Director of Public Prosecutions v Thiwat

[2018] VCC 2084

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01080

DIRECTOR OF PUBLIC PROSECUTIONS

v

WUOK THIWAT

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	21 September
DATE OF SENTENCE:	7 December 2018
CASE MAY BE CITED AS:	DPP v Thiwat
MEDIUM NEUTRAL CITATION:	[2018] VCC 2084

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Pleas of guilty – causing injury intentionally (2 charges)
Legislation Cited: Crimes Act (1958); Sentencing Act (1991)
Sentence: Convicted and sentenced to a total effective sentence of five years’ imprisonment with a minimum term to be served before being eligible for parole of three years’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Cookson	Office of Public Prosecutions
For the Accused	Mr M. Page	Peter Monagle & Associates

HIS HONOUR: 

1Mr Thiwat, you can remain seated and I will ask you to stand when I find and pronounce sentence.  I understand that it is agreed that the pre-sentence detention is 350 days now?

2COUNSEL:  Yes, Your Honour.

3HIS HONOUR:  Thank you.  Yes, Mr Wuok Thiwat, spelt W-u-o-k, T-h-i-w-a-t, is now aged 23, having been born on 9 April 1995.  He committed these offences when 22.  He is an Australian with a Sudanese background, having come to Australia as a very young child. 

4Mr Thiwat pleaded guilty to two charges in regard to offences of cause injury intentionally on 22 December of last year, when two victims, one, an 18-year-old called Keonaohi, K-e-o-n-a-o-h-i, who was the victim in Charge 1, and Marsala Sengdara, S-e-n-g-d-a-r-a, who was 17, was the victim in Charge 2. I point out that the crimes pleaded to, being two charges under s.18 of the Crimes Act, of cause injury intentionally, bring with them a maximum period of imprisonment of ten years. 

5Exhibit A was the prosecution opening, accepted by Mr Page as the facts upon which I am to sentence his client.  The location of these crimes was the Knox Shopping Centre, significantly, near a school and close to where a Christmas event was happening.  A large gang of some 14 to 18-year-olds had gathered, apparently, the reason being a fight was to happen between two girls.

6As indicated in his record of interview, in answer to Question 321, Mr Thiwat took with him to such scene a Swiss Army Knife, located in his sock.  It was not long after he arrived, apparently, that the first altercation occurred. It was suggested by Mr Thiwat that there had been a background issue between Mr Ohi, and his brother.  For whatever reason, an argument began between them, they struck each other, and as a result, Mr Thiwat slashed Mr Ohi on a number of occasions, with the Swiss Army Knife. 

7Concerningly, in the record of interview in answer to question 204 and 207, Mr Thiwat indicates that he had no idea of precisely where he struck the victim or how many times.  The proposition, lightly put, was that it was done for some purpose of self-defence.

8Charge 2 also happened in the same altercation, when Mr Ohi's friend,
Mr Sengdara, tried to assist.  There was a further altercation, Mr Ohi had retreated from the altercation, becoming aware of the degree of his injury. Finally, Mr Thiwat was subdued by a further person called Madin and
Mr Sengdara.  However, in being part of that subjugation, Mr Sengdara was stabbed twice to the left shoulder and thigh. 

9Exhibit D sets out the medical material from the Eastern Hospital, the injuries to Mr Sengdara.  There was a slash to his left shoulder, a deep laceration to the left thigh, 4 x 4 centimetres deep, and one in the left - at the area of the left scapula, 2 x 5 centimetres deep.  And those are demonstrated on the photos, Exhibit B. 

10In regard to Mr Ohi's injuries, he was stabbed below his eye, in the left bicep, a 5 centimetre stab wound, in the left forearm, where there was a 15 centimetre stab wound which was deep, and twice in the left thigh. 

11Mr Ohi was conveyed to the Dandenong Hospital and spent two nights there.  He had surgery on his left forearm.  The most recent material in regard to that is that he continues to have limited use of his left hand.  There is potential for further surgery for Mr Ohi, and there is no more up to date material, since the last time, is there?

