Director of Public Prosecutions v Tong-Yai
[2021] VCC 1816
•7 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No CR-21-01305
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| V |
| CHOL TONG-YAI |
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JUDGE: | His Honour Judge Holding | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 October 2021 | |
DATE OF SENTENCE: | 7 October 2021 | |
CASE MAY BE CITED AS: | DPP v Tong-Yai | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1816 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty; Recklessly causing serious injury; Youthful Offender; Extensive criminal history; Covid-19 circumstances taken into account; Medium level of seriousness; Anger issues; Remorse; Focus on rehabilitation; Mental health treatment.
Legislation Cited: Crimes Act 1958 (Vic) s 17; Sentencing Act 1991 (Vic) ss 48D(3)(d)(a), (b), (d), (e), (f) and s 6AAA.
Cases Cited:Smith v R [2014] VSCA 268; R v Mills [1998] 4 V.R 235; Boulton v The Queen [2014] VSCA 342; Bugmy v R ]2013] HCA 37; McKee and Brooks [2003] VSCA 16.
Sentence: Sentenced to a term of imprisonment of 287 days and a Community Correction Order for a period of 15 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr E. Dober | Abbey Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr J. Portelli | James Dowsley & Associates |
HIS HONOUR:
1CHOL TONG – YAI you have pleaded guilty to one charge of recklessly causing serious injury contrary to s 17 of the Crimes Act 1958. This offence carries a maximum penalty of 15 years’ imprisonment.
Circumstances of the offence
2The circumstances of your offence are contained in the Prosecution opening, which was exhibited on your plea.[1] I act upon the facts as outlined in the opening, which are not disputed by you. I will briefly summarise those circumstances.
[1] Exhibit A.
3On Saturday 14 November 2020 at 11:00am, Manoj Kumar Payal (the victim) commenced his shift working at the ‘Luv a Kebab’ take-away store situated at 1 Exford Road, Melton South. Mr Payal is the owner of the store. At the time of the incident, he was 37 years of age. Another staff member, Loveleen Kaur, was also working at the store during the shift.
4At approximately 4:00pm, you and two other companions entered the store.
5Mr Payal was standing at the register. One of your companions selected a drink from the drinks fridge and approached the register. He attempted to pay for the drink using his mobile phone. The transaction was attempted and declined multiple times. The male then attempted to pay using his bank card but this, too, was declined.
6After the attempts to pay for the drink were unsuccessful, the male attempting to make the purchase asked Mr Payal if he could have the drink for free. Mr Payal refused. One of your companions then stated, ‘Is it because I am black? Is that why you’re not giving it to us for free? The three of you then started arguing with Mr Payal and verbally abusing him.
7At this point, you removed your iPhone from your pocket and began recording Mr Payal.
8The male who attempted to purchase the drink hit the sales computer screen, so Mr Payal told you and your two companions to leave the store. You and your companions continued to yell and swear at Mr Payal, so Mr Payal grabbed a broom handle and chased the three of you out of the store.
9As the three of you were being chased out of the store, the male who attempted to purchase the drink, picked up a stool from near the exit, and threw it in the direction of Mr Payal.
10You and your companions remained at the front of the store and taunted Mr Payal from outside. Mr Payal describes being scared and shaking.
11About half an hour later, you re-entered the store, closely followed by one of your companions. As soon as you entered, you were abusive towards Mr Payal walking towards him as he stood behind the register. Mr Payal then walked towards the rear of the store and grabbed a broom handle to protect himself.
12As you approached Mr Payal you had clenched fists and your companion attempted to hold you back. Despite being momentarily held back you then proceeded to punch Mr Payal three times to the face.
13Mr Payal then chased you out of the store. Your companion, standing near the exit to the store, took hold of Mr Payal by the upper leg, to stop him from chasing you.
14A few seconds later, you re-entered the store and again punched Mr Payal multiple times in the face, causing him to fall to the ground.
