Director of Public Prosecutions v Nhial

[2022] VCC 1718

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

Case No. CR-20-01416

DIRECTOR OF PUBLIC PROSECUTIONS

v

Nyamer NHIAL

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JUDGE:	His Honour Judge Moglia
WHERE HELD:	Melbourne
DATE OF HEARING:	20 September 2022
DATE OF SENTENCE:	11 October 2022
CASE MAY BE CITED AS:	DPP v Nhial
MEDIUM NEUTRAL CITATION:	[2022] VCC 1718

REASONS FOR SENTENCE

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Subject:Criminal Law – Sentence – guilty plea.

Catchwords:              Sentencing – robbery – obtaining property by deception – attempting to obtain property by deception – victim known to offender – relationship  at times intimate – offender intoxicated – attended victim’s residence in company –  assault initiated by others – active participant – robbery of personal items including keys to vehicle – later obtaining of credit cards used to purchase clothing – offending in breach of CCO – substantial and relevant criminal history – refugee from war-torn Sudan at age eight – victim of serious childhood abuse – ongoing victim of family violence – completed prison term during COVID-19 pandemic – totality – utilitarian value of plea – remorse – complex PTSD – significant rehabilitation.

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:Brown (aka Davis) v The Queen [2020] VSCA 60; Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen (2013) 249 CLR 571; Black v The Queen [2022] VSCA 125.

Sentence:Community Correction Order with conviction for 12 months with special conditions; 6AAA: 10 months imprisonment with no parole period in combination with a Community Corrections Order.

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APPEARANCES:	Counsel	Solicitors
For the DPP	A Dickens	OPP
For Accused	J Swiney	James Dowsley & Assoc

HIS HONOUR:

1Nyamer Nhial, you have pleaded guilty to robbery (maximum penalty 15 years), theft (maximum penalty 10 years), obtaining property by deception (maximum penalty 10 years) and attempting to obtain property by deception (maximum penalty 5 years) all occurring on 15 July 2019.

2The agreed basis of your guilty pleas is set out in the summary of prosecution opening dated 19 September 2022. You are to be sentenced based on those facts, which I summarise and make findings about as follows.

3For a number of years, you have enjoyed a friendship with Leszek Koper. At times, the relationship was intimate.

4On 14 July 2019, you contacted him asking for assistance to move furniture, but he indicated he was unable to help.

5The next day on 15 July 2019, at about 10 am you called him again asking to visit, but he said he didn’t have time for you that day.  You arrived at his home at about 11 am, regardless, with two men and another woman.  He answered the door, saw you and soon after, you all entered.  It is not alleged against you that there was any wrongdoing by you at that point.

6Once inside, however, one of the men took keys from Mr Koper’s kitchen bench and someone told him to be quiet when he challenged the man.  Both men then pushed and punched him, forcing him to the floor where they continued to assault him.

7One of the men took keys to an Isuzu utility from Mr Koper’s pocket and you took his mobile phone from another pocket.  Someone took his watch from his wrist.  This is the basis for Charge 1, robbery.

8One of the men and the other woman left and drove away in Mr Koper’s utility.  You are not alleged to have participated in this theft of the vehicle and it was recovered a few days later on 21 July 2019.

9Having then run from the house and later meeting up with those who took the vehicle, you came into possession of goods that were in the vehicle, namely Mr Koper’s wallet containing credit cards, and a digital camera.  This is the basis of Charge 2, theft.

10Later that same day, you and the others then used Mr Koper’s credit card at Dandenong Plaza to buy clothes and a bag at Rebel Sport.  This is the basis of Charge 3, obtaining property by deception.  You then used a card to buy clothes at Foot Locker.  This is the basis for Charge 4, obtaining property by deception.  The total value of the purchases was $174.99.

11You then attempted to buy further items at Foot Locker, however, by this time Mr Koper had stopped further account activity.  This is the basis for Charge 5, attempting to obtain property by deception.  The value of the attempted purchase was $219.

12Police arrested you on 17 August 2019 and questioned you about these events.  You were remanded in custody and ultimately granted bail on 15 December 2020, having also served a 14 month sentence on other matters.

