Director of Public Prosecutions v Riak

[2023] VCC 70

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-21-02299

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADIU RIAK

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	30 and 31 January 2023
DATE OF SENTENCE:	31 January 2023
CASE MAY BE CITED AS:	DPP v Riak
MEDIUM NEUTRAL CITATION:	[2023] VCC 70

REASONS FOR SENTENCE

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Subject:Plea – sentencing

Catchwords:            Robbery - prohibited person possess imitation firearm

Legislation Cited:    

Cases Cited:

Sentence:152 days' imprisonment (= time served) + 18-month Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr C. Thomson	Office of Public Prosecutions
For the Accused	Mr J. Lavery	Greg Thomas Barrister & Solicitor

HIS HONOUR:

1Adiu Riak, you have pleaded guilty to an indictment charging you with robbery, for which the maximum penalty is 15 years, and to an offence of being a prohibited person in possession of an imitation firearm, for which the maximum term of imprisonment is 10 years.  Some related summary offences with which you had been charged and which have been transferred to this court have been withdrawn as a result of your pleas of guilty.

2You have also admitted a prior criminal history which shows that you have five convictions for offences of dishonesty and for violence in the form of affray and aggravated burglary, albeit that some of those offences were in the Children's Court. 

3The prosecution has also relied upon victim impact statements from the two occupants of the car the subject of the robbery, which I take into account. 

4The prosecution tendered and relied upon a plea opening dated 27 January 2023.  It shows that on 19 March 2021, at about 6.45 pm, your two victims were sitting in the driver's seat and passenger seat of a Honda motor vehicle parked in a carpark off Irving Street, next to the Footscray train station.

5They were apparently waiting for a friend who was to go to basketball with them at the Melbourne Sports and Aquatic Centre.  At about 6.50 pm, a BMW owned by your sister was reverse-parked next to the Honda motor vehicle.  In that car was yourself and Messrs Francis Luik, Majok Deng Majok and Shafi Muvunyi.  In the next few minutes, Mr Luik and Mr Muvunyi, along with Mr Majok, engaged in an armed robbery of the two occupants of the Honda, with Mr Luik and Mr Muvunyi demanding money and other property from the two victims.  Mr Luik was brandishing a knife and Mr Majok was in possession of an imitation firearm.

6The occupants of the Honda were put in fear.  During that process you were seen to be standing in the vicinity of the two vehicles, apparently talking on your mobile phone.  The case against you is that you were acting as a lookout whilst the other three committed the armed robbery upon the two occupants of the Honda.  Some money, shoes, a mobile phone and other items of property were stolen in the course of that armed robbery.  You were charged only with robbery and you have pleaded guilty to that offence.

7You were arrested not long afterwards.  You were interviewed by police and were less than frank.  During the course of the search of your home an imitation firearm was found, which is the subject of Charge 2 on the indictment. 

8Both of those are serious offences, as is evident from the maximum terms of imprisonment of 15 years and 10 years respectively.  The victim impact statements show that both victims were put in fear and it is to be expected that there may be ongoing and perhaps long-term psychological consequences as a result of the offending against them. 

9Turning to matters personal to you, I have been greatly assisted by the history which is contained in the psychological evaluation report of Mr Michael Bilyk, a consulting clinical psychologist.  That report is dated 26 February 2021 and was obtained in reference to some previous offending, but sets out some useful history which shows that you were born in 2001 and that you and your family, whilst you were still an infant, were forced to flee South Sudan as a result of the civil war being conducted in that country and you made your way with your family to Egypt.  That was likely to have been a difficult journey on foot and by bus.

10In Egypt you and your family were forced to reside in a refugee camp for a number of years in poor conditions and with the family being exposed to violence.  It is not clear to me exactly which year you came to Australia: there seems to be some issue between the two reports as to whether you came to Australia in 2006 or 2008, but you came to Australia at a young age, along with your mother and sister.  Your older sisters and your father had come to Australia earlier.  You settled in Queensland.  Your father and other siblings had settled in Victoria.

11You had to learn English, as no doubt other members of your family did, and eventually you relocated to Victoria at the age of about 14 to be closer to your father, who had by then re-partnered.  You then hardly knew your father, but it seems you have established a relationship with him.  You commenced school in Queensland and completed secondary school in Victoria, having difficulty, initially at least, in adjusting to the use of English.  It seems that you did well enough at school and you have become literate in English.

