Director of Public Prosecutions v Ruot
[2022] VCC 1688
•29 September 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR-20-01383
CR-20-01384
CR-21-01828
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MAMUSH RUOT TANG |
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JUDGE: | HER HONOUR JUDGE SYME | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 July 2022, 4 August 2022 | |
DATE OF SENTENCE: | 29 September 2022 | |
CASE MAY BE CITED AS: | DPP v Ruot | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1688 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Armed robbery – intentionally causing injury – theft – conduct endangering person – observing soft targets – post traumatic stress disorder - risk of indefinite detention
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Drugs, Poisons and Controlled Substances Act 1981 (Vic).
Cases Cited: Bugmy v R (2013) 302 ALR 192; R v Verdins [2007] VSCA 102 & Muldrock v The Queen [2011] HCA 39.
Sentence: 7 years and 9 months imprisonment with a non-parole period of 4 years and 3 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Tatas | Ms S. Wilson-Short |
| For the Accused | Ms K. Mildenhall | Ms A. Addamo |
HER HONOUR:
1 In this matter, Mr Mamush Ruot Tang has pleaded guilty to 15 separate charges across two plea indictments. The offending spans between 25 June 2019 and 29 July 2019. The first indictment, Indictment No.C2104121.2, contains the following offences:
- four charges of theft, for which the maximum penalty is 10 years' imprisonment for each;
- two charges of armed robbery, that are Charges 2 and 5, for which the maximum penalty is 25 years' imprisonment;
- one charge of common assault, which is Charge 3 on the indictment, for which the maximum penalty is five years' imprisonment;
- four charges of handling stolen goods, Charges 4, 7, 9 and 14, for which the maximum penalty is 15 years' imprisonment;
- one charge of attempted armed robbery, which is Charge 11 on the indictment, for which the maximum penalty is 20 years' imprisonment;
- one charge of intentionally causing injury, Charge 12 on the indictment, for which the maximum penalty is 10 years' imprisonment; and
- one charge of conduct endangering person, Charge 13 on that indictment, for which the maximum penalty is five years' imprisonment.
2 On the second indictment, K11982026, there is one charge of possession of a drug of dependence in relation to cannabis, for which the maximum penalty is five penalty units.
3 Mr Ruot Tang was arraigned on his adjusted birth date, which is now recognised as being 1 January 1996. You were 23 years old at the time of the offending and you are now 26 years of age.
4 I note that you have been on remand for more than three years in relation to this matter since your arrest on 24 July 2019. I will let you know now, sir, that the sentence imposed today will take those days in custody into account in a backdated sense.
History
5 At the time of the offending, it is noted that you had no fixed place of address and that you were unemployed. You have a significant prior criminal record. Your previous convictions commence with a series of offences which came before the Children's Court in 2014 with offending relating to recklessly causing injury, robbery, aggravated burglary and other similar matters. You were dealt with in the Children's Court by way of a Youth Justice Detention Order and it is noted that you were approximately 17 or 18 at the time of that offending.
6 In 2015, you were again before the court on a series of similar offences, including burglary, theft and aggravated burglary. In several appearances before the Magistrates' Court in 2015 and 2016, you were ultimately sentenced to a further period in a Youth Training Centre. You were also sentenced to a period of custody of 13 months, together with a community corrections order in April 2018.Much of that time was noted as time served.
7 Lastly, in May 2018, a further three months was imposed. I am referring, in particular, to the sequences on your criminal record. Further information in relation to the 2018 sentences will be referred to later as it becomes relevant.
Circumstances of the present offending
8 The current offending occurred over approximately one month. Many of the offences were captured on CCTV. Your identification was ultimately assisted by the CCTV and by various stolen numberplates found in the stolen car you were driving during your final apprehension. The CCTV of the robbery offences was tendered on the previous sentencing proceedings - and I now have a properly edited copy. It provides detail of your behaviour towards the victims.
9
In relation to the facts for each particular charge, I am going to summarise them sequentially. Incident 1 occurred on 25 June 2019 between
Monday 24 June and the next day. A 2017 white Subaru Forester wagon, which was originally registration number JM2474, was stolen. This relates to Charge 1, theft of a motor vehicle.
10 On 29 June 2019, Kiara Ryan noticed the rear numberplate missing from her vehicle, registration no. 1BD3AM. The numberplate was located in your possession on arrest. That relates to Charge 9, handling stolen goods.
