Director of Public Prosecutions v Yat
[2022] VCC 1147
•13 July 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-20-01512
CR-21-00171
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DUNG YAT |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 July 2022 | |
DATE OF SENTENCE: | 13 July 2022 | |
CASE MAY BE CITED AS: | DPP v Yat | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1147 | |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Carjacking - common assault - theft of motor vehicle - possess drug of dependence - careless driving - failing to report to police after accident where property damaged - unlicensed driving - possess cartridge ammunition without licence – fail to answer bail
Legislation Cited:
Cases Cited:
Sentence:3 years and 6 months' imprisonment, 2 years and 4 months non-parole
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Peek | Office of Public Prosecutions |
| For the Accused | Mr J. Miller | Pica Criminal Lawyers |
HIS HONOUR:
1Dung Yat, you have pleaded guilty to offences on two indictments and to some related summary offences. First of all, to the offence of carjacking on indictment number K12770917.A1, for which the maximum penalty is 15 years' imprisonment and to common assault on that indictment for which the maximum term of imprisonment is five years.
2On indictment number K12770917.B, you have pleaded guilty to one charge of theft of a motor vehicle, for which the maximum penalty is imprisonment for 10 years, and two offences of possession of the drug of dependence, for each of which the maximum penalty is five years imprisonment or a fine of 400 penalty units.
3You have also pleaded guilty to five related summary offences: Charge 1 of careless driving, for which the maximum penalty is 12 penalty units; Charge 19 of failing to report in person to police station after an accident where property was damaged, for which the maximum penalty is 14 days' imprisonment or five penalty units; Charge 20 of unlicenced driving, for which the maximum penalty is six months’ imprisonment or a fine of 60 penalty units or both; Charge 23 of possessing cartridge ammunition without a licence, for which the maximum penalty is a fine of 40 penalty units; and Charge 24 of failing to answer bail, for which the maximum penalty is two years' imprisonment.
4You have also admitted a prior criminal history which dates back to 2015, at which time you were subject to the jurisdiction of the Children's Court.
5The prosecution has tendered and relied upon a revised prosecution summary for plea dated 11 July 2022 which is Exhibit A at the plea hearing. That was read out to the court and I am not going to go through it in detail. Suffice to say that on either 17 August 2019 or 18 August 2019 at about 9 pm, you attended what might be described as a party at a house in Doveton, which was also attended by a Mr Bot. At one stage during the course of the evening the supply of alcohol ran out and efforts were being made to organise for Mr Bot to collect some more alcohol from a nearby bottle shop.
6During the period when that was being organised Mr Bot was sitting in the driver's seat of his car waiting to leave when you and your cousin approached the vehicle. You got into the front driver's seat, your cousin got into the backseat and you demanded that Mr Bot drive you and your cousin back to your cousin's address so that he could be dropped off.
7Mr Bot first showed reluctance to do so, but you demanded that he did so in a threatening manner which resulted in Mr Bot being put in fear to a point where he decided to comply with your demand. You were then driven by Mr Bot with your cousin to your cousin's house in Cranbourne. You then demanded that Mr Bot drive you back to the address in Doveton where the party was taking place. On the way, you told Mr Bot to turn into the carpark at the Lynbrook Hotel to enable you to go and play the pokies inside that hotel. However whilst you were preparing to do so you changed your mind and demanded that Mr Bot drive you back to the address in Doveton where the party had been taking place.
8When he arrived back at that property you then said words to the effect, 'This is my car now, give me the keys'. In fear for his safety, Mr Bot complied with your request, handed you the keys and left the vehicle. You then drove the vehicle away.
9Sometime after 3am on the following morning you attended the same address, where Mr Bot by that time had fallen asleep. You woke him up and demanded that he not call the police and tell them what had happened earlier that night or the early hours of the morning. That action is the subject of Charge 2 on the indictment of common assault for which the prosecution relied upon the implied threat of violence that was designed to intimidate Mr Bot into not reporting your conduct in carjacking his vehicle earlier that night to the police.
