Director of Public Prosecutions v Machok
[2012] VCC 1861
•16 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-02286
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DEYOM MACHOK |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 16 November 2012 | |
CASE MAY BE CITED AS: | DPP v. Machok | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1861 | |
REASONS FOR SENTENCE
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Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr H. Tighe | |
| For the Accused | Mr R. Backwell |
HIS HONOUR:
1 Deyom Machok, on 4 October of this year, following a short trial, a jury found you guilty of one charge of intentionally causing injury to Mr Anyang Lual, that is Charge 5, and one charge of affray, that is Charge 7 on the indictment. No verdict was taken in relation to Charge 6, that was laid in the alternative.
2 You were acquitted in relation to Charges 1 to 4, which involved allegations of intentionally or recklessly causing serious injury, or injury, to Mr Nhial Yoa, and you must get the full benefit of that acquittal.
3 The maximum term of imprisonment for the offence of affray is five years' imprisonment. The maximum for intentionally causing injury is ten years' imprisonment.
4 As the matter proceeded by way of trial, evidence was obviously called from a number of witnesses in relation to the events that took place in the vicinity of a hall in Burke Street in Braybrook on 26 April of 2011. This was a gathering that obviously from the materials had some connection to a Sudanese beauty contest that had recently then been held. You were there in company with your cousin Mr James Makur, and a number of other Sudanese men.
5 Though the basis of the antagonistic relationship between your cousin and Mr Lual was never really explained in the evidence before the jury, it is clear enough that there was some grievance for some reason.
6 I do not regard it as necessary to set out the full facts of the movement of the various groups of people. I will say something about it, but your counsel concedes that this was a serious example of affray, and that concession was undoubtedly correct.
7 Mr Yoa and Mr Lual had attended with three other friends at this same hall, and they had spent only a short period of time within the hall before deciding to leave, and they left, as a result of at least some of them sensing from looks and interaction that there might be some impending physical violence flowing in their direction.
8 This flowed on from some contact made between Lual and your cousin. I do not mean contact in a physical sense, and I have no reason to accept the account that you have provided to the assessment officer in the recent report that has been provided to me.
9 In any event, whatever was said or done, Yoa, Lual, and others in their group, though some of them had already left, they then left the hall and were pursued by a group that contained your cousin Mr Makur, yourself, and a large number of other Sudanese males.
10 The group of which you were a member pursued these other men down the street to their vehicle. It was parked quite some distance away from the hall. There were a large number of people involved in your group, with estimates ranging from ten to twenty, and whatever the number it is clear that a large number of those people within the group of which you were a member were wielding weapons, including baseball bats, golf clubs and machetes.
11 You were clearly involved in this affray from its commencement, as you joined in a criminal enterprise with these others, or at least some of them, to attack and injure Anyang Lual, who was retreating away from the hall back to the vehicle. He was clearly enough the target of the group for whatever reason, and the target of the joint enterprise in which you had joined to attack and injure him.
12 Well, he was attacked. He was injured, with a variety of blows delivered by a variety of people, some identified, some not. The attack commenced with an unannounced striking of a bottle to his head by your cousin, swiftly followed up by a punch delivered by you, and then a number of blows or strikes delivered by a number of other unidentified men who were wielding weapons.
13 It is not suggested that your own blow caused any injury, but it was powerful evidence indeed of your involvement in this joint enterprise.
14 Given the verdicts on Charge 1 to 4 though, I cannot be satisfied beyond reasonable doubt that you were carrying a weapon of any description in the course of these events.
15 The men who had been pursued were then surrounded, or some of them, as indeed was their vehicle surrounded, and there was damage caused to that vehicle as some of them sat cowering within it.
16 The jury was satisfied beyond reasonable doubt that you had joined in the criminal enterprise with these others to assault and injure Mr Lual. The jury were equally satisfied that you were involved in this affray.
17 In the course of the events it is clear that Mr Yoa sustained serious injury. He described being struck by you with a machete repeatedly, and he sustained undoubtedly serious injuries to his arm and to his leg. Grave injuries. That was never in dispute. That is the fact of the serious injuries. However, you have been acquitted in relation to that particular offending. Identification was in dispute in this case, and a full identification warning was given by me to the jury, and it is clear that the jury were not satisfied beyond reasonable doubt that it was you who attacked Mr Yoa in this way.
18 No doubt to any person standing back from the event and observing it, the infliction of serious violent injuries might reasonably be expected to increase the level of terror and would be one sensible guide to the assessment of the seriousness of the affray as a whole. (See the case of Feretzanis 2003 VSCA 8).
