Director of Public Prosecutions v Yien
[2019] VCC 2060
•6 December 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-19-01051
CR-19-01227
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN YIEN NOI KOLANG |
---
| JUDGE: | HER HONOUR JUDGE QUIN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 22 October 2019 |
| DATE OF SENTENCE: | 6 December 2019 |
| CASE MAY BE CITED AS: | DPP v YIEN |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 2060 |
REASONS FOR SENTENCE
---Subject: Armed robbery, Theft and Criminal Damage.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. J. McGarrie | OPP |
| For Accused YIEN | Ms K. Folfe | James Dowsley & Associates |
| For Accused KOLANG | Ms D. Dempsey | VLA - Melbourne |
HER HONOUR:
1John Yien, you have pleaded guilty to the following offences: two charges armed robbery, two charges of theft and one of criminal damage. Noi Kolang, you have pleaded guilty to two charges of armed robbery. The maximum penalty for armed robbery is 25 years, and the other offences before me, 10 years.
2The circumstances of your offending are detailed in the Summary of Prosecution Opening dated 30 September 2019 (Exhibit A) though it can be summarized as follows:
3The initial offending relates only to you, Yien. On 11 March 2019 at approximately 3.20 am, a Mazda 3 hatchback was stolen from a house in Berwick, the car was unlocked and the key had been left in the centre console. On 12 March 2019, at approximately 3.30 am, you went to a service station in Hallam in the stolen Mazda. That is Charge 1 - theft. CCTV footage showed you and your girlfriend at the car arguing. You then went inside the shop and kicked and broke a sign, then pulled a magazine stand down on to the floor – you then ran out of the shop. That is Charge 2 - criminal damage. The next day you attended another service station in the stolen car and put petrol in it without paying as you drove away. That is Charge 3 - theft.
Armed Robberies – Yien & Kolang
4As to the armed robberies, as I indicated you both were charged and pleaded guilty in relation to the (indistinct) 12.13.30
5On 14 March 2019 at approximately 5.10 am, you both attended McDonald's in Hampton Park in the stolen Mazda. CCTV footage revealed you, Kolang, walking up to the front counter, and lifting your jumper, and then you, Yien, taking out a large black‑handled kitchen knife which Kolang had down the front of his pants. You, Yien, immediately then went behind the counter and into the food preparation area where staff were working.
6You, Yien, grabbed a staff member, held the knife against his stomach, and demanded he open the till. He told you he needed the manager to do that. You, Yien, went into the food preparation area and began looking for the manager, whilst you, Kolang, remained at the front counter keeping watch. You, Yien, then approached another staff member – you grabbed her by the collar and held the knife against her face, demanding the money. You, Yien, then walked her towards the front counter whilst keeping hold of her with the knife, continuing to yell at her re the whereabouts of the money and you then continued to look for the manager.
7You, Yien, walked into the manager’s office – she was watching on the CCTV what was happening. You, Yien, pointed the knife at the safe and the manager told you it was on a five-minute delay. You then demanded that she open the till. She went to the front counter and opened the till and you took the money and told her not to call the police. She then went to another till and you threatened her, saying to open it and no one will get hurt. You then filled paper bags with approximately $510 cash. Once you had the cash from the two registers, you took some food and then you both fled in the stolen car.
8About 30 minutes later you both went to another McDonald's in Cranbourne North in the stolen Mazda. CCTV footage showed you, Kolang, handing the knife to you, Yien, and you both going behind the front counter and approaching staff. Some staff members observed you approaching them and ran out of the restaurant. You, Yien, approached the manager yelling, 'Money, money, money' whilst pointing the knife towards her. She opened the register and you both grabbed cash. You, Yien, then pointed to knife towards the manager and said, 'Drive through.'She opened the register there and you took the cash. You then both stole some food and fled the scene in the stolen Mazda with approximately $500 cash.
Recovery of stolen Mazda 3
9On 16th of March 2019, the owner of the stolen Mazda posted on the Casey Crime Facebook page information about his car. That morning he received a response - the car was parked in a street in Hampton Park. The car was out the front of your address Yien. The owner who had contacted police, remained waiting for them, and saw you approach the car, then you, realizing you were being watched, walked away.
Arrest and interview (Yien)
10On 19 March 2019, police executed a search warrant at your home address, Yien. Police conducted a search of his bedroom and located clothing and shoes worn by you both during the armed robberies.
