Director of Public Prosecutions v Mawn

[2014] VCC 1199

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00465

DIRECTOR OF PUBLIC PROSECUTIONS

v

DENG MAWN

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	3 July 2014
DATE OF SENTENCE:	18 July 2014
CASE MAY BE CITED AS:	DPP v Mawn
MEDIUM NEUTRAL CITATION:	[2014] VCC 1199

REASONS FOR SENTENCE
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Subject:  Sentencing; plea of guilty; youthful offender 

Catchwords:  Extremely violent offending; committed while on CCO; similar prior offences; rehabilitation commenced; long standing alcohol and drug addiction; PTSD from refugee background in Sudan

Legislation Cited: s 6AAA Sentencing Act 1991
Sentence:  TES: 16 months imprisonment; NPP: 6 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Bhai	OPP
For the Accused	Mr L. Richter	Robert Stary Lawyers

HER HONOUR:

1Deng Mawn, you have pleaded guilty to one charge of theft, one charge of robbery and one charge of assault with intent to rob.  You have also admitted prior offences about which I shall say more later.

2

The maximum penalty for theft is ten years' imprisonment, for robbery it is

15 years' imprisonment and for assault with intent to rob it is 15 years' imprisonment.  These maximum penalties indicate how seriously offences of this nature are regarded by parliament on behalf of the community.  I must take them into account when deciding your sentence.  You will not be receiving anywhere near even one of those maximum penalties in this case, but I will tell you now that you will be sentenced to a term of immediate imprisonment.

3You claim to have no memory of committing these offences because you were drunk at the time.  Blotting out memory with alcohol is not an excuse for misbehaviour.  I will say more about that later.

4I turn first to the circumstances of these crimes.  On 4 December last year, in company with another male you entered the ALDI store in Sunshine and took a bottle of bourbon and left the shop without paying for it.  That is the basis of Charge 1 of theft.  That behaviour is outright dishonesty for which you deserve some punishment, but were that the only charge against you, it is unlikely you would be dealt with in this court and it would not have warranted a custodial sentence.

5I have no information as to how you spent the next four hours that day, nor as to whether you drank alcohol and if so, how much.  That bottle of bourbon that you stole seems to have survived with its contents at least almost intact to be carried by you almost five hours later. 

6Charge 2 arises from events at about 5 pm that day at the Brimbank Library in Sunshine.  You and two friends approached a man outside the library.  You extended your hand to shake hands with him and he extended his hand to you.  You asked him for cigarettes but he told you that he did not smoke.  He then walked into the foyer of the library and you and your two friends followed. 

7It so happens that CCTV cameras caught the whole of the incident that followed. I have watched it again since seeing it in court.  You and your friends walked so that one was on either side of him.  As he walked through the foyer you suddenly swung around and punched him to the temple with such force that he fell to the ground.  You then stepped over him, stomped on his head, then turned and kicked him again. 

8Your co-offender Sedrick Irakoze then walked towards him, the man started to sit up and you kicked him again to the head.  You grabbed him and tried to force him back down.  An acquaintance to whom you had spoken outside, Mr Trawally, had entered and apparently called out to you to stop and tried to intervene but Irakoze pushed him out of the way and tried to kick the victim himself but missed. 

9When the victim was sitting on the ground, you again kicked him to the head, apparently knocking him unconscious.  As he remained lying on his back on the floor in an unconscious or semi-conscious state, you bent over him and searched through each of his pockets.  You took what you found, apparently a mobile phone and a wallet and debit card, reaching under his body and pulling it out with some difficulty.  You then calmly left the building with Irakoze, as the acquaintance to whom you had earlier spoken was trying to assist the victim.

10Your victim was Mr Jayaraman Krishnanadaiyar, a 36 year old man who was a stranger to you, and had done nothing whatsoever to provoke you.  He, like others, was simply visiting the public library at about 5 pm that day.  After you left, an ambulance was called and he was taken to hospital and found to have bruising to his head and neck, abrasion to his right elbow, and discomfort and tenderness to his spine.

11As I say, I have watched the CCTV footage of this incident.  It shows that your attack on Mr Krishnanadaiyar was brutal.  You repeatedly kicked or stomped on him whilst he was on the ground, until apparently rendering him unconscious.  That you then took some time to search through his pockets to complete the robbery was not only cold, but to me indicated that even if intoxicated, you were still capable of following through with the intent and goal of stealing from him.

12I regard this as a very serious instance of robbery.  Much more force was used than would have been needed to steal from a man considerably smaller in body size than you, and especially as you had at least one co-offender in the vicinity.  You were the instigator and overwhelmingly the main offender in this attack and after an initial very forceful punch, you kicked him repeatedly on the floor.

13Although your victim has not made a formal victim impact statement, I infer from the circumstances that he will have suffered not only physical injuries at the time, but also shock and likely emotional consequences from the trauma of being attacked so brutally by you in a public area in front of other people and having done nothing whatsoever to provoke you.

14

Following your attack on Mr Krishnanadaiyar, you left the library, although

Mr Irakoze went back in to see what was happening with the victim, and also to try to draw the man who knew you away.  To his credit, Mr Trawally stayed, assisting the victim, and made a statement to police.

