Director of Public Prosecutions v Malwal
[2024] VCC 1909
•27 November 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-23-00867
No. CR-23-01737
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DENG MALWAL |
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JUDGE: | HER HONOUR JUDGE HARPER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | TRIAL: 26-27 June 2024, 1-5, 8-12, 15-17 July 2024 | |
DATE OF SENTENCE: | 27 November 2024 | |
CASE MAY BE CITED AS: | DPP v Malwal | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1909 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Aggravated home invasion, armed robbery, theft, handling, intentionally causing injury
Legislation Cited: Sentencing Act 1991
Cases Cited:Bugmy v The Queen [2013] 249 CLR 571, Makieng v The Queen [2022] VSCA 52, DPP v Wol [2019] VSCA 268, Xiang v the King [2024] VSCA 165, Mammoliti v R [2020] VSCA
Sentence: TES 7 years 1 month imprisonment, NPP 4 years 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. O’Toole | Ms A. Hogan, Solicitor for Public Prosecutions |
| For the Accused | Ms J. Clark | Greg Thomas Barristers & Solicitors |
HER HONOUR:
1Deng Malwal, you were found guilty by a jury on 17 July 2024 of theft, handling stolen goods, aggravated home invasion and 2 charges of intentionally causing injury on matter CR-23-00867 ('the trial offending').
2On 22 July 2024, you pleaded guilty to 1 charge of aggravated home invasion and 1 rolled-up charge of armed robbery on matter CR-23-01737 ('the plea offending').
3The maximum penalty for theft is 10 years imprisonment and for handling stolen goods it is 15 years. Aggravated home invasion has a maximum penalty of 25 years imprisonment, for intentionally causing injury the maximum penalty is 10 years imprisonment and for armed robbery it is 25 years imprisonment.
4I note that aggravated home invasion is a Category 1 offence pursuant to the Sentencing Act 1991 meaning I must impose a term of imprisonment. It also has a mandatory minimum non-parole period of 3 years unless special reasons exist.
5Armed robbery, where the offence was committed by an offender in company, is a Category 2 offence, meaning I must impose a term of imprisonment not in combination with a Community Corrections Order.
Circumstances of offending
The trial offending
6You, together with Tom Peters,[1] aged 16, Leo Zhang,[2] aged 16 and James Lynch,[3] aged 15, were members of the OGK or Original Gangsta Killers street gang. You all used aliases to communicate with one another prior to and after the offending.
[1] A pseudonym.
[2] A pseudonym.
[3] A pseudonym.
7Your gang rivals were the 9’ners who included Macher Jongkuch.
8On 13 November 2022 between 1.30am and 3.00am, an aggravated burglary was committed in Barrow Street, Coburg, during which the offenders stole car keys belonging to a silver coloured 2013 Volvo wagon, registration ATG249.
9At about 12am on 17 November 2022, two offenders attended McIlwraith Street, Princess Hill, and stole two sets of registration plates belonging to a silver Volvo, 1VB9QW.
10On 29 November 2022 at approximately 12am, a group of offenders attended at Peters’ former address and committed a home invasion. No one was present at the time but significant damage was caused to the property. During this incident, one of the offenders took a 14 second video which was circulated on social media. The incident was the motivation for the offending the subject of the trial indictment.
11Police recovered a number of Snapchat messages sent by you, your co-offenders and several others on 29 November 2022. At 12.27am, you told Peters you were about to 'back door the 9rs.' At 6.42am Peters told Lynch his house had been run through again and said 'Let’s go [to] Macher’s house tonight.'
12At 9.18am a group chat member posted a screenshot of a Google Maps image and a Google street view image of a house in Emperor Parade, Tarneit, being Macher Jongkuch’s home address.
13Further messages were sent amongst group members and others between 4.19pm on 29 November 2022 and 12.14am on 30 November 2022 discussing various aspects of the offending to come.
14At 11.20pm you were asked if 'you got a hottie for sale?' being a 'hot' or stolen car. You replied that you had a Volvo but needed it for 'sliding’ tonight,' meaning assaulting a rival gang member.
