Director of Public Prosecutions v Thiep & Anor
[2024] VCC 238
•8 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-02361
CR-22-01160
CR-23-00473
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THIEP THIEP |
DENG KUOL
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JUDGE: | HIS HONOUR JUDGE TIWANA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 February 2023, 4 October 2023 & 10 November 2023 | |
DATE OF SENTENCE: | 8 March 2024 | |
CASE MAY BE CITED AS: | DPP v Thiep & Anor | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 238 | |
REASONS FOR SENTENCE
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Subject:Criminal law - Sentence
Catchwords: Aggravated home invasion – Intentionally causing serious injury in circumstances of gross violence – Prohibited person use firearm – Co-accused (Kuol) charged with aggravated home invasion and recklessly causing serious injury – Home invasion in early hours of morning – Family of seven present in house – Thiep and two others armed with a hand gun, garden stake and a knife – Rear glass door smashed with a chair and rocks – Victim stabbed in stomach and shot in the face – Separate incident of aggravated burglary committed by Thiep in company with others at a jewellery store during business hours –– Glass entrance door and display cabinets smashed with sledgehammers – Jewellery with estimated value of $428,560 stolen – Both offenders aged 19 at the time of the offending – Pleas of guilty – Relevant criminal history – Both offenders on parole at the time of the aggravated home invasion incident – Thiep on bail at the time of all the offending – Parity – Guarded prospects of rehabilitation.
Legislation Cited: Crimes Act 1958; Firearms Act 1996; Drugs, Poisons and Controlled Substances Act 1981; Bail Act 1977; Sentencing Act 1991.
Cases Cited:Makieng v The Queen [2022] VSCA 52; DPP v Wol [2019] VSCA 268; Worboyes v The Queen (2021) 96 MVR 344; R v Mills (1998) 4 VR 235; Azzopardi v The Queen (2011) 35 VR 43; R v Verdins (2007) 16 VR 269; The Queen v Stevens [2009] VSCA 81; Taskiran v The Queen [2011] VSCA 358.
Sentence: Thiep – 9 years and 9 months’ imprisonment, with a non-parole period of 6 years and 6 months.
Kuol - 6 years and 9 months’ imprisonment with a non-parole period of 4 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. McCarthy | Office of Public Prosecutions |
| For the Accused Thiep
| Ms K. Rolfe (14 February 2023) Ms A. Liang (8 March 2024) Ms E. Allen (4 October 2023) Ms A. Reader (8 March 2024) | Leanne Warren & Associates Giorgianni & Liang Lawyers Stary Norton Halphen |
HIS HONOUR:
Introduction
1 Thiep Thiep, you have pleaded guilty to the following nine charges on Indictment No. C2215113:
(a)Charge 1 – aggravated home invasion, contrary to s 77B of the Crimes Act 1958.
(b)Charge 2 – intentionally causing serious injury in circumstances of gross violence, contrary to s 15A of the Crimes Act.
(c)Charge 3 – prohibited person use firearm, contrary to s 5(1) of the Firearms Act 1996.
(d)Charges 4, 6, 7 and 8 – theft, contrary to s 74 of the Crimes Act.
(e)Charge 5 – aggravated burglary, contrary to s 77 of the Crimes Act.
(f)Charge 9 – possession of a drug of dependence, contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981.
2 Charges 1 and 5 carry a maximum penalty of 25 years’ imprisonment. Charge 2 carries a maximum penalty of 20 years’ imprisonment. Charges 3, 4, 6, 7 and 8 carry a maximum penalty of 10 years’ imprisonment, and charge 9 carries a maximum penalty of 1 years’[1] imprisonment.
[1]In these circumstances where a trafficking purpose is excluded.
3 You have also consented to this Court hearing and pleaded guilty to three related summary offences:
(a)Charge 12 – commit indictable offence whilst on bail, contrary to s 30B of the Bail Act 1977.
(b)Charge 13 – contravene conduct condition of bail, contrary to s 30A(1) of the Bail Act.
(c)Charge 16 – fail to comply with direction to assist, contrary to s 465AAA(4) of the Crimes Act.
4 Charges 12 and 13 carry a maximum penalty of 3 months’ imprisonment, and charge 16 carries a maximum penalty of 2 years’ imprisonment.
5 Deng Kuol, on Indictment No. N10472377, you have pleaded guilty to the following two charges:
(a)Charge 1 – aggravated home invasion, contrary to s 77B of the Crimes Act.
(b)Charge 2 – recklessly causing serious injury, contrary to s 17 of the Crimes Act.
6 As already stated, charge 1 carries a maximum penalty of 25 years’ imprisonment. Charge 2 carries a maximum penalty of 15 years’ imprisonment.
7 Aggravated home invasion and causing serious injury in circumstances of gross violence are Category 1 offences. This means I must impose a custodial sentence.[2] These two offences also require the Court to impose a mandatory minimum non-parole period, unless a statutory exception under s 10A(2) of the Sentencing Act is established. The mandatory minimum non-parole period for aggravated home invasion and causing serious injury in circumstances of gross violence is three years and four years respectively.
[2]Sentencing Act 1991 s 5(2G).
Circumstances of the offending
8The prosecution tendered two separate openings setting out the offending against both of you.[3] There is no dispute that I will sentence you in accordance with the facts outlined in these openings.
[3]Amended Summary of Prosecution Opening relating to Thiep dated 3 October 2023 (Exhibit H). This replaced the previous summary (Exhibit A) by making some agreed changes. See Further Prosecution Plea Submissions dated 11 September 2023 (Exhibit I) which sets out the changes made to Exhibit H.
Amended Summary of Prosecution Opening in relation to Deng Kuol dated 3 October 2023 (Exhibit K).
9At the time of the offending, you were both 19 years old. You were affiliated with a Melbourne Street gang called Black Drill Kings (‘BDK’).
10The victim, Mr Atem’s sons, were understood to be affiliated with a rival gang.
11On 24 June 2021, a close friend of yours, who was a member of BDK was stabbed by a male who you believed to be a member of that rival gang. He sustained life-threatening injuries and required surgery.
12In the early hours of 8 July 2021, at approximately 2.15am, the two of you along with two others, targeted a residential home in Wyndham Vale and subjected a family of seven to a terrifying ordeal.
13Mr Atem, his wife, Ms Maluk, his mother and his four children aged between eight and 17 had dinner together and had gone to bed at around 10.00pm.
14You arrived outside the home in a stolen Toyota Kluger.[4] The four of you entered the rear yard of the house through a side gate. All of you were wearing dark clothing and had your faces concealed.
[4]Charge 4. The Kluger was stolen on 30 June 2021.
15Thiep, you were armed with a homemade .22 calibre handgun. Another male was armed with a knife.
