, Hypnotic, Anxiolytic Use Disorder (severe) and Cannabis Use Disorder (severe) – both in early remission in a controlled environment.[10] You also meet the criteria for an Adjustment Disorder with depressed mood, exacerbated by custodial remand and the stress of impending court proceedings.
[10] Ibid 8 [82].
55Psychometric testing conducted by Ms Fakhri confirmed clinically significant alexithymia, severely limiting your ability to identify and regulate emotions, increasing your risk for impulsivity and poor problem-solving.
56You have a limited criminal history dating back to 2023. Of most relevance are the without conviction CCO you received in March 2023 from the Dandenong Magistrates’ Court for burglary and theft of a motor vehicle, and the without conviction adjourned undertaking you received in September 2023 from the Dandenong Children’s Court for Burglary and theft of a motor vehicle.
57These without conviction dispositions were no doubt imposed having regard to your youth. However, they clearly did not dissuade you from further offending. Ms Fakhri refers to your failure to attend for judicial monitoring and failure to engage with AOD services while on the CCO leading to a breach.[11]
[11] Ibid 4-5 [46].
58This history gives added importance to specific deterrence as a sentencing consideration in your case.
59Ms Fakhri opined that:
‘Imprisonment is likely to have a negative effect on Mr Luak’s development in later adulthood and future behavioural outcomes through loss of positive social structures and educational and vocational access, and further exposure to negative peers at his impressionable developmental stage’.[12]
[12] Ibid 10 [96].
60Ms Fakhri refers to research which demonstrates ‘the potential criminogenic effects of imprisonment stemming from reinforcement of criminal identity and exposure of susceptible young adult offenders such as Mr Luak to older offenders with entrenched offending behaviour patterns’.
61Ms Fakhri assesses your risk of future offending as low to moderate having regard to your mental health conditions, substance abuse and antisocial peer associations. Positive factors include your willingness to engage with mental health services and your limited criminal history.[13]
[13] Ibid 10 [92]-[94].
62You have used your time on remand constructively. In a letter to the court dated 3 February 2025, Kim Metzler, Employment Case Manager, YMCA Bridge Project, informs the court that, after being assessed as suitable for pre-release support, you participated in a six week program. You were then offered additional time and completed the ‘Follow Up’ program. The facilitator, Rob Dudderidge, reported that you worked ‘really well with individual projects and a few group tasks’. You gained confidence and shared your newly acquired skills with others.
63This is a positive development which I note is referred to by Youth Justice as part of its assessment of your suitability for Youth Detention.
64The assessment report contrasts your motivation while on remand with your previous less that satisfactory engagement when you were on the CCO.
65Ms Metzer informs the court that, provided you remain engaged with case management, you will receive six months of employment after you are released.
Personal Circumstances – Tietdong Chuol
66Your personal circumstances are drawn from the Clinical Neuropsychology Report by Dr Sam Humphrey dated 30 January 2025,[14] which was provided to the court.
[14] Clinical Neuropsychology Report for Mr Chuol by Dr Sam Humphrey dated 30 January 2025 (‘Exhibit D2’).
67You are of South Sudanese descent, and the eldest of five children. You lived with your mother and siblings in Cranbourne.
68Your childhood was difficult, involving as it did significant exposure to family violence, with your father being extremely violent towards your mother. Family violence was also inflicted against you when you attempted to intervene. Your mother was once hospitalised, with an intervention order put in place. Despite the FVIO, your father stalked your mother, with police and Child Protection involved. You now do not have any contact with your father.
69Prior to your remand, you were living with your mother and siblings. You have, since a young age, taken on a caring role for your youngest siblings, the youngest of whom is currently two years’ old.
70You have been in a relationship with your current girlfriend for five years. She is a protective factor for you as she is studying at university and does not have problems with substances or the law. She has maintained contact with you while you have been in custody.
71You attended multiple primary schools and experienced learning difficulties particularly with literacy and numeracy. Despite the disruptions and difficulties experienced, you completed Year 12 at St Peter’s College.
72You have previously worked as a cleaner and in factory work. Whilst in custody, you worked in the kitchen and for the last four months have been doing woodwork in the timber industry. You typically work 5-6 days per week.