15At 1.42am you were seen on CCTV coming out of your room at the motel in which you were residing carrying a grey bag with a red strap. You drove the Volvo bearing the stolen plates, being Charges 1 and 2, to collect Zhang, then Lynch and then Peters from their respective homes. Snapchat messages show how the pick-ups were co-ordinated between the 4 of you.
16Dr Matthew Sorrell gave evidence that GPS data showing the group’s mobile phone movements was consistent with travelling between their homes before moving to Tarneit towards Macher’s house in Emperor Parade. Your phone remained in the Tarneit area from 3.55am to 4.13am.
17At 3.55am CCTV captured the Volvo travelling towards Emperor Parade and at 4am it is alleged that you and your 3 co-accused attended at number 58.
18One of your co-accused put a bin in front of a gate and you all used it to jump over the gate into the rear yard. The rear glass sliding door was smashed and 3 of you entered the house immediately, being Zhang (Male 1), Peters (Male 2) and yourself (Male 3).
19While the case was opened on the basis that you were either male 3 or 4, I am satisfied that the jury verdict is consistent with you being male 3 given how the case was closed by the prosecution. I will return to this.
20Zhang was carrying a long knife in his right hand and a sharp weapon in his left. Peters was carrying a short knife in a black cover in his right hand and a machete in his left. You were carrying a wooden bat and a machete. You were all dressed in black with masks and hoods.
21Your intended victim, Macher Jongkuch, was not home but his mother, Mary Ayual, his father, Nelson Jongkuch, and 6 of his siblings were in the house asleep. The children ranged from 2 to 18 years of age.
22Ms Ayual woke up to the sound of smashing glass and was confronted by the 3 of you in the living room screaming 'Where’s Macher? Where’s Macher?' She was confronted by Zhang and followed by him and yourself down the hallway as she went to wake her husband. Nelson Jongkuch tried to show Zhang that Macher was not home. You hit the bedroom door with a machete as 14 year old Machok put his hands up and said 'I’m not Macher. I’m not Macher.'
23Ms Ayual followed Peters as he and Zhang hit the door to her 18 year old son Alam’s bedroom with machetes. You joined them and the door was kicked open. Zhang and Peters attacked Alam with machetes as you all yelled 'Macher is here.' Ms. Ayual said, 'That's not Macher,' before she struggled with you and your beanie fell off, revealing finger sized dreadlocks.
24Ms Ayual heard her husband say the police are coming and she left Alam’s room as you, Zhang and Peters searched the other rooms of the house looking for Macher. Zhang struck Ms Ayual to the shoulder and Peters struck her to the head with an object. Alam was then attacked again by Peters, Zhang and yourself, the group striking him with weapons, including machetes, some 10 to 15 times.
25The group tried to flee out the front door but it was locked. Ms Ayual followed the 3 of you into the kitchen and saw Lynch (male 4) damaging property in the kitchen and living rooms. Lynch was carrying a metal pole and wearing black clothing. Zhang struck Ms Ayual to the head with a knife and she fell to the floor. She saw Lynch leave through the back door first and through Alam’s bedroom window saw him pass down the side of the house heading towards the gate. Zhang ran from the now unlocked front door before you and Peters followed.
26The 4 of you got into the Volvo and drove away as a number of Triple 0 calls were made. Neighbours gave various accounts and provided CCTV to investigators.
27Mary Ayual was taken to hospital and treated for a 6cm penetrating laceration in the middle of the top of her head which required stitching, minor lacerations to the top of her head and forearms and bruising to her right shoulder and thigh.
28Alam Jongkuch was taken to hospital and found to have sustained:
(a) a penetrating stab wound of the left elbow extending down to the bone;
(b) laceration on top of his right hand;
(c) laceration to nail plate and nail bed of the left thumb;
(d) laceration to the joint of left index finger;
(e) laceration to the fourth webspace of the left hand;
(f) laceration to the little finger and left side of the hand;
(g) unstable joint of the left little finger;
(h) laceration to the top of his head; and
(i) minor lacerations to his left shin.
29He required surgery to his elbow where a titanium anchor was inserted to repair the elbow joint.
30Between 4.20am and 4.26am both your phone and Zhang’s phone were consistently travelling towards Balmoral Park and between 4.27am and 4.46am they were travelling to Melton West before remaining in this area.
