Director of Public Prosecutions v Mawn
[2020] VCC 632
•19 May 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-02450
CR-19-02371
Indictment No. J11375168A
J11375168B
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RING TIENG MAWN |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 April 2020 | |
DATE OF SENTENCE: | 19 May 2020 | |
CASE MAY BE CITED AS: | DPP v Mawn | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 632 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: trial by jury – guilty verdicts on alternative charge of burglary, false imprisonment, common law assault and theft - subsequent plea of guilty to cultivate cannabis, possess cannabis, possess a radio-communications device – no antecedents - no psychological, drug or alcohol issues.
Legislation Cited:
Cases Cited:
Sentence: Global total effective sentence of 26 months imprisonment with a non-parole period of 15 months. Fine $2000. Pre-sentence detention 104 days.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Foot | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms J. Swiney (plea) Ms A. Kaczmarek (sentence) | Kaczmarek & Grigor Lawyers |
HIS HONOUR:
1 Ring Tieng Mawn, on 10 February 2020 you were arraigned on Indictment J11375168A and pleaded not guilty to each of the charges. On 19 February 2020 a jury found you not guilty of aggravated burglary but guilty of the alternative charge of burglary, and guilty of false imprisonment, common law assault and theft.
2 On 20 February 2020, you pleaded guilty to a charge of cultivating cannabis and a charge of possessing cannabis both of which are charged on indictment J11375168B. A trial on those charges was due to commence that day.
3 You also indicated a plea of guilty to a related summary offence of possessing a radio-communications device without lawful excuse. That plea was not formally taken until 28 April 2020.
4 The offences of burglary, false imprisonment, and theft each carry a maximum penalty of 10 years' imprisonment. The offence of common law assault carries a maximum penalty of five years' imprisonment.
5 It was accepted by your counsel that you cultivated and possessed the cannabis for purposes relating to the trafficking of that drug, and that therefore the applicable maximum penalty for cultivating cannabis is one of 15 years’ imprisonment and for possession of cannabis five years’ imprisonment.
6 The related summary offence brought pursuant to section 47(1) Radio Communications Act (Cth) 1992 carries a maximum penalty of two years' imprisonment.
Circumstances of Offending
7 On 9 September 2016 you and two unidentified males drove to a house in Roseberry Close, Cairnlea, in your white Mercedes Vito van. Your arrival was captured on neighbouring CCTV cameras.
8 The three of you were seen entering that property through the open garage door. You each then entered the premises through an internal door leading into the house.
9 The victim in this matter, Mrs Xiao Ping Cao, was sitting on the couch in the lounge room when you entered the house. She was then aged 64 years. You and the two others approached her saying “Where is the money”. You were wearing a black jumper with a white motif on its front, black pants and a black balaclava. Your co-offenders were also wearing balaclavas.
10 You grabbed Mrs Cao by her neck and pushed her face down onto the sofa. You then put a doona over her head so that she could not see what was happening. She was kept in that position for a number of minutes. At one point, Mrs Cao asked for water as she was having trouble breathing. You removed the doona from her head and sat her up on the couch. You went and obtained some water for her.
11 Your two co-offenders searched the house while you stayed with Mrs Cao.
12 You later took Mrs Cao into another room of the house, locking her in by tying an electrical cord to the doorhandle of that room and tying the other end of the cord to the doorhandle of the adjacent bathroom.
13 After some minutes, and when Mrs Cao could no longer hear any noise, she broke the flyscreen on the window of the room and crawled through it into the backyard. She thought that you and your co-offenders had left.
14
However, once outside, one of the co-offenders saw her and dragged her back inside the house, pushing her into the bathroom. You and or your co-offenders placed items stolen from the house into a couple of suitcases. CCTV footage shows your van being reversed into the driveway of the house and being loaded with the stolen items. The van was then driven away.
Mrs Cao emerged from the toilet after she heard your car drive away. She contacted her daughter and another friend to tell them what happened. Police were called.
15 The charge of burglary was based on your entering the home of Mrs Cao intending to commit the offence of theft. The issue at trial was whether you were one of the three men involved in the offending. The jury was satisfied beyond reasonable doubt that you were one of the offenders.
16 The charge of false imprisonment was based on you placing Mrs Cao in the bedroom and tying the door shut with the electrical cable.
17
The charge of common law assault was based on your applying force to
Mrs Cao when you forced her head onto the couch and placed the doona over her head.
