Director of Public Prosecutions v Wol Wol

[2018] VCC 1872

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00788

DIRECTOR OF PUBLIC PROSECUTIONS

v

WOL WOL

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Melbourne
DATE OF HEARING:	8 November 2018
DATE OF SENTENCE:	14 November 2018
CASE MAY BE CITED AS:	DPP v Wol Wol
MEDIUM NEUTRAL CITATION:	[2018] VCC 1872

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director	Mr N. Hutton (for plea) Ms N. Deltondo (for sentence)	OPP
For the Accused	Mr J. Miller	James Dowsley and Associates

HIS HONOUR:

1       Wol Wol, you have pleaded guilty to one charge of prohibited person possess firearm, one count of aggravated home invasion, one count of common assault and one charge of conspiring with another person to steal a motor vehicle.  

2       The maximum penalty for these offences are – prohibited person possess firearm, 10 years' imprisonment; aggravated home invasion, 25 years' imprisonment; common assault, 5 years' imprisonment; and conspiracy to steal, 10 years' imprisonment.  

3 Section 10AC of the Sentencing Act 1991 (the Act) is relevant. It requires a term of imprisonment to be imposed for the offence of aggravated home invasion, and that a minimum non-parole period of not less than three years be fixed unless a special reason exists.

4       On 28 October 2017 you contacted your co-offender, Shane Foster, asking him to help locate a particular model car, namely a Holden GTS that you wanted to steal. You offered to pay him for his assistance. Within a short time, he provided you with an address, namely 2/796 Bellarine Highway, Leopold and a photograph of that address.

5       At about 1.50 am on 2 November 2017 you drove with two unknown males to that address. You were in a stolen motor vehicle with false number plates. The three of you went to the front door and kicked it until the glass broke. One of the occupants, Dale McDonald, went downstairs to see what was happening. You pointed what looked like a short-barrelled .22 calibre rifle towards him and told him to open the door. He ran to the kitchen to take cover. The door eventually gave way and the three of you entered the house. You walked towards the victim and pointed the gun at him saying ‘Where’s the money, give me the money.’ The other two males ran upstairs. Mr McDonald told you he did not have any money and then you ran up the stairs.

6       The victim Mr McDonald heard his wife screaming and he went towards the stairs. He met an offender coming down the stairs and he chased that person out of the house. The victim’s wife had been confronted by one of your co-offenders in her bedroom. That offender had taken her phone and rummaged through a set of drawers and a bedside table. He demanded money before heading downstairs. The keys to Dale McDonald’s vehicle were kept on the bedside table. Mrs McDonald left her bedroom and found her phone on the stairs. At this time you pointed the gun at her when she picked up her phone. 

7       Whilst these events were occurring, another male went into Brock McDonald’s bedroom and assaulted him with his laptop computer.

8       As Dale McDonald went up the stairs he saw you standing above him with the gun in your hand. He yelled 'Get out' and you fired the gun. You and the remaining male ran down the stairs and out of the house. Dale McDonald found his car keys on the stairs.

9       Obviously this is serious offending. It was planned. You drove to the victim’s house in a stolen car with false number plates. It was 1:50 am. You were in company. You and your co-offenders wore disguises. You were armed with a loaded firearm. You forced your way into the victim’s home. You pointed the firearm at two of the victims.  You behaved in a threatening manner and you discharged the firearm. It was a terrifying experience for the victims. Their lives were turned upside down. They no longer felt safe in their own home. For some time after this incident, Mrs McDonald and her son were unable to stay in the house. Mr McDonald has sought treatment for depression and anxiety. The family spent approximately $20,000 on securing their home. Eventually they felt they could no longer remain in that house and they are in the process of selling up and moving to Western Australia.

10      With offending this serious, general deterrence is a central sentencing consideration. Just punishment and denunciation are also highly relevant.   

11      You have a significant and relevant criminal history. It commences with an appearance in the Melbourne Children’s Court in June 2015. Since that time, you have been a regular and persistent offender. Your history includes appearances for serious offences such as aggravated burglary, reckless conduct endangering life, dangerous driving, car theft, intentionally cause injury and armed robbery. You have received probation orders and a youth supervision order. You breached those orders. You have received numerous sentences of detention since January 2016. You were on youth parole when you committed the current offences. In these circumstances, specific deterrence and community protection are relevant sentencing considerations.

