Director of Public Prosecutions v Mawien

[2018] VCC 565

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00170

DIRECTOR OF PUBLIC PROSECUTIONS

v

AKON MAWIEN

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	24 April 2018
CASE MAY BE CITED AS:	DPP v Mawien
MEDIUM NEUTRAL CITATION:	[2018] VCC 565

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	Mr J. McWilliams
For the Accused	Mr M. McGrath

HIS HONOUR: 

1The situation is that objectively speaking, this is a serious example of a serious crime, that is, armed robbery.  As I remarked during the plea, it would only be in an exceptional case that a court would consider anything other than the custodial sentence, either by way of youth justice centre detention or a term of adult imprisonment.  In my view, your case, Mr Mawien, is one of those exceptionally rare cases that does fall into that exceptional category.

2First, at the time of this offending, you were 18.  You had no prior convictions, you had never been in trouble.  You had involved yourself in community activity, you had completed Year 12, you had completed your schooling life in an unremarkable fashion.  The main thing that was remarkable about you was your involvement in the Sunshine Heights Cricket Club, where you were an exceptional bowler, you involved yourself in coaching others, you were teaching Dinka at the local school, you were to all respect, a law abiding responsible young man.

3In the months leading up to this offending, your life went awry on a number of fronts.  You had completed part of a TAFE course, you were unable to find employment, there were problems with Centrelink so that you had no income.  More concerningly for you personally, you had suffered stress fractures to your back, so you could not continue bowling, you had been a prospect for selection in the State cricket team, matters were made worse when you broke your arm playing basketball and could not participate in the next cricket season and you essentially became aimless and this was the first time that this had ever happened. 

4There had been, it would seem, some continuing distress over this time because you learned that you in fact had immediate family and siblings in South Sudan, something which you had not previously known, you were distressed about this, you wanted to see your family, all this is listed in my previous sentencing remarks, but you felt disloyal to the aunt who had brought you to Australia and who had looked after you since to make a request of her to contact your birth family.

5This is not a particularly disastrous set of events, but it was a big dislocation from the life you had previously been leading and it was in those circumstances in that time of aimlessness that unfortunately you came into contact with
Mr Mayoum.  He was around the same age as you, he too came from a law abiding family but had fallen out with them, had been living on the streets, had become involved with organised crime figures, had developed a serious methamphetamine or ice habit and he had become involved in serious offending.  You met up with him and a couple of weeks prior to this offending, for the first time, used ice with him, although not a great amount.   

6You then on the day of this offending by chance, you came across him.  At this stage, Mr Mayoum had been organised by Mr Taha to undertake the armed robberies at the jewellery store.  All items obtained in the appalling smash and grab raids organised by Mr Taha were to go to him.  Mr Mayoum had drug debts the tune of about $20,000.  On the day of the offending, he gave you ice in an amount that you had not previously experienced, and indeed your experience of ice use was limited to that first occasion.  You were then recruited into participating in this appalling offending. 

7In other words, you had no part in the organisation of this offending, you were brought in at the last moment and essentially, only able to be recruited because of your ingestion of very strong drug that you were unfamiliar with.  As was previously noted by you Youth Justice supervisor Gene Bell, he formed a view that had you not been using ice on this day, you would never have participated in this offending. 

8At the second armed robbery, you were not armed and appear not to have involved yourself in any of the damage that was done but you were certainly there.  You were to be paid $2000 for your role in this offending.  In describing your offending in this way, I in no way seek to trivialise the serious and violent nature of that offending and the enduring fear and loss inflicted on your victims, which continues on and their victim impact statements were referred to at length in my original sentencing remarks on 12 April last year.

9At the time you first presented to this court, you had been under the supervision of Mr Bell for a period of about seven months, that is, from August of 2016.  In that time, Mr Bell found you to be an exceptional participant.  The conditions of your bail were extremely onerous, you were on a curfew from 6 pm to 8 am in the morning, you had to report to Mr Bell, you were not allowed to leave Victoria, you were not allowed to associate with Mr Mayoum, you were to undertake programs as directed by Mr Bell and so forth.

10You had performed in relation to all these conditions for a period of seven months to a degree that Mr Bell said he had not previously encountered in a young person.  That is, you had shown a level of commitment and dedication to your rehabilitation that he found remarkable.  Additionally, you also had the ongoing support of a large number of entirely prosocial and contributing members of the community including mature men, such as Mr Matthew Shawcross and members of the Sunshine Heights Cricket Club who have known you since you were a child, who were appalled and flabbergasted at your offending, who let you know - Mr Shawcross, I recall gave evidence on the last occasion, describing his anger and disbelief that you had offended at all, much less, in this abhorrent and violent way.

