R v Garang Yai

[2025] NSWDC 12

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Garang Yai [2025] NSWDC 12

Hearing dates:

11 February 2025

Decision date:

11 February 2025

Jurisdiction:

Criminal

Before:

Noman SC DCJ

Decision:

Sentences: Possess prohibited drug: s10A; Indicative sentences: Assault with intent to rob, whilst armed: 3 years imprisonment; Affray: 2 years and 3 months imprisonment; Assault: 6 months imprisonment. Aggregate sentence of 4 years and 1 month with a non-parole period of 2 years and 5 months, to commence 25 March 2024. Eligible for release to parole on 24 August 2026.

Catchwords:

SENTENCING — Robbery armed with offensive weapon — affray — assault — possess prohibited drug — penalties — Imprisonment — early plea — breach of conditional liberty — criminal record — no genuine remorse — medium-high risk of reoffending — substance abuse disorder.

Legislation Cited:

ss61; 93C(1); 97(1) Crimes Act 1900 (NSW)

s10(1) Drug Misuse and Trafficking Act 1985 (NSW)

s10A Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

R v Henry (1999) 46 NSWLR 346

R v De Simoni (1981) 147 CLR 383

Category:

Sentence

Parties:

Rex;
Garang Yai

Representation:

Counsel:
Defence: G Harrison

Solicitor:
Crown: S Amvrazis
Defence: C Giudice

File Number(s):

2024/32191; 2024/45704

JUDGMENT

1. The offender, Garang YAI, is to be sentenced for conduct on 13 January 2024.

2. On this day he committed offences at different locations but separated by only about 40 minutes. No offence presents as impulsive in the sense the offender was in company with his co-offender and the driver of the car.

3. At about 6.15pm the offender and another male exited a car and ran towards the 30-year-old male victim who was standing outside a restaurant. The offender was armed with a knife that measured 34cm. The offender struggled with the victim and sought to take his shoulder bag. A bystander came to assist, and the offenders ran to the car and left. The offence was of limited duration. The offender dropped the knife, and his DNA was subsequently located. When arrested the offender admitted he was the person on the CCTV and that he had tried to steal the bag. This conduct supports the offence of assault with intent to rob whilst armed with an offensive weapon. The offensive weapon was a knife. In addition to being armed, the offence was also committed in company. This offence is contrary to s.97(1) Crimes Act. The maximum penalty is 20 years imprisonment. This is a moderately serious example of the offence provision.

4. The offender was arrested for the robbery offence on 25 January 2024. At the time police located 14.61g of cannabis secreted in his groin. This offence is contrary to s.10(1) Drug Misuse and Trafficking Act 1985 (NSW). It is a summary offence and is before the Court on a s.166 certificate. The maximum penalty is 2 years imprisonment. This offending is low level.

5. About 40 minutes after the robbery offence, the offender, and a co-offender Manyul Manyang, at Lidcombe once again exited the same car. They walked towards the 34-year-old male victim. They approached the victim from different directions. Both offenders commenced punching the victim to his head and kicking him to his legs. The offender took hold of the victim’s satchel bag. The victim was calling for assistance. A neighbour called police. This witness was also scared by what he observed. The co-offender pushed the victim’s motorcycle over and both offenders continued to punch the victim to his head, and one used the motorcycle helmet to further hit him repeatedly. Both chased the victim, and the victim threw his helmet at the co-offender during which he dropped his own phone. The victim received minimal injuries including red marks to his neck and a scratch to one leg. The offending was committed in company. This offending supports the offence of affray contrary to s.93C(1) Crimes Act. This offence has a maximum penalty of 10 years imprisonment. I expressly state that the facts in content and specific words support an offence under s.97 Crimes Act. This is evidently a negotiated plea. Given the facts it is not readily discernible why the original charge was not pressed. However, given this agreement, the facts should have been modified to withdraw references to a robbery. I do no propose to sentence for facts that establish the more serious offence and will negotiate the facts to ensure I do not offend the De Simoni principle. There was an assault and conduct supporting an affray. There was no intent to steal. I am considering the conduct of both offenders and take into account there was actual violence and not merely a threat. The offence occurred over almost 6 ½ minutes. This is a less serious example of the offence provision. The offender made admissions to his involvement in the ERISP.

6. The offender picked up the phone, throwing it at the victim and hitting his face. Both offenders left in the car driven by another. This conduct related to the offence of assault contrary to s.61 Crimes Act. This offence has a maximum penalty of 2 years imprisonment. There was actual albeit limited violence and committed in company. This is a moderately serious example of the offence provision.

7. The maximum penalty for an offence represents the legislature’s assessment of the seriousness of the offence.

8. The offender entered what are accepted to be early pleas. The timing of the pleas in the Local Court warrants a reduction of 25% to sentence.

9. The offender has a number of convictions on his criminal history including for not dissimilar offending. His adult offending commenced in 2021 with a drug offence and a fine. In 2022 and 2023 he committed separate offences of goods in custody, a drug offence, custody of a knife, hindering police, shoplifting, and being armed with intent. He received different sentencing outcomes, but some were initially addressed by community corrections orders. He ultimately breached these orders and received an aggregate ICO for some offending. He breached that ICO when he committed the index offences. This breach of conditional liberty is a circumstance of aggravation reflecting a breach of the freedom granted. He also received a separate sentence of imprisonment for a drug possession offence. His record does not entitle him to leniency.