15

Not long afterwards, you were walking down the street with two friends -  

Mr Irakoze who was 18 years old at the time and had been in the incident at the library with you, and a Mr Chol who is some years older than you.  The three of you confronted another man in the street, Mr Saber Javanmard, who was walking towards the library with a friend whom he had just seen.  You and your friends walked towards the men, you holding the bottle of bourbon you had stolen earlier in the day.  You approached Mr Javanmard by spreading around him ,with Mr Irakoze taking the lead and demanding a cigarette which the man said he did not have, and then you demanded money to which

Mr Javanmard replied, "Sorry brother, I don't have."  He began to feel scared but tried to be friendly and put out his hand to shake yours. 

16

You passed the bourbon bottle to Irakoze, Chol went behind the victim and tried to pull his wallet from his pocket, and the victim turned around and pushed Mr Chol's hand away.  The bottle was then passed along, and

Mr Irakoze tried to punch Mr Javanmard but did not fully connect.  You then punched and kicked him but he fought back.  You then repeatedly punched

Mr Javanmard, and it was two on one as you punched him from the front and Mr Irakoze from behind.  When Mr Javanmard's friend pulled Irakoze away, they punched each other.  You had hold of Mr Javanmard's shirt and pushed him into the wall.  The fighting then moved from the street into a laneway where you all hit the victim, and Mr Chol pulled out the bottle of bourbon and used it to strike the victim's head, causing him to fall to the ground and see black.

17This incident was seen by a motorist, stopped at the intersection, who described the incident as: "These guys were really scary and the way that they attacked this guy was just feral.  He did nothing wrong to them to provoke them, he was just in the wrong place at the wrong time." 

18Even when police arrived, the three of you were still assaulting your victim.  Police had to separate the group and at that stage you were arrested.  You and your co-offenders continued to yell at the victim while he was sitting on the ground.  These events are the basis of Charge 3.

19Your victim and his friend were attended by ambulance officers who took him to the Western Hospital.  A 3 cm wound to his head was cleaned and glued.  Mr Javanmard has made a Victim Impact Statement which he did not want read out in court so I shall not repeat its details.  It is enough to say that he still suffers from some physical symptoms from your attack on him, and has also been emotionally harmed.  He himself came from another troubled country hoping for peace and a safe life without anxiety in Australia.  Your attack on him has undermined his confidence in this country, and other people here, and made him anxious and worried about whom he can trust and where he can go safely.  In other words, your attack caused more trauma to him.

20

I have also seen some CCTV film showing the beginning of this incident.  This appears to show that all three of you were physically involved in this attack, and not predominantly you as in the earlier one.  It shows that you and your friends were prepared to use your physical size and numbers between you to attack someone you intended also to rob.  That you did this in full view of many users of the footpath, on a public street, in daylight and beside a busy roundabout intersection indicates to me that there is an element of intimidation to others about the attack.  That this occurred so shortly after your attack on

Mr Krishnanadaiyar at the library indicates that you felt no remorse or shame, and were prepared to continue quite brazenly to violently attack other people going about their lives in this area.  As with Charge 2, I regard this as a serious example of the offence of assault with intent to rob.

21You were shown rather unsteady on your feet walking down the street towards this second incident, which could be a sign of drunkenness.  I note that police did not interview you because you were considered too drunk for that to occur.  Drinking alcohol that day was your choice, and even if it was due to longstanding addiction, you certainly knew by that time that under the influence of alcohol, you were prone to commit violent offences.

22You were arrested that day and held in custody for 21 days until obtaining bail.  The time spent in custody will count towards your sentence.  I am told by your counsel, and by a witness, Mr Barwick, who visited you several times while you were in custody, that you were distressed and dishevelled in custody, and that that experience taught you a very real lesson.  I am sure that being in custody for the first time at the age of 21 was very confronting and hopefully salutary for you. 

23The violence in each incident was far in excess of any force needed to wrest a wallet or mobile phone from a victim, surrounded and outnumbered by you and your friends.  This behaviour calls for a sentence severe enough to both send a message to deter others from attempting similar offences, and also to reassure the community by sufficiently denouncing such behaviour.

24

Another matter of concern is your criminal history.  Although relatively recent, it is particularly relevant to my sentencing of you.  In early May last year, you were before Sunshine Magistrates' Court where three sets of offences were dealt with.  I asked for details of the prior offences, and was told that three charges of recklessly causing injury and one of affray arose out of an incident on 3 December 2011, that is, almost exactly two years before the offences for which I sentence you, and when you would have been about 19 years of age.  I am told that there was a further charge of assault by kicking and one of resisting police which arose from an incident in March 2012. Then, on

3 April 2012, you were involved in an incident of violence which included recklessly causing serious injury and recklessly causing injury, being an assault at a train station and a victim being a Metro officer.