12COUNSEL:  No, Your Honour.

13HIS HONOUR:  As I say, those photos set out in regard to both of their injuries, Exhibit B.  The treatment that the second victim, Mr Sengdara, received is also set out in the materials from the Maroondah Hospital, Exhibit D.  There would seem to be no ongoing issues in regard to Mr Sengdara.  An observation of these injuries, a perusal of the medicals and an understanding of the prosecution summary demonstrates clearly to the Court that this was a grave use of a weapon, in this case, the Swiss Army Knife, by Mr Thiwat.

14Mr Thiwat has concerning priors.  He had been just out of gaol - when I say "just", somewhere approximately between three or five months.  As I understand the position, he was actually released, if this is correct - well, sorry, it is somewhere between three and five months anyway.  He had served a full 39 month sentence, which was a combination of the two sentences imposed, which had been tendered in this matter by Judge Chettle. 

15One being a sentence in June 2014 for armed robbery, where the weapon used was a meat cleaver, and one in July 2014, where the charge was attempted armed robbery, and in that instance a knife was used.  There are, in Mr Thiwat's background, concerning prior offences, insofar as assault matters are concerned. 

16Apart from the attempt armed robbery and the armed robbery that I have indicated, there is a recklessly cause injury in the Ringwood Children's Court, reported in 2013.  That is mentioned a number of times because there was a number of breaches, but it is only the one recklessly cause injury, that actual offence occurred at, it would appear, sometime in 2012. 

17It certainly was dealt with first in December 2012.  There is an assault police in September 2013.  In 2014, there is an unlawful assault.  As I say, one has to be careful not to be overwhelmed by the recklessly cause injury.  There is an attempted armed robbery, again in the Melbourne Children's Court in March of 2011, and there is a burglary in January 2011.

18As I say, all of those crimes, albeit at Children's Court, are concerning when you are dealing with a person who is now aged only 23 and, unfortunately, has already served a considerable period of gaol. 

19It was concerning to me that Mr Thiwat served the full sentence imposed by Judge Chettle.  I had my Associate write to the Adult Parole Board of Victoria, in a somewhat pre-emptory reply, the decision was conveyed that the reason for him not being paroled at the expected time, was that he had declined such parole. 

20The community correction report, which I sought as a result of the submission made by Mr Page, perhaps explains that decision.  Indeed, as Mr Page has put today, it would seem that because of his unfortunate background, his difficulties with his family, difficulty with the ongoing relationship with his father, it seems that he has made unfortunate connections and those connections appear to have been tied up in one way or another with the justice system. 

21Mr Thiwat has been a person who has found it very difficult to comply with authority and there are numerous indications in the report of him having difficulty, indeed, as said at the bottom of p.3:

"During Mr Thiwat's pervious incarceration, a parole of suitability assessment dated 18/11/16 noted there had been 42 incidents since he was placed into custody, resulting in his transfer from the Fulham Correctional Centre to the Barwon prison.  He was non-compliant with prison rules, refused to work, abused staff, tested positive three times for drugs.  No, he was not on a substitute program."

22I must say, having read that report, it is very concerning that a person in gaol behaves in such a manner.  As is the letter itself from the Parole Board, and as is the fact that a young man of his age serves such a long sentence. The prosecution sought a disposal order which I will sign.  Insofar as the submission, which I will come to, of Mr Page, that a s.44 order be made in regard to
Mr Thiwat, the prosecutor submitted that the circumstances of these crimes were such that such a determination is inappropriate.

23In regard to Mr Page's submissions, he tendered as Exhibit 1, outline of submissions and he spoke to those.  He firstly relied upon the guilty plea and it is accepted that such a plea is utilitarian, and assists the achievement of justice.  I accept, in the circumstances, given the amended indictment, that it was made at the earliest stages. 