73You have undertaken numerous courses and certifications including a Building and Construction Pre-apprenticeship, which is a Certificate II accreditation.
74You started using cannabis at 13 years old, smoking daily until 18. From 18 years of age, your use decreased due to your girlfriend not supporting such use.
75You began using Xanax at 16. You used several times per day. Again, from 18 years old, your use decreased from daily use – although relapsed at the time of the offending.
76From age 18, you began using methamphetamine. You began using several points a day, although experienced a period of abstinence of about a year but relapsed during the period of offending.
77You started drinking alcohol at 17, which became problematic at age 19. You reported drinking less prior to your remand.
78Your reliance on methamphetamine and Xanax has exacerbated your impulsivity and poor judgement, as these substances served as a misguided coping mechanism to escape emotional pain.
79You meet the diagnostic criteria for Substance Use Disorder (in early remission in a controlled environment).
80Whilst in custody, you have undertaken relevant alcohol and drug courses including Cannabis and Me, as well as alcohol and drug screening, demonstrating increased insight into your substance use.
81Whilst you are fully independent and attended mainstream schooling through to Year 12, your overall cognitive test performances placed you only slightly above the range of having an intellectual disability.
82Your exposure to family violence throughout your childhood has been significant, and you consider this to be a factor that contributed to you turning to substance use.
83It is the opinion of Ms Cidoni, that Mr Chuol fulfils the diagnostic criteria for PTSD, as:
‘… he has a history of childhood exposure to family violence, witnesses his father’s abuse of his mother, and being physically assaulted himself when intervening. He continues to experience emotional distress linked to these traumatic events, as well as recent traumatic losses of close individuals.’
84Although not recent, you have previously experienced suicidal ideation. You have experienced pervasive anxiety, particularly whilst in custody. Whilst in custody you have taken the time to reflect and recognise that you need support. You began seeing a counsellor in custody around 6 months ago. You see them fortnightly and have found this to be beneficial.
85You have a limited criminal history dating back to a good behaviour bond imposed by the Children’s court for an attempted robbery in 2021. More recently, you have twice been before the courts for stealing motor vehicles (2021 and 2024). You have never previously been incarcerated
Matters in Mitigation - Jal Luak
86The most important matter of mitigation is your guilty plea which I accept was entered at an early stage of the proceedings. The plea represents your acceptance of your responsibility for the offending. It spares witnesses the ordeal of re-living their experiences and saves the community the time and expense of a trial. You are entitled to a substantial sentencing discount.
87Your guilty plea is also some evidence of remorse. You have been slow to demonstrate genuine empathy for your victims and continue to minimise their trauma. As recently as June of this year, you have demonstrated ‘limited insight and remorse’ according to an assessment by Youth Justice.[15] This is concerning.
[15] Suitability for Youth Justice Order Pre-Sentence Report by Mr Adrees Shah dated 10 July 2025 (‘Exhibit P3’).
88As against that, in the letter that you wrote to the court you apologise to your victims and accept that your ‘stupid actions’ have caused them distress. You also took ‘some responsibility’ for your offending when you spoke with Ms Fakhri although she notes ‘evidence of minimisation and externalisation of blame’
89Your childhood disadvantage is a relevant consideration. However, I note that no reliance was placed on the Bugmy-principles.
90I accept the opinion of Ms Fakhri that a combination of your disrupted paternal attachment and perceived neglect made you gravitate to antisocial peers and to adopt their behaviours.[16] This has been exacerbated by your drug use which impaired your rational decision-making capacity.[17]
[16] Exhibit D1 (n 9) 8 [80].
[17] Ibid 9 [89].
91However, I reject your counsel’s submission that this evidence enlivens the Verdins principles so as to reduce your moral culpability.[18]
[18] Defence Plea Submissions for Jal Luak dated 26 May 2025, 5 [34] (‘Defence Plea Submissions’); R v Verdins [2007] VSCA 102 (‘Verdins’).
92It is difficult to disentangle the role played in the offending by the voluntary consumption of drugs from the role played by the mental health conditions.
93Finally, your youth is a very important consideration which I examine in some detail later in these reasons.
Matters in Mitigation - Tietdong Chuol
94As is the case with your co-offender Mr Luak, the most important matter of mitigation is your guilty plea which I accept was entered at an early stage of the proceedings. The plea represents your acceptance of your responsibility for the offending. It spares witnesses the ordeal of re-living their experiences and saves the community the time and expense of a trial. You are entitled to a substantial sentencing discount.