25Before you were dealt with for those three sets of offences, you were referred from the Magistrates' Court to the Youth, Community and Law Program, (“YCLP”), and that was in October 2012.  Ms Dale Doran, a youth access and justice case manager of The Youth Junction Inc, has provided a report and also gave oral evidence on your behalf.  She had known you since 2010 because you had previously attended the VisiCare hub in Sunshine.  You sought assistance from the YCLP program, which was given over a six month period, and that resulted in a recommendation to the Magistrates' Court on which basis on 3 May last year, a Community Corrections Order of 18 months' was imposed, with 300 hours of unpaid community work, and provision for assessment and treatment, including for alcohol abuse and also programs to reduce the risk of you re-offending.

26You breached that CCO by non-compliance through numerous unacceptable absences, and some bad attitude towards community work.  You were back before the Magistrates' Court in August and again October last year, following which your compliance continued to be problematic.  After that, you committed these offences.

27That history is relevant to my sentencing of you in two respects.  First, it reveals that you had engaged in three prior incidents involving violence, including specifically kicking and causing injury which I am told were all committed while drunk.

28Further, you offended again in a similar manner during the currency of a Community Corrections Order.  This must be regarded as an aggravating factor, and in my view more so because you had twice been back to the court for other non-compliance, including numerous unacceptable absences - twice arriving at unpaid community work drunk, and behaving aggressively or rudely towards community work supervisors, whether or not you thought you had some justification for that.  I have heard some explanation of those instances today.  These resulted in your being permanently withdrawn from community work.  The latter matters were adjourned last week by the Magistrates' Court to await this sentence.

29In your favour, you have pleaded guilty to these charges and are entitled to some leniency for doing so, in particular for saving your two victims the stress of having to come to court to retell and relive what were clearly seriously upsetting incidents for them.  You have also saved the community the time and cost of a trial which I take into account, but given the CCTV footage and an acquaintance who witnessed the first incident, there was clearly a strong case indeed against you, and the value of the guilty plea also takes that into account.

30I accept that your pleas of guilty also reflect some remorse.  Reports from those dealing with you since these offences are to the effect that you have expressed remorse. I am not convinced that you have much real insight into the trauma you caused your victims; men who themselves came to Australia from troubled countries, hoping for peace and safety.  I do accept that you regret the trouble you have caused for yourself and have expressed remorse as best you are able, and wish to make changes to improve your life.  I accept that the latter is to avoid committing further offences.

31I shall tell you after I have imposed your sentence what it would have been if you had not pleaded guilty. 

32I turn now to your personal circumstances.  You were 21 years of age when these offences occurred, and are now 22.  You were born in Sudan, where you were exposed to the trauma of violent conflict around you.  Your family fled to Egypt when you were nine or ten years old, and you continued schooling there for about four years.  You have reported being subjected to both racial abuse and further violence there.  You have told a psychologist that whilst living in Egypt, you often armed yourself with weapons to protect your siblings from violent attacks.

33You came to Australia in 2005, which on my reckoning made you about 13, and your family settled in the western suburbs of Melbourne.  You are the third of eight children in your family.  You report socialising with gangs after arrival in Australia- at first Asian gangs, and then with members of Sudanese gangs, of which you eventually became a leader and considered the gang members your family.  However, there were questions about this raised during the plea hearing, and your counsel said that you had not actually been involved in gangs for the last five years.

34You completed Year 10 at school here, but were expelled prior to completing Year 11 due to ongoing fighting with other students.  You claim to have not paid much attention in school and to have frequently misbehaved, finding that you could not keep up well enough in English. 

35After leaving school, you completed a six month pre-apprenticeship program in carpentry, and have expressed a desire to follow on by undertaking a four year apprenticeship, but have only had some unskilled casual labouring positions in the meantime.  You apparently attempted to gain a forklift licence, but could not satisfy the written component of the testing.

36You have been abusing alcohol and cannabis for many years.  You claim to have started drinking alcohol from approximately age eight or nine, as it was readily available in Sudan.  You say you drank alcohol daily to the level of intoxication, throughout adolescence.  You claim to have first used cannabis at age 15, after arriving in Australia, and that from then onwards you used it daily, frequently mixing it and alcohol, and occasionally mixing cannabis with prescription medications to increase the sedative effect.

37

You told Ms Anderson, who carried out a psychological assessment of you, that you were struck by a motor vehicle in 2011 and were in a coma for approximately 24 days, and were subsequently diagnosed with acquired brain injury at the Royal Melbourne Hospital.  There was no material for

Ms Anderson to substantiate this and there is none before me.  She thought it likely there has been some effective acquired brain injury, but was not conducting neuropsychological testing, although that is her specialty, but she had been asked for a psychological report only.

38The psychological assessment she carried out is the subject of a report in early May, which gives a detailed analysis of the issues she considered relating to you, based on the information she had. Her report, in my view, is much more comprehensive and helpful than many reports that this court sees.  Without setting out its content in full, I particularly note the following from it: 

·She considered you satisfied a provisional diagnosis of post-traumatic stress disorder or PTSD. 

·You also satisfied a provisional diagnosis of substance use disorder in relation to both cannabis and alcohol, and she considered this condition was of severe severity but in early remission.

·These diagnoses were based largely on tests using self-reported symptoms, and there was scope for you to have exaggerated or overestimated these. 