11It was my view, however, that you had not sufficiently demonstrated your capacity to reform and your dedication to it and so I adjourned this matter for 12 months, during which time, you were to continue on the path that you had undertaken for that seven-month period.  It is quite clear from the materials that I have received today that you have continued on that path of reform to the highest level. 

12I have had many dealings with Mr Bell over the years in terms of young people he has supervised post their offending.  I have never heard Mr Bell describe anyone as exceptional.  I also note that when Mr Bell came to court in relation to Mr Mayoum, it was his view that he was not suitable for youth justice centre detention and it was his recommendation that Mr Mayoum be placed in adult custody.  So his recommendation for your co-accused could not have been further from his recommendation in relation to you.  Had you done anything less than you did, there is no doubt that I would have dealt with you by way of a term of custody to have been served immediately, either in adult gaol or in a youth justice centre.

13One of the most important sentencing principles that the court must have regard to centres around the rehabilitation of young people.  The older of course, those young people grow, the less relevant those sentencing principles are.  Of extreme importance, in my view, is the fact that you were 18 at this time, that you had never offended before.  This was in stark contrast to your co-accused.  You have undertaken giant strides in your rehabilitation under onerous conditions, including the glare of media spotlight, which is particularly difficult for a young person.

14For me to interrupt the exceptional steps that you have taken over a period of more than 20 months, in my view, would run counter to the long term benefit of the community.  Communities are far better served by the reform of offenders, than by their placement in an institution which would interrupt and possibly destroy that rehabilitation, and hence play directly against protection of the community.

15As I have said and I stress, this is an exceptional case.  Your offending was terribly serious.  Your effects upon your victims was terribly serious.  However, I am satisfied firstly that you are deeply remorseful for your offending and have been from the outset.  This was expressed to Mr Shawcross when he first visited you back in the cells, back in July 2016.  You have continued to express that remorse to Mr Bell, then to Ms Sophia Hearne from the Youth Support Advocacy Service, under whose guidance you undertook a drug and alcohol course. 

16You have expressed remorse to persons in your community.  In the raft of references that I received from those who support you, friends, family, member of the Sunshine Height Cricket Club, all have spoken of your openness in discussing this offending and the deep remorse that you have shown.  I am also satisfied of your remorse by the steps that you have taken which I have outlined,  that is, by uncomplainingly, as you should have, abiding by the bail conditions and then independently of that, taking up again your education and employment.

17In the time that you have been on bail, you have completed now your Certificate Three in carpentry, you have undertaken employment, you are now currently working for an employer who has written a reference in support of you, stating that from the outset, you told him all about the offending you had been engaged in.  You have been working with him since September of last year.  He regards you as an extremely valuable employee to the point that he wishes to train you up as a supervisor of future apprentices because he regards you as a good role model. 

18You have become one of two breadwinners for your family, you contribute to the rent that houses your aunt, yourself, and your five cousins, none of whom have ever been in trouble with police, all of whom are engaged in study and work. 

19A Community Corrections Order is not an opportunity to allow an offender to walk free and carefree into the community.  It allows an offender to return to the community but only after an undertaking to ensure, first, there is no further reoffending.  If there is any reoffending whilst a person is on a Community Corrections Order, they return to court and are resentenced on the original order. 

20They are expected to undertake unpaid community work, to be supervised by the Community Corrections office to undergo programs which are designed to ensure there is no future offending.  They are onerous conditions, they require continual attendances upon the Community Corrections office but more, a person on a Community Corrections Order understands that they are in the community only on a provisional basis.  They have a number of obligations and if those obligations are not met, they will be brought back to court and sent to gaol. 

21As I have stated, placement on a Community Corrections Order is by no means a get out of gaol card free.  You are provisionally back in the community only as long as you obey the conditions.  You have now been under supervision of a serious kind in the community for 20 months.  I am satisfied that the gains you have made mean that you are not a danger to the community.  As Mr Bell said, he would be dumbfounded if you reoffended, stating in evidence today, "If there was ever a person I could say I doubt would reoffend, Akon is that person."

22You have been fortunate to have grown up in a law abiding family with your aunt and your cousins.  You have been fortunate to be surrounded with the sort of community supports that you have enjoyed through Mr Shawcross, persons in the Sunshine community and members of the Sunshine Heights Cricket Clubs and can I say that I have been enormously impressed by the level of that support every time you have returned to court.  Every time you have come to court, you have been accompanied (and this is probably the least number of people who have ever come to court with you) by people young and old, so I am satisfied that of the protective factors I must have regard to, this very much includes this strong and law abiding community that you live in. 