13

In the matter currently before this court, you were originally charged with more serious offences, which you disputed.  You conducted a contested committal during which Mr Koper and other witnesses were  

cross-examined on 29 October 2020.  The matter was listed for trial in July 2022, however it settled prior to the trial commencing.  While the settlement came late, I regard the plea as demonstrating a willingness to facilitate justice, given the withdrawal of the more serious allegations.

14Mr Koper has not provided a victim impact statement.  I find, however, that the events of that day were likely to have been traumatic from his point of view and likely to have resulted in ongoing emotional if not psychological harm.  A violent robbery inside a victim’s home strikes at the heart of something our community holds dear – everyone is entitled to be and feel safe in their home.  Your conduct also breached the trust between you and a close friend, and I expect that damage will be permanent.  You should be ashamed, and I accept that you are.

15At the time you were the subject of a community correction order imposed at Sunshine Magistrates’ Court on 1 February 2019, which makes this offending more serious and was no doubt partly the basis for your 14 month imprisonment.

16The offences for which you were sentenced to that 14 months occurred on 16 August 2019, soon after this incident with Mr Kopek.  You will not be punished again for those matters, however, they are relevant to my assessment of your prospects of rehabilitation, the need for specific deterrence and protecting the community.  

17On that day, you were part of a group who assaulted others on the street near the Richmond flats.  On 17 August 2019, you engaged in a violent robbery of another woman in one of those flats.  You were described as being an active participant in the assault and the robbery as well as being intoxicated at the time.

18Importantly, I note that the 14 months sentence was imposed for similar offending, during the same few weeks, while you were hanging around with a group of violent men and beset by the effects of alcohol – serious drinking, when you would drink until you blacked out.  It is unfortunate that all the charges relating to those few weeks in July and August 2019 were not able to be dealt with together.  I note that the charges in this matter, as it has been settled, could all have been heard by a Magistrate.  I find that had they all been heard together, there would have been a considerable degree of concurrency between the sentences in accordance with the totality principle.

19Be that as it may, you have now served a substantial sentence and a very significant proportion of that time in prison during the COVID-19 pandemic.  This has rendered your time in custody more burdensome.  You have been subjected to 23-hour lockdowns, restricted movements, reduced access to rehabilitative and vocational programs, and limited access to psychological treatment.  You had no in-person contact with your family.  I will moderate your sentence accordingly.[1]

[1] Brown (aka Davis) v The Queen [2020] VSCA 60, [48].

20Your time in custody was lengthy and it saw you at your lowest.  You made an attempt on your own life and while you were removed from your children, you later found that your daughter was seriously abused by a family member.  I accept that your time in custody has and will continue to deter you from offending again.

21Having been released and still at a time when trials were regularly being adjourned due to the COVID-19, you pleaded guilty when the work of the courts was under increased strain leading to lengthy delays.  In this regard, your plea carries a greater utilitarian benefit and must lead to an actual and palpable amelioration of sentence.[2]

[2] Worboyes v The Queen [2021] VSCA 169

22Your plea demonstrates your acceptance of responsibility for what you have done and your willingness to help the justice system to do its work without the delay, expense, and inconvenience of a trial.  Saving Mr Koper from having to give evidence again is to your credit.

23I find that you are genuinely sorry for what you did.  You told an assessor in preparation for your plea hearing that, ‘what happened to him was really bad… no-one should go through that – not in his home...’.[3] Further, you have recently experienced the trauma of being assaulted in your own home and the torment of your young daughter being mistreated in a similar setting.  I accept that those memories will serve as ongoing reminders of the harm you caused Mr Koper by your own misconduct on this occasion.

[3] Owens report at [82], [95], [109]; see also McLaren report at p 5 para 1-2

Personal circumstances

24I make the following observations about your background, which the prosecution did not dispute.

25You are now 28 years old and have three children at home, aged 11, five and five months.  Since your release from prison in December 2020, you began a new relationship with a man you described as a ‘good person’, the father of your baby.  Having regained day to day care of your children, you are in the process of moving to a new home where you will continue your new start.

26You were born in war-torn Sudan but spent your early years in Egypt as a refugee with your parents and siblings.  There, you were surrounded by street violence but also violence during curfew in the home with beatings by your alcoholic father and brother.  At school, you were abused by an older boy.