11
On 29 June 2019, Mr Michael Weng, who is the owner of the
Food Store Supermarket at Pascoe Vale Road in Moonee Ponds, was at his work. At approximately 11.15 am you entered the Food Store Supermarket, loitered in the store for a brief period, and left. At approximately 12.22 pm you re-entered the store armed with a tyre lever and holding a black bag. You jumped the service counter and grabbed Mr Weng by his shirt, threw him against the shelving, pinned him against the shelf and brandished the tyre lever. You demanded money. Mr Weng pointed to the cash register. You gestured aggressively for Mr Weng to fill it with cash.
12 During the next few minutes, while Mr Weng was attempting to comply, you threatened and pushed him aggressively several times and hit him on the head with the tyre lever although not sufficiently hard enough to cause injury. My observations of the CCTV are that you were agitated, aggressive and that Mr Weng complied with all of your demands.
13 During the course of that robbery, another person entered the store. He ran next door seeking assistance. Eventually, Mr Weng finished loading the black bag and while you were distracted grabbing cigarettes, he ran from the store. You left with the black bag. The property stolen was approximately $1,000.00 in cash and about 15 packets of cigarettes. This offending relates to Charge 2, the armed robbery, and Charge 3, the common assault. That offence was captured on CCTV from inside the Food Store.
14 On 29 June 2019, Elizabeth Hayes noticed the front registration number of her car, UXH176, was missing and that a new numberplate, JM2474, which was originally from the Subaru Forester vehicle, was attached. This relates to Charge 4, handling stolen goods.
15 The next incident, on 5 July 2019, a person by the name of Yang Hong was working alone in her milk bar at Toorak Road, Camberwell. At approximately 4.25 pm, you entered holding a black bag and a tyre lever. You walked behind the counter and stated, 'Give me the money'. Hong complied and placed the contents of the till inside the bag. You moved closer to her and demanded more. She grabbed her wallet and took cash, but you threatened her with the tyre iron and grabbed hold of her arm. In fear, Hong handed over the entire wallet.
16 She then managed to run from the milk bar where she contacted her husband and told him what had occurred. You left shortly after by exiting through the rear of the store. Hong states that approximately $200.00 in cash was stolen from the register, and that $500.00 cash and personal cards taken from her stolen wallet. This relates to Charge 5 on the indictment, armed robbery. This offence was also captured on CCTV.
17 The next incident, incident 4, on 6 July 2019 at approximately 7.26pm, the stolen Subaru Forester that I referred to in Charge 1, bearing stolen registration plates YEC424, entered the Metro service station at Sunshine. You exited the vehicle and filled it up with $64.00 of petrol. You left without any attempt to pay. This relates to Charge 6, theft, and Charge 7, handling stolen goods. Again, this offence was captured on CCTV and the plates YEC424 were located in the stolen Subaru Forester at the time of your arrest a few weeks later.
18 The next incident was on 8 July 2019. At approximately 7.53pm, the stolen Subaru from Charge 1, bearing the stolen registration plates that I have referred to earlier, entered the 7-Eleven situated at Heidelberg. You exited the vehicle, filled it up with $40.00 of petrol and left without paying. This relates to Charge 8, theft, and Charge 9, handling stolen goods. Again, this incident was captured on CCTV. Again, the stolen registration plates, 1BD3AM, were located in the Subaru Forester at the time of your arrest.
19 The next incident was on 10 July 2019. At approximately 5.38am, the same Subaru Forester from Charge 1, bearing stolen registration plates, YEC424, which is Charge 7, entered the Caltex situated at Brunswick East. You exited the vehicle, filled it up with $60.00 worth of petrol and left without paying. That incident is Charge 10, theft. These offences were captured on CCTV.
20 Shortly afterwards, at the Food Plus Fuel situated at Brunswick East, - a Mr Jazoor was working alone. At approximately 6.01 pm, you entered the premises, selected an item and placed the items on the service counter. You waited for another customer to leave the store and then walked behind the service desk and produced a tyre lever from inside your black bag. Jazoor raised his hands in the air in a defensive manner. You stood over him, intimidated him, pointed at the till[1] and said ‘open the till'.
21 Jazoor attempted to push the emergency button under the counter, resulting in you punching him in the stomach. You held Jazoor's head and struck him with the tyre lever to the mouth. As a result of you hitting him, he suffered two damaged teeth and a laceration to his upper lip. You demanded, again, that he open the till before demanding that you be told where the boss keeps the money. Mr Jazoor complied. This event relates to Charge 11, attempted armed robbery and Charge 2, intentionally causing injury.