15While Mr Payal was on the ground, you kicked him five times, then punched him several more times, before again kicking him two final times. Both you and your companion then ran from the store, leaving Mr Payal on the floor bleeding from his mouth, lips and nose area.
16At the time of the incident a CCTV camera was in operation inside the store and recorded footage of the assault.[2]
[2] Exhibit B
17Mr Payal stated that immediately following the attack upon him, his face felt really sore near his eyes and mouth and he felt dizzy. This was hardly surprising, given that after he was later conveyed by paramedics to the Footscray hospital, he was diagnosed with multiple facial fractures including:
a. lower eye socket wall fracture;
b. outer and inner upper jawbone cavity fractures;
c. left cheek bone fractures; and
d. inner skull bone fractures.
18He was also found to have:
a. Tenderness and swelling to the cheeks;
b. Blood in the nostrils;
c. Ongoing headache and jaw pain;
d. A laceration to mouth, causing him to be only able to open his mouth 2 cm; and
e. Bleeding over the white of the left eye.
19Mr Payal made a statement to police on 12 December 2020. In his statement, he described not being able to eat properly for two or three weeks after the incident and being confined to liquids. He was unable to work for over a month to allow for healing. At the time of the committal proceeding on 17 June 2020, Mr Payal gave evidence that he continued to suffer pain from the injuries sustained by you.
20On 22 March 2021, Dr Jason Schreiber of the Victorian Institute of Forensic Medicine completed a forensic medical report relating to Mr Payal. In that report, Dr Schreiber described the injuries suffered in the following terms:
multiple facial bone fractures which is a serious injury constellation. Bone fractures usually take weeks to months to heal, and there is a risk that the bone structures do not heal. They require rest and possibly longer term strong pain medication.
21Mr Payal has been given the opportunity to make a victim impact statement, however, to date such a statement has not been made.
Investigation and arrest
22On 27 November 2020, police attended your residential address and executed a search warrant under the Crimes Act.[3] As a result of that search, police located and seized clothing, that matched the clothing that was worn by you during the incident at the take-away store, as seen in the CCTV footage, namely a grey Nike hooded jumper and Adidas tracksuit pants. Police also located and seized your red Apple iPhone.
[3] Crimes Act (Vic) 1958.
23You were then arrested and conveyed to the Melton Police Station for interview. In the interview you said you did not remember the incident because you took seven Xanax tablets but you admitted that the CCTV footage depicted you as the person involved in the incident and admitted that the seized items belonged to you.
Procedural History
24There is no dispute between the parties, that the issue that was examined at the committal proceeding conducted on 17 June 2020, related to whether the injury suffered by Mr Payal met the legal definition of serious injury. At the time of the committal, you were charged with intentionally causing serious injury. Mr Payal gave evidence and was questioned during the committal.
25On 17 August 2021 there was a case conference conducted in this Court in an effort to assist the parties in resolving issues in dispute. I was informed by the Prosecutor during the plea hearing before me, that not long after that case conference, the Prosecution indicated that they would accept a plea of guilty to a charge of recklessly causing serious injury. You indicated that you would plead guilty to that charge, and you were arraigned in short form on 21 September 2021. The Prosecutor stated that this was an early plea of guilty, in the sense that it was offered shortly after you were given an opportunity, for the first time, to resolve this case by pleading guilty to this particular charge.
26When you were arrested for this offence on 27 November 2020 you were remanded in custody. You were granted bail on 21 January 2021 with strict bail conditions. However, at a committal mention of this matter on 18 February 2021 your bail was revoked because of an allegation of further offending and you have remained in custody up until this time. You have therefore, served a total period on remand in respect to this offending of 287 days.
Personal Circumstances
27You were born in March 2002, in Egypt, and were 18 years of age when you committed this offence. Your counsel, tendered on your behalf a psychological report prepared by Carla Ferrari that details your personal history.[4]
[4] Exhibit 2 Report of Carla Ferrari dated 22 September 2021.