12After you finished secondary school you wanted to take a break. You have not been employed for any great length of time, although you did have some employment as a bricklayer and are involved in basketball on a regular basis.  You reported using alcohol from about the age of 17 and became a binge drinker most weekends with your peers.  You smoked cannabis daily from about the age of 15, ceasing in about September 2020.

13You have also dabbled in Xanax from about the age of 17 until October 2020.  All of that has to be considered against the background of your criminal history and with the thrust of the plea on your behalf.  The report of Mr Jacka suggests that since September of last year you have made an effort to focus on rehabilitation.  Mr Jacka's report indicates that you attended six sessions with him between November of last year and 9 January this year and that you are working in the event hire business with your younger brother and older sister on a casual basis.  I quote the penultimate paragraph of Mr Jacka's report where he says:

'Mr Riak has impressed as a sincere and grounded young man who lost direction but has made a genuine effort to demonstrate his good character and turn his life around.  He appears to have support and guidance from a good family and I am confident he will not appear in court again on fresh charges'.

14You do not have any mental illness or any psychological impairment of any note.  There is at least a reasonable prospect that you now have your drug use and your alcohol use under control.  That is not to say that you are out of the woods, but you are a young man who has now turned 21 embarking on adult life, after a period where you have been too heavily influenced by a negative peer group.

15As a young person, rehabilitation is still a very important consideration in sentencing and that is so in this case, even where the offending is of a fairly serious nature.  It needs to be given considerable weight.  It seems to me that there is a reasonable to good prospect of your rehabilitating and being able to stay out of trouble.  It was put on your behalf that the deprivations of your childhood enliven Bugmy principles.

16I am not sure whether I need to put a label on deprivations which you have suffered as a result of being born into a war-torn country and having to endure something like four or five years of a refugee camp in Egypt with no certain future and your father having already come to Australia.  It is really impossible to assess the degree of deprivation that that represents.  It is, I think, to be coupled with the difficulties that all migrants encounter who have little or no English who come to an English-speaking country.  They also have considerable difficulties in settling in to the ‘western’ way of life.

17However, whether the principles arising from the case of Bugmy strictly apply or not, it seems to me that all of that is calculated to have produced a very unsettled and troubled early childhood.  I think it is relevant to take that into account and indeed Mr Thomson, on behalf of the Crown, very fairly did not seek to persuade me otherwise.  I think it is important to consider those factors in assessing your prospects of rehabilitation and explaining, to some extent, the refuge you may have found in negative peers during your mid to late teens.

18You have an unfortunate criminal record, but I have seen many worse, including that of your co-offender Mr Majok, and I think you are also to be distinguished from Mr Luik, who I will sentence in the near future, in that he pleaded guilty to an offence of armed robbery, as distinct from robbery. 

19Balancing all the relevant sentencing considerations, it is still necessary for you to be punished for what you did and still necessary for the court to denounce conduct of the kind reflected in your criminal behaviour in relation to these charges and to ensure that the principle of general deterrence is given proper weight.  Individual deterrence is still relevant, but it is necessary, I think, to send a message for offences of robbery and firearm offences of the kind to which you pleaded guilty.

20Taking into account your prospects of rehabilitation and your age, I am inclined to the relatively lenient sentence that I have in mind.  You have already served 152 days in custody awaiting your plea hearing and I propose in those circumstances, in respect of each of the two offences, to sentence you to a term of imprisonment the combined effect of which will be that the period of your term of imprisonment coincides with the 152 days that you have been in custody for these matters.

21On Charge 1 of robbery, I sentence you to imprisonment for a term of 152 days. 

22On Charge 2 of being a prohibited person in possession of an imitation firearm, I sentence you to imprisonment for a period of 50 days. 

23Those two sentences will run concurrently, and on both charges I propose to impose a community corrections order.  I cannot do that unless you consent to it.  I think you have already discussed the matter with your counsel and I am anticipating that you will consent, but I need to just go through the terms and conditions of the order.

24The order will be for a period of 18 months, beginning today, and will end on 30 July 2024.  You will be required to attend the Werribee Community Correctional Services at 87 Synott Street Werribee Victoria 3030, within two clear working days after the commencement of the order, that is, by 4 pm on Thursday, 2 February 2023.  You are familiar with the Werribee Community Correctional Services because, I understand, you are already on an order which is based at that premises.