16Shortly prior, Mr Atem had woken up and gone to the toilet. As he walked back to his bedroom, he heard noises sounding like the bins banging with the fence at the side of his house and the sound of people running. He ran into his son Atem Machar’s room and told him to call the police. Mr Atem then returned to the back of the house near the kitchen and lounge area.
17Mr Atem observed the rear glass sliding door being smashed with a chair and four persons present dressed in black clothing with their faces covered. He tried to hold the sliding door shut to prevent your entry into the house. Rocks were also being used to smash the door.
18Once the sliding door was smashed and opened, all four of you entered the house.[5] Mr Atem was hit with a chair to his stomach and shoulder. He was struck with a garden stake to the head five or six times. Mr Atem managed to grab the chair and tried to push all of you outside. While he was doing that, he was stabbed in the left hip and stomach with a red knife.
[5]Charge 1 in respect of both of you – aggravated home invasion.
19Thiep, after the sliding door was smashed, you discharged your .22 calibre handgun through a closed roller blind towards the inside of the house. The bullet lodged in a wall in the lounge room. During the course of the confrontation, you discharged a second shot from the same handgun directed towards the head of Mr Atem. This bullet hit Mr Atem to the left side of his nose and travelled through his head, lodging behind his right ear.[6]
[6]Charge 2 – intentionally causing serious injury in circumstances of gross violence and charge 3 – prohibited person use firearm (Thiep) and recklessly causing serious injury (Kuol).
20This incident caused other members of the household to wake up and scream. Mr Atem’s wife and mother witnessed the confrontation and screamed “police, police”. Other family members could also hear the incident from their bedrooms.
21Both of you, along with your co-offenders, fled the scene through the rear sliding door and left in the Toyota Kluger at approximately 2.21am.
22Police arrived at the house a few minutes later. A number of items including rocks, a knife, a red vape, a garden stake and Mr Atem’s clothing were seized for forensic analysis.
23Thiep, your DNA was found on the vape recovered from the victim’s address.[7]
[7]Likelihood ratio of 100 billion.
24Mr Atem was taken by ambulance to the Royal Melbourne Hospital. He sustained gunshot trauma to the deeper aspects of his face with multiple bone fractures, as well as two stab injuries to the torso. In particular, his injuries were as follows:
(a) Facial gunshot wound with:
(i)Traumatic linear penetrating injury tract extending from the left nostril, across the nasal cavity and nasal septum, contacting the posterior aspect of the left maxillary sinus, traversing the right pterygopalatine fossa and right pterygoid process and coursing posteriorly through the right infratemporal fossa.
(ii)Multiple associated fractures, including the left nasal bone, the nasal septum, the right upper jaw air-filled cavity and comminuted fractures of the right pterygoid process.
(iii)A metallic foreign body, presumed to be a dominant large bullet fragment, embedded in the soft tissue adjacent to the right parotid gland and right lower jawbone; and innumerable tiny metallic debris fragments scattered along the penetrating tract extending from the left nostril, across the nasal cavity, the right pterygoid process and right infratemporal fossa.
(iv)Associated gas locules along the tract, as well as a fluid level within the right maxillary sinus, mucosal thickening in the nasal cavity and generalised soft tissue swelling in the right posterior facial region and right parotid region; gas locules track also noted anteriorly to the right cheek as well as deep to the parapharyngeal space.
(v)A possible small entry wound to the left nasal sidewall, obscured by swelling and bleeding.
(b) Penetrating open stab wounds to the lower left trunk including:
(i)Three centimetre open penetrating stab wound to the left flank; traversing the outer abdomen wall musculature, through the inner skin with the exposed fat, contacting the inner aspect of the abdominal cavity with a haematoma approximately 19 mm by 50 mm in axial dimension.
(ii)One-centimetre open wound to the left lateral aspect of the left gluteal buttock region, extending to contact the left gluteus medius muscle below the iliac crest, through the dermis but not deeper, with no bone injury.
25Mr Atem was admitted and remained at the Royal Melbourne Hospital until 13 July 2021. As part of the medical treatment, he underwent specialist abdominal surgery with diagnostic laparoscopy and wound closure under general anaesthesia. The gunshot wound to the face having taken a safe pathway, avoiding important organs and body structures, did not require surgical treatment. Mr Atem continues to experience pain and discomfort as a result of the injuries and the gunshot bullet fragments remain embedded in his face.
26The stolen Toyota Kluger was found abandoned outside an address in Footscray on 17 July 2021. It had been observed parked in this location since around 11 July 2021. A shotgun cartridge and two .22 calibre rounds of ammunition were recovered from the vehicle. The .22 calibre rounds of ammunition were the same brand and calibre as a fired cartridge case recovered from Mr Atem’s home.
27DNA recovered from the rear centre seatbelt buckle of the Kluger revealed a likelihood ratio of 100 billion times more likely if you, Thiep, was the contributor.
28Thiep, you were on bail in respect of a charge of possession of a drug of dependence at the time you committed the aggravated home invasion. Your bail included a curfew condition that you remain at your residential address between the hours of 9.00pm and 6.00am.[8]
[8]Related summary offences, charge 12 – commit indictable offence whilst on bail and charge 13 – contravene conduct condition of bail.
The aggravated burglary incident[9]
[9]Giving rise to charges 5, 6, 7 and 8.
29At approximately 9.00am on 30 November 2021, Ms Dang and her mother Ms Nguyen, arrived to commence work at their jewellery store in Footscray. Ms Dang’s husband and another staff member arrived a little later. During business hours, the glass entrance door to the store is kept locked and opened manually by staff to allow entry.
30At about 10.23am, you, Thiep, were present in a stolen Kia Cerato, along with three other unidentified males. The Kia parked on Gwelo Street, and the four of you entered a stolen BMW X5.
31At 10.34am, the BMW X5 stopped outside the jewellery store. You and two other males exited the vehicle, while the driver remained inside. All of you were dressed in black clothing with your faces covered and wearing gloves.
32You and the two males approached the entrance to the store and repeatedly struck the locked glass entrance door with sledgehammers. Ms Dang saw this occur, and she ran to the back of the store where her husband and uncle were present and told them to ring the police. The emergency button was pressed repeatedly to alert the security company. Many people from neighbouring businesses witnessed the incident and could hear screaming and called the emergency services.
33You and the two males eventually gained entry into the store and continued to use your sledgehammers to smash jewellery display cabinets, including when Ms Nguyen was in close proximity. Ms Dang and the other family and staff members were screaming and yelling throughout. All three of you began to place items of jewellery from the display cabinets into a blue bag. At approximately 10.35am, the three of you fled the store and re-entered the BMW X5. The vehicle drove off at speed. Having stopped, all of you alighted and ran to the Kia Cerato on Gwelo Street, entering it and driving off. During the move between the vehicles, a ring stolen from the store fell onto the footpath.
