Director of Public Prosecutions v Mijak
[2023] VCC 115
•10 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02307
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AJOL MIJAK |
---
JUDGE: | His Honour Judge Holding | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 January 2023 and 27 January 2023 | |
DATE OF SENTENCE: | 10 February 2023 | |
CASE MAY BE CITED AS: | DPP v Mijak | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 155 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW – Sentence.
Catchwords: Plea of guilty – criminal record – summary offence – common law assault – sexual assault of a child under the age of 16 – sex offender – community correction order – imprisonment – psychological report – serious offending – letter of remorse – principle of totality – verdins – bugmy - illicit drugs – combination sentence – difficult background.
Legislation Cited: Crimes Act 1958 (Vic) s 49D, 35B – Sex Offender Registration Act 2004 (Vic) – Sentencing Act 1991 (Vic) s 18(4), 6AAA.
Cases Cited:R v Verdins (2007) 16 VR 269 - Bugmy v The Queen (2013) 249 CLR 571.
Sentence: Total effective sentence of 29 months’ imprisonment in conjunction with a Community Correction Order of 20 months’ duration.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Nibbs | Abbey Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr L. Gwynn | Ajak & Associates |
HIS HONOUR:
1Ajol Mijak, you have pleaded guilty on indictment no. M10146194.1 to the following charges:
·Charge 1 – common law assault – maximum penalty 5 years’ imprisonment; and
·Charge 2 – sexual assault of a child under the age of 16 – contrary to s 49D(1) of the Crimes Act 1958 (Vic) – maximum penalty 10 years’ imprisonment. Note: s 49D(2A) of the Crimes Act 1958 (Vic) prescribes that the standard sentence for this offence is 4 years’ imprisonment.
2You have also pleaded guilty to the following uplifted summary offences:
·Summary charge 7 – commit indictable offence whilst on bail – maximum penalty 3 months’ imprisonment;
·Summary charges 10 and 12 – trespass – maximum penalty in respect of each charge – 6 months’ imprisonment; and
·Summary charge 11 – wilful damage – maximum penalty 6 months’ imprisonment.
3The circumstances of your offending are described in detail in the Prosecution Opening dated 5 August 2022.[1] It was indicated by your counsel that this is an agreed document, and it is the factual basis upon which I will sentence you. That opening should be read in conjunction with these reasons. However, I will briefly describe the circumstances of your offending.
[1] Exhibit A on the Plea.
Circumstances of the offending
4On 21 January 2021, in the early hours of the morning, you entered a domestic residence in your neighbourhood through a partially open bedroom window. In the process, you damaged the flyscreen attached to this window by ripping it from the edges of the frame (summary offence 10 – trespass, and summary offence 11 – wilful damage).
5There were children asleep in the bedroom that you entered. You went past these children into the hallway, and then entered a bedroom where the children’s mother, Carmen Duarte,[2] was lying in her bed reading. She had her back to entrance to her bedroom but soon became aware of your presence. She turned and saw you walking towards her. You gestured to Ms Duarte to be quiet, approached her, and placed your hand over her mouth.
[2] A pseudonym
6Ms Duarte started to scream and swore at you, telling you to get out of her house. You held your hand over Ms Duarte’s mouth for approximately 5 seconds and this physical contact is the basis of Charge 1 being common assault.
7Ms Duarte feared you were intent on raping her, and kicked at you and moved her head and screamed. You hit her ear with your hand, which caught on Ms Duarte’s earing and caused her ear to bleed.
8You then ran from the bedroom and made your way out of the front door. Ms Duarte called the police who attended a short time later.
9You then entered another domestic residence approximately 160 metres away from the home of Ms Duarte.
10You entered this second property either by entering through the laundry at the rear of the property, or through a bedroom window. Your unlawful entry to this property constitutes Summary Offence 12 – trespass.