11Later that day, you, Yien, were arrested and interviewed. You made full admissions to the offending but stated you could not remember much about the armed robberies as you were very drunk at the time. You identified yourself on the CCTV stills. You also assisted police by showing them where you had hidden the car key for the stolen Mazda. This was ultimately returned to the owner.
Arrest and interview (Kolang)
12On 22 March 2019, police located and arrested you, Kolang, and you were interviewed. You admitted to being present during the armed robberies and identified yourself in the CCTV stills. You also said you could not remember anything else about the armed robberies as you were very drunk at the time.
Victim Impact Statements
13None of the staff at either of the McDonald's or the owner of the Mazda wanted to make victim impact statements when they were approached by police. It is clear however that particularly the McDonald's staff would have been terrified and felt unsafe and scared with the two of you entering the store in the early hours of the morning, armed with a knife and threatening them. As noted in the summaries, some of them ran out of the store when they saw you were coming.
Personal circumstances - John Yien
14I turn now to your personal circumstances, first of all Mr Yien. I received 2 reports from Ms Laura Fleming, psychologist, dated 2 and 17 October 2019. (Exhibits 1 and 2) I also received a report from Emma Nealon, youth and family support worker, dated 18 October 2019 (Exhibit 3) and she gave evidence before me. I take all of that material into account.
15You are currently aged 20 years. You were born in a refugee camp in Kenya where you were with your South Sudanese family. You arrived in Australia when you were 5, initially living in Clayton, then Aspendale, then Hampton Park. Your father is deceased. The circumstances in which that occurred in South Sudan are unknown. You lived with your mother and three older brothers and sisters. Your family members were in court to support you. Your mother and family members regularly visit you in custody and maintain frequent phone contact.
16You went to Hampton Park Secondary School though you were expelled in Year 9. You then commenced Year 10 at Lyndhurst Secondary College though you did not complete that year. You have participated in various training programs since you were 15. You were able to obtain casual employment at Sandown Racecourse in September 2018. I was informed that you ultimately want to undertake a plumbing apprenticeship.
17You commenced using cannabis between the ages of 14 and 16 and abusing alcohol from the age of about 16 years. At the time of the offending you were using methamphetamine or ice.
18Ms Fleming opined that the environmental, political and social stressors you were exposed to in utero and in your early years have impacted on your development and relationships with family and peers. You began exhibiting rebellious and violent behaviour at school including substance abuse. Such has impacted on positive relationships with your mother, extended family and pro-social peers who disapproved of your behaviour and ostracized you. Ms Fleming viewed that your experiences over your formative years have led to personal issues including poor self-esteem, propensity to self-doubt, irritability, suicide ideation, intolerance to change, inability to plan and execute tasks, reactivity, feelings of rejection and reliance on substances as a means of dealing with these issues.
19In Ms Fleming’s later report, she notes in summary there is evidence of mood and substance use disorders being present at the time of your offending. She views you as a moderate to high risk of reoffending, though with treatment believes this could be reduced. Treatment should relate to mental health, substance abuse and training for occupational skills. She expressed concern your mental health would deteriorate in the custodial setting.
20You have been involved with YSAS Transformer program since September 2017, when you self-referred. Ms Nealon, the relevant worker, who both prepared a report (Exhibit 3) and gave evidence, described your involvement with this group as encouraging and that you demonstrated a capacity to identify and work towards pro-social goals. She recognised however that your progress had been hampered by moments of poor impulse and emotional regulation control. Ms Nealon recognised your positive family support and also the impact of significant traumatic events in the last two years, including the death or injury of two friends in two car accidents.
21You have used your time in custody in a productive manner. You have been at Port Phillip and you were initially placed in the youth unit but in September you were moved to the Fishburn Unit. You have completed VCAL (Business) and have been employed building pellets whilst in custody.
22Ms Nealon has had ongoing communications with you since you have been remanded. She thought that you had more recently developed insight into your mental health and you have expressed a greater understanding about the impact of traumatic childhood events. She expressed hope that on your release, you could re-engage with her service including counselling at Foundation House directed to people in your community with similar issues and also drug and alcohol counselling.
Prior history
You have a significant prior history extending over five years. You have been sentenced to various Children's Court dispositions, culminating in a Youth Justice Centre Order in April 2017. You have since received three other Youth Justice Centre Orders. Your prior offending relates to dishonesty and driving matters, presumably typically related to thefts of cars and related driving offences. However, of more significance to these matters are your priors for assaults or violent conduct. You have convictions for recklessly and intentionally causing injury, robbery, aggravated burglary and affray. These are most concerning given this offending.
