Director of Public Prosecutions v Yut

[2013] VCC 1669

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-12-01029

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHANGKOUTH YUT

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	15 August 2013
CASE MAY BE CITED AS:	DPP v Yut
MEDIUM NEUTRAL CITATION:	[2013] VCC 1669

REASONS FOR SENTENCE
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Subject:  
Catchwords:            
Legislation Cited:     
Cases Cited:            
Sentence:                 

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms. S. Pattison
For the Accused	Ms T. Hartnett

HER HONOUR:

1       Chankouth Yut you have pleaded guilty to one charge of recklessly causing serious injury (Charge 1) and one charge of affray (Charge 2).  You have also pleaded guilty to an uplifted summary Charge 8 of failing to appear in answer to your bail.

2       

The maximum penalty in respect of recklessly causing serious injury is

15 years' imprisonment.  The maximum penalty for affray is five years' imprisonment.  The maximum penalty for failing to appear in answer to bail is one year's imprisonment.

3       The prosecution made an application for the taking of a forensic sample from you.  The making of that order was not opposed. 

4       The circumstances of your offending are set out in the Summary of Prosecution Opening on Plea which was tendered as Exhibit A.  The circumstances in that summary are set out in some detail.  In brief the circumstances were as follows.

5       You met up with about seven other young males in Melbourne Central Business District on the evening of Saturday 26 November 2010.  All of your group were of African background and were aged between 17 and 19.  You were 18 at the time.  You were all drinking outside a hotel on the corner of Russell Street and Little Bourke Streets in the city.  Also that evening the victim in this matter, Mr Wei Ren, drove into the city to meet friends.  Mr Ren and his friends had drinks at some city bars.  One of those friends was Mr Tan Tran.  Mr Tran drank heavily and at one stage left the bar that group were in in Heffernan Place off Little Bourke Street.  Mr Tran went into the street and vomited.  He had an altercation with males described as African.  It is not put by the prosecution that this was your group.  Mr Tran sent a message to Mr Ren for helped and they arranged to meet.

6       At about 2 am Mr Ren, Mr Tran and an unknown male of Asian appearance and another man were walking down Latrobe Place which is a lane between Little Bourke Street and Bourke Street.  Your group was at the end of Latrobe Place where it meets Bourke Street.  Mr Tran identified your group as the group who had earlier attacked him.

7       

What happened next is seen in images taken by a CCTV security camera and by cameras on a Safe City car.  A DVD of the images was tendered as

Exhibit C.  Mr Ren verbally confronted your group and pulled his shirt off.  Both groups moved into Bourke Street.  Mr Ren had his back to shops with your group around him.  You were near Mr Ren holding a bottle.  You moved away and broke the bottle on a wall.  Mr Ren was surrounded by your group.  At that stage no blows had been thrown.  You then moved in towards Mr Ren who was looking in another direction.  You lunged at Mr Ren shoving the broken bottle into his face.  Mr Ren was injured and walked away. 

8       Other co-accused started fighting with the unknown Asian male.  You grabbed Mr Tran and threw him against the windows of a store.  Other co-accused ran in and kicked the unknown Asian male on the ground.  Mr Tran was on the ground.  He was jumped on and kicked and punched by a co-accused.  You ran in and kicked the unknown Asian male on the ground.  Your group then moved away.  The whole incident lasted approximately a minute.

9       In the affray Mr Tran suffered a cut on his nose requiring three stitches.  As a result of your actions with the broken bottle Mr Ren was hospitalised and required surgery.  Tragically he lost the sight in his left eye.

10      Certain co-accused were arrested that night.  You were identified later and attended a police station on 30 December 2010 after being phoned by police.  You were interviewed.  You said the other group wanted a fight.  You admitted you broke a bottle you had found and that you threw Mr Tran against a shop.

11      Photographs of the injuries to Mr Ren were tended as Exhibit D.  A victim impact statement from Mr Ren was tendered as Exhibit B and read in court. 