10Mr Bot didn't report the matter to the police immediately. He deferred that and attempted to persuade you to return the vehicle to him. You failed to do so and finally on 23 August Mr Bot went to the Dandenong police station and reported the incident to police. He was able to give the police some assistance and identify you as being the offender responsible for carjacking his vehicle and for subjecting him to threat of violence in the early hours of the morning as I have just described.
11The police were able to locate Mr Bot's vehicle at Dandenong North. The vehicle was then towed into police custody and examined for fingerprints. Your fingerprints were found on the vehicle and other items including a mobile phone were able to further identify you as being the person responsible for the offending conduct. That is the subject of the first of the indictments to which you pleaded guilty.
12In relation to the second indictment and the related summary offences, between the 21st and 26 August the owner of a vehicle that you stole and her family were away from their home in Wheelers Hill. Whilst they were away, you stole the vehicle and were driving it on 26 August at around midday.
13You were driving in Narre Warren when you collided with the rear of a tow truck which at the time was being driven at about 40 kilometres per hour. The driver of the tow truck estimated that you were, to use his terminology, 'Flying' as you approached and collided with the rear of his vehicle. Not a great deal of damage was caused to the tow truck but the stolen vehicle that you were driving was damaged. You abandoned it. You ran away. You failed to report the damage to the vehicle to the police. You were driving without a licence. And you were driving carelessly at the time that you collided with the rear of the tow truck.
14Police recovered the stolen vehicle, searched it and found a plastic container containing a small quantity of a clear liquid which was identified as the drug Butanediol, and that is the subject of Charge 2 on indictment number K12770917.B.
15
On 14 October you failed to appear at the Magistrates' Court in accordance with an undertaking for bail entered into on 29 July 2019. That is the subject of related Summary Charge 24, failing to answer bail. You were arrested on
23 October and you were taken to the Oakleigh police station. Your bag was searched at the police station and police located an open bullet, which is apparently a bullet with an open point of a kind calculated to disintegrate after impact. And you were also in possession of two small strips of lysergic acid diethylamide, otherwise known as LSD. That is the subject of Charge 3 on that second indictment.
16You were interviewed by police. You gave them no assistance as to the offending and denied your offending conduct. You were later identified by Mr Bot, who was shown a photoboard including an image of yourself, as being the person responsible for carjacking and assaulting him.
17The offence of carjacking is a serious offence. I regard this instance as an example of the offence falling to the low end of the mid-range or possibly at the very low end of the mid-range or into the low range. It may not be the most serious example of its kind. Nevertheless, you engaged in intimidatory conduct over a significant period of time, forcing the owner of the vehicle to drive you around as if he were a unpaid taxi driver and then at the end of that time taking possession of the vehicle through intimidation. You followed up that intimidation with further intimidation designed to dissuade him from reporting the matter to police.
18Turning to matters personal to you. You are now 25 years of age. And you have been in custody since 23 October of 2019. For a young man then aged 22 years that is a significant period of time. It is unfortunate that for a young man you have reached a point where there is a real risk of you becoming institutionalised.
19Your counsel provided me with an outline of submissions which is Exhibit 1, some references from your mother and your younger sister, which are Exhibit 2 collectively and a report dated 7 April 2022 from Mr Jeffrey Cummins, psychologist, which is Exhibit 3.
20The letters of reference from your family members suggest that you have many qualities which they see as being good qualities and no doubt you have exhibited those qualities in a family setting. It is unfortunate that your criminal record does not support the impression that you give at home. During the course of the plea hearing, I characterised your criminal record as showing that you have acted as a thug over a period of years.
21The offence of carjacking is another example of thuggery. Standing over somebody and forcing them to comply with your wishes, taking possession of their vehicle, and then intimidating them by further threat of violence upon them are examples of thuggery.