24 Your counsel properly recognized that your youth was not to be given the usual weight given the serious nature of your offending and your prior history.
Reason Yien
I was informed by your counsel this offending arose in the context of familial instability and substance abuse, that you were experiencing conflict with family members, regularly abusing alcohol and mixing in a negative peer group. You reported a history of suicidal ideation in the few weeks leading up to the offending to Ms Fleming. You were affected by alcohol and methamphetamine at the time of the offending. That does not provide an excuse for this offending though it may explain it.
Personal circumstances - Noi Kolang
26I turn then to the personal circumstances of you, Mr Kolang. You are currently aged 25 years and were 24 at the time of the offending. You were born in Egypt and moved to Sydney, Australia with your family when you were two in 1996. Your parents separated when you were eight. You moved to Melbourne with your mother and five siblings, whilst your father and two half-siblings remained in Sydney. About three years later, you moved to Newcastle to live with your father. Your siblings had moved out and you were living alone with him. However, after completing Year 7 you were sent back to Melbourne and you had little contact with your father since.
27Your family's circumstances in Melbourne were characterised by poverty and instability, with your mother and older sister struggling to financially support the family. The family unit moved frequently due to difficulties paying rent and for employment opportunities. You lived in many different houses, including in Maidstone, Werribee and Collingwood areas and consequently your primary schooling was interrupted. You attended most of your high school years at McKillop College, Werribee, then completed Year 12 at the Centre of Adult Education. You had a difficult relationship with your mother and by the time you were 17, you were homeless. You were a defiant teenager and there was clearly a cultural barrier between you and your mother. You continued with your VCE studies even though you found yourself in that predicament and achieved an ATAR of 79.
28Despite your best efforts, you were unable to find a job. For approximately one year, you relied on various friends and relatives for accommodation and financial support. You then spent around 10 weeks in crisis accommodation in Reservoir. You were then assisted to secure private rental accommodation in Reservoir where you lived for four years from the ages of 18 to 22. When living in Reservoir, you became increasingly isolated from your family and friends who were based in the Werribee area. I was informed that you spent much of your time reading and educating yourself.
29In around 2017, you moved out of the Reservoir accommodation and stayed with your older sister Abuk. The following year, you moved back to your mother's in Flemington. At the time of the offending in March 2019, you had been increasingly living with your cousin in Noble Park.
Alcohol abuse
30At about the age of 22, you commenced abusing alcohol to self-medicate and block out your growing feelings of anxiety. In late 2018, your alcohol abuse escalated. You were drinking on a daily basis and would consume on average a bottle of vodka and 10 mixed bourbon cans each day. You received no medical treatment for alcohol abuse.
Mental health
31When you were 21 and living in Reservoir, you were treated by a GP and psychologist for anxiety and depression. You maintained regular contact with your psychologist until you moved away from the area. You had been prescribed Zoloft and Serapax and you continued with that medication until five to six months before your arrest. I was informed that you ceased taking the medication as you felt it was not adequately treating your symptoms and you then turned to alcohol.
No prior history
32You have no prior criminal history and no pending matters. Despite your alcohol abuse issues and personal circumstances, you have avoided falling into a pattern of entrenched criminality, and this offending appears out of character.
Reason for offending - Kolang
33I was informed by your counsel that your mother had travelled overseas in late 2018 and during that time, your alcohol drinking increased. You spent more time with cousin and he friends in the Dandenong area where you were able to drink alcohol on a daily basis. You met Mr Yien through this social group.
34You have little recollection of the offending because of your intoxication. You recall meeting up with Yien and that he was driving and that you both had consumed a significant amount of alcohol. Again, this is not an excuse, rather an explanation.
Pleas of guilty
35In respect of both of you, I take into your pleas of guilty. You both have cooperated with police and made full admissions when interviewed. The early resolution of the matter reflects a willingness to facilitate the course of justice and carries a significant utilitarian benefit. None of the witnesses were required to relive the frightening events that they experienced at work. You both cooperated with police, identifying yourselves in the CCTV material.
36I accept that your pleas and your cooperation with police are indicative of your remorse. You have also both expressed insight into the impact of your offending on the victims.