11Once inside you walked through the house and entered the bedroom of two children who were asleep in a bunk bed. You removed one of the children, Zemira Okoka[3] from the bottom bed. Zemira is a seven-year-old child who suffers from autism. You carried Zemira to the laundry where you removed her clothing being a top, pants, and underwear. Once you had removed her clothing, you removed your own clothing which at the time only consisted of a pair of shorts.
[3] A pseudonym.
12It is the manhandling of Zemira, by way of removing her clothing in the context of shortly after removing your own clothing, that constitutes charge 2, the offence of sexual assault of a child under the age of 16.[4]
[4] It is to be noted that sexual assault in s 49D of the Crimes Act 1958 (Vic) may be constituted by intentional touching, where the touching is sexual. ‘Touching’ and ‘touching that may be sexual’, is further defined in s 35B of the Crimes Act 1958 (Vic) to include touching ‘through anything, including anything worn by the person touched, and may be sexual by virtue of the fact that the person doing the touching gets sexual arousal or sexual gratification from the touching or ‘any other aspect of the touching, including the circumstances in which it was done’.
13You then punched Zemira to her right cheek and made rude comments to her. Zemira later made a recorded interview where she attempted to describe some of your comments. She said part of what you stated was, ‘ Oi, punk … take off your clothes and put you in gaol…. I’m coming’.
14Police who had been called earlier by Ms Duarte were in the vicinity and you noticed a police officer outside the laundry window. You then pulled up your pants. Police requested you come out of the premises. You then went through the house and into the bedroom of the children’s mother, Aketch Oduol[5] who was asleep at the time.
[5] A pseudonym.
15Ms Oduol saw police through the window and saw you putting on a jumper. Ms Oduol yelled at you and bravely pushed you out of the house, where you were arrested by police.
16Ms Oduol went to the children’s bedroom and found Zemira in the foetal position, naked under the bedclothes. The child said you had removed her clothing, and Ms Oduol subsequently located Zemira’s clothing in the laundry.
17You were later interviewed by police. You told police you had mental health issues and did not remember the circumstances of the offending but only remembered waking up in the police cells.
18It is not in dispute that at the time you committed these offences you were on bail for other charges that were ultimately withdrawn. While the charges for which you were on bail were withdrawn, it is still the fact that when you committed the offending referred to above (some of which are indictable offences), you were at the time on bail.
Personal circumstances
19Tendered on your plea hearing were two psychiatric reports from Dr Prashant Pandurangi,[6] as well as written submissions from your counsel Mr Gwynn, [7] that provide details of your personal background.
[6] Exhibit 2 on the Plea.
[7] Exhibit 1 on the Plea.
20You were 27 at the time of these offences. Your family is of Sudanese background and had to flee from Sudan to Kakuma in Kenya to avoid civil conflict. You were born when your family was in a United Nations refugee camp in Kenya, and you grew up there. You are the middle child in a family of seven children.
21Your family had difficulties. One of your older sisters died, and for a time you had to be cared for by your grandmother. Your grandmother was killed, and you returned to being cared for by your mother.
22Your father remains in Sudan, and you recall he was frequently physically abusive towards you, your siblings, and your mother. You recall being beaten with a belt , your father ‘pulling a gun’ on you, and you believe your father suffered from a mental illness. You believed your mother was forgiving of your father because she regarded him as mentally ill.
23You told Dr Pandurangi of traumatic ‘sexual encounters’ with older boys while living in the refugee camp when you were approximately 8 years old. You said this involved penetrative sex with other children and you were the victim of such abuse. When the mothers of these children found out about the sexual activity this resulted in the children, including yourself, being beaten.
24Your family aside from your father managed to obtain refugee visas, and you came to Australia when you were 11 years of age.
25You struggled with learning the English language and fitting in at school. You attended Noble Park Language School and a TAFE college but left formal education around Year 10. You have had intermittent employment in such jobs as delivery driving, cleaning, and factory work.
