R v Dau Deng

[2019] ACTSC 130

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Dau Deng

Citation:

[2019] ACTSC 130

Hearing Date:

1 February 2019

Decision Date:

1 February 2019

Before:

Mossop J

Decision:

See [25]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – joint indictment – co-offenders sentenced at the same time for  aggravated robbery and ride in a stolen vehicle – offender knowingly concerned in aggravated robbery – offender assisted co-offender to escape from premises by threatening residents with a hammer – significant criminal history – punishment – deterrence – denunciation – hope for rehabilitation in light of his youth – custodial sentences

Legislation Cited:

Criminal Code 2002 (ACT), ss 310, 318(2)

Cases Cited:

Barrett v The Queen [2016] ACTCA 38

R v Booth [2017] ACTSC 191

R v Johnstone [2018] ACTSC 316

R v Johnstone (No 2) [2019] ACTSC 39

R v Keenan [2014] ACTSC 342

Parties:

The Queen (Crown)

Garang Dau Deng (Offender)

Representation:

Counsel

C Muthurajah (Crown)

J Masters (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Offender)

File Number:

SCC 93 of 2018

MOSSOP J:

Introduction

1.           On 8 November 2018, Garang Dau Deng was found guilty by a jury of the following offences:

(a) one count of aggravated robbery contrary to s 310 of the Criminal Code 2002 (ACT); and

(b) one count of ride in a stolen motor vehicle contrary to s 318(2) of the Criminal Code.

2.           The maximum penalty for aggravated robbery is 25 years imprisonment or a fine of $375,000 or both.  The maximum penalty for driving or riding in a stolen motor vehicle is a fine of $75,000, imprisonment for five years or both. 

3.           Michael Johnstone was also convicted of aggravated robbery and other offences at the same trial and has been sentenced at the same time as Mr Dau Deng.

4.           In the reasons that I have given in relation to sentencing Mr Johnstone, I described the circumstances of the offending conduct, assessed the objective seriousness of the offending conduct and their respective roles in relation to the offences.  I adopt what I have said in those reasons in relation to the sentencing of Mr Dau Deng: see R v Johnstone (No 2) [2019] ACTSC 39 at [6]-[11].

Facts

5.           Mr Johnstone entered residential premises at Flack Street in Holt holding what appeared to be a sawn-off gun and demanded money.  There is no evidence that the gun was loaded, although there is no reason why the victims of the robbery would have perceived it not to have been.  Mr Johnstone struck Ms Renae Hallewell in the mouth with the butt of the gun.  This caused her mouth to bleed.  He then struck Mr Brandon Cutujar in the forehead with the butt of the gun causing a laceration to his forehead which began to bleed.  Mr Cutujar and Ms Hallewell wrestled with Mr Johnstone, getting him out the door and part of the way down the front stairs.  Mr Darren Mewburn, who had temporarily left the premises, returned and wrestled with Mr Johnstone at the base of the stairs until Mr Dau Deng appeared with a hammer and persuaded the residents to allow the intruder to escape.  During the melee Mr Johnstone had been deprived of his weapon.  As Mr Johnstone, Mr Dau Deng and another person left in a getaway vehicle, Mr Cutujar threw the weapon through the back window of the vehicle.  The property stolen was approximately $300 in cash and a small quantity of marijuana.

Subjective circumstances

6.           Mr Dau Deng is 20 years old.  He moved to Australia with his family in 2004 from Kenya.  He is one of five children.  He reported that he witnessed domestic violence as a child.  Due to suspected domestic violence, Child and Youth Protection Services became involved on a number of occasions with his family.  His father left the family home in 2010 when Mr Dau Deng was 11 or 12 years old.  He became involved with criminal activity at the age of 10 which brought him to the attention of police and the judicial system.  Notwithstanding this, he has an ongoing positive and supportive relationship with his mother.

7.           He is currently in a relationship with his partner who lives in Liverpool in New South Wales.  This has been an on-again off-again relationship over three years.  His partner has two children.  He has no children of his own.  Upon release from custody, he intends to either move to Liverpool to live with his partner or move back to his mother’s house.

8.           Apart from his family, his peers are largely antisocial ones.  He reported to the author of the pre-sentence report an intention to distance himself from such peers but did not have a robust plan for doing so.

9.           He has used cannabis regularly since the age of nine and methamphetamines since the age of 14.  He reported daily use of both cannabis and methamphetamine prior to his incarceration.  He stated that he had previously attended a residential rehabilitation program for drug use in the community but no details of that program were contained in the evidence.  A drug screening tool, administered by the author of the pre-sentence report indicated that he requires a “severe” level of intervention for his drug use.