Rehabilitation prospects - Yien
37As to rehabilitation prospects, first, Mr Yien. It was submitted that the following features augur well for your rehabilitation:
(i) your youth - 20 years. You are a young offender.
(ii) positive family support and ongoing communication and rapport with Ms Nealon at YSAS including an indication of a willingness to be involved in Foundation House.
(iii) that you have period of reduction in alcohol abuse and you successfully completed a period of youth parole. You remained engaged with Ms Nealon from YSAS for approximately six months after the expiration of the youth parole order.
(iv) that you have used your time productive in custody. It was submitted by your counsel that your prospects for rehabilitation were reasonable.
Rehabilitation Kolang
38In relation to you, Mr Kolang, your counsel submitted that you had good rehabilitation prospects. This was not disputed by the prosecution. You are 25. Although you are not a young offender as that term is defined under the Sentencing Act, I take into account you are of a relatively young age. Reference was made to Redlich JA’s remarks in Azzopardi and I accept such principles apply to you though not the full extent because of your age.
39You have no prior convictions and no pending matters. I accept your counsel's submission that it could not be said that you have shown a propensity to defy court sanctions or to reject opportunities to rehabilitate yourself.
40Your first experience of custody has been a salutary experience.
41You are aware of the need to control your alcohol intake upon your release, and to address the mental health issues that underlie your drinking. You recognize that you need treatment to address those issues;
42You have no significant mental illness or cognitive impairment that would hinder the prospects of rehabilitation.
Aggravating Features
43There were some aggravating features of your offending:
44The offending occurred in company;
45McDonald's is a soft target especially between 5 and 6 am in the morning;
46There were multiple victims, a number of staff were present at each McDonald's;
47It was not fleeting - you were inside for a brief period of time;
48The potential for escalation was high if your demands had not been met;
49It involved a level of planning in that it related to two McDonald's and also taking a weapon.
50I accept though, however, that there was a lack of sophistication given you were not disguised and CCTV would identify you.
Role/Parity
51You are both to be sentenced on the basis that you were complicit in the armed robberies. Arguably, you, Yien, played a more active role, with you handling and threatening staff and speaking to them and demanding money. Other distinguishing features between you are your ages and most significantly, Yien, you have an extensive prior history and you, Kolang, have no prior history.
Totality
52I accept that given the close proximity in time and similarities of the armed robberies there should be some concurrency although clearly there were different victims. I take the principle of totality into account.
Category 2 Offence – s.52(H) of the Sentencing Act
53 The charges of armed robbery are Category 2 offences as they were committed by you in company with each other. Under the Sentencing Act, a court must impose a term of imprisonment or detention for a young offender unless there are substantial and compelling reasons that are exceptional and rare. Neither of your counsel submitted that those exceptions applied.
54 Your counsel, Yien, submitted that notwithstanding the seriousness of the offending, given the mitigating circumstances and your personal circumstances and the competing sentencing considerations that I should impose a period of detention within a Youth Justice Centre. It was submitted that there is a basis for this disposition given your prospects of rehabilitation, immaturity and that you will continue to be subjected to undesirable influences in an adult prison.[1]
[1]Sentencing Act 1991, s 32 (1).
55This matter was adjourned for the purpose of preparation of a youth justice report. The author of that report, Ms Witherall, attended court and gave evidence. Pursuant to s.32, she did not regard you as having reasonable prospects for rehabilitation given a number of factors including: that your offending had escalated in seriousness; you had limited insight into the need for any assistance with drug and alcohol use; even accepting that you successfully completed parole in October 18 over a four-month period and continued positive engagement with Ms Nealon on a voluntary basis - that is not under your youth parole order - until December 2018; you reoffending three months later with serious offending; and you have poor history of compliance with other Youth Justice orders. You have participated in various programs including AVIP aimed at reducing violent behaviour and Transformer, but still continued to offend.
56As to your vulnerability to be influenced in an adult prison and immaturity, she noted that you were at the upper end of the dual track system. You played a dominant role in the armed robberies and committed them with an older man. I think a better description is that you played a more active role in the armed robberies. You have been involved in three significant incidents while you have been on remand. The report concludes in an acknowledgement that you meet some of the relevant criteria. However, given the serious nature of your offending, your history of persistent violent offending, non-compliance with previous youth orders and limited vulnerabilities in the adult system, she ultimately deemed that you were unsuitable for a youth justice order.
57The prosecution submitted that your rehabilitation prospects were guarded and further, correctly, that it was ultimately a matter for me.
