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

CR 22-01755

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
SIGIN KOANG		

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO	
WHERE HELD:	Melbourne	
DATE OF HEARING:	1 December 2022, 8 March 2023	
DATE OF SENTENCE:	17 March 2023	
CASE MAY BE CITED AS:	DPP v Koang	
MEDIUM NEUTRAL CITATION:	[2023] VCC 321	

REASONS FOR SENTENCE
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Subject:                 Criminal Law. Sentence upon plea of guilty. 
Catchwords:          Theft - resist a police officer - recklessly cause injury - commit an 
                              indictable offence whilst on bail - youthful offender – early plea of guilty
                              - Covid-19 delay - disadvantaged background – drug and alcohol abuse -
                              scant sense of remorse.                   
Legislation Cited: Sentencing Act 1991. 
Cases Cited:        Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen (2013) 
                             249 CLR 571.
Sentence:            Total effective sentence of 343 days’ imprisonment.  
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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Ms C. Pezzimenti	Ms S. Threlfall	
			
For the Accused	Mr N. Howard		

HIS HONOUR:  
1	Sigin Koang, you have pleaded guilty to two charges of theft, one of resisting police and one of recklessly cause injury.  You also pleaded guilty to a summary offence of committing an indictable offence whilst on bail.  I sentenced you in Ballarat on 9 March 2022. These are the sentencing reasons for that disposition.  
2	The circumstances of your offending were outlined in a summary prepared and tendered by the prosecution upon the plea and accepted by the defence as agreed facts.  
3	You were 20 years of age at the time of the offending. On 7 January 2022 at approximately midday, you attended at a private property at Mount Clear.  You walked towards the front porch of the property and took a broom that was leaning against the front wall under the porch. You then walked off with the broom.  And CCTV footage depicted you doing so. This is Charge 1 of theft.  
4	On 22 February 2022 at about 11 am, you went to a gift store in Creswick.  While in the store, you approached a mannequin near the front door and removed the scarf from it.  You put the scarf around your neck and exited the store without paying, and that is Charge 2.  The scarf was valued at about $20.  And footage from inside the store captured you taking the scarf.  
5	Within a few minutes of leaving the gift store, you then attended the Creswick post office.  At this time, Senior Constable Pierce, who was on duty in the Creswick area was waiting in line at the post office.  She was in full uniform.  Standing behind her was a male and an elderly female.  You entered the store wearing the scarf.  You stood close to the elderly female and pointed at her and began speaking loudly at her in incoherent sentences.  The elderly female was frightened and uncomfortable.  
6	Pierce proceeded to walk towards you and activated her body worn camera as she asked you to leave the store. The accused continued to verbally harass the elderly female, who was visibly uncomfortable and scared.  You were avoiding Pierce, walking around her as the other customers were moving away as you moved around the store.  
7	Pierce attempted to remove you from the store, and you resisted, knocking some of the stock off the shelves.  You were eventually removed from the store and sat on a bench outside it.  You stated that you would re-enter the store when the elderly female left, and Pierce informed you that you were to leave the premises and were not allowed to return for 24 hours, as you were disturbing the peace.  But you pushed passed her and re-entered the store.  
8	In response, Pierce followed and told you you would be placed under arrest, and again attempted to remove you from the store.  You resisted, knocking more stock off the shelves, and wrestling with Pierce as she tried to take you outside.  Foundation for Charge 3.  
9	Eventually, Pierce removed you from the store and you were again seated on the bench outside, and she requested assistance from her colleague, Acting Sergeant Verrenkamp.  
10	Whilst outside, Pierce’s mobile phone rang and as she took it out of her pocket, her personal bank card fell out onto the floor, and you picked it up and threw it into the post office.  Pierce answered her mobile phone, which was a call from Acting Sergeant Duncan checking on her welfare following her request for assistance.  You took the opportunity to run back in the post office.  
11	Pierce attempted again to restrain you and remove you once again from the store, when you placed your mouth around Pierce’s left forearm and bit her, clamping down on a large area of skin, with your teeth biting down onto the bone of Pierce’s forearm.  Charge 4.  
12	Pierce was in pain and yelled at you to stop biting her, and in response you bit down harder.  Pierce used the phone in her right hand to strike you on the head several times; eventually you let go.  The bite caused bruising, scratches, and red bloody marks on Pierce’s forearm.  
13	You took her personal bank card from the floor, placing it in your mouth and chewed it. You wrestled with her further as you resisted, but you were eventually placed in handcuffs by Pierce, with Acting Sergeant Verrenkamp, who had arrived a short time later, as well as a police unit from Ballarat.  Whilst being placed in the back of the divisional van, you stated to Pierce that the scarf around your neck was stolen from the shop next to the post office.  