26Your prior criminal history indicates that you have been before the Magistrates’ Court on four occasions between 2013 and 2018. You have been dealt with for a number of motor traffic offences, but of more concern is the fact that you have received two prior sentences of imprisonment. On 15 February 2016 you were sentenced to 52 days’ imprisonment in respect of assault and hinder police, and seven charges of failing to appear on bail. As you had spent that 52 days on remand before being sentenced, you were in effect sentenced to time served and a Community Corrections Order in respect of motor traffic offences.
27I was told by your counsel during the plea that in 2016 you returned to Sudan for approximately two years, and this information was supported in the report of Dr Pandurangi. In that period you witnessed civil disobedience in that country, and witnessed incidents of murder and dismemberment. You managed to travel to Narobi and return to Australia. Unfortunately, upon your return to this country you resumed using methamphetamine.
28On 14 November 2018, you were sentenced to 18 months’ imprisonment with a non-parole period of 9 months in respect of, amongst other charges, a charge of aggravated burglary, attempted aggravated burglary, and unlawful assault. It is noted on the criminal history that at the time of being sentenced for these offences, you were withdrawing from ‘ice’.
29You were also dealt with for child stealing, assaulting a police officer, and possess methylamphetamine on 10 March 2016.
30During the plea hearing the prosecution provided me with the police summaries relating to the 10 March 2016 and 14 November 2018 sentences. The child stealing related to you going to your mother’s residence and taking away your 10 year old brother. Apparently you did this because you were lonely and wanted the company of your brother. You were fined an aggregate fine $600 for this offence and the other offences dealt with in that court proceeding.
31The hearing on 14 November 2018 related to you entering as a trespasser into the home of a 31 year old woman who knew you through your extended family. Your motivation was not clear but you ended up having a physical struggle with the woman before she was able to flee from the home. The attempted aggravated burglary involved you then trying to get into another woman’s home, after having been refused entry by that woman. This offending has some similarity with the offending before me, and is of most concern. You appear not to have been granted parole in relation to the sentence imposed for this offending. You were released from custody in May 2020. It is therefore approximately 8 months later, after having served a significant gaol sentence, that you have re-offended, again by entering as a trespasser and committing assaults upon people in their own homes.
Psychiatric evidence
32Dr Pandurangi interviewed you on 26 May and 28 May 2021, and more recently on 26 November 2022. It is apparent from his two reports that he has reviewed extensive past medical records relating to your mental health history. I have read his reports carefully, but refer only to the parts of his reports necessary to explain my sentencing reasons.
33You told Dr Pandurangi that since your release from gaol in May 2020, you managed to obtain some jobs in a factory, and as a cleaner in a butcher shop. However, you had trouble maintaining employment for a variety of reasons including, hearing ‘ voices… somebody was targeting me … thought I was an Angel’. This experience was in the context of you again using ‘ice’.
34Of concern, you also described hearing voices of people who were instructing you to ‘assault people…set people on fire..’ Mr Panduarangi stated:
He was relieved that he did not carry out any such instructions… He alluded that he would stand (on the streets) in the dark and “…wait for someone to come… to assault them...”. He also acknowledged thinking of “sexual assault” as well and had thoughts of tying the victims down and taking their clothes off. He indicated that he did not engage in any such conduct. He said he would go to the parks where he would watch porn and masturbate, which would make him feel satisfied.[8]
[8] Exhibit 2 on the Plea, 3 September 2021 report, [32].
35After referring to your background and past mental health experiences in detail, Dr Pandurangi stated in his report dated 3 September 2021, ‘There is a degree of conjecture as to the nature of the mental illness he suffers from’. He went on to explain that your diagnosis was complicated by your amphetamine use. He was of the opinion that you were most likely to have experienced episodes of ‘drug induced psychosis’ prior to your most recent incarceration, but that you were vulnerable to develop psychosis given your background and family history. He stated that your presentation at that time was not ‘currently’ typical of a schizophrenic illness. He also commented:
Whether he goes on to eventually develop an enduring mental illness, is difficult to definitively comment on, however, he does have the risk factors to develop such an illness, especially if he continues to use methamphetamines.[9]
[9] Exhibit 2 on the Plea, 12 December 2022 report, [37].