28Your parents are Sudanese and fled Sudan on account of the civil war there. You have two older siblings who were born in Sudan and three younger siblings who were born in Australia. Your family are of the Christian faith and your father fought with rebels in their resistance against the government in Sudan. Your father has told you about his war effort in Sudan. Your father has told you about his wore effort in Sudan and that he was concerned with the struggle against oppression of Christians in that country.
29You were brought to Australia with your parents and older siblings in 2004 when you were approximately two or three years of age.
30Your family initially settled in Reservoir. Your mother was responsible for domestic duties and your father initially found it difficult to find employment. Your family relied upon Centrelink payments to pay for their accommodation and food.
31Your parents separated when you were approximately six or seven years old . You recall your parents constantly yelling and fighting with one another and at times directing their anger and frustrations towards the children. You believe that your parents have been psychologically impacted by their exposure to the civil war in Sudan. You believe that the circumstances in Sudan continue to be a source of considerable concern for your parents as they still have extended family members and friends who remain there.
32Following your parents’ separation, you lived with your mother and siblings. Your mother was entirely reliant on Centrelink benefits to pay for the family rent and expenses. The family would frequently move due to being evicted for overdue rent payments.
33You attended Reservoir Primary School up to grade two and then moved to Melton Primary School where you completed Grade 6. You then attended at Melton Secondary School but left before completing Year 10 because you were expelled for fighting with another student. You then went to Caroline Springs Secondary College until you were placed in youth detention as a result of orders made in the Children’s Court.
34Other than periods in youth detention, and your period on remand in respect of this offending you have always resided with your mother and siblings.
Prior Criminal History
35In terms of your prior criminal history, have a troubling criminal history for someone who is only 19 years old. You appeared in the Children’s Court on four occasions between 8 June 2018 and 3 September 2020 inclusive. The charges included unlawful assault, affray, assault by kicking, assaulting a Youth Justice Custodial Worker, assaulting an Emergency Worker on duty, theft, dealing in property suspected as being proceeds of crime and committing indictable offences whilst on bail. The sentences imposed in the Children’s Court have progressed from orders of probation without conviction, to conviction dispositions involving sentences of detention in a Youth Justice Centre, the longest period of detention being for 7 months. I was provided with the police summaries relating to your past Children’s Court appearances and there is a clear pattern of committing assaults while in the company of other youths, in situations where unplanned confrontational behaviour escalates.
36This will be the first time you will be sentenced in the adult jurisdiction.
Psychological Evaluation
37The psychological report of Ms Carla Ferrari details events that caused emotional distress to you in the time period leading up to the commission of this offence. You told her that a childhood best friend of yours died from a fatal stabbing wound in June 2020. You also told her that shortly before you committed these offences, your mother lost the custody of your younger siblings as a result of an intervention from the Department of Families, Fairness and Housing. Your younger siblings were placed in the care of your sister. Your stressful home circumstances led you to not wanting to be at home and resulted in you spending more time with your peers and using substances such as drugs and alcohol to cope with your feelings.
38You detailed a history of drug use to your psychologist that involved using cannabis from the age of 14 recreationally with friends. This, however, increased to daily use after the death of your friend in June 2020. You also told her that your alcohol consumption increased and you estimated that you were drinking half a bottle of spirits daily leading up to the commission of this offence. You also started to ingest benzodiazepine tablets and admitted to MDMA use but denied regular use of that substance.
39You undertook a number of psychological tests and Ms Ferrari stated that the results were indicative of current post traumatic stress disorder symptoms. She also found the tests indicated that you were at “ high-risk” for alcohol related harm and drug related problems at the time of the offending.
40She stated and I quote, ‘at the time of the alleged offending Mr Tong-Yai was acutely intoxicated with alcohol, benzodiazepines and cannabis’.