14	Some of the customers in the post officer were so frightened during this incident that they had to be let out of a rear door.  The elderly lady that you initially verbally attacked had to be escorted out by another customer due to her fear, of wanting to avoid you.  
15	You were transported to the Ballarat police station, where you were deemed unfit for interview by a forensic medical officer.  
16	Pierce was later advised that you had HIV, and she was required to undergo blood testing to determine if any transmission had occurred through the bite.  
17	Although the theft charges are at the low end of the spectrum of offending, and what otherwise would be akin to shop stealing, they are offences which carry a 10-year maximum and are not insignificant matters.  Resisting a police officer also carries a maximum of five years, and that offence too is not insignificant behaviour, which must be generally deterred.
18	The most serious charge you face is Charge 4 of the reckless cause injury, which also carries a maximum of five years.  But the important consideration is that under s10A(4) of the Sentencing Act 1991, which provides that when a court is sentencing for an offence against s18 of the Crimes Act of recklessly cause injury committed against an emergency worker on duty, like a police officer in this case, the court must impose a term of imprisonment of not less than six months unless the court finds that a special reason exists under s10A of the Sentencing Act 1991. 
19	During the first plea hearing before me on 8 December 2022 at Ballarat, the matter did not proceed past the recitation of the opening and the tendering of some defence reports.  It became clear that an updated psychiatric report was required before sentence could proceed. 
20	The court finally received an updated report which was dated 27 January 2023 from Dr Katherine Tan from Forensicare, a consultant psychiatrist.  Dr Tan was in possession of the earlier reports of Dr Sullivan, dated September 2018, and a psychological report of Professor Brewer dated April 2020, as well as other Justice Health Care reports and documents pertaining to your mental state in the recent past - and the report is very comprehensive. 
21	Before dealing with your personal circumstances and background, I should note that victim impact statement was exhibited, which the victim wrote.  It was a powerful document which outlined in start and clear manner how even a seemingly minor physical injury can have a profound impact on a victim.  The pain at the time of the incident was high.  She became very emotional, crying.  
22	She was then informed you had HIV.  Pierce broke down at that point.  She and her husband had been endeavouring to start a family. She went immediately to see a doctor.  She was required to undergo three separate blood tests at intervals of months.  This time frame was excruciating for both of them.  She was asked by the doctor to refrain from intimacy with her husband to avoid the risk associate with a pregnancy if she had contracted HIV.  This impacted severely upon her.  She wrote, 'This information destroyed me'.  
23	She lost sleep and confidence at home dealing with her husband and stepchildren; it caused separation between them.  She felt she was emotionally damaged and so was the relationship. This event seriously impacted their intimacy and prospects of having children in their time frame. She sought counselling from police psychological services.  
24	The injury took some time to heal.  There is still minor scarring on her arm, and pain in the arm persisted.  Anxiety levels whilst on duty increased and often resurfaced.  Very pointedly and poignantly, the officer expressed sadness at your background and at the state of your life.  I take this statement into account.
25	In very helpful submissions, your counsel set out your personal background and history. It was conceded that community protection and deterrence were paramount sentencing purposes. Your conduct falls to be denounced. You came before the court accepting that a prison sentence would be imposed.  Importantly, it was conceded that no special reason could be asserted to defeat the provisions I have mentioned above.  It was an appropriate concession.  
26	The original submission was that the minimum mandatory term of six months was appropriate; however, that period had already been served by the time the plea came before the court.  I ordered the updated report, cognisant that further time would accumulate by way of pre-sentence detention, but I felt it was important to be properly updated to determine an appropriate and proportionate sentence in this matter.  By the time the plea came back before me, you had served 343 days in custody.  
27	The first consideration is that you are a youthful offender, and that requires that your rehabilitation take primacy in the sentence of the court to assist and promote your rehabilitation.  You also pleaded guilty at the first reasonable opportunity, and this means it has significant utilitarian value.  It was made at a time of pandemic, during which the threat and reality of COVID-19 has wreaked havoc with the delivery of justice outcomes in this State.
28	Your time in custody has been more onerous than would have otherwise been the case because of the pandemic, and this has impacted many aspects of reclusion from the delivery of programs to the use of isolation and lockdowns, to the prohibition or limit on visits and any other aspects, particularly the ever-present risk of contagion in the closed environment of the prison.  An appreciable and palpable reduction will be applied to your sentence pursuant to Worboyes.  
29	You are one of seven children of a Sudanese family.  Before your birth, your family fled Sudan because of war.  You were born in a refugee camp in Ethiopia.  
30	When you were two years old, your family moved to Australia.  You are an Australian citizen.  You experienced the traumatic and disadvantaged childhood characterised by exposure to alcoholism, family violence, residing in multiple residential facilities in early adolescence, antisocial relationships, and poor educational achievements.  
31	At 14, you were placed in out of home care because of behavioural problems, substance abused, absconding, and aggression.  You completed Year 10.  But at age 12 you were already addicted to alcohol, and then cannabis.  By the time you were age 16, you were dependent of methamphetamine use.  
32	You have a complex history of mental illness and reduced cognitive abilities and have been diagnosed with intellectual functioning in the borderline range, and complex post-traumatic stress disorder.  These conditions are expertly and comprehensively explored in the older reports I have mentioned of 
Professor Brewer and Dr Sullivan, which I have read carefully.  
33	You have a relevant criminal history with priors just before this offending for assault, theft, and bail offences, drug possession, dealing with proceeds of crime.  You were sentenced in January 2022 to seven days' time served as your first time in custody.  That was preceded in July 2020, of drug possession and family violence intervention order breaches.  
34	In April 2020 with damage property offences, bail offences, and family violence breaches.  And in March 2020 with again similar offences, including possession of a weapon. In July 2019, you breached a Children's Court probation order which was confirmed for assault, drug and theft offences by other offences concerning proceeds of crime.  Drug offences that go back to November 2018, October 2018, May 2016, and February 2016.  
35	Also present in your history when, relevantly, you assaulted an emergency worker on duty.
36	The Children's Court, without conviction, dealt with you by placing you on a bond.  
37	You have progressed rapidly to imprisonment and more serious offending.  
38	I accept that the Bugmy principles should apply to your case so as to moderate the harshness of a moral judgment.  In your case, I find your moral culpability is reduced to render your blameworthiness less because of this disadvantaged background.  
39	However, the seriousness of your offending means that that reduction needs to be itself moderated in view of community protection from you.  I accept that special deterrence and general deterrence should be moderated by the above-mentioned factors.  
40	It is difficult to evaluate many aspects of your presentation to the court, however.  While it was said that your prospects of rehabilitation are reasonable, I am unpersuaded that they are more than guarded.  Perhaps this optimism comes from the involvement of a number of agencies which are ready to assist you after your release, and even before whilst in reclusion.
41	The other factor that is difficult to assess is remorse.  That is always a difficult sentiment to evaluate and, in my view, it is scant in your case, in the sense that you are as yet not able to fully form this sense of remorse fully.  I hope you will in the future.  
42	The detailed report of Dr Tan describes your history of drug-induced psychosis, antipsychotic medication in the short-term may prevent relapses.  It is clear you have a substance use disorder and you would benefit from drug and alcohol counselling.  
43	Your disability impacts on your ability to communication, to socialise, to learn, and self- manage.  Your trauma history translates into emotional dysregulation, interpersonal difficulties and negative self-concepts.  A mental health care plan is advisable.
44	Several community supports are in place who are willing to support you to rehabilitate. I am persuaded that the time you have served is the appropriate sentence in this case. DFFH intensive support team and complex needs coordination, as well as Code Black Psychology care plan team, and Berry Street Specialist Services are ready to support your efforts in the community.  
45	The Women's Diversion Program will assist with obtaining housing and has been working with you since May 2022.  As well, the Karrung Foyer, a supported housing service in Ballarat, is available to assist you with accommodation. 
46	In my court order, I have ensured that all of these agencies are aware that you are being released and created a plan to coordinate your rehabilitate efforts. 
47	On the theft, Charge 1, you are convicted and sentenced to one month imprisonment.  
48	On Charge 2 of theft, you are convicted and sentenced to three months' imprisonment.
49	On resisting arrest, Charge 3, you are convicted and sentenced to one month imprisonment.
50	And on the commit indictable offence on bail, the summary offence, you are convicted and sentenced to one month imprisonment.
51	All of these will be concurrent with the sentence on the recklessly cause injury, Charge 4, of 343 days' imprisonment.  
52	I declare that you have served 343 days by way of pre-sentence detention, and we will note that number in the court's records.  
53	But for your plea, I would have sentenced you to 16 months' imprisonment.  
54	I understand there are no other ancillary orders in this matter, Ms Threlfall; is that correct?
55	MS THRELFALL:  Correct, Your Honour.
56	HIS HONOUR:  Yes, thank you.  Any uncertainty or difficulties in relation to the sentence, Mr Howard, Ms Threlfall?
57	COUNSEL:  No.
58	HIS HONOUR:  Yes, thank you.  Thank you for making yourself available this morning.  I will adjourn.
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