·On a specific test or scale she administered, useful to identify deliberate over-exaggeration or malingering of psychological symptoms, you scored at a level suggestive of an over-exaggeration of psychological symptoms during self-disclosure. However, I note Ms Anderson cautioned against entirely discounting your self-reported psychological function for that reason. 

·She assessed you as at moderate to high risk of reoffending.  The risk factors included psychological and emotional issues, substance abuse history, previous criminal history, possible cognitive deficits from an acquired brain injury, lack of positive social influences, lack of long term employment and limited participation in organised positive recreational activities.  Protective factors, namely those decreasing the risk, were a positive attitude to treatment and rehabilitation, a supportive family, stable immediate accommodation which she understood was to be a 12 month residential rehabilitation program, current abstinence from substances, and a desire to re-join the workforce.

39Ms Anderson related what you told her to the effect that imprisonment would be likely to disrupt your current abstinence from substance abuse because you understand that drugs are freely available in prison and this may impede your attempt to remain abstinent.  You also said that there are many gang members in prison and therefore it was highly likely you will feel pressured to uphold your reputation.  These views seem to me to reflect that your thinking processes are not so impaired by any acquired brain injury, that you cannot frame arguments in your favour.  However, if you are genuinely committed to remaining abstinent from drugs, and you have detoxified from physical addiction, which I am told you have, there are options available  to stay abstinent in prison, including AA and NA meetings, but ultimately that comes down to the individual's willpower.

40The reference to Ms Anderson of living up to your gang reputation was perhaps unwise, and as I have already said you later instructed that you have not been associated with gangs for the last five years or so.

41Ms Anderson considered that your level of insight now as to the connection between background trauma and using substance abuse as a coping mechanism, and your expressed willingness to explore counselling techniques focused on that trauma, would be of great benefit both to you and to prospective clinicians working with you in future.  She thought that the impact of imprisonment on your psychological function could be detrimental in that the current protective factors once removed might contribute to your relapsing and that that would impede your long term rehabilitation prospects. 

42However, her opinion was that your overall prognosis for rehabilitation would strengthen if you continued to be supported in a positive structured environment where your ongoing abstinence and engagement with counselling was encouraged.  She understood this was to be a 12 month residential program.  After that, she recommended ongoing support from community based drug and alcohol counselling, and referral to a forensic or clinical psychologist, skilled in treatment of trauma therapy.  She also recommended participation in scheduled and organised positive social activities such as team sports or volunteering with the community, and eventually assistance with job seeking, including further vocational training.

43There were some matters on which Ms Anderson had different information from what I do. These include that it was her understanding that before this offending, that is, in December last year, you had not previously engaged in rehabilitative programs or treatment, whereas my understanding is that you had attempted some which I will outline shortly.  Another significant difference in her information was that you had or were about to embark on a 12 month residential rehabilitation program at Transformations in Bendigo.  You left that within a couple of weeks,  so those of her views based on your remaining within a structured program in the community would not carry the same weight in supporting you remaining in the community as they would when expressed by her.

44Prior to this offending, you had sought assistance from various agencies and organisations.  You had visited VisiCare hub in Sunshine for some years and been provided with considerable assistance and attention from agencies trying to assist people in your situation.  I have read a number of letters from those who have assisted you, and also heard evidence from two individuals, Mr Barwick and Ms Doran, to whom I shall refer again shortly.

45You were in a six month program with Youth, Community and Law Program, that is, YCLP, from October 2012.  Ms Doran, a youth access and justice case manager of The Youth Junction Inc, wrote a report and gave oral evidence to support you, explaining that in the six months of the program with YCLP, there was an assessment made of your needs and a program tailored to them.  This included putting you into contact with YSAS, that is, Youth Support and Advocacy Service, which amongst other services provides a 14 day residential withdrawal program.

46Ms Doran had in fact known you since 2010 because of your attendances at the VisiCare hub.  She says that she has, both during the six month program and subsequently this year, talked with you about your substance abuse, including that it did not take much alcohol for you to be tipped into losing control of your behaviour, and also about your experiences in both Sudan and Egypt, which you felt still affected you and were discussed as being a cause of your taking alcohol to deal with those memories.

47According to Ms Doran, before her recommendations to the Magistrates' Court last year, the connection between your use of alcohol and your offending had been discussed with you but you had not really accepted it.  It is her evidence that this year since going through the Bridge program and committing to trying to continue with abstinence from the substances you were taking, and facing the measures necessary to put your life back on track, that you have recognised that connection. 

48You also came under the care of Mr David Barwick, an experienced youth worker in a program of outreach to Sudanese youth run by YSAS.  From March 2013, he supervised you.  Mr Barwick gave evidence strongly supporting you and the progress you have made in your rehabilitation.  He had assisted you to consult a doctor to prescribe Naltrexone, which is apparently being utilised as a medication to assist alcohol withdrawal, because if alcohol is drunk whilst taking Naltrexone, it causes nausea.  Mr Barwick said that you had told him you complied perfectly with the Naltrexone.