18
The offence of theft was based on property having been stolen from
Mrs Cao’s house. The property stolen is set out in Schedule “A” to Charge 4 on the indictment. The value of the stolen property is at least $16,970.00.
19 You remained undetected for some time, however it would appear you came under suspicion shortly before your arrest, and made what are probable admissions in intercepted telephone calls with friends.
20 On 24 May 2018 a search warrant was executed at your home address. Inside the house police located a hydroponic cannabis crop growing in two rooms. There was an electrical bypass installed at the address. In the first room, there were four plants which weighed a total of 236.5 grams. In the second room, there were six plants which weighed a total of 312 grams. Thus, you were cultivating ten plants with a combined weight of 548 grams.
21 The charges of cultivation and possession relate to the same ten plants located during the search of your premises. As earlier stated, you do not dispute cultivating and possessing those plants for the purpose of trafficking.
22 When you were arrested on 24th of May 2018 police located inside your van a radio communications device. The device was examined and found to be a radio communications transmitting device designed to interfere with, disrupt or disturb radio communications. You did not hold a relevant licence or any authority to be in possession of such a device.
23 When interviewed, you denied any knowledge of the cannabis crop. However, when your trial on Indictment J11375168A concluded, you informed the Court that you would be pleading guilty to the cultivate and possess charges and the related summary charge. This was just before your trial on those charges was due to start.
24 A victim impact statement was not provided by Mrs Cao, however it was obvious during her evidence that she was terrified by your conduct.
Background and Personal Circumstances
25 You are a 29-year-old Sudanese-Australian man.
26 You were born in Wadi Haifa, a town in North Sudan. Your family’s ethnicity is Dinka and you are of the Christian faith. Dinka and Arabic are the languages spoken at home. You are the second of eight children whose ages range from 32 to13 years.
27 In 2005, at the age of 14, you came to Australia under the Refugee and Humanitarian Program.
28 In North Sudan, your father worked as a motor mechanic and your mother worked as a cleaner in addition to caring for all the children.
29 You grew up in difficult circumstances, living in a two-bedroom house which did not have running water or electricity.
30 Your father worked and lived away from home five days a week. Times were difficult and your family sometimes did not have enough money for food.
31 As a child, you experienced the civil war in Sudan. The sound of artillery formed a backdrop to your early childhood. You experienced soldiers and armed vehicles passing through your town and you occasionally saw military action.
32 North Sudan was not a safe place for you and your family. You lived in a mainly Islamic society and pressure was brought on you and your family to convert to Islam. Because of your Christian faith, you and your family suffered discrimination.
33 In 2002, your parents decided to travel to Egypt with the objective of seeking asylum in a western country. You settled in Cairo, where you attended a Christian school. You father found employment in a scrap-metal yard and your mother worked as a cleaner. You described life in Cairo as harsh and you had to endure racism. Your family successfully applied to migrate to Australia as refugees, arriving here in February 2005.
34 Upon arrival you obtained housing in St Albans and you attended Brimbank College. You did not then speak English and received extra tuition to assist in your studies. You had little difficulty with your schooling and you completed a Victorian Certificate of Applied Learning at Year-11 level in 2008. At the age of 18 you commenced a four-year apprenticeship with a marine mechanic, which you completed in 2012. You enjoyed the work, you worked hard, and developed a good relationship with your employer.
35 In 2013, you left your employment as a marine mechanic in order to commence a brick-cleaning business. In addition to the brick cleaning, you also worked full time at a Woolworths distribution centre. You normally worked 5 days a week from 5.30am to 1.30pm at Woolworths and then until 7.30pm in your brick-cleaning business.
36 In 2009, you entered a relationship with Jessica Rodero. In 2011, your daughter, Sianna was born. In 2015, your son, Ramon, was born. However, you and Jessica separated five months after Ramon’s birth. The separation was amicable and you continued to provide financial support to Jessica and the children. You would see them on the weekends and school holidays.
37 Ms Rodero provided a reference to the Court. She described you as a genuinely nice person, a hard worker and generous to anyone needing help. She has never known you to be violent.
38 In late 2015, you met your current partner, Jessica Murphy. You moved in together in a house you purchased in Deer Park.