23This is a rare opportunity that I am giving you, Mr Mawien, but I am satisfied that you are capable of undertaking this.  In sentencing you, I take into account your youth; I take into account your complete lack of prior or subsequent convictions; I take into account the fact that you were recruited into this exercise by criminals, indeed the way Mr Bell put it, was this: he described your offending as resulting from "a combination of factors including a childhood friendship" - that was Mr Mayoum, "substance use, long standing psychological distress, youthful naivety and the introduction to an organised criminal network, all played a role in his decision making."

24Might I say that your involvement in the organised criminal network lasted a day.  I regard you as I have said, I know I am repeating myself, as having excellent prospects of rehabilitation.  I regard the community's wellbeing as best served by your continuing rehabilitation.  The authorities have always said that it is important where it can be achieved, consistent with the aims of justice to keep otherwise law abiding young people out of custodial settings, where they can be contaminated by the influence of more hardened offenders, this being an important consideration both for the offender but more particularly for the protection of the community.

25Understandably, the prosecution have submitted that the objective gravity of this offending meant that I should deal with you by way of a term of imprisonment or detention in a youth justice centre. For the reasons that I have outlined, I do not agree with that submission, but I certainly understand why it was made.  You have been assessed as suitable for placement on a Community Corrections Order and I propose placing you upon one.  However I cannot do this without your consent and so I need to outline to you the conditions which apply attached to that order.  Could you stand up please?

26The core conditions of the order are that you must report to the Community Corrections office within two working days of the making of this order, that is by Friday of this week because tomorrow is a public holiday.  Whilst on the order, you must not commit any offence punishable by imprisonment.  What that means is, you do not have to commit an offence for which you are actually gaoled.  If you commit an offence for which you could theoretically be gaoled, such as knocking off a box of matches from Woolworths, you will be breached and you will be brought back before this court and you will be resentenced. 

27You must report any change of address or employment to the Community Corrections office within 48 hours of the making of this change.  You may not leave Victoria without the permission of the Community Corrections office.  You must report to and receive visits from the Community Corrections office, you must not attend the Community Corrections office whilst under the influence of drugs or alcohol.  You must obey all lawful conditions of the Community Corrections office.

28The order will last for a period of three and a half years.  What that means is that all up eventually you will have been under supervision in the community for a period in excess of five years.  All right?  I am going to order that you undertake 300 hours of unpaid community work, I know that is going to be difficult for you, my understanding is that you work five to six days a week, that you have little free time.  The little free time that you have is spent at the cricket club coaching younger people, even though I understand you are suffering from a leg injury, but you are going to have to sort that out with Community Corrections.

29You are to undergo supervision, you are to attend programs designed to reduce reoffending.  I am not going to order that you attend a program for drug and alcohol rehabilitation, you have already successfully undertaken that, I would regard that as a waste of community resources.  You are to attend for mental health difficulties.  I am ordering that condition because of difficulties in my view that you have undergone family wise, since your removal from your birth family although I note the evidence that the visit to your family in South Sudan has been an important step, it seems to me that the access you have had to Mr Bell and his expertise and the work he has done with you is not work that should necessarily cease, and it may be that some arrangement can be made between Corrections and Mr Bell as to the appropriate person that you see.

30I want you to understand, Mr Mawien, I have given you an opportunity and I think you have taken every advantage of that opportunity.  You have got another three and a half years to go before you are out of the woods as far as supervision is concerned.  Now, that is more than five years that you will be under the eye of someone, it is a long time, but that is meant to reflect the extreme seriousness of your offending, do you understand?

31OFFENDER:  Yes, Your Honour.

32HIS HONOUR:  All right?  Please don't think that I'm not recognising the great strides that you have made, but I can never lose sight of the terrible offending that you were involved in, and what that has meant for the persons who own those shops.  They may never recover from the trauma that was inflicted upon them and I must always bear in mind the damage that you did, do you understand?  Thank you.  All right, is there anything else that I need to attend to?

33MR McGRATH:  Your Honour, there's just one ‑ ‑ ‑ 

34HER HONOUR:  You can have a seat first.  Thank you, have a seat.

35MR McGRATH:  Sorry, Your Honour, there's just one thing that I ought correct Your Honour on. 

36HER HONOUR:  Yes.

37MR McGRATH:  Your Honour may recall that prior to the deferral in sentence, I indicated to Your Honour that there was a driving matter ‑ ‑ ‑ 

38HER HONOUR:  Yes.

39MR McGRATH:  ‑ ‑ ‑ of which hasn't occurred - there's been no offending since the deferral of the sentence, Your Honour.

40HER HONOUR:  Yes.

41MR McGRATH:  And Mr Mawien received a $200 fine for that. 

42HER HONOUR:  What was that for?

43MR McGRATH:  I think it was either an unlicensed or a drive suspended - I didn't appear for Mr Mawien, I made Your Honour aware of it at the last occasion.

