Director of Public Prosecutions v Magok

[2017] VCC 142

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-02217

DIRECTOR OF PUBLIC PROSECUTIONS

v

AJAK MAGOK

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JUDGE:	HIS HONOUR JUDGE BOWMAN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	7 March 2017
CASE MAY BE CITED AS:	DPP v Magok
MEDIUM NEUTRAL CITATION:	[2017] VCC 142

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Corka
For the Accused	Mr F. Cameron

HIS HONOUR:

1Ajak Magok, you have pleaded guilty to one charge of robbery and one charge of perjury.  The maximum penalty for each offence is 15 years' imprisonment.

2At the time of your committing the offences in question, you have had a considerable criminal history, but no prior convictions for either of these offences.  There have been some subsequent matters.  In particular, your counsel directed my attention to convictions that were imposed upon you at the Moorabbin Magistrates' Court on 14 February last. 

3Some of these offences were in fact committed after this plea hearing had commenced, and whilst it was adjourned for the purpose of gathering psychological or psychiatric material.  I shall return to these matters.

4The circumstances surrounding the present offences are set out fully in the prosecution opening.  There is no dispute concerning them, and I shall not repeat them here in full.

5Suffice to say that at approximately 11.30 pm on 20 September 2014 you entered a BP service station in Heatherton Road, Springvale South.  The victim of the robbery, Dai Dow, was the sole employee present.  You said to him words to the effect of "Just give me what I want, I do not want to hurt you".  When the victim opened the till you said to him "Give me all the notes".  When the victim, Dow, attempted to delay matters in the hope that another customer would arrive, ultimately you said to him "Do not make me do anything stupid, I know you are a good person".

6Ultimately, you took some $650 in cash, and a $10 Optus recharge card.  Without going into great detail, your behaviour became peculiar, in that you kissed Dow's hand, told him that he was a good person, and that God would bless him, and you then left the service station.

7You were arrested on 25 September 2014, and then admitted that you had attended the service station, and claimed that the victim, Dow, owed you $1,000.  You were taken to the Springvale Police Station where you were interviewed.  You claimed that you had met Dow that afternoon at the Springvale house of a Vietnamese man, and that the victim had asked you to attend at the service station and make it look like an armed robbery.  You and the victim would meet later, and the money would be handed over to Dow.

8Having attended at the service station and been given the cash and a recharge card, you again met the victim at the home of a friend called Adam and gave him the cash, keeping the recharge card.

9Police later attended at the addresses that you provided in relation to the Vietnamese man and Adam, but found no such persons living there.  Ultimately on 25 September 2014, you made a false sworn statement to police, confirming the version of events that you had given.

10Your statement was read back to you, and you were warned concerning the consequences of committing perjury if your statement was false.  However, you said that you were not lying, and signed the false statement, thereby committing perjury.  You admit that the statement was false.

11No victim impact statements were tendered before me.  I note that there has been no pre-sentence detention in relation to these matters.

12I state to you that I have taken the following matters into account in your favour in mitigation of sentence:

13Firstly, there are your pleas of guilty.  Whilst it certainly could not be said that you so pleaded at the earliest possible opportunity, and indeed your perjury offence caused the police to interview witnesses and pursue lines of enquiry that were fruitless, your pleas of guilty remain as factors that entitle you to some mitigation of sentence.

14You saved the victim from having to come to court and give evidence, and your pleas of guilty have a real utilitarian effect.

15Also I am satisfied that your pleas of guilty do reflect some remorse for your actions;

16Next, there is your youth.  At the time of this offending, you were 24 years of age.  In my opinion, the well-known principles relating to sentencing youthful offenders apply in your case.  The weight to be given to such a fact is lessened due to your extensive criminal record;

17Next there is the consideration of delay.  You have had this matter hanging over your head for almost two and a half years.  Principles relating to delay apply in your case, although it cannot be said that you have kept out of trouble since, and thereby enhanced your rehabilitation.  Nevertheless, you have had this matter hanging over your head for some two and a half years, and I take that into account;

18There is then the matter of your personal background and circumstances.  Many details of this are contained in the report of 12 December 2016 of Anthony Cidoni, consultant psychiatrist.  There is also material in the report of 14 April 2015 from Ms Carla Lechner, consultant psychologist.

19You were raised in a Sudanese village.  When you were approximately nine or ten years of age, your father was murdered by soldiers in front of you.  Subsequently, you were relocated to a refugee camp in Kenya, where you have described life as being hard, and where there were many incidents of violence.

20You had no education in Sudan.  You had two to three years of education in Kenya.  You have never worked.  You were sponsored to Australia by your maternal uncle, arriving here in 2009, when you were 18 years of age.

21You have been in and out of trouble here, and apparently began abusing ice after that maternal uncle was killed in a motor vehicle accident.  You have had ongoing, quite major alcohol and drug problems.

22You also have a history of a head injury of some consequence, which occurred when you were in the refugee camp in Kenya.

23In the opinion of Dr Cidoni, your psychiatric history is consistent with post-traumatic stress disorder, and he does not believe that you have had appropriate treatment.  There is apparently a history of a suicide attempt.