39 However, that house had to be sold after you suffered injuries in a motorbike accident and were unable to keep up the mortgage payments. As a result of those injuries, you did not work for approximately eight months. You did not seek any Centrelink benefits and returned to live with your parents whilst you recuperated.
40 You did not return to Woolworths after you recovered from your injuries. You focussed on and gradually built up your brick-cleaning business.
41 However, in May 2018 you were arrested and remanded in custody on the charges presently before the Court. This was the first time you had been charged with any offence and your first time in custody. You remained on remand until you were bailed some three weeks after your arrest.
42 Whilst on bail, you continued to work and develop your brick-cleaning business. It progressed well and you received large contracts at various construction sites. By the time of your trial in February 2020, you were working in excess of 60 hours a week. You complied with the requirements of your bail.
43 Tendered at your plea hearing and marked Exhibit 1, is a psychological report from clinical psychologist, Guy Coffey, dated 22 April 2020. Mr Coffey consulted with you on 8, 15 and 16 April 2020.
44
You told him of your difficulties in custody since being remanded on
17 February 2020 which, not surprisingly, included adjusting to the prison environment. You have used your time on remand well and have undertaken courses on adapting to prison life and occupational health and safety.
45 You have experienced a number of extended lockdowns, during which you were confined to your cell, the longest being for 27 hours on two occasions. During one of those lockdowns, you became agitated and panicky, and began to sweat and feel breathless.
46 You are currently at Marngoneet prison, where you are sharing a cell. You occupy your time with exercise and reading.
47 When interviewed by Mr Coffey you continued to deny the burglary, false imprisonment and assault charges. You told Mr Coffey that you grew the cannabis because you wanted to make some money as you were not earning an income or receiving Centrelink benefits. You denied any abuse of alcohol or substance use, and stated you were strongly opposed to the use of illicit substances.
48 In Mr Coffey’s opinion, you do not show any signs of being mentally unwell, either now or in the past. In his opinion, you do not possess antisocial, psychopathological or borderline personality traits. Mr Coffey stated that your personality functioning betokens someone of considerable resilience, adaptability and initiative.
49 At paragraph 76 of his report, with regard to the three offences of which you were found guilty, Mr Coffey stated the following:
“The absence of clear antecedents to the offending and Mr Mawn’s continued assertion of his innocence are impediments to understanding the offences. It has not been possible to explore the specific mental state, beliefs and motivations accompanying the offending. This in turn introduces some uncertainty into ascertaining the risk of recidivism.”
50 Mr Coffey went on to state that you do not possess any of the risk factors for violent offending identified by standardised measures, with the possible exception of your history of childhood trauma. He further stated that in view of the almost complete absence of the normal risk factors for violent crime, other than the fact of the index offending itself, it is his opinion that your arrest, conviction and imprisonment are likely to act as a significant deterrent to future offending.
51 I have also received a letter of reference from your partner Jessica Murphy.
52 Ms Murphy is employed as a project manager specialising in information technology and digital projects. She stated she is 37 weeks pregnant with your child. Although you first began a relationship in October 2015, you separated in approximately April or May 2017. You again entered a relationship with her in May 2019. Ms Murphy stated that she has never seen you react in an aggressive or confrontational manner. She speaks of your considerable work ethic and generosity to friends. Ms Murphy continues to remain supportive and is optimistic about your future together and your return to the community.
Matters in Mitigation
53 I have regard to your pleas of guilty in relation to the cannabis charges and the possession of the radio communications device. Your pleas to those offences were entered at a very late stage and contrary to the submission of your counsel I do not consider that they are indicative of your remorse. However, they do provide utilitarian benefits to the court and the community in that a trial has been avoided and this factor will be taken into account in your favour. There has been no expression of remorse in relation to the offences to which you pleaded not guilty. The victim of your offending was required to give evidence at trial.
54 I have regard to the fact that you have no prior convictions and that this is your first time in custody. I have little doubt that this has been a difficult time for you made no less difficult by reason of the Covid-19 pandemic and the restrictions and limitations that this places on you with regard to your ability to receive visits and participate in work and educational courses. You no longer receive personal visits which has meant that you have not been able to see in person your partner, children and family. You have also had to endure lockdowns whilst in custody which has impacted on your mental well-being. I do take into account the burden of you being in custody at this difficult time as well as the uncertainty stemming from the Covid-19 pandemic.