95Your deprived childhood in which you were exposed to violence is relevant to sentencing in a general way. However, I note that no reliance was placed on the principles under Bugmyv The Queen [2013] HCA 37.
96As noted, you were assessed as having a full-scale IQ of 71 which places you in the borderline range. However, according to Dr Humphrey, you do not present with deficits in adaptive functioning.
97I accept that your mental health conditions make your experience in custody more burdensome than would otherwise be the case and that there is a risk that the lack of adequate treatment may worsen your mental health.[19] I have moderated the sentence to a modest extent accordingly.[20]
[19] Psychological Report for Mr Chuol by Gina Cidoni dated 5 October 2024, 7 [85] (‘Exhibit D1’).
[20] Verdins (n 18).
98I don’t accept your counsel’s submission that the need for general deterrence is reduced by virtue of your mental ill-health.[21] There is no support for the application of Verdins limb 3. In the case of O’Neill, the Court of Appeal explained that in certain circumstances, the ‘full application of the principles of general deterrence’ may be ‘repugnant to the underlying sense of humanity which guides proper sentencing’.[22] The most obvious circumstance concerns an offender with an intellectual disability.[23] However, yours is not such a case in my view.
[21] Defence Plea Submissions (n 18) 2 [29].
[22] DPP v O’Neill (2015) 47 VR 395, 18 [59] (‘O’Neill’).
[23] Muldrock v The Queen (2011) 244 CLR 120; Clifton v The Queen (2021) VSCA 111.
99Finally, your youth is a very important consideration which I examine in some detail later in these reasons.
Rehabilitation Prospects – Tietdong Chuol
100Ms Cidoni assesses your risk of future offending as medium. Risk factors include your criminal history, exposure to childhood violence, substance issues, association with negative peers and mental health challenges.[24]
[24] Exhibit D1 (n 19) 7 [82].
101Ms Cidoni notes a number of protective factors including your expressed desire to change and your expression of remorse.
102The 5-year relationship with your law-abiding university student girlfriend is a protective factor. You will have accommodation with your family upon your release.
103You have completed a number of courses while in custody. You received a certificate acknowledging your ‘amazing Africa Day performance’ in 2025.
104Finally, you wrote a letter to the court headed ‘Lettor [sic.] of Remorse’. In the letter you demonstrate some insight about the harm you caused your victims. You state that you are very sorry for what you did and that you are committed to improving your life and showing your family you have not been on the right pathway.
105On balance Ms Cidoni assesses your prospects of rehabilitation as ‘optimistic’. I am a little less sanguine and consider ‘reasonable’ to be a better description while noting how difficult it is to make such an assessment.
Rehabilitation Prospects – Jal Luak
106These are examined later in these reasons as part of the assessment of whether a youth justice centre order is appropriate.
Submissions
107On behalf of the Director, it was submitted that both offenders should be sentenced to a term of imprisonment comprising a head sentence and a non-parole period.
108On the question of whether Mr Luak should serve his custodial sentence in youth detention, the Director submitted that he should not.[25] It was submitted that, despite Mr Luak being assessed as suitable for such a disposition on the basis that he has reasonable prospects of rehabilitation, the court should nonetheless sentence him to a term of imprisonment in adult custody having regard to the nature of his offending and all relevant considerations.
[25] Supplementary Prosecution Sentencing Submissions dated 15 July 2025 (‘Supplementary Prosecution Submissions’).
109In particular, the prosecution argued that Mr Luak’s rehabilitation prospects should be assessed by the court as ‘guarded’ and not ‘reasonable’.[26]
[26] Ibid 2 [4].
110Ms Powell, counsel for Mr Chuol, placed no reliance on any special circumstances, in relation to the offending on 7 June 2024. She accepted that a term of imprisonment must be imposed but that the court should ‘consider a sentence that sees Mr Chuol eligible for release imminently’ in light of the lengthy period of pre-sentence detention he has served.[27]
[27] Defence Submissions on Plea for Tietdong Choul dated 26 May 2025, 7 [32] (‘Defence Plea Submissions’).
