Director of Public Prosecutions v Majok

[2024] ACTSC 342

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Majok

Citation: 

[2024] ACTSC 342

Hearing Date: 

2 October 2024

Decision Date: 

30 October 2024

Before:

Burns AJ

Decision: 

See [44]

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – joint commission – aggravated burglary – aggravated robbery –theft – damaging property – some understanding of the negative impacts of offending – vulnerable state at time of the offending – intoxication by alcohol and drugs at the time of the offences does not reduce moral culpability

Parties: 

Director of Public Prosecutions ( Crown)

Abraham Herjok Majok ( Offender)

Representation: 

Counsel

E Wren ( DPP)

S Robinson ( Offender)

Solicitors

ACT Director of Public Prosecutions

Fortify Legal ( Offender)

File Numbers:

SCC 254 of 2023; SCC 215, 216 of 2024

Burns AJ:      

1․Abraham Majok, you have entered pleas of guilty to the following charges: 

(a)an offence of aggravated burglary committed on 8 April 2023,

(b)an offence of aggravated robbery committed on 8 April 2023,

(c)an offence of aggravated burglary committed on 14 November 2022, and

(d)an offence of theft committed on 14 November 2022.

2․Each offence of aggravated burglary carries a maximum penalty of 20 years’ imprisonment, a fine of $320,000, or both. The offence of aggravated robbery carries a maximum penalty of 25 years’ imprisonment, a $400,000 fine, or both. The offensive of theft carries a maximum penalty of 10 years’ imprisonment, a $160,000 fine, or both. In addition, one charge of damaging property has been transferred to this court from the Magistrates Court for sentencing. The charge of damaging property carries a maximum penalty of two years’ imprisonment, a $8,000 fine, on both.

3․On Saturday 8 April 2023 at about 4:24 am, you forced entry into the secured glass sliding doors of the Westfield Centre in Belconnen. Inside the centre your co-offender, Braiden Alfred (a pseudonym) (Alfred), handed you a mallet. The two of you travelled up an escalator to level three and proceeded directly towards the premises of CeX Pty Ltd, trading as Complete Entertainment Exchange.

4․You and your co-offender attempted to gain entry to the store via the security screen door before then smashing a glass window using your feet and tools. Alfred used a hammer and you used a mallet. After successfully smashing the window, Alfred climbed through to the store. You remained outside keeping guard. You passed a Louis Vuitton bag through the smashed window into the store and Alfred proceeded to fill the bag with various phones, tablet devices, cameras, and other products.

5․Outside the store a security guide attended the scene. You walked towards the guard, raising and aiming a firearm at him. Alfred climbed back out through the broken window and the two of you ran from the building after police were called by the security guard. Shortly thereafter, you were arrested while still in possession of the firearm. The firearm was an air pistol capable of discharging a projectile, but it is not alleged that it was loaded. The Louis Vuitton bag containing the stolen property was located nearby. Alfred was arrested later that morning at an address in Amaroo.

6․The value of the property stolen in the course of this incident was $18,667. The circumstances of aggravation pleaded with regard to the charge of aggravated burglary are that you were in company with your co-offender and that you had with you an offensive weapon, namely a firearm.

7․In assessing the objective seriousness of the offence of aggravated burglary, I take into account:

(a)that while the means used to commit the offence were not sophisticated, the offence was clearly premeditated and planned

(b)damage was occasioned to the premises to enable you to gain entry

(c)the offence was committed at commercial premises in the early hours of the morning, meaning that the premises were vulnerable and

(d)the offending was of short duration.

I would assess this offence as in the mid-range of such offences.

8․The circumstances of aggravation pleaded with regard to the charge of aggravated robbery are that you were in company with your co-offender and that you had with you an offensive weapon, namely a firearm. In assessing the objective seriousness of the offence of aggravated robbery I take into account:

(a)that while the offence was not sophisticated, it was clearly premeditated and planned

(b)the value of the property stolen was considerable

(c)the offence was committed at commercial premises in the early hours of the morning, and

(d)the offence was of short duration.

9․While the firearm utilised in this offense was not loaded, the victim, the security guard, was not aware of that fact. Clearly you intended that the victim should believe that the firearm was loaded and capable of lethal action. I would assess this offence also as in the mid-range of such offences.