41Whilst I generally accept the personal history as detailed in this report I find the unequivocal statement that at the time of the offending you were ‘acutely intoxicated’ with alcohol, benzodiazepines and cannabis at odds with the depiction of you in the CCTV footage of the offence. I find that the physical co-ordination you demonstrated when you confronted and punched the victim, kicked the victim, and fled from the store to be inconsistent with a person who was ‘acutely intoxicated’ at the time of performing these actions. During the plea I raised this concern with your counsel who did not press reliance on this aspect of the psychological report.
Submissions
42Counsel on your behalf submitted that, for youthful offenders, rehabilitation is a primary sentencing objective. It was put that although the offending was serious, it was not so serious that general deterrence overrides the importance of promoting rehabilitation. [5] He submitted that the case of Boulton[6] is authority for the proposition that a properly crafted Community Correction Order is an inherently punitive disposition and can be imposed for relatively serious offending.
[5] R v Mills [1998] 4 V.R 235.
[6] Boulton v The Queen [2014] VSCA 342.
43He detailed that you were initially remanded in circumstances of full lockdown for one and half months before being released on bail. Then when your bail was revoked, you were moved to Port Phillip Prison where you remained for three months. You were then taken to Marngoneet Correctional Centre where you have remained in custody. You have been working in horticultural programs in jail for the last two months and you have enrolled in a number of educational courses which unfortunately have not become available to you due to the lockdown restrictions with the current pandemic. Counsel submitted at the plea hearing that, upon your release from custody, your plan was to reside with your father in Wyndham Vale. I have been told today that this plan has been revised, and it is thought that the situation in your mother’s home has improved and that she is more stable, given that custody of your younger siblings has been returned to her. Your plan now is to reside with your mother.
44Your father and your older sister were present at your plea hearing[7] and it was indicated that your father believed he would be able to obtain labouring employment for you in the construction industry, through his own work. I have now been provided with a letter from that prospective employer, who says he will be able to provide you with employment.[8]
[7] The hearing was conducted remotely on 1 October 2021 due to the pandemic, however the Accused’s father and sister were ‘linked in’ and were able to see and hear the proceedings.
[8] Defence Exhibit 3.
45Your counsel says that you are remorseful for your actions and have reflected and developed insight into your past behaviour whilst in custody.
46He also submits that the offence, although serious, was ‘short lived’ in its duration, and that the constellation of injuries inflicted upon the victim fall at the lower end of the range of seriousness that might be categorised as a ‘serious injury’ in terms of the definition of that characterisation at law.
47He also submits that your background was so dysfunctional and disadvantaged that it attracts the sentencing principles enunciated in the High Court decision of Bugmy.[9]
[9] Bugmy v R [2013] HCA 37.
48He submitted that you gained an addiction to drugs at a tender age, and that this reduced your moral culpability for the offence.[10]
[10] Citing McKee and Brooks [2003] VSCA 16 for this proposition.
49Reliance was placed upon the fact that your period of imprisonment has been materially more onerous than normal as a result of the current health pandemic. Your counsel emphasised that with the current backlog of cases due to the pandemic, that your plea of guilty attracts additional utilitarian value that warrants a significant discount.
50The Prosecution has submitted that the seriousness of the offence and the need for general, as well as specific deterrence, in light of your criminal history warrants a sentence of imprisonment.
Gravity of offending and Application of Sentencing Principles
51Mr Tong-Yai, the offence to which you have pleaded guilty is a serious crime.
52There are a number of aggravating features to this crime.
·The victim was assaulted in circumstances where he was doing no more than trying to pursue his occupation which involved attending to customers entering his store. There was no legitimate basis for you to feel aggrieved towards him or for you to assault him.
·You left the store and had an opportunity to reflect upon the situation for a period of about half an hour, before re-entering the store and confronting the victim aggressively.
·After overpowering the victim by blows to the head region, you continued to assault him when he was on the ground. That assault involved a number of kicks to Mr Payal’s upper body and head region. The blows and kicks inflicted were forceful, as depicted on the CCTV footage.