36In relation to the current offending in the more recent report, Dr Pandurangi stated:
Mr Mijak recalls using methamphetamines and alcohol in the hours prior to the offending. He unfortunately has no recollection of the events leading to and during the offending, and does not provide any account of it. So, it is difficult to decipher his exact motivations in engaging in such a conduct. It is likely that his conduct, at the time, was significantly driven by the disinhibiting effects of methamphetamines and alcohol intoxication, and potentially provides the explanation for the lack of recollection of the events, rather than the conduct being causally linked to underlying psychosis.[10]
[10] Ibid, [42].
37After applying a number of different assessment methods Mr Pandurangi made the following comment regarding your future risk of reoffending:
The configuration of risk factors suggest that Mr Mijak’s current problems lie across the domains of psychological adjustment, mental disorder, social adjustment and manageability. Overall, from the above risk assessments, I would consider his risk of similar sexual offending is in the moderate category. This risk is likely to increase further if he starts using methamphetamines again.[11]
[11] Ibid, [46].
Matters in Mitigation
38Sensibly, your counsel Mr Gwynn did not submit that the expert evidence of your mental health conditions at the time of your offending engaged any of the principles referred to in the case of Verdins.[12] He conceded that your continued use of methamphetamines complicated the causal connection between your mental health conditions and the offending.
[12] R v Verdins (2007) 16 VR 269.
39He did however rely upon the following factors in mitigation:
·Your plea of guilty was an early plea. Although it took some time for the case to be settled, you had indicated at an early stage that you were prepared to plead guilty to the charges that ultimately proceeded.
·Your plea of guilty is an indication that you have accepted your responsibility for the offending despite poor recall of the events that constitute your offending conduct. You are remorseful. He relied upon a letter you wrote to the court in which you clearly stated you were remorseful. You stated in that letter, ‘My actions make me a monster, the time I have spent whilst remand (sic) is a daily reminder of the crime I have committed.’[13] You go on in the letter to state how your offending must have terrified the victims and that they did not deserve the experience caused by your offending.
·Your period in custody has at times been difficult due to your mental health problems and the fact that you have experienced lockdowns in prison because of the pandemic. The pandemic has also caused a backlog of cases, because of the cessation of jury trials for an extended period. Your plea of guilty at an early stage has in part relieved that backlog and as a result conferred upon the justice system additional utilitarian benefit.
·You have completed courses in custody designed to reduce your risk of reoffending. You indicate in your letter to the court that you have come to appreciate how important it is that you comply with medical advice concerning mental health issues and stop using illicit drugs.[14]
·Your background is one of profound deprivation that engages the principles referred to in the case of Bugmy.[15] That is, as a principal of equal justice, the assessment of your moral culpability for the offending cannot be regarded as the same as if you had not come from such a profoundly difficult background.
·Your prior convictions, although in some respects have similarities to the current offending, are not prior convictions for previous sexual offending, and have limited relevance to the assessment of moral culpability to the current sexual offence before the court.
·Your Counsel submits that both the common assault charge and the sexual assault charge are not serious instances of offending in the sense that the common assault did not involve the infliction of a blow and the assault upon the child did not involve actual physical contact with an intimate part of her body.
[13] See Exhibit 3 on the Plea.
[14] Certificates of completing a 6 hour ‘Ice and me’ program and ‘coping inside program’ were tendered. See Exhibit 4 on the Plea.
[15] Bugmy v The Queen (2013) 249 CLR 571.
40Further, it was submitted by Mr Gwynn that the combination of factors above warrants a sentence that involves no further time spent in custody. In particular, he submitted, that you have now served your longest period of incarceration, you are amenable to treatment, you have a firm goal resisting further use of illicit drugs, and you are willing and ready to comply with the conditions of a Community Correction Order.