55 Your counsel also relied on the delay between your arrest and the matter coming for trial. It would appear that during that period of time you have not been in any further trouble with the law and continued to work hard in developing your business, as well as starting a family with Ms Murphy. These are matters that bode well for your prospects of rehabilitation.
56 I consider that your prospects of rehabilitation to be reasonable. You have no psychological, drug or alcohol issues, you have demonstrated a very good work ethic and you have the support of your partner and family. You are also a relatively young man with no history of offending other than those matters before the court. Weighing against your prospects, however, is your lack of remorse and your failure to accept responsibility for the offences of which you were found guilty, and your very late pleas to the other charges. No explanation has been offered for the offences you committed at Roseberry Close or your possession of the radio communications device. With regard to your cultivation and possession of cannabis the motive was financial gain. It is likely that this was the motive also for the offences at Roseberry Close.
57 I am required to have regard to the nature and seriousness of your offending.
58 The offences you committed at Roseberry Close are serious offences as is reflected by the maximum penalties of imprisonment that may be imposed. I consider the burglary to be a serious example of such offending.
59 The offences were committed in the company of two unidentified co-offenders. Mrs Cao, an elderly and defenceless woman, was present in the house and no doubt endured a most frightening experience and assault. She was entitled to feel safe in her own home. You are not to be sentenced on the basis that you knew, at the time you entered her house, that she was then present or that you were reckless as to whether or not a person was then so present, however, on seeing Mrs Cao in her house, you did not desist and leave but went on to commit the other offences.
60 The offending was brazen, occurring in a populated neighbourhood during the day and reflects elements of premeditation and planning. You and your co-offenders were disguised with balaclavas which you brought with you. You were clearly at the house for some time, approximately 30 minutes, whilst the house was searched for items of value and Mrs Cao imprisoned in the bedroom.
61 I also have regard to the value of the property stolen as reflecting on the seriousness of your offending.
62 In relation to the two cannabis offences, which are charged on a single day only, you had a hydroponic cannabis set up in two rooms of the address at which you were then living in Point Cook. An electrical bypass system had been installed. Although you admitted living at that address, when interviewed by police, you denied any knowledge of the cannabis crop. The prosecution submitted, and it was not disputed, that the hydroponic setup was a relatively complex one. I have regard to there being 10 plants in total the combined weight of which was 548 grams. A traffickable quantity of cannabis is 10 plants or 250 grams. You admitted cultivating and possessing the cannabis for the purposes of trafficking. I am satisfied therefore that the relevant applicable maximum penalties are 15 years and five years respectively.
63 No explanation was provided for your possession of the radio communications device.
Relevant sentencing principles
64 General deterrence and denunciation are important factors in the sentence to be imposed. Burglaries and thefts of private dwellings are prevalent offences within our community. I am to impose a sentence that will deter other persons from committing offences of the same or a similar character as the ones you have committed. Further, the sentence must manifest the denunciation by this court of the type of conduct in which you engaged.
65 The sentence must also deter you from further criminal behaviour. However, given your lack of prior convictions and the fact that you have not been in any further trouble with the law since your arrest on 24th of May 2018, I shall moderate the weight to be attached to specific deterrence.
66 The sentence to be imposed in your case will also have regard to your rehabilitation. You are relatively young and not entrenched in a criminal lifestyle. I also have regard to the principle of totality in determining the appropriate sentence.
Sentence
67 In my opinion, your offending is serious and warrants the imposition of a term of imprisonment. Your counsel did not suggest otherwise. Given your lack of prior convictions and prospects for rehabilitation, I consider that I should set a relatively low non-parole period.
Indictment J11375168A
68 On the charge of burglary you are convicted and sentenced to a term of imprisonment of 16 months;
69 On the charge of false imprisonment you are convicted and sentenced to a term of imprisonment of four months;
70 On the charge of assault you are convicted and sentenced to a term of imprisonment of four months;
71 On the charge of theft you are convicted and sentenced to a term of imprisonment of 12 months.
72 The sentence of 16 months imposed on the burglary charge will be the base sentence.
73 I order that the following periods are to be served cumulatively on that base sentence and on each other: 2 months of the sentence imposed on the charge of false imprisonment; 2 months of the sentence imposed on the charge of common assault; 6 months of the charge of theft. This makes a total effective sentence of 26 months on Indictment J11375168A.