49He found you unique amongst the young African men with whom he has dealt as you were the first to ever be willing to engage in psychological counselling to address the underlying causes of your behavioural problems and of your alcohol and drug abuse.  He arranged for you to see a psychologist from Headspace, whom you saw weekly from September 2013.  I am not quite sure when that ceased, but I think it had ceased by the time of your reoffending.  However, Mr Barwick now believes that this was not a sufficiently specialised psychologist for your needs in that she had experience of youth with addictions, but not specifically refugee backgrounds of trauma.  Mr Barwick attributes your abandonment of the Naltrexone program and resumption of alcohol drinking, to your using it to cope with the underlying traumas being discussed with the psychologist, or as he says, "unpacked".

50He describes your engagement with him as a very strong learning process.  He regards you as the one person or one per cent of people for whom someone in his work waits and who makes the effort worthwhile. 

51At some stage, I take to have been in the second half of last year, you twice attempted the YSAS residential detoxification program, but failed to complete it or to remain abstinent from alcohol.

52Following your arrest for these offences, you were held in custody and then when granted bail, there was a condition that you take Naltrexone daily.  You were also apparently on antidepressants by that stage although I am not sure at what stage they were first prescribed.  Once on bail, Mr Barwick and possibly other youth workers searched for further assistance for you.  You were admitted to the residential detoxification program run by YSAS, apparently for six days, and from there you were accepted into the Bridge program at Bendigo run by the Salvation Army.  That was from about March.  You completed that six weeks in the residential rehabilitation program to address alcohol and cannabis addiction, and at your request, were allowed to stay an extra week for that treatment, thereby completing seven weeks.

53I have read a report on your progress at the Bridge program which is very positive.  You are said to have gained insight into the link between your alcohol and cannabis use and violent behaviour, showing remorse for your past behaviour and saying that you wanted a different lifestyle.  You did not display any physical violence or verbal aggression towards any staff or co-participants during the program, and instead are reported to have been friendly, cooperative and to have shown compassion towards others.  You appeared to be focused on your recovery, and it is said came to your own decision that you required longer term residential rehabilitation treatment, given your long history of alcohol consumption and cannabis use.  The report from that program states that you would benefit from long term alcohol and drug treatment and recommended you attend the Connect Transformations Bendigo which has been called the Transformations program.  You were accepted for that program.  The report from the Bridge program gave the opinion that it would be detrimental to impose a custodial sentence on you as it would most likely negatively impact your progress so far.  You are said to have thrived in a supported alcohol and drug free environment which offers daily structure, boundaries, guidelines and an opportunity to enhance your overall lifestyle and general wellbeing.

54As I have said, you were accepted for the Transformations program and apparently commenced it at the end of the Bridge program at approximately the end of April.  However, I am informed that you found the religiously based strictures of that environment too difficult and you withdrew from that program after a couple of weeks.  You did this with support from Mr Barwick.  You had been ringing Ms Doran from Bendigo once a fortnight and when you decided to leave Transformations you phoned her and she picked you up at the station in Melbourne.  She subsequently also went with you to your first Alcoholics Anonymous meeting in Melbourne, to which you had been introduced whilst in Bendigo.

55I am told that since returning to Melbourne, you have returned to live with your mother and siblings, having been homeless for some months in 2013.  You have attended the VisiCare hub most weekdays, using computers there to look for work.  I understand that with the prospect of imprisonment hanging over you, it has been difficult to obtain employment. 

56I was told by Ms Doran that you now attend AA meetings three times a week but today it seems that is in fact NA or Narcotics Anonymous meetings.  She confirmed that you have been engaged by the Centre for Multicultural Youth to assist to scope their new project to engage young African men with AA and NA and now also with mental health facilities.  Ms Doran said she thinks you're now seen as a leader in terms of charge and meaningful engagement and follow through with services, and she said she knows of two other young African men who have asked to go AA meetings with you.  Ms Doran says she has discussed your offending with you on many occasions, not just these offences, and believes you are now able to see the link between your offending and your drug and alcohol use, which you had not really accepted last year.

57I am also told that since returning to Melbourne in May of this year, there has been a referral of you to Foundation House for specialist psychological counselling, dealing with trauma and especially targeting your refugee background.  That counselling has recently started twice a week.  Mr Barwick said you would also be allocated a new counsellor for drug and alcohol support at YSAS because he has moved to a different field.

58Mr Barwick regards you as being, as I have said, the one per cent that can bring about change, and having come an enormous way so far to engage and to try to achieve that change.  Mr Barwick urges that that not be interrupted by your being imprisoned.  He says that you are unique because you are the only one out of about 70 young Sudanese men with whom he has dealt who has accepted referral to psychological counselling.

59I have read a letter of support from Johnny King of Centre for Multicultural Youth which has been running a young African men's program with which you had significant positive engagement.  That has led to you being asked to participate as a volunteer, working with the project officer in scoping their plans over the next six months to develop a plan or program to explain NA and AA to young African males.  I am told today that your involvement there has continued and there is talk of you becoming a mentor of an NA group for young African males.