31CCTV captured the Volvo stopping in Harkness before you and your 3 co-offenders exited and ran to Peters’ residence nearby. At 4.52am GPS data shows your phone was at Peters’ house.
32At 4.54am you posted a video showing yourself sitting on a bed in Peters’ house with a bloodied Gerber machete and 2 Gerber scabbards on your lap, holding a second machete. The video is captured '9rKK' which is slang for '9’ner killer.'
33At 5.13am you had a conversation with another Snapchat user in which you said 'someone got jukked,' meaning stabbed.
34At 2.01pm on 30 November 2022, you had a Snapchat conversation with Macher Jongkuch, the intended victim of the trial offending. He asked, 'why niggas jooking hajas n shit' meaning why are mothers being stabbed, to which you replied 'why you running thru houses.'
35I note there are no allegations that Macher was involved in any offending.
36At 2.41pm you were involved in another Snapchat conversation in which you said 'his brother got jukked…and his haja I’m pretty sure,' meaning 'his brother got stabbed and his mother I’m pretty sure.
37You were arrested at Peters’ house, as were Peters and Zhang, and your phones were seized together with a number of weapons and items of clothing.
38DNA analysis of a sample taken from the steering wheel of the Volvo was 100 billion times more likely if you were a contributor. Similar results came from a sample from the handle of a machete.
39As I have indicated, I am satisfied that the jury verdict reflects a finding that you entered the house in Emperor Parade as male 3. The prosecution clearly and repeatedly argued in the closing that 4 offenders entered the home and that you were male 3. Your counsel submitted at trial that the jury could not be satisfied that you entered the house at all or that there were 4 offenders. By its verdict the jury must have accepted that you entered and that you were male 3.
The plea offending
40At 1.49am on 29 November 2022, the day before the trial offending outlined above, you were captured on CCTV leaving your residence at the Comfort Motel in East Melbourne. At 2.13am you got into a blue Holden Commodore in the motel carpark. You were observed to be wearing a blue hooded jumper, black pants and runners and carrying a grey bag with a red strap.
41After travelling a short distance, you and your co-offenders in the Commodore got into a silver Volvo bearing stolen registration plates 1VB9QW. Citylink records show that the Volvo was detected travelling eastbound at Toorak Rd at 2.35am. You were travelling towards the complainant’s residence.
42At 3.17am, Dmitry Li and Jayme McCormack were in their respective bedrooms at a residence in Atkinson Street, Chadstone, Li on the first floor and McCormack on the ground floor. Both were using their computers.
43CCTV inside the front door of the complainant’s premises showed an unknown male carrying a crowbar and wearing a grey bag with a red strap enter via the rear door. A second male, Madut Deng, entered via the rear door carrying a silver crowbar. Unknown male 1 opened the front door, letting 2 further males into the house, the first being unknown male 2 who was carrying a baseball bat and the next being yourself, carrying a machete. Unknown male 3 then entered via the rear door, also carrying a machete.
44You and your 4 co-accused entered the house at Atkinson Street as trespassers, intending to steal from the complainants while knowing or being reckless as to the fact that someone would be present and while Li and McCormack were in fact present. This forms the basis of the aggravated home invasion.
45Once inside the house, unknown male 1 directed Deng and unknown male 3 upstairs while you and he entered McCormack’s bedroom. Unknown male 2 also went upstairs.
46Li, in the upstairs bedroom, saw the weapons as the males entered his bedroom and one of them said 'get down' as Deng struck him to the head with the crowbar. I note you are not being sentenced for causing injury on this occasion.
47Deng forced Li downstairs, striking him to the ribs and back as he did so. While this was happening, you and unknown male 1 entered McCormack’s bedroom, unknown male 1 placing his hand over McCormack’s mouth as you entered the room. This was captured on CCTV footage.
48You and unknown male 1 demanded cash, drugs, jewellery and guns and threatened to stab and kill McCormack, striking him several times. You pressed your knife against McCormack while speaking to him.
49For a couple of minutes, you and unknown male 1 searched McCormack’s bedroom before you left the room and Deng entered. After 2 minutes, unknown male 1 exited McCormack’s bedroom and turned the CCTV camera to face the wall.
