Director of Public Prosecutions v Neil
[2022] VCC 914
•8 June 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-01053
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALUONG NEIL |
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JUDGE: | HER HONOUR JUDGE BLAIR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 May 2022 & 3 June 2022 |
DATE OF SENTENCE: | 8 June 2022 |
CASE MAY BE CITED AS: | DPP v Neil |
MEDIUM NEUTRAL CITATION: | [2022] VCC 914 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Aggravated burglay – Co-offenders – Early plea of guilty – Intoxication – Psychiatric report – Childhood deprivation – Parity – Community correction order – Rehabilitation - Mental health - Worboyes – Bugmy.
Legislation Cited: Sentencing Act 1991 (Vic).
Cases Cited: Worboyes v The Queen [2021] VSCA 169 - Bugmy v The Queen [2013] 249 CLR 571.
Sentence: 12-month Community Correction Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Gray | Office of Public Prosecutions |
For the Accused | Mr J. Barrera | Stary Norton Halphen |
HER HONOUR:
1Aluong Neil, you have pleaded guilty on Indictment K12961413 to one charge of aggravated burglary pursuant to s77 of the Crimes Act 1958 (Vic).
2The maximum penalty for aggravated burglary is 25 years' imprisonment.
Circumstances of the offending
3The summary of prosecution opening for plea dated 24 November 2021 sets out the agreed factual basis of your offending. This document was tendered and has been marked as Exhibit A on the plea.
4At the time of the aggravated burglary on 14 November 2019, you were 28 years old. At approximately 7.25 pm, you, together with four other women, attended at the victim's home, knocked on the front door and were allowed inside. The other women involved are Abol Yak, who was 19 at the time, Nyamet Ajang, Nebiat Wubneh and Bitanya Sibeko, who were all 17 years of age.
5The victim was asleep in her bedroom with her boyfriend, Gob Kawi, and other people were asleep in the lounge room and a second bedroom. The victim woke to the sound of a knock at her bedroom door. She opened the door, assuming it was one of her guests. Instead, she saw Ms Yak standing close to her bedroom door with you and the other three females, who were later identified as Ms Ajang, Ms Sibeko and Ms Wubneh.
6The victim quickly shut and locked her bedroom door. She could hear Ms Yak yelling, 'Bitch, come the fuck outside'. She could also hear you and the other
co-offenders yelling at her and banging and smashing. The victim used Kawi's mobile phone to call Triple 0. She told police, 'There's girls in my house that are here, that have break in my home'. The victim heard yelling and thought she could hear the lower part of her bedroom door being kicked. Together with Kawi, she held the door closed, but eventually the door was pushed open, causing her to fall backwards on the floor.7You then entered the bedroom with your four co-offenders. You all kicked the victim to her head. She was also kicked near her legs by Ms Ajang and Ms Wubneh. The victim heard female voices yelling 'bitch' repeatedly as she was being kicked, and she heard Ms Yak say something like, 'You wanna fuck with my brother'. Kawi lay on top of the victim to protect her and was kicked on his body. This is Charge 1, aggravated burglary.
8Other people present came into the bedroom and stood between yourself and the other co-offenders and the victim and Kawi. Ms Yak pulled a blind from the window and kicked the glass window in the bedroom. Ms Yak also threw a bottle of moisturiser at the window, causing the container to break open.
9The victim's friends were able to usher you and the other co-offenders out of the house. Ms Yak took an Internet modem outside and threw it on the ground. Other co-offenders broke a television and smashed windows. A curtain was also pulled from inside the bedroom through the broken window and out onto the driveway. At 7.34 pm, the victim, who had moved to the second bedroom, called Triple 0 again.
10
The police arrived at her premises at approximately 7.36 pm. As the six police members were walking down the driveway, they observed you and your
co-offenders outside the victim’s house yelling and screaming. The front window at the victim’s address was observed to be broken. The victim spoke to police and advised the five females were the offenders and they did not have permission to be at her house.
Arrest and procedural history
11You were arrested by police and taken to Werribee police station. You were put in a holding cell, as you were too intoxicated to do an interview. You were interviewed on 15 November 2019 and did not make any admissions to the charge although you did admit to being present at the victim’s home when a fight broke out. You also said there was a lot of damage caused.