53While I accept that there was no weapon used and that the period in which the victim was assaulted was of limited duration, significant injuries were inflicted upon Mr Payal. The cumulative effect of the injuries were clearly substantial and protracted. I don’t accept that the injuries suffered by Mr Payal were, as Defence Counsel submits, at the lower end of objective gravity. Mr Payal suffered multiple facial bone fractures which the medical evidence suggested may take weeks to months to heal, and where there was a risk that the bone structures will not heal. Mr Payal gave evidence approximately seven months after the incident, that he was still suffering pain. Although Mr Payal declined to make a victim impact statement, I have no doubt that the impact of this crime upon him would have been significant and would cause him ongoing stress and anxiety as to how he might operate his business safely. While there are obviously cases falling within the legal definition of serious injury where the injuries would be more serious, I still regard these injuries as being towards the medium level of seriousness.
54As previously indicated, I do not accept that you were acutely intoxicated at the time of committing the offence. I accept generally that around this time you were consuming drugs and alcohol in an effort to deal with your emotional problems. I accept that you were likely to be depressed in this time period as a result of your social and family situation.
55Although your background has been very difficult, the evidence does not satisfy me that it is the type of sustained and profound deprivation that was referred to in the High Court case of Bugmy. I will however take account of the difficult circumstances of your background in assessing your overall moral culpability,
56I accept that you may have been affected by drugs during the commission of the offence, and that you may have taken some Xanax pills sometime prior to the commission of the offence. However I do not find on the evidence before me that you had a long standing addiction to drugs that was a significant contributing factor to the commission of this offence.
57I draw the inference from the CCTV footage and the statement of Mr Payal that during the commission of this crime you were able to reason, and consciously protested against the fact that Mr Payal refused to give a drink to your friend for free. I infer that you were aggrieved by the fact that you had been chased from the store. I regard your re-entry into the store after half an hour as being purposeful and directed towards engaging in confrontational behaviour with Mr Payal. For that reason, and in the context of your prior history of assault, and assault by kicking, I assess your moral culpability for this offence as significant.
58The principles of general deterrence, specific deterrence, and denunciation of public violence are all significant factors in this case. This was senseless violence, perpetrated upon a man who was simply trying to do his job.
The Youth of the Accused
59Although this was a serious crime, I accept that you are a young offender and that your rehabilitation is a weighty, if not, the predominant sentencing consideration. The case of Boulton does in my view permit me to take the view that even in circumstances where such a serious offence as this has been committed the combination of a period of imprisonment and a Community Correction Order can serve the varied purposes of specific and general deterrence, denunciation, as well as, importantly, promoting rehabilitation. Community protection is, in my view, better served by a sentence that promotes your rehabilitation.
60I accept that your plea of guilty is evidence of remorse and that in the circumstances it was made at the first realistic opportunity.
61Your plea of guilty does have additional utilitarian value in the current climate of the pandemic. I also accept that your period on remand has been more difficult as a result of the pandemic.
62It is hoped that your first period of adult imprisonment will deter you from reoffending and with the support and supervision under a Community Correction Order, you may begin to turn your life around. It is imperative that you learn to deal with your obvious anger management problems. One of the main purposes of the Community Correction Order that is to be imposed, is that you receive the mental health treatment and the supervision necessary to help you achieve this objective.
Sentence
63On the charge of recklessly causing serious injury I sentence you to a term of imprisonment of 287 days, and a Community Correction Order that is of 15 months duration. The Community Correction Order will have the following conditions:
· You are to report to Melton Community Corrections Centre 2A BARRIES ROAD MELTON , Vic 3337 : Telephone 1300 064022 Before 4 pm Monday 10 October. I understand, Mr Tong-Yai, that you can report by telephone because of the current situation with the pandemic. I would suggest that, upon your release, you do not delay in telephoning the correction order to confirm that that is the case.