19 Taking up the invitation of the prosecution I put that aside altogether in my consideration of the affray to give you the full benefit of your acquittals in relation to Charge 1 through to 4. However, the carriage of weapons by those within your group, and your knowledge of that, is altogether different. You were aware of that fact. You refer to that in the interview. That is that many with whom you were joined were armed.
20 Even putting aside for the purposes of sentencing, as I do, the infliction of serious injury arising in the course of this affray, it undoubtedly was a serious example of the crime of affray, given the large number of people involved, the target, that being a greatly outnumbered smaller group of men, the carriage and use of weapons, and the pursuit of that other group along a public street. Undoubtedly it was a terrifying event to be caught up in, or for that matter to sit back and observe.
21 I am not satisfied, as I have said, beyond reasonable doubt that at any stage you were in possession of or carrying a weapon.
22 As to the physical attack upon Mr Lual, the victim of Charge 5, it involved a joint attack, by a number of men upon a vulnerable and outnumbered victim. It was on any view of it a cowardly attack.
23 Though the injuries themselves were certainly on the lower end of seriousness for the crime of intentionally causing injury, the mechanism and the nature of the attack, and the setting, was not. As to the affray though, of course, I found that you were not personally armed, you were clearly aware of the fact that others involved with you as part of that violent group were armed and heavily so. In your police interview you described there being ten to twenty people with many of them having weapons. I do not regard it as necessary to descend further into the evidence in this case.
Victim Impact
24 A victim impact statement was filed by the victim, the subject of Charge 5. Mr Lual does not overplay the seriousness of his physical injuries. They were at least relatively slight in the physical sense. He did not require hospitalisation. I think he was treated at the scene and did not even go to see a doctor thereafter. But nonetheless the attack upon him was clearly a terrifying one and one that has significantly affected him in the period since the commission of these offences in April of 2011, as the victim impact statement makes clear. It has affected his sense of security when he goes out.
25 I do not see the need to recite the victim impact statement. I have read it again, as I have indeed read all of the exhibits in this case since the plea was conducted, and I take into account, as I am obliged to, the impact of your crime upon this man.
Co-accused
26
Your co-accused, Mr James Makur, pleaded guilty in the Magistrates' Court to one charge of intentionally causing injury to the same person, that is to
Mr Lual, one charge of affray, and one of criminal damage. Though he received an immediate term of imprisonment in the Magistrates' Court, on an appeal brought to the County Court he received a three month term of imprisonment being wholly suspended, together with a two year community corrections order for his offending.
27
That style of disposition has since been made unlawful by subsequent legislative amendment, but Exhibit B on the plea disclosed the summary that was relied upon, and Mr Macure's criminal history, which had only a single non-assault appearance in the Children's Court. Of course he had pleaded guilty to these three matters in the Magistrates' Court.
Mitigation
28 Mr Backwell who appeared for you on the trial, as indeed on the plea, made a number of submissions by way of mitigation. He submitted that you were a youthful offender, only 20 years of age at the time, and you are still only 21 now, and that the principles dealing with youthful offenders had a clear application in this case.
29 He submitted that though your criminal history was not insignificant, there being a number of matters of violence disclosed within it, what was more significant, he argued, was your conduct and behaviour since the commission date of this offence. He argued that you went into custody shortly after 26 April and had made real gains whilst in custody, and upon your release in February of this year.
30 It was submitted that you had family and other support, and that as a result of these positives that you were a better husband, better father, that you were back in the workforce with support in the community offered by the YMCA Bridge Project. It was argued that these various gains demonstrated that you were at last on the path to rehabilitation, and that this positive journey ought not be interrupted at this point by this court.
31 Mr Backwell relied upon a bundle of material said to support these propositions and ultimately he submitted that it would be open not to impose an immediate term of imprisonment, and to proceed by way of a community corrections order or suspended sentence, or in the alternative, if an immediate term was required, to consider the imposition of a three month term, which would then permit your release upon a community corrections order.
Prosecution
32 The prosecution, represented by Mr Perry, made submissions on behalf of the Director of Public Prosecutions, and he called for an immediate term of imprisonment. He argued in support of that submission made on behalf of the Director that this offending was serious, and that your personal history before the court suggested a real and a strong need for some emphasis to be placed on specific deterrence. It was argued that general deterrence was also a significant factor, despite your youth, as indeed was denunciation of your conduct.