50A watch, two pairs of shoes, a computer, a phone and approximately $2,000 in cash was stolen from McCormack’s bedroom. This is part of charge 2 of the plea offending.
51Having located a souvenir shotgun cartridge, you and your co-accused asked for the location of the gun but there was not one in the house.
52In the kitchen, you and your co-accused continued to make demands of Li for money and a safe. His phone was taken, and the offenders demanded his PIN. After some five minutes, McCormack was forced to join Li in the kitchen. Further demands were made and a mobile phone, desktop computer tower, post office box key and a CCTV camera belonging to Li were stolen. This also goes to charge 2 of the plea offending which is put on a complicity basis.
53Between five and ten minutes later, one of the males called out, at which point you and all of your co-accused ran out of the door and left the property. Li used an old phone to call police.
54Citylink records reveal that at 3.47am the Volvo was travelling westbound at Toorak Road. At 4am, you, Deng and the 3 unknown males returned to your address.
55On 30 November 2022 you were arrested at 2.50pm in Harkness. Police searched the property and located a grey Gucci bag with a red strap, the shoes you wore during the plea offending and your mobile phone.
56The Volvo was located in Harkness a short distance away from where you were arrested. Some of Li and McCormack’s possessions were located in the boot.
57Examination of your mobile phone showed a conversation between you and a Snapchat user called 'kass1no' at 11.31pm on 29 November 2022 which stated, 'I did a homie last night,' followed by a photograph of you holding cash alleged to have been stolen during the home invasion.
Gravity of offending
58As to the trial indictment, the gravity of the offending is particularly high. I consider that the jury must have found you to be male 3 on the way the prosecution case was closed.
59The offending was planned and you were a key figure in that organisation. It was retaliatory in nature, it was committed in company, in the middle of the night and disguises were worn. You collected your co-accused in a stolen vehicle, you were armed with a machete and you knew your co-accused were armed. Entry was violently gained by smashing a glass door and you obviously intended to assault someone in the house, knowing that people would be present. The offending was protracted, you hunted for your intended victim and when unable to locate him, caused injury and damage to other people and property.
60You are a principal in the aggravated burglary and in the injury to Alam Jongkuch, having used your machete to assault him. I accept you were complicit in the injury to Mary Ayual who was simply trying to protect her children but these were dangerous weapons, always likely to cause injury to those in the house.
61In relation to the plea offending, this was another example of aggravated home invasion where the offending was planned, committed in company, in the middle of the night and disguises were worn.
62You entered quietly, surprising your victims. The CCTV of you all creeping into the house is chilling. You threatened your victims and moved them to the kitchen of the property where you menaced them with weapons before stealing from them.
63Concerningly, the plea offending preceded the trial offending by only 24 hours. Both offences are most serious, however, the second incident in time, the trial offending, represents a significant escalation as it involves a greater degree of violence, property damage and the infliction of injuries to those present.
Victim Impact
64The impact of the trial offending on Mary Ayual, her husband and children has been significant.
65Mary Ayual’s Victim Impact Statement detailed the physical and psychological consequences of the attack on her family. She is fearful, feels nowhere is safe, her sleep has been interrupted and she is anxious when home alone. Ms Ayual suffered deep cuts on her head, hands and arm and has scarring and ongoing pain to her arm and shoulder. She works as a nurse and finds the sight of blood and physical injuries confronting after the offending.
66Ms Ayual worries for her family and has moved some of her children to boarding school in Africa where they cannot be the subject of any retribution from you or other gang members. She and her husband have spent time in Africa settling the children and when in Melbourne, Ms Ayual is isolated and anxious.
67The Victim Impact Statement of Ms Ayual’s husband Nelson Jongkuch describes the anxiety and fear he has felt since the offending. He has moved interstate with some of his children and lost his job and also details the stress and cost of moving his other children to Africa. The financial impact of relocating the family on Ms Ayual and Mr Jongkuch has been significant and their relationship is strained. 'Had this crime against my family not happened we would have been living together happily', he states.
68Mr Jongkuch has attended counselling and his sleep has suffered. He is worried for his wife and worried for those of his children who are now overseas. Despite the volatile political situation there, he no longer trusts in their safety in Australia.