22Mr Cummins sets out in his report some very useful information about your background. You were born in Egypt of Sudanese parents and came to Australia in 2001. You obtained permanent residency in 2006 and have been granted Australian citizenship. It seems that your early life was generally well supported by your family, save that Mr Cummins points out traumatic experiences which occurred to you in childhood of which your parents were then it seems unaware but which no doubt have played a part in the history of your mental health which is taken up in more detail in later aspects of Mr Cummins’ report.
23You were at school in and around Doveton and it seems that your schooling up to about age 14 was unremarkable. But by the time you got into Year 9, you were associating with a so-described negative peer group and were using various drugs. You were expelled from school during Year 9. No doubt prompted by that, your parents sent you to an international boarding school in Kenya for 12 months between 2012 and 2013. Unfortunately, when you were in Kenya a tribal war erupted. You were exposed to some traumatic experiences and were forced to flee the school and seek refuge in a mountain region.
24Eventually you were able to escape from Kenya and sought refuge in a United Nations compound from which you were flown back to Australia with the assistance of the Australian government. I have no doubt that the combination of your earlier life experiences have contributed to a decline in your mental health. Mr Cummins diagnoses you as having complex post-traumatic stress disorder and also a depressive disorder which has manifested itself over a period of years and which has been of at least moderate severity.
25He also opines that you have symptoms consistent with anti-social personality disorder. All of those conditions are relied upon by your counsel as matters that should be taken into account in mitigation by reason of making your period of incarceration more onerous as a result of your mental impairments. It is not suggested that those mental impairments bear upon your culpability for your offending conduct, although it was suggested that I should also take into account that there is a real risk of significant deterioration in your mental health as a result of your mental impairments.
26I am not convinced that Mr Cummins’ report goes so far as to support that contention and therefore I do not propose to accept the submission that that particular strand of the Verdins principles applies in your case. However, all of that information in Mr Cummins report is relevant to the instinctive synthesis which I must bring to bear in sentencing you.
27What is significant in your history is that from about Year 9 you became heavily involved in the misuse of various drugs which in the end resulted in you taking substantial quantities of methamphetamine and GHB on a regular basis. No doubt that was continuing at the time of your offending conduct the subject of these two indictments.
28It is not an excuse, but no doubt your drug misuse has played a significant part in your criminal history. It is something which you will need to address when you are ultimately granted your liberty, even though your access to drugs has been curtailed by a significant period of incarceration awaiting this hearing.
29You have pleaded guilty to the offences the subject of the second indictment and related summary offences. The pleas of guilty were tendered at an early stage. Not so in relation to the first indictment involving carjacking, but you resolved the matter in January of 2022, and indicated a plea of guilty to both indictments and all offences.
30The pleas of guilty are consistent with acceptance of criminal responsibility and attract a significant utilitarian discount which is more significant in these COVID times. I propose to give you a significantly lower sentence than would otherwise have been appropriate for your overall offending conduct.
31The opinion of Mr Cummins is that you still represent a moderate to high risk of further violent offending and with a low to moderate profile of protective features. It is therefore not possible for me to reach a conclusion that you have good prospects of rehabilitation at this stage. Mr Cummins describes your prospects as guarded or seriously guarded. I think seriously guarded is probably a fair assessment.
32However, you are only 25 years of age and I accept that you have many good qualities as spoken of by your mother and your sister. I see your family members are in attendance again today. I think your father was on the screen the other day and he is on the screen today. So, I have no doubt that you will continue to have the love and support of your family when you are eventually released.
33It is necessary for me to impose an appropriate level of punishment and to denounce your offending conduct. Most importantly, particularly with the offence of carjacking and the offence of theft of a motor vehicle of which you have been convicted in the past on at least two occasions if not three, there is a need to deter you and to deter others from committing similar offences.
34I need to impose a term of imprisonment upon you with a non-parole period. I do not sentence you as a young offender or a youthful offender, but you are still a young man who can turn your life around with the assistance of your family if you choose to do so. Much will depend upon you being able to put your past drug use behind you and get away from the bad influence of some of your previous friends and colleagues.