Nature and gravity of the offending
12Aggravated burglary is a serious offence, as evidenced by the maximum penalty of 25 years' imprisonment. I accept, in your case, you attended at the victim’s address with the other women in the context of being highly intoxicated. I understand that you had no particular issue with the victim, but there had been an issue between Ms Yak and the victim involving Ms Yak’s brother.
13Whatever the reason, it must have been very frightening for the victim to have her home violated, to be assaulted and to have her property damaged by you and four others. No matter what the context or your level of intoxication, this behaviour is outrageous and is denounced by the Court.
14The particulars of the charge of aggravated burglary are that you were with others who had an intention to assault the victim and you believed the victim would be present at her home, and she was. There was no weapon involved, and the offending occurred in the early evening.
15Although the assault described sounded severe, the victim received no lasting physical injury. The Court did not have the benefit of a victim impact statement despite the victim being offered this opportunity on several occasions. It is clear, though, that she would have been very frightened. The photographs of her home that form part of the depositions depict considerable damage; however, I was told the value of the damage was in the order of $2,200.
16In all the circumstances, I consider your offending to fall towards the lower end on the scale of seriousness for offences of aggravated burglary.
Plea of guilty
17I accept that although your plea of guilty was not entered at the earliest time, it still has significant utilitarian benefit. You have spared the witnesses, in particular the victim, the need to give evidence at trial. You have also spared the Court from what would have been a time-consuming trial.
18In addition, I note what the Court of Appeal recently said in the case of Worboyes v The Queen,[1] and that is:
'A plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any discount, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence'.
[1][2021] VSCA 169, at [39].
19I also accept that your plea of guilty demonstrates some remorse. In these circumstances, I propose to allow a significant discount for your plea of guilty.
Background
20You were born in North Sudan, the youngest of five children. Your father died after being hit by a car when you were only four years old. Your early childhood was marked by extremely degrading and horrific events. You were the victim of not only the Sudanese Civil War but other crimes. I do not propose to repeat those events in these reasons but note they have been outlined in some detail in the comprehensive submissions of your counsel, Mr Barrera. These submissions have been tendered on the plea and marked as Exhibit 1.
21At age 12, with your family, you fled war-torn Sudan. You lived in Egypt for 18 months. There was a lot of poverty. Your mother worked hard as well as caring for you and your siblings as a sole parent. Your family migrated to Australia in 2004 when you were approximately 13 years old. You first settled in Sydney and lived there between 2004 and 2014. In 2009, you completed Year 12.
22Since aged 18, you have drunk alcohol to excess. From age 20, methylamphetamine use has also been a significant problem. You commenced use of this drug after the suicide of a very close relative. I understand that you stopped smoking this substance approximately five years ago.
23You are the mother of four sons. Tong, Deng and Kman live with your mother, and Roum, who is 18 months old, lives with his paternal grandfather. In his written submissions, your counsel described the father of your two oldest children as a violent man and a gambler. You experienced domestic violence throughout your eight-year relationship with him and at one time were thrown from a balcony.
24There have been considerable issues with the custody of your second son, Deng. His father gained custody because you were using drugs. During the time Deng was with his father, your mental health deteriorated to the extent that you were hospitalised at Westmead Hospital for one month in 2013. You were diagnosed with bipolar disorder at this time and prescribed olanzapine and diazepam. Eventually, your mother was able to regain custody of Deng because of the poor care he received from his father. Deng’s father tried to take him back by force, which resulted in physical injury to your mother and property damage to her home.
25Although you have no prior convictions in Victoria, you do have two prior court appearances in New South Wales. The first of these was in August 2013 and involved an assault of an officer in the execution of his duty. You were fined $1,000. In September 2015, you appeared in Mount Druitt Local Court for charges of handling stolen goods and deception charges. You received probation, which you transferred to Victoria and completed.
26It was in 2016 that you moved to Melbourne, and you have remained here since that time. In 2017, your son Kman was born. He was conceived as a result of a sexual assault incident that was not reported to the police. At the time, you were living with your mother where you stayed on and off until 2020. When you discovered you were pregnant with your youngest child Roum, your brother suggested that you should find your own accommodation, given the demands on your mother caring for your three children. You maintained a relationship with Roum’s father until March 2021.