69Alam Jongkuch also provided a Victim Impact Statement. He details the injuries he suffered, including nerve damage to his finger and scarring to his head, arms, hands, fingers and legs. Mr Jongkuch has been separated from his family and was forced to live in Africa with some of his siblings. He feels all his plans have been interrupted, he has quit his jobs, he has withdrawn from his university course and is no longer able to play basketball. He is clearly traumatised.
70Plainly, the effect of your offending on the innocent family members of your gang rival has been horrific and life changing. While I must of course be mindful of not giving the impact on your victims undue weight, I do take it into account.
71Dmitry Li, one of the victims of the plea offending, provided a Victim Impact Statement outlining the negative impact of the offending on his life and on his wellbeing. His sleep has been disturbed, he is distrustful of people and feels that he is on 'high alert.' This is not surprising given the nature of the offending you and your co-accused subjected him to. I also take this impact into account.
Plea of guilty
72You pleaded guilty to the plea offences on the morning of your trial. It is a late plea but one with utilitarian value. You have facilitated the administration of justice and you are entitled to a benefit for that.
73While your co-accused Madut Deng proceeded to trial, this is in no way attributable to you and you did not subject Mr Li and Mr McCormack to the ordeal of giving evidence.
74By your plea of guilty you have demonstrated an acceptance of responsibility for the offending involving Mr Li and Mr McCormack and a degree of regret if not remorse.
Personal circumstances
75You are now 20 years of age, having been born in November 2004. You were barely 18 at the time of these offences.
76You are one of eight siblings, the oldest four of whom, including yourself, were born in South Sudan. Your family fled the conflict and lived in Egypt for a time. You arrived in Australia in 2007, aged 3, and your four youngest siblings were born in Australia.
77Your family struggled to settle in Australia and your parents separated. Your father is a heavy drinker, an older sister is schizophrenic and a younger brother is autistic.
78You attended Melton South and Coburns Primary Schools and then Melton Secondary College and Staughton College in Melton where you completed Year 10. While your academic performance was satisfactory, you were involved in a number of fights with other students. You experienced significant racism throughout your education but also acknowledge issues with authority at school.
79In 2022 you were employed for a period of 6 to 7 weeks as a cattle skinner. You have no other history of employment.
80You have a history of drug use including cannabis and benzodiazepines. You have participated in drug and alcohol counselling whilst in custody and are currently prescribed buprenorphine.
81You resided with your mother and siblings until she asked you to leave the home in mid-September 2022. You were remanded in November of that year after staying in crisis accommodation in East Melbourne for a period of time.
82You have been in a relationship with your girlfriend for three years and hope ultimately to reunite with her upon your release.
83You and three of your siblings have had extensive contact with the youth and adult justice systems over the years. Their example of criminal behaviour has no doubt influenced you and made for an unstable family environment. I will return to your prior criminal history shortly.
84You have been involved in several incidents in custody which are no doubt reflective of your poor impulse control. You are currently held at Marngoneet where you have a job in horticulture. You have undertaken courses including drug and alcohol counselling, positive relationships, literacy and numeracy.
85I received a letter from Tess Jolley from Putting Families First dated 31 October 2023, another two letters from Tess Jolley, this time from Foundation House dated 2 May 2024 and 19 November 2024. I also received a letter from Elle Hanley from Parkville College dated 6 May 2024.
86You and your family have consistently engaged with Putting Families First since July 2022 and your mother has now expressed a desire to have you return to the family home. You have been engaged with a number of services over the last few years but have nevertheless found yourself involved in these offences. You were in fact residing in accommodation provided by Putting Family First at the time of your arrest.
87I note that, positively, you have engaged with Foundation House over the last year. The letters from Tess Jolley reference the difficulties your family had settling in Australia and your unsettled childhood. You have identified to her that '[you] can be quick to anger and that [you] feel disrespected easily, which at times can lead to physical aggression and acts to defend [yourself] and your friends.' Nevertheless, Ms Jolley has worked with you and your family for some time and opines that you have matured.
