DPP v Nienkel [2024] VCC 1173 (2 August 2024)

Last Updated: 30 September 2024

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION

Revised Not Restricted Suitable for Publication

Case No. CR-24-00572

DIRECTOR OF PUBLIC PROSECUTIONS
v
DENG NIENKEL

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	26 July 2024
DATE OF SENTENCE:	2 August 2024
CASE MAY BE CITED AS:	DPP v Nienkel
MEDIUM NEUTRAL CITATION:	[2024] VCC 1173

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentencing.

Catchwords: Plea of guilty – Possessing a firearm contrary to a firearms prohibition order – Discharging a firearm at a premises with reckless disregard for safety – Relevant prior criminal history – Youthful offender – Bugmy principles – Guarded prospects of rehabilitation.

Legislation Cited: Firearms Act 1996 ss 112B, 131A(1); Sentencing Act 1991 ss 6AAA, 18, 49CA.

Cases Cited: Berichon v The Queen [2013] VSCA 319; (2013) 40 VR 490; Azzopardi v The Queen [2011] VSCA 372; (2011) 35 VR 43; Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571; Director of Public Prosecutions v Herrmann [2021] VSCA 160.

Sentence: Imprisonment for a period of 9 months with a Community Correction Order for a period of 2 years and 6 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr E Ritli	Office of the Public Prosecutions
For the Accused	Ms S Buckley	Stary Norton Halphen

HIS HONOUR:

Introduction

1. Deng Nienkel, you have pleaded guilty to:

(a) one charge of possessing a firearm contrary to a firearm prohibition order, contrary to s 112B of the Firearms Act 1996 (‘Firearms Act’), which carries a maximum penalty of 10 years imprisonment; and

(b) one charge of discharging a firearm at a premises with reckless disregard for safety contrary to s 131A(1) of the Firearms Act, which carries a maximum penalty of 15 years imprisonment.

2. You have also admitted your Criminal Record.

Circumstances of the offending

3. A prosecution opening was tendered on the plea and may be summarised as follows:
4. You were born in January 2024. At the time of the offending you were 18 years old and resided with your family at an address in Dandenong.
5. The co-accused in this matter are Mohammad Burma and Awuol Mun.
6. On 4 October 2023, a Firearms Prohibition Order (FPO) was served on you.
7. On 11 October 2023 at approximately 12:00am, you, Mr Burma and Mr Mun drove to 121 Buckley Street, Essendon in a grey VF Holden Commodore. Operating at 121 Buckley Street was a skin and laser clinic named ‘Skin Bottega’ owned by Senae Travers. You , Mr Burma and Mr Mun drove past before returning a short time later and stopping outside.
8. A short time later, you and Mr Mun exited the vehicle each carrying a shotgun (Charge 1).
9. You walked a short distance from the vehicle and discharged a single shot from your shotgun into the front window of the Skin Bottega. You then discharged a second shot into the front window of the neighbouring address – 119 Buckley Street Essendon, the communal area of an apartment complex (Charge 2).
10. Mr Mun remained near the rear passenger door of the VF Holden Commodore. Mr Mun then fired a single shot into the front window of Skin Bottega.
11. Mr Burma remained in the VF Holden Commodore throughout the incident. After discharging your firearms, you and Mr Mun returned to the vehicle and drove away.
12. Protective Services Officers working at the nearby Essendon Railway Station heard the shots and observed the VF Holden Commodore driving away. They attended the scene shortly after. They observed a large, shattered glass window at the entrance to 119 Buckley Street and two holes in the wall of Skin Bottega.
13. On 2 November 2023, you were arrested outside Hungry Jacks Dandenong by members of Victoria Police’s Special Operations Group. You were searched and had your mobile phone and BMW key seized.
14. You were transported to Narre Warren Police Station where you were interviewed and remanded. You declined to comment when asked about the incident.