· I also impose, as a special condition, that you perform 100 hours of community work ( I declare that up to 50 hours of treatment and rehabilitation can be credited as hours of community work). Mr Payal, I have not given you as many hours as I first thought might be regarded, because of that letter that I have received. I am hopeful that you will get employment and that you can spend a lot of your time performing legitimate employment which is paid and will help assist your family. But it is necessary for you to do some unpaid community work because of the seriousness of the offence. I have also allowed you to get credit for some of that community work by undertaking the kind of rehabilitative programs where you can be counselled and discuss trying to deal with anger management issues. Do you understand?
64 OFFENDER: Yes, I understand.
65 HIS HONOUR:
· So in relation to those treatment conditions, I am going to order that you receive treatment & assessment for drug and alcohol abuse and or dependency under s 48D(3) (a) & (b) of the Sentencing Act.
· That you receive treatment and assessment for medical matters – S 48 D (3) (d). That may be where the Corrections ask you to see a GP so that you can be placed on a mental health plan. Whatever they tell you to do, you have got to do; you understand?
66 OFFENDER: Yes, I understand.
67 HIS HONOUR:
· Treatment and Rehabilitation – for mental health assessment and treatment s 48D (3) (e) of the Sentencing Act, and
· Treatment and programs they might devise that they regard as factors that are related to your offending behaviour s 48D(3) (f).
· I am then going to impose a judicial monitoring condition that requires that you reattend before me, in this court, at 9.30 am (and that will probably be by virtual attendance in the way that you are doing now) on 10 November 2021. Mr Tong-Yai, that involves you coming back before me. So you have to have an operational phone or your family needs to have some sort of a computer, and if you do not have it, you need to contact your solicitors and arrange to attend their offices where I can see you on 10 November. And I am going to be asking you, I will tell you now, on that date, how things are going in relation to your employment and your attendance with the Office of Corrections, and no doubt I will be told by the Office of Corrections if you are failing to comply with the order. In that case, I will have to take some sort of action to see that you are breached on the order. If you are breached on this Community Correction Order, that is actually a charge in itself that can result in I think three months imprisonment. But the other thing is that the whole circumstances of the offence come back before me and I have to consider what I can do if you are not suitable and you are not complying with the order. And you would understand we do not want that to happen because my options might be limited and you might have to be returned to gaol. Do you understand?
68 OFFENDER: Yes, I understand.
69HIS HONOUR: I declare that 277 days have been served as pre-sentence detention and are reckoned as already served as part of this sentence. So the gaol sentence that you have received for this offence is the time that you have served already, you understand?
70OFFENDER: Yep.
71HIS HONOUR: Pursuant to s 6 AAA of the Sentencing Act I declare that had you not pleaded guilty, I would have sentenced you to 12 months' imprisonment in conjunction with a Community Correction Order of 2 years duration with similar conditions save the number of unpaid community work hours would have been 200 hours.
72Mr Prosecutor, I just can’t remember, are there orders for disposal or forfeiture orders in relation to this matter?
73MR DOBER: There is no ancillary orders sought, Your Honour.
74HIS HONOUR: All right. So if I ask either parties, have I missed anything or are there any orders that are needed to be made?
75MR DOBER: No, Your Honour.
76MR PORTELLI: No, sir.
77HIS HONOUR: Mr Tong-Yai, I just want to say one final thing to you.
78OFFENDER: What was that?
79HIS HONOUR: I’ve read a lot of statements that may have been difficult for you to follow because there’s a lot of legal terminology there, but one of the important things that was pretty clear from my sentencing remarks was that this was your first time that you were before an adult court, and you’re still very young. You’ve really got to think about this because the next time, if you are charged with matters again – I know you’ve got some outstanding matters; that this sentence will have some impact upon those – but if you are charged with future offences, you will be back in the adult jurisdiction and this will count a lot in terms of what will happen to you in the future. You’ve really got to try your best here to get your anger management issues under control. Do you understand?
80OFFENDER: Yeah.
81HIS HONOUR: Thank you. I’ll adjourn the court.
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