111On the appeal, Ms Powell submitted that it is ‘open to the court to consider the nine days served of this sentence to be sufficient, taking into account that Mr Chuol has otherwise remained in custody since his remand on 7 June 2024’.[28]
[28] Defence Submissions on Appeal for Tietdong Choul dated 26 May 2025, 7 [43] (‘Defence Appeal Submissions’).
112Mr Karitzsis, counsel for Mr Luak, submitted that his client should be assessed for his suitability for a Youth Justice Detention Order. He submitted that further time in adult custody, ‘without rehabilitative supports tailored to his age and neurodevelopmental needs – is not only punitive but actively counterproductive to both his rehabilitation and long term community safety’.[29]
[29] Defence Submissions (n 18) [25].
Relevant Sentencing Principles
Youth
113Tietdong Chuol was born in April 2004 and is now 21 years’ old. He was 20 years’ old at the time of the offending charged in indictment No C2400445 and 19 years’ old when he committed the offences in February 2024 that are the subject of the appeal.
114Although he is not now to be sentenced as a ‘young offender’, his youth remains a very important sentencing consideration.
115Jal Luak was born in January 2005. He was 19 years’ old at the time of his offending and is now twenty. He falls under the definition of a ‘young offender’.
116It is well established that an offender’s youth will be an important mitigating circumstance. In cases involving young offenders, rehabilitation will generally be a more important sentencing purpose than general deterrence.[30]
[30] [1998] 4 VR 235, 241 (‘Mills’).
117A young offender ‘is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality’.[31]
[31] See ibid.
118The Sentencing Act makes special provision for ‘young offenders’.[32]
[32] Sentencing Act (n 6) pt 3, sub-div (4).
119In the case of R v Mills[33], the Victorian Court of Appeal endorsed several general propositions about sentencing youthful offenders. Two have particular application in this case:
(a) First, that the youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises; and
(b) Secondly, in the case of a youthful offender, rehabilitation is usually far more important than general deterrence. This is because punishment and incarceration in an adult prison may in fact lead to further offending.[34]
[33] Mills (n 30).
[34] See ibid.
120In the same year that Mills was decided, the Court of Appeal also acknowledged that the propositions in that case, while applied frequently, are not of universal or automatic application;[35] in some cases, factors such as youth and rehabilitation are to take a ‘back seat’ to other sentencing considerations.[36] In particular, youth must be given less weight in the sentencing synthesis for serious offences.[37]
[35] Azzopardi v The Queen [2011] VSCA 372, 15 [38] (‘Azzopardi’) citing R v Wright [1998] VSCA 84, 6 [6].
[36] See ibid.
[37] DPP v Lawrence [2004] VSCA 154, 10 [22].
121In the case of Azzopardi, Redlich JA summarised the effect of the applicable authorities in this regard:
‘Where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished’.[38]
[38] Azzopardi (n 35) 18 [44] (citations omitted).
122Finally, in DPP v Anderson,[39] the Court of Appeal stated that it is a ‘cardinal principle of sentencing law that, when a young offender is to be sentenced, the sentencing disposition should be tailored — so far as possible consistently with other applicable sentencing principles — to promote the offender’s rehabilitation’.[40]
[39] [2013] VSCA 45 (‘Anderson’).
[40] Ibid 16 [49].
123The court has a discretion to make a youth justice centre order in relation to Mr Luak. The exercise of that discretion is to be informed by a pre-sentence report obtained under section 32(1) of the Sentencing Act. The court may only make such an order if:
(a) It has received such a report; and
(b) It believes there are reasonable prospects for the rehabilitation of the young offender; or
(c) It believes that the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison.
124Importantly, it is the court’s assessment of these two alternatives that is decisive. The court is not bound by the finding in the report but is to give it the weight that is appropriate in the circumstances. Of particular importance will be the court’s assessment of the persuasiveness of the report.[41]
[41] Cf. Singh v R [2023] VSCA 17, 13 [62]-[64] (‘Singh’).
125Section 32(2) of the Sentencing Act is also relevant. It relevantly provides that:
In determining whether to make a youth justice centre order … a court must have regard to-
(a) the nature of the offence; and
(b) the age, character and past history of the young offender.