10.         The author of the pre-sentence report recorded that he minimised his level of culpability and blamed his co-accused, offering justifications for his actions and citing drug use as a factor in his offences.  The author recorded that he did not appear to have a plan to remain abstinent in the community.  He was identified as unsuitable for engagement with targeted intervention programs.

11.         The opinion of the author of the pre-sentence report is pessimistic.  It is as follows:

For a young man, Mr Deng already has an extensive criminal history, with his current offences continuing a pattern of antisocial behaviour which dates to when he was a juvenile.  Previous sanctions, including incarceration, do not appear to have curbed Mr Deng’s propensity to reoffend.

Apart from having no health issues and enjoying familial support, Mr Deng appears to have few protective factors.  Despite claims of abstinence he does not appear to have adequately addressed his substance abuse issues.

Whilst it is acknowledged that AOD [Alcohol or Other Drug] programmes are limited for remandees in the AMC, Mr Deng has made no provisions for AOD counselling or programme attendance post prison.  Other risk factors are unemployment and antisocial peers.  If Mr Deng can adequately address his risk factors his level of recidivism may reduce.  He is currently assessed as a medium risk of reoffending.

Criminal history

12.         Mr Dau Deng has a significant criminal history.  [Redacted for legal reasons.]

13.         In January 2019 he was sentenced to eight months imprisonment for a variety of driving offences, the most serious of which was driving a vehicle without consent of the owner.  That sentence expires on 17 February 2019.

14.         Mr Dau Deng’s criminal history is consistent with what might be expected of a person with antisocial peers who is involved in illicit drug use.

Time in custody

15.         The parties agreed that Mr Dau Deng spent 102 days in custody prior to today solely attributable to these offences.

Consideration

16.         Mr Dau Deng is a young man with an extremely poor criminal history.  Because of his youth, there must be some hope that he will be rehabilitated.  However, the indications in the pre-sentence report are such that rehabilitation may be some time away.

17.         As indicated in my reasons in relation to Mr Johnstone, Mr Dau Deng’s involvement in the aggravated robbery was clearly very much subordinate to that of Mr Johnstone and he became liable to the offence only by reason of being knowingly concerned in its commission.  His involvement was only at the conclusion of the robbery.  It involved an implied threat as a result of his possession of the hammer and permitted the escape of the principal offender.

18.         I considered Barrett v The Queen and R v Keenan in my reasons for sentence of Mr Johnstone: see R v Johnstone (No 2) [2019] ACTSC 39 at [20].Mr Dau Deng’s culpability in relation to the riding in a stolen motor vehicle is equivalent to that of Mr Johnstone.

19.         Punishment, deterrence and denunciation are all relevant sentencing considerations.  Particularly in the light of his youth, rehabilitation must also be a significant consideration.

20.         Unfortunately, because of his criminal history and the nature of the offending conduct, a custodial sentence is the only appropriate sentence.  For the same reasons, only a sentence of full-time imprisonment will be appropriate.

21.         The sentence that I will impose involves a sentence of imprisonment of 30 months for his involvement in the aggravated robbery and a sentence of 12 months for riding in the stolen motor vehicle which will be cumulative as two months.

22.         The aggregate sentence is therefore 32 months.

23.         The non-parole period will be a period of 19 months.  This is just under 60% of the head sentence.  I have reduced what might have otherwise been the non-parole period on account of his youth and the prospect that supervision in the community on parole may assist him in transitioning to a lawful life.

24.         The sentence for aggravated robbery would commence at the conclusion of his present custodial sentence on 17 February 2019, except for the fact that it will be backdated to take account of the 102 days that he has spent in custody prior to today solely attributable to these offences.  Therefore, the start date for this sentence will be 7 November 2018.

Orders

25.         The orders of the Court are:

1.           On the charge of aggravated robbery (XO2018/31374), the offender is convicted and sentenced to imprisonment for 30 months starting on 7 November 2018 and ending on 6 May 2021.

2.           On the charge of riding in a stolen motor vehicle (CC2018/3672), the offender is convicted and sentenced to imprisonment for 12 months commencing on 7 July 2020 and ending on 6 July 2021.

3.           The non-parole period commences on 7 November 2018 and ends on 6 June 2020. 

4.           The sentences are to be cumulative as indicated by the start and end dates set out in the previous orders.

I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.

Associate:

Date: 18 June 2019