33 In the circumstances, Mr Perry on behalf of the Director of Public Prosecutions submitted that the appropriate range of sentence was a head sentence spanning 18 to 24 months, with an immediate period to serve ranging from nine to 12 months' imprisonment. Given the outer limits of that range, such an immediate sentence could be ordered either by way of a partial suspension, or a non-parole period being fixed. Though Mr Perry submitted that given your personal history before the courts, that a non-parole period with the supervision so provided would be likely the preferable course.
34 Before I turn to consider these matters, I repeat, your offending was serious indeed. Affray is an offence against public safety and order, and this affray was a serious one on any view of it. Nor were you on the periphery of it. It was a pursuit of men away from a gathering, as they retreated, with a terrifying level of violence, terrifying for them, and terrifying if observed by anyone passing along that public street. There is simply no role in this society for men to be carrying and wielding machetes and other weapons in this manner in pursuit of others along a public street, or to join in such conduct.
Background
35 I do not particularly see the need to descend to the details of your personal background, as I really have no reason to doubt that which was placed before me in the course of the plea conducted by your counsel.
36 Mr Backwell relied upon the report provided by the Forensicare psychologist Dr Cavezza, this was Exhibit 5, which sets out your background, and he supplemented that background with some oral submissions. As I say, I do not see the need to descend to the details of it, because I accept the personal background as was placed before me.
37 As with many who have come to this country from Sudan, your early life was clearly disadvantaged and unsettled with exposure to violence, to fractured relationships, and lack of stability. You came to Australia when you were young with your uncle and your sister. Your parents to this date remain, as I understand it, in your homeland.
38 You went from Sudan to Egypt, and from Egypt to Australia, arriving when you were about 12 years of age, and though you lived with your uncle, you ultimately moved away from him when still very young, and then developed a very poor peer group, with all the poor choices that can be associated with that sort of setting, such as the abuse of alcohol and cannabis.
39 As a result of your movement from Sudan to Egypt and then to Australia, you have obviously had an interrupted schooling and little by way of English when you arrived in Australia.
40 You attended at the Maribyrnong Secondary College, and you completed Year 9, but you were disruptive in class. You have had some employment after leaving school, as the report makes clear, but you had significant difficulties with alcohol, alcohol and offending going hand in hand in my judgment in your case.
41 You have two daughters from your current relationship. I am told you are the guardian of your partner's six year old child as well, and I understand from the recent pre-sentence report that she again is pregnant.
42 You have no psychiatric history, and the psychologic report does not provide any reason to reduce your culpability for this offending, as your counsel made clear. Indeed, Mr Backwell made clear there was no reliance upon this report as attracting any of the principles in the Court of Appeal decision of Verdins. That submission was undoubtedly correct.
43 The offending for which I must pass sentence took place on 26 April 2011, and it is here that the chronology assumes some significance in my ultimate decision. You were taken into custody a couple of days later on 28 April of 2011. You were then in custody from that date until being released on bail on 23 February of this year. So that period of incarceration flowed from sentences being passed upon you in the Magistrates' Court on 10 October of 2011 for recklessly causing injury, failure to appear, a couple of drive whilst disqualifieds, a refuse breath test, some exceed PCA offences, and some other driving matters.
44 On 10 October of last year the Magistrate imposed a 16 month term of imprisonment, with a non-parole period of eight months. You appealed that disposition and came to the County Court, and you were dealt with on 11 November of last year by way of a total effective sentence of 270 days. His Honour Judge Chettle who heard that appeal then made a pre-sentence detention declaration of 197 days, which I am told represented every day from the date that you went into custody on 28 April of 2011 until the day of sentence.
45 That sentence lapsed therefore on 22 January of this year. It follows that the pre-sentence detention for the matters for which I must pass sentence spans the period from 23 January 2012 until the date of your entry into bail on 23 February of this year.
46 The time that you have spent in custody assumes some significance in the submissions placed before me and is said by your counsel to represent really he did not use these terms - but a significant circuit breaker in this case. It is argued that you have not wasted your time in custody and as a result that you are a very different young man to the young man who committed these offences.
47 Mr Backwell placed before me material showing the connection that you made with the YMCA Bridge Project, doing a Work Readiness and Life Skills Program when initially seen in custody in May of last year, and then repeating that program prior to your release earlier this year.
48 There are two reports from people connected with your involvement in those programs, one, that is Exhibit 1 from Mr Luke Egan, and the second more recent report marked as Exhibit 2, a report from Mr Luke Moodie. Well, again, since the date of the plea I have read all of that material again, and on more than one occasion.