34The total estimated value of the jewellery stolen by you and your associates was $428,560. Significant damage was caused to the exterior and interior of the jewellery store.
35CCTV depicting the horror of the aggravated burglary and the theft of the jewellery was played in Court.[10]
[10]Exhibit B.
36The Kia Cerato was stolen on the morning of 27 September 2021, from outside a house in North Melbourne. The BMW X5 was stolen on the evening of 29 October 2021, from a car park at the Chadstone Shopping Centre.
37Following an anonymous call at approximately 11.43am on 30 November 2021, police attended Gilmour Lane in Caroline Springs. They located the stolen Kia Cerato. The anonymous caller had observed two cars meet up in Gilmour Lane. Males of African appearance in black ski masks exited the Kia Cerato and were observed high-fiving. They wiped down the car’s mirrors and door handles. They then entered a Hyundai wagon and drove off.
38The BMW X5 and the Hyundai wagon were also located by the police.
39At the time of the aggravated burglary incident, you were subject to the same bail as at the time of the aggravated home invasion.
Thiep’s arrest
40Thiep, you were arrested on 2 December 2021 and conveyed to Melton police station. A search of your residence revealed two mobile phones and a container of Xanax containing 32 tablets located in a black satchel hanging off your bedpost.[11]
[11]Charge 9 – possession of a drug of dependence.
41You were served with an order pursuant to s 465AA of the Crimes Act 1958 requiring you to provide information or assistance, namely PIN numbers, to allow a police officer to access your mobile telephones. You refused to provide such information or assistance.[12]
[12]Related summary offence – charge 16 - fail to comply with a direction to assist.
42You participated in a record of interview in which you denied any involvement in the aggravated home invasion incident or the aggravated burglary incident.
43Following your interview, you were placed in a cell with two covert operatives. That afternoon, you were released from custody. You accepted a lift home with both covert operatives. During the journey, you discussed the aggravated home invasion and aggravated burglary incidents. You told the operatives the following in relation to the aggravated home invasion incident:
(i)you had a ‘beef’ with some cunt… cause I know he stabbed my mate (Wani) at train station… I walked into his house… So I went and shot his dad.
(ii)That you were full on smashing into the house, yeah, to get inside and the dad’s there, so I said, fuck it. So I shot… I dropped my vape at the scene.
(iii)You shot him with a home-made .22 pistol with one shot going into the wall and the other got him in the head. In response to a question whether the dad had died, you replied No, he didn’t. .22s don’t kill you… I tried to give him a head shot.
(iv)That you left the scene in a stolen vehicle, got rid of your clothes and sold the firearm used by you for $3,000.
44In relation to the aggravated burglary incident, you told the operatives to search Seven News Footscray Robbery. The YouTube news clip was played and you identified yourself in the footage as the first person to exit the store. You told the operatives that you used a stolen BMW and that the stolen jewellery was sold to a male for $45,000. The operatives dropped you off at your home address and left.[13]
[13]Two covert operative transcripts were tendered on the plea – Exhibit J.
45You were arrested again on 3 December 2021, and taken to Melbourne West Police Station. You made no comment to the allegations put to you in an interview. You were charged and remanded in custody where you have remained.
Kuol’s arrest
46Kuol, you were arrested on 9 March 2022. You participated in a record of interview at Keilor Downs Police Station. You stated that you were friends with Thiep and had some knowledge of Wani being stabbed. You repeatedly denied involvement in the aggravated home invasion.
47During a break in the interview, you spoke to Detective Senior Constable Gaffney and made admissions to the offending.
48A formal interview recommenced. You agreed that during the break you had admitted to committing the aggravated home invasion. You said you went to the property with others and a rock was used to smash the window of the house. The victim was stabbed. You heard a bang and then another shot went off and you were the first to leave. At the time of the offending, you were affected by drugs, but recalled things that were “quite significant.” You agreed that you had turned your phone off to stop receiving calls and being mapped by cell towers in the area. You said you were not armed with a weapon, whether it be a firearm or knife, and you personally did not assault the victim. You said “if I could take it back, I would.”
49Having been remanded in custody, you made further admissions in phone calls from prison. During the calls you admitted your presence during the aggravated home invasion. When asked whether you had been forced to do it, you replied:
Nuh, I wasn’t forced to do it, but I wasn’t aware of what was happening either. And to be honest with you, if those people that - really cared about me and, like were as real as they say they’re supposed to be, then I would have known about what was happening and I would not have put myself in such a situation. Know what I mean? And it’s not - it’s not like everything is their fault. I made a decision to be there that day too.
Victim impact
50In respect of the aggravated home invasion incident, four victim impact statements were tendered from Chol Atem, Amach Machar, Atem Machar and Doruka Maluk.[14]
[14]Exhibits C, D, E and F.
51Your crimes have left the family deeply impacted by the trauma of that night.
52Mr Atem and his family came to Australia for a better life. That hope for a better life has been destroyed. He lives in fear and is hypervigilant to his surroundings. The trauma has impacted his mental wellbeing. He struggles to sleep. The nightmares cause him to jump out of bed and remain awake until the morning hours. He is unable to socialise or work anymore. He remains isolated at home all the time and remains in constant pain as a result of the physical injuries. He states that he thinks about the crime all the time and will never be the same person again.
53Ms Maluk states that the hope of having a safe life in Melbourne when leaving her country has been lost. Before the crime occurred she thought her home was the safest place. She and her family now live in fear every day and are sensitive to any noises. Their attention is focused on the security camera at home. Seeing her husband, Mr Atem, change since the crime, has impacted her both emotionally and physically. She adds:
…I will never be the same person I was before. Our lives have changed forever. Nothing will ever be the same in our lives as it was before the crime. To feel safe again in the community our family will need to leave Melbourne.
54Mr Atem’s children speak in a similar vein to their parents in their victim impact statements. Atem Machar stopped going to school. He struggled with nightmares and isolation. He describes some of the emotions such as fear, anxiety, anger and frustration that he has been grappling with. Seeing his father with the injuries and the accompanying blood has left him traumatised.
55Amach Machar was unable to go to school for a whole term. He struggled to see his father with the horrific injuries and thought he would die. He struggles to sleep and concentrate and has been left traumatised and distressed.
56Thiep and Kuol, your crimes have left a family who hoped for a better life in Melbourne in complete disarray. Their victim impact statements are grim and utterly reflective of the turmoil and trauma that your crimes have inflicted upon them.
57In respect of the aggravated burglary and theft of jewellery, Ms Dang has made a victim impact statement dated 10 February 2023 which was read aloud in Court.[15] She states:
I replay these events in my head every day, I can’t sleep at night, I have nightmares. My kids used to hang out at the shop after school, but now I’m too scared to let them come out for their safety. My kids don’t want me to work at the shop anymore, scared I might get hurt.