10․I will now turn to the offending on 14 November 2022. At about 1:41am that day, you and three unknown males attended the Gungahlin Marketplace. You and your co‑offenders forcefully lifted the parking garage security doors and squeezed your bodies underneath, gaining access to the underground parking garage of the centre. One of your co‑offenders was carrying a black coloured backpack.

11․Once inside the garage you and your co-offenders approached the glass electronic doors situated at the bottom of the travelator which were locked and secured. You used a hammer to smash the glass door allowing the group of you to access the centre. The smashing of the glass door is a conduct relevant to the charge of damaging property. You and your co-offenders entered the centre and ascended the travelator to the ground level of the Marketplace.

12․One of your co‑offenders was carrying a backpack and another was carrying an angle grinder. You were carrying the hammer, which you used to smash the glass doors. The group of you walked to the front of the Gungahlin CeX store. The lock on the security door was opened using the angle grinder and pushing the security door inwards granted you access to the store. You and your co-offenders entered the store and took various electronic items and placed them into the backpack.

13․The group of you remained inside the store for less than two minutes before you left. As you were leaving the store, one person carried a backpack containing the stolen electronics and another carried a box, PlayStation 5. The group of you ran towards the exit doors and pressed the exit button, causing electronic doors to open, allowing you to exit.

14․At 2:53am the same day you and your co-offenders again attended the Gungahlin Marketplace and gained entry to the underground car parking facility using the same method you used earlier that morning. The group of you enter the Marketplace via the previously broken glass doors and ascended the travelator to the ground floor of the centre. Two of the group were pushing a shopping trolley.

15․The group of you walking directly to the Gungahlin CeX store and entered through the open security door. About one minute later, the group of you exited the store pushing a trolley containing a number of boxed PlayStation 5s. The group of you ran directly to the same exit that you had previously used, pressed the exit button, and then exited the Marketplace.

16․A total of 96 items valued at $43,972 was stolen as a result of this burglary. You were identified as having participated in this offence by fingerprint evidence in May 2023. You were given an opportunity to participate in a record of interview which you declined. The circumstances of aggravation pleaded in the charge of aggravated burglary on 14 November 2022 is that you were in company with your co-offenders.

17․In assessing the objective seriousness of the offence of aggravated burglary, in addition to the pleaded circumstance of aggravation, I take into account:

(a)while the offending was not sophisticated, it was clearly premeditated and planned

(b)the offending continued over a period of just over one hour and involved two separate entries to the premises, albeit the period of time you spent in the premises on each occasion was relatively short, and

(c)the premises were commercial premises and the offence took place in the early hours of the morning, at which time the premises were vulnerable.

I would assess the objective seriousness of this offence as in the lower part of the mid-range of such offences.

18․In assessing the objective seriousness of the offence of theft committed on 14 November 2022, I take into account:

(a)the offence was committed in company

(b)the value of the property stolen was considerable, and

(c)the offending was clearly premeditated and planned.

I would assess this offence as falling into the mid-range of such offences.

19․With regard to the summary offense of damaging property, I consider that offence to fall in the low range of such offences.

20․You did not give evidence at your sentence hearing but I have the benefit of the pre-sentence report (PSR) dated 19 September 2024 and a report from a psychologist dated 26 September 2024. I also have a number of testimonials from people who know you and an email from yourself directed to the court.

21․You are a 20-year-old man of Kenyan heritage and the oldest of eight siblings. Your family initially settled in Melbourne, where you spent most of your childhood. Your family, excluding your father, moved to Canberra in 2020, in part because of domestic violence perpetrated by your father. You reported no recent contact with your father, but you remained in regular contact with your mother, mostly via telephone and Zoom visits. Most of your extended family remain in Melbourne.

22․You are currently single and have no children. You live with your mother, siblings, and grandmother in an ACT housing property prior to being remanded in custody. You can return to those premises after release from custody. You were in Year 10 when the COVID pandemic struck and you were required to attend school online, which you disliked. You managed to complete Year 10 although your attendance was poor. You enrolled in school after moving to Canberra but you did not complete Year 12.

23․You reported employment in a fast food restaurant, at a fruit shop and as a labourer. You were not working prior to being remanded in custody. You expressed an intention to seek employment after release. In custody, you were employed in the kitchen, although you were dismissed for poor attendance. You recently resumed employment collecting and emptying bins.

24․You told the author of the PSR that you commenced alcohol use at the age of 15. Your use increased when you turned 18. Initially, you had only consumed alcohol at social events, but it increased until you were drinking most days. You began consuming large amounts of alcohol with the intention of becoming intoxicated. You reported regular cannabis use from the age of 16. Prior to being remanded in custody, you were using that substance every second day.