126The court received a nine page assessment report dated 10 July 2025.[42] The assessor, Mr Shah, interviewed Mr Luak on two occasions, consulted with other Youth Justice workers who had dealt with Mr Luak and considered the report by Ms Fakhri, the letter from Ms Metzler, the victim impact statement and the submissions before the court.
[42] Exhibit P3 (n 15).
127After noting the circumstances of the offending, Mr Luak’s involvement in the Justice system and his personal circumstances the report considers the s 32(1) criteria concluding that Mr Luak satisfies section 32(1)(a) but not section 32(1)(b).[43] The ultimate conclusion is that Mr Luak is suitable for a YJC Order ‘solely in relation to section 32(1)(a)’.[44]
[43] Sentencing Act (n 6).
[44] Exhibit P3 (n 15) 8.
128The assessor concluded (incorrectly) that Mr Luak had breached a CCO by committing the offences before the court.[45] In fact the breach was a failure to comply with conditions and that matter is pending in the Magistrates’ Court.
[45] Ibid 4. It appears that he may have breached the CCO by other offending in January and February 2024.
129Mr Shah notes in his report that Mr Luak is before the court in relation to serious matters ‘and has other serious offences outstanding’.[46] I asked counsel about these matters at the plea hearing on 17 July 2025 as no information had been provided to the court about them.
[46] Ibid 8.
130After the hearing concluded, counsel for Mr Luak emailed the court with information about the three separate sets of charges which will be heard in a consolidated plea listed for hearing in the Magistrates’ Court on 5 September 2025.[47] All of the offending pre-dated the offending before the court. It is concerning that these matters involved dishonesty and driving offences in circumstances similar to this offending. I note that Youth Justice were fully aware of these matters at the time of preparing the Assessment Report.
[47] Email from Mr Karitzis to his Honour Judge Rozen’s Chambers dated 17 July 2025.
131Further, Mr Shah notes that Mr Luak has ‘limited insight and remorse’ but has consented to participating in offence specific interventions.
132On the positive side, Mr Luak has ‘demonstrated an ability to engage in education and employment. The author notes that ‘commendably, he has utilised his current remand as an opportunity to participate in vocational courses…’ and ‘remans supported by his mother and siblings and has the availability of accommodation upon his release’.[48]
[48] Exhibit P3 (n 15) 8.
133After the report was provided to the parties, the prosecution filed supplementary submissions taking issue with the conclusion about Mr Luak’s rehabilitation prospects. The prosecutor submitted that they should be assessed as ‘guarded’ and not ‘reasonable’.
134At the court’s request, Mr Shah gave evidence on 17 July 2025. He answered questions posed by Ms Fitzgibbon who appeared for the Director. Counsel drew Mr Shah’s attention to paragraph [4] of the supplementary submissions and asked Mr Shah if a consideration of those matters altered his assessment of Mr Luak’s prospects. He answered that they did not.
135The prosecution, in contending that Mr Luak should serve a sentence in adult custody, relied on a decision of the Court of Appeal in Bower.[49]
[49] Bower v The King [2024] VSCA 317 (‘Bower’).
136In that case, a custodial sentence to be served in an adult jail was imposed on a ‘young offender’, but only after an assessment report under section 32(1)(a) of the Sentencing Act had concluded he was unsuitable for a youth justice order.
137In the course of dismissing an application by the offender to appeal that sentence, MacAuley JA explained that:
‘… the choice of a YJC order over adult prison is to be influenced by the relative priority to be given to rehabilitation for those who are at a particularly strategic time of their lives, when influences especially matter. That level of priority is to be assessed on a scale that takes account of the individual offender’s need and suitability for rehabilitation in a specifically youth-focussed and less-onerous environment.[50]
[50] Ibid 13 [46].
138His Honour also drew attention to the purpose of the exercise of the discretion conferred by section 32(1). As he explained, a YJC order may well be appropriate (albeit not mandatory) ‘if an offender has reasonable prospects of rehabilitation…’.[51]
[51] Ibid 13 [45].
139Before leaving the discussion of Bower, I note that while the offending there was of a similar level of seriousness to the present case, the young offender had a more significant criminal history than Mr Luak and, importantly, in a report the sentencing Judge described as ‘compelling’, Youth Justice had determined that he was unsuitable for a YJC order in part because his ‘rehabilitation is unlikely to benefit from further interventions available through Youth Justice involvement’.[52]
[52] Ibid 6 [26].