[15]Exhibit G. Part 2 (Financial loss was not relied upon).
58She further adds that she has been impacted psychologically and has lost so much financially. She welcomed everyone into her shop for 36 years. Her shop front now has bars like a prison and she checks each customer before allowing them in.
59Once again, Thiep, your crime has robbed Ms Dang of the joy and freedom that a hardworking business owner is absolutely entitled to.
Criminal History
60Both of you have a relevant criminal history.
61Thiep, you have appeared before the courts on five previous occasions. On 8 April 2020, you were sentenced without conviction to an adjourned undertaking in the Children’s Court in respect of three offences of robbery, theft of a motor vehicle, commit indictable offence on bail and attempt to commit an indictable offence. On 8 December 2020, you appeared before the Magistrates Court and were sentenced to a financial penalty with conviction for three offences of theft of a motor vehicle, commit indictable offence whilst on bail, two offences of stating false name when requested, four offences of contravening a conduct condition of bail and failing to comply with a direction to assist. On 16 December 2020, you were convicted and discharged in respect of an offence of theft of a motor vehicle. You appeared before this Court on 17 December 2020, and were sentenced to an aggregate term of 12 months detention in a Youth Justice Centre for an offence of attempted aggravated carjacking, common law assault and commit indictable offence whilst on bail. On 15 April 2021, you were convicted and fined by the Magistrates Court for offences of assaulting an emergency worker on duty and affray.
62Kuol, you have eight prior court appearances, six of them in the Children’s Court, one in the Magistrates Court and one in this Court. On 2 November 2017, you were placed on a probation order without conviction for an offence of aggravated burglary,[16] unlawful assault and theft. On 13 June 2018, you were sentenced to an aggregate term of 14 months detention in a Youth Justice Centre for new offending and for breaching the probation order. The new offending included an offence of aggravated home invasion, intentionally cause injury, recklessly cause injury, armed robbery, affray, two offences of unlawful assault, resist police officer, theft from shop and theft of a motor vehicle.[17] On 31 July 2018, you were convicted and sentenced to one month detention in a Youth Justice Centre for an offence of unlawful assault. On 26 October 2018, you were convicted and placed on a Youth Attendance Order for an offence of recklessly cause injury, affray and assault by kicking. On 27 June 2019, you were convicted and sentenced to a total term of 13 months detention in a Youth Justice Centre for offences of robbery, assault youth justice custodial worker, assault in company and for breaching the Youth Attendance Order.[18] On 2 December 2019, you were sentenced to an aggregate term of two months detention in a Youth Justice Centre for offences of assault in company and affray. On 24 April 2020, this Court sentenced you to 33 months detention in a Youth Justice Centre for an offence of aggravated home invasion. Finally, on 8 June 2021, you were sentenced to 5 months imprisonment for an offence of common law assault.
[16]Involving an offensive weapon.
[17]There was also an offence of fail to answer bail which was proved and dismissed.
[18]In addition, an offence of entering a private place without authority or excuse was proved and dismissed.
Thiep’s background
63Your background is set out in Ms Fleming’s psychological report dated 7 February 2023[19] and is also alluded to in the written submissions.[20]
[19]Exhibit T2.
[20]Exhibit T1.
64You were born in March 2002 in Sudan. You were aged 19 at the time of this offending. You were raised by your parents and you are the second eldest of five siblings. As a result of the war in Sudan, your family relocated to Egypt before arriving in Sydney in 2004 as refugees. You became an Australian citizen in 2009. You lived in Sydney until moving to Melbourne in 2013. Your father worked to support the family while your mother cared for you and your siblings.
65While your relationship with your father has been strained, you enjoy a close relationship with your mother, whom you describe as a “strong lady”.
66You were subjected to physical discipline in the home and made to feel that you were not good enough as a person. You began staying away from home from the age of 13 and started associating with negative peers, leading to the use of illicit substances.
67By the time you were 15 years old, you were using cannabis regularly. You began using cocaine and benzodiazepines at the age of 16, and ecstasy at the age of 18.[21] You told Ms Fleming that upon your release from custody in May 2021, although you returned to live with your family, you caught up with your friends on the day of your release and immediately relapsed into substance use.
[21]You declined to discuss with Ms Fleming the use of other illicit drugs, such as methamphetamine and heroin. (See Exhibit T2, [42])
68You completed Year 12 in 2019. You struggled to concentrate at school but focused on basketball, playing until the age of 17 at club level.
69You sought casual employment but were dismayed by the repeated rejections. Your work history is limited to a brief period in a pizza shop in Sunshine.
70You have a son who is now aged around 20 months. Your relationship with your son’s mother ended shortly prior to your arrest and remand. Your ex-partner remains supportive. Initially you had contact with her and your son via zoom and in person visits. However, your contact with your son has ceased as his mother does not consider it appropriate while you remain in custody. She remains supportive and will allow contact once you have been released. A previous ex-partner of yours died as a result of an overdose.
Kuol’s background
71Your background is set out in Mr Coffey’s psychological report dated 25 September 2023[22] and in your counsel’s written submissions.[23]
[22]Exhibit K2.
[23]Exhibit K1.
72You are now 22 years of age. You were born in Egypt, where your mother had fled from Sudan. She met your father, who was also from Sudan, in Cairo where you were born. Your father, now deceased, travelled to the USA and you have never met him. You were around three years old when you arrived in Australia with your mother.
73You have two younger half-siblings with whom you maintain a close relationship. When you were nine years old, your mother formed a relationship with a man who moved into the family home. At the age of 10, you witnessed this man whom you describe as your step-father, molesting your younger sister. This incident led to ongoing tension within the family home.[24]
[24]Exhibit K2 [18] and [19]. See also exhibit K3 (The trial is in April 2024 and not 2023).
74You attended a number of public schools in the inner northwest suburbs of Melbourne. It appears you attended high school until Year 9. You did not enjoy school and struggled academically. Despite attending high school, your interests lay with your friends and their criminal activities. You told Mr Coffey, you:
…found being a ‘bad person’ exciting. His home life was unhappy and he didn’t feel competent with his studies at school or affiliated with the school community.[25]
[25]Exhibit K2 [22]. See also [26].
75At the age of 15, you worked at KFC on a casual basis for around six months.
76You have been abusing drugs since the age of 15, when you commenced using Valium, Xanax and cannabis. You told Mr Coffey that since the age of 16, when in the community, you have never been abstinent of illicit substances, except for a short period between February and March 2022. You have also used MDMA and cocaine.