24Mr Page reminded the Court that we are dealing with a young man.  He, in particular, set out at paragraphs 8 through to 19, the personal circumstances which set out the background of his client.  Those being, in particular, his young age upon arrival, the problem of a large family with an absent mother and a violent father, limitations in regard to education and, unfortunately ultimately, the use of ice.

25Insofar as his background was concerned and, indeed, the Court's determination, Mr Page relied on the report of Dr Scully, the psychological report which was tendered as Exhibit 2, dated 10 September 2018.  It is appropriate to quote from it, the history, in particular, is detailed at paragraphs 1 to 9, that is the personal history of Mr Thiwat.  Matters were put to me insofar as the difficulties with his father, the circumstances as to the loss of the mother, the homelessness and the ongoing difficulties are confirmed.

26It is also noted that Mr Thiwat has recently become friendly with a particular woman, who has been very supportive and is keen, ultimately, to take up living with him. 

27Mr Thiwat has had a difficult educational history, has largely been unemployed and also had a difficult drug history.  Most concerning is that he reported to Dr Scully that for a number of years, he has been using ice every second day.  It would appear that, to date, he does not have any detectable psychiatric or paranoid type injuries, however, if he does not stop consuming ice in that manner, it will not be long. 

28Dr Scully said at paragraph 28 as follows:

"Overall, Mr Thiwat appeared earnest in his expressions of regret for his actions and an acceptance of his culpabilities.  However, he did not express specific remorse for the harm to the victims and does not appear to have an appreciation for the gravity of his actions and their consequences, nor express an appropriate emotional or empathetic response in this regard, which appears to be consistent with his own reported emotional blunting and inappropriate responses in circumstances of a sad and serious nature."

29After taking, and making a mental state examination and psychological testing, at [40], a diagnosis was made of antisocial personality disorder with a comorbid alcohol use disorder and symptoms of PTSD.  That antisocial disorder stemming from his history of familial displacement, early exposure to trauma, parental physical abuse, and lack of stable emotional attachment to an adult caregiver.  The issues of alcohol and drugs is also noted. 

30To emphasise the matters put by Mr Page, at the bottom of paragraph 40 Dr Scully said:-

"As a result of disconnection from his family, Mr Thiwat has sought a sense of belonging, bonding and loyalty with antisocial peers on the streets and began engaging in criminal behaviour and displaying violent tendencies from a young age.  Since this time, he has spent a considerable time in custody for his relatively young age and will have served to further stunt his development throughout the critical period of brain development, in which the skills of independence, planning, judgment and consequential thinking are normally developed."

31Insofar as his future is concerned, [42], what is clear from Dr Scully's report is that he needs, in order to rehabilitate, intensive treatment of a psychological and personal modelling kind.  Concern has been expressed that a lengthy term in custody may further cement the pro-criminal attitudes and antisocial tendencies, that he now has.  The treatment required would be a minimum of some 12 months such treatment outcome is dependent on his willingness to engage in therapy, his ability to learn to regulate his behaviour and his impulsivity. 

32It was as a result of those matters that I thought it appropriate to get a Forensicare report, in regard to Mr Thiwat and, as I indicated, that report was received and has been tendered today.  It is a report from the psychologist,
Dr Jenny Patterson, dated 27 November 2018.  It does not really greatly assist, except that it confirms the opinions of Dr Scully.  Fortunately, as I have said, given the amount of ice he has used, there was, as I have indicated, no unusual perceptual experience, nor any form of thought disorder, nor any delusional content through interview. 

33Mr Thiwat does not have any social issue, in the sense of making friends.  Unfortunately, as has been remarked, many of his friends are those who already have problems. Mr Thiwat’s difficulties with education and sporadic employment background were detailed and I have already referred to those, also the issues of loyalty to his friends in gaol and problems of fighting in gaol being referred to. 

34Mr Thiwat again expressed, in paragraph 32, a degree of remorse as is indicated, and noted that it was concerning to him that he caused an injury such as would have impact on his victim's capacity to use his arm.  The ongoing problems insofar as his lack of employment were again noted.