Indictment J11375168B
74 On the charge of cultivating cannabis you are convicted and sentenced to a term of imprisonment of 6 months.
75 On the charge of possessing cannabis you are convicted and sentenced to a term of imprisonment of 4 months. The total effective sentence on Indictment J11375168B is 6 months.
76 I direct that 3 months of the sentence imposed on Indictment J11375168B be served cumulatively on the total effective sentence imposed on J11375168A. This makes a total effective sentence of 29 months on the two indictments.
77 I set a non-parole period of 15 months' imprisonment.
78 Pursuant to s.18 of the Sentencing Act 1991, I declare the period of 104 days, not including today, as a period already served under the sentence.
79 On the summary charge of possessing a radio communications device you are convicted and fined the sum of $2000.00.
80 Had it not been for your pleas of guilty to the charges of cultivation and possession of cannabis the total effective sentence I would have imposed is one of 34 months' imprisonment with a non-parole period of 20 months.
81 Mr Mawn, do you understand the sentences that were just imposed?
82 OFFENDER: Oh yes, I'll find out later, it's all good.
83 HIS HONOUR: What I'll do, Mr Mawn, once I adjourn the court I will ask that the link continue so that your lawyer can speak to you.
84 OFFENDER: I'll speak to her later, I (indistinct) before. It's all good.
85 MS KACZMAREK: Thank you, Your Honour, for that. I have a Jabber with Mr Mawn this evening.
86 HIS HONOUR: Thank you. Would you prefer to deal with it now or are you happy to have the Jabber conference call later?
87 MS KACZMAREK: I'll speak to him now if Your Honour is happy to leave me the link?
88 HIS HONOUR: Sorry, I didn't mean to suggest that you not have your Jabber call later but I'll let you speak to Mr Mawn now. I think there is an ancillary order as well is there not that requires to be made?
89 MS FOOT: Yes, Your Honour, there's a - - -
90 HIS HONOUR: There's a forfeiture order for the following items, a red steering wheel lock, green steering wheel lock, the Mercedes Veto van, the backpack, two white sheets, two balaclavas, black beanie, cable ties, the electronic blocking device, two black and red gloves, head torch, the white Samsung mobile phone and the black Apple phone. Do you wish to be heard on those?
91 MS KACZMAREK: No, Your Honour.
92 MS FOOT: There's also a disposal order to the cannabis (indistinct) materials.
93 HIS HONOUR: I'll just have them handed up to me. Yes, there's a disposal order in relation to the cannabis plants and the electronic bypass. Is Ms Swiney on line?
94 MS KACZMAREK: Ms Swiney unfortunately has been hospitalised so she was not available to be here today.
95 HIS HONOUR: Ms Kaczmarek do you wish to say anything in relation to the disposal order, particularly that which relates to the non-cannabis related property?
96 MS KACZMAREK: Potentially, Your Honour, I might need to just pull up a couple of those orders.
97 HIS HONOUR: Yes, I just wonder if you've seen them and taken instructions?
98 MS KACZMAREK: I haven't had the opportunity to seek instructions on those so I might need time to take instructions on them.
99 HIS HONOUR: Yes, what I'll do, rather than take up time now, I will defer the forfeiture order until such time as you've had the opportunity to take instructions. I will, however, make the disposal order regarding the cannabis plants and the electronic bypass.
100 MS KACZMAREK: Yes, Your Honour.
101 HIS HONOUR: When would be a convenient time to list this matter for mention regarding the forfeiture order?
102 MS KACZMAREK: Whenever the court pleases.
103 HIS HONOUR: Ms Foot, are you available in two days' time in the morning?
104 MS FOOT: Yes, Your Honour.
105 HIS HONOUR: I will just get a time. I'll list this matter for mention at 9.30 on Friday, 22 May. If there are any issues regarding the forfeiture order if you could please let my associate know before then or, alternatively, if there are no issues, then if you let my associate know I will make the order in chambers and there'll be no need for appearance on Friday.
106 MS KACZMAREK: Yes, Your Honour.
107 HIS HONOUR: Just to recap: if there's no issue with the forfeiture order, let me know and I can make the order in chambers. If there's to be argument in relation to it we can deal with it Friday morning at 9.30 am.
108 MS KACZMAREK: Thank you, Your Honour.
109 MS FOOT: If Your Honour pleases.
110 HIS HONOUR: Thank you both. Are there any other matters?
111 COUNSEL: No, Your Honour.
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