88In March 2024 you became a voluntary participant in a program between Parkville College and Jobs Victoria and enrolled in a Certificate II in Automotive Vocational Preparation through Kangan Institute. You have since been moved to adult custody so were unable to complete the program, however, you have an interest in cars and ultimately wish to pursue an automotive certificate course.
89I received a psychological assessment report from Ms Gina Cidoni dated September 2024. A full-scale IQ was not obtained, however you performed in the low average range for both verbal comprehension and working memory.
90Consistent with your reports to Ms Jolley, Ms Cidoni found that you struggle with feelings of anger and frustration and you pose a moderate risk of violent reoffending. She found that you meet the criteria for substance use disorder and made a provisional diagnosis of Attention Deficit Hyperactivity Disorder (ADHD).
91Ms Cidoni cites your age, background, negative peer influences, substance use, impulsivity and 'frustration tolerance' as contributing to your offending. She states: 'limited life experience and underdeveloped coping strategies made it difficult for [you] to navigate complex social situations, leading [you] to respond with aggression or illegal actions.' Be that as it may, this view does not properly explain the seriousness of and escalation in your offending.
92Beyond negative peer associations, the report does not adequately address your involvement in the OGK gang or your attraction to gang culture. You did say you felt pressured to fit in, however, I note you were an instigator of the trial offending based on the messages you sent prior and you driving your co-accused to the scene.
93Ms Cidoni finds your rehabilitative prospects to be promising in circumstances where you address substance use, peer influences and emotion regulation. While you clearly need to address these issues and you are young, your antisocial behaviour has escalated such that I consider your prospects of rehabilitation to be guarded, dependent entirely on stable accommodation, family support, prosocial associations, employment, counselling and sobriety.
Parity
94Peters, Zhang and Lynch pleaded guilty to aggravated home invasion, intentionally causing injury to Mary Ayual and intentionally causing injury to Alam Jongkuch, the trial offending in your case.
95Zhang (male 1) received a total of 3 years 10 months detention for these and other offences in the Children’s Court.
96Peters (male 2) received a total of 3 years 4 months detention for these and other offences in the Children’s Court.
97Lynch (male 4) was sentenced to 2 years detention for these and other offences in the Children’s Court.
98Given your 3 co-offenders were all younger than you, all pleaded guilty and were all dealt with in the Children’s Court. I consider parity to have little relevance with regard to the trial offending.
99Madut Deng is yet to be sentenced for his role in the plea offending.
Sentencing principles and factors
100You are a young offender and given your age, rehabilitation would usually have a primary role in the sentencing exercise. While still relevant, in your case this must be tempered by general and specific deterrence.
101As held in Makieng v The Queen [2022] VSCA 52 at [44], 'The authorities also make clear, however, that in cases involving serious violence, whilst an offender’s youthfulness and rehabilitation – both achieved and prospective – are not irrelevant in the exercise of the sentencing discretion, they are of much less significance than in cases of less serious offending. Youth and rehabilitation must be subjugated to other considerations. Indeed, they must take a 'back seat' to specific and general deterrence in cases of violent offending, particularly where – as has the applicant – an offender has previously been given opportunities to reform.'
102Home invasions are increasingly prevalent and community protection must be given due weight in the sentencing synthesis. People have the right to safety within their own homes and the community must be protected from actions such as yours. Your offending on both the trial and the plea indictments would have been utterly terrifying for your victims.
103Denunciation and just punishment are also relevant sentencing considerations, in combination with the other factors to which I have given weight.
104Despite your age, you have a number of prior findings of guilt in the Children’s Court. These include charges of theft of a motor vehicle, robbery, armed robbery, weapons offences and property damage offences. Your current offending represents a substantial escalation in violence and seriousness. This is your first custodial sentence and your first sentence in the adult jurisdiction but you have spent time on youth remand and received numerous supervised community dispositions, to no avail.
105Aggravated home invasion is a Category A serious youth offence – before imposing a period of youth detention the court must be satisfied that exceptional circumstances exist. Here there was no submission that such circumstances do exist and you will instead be sentenced to a period of adult imprisonment.
106The Sentencing Act 1991 (Vic) requires that I impose a term of imprisonment for aggravated home invasion and fix under s.11 a non-parole period of not less than three years unless a special reason exists. No such special reason has been suggested here.