41The Prosecution in reply emphasised the seriousness of offending against a child in this manner, and your troubling history. It was not disputed that the principles expounded in the case of Bugmy had application to your case. It was submitted that if a combination of a period of imprisonment with a Community Correction Order was imposed, the Corrections Order should include a condition of judicial monitoring so the court can monitor your continued abstinence from using methamphetamines.
Objective Gravity
42Mr Mijak, your offending is very serious. Although you do not have prior convictions for sexual offending, there are similarities between your prior offending and the offending before me. You have entered people’s homes, in circumstances where you would expect to encounter the residents. Your motivation for committing such offending has not always been clear, but has apparently been related to mental health issues caused in part by your continued drug use. Despite serving two gaol sentences, you continued to use methamphetamine and were affected by this drug when committing the offences before me. You are not to be punished for your prior offending, but it does bear upon my assessment of your moral culpability for this offending which I regard as high.
43Although you did not punch the victim of the common assault charge or touch the child in an intimate part of her body these offences must be viewed in the context of people’s entitlement to feel safe in their own home. Although no victim impact statement has been made by the victims of this offending, I have no doubt that your conduct would have terrified the victims and caused them ongoing issues regarding their sense of personal security and safety.
44Taking a seven year old autistic child from her own bed and manhandling her in the manner in which you did cannot in my view, be regarded as not a serious instance of this offence. Although it appears you were suffering from some sort of drug induced psychosis at the time, I regard all of the purposes of sentencing to be applicable in your case. Those purposes are: denunciation of your conduct, general and specific deterrence, rehabilitation, and protection of the community.
45I accept most of the factors relied upon by your counsel in mitigation. In particular, I find that you are remorseful and are intent upon doing your best upon release into the community to resist the temptation of using methamphetamine. I also accept how difficult this period of imprisonment has been for you, and the benefit that must be conferred upon you as a result of your plea of guilty at an early stage. You seem to accept that professional assistance with your mental health issues is something that will promote your rehabilitation. As is apparent from my previous comments, I do not accept that your prior convictions are of limited relevance to my assessment of your moral culpability (your blameworthiness) for this offending, or that these offences are not serious examples of these crimes.
46I must in imposing sentence have regard to the principle of totality. Your crimes were relatively close in time and involved a continuous course of offending when you were suffering from the same mental deterioration. I must have regard to the totality of your criminality. Although the trespass offences are closely related to the following offending, in my view there is a need for modest cumulation of some part of the sentence imposed for those offences with the offending you committed within the homes themselves.
47I accept Mr Gwynn’s submission that when all the factors relevant to your offending, your background, and your plea of guilty are considered, your offending does not warrant the imposition of the standard sentence of 4 years’ imprisonment.
48The standard sentence for an offence is the sentence for such an offence taking into account only the objective factors affecting the relative seriousness of that offence, where such a sentence is in the middle range of seriousness. It is one of the factors the court must take into consideration but it is not intended to limit the matters the court is permitted to take into account in considering an appropriate sentence. It is not intended to alter the well-known approach to sentencing referred to as the instinctive synthesis of relevant sentencing considerations and personal circumstances.
49Mr Gwynn submitted that in regards to protection of the community and your developing insight into your need to abstain from using methamphetamine, the community would be best protected by a period of supervision under a Community Corrections Order (CCO) in combination with a period of imprisonment. Because I was of the view that there was some merit in that submission, I had you assessed by the Office of Corrections and the Mental Health Advice and Response Service (MHARS). You were assessed as suitable to undertake a CCO. It was recommended that participation under the CCO in the Forensic Intervention Services Branch would be appropriate, and to facilitate this, an order of at least 18 months’ duration be imposed. The MHARS report also stated that you would benefit from ongoing GP review of your mental state and the efficacy of your medication regimen. The MHARS report states that your current mental state would not impede your ability to engage in a CCO and comply with any conditions of such an order.