27In late August 2019, you were hospitalised as a result of an assault. This was shortly before the incident for which you are before the Court. You acknowledged that you were drinking quite a lot at this time. On the night of the offending, you were so intoxicated that you were not able to be interviewed by police until the following day.
28In around July/August 2021, you suffered a breakdown, and your mental health declined significantly. You were hospitalised at Werribee Mercy acute psychiatric in-patient unit for one month. This was when your youngest child was an infant. The pressure of his care and not sleeping contributed to your poor mental health. You were discharged into the care of Saltwater Clinic and until recently attended for case management. You have been discharged from Saltwater Clinic and are now just under the care of your GP, who continues to prescribe you antipsychotic medication and benzodiazepine.
29A letter from Christy Barnes, your Salvation Army H2H case manager was tendered on your behalf at the plea hearing. Ms Barnes describes that you have been homeless for several years. You are currently in emergency accommodation, having been evicted from your previous home about two months ago. The Salvation Army continue to provide you with support and will do so for at least the next 12 months.
Application of Bugmy principles
30Given your personal history, the principles of Bugmy[2] apply in your case and are a significant mitigatory factor that I should take into account. You have endured extreme deprivation and trauma as a child. The case of Bugmy stands for the proposition that profound childhood deprivation is directly relevant to sentencing in and of itself. This is so because it is likely that moral culpability will be reduced for someone whose early years have been marked by such disadvantage. The effects of such hardship do not diminish over time, and full weight must be given to those matters in sentencing. Bugmy principles are relevant to the court’s assessment of moral culpability for the offence itself and also for the court’s consideration of the weight to be given your prior criminal history.
[2]Bugmy v The Queen [2013] 249 CLR 571.
31In your case, I accept that your childhood involved significant deprivation as a result of the death of your father, other trauma and crimes perpetrated upon you, growing up in war-torn Sudan, the poverty you endured and your experience as a refugee in Egypt.
32I accept that there is both a foundation and a nexus between your experience of significant childhood deprivation and trauma, abuse of alcohol, poor mental health and the current offending. As a result, I find that your moral culpability should be somewhat reduced. I also consider that these same factors would have been in operation at the time of your prior matters and therefore put your prior convictions in context. It is still my view that there is a place for general and specific deterrence in your case although it is reduced as a result of my findings pursuant to the Bugmy principles.
Mental health
33A psychiatric report from Dr Fiona Best was tendered upon your plea.[3] Dr Best confirmed that in 2013 you were diagnosed with bipolar disorder and that since then you have taken antipsychotic medication. Dr Best also confirmed that you were hospitalised at the Werribee Mercy Hospital acute psychiatric in-patient unit for one month in August 2021 and that you were discharged to the community mental health team at Saltwater Clinic. It would appear, though, that you have been compliant with treatment and have now been discharged back to the care of your GP.
[3] Exhibit 2 on the Plea.
34At the time of her assessment, Dr Best was of the view that you displayed no evidence of major mental illness. In her view, your presentation may be secondary to partially treated mental illness. With regard to the offending, it was Dr Best’s opinion that given your intoxication at the time, being too intoxicated to be interviewed, it is likely to have impaired your impulse control, frustration tolerance and your capacity to exercise appropriate judgment and make calm and rational decisions and think clearly at the time of the offending. I accept this would have influenced your poor decision-making on this occasion.
Delay
35It has now been two years since the offending occurred, which is a substantial period of time. This matter has been hanging over your head, and I have no doubt it has had a negative impact on you and has prevented you from moving forward with your life. It would likely have caused you a period of instability and uncertainty.
Parity
36On 30 September 2021, I sentenced your co-offender, Abol Yak, to a two-year Community Correction Order without conviction. One of the conditions on the order was to perform 200 hours of unpaid community work. There were other therapeutic special conditions. Ms Yak pleaded guilty to a total of five offences, including the charge of aggravated burglary. Her offending was spread over two nights on 11 October 2019 and 14 November 2019 and involved the same victim. It is clear Ms Yak was the primary offender.