49 Unlike very many people who go into custody, you seem actually to have achieved something whilst there and upon your release. The time that you have already spent in custody is a significant matter for my consideration because of the gains that you seem to have made. Had you been in the position where you had remained at large and continued to commit offences, such as the sort that you have committed in the past, well simply no mercy could be extended to you in such a setting.
50 However, the gains that you have seemingly made sharply focus my attention on your rehabilitative prospects. I am sure you will understand though that your rehabilitation, though an extremely important consideration for this court, as indeed it is for the community, is but one of a number of matters that I must consider.
51 Mr Egan in his report described you as expressing very strongly a desire to become involved in the Bridge Project, and to break the cycle of crime. And he went on, that author, to describe the high rate of recidivism at about 70 per cent amongst young offenders, but for those linked up to the Bridge Project a re-offending rate of below four per cent, at least for the 130 or so young male or female offenders who have passed through that project.
52 It is to your credit that you have involved yourself in that project, and persisted in that involvement, as you did earlier this year. You have done the 11 week training course, and you were then identified for potential employment opportunities upon your release. Well, again this has been to your benefit, because unlike so many who emerge from prison without any support or structure, you have emerged with a decent level of support, not just family support. You have gained employment as a result of that program. I am told in the assessment report, that is now full-time or permanent, and that you have been involved in that capacity with the organisation referred to as Rebuild Pty Ltd as a maintenance officer since March of this year.
53 Mr Moodie in a recent report describes your approach as one of settling in really well and continuing to learn and develop. "Deyom has demonstrated a great work ethic. He has an outstanding attendance record and is always punctual. He works well in a team environment, and has become a valued staff member. Since becoming a participant in the Bridge Project, Deyom has been very motivated, communicates really well, and has conducted himself in a professional manner at all times". The report concludes by saying that the Bridge Project is committed to supporting you throughout your employment at Rebuild Pty Ltd.
54 A number of certificates, marked as Exhibit 3 on the plea, were also placed before me, indicating both the Bridge Project certificate of completion and other practical courses that you have done.
55 There is also a report marked as Exhibit 4 from Ms Chantelle Higgs, a person who came into contact with you many years ago, back in September of 2009, in her role as a case manager at the Youth Transition Support Initiative at the Melbourne City Mission. She has maintained contact with you. She says that since you have been released into the community you have impressed by the transformation that you have undergone, working diligently to build a new circle of peers, forming strong relationships with your family, and striving to hold down employment.
56 She has moved on to a role as a coordinator of a refugee youth development program, and she describes your efforts to present yourself as a role model to other young men of Southern Sudanese background by working at the centre for multicultural youth as a type of peer educator. She says that you are a living example to other young men embedded in the justice system that by hard work, determination, and by accepting support, it is possible for individuals to experience some positive developments in their life.
57 She comments on the attachment that you have to your family and to the commitment that you have made in the time since your release to improve your position.
58 So I take into account all of that material, and indeed all of the materials I have not referred to specifically. Exhibit 6, for instance, was a booklet dealing with the actual nature of the YMCA Rebuild Services Program.
59 The thrust of the plea, as I have said, is that whatever you had done in the past, whatever mistakes you have made, whatever crimes you have committed, including this offending, you have taken significant steps along the road to rehabilitation, and that you now stand in a very different setting, a very different person to the person, one of many in a group, who was rampaging down this street on this night in question on 26 April of last year.
Youth
60 You are a youthful offender, there is simply no question about that, though you are a very long way removed from a youthful first offender. Nonetheless, your youth is a very significant matter in the sentencing discretion that this court must exercise. The authorities make very clear that youth is a primary consideration, and that rehabilitation is usually more important than general deterrence, and that every step ought be taken to avoid immediately imposing upon a youthful offender an adult term, if at all possible.
61 Of course, these principles, though always of application, do not always produce a non-custodial outcome. Sometimes the crime or the background by way of criminal history is simply too serious.
62 The court must have regard to a number of other sentencing purposes, including the need to specifically deter an offender and general deterrence. However, as I have said, your youth is, and remains to me, a very significant factor in this case. And more than simply your youth, youth in tandem with some real gains that seem to have been made to date. There is a clear and strong public interest in the rehabilitation of any youthful offender.
Criminal History
63 But your criminal history is an unfortunate one. It is highly relevant to my task. Some of those subsequent matters dealt with in the Magistrates' Court on 10 October of 2011 occurred back in 2009, but a number of the driving matters occurred on three days running, when you were driving whilst disqualified, and either refusing to undergo a breath test, or exceeding the prescribed concentration of alcohol between 7 and 9 January of 2011.