27Your family came to Australia when you were aged eight.  The country was new, but the violence at home was unrelenting.  You suffered panic attacks and after calls to the ambulance and police, child protective services intervened.  At 10 years of age, you were removed from home and during the next six years you moved between foster care, your family and departmental residential care.  You made it to Year 8 at school.

28At 16, you became pregnant to a man who abused you emotionally and financially.  After returning to your family, the violence there continued, resulting in you moving between friends’ homes and refuges while your daughter remained with your mother.  At 23 you had your son, however he was removed from you and placed with your mother due to your chaotic circumstances involving anti-social peers, alcohol, and other drugs.  Your parents finally separated when you were 25, the year in which this offending occurred.

29Unsurprisingly, your work history is negligible, but your court history is substantial.  Most recently, you worked for a few months in November 2021-February 2022 in food production.  Your prior offending reveals mainly street level offending consistent with alcohol and drug use.  This matter is the most serious.

30You started smoking and drinking when you were 13, followed by cannabis in your mid-teens, amphetamine, ‘ice’ and cocaine.  In 2019, you were inhaling ice, cocaine and taking multiple tablets of MDMA as well as drinking.  It seems, however, that you have stayed away from them all since your release from custody some 22 months ago.  This would seem to be supported by the observations of the forensic psychiatrist and the neuropsychologist who have assessed you and your aptitude and ability to work prior to the birth of your youngest.

31Neuropsychologist Anna McLaren assessed you and provided a report dated 8 July 2022 (Exhibit 1).  You were cooperative and engaged, although lethargic, slow and vague.  You reported being ‘mentally exhausted’.  Your test results were invalid due to reduced effort.

32Consultant Psychiatrist Dr Nicholas Owens assessed you on 27 July 2022 and provided a report dated 11 August 2022 (Exhibit 2).  He found you to be cooperative although generally flat.  He confirms your diagnosis of complex PTSD although he could not say there was any clear connection between your mental illness and the offending.[4]  However, he said you have signs of horrific trauma and harm suffered throughout your life from an early age.  This has had profound consequences for your mental health.  In the absence of effective psychiatric and psychological treatment you have developed the major problems with substance use that have likely been significant factors in your offending history.[5]

[4] Owens report at [109]

[5] Owens report at [104]

33I accept the opinions of Dr Owens.

34Consistent with your reported progress towards remaining abstinent and caring for your children, Amanda Kinney of Windermere Child and Family Services supported you in Court and confirmed in her letter of 16 September 2022 (Exhibit 3) that you have engaged well with case management and are working actively towards changing your life.  She also confirmed the struggle you have had in recent months with violence perpetrated by your brothers, leading to your involvement with family violence services.

35In all those circumstances, I find you to have grasped the opportunity since your release from prison to make a new life and to have sought out the help you need to do so.  This is a major ongoing achievement of which you can be proud.

36While the objective gravity of this offending is concerning, it is now three years ago and represented a time when you were quite a different person -  before having served a significant term in prison, which is now complete.

37If sentenced soon after the offences, general deterrence, specific deterrence, denunciation, and just punishment, in the absence of any rehabilitation, would likely have called for immediate imprisonment.

38However, given the completion of the 14 month sentence, the consequent application of the totality principle, the extent of your rehabilitation you have achieved over what is now an extended period and due consideration of the principles in Bugmy’s case,[6] I agree with the parties that a community correction order is the appropriate sentence in this case.

[6] Bugmy v The Queen (2013) 249 CLR 571; see also Black v The Queen [2022] VSCA 125

39Such an order in these circumstances, meets all of the sentencing principles in my view and is likely to be in the interests of both you and the community at large.

40On all of the charges, I impose a single community correction order with conviction for 12 months.  In addition to the core conditions, I impose the following conditions:

(a)   You are to be supervised;

(b)   You are to cooperate with assessment and engage in treatment as directed for alcohol and drug use and in support of your mental health;

(c)   You must appear before me for judicial monitoring on 15 December 2022 at 12.30 pm.

41In accordance with section 6AAA of the Sentencing Act 1991, but for your guilty plea I would have imposed 10 months' imprisonment in combination with a community correction order.

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