10. I note there is an institutional offence of possessing a drug dating from March 2024.

11. His ICO was revoked, and he was in custody from 25 January 2024 until 20 July 2024. I will factor in this period when determining totality. His sentence for the drug offence commenced 17 December 2023 and expired 16 January 2024. These dates are opaque as he was at liberty on 13 January 2024 until his arrest on 25 January 2024. This offence does not inform totality.

12. I have considered the assault with intent to rob offence against the assistance provided by the Henry guideline. In distinction, this was an early plea, nothing was stolen, and the victim would not be classed as vulnerable.

13. I am assisted by a current Sentencing Assessment Report together with an earlier report and the breach report. On behalf of the offender, reliance is placed upon a psychological report. Even in combination there is limited insight into the offender or matters that inform the offending.

14. The offender was born in Sudan. He was exposed to violence consonant with living through civil unrest. I would expect there to be some ongoing trauma. This did not warrant an assessment of PTSD at the time of offending although it was endorsed as being likely historically. He was a refugee in Egypt for an unknown period before arriving in Australia in 2008, as a 5-year-old with his parents and siblings. Whatever support was available prior to offending, it did not prevent his substance abuse or provide him with accommodation.

15. The 2023 Sentencing Assessment Report noted the offender to be unemployed and experiencing transiency. He was not forthcoming about details. The breach report noted the unsatisfactory engagement with supervision and a failure to engage in addressing risk factors despite multiple directions to do so. His breach of the order by committing a drug offence was ‘managed locally’ and he was not breached. The report prepared for this sentencing exercise referred to the offender being homeless prior to remand. He had limited experience with employment between leaving school at the end of year 10 and entering remand. There is an intention that he return to reside with his mother upon release. That may or may not be available when he is released to parole. The offender provided an explanation for his offending that does not reconcile with the facts. There was no provocative act. Given the vagueness of the account, and the known circumstances of the offending disclosed in the agreed facts, I do not propose to adopt any unsworn hearsay account. I am only proceeding upon the agreed facts.

16. Based on reports, I accept the offender was a regular user of cannabis. This also accords with his criminal history which records drug possession offences. I note the assessment of a substance abuse disorder existent at the time of offending. The author of the Sentencing Assessment Report records the offender attending weekly NA meetings in custody. This is starting a path to rehabilitation. Evidently more intervention would be required upon release to the community.

17. I do not accept that there is genuine remorse for the offending or insight into the harm occasioned. The mere expression of remorse, even with pleas of guilty, does not support an acceptance of remorse. This is more evident given the unreliable explanations for the offending.

18. The author of the Sentencing Assessment Report assessed the offender to fall in the medium-high risk of reoffending. I accept this assessment, noting the psychologist’s description of the offender lacking coping skills and a diminished ability to regulate emotions, demonstrated by anger and aggression in response to psychological distress. Although there was an opinion expressed of a causal connection between trauma and the offending, I do not consider this possible connection lessens moral culpability. I also observe that suggested cognitive impairment lacks an evidentiary basis.

19. The offender has worked whilst in custody and undertaken engagement with NA. Given at the time of offending it is opined he met the criteria for a substance abuse disorder, and despite his abstinence on remand, it is contemplated he would require more assistance. A supervision plan is incorporated in the Sentencing Assessment Report. This includes addressing his substance abuse, impulsivity, and antisocial risk factors. His prospects of rehabilitation remain unknown given his long-term substance abuse and lack of support.

20. The sentence imposed on an offender should recognise the harm done to the victim of the crime and the community. Armed robberies and public acts of violence and threatened violence require appropriate recognition and admonishment.

21. Given the series of offences and breaches of court-imposed orders, specific deterrence continues to be of significance.

22. General deterrence and denunciation are of importance in these types of offences, more so those involving knives, given the seriousness and prevalence. I do not consider any subjective feature limits the importance.

23. Having considered all other available options, I am satisfied that no sentence other than imprisonment is appropriate.

24. I am required to consider totality. The pertinent matters include the sentence imposed after the revocation of the ICO that was a consequence of the index offending. This requires only minimal accumulation particularly as the breach was a consequence of these offences. I propose to commence sentence on 25 March 2024, that is, 2 months after the date the earlier sentence commenced.

25. The other offences for sentence, other than the possess drug offence, occurred on the same date and close in time. There were separate victims and separate offence categories. All were victim-based offences. None was trivial whereby the criminality would be subsumed within another sentence. Some accumulation is required.

26. I make a finding of special circumstances. It is evident that the offender requires extended supervision and support.

27. The offender is convicted.

28. For the offence of possessing a prohibited drug I proceed by way of s.10A without imposing any other penalty.

29. I intend to impose an aggregate sentence for the other offences. I nominate the following indicative sentences, each reduced by 25% to recognise the pleas of guilty:

1. Assault with intent to rob whilst armed: 3 years imprisonment;

2. Affray:    2 years and 3 months imprisonment; and      

3. Assault: 6 months imprisonment.

30. I impose a term of imprisonment of 4 years and 1 month with a non-parole period of 2 years and 5 months. The sentence will commence on 25 March 2024. The offender will be eligible for release to parole on 24 August 2026. The term will expire on 24 April 2028.

31. This is a variation to the statutory ratio to 59% to reflect the finding of special circumstances.

32. No lesser sentence would reflect the criminality.

**********

Amendments

11 February 2025 - Amendment 11/2/2025: Paragraph 30, term expiration 24 April 2028.

11 February 2025 - Brackets amended

13 February 2025 - Defence solicitor's name inserted

Decision last updated: 13 February 2025