24In short, you had what could only be described as a tragic background, and it is certainly something that I will take into account.

25Due to your criminal history, I regard your prospects of rehabilitation as cloudy.  Overall though, I still assess them as being reasonable.  I note also that the Crown stated, fairly, that a community correction order is still an available option in your case.

26I turn now to other matters which are to be taken into account in imposing this sentence.  Firstly, both robbery and perjury are very serious offences, and the maximum penalty for each reflects this. 

27Next, there is the fact that these offences were committed whilst you were on bail.  You were on bail in relation to charges of unlawful assault, criminal damage, and resisting arrest, with these offences being committed on
7 September 2014.

28Committing further offences whilst on bail is an aggravating factor.  As stated, the offences that you have committed are serious.  It is to be borne in mind that it is robbery with which you are charged, not armed robbery.  Nevertheless, both robbery and perjury are offences which the court and the community take very seriously.

29The principles of denunciation, general deterrence, specific deterrence, and the protection of society all have their part to play in sentencing.  General deterrence and the protection of the community clearly are to be borne in mind when dealing with these offences.

30In relation to specific deterrence, your numerous previous offences do not assist you.  Without going into them in detail, there are convictions for matters such as resisting and hindering police, intentionally causing serious injury, making a threat to kill, unlawful assault, making a false report to police, possession of a controlled weapon without excuse, and the like.

31You have previously been in custody, although not for overly lengthy periods.  I have borne in mind the importance of specific deterrence.  That there has been subsequent offending, basically along much the same lines as the matters I have mentioned, although also involving a family violence intervention order.  That there had been this subsequent offending is also apparent.

32Given that a community correction order is being sought, what is particularly relevant is the offending which has resulted in the orders of the Moorabbin Magistrates' Court and the penalties there imposed.  As stated, some of these offences occurred after the present plea hearing had commenced, and whilst it was adjourned.

33The offences for which you were dealt with at Moorabbin vary in nature, from carrying an imitation firearm, dealing in property suspected as being the proceeds of crime, false imprisonment, possession of drugs, contravening a family violence intervention order, and the like.

34I will not go through the individual sentences that were imposed, but the end result is that, apart from the fines and the like, you are sentenced to be imprisoned for a period of six months, which period, allowing for time already served, expires on 14 July 2017. 

35There is also a community correction order for a period of 12 months, commencing on 14 July next.  As part of that community correction order, you are required to undergo assessment and treatment, including testing, for drug abuse and dependency as directed.  Assessment and treatment, including testing, for alcohol abuse or dependency as directed.  Mental health assessment and treatment as directed, and taking part in an offending behaviour program as directed.

36In summary, you will be imprisoned until 14 July 2017.  You will thereafter be subject to a community correction order for a period of 12 months, during which you are to undergo the treatment and rehabilitation procedures I have referred to above.

37I am bearing all of the above in sentencing you for these offences.  As I made clear early in the further plea hearing on 23 February last, my initial reaction was that these offences call for a term of imprisonment.  However, counsel on your behalf argued strongly for the imposition of a community correction order to be concurrent with that already imposed by the Moorabbin Magistrates' Court, and with the additional requirement that you participate in community work.

38Importantly, counsel on behalf of the Crown stated that she had confirmed their instructions, to which there has been earlier reference, that a community correction order was, in all the circumstances, an available sentencing option, but should have a requirement such as participation in community work added.

39If that option were to be adopted, both counsel expressed the opinion that it should be concurrent with that imposed by the Moorabbin Magistrates' Court, and commencing on 14 July next.

40I have also considered again what was contained in the reports of Dr Cidoni and Ms Lechner.  I note the conclusion of Dr Cidoni that a treatment-based approach is likely to yield far more benefit in reducing the risk of incarceration and improving the prospects of rehabilitation, than is a purely correctional one.

41You indicated that you would agree to be bound by a community correction order, should one be made.  As both parties stated that such an order was at least an available option, you were referred for assessment.

42An assessment outcome report was ascertained.  The view of the assessing officer was that you were assessed as suitable for a community correction order, but with conditions in relation to community work, treatment and rehabilitation in relation to programs concerning drugs, alcohol, mental health and a reduction in reoffending, and supervision.

43I have considered all of the above, including the operation of Renzella's case in relation to your dead time, which I have been informed by counsel is something in the order of 23 days, and this is a factor which I take into account in arriving at an appropriate sentence.

44Bearing all of this in mind, I am of the view that the interests of justice would be best served by the imposition of a community correction order.  Such order will commence on 14 July 2017, which is the date of your release, and will be for a period of 18 months.  The community correction order is concurrent with that made at the Moorabbin Magistrates' Court on 14 February last.

45In addition to the core conditions that apply to all community correction orders, and which I shall explain in a moment, there are additional conditions:

46You must perform 100 hours of unpaid community work over a period of 18 months, as directed by the regional manager;

47You must be under the supervision of a Community Corrections officer for a period of 18 months;

48You are required to be supervised, monitored and managed as directed by the Secretary or his or her nominees;

49You must undergo assessment and treatment, including testing, for drug abuse or dependency, for alcohol abuse or dependency, for mental health assessment and treatment, and by way of an offending behaviour program as directed.

