R v Kuol

[2019] NSWDC 181

District Court

New South Wales

Medium Neutral Citation:	R v Kuol [2019] NSWDC 181
Hearing dates:	26 March 2019
Decision date:	26 March 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Sentenced to a term of imprisonment of 27 months - non parole period of 12 months.
Catchwords:	CRIME - SENTENCE - aggravated robbery - special circumstances
Legislation Cited:	Crimes Act 1900 (NSW), s.95
Cases Cited:	R v Henry (1999) 46 NSWLR 346
Category:	Sentence
Parties:	Regina (Crown) Deng Kuol (Offender)
Representation:	Mr Kemp (ODPP) Ms Johnson (Solicitor)
File Number(s):	2018/192280
Publication restriction:	Nil

Judgment

​

1. Deng Kuol, you appear for sentence today in relation to one offence, that is, aggravated robbery - the circumstance of aggravation being the use of corporal violence. 

2. This involves a contravention of s 95 of the Crimes Act.  The maximum penalty for that offence is 20 years imprisonment and there is no standard non-parole period. 

3. Although there is no standard non‑parole period, there is a relevant judgment in the Court of Criminal Appeal for the guidance of judges imposing sentences for offences of this kind and that is R v Henry.

4. The facts surrounding your offending are contained in an agreed statement of facts, which you have signed. Slightly recast by me as to style, but not substance, the facts surrounding this matter can be summarised in the following way. 

5. As at June 2018 you were 19 years of age.  

6. On 10 June 2018, you went out with friends nightclubbing in the city. In the early hours of the morning of 11 June, you were returning home with your friends by a train. 

7. On the same train was a young man, Mr Singh. He was 20 years of age.  He had a backpack and he was using his mobile phone whilst he was on the train. 

8. You decided that you would rob him of both his phone and his backpack and, after walking around the carriage for some time, (which, apart from Mr Singh, had one other passenger) you did precisely that.  You confronted him; you shoved him; and you punched him with your fist to his eye.

9. In the struggle between the two of you, Mr Singh's turban came off. It is difficult, from the CCTV footage, to be satisfied beyond reasonable doubt that you deliberately pulled his turban off. But the fact is, even if it were not deliberate, it was done in a struggle which you initiated - and the loss of a turban for a Sikh man (which Mr Singh was) is a deeply humiliating thing.

10. You escaped because someone who was with you had propped open the doors of the train. 

11. The fact that you had a companion whilst you robbed Mr Singh is, not in the circumstances of this case, an aggravating factor because the Crown does not assert that at any stage Mr Singh was aware of the presence of that other man. 

12. There has been some agitation in this case as to whether or not Mr Singh was deliberately targeted by you because he was of apparent Indian background. It is true that, when you were interviewed by the police, you made some reference to you and your friends being "against" a particular race i.e. Indians. But I have noted also that, at the time, you were working comfortably for an Indian gentleman. I am not persuaded beyond reasonable doubt that Mr Singh was targeted because of his ethnicity.  More likely, in my view, he was targeted because he was on his own - which hardly improves the situation for you.

13. There is no victim impact statement available to the Court as to what, if any, long term effects Mr Singh suffers from by reason of your cowardly attack on him, in the early hours of the morning, as he was going about his business, using public transport, and at a time of day when he was more or less vulnerable by reason of (except for one other person) being alone on that carriage.  No doubt the experience was a very frightening one for him. But there is no evidence before the Court that, whatever reaction Mr Singh had, it was greater or more extreme than what might ordinarily be expected from an offence of this kind.

14. Your solicitor today has made a concession that the offending is just below the mid-range of objective criminality for an offence of its kind.  The Crown has made no specific submission in that respect. But I do not agree. I do not think it is as serious as your advocate has conceded.  My own independent assessment of the objective seriousness of the offence for an offence of its kind is that it is somewhere equidistant between the middle and the bottom of the range.  There are far more serious matters of aggravated robbery involving corporal violence than what you did - although that is not to excuse you.

15. I have mentioned that at the time you committed the offence you were 19 years old. 

16. You were not born in Australia. You were born in the Sudan and the unfortunate nature of the history of that country is well-known to the Court.

17. In the psychologist’s report which has been given to me, I have been told that you never knew your father. I have also been told that at some point (when you were under four or five years of age) you were sexually abused and that when you mentioned that to your mother you were punished for it.  I am also told that you have memories (as a child) of seeing dead bodies, which is of course consistent with what the Court knows occurred in Sudan at the time you were a child. 

18. One thing that has surprised me in the psychologist’s report is that there has been no real attention given to the likely trauma that you underwent as a boy (under four or five) seeing what you saw and also being sexually abused.  Rather than focussing on what the psychologist did focus on, I would have thought that they were matters that should have occupied a lot more attention in this report than has been received. 

19. Your mother did not only have you, you had brothers and sisters. Because your father died early, she had to work very hard and she was not able to provide you with the guidance that is desirable for a young child.  It is no criticism of her.  But you were largely brought up by some of your older brothers and sisters, particularly some older brothers who did not have a very good influence on you. 