58You have been involved with Youth Justice for five years, since you were 15. I can understand Ms Witherall's opinion regarding your suitability. Periods in detention have not thus far deterred you from reoffending and the violence and seriousness of that reoffending cannot be denied. However, I do accept that when you were most recently released on parole you engaged with Ms Nealon and continued to do so over a period of approximately six months until the months leading up to this offending in March 2019.
59You are most fortunate that you continue to have the support of your family and Ms Nealon from YSAS. And without that, I would have no hesitation in assessing your prospects of rehabilitation as poor. I do consider that with these supports and proper utilisation of them, particularly Foundation House, your prospects are reasonable. As to the other criteria, your counsel highlighted that you have been unsettled in adult custody and some of your responses have been limited by your level of maturity and your capacity to communicate.
60Counsel for Mr Kolang submitted that it would be appropriate to set a longer parole period in light of your relative youth, lack of priors and good prospects of rehabilitation. The prosecution conceded that you did have good rehabilitation prospects.
61This was very serious offending. It occurred in the early hours of the morning when although businesses may have been quiet, there were a number of staff present. People are entitled to feel safe in their workplace and you chose these two soft and same targets and utilised your threatening presence to instil fear and concern in your victims. General deterrence, just punishment and denunciation all have a role to play in this sentencing exercise. Considerations of specific deterrence have more application to you, Yien, given your prior history which includes violent offending. In respect of both of you, these matters must be balanced against matters in mitigation including your pleas of guilty and other matters personal.
62Taking all of the matters into consideration, it has been difficult to determine the appropriate sentence for Mr Yien given the matters that I have addressed in the course of these reasons. I am prepared to give you the opportunity to break the cycle that you have found yourself in. No doubt, if you get yourself into trouble anymore, you will be placed in adult custody for an extended period and it may well be that depending of course on the seriousness of the offending, but if the violence continues you will remain there. If you could both please stand up.
63In respect of Charge 1 - hang on, it is two separate indictment, is it not?
64MS MCGARRIE: I am very sorry, yes.
65HER HONOUR: Yes, all right. In respect of the indictment for Mr Yien, Charge 1 - theft of the motor car, you are convicted and sentenced to six months. In respect of Charge 2 - intentionally damage property, you are convicted and sentenced to seven days. In respect of Charge 3 - theft of petrol, you are convicted and sentenced to seven days. In respect of the armed robbery, you are convicted and sentenced to two years and three months. In respect of the second armed robbery, you are convicted and sentenced to a term of imprisonment of three years. Sorry, I have said 'term of imprisonment'.
66I will be declaring that that sentence can be served by way of detention in a Youth Justice Centre. The base sentence is in respect of Charge 5 and that is for a period of three years. Nine months of the sentence imposed on Charge 4 and three months of the sentence imposed on Charge 1 will be cumulative, giving a total effective sentence of four years which you will be required to serve in youth detention.
67In respect of you, Mr Kolang, in respect of the first armed robbery, you are convicted and sentenced to a term of imprisonment of two years and in relation to the second armed robbery, you are convicted and sentenced to a term of imprisonment of two years and six months. That makes a base sentence of two years and six months and one year of the sentence imposed on the first armed robbery will be cumulative, making a total effective sentence of three years and six months and I set a non-parole period of 18 months.
68I declare in respect of Mr Yien, pre-sentence detention of 262 days. In respect of Mr Kolang, 259 days. Pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty to this matter Mr Yien, I would have imposed a sentence of imprisonment of six years, with a minimum of four. Mr Kolang, if you had not pleaded guilty to this matter, I would have imposed a sentence of imprisonment of five years, with a minimum of three. Are there any other matters that I need to address?
69ASSOCIATE: There's disposal and forensic sample orders, Your Honour.
70HER HONOUR: Very well.
71MS McGARRIE: I understand the application for the forensic sample was abandoned at the last hearing ‑ ‑ ‑
72HER HONOUR: Very well.
73MS McGARRIE: ‑ ‑ ‑ given that will be retained, they both provided a sample.
74HER HONOUR: They would have already been returned, yes, very well.
75MS McGARRIE: So just the ‑ ‑ ‑
76HER HONOUR: Disposal in respect of the knife.
77MS McGARRIE: ‑ ‑ ‑ disposal orders. Yes.
78HER HONOUR: Thank you. I will just stand down.
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