44HER HONOUR:  I think that occurred ‑ ‑ ‑ 

45MR McGRATH:  It may have - I'm not entirely sure of the date, Your Honour, but I indicated to Your Honour that ‑ ‑ ‑ 

46HER HONOUR:  That's right, you did too.

47MR McGRATH:  ‑ ‑ ‑ on the last occasion, it was pending ‑ ‑ ‑

48HER HONOUR:  Yes.

49MR McGRATH:  ‑ ‑ ‑ and it's only because Your Honour said lack of prior or subsequent conviction, I just ‑ ‑ ‑ 

50HER HONOUR:  All right, I'll say that there is one other matter, a driving matter for which you received a $200 fine ‑ ‑ ‑ 

51MR McGRATH:  Yes.

52HER HONOUR:  ‑ ‑ ‑ which I do not regard as relevant to the sentencing exercise before me ‑ ‑ ‑ 

53MR McGRATH:  Yes.

54HER HONOUR:  ‑ ‑ ‑ but it's still the case that at the time of the offending, he had never been in any trouble.

55MR McGRATH:  That's correct, Your Honour.  The other thing, Your Honour, is was it Your Honour's intention - I note Your Honour has order the 300 hours of unpaid community work.

56HER HONOUR:  Yes.

57MR McGRATH:  Was there any intention of Your Honour that any programs times be taken ‑ ‑ ‑ 

58HER HONOUR:  I'm not ‑ ‑ ‑ 

59MR McGRATH:  It may be Your Honour may have the intention of doing ‑ ‑ ‑ 

60HER HONOUR:  Look, I know it's really onerous, I know that
Mr Mayoum is very burdened in terms of his employment obligations ‑ ‑ ‑

61MR McGRATH:  Mr Mawien, yes, Your Honour, yes.

62HER HONOUR:  Mr Mawien.

63MR McGRATH:  Yes.

64HER HONOUR:  Yes, but the offending is so serious ‑ ‑ ‑

65MR McGRATH:  Yes, yes, of course.

66HER HONOUR:  ‑ ‑ ‑ that in my view, the punitive aspect of - and it's part of the punitive aspect of this, should be played out in full and he should do those 300 hours.

67MR McGRATH:  Yes, Your Honour.  Yes, Your Honour.

68HER HONOUR:  Finally, it was submitted that parity was relevant in the sentencing exercise before me.  I have already described your role in the offending which I regard as being entirely different to that of the co-accused, Maker Mayoum, and Mr Taha.  Mr Taha was the organiser, he was the man pulling the strings, he was the one who was to get all the benefit of the proceeds of offending, he was not even at the scene of the crime.  He had a number or prior convictions, he was described in a particular way by Judge Wilmoth who gaoled him and in her sentencing remarks, referred to his criminal capacity particularly in organising sophisticated offending, carried out by others. 

69Mr Mayoum, who as I have stated, had been in constant trouble of the time of this offending was on a number of sets of bail and had so conducted himself when he was held in youth justice, that it was Mr Bell's view that he was standing over other inmates in youth justice and could only be dealt with by way of a term of imprisonment in adult custody. 

70Your presentation, your role in this offending which was last minute, came about essentially because of the influence of the unfamiliar drug that you had taken on that occasion, puts you in an entirely different category to that of Mr Mayoum and Mr Taha, in my view, so that the sentences that were imposed in their cases, are not in my view appropriate for yours.  All right?  Is there anything else?

71MR McWILLIAMS:  Only 6AAA into question, Your Honour.

72HER HONOUR:  No, I've placed him on a Community Corrections Order so that the s. 6AAA declaration is not required.

73MR McWILLIAMS:  That's the case if the order is less than two years in duration.  If it went for more than two years, Your Honour will need to make a s. 6AAA.

74HER HONOUR:  More than two years.  Very well, I learn something every day.  Pursuant to s. 6AAA, I declare that had you not pleaded guilty, I would have sentenced you a term to be imprisoned for a period of three years in a youth justice centre.

75COUNSEL:  As Your Honour pleases.

76HER HONOUR:  Thank you.

77MR McGRATH:  Your Honour, there's only one other administrative matter.  It's in relation to the surety, only because I've had issues previously when ‑ ‑ ‑ 

78HER HONOUR:  Sure.

79MR McGRATH:  At the completion of the matter, I'll take
Mr Shawcross, who's the surety, down to the registry.

80HER HONOUR:  Yes.

81MR McGRATH:  I don't know if the registry need anything more than Your Honour's orders to say that the matter's finalised.

82HER HONOUR:  We'll get him out for you.

83MR McGRATH:  Yes.

84HER HONOUR:  I've also got some members of the press copies of my original sentencing remarks to make sure they have all information necessary, thank you.  Yes.

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