Nature and gravity of offending

15. Discharging a firearm at premises with reckless disregard is an intrinsically serious offence as reflected in the maximum penalty imposed by Parliament being 15 years imprisonment. You were also in possession of a firearm contrary to a firearm prohibition order which is also a serious offence carrying a maximum penalty of 10 years imprisonment.
16. In this instance you had only been served with the firearms prohibition order on 4 October 2023, some seven days before you decided to commit this offence. While the breach of the prohibition order is charged as a separate offence, when viewing the incident objectively, it is clearly aggravating that you completely ignored a very serious order and decided to obtain a firearm and discharge two shots; one in to a shopfront and one into a window in a communal area of an apartment complex. Your co offender a then fired his shotgun into the shopfront before you both returned to a vehicle where a third offender remained.
17. Further, as to the possession charge, it was submitted by the prosecution that in the circumstances your possession of the firearm falls within the second category as outlined in Berichon that is, it was in your possession for the purpose of criminal activity or a specific criminal purpose. ^[1] Given the circumstances of the shooting some seven days after you were served with the order that is the inescapable conclusion.
18. You provided no explanation for your conduct however it clearly involved a degree of planning and purpose. On any view this is very serious offending.

Personal circumstances

19. You were born in the Kakuma Refugee Camp in Kenya in 2005. Your parents are from South Sudan. Your mother was pregnant with you when your parents fled the civil war in 2005.
20. In 2006 you and your family obtained refugee visas and relocated to Australia. You originally settled in Springvale and have remained living in the south eastern suburbs.
21. You are part of a sibship of four. You also have four older half siblings. You remain close one of your paternal half-brothers.
22. You report that your mother has always been a hard worker, having held multiple jobs at once as the breadwinner of the family. Your father has been unable to work due to physical injuries sustained during the civil war in South Sudan. He has also suffered from mental health problems and consumes a large amount of alcohol. You are reticent to speak about family violence but have reported that there have been instances of family violence in your home. Your parents’ relationship was unstable and ultimately a Family Violence Intervention Order was made against your father who left the family home in 2021.
23. You attended two primary schools in Keysborough and Dandenong North. You commenced secondary school, only completing Year 9. It was in Year 9 that you began to associate with negative peers; you began using cannabis and you did not regularly attend school.
24. In November 2019 at age 14 your father took you to Kenya in attempt to break the cycle of your negative behaviour. Your father’s intention was for you to stay with extended family in your home village and reconnect with your culture. Within a few months your father returned to South Sudan leaving you with your extended family. You describe some positive aspects of your experience in Kenya however due to border closures as a result of the pandemic, you became isolated from your family in Australia, remaining in Kenya for one year and seven months. Unfortunately, while in Kenya you also experienced traumatic events including witnessing significant acts of violence, being subject to harsh police enforcement of pandemic rules and generally feeling unsafe.
25. You look back on this experience as a very disruptive time where your education was on hold, you were isolated and you were disconnected with your stable family life in Australia.
26. Upon your return to Australia in 2021 you found it difficult to reintegrate. You were told that you needed to repeat Year 10 which you did not wish to do. Your disengagement with school only led you to greater interaction with negative peers, substance use and offending behaviour. Your criminal history reflects that you first appeared in the Children’s Court in February 2022 in relation to a number of offences including, drug, weapons and dishonesty offending. Your second appearance in the Children’s Court in July 2023 related to serious offending in including aggravated car jacking, recklessly causing serious injury and drug offending for which you received a term of detention in a Youth Justice Centre.
27. A number of historical reports in relation to your 2023 offending were tendered including a Pre-Sentence Report and report from psychologist Gina Cidoni, dated 5 May 2023. I have read and taken the content of those reports into account. Ms Cidoni assessed you as having an ‘Unruly (Antisocial) Personality Type with negativistic traits’. She states that you are a complex case with several underlying mental health issues, noting also your history of drug and alcohol abuse.