12      In his victim impact statement Mr Ren describes the impact on him of your crime.  He describes the effect on him of having lost his vision in his left eye.  He is also concerned because he says he feels he looks like a freak.  He says he is scared to go out and does not socialise with people.  He said he has become very grumpy and angers easily.  It is clear that he has lost his trust in people. He believes the world is too dangerous and that he is scared of other people.  He has sometimes thought of suicide.  As a result of what happened he left his job.  He said that he does not drive himself because he cannot control the angle and distance to another vehicle because he has only vision in one eye.  He is now no longer able to play basketball and is scared of playing any sports in case it might hurt his right eye.  It is clear that Mr Ren feels now that he is disabled and that he will never be normal as he was before. 

13      A contested committal was held on 20 June and Mr Ren was cross-examined.  You failed to appear on 12 December 2011 although you had indicated you would plead guilty on 7 November 2012. 

14      Four of your co-accused had been sentenced on charges of affray.  One was sentenced in the Children's Court, the other three were sentenced by me.  All the three sentenced by me were sentenced to a Community Correction Order.

15      In sentencing you I have taken into account your personal circumstances.  You are now 21.  You faced considerable difficulties as a child.  You were born in Southern Sudan as the youngest of four children in your family.  Your father, very sadly, was shot when you were a baby after moving the family to a safer place.  Your mother and her four children went to a refugee camp in Egypt.  You were there for 12 months and then came to Australia when you were about ten years old.  You and your family lived with your uncle and his family in rather crowded circumstances.  You completed Year 11.  You struggled academically, but at school did well at sport.

16      You began using marijuana at about the age of 13.  You also began using alcohol and ultimately began using alcohol excessively.

17      You worked in a factory for a few months after leaving school and then, in the words of your counsel, began to run amok.  You were using marijuana and drinking alcohol with groups of friends.  Your mother had left Australia in late 2010.  You were somewhat isolated living in a bungalow at your sister's house.  You have a two year old child from a previous relationship.

18      You have admitted a prior criminal history, which is limited but includes a court appearance at Dandenong Children's Court in June 2010 on charges including assault and resist police charges, charges of being drunk in a public place and recklessly causing injury.  You were not convicted but were placed on probation.  You were on probation when this offending occurred.

19      A chronology was tendered as Exhibit 4 which sets out what happened in relation to subsequent matters. 

20      As a result of subsequent offending including offences of robbery, reckless cause serious injury and reckless causing injury, you were detained in a youth justice centre for three months and served 14 days in adult prison.  You had been sentenced to a Community Correction Order in June 2012 but did not comply with that order at all and committed further offences. 

21      You have now spent 285 days in adult prison on remand for this offending. 

22      

Three reports were tendered on your behalf.  They were a report from

Mr Michael Crewdson, psychologist and psychotherapist, dated 4 May 2013 (Exhibit 1), an addendum report from Mr Crewdson dated 10 June 2013 (Exhibit 2) and a report from the Dandenong Hospital dated 16 May 2013 (Exhibit 3).

23      

Mr Crewdson, in his report from May 2013, notes your youth and immaturity.  He says that you have not coped well with your transition to the Australian culture.  He said your mental state examination results were unremarkable, although there were indications of past major psychological illness. 

Mr Crewdson says that you had difficulties grasping some concepts, although your verbal expression was generally good.  Mr Crewdson describes you as generally egocentric but says that should not be interpreted as meaning that you are callous.  He says you have underlying anxiety about your actions.  He says that you have no intellectual disorder. 

24      I particularly note the following passage from Mr Crewdson's report.  "The predisposing factors in this case relates to the background in cultural transposition of this immature 20 year old African born Sudanese male youth.  The precipitating issue for the events must be inferred from the varying accounts related to the investigation but his relative social isolation would have been involved in affiliation with a group of eight African males in the city.  The proximity of groups of young males with obvious differences in appearance disinhibited by alcohol is likely to be a precipitant factor.  The perpetuating issues are of an ongoing aspect of some degree of cultural alienation combined with the misuse of alcohol and cannabis and a need for affiliation.  The potential examination of protective factors is more likely to be effective in a supervisory corrective context.  His capacity to be candid and open, albeit with considerable naivety, offers some potential."