22 Mr Jazoor then sought help. Witnesses attempted to confront you. You ran, leaving your black bag at the service counter and, in the process, dropped a grey beanie. Inside the bag contained the tyre lever used by you and cash that you had removed from the till. The sum of in excess of $1,700. The offence was captured on CCTV from inside that shop and that, and forensic analysis, resulted in your identification.
23 The next incident occurred on 29 July 2019 and relates to events shortly prior to your arrest. At approximately 4.06 am that day, Acting Sergeant Michael Howard observed the Subaru Forester, now bearing plate number 1AP1ZC - (Charge No.14) - travelling on Bell Street, Preston.
24
The Forester was travelling at approximately
70 to 80 kilometres per hour on the wrong side of the road.
Ultimately, Police Air Wing responded. Acting Sergeant Howard later observed your vehicle stationary and subsequently parked behind you in order to speak to you. While that occurred, you accelerated sharply away, causing a minor collision with another civilian vehicle.
25 Other police officers arrived and the vehicle you were driving exited the car park. In doing so, you drove over a retaining wall and your vehicle became partially airborne as it entered St Georges Road. Police Air Wing observed the following matters. You drove the stolen vehicle on the wrong side of St Georges Road for approximately 2 kilometres until the intersection of St Georges Road and Normanby Avenue. There, you drove through a red light and collided with the rear passenger side of another vehicle which was stationary at the lights.
26 The collision caused severe damage to the other vehicle and caused the stolen vehicle you were driving to spin out of control and stop 400 metres south of the intersection. Fortunately, no injuries were sustained by the driver of the other car. This event relates to Charge 13, conduct endangering a person. You decamped and were located by three police officers at Thornbury. After your arrest, the vehicle you were driving was searched. It was discovered to be bearing plates 1AP1ZC. Inside the vehicle were other stolen numberplates as noted above.
27 You were transported to the Heidelberg police station where you were interviewed. You denied all allegations. You were then conveyed to the Melbourne Custody Centre where you were then searched. Police located 1.9 grams of cannabis (Charge 1 on the second indictment) inside your underwear. You were deemed unfit for interview due to your injuries and, as I noted above, you have been in custody since that time.
Objective seriousness
28 It is now the job of the court to assess the objective seriousness of each of these individually serious charges. Although no victim impact statement has been filed, the court is well aware of the serious and often long-term impact on victims who are required, by their employment, to be in = potentially vulnerable situations such as these.
29 In relation to your plea, I note that the plea was entered only after a series of hearings in the Magistrates Court and the County Court. The matter was listed for trial between 2 and 4 March of this year and a plea was entered on 29 July this year. It is not a plea at the earliest available opportunity, however, you are still entitled to some consideration for your plea and the resultant time saved to the administration of justice. There are other important features which will affect the sentence to be imposed, but I acknowledge that you are still entitled to a significant discount for this early plea.
30 In considering the objective seriousness of each offence, it is noted that the use of a tyre iron as a weapon in the charged armed robberies is neither an aggravating or mitigating circumstance. Your use of the weapon on victims who were trying to comply with your demands was, I observe, unnecessarily violent. The act as a whole shows some evidence of planning by the use of false numberplates on stolen cars in order to disguise the fact that the vehicle was stolen or that the same vehicle was being used. Keeping other plates in the car shows a degree of planning and a degree, minor though it is, of sophistication.
31 The causing injury charge reflects a total disregard for the victim and again, unnecessary violence towards a vulnerable employee. Defence counsel conceded that the offending was serious and conceded that much of the offending was against ‘soft targets’. They submitted that the offending was opportunistic.
32 Apart from the degree of planning in the use of false numberplates, there is no particular evidence of targeting vulnerable businesses, perhaps, other than scoping out the business an hour before the second robbery. Nevertheless, the businesses were vulnerable. The use of false numberplates and a stolen vehicle was clearly an attempt at avoiding detection. Your flight from police, notwithstanding what you have told Ms Maynard, was obviously an attempt to avoid arrest.
33 The relatively low reward is not a mitigating matter. There was a risk of injury to the person struck with the tyre lever, although no great damage was reported. The other victim, reflecting Count 12, was not so lucky. The offending occurred over a relatively short period over about a month. There is no dispute that your drug addiction, and your stated need to obtain money for drugs, was a motivation.
34 On assessing the objective seriousness of each of the serious offences, that is, Charges 1, 2, 3, 5, 11 and 12, they are about midrange examples of the offending. The balance of charges are below midrange objective seriousness. I include Charge 13 as being approximately midrange as well.