60I accept that you have shown enthusiasm for this project and that there has been the hope placed on your participation as a bridge to reach other young African men and persuade them to engage in AA, NA and also psychological services to address their underlying problems.  However, Mr King's comment that he has had ongoing positive contact with you over the last 15 months and that you have taken considerable positive steps in that time, overlooks that it is during that time that you committed the offences for which I am to sentence you, as well, of course, as breaches by non-compliance of your Community Corrections Order. 

61I accept that young men generally, and through Ms Doran and Mr Barwick that certainly young men of African background, often have great distrust of services of mental health or rehabilitation type and of authorities in general.  Mr Barwick, as I have said, regards you as a leader in a positive way for having agreed to see and engage with a psychologist, and also for attending AA or NA.  If you yourself have accepted the usefulness of these services, you should be encouraged to continue to engage with them.  I am satisfied that it is in the public interest that you do so.  It would no doubt be of benefit to the community generally, and perhaps the Sunshine Sudanese community in particular, if you are prepared to encourage other young men to engage with these services as well. 

62However, I am not persuaded that you are an ideal role model, and even less am I persuaded that you should be hailed as the only appropriate role model to influence young disaffected Sudanese men to address their addictions and mental health issues.  The role you played in committing the offences for which I sentence you was a wholly negative influence on those who looked up to you.  The young man Irakoze could not have followed a worse role model out of the Brimbank Library on 4 December last year.

63Further, notwithstanding the efforts of those who have tried to support you, and in particular of Ms Doran and Mr Barwick, I do not regard your current circumstances as a sufficiently structured rehabilitation program.  You have returned to live with your mother and siblings, and your mother has been in court to support you and I am sure wishes to do so.  However, there is nothing to indicate that circumstances in the home have changed from what they previously were when you last lived there, and that apparently did not promote sufficient control or supervision to discourage you from your past offending.  The offences for which the Magistrates' Court sentenced you, I take to have all been committed while you were living at home with your mother and siblings.

64You apparently visit VisiCare hub most days to use computers there including to apply for some jobs.  Also I accept you must spend some time with the CMY project manager, but how much is unclear.  You attend NA meetings three times a week.  I have read a reference today that confirms that you have continued attending despite cold weather and travelling there by public transport, and on attendance have engaged well and shown commitment to the program.  I also understand that you have started seeing a psychologist twice a week.

65I do not underestimate that some of these arrangements fill portions of days but I am not persuaded that you have sufficient occupation and structure to keep you well away from former friends, or simply others in your situation looking for distraction, and from reverting to your past patterns of behaviour.  Both the Bridge program report and the report of Ms Anderson talk very specifically about you thriving in structured residential programs under supervision, and I am not satisfied that the arrangements in place since May of this year, are sufficient to fully provide what they had in mind.

66Your case requires consideration of a number of sentencing principles.  First, as I have already said, I regard the circumstances of the two assaults, the subjects of Charges 2 and 3, as at a serious level of their kind.  The violence displayed went well beyond anything possibly commensurate with stealing a wallet or mobile phone or credit cards.  While you may have been fuelled by alcohol, I do not accept in respect of the first incident as shown on the CCTV film that you were so affected by alcohol that you could not follow through to search your victim's pockets after rendering him immobile, probably unconscious, on the floor through repeated kicking of his head.  These incidents were public displays of violence committed in company, which not only overwhelmed the actual victims, but also were a visible signal to others to not interfere.  They were committed in full view of members of the public using those public areas.  These incidents would normally call for a sentence that carries a strong element of general deterrence, that is, to deter other people from being tempted to engage in similar conduct.

67Clearly, alcohol and probably also cannabis use, if you were continuing to use it last year, is a significant cause of your offending.  It is submitted that the alcohol and cannabis abuse are reactions to, or coping mechanism for, an underlying condition of post-traumatic stress disorder, arising from your childhood experiences in conflict and refugee conditions.  Therefore, it is submitted that that condition is the real underlying cause of your offending. 

68These circumstances, it is submitted, call for some moderation in your sentence on principles set out in Verdins’ case.  In particular, they are said to reduce the importance of general deterrence and also to be relevant in making the likely impact of any imprisonment more onerous for you than for a person not suffering these conditions.

69I accept, based on Ms Anderson's opinion, that your alcohol and cannabis abuse is probably, at least in part, a reaction to underlying symptoms of post-traumatic stress disorder that arise from your childhood experiences.  I  am also allowing some moderation to general deterrence to take into account, that there is a diagnosed underlying psychological condition that at some level has contributed to your offending, making your circumstances less of a suitable example for general deterrence.  

70

An aggravating factor is that you engaged in these offences while on a Community Corrections Order, and for similar past offences.  Notwithstanding that you had been supported and counselled before the imposition of that order, and whilst it was in place, you were non-compliant in several respects with that order.  Rehabilitative programs were in place, from the prescription of Naltrexone to assist with alcohol abstinence, to psychological counselling through Headspace, and supervisory attendances with community corrections officers.  But you relapsed, apparently ceasing the Naltrexone because you had resumed drinking alcohol and then you engaged in this behaviour on

4 December 2013.

71The need for specific deterrence, that is, for you personally to get the message of the serious consequences if you commit further offences, is, in my view, high.  I also take into account that on Ms Anderson's risk assessment, even in light of your positive progress through detox and the Bridge program, to the time when she saw you, you were still categorised as of moderate to high risk of reoffending.  I do not accept in all of these circumstances that a significant moderation of the need for specific deterrence is warranted by your underlying PTSD, given what occurred when treatment for it and for your alcohol and drug addictions, had commenced.