35In the end, the perceptions as to the future high risk of general violence being committed, disconnection from family and, unfortunately, a high risk of future violence are all detailed.  As I said, consistent with Dr Scully's report, in the end, if this young man is going to change his way, it is all going to have to be by the steps that he takes.  But, of course, both psychologists recommend that he does need much assistance.

36The Community Corrections report, although ultimately being favourable to him, does, as set out at p.6, make the same guarded comment about Mr Thiwat’s potential about his future, but sets out clearly the need for assistance. 

37In particular, he needs programs to reduce reoffending, mental health treatment in accordance with Dr Scully's recommendation, alcohol treatment, alcohol abstinence, drug treatment and similar such treatment.  As I indicated, it is my intent to send all those reports to the Corrections authorities. 

38As I said, as a combination of all those matters, Mr Page submitted to this Court that it would be appropriate, especially given his age, and that he is at a particular brain forming time in his life, that with this particular case, that a s.44 combined order should be made.  It has not been an easy consideration for me because I do not like, imposing a sentence of prison of some length, on a young man. 

39The seriousness of these crimes is such that the principles of general and specific deterrence, and indeed punishment must be recognised.  The difficult process is balancing those against his young age, the need to effect rehabilitation, if one can, and coming up with an appropriate determination. 

40It has finally been my conclusion that given the seriousness of these crimes and taking into account his antecedents, despite his youth and the need for him for appropriate rehabilitation, that the principles of general deterrence, specific deterrence and punishment must take precedence in this sentence.  As I said at the start of this sentence, Mr Thiwat presents a very concerning picture to this Court. 

41Mr Thiwat does not, at this stage, seem to have been able to accept any assistance in gaol.  I intend to recommend he does get such assistance and whether he takes or avails himself of that, ultimately, is a matter for him, that certainly it is a very disturbing situation that this Court faces in sentencing Mr Thiwat. 

42Yes, Mr Thiwat, if you would stand up please.  In regard to the first charge, you will be sentenced to a period of imprisonment of four years.  In regard to the second charge, a period of imprisonment of three years.  I order that one year of the sentence in regard to Charge 2 be served cumulatively upon the sentence imposed in regard to Charge 1, making a total aggregate sentence of five years. 

43I order that the period that you must serve before being eligible for parole is a period of three years. I order, pursuant to s.18, that the pre-sentence detention to date, being 350 days, be deemed to be a service of this sentence, and that such declaration be recorded in the records of this Court. I will sign the disposal orders sought.

44Mr Thiwat, it is necessary for me to point out, as best I can, the benefit to you of your plea of guilty.  As I said to you from the start and as you are well aware, the maximum penalty in regard to these crimes is ten years in each event.  Your priors are not of any assistance to you. 

45Had you not pleaded guilty, doing as best I can to look at one factor only, as required by Parliament, but obviously having to take into account all of the factors, the period that you would have been given had you not pleaded guilty, is a period of seven years with minimum of five.  Your plea of guilty has meant that you get a period in gaol of five years with a period to serve before being eligible for parole of three years, hence the indication to you of the value of your plea of guilty.

46Mr Thiwat, finally, can I just say you have just got to do something; change your life.  The Court fully accepts the difficulties you have had, it fully understands the background and explanation, but if you do not change your life, you are not going to get out of gaol, and that is not a great circumstance for you or our community.  As I say, I intend to send these reports to Corrections and ask that, providing Mr Thiwat consents to it, he gets as much treatment as he can while he is in gaol.  Yes, are there any other matters, Mr Prosecutor?

47MR COOKSON:  No, Your Honour.

48HIS HONOUR:  Mr Page?

49MR PAGE:  No, Your Honour.

50HIS HONOUR:  Yes, thank you, Mr Thiwat.  He can be taken down.  Thank you, madam.  Yes, let us hope we are wrong.

51COUNSEL:  Yes, Your Honour.

52HIS HONOUR:  Thank you both, gentleman, for your assistance, and your instructor of course.

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