20. Your family came to this country when you were about 5 years of age. 

21. Your schooling here was problematic.  You could not speak English when you came here; you can now.  For a time, your family moved to the country town of Orange, which seemed to be a place where you settled down and you were improving yourself. However, your family came back to Sydney and you then started to "hang out" with some undesirable people. You left school at the end of Year 11, following a suspension, and you have not yet followed the TAFE course that you wanted to follow.  You have told the psychologist that, when you are released from custody, you will return to TAFE to engage in an air-conditioning maintenance course.

22. You started abusing alcohol when you were 15 - and by 17 you were drinking to excess. In 2016 you started to use cannabis and you abused alcohol and cannabis regularly and excessively. And you have been using speed and LSD. 

23. Another thing that has surprised me about this psychologist's report is the failure of the author to consider whether or not (and to what extent) your use of drugs and alcohol has been some form of self-medication to deal with the trauma that you experienced as a child in Sudan. 

24. You were high as a kite on the night you committed this offence.  You had consumed a large amount of alcohol and illicit drugs - which is no excuse, Mr Kuol, at all. 

25. You have not had any rehabilitation programmes or intervention in relation to what are developing to be serious problems for you - because you already have a major depressive disorder, alcohol use disorder and cannabis use disorder - and you are only 20. 

26. You think because you have not been using drugs in gaol - an environment in which drugs are readily accessible - that you have beaten the problem.  The long-term and insidious nature of these disorders, Mr Kuol, means that you are wrong.  You cannot do this on your own; you do need professional assistance and you have told me that you are willing to accept that assistance.

27. You have a number of offences on your criminal record but they are of a minor kind and you are entitled to the leniency which, in appropriate circumstances, is extended to a first offender.

28. You do not yet have any significant mental health issues, Mr Kuol. I have used the word “yet” deliberately because (considering when you started using cannabis and the amount of cannabis you have been using) if you continue to use it, you are on a trajectory to developing schizophrenia, schizoaffective disorder or something of that kind.  This Court and the Local Court every day of the week see young people who have used cannabis from teenage years developing such serious mental health issues. People in high public office who say that cannabis is not a dangerous drug have no idea what they are talking about.  They ought to go into the Local Court or this Court and sit there quietly and listen because the number of times I, and my judicial colleagues both in this Court and the Local Court, see people of your age (or a little bit older) who have used cannabis regularly since 14 and who then suffer from schizophrenia is terrifying. 

29. Now be under no misapprehension, Mr Kuol, about what schizophrenia is: it is a frightening disease.  If you break your arm it can be cured.  If you have cancer it can be cured.  Schizophrenia is never cured.  You can take drugs to control it but it will never leave you.  And the number of people who have schizophrenia and who kill themselves or others because of the voices in their head is very high.  There is a real incentive, Mr Kuol, at this stage of your life, to stop it because if you do not stop using cannabis, there is the real risk of a very unfortunate outcome for you.

30. There has been some criticism of you in the Crown's submissions as to some of the material that has come before me.  I am not persuaded that there are really significant problems in relying on your word.  I accept the truthfulness of what you have told me in the witness box.  I accept the truthfulness of what you have told the authors of the two reports that have been given to me. 

31. I accept that you are genuinely remorseful for what you have done.  Remorse is an important factor in assessing a person’s prospects of rehabilitation.  It is not the only factor but it is an important one.  I have also taken into account, in that respect, the support you have from your family and the Sudanese community generally.  I think your prospects of rehabilitation are in fact quite reasonable.  They would be enhanced by a longer period on parole.

32. As has been submitted, no sentence other than a sentence of imprisonment is appropriate and I have noted that you pleaded guilty at an early opportunity.  There will be a 25% discount because of the plea.

33. Except for your plea of guilty, the term of imprisonment would have been 3 years but because of the early plea the term of imprisonment will be 27 months.

34. In coming to that starting point of 3 years, I have taken into account that the sentence to be imposed upon you needs to be one that will discourage you from further offending and will discourage others from offending in a similar way.  What lawyers call specific and general deterrence are fully engaged.

35. I earlier said your prospects of rehabilitation would be enhanced by a longer period on parole.  For that reason, and because of your age, I am going to make a finding of special circumstances to vary the ratio of the head sentence to the non-parole period.

36. You have been in custody since you were arrested on 21 June 2018, and the sentence will be backdated to that date. 

37. The non-parole period will be 12 months and, therefore, you will be eligible for parole on 20 June 2019. 

38. The balance is 15 months, which will commence on 21 June 2019. Use that time well, Mr Kuol.  There will be experienced probation officers available to assist you during that 15 months.  They have skills which you should make use of because if you do not, and you breach your parole, the first thing that will happen is you will serve the rest of your term in gaol.  But the second thing is that this is an opportunity for you to turn your life around.  Being only 20, make the most of it.

39. You will now go with the officers, thank you.

Decision last updated: 16 May 2019