50These will be directions by your regional manager, and I will go through these conditions again in greater detail in a moment.

51I can only impose a community correction order if you agree to such an order being imposed, and you have earlier given such agreement.  If you contravene or breach this order by committing further offences, you can be charged and sentenced to a term of imprisonment for the breach, and you can also be resentenced for the offences that are before me, namely robbery and perjury.

52I shall hear from counsel as to whether there are any suggested alterations or additions to those orders, and I will then explain to you again what these orders are, and how there must be compliance with them.

53There are no days served by way of presentence detention in relation to these offences. I would add that pursuant to s.6AAA of the Sentencing Act 1991, the sentence which you would have received but for your plea of guilty would have been one of 12 months' imprisonment, with a non-parole period of six months. As I understand it, there is no application in respect of the taking of a forensic sample pursuant to s.464ZF of the Crimes Act 1958.

54MS CORKA:  No Your Honour.

55HIS HONOUR:  Anything that counsel wish to say before I go through it again to ‑ ‑ ‑

56MR CAMERON:  No Your Honour, that is very clear, thank you.

57HIS HONOUR:  Good.  I will explain it to you again, and I will also give counsel the opportunity to explain it to you in my absence, because your situation is a little more complicated than is the usual one. 

58So what I will repeat to you is that you are convicted and sentenced to a community correction order for a period of 18 months.  And I will, as I am obliged to do, explain that order.  I have already explained it once, but I will explain it again, because your situation is a little more complicated.  And I want you to understand what it means, and what may happen if you breach the order in any way.

59There are a number of core conditions, basic conditions, that apply to a community correction order.

60You must not commit - whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment, and if you do, you will be in breach of the order;

61You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the order, that is, 18 months;

62You must report to the Community Corrections Centre, which I think in your case will be at Dandenong - you will be given the address, and you must report within two clear days after your release from custody in July of this year.  If you do not, you will be in breach of the order;

63You must not leave Victoria, except with the permission of the Secretary to the Department of Justice, or his or her nominee.  You must comply with any direction given by the Secretary, that is necessary for the Secretary to give, to ensure that you comply with the order.

64These are core, or basic, conditions, and they apply to all community corrections orders.

65There are a number of additional conditions that apply to you:

66You must perform 100 hours of unpaid community work over a period of 18 months, as directed by the regional manager;

67You must be under the supervision of a Community Corrections officer for a period of 18 months, and these periods start when you are released from gaol in July;

68You are required to be supervised, monitored and managed as directed by the Secretary or his or her nominee;

69You must undergo assessment and treatment, including testing, for drug abuse or dependency, as directed by the regional manager, and;

70You must undergo programs or courses aimed at addressing factors relating to your offending as directed by the regional manager.

71I can only impose a community correction order if you agree to such an order being imposed, and you have previously agreed.  But I will leave the Bench briefly in a moment and allow counsel to talk to you again about all of this.  It might be something of a blur to you, I appreciate that.

72If you contravene or breach this order by committing further offences, you can be charged and sentenced to a term of imprisonment for the breach, and you can also be resentenced for the offences that are before me.

73In other words, I would resentence you on the charges currently before me, and you could in that circumstance, be sentenced to a further term of imprisonment.

74I have to advise you that if you fail to comply with any direction of the Secretary to the Department of Justice - that is, a Community Corrections officer, with a part of this order, you can also be fined. 

75I will repeat and point out again that the community corrections order is concurrent with that imposed by the Moorabbin Magistrates' Court on
14 February 2017, so the situation is, as I have said, more complicated.

76That order from the Moorabbin Magistrates' Court will be effective for 12 months from the date of your release from imprisonment on 14 July next.  This order that I am imposing, and with its conditions, will continue for a further six months after those 12 months.  So the two of them will be operating together for 12 months, and then this one will operate for another six months after your release. 

77As I said, this all may seem a bit of a blur.  I will allow your barrister to explain all of this to you briefly in my absence, and there is also a document to be signed if you, again, agree to the order being made.  But I will leave the Bench briefly to give you that opportunity.

78MR CAMERON:  As Your Honour pleases.

79HIS HONOUR:  And I am correct, I think, in saying, given the circumstances, there is no request for a forensic sample, was there Ms - counsel?

80MS CORKA:  No Your Honour.

81HIS HONOUR:  No.  Thank you, I will adjourn temporarily.  I will be just outside, so ‑ ‑ ‑

82MR CAMERON:  Only a couple of minutes, Your Honour.

83HIS HONOUR:  Couple of minutes, yes, thank you.

84(Short adjournment.)

85HIS HONOUR:  It was all clear?

86MR CAMERON:  All clear Your Honour, the order has been signed, and subject to Your Honour's signature ‑ ‑ ‑

87HIS HONOUR:  Yes, well I suppose circumstances - I will sign the order.  Thank you.  Just before Mr Magok is removed, I do not want to see you back here, do you understand?

88OFFENDER:  Yes.

89HIS HONOUR:  Yes.  Very well, remove the prisoner.

90OFFENDER:  Thank you, Your Honour.

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