25As with all community correction orders, they come with what are known as mandatory terms, that is, they all contain these core terms:

·     you must not commit another offence for which you could be imprisoned during the time that the order is in force; 

·     you must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations, which means not turning up drunk at appointments or for your unpaid work component; 

·     you must report to and receive visits from the Secretary or his or her delegate; 

·     you must report to the Community Corrections Centre to which I have referred within two clear working days of the order starting; 

·     you must let a community corrections order officer know within two clear working days of you changing your address or job;

·     you must not leave Victoria without first getting permission to do so from the Secretary or his or her delegate; and

·     you must obey all lawful instructions from, and directions of, the Secretary of the department or his or her delegate.

26There are some further conditions which apply in addition to those mandatory terms:

·     you must perform 100 hours of unpaid community work over the period of 18 months during which the order is in force, as directed by the Regional Manager - if you fail to comply with this order, the Secretary of the Department of Justice, or his or her delegate, may give you a direction to perform additional hours of unpaid community work in accordance with the Sentencing Act;

·     you must be under the supervision of a community corrections officer for the period of 18 months during which the order is in force;

·     you must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager;

·     you must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the Regional Manager;

·     you must participate in programs and/or courses that address factors relating to the offending as directed by the Regional Manager;

·     you must not contact or associate with Majok Majok, Francis Luik or Shafi Muvunyi for the full period of 18 months during which the order is in force;

·     you must reappear at this court for a review of your compliance with the order as directed by the court and you must attend for such a review on
23 May 2023 at 9.30 am in this court. 

27I order that 50 hours of treatment and rehabilitation satisfactorily undertaken by you are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.

28Now, do you understand those terms and conditions?

29OFFENDER:  Yeah, I do.

30HIS HONOUR:  All right.  Now I must warn you that if you fail to comply with any of those terms or conditions, including committing another offence during the period of the order, you will be brought back to this court, probably before me, and you are liable to be resentenced for these offences.  For merely committing a breach of the terms of the order you would be up for a maximum term of imprisonment of three months for the breach alone, in addition to any further term of imprisonment you may be required to serve for any further offending that put you in breach. 

31If you have any difficulty with compliance with the terms of the order, you need to report that to your regional manager and you also could obtain advice from a solicitor which might lead you to come back to this court and seek a variation of the order.  Do you understand?

32OFFENDER:  Yeah.

33HIS HONOUR:  All right.  So do not just let something drift.  If you find that you are having difficulty or finding it impossible to comply with the terms of the order, if something crops up like a serious illness or a bad injury, then it is necessary to notify certainly the regional manager first, but also to obtain some advice about coming back to this court to seek a variation of the order. 

34Do you understand what I have just said to you about the consequences of breaching the order?

35OFFENDER:  Yeah.

36HIS HONOUR:  All right.  It is important because frequently, people do breach the order and they are brought back to this court and sometimes they are resentenced for the original offences, which would almost certainly be a lengthier term of imprisonment to that which you have already served.  In those circumstances I will ask Mr Lavery to accompany my associate to ensure that your client recognises what he is signing and ‑ ‑ ‑

37MR LAVERY:  Yes, Your Honour.

38HIS HONOUR:  ‑ ‑ ‑ supervise his signing of the order.

39MR LAVERY:  Yes, Your Honour.

40HIS HONOUR:  Do you agree to all those conditions being made?

41OFFENDER:  Yeah.

42MR THOMSON:  Just one other matter, Your Honour, you need to make a 6AAA declaration.

43HIS HONOUR:  I will do that, yes.  Yes, thank you.  That order will now be signed by me.  The order is now in force. 

44I indicate that but for your pleas of guilty, I would have sentenced you to a term of imprisonment of two years with a non-parole period of 15 months. 

45I declare the 152 days pre-sentence detention as time to be reckoned as served on the total effective sentence of 152 days that I impose for the two offences. 

46I make the forfeiture order in terms of the draft with which I was provided.  Any other matters?

47MR THOMSON:  No, Your Honour.

48MR LAVERY:  No, Your Honour.

49HIS HONOUR:  All right, thank you both.

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