25      

In his second report Mr Crewdson refers to the report from Dandenong Hospital which was tendered as Exhibit 3.  That report describes two admissions you had after this offending to Dandenong Hospital in relation to psychosis.  It appears that you have been relatively stable in custody. 

Mr Crewdson says that the effect of your entrenched cultural beliefs and values and a precarious degree of stability within your family is likely to have been exacerbated by your peer group identification.

26      Mr Crewdson suggests that your actions on this occasion were based in fear and a need to take protective action without any sense of due consideration of the consequences for your action.  Mr Crewdson suggests that our prior diagnoses of psychosis has a "major cautionary significance."  He recommends that in the community there be effective liaison between Correctional Services and mental health professionals "with the resources to implement an effective bio psychosocial managerial program."

27      In sentencing submissions your counsel conceded the seriousness of this offending and that a term of imprisonment would be the appropriate penalty.  Your counsel relied on your plea of guilty which was not at the earliest opportunity but remains of value.  Your counsel also submitted that you have been co-operative in attending for interview.  She submitted that I should take into account your personal history of dislocation and difficulties in adjustment and that your offending was in the context of your use of alcohol and marijuana.  She also submitted that at the time you were in a situation involving a degree of isolation.  Your counsel also submitted that I should take into account that this would be your first time in adult custody and that you were isolated in custody because you had no visitors.  It appears that your family would come and see you but that you do not wish your family to see you in gaol.  Your counsel said that you have been exercising in custody.  She submitted that I should take into account particularly your youth and immaturity. 

28      Your counsel relied on the contents of Mr Crewdson's reports in support of her submission that I should impose a shorter than otherwise non-parole period.  She accepted that your prospects for rehabilitation were "not glowing" and that you would need assistance on your release.

29      Your counsel said that you were hopeful of a continuing relationship with your child and the child's mother, although that hope may not be realistic.  She did describe that as a positive factor for you.

30      

It was accepted by your counsel that there is no direct parity with your

co-accused and that some cumulation of sentence would be warranted. 

31      The prosecution submitted that this was a serious example of a glassing case.  The prosecution said that you had broken the bottle purposefully and that the injuries suffered were at the upper end of seriousness.

32      The prosecutor submitted that while you are a young man, in this case, given your history, your rehabilitation might not be so "hopeful."  The prosecutor submitted that there would be a moderate risk of you re-offending.  The prosecutor submitted that modest cumulation ought be ordered to reflect the different phases in the offending and the different parties involved.

33      The prosecutor relied on the cases of Winch (2010) VSCA 141 and Trowsdale (2011) VSCA 81. She submitted that general deterrence would be the most relevant sentencing consideration based on what the Court of Appeal have said in those cases.

34      The prosecutor's instructions were that the total effective sentence would be in the range of three to four years as a head sentence with a non-parole period of one and a half to two years.

35      Mr Yut your offending was clearly very serious.  Your attack on Mr Ren was vicious and cowardly.  This situation is different than some other glassing cases where a bottle or glass is thrown.  This is more serious because you broke the bottle deliberately to use it as a weapon.  You struck at Mr Ren while he was surrounded by others and not paying attention to you.  He was not attacking you.  What you did has had terrible consequences for Mr Ren as set out in his victim impact statement and which is evident from the photos tendered.  It is to be hoped that over a period of time and with support Mr Ren will begin to recover.  This situation is an example of how terribly dangerous glassing is.  Your response was totally out of proportion to the situation faced by you and your friends. 