77Following you remand on this matter, you used buprenorphine illicitly. However, in January 2023, you were prescribed methadone and have been taking it daily.[26]
[26]Ibid [48], [56] – [58]
78Since the age of 16, you have spent only approximately nine months outside of custody. You were released on youth parole in June 2021 and were living at home with your mother and half-siblings. You continued abusing drugs. You were taking up to six Xanax tablets and 4 grams of cannabis daily. You also drank a few cans of mixed spirit daily and sometimes used MDMA.[27]
[27]Ibid [34].
Objective gravity[28]
[28]In dealing with the gravity of the offending, I am conscious that some of the matters I have referred to are elements of the offending and not aggravating.
79There can be no argument that the offending committed by both of you in the early hours of 8 July 2021 was of the utmost gravity.
80As mentioned earlier, aggravated home invasion carries a maximum penalty of 25 years imprisonment. Further, Parliament has mandated, absent special reasons, a minimum non-parole period of three years’ imprisonment.
81The offending was planned and the victim’s home was deliberately targeted in order to inflict violence in retribution of an attack upon one of your friends. The Courts have made plain that any form of vigilante justice is unacceptable and is a direct challenge to the authority and the rule of law.[29]
[29]See e.g. Taskiran v The Queen [2011] VSCA 358, [22] (Warren CJ and Hansen JA).
82The home was entered by four of you, all in disguise. The entry into the home around 2.15am was effected by violent means involving the smashing of the sliding door window with a chair and rocks. The group was armed with weapons. You, Thiep, were armed with a loaded handgun and unidentified offenders were armed with a knife and a garden stake.
83The house was occupied by a family of seven, including children as young as eight years old. They were vulnerable in that they did not expect to be attacked. The offending lasted minutes and certainly cannot be described as fleeting.
84In DPP v Wol,[30] the Court of Appeal observed, aggravated home invasion:
strikes fear into law abiding citizens who are entitled to feel safe in their own homes.
[30][2019] VSCA 268, [79] (Kyrou, Kaye and T Forrest JJA).
85The Court further observed that:
those who contemplate committing the offence of aggravated home invasion will forfeit their right to live freely in the community for a very long time if they are caught.[31]
[31]Ibid.
86At the time of the offending both of you were on youth parole. In addition, Thiep, you were on bail.
87Both of you also fall to be sentenced for the violence inflicted upon Mr Atem, once you had gained entry into the home. In respect of what occurred in the house, Thiep, you have pleaded guilty to intentionally causing serious injury in circumstances of gross violence and you, Kuol, have pleaded guilty to recklessly causing serious injury. In addition, Thiep, you have also pleaded guilty to an offence of being a prohibited person using a firearm.
88Intentionally causing serious injury in circumstances of gross violence attracts a maximum sentence of 20 years’ imprisonment. In addition, Parliament has mandated, absent special reasons, a minimum non-parole period of four years’ imprisonment. Again, the maximum and the minimum period underlines the seriousness with which this offence is viewed.
89The offence of recklessly causing serious injury is also a very serious offence carrying a maximum penalty of 15 years’ imprisonment.
90The gross violence in respect of you Thiep, involves the following elements:
(a) you planned in advance to engage in conduct and at the time of planning intended that the conduct would cause a serious injury;
(b) you, in company with two or more other persons caused the serious injury; and
(c) you planned in advance to have with you and to use a firearm and in fact used that firearm to cause the serious injury.
91As the elements of the offence applicable to you indicate, you had planned to cause serious injury with a loaded handgun in the company of others. You discharged the firearm twice with one bullet lodging in a wall in the loungeroom. The second shot was directed at Mr Atem’s head but struck him to left side of his nose, travelling through his head and lodging behind his right ear. Mr Atem was also attacked by your co-offenders with a chair, a garden stake and a knife. He was struck to the head five or six times with the stake, and stabbed in the left hip and stomach with the knife. It is a matter of good fortune that the violent attack did not result in loss of life or even more significant injuries. Having said that, the injuries sustained by Mr Atem were very serious. Although the injuries from the gunshot did not require surgery, the gunshot bullet fragments remain embedded in his face and continue to cause him pain and discomfort. Mr Atem did require surgery in respect of the wounds caused by the knife.
92Although, Kuol, you are being sentenced for a different offence, you accept that you were complicit in the attack upon Mr Atem.
93I am prepared to accept that you, Thiep, intended to cause serious injury and you, Kuol, foresaw the likelihood of serious injury as opposed to really serious injury.
94The offending has quite naturally had a devastating and significant impact upon the family. They continue to live with the trauma that you are responsible for.
95Thiep, you also fall to be sentenced for another entirely separate and extremely serious incident. This was committed by you in company with others only four or so months after the aggravated home invasion.
96In respect of this incident, you have pleaded guilty to aggravated burglary which carries a maximum penalty of 25 years’ imprisonment. You have also pleaded guilty to three offences of theft. Theft carries a maximum penalty of 10 years’ imprisonment.
97The occupants of the jewellery store were subjected to a terrifying attack. The terror of the attack is obvious from the CCTV. It was brazen offending occurring in daylight hours in a busy public street. It was pre-meditated, involving the use of stolen vehicles and sledgehammers. It was committed in company where you and your co-offenders wore dark clothing, masks and gloves. You and others used the sledgehammers to smash the front glass window. Having gained entry, the sledgehammers were used again to smash the display cabinets. All of this occurred as the owner of the store, her family members and staff were screaming and yelling. The impact of your offending upon Ms Dang has, once again, not surprisingly, been devastating. Jewellery valued at $428,560 was stolen and sold by you for profit. You were also on bail at the time of this offending.
98Both of you have a relevant prior criminal history with periods of detention in a Youth Justice Centre. While you are not to be punished for your prior history and neither does it increase the objective gravity of the offending before me, it is relevant in a number of ways. Firstly, I regard your moral culpability as high. You are not first time offenders entitled to a greater degree of leniency on account of your youth. Secondly, your prior history suggests that your prospects of rehabilitation are not favourable and the community must be protected from such outrageous offending. Thirdly, despite opportunities you have continued to commit very serious crimes and the sentence this Court imposes must seek to deter you.
Kuol’s role in the offending
99In respect of you Kuol, I will of course sentence in accordance with the circumstances of your participation as articulated in Exhibit K.
100The prosecution accept that you did not personally cause injury to Mr Atem and you were not personally in possession of a weapon. You were the first person to leave the house after the gunshots.
101Nevertheless, it is agreed that you knew in advance that you were attending the home to do a “job” in relation to Geoffrey Wani and that your group was going to “terrorise some people” when they arrived at the address. This is why you turned your phone off so that your movements could not be traced. Along with the others, you had concealed your identity with dark clothing and a face covering and jumped a fence to the property. You became aware that Thiep had a firearm and the other two had offensive weapons, namely a knife and a garden stake, upon entry to the address and just prior to entering the house itself. You were present when the acts of violence occurred and your presence assisted and encouraged Thiep and the others. You left the scene in the same vehicle as your co-offenders.