25․You reported cocaine use, which was initially social but increased until you were using the substance more frequently at the time of offending. You have also used ‘MDMA’ and prescription benzodiazepines. You completed alcohol and drug programs as part of the younger offender pilot, and you attended five SMaRT Recovery sessions between January and April 2024. You have applied for residential rehabilitation programs in the community but this has proved problematic.

26․With regard to the present offences, you told the author of the report you had consumed alcohol, cocaine, cannabis, and possibly other illicit substances prior to offending. You claim to have no memory of offending on either occasion due to your level of intoxication. You claim that the offences were not premeditated and attributed your behaviour to poor decision making under the influence of drugs and alcohol. You expressed some understanding of the negative impacts of your offending on your victims.

27․I will now turn to the psychologist’s report. You told the psychologist that you witnessed domestic violence between your parents as a young child, particularly when your father was consuming alcohol. This was confirmed by contemporary documentation. You reported no other significant trauma in your life, although you were involved in a motor vehicle accident in Melbourne in which you sustained a head injury when you were 13 years old. You also reported that in 2021 you fell over and hit your head when you were drunk. No further details of these head traumas appear in the report of the psychologist.

28․In addition, to taking a personal history, the psychologist conducted a mental state examination. The psychologist hypothesised that you were significantly affected by the domestic violence that occurred during your childhood. The psychologist stated that your established response patterns and coping mechanisms more than likely lead you to have disturbed thoughts and behaviours during your adolescence and as a result you became involved with anti-social peers.

29․The psychologist opined that you likely developed a post-traumatic stress disorder (PTSD) during your adolescent years after exposure to domestic violence. This more than likely resulted in you using alcohol and illicit substances which was detrimental to your general health and mental health and likely caused anxiety and mood problems. It was stated that you are currently experiencing an adjustment disorder after the effects of the PTSD.

30․At the present time, the psychologist was of the opinion you meet the diagnostic criteria of the following disorders:

(a)adjustment disorder, moderate with mixed disturbance of emotions and conduct

(b)alcohol use disorder, severe, in full remission

(c)cannabis use disorder, severe, in full remission, and

(d)stimulant use disorder, moderate in full remission.

31․The psychologist stated at the time of the offending you met the diagnostic criteria for the following disorders:

(a)alcohol intoxication

(b)stimulant intoxication

(c)substance induced depressive disorder with use disorder, and

(d)other specified destructive impulse control and conduct disorder.

The psychologist expressed the opinion that you were experiencing a disruptive impulse control and conduct disorder at the time of the offences, while under the influence of alcohol and cocaine. You were also likely experiencing a mood condition induced by heavy cannabis use.

32․The psychologist suggested that due to PTSD, you were in a significantly vulnerable state at the time of the offending. You would not have been able to make rational decisions or judgments or be able to self-regulate at the time, given your level of intoxication and your lack of self-care. The psychologist expressed the opinion that you will require treatment to address post-traumatic issues and your current adjustment disorder. It was felt that the impact of further imprisonment would likely worsen your current mental health condition. Your prospects for the future were considered to be good if you remain alcohol and illicit substance free and undertake the recommended treatment plan when released from custody.

33․The fact that you were intoxicated by alcohol and drugs at the time of these offences does not reduce your moral culpability. I have no doubt that you were aware of what you were doing and that what you were doing was wrong. Some slight reduction in your moral culpability is justified because of the disorders identified by the psychologist, but the evidence does not support a significant reduction in your culpability.

34․I accept that your exposure to family violence at an early age and your subsequent commencement of both alcohol and drug abuse at an early age justify a reduction in your moral culpability. I accept that you have made good use of the period that you have spent in pre-sentence custody, undertaking and completing multiple programs aimed at reducing your risk of reoffending. This augurs well for your prospects of rehabilitation.

35․I accept that you have expressed remorse for your offending, including in a letter which you wrote to the court and which was tendered at the sentence hearing. At the time that you committed the present offences, you had no previous convictions. You have subsequently been convicted of a limited number of offences in the Magistrates Court and these offences all occurred after the present offences.