140By contrast, as noted, Youth Justice has identified specific programs that it recommends for Mr Luak and has assessed his prospects of rehabilitation as ‘reasonable’. Further, his criminal history is relatively limited.
Parity
141I accept the prosecution submission that the two offenders before the court are essentially equally culpable for the offending in relation to charges 1 and 2.[53] Further, their personal circumstances including their criminal histories are quite similar.
[53] Prosecution Outline of Submissions for Plea dated 28 May 2025, 7 [27].
142However, as it is well established that ‘a Youth Justice Centre Order is an inherently less onerous sentence than a sentence [of] imprisonment to be served in an adult prison’,[54] it is appropriate for the sentence on charges 1 and 2 that will be served by Mr Chuol in adult custody to be shorter than that which Mr Luak will serve in relation to those charges in youth detention.
[54] Gosland and McDonald v The Queen [2013] VSCA 269, 15 [30].
Current sentencing practices
143A further matter to which a sentencing court is required to have regard is current sentencing practices. This is to promote consistency in sentencing. Previous decisions are not precedents but may illuminate relevant matters of principle.
144I have considered four recent Court of Appeal decisions which are somewhat similar to the present case. They are Singh,[55] Bower,[56] Balshaw [57] and Seualeuga.[58] Each case involved youthful offenders who had committed serious offences. I have been assisted by these decisions to determine the appropriate sentences in this case.
[55] Singh (n 41).
[56] Bower (n 49).
[57] Balshaw v The Queen [2021] VSCA 78 (‘Balshaw).
[58] Seualeugav The King [2024] VSCA 1853 (‘Seuleuga’).
Consideration
General
145As noted earlier in these reasons, this was serious offending which has had a terrible impact on the Cheng family. No-one should have to suffer the ordeal that they suffered.
146General deterrence, community protection and denunciation are the principal sentencing considerations. The community rightly expects a strong response from its courts to violent behaviour such as occurred in this case.
147However, because of the youth of both offenders, rehabilitation is a very important consideration and the need for general deterrence is moderated accordingly. The need for general deterrence is further moderated to a modest extent on account of the deprived personal backgrounds of both young men.
148Ultimately, I accept the prosecution submission that only a head sentence with a non-parole period adequately addresses the criminality in this case. The length of the sentences to be served, and in Mr Luak’s case, where the sentence is to be served, are to be determined having regard to all relevant features of the case.
Jal Luak
149I have determined that a youth justice centre order is the appropriate disposition. Mr Luak is ‘at a particularly strategic time of [his life], when influences especially matter’.[59] In accordance with well-established authority, it is incumbent on a sentencing court to strive to maximise his rehabilitation prospects. As the author of the assessment report has explained to the court, a Youth Justice Order will enable Mr Luak to be assessed for his eligibility for the Adolescent Violence Intervention Program. That program is not available in adult custody. To accede to the prosecution submission in these circumstances would essentially be to give up on Mr Luak. That is not in the interests of the community.
[59] Bower (n 49) 13 [46].
150I have also had regard to the serious nature of the offending and the age, character and past history of Mr Luak. His criminal history is relevant but relatively limited. Unlike some offenders he has not had a lengthy involvement with corrections as a young man and I agree with the opinion in the Assessment report that as a ‘late onset offender’, this may ‘bode well for his rehabilitative prospects’.[60] Although the alleged violent incident in which he was involved while on remand is concerning,[61] it appears to be an isolated incident. No charges have been laid.
[60] Exhibit P3 (n 15) 7.
[61] See ibid. There are limits to the weight that should be placed on such reports in the absence of a finding by a court – see generally DPP v Sherman [2024] VCC 299, 29-30 [141]-[146] and the Queensland case there cited.
151In reaching the conclusion that Mr Luak’s rehabilitation prospects are at least reasonable, I have given considerable weight to Mr Luak’s age and limited criminal history; that this is the first occasion on which he has been incarcerated; that he has only received one community-based sentence; his recent attempts at rehabilitation while in custody; and his ongoing family support. I have also taken into account the letter of apology he wrote to the court.
