Director of Public Prosecutions v Yak
[2013] VCC 1334
•16 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MILDURA
CRIMINAL DIVISION
Case No.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AGAR YAK |
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JUDGE: | HIS HONOUR JUDGE COISH | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 16 September 2013 | |
CASE MAY BE CITED AS: | DPP v Yak | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1334 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. O'Doherty | Office of Public Prosecutions |
| For the Accused | Mr P. Bloemen |
HIS HONOUR:
1 Agar Yak, you have pleaded guilty to one charge of assisting an offender and one charge of theft. These offences carry the following maximum penalties. Assisting offender, five year's imprisonment; theft 10 years imprisonment. It is unnecessary for me to recount the facts of the matter in detail as they are on transcript, the matter having being opened comprehensively by the learned prosecutor and that opening was accepted by you through your counsel. I proceed to sentence you on the facts as opened by the learned prosecutor and contained in Exhibit 1, the summary of prosecution opening.
2 On Saturday 20 January 2013, you, Chol Monydhot and Deng Galuak were at the house of Emanuel Atar in Swan Hill. You were all drinking. You, Monydhot and Galuak left Atar's house at about 3.00 am on Sunday 21 January 2013. The victim, Christopher Porter, was walking towards you. Galuak made various threats and comments but Porter simply said he had come from the Commercial Hotel and he did not want any trouble. Galuak ran at the victim who tried to run from him however Galuak caught him and punched him heavily to the front of the face. The victim lost consciousness and fell heavily onto the bitumen road surface.
3 Whilst unconscious Galuak punched and kicked him with great force. Galuak left the scene. You and Monydhot dragged the victim from the road to the front yard of 74 Chapman Street, Swan Hill. You and Monydhot went through his pockets whilst he was still unconscious and you stole a mobile phone. You and Monydhot dragged the victim from the front yard and put him in a bed located in the front bedroom. The police attended the scene after receiving a report from a witness. You and Monydhot told the police you have located the victim unconscious in the front yard and you had helped him inside and put him to bed.
4 The victim was subsequently taken to Swan Hill Hospital and then transferred to the Alfred Hospital. His injuries included a fractured skull, fluid on the brain, black eyes, a broken nose, bruising to the face and abrasions and grazes to the buttocks and lower back. You were subsequently arrested by police. You made a number of admissions in your record of interview and you made a detailed statement to police.
5 You have given an undertaking to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence. I state that in sentencing you I have taken this into account and I am imposing a less severe sentence than I would have otherwise imposed because of this undertaking.
6 I state to you that I have taken into account the following matters in mitigation of sentence. You have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial. Witnesses have been spared the ordeal of giving evidence upon your trial. You pleaded guilty at an early stage. You cooperated with authorities. I have already stated you have given an undertaking to assist in the prosecution of Galuak. I do regard this as being very significant. I accept that you are genuinely remorseful.
7 I have been told something of your personal circumstances. You are 18 years of age having been born on 29 November 1994. You are single and unemployed. You live with your mother in Swan Hill. You are the second eldest of six children. You were born in Sudan. You emigrated to Egypt when you were three years of age and then to Australia when you were ten years of age. You left school at the end of Year 10 about two years ago. You resided in Dandenong for about a year but you are now back living with your mother in Swan Hill. She operates a childcare business. You help her in that business. You are only 18 years of age. I have therefore taken into account the principles applicable to the sentencing of youthful offenders.
8 Two references have been tendered on your behalf. They describe good aspects of your character and indicate that you have learnt from past mistakes. I assess your prospects of rehabilitation as being good.
9 Against these matters in mitigation, however, your actions were serious.
10 There are two victim impact statements. The victim, Christopher Porter, describes in detail the terrible consequences he has experienced as the result of the brutal and unprovoked assault. I have had regard to the victim impact statements but they must not overwhelm other relevant sentencing considerations and in particular it is important to bear in mind the precise charges, assisting offender and theft, that you have committed.
11 You have admitted before me one prior matter. On 31 May 2012 at the Swan Hill Children's Court you were placed on probation for a period of six months without conviction in respect of offences of recklessly cause injury, drunk in a public place, assault police, obtain property by deception, fail to answer bail, make a false document to prejudice other, use a false document to prejudice other. This is relevant to my task of sentencing you today.