Matters in mitigation – Thiep
102I have had regard to the following material tendered on your plea:
(i)Written submissions dated 14 February 2023 (Exhibit T1).
(ii)Psychological report dated 7 February 2023 prepared by Ms Laura Fleming (Exhibit T2).
(iii)Supplementary report dated 20 October 2023 prepared by Ms Laura Fleming (Exhibit T3).
(iv)Letter dated 3 November 2023 prepared by Ms Candice Vella, Acting Assistant Commissioner, Sentencing Management Division (Exhibit T4).
Pleas of guilty
103I have had regard to the chronology set out in Exhibit H. I accept that both sets of offending resolved to pleas of guilty in the Magistrates Court. Importantly, no witnesses were subjected to any cross-examination. Your pleas of guilty have saved the community the time and cost of a trial and spared the victims from having to give evidence. Your pleas have facilitated the course of justice and you have taken responsibility for your actions. The utilitarian benefit of your plea assumes much greater significance in that the pleas were indicated when this Court was facing an increased backlog of trials as a result of the Covid-19 pandemic.[32]
[32]Worboyes v The Queen (2021) 96 MVR 344.
Remorse
104Your conversation with the operatives in December 2021 showed a complete absence of remorse. However, I accept that since then, demonstrated by your pleas of guilty and your current intentions to lead a decent life free from associations with gangs, shows some limited evidence of remorse. I also note Ms Fleming’s statement:
Mr Thiep reflected these had all been bad choices and the victim’s would have been “terrified”. He accepted he would receive a form of punishment. Mr Thiep indicated he realised his remand likely prevented the escalation of his behaviour. He maintained his connection with others had ended as they were all in custody and he would not be held to group membership as everyone would respect his decision to change for his son.[33]
[33]Exhibit T2, [50].
Youth
105At the time of the offending, you were 19 years old and are now aged 22. Your youth remains an important consideration. It is always in the interests of the community that young men learn from their offending and assimilate back into the community, leading law-abiding lives. That appears to be your intention and you maintain the support of your mother and siblings. You have a son for whom you wish to become a better person.
106I have had regard to the well-known propositions articulated by the Court of Appeal in Mills[34] and Azzopardi.[35] While youth and rehabilitation remain important, it is plainly not a primary consideration in this case. The objective gravity of your offending and your criminal record requires the court to give prominence to the punitive principles of general deterrence, specific deterrence, just punishment, and denunciation. Protection of the community is also an important consideration.[36]
[34]R v Mills (1998) 4 VR 235 (‘Mills’).
[35]Azzopardi v The Queen (2011) 35 VR 43 (‘Azzopardi’).
[36]Makieng v The Queen [2022] VSCA 52, [44] (Priest and Kyrou JJA).
107I note you displayed reluctance when discussing the offending with Ms Fleming. However, you agreed that the aggravated home invasion incident was committed as an act of retaliation for the injuries caused to one of your friends.
108In respect of the aggravated burglary, you indicated to Ms Fleming that you struggled to recall the incident as you were under the influence of cocaine at the time. You denied any peer pressure and stated “everyone makes their own choices”. You added that your motivation for this offending was to obtain money as you were “addicted to the boss life, the faster life, cash, luxury clothes and hotels”.
109You were aware that your disclosures to the covert operatives implicated you in the offending. You told Ms Fleming that your disclosures made you feel powerful and substantial by boasting about yourself.[37]
[37]See [48] – [49] of Exhibit T2.
110Your counsel submitted that as you have matured you no longer harbour a dream to live the “high life”. You have completed Year 12 and have no issues with literacy. Your intention is to study and find employment and endeavour to be a good example to your son.
111At this stage, I am unable to display any real confidence and your prospects of rehabilitation are guarded at best.
112Having regard to the contents of the letter from Ms Candace Vella, it can hardly be argued that you have been a model prisoner. As your counsel stated, you have certainly not used your time in custody productively.
113Ms Fleming’s risk assessment places you in the moderate-high risk category for future violent behaviour.[38] She states:
Mr Thiep requires intensive psychological interventions to process his trauma history and personality vulnerabilities, allow him to develop adaptive coping skills to learn to manage his symptoms, regulate his emotions and behaviour, and improve his functioning, otherwise, he is likely to continue to relapse to substance use upon release to self-medicate, and engage in similar offending behaviour.[39]
[38]Exhibit T2 [76] – [93].
[39]Ibid [108].
Burden of Imprisonment
114You have been on remand since 3 December 2021. I accept that you have endured a much more harsh regime in custody as a result of the restrictions placed by the pandemic. You were required to undergo 14 days of protective quarantine when you arrived at Metropolitan Remand Centre on 5 December 2021. There have been restrictions on face to face visits and you have endured lockdowns.
115I have had regard to Ms Fleming’s psychological reports. Although, you were reluctant to talk about traumatic events you have experienced, she has diagnosed you with Post-Traumatic Stress Disorder (PTSD). In addition, you are diagnosed with substance use disorder, now in enforced remission, and present with antisocial and borderline personality traits. Ms Fleming describes the symptoms of PTSD that you exhibit as including intense distress, flashbacks and nightmares.[40] In her more recent report, Ms Fleming states:
Currently, Mr Thiep continues to experience symptoms of PTSD with recent triggering events of the assault on his cousin. In particular, he is re-experiencing symptoms of past traumas and feeling on edge.[41]
[40]Exhibit T2 [73].
[41]Exhibit T3 [40].
116Although you are receiving online mental health counselling every two to four weeks and are taking medication,[42] Ms Fleming opines that this treatment is not intensive enough to assist with managing or reducing your PTSD symptoms. You continue to be triggered in custody and fear for your own well-being.[43]
[42]Ibid [26].
[43]Ibid [46].
117Accordingly, I accept that limbs five and six of Verdins[44] are enlivened. Your mental health, in particular the symptoms of PTSD, will result in a term of imprisonment weighing more heavily on you and there is a serious risk that imprisonment will have a significantly adverse impact on your mental health.[45]
[44]R v Verdins (2007) 16 VR 269 (‘Verdins’).
[45]No reliance was placed on any other limbs. In particular, no reliance was placed on [37] of Exhibit T1.
118On 12 October 2022, you were classified as a Long Term Management (LTM) prisoner. As you are in a high security unit, your access out of your cell is limited to one hour per day. Your counsel fairly conceded that you period in LTM between October 2022 and July 2023, was as a result of your less than satisfactory conduct in custody.[46] As the Court of Appeal said in TheQueen v Stevens,[47] if the offender’s placement within the system is attributable to their own past conduct such as violence towards others, or drug use, or the refusal to comply with the ordinary standards that must be maintained if the prison environment is to remain safe, then no significance can be attributed to it when considering the sentence to be imposed.