72Balanced against the need for your sentence to provide general deterrence, even if moderated, specific deterrence, and public denunciation of the nature of your offending, I must take into account several significant sentencing factors in your favour.

73As already stated, by pleading guilty to these offences, you have spared the victims the stress of having to attend court and also the pleas save the community the time and cost of a trial and reflect  that you have accepted responsibility for your actions. They also reflect remorse on your part. I also accept that you have expressed remorse to those who have dealt with you.

74Secondly, I take into account that there is ultimately a public interest in the rehabilitation of any offender, and in particular a youthful offender.  Although you have been given previous chances to pursue programs to assist your rehabilitation, and they have failed, I accept that those with entrenched long term problems, be they addictions or mental health conditions, may well not succeed on a first attempt, and this may particularly apply to someone young who might take longer to appreciate that they need to address their problems to have a better long term future.

75I accept that since your release on bail earlier this year, you have engaged in considerable steps towards your rehabilitation, in particular in seven weeks at the residential Bridge program in Bendigo.  Also, there have been some urine screen results in May and June, which are clear, consistent with what you say has been abstinence from drugs, and there is a positive reference as to your attendance and engagement so far at Narcotics Anonymous meetings. These are very positive signs, consistent with you having, as you have told those around you, recognised the need to address not only your alcohol and cannabis abuse, but also the psychological problems arising from your background as part of the immediate and indirect causes of your offending.

76Your age is undoubtedly a matter of significance in relation to your sentencing.  There is much authority to the effect that when sentencing a youthful offender, as you still are, there is a vital community interest in promoting such a young person's rehabilitation.  Indeed, for a youthful offender with no prior criminal history, rehabilitation should be the foremost sentencing consideration, even for serious crime.  However, it has also been said that where the sentencing objectives of deterrence, denunciation, just punishment and protection of the community become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced.

77I do not consider, and indeed the prosecution does not argue, that this is a case grave enough to conclude that the prospect of rehabilitation is nil, or its role in your sentence should be extinguished. Given your age and the recent positive progress, I am satisfied that although the risk of your reoffending remains moderate to high, your current progress means that rehabilitation prospects should be regarded as quite hopeful. 

78Your counsel conceded that the seriousness of the offences in Charges 2 and 3 would normally require immediate imprisonment, but argued that I should be satisfied that you have reached and begun to emerge on the positive side of a crossroad in your life.  It was urged that I should not interrupt that progress by imposing a term of imprisonment which would risk you reverting to past ways.  It is also submitted that the positive steps that you have taken towards your rehabilitation this year are so exceptional that I should find that there are strong prospects not only for your own rehabilitation, but for you acting as a role model to other Sudanese youth.

79It was submitted on the last occasion by your counsel that even if I consider that you may be well liked by your peers for the wrong reasons, I should regard the greater good of your use as a role model to get them to AA meetings and psychological counselling, as overriding other sentencing considerations.  I do not agree.  In my view, that would send a message to the young men who apparently like and admire you to the effect that the justice system through this court would condone or overlook violence of this nature, that is of the nature you committed, for a greater good.  I do not accept that I should send that message to others in your or similar circumstances.  While I am prepared to moderate the extent to which general deterrence is a factor in your sentence, that being the setting of an example to others, I do not accept that general deterrence should play no role.

80As I have said, undoubtedly there is a public interest in the rehabilitation of offenders generally, and in particular of young offenders.  I accept that you come from a difficult background and have found adjustment to life in Australia harder than many, and I accept that there are many young Sudanese men experiencing similar problems to you.  That you have now shown some remorse for your offending and taken the first steps towards changing your lifestyle and addressing the causes of your offending is to be supported and praised.  That will require strength and persistence by you, even in the face of setbacks. In your case it seems that there may be considerable assistance and support available but it will not ultimately succeed without your own resolution.

81I have taken all of these matters into consideration.  I do not consider that positive progress in rehabilitation by a young offender should be interrupted if sentencing options would adequately meet the sentencing requirements in the case.  Notwithstanding your poor attitude to the CCO imposed last year and the negative assessment of your suitability for a further CCO, I could still order one and I have seriously considered doing so.  I would do so if I considered that a CCO imposed now, even for an extended period and with substantial requirement for unpaid community work, would adequately meet the sentencing factors in your case.  However, in my view the overall level of criminality of these offences is such that no sentence other than some immediate imprisonment is required to adequately apply relevant sentencing factors, even to the extent that that will inevitably interrupt the rehabilitation measures presently in place.

82I have moderated the term I intend to impose, in particular by imposing a much lower than usual non-parole period.  Hopefully that will mean that the measures that have been put in place can be revived.  Hopefully it also will not crush your resolve to continue with those processes on your release from prison.  But fundamentally, you will need to maintain your resolution to remain abstinent from alcohol and drugs while you are in prison and on your release.