Sentencing considerations

28. Ms Buckley who appeared on your behalf, provided detailed written submissions highlighting a number of matters in mitigation.
29. First is your plea of guilty. Your plea was entered at the earliest reasonable opportunity at the committal mention stage demonstrating your acceptance of responsibility. Your plea has saved the court considerable time and has spared witness from having to give evidence, thereby advancing the course of justice.
30. You were 18 at the time of the offending and are now 19. You are a young offender by definition. As such, it was submitted that rehabilitation should, despite the seriousness of the offending, take a primary role in the sentencing discretion. While I accept the well settled principles in relation to young offenders, and that they do have application in your case, I must also weigh those considerations with the seriousness of the offending. ^[2]
31. In my view, while your prospects of rehabilitation do take prominence in the sentencing discretion, the other competing and relevant sentencing considerations such as general and specific deterrence, denunciation of your conduct and protection of the community must also carry weight in this instance in light of the seriousness of the offending and your relevant prior criminal history.
32. It was submitted that your exposure to extreme violence in Kenya, and disconnection from your family in Australia for an extended period in your adolescent years, enlivens Bugmy principles.^[3] As noted in Director of Public Prosecutions v Herrmann,^[4] the ‘general’ approach enunciated in Bugmy is that the relevance of depravation to sentencing does not depend on a nexus or evidentiary foundation before a disadvantaged background can be taken into account – the ‘general’ approach relating to circumstances of the offender where he or she has been raised in an environment of violence and has been marred by that experience.
33. Mr Ritli, who appeared on behalf of the Director of Public Prosecutions submitted that the principles in Bugmy are enlivened, but only to a degree. I note that your return to Kenya was in 2019 for a period of one year and seven months. It was in that period that you experienced exposure to violent crime and were isolated from your family in Australia. You relate this experience to your involvement in the criminal justice system which commenced upon your return to Australia. I accept that your adverse experiences have to some extent informed your behaviour upon your return to Australia, however in my view your experience while relevant, does not necessarily equate with ‘profound depravation’ or ‘disadvantage’ throughout your childhood. It appears to me however that there are a number of unexplored issues that may be linked to your behavioural problems stemming from your experience in Kenya. As such in my view Bugmy principles can be given some weight in the ‘general’ sense, but only to a limited degree.
34. As to your prospects of rehabilitation, it is essential that you dissociate with people such as your co-offenders and others that may have been linked to this, and your past offending. It is also evident that you must fully engage with the services that you will be offered in order to address some of the core issues that influence your offending. While your mental health issues do not enliven Verdins principes they are nonetheless complex and you require ongoing support to enable you to grapple with some of the historical events in your life that have contributed to your behaviour. At this stage in my view your prospects can only be assessed as guarded.
35. Despite the prominence of youth and rehabilitation in the sentencing calculus, deterrence both general and specific, and protection of the community must in my view be given weight. The possession and discharging of firearms in the circumstances presented here poses significant risk to the community and must be deterred. Further, as you have a relevant prior criminal history and were subject to a firearms prohibition order, you too must be deterred from contemplating such conduct in the future.
36. It was submitted on your behalf that a combination sentence where the imprisonment component does not exceed the time you have served is a disposition that is able to meet the relevant sentencing considerations. The prosecution submitted that a combination sentence is within range.
37. I had you assessed for a community correct order and you have been found suitable. While offences such as this ordinarily call for a head sentence with a non parole period, in all the circumstances, most particularly your age, a combination sentience is in this instance, in my view able to meet the relevant sentencing considerations. The order I impose will be onerous containing punitive and therapeutic conditions.

Sentence

38. Mr Nienkel, please stand.
39. Deng Nienkel, on Charge 1, possess a firearm contrary to a firearm prohibition order you are convicted and sentenced to 8 months imprisonment. On Charge 2, discharging a firearm at a premises with reckless disregard for safety, you are convicted and sentenced to 8 months imprisonment. I direct that 1 month of the sentence on Charge 2 be cumulative on the sentence imposed on Charge 1 making for a total sentence of 9 months as the prison component of the combination sentence.
40. Upon your release you will be placed on a community correction order for a period of 2 years and 6 months. In addition to the standard conditions, you will be required to complete 200 hours of community work, you will be subject to treatment and rehabilitation conditions in relation to drug use, alcohol use, mental health and programs to reduce reoffending. You will also be subject to supervision.
41. Pursuant to s 48CA of the Sentencing Act 1991 (‘Sentencing Act’), I direct that all of the hours that you satisfactorily complete pursuant to the treatment and rehabilitation conditions, may be credited as hours of unpaid community work.
42. Pursuant to s 18 of the Sentencing Act, I declare that 274 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
43. Pursuant to s 6AAA of the Sentencing Act, I indicate that had you not pleaded guilty, I would have sentenced you to a period of 2 years and 6 months imprisonment with a non parole period of 18 months.

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^[1] [2013] VSCA 319; (2013) 40 VR 490, [26].

^[2] Azzopardi v The Queen [2011] VSCA 372; (2011) 35 VR 43, [44].

^[3] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.

^[4] [2021] VSCA 160, [36] and [45].