35You have a brother who is presently on a basketball scholarship in the United States of America. You should see him as a shining example of what you could become too. You might have difficulty in getting into the United States of America with your prior convictions, but you have plenty to be optimistic about if you choose to put your mind to it.
36That is enough of a lecture from me. I am not going to keep you on tenterhooks any longer and I will proceed to impose sentence upon you.
37In relation to the first indictment, on Charge 1 of carjacking, you are convicted and sentenced to imprisonment for two years and six months, and I disqualify you from driving or holding a driver's licence or obtaining a driver's licence for a period of 12 months from today's date.
38On Charge 2, you are convicted and sentenced to imprisonment for three months. In relation to that indictment, I order that two months of the sentence on Charge 2 be served cumulatively upon the sentence of two years and six months on Charge 1. The total effective sentence on this indictment is two years and eight months’ imprisonment.
39In relation to the second indictment, on Charge 1 of theft of a motor vehicle and noting as I do that you have prior convictions for that same offence, you are convicted and sentenced to imprisonment for a period of 14 months.
40On Charge 2 of possession of a drug of dependence, you are convicted and fined $400.
41On Charge 3 of possession of a drug of dependence, you are convicted and fined $400.
42Dealing with the related summary offences:
- on Charge 18 of careless driving, you are convicted and sentenced to a fine of $800;
- on Charge 19 of failing to report the accident causing damage to police, you are convicted and fined $200;
- on Charge 20 of unlicenced driving, you are convicted and sentenced to imprisonment for one month and disqualified from obtaining or holding a driver's licence for a period of six months from today;
- on Charge 23 of possessing cartridge ammunition, you are convicted and fined $200;
- on Charge 24 of failing to answer bail, for which I note you have at least one prior conviction, you are convicted and sentenced to imprisonment for four months.
43In relation to that second indictment, I order that three months of the sentence on summary Charge 24 be served cumulatively upon the sentence of 14 months imposed for Charge 1 on that indictment, making a total effective sentence on that second indictment of 17 months' imprisonment.
44I order in terms of the overall sentence that 10 months of the total effective sentence of 17 months imposed on the second indictment and related summary offences be served cumulatively upon the total effective sentence of two years and eight months imposed on the first indictment.
45Therefore the overall total effective sentence for both matters is imprisonment for three years and six months.
46I order that you serve a period of two years and four months’ imprisonment before you become eligible for parole.
47I declare that 722 days pre-sentence detention be reckoned as time served on the sentence that I have imposed and deducted administratively.
48But for your pleas of guilty I would have sentenced you to imprisonment for a period of five years with a non-parole period of three years and four months for the two indictments and related summary offences.
49And I make an order for forfeiture of the cartridge ammunition. Is there another ancillary order?
50MS PEEK: Yes, Your Honour I believe there was.
51HIS HONOUR: I'm sorry? Yes, the drugs.
52MS PEEK: Yes.
53HIS HONOUR: So that's forfeiture is it, or disposal?
54MS PEEK: Disposal.
55HIS HONOUR: I make an order for disposal in relation to the drugs the subject of Charges 2 and 3 on the second indictment.
56Mr Yat, that means that in the not distant future you will be eligible for parole. That doesn't necessarily mean you'll get parole, but at least you've got something to aim for now. It will be very much up to you to do your best to persuade the Adult Parole Board that you are a reasonable candidate for parole.
57That won't be easy because of your record but it'll be very much up to you to show them that you mean business. You can do that by getting heavily involved in whatever courses are made available to you in the period of custody that you have to continue to serve. I wish you well and I hope that you can, with the help of your family, put all this behind you in due course.
58OFFENDER: Thank you, Your Honour.
59HIS HONOUR: Any other matters counsel?
60MS PEEK: No.
61MR MILLER: No, Your Honour.
62HIS HONOUR: Thank you.
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