83

I have also taken into account that on Charge 3, one of your co-offenders,

Mr Chol, was sentenced to 90 days' imprisonment, which sentence he appealed but which was upheld.  I am informed that he was 29 years of age and also had some prior criminal history although I have nothing to indicate that there was any aggravating factor such as being in breach of any previous sentencing order.  I must bear in mind that to impose a totally disproportionate sentence compared with his on that charge would be to raise a legitimate ground for grievance as to inequity of sentencing.  There is nothing in respect of the third incident itself that indicates that you were more at fault than Mr Chol. However, you had come fresh from another violent incident, a robbery with violence committed by you, which he had not.  I have taken that into account in the setting of your sentence as a little higher than his for  Charge 3.

84I also consider that there is a call for some cumulation between Charges 2 and 3, to take into account that it was a completely separate incident involving a separate victim, even though of the same general character and committed within a relatively short timeframe of the earlier incident, perhaps as a continuum of earlier imbibed alcohol.  I have to apply principles of totality in this regard, and have concluded that whilst there should be some concurrency between those sentences, there also should be some cumulation to take into account the further victim and further incident.

85

If you are genuine in your resolve to address the causes of your offending,

Mr Mawn, and to change your ways to enable you to start a more settled and law abiding life in this community, you have been shown and introduced to programs to achieve that.  The recommendations from the report of the Bridge program, and indeed from Ms Anderson, are for an ordered residential disciplined program, which keeps you away from alcohol and drugs and enables psychological counselling to be undertaken to address the background problems that you have.  Most of those can be achieved in the setting of prison, although I acknowledge that getting you appropriate access to psychological counselling will be the most difficult.  I recognise that this is far from the ideal residential environment that you were hoping for, or for the engaging in rehabilitation.  However, while you were entitled to decide that the particular philosophy behind the Transformations program did not suit you, and I do not penalise you for withdrawing from that, you did choose to opt out of it and therefore out of the only available structured residential program at that stage, and which had been envisaged by those dealing with you, as your next step.

86As I say, whether you can continue with the steps you have already taken, is ultimately largely up to your own resolve and if you have really come to appreciate the need to so, then there is every hope that you will continue with that.  Would you stand up now please, Mr Mawn. 

87Deng Mawn, on each of the charges you are convicted and sentenced as follows.

88On Charge 1, for theft, you are sentenced to a term of imprisonment of one week.

89On Charge 2, for robbery of Mr Krishnanadaiyar, you are sentenced to a term of imprisonment of 14 months.

90On Charge 3, assault with intent to rob Mr Javanmard, you are sentenced to a term of imprisonment of four months.

91I direct that two months of the term imposed on Charge 3 be served cumulatively on the term imposed on Charge 2.  That creates a total effective sentence of 16 months, because the balance of the sentences will be served concurrently by operation of law.

92I set a minimum term before you can be eligible for parole of six months.  I declare 21 days of pre-sentence detention as reckoned served in respect of this sentence and that period will be deducted administratively and recorded in the records of the court.

93I make an order, I have not got the physical form of it here, but I was asked to make an order for a forensic sample to be taken from you and in my view, I should make that order for the reason of the seriousness of the circumstances of the offending.  I limit it to a sample from a scraping from the mouth.  That is taken by the placing of an enlarged cotton bud on the inside of your cheek to take a sample from which your DNA can be obtained and placed on the State’s database.  I warn you, as I must, that if you resist the taking of that sample, authorised officers can use reasonable force to take it but it is not very intrusive if you do not resist and that will occur while you are in custody.  I do not go ahead and make the default provision for a blood sample.

94

I state for the purposes of s.6AAA of the Sentencing Act, that if you had not pleaded guilty but been found guilty of these offences by a jury and all other circumstances were the same, I would have imposed a sentence of two weeks' imprisonment on Charge 1, 22 months' imprisonment on Charge 2,

six months' imprisonment on Charge 3, of which two months would have been cumulative, making a total effective sentence of two years' imprisonment and I would have set a non-parole period of 15 months.

95Now take a seat, Mr Mawn, while I look at this order and also if I see if anything else needs to be covered.

96I have signed the s.464ZF orders, have I covered everything I need to cover in the orders?

97MS BHAI:  Yes, Your Honour.  Just in regards to the orders, Your Honour, I'm assuming that's with regards to Charges 2 and 3?  The 464 orders, Your Honour.

98HER HONOUR:  Well, I am assuming, I did not check that that is what it stated, it would not be available for theft.

99MS BHAI:  There's been some recent changes now, Your Honour, and - but I’m not ‑ ‑ ‑

100HER HONOUR:  But this would be offences committed before - I will limit to being applicable to Charges 2 and 3.

101MS BHAI:  Yes, Your Honour, that's all at this time.

102HER HONOUR:  It is the seriousness of those that is unquestionably the basis in my mind to make it.

103MR RICHTER:  That's obviously not opposed, Your Honour.

104HER HONOUR:  All right.  All right, before I stand the court down I will ask for Mr Mawn to be removed from the court.  Can we adjourn the court please until 10.30 Monday.

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