[46]See exhibit T4.
[47][2009] VSCA 81, [22] and [23] (Maxwell P, Vincent JA and Hargrave AJA).
119However, your exit from LTM was endorsed on 20 July 2023. Despite that endorsement, the decision was reversed and you have remained in LTM.[48] That reversal was not based on your actions but a perceived risk that you may seek retribution for an assault on a fellow prisoner who was a close friend of yours. Therefore, I accept that you have remained in the restrictive regime since 20 July 2023, although your continued detention in the LTM was not down to any conduct attributable to you. Accordingly, I take that second period from 20 July 2023 until now into account. In particular, bearing in mind your youth and PTSD, your incarceration in LTM has been and will continue to be more burdensome.
[48]Remains in LTM as at date of sentence.
Delay
120Both sets of incidents giving rise to the charges against you, resolved in the Magistrates Court. The aggravated burglary incident resolved on 4 July 2022 and the aggravated home invasion resolved on 13 December 2022. The matters came before me for a plea hearing on 14 February 2023.[49] The lawyers acting for you at the time requested an adjournment to obtain a further psychological report and other plea material, and the plea hearing was adjourned to 18 April 2023. On 30 March 2023, your lawyers informed the Court that the further report and the other plea material was still not available and requested that the matter be adjourned alongside Kuol, who had been committed to this Court on 27 March 2023. Kuol’s plea was not ready to proceed until mid-August.[50] At some stage you changed your legal team. The plea was listed on 3 October 2023. The further plea material that your previous lawyers were requesting had still not been received. Plea submissions were heard, but the hearing was adjourned part heard to 10 November 2023, for your lawyers to obtain a further report from Ms Fleming and other material from Corrections. On 10 November 2023, I heard further submissions based on the new material and adjourned the matter for sentence.
[49]Arraignment proceeded, case was opened and victim impact statements were tendered.
[50]Due to delays in obtaining a psychological assessment.
121As the brief chronology indicates, this is not a case where the delay in sentencing can be attributed to the prosecution or the Court. There were requests by your lawyers, both previous and current lawyers, to adjourn the matter to obtain further plea material. I accept that an aspect of the case involved waiting for your co-accused, Kuol, to join you so that a joint plea hearing could proceed. Nevertheless, I accept that as a young man, although you know the sentence will involve a significant term of imprisonment, you have been waiting anxiously to find out the actual disposition.
Matters in mitigation – Kuol
122I have had regard to the following material tendered on your plea:
(i)Defence Outline of Plea Submissions dated 28 September 2023 (Exhibit K1).
(ii)Psychological report dated 25 September 2023 prepared by Mr Guy Coffey (Exhibit K2).
(iii)Email from Acting Detective Sergeant Melissa Scholte sent to your solicitor on 25 August 2023 (Exhibit K3).
(iv)Remand report (Exhibit K4).
(v)Letter from Alex Findlay and Tim Myles dated 9 October 2023 (Exhibit K5).
(vi)Further Defence Plea Submissions dated 3 October 2023 (Exhibit K6).
Pleas of guilty
123You have also pleaded guilty at an early stage. That entitles you to a significant sentencing discount. I will repeat what I have said earlier in relation to your co-accused. Your pleas of guilty have saved the community the time and cost of a trial and has spared the victims from having to give evidence. Your pleas have facilitated the course of justice and you have taken responsibility for your actions. The utilitarian benefit of your plea assumes much greater significance in that the pleas were indicated when this Court was facing an increased backlog of trials as a result of the Covid-19 pandemic.
Genuine remorse
124I am also satisfied that in your case, your pleas of guilty are a true reflection of your genuine remorse. In addition to your guilty pleas, there is ample evidence of remorse.
125Having denied the offending in your initial police interview, during the break, unknown to you, your conversation with the informant was being recorded. During that conversation you made admissions and expressed regret. At one point you stated:
The victim didn’t deserve what happened, nobody did. I can guarantee you it’s the biggest regret of my life.[51]
[51]Covert recording, p.791 and 800.
126During the formal interview that followed, you maintained your admissions and continued with expressions of remorse, at one point saying that it had been keeping you up at night and if you could, you would take it back.[52]
[52]Ibid, Q & A 530.
127Your remorse continued during calls from prison to your mother and girlfriend. During a phone conversation with your girlfriend on 4 June 2022, you stated:
I’ve realised that it’s what I - what I will do isn’t just about my freedom. It’s about making things right with this - the victims, you know, that person that the alleged incident happened with. It was an innocent person that did not deserve that. Now, if I sit here and allow everything to play itself out, that’s just me being a coward, you know. Even though, like, I - the blame is not all on me, I played - I played my part and I regret it every single day of my life. And I can’t change what’s happened, but what I can do is change what happens from now. And based on what you’ve told me, like, I think it’s the right thing to do.
128I accept that your admissions to the investigators were important in strengthening the prosecution case against you. You were co-operative with the police. I have had regard to the further defence submissions dated 3 October 2023.
Youth
129Like Thiep, you were also 19 years old at the time of the offending and are now aged 22. I adopt what I said in respect of Thiep as far as your youth is concerned. While youth remains an important consideration, emphasis is required in deterring others who may be minded to commit terrifying offending of this nature. Your criminal record is of real concern and involves the commission of aggravated burglary, aggravated home invasions and other offences of violence. This offending occurred only a month after your release on youth parole. Accordingly, any sentence must seek to deter you from further offending. This offending must be justly punished, appropriately denounced and our community protected.
130In terms of your rehabilitation, Mr Coffey states that you have many historical risk factors indicating a reasonable possibility of further violent offending.[53] He also describes your risk as being at least moderate.[54]
[53]Exhibit K2 [101].
[54]Ibid [87].
131Although, you have expressed genuine remorse, I note you have demonstrated similar regret and sentiments having committed serious offending in the past, only to continue to offend. Mr Coffey states:
As described, he appears genuinely remorseful. Without minimising the importance of these expressions of good intent and contrition, a conclusion that he is now on the cusp of turning his life around must be cautioned by an awareness that his articulate self-understanding and remorse have caused assessments in the past to be too optimistic. His remorse, which others have identified in the past, has existed on an affective level - feelings of guilt and discomfort about his offending - but has not translated into actions likely to reduce the probability of his offending: his admission that “I was committed to stop [offending] but I was not willing to change anything” concisely describes the disjunction that has existed between regret and the sustained action necessary to change the course of his life.[55]
[55]Ibid [102].
132However, as your counsel submitted, you are now more mature and better able to reflect on the mistakes that you have made.[56] You have broken your links with anti-social contacts. Mr Coffey states:
Mr Kuol acknowledged that the faith put in him in the past was misplaced. He said this time his commitment is different, far more determined and mature.[57]
[56]See also exhibit K1 [39].