64 Again, I make clear that none of those matters are prior convictions, but they have been raised before me and they do say something about your attitude at least then. That can be contrasted, it seems to me, with your present attitude as disclosed in this body of material placed before me by your counsel. But you clearly have a relevant criminal history.
65 You were on a without conviction disposition for common law assault that was imposed on 11 March of 2011, so you were on that disposition, an undertaking to be of good behaviour, imposed for a crime of violence, at the time that you committed this affray and intentionally causing injury.
66 You have a range of other relevant prior matters, including a number of separate prior matters for assault, and you have three prior convictions for intentionally causing serious injury. Now, most of these matters, and certainly the three intentionally serious injury charges, were dealt with in the Children's Court, but they are still relevant to my consideration.
67 So there is no doubt in my mind that but for the body of material speaking of some change within, or the possibility of change within, there could be no doubt at all as to the only appropriate disposition being a very sizeable and immediate term of imprisonment imposed upon you.
Parity
68 Your counsel did not suggest that parity of sentence had much pull in this case. It was clear that there were a number of very significant differences between you and Mr Makur. Whilst Mr Makur was one year older, he pleaded guilty to these offences. You have run a trial. You have been found guilty by a jury.
69 More significantly though, Mr Makur appeared before the Magistrates' Court and was sentenced whilst having only one prior appearance in the Children's Court, for which he had been placed on an undertaking to be of good behaviour, which he had complied with. That prior appearance did not involve any aspect of violence.
70 Your history is altogether different. You have many prior matters of violence, some of them very serious offences, and you were on an undertaking for a crime of violence at the time that you committed these acts of violence for which I must now pass sentence.
71 So whilst I clearly do not ignore the disposition imposed upon Mr Makur, it does not have a particularly strong influence on the sentence that I must impose upon you. The principle of parity of sentence has at its foundation the principle of equal justice, that being an important notion. All things being equal, like offenders ought be dealt with in a like manner, to avoid any justifiable sense of grievance, but of course you were not involved in the precise same conduct physically as Makur, but you joined in this joint enterprise with him, as this verdict makes clear, and you physically delivered a blow in very tight sequence with the bottle being used before your blow. The bottle was used by Makur, and you immediately punched the very same victim.
72 You were, both of you, at the forefront of this disturbance, neither of you on the periphery of the affray. So there is very little, if any, sensible distinction that could be drawn as to your roles in the affray, or the attack upon Mr Lual, but very sizeable distinctions in your backgrounds before the courts, and in your responses to the charges. His guilty plea must necessarily have produced a very sizeable discount in his favour in sentence. You have run a trial.
73 So this is a quite complex sentencing exercise. It is complex because of the serious nature of your crimes, your relevant criminal history, and the evidence that does touch upon your prospects of rehabilitation. Even as of the date of the report provided by Dr Cavezza, she commented on the protective factors that might in the future serve to reduce your risk of re-offending, which would include, she thought then, at the time of that report, and that was in October of 2011, your willingness to engage in treatment and motivation, to refrain from drinking and associating with your former peer group, and your desire to be an appropriate role model to your children and a provider for your family; she commented on the specific deterrent effect of the incarceration already served at that point, and your being adamant as to not wishing to re-offend in the future.
74 She described then your risk of your re-offence, both generally and in terms of crimes of violence as being moderate, but in my judgment it is inevitable that given the favourable material that is now placed before the court her view would have altered materially in your favour.
Rehabilitation
75 I am prepared to find that you have reasonable prospects of rehabilitation, despite your significant history. I am encouraged by the steps that you have taken and continue to take, and I am anxious as to any role that I might play in interrupting those steps.
76 I find also that you present with a reduced risk of re-offence. If - and it is a big if - if you can maintain the steps that you are taking, and importantly maintain some level of either control or better still abstinence in relation to alcohol, then I sense that you represent a reasonably low risk of re-offence. Again, I am persuaded to this favourable view by the favourable material provided by the people associated with the Bridge Project and your engagement with Ms Higgs.
77 A judge passing sentence has to take into account a number of matters. I must have regard to the maximum penalty and the impact of your crimes upon any victim.
78 I must pay regard to current sentencing practices, which I do, and I have looked at the Judicial College site and various cases, including DPP v. Johnston [2004] VSCA 150 and R v. Ly and Others [2004] VSCA 45. Clearly, the court must manifest its denunciation of this serious offending by you. You must understand that you are simply not free to do as you please and to behave with violence.