152I have also had regard to the assessments by Ms Fakhri and Mr Shah noting their respective expertise and experience. Mr Shah has worked at Youth Justice for nine years and specialises in assessing youth offenders. He impressed as a diligent and cautious witness. His report is comprehensive and persuasive. It fully records the matters that militate against the assessment ultimately made and takes them into account appropriately.
153These various matters in combination well justify the descriptor ‘reasonable’ in my view as an assessment of Mr Luak’s rehabilitation prospects.
Tietdong Chuol
154Mr Chuol is too old for a YJC order. He must serve his sentence in adult custody.
155In determining the appropriate length of the sentence, I have taken into account the matters discussed earlier about the seriousness of the offending and its impact on the victims. This must be balanced against Mr Chuol’s relatively limited criminal history, his youth, relatively low IQ, deprived childhood and mental health conditions.
156The principles of parity, totality and parsimony all have application.
157In respect of Mr Chuol’s appeal, I do not accept his counsel’s submission that a sentence of nine days in custody is adequate.
158I can see no reason to alter the sentence imposed by the Magistrates’ Court reflecting as it did the objective gravity of the offending and the need for specific deterrence having regard to Mr Chuol’s criminal history.
159The principle of totality is important as between the sentences to be imposed today on Mr Chuol. It is appropriate to make the custodial component of the sentence on the appeal wholly concurrent with the significant sentence imposed on the indictable matters. It is unnecessary in these circumstances to make an order under section 18 of the Sentencing Act in relation to the nine days served in custody.
Orders - Jal Luak
160You are convicted and sentenced to the following periods of detention in a Youth Justice Centre:
(a) On charge 1, home invasion, two years and nine months;
(b) On charge 2, armed robbery, 18 months.
161On related summary charge 4, driving in a manner dangerous, you are convicted and sentenced to 6 months’ detention.
162On related summary charge 5, driving without appropriate supervision, you are convicted and sentenced to 1 month’s detention.
163Three months of the sentence on charge 2 and two months of the sentence on summary charge 4 are to be served cumulatively on the sentence imposed on charge 1.[62] The sentence imposed on charge 5 is to be wholly concurrent.
[62] Section 33(1) of the Sentencing Act establishes a presumption of concurrency in this circumstance.
164The total effective sentence is therefore 3 years and 2 months’ detention in a Youth Justice Centre. There is no requirement to set a non-parole period as whether you are paroled is a matter for the Youth Parole Board.
165I declare pursuant to section 18 of the Sentencing Act that the period you have spent on remand of 405 days not including today be reckoned as having been served under that sentence. I note that this period has been served in an adult prison.
166Pursuant to section 6AAA of the Sentencing Act I indicate that, had you pleaded not guilty, I would have sentenced you to a significant period in adult custody.
Orders – Tietdong Chuol
167On indictment No C2400445, you are convicted and sentenced to imprisonment as follows:
(a) On charge 1, home invasion, 2 years’ imprisonment;
(b) On charge 2, armed robbery, 18 months’ imprisonment.
168On charge 3, possession of cannabis, I am satisfied you committed the offence and dismiss it pursuant to section 76 of the Sentencing Act without recording a conviction.
169Three months of the sentence on charge 2 is to be served cumulatively on the sentence imposed on charge 1.
170The total effective sentence is therefore imprisonment for 2 years and 3 months.
171You will be eligible for parole once you have served 16 months in custody.
172I declare pursuant to section 18 of the Sentencing Act that the period of 396 days not including today be reckoned as having been served under that sentence.
173I make the disposal orders sought noting they are unopposed.
174Pursuant to section 6AAA of the Sentencing Act, had you pleaded not guilty, the head sentence would have been 3 years’ imprisonment with a non-parole period of 2 years.
On the appeal in AP-24-1040
175I set aside the orders of the Magistrates’ Court.
176On charge 1, theft of a motor vehicle, you are convicted and sentenced to 2 months’ imprisonment.
177On charges 2-6, you are convicted and fined an aggregate fine of $1,000.
178The custodial sentence is to be served wholly concurrently with the sentence imposed in respect of indictment No C2400445.
179Pursuant to section 6AAA of the Sentencing Act, had you pleaded not guilty, the head sentence would have been 3 months’ imprisonment and a fine of $1,000.
0
16
0