12      I now move to matters relevant to your background and those matters raised in mitigation.  

13      You are 19 years old. You were born in Sudan. When you were nearly two years old, your family fled the civil war that was ravaging that country. On 26 May 2003, your family resettled in Australia under the refugee and humanitarian program.  You were four years old. The family lived in the south-eastern suburbs of Melbourne. In 2005, when you were six years old, your mother, who had been diagnosed with cancer, died. This was a difficult time for you and your family. You had lost your mother, and your father had the onerous responsibility of caring for five children as a single parent.

14      The family moved many times during your early years in Melbourne and your primary schooling was disrupted as a consequence. You struggled at school. You fell behind academically and you were required to repeat Grade 4. When you were 11 years old, your father remarried. You felt ambivalent about this and you have not had a close relationship with your stepmother. During the next few years your father and his new wife had five children. You told Mr Guy Coffey, a clinical psychologist who interviewed you in August 2018 that you felt that your father’s and stepmother’s attention was directed towards the younger children and that you felt overlooked at times.

15      You attended St Francis Xavier College in Beaconsfield from Year 7 to Year 10. You had poor literacy and numeracy skills and you were well below the appropriate year levels. You told Mr Coffey that you felt ‘dumb’ and that you became increasingly disengaged. Your attendance at school became sporadic and you did not complete Year 10.

16      At the age of 14 you began abusing alcohol and drugs. You were using amphetamines when you were 16 years old and you commenced offending. Since January 2016, you have spent a great portion of your life in youth detention. It is such a waste of a young life. Efforts to support you in the community by way of youth justice orders or parole have proved unsuccessful. You have been unable to stop abusing drugs or associating with other young men who offend. This explains why I am so guarded about your prospects of rehabilitation.

17      In his comprehensive report Mr Coffey notes that you are immature for your age and that this diminishes your ability to regulate your behaviour. He also opines that your ability to regulate your behaviour becomes substantially diminished when the immature elements in your personality are amplified by the effects of substance abuse. He explains your behaviour in this way – “The combined effect of his immaturity, a disinhibiting drug, and peer influence would appear to significantly reduce his ability to reflect on the wisdom of his actions and their consequences.”

18      Clearly, your rehabilitation would be greatly assisted if you were able to stop the use of drugs and stop associating with anti-social peers. In my experience this is much easier said than done. I accept, of course, that a person is capable of change.  You are still a young man and this is your first experience of adult custody. Perhaps the experience will encourage you to change your behaviour.

19      You have entered a plea of guilty. It was not an early plea. Nonetheless the plea is an acceptance by you of responsibility for your offending and it has saved the victims from the trauma of giving evidence at a trial. It has also saved the community the cost and expense associated with a criminal trial. You will be given credit for all these matters.

20      You are 19. You are youthful offender. As a general rule, a court places very great weight on the principle of rehabilitation in dealing with an offender of your age. However, the serious nature of these offences together with your prior criminal history means that rehabilitation is not the paramount consideration in this case. Appropriate weight must also be given to those other principles such as deterrence, just punishment, denunciation and community protection.

21      In his report Mr Coffey states that your level of intellectual functioning demonstrated in screening tests was very low. He does not believe that you are intellectually disabled but he does note that the results place your cognitive abilities not far above the threshold for intellectual disability. This is something that I take into account in a general way in sentencing you.   

22      Finally, in determining your matter, I am required to apply the principle of totality. This means that in sentencing you for all these offences, I am required to ensure that the total sentence remains just and appropriate for the whole of your offending. I have taken care to avoid any double punishment in respect of the charges on the indictment. I am also mindful of the fact that this is your first sentence of imprisonment.

23      Will you please stand.

24      You are convicted and sentenced to the following periods of imprisonment:  prohibited person possessing a firearm, 12 months; aggravated home invasion, 4 years and 6 months; common assault, 9 months; and, conspiracy to steal, 4 months.

25      I order four months of the sentence on Charge 1, three months of the sentence on Charge 3 and two months of the sentence on Charge 4 be served cumulatively upon each other and upon the sentence on Charge 2. This makes a total effective sentence of 5 years and 3 months. I fix a minimum term of 3 years and 6 months before you will be eligible for release on parole. I declare 377 days pre-sentence detention.

26      If you had pleaded not guilty and been found guilty after trial, I would have sentenced you to a total effective sentence of 6 years and 9 months with a minimum term of 5 years and 3 months.

27      I make the forfeiture and disposal orders sought by the prosecution.

28      Is there anything else, Mr Miller or Ms Deltondo?

29      MR MILLER:  No, Your Honour.

30      MS DELTONDO:  No, Your Honour.

31      HIS HONOUR:  Mr Wol can be removed, thank you. 

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