79 I must also pay some regard to the protection of the community from you, though I do not over-emphasise this principle, given the positive signs that are present, and the generally favourable conclusions that I have reached as to your rehabilitative prospects and relatively low risk of re-offence.
80 However, I am afraid time and time again courts have passed sentence upon you in relation to crimes of violence. No doubt time and time and time again a significant focus of those past sentences has been the hope, to dissuade you from further violent offending, to lead you away from committing any such crimes of violence in the future. It has failed to date. Again you have acted violently.
81 Affray can be a very serious crime. One of the reasons it can be so serious is it can very quickly get out of hand, because it is a collective offence. It is very fluid and can develop swiftly, with the potential snowballing effect often provided by joint activity. Who can ever tell how an affray, especially one where people are carrying weapons, will end?
82 I reduce to a degree the emphasis that might otherwise have been placed on specific deterrence, given the conclusions that I have reached as to your prospects of rehabilitation, but it is still a relevant purpose of sentencing. You must be deterred. You have not been in the past. I do suspect that the term which you have served to date prior to your release earlier this year in relation to those other matters has had a role to play in your reassessing your life and making some adjustments for the better. But I still must pay regard to the need to dissuade or deter you from committing offences of violence.
83 The court must also pay regard to the need to deter other people from committing crimes such as this, though again, given your youth, I do reduce to a degree the emphasis that might otherwise have been placed on this purpose of sentencing.
84 This sort of conduct, a massed violent gathering with physical fighting and weapons, is simply not conduct that can be countenanced by the court, and a strong message to that effect must be sent to others who might be minded to commit this sort of crime.
85 I have to take into account the nature and gravity of your crimes, and I have already commented on these features earlier in these reasons. No one suggests that the actual physical injuries sustained in the intentional causing injury charge are at the high end of the scale, but nonetheless that is not a minor or trifling instance of that crime, given the joint nature of the attack and the setting. You were involved in a joint attack upon a victim who was hopelessly outnumbered. You joined in physically with others, others who were armed with weapons, a bottle, machetes, fists. It is lucky indeed that this man was not more seriously injured. But still your offending has had an impact upon him, and a clear one, as spoken of in the victim impact statement.
86 As to the affray, I have already indicated the seriousness with which that is viewed. Your counsel offered up that description of it. It is an offence against public safety and order. The seriousness of the offence does vary enormously, and though this was not a lengthy pitched battle, it was a long way removed from some trivial or rowdy scene which sometimes arises spontaneously, for instance at closing time outside a hotel.
87 This was targeted movement of one group in pursuit of another. To that extent the acts of the individual participants are not to be taken in isolation. You were involved physically in the affray, though of course I do not find that you were armed. You were joined with others who were armed, and you knew that, and you were involved in the movements of the group. You must share some blame for this overall picture, and this picture was one of a terrifying nature on a public street outside this hall in Braybrook on the morning of 26 April 2011.
88 I must also impose a penalty which justly and appropriately punishes you for the commission of these crimes.
89 On the day of the plea I called for a report as to your suitability for a community corrections order. I made clear to your counsel at the time that I called for that report that you should take no comfort or joy from the fact of my calling for such a report. I wanted to be more fully informed in relation to certain matters. I have read that report. It occurs to me I should as a matter of completeness, mark a copy of that report. I will mark it as Exhibit C, though not a prosecution exhibit, I will mark it in that way.
90 EXHIBIT C - Assessment report 12/11/2012 provided by Dylan Thomas.
91 Again, I do not judge it to be necessary to go into the details of the report. It comments on your past response to such community-based orders. For instance, the last community-based order that you were placed on your compliance was most unsatisfactory, with a final warning being issued to you. But you are judged to be suitable for a community corrections order.
92 Sentencing is said by very many, mostly by those who have never been involved directly in the process, to be a simple exercise. Well, of course, it is not. To send a person to prison immediately is clearly always a matter of last resort. But of course there are some crimes that demand it.
93 The complexities arise in making judgments as to the relative weight of the various principles of sentencing, some of which lie in competition to others, and this is especially difficult in the setting of a sentence imposed in relation to a youthful offender, and more so a youthful offender who is showing at least and at last some signs of maturity and useful engagement in the community.
94 Ultimately, I have concluded that I must send you immediately to prison today, but for a substantially lesser period than that submitted as appropriate by the prosecution.
