Director of Public Prosecutions v Yak

[2021] VCC 1554

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

MELBOURNE

Case No. CR-21-00681

DIRECTOR OF PUBLIC PROSECUTIONS

v

ABOL YAK

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JUDGE:	HER HONOUR JUDGE BLAIR
WHERE HELD:	Melbourne
DATE OF HEARING:	30 September 2021
DATE OF SENTENCE:	14 October 2021
CASE MAY BE CITED AS:	DPP v Yak
MEDIUM NEUTRAL CITATION:	[2021] VCC 1554

REASONS FOR SENTENCE
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Subject:Criminal Law

Catchwords:              Sentence – Plea of Guilty -

Legislation Cited:      Bail Act 1977 (Vic), s 30B; Crimes Act 1958 (Vic), ss 77, 197(1); Sentencing Act 1991 (Vic); Summary Offences Act 1966 (Vic), ss 9(1)(f), 23

Cases Cited:Azzopardi v The Queen (2011) 35 VR 43 ; Worboyes v The Queen 2021 VSCA 169

Sentence: TES without conviction, placed on a community corrections order of two years; s 6AAA declaration: if not for the plea of guilty a term of imprisonment of 6 months and a Community Corrections Order in the same terms would have been imposed.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms R Champion	Ms A Hogan, Solicitor for Public Prosecutions
For the Accused	Ms J Willard (plea) Mr B Barrett (sentence)	James Dowsley & Associates

HER HONOUR:

1Abol Yak, you have pleaded guilty on indictment K12961457 to one charge of aggravated burglary pursuant to s 77 of the Crimes Act 1958 (Vic) and one charge of criminal damage pursuant to s 197(1) of the Crimes Act 1958 (Vic).

2In addition you have pleaded guilty to the following summary related charges: commit indictable offence on bail pursuant to s 30B of the Bail Act 1997 (Vic), unlawful assault pursuant to s 23 of the Summary Offences Act 1966 (Vic) and refuse to leave private place pursuant to s 9(1)(f) of the Summary Offences Act 1966 (Vic).

3The maximum penalties applicable for each of the offences are as follows: aggravated burglary 25 years imprisonment, criminal damage 10 years imprisonment, commit indictable offence on bail 30 penalty units or 3 months imprisonment, unlawful assault 15 penalty units or 3 months imprisonment and refused to leave a private place 25 penalty units or 6 months imprisonment.

Circumstances of the offending

4The summary of prosecution opening for plea dated 10 August 2021 sets out the agreed factual basis of your offending. This document was tendered and has been marked as Exhibit 2 on the plea.

5Your offending took place on two separate occasions. The first incident occurred on 11 October 2019. On this day at around midday the victim of your offending Sarah Rog was having drinks at her house with friends. Your brother Ryal was one of the males drinking alcohol and present at the victim’s address. Your brother was asked to leave the premises and he did so at 9:00pm. He contacted you to collect him and waited in the victim’s driveway.

6When you arrived you entered the victim’s property via the front door which was open for the victim’s friends. You yelled at the victim and pushed her in the chest causing her to fall to the ground. You then jumped on top of her and punched her several times to the forehead and left ear. This is the factual basis of summary charge 6 unlawful assault.

7The victim got on top of you and hit you several times in return. Your brother ran outside and other guests attempted to break up the fight between yourself and the victim. You smashed plates and bowls on the floor and used a chair to hit a window and the walls. Your brother picked up a metal broomstick and struck the victim to her body.

8The victim told you to leave the premises but you did not. This is the factual basis of summary charge 7 refused to leave private place.

9At approximately 11:19pm an ambulance was called for the victim. Police attended at the victim’s address at 11:40pm. Both you and your brother had left on foot by this time.

10Police members observed the victim had a cut under her chin, marks on her back and her top had what appeared to be blood visible on it. There was broken glass and plates on the floor, a smashed sliding glass door, a bent vacuum pole and a damaged broom handle. Photographs were taken of both the victim’s injuries and the damage to the house. The victim provided a statement. She was seen by ambulance members but declined to attend hospital.

11You were arrested by police on 23 October 2019 and transported to Altona North police station for interview. Essentially you admitted to police that you had attended the victim’s address and you had been involved in a physical fight with her. You denied starting the fight and denied causing any damage to the victim’s property. You were released pending summons.