37There are clear differences between the offending engaged in by you and that engaged in by Ms Yak. There are also significant differences in the personal circumstances of you both. I have, as far as possible, kept the concept of parity in mind when formulating an appropriate sentence for you.
Sentencing
38I consider that the relevant sentencing principles that must be applied in your case are general deterrence - albeit moderated to a degree - denunciation, protection of the community and just punishment. I must also be mindful of the principles of parsimony and proportionality. I am of the view that community protection in your case can best be achieved by your rehabilitation.
39I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act[4] where relevant to your case. I have also taken into account as far as possible the current sentencing practices for the offences, particularly the charge of aggravated burglary, to which you have pleaded guilty.
[4]Sentencing Act 1991 (Vic).
Disposition
40You have been assessed as suitable for a Community Correction Order, and in these circumstances, on the charge of aggravated burglary, you will be placed on a Community Correction Order for a period of 12 months.
41The conditions of this Community Correction Order include:
(a)assessment and treatment for alcohol and drug use;
(b)assessment and treatment for mental health issues;
(c)supervision by the Office of Corrections; and
(d)judicial monitoring. The first of these judicial monitoring sessions will take place on 12 August 2022 at 10.30 am, and if necessary, we can do that online.
42In addition to the conditions I have imposed, there are standard conditions to a Community Correction Order. The first and foremost of these is that you must not commit any other offences which could be punished by imprisonment during the one-year period. You must also report within two working days to the Melbourne Justice Service Centre, which is at 50 Franklin Street, Melbourne, Victoria, 3000.
43You are required to advise your supervising corrections officer of any change of address of where you are living and working. This must be done within two clear working days. It is a term of all Community Correction Orders that you must submit to visits as directed and you must obey all the instructions and directions of the community correction officer. You cannot leave the state of Victoria without prior permission.
44Ms Neil, I must inform you that if you breach the order by reoffending or you do not comply with the conditions I have imposed, you will be charged with a contravention of the order and you will be brought back before me. It may be that I am required to resentence you for the original charges. Ms Neil, do you consent to that order being made?
45OFFENDER: Yes, Your Honour.
46HER HONOUR: All right, all right. Is there anything, Mr Gray or Mr Barrera, that I have omitted? Anything else?
47MR GRAY: Not from the prosecution's perspective, Your Honour. I am just thinking about a 6AAA at the moment.
48HER HONOUR: I do not know that I need to do one, hang on.
49MR BARRERA: In my submission, it is not required, Your Honour.
50HER HONOUR: Yes. It is a CCO under two years, is it not, so - - -
51MR BARRERA: Yes, Your Honour.
52MR BARRERA: Your Honour, I may have missed it, as to whether it was with or without conviction.
53HER HONOUR: It is with conviction, yes.
54MR BARRERA: As Your Honour pleases.
55HER HONOUR: Yes, I do not think I did say that, so thanks for pointing that out. So, yes - no, it is imposed with conviction.
56MR BARRERA: As Your Honour pleases.
57HER HONOUR: All right, all right. So I think that we are able to, in these COVID times, accept an electronic or some kind of a signature.
58HER HONOUR: So the verbal consent that Ms Neil has given is enough, I think, for our purposes. So, Ms Neil, you need to report to the Melbourne Justice - hang on, I will find it again. So Melbourne Justice Service Centre at 50 Franklin Street within two working days. So, Mr Barrera, you will be able to help with that.
59MR BARRERA: Yes, Your Honour, I will.
60HER HONOUR: Yes, fantastic, thank you, all right. I wish you all the best, Ms Neil, and I look forward to seeing you in August and hearing that you are doing really well.
61OFFENDER: Yes, Your Honour.
62HER HONOUR: Because I am quite hopeful that you will be able to do this order no problem at all.
63OFFENDER: Thanks, Your Honour.
64HER HONOUR: All right, yes, all right. So we will get the order done up and we will email it to both you, Mr Gray, and you, Mr Barrera, so that you have got a copy.
65MR GRAY: Thank you, Your Honour.
66MR BARRERA: I am grateful, Your Honour.
67MR GRAY: Thank you.
68HER HONOUR: All right. So we will adjourn.
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