Personal scircumstance
35 Of considerable significance in the sentencing process is your background and your current presentation. Information provided by way of submissions and psychological assessment tendered on your behalf provides a detailed background which I have read and will take into account.
36
For the record, I note that you were born in South Sudan in the context of a civil war. It is stated that you witnessed multiple horrific events. When
aged 10, you were sponsored to travel to Australia to live with your father and your stepmother. From there, you left home aged approximately 15 and I note there was some involvement with Child Protection Services over time.
37 I am advised that you no longer speak Sudanese, and that you have very little social support from either family or friends. That situation appears to continue while you are in custody, and it appears to be a situation that bedevils you either when you are in custody, or indeed, in the community. It is a sad situation.
38 In relation to your education, you had no formal education prior to arriving in Australia. I am told that your formal education in Australia was interrupted by a number of family moves, intermittent Department of Health and Human Services care and periods spent in Youth Justice Detention.
39 I am told that the longest period that you received education appears to be from about Year 8 to about Year 10 at Eaglehawk Technical School in Bendigo. In relation to your work, I note that you have, at times, worked as a labourer.
40 In relation to your substance abuse, you report that you commenced smoking cannabis at age 11 and commenced ice usage at age 15. At times, have reported daily usage.
41 In looking at the interactions between you and the justice system, there are several matters that need to be observed and taken into account. You were first sentenced in 2011 when it was thought that you were aged 17.[2] You were probably aged 14 at the time. In 2014, aged perhaps around 17 or 18, you were sentenced to an eight-month period in a Youth Detention Centre. In 2015, the Magistrates' Court sentenced you to a further 10 months in a Youth Training Centre followed by a further three months, and then, a further nine months.
42 You were first imprisoned as an adult in 2018. You were 22 years of age and were sentenced to 13 months' imprisonment, mostly time served, followed by a two-year Community Corrections Order (‘CCO’).
43 I note you are a permanent resident of Australia, but not a citizen. In July of 2018, your visa was revoked, and you were placed in immigration detention for nine months before successfully appealing this decision. You were released in the community in approximately April 2018, but by that time, the intended CCO was unable to be properly acted on.
44 Thereafter, your stated intention to reside with your stepmother fell apart very quickly. You then lived in hostels and the like for single nights. I am told you associated with people using drugs and you recommenced using drugs yourself. After the commission of these offences, only a few months after you were released from immigration detention, you were remanded at the end of July 2019, having spent at that time, less than three months in the community. It is noted that within that time, you had little opportunity to settle into the supervision that had been previously ordered by the court.
45 When last before the court, you were facing a breach of that CCO which I note is still to be dealt with, and will be dealt with, by another judge after the sentence in these matters.
46 In relation to your personal circumstances and mental health issues, I have a great deal of information. You stated to the psychological report writer that you do not get involved with the Sudanese community in Melbourne as it reminds you of the past. You describe yourself as ‘drowning yourself’ with drugs. You reported low mood, social withdrawal and a paranoid outlook.
47 You reported that you were hypervigilant, that you found it hard to concentrate and that you frequently fear that the worst will happen. Unsurprisingly, Ms Maynard, the psychologist, noted a stimulant use disorder and cannabis use disorder, both apparently in remission in the controlled environment. Although I note from the Justice Health report, perhaps not always controlled.
48 I have noted the recent affidavit from Justice Health which detailed custodial involvement with medical services for both psychiatric and medical review. I note that from time to time, and again, recently, you have been accepted into the opioid substitution program. I note, from time to time, you have been refused access to the antipsychotic medication, Quetiapine. You have not been diagnosed with any condition necessitating such medication.
49
You were assessed by clinical psychologist, Alison Maynard, in
May 2022. She opined that your trauma symptomology meets the DSM-5 criteria for post-traumatic stress disorder and was likely the result of your childhood experiences. This is not a particularly surprising observation. In addition, the psychologist estimated your cognitive functioning to be 'in the low ranges', but without further comment. The oft undertaken cognitive tests were apparently not administered. It is therefore difficult to know exactly what this observation means.
50 The psychologist also suggested that you met the diagnostic criteria for schizophrenia in that you reported symptoms of psychosis, particularly, hearing voices that told you to do things. You reported to her that you had no control over the voices when they told you what to do. During the last plea hearing on 29 August this year before me, you addressed the court directly and told me that you heard voices telling you what to do, and that in the past, you had been prescribed Seroquel which you indicated that, as far as you were aware, was an antipsychotic, but that you were not taking it.