12The second incident occurred a little over a month later on 14 November 2019. At 7:25pm the victim was at her home with five friends. She was asleep in her bedroom with her boyfriend, Gob Kawi (“Kawi”) and other people were asleep in the lounge room and a second bedroom. The victim woke to the sound of a knock at her bedroom door. She opened the door assuming it was one of her guests. Instead she saw you standing close to her bedroom door with Ms Neil and another three females who were later identified as Ms Ajang, Ms Sibeko and Ms Wubneh. This is the factual basis of charge 1 aggravated burglary.

13The victim quickly shut and locked her bedroom door. She could hear you yelling “bitch come the fuck outside”. She could also hear the other co-offenders yelling at her and banging and smashing. The victim used Kawi’s mobile phone to call 000. She told police “there’s girls in my house that are here that have break in my home”. The victim heard yelling and thought she could hear the lower part of her bedroom door being kicked. Together with Kawi she held the door closed but eventually the door was pushed open causing her to fall backwards on the floor.

14You then entered the bedroom with your four co-offenders. You all kicked the victim to her head. She was also kicked near her legs. The victim heard female voices yelling “bitch” repeatedly as she was being kicked and she heard you say something like “you wanna fuck with my brother”. Kawi lay on top of the victim to protect her and was kicked on his body.

15Other people present came into the bedroom and stood between yourself and the other co-offenders and the victim and Kawi. You pulled a blind from the window and kicked the glass window in the bedroom. This resulted in you receiving a deep laceration to your lower leg. You also threw a bottle of moisturiser at the window causing the container to break open.

16The victim’s friends were able to usher you and the other co-offenders out of the house. You took an internet modem outside and threw it on the ground. Other co-offenders broke a television and smashed windows. A curtain was also pulled from inside the bedroom through the broken window and out onto the driveway. At 7:34pm the victim who had moved to the second bedroom called 000 again.

17The police arrived at her premises at approximately 7:36pm. As the six police members were walking down the driveway they observed you and your co-offenders outside the victim’s house yelling and screaming. The police directed those present to lie on the ground and everyone complied. The front window at the victim’s address was observed to be broken. The victim spoke to police and advised the 5 females were the offenders and they did not have permission to be at her house.

18I note that this offending occurred whilst you were on bail. You had been arrested and charged for theft and negligently deal with proceeds of crime on 9 June 2019. This is the factual basis that gives rise to the charge of commit indictable offence whilst on bail.

Arrest and procedural history

19You were arrested by police and provided with your caution and rights. The police observed you to have deep lacerations to your lower leg with a significant amount of blood being lost. They observed you to be unsteady on your feet, to smell of alcohol and to have slurred speech. They formed the view that you were significantly alcohol affected.

20Whilst you were being treated by ambulance members body worn camera footage captured you telling an unknown bystander “Fucking Nyayen the bitch … I’m gonna fuck her up” and “I fucked this girls whole shit up … no one fucks with my brother” and “Look at her house right now, you step in, I did that shit”. You were then transported to Footscray hospital for treatment and later taken to Werribee police station for interview. Whilst at the hospital you told police members that you had consumed about 3–4 cans of fat yak cider. Photographs were taken of your injuries. At 12:20am on 15 November 2019, five hours after the offending, you undertook a preliminary breath test. This returned a blood alcohol reading of 0.098 BAC.

21You were interviewed at 9:30am on 15 November 2019, however, there was an error with the audio and the interview was unable to be transcribed. You made no admissions to the offending and stated that you did not enter the address.

22The other co-offenders were processed by the police. Ms Ajang was also treated at Footscray Hospital for lacerations to her lower leg. Crime scene investigators took photographs of the scene and swabs of what appeared to be blood including from the victim’s bedroom door and from toilet paper used by Ms Ajang in the driveway. Photographs of damage to the house depicting broken glass and windowpanes, a broken glass sliding door and a broken glass shower screen were tendered on the plea and marked as Exhibit 1. It is this damage that is the subject of charge 2 criminal damage.

23A filing hearing took place on 15 November 2019 followed by a committal mention on 17 February 2020. There were significant delays in the Magistrates’ Court and a committal hearing did not take place until 1 April 2021. At this time the matter resolved by way of a plea of guilty and you were committed to this Court for plea. The victim in this matter was not cross-examined.

24Significantly, you were remanded in custody from the time of your arrest on 14 November 2019 until being released on Youth Justice Supervised bail on 17 January 2020. You remained on supervised bail for 14 months. This condition was removed as a result of you turning 21 years of age and no longer being eligible for Youth Justice supervision. Since this time you have remained on bail and have not re-offended.

Nature and gravity of the offending

25Aggravated burglary is a serious offence as evidenced by the maximum penalty of 25 years imprisonment. I accept however in your case that there was a context to your offending and I understand this context is not disputed by the prosecution. You had met the victim at a party some six months prior and for some reason she disliked you. On the evening of the first incident on 11 October 2019 you were contacted by your older brother, Ryal, who told you he was at the victim’s home, he had been drinking, he had been hit in the head with a bottle and he needed you to come and take him home. I note that you are particularly close to your brother and that he had previously sustained a significant head injury as a result of a fall not long before this incident. These facts no doubt heightened your concern for your brother. This together with your intoxication and your youth provide some explanation for why you acted in the way that you did. However, as your counsel rightly conceded, it does not excuse your behaviour.

26Subsequent to this incident I accept that you continued to receive phone calls from a blocked number, together with threatening messages from the victim. Apparently on 14 November 2019 a message was posted on Facebook by the victim’s boyfriend “inviting” you to attend at the victim’s address. Foolishly you decided to attend and took with you four other young women. I consider this to be the most aggravating feature of your offending. It must have been very frightening for the victim to have her home violated, to be assaulted and to have her property damaged by you and four others. No matter what the context or your level of intoxication this behaviour is outrageous and is denounced by the Court.

27The prosecutor described your offending as falling in the low to mid-range of seriousness for offences of this type. I note that there was no weapon involved, there was no confrontational mode of entry and that the offending occurred in the early evening. The particulars of the charge of aggravated burglary are that you had an intention to assault the victim and you believed the victim would be present at her home and she was.

28Although you assaulted the victim on each occasion I note she received no severe or lasting physical injury. The Court did not have the benefit of a Victim Impact Statement despite the victim being offered this opportunity on several occasions. It is clear though that she would have been very frightened and your earlier attendance and assault would have only made this worse. The photographs tendered as Exhibit 2 depict considerable damage, however I am told that the value of the damage was in the order of $2200.

29In addition to these circumstances, I note the opinion of Carla Ferrari, forensic psychologist, who prepared a report that was tendered on your plea and marked Exhibit B. It was her view that even though you denied any major mental health symptoms before the offending your circumstances suggest that you were suffering from an underlying mood disturbance which you may not have realised at the time. I also accept that your youthful immaturity added to your poor decision-making on these two occasions.

30In all the circumstances I consider your offending to fall towards the lower end on the scale of seriousness for offences of aggravated burglary.

Background

31Ms Yak, you are now 21 years of age. You were born in Sudan the third youngest in a family of 13. You are an Australian citizen and have lived in Australia since you were 3 years of age. Your mother works full-time in a factory packing fruit and your father is a labourer in construction. Your parents separated when you started high school and prior to that time you were witness to significant family violence. For several years you had limited contact with your father, however, you have recently reconnected. You enjoy a close and supportive relationship with your mother, with whom you live.

32The majority of your siblings live in Victoria and you remain close. You also have a sister who resides in Sudan and two siblings who live in Perth. Your oldest brother passed away 10 years ago in Sudan in circumstances where your family was not in a financial position to afford his medical treatment and he was living in poverty. Your second brother, Ryal, is 24 years of age and sustained a significant head injury from falling down some stairs two years ago. He had been playing AFL reserves but this career is now sadly over given his injury. He has suffered significantly as a result, as has your family.

33Despite some difficulties in your home and social life, you completed year 12 VCE and have also completed four certificates towards a Diploma in Community Services. I understand that because of the 18 months interruption to your education you are required to repeat all of the subjects you have completed. I encourage you to persevere with your Diploma as it appears you have a lot to offer your community in such a role.

34For someone so young you have a solid work history. You have worked in a meat factory in Brooklyn for 6 months. In this role I was told you worked Monday–Friday 4:00am until 3:00pm in the boning room. No doubt this would have been difficult and unpleasant work. You left this work to concentrate on your studies and the manager from the meat factory, who obviously thought highly of you, offered you a job caring for his children and cleaning. You have also worked on and off in your auntie’s beauty salon. It is to your credit that you have worked whilst studying online.

35Since being released on bail in January 2020 you have complied with your bail conditions notwithstanding the challenges and demands you face. I also note that an intervention order was taken out on behalf of the victim and that you have abided by that intervention order and there has been no further contact with her in that period of time.

36Whilst on bail you obtained work fruit picking with your mother and then worked as a cleaner at a movie theatre at Watergardens. You have applied for multiple jobs at a kebab shop, the pancake parlour and other businesses. Currently, you care for your two younger siblings and your four nephews. I note this would be particularly demanding in view of the lockdown and the requirement for home-schooling. Your caring role allows your mother and aunty to work in paid employment.

37You are in a stable relationship of three years duration with a young man, Maluk, who is working in the construction industry.

38I turn now to matters in mitigation.

Plea of guilty

39I accept that your plea of guilty was entered at an early stage prior to cross examination of the victim at a contested committal. There is a significant utilitarian benefit in your plea of guilty as you have spared witnesses, in particular the victim, the need to give evidence. You have also spared the Court from what would have been a time-consuming trial.

40In addition, I note what the Court of Appeal recently said in the case of Worboyes v The Queen 2021 VSCA 169 at [39]:

A plea of guilty entered during the currency of the covid 19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence and at another time although a sentencing judge need not quantify the extent of any discount, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.

41I also accept that your plea of guilty demonstrates your genuine remorse, as do your statements to Ms Ferrari and Ms Stewart that you deeply regret your actions.

42In these circumstances I propose to allow a significant discount for your plea of guilty.

Covid-19

43As I mentioned earlier, you were immediately taken into custody after your arrest. No doubt this brought home to you in a very direct way the serious consequences of your behaviour. It is agreed that you spent 65 days in adult jail at the Dame Phyllis Frost Centre. For a young woman aged only 19 years with no prior convictions this must have been a confronting experience. Not only was this your first time in custody but it occurred at a very difficult time given the Covid-19 pandemic.

44Incarceration during the pandemic has been made more difficult because of numerous lockdowns, the need for periods of  quarantine, the limited rehabilitation programs available and the lack of visits. You would have found it very difficult to self-isolate and control your surroundings. It would have been extremely worrying to both yourself and your family that you may contract Covid-19.

45Although I do not intend to impose a term of imprisonment in your case, I note that you have spent 65 days in custody. In my view this is a significant punishment particularly given your young age, lack of prior convictions and the circumstances in which you served this time. I am satisfied that it has had a significant deterrent impact upon you. Evidence of this is that you have not offended since your release on bail.

Delay

46It has now been two years since the offending occurred which is a substantial period of time. Delay is relevant to sentence in several ways.

47First, this matter has been hanging over your head for a considerable period of time. It has had a negative impact on you and has prevented you from moving forward with your life. It has caused you a period of instability and uncertainty.

48Second, the delay has enabled you to demonstrate positive evidence of your rehabilitation. You have been on bail since 17 January 2020, not only have you not reoffended but you have been able to gain employment, you have participated in counselling with the Youth Support and Advocacy Service and importantly, you have stopped your abuse of alcohol. You complied with the conditions of your Youth Justice Supervised Bail keeping by far the majority of the required appointments. In the Supervised Bail Progress Report tendered on your plea and marked Exhibit C, your case manager from Youth Justice described you as engaging well with the program. You were open to receiving further supports, you completed alcohol and other drug counselling and presented as a mature and insightful young person.

49I also heard impressive evidence on the plea from Grace Natasha Stewart. A testimonial from her was also tendered and marked Exhibit D. Ms Stewart is a secondary school teacher who also does voluntary support work with young adults from migrant backgrounds. Ms Stewart gave evidence that she had known you since 2019 as you were a friend of 2 young persons she was supporting. Between October 2020 and February 2021 you lived with her in circumstances where you were struggling with responsibilities you had at home and you were finding it difficult to concentrate on your studies. Ms Stewart said she had discussed the offending with you and that you had been reflective in analysing your behaviour and remorseful for what you had done. She said you had discussed issues with changing your mindset from one of low self-worth to one of strength. She had encouraged you to consider a psychology degree, however, at this stage she considered it was more likely you will continue your Diploma in Community Service Work. Ms Stewart described you as being very driven and very intelligent. She said she had not observed you to engage in any problematic drinking and that you had worked hard to separate yourself from negative social circles. In her view your family are very supportive and she described that your mother was very proud of your determination and commitment to resume a law-abiding and productive lifestyle.

Youth

50By virtue of your young age, being 19 at the time of offending and now 21 at the date of sentence you are a youthful offender. In my view, although the offending before the Court is serious, it is not so serious as to displace the principles that generally apply to the sentencing of young offenders. These principles include;

(a)   Young offenders are immature, and may not fully appreciate the nature, seriousness and consequences of their criminal conduct;

(b)   Courts recognise the increased potential for young offenders to be rehabilitated, which is in the public interest; and

(c)   Incarceration can impair rather than enhance a young offenders prospects of rehabilitation.[1]

[1]Azzopardi v The Queen (2011) 35 VR 43 at [34]-[36].

51The principles that apply to young offenders have application in your case. Your age and circumstances at the time of your offending reduce your level of moral culpability. Your continued rehabilitation should also be supported and not interrupted. I am prepared to moderate the application of general deterrence in your case for these reasons.

Mental health

52Ms Ferrari considered you to have an unremarkable history of stable education and employment with relatively positive familial and social ties before the offending. While you did not identify any previously diagnosed mental health issues, it appears that prior to, during and post offending you were suffering from symptoms consistent with a Major Depressive Disorder. This disorder arose in the context of familial stressors including parental separation, increased stress at school associated with completing VCE and conflict within friendship groups which made your late adolescent period increasingly difficult.

53In addition, Ms Ferrari described that you had experienced a history of trauma with exposure to interparental violence and the death of your oldest brother approximately 10 years ago. Although it was not her view that you met the criteria for Post-Traumatic Stress Disorder she noted that the traumatic events can re-trigger through other life events. Ms Ferrari drew a nexus between your poor mental state and your alcohol consumption. She noted that you were acutely intoxicated at the time of the offending. She stated that intoxication can produced problematic psychological and/or behavioural changes such as impaired judgement, unusual mood changes, inappropriate behaviour and aggression. Substance use also leads to reduced self-inhibition and cognitive and behavioural self-control which can manifest as impulsive reckless, disinhibited behaviour, poor decision-making and impaired judgement. All of this was consistent with your behaviour at the time of the offending.

54Importantly, Ms Ferrari was of the opinion that you recognise that you made an impulsive decision under the influence of alcohol which you deeply regret and which you would not have otherwise made and in her opinion, you appeared genuinely remorseful for the impact of your behaviour on all involved.

55As for the future, Ms Ferrari opined that you were a low risk of reoffending. This assessment was informed by your absence of any criminal priors, positive familial support, lack of criminal attitude or orientation, nil evidence of psychopathy or personality disorder and the fact that you had developed insight into the consequences of alcohol misuse amongst yourself and your peers.

Rehabilitation

56Your Counsel submitted, and I agree, that you have excellent prospects for rehabilitation.  She relied upon your youth, your limited criminal history, the fact that you had not offended for 24 months, your genuine remorse for your offending, your compliance on Youth Justice Supervised Bail, your positive relationships with your mother, siblings and partner, your strong work history, the responsibilities you had taken on at home caring for your younger siblings and the fact that you had ceased problematic drinking.

57In addition, I note the opinion of Ms Ferrari in relation to your low risk of reoffending, that you have applied yourself to education, in particular a Diploma of Community Service Work and that you are engaging well during supervision on a Community Correction Order that was imposed in April 2021. I also take into account the very positive evidence of Ms Stewart.

Sentencing

58I consider that the relevant sentencing principles that must be applied in your case are general deterrence, albeit moderated to a degree, denunciation, protection of the community and just punishment. I must also be mindful of the principles of parsimony and proportionality. I am of the view that community protection in your case can best be achieved by your rehabilitation.

59I have taken into account the sentencing guidelines referred to in s 5 of the Sentencing Act 1991 (Vic) where relevant to your case. I have also taken into account as far as possible the current sentencing practices for the offences, particularly the charge of aggravated burglary, to which you have pleaded guilty.

Disposition

60You have been assessed as suitable for a Community Corrections Order and in these circumstances on each of the charges you will be placed on a Community Corrections Order for a period of 2 years.

61The conditions of this Community Corrections Order include

(a)   200 hours of unpaid community work over that two-year period;

(b)   Assessment and treatment for alcohol use

(c)   Assessment and treatment for mental health issues

(d)   Offending behaviour programs

(e)   Supervision by the office of corrections and

(f)    Judicial monitoring. The first of these will take place on 17 December 2021 at 10.30am and can occur online if necessary.

62I will offset 100 hours of community work against the treatment.

63In addition to the conditions I have imposed there are standard conditions to a Corrections Order. The first and foremost of these is that you must not commit any other offences during the two-year period which could be punished by imprisonment. You must also report within two working days to the Werribee Community Corrections Office. You are required to advise your supervising Corrections Officer of any change of address of where you are living and working, this must be done within two clear working days. It is a term of all Community Corrections Orders that you must submit to visits as directed and you must obey all the instructions and directions of the Community Corrections Officer. You cannot leave the state of Victoria without prior permission.

64Ms Yak, I must inform you that if you breach the order by reoffending or you do not comply with the conditions I have imposed you will be charged with a contravention of the order and you will be brought back before me. It may be that I am required to re-sentence you for the original charges.

65I have given significant consideration to whether this order should be imposed with or without conviction. In this regard I have considered the factors is s 8 of the Sentencing Act 1991 (Vic). There is no doubt your offending is serious, however this is only one of the factors I must consider. Other considerations are your character and previous history and any impact on your social, economic wellbeing and your employment prospects.

66I have heard compelling evidence of your considerable efforts towards rehabilitation and I am of the view that you should be encouraged as far as possible to return to your education and complete your studies. I accept that a conviction is likely to have serious and long-lasting consequences, particularly for a young women like yourself who has, on the evidence before me, strong future prospects. I consider that your efforts and progress over the last two years supports that your ongoing rehabilitation is best achieved by continuing to build upon your connections within the community, your family and through work. I also consider that you have demonstrated that you have a great deal to offer and contribute, in particular, to your community and to other young women of diverse backgrounds. For these reasons I propose to impose the Community Corrections Order without conviction.

67Do you understand the conditions of the order and do you consent to such an order? I did not hear that but I saw that you said you do.

68I indicate that pursuant to s 6AAA of the Sentencing Act if not for your plea of guilty I would have imposed a combination penalty of imprisonment and a Community Corrections Order with 6 months imprisonment and a Community Corrections Order to follow.

69We need to make some arrangements about getting Ms Yak to sign the order.  Mr Barrett, I take it she is not with you.  Have you any suggestion how we can achieve this?  Would she be able to attend at your office or ‑ ‑ ‑

70MR BARRETT:  Your Honour, Ms Yak suggested if the order was sent through to her email, she has got capacity to print it and sign it and then scan it back to the court and we would be ‑ ‑ ‑

71HER HONOUR:  Perfect, that is great, excellent.  Yes.  All right, I will get my associate to do that and we will get Ms Yak to sign it and I can provide a copy to yourself and Ms Champion as well when that is done.  Now, is there anything further?

72MR BARRETT:  No, Your Honour.

73MS CHAMPION:  Not from the prosecution's end, Your Honour,

74HER HONOUR:  All right, so Ms Yak, or Abol, I will see you on 17 December at 10.30am and - just to keep an eye on how you are doing, make sure you are on track and everything.  And I hope you will be, I expect you will be, because you have done really well to date.  So, yes, good luck with everything, I wish you all the best with that, all right.

75OFFENDER:  Thank you.

76HER HONOUR:  All right, thanks everyone.

77MS CHAMPION:  As Your Honour pleases.

78MR BARRATT:  If the Court pleases.