12 There have been four days of pre-sentence detention. That is correct, is it not, Mr O'Doherty?
13 MR O'DOHERTY: Yes, Your Honour.
14 HIS HONOUR: Four days, yes. As well as the matters to which I have referred I must take into account the need for general and specific deterrence. Specific deterrence is less relevant as you are very young and have a limited prior history. General deterrence is of considerable importance in a case such as this. Offences associated with crimes of violence must be discouraged. I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.
15 Your counsel submitted that I ought to impose an adjourned undertaking without conviction. In my opinion this is too lenient a disposition. It was submitted on behalf of the prosecution that a community corrections order was appropriate. As I considered a community corrections order may be appropriate I ordered a report. I have just obtained a report from Joanne Mitchell, Assessing Community Corrections Officer. In that report she expresses the opinion that you are assessed as suitable for a community corrections order. The following conditions are recommended: community work and supervision. I also note that the conditions and requirements of the order were explained to you by Joanne Mitchell and you indicated a preparedness to consent to the order being made by the Court.
16 It was submitted on your behalf that if I was minded to impose a community corrections order this ought be done without conviction. The prosecution submitted that a conviction was appropriate. Section 8 of the Sentencing Act provides that in exercising its discretion as to whether or not to record a conviction a court must have regard to all the circumstances of the case including the nature of the offence, the character and past history of the offender and the impact to the recording of a conviction on the offender's economic or social well being or on his or her employment prospects.
17 I have already stated that this is a serious matter. On the other hand you are very young. You are 18 years of age. You have one prior matter from the Children's Court to which I have referred. It does appear as if you are now in a more settled circumstance. You are back in Swan Hill living with your mother. Having regard to all the circumstances of the case and in particular the fact that at this stage of your life your future plans are very uncertain, you have expressed a desire to work with children and to assist your mother in her childcare business I have decided in the exercise of my discretion, not to record a conviction. I however do consider it appropriate to make a 12 month community corrections order.
18 The order which I intend to make will be a community corrections order for 12 months. It commences on this date, 16 September 2013, and ends on 15 September 2014. There are mandatory terms that apply and they are: you must not commit another offence for which you could be imprisoned during the time the order is enforced. You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations. You must report to and receive visits from the Secretary or delegate. You must report to Community Corrections Centre within two clear working days of the order starting. You must let a Community Corrections officer know within two clear working days of you changing your address or job. You must not leave Victoria without first getting permission to do so from the Secretary or delegate. You must obey all lawful instructions from a direction of the Secretary or delegate.
19 I do intend to impose additional conditions and they are that you perform unpaid community work. You must perform 100 hours of unpaid community work over a period of one year as directed by the regional manager. If you fail to comply with this order the Secretary to the Department of Justice or delegate may give you a direction to perform additional hours of unpaid community work. You must be under the supervision of a Community Corrections officer for a period of one year.
20 Do you understand the effect and conditions of this community corrections order?
21 OFFENDER: Yes.
22 HIS HONOUR: Do you consent to undertaking the community corrections order?
23 OFFENDER: Yes.
24 HIS HONOUR: Thank you. The final matter concerns an application made by the prosecution for a forensic procedure for the taking of samples pursuant to s.464ZF of the Crimes Act. I do intend to make an order that pursuant to s.464ZF of the Crimes Act you undergo a forensic procedure for the taking of samples. The reasons for making the order will be published on the order which I will sign. I am satisfied in all the circumstances that the making of the order is justified. I must inform you, as a matter of law, that a member of the police force may use reasonable force to enable the procedure to be conducted.
25 As I have imposed a community corrections order I do not consider I need provide a direction pursuant to s.6AAA.
26 MR O'DOHERTY: That's so.
27 HIS HONOUR: Yes all right. So apart from the accused signing the community corrections order and me signing the 464ZF order, that's all that's required?
28 MR O'DOHERTY: Yes, Your Honour.
29 HIS HONOUR: Nothing further is there?
30 MR O'DOHERTY: No, Your Honour.
31 HIS HONOUR: My Associate will just prepare the documentation. If you just wait I'll sign it in chambers and then provide it to your client and she can just sign it. I don't need to come back on the Bench, will I?
32 MR BLOEMEN: No.
33 HIS HONOUR: I've signed the warrant. I'll just be in chambers, I'll just stand down temporarily
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