107Armed robbery is also a Category 2 offence for which I must impose a term of imprisonment, not combined with a Community Corrections Order.
108Your counsel, Ms Clark, submitted that the principles in Bugmy v The Queen [2013] 249 CLR 571 are applicable in a general sense in this case. Based on the information I have relating to your specific circumstances, I find that the difficulty your family had settling in Australia and your unsettled childhood renders your moral culpability somewhat less than that of an offender whose formative years have not been so marred.
109Both counsel agreed that the only available sentence is one imposing a head sentence and a non-parole period.
110I was provided with several relevant sentencing decisions by Mr O’Toole for the prosecution, namely DPP v Wol [2019] VSCA 268, Makieng v The Queen [2022] VSCA 52 and Xiang v The King [2024] VSCA 165. I take these cases into account so far as they are relevant to the instant offending.
111I was also referred to Mammoliti v R [2020] VSCA 52 by Ms Clark as to the imposition of a mandatory minimum non-parole period. She submitted that I should not exceed the mandatory minimum non-parole period of 3 years, despite the fact of there being 2 aggravated home invasion charges. While this would be open, it does not accord with the sentence I intend to impose given the matters I have taken into consideration above.
112I apply the principle of totality when imposing sentence upon you, while also recognising the multiple victims of your offending and the numerous offences before the court.
113Mr Malwal, would you please stand.
Disposition
114On CR-23-00867, the trial offending, you are sentenced as follows:
115On Charge 1, theft, you are sentenced to 6 months imprisonment.
116On Charge 2, handling stolen goods, you are sentenced to 4 months imprisonment.
117On Charge 3, aggravated home invasion, you are sentenced to 4 years 9 months imprisonment.
118On Charge 4, causing injury intentionally to Mary Ayual, you are sentenced to 18 months imprisonment.
119On Charge 5, causing injury to Alam Jongkuch, you are sentenced to 2 years imprisonment.
120Charge 3 will be the base sentence.
121I direct that 4 months of the sentence on Charge 4 and 6 months of the sentence on Charge 5 be served cumulatively on the sentence on Charge 3 and on each other.
122For the avoidance of doubt, the sentences on Charges 1 and 2 are to be served wholly concurrently.
123On CR-23-01737, the plea offending, you are sentenced as follows:
124On Charge 1, aggravated home invasion, you are sentenced to 4 years imprisonment.
125On Charge 2, a rolled-up charge of armed robbery, you are sentenced to 2 years imprisonment.
126I direct that 1 year of the sentence on Charge 1 and 6 months of the sentence on Charge 2 on the plea indictment CR-23-01737 be served cumulatively on the sentences imposed on trial indictment CR-23-00867 and on each other.
127That makes a total effective sentence of 7 years and 1 month imprisonment.
128I direct that you serve a minimum non-parole period of 4 years 6 months imprisonment before being eligible for parole.
129I declare that pursuant to section 18 of the Sentencing Act 1991, you have served 728 days by way of pre-sentence detention, up to but not including today.
130Pursuant to section 6AAA of the Sentencing Act 1991, I am required to indicate the sentence I would have imposed had you not pleaded guilty in respect of the plea indictment. There is an obvious artificiality in doing so, but doing as best I can, I indicate that had you not pleaded guilty to the offences on Indictment CR-23-01737, the global total effective sentence I would otherwise have imposed would have been 8 years 7 months with a non-parole period of 5 years and 8 months.
131I grant the disposal order applied for by the prosecution.
132MS CLARK: I'm sorry, Your Honour, I just missed on the global total - - -
133HER HONOUR: Eight years and seven months - - -
134MS CLARK: And the non-parole period.
135HER HONOUR: Five years eight months.
136MS CLARK: Thank you, Your Honour.
137HER HONOUR: Is there anything further, Mr O'Toole.
138MR O'TOOLE: No, Your Honour.
139HER HONOUR: Ms Clark.
140MS CLARK: No, Your Honour.
141HER HONOUR: You can take Mr Malwal out, thank you. I thank both counsel for their assistance ongoing with this matter. We'll adjourn the court.
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