36․You are entitled to a degree of leniency in sentencing for the present offences, because in effect they were first offences. I would assess your prospects for rehabilitation as reasonable to good. Your pleas of guilty to the indictable charges were not entered at the earliest opportunity. They came after a criminal case conference in this court. I reduced the otherwise appropriate sentences by approximately 15 percent because of your pleas of guilty.

37․While the evidence against you relating to the offending on the 8 April 2023 was particularly strong, in my opinion it was not so overwhelming that I should deny you any reduction in sentence for your pleas of guilty. I take into account the contents of the testimonials that were tended on your behalf at the sentence hearing. I have taken those documents into account in assessing your prospects for rehabilitation.

38․Although you were not a juvenile at the time you committed these offences, you were still a very young man. Ordinary sentencing principles dictate that  considerable weight should be given to promoting your rehabilitation because of your age. I would add that your prior lack of criminal history also suggests that rehabilitation is an important sentencing consideration. That does not mean that other sentencing considerations such as punishment and deterrence are to be ignored, but in dealing with such a young offender, rehabilitation may be given greater prominence.

39․As at 2 October 2024, you had spent 484 days in pre-sentence custody. Any sentences of imprisonment which I impose will therefore be backdated such that the ultimate sentence commenced from 6 June 2023.

40․Viewed in isolation, the offences that occurred on the 14 November 2022 in my opinion did not justify the imposition of terms of imprisonment. A term of imprisonment should be a sentence of last resort and that is so whether the term of imprisonment is to be served by way of full time imprisonment or is to be wholly or partially suspended.

41․With regard to the offences that occurred on 8 April 2023, I sentenced your co-offender Alfred as follows: 

[F]or the offence of aggravated burglary, two years and three months’ imprisonment, for the offence of aggravated robbery, two years and six months’ imprisonment.

42․These offences were significantly accumulated, such that a total sentence of two years and six months’ imprisonment was imposed for the offences. The degree of accumulation in Alfred’s case was partly because the requirements of totality arising from the number of charges upon which he was sentenced, something which does not arise in your case. I allowed a similar discount on sentence for your co-offenders’ pleas of  guilty as I allow for yours.

43․Your co-offender had a significantly greater criminal history than you do and his prospects for rehabilitation were not favourable. He was also sentenced for more offences than you. On the other hand, he was slightly younger than you, had been subject to more profound abuse and neglect in his formative years than you. In common with you, he also had diagnosed mental health disorders. In terms of parity, I also note that you were the person who brandished the firearm the subject to a charge of aggravated robbery.

Orders

44․For the above reasons, I make the following orders:

(1)On the charge of aggravated robbery on 8 April 2023 (CAN 6782/2023) you are convicted and sentenced to 2 years 3 months imprisonment (reduced from 2 years 8 months) commencing 6 June 2023 and expiring 5 September 2025.

(2)On the charge of aggravated burglary on 8 April 2023 (CAN 6783/2023) you are convicted and you are sentenced to 1 year 8 months imprisonment (reduced from 2 years because of your plea of guilty) commencing 6 March 2025 and expiring 5 November 2026.

(3)The total term of imprisonment which you are liable to serve is 3 years 5 months commencing 6 June 2023 and expiring 5 November 2026. I order that the period commencing 6 June 2023 and expiring 29 October 2024 be served by way of full-time imprisonment. The balance will be suspended and there will be a good behaviour order for a period of 2 years and 1 month commencing today, 30 October 2024 and expiring on 29 November 2026, on condition that you accept the supervision of ACT Corrective Services and obey all reasonable directions of officers of that service for that period of 2 years and 1 month or such lesser period as is deemed appropriate by your supervising officer.

(4)On the charge of aggravated burglary committed on 14 November 2022  (CAN 130/2024) you are convicted and there will be a good behaviour order for a period of 2 years from 30 October 2024 ending on 29 October 2026, on condition that you accept the supervision of ACT Corrective Services and obey all reasonable directions of officers of that service for that period of 2 years or such lesser period as is deemed appropriate by your supervising officer.

(5)On the charge of theft committed on 14 November 2022 (CAN 132/2024) you are convicted and there will be a good behaviour order for a period of 18 months from 30 October 2024 ending on 29 April 2026. That order will not be subject to any conditions other than the core conditions.

(6)On the charge of damaging property on 14 November 2022 (CAN 7041/2024) you are convicted and there will be a good behaviour order for a period of 12 months from 30 October 2024, ending on 29 October 2025. That order will not be subject to any conditions other than the core conditions.

I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Burns.

Associate:

Date: