IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for Publication	
AT MELBOURNE
CRIMINAL DIVISION

Case No.  CR-20-01675

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
DULDONG DENG MAJIOK		

---

JUDGE:	HER HONOUR JUDGE BLAIR	
WHERE HELD:	Melbourne	
DATE OF HEARING:	2 June 2022	
DATE OF SENTENCE:	2 June 2022	
CASE MAY BE CITED AS:	DPP v Majiok	
MEDIUM NEUTRAL CITATION:	[2022] VCC 848		

REASONS FOR SENTENCE

Subject: CRIMINAL LAW
Catchwords: Affray – Theft of motor vehicle – Obtain property by deception – Handling stolen goods – Plea of guilty – Sentence indication – Complicity – Refugee – Youthful offender – Reasonable prospect of rehabilitation – Fine. 
Legislation Cited: Sentencing Act 1991 (Vic).
Cases Cited: Worboyes v The Queen [2021] VSCA 169.
Sentence: Charge 1 - $1,000 fine with conviction, Charges 2, 3 & 4 – Aggregate $1,000 fine with conviction. TES $2,000 fine.

APPEARANCES:
	Counsel	Solicitors	
For the Crown	Mr W. Stougiannos	Office of Public Prosecutions	
			
For the Defendant 	Mr Z. Menon
	Victoria Legal Aid	

HER HONOUR:

1	Duldong Deng Majiok. This matter was listed for trial before me on 
24 May 2022 but did not proceed until 27 May 2022.  On that day I heard legal argument about certain pieces of evidence.  On 30 May 2022 I gave my decision about the evidence that had been challenged by your counsel and shortly after that ruling you indicated that you would be prepared to plead guilty.
2	You were arraigned this morning and have pleaded guilty to the following charges: (1) Affray, (2) Theft of motor vehicle, (3) Obtain property by deception, and, (4) Handling stolen goods.
Circumstances of the offending
3	The circumstances of the offending were that on 12 September 2019 at approximately 3.15 pm you and three other men approached the victim, 
Mr Arok.  The victim was punched to the head by one of your group.  This caused him to fall to the ground and he was then kicked by members of your group.
4	I have watched the CCTV footage.  It appears that you were not involved as the initial aggressor, though you do become involved as the fighting continues.  In particular, you are seen to kick or knee Mr Arok at the end of the fight.
5	The whole incident took less than a minute.  You and your group left.  Police later attended the scene and collected the CCTV footage
6	Although it appears the victim sought medical treatment he did not make a statement and there are no medical records detailing any injuries.
7	Approximately six weeks later, between 24 October 2019 and 28 October 2019, you were involved in a theft of motor vehicle.  So even though the police cannot prove you were the person who took the car, you have pleaded guilty to a theft of the car in circumstances where you have assumed the rights of the owner and have used the motor vehicle without consent.  And that is Charge 2.  The affray, as I said, was Charge 1.
8	On 27 October 2019 a man named Penghui Wang was the victim of an armed robbery.  During this incident various items were stolen from him, including a debit card.  You and two others, Mr Mongrag and Mr Abdilahi, were depicted on CCTV at a 7-Eleven in Brunswick.
9	Without Mr Wang's authority the card was used by Mr Abdilahi to purchase $53.99 worth of cigarettes.  You were complicit in this deception.  That is 
Charge 3.
10	The following day, 28 October 2019, you, together with your co-offenders, 
Mr Abdilahi and Mr Mongrag, were seen on CCTV footage at Melbourne Central shopping centre.  You are seen at a shop called Fonfix and at that time you had two mobile phones.  Both of these had been stolen the night before; one from Mr Damam and the other from Mr Kerr, one in an armed robbery, one in a robbery.  That is Charge 4.
Nature and gravity of offending
11	The maximum penalty is an important measure of how seriously Parliament and the community view an offence.  It is something that I must take into account when deciding what penalty I should impose, and I do so in your case.  I must also consider the objective seriousness of the circumstances of your offending. 
12	Your counsel, Mr Menon, submitted that your offending was toward the lower end of gravity for the following reasons:  The affray was of very short duration and there was no evidence of any injury.  He conceded though that the offending occurred in a busy public place and would have been a frightening event for members of the public to witness.
13	In relation to the theft of motor vehicle, it was put on the basis that you assumed the rights of owner of the vehicle.  It is not alleged that you actually stole the car on 24 October 2019.
14	The obtain property by deception was unsophisticated and the goods obtained were of a low value. 
15	The handle stolen goods charge involved two mobile phones that were of relatively modest value.
16	I accept the submissions made by your counsel.  I consider the affray to be the most serious of the charges that you face.  However, this occurred over a very short duration, well under a minute, and your victim does not appear to have sustained any visible physical injuries.
17	I was also impressed by the fact that you took the initiative to hand yourself in to the police and take responsibility for your role in the offending.  As I have said, it was clear to me from watching the CCTV footage that you were not the initial aggressor and you were not the main offender.  I also accept the learned prosecutor's submission that this was a nasty incident involving four offenders on one.
Plea of guilty
18	I accept that your plea of guilty in relation to the affray was an early plea.  I note you made admissions to this offending in your record of interview and indicated an intention to plead guilty to the charge before the committal.  
19	In relation to the remaining charges I note that you have pleaded guilty to an indictment that is significantly different to the trial indictment.  Pre-trial rulings by the court have assisted resolution.
20	Even though this resolution has come just before trial I still consider there is significant utilitarian benefit in your plea of guilty; the victims did not have to relive what would have been a traumatic experience by giving evidence at trial.  You have also spared the court and community from the additional time and expense of what would have been a time-consuming trial.
21	In addition, I note what the Court of Appeal have recently said in the case of Worboyes v The Queen [2021], and that is:
22	'A plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects.  A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time.  Although a sentencing judge need not quantify the extent of any discount, he or she must ensure the plea of guilty results in a perceptible amelioration of sentence'.
23	In these circumstances, I propose to allow a significant discount for your plea of guilty.  
Personal circumstances 
24	You were born in South Sudan in June 1998.  You are now 23 years old.  You were only 21 when you committed the offences before the Court.  Your mother, Narout, married your father and gave birth to you at the young age of 15 years.  Shortly after your birth, like many people from South Sudan, you and your parents were forced to leave because of the civil war.
25	In 2002, after a time living in refugee camps, your family migrated to 
Melbourne, Australia.  You were four years old.  When you were around 
13 years of age your parents separated.  At this time you and your family moved to Traralgon and your father returned to South Sudan.  You have not had contact with him since that time.  You have four siblings, or four brothers and sisters, who are a lot younger than you.  And I am told that you have helped your mother look after them.
26	Despite being in custody in the restrictive and difficult circumstances caused by the pandemic you have maintained phone contact with your family and intend to return to the family home when you are released.
27	In 2016 you completed your VCE at Traralgon College.  Following this you worked in warehousing and logistics.  In addition to work you had been a member of the South Sudanese Church of Nazarene and a volunteer youth pastor.
28	Your last job, which was with TNT Removals, ended in August 2019 because you lost your licence for a traffic infringement.  You were unemployed at the time of the offences in September and October 2019.  It is unfortunate that you lost your licence, as it would appear up to this time you were doing well and had not been in any trouble with the law.
29	I accept that your remand in custody for these matters, on 7 November 2019, and the 104 days you spent in adult gaol would have been a real shock for you.  This is particularly so given your age and lack of prior criminal history.  Although this period was not during the COVID pandemic it nonetheless represents very direct and real punishment for the offending now before the court.  I take it into account that you have spent this time in custody.
30	At the time of the offending, as I have said, you were 21 years old.  You are now 23.  You do not fit the definition of 'young offender' within the meaning of s3 of the Sentencing Act, however, you are still youthful and the principles that apply to sentencing of young offenders still have application in your case.  
31	These principles include:  
(a) The youth of an offender should be a primary consideration for a sentencing court where that matter properly arises;
(b) Young offenders are immature and may not fully appreciate the nature, seriousness and consequences of their criminal conduct;  
(b) Courts recognise the increased potential for young offenders to be rehabilitated, which is in the public interest; and
(d) Incarceration can impair rather than enhance a young offender's prospects of rehabilitation.
32	In terms of rehabilitation, on the information before me, I consider that you have reasonable prospects; you are still a very young man, you have good family support, your education, past work history and community connectedness give me hope that you will be able to reintegrate into the community sometime in the future.
33	I consider that the relevant sentencing principles that must be applied in your case are general deterrence, albeit somewhat moderated as a result of your youth, denunciation and just punishment.  I also consider the principles of parsimony and proportionality as part of the sentencing exercise.
34	Given your time on remand and your lack of prior convictions I do not consider specific deterrence to be an important factor in sentencing.  I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act where relevant to your case.
35	I have also taken into account, as far as possible, the current sentencing practices for the offences, particularly the charge of affray to which you have pleaded guilty.
36	I agree with your counsel that were you at liberty I may have imposed a Community Correction Order.  Your remand on other matters prevents me from consideration of this type of penalty.  
Disposition
37	Mr Majiok, what I am going to do in relation to Charge 1 is I am going to impose a fine of $1,000 with conviction.  So that is on the affray.  And then in relation to Charges 2, 3 and 4, so all three charges, one penalty, which is an aggregate fine again of $1,000.  And again it is imposed with conviction.  So that makes a total fine of $2,000 with conviction.
38	All right?  So that finalises the matter as far as you're concerned.  So this matter, you can put it to rest and concentrate on the other things that you've got.  All right.  So I wish you all the best in the future.  I hope that you can make a go of things when you get released.
OFFENDER:  Yes.
HER HONOUR:  Yes.  All right.  Is there anything else?
MR MENON:  No, Your Honour, 
HER HONOUR:  All right.  
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