51 You gave the court an understanding that the voices were directing your actions to some extent. Neither the psychologist, Ms Maynard, nor I, are qualified to diagnose a psychiatric mental illness which the psychologist, however, suggested you may suffer from. I note your counsel no longer relies on those observations of Ms Maynard - her conclusions being based largely on your self-report. However, because of that conclusion, and because of your statements in court, I ordered a further report from a psychiatrist from Forensicare.
52
That report from Dr Triglia, in my view, has far greater weight relating to your mental health presentation than your personal observations to the court and your self-report to the psychologist. The psychiatrist report prepared by
Dr Triglia, dated 22 September 2022, was completed after a review of the background information, and included a review of the psychologist's report alongside a video interview of some 110 minutes. Dr Triglia also had access to previous psychiatric admission notes from 2011 onwards.
53 It is noted that on previous investigation, PTSD symptoms had been noted, but there was no indication of a presentation that included psychotic symptoms. It was noted that some of your presentations were apparently aimed at obtaining the drug Quetiapine and this is referred to in paragraphs 29 to 31 of the doctor's report.
54 It was further reported that you focussed on requests for medication, but your compliance with taking prescribed medication was often poor. It was noted that you are not currently medicated for any psychotic or any other mental illness. No thought disorder was noted in your personal interview. It was also noted that you did not appear to be responding to external stimuli. Justice Health information documents many meetings with mental health nurses with no adverse findings.
55 Dr Triglia opined that you do meet the criteria for post-traumatic stress disorder and that that disorder results in chronic sleep disturbance, flashbacks and anxiety. She did not observe you to be currently depressed, though she indicated that this has been a possibility in the past. She observed that the auditory hallucinations you describe are not typical of a psychotic disorder such as schizophrenia and are more likely associated with some features of your personality structure such as antisocial and/or borderline personality disorder. These disorders, she opined, are possibly a consequence of your childhood experiences.
56 Dr Triglia observed that the offending arose in the context of significant substance abuse and that the offending was committed to obtain funds for drugs. She observed no evidence of psychotic or mood symptoms contributing to the offending. Her report concludes with suggested treatment in custody and suggestions for treatment in the community. I do not propose to detail those recommendations here. I hope, and I trust, that Mr Ruot Tang has or will have a copy of this Forensicare report. Yes. It is, in my view, a very useful and a very thorough report.
Verdins considerations
57 In considering the Verdins principles it was originally submitted that a number of the principles enunciated in Verdins were enlivened. Grounds 1, 3 and 4, which were previously sought to be relied on, are now no longer relied on. To explain, the Verdins considerations arise from a Court of Appeal decision and the Court of Appeal identified six ways that mental impairment may be relevant to offending and, therefore, relevant to sentencing. I do not propose to detail all of the criteria that are no longer relied on, but criteria no.5, that is, the existence of an impairment at the time of sentencing may mean that a specific sentence may weigh more heavily on you, the offender, than it would on a person with normal mental health.
58 These principles may moderate both the minimum term and the head sentence for any sentence to be imposed. They are, however, exceptional and should not be invoked in routine cases. In the context of this case, the prosecution concede, to some extent, that the principle that I have just read out is relevant to your consideration. It was submitted that, to some extent your moral culpability should be reduced as there was, it was thought, a connection between your diagnosis and the offending. That connection was disputed.
59 The report from the qualified psychiatrist has resulted, as I said, in that submission being appropriately and correctly withdrawn now. I was critical of psychologist Maynard's observations even before this psychiatrist report was given. To explain my difficulty with Ms Maynard's observations at the relevant parts - and it is important, I think, to place this on the record perhaps for future consideration - Ms Maynard's report opined that given Mr Ruot Tang's complex mental health conditions[3], his sense of reasoning was highly impaired, as was his judgment and his ability to make rational decisions.
[3] including heightened perception of threat, psychosis and intoxication with methamphetamines.
60 She then made the, in my view, surprising submission for a psychologist's report, that the offending behaviour displayed recklessness, impulsive and irrational behaviour with reduced inhibition, a lack of empathy for victims and around him and a lack of consequential thinking about his actions. It was this statement that the defence originally relied upon when relying on Verdins principle 1. My criticism of Ms Maynard's report was, and remains, that she failed to supply the court with any form of reasoning process for her findings of psychosis. That being said, there was ample evidence, which I have viewed, of a lack of empathy for victims.