Sentence
95 Mr Machok, would you stand up, please. On Charge 5, intentionally causing injury, I convict and sentence you to three months' imprisonment. As I say, that is a term that you will serve immediately. On Charge 7, the charge of affray, it is my intention to convict and release you upon a community corrections order for a period of two years, commencing upon your release from prison. I can only place you on such an order if you consent so such an order, so I need to explain the purpose and the effect of this, and once I have done so I will ask Mr Backwell if he wants to go down and have a word to you to make sure you understand what it is that I am proposing.
96 As I have indicated, I intend to send you immediately to prison today for that period of three months, less of course the period that you have already served, which I think is 32 days. I will have more to say about that in a moment.
97 Upon your release you will be required to report immediately to the Werribee Community Corrections Service within two days of your release. They are at Watton Street in Werribee. You have been there and you obviously will know where they are. The order would commence upon your release. It would be, as I say, for a two year period.
98 You have had these sort of orders, not the precise community corrections orders, but community-based orders, explained to you in the past, but I have got to explain it again to you. You will probably remember that on your past community-based order there were standard conditions that applied to every such order, and that is the same in relation to the community corrections orders.
99 The mandatory terms that apply to every community corrections order, and therefore would apply to you as well, is you must not commit any other offence for which you could be imprisoned during the time that the order is in force. So if you break the law, if you commit any offence punishable by imprisonment, and almost every offence is punishable by imprisonment, you would breach this order. You must comply with any direction given by those whose job it is to supervise the order. You must report to, you must receive visits from, the community corrections officer. You must report to the community corrections centre within two clear working days of the order starting, which will be upon your release from prison. You must let a community corrections officer know within two clear working days of any change of your address or employment upon your release. You are not allowed to leave Victoria. You must not leave Victoria without first getting permission to do so from the community corrections officer. You must obey all lawful instructions from, and directions given by, the community corrections officer who will be supervising the order.
100 So, they are the conditions that apply that are mandatory. They apply to every order. Most people breach these orders by committing offences or by not turning up when they are told to turn up. You know that, because on your last order you were given a final warning.
101 Aside from those mandatory terms, I am going to fix some specific conditions that apply to you in the period of this order.
102 The first relates to unpaid community work. You must perform 350 hours of unpaid community work over the two year period of the order, as directed by the regional manager. Again, if you are told to go to a workplace and you do not, you will breach the order. You will see me again. You will be under supervision of a community corrections officer for the entire period of this order, that is, for the two years.
103 Further, I impose some conditions that I hope may provide some continued enhanced prospects of rehabilitation, and they relate to your past problems with both drugs and/or alcohol. These are treatment and rehabilitation conditions. You must undergo assessment and treatment including testing for drug abuse or dependency as directed by the regional manager. You must undergo assessment and treatment including testing for alcohol abuse or dependency as directed by the regional manager, and you must undergo programs or courses aimed at addressing factors relating to the offending as directed by the regional manager.
104 Now I do not know what programs you will be directed to attend, but programs no doubt will be selected, and your obligation is to attend if you are told to attend at a program. You must attend assessment and treatment as you are told to. If you do not, you breach the order. If you fail to conduct testing, if testing is required, well, again you will breach the order. So, I hope that you do not breach this order. I hope that in a short time from now, when you emerge from custody having served the short term of imprisonment that I have imposed upon you, that you will move forward in the way that you seemingly are already, with some further level of support and structure provided by this order, and I hope never to see you again. But you can rest assured, if you breach this order, you will see me again because you will be brought back before me for breach proceedings and I would then be in a position where I would be required potentially to re-sentence you in relation to the crime of affray.
105 Mr Backwell, it is a bit of a mouthful always in going through these terms. Do you want to go down and have a quick word to your client to make sure he understands the terms.
106 MR BACKWELL: Yes, Your Honour.
107 HIS HONOUR: Do you understand the terms and effects that I have in mind?
108 MR BACKWELL: Yes.
109 HIS HONOUR: Yes, go down and have a word to him, please.
110 MR BACKWELL: Thank you, sir. Thank you, Your Honour.
111 HIS HONOUR: Are you satisfied your client understands the terms and the effects of that?
112 MR BACKWELL: Yes.
113 HIS HONOUR: Mr Machok, do you understand what it is I am proposing to do? Do you understand what I am doing today?
114 PRISONER: Yes, sir.
115 HIS HONOUR: Do you consent to a community corrections order in the terms that I have described to you?
116 PRISONER: I didn't get that - - -
117 HIS HONOUR: Do you consent to this community corrections order?
118 PRISONER: I'll follow that, sir.
119 HIS HONOUR: I can't hear you, I'm sorry?
120 PRISONER: I'll do it, yes, sir.
121 HIS HONOUR: You will do it. All right. Have a seat then for a moment, please. I make it 32 days, Mr Backwell and Mr Tighe, is that right or not?
122 MR TIGHE: That's right, Your Honour.
123 MR BACKWELL: That's correct, Your Honour.
124 HIS HONOUR: Yes, all right. I am not necessarily sure Mr Machok understands that, but you will further explain that, Mr Backwell - - -
125 MR BACKWELL: Of course.
126 HIS HONOUR: - - - that he gets credit already for the 32 days that he has served in custody, so that comes off the three months.
Section 18 Pre-Sentence Detention
127
I direct that Mr Machok has spent a period of 32 days by way of
pre-sentence detention in relation to this matter and that this period be reckoned as already served under this sentence that I have pronounced in relation to Charge 5 and that that ought be noted in the records of the court.
128 MR TIGHE: There are no orders sought, Your Honour.
129 HIS HONOUR: No. Thank you. I am just trying to work out how one actually places into the order the correct terms, given that it is “upon his release”. I am looking at s.44 of the Sentencing Act. If it is made in respect of an offender, in addition to a term of imprisonment, which this has been, though not on the same charge, obviously, the community corrections order commences on the release of the offender from imprisonment, and s.38(2) the normal requirement is obviously the requirement to fix the date of commencement, but under (2)(b) "direct that the community corrections order commences on the date that the offender is released from imprisonment in accordance with s.44." So that seems to be the way that I specify it. I am not sure what the system makes of all of that. Yes, all right. So, we will just have that order prepared.
130 Mr Backwell, I think your client is thinking he wants to say something to me. I am not sure whether he does or he doesn't, but do you want to go and have a word to him or not?
131 MR BACKWELL: Yes, thank you, Your Honour. Thank you, Your Honour.
132 HIS HONOUR: I am sorry, Mr Tighe and Mr Backwell, the system, I think, is getting a bit cranky in terms of the lack of a specified date for commencement. I do not think I have made it explicit in my remarks, Mr Backwell, I have not overlooked the suggested conditions as to monitoring and curfew and alcohol exclusion. The conclusion I have reached is that in the circumstances it is not necessary to impose those conditions.
133 MR BACKWELL: Yes, Your Honour.
134 HIS HONOUR: If he does not understand as he sits there today and when he gets out, that this order is his last chance and that he needs to take assistance in terms of alcohol, then really it is not appropriate that I order abstinence under the provisions and I see little purpose in excluding him from particular zones. He is 21 years of age. Again, if he does not understand the relationship between alcohol and his offending and these things occurring at night, then no curfew is going to drive it home to him, in my judgment, so I am not imposing any of those special conditions.
135 MR BACKWELL: If Your Honour pleases.
136 HIS HONOUR: Yes. Mr Backwell and Mr Tighe, just have a look at the order that is coming down. One of those will be the order that will go up to your client. Just make sure that we have got that right, if you would. How does that look, Mr Backwell, is it - - -
137 MR BACKWELL: It seems to be in the appropriate form, Your Honour.
138 HIS HONOUR: It is a bit clumsy. There is no fixed date and so I have followed the - - -
139 MR BACKWELL: There can't be.
140 HIS HONOUR: I have followed the terms of the section to specify it lasting for two years and to commence from the first day he is released from imprisonment.
141 MR BACKWELL: Yes.
142
HIS HONOUR: But we have included down the bottom, though, it really is not a residual condition, it is simply an explanation that it - we calculate it just manually, looking at calendars and the like, as a likely release date of
15 January, but we might be wrong, so - - -
143 MR BACKWELL: It doesn't take into account the possibility of management days.
144 HIS HONOUR: Correct. So that the date will be - it commences on his release from prison, therefore his obligation is to attend within two clear working days after the commencement of that order, so within two days of him being released he has to swing on down to Werribee.
145 MR BACKWELL: Yes.
146 HIS HONOUR: All right.
147 MR BACKWELL: May I approach the dock to get his signature?
148 HIS HONOUR: Yes, of course you can.
149 (Community Corrections Order signed and acknowledged.)
150 HIS HONOUR: Yes, thank you. Yes, all right. I have signed that order. Any other matters in relation to this matter?
151 MR TIGHE: No, Your Honour.
152
HIS HONOUR: All right. Thank you for your assistance. Yes, remove
Mr Machok, please.
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