50After receiving these reports I conducted a further hearing of your plea and indicated to your counsel that should I impose a CCO as part of the sentence, I was concerned that for an initial period of 4 months of the CCO, I would require you to observe a curfew where you would be required not to leave your home between the hours of 10.30 pm and 6.30 am. Your mother and brother were present (via video link) at your plea hearings, and I was advised by your counsel that he had instructions from you and your family that you understood such a condition and you intended to comply with such a restriction.
51Mr Mijak, you must appreciate that your offending is serious, and you now have a significant criminal history. I have formed the view that you genuinely want to change your ways, and that in the specific circumstances of your case, the community is most likely to be afforded greater protection by you being released into the community with strict conditions requiring compliance with a CCO in conjunction with judicial monitoring of your compliance with that CCO. Your offending does, however, also merit in combination with the CCO a period of imprisonment. I have determined that taking account of all the factors in mitigation as well as the objective features of your offending that the period of the gaol sentence should be lower than the period of 4 years, that is the standard sentence for the offence of sexual assault of a child under 16. It is the case that the combined period of imprisonment and the monitoring of you within the community pursuant to the conditions of the CCO, will exceed a period of 4 years.
52Balancing the various sentencing considerations, having regard to all relevant matters, and the written and oral submissions of the parties, I have determined that the appropriate and just sentence is as follows.
53On charge 2, of sexual assault of a child under the age of 16 years, you will be sentenced to 2 years’ imprisonment and a Community Corrections Order of 20 months’ duration. This is the base sentence.
54On charge 1, of common assault, you are sentenced to 12 months’ imprisonment. I order that 3 months of this sentence is to be served cumulatively upon charge 2 and all other sentences imposed this day.
55On summary charge 10, of trespass, you are convicted and sentenced to 2 months’ imprisonment. I order that 1 month of this sentence is to be served cumulatively upon charge 2 and all other sentences imposed this day.
56On summary charge 12, of trespass, you are convicted and sentenced to 2 months’ imprisonment. I order that 1 month of this sentence is to be served cumulatively upon charge 2 and all other sentences imposed this day.
57On summary charge 7, of commit an indicatable offence on bail, you are convicted and sentenced to 1 month’s imprisonment, to be served concurrently with the other sentences imposed this day.
58On summary charge 11, of wilful damage, you are convicted and discharged.
59That makes a total effective sentence of 29 months’ imprisonment in conjunction with a CCO of 20 months’ duration.
60You are required pursuant to that CCO to comply with the standard conditions, and report to the Packenham Community Corrections service within two working days of your release from prison. In addition to the standard conditions, you are subject under that order to the following special conditions:
·48D(3)(a) – Treatment and rehabilitation programs for drug addiction;
·48D(3)(b) – Treatment and rehabilitation programs related to alcohol;
·48D(3)(e) – Treatment and rehabilitation programs – relating to mental health
·48D(3)(f) – Treatment and rehabilitation programs – related to reducing reoffending.
·48E – Supervision
·48K – Judicial monitoring
·48I – Curfew condition – requiring that for a period of 4 months from release you remain at your place of residence, between the hours of 10.30 pm and 6.30 am.
61I also order that you be subject to the reporting obligations of the Sex Offender Registration Act 2004 (Vic) for having committed a single class 2 offence, and that your reporting period is 8 years.
62Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that the period of 750 days that you have been in custody be reckoned as time already served under the sentence passed today and I direct that this be entered into the records of the court.
63Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I declare that had you not pleaded guilty I would have sentenced you to a total effective sentence of 3 years and 9 months with a period of 2 years and 10 months to serve before being eligible for parole.
64I also indicate that a part of this order I will ask that the office of corrections email my associates to arrange a judicial monitoring appearance before the Court approximately 1 month after your release from custody.
0
4
1