61 Ms Maynard failed to supply any reasoning to justify a lack of consequential thinking, especially in the light of Mr Ruot Tang's determined attempt to avoid detection and arrest by police. Unfortunately, I note that Ms Maynard seemed to be adopting an approach of advocating on behalf of Mr Ruot Tang, rather than remaining entirely objective, which is usually required of an expert report writer.
62
The relevant question is whether the evidence establishes that an impairment contributed in any way or made an offender less blameworthy as a result. This is a discretionary assessment with no fixed guidelines, although the
High Court has said that there would usually be a link if the offender is intellectually disabled, but, unfortunately, I do not have information in relation to that. In the context of this case, there is a suggestion of cognitive impairment, but it has not been tested nor defined. If an impairment existed at the time of offending, there must be a realistic connection between the two and any impairment must have caused or contributed or be causally linked to the offending.
63 It is in this context that I look at the PTSD consideration and the principles in another case known as Bugmy - a case concerning the issue of social deprivation and reduced moral culpability. It was submitted that the social deprivation suffered by you, Mr Ruot Tang, during your childhood, attracts the application of these principles, such that your moral culpability for the offending may be reduced. As already noted, you were exposed to a high level of trauma and stressful circumstances when you were a child in South Sudan. There is no dispute that you continue to suffer a complex PTSD as a result.
64 It was further submitted on your behalf that there is a nexus between this childhood deprivation and your offending behaviour. Again, referring to Ms Maynard's report, she observes that your early exposure to trauma impacted your developing nervous system, predisposing you to emotional dysregulation, impulsivity and possibly learning difficulties, although that does not appear to be supported. She observes that, in general, when a child is exposed to trauma and has few personal resources to cope, they often have difficulty with self-soothing or reaching out to others for reassurance and, in turn, turn to substances in attempts to regulate their emotional distress.
65 She drew a conclusion that you had developed schizophrenia at a young age, but again, I observe this is simply not supported by proper investigation. However, her conclusion that your response to a very deprived childhood and background is a relevant consideration and must be considered. It is the case that your PTSD is a significant problem for your personality and your functioning. However, the thorough assessment and conclusions of Dr Triglia puts the offending in a realistic context. It is not accepted that you were experiencing a psychotic episode resulting in the offending. You do not have a diagnosis of schizophrenia. You were offending in order to obtain money for drugs, but it is accepted to some extent that your drug use may well be related to your childhood deprivation.
66 As the High Court observed in Bugmy's case - and I will paraphrase - the effects of significant deprivation do not diminish with the passage of time and should, in cases of repeat offending, still be taken into account to determine the appropriate sentence in every case. The majority of the High Court accepted this submission, explaining that a background of that kind, that is, was evident in Bugmy's case and is probably no different to your background, may compromise a person's capacity to mature and to learn from experience. However, an offender's background may not always give rise to a mitigation in sentence.
67 The example that the majority in the High Court gave is that if an offender has grown up in a violent environment, their recourse to violence when frustrated may be explainable with reference to that upbringing. Giving full weight to the effects of that upbringing may reduce an offender's moral culpability. On the other hand, this may increase the need to protect the community from that offender and these two considerations pull in opposite directions.
68 A common feature of both Verdins and Bugmy, and the principles outlined in those two cases, is that both permit the court to view an offender's moral culpability as being reduced where their psychological functioning or personality structure has been impaired. This is a more relevant consideration, in my view, to Mr Ruot Tang's current position. The Bugmy considerations, which are significant, will be taken into account, but care will be taken to avoid what is sometimes referred to as inappropriate double‑counting when referring to any other reduction or potential reduction in moral culpability. I make it clear that I am taking into account the principles relating to Mr Ruot Tang's childhood and background, his apparently significant PTSD and the consequences of these matters.
69 I accept that Mr Ruot Tang's childhood was very difficult and was no doubt very damaging. It may well have resulted in significant effects on his personality. It certainly left you, sir, feeling traumatised and suffering from PTSD. It did not result, separately, in psychotic episodes. It is the case that your substance abuse may have caused that from time to time, but that is a result of your self‑intoxication. I accept that you present with significant substance abuse disorder. There may well be some Bugmy type principles relating to this substance abuse that may be relevant in due course, but it does not, in and of itself, reduce your moral culpability.