36      The Court of Appeal in Winch and Trowsdale have spoken of the inherent danger of glassing.  They have described this sort of behaviour as a serious example of recklessly causing serious injury.  You broke the bottle and lunged at Mr Ren.  In doing so you must have foreseen a high probability of serious injury resulting from your actions.  You did not stop there but went on to join in the affray.  You threw Mr Tran against a window and kicked another man on the ground.  Again this was vicious and cowardly.  In the affray Mr Tran suffered a cut although it cannot be said that you directly caused that.

37      You had been using marijuana and drinking alcohol.  Others in your group had been drinking alcohol.  This is another terrible example of a group of young intoxicated men who are fired on by each other and engage in senseless violence.  This behaviour took place in a public place in the central city district.  Your behaviour went well beyond that engaged by others in your group because you broke the bottle and injured Mr Ren with it. 

38      Your behaviour must be strongly denounced and warrants severe punishment.  General deterrence must be a very important sentencing consideration despite your youth.  Perhaps others will be deterred from similar offending by the prospect of going to gaol.

39      You were 18 at the time and are still very young.  Your rehabilitation remains a sentencing consideration despite the need for punishment, general deterrence and specific deterrence to be significantly reflected in the sentence.  I consider that your current prospects of rehabilitation are low to moderate, particularly because of your prior and subsequent offending, particularly the offending involving violence. 

40      From what Mr Crewdson has said, your prospects of rehabilitation would improve if you were provided with a support program in the community and were prepared to engage in counselling. 

41      

It is to be hoped that imprisonment would discourage you from similar offending.  Given your youth, immaturity and difficulties as set out in

Mr Crewdson's report, I consider you would benefit from supervision on parole if the Parole Board considers you suitable for release.  I have taken those matters into account in setting the non-parole period.

42      I have taken into account in mitigation of sentence that you did attend the police station and that you made certain admissions.  I have also taken into account that this is the first time you have served a period of imprisonment in adult custody and that you are isolated in the sense of not having visitors.  You may also face difficulties in custody because of your particular difficulties because of your background and cultural differences.

43      I have taken into account in mitigation of sentence your plea of guilty.  That was not made at the earliest opportunity but still entitles you to a significant discount in sentence.  There was a contested committal with Mr Ren having to give evidence, but your plea of guilty saved the cost, time and trauma of a trial.  Your plea of guilty indicates your acceptance of your responsibility for your actions, but I consider that it is only a very limited expression of your remorse.  I note Mr Crewdson reports you as saying that you told the police you were sorry but Mr Crewdson also says that you said that you were acting in self-defence.  It appears that you could not be described as completely remorseful about your actions. 

44      I consider that some small amount of cumulation would be warranted to reflect the different nature of the offending in the affray charge.  I consider that the sentence in respect of the fail to appear ought to be served concurrently.

45      In setting the sentences I have taken into account the principles of totality and proportionality. 

46      Could you stand up, please, Mr Yut?

47      On Charge 1 of recklessly causing serious injury, you are convicted and sentenced to a term of imprisonment of two years and ten months.  On Charge 2 of affray, you are convicted and sentenced to a term of imprisonment of 12 months.  On the summary Charge 8 of failing to appear in answer to bail, you are convicted and sentenced to a term of imprisonment of one month. 

48      

The sentence on Charge 1 is the base sentence.  Two months of the sentence on Charge 2 is to be served cumulatively on the sentence on Charge 1.  The total effective sentence is three years' imprisonment.  I fix

18 months as the period that you are required to serve before being eligible for parole. 

49      

I declare that you have served 285 days of this sentence by way of

pre-sentence detention to be deducted administratively.

50      But for your plea of guilty, I would have sentenced you to a term of imprisonment of four years and four months with a non-parole period of two years and eight months. 

51      I make the order for the taking of a forensic sample from you.  I make that order because of the seriousness of your offending and because the making of the order was not opposed.

52      Mr Yut, I am required to tell you that you must co-operate with the authorities when they come to take the sample.  They will come to take the sample by way of a saliva swab from your mouth.  I am sure you will co-operate with them.  If you do not co-operate, they are entitled to use reasonable force and to take a blood sample.

53      Thank you.  Could you please take your seat.