[57]Exhibit K2 [103].
133I have had regard to the positive joint reference from Mr Findlay and Mr Myles. Prior to your arrest and remand, you were working full time as a traffic controller at an Australian Post warehouse in Tullamarine between 8 February 2022 and 9 March 2022.
134One hopes that your determination to lead a law-abiding life free from gang culture and drug abuse materialises. It is hoped that you receive the treatment and support articulated by Mr Coffey in his report.[58] At this stage, I cannot be optimistic about your successful rehabilitation and regard your prospects as guarded.
[58]Ibid [104].
135I take into account that you have spent your time on remand in more difficult circumstances during the pandemic. In addition, you have been on remand in protective custody. At the time of the plea hearing on 3 October 2023, you had only received one in-person visit from family. I was told you now have access to courses and your family planned to visit you more often.
Parity considerations
136I am required to take into account parity in respect of the offending on 8 July 2021. Both of you fall to be sentenced for the aggravated home invasion. In respect of the attack upon Mr Atem, you have pleaded guilty to different offences which attract different maximum terms.[59]
[59]Recklessly causing serious injury does not attract a minimum non-parole period.
137Both of you have pleaded guilty and were aged 19 at the time of the offending. You were both subject to youth parole at the time of the offending. In addition, Thiep, you were on bail.
138Both of you have a relevant criminal history. However, your criminal history, Kuol, is particularly concerning. You have previously committed and been sentenced in respect of an offence of aggravated burglary and two offences of aggravated home invasion. You were on youth parole in respect of an aggravated home invasion for which you were sentenced in this Court in April 2020. This prior home invasion was committed in the early hours in November 2018 by five of you involving the use of a sledgehammer with the intention to steal a vehicle from an occupied residential home.
139Thiep, your history reveals offences of dishonesty and violence. At the time of this offending you were subject to youth parole for offending including an attempted aggravated carjacking.
140In each case, your prospects of rehabilitation are guarded.
141I also bear in mind that in respect of the attack upon Mr Atem, I am sentencing you, Kuol, for an offence of recklessly causing serious injury. Further, as already alluded to, your moral culpability is less than Thiep, in that you played a lesser role in the offending.
142Further, you, Kuol, co-operated with the police and made important admissions that assisted the prosecution in its case against you.. You have also displayed genuine remorse.
143Thiep, in your case limbs 5 and 6 of Verdins apply. Both of you have endured hardship in custody, but, Thiep, your custodial regime has been far more restrictive. Also, you have endured custody at the height of the pandemic.
Sentencing submissions
144The parties acknowledged the obvious grave nature of the offending. There is no issue that the principles of general deterrence, specific deterrence, just punishment and denunciation loom large. Protection of the community is also important. While rehabilitation may not be the focus, it remains important. There is no issue that significant terms of imprisonment will follow, comprising a head sentence with a non-parole period. Defence counsel acknowledged the minimum non-parole periods in respect of Charge 1 for both of you, and Charge 2 for Thiep.
145I was provided with sentencing cases by the prosecution which I have considered.[60] It is trite to say that ultimately each case turns on its own particular facts and circumstances. The sentencing cases provide a yardstick but are not precedents.
[60]Kheir v The Queen [2014] VSCA 200; Anthony v The Queen [2016] VSCA 22; Sovolos v The Queen [2018] VSCA 149; Ahmed v The Queen [2012] VSCA 200; Dean v The Queen [2020] VSCA 100; Makieng v The Queen [2022] VSCA 52; Hodgson v The Queen [2021] VSCA 73; Konamala v The Queen [2016] VSCA 48.
Totality and double punishment
146I am conscious of avoiding double punishment and I must bear in mind the question of totality.
Sentencing - Thiep
147Having taken into consideration all relevant matters and circumstances, I sentence you, Thiep, on Indictment Number C2215113, as follows:
· On Charge 1, you are convicted and sentenced to 6 years’ imprisonment.
· On Charge 2, you are convicted and sentenced to 6 years and 6 months’ imprisonment.
· On Charge 3, you are convicted and sentenced to 18 months’ imprisonment.
· On Charge 4, you are convicted and sentenced to 6 months’ imprisonment.
· On Charge 5, you are convicted and sentenced to 5 years and 9 months’ imprisonment.
· On Charge 6, you are convicted and sentenced to 18 months’ imprisonment.
· On Charge 7, you are convicted and sentenced to 9 months’ imprisonment.
· On Charge 8, you are convicted and sentenced to 9 months’ imprisonment.
· On Charge 9, you are convicted and sentenced to 7 days’ imprisonment.
148On Summary Charge 12, you are convicted and sentenced to 1 month imprisonment. On Summary Charge 13, you are convicted and sentenced to 14 days’ imprisonment. On Summary Charge 16, you are convicted and sentenced to 2 months’ imprisonment.
149The sentence on Charge 2 will be the base sentence. Eighteen months of the sentence on Charge 1, twenty months of the sentence on Charge 5, and one month of the sentence on Charge 6 will be served cumulatively upon each other and the sentence on Charge 2. The remaining sentences on the indictment and summary offences will run concurrently.
150This makes a total effective sentence of 9 years and 9 months’ imprisonment. I fix a non-parole period of 6 years and 6 months’ imprisonment.
Pre-sentence detention
151Pursuant to s 18 of the Sentencing Act, the period of 826 days of pre-sentence detention is declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the Court’s records.
S 6AAA declaration
152Pursuant to s 6AAA of the Sentencing Act, I indicate that had you pleaded not guilty and been convicted, I would have sentenced you to a term of 12 years and 6 months’ imprisonment with a non-parole period of 9 years.
Sentencing – Kuol
153Having taken into consideration all relevant matters and circumstances, I sentence you, Kuol, on Indictment Number N10472377, as follows:
· On Charge 1, you are convicted and sentenced to 5 years’ and 6 months’ imprisonment.
· On Charge 2, you are convicted and sentenced to 4 years’ imprisonment.
154Charge 1 will be the base sentence. Fifteen months of the sentence on Charge 2 will be cumulated on Charge 1. This makes a total effective sentence of 6 years and 9 months’ imprisonment. I set a non-parole period of 4 years and 6 months’ imprisonment.
Pre-sentence detention
155Pursuant to s 18 of the Sentencing Act, the period of 730 days of pre-sentence detention is declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the Court’s records.
S 6AAA declaration
156Pursuant to s 6AAA of the Sentencing Act, I indicate that had you pleaded not guilty and been convicted, I would have sentenced you to a term of 9 years’ and 9 months’ imprisonment with a non-parole period of 7 years.
Other orders
157I grant the two disposal orders sought by the prosecution in respect of Indictment No. C2215113 and the disposal order sought in respect of Indictment No. N10472377.
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