70 I accept that your mental health problems as described are a long-term feature of your life. Any resistance to treatment for either anxiety and/or substance abuse, and that resistance to treatment by you even while you are in custody, does not assist you in any way. The conclusion that you have very limited insight about the severity of your offending is accepted. The conclusion that you have very little insight into the impact upon multiple victims may well be true. However, apart from substance abuse issues and personality difficulties as described by Dr Triglia, this observation does not reduce your culpability so as to reduce the need for deterrence, either general or specific, as a sentencing consideration.
71 It is noted that you made the observation as to sentences imposed on others who had perpetrated, on your observation, similar crimes. There is a clear inference that you note a comparison and whether this comparison is correct or not, you seem to accept that a custodial sentence is a consequence of offending of this nature. Ms Maynard opines that you would find imprisonment more burdensome than someone without the difficulties that she has observed. Dr Triglia confirms that.
72 In relation to your post-traumatic stress disorder, I accept that you find custody very burdensome. I accept that in a custodial situation, a calm and quiet place may be difficult to locate, and I accept that there may be many events in a custodial situation that may trigger your PTSD and will make your time in custody more onerous. Again, Dr Triglia supports this finding.
73
What the court must also take into account, however, as noted in Muldrock's case, is the need to protect the community from offenders such as you,
Mr Ruot Tang. The nature of these offences, your lack of remorse and your limited prospects of rehabilitation makes the protection of the community a real sentence consideration.
74 In relation to your rehabilitation and risk of reoffending, Ms Maynard notes that you will need targeted interventions in the community, with a high level of everyday support for your various mental health issues. She suggests the likelihood of rehabilitation will increase with such support, but she opines that with no intervention, your risk of recidivism, or your risk of reoffending, will be quite high.
75 Unfortunately, in 2019 you were unable, for several reasons, to take advantage of a supervised CCO. You reoffended very quickly. It is unknown what would have happened had that supervision been available in the community. Ms Maynard recommends a number of factors that will be key to any rehabilitation in the community. This includes intensive support to access housing, engagement with mental health services for treatment of your complex needs, alcohol and drug counselling, residential rehabilitation programs and NDIS support to assist you in accessing services.
76
She has suggested neuropsychological and psychiatric assessment, but the court has already taken care of at least one of those things. Not all of
Ms Maynard's suggestions are supported by the more thorough and independent Forensicare psychiatric report, but Dr Triglia's report makes a number of very important assistance suggestions, both for your care in custody and for your care in the community, if and when that ever occurs.
77 In custody, you have instructed your counsel and Ms Maynard, that you have recently been appointed a peer educator, which is a rare job, enabling you to speak to prisoners across the centre and to help support them. This recent appointment is confirmed by Corrective Services information provided recently. It is reported that you have enjoyed this level of responsibility.
78 I note that you have spent significant periods of your life in some form of detention. It was submitted on your behalf that you present with insight and understanding for your predicament and your difficulty that you may have on your release on structured environments. I presently have very little insight of this information, however.
Further considerations
79 The difficulty that you have is a lack of intensive support, including family support, on your release. This is not an issue that I have any solution to. I simply note it as being a real need on your release into the community.
80 I have observations from corrective staff, including Justice Health, who give reports that are somewhat different from your self‑report to Ms Maynard with respect to your cooperation with health initiatives. It is observed, however, that over the past year or so, your cooperation has improved. This possibly because you have matured and that is something that must be noted and commented on. I note that you have also recently again enrolled in alcohol and drug assistance. That is to be commended and I would thoroughly recommend that you continue that whilst you are in custody. It will be a necessary step to take if you are ever to be released in the community.
81 It is noted, and recognised by the courts, that the COVID lockdowns which have existed over the past two years have made conditions in custody more onerous than they would normally be. This must be recognised in the length of the sentences to be imposed and any non-parole period to be imposed.
82 I note, finally, that you were 23 years of age at the time of the offending, and you are currently 26. Although not strictly a youthful offender, you were still relatively young at the commission of the offending. It is submitted that there should be recognition for the potential for you to be redeemed and to be rehabilitated. There is little information to support that submission. At its most optimistic, there is some evidence that an appropriate degree of support may give rise to a possibility of rehabilitation, but I observe, again, that much support will be required.
83 At present, I observe you are doing much better in a controlled environment than you have in the past. It is submitted that institutionalisation is a concern, but there is very little that the court can do about that other than note, again, that if you are becoming more comfortable in custody, then it makes the job of Corrective Services easier and more likely to be able to give you the supports that you need in custody.
84 Finally, in relation to your visa status, I note and understand that your permanent resident visa has been appealed and an outcome is pending. It is clear that these charges will also create difficulties in you passing the character test in future, both in relation to criminal conduct and general character.
85 It is understood that under the Refugee Convention, you would not be deported to Sudan, however, you could face some form of indefinite detention if a visa is not reinstated in some form. I accept that this must weigh heavily on you and must therefore make any term in custody imposed on you today a more worrying feature for your future.
86 There is the uncertainty of your future detention that I accept. However, I can only deal with the current charges that I am facing today. From the court's point of view, however, I am prepared to state on the record that an indefinite detention for a person of such young years will only represent a waste of a human life. You are still young and there is a possibility, however remote, of rehabilitation given the correct forms of support.
87 Finally, it is conceded that the sentence must involve a head sentence and a non-parole period. It is submitted that with the combination of factors outlined above, you should not be required to serve a further lengthy period before being eligible for parole. This may be an academic consideration, however, but it is one that I will take into account.
88 So I am now going to set out the terms for the sentence. I am going to set out individual sentences for each of the charges and at the end of that, I will get to a total sentence for all of the charges which is what you want to know, and then shortly after that we will, perhaps with the assistance of the prosecution, calculate the time served in relation to that. What is going to happen with the related summary offences?
89 MS TATAS: We are just checking whether they are proceeding, Your Honour.
90
HER HONOUR: All right. You have a think about that and talk about it amongst yourselves. Whatever happens with those summary offences,
Mr Ruot Tang, I expect it to be academic. The sentence that I am imposing now is going to be the total sentence that I am going to impose for all of the matters that are currently before the court. There might be some other paperwork that needs to be dealt with and we will deal with that shortly to make sure that when we are finished with you today, they are all the remaining matters that you have at least, before me.
91 So, firstly, I will start with Charge No.1, which is the theft of the motor vehicle. I impose a sentence of six months' imprisonment with 1 month accumulating on the base sentence below.
92
Charge No.2, which is the armed robbery, I will impose a sentence of
four years' imprisonment and this will be the base sentence. Charge No.1 will be served concurrently (with 1 month accumulating per above).
93 Charge No.3, the common assault, a sentence of six months' imprisonment. Two months will accumulate on the base sentence.
94 Charge No.5, which is the armed robbery, four years imprisonment with 12 months accumulating on the base sentence.
95 Charges Nos.6, 8 and 10, which are all charges of theft, I sentence you to a period of one month imprisonment on each to be served concurrently with each other and to be served concurrent on the base sentence.
96 Charges numbers 4, 7, 9 and 14, which are the handling stolen goods, a term of four months to be served concurrently with each other and concurrent on the base sentence.
97 MS TATAS: Sorry, Your Honour, is that an aggregate of four months for those four charges or one month?
98 HER HONOUR: I am sorry, an aggregate of four months. I should have said that.
99 Charge No.12, causing injury with intent, a term of three years, to be accumulated at nine months on the base sentence.
100 Charge No.13, conduct endangering person, a sentence of two years, to be accumulated nine months on the base sentence.
101 Charge No.11, attempted robbery, a term of three years with 12 months accumulating on the base sentence.
102 In relation to the possession of cannabis charge, a conviction will be recorded but without further penalty.
103
My calculation on the term to be imposed is a - taking into account the base sentence and the accumulations, a total term of
seven years and nine months, and I propose to order a non-parole period of four years and three months. For the record, at this stage I will note that but for your plea of guilty, the sentence imposed would have been 10 years, with a non-parole period of seven years.
104 In relation to the driver's licence, I will suspend Mr Ruot Tang from holding or applying for or obtaining a driver's licence for a period of 12 months from today.
105 HER HONOUR: All right. I've signed the disposal order. Again, what I'm going to do is offer, should you wish to do so, to speak privately to your client. Those figures again, for everyone's information, the total term is seven years and nine months, non-parole period four years and three months. 1,151 days will be calculated as time served and there will be some extra time served to be added to those as calculated by Corrective Services and no doubt, you'll be advised that I don't have any control over that.
106 So the only thing that you've got left outstanding, sir, as I understand it, is the breach of the community corrections order which will be dealt with by another judge some time next week, but again, I can't imagine that that's going to cause a great deal of difficulty. Anything else?
107 MS TATAS: No, Your Honour.
108 HER HONOUR: All right. Thank you, counsel.
109 MS TATAS: If the court